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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
(Mark One)
X Annual Report Pursuant to Section 13 or 15(d) of the Securities Exchange
--- Act of 1934 For the fiscal year ended April 30, 1998
OR
___ Transition Report Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 For the transition period __________ to ___________
Commission File Number 001-11763
TRANSMONTAIGNE OIL COMPANY
Delaware 06-1052062
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2750 REPUBLIC PLAZA, 370 SEVENTEENTH STREET
DENVER, COLORADO 80202
(Address, including zip code, of principal executive offices)
(303) 626-8200
(Telephone number, including area code)
Securities registered pursuant to Section 12(b) of the Act:
NAME OF EACH EXCHANGE
TITLE OF EACH CLASS ON WHICH REGISTERED
------------------- -------------------
COMMON STOCK; $.01 PAR VALUE 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 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 report), 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]
State the aggregate market value of the voting stock held by non-affiliates of
the Registrant. The aggregate market value is computed by reference to the last
sale price of the Registrant's Common Stock on the American Stock Exchange on
July 21, 1998.
$177,023,000
The number of shares of the registrant's Common Stock outstanding on July 21,
1998 was
25,953,324
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the Definitive Proxy Statement relating to the 1998 Annual Meeting
of Shareholders of the registrant are incorporated by reference into Part III.
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TABLE OF CONTENTS
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ITEM PAGE NO.
<S> <C>
Part I 1. Business 3
2. Properties 15
3. Legal Proceedings 15
4. Vote of Security Holders 15
Part II 5. Market for Common Stock 16
6. Selected Financial Data 17
7. Management's Discussion and Analysis of
Financial Condition and Results of Operations 20
8. Financial Statements and Supplementary Data 39
9. Changes in and Disagreements with Accountants
on Accounting and Financial Disclosures 69
Part III 10. Directors and Executive Officers 69
11. Executive Compensation 69
12. Security Ownership of Certain Beneficial
Owners and Management 69
13. Certain Relationships and Related Transactions 69
Part IV 14. Exhibits, Financial Statement Schedules and
Reports on Form 8-K 71
</TABLE>
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PART I
ITEM 1. BUSINESS
GENERAL
TransMontaigne Oil Company ("TransMontaigne") provides a broad range of
integrated transportation, terminaling, supply, distribution, gathering,
processing and marketing services to producers, refiners, distributors,
marketers and end-users of petroleum products, chemicals, other bulk liquids,
natural gas and crude oil in the downstream sector of the petroleum and chemical
industry. TransMontaigne is a holding company which conducts its operations
through subsidiaries primarily in the mid-continent and Rocky Mountain regions
of the United States. TransMontaigne does not explore for, or produce, crude oil
or natural gas, and does not own crude oil or natural gas reserves.
TransMontaigne owns and operates refined petroleum products, chemicals,
other bulk liquids, crude oil and natural gas assets. TransMontaigne refined
petroleum products, chemicals, other bulk liquids and crude oil assets consist
primarily of approximately 790 miles of pipeline and 31 terminal, storage and
delivery facilities located in 10 states with a combined tank storage capacity
of approximately 8,500,000 barrels. TransMontaigne natural gas gathering and
processing assets consist of 5 gathering and processing systems in 3 states with
combined throughput capacity of approximately 94 million cubic feet per day and
over 2,800 miles of pipeline. TransMontaigne also extensively utilizes refined
petroleum products common carrier pipelines and terminals owned by third parties
in order to increase product volumes shipped, marketed and sold to and exchanged
with customers in other locations. TransMontaigne management believes that the
use of these facilities should allow TransMontaigne to significantly expand its
geographic service area and the integrated logistical services it provides.
TransMontaigne operations are conducted through its logistical petroleum
services business segment which primarily includes pipelining, terminaling,
storing, supplying, distributing and marketing refined petroleum products and
through its natural gas services business segment which includes the gathering,
treating, processing, fractionating and marketing natural gas liquids ("NGL")
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and natural gas. Operating information relating to these business segments is
presented in note 18 to the financial statements.
TransMontaigne believes that fundamental structural changes and the trend
toward outsourcing in the petroleum industry are creating opportunities for its
continued growth. Major oil companies and independents are undertaking
reorganization, rationalization and cost-saving measures in an effort to improve
operating and financial performance. This is expected to result in the
disposition of domestic non-strategic, non-core businesses and downstream assets
and facilities, and in the outsourcing of procurement, maintenance,
transportation, supply, distribution, gathering, processing, marketing and
administrative functions.
TransMontaigne believes that the disposition of downstream assets and
facilities provides opportunities for it to selectively purchase pipeline,
storage, terminal, gathering and processing assets, and to apply focused
management and more cost effective utilization of these facilities while also
providing value added service at competitive prices to its customers, which
often include the former owners of the assets. TransMontaigne has acquired,
designed and developed its physical assets and its operating, risk management
and information systems in order to take advantage of these opportunities.
The principal predecessor of TransMontaigne was formed in 1977. In April
1995 present management and certain institutional stockholders of
TransMontaigne acquired control of the predecessor through a merger in which the
name was changed to TransMontaigne Oil Company. In June 1996 TransMontaigne and
a publicly held corporation merged, with the stockholders of TransMontaigne
receiving approximately 93% of the stock of the merged corporation.
In December 1996 TransMontaigne acquired the Grasslands natural gas
gathering, processing, treating and fractionation system (the "Grasslands
Facilities") for approximately $71,000,000 in cash. The Grasslands system is one
of the largest natural gas facilities in the Williston Basin which is currently
among the more active areas of onshore domestic drilling activity. The
acquisition of the Grasslands Facilities has enabled TransMontaigne to increase
its earnings by capitalizing on the industry's divestiture trend and applying
its management expertise in the downstream sector of the petroleum industry.
These facilities are the cornerstone of TransMontaigne's natural gas gathering
and
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processing facilities in the Williston Basin of the Rocky Mountain region, and
enable TransMontaigne to provide high quality service to oil and gas producers
as well as to distributors, marketers and end-users of NGL and natural gas.
In November 1997 TransMontaigne acquired the common stock of 17
corporations, known as the "ITAPCO Terminal Corporations", and certain related
property and property interests. The acquisition included 17 bulk liquid storage
and distribution terminals located in 8 states having total tankage capacity in
excess of 3.3 million barrels, handling primarily refined petroleum products,
chemicals and other bulk liquids together with the related operations of the
terminals and 7 contracts for providing management services to non-owned storage
and distribution terminals, pipelines and related facilities for third parties.
The ITAPCO Terminal Corporations purchase price was $32,000,000 ($31,458,000
cash plus assumption of outstanding bank debt of approximately $542,000) and was
funded by an advance of $22,000,000 from the TransMontaigne bank credit facility
with the balance from TransMontaigne cash reserves.
Subsequent to the acquisition of the ITAPCO Terminal Corporations,
TransMontaigne acquired for an aggregate of $4,686,000 the remaining 50%
interest in a 153,000 barrel terminal located in Owensboro, Kentucky which it
did not previously own; a 259,000 barrel terminal located in Greenville,
Mississippi; and the remaining 50% interest in a partnership which owns and
operates a natural gas gathering and processing facility located in Lignite,
North Dakota which it did not previously own. In addition, TransMontaigne has
expended approximately $1,100,000 on improvements and enhancements to the
ITAPCO Terminal Corporations facilities since its acquisition.
TransMontaigne intends to continue to make strategic additions to and
expand its existing facilities in order to maintain quality service levels,
increase operating efficiencies, achieve incremental net earnings and improve
its competitive position. This strategy has resulted in capital improvements
aggregating over $10,000,000 at its East Chicago, Indiana storage facilities,
North Little Rock, Arkansas and South Bend, Indiana terminals and NORCO pipeline
system in Illinois, Indiana and Ohio during the year ended April 30, 1998.
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The executive offices of TransMontaigne, a Delaware corporation, are
located at 2750 Republic Plaza, 370 Seventeenth Street, Denver, CO 80202;
telephone number (303) 626-8200 and facsimile number (303) 626-8228.
TransMontaigne's logistical petroleum services operations are headquartered
at 280 North College, Suite 500, Fayetteville, AR 72701; telephone number (501)
521-5565 and facsimile number (501) 442-4650. TransMontaigne's natural gas
services are headquartered at 2750 Republic Plaza, 370 Seventeenth Street,
Denver, CO 80202; telephone number (303) 626-8282 and facsimile number (303)
626-8299.
LOGISTICAL PETROLEUM SERVICES
Through its wholly owned subsidiary, TransMontaigne Transportation Services
Inc., TransMontaigne provides refined petroleum product and crude oil
transportation, terminal and storage services to over 600 customers, including
most major oil companies and independent refiners in the United States.
TransMontaigne owns 790 miles of pipeline and 31 terminal, storage and delivery
facilities in 10 states with a combined tank storage capacity of approximately
8,500,000 barrels in conjunction with major mid-continent pipeline and terminal
systems owned by others in order to transport products to market destinations
and to conduct exchange transactions with major and independent petroleum
companies. The combined utilization of TransMontaigne-owned and non-owned
facilities should allow it to significantly expand its geographic service area
and the nature of services it provides. Through its wholly owned subsidiary,
TransMontaigne Product Services Inc., TransMontaigne provides product services
consisting of the bulk purchase and sale of significant volumes of refined
petroleum products and the wholesale marketing of products at terminal truck
loading rack locations, both of which are high volume, low margin activities.
PIPELINES
TransMontaigne owns and operates a 480-mile refined petroleum products
pipeline from Ft. Madison, Iowa through Chicago, Illinois to Toledo, Ohio (the
"NORCO pipeline") together with associated storage facilities located at
Hartsdale and East Chicago, Indiana and Toledo, Ohio and
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delivery facilities located at Elkhart, Indiana and Chillicothe and Galesburg,
Illinois. The NORCO pipeline system is interconnected to all major mid-continent
common carriers. TransMontaigne also owns a 60% interest in a 67-mile refined
petroleum products pipeline operating from Mt. Vernon, Missouri to Rogers,
Arkansas (the "Razorback pipeline") together with an associated storage facility
at Mt. Vernon. The Razorback pipeline is the only refined petroleum products
pipeline providing transportation services to northwest Arkansas. TransMontaigne
also owns and operates a 220-mile crude oil gathering pipeline system, with
627,500 barrels of tank storage capacity, located in east Texas (the "CETEX
pipeline").
In general, a shipper owns the refined petroleum products or crude oil and
transfers custody of the products to the NORCO or Razorback pipelines, or the
crude oil to the CETEX pipeline, for shipment to a delivery location at which
point custody again transfers. Tariffs for the transportation service are
regulated and are charged by TransMontaigne to shippers based upon the
origination point on the pipelines to the point of product delivery. These
tariffs do not include fees for the storage of products at the NORCO and
Razorback pipeline storage facilities or crude oil at the CETEX pipeline storage
facilities. Fees for the terminaling and storage of products at TransMontaigne
terminals are separately charged if those facilities are utilized.
TransMontaigne's pipeline business depends in large part on the level of
demand for refined petroleum products in the markets served by the pipelines,
together with the ability and willingness of refiners and marketers having
access to the pipelines to supply that demand by shipments through these
pipelines. Competition is based primarily on pipeline operational dependability,
quality of customer service provided and proximity to end-users, although
product pricing at either the origin or terminal destination on a pipeline may
outweigh transportation cost considerations. TransMontaigne believes that high
capital costs, tariff regulation, environmental considerations, problems in
acquiring rights-of-way and TransMontaigne's existing available capacity make it
unlikely that additional competing pipeline systems comparable in size to the
NORCO and Razorback pipelines will be built in the near term.
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TERMINALS
TransMontaigne owned and operated terminals handling petroleum products
connect with product transportation systems, storage facilities and product
distribution locations. These terminals are located in Rogers, Arkansas; North
Little Rock, Arkansas; East Chicago, Indiana; Indianapolis, Indiana; South Bend,
Indiana; Mt. Vernon, Missouri; and Bryan, Ohio. The former ITAPCO Terminal
Corporations facilities handle petroleum products, chemicals and other bulk
liquids with transportation connections via pipelines, barges, rail cars and
trucks and are located in Brownsville, Texas; Evansville, Indiana; Cincinnati,
Ohio; Greenville, Mississippi; Henderson, Kentucky; New Albany, Indiana;
Louisville, Kentucky; Arkansas City, Arkansas; Cape Girardeau, Missouri; East
Liverpool, Ohio; Owensboro, Kentucky; Paducah, Kentucky; and Chippewa Falls,
Wisconsin.
Products terminal revenues are based on volumes handled, generally at a
standard industry fee. Terminal fees are not regulated. The terminals receive
petroleum products in bulk quantities from connecting pipeline systems. Products
are stored in bulk at the terminals and made available to wholesale, shipment
and exchange customers which transport the products by truck to commercial and
retail destinations and then to the end-user. TransMontaigne markets refined
petroleum products over truck loading racks at owned terminals, as well as
through exchanges with numerous companies at other non-owned terminals located
throughout the TransMontaigne distribution area. TransMontaigne believes that
based on location, pipeline connections and quality of service, its terminals
offer advantages over competing terminals.
Chemicals and other bulk liquids terminal revenues are based upon the type
and volume of the liquids handled, including any special temperature
maintenance, labor intensive loading/off-loading requirements or other handling
services. These terminal fees are not regulated; are generally negotiated on an
individual contract basis with a term of one year or less; and typically are at
rates which exceed those for handling petroleum products due to the particular
nature of the items handled. TransMontaigne does not market or own inventories
of chemicals and other bulk liquids.
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Major and independent petroleum companies own terminal and storage
facilities which often have similar capabilities to those owned by independent
operators such as TransMontaigne, but generally do not provide terminaling and
storage services to third parties. In many instances, these companies are also
significant customers of TransMontaigne and frequently provide strong demand for
its terminals, particularly when TransMontaigne's terminals and storage
facilities have more cost effective locations near key transportation
connections. These companies also utilize TransMontaigne for terminaling and
storage services when their proprietary facilities are inadequate, either
because of size constraints, the nature of the products, chemicals and other
bulk liquids stored or the need for specialized handling requirements
particularly when certain types of chemicals and other bulk liquids are
involved. Terminal fees are not regulated.
Ancillary services, including injection of shipper-furnished or
TransMontaigne-furnished additives, are also available for a fee at
TransMontaigne terminals.
STORAGE
The East Chicago, Indiana facility, purchased in January 1997, has
approximately 1,254,000 barrels of storage capacity, including specialized
storage for aviation and jet fuel, and strategic connections to additional
pipelines and facilities in the Chicago, Illinois and Whiting, Indiana areas.
The South Bend Terminal, inactive since its purchase in 1992, was demolished and
rebuilt during 1996 and reopened in January 1997 with a storage capacity of
206,000 barrels and a capability of delivering volumes in excess of 25,000
barrels per day. These facilities enhance terminaling revenues as well as
increase utilization and tariff revenues on the NORCO pipeline system. Chemical
and other bulk liquids storage became a component of the logistical petroleum
business segment following the ITAPCO Terminal Corporations acquisition and
represents an important future source of both storage and terminal revenues.
Storage of refined petroleum products, chemicals and other bulk liquids at
TransMontaigne-owned facilities pending delivery is an integral service
function. Storage fees are generally based on a per gallon rate or on tankage
capacity committed and will vary with the duration of the storage arrangement,
the product stored and special handling requirements. Storage fees are not
regulated.
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PRODUCTS SUPPLY AND DISTRIBUTION
TransMontaigne's supply and distribution efforts are enhanced by its
ownership and operation of products pipelines and terminals; a constant and
reliable supply of NGL from its natural gas gathering and processing
operations; and by its inventory positions in third-party common carrier
pipeline systems.
TransMontaigne utilizes these assets to arbitrage location product price
differentials and transportation costs; to purchase substantial bulk volumes of
products for resale in the spot market or over truck loading racks; and to take
advantage of opportunities presented by anticipated product price volatility
arising from changing economic conditions, seasonal variations and market supply
and demand considerations.
TransMontaigne enters into product exchange transactions in order to
enhance operating margins in connection with its supply and distribution
activities. Exchanges are arranged through agreements under which TransMontaigne
agrees to buy and sell products that differ in terms of geographic location,
type of product or delivery schedule. Through such exchanges, which are
continuously monitored by TransMontaigne's real-time management information and
risk management systems, TransMontaigne seeks to increase its overall operating
margins by maximizing transportation, terminaling and product sales revenues
from each barrel of product sold while also minimizing related storage, shipping
and product costs.
TransMontaigne may selectively hedge a portion of its inventory by entering
into a future physical delivery obligation to a third party or purchasing a
futures contract on the NYMEX in order to maintain a substantially balanced
position between product purchases and future product sales or delivery
obligations and in order to minimize exposure to unacceptable levels of product
inventory which would be subject to the adverse risk of price volatility.
TransMontaigne generally does not hedge the price risk on the portion of its
inventory consisting of pipeline fill, tank bottoms and a minimum product supply
required to satisfy exchange obligations, which inventory is generally not
available for sale. However, hedging positions may be considered and
strategically placed on this inventory when management believes it is
appropriate based upon an assessment of market conditions and the related impact
on operating income.
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GROWTH
TransMontaigne is seeking to significantly grow its Logistical Petroleum
Services business segment. Domestic gasoline demand increased during the
calendar year 1997 and is expected by TransMontaigne to continue to increase in
1998 due to a strong economy and the recent trend toward less fuel-efficient
vehicles. The 1998 demand for distillates should also increase due to the
trucking industry's anticipated growing diesel fuel requirements as well as
increased agricultural usage and forecasted more normal winter weather following
the unseasonably warm 1997 - 1998 winter. In addition, 1998 NGL demand,
primarily propane, should increase if weather patterns return to normal. These
anticipated increases in demand should positively impact TransMontaigne's
Logistical Petroleum Services performance in all operating areas.
TransMontaigne expects to capitalize on this favorable business environment
by continuing to acquire strategically located downstream facilities as well as
other value-added business opportunities which are expected to contribute
additional cash flow and enhance net earnings. Growth by acquisition is expected
to be complemented by construction of new projects and expansion of existing
facilities in specific locations which are intended to develop and increase
TransMontaigne's present operating capabilities and business presence in the
markets served.
NATURAL GAS SERVICES
GRASSLANDS OPERATIONS
TransMontaigne provides natural gas services through its wholly owned
subsidiary, Bear Paw Energy Inc. In December 1996 TransMontaigne acquired the
Grasslands Facilities. These facilities are the cornerstone of TransMontaigne's
natural gas gathering and processing facilities in the Williston Basin of the
Rocky Mountain region and enable TransMontaigne to provide high quality service
to oil and gas producers as well as to end-users of NGL and natural gas. The
Grasslands system is one of the largest natural gas gathering and processing
facilities in the Williston Basin which is currently among the more active areas
of domestic oil and gas drilling. Following the acquisition of the
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Grasslands Facilities, natural gas services has become a significant and
integral component of TransMontaigne's business.
The Grasslands natural gas processing plant, located in McKenzie County,
North Dakota, was built in 1980 and is designed for approximately 75 million
cubic feet per day inlet capacity. The designed product recoveries are 88%
propane, 99% butane and 100% gasoline. Current throughput is approximately 45
million cubic feet per day from over 1,200 active leases, which is gathered
through approximately 2,600 miles of low and high pressure gathering lines. The
majority of the wells connected to the Grasslands Facilities primarily produce
crude oil. They also produce small volumes of natural gas which are generally
high in NGL content. The natural gas gathering lines cover the Williston Basin
areas of western North Dakota and eastern Montana. Additional oil and gas wells
can be connected to this entire system if successful drilling continues. During
the year ended April 30, 1998, 37 new wells were connected to the system
providing additional inlet volumes of 5.4 million cubic feet per day.
The Grasslands Facilities are strategically located between
TransMontaigne's Marmarth facility in southwestern North Dakota, its Baker
facility in eastern Montana and its Lignite facility in northern North Dakota.
TransMontaigne has natural gas gathering facilities covering the eastern
corridor of Montana and the western quarter of North Dakota, from the Canadian
border to the South Dakota border, which should significantly enhance
TransMontaigne's ability to provide a complete service package to North Dakota
and Montana producers as well as to end-users of NGL and natural gas.
OTHER NATURAL GAS SERVICES OPERATIONS
The Marmarth system is an approximately 4 million cubic feet per day
capacity natural gas gathering, processing, and treating facility which gathers
natural gas at low pressure in southwestern North Dakota through approximately
32 miles of gathering pipeline. NGL are currently sold locally by truck after
being fractionated at the Baker facility. The Baker system located in eastern
Montana is an approximately 4 million cubic feet per day capacity natural gas
processing plant connected to a 15 mile gathering pipeline presently under
construction. The Baker system also fractionates the Marmarth system NGL and
provides processing for a major oil company. The Lignite system is an
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approximately 8 million cubic feet per day capacity natural gas processing and
treating facility located in northern North Dakota connected to approximately
250 miles of gathering pipeline. In addition to the ownership of its 4 natural
gas systems, TransMontaigne manages 15 small natural gas gathering systems for a
major interstate pipeline company. TransMontaigne earns a fee for the management
of these systems and is compensated for any additional volumes which it connects
to them.
GROWTH
TransMontaigne continually seeks to identify additional dedicated natural
gas supplies in order to maintain or increase throughput levels to offset
natural production declines in dedicated volumes. Such natural gas supplies are
obtained by purchasing existing systems from third parties or by connecting
additional wells. The opportunity to connect new wells to existing facilities is
primarily affected by levels of drilling activity near TransMontaigne's natural
gas gathering systems.
The gathering, processing and marketing sector of the natural gas industry
is in a consolidation phase. As this consolidation takes place, it may become
more difficult for many companies to earn acceptable returns on smaller systems.
Many oil and gas producers that have previously operated their own natural gas
gathering and processing facilities may realize they lack the operational and
management skills necessary to maximize the return on these investments and
choose to sell these assets. TransMontaigne looks for opportunities presented
by this consolidation in order to selectively acquire these facilities and
generate additional revenues while incurring only modest incremental costs.
LION OIL COMPANY INVESTMENT
In 1985, a 65% owned subsidiary of TransMontaigne purchased 27.75% of the
stock of Lion Oil Company ("Lion"), which owns a modern 65,000 barrel per day
refinery in El Dorado, Arkansas; a 188-mile crude oil transportation pipeline in
east Texas; a 1,100-mile crude oil gathering system in south Arkansas and north
Louisiana; and two refined petroleum products terminals in Tennessee. Lion is
operated under a management contract with a company which owns 48.60% of Lion.
The remaining 23.65% of Lion is owned by various south Arkansas oil and gas
producers. TransMontaigne has two
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representatives on the board of directors of Lion. Through April 30, 1997
TransMontaigne's interest in Lion was reported for financial statement purposes
using the equity method of accounting and thereafter using the cost method of
accounting. For the year ended April 30, 1998 Lion reported net earnings of
$9,219,000 and did not distribute any cash dividends to its stockholders during
that period.
ENVIRONMENTAL AND TARIFF REGULATIONS
The operations of TransMontaigne are subject to federal, state and local
laws and regulations relating to protection of the environment. Future
regulation may impose additional requirements. Although TransMontaigne believes
that its operations are in material compliance with applicable environmental
laws and regulations, and TransMontaigne has not accrued any material amounts
for environmental compliance as of April 30, 1998, risks of substantial costs
and liabilities are inherent in pipeline, terminal and processing operations,
and there can be no assurance that significant costs and liabilities will not be
incurred in the future.
The interstate petroleum products pipeline operations of TransMontaigne are
subject to regulation by the Federal Energy Regulatory Commission (the "FERC")
under the Interstate Commerce Act (the "ICA") which requires, among other
things, that the rates set by the pipeline transportation tariffs be just and
reasonable and not unduly discriminatory. New and changed tariffs must be filed
with the FERC, which may investigate their lawfulness on shipper protest or its
own motion. The FERC may suspend the effectiveness of such tariffs and require
the pipeline to refund to shippers, with interest, any difference between the
level the FERC determines to be lawful and the filed tariffs under
investigation; the tariffs may also be challenged by litigation.
The intrastate petroleum pipeline operations of TransMontaigne are subject
to regulation by the Texas Railroad Commission. Like interstate regulation, the
Texas regulation requires that intrastate tariffs be filed with the Texas
Railroad Commission and allows shippers to challenge such tariffs.
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EMPLOYEES
The Company had 375 employees at July 21, 1998. No employees are subject
to representation by unions for collective bargaining purposes.
ITEM 2. PROPERTIES
For information regarding TransMontaigne properties, see "General",
"Logistical Petroleum Services" and "Natural Gas Services" sections under Item
1.
ITEM 3. LEGAL PROCEEDINGS
Not Applicable
ITEM 4. VOTE OF SECURITY HOLDERS
Not Applicable
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PART II
ITEM 5. MARKET FOR COMMON STOCK
The Common Stock is traded on the American Stock Exchange under the symbol
"TMG." The following table sets forth, for the periods indicated, the range of
high and low per share sale prices for Common Stock as reported on the American
Stock Exchange, adjusted for a 2.432599 to 1 reverse stock split that occurred
in June 1996. On June 5, 1996, following the merger of TransMontaigne and a
predecessor company, the Common Stock began to trade on the American Stock
Exchange (Primary List).
<TABLE>
<CAPTION>
LOW HIGH
------ ------
<S> <C> <C>
April 1, 1996 through June 3, 1996 (1) $10.03 $17.94
June 5, 1996 through July 31, 1996 (2) $ 9.75 $15.13
August 1, 1996 through October 31, 1996 $ 9.69 $10.88
November 1, 1996 through January 31, 1997 $ 9.81 $14.75
February 1, 1997 through April 30, 1997 $13.50 $17.75
May 1, 1997 through July 31, 1997 $14.88 $20.38
August 1, 1997 through October 31, 1997 $15.38 $20.00
November 1, 1997 through January 31, 1998 $13.00 $17.63
February 1, 1998 through April 30, 1998 $13.00 $14.63
</TABLE>
_________
(1) Common Stock traded on American Stock Exchange (Emerging Company
Marketplace) from December 14, 1993 through June 3, 1996.
(2) In June 1996, TransMontaigne adopted a fiscal year end of April 30.
On July 21, 1998, the last reported sale price for the Common Stock on the
American Stock Exchange was $14.25. As of July 21, 1998, there were
approximately 450 stockholders of record of the Common Stock.
No dividends were declared or paid on the Common Stock during the periods
reported in the table above. TransMontaigne intends to retain future cash flow
for use in its business and has no current intention of paying dividends in the
foreseeable future. Any payment of future dividends and
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the amounts thereof will depend upon TransMontaigne's earnings, financial
condition, capital requirements and other factors deemed relevant by
TransMontaigne's Board of Directors. TransMontaigne's Credit Facility and Master
Shelf Agreement, as well as instruments governing certain of its other
indebtedness, contain certain restrictions on the payment of dividends. See
"Management's Discussion and Analysis of Financial Condition and Results of
Operations--Liquidity and Capital Resources."
ITEM 6. SELECTED FINANCIAL DATA
The following selected financial data for the fiscal years ended April 30,
1998, 1997, 1996 and 1995, the seven months ended April 30, 1994, and the fiscal
year ended September 30, 1993, have been derived from applicable audited
consolidated financial statements. This selected financial data should be read
in conjunction with Management's Discussion and Analysis of Financial Condition
and Results of Operations, Item 7, and the consolidated financial statements and
notes thereto included in Item 8, "Financial Statements and Supplementary Data."
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<TABLE>
<CAPTION>
SEVEN
MONTHS
FISCAL YEARS ENDED ENDED
APRIL 30, APRIL 30,
--------------------------------------------------------------------------------------------
1998 1997 1996 1995 1994
------------------ -------------- ------------- -------------- -------------
<S> <C> <C> <C> <C> <C>
STATEMENT OF
OPERATIONS DATA:
Revenue $1,967,506,496 1,166,664,621 533,106,747 324,591,409 296,086,981
Operating Income
(Loss) 19,234,449 9,900,568 6,548,953 406,042 (1,509,581)
Net Earnings
(Loss) 7,637,630 9,171,312 4,617,969 (3,217,635) (2,853,609)
Earnings (Loss)
Per Share
Basic 0.30 0.42 0.31 (1.32) (1.15)
Diluted 0.29 0.41 0.30 (1.32) (1.15)
Weighted average common
shares outstanding:
Basic 25,886,737 21,742,625 14,971,775 2,860,391 2,694,830
Diluted 26,679,503 22,544,402 15,153,622 2,860,391 2,694,830
STATEMENT OF
CASH FLOWS
DATA:
Net Cash
Provided
By (Used In):
Operating
Activities $ (4,570,101) (9,585,653) (3,864,165) (236,580) (2,187,251)
Investing
Activities (66,130,662) (89,920,465) (4,181,377) (233,562) (1,041,069)
Financing
Activities 64,123,792 97,487,209 44,646,948 61,543 3,691,885
OTHER FINANCIAL
DATA:
EBITDA (1) $ 29,769,404 15,354,682 8,844,357 1,561,251 (364,156)
Capital
Expenditures (2) 66,634,291 92,294,394 4,124,264 747,774 461,888
APRIL 30,
--------------------------------------------------------------------------------------------
1998 1997 1996 1995 1994
--------------------------------------------------------------------------------------------
BALANCE SHEET
DATA:
Working Capital $ 94,393,264 78,423,038 55,651,839 37,989,205 11,554,715
Total Assets 323,304,830 261,724,320 120,962,976 104,220,346 75,470,266
Long-Term Debt,
excluding current
maturities 128,969,667 64,774,267 28,948,867 36,945,610 37,671,329
Stockholders' Equity (3) 147,804,303 138,971,741 57,819,191 28,470,702 2,480,835
</TABLE>
<TABLE>
<CAPTION>
FISCAL YEAR ENDED
SEPTEMBER 30,
-------------------
1993
-------------------
<S> <C>
STATEMENT OF
OPERATIONS DATA:
Revenue 507,936,810
Operating Income
(Loss) (1,710,242)
Net Earnings
(Loss) (4,490,468)
Earnings (Loss)
Per Share
Basic (1.85)
Diluted (1.85)
Weighted average common
shares outstanding:
Basic 2,694,830
Diluted 2,694,830
STATEMENT OF
CASH FLOWS
DATA:
Net Cash
Provided
By (Used In):
Operating
Activities 5,004,187
Investing
Activities (4,614,892)
Financing
Activities (1,315,700)
OTHER FINANCIAL
DATA:
EBITDA (1) (669,698)
Capital
Expenditures (2) 4,730,726
</TABLE>
<TABLE>
<CAPTION>
SEPTEMBER 30,
-------------
1993
-------------
<S> <C>
BALANCE SHEET
DATA:
Working Capital 11,470,225
Total Assets 86,334,703
Long-Term Debt,
excluding current
maturities 33,953,590
Stockholders' Equity (3) 5,334,500
</TABLE>
18
<PAGE>
(1) EBITDA is earnings (loss) before income taxes plus interest expense and
other financing costs and depreciation and amortization. TransMontaigne
believes that, in addition to cash flow from operations and net earnings
(loss), EBITDA is a useful financial performance measurement for assessing
operating performance since it provides an additional basis to evaluate the
ability of TransMontaigne to incur and service debt and to fund capital
expenditures. In evaluating EBITDA, TransMontaigne believes that
consideration should be given, among other things, to the amount by which
EBITDA exceeds interest costs for the period; how EBITDA compares to
principal repayments on debt for the period; and how EBITDA compares to
capital expenditures for the period. To evaluate EBITDA, the components of
EBITDA such as revenue and operating expenses and the variability of such
components over time, should also be considered. EBITDA should not be
construed, however, as an alternative to operating income (loss) (as
determined in accordance with generally accepted accounting principles
(GAAP) as an indicator of TransMontaigne's operating performance or to cash
flows from operating activities (as determined in accordance with GAAP)) as
a measure of liquidity. TransMontaigne's method of calculating EBITDA may
differ from methods used by other companies, and as a result, EBITDA
measures disclosed herein may not be comparable to other similarly titled
measures used by other companies.
(2) Includes approximately $32,000,000 relating to the ITAPCO Terminal
Corporations acquisitions in 1998 and $71,000,000 relating to the
Grasslands acquisition in 1997.
(3) No dividends were declared or paid on the Common Stock during the periods
reported.
19
<PAGE>
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
GENERAL
TransMontaigne provides a broad range of integrated transportation,
terminaling, supply, distribution, gathering, processing and marketing services
to producers, refiners, distributors, marketers and end-users of petroleum
products, chemicals, other bulk liquids, natural gas and crude oil in the
downstream sector of the petroleum and chemical industry. TransMontaigne is a
holding company which conducts its operations through subsidiaries primarily in
the mid-continent and Rocky Mountain regions of the United States.
TransMontaigne does not explore for, or produce, crude oil or natural gas; does
not own crude oil or natural gas reserves; and does not own chemicals or other
bulk liquids inventory.
TransMontaigne owns and operates refined petroleum products, chemicals,
other bulk liquids, crude oil and natural gas assets. TransMontaigne refined
petroleum products, chemicals, other bulk liquids and crude oil assets consist
primarily of approximately 790 miles of pipeline and 31 terminal, storage and
delivery facilities located in 10 states with a combined tank storage capacity
of approximately 8,500,000 barrels. TransMontaigne natural gas gathering and
processing assets consist of 5 gathering and processing systems in 3 states with
combined throughput capacity of approximately 94 million cubic feet per day and
over 2,800 miles of pipeline. TransMontaigne also extensively utilizes refined
petroleum products common carrier pipelines and terminals owned by third parties
in order to increase product volumes shipped, marketed and sold to and exchanged
with customers in other locations. Management believes that the use of these
facilities should allow TransMontaigne to significantly expand its geographic
service area and the integrated logistical services it provides.
The principal predecessor of TransMontaigne was formed in 1977 and in April
1995, present management and certain institutional stockholders of
TransMontaigne acquired control of the predecessor through a merger in which the
name was changed to TransMontaigne Oil Company. In June 1996, TransMontaigne and
a publicly held corporation merged, with the stockholders of TransMontaigne
receiving approximately 93% of the stock of the merged corporation.
20
<PAGE>
Since TransMontaigne present management assumed control in April 1995,
TransMontaigne has raised approximately $117,000,000 in equity capital
($30,000,000 private placement in May 1995; $25,000,000 private placement in
March 1996; and $62,000,000 public offering in February 1997); established an
initial $130,000,000 working capital and acquisition revolving bank credit
facility (in December 1996) which converted to an $85,000,000 bank credit
facility due December 31, 2001 (in February 1997) and subsequently increased to
a $175,000,000 bank credit facility due December 31, 2002 (in April 1998); and
issued $50,000,000 of 7.85% and $25,000,000 of 7.22% Senior Notes due April 17,
2003 (in April 1997) and October 17, 2004 (in December 1997), respectively, to
an institutional lender under a $100,000,000 Master Shelf Agreement.
TransMontaigne's management also has increased net operating margins to
$41,251,000 and $21,344,000 for the years ended April 30, 1998 and 1997,
respectively, by improving the performance of its facilities through selective
capital improvements, restructured operating and administrative functions,
expanded marketing of services and by implementing an operating plan together
with financial management systems which provide the foundation for its current
operations and future growth. In addition, new information systems, policies,
procedures and operating controls have been established; experienced managerial
personnel have been added to improve operational efficiencies in all service
areas as well as to expand the products supply and distribution and marketing
functions; more effective management of inventory price risk and quantities has
been implemented; and inventory carrying costs have been reduced.
In December 1996 TransMontaigne acquired the Grasslands Facilities natural
gas gathering, processing, treating and fractionation system for approximately
$71,000,000 in cash and through April 30, 1998 has additionally invested
approximately $21,500,000 in improvements and expansion of the Grasslands
Facilities and other assets in its natural gas services business segment. The
Grasslands Facilities are strategically located between TransMontaigne's
Marmarth facility in southwestern North Dakota, its Baker facility in eastern
Montana and its Lignite facility in northern North Dakota. TransMontaigne has
natural gas gathering facilities covering the eastern corridor of Montana and
the western quarter of North Dakota, from the Canadian border to the South
Dakota border, which should significantly enhance TransMontaigne's ability to
provide a complete service
21
<PAGE>
package to North Dakota and Montana producers as well as to end-users of NGL and
natural gas. The Grasslands Facilities contributed approximately 92% and 86% of
the total net operating margin of TransMontaigne's natural gas gathering and
processing operations during the years ended April 30, 1998 and 1997,
respectively.
In November 1997 TransMontaigne acquired the common stock of 17
corporations, known as the "ITAPCO Terminal Corporations", and certain related
property and property interests. The acquisition included 17 bulk liquid storage
and distribution terminals located in 8 states having total tankage capacity in
excess of 3.3 million barrels, handling primarily refined petroleum products,
chemicals and other bulk liquids together with the related operations of the
terminals and 7 contracts for providing management services to non-owned storage
and distribution terminals, pipelines and related facilities for third parties.
The ITAPCO Terminal Corporations purchase price was $32,000,000 ($31,458,000
cash plus assumption of outstanding bank debt of approximately $542,000) and was
funded by an advance of $22,000,000 from the TransMontaigne bank credit facility
with the balance from TransMontaigne cash reserves. Following the November 25,
1997 acquisition date, the ITAPCO Terminal Corporations contributed
approximately 36% of the total net operating margin of the TransMontaigne
terminal operations for the year ended April 30, 1998.
Subsequent to the acquisition of the ITAPCO Terminal Corporations,
TransMontaigne acquired for an aggregate of $4,686,000 the remaining 50%
interest in a 153,000 barrel terminal located in Owensboro, Kentucky which it
did not previously own; a 259,000 barrel terminal located in Greenville,
Mississippi; and the remaining 50% interest in a partnership which owns and
operates a natural gas gathering and processing facility located in Lignite,
North Dakota which it did not previously own. In addition, TransMontaigne has
expended $22,500,000 on improvements and enhancements to the Grasslands
Facilities and ITAPCO Terminal Corporations facilities since their respective
acquisitions.
TransMontaigne intends to continue to make strategic additions to and
expansion of its existing facilities is necessary in order to maintain quality
service levels, increase operating efficiencies, achieve incremental net
earnings and improve its competitive position. This strategy has resulted in
capital improvements aggregating over $10,000,000 at its East Chicago, Indiana
storage facilities,
22
<PAGE>
North Little Rock, Arkansas and South Bend, Indiana terminals and NORCO pipeline
system in Illinois, Indiana and Ohio during the year ended April 30, 1998.
CAUTIONARY STATEMENT PURSUANT TO SAFE HARBOR PROVISIONS OF THE PRIVATE
SECURITIES LITIGATION REFORM ACT OF 1995
This report contains "forward-looking statements" within the meaning of the
federal securities laws and may include the words or phrases "believes," "will
depend," "will become" and "plans to" or similar expressions as well as other
statements of expectations, beliefs, future strategies and comments concerning
matters which are not historical facts. These forward-looking statements are
subject to risks and uncertainties which could cause actual results to differ
materially from those expressed in or implied by the statements including, but
not limited to, the following:
. that TransMontaigne will continue to grow its business
. that TransMontaigne will generate net operating margins from high sales
volumes
. that TransMontaigne will generate net operating margins affected by
price volatility of products purchased and sold
. that TransMontaigne will selectively and effectively hedge certain
inventory positions
. that TransMontaigne will be required to recognize a noncash financial
statement loss through a lower of cost or market write-down of
inventories
. that TransMontaigne will incur unanticipated costs in complying with
current and possibly future environmental regulations
. that TransMontaigne will capitalize on the trend by other companies in
the oil and gas industry to divest assets and outsource certain services
. that TransMontaigne will replace the supply of dedicated natural gas
reserves gathered and processed by its facilities
. that TransMontaigne will internally generate working capital or have the
availability of debt and equity resources to meet its future capital
requirements
. that TransMontaigne will achieve year 2000 compliance without incurring
material costs adversely impacting its operating results.
23
<PAGE>
RESULTS OF OPERATIONS
<TABLE>
<CAPTION>
YEARS ENDED APRIL 30,
-------------------------------------------------
1998 1997 1996
---- ---- ----
(in thousands, except margin per gallon data)
<S> <C> <C> <C>
PIPELINE OPERATIONS
Volume (1) 19,578 19,580 18,902
Revenues $ 13,252 12,196 9,577
Net Operating Margin (2) $ 7,469 6,848 4,454
Margin per Gallon $ 0.0091 0.0083 0.0056
TERMINAL AND STORAGE OPERATIONS
Volume (1) 1,509,000 774,000 587,000
Refined petroleum products 1,492,000 774,000 587,000
Chemicals and other bulk liquids 17,000 - -
Revenues $ 13,882 5,387 3,346
Refined petroleum products $ 11,297 5,387 3,346
Chemicals and other bulk liquids $ 2,585 - -
Net Operating Margin (2) $ 8,985 3,524 2,434
Margin per Gallon $ 0.0060 0.0046 0.0041
PRODUCTS SUPPLY AND
DISTRIBUTION OPERATIONS
Volume (1) 3,550,000 1,774,000 958,000
Revenues $ 1,879,907 1,125,941 520,184
Net Operating Margin (2) $ 10,454 3,984 5,829
Margin per Gallon $ 0.0029 0.0022 0.0061
NATURAL GAS SERVICES OPERATIONS
Inlet Volume (3) 20,477 5,332 -
NGL Production (3) 98,359 27,219 -
Residue Production (3) 16,918 4,533 -
Revenues $ 60,465 23,141 -
Net Operating Margin (2) $ 14,343 6,988 -
TOTAL OPERATIONS
Revenues $ 1,967,506 1,166,665 533,107
Net Operating Margin (2) $ 41,251 21,344 12,717
Net Earnings $ 7,638 9,171 4,618
</TABLE>
24
<PAGE>
(1) Pipeline volumes are expressed in thousands of barrels (42 gallons per
barrel). Terminal and storage and products supply and distribution volumes
are expressed in thousands of gallons.
(2) Revenues, net operating margins, and net earnings are expressed in
thousands of dollars. Net operating margin represents (a) revenues less
direct operating expenses for pipeline and terminal operations; (b)
revenues less cost of refined petroleum products purchased for products
supply and distribution operations, and (c) revenues less cost of natural
gas gathered, processed and sold and direct operating expenses for natural
gas gathering and processing operations.
(3) Natural gas inlet volumes are expressed in million cubic feet; NGL
production is expressed in thousands of gallons; and residue natural gas
production is expressed in million British Thermal Units.
Prior to the acquisition of the ITAPCO Terminal Corporations facilities in
November 1997 and Grasslands Facilities in December 1996, TransMontaigne's
revenues were derived from the logistical petroleum services business segment
consisting primarily of transporting refined petroleum products (and to a lesser
extent crude oil) in pipelines; storing and terminaling refined petroleum
products; and refined petroleum products supply, distribution and marketing.
Chemicals and other bulk liquids storage and terminaling became a component of
the logistical petroleum business segment following the ITAPCO Terminal
Corporations acquisition. Natural gas services became a separate business
segment with the acquisition of the Grasslands Facilities.
Pipeline revenues are based on the volume of refined petroleum products or
crude oil transported and the distance from the origin point to the delivery
point. TransMontaigne's interstate pipeline systems transport refined petroleum
products and their tariffs are regulated by the FERC. TransMontaigne's
intrastate pipeline transports crude oil and its tariffs are not regulated by
the FERC but are regulated by the Texas Railroad Commission.
Terminal revenues are based on the volume of refined petroleum products
handled, generally at a standard per gallon rate. Terminal fees are not
regulated. Storage fees are generally based on a per gallon rate or tankage
capacity committed and will vary with the duration of the arrangement, the
25
<PAGE>
product stored and special handling requirements, particularly when certain
types of chemicals and other bulk liquids are involved. Storage fees are not
regulated.
Direct operating expenses of pipelines and terminals include wages and
employee benefits, utilities, communications, maintenance and repairs, property
taxes, rent, insurance, vehicle expenses, environmental protection costs,
materials and supplies.
Products supply and distribution revenues are based on the volume of bulk
sales of refined petroleum products and the wholesale distribution of refined
petroleum products from terminals. Bulk purchase and sale transactions in
quantities of 25,000 barrels to 50,000 barrels are common and are generally made
at small margins. Wholesale distribution of refined petroleum products is
conducted from eight proprietary and seventy-one nonproprietary terminal truck
loading rack locations and is primarily by truck load sales of 8,000 gallons.
Direct operating expenses of products supply and distribution are primarily
the cost of products sold and also include transportation and sales commission
expenses.
Natural gas gathering and processing revenues are based on the inlet volume
of natural gas purchased from producers under both percentage of proceeds and
fee based arrangements. Natural gas is gathered and processed into NGL
products, principally propane, butane and natural gasoline. These products are
transported by truck or pipeline to storage facilities from which they are
further transported and marketed by TransMontaigne to wholesalers and end-users.
Residue natural gas is delivered to and marketed through connections with
interstate pipelines.
Direct operating expenses of natural gas gathering and processing include
wages and employee benefits, utilities, maintenance and repairs, property taxes,
insurance, vehicle expenses, environmental protection costs, material and
supplies.
26
<PAGE>
YEAR ENDED APRIL 30, 1998 COMPARED TO YEAR ENDED APRIL 30, 1997
The net operating margin from pipeline operations of $7,469,000 increased
9%, or $621,000, in the current year on essentially flat volumes. This increase
resulted primarily from a 9% increase in revenues of $1,056,000, primarily due
to a net increase in the volumes of higher tariff long haul pipeline shipments,
together with increases in joint tariff participation and terminal facility
rental income. This increase was partially offset by an 8% increase in
operating costs of $435,000 which was due to incremental power costs from
additional long haul shipment volumes as well as increased field personnel
costs, maintenance and vehicle expenses.
The net operating margin from terminal operations of $8,985,000 increased
155%, or $5,461,000, in the current year on revenues of $13,882,000, an increase
of 158%, or $8,495,000. This increase resulted from an overall 93% increase in
refined petroleum products volumes handled of 718,000,000 gallons and 17,000,000
gallons of chemical and other bulk liquids handled by the ITAPCO Terminal
Corporations facilities acquired in November 1997; additional volumes of
303,093,000 gallons at the East Chicago terminal facility acquired in December
1996; and new jet fuel contract volumes of 6,395,000 gallons at the
Indianapolis, Indiana terminal. These increases were offset in part by a 163%
increase in terminal operating costs largely attributable to the ITAPCO Terminal
Corporations facilities operations; expanded East Chicago terminal operations; a
new terminal lease; additional freight charges on products; and increased field
personnel costs and maintenance expenses.
The net operating margin from product sales of $10,454,000 increased 162%,
or $6,470,000, in the current year. Revenues increased $753,966,000, or 67%, on
additional volume of 1,776,534,000 gallons of products sold, an increase of
100%. The $.0029 net operating margin per gallon realized in the current year
increased 32% from the $.0022 per gallon realized during the prior year. The
significant increase in volumes and revenues was attributable to
TransMontaigne's continuing and expanding supply, distribution and marketing
program. The higher net operating margin was positively impacted by strategic
bulk sales transactions during the last six months of the year. Volatile refined
petroleum product market conditions influenced by the international political
climate and atypical and erratic weather patterns, however, drove product prices
to unanticipated lows
27
<PAGE>
which adversely affected fourth quarter products supply and distribution
performance and resulted in a lower of cost or market write down adjustment to
inventory of $1,688,000 as of April 30, 1998. The inventory write down
adjustment was charged to product costs resulting in a decrease of $.0005 in net
operating margin per gallon sold during the year. Overall, however, the
increased product sales volume contributed to the substantial increase in
terminal throughput volumes, which resulted in increasing the related terminal
revenues for the year. By providing an integrated logistical service to
customers through the effective utilization of its transportation, storage and
terminaling facilities as well as its product supply, distribution and marketing
capabilities, TransMontaigne's aggregate net operating margin from the
logistical petroleum services business segment was $26,908,000 in the current
year, an increase of $12,552,000, or 87%, over the prior year.
The net operating margin from natural gas services operations of
$14,343,000 in the current year includes a full year of the business activities
of the Grasslands Facilities whereas the prior year included only a four and
one-half month period. Net operating margin contributions from the Marmarth,
Baker, Lignite and Wiggins natural gas gathering and processing facilities as
well as management fees from 15 small natural gas gathering systems, are also
included for a full year. Net operating margin during the latter part of the
current year was impacted by a steep decline in NGL prices, primarily propane,
notwithstanding an increase in natural gas inlet volumes per day.
General and administrative expenses increased $5,554,000, a 70% increase in
the current year, primarily due to additional personnel costs of $3,512,000, a
72% increase in the current year. In addition, office lease expense increased
as well as employee relocation, regulatory reporting, travel, insurance,
information systems and communication expenses. These expense increases were
directly attributable to the ITAPCO Terminal Corporations operations, and a full
year of natural gas gathering and processing operations included in the current
year, as well as expenses related to TransMontaigne's expanded integrated
logistical petroleum services.
Other income in the current year includes interest income of $2,059,000.
In the prior year other income included TransMontaigne's share of Lion earnings,
net of related minority interests, of approximately $70,000 and interest income
of $1,777,000. The $282,000 increase in interest income
28
<PAGE>
in the current year was due primarily to an increase in interest bearing cash
balances held for future investments.
Interest expense represents interest on the TransMontaigne bank credit
facility and senior promissory notes which were used primarily to finance the
acquisitions of the ITAPCO Terminal Corporations in November, 1997 and
Grasslands Facilities in December, 1996, other continuing capital expenditures
and working capital to carry inventory and accounts receivable. Also included
is interest on TransMontaigne senior subordinated debentures. Other financing
costs include commitment fees and amortization of debt issuance costs paid in
connection with the credit facility. Interest expense and other financing costs
during the year ended April 30, 1998 increased $3,748,000, or 85%, of which
$3,549,000 represented increased interest expense over the prior year primarily
due to an increase of approximately $51,500,000 in average outstanding debt over
the prior year.
Earnings before income taxes for the current year were $13,130,000, a 75%
increase of $5,648,000 over the $7,483,000 for the prior year. This improvement
was primarily a result of the aggregate increase in the logistical petroleum
services business segment net operating margin of $12,552,000, including the
additional contribution from the ITAPCO Terminal Corporations acquisition and
after the inventory write down adjustment; the positive impact of the $7,355,000
increase in net operating margin contribution from the gas gathering and
processing business segment attributable to the inclusion of the Grasslands
Facilities operations for a full year; and additional interest income of
$282,000. These increases were partially offset by the $5,554,000 increase in
general and administrative expenses; increased depreciation and amortization of
$5,019,000, including $3,102,000 attributable to the Grassland Facilities and
$653,000 attributable to the ITAPCO Terminal Corporations; and increased
interest expense of $3,549,000 primarily attributable to the financing of the
Grasslands Facilities and ITAPCO Terminal Corporations acquisitions.
Income tax expense for the current year of $5,492,500 was based upon an
effective 41.8% combined federal and state income tax rate. At April 30, 1997
TransMontaigne determined that its net deferred tax assets would more likely
than not be realized and recognized a one-time income tax benefit of $2,275,000
reduced by state income taxes of $586,000 for a net income tax benefit of
$1,689,000.
29
<PAGE>
Net earnings of TransMontaigne for the current year, after providing for
income taxes, were $7,638,000 compared to $9,171,000 for the prior year, a
decrease of 17%. Earnings per share for the year ended April 30, 1998 were $ .30
basic and $ .29 diluted based on 25,886,737 weighted average basic shares
outstanding and 26,679,503 weighted average diluted shares outstanding,
respectively. This compares to earnings per share of $. 42 basic and $. 41
diluted for fiscal 1997.
YEAR ENDED APRIL 30, 1997 COMPARED TO YEAR ENDED APRIL 30, 1996
The net operating margin from pipeline operations of $6,848,000 increased
54%, or $2,394,000, in fiscal year 1997. This increase resulted primarily from a
net increase in the volumes of higher tariff long haul pipeline shipments, based
on a 4% increase in total volumes shipped, together with increases in joint
tariff participation and tankage rental income all of which resulted in a 27%
increase in revenues of $2,619,000 in fiscal year 1997. This increase in
revenues was partially offset by a 4% increase in operating costs of $225,000,
primarily due to incremental power costs from additional long haul shipment
volumes and increased field personnel costs, repairs and maintenance and
property tax assessments.
The net operating margin from terminal operations of $3,524,000 increased
45%, or $1,090,000, in fiscal year 1997. This increase resulted from an overall
32% increase in volumes handled, primarily due to a 22% increase at the Little
Rock, Arkansas terminal and additional volumes at the East Chicago terminal
facility acquired in December 1996; offset in part by a 104% increase in
terminal operating costs attributable to the East Chicago terminal, a new
terminal lease, additional freight charges on products, field personnel expenses
and property tax assessments.
The net operating margin from product sales in fiscal year 1997 of
$3,984,000 decreased 32%, or $1,845,000. Net revenues increased $605,757,000 or
117%, on additional volume of 816,000,000 gallons of products sold. The $.0022
net operating margin per gallon realized in fiscal year 1997 decreased $.0039,
or 64%, from the higher than normal $.0061 per gallon realized during fiscal
year 1996, primarily due to substantially reduced product margins realized
during the second half of fiscal year 1997, notwithstanding the significant
increase in sales volume attributable to an expanded supply,
30
<PAGE>
distribution and marketing program. The lower net operating margin was affected
by generally weak market conditions. The net operating margin was also
negatively impacted during certain periods in the latter part of fiscal year
1997 by bulk sales of products shipped to locations on TransMontaigne pipelines
which resulted in minimal or negative margins. However, these product shipments
increased pipeline and terminal throughput volumes, and maximized related tariff
and handling revenues. By providing an integrated logistical service to
customers through the effective utilization of both its transportation and
product supply, distribution and marketing capabilities, the TransMontaigne
aggregate net operating margin from the logistical petroleum services business
segment increased $1,639,000, or 13%, over fiscal year 1996.
The net operating margin from natural gas gathering and processing
operations of $6,988,000 in fiscal year 1997 was primarily attributable to the
business activities of the Grasslands Facilities for the period from the
December 20, 1996 acquisition closing date through April 30, 1997 and also
includes net operating margin contributions from the Marmarth and Baker
facilities as well as fees for the management of fifteen small natural gas
gathering systems. These were not previously sources of net operating margins
since TransMontaigne natural gas gathering and processing operations commenced
in June 1996.
General and administrative expenses increased $2,988,000, a 60% increase in
fiscal year 1997, primarily due to additional personnel costs and increased
office lease expense together with increases in employee relocation, insurance,
information systems and communication expenses, a significant portion of which
expenses was attributable to TransMontaigne's expanded natural gas gathering and
processing business activities.
Other income includes equity in earnings of affiliates and interest income.
Equity in earnings of affiliates in fiscal year 1997 was represented by
TransMontaigne's share of Lion's earnings, net of related minority interests, of
approximately $70,000 compared to $605,000 for fiscal year 1996. The decrease
was primarily due to both planned and unanticipated turnaround costs (major
maintenance expenditures) which adversely impacted earnings.
31
<PAGE>
Interest income in fiscal year 1997 increased to $1,777,000 from $521,000
primarily due to an increase in interest bearing cash balances held for future
investments.
Interest expense represents interest on the revolving and successor bank
lines of credit which were used primarily to finance the Grasslands Facilities
acquisition, other capital expenditures, inventory and accounts receivable and
also includes interest on TransMontaigne's senior subordinated debentures.
Other financing costs include fees paid for letters of credit issued to product
suppliers, loan commitment fees and debt acquisition costs paid in connection
with credit facilities. Interest expense and financing costs during fiscal year
1997 increased $1,552,000, or 54%, over fiscal year 1996. Lower interest rates
in fiscal year 1997 were offset by the effect of a $25,000,000 increase in
average outstanding debt.
Earnings before income taxes for fiscal year 1997 were $7,483,000, a 56%
increase of $2,672,000 over the $4,811,000 for fiscal year 1996. This
improvement was primarily a result of the aggregate increase in the logistical
petroleum services business segment net operating margin; the positive impact of
the net operating margin contribution from the gas gathering and processing
business segment attributable essentially to the inclusion of over four months
operations of the Grasslands Facilities; and additional interest income. These
increases were partially offset by increased general and administrative,
depreciation and interest expenses, primarily attributable to the Grasslands
Facilities acquisition.
As of April 30, 1997 management assessed the realizability of
TransMontaigne's deferred tax assets. Realization of the net deferred tax assets
is dependent upon the generation of future taxable income in periods when
temporary differences between financial statement carrying amounts and tax bases
of assets become deductible. Projected future taxable income and tax planning
strategies are considered in making the assessment. As a result of the
Grasslands Facilities acquisition in December 1996 and the public offering of
common stock in February 1997, management believed it was more likely than not
that the benefits of future deductible differences would be realized and, as a
result, the valuation allowance of $4,474,000 was reversed and recorded as an
income tax benefit in fiscal year 1997. Fiscal year 1997 income tax benefit of
$1,689,000 includes state tax expense of $586,000.
32
<PAGE>
Net earnings of TransMontaigne for fiscal year 1997, after providing for
income taxes, were $9,171,000 compared to $4,618,000 for fiscal year 1996, an
increase of 99%. Earnings per share for fiscal year 1997 were $ .42 basic and
$ .41 diluted based on 21,742,625 weighted average basic shares outstanding and
22,544,402 weighted average diluted shares outstanding, respectively. This
compares to earnings per share of $ .31 basic and $ .30 diluted for fiscal 1996.
LIQUIDITY AND CAPITAL RESOURCES
The following summary reflects TransMontaigne's comparative net cash flows
for the years ended April 30, 1998, 1997 and 1996.
<TABLE>
<CAPTION>
Years Ended April 30,
---------------------------------------------------------
1998 1997 1996
---- ---- ----
<S> <C> <C> <C>
Net cash (used) by operating activities $ (4,570,000) (9,586,000) (3,864,000)
Net cash (used) by investing activities $ (66,131,000) (89,920,000) (4,181,000)
Net cash provided by financing activities $ 64,124,000 97,487,000 44,647,000
</TABLE>
TransMontaigne's net cash used by operating activities in the year ended
April 30, 1998 was $4,570,000 an improvement of $5,016,000 compared to the year
ended April 30, 1997. This improvement was primarily attributable to the
increase in earnings before income tax of $5,648,000 increased by additional
depreciation and amortization of $5,238,000 and decreased by the net change in
operating assets and liabilities of $6,242,000. TransMontaigne's current ratio
(current assets divided by current liabilities) was 3.1 to 1.0 at April 30, 1998
compared to 2.5 to 1.0 at April 30, 1997.
Net cash used by investing activities was $66,131,000 during the year ended
April 30, 1998 as TransMontaigne continued its growth through acquisitions,
construction and improvements to existing operating facilities. Capital
expenditures included the acquisitions of the ITAPCO Terminal Corporations, a
terminal in Greenville, Mississippi and the remaining 50% interests in the
Owensboro
33
<PAGE>
terminal and Lignite natural gas gathering and processing facility; improvements
to the East Chicago, South Bend, Mt. Vernon facilities and several of the
purchased ITAPCO terminals; enhancements to the Grasslands Facilities; and
additions to its corporate communications and data processing infrastructure.
Net cash used for investing activities was $89,920,000 during the year ended
April 30, 1997 which included acquisitions of and improvements to the Grasslands
Facilities and East Chicago storage facilities and the rebuilding of the South
Bend terminal.
Net cash provided by financing activities of $64,124,000 during the year
ended April 30, 1998 was used to finance TransMontaigne's operating and
investing activities primarily through a net increase in cash borrowings. Net
cash provided by financing activities for the year ended April 30, 1997 was used
to finance operations and capital expenditures primarily through proceeds from
the isssuance of common stock and an increase in cash borrowings. At April 30,
1998 TransMontaigne had approximately $279,000,000 borrowing capacity with
availability of approximately $147,400,000 under its credit agreements.
EBITDA represents earnings before income taxes plus interest expense and
other financing costs and depreciation and amortization. Management uses EBITDA
as part of its overall assessment of TransMontaigne performance by analyzing
and comparing EBITDA between reporting periods. Management believes that, in
addition to cash flow from operations and net earnings as indicators of
operating performance, EBITDA is used increasingly by the financial community to
measure operating effectiveness and as a method to evaluate the market value of
companies like TransMontaigne. EBITDA is also used to evaluate TransMontaigne's
ability to incur and service debt and to fund capital expenditures, although it
is not considered in isolation or a substitute for the other measurements of
performance and liquidity. EBITDA for the current year was $29,769,000, a 94%
increase over EBITDA of $15,355,000 for the prior year, and was generally
consistent with management's expectations, based upon TransMontaigne's
operations, including the incremental EBITDA contributed by the Grasslands
Facilities for a full year and the ITAPCO Terminal Corporations for five months
as well as prevailing economic and market conditions. EBITDA for the current
year also reflects the charge to product costs for the lower of cost or market
write down adjustment to inventory as of April 30, 1998; an inventory adjustment
of this nature was not made in fiscal year 1997. In addition, several facility
improvement and enhancement projects which would
34
<PAGE>
have contributed additional EBITDA in the current year were delayed, although
the impact on EBITDA was offset by the improved performance of TransMontaigne's
continuing operations. Achieving continued EBITDA growth through acquisitions
and internal expansion of existing facilities is a primary objective of
TransMontaigne.
Capital expenditures anticipated in the year ending April 30, 1999 are
estimated to be approximately $100,000,000 for pipeline, terminal, storage and
natural gas gathering and processing facilities, including assets to support
these facilities, and could exceed that amount if additional facilities
enhancement projects and possible acquisitions being considered by
TransMontaigne materialize. Future capital expenditures will depend on numerous
factors, including the availability, economics and cost of appropriate asset
acquisitions which TransMontaigne continuously identifies and evaluates; the
economics, cost and required regulatory approvals of expanding and enhancing
existing systems and facilities; the demand for the services TransMontaigne
provides; local, state and federal governmental regulations; environmental
compliance requirements; fuel conservation efforts; and the availability, to the
extent required, of financing on acceptable terms.
In February 1997, TransMontaigne closed a public offering of 4,357,000
shares of its common stock of which 4,035,000 shares were issued and sold by
TransMontaigne and 322,000 shares were sold by certain selling stockholders.
The net proceeds to TransMontaigne, based on the public offering price of $14.25
per share, were $53,506,000 after deducting underwriting discounts and
commissions and offering costs, of which $45,000,000 was used to repay a portion
of the long-term debt incurred under its bank credit facility and the balance
was added to working capital. In March 1997 the underwriters' overallotment
option to purchase an additional 557,543 shares and the Merrill Lynch Growth
Fund antidilution right to purchase an additional 98,390 shares were both
exercised and TransMontaigne received additional net proceeds of $8,809,000
which was added to working capital. The total net proceeds from this offering
was $62,315,000.
35
<PAGE>
The TransMontaigne bank credit facility at April 30, 1998 is a $175,000,000
revolving credit facility with a money center bank due December 31, 2002.
Borrowings under the bank credit facility generally bear interest paid in
arrears at an annual rate equal to the lenders' announced rate on Alternate Base
Rate loans, subject to a Eurodollar Rate loan pricing election. In addition, a
$10,000,000 same day swing line of credit is available to TransMontaigne under
which advances may be drawn at an interest rate comparable to the Eurodollar
Rate.
As of April 30, 1998, TransMontaigne had advances of $50,000,000
outstanding under the bank credit facility utilizing the Eurodollar Rate loan
pricing election and $2,600,000 of the facility was used to support a standby
letter of credit to a bank to assist Lion in obtaining financing. The interest
rate at April 30, 1998 was 6.375%.
In April 1997 TransMontaigne entered into a Master Shelf Agreement with an
institutional lender which provides that the lender will agree to quote, from
time to time, an interest rate at which the lender would be willing to purchase,
on an uncommitted basis, up to $100,000,000 of TransMontaigne's senior
promissory notes which will mature in no more than 12 years, with an average
life not in excess of 10 years.
At April 30, 1998, TransMontaigne had outstanding under the Master Shelf
Agreement, $50,000,000 of 7.85% and $25,000,000 of 7.22% Senior Notes due April
17, 2003 and October 17, 2004, respectively.
The bank credit facility agreement and the Master Shelf Agreement contain a
negative pledge covenant by TransMontaigne and its subsidiaries and are secured
by the stock of the subsidiaries. These agreements also include financial tests
relating to fixed charges coverage, leverage ratio, consolidated tangible net
worth, distributions and inventory positions. As of April 30, 1998,
TransMontaigne was in compliance with all such tests.
As of April 30, 1998, TransMontaigne had approximately $15,350,000 of net
operating loss carryforwards for federal income tax purposes which are available
to offset taxable income through 2010. As a result of the merger in June 1996,
TransMontaigne acquired net operating loss
36
<PAGE>
carryforwards of approximately $7,892,000 as of June 4, 1996, which are included
in the aggregate net operating loss carryforwards, and are limited to
approximately $1,300,000 annually. A portion of the tax benefit of such
carryforwards has been recognized as a net reduction of goodwill recorded in the
acquisition. Due to changes in ownership which occurred through April 30, 1996,
the use of the remaining net operating loss carryforwards to offset taxable
income is limited to approximately $4,300,000 annually.
The financial condition of TransMontaigne strengthened during the year
ended April 30, 1998. At April 30, 1998, TransMontaigne had working capital of
$94,393,000; availability under its bank credit facility of $122,400,000; and
additional borrowing capacity of $25,000,000 under the Master Shelf Agreement.
Management believes that TransMontaigne's current working capital position;
future cash provided by operating activities; proceeds from the private
placement or public offering of debt and common stock; available borrowing
capacity under the bank credit facility agreement and the Master Shelf
Agreement; additional borrowing allowed under those agreements; and its
relationship with institutional lenders and equity investors should enable
TransMontaigne to meet its future capital requirements.
YEAR 2000 MATTERS
Historically, certain computer programs, as well as certain hardware, were
structured to utilize a two-digit date field and may not be able to properly
recognize dates in the Year 2000. This could result in significant system
failures. TransMontaigne relies on its computer-based management information
systems, as well as computer chip embedded instruments and equipment in
conducting its normal business activities. Certain of these computer-based
programs and embedded computer chips may not have been designed to function
properly with respect to the application of dating systems relating to the Year
2000.
In response, TransMontaigne has developed a "Year 2000" Plan and
established an internal group to identify and assess potential areas of risk and
to make any required modifications relating to
37
<PAGE>
its computer systems; pipeline, terminaling, storage and natural gas gathering
and processing operations; and product supply and distribution activities. After
these assessments are complete, plans for modification or replacement, testing,
and certification will be developed and implemented to ensure that the material
facilities and business activities will continue to operate safely and reliably,
and without interruption after 1999. TransMontaigne is also monitoring the
compliance efforts of suppliers, contractors and other third parties with whom
it does business to ensure that operations will not be adversely affected by the
Year 2000 compliance problems of others.
While TransMontaigne is not yet able to estimate the total costs of
conducting Year 2000 remedial activities, based upon information developed to
date, it believes that the total cost of Year 2000 remediation will not be
material to TransMontaigne's cash flow, results of operations, or financial
condition. TransMontaigne expects to complete its Year 2000 Plan within a time
frame that will enable its computer-based and embedded chip systems to function
without significant disruption in the Year 2000.
The discussion of TransMontaigne's efforts, and management's expectations,
relating to Year 2000 compliance contains forward-looking statements.
Presently, TransMontaigne does not anticipate that the Year 2000 will have a
material adverse effect on its operations or financial performance. However,
there can be no assurance that the Year 2000 will not adversely affect
TransMontaigne and its business.
NEW ACCOUNTING STANDARDS
Statement of Financial Accounting Standards No. 130, "Reporting
Comprehensive Income" ("SFAS 130"), was issued in June 1997, by the Financial
Accounting Standards Boards. SFAS 130 established new standards which require
that changes in comprehensive income be shown in a financial statement that is
displayed with the same prominence as other financial statements. This statement
is effective for fiscal years beginning after December 15, 1997. TransMontaigne
does not expect adoption of SFAS 130 to have a material effect on the
presentation of its financial statements.
38
<PAGE>
Statement of Financial Accounting Standards No. 131, "Disclosures About
Segments of an Enterprise and Related Information" ("SFAS 131"), was issued in
June 1997, by the Financial Accounting Standards Board. SFAS 131 established new
standards which change the way public companies report information about
segments. This statement is based on the management approach to segment
reporting and requires companies to report selected quarterly segment
information and entity-wide disclosures about products and services, major
customers and geographic areas in which the entity holds assets and reports
revenues. SFAS 131 is effective for financial statements for fiscal years
beginning after December 31, 1997. TransMontaigne does not expect adoption of
SFAS 131 to have a material effect on the presentation of its financial
statements.
Statement of Financial Accounting Standards No. 133, "Accounting for
Derivative Instruments and Hedging Activities" ("SFAS 133"), was issued in June
1998, by the Financial Accounting Standards Board. SFAS 133 establishes new
accounting and reporting standards for derivative instruments and for hedging
activities. This statement requires an entity to establish at the inception of
a hedge, the method it will use for assessing the effectiveness of the hedging
derivative and the measurement approach for determining the ineffective aspect
of the hedge. Those methods must be consistent with the entity's approach to
managing risk. SFAS 133 is effective for all fiscal quarters of fiscal years
beginning after June 15, 1999. TransMontaigne does not expect adoption of SFAS
133 to have a material effect on its consolidated financial statements.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
TransMontaigne's consolidated financial statements are included herein
beginning on the following pages.
39
<PAGE>
INDEPENDENT AUDITORS' REPORT
----------------------------
THE BOARD OF DIRECTORS AND STOCKHOLDERS
TRANSMONTAIGNE OIL COMPANY:
We have audited the accompanying consolidated balance sheets of TransMontaigne
Oil Company and subsidiaries as of April 30, 1998 and 1997, and the related
consolidated statements of operations, stockholders' equity, and cash flows for
each of the years in the three-year period ended April 30, 1998. These
consolidated financial statements are the responsibility of the Company's
management. Our responsibility is to express an opinion on these consolidated
financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. 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 TransMontaigne Oil
Company and subsidiaries as of April 30, 1998 and 1997, and the results of their
operations and their cash flows for each of the years in the three-year period
ended April 30, 1998 in conformity with generally accepted accounting
principles.
KPMG PEAT MARWICK LLP
Denver, Colorado
July 10, 1998
40
<PAGE>
TRANSMONTAIGNE OIL COMPANY
AND SUBSIDIARIES
Consolidated Balance Sheets
APRIL 30, 1998 AND 1997
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------------
1998 1997
---- ----
<S> <C> <C>
ASSETS
- ------
Current assets:
Cash and cash equivalents $ 29,807,354 36,384,325
Trade accounts receivable 74,118,482 46,871,207
Inventories 33,410,481 42,346,451
Deferred tax assets, net - 3,676,000
Prepaid expenses and other 2,673,807 1,647,990
----------------- ----------------
140,010,124 130,925,973
----------------- ----------------
Property, plant and equipment:
Land 2,801,964 1,222,195
Plant and equipment 183,669,911 120,010,811
Accumulated depreciation (18,705,670) (10,704,252)
----------------- ----------------
167,766,205 110,528,754
----------------- ----------------
Investments and other assets:
Investments 10,180,720 15,656,097
Deferred debt issuance costs, net 1,661,878 1,638,909
Other assets 3,685,903 2,974,587
----------------- ----------------
15,528,501 20,269,593
----------------- ----------------
$ 323,304,830 261,724,320
================= ================
LIABILITIES AND STOCKHOLDERS' EQUITY
- ------------------------------------
Current liabilities:
Trade accounts payable $ 28,834,154 36,893,399
Inventory due under exchange agreements 4,568,886 4,982,179
Excise taxes payable 7,329,667 6,437,829
Other accrued liabilities 4,884,153 4,189,528
----------------- ----------------
45,616,860 52,502,935
----------------- ----------------
Long-term debt 128,969,667 64,774,267
Deferred tax liabilities 914,000 -
Minority interests - 5,475,377
Stockholders' equity:
Preferred stock, par value $.01 per share,
authorized 2,000,000 shares, none issued - -
Common stock, par value $.01 per share, authorized 40,000,000
shares, issued and outstanding 25,942,870 shares at
April 30, 1998; and 25,794,720 shares at April 30, 1997 259,429 257,947
Capital in excess of par value 136,717,865 134,843,884
Unearned compensation (680,531) -
Retained earnings 11,507,540 3,869,910
----------------- ----------------
147,804,303 138,971,741
----------------- ----------------
$ 323,304,830 261,724,320
================= ================
</TABLE>
See accompanying notes to consolidated financial statements.
41
<PAGE>
TRANSMONTAIGNE OIL COMPANY
AND SUBSIDIARIES
Consolidated Statements of Operations
YEARS ENDED APRIL 30, 1998, 1997 AND 1996
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
1998 1997 1996
------------- ------------- -----------
<S> <C> <C> <C>
Revenues:
Product sales, pipeline tariffs, terminal
and storage fees and natural gas
gathering and processing fees $ 1,967,506,496 1,166,664,621 533,106,747
Costs and expenses:
Product costs and direct
operating expenses 1,926,255,573 1,145,320,892 520,389,482
General and administrative 13,541,013 7,987,162 4,998,771
Depreciation and amortization 8,475,461 3,455,999 1,169,541
----------------- ----------------- ----------------
1,948,272,047 1,156,764,053 526,557,794
----------------- ----------------- ----------------
Operating income 19,234,449 9,900,568 6,548,953
Other income (expenses):
Interest income 2,059,494 1,777,441 520,900
Equity in earnings of affiliates - 92,280 942,216
Minority interests - (22,414) (337,253)
Interest expense (7,591,223) (4,042,616) (2,530,945)
Other financing costs (572,590) (373,533) (333,155)
Other, net - 150,808 -
----------------- ----------------- ----------------
(6,104,319) (2,418,034) (1,738,237)
----------------- ----------------- ----------------
Earnings before
income taxes 13,130,130 7,482,534 4,810,716
Income tax (expense) benefit (5,492,500) 1,688,778 (192,747)
----------------- ----------------- ----------------
Net earnings $ 7,637,630 9,171,312 4,617,969
================= ================= ================
Weighted average common
shares outstanding:
Basic 25,886,737 21,742,625 14,971,775
================= ================= ================
Diluted 26,679,503 22,544,402 15,153,622
================= ================= ================
Earnings per common share
Basic $ 0.30 0.42 0.31
================= ================= ================
Diluted $ 0.29 0.41 0.30
================= ================= ================
</TABLE>
See accompanying notes to consolidated financial statements.
42
<PAGE>
TRANSMONTAIGNE OIL COMPANY
AND SUBSIDIARIES
Consolidated Statements of Stockholders' Equity
YEARS ENDED APRIL 30, 1998, 1997 AND 1996
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------
Capital in
Common excess of Unearned Retained
stock par value Compensation earnings Total
------------ --------------- ----------------- -------------- -------------
<S> <C> <C> <C> <C> <C>
BALANCE AT APRIL 30, 1995 $ 1,478,071 36,912,002 - (9,919,371) 28,470,702
Common stock issued for
cash 455,046 24,558,462 - - 25,013,508
Costs related to issuance of
common stock - (282,988) - - (282,988)
Net earnings - - - 4,617,969 4,617,969
----------- ------------- --------------- ------------ -------------
BALANCE AT APRIL 30, 1996 1,933,117 61,187,476 - (5,301,402) 57,819,191
Change in the par value of
common stock from
$.10 to $.01 in
connection with merger (1,739,805) 1,739,805 - - -
Common stock issued in
merger 14,744 8,093,785 - - 8,108,529
Common stock issued for
minority interest in
subsidiary 1,000 974,000 - - 975,000
Common stock repurchased
and retired (148) (199,852) - - (200,000)
Common stock issued for
options exercised 2,130 780,822 - - 782,952
Common stock issued for
cash in public
offering 46,909 62,952,321 - - 62,999,230
Costs related to
issuance of common stock - (684,473) - - (684,473)
Net earnings - - - 9,171,312 9,171,312
----------- ------------- --------------- ------------ -------------
BALANCE AT APRIL 30, 1997 257,947 134,843,884 - 3,869,910 138,971,741
Common stock issued for
options exercised 922 406,404 - - 407,326
Tax benefit arising from
options exercised - 583,000 - - 583,000
Costs related to
issuance of common stock - (53,863) - - (53,863)
Unearned compensation
related to restricted
stock awards 560 938,440 (939,000) - -
Amortization of unearned
compensation - - 258,469 - 258,469
Net earnings - - - 7,637,630 7,637,630
----------- ------------- --------------- ------------ -------------
BALANCE AT APRIL 30, 1998 $ 259,429 136,717,865 (680,531) 11,507,540 147,804,303
=========== ============== =============== ============ =============
</TABLE>
See accompanying notes to consolidated financial statements.
43
<PAGE>
TRANSMONTAIGNE OIL COMPANY
AND SUBSIDIARIES
Consolidated Statements of Cash Flows
YEARS ENDED APRIL 30, 1998, 1997 AND 1996
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------
1998 1997 1996
------------ ------------ ------------
<S> <C> <C> <C>
Cash flows from operating activities:
Net earnings $ 7,637,630 9,171,312 4,617,969
Adjustments to reconcile net earnings to net
cash used by operating activities:
Depreciation and amortization 8,475,461 3,455,999 1,169,541
Equity in earnings of affiliates - (92,280) (942,216)
Minority interests - 22,414 337,253
Deferred tax expense (benefit) 5,173,000 (2,274,600) -
Loss (gain) on disposition of assets (35,097) (70,489) 167,459
Amortization of deferred debt issuance costs 402,102 183,591 55,588
Changes in operating assets and liabilities,
net of noncash activities:
Trade accounts receivable (27,247,275) (25,750,916) (3,297,248)
Inventories 8,935,970 (18,737,315) (2,247,795)
Prepaid expenses and other (1,025,817) 199,516 (569,818)
Trade accounts payable (8,059,245) 26,656,549 (10,979,599)
Inventory due under exchange
agreements (413,293) (3,892,466) 4,978,815
Excise taxes payable and other
accrued liabilities 1,586,463 1,543,032 2,845,886
--------------- ------------ -------------
Net cash (used) by
operating activities (4,570,101) (9,585,653) (3,864,165)
--------------- ------------ -------------
Cash flows from investing activities:
Purchases of property, plant and equipment (66,634,291) (92,294,394) (4,124,264)
Proceeds from sale of assets 83,875 18,318 320,210
Cash received in connection with acquisitions 1,222,360 2,315,527 -
Costs related to acquisition (130,755) (399,284) -
Cash balance in subsidiary sold - (111,341) -
Decrease (increase) in other assets, net (671,851) 550,709 (377,323)
--------------- ------------ -------------
Net cash (used) by
investing activities (66,130,662) (89,920,465) (4,181,377)
--------------- ------------ -------------
Cash flows from financing activities:
Borrowings (repayments) of long-term debt, net 64,195,400 35,825,400 (9,100,568)
Deferred debt issuance costs (425,071) (1,435,900) (295,360)
Common stock issued for cash 407,326 63,782,182 25,013,508
Stock subscription received in cash - - 30,000,002
Costs related to issuance of common stock (53,863) (684,473) (970,634)
--------------- ------------ -------------
Net cash provided by
financing activities 64,123,792 97,487,209 44,646,948
--------------- ------------ -------------
Increase (decrease) in cash
and cash equivalents (6,576,971) (2,018,909) 36,601,406
Cash and cash equivalents at beginning of year 36,384,325 38,403,234 1,801,828
--------------- ------------ -------------
Cash and cash equivalents at end of year $ 29,807,354 36,384,325 38,403,234
=============== ============ =============
(Continued)
</TABLE>
See accompanying notes to consolidated financial statements.
44
<PAGE>
TRANSMONTAIGNE OIL COMPANY
AND SUBSIDIARIES
Consolidated Statements of Cash Flows (continued)
YEARS ENDED APRIL 30, 1998, 1997 AND 1996
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------
1998 1997 1996
---- ---- ----
<S> <C> <C> <C>
Supplemental disclosures of cash flow information:
Acquisition of Sheffield Exploration Company
Fair value of assets acquired $ - 8,739,247 -
Fair value of liabilities assumed - (231,484) -
------------- ----------- -----------
- 8,507,763 -
Costs related to acquisition - (399,284) -
------------- ----------- -----------
Fair value of stock issued $ - 8,108,479 -
============= =========== ===========
Cash received in connection with acquisition
included in assets acquired $ - 2,315,527 -
============= =========== ===========
Sale of Sheffield Operating Company
Fair value of assets sold $ - 1,991,403 -
Fair value of liabilities assumed by purchaser - 245,451 -
------------- ----------- -----------
Fair value of consideration received $ - 2,236,854 -
============= =========== ===========
Cash distributed in connection with sale
included in assets sold $ - 111,341 -
============= =========== ===========
</TABLE>
See accompanying notes to consolidated financial statements.
45
<PAGE>
TRANSMONTAIGNE OIL COMPANY
AND SUBSIDIARIES
Notes to Consolidated Financial Statements
APRIL 30, 1998 AND 1997
- --------------------------------------------------------------------------------
(1) SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
(a) NATURE OF BUSINESS AND BASIS OF PRESENTATION
TransMontaigne Oil Company ("TransMontaigne") is a holding company which
pursues, through its subsidiaries, business opportunities in the downstream
sector of the petroleum industry. TransMontaigne's principal operating
subsidiaries are engaged in pipelining, terminaling, storing and marketing
refined petroleum products principally in the Mid-Continent region of the
United States and in natural gas gathering and processing in the Rocky
Mountain region of the United States.
Management makes various estimates and assumptions in determining the
reported amounts of assets, liabilities, revenues and expenses for each
period presented, and in the disclosures of commitments and contingencies.
Changes in these estimates and assumptions will occur as a result of the
passage of time and the occurrence of future events, and actual results
will differ from those estimates.
(b) PRINCIPLES OF CONSOLIDATION
The accompanying consolidated financial statements include TransMontaigne
and its subsidiaries. Principal TransMontaigne subsidiaries are
TransMontaigne Transportation Services Inc. which provides refined
petroleum product and crude oil pipeline transportation, terminal and
storage services to the downstream sector of the petroleum industry through
its subsidiaries, TransMontaigne Pipeline Inc. and TransMontaigne
Terminaling Inc.; TransMontaigne Product Services Inc. which provides
refined petroleum products, crude oil and natural gas liquids supply,
distribution and marketing services to the downstream sector of the
petroleum industry; Bear Paw Energy Inc. which provides natural gas
gathering and processing services to oil and gas producers as well as to
end-users of natural gas liquids and residue natural gas; and
TransMontaigne's 65% owned subsidiary, TransMontaigne Holding Inc. which
owns a minority interest in a refinery. All significant intercompany
accounts and transactions have been eliminated in consolidation.
(c) CASH AND CASH EQUIVALENTS
TransMontaigne considers all short-term investments with a maturity of
three months or less when acquired to be cash equivalents.
46
<PAGE>
TRANSMONTAIGNE OIL COMPANY
AND SUBSIDIARIES
Notes to Consolidated Financial Statements
APRIL 30, 1998 AND 1997
- --------------------------------------------------------------------------------
(1) SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
(d) INVENTORIES
Inventories of refined products are stated at the lower of last-in, first-
out (LIFO) cost or market determined on an aggregate basis. Refined products
due from third parties under exchange agreements are included in inventory
and recorded at current replacement cost. Refined products due to third
parties under exchange agreements are recorded at current replacement cost.
Adjustments resulting from changes in current replacement cost for refined
products due to or from third parties under exchange agreements are
reflected in cost of products sold. The exchange agreements are typically
for a term of 30 days and are generally settled by delivering product to or
receiving product from the party to the exchange.
(e) PROPERTY, PLANT AND EQUIPMENT
Depreciation of equipment is provided by the straight-line and double-
declining balance methods. Depreciation of all other assets is provided by
the straight-line method. Estimated useful lives are 25 years for plant,
which includes buildings, storage tanks, pipelines and 3 to 20 years for
equipment. All items of property, plant and equipment are carried at cost.
(f) INVESTMENT IN LION OIL COMPANY
Effective May 1, 1997 TransMontaigne Holding Inc., a 65% owned subsidiary of
TransMontaigne, issued to its 35% minority shareholders irrevocable proxies
to vote their 35% share of the 27.75% interest in Lion owned by
TransMontaigne Holding Inc. in order to assure that the 35% minority
interest shareholders would continue to post their pro rata share of
$1,400,000 in standby letters of credit to assist Lion in obtaining
financing. Since the issuance of the irrevocable proxies reduced
TransMontaigne's voting interest in Lion from 27.75% to 18.0375%,
TransMontaigne changed its method of accounting for the investment in Lion
from the equity method, under which the investment originally recorded at
cost is adjusted to recognize TransMontaigne's share of Lion net earnings or
losses as incurred, to the historical cost method, under which the
investment is recorded at cost and dividends or other distributions are
recognized as received. As of May 1, 1997 the investment in Lion by
TransMontaigne Holding Inc. representing its original cost plus accumulated
net earnings was $15,586,097 and the related minority interest was
$5,475,377.
47
<PAGE>
TRANSMONTAIGNE OIL COMPANY
AND SUBSIDIARIES
Notes to Consolidated Financial Statements
APRIL 30, 1998 AND 1997
- --------------------------------------------------------------------------------
(1) SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
(g) GOODWILL
Goodwill is included in other assets and its amortization is included in
depreciation and amortization expense. Goodwill related to the purchase of
the minority interest of Bear Paw Energy Inc. is amortized on a straight-
line basis over fifteen years. Accumulated amortization was $97,500 and
$32,500 at April 30, 1998 and 1997, respectively.
(h) RECOGNITION OF REVENUE
Revenue from the sale of refined petroleum products, natural gas liquids and
residue natural gas is recorded at the time title and risk of ownership
pass. Transfers of products to or from third parties under exchange
agreements do not culminate the earnings process and are recorded as
inventory and liability transactions with no effect on income.
(i) DEFERRED DEBT ISSUANCE COSTS
Deferred debt issuance costs related to senior subordinated debentures and
the long-term credit agreements are amortized on the interest method over
the term of the underlying debt instrument. Accumulated amortization was
$742,613 and $340,511 at April 30, 1998 and 1997, respectively.
(j) INCOME TAXES
TransMontaigne utilizes the asset and liability method of accounting for
income taxes, as prescribed by Statement of Financial Accounting Standards
No. 109 (SFAS 109). Under this method, deferred tax assets and liabilities
are recognized for the future tax consequences attributable to differences
between the financial statement carrying amounts of existing assets and
liabilities and their respective tax bases. Deferred tax assets and
liabilities are measured using enacted tax rates expected to apply in the
years in which these temporary differences are expected to be recovered or
settled. Changes in tax rates are recognized in income in the period that
includes the enactment date.
(k) MINORITY INTERESTS
Minority interests consist of ownership interests in TransMontaigne Holding
Inc. attributable to shareholders other than TransMontaigne.
48
<PAGE>
TRANSMONTAIGNE OIL COMPANY
AND SUBSIDIARIES
Notes to Consolidated Financial Statements
APRIL 30, 1998 AND 1997
- --------------------------------------------------------------------------------
(1) SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
(l) INVENTORY MANAGEMENT
TransMontaigne manages the risk associated with fluctuations in the price of
refined petroleum products inventory and purchase and sales commitments, and
may selectively enter into futures contracts which are designated as hedges
of the products purchased or sold. Hedging gains and losses are recorded in
inventory and are recognized when the inventory is sold. Since February
1996, TransMontaigne has also engaged in the trading of futures contracts.
Gains and losses from these trading activities are recognized as incurred.
TransMontaigne's Risk and Product Management Committee reviews the total
inventory position on a weekly basis in order to ensure compliance with
TransMontaigneOs inventory management policies, including all hedging and
trading activities. TransMontaigne has adopted policies whereby its net
inventory position subject to price risk requires the prior approval of the
Risk and Product Management Committee.
At April 30, 1998, TransMontaigne had no net open futures contracts
designated as hedges, and there were no deferred hedging gains or losses.
In connection with its trading activities, TransMontaigne had outstanding
contracts to sell 17,485,000 barrels of product and contracts to purchase
17,485,000 barrels of product at April 30, 1998 and outstanding contracts to
sell 1,300,000 barrels of product and contracts to purchase 1,300,000
barrels of product at April 30, 1997. The net unrealized gains relating to
such contracts of approximately $2,585,000 at April 30, 1998 and the net
unrealized losses of approximately $148,000 at April 30, 1997 have been
included in operations. Net trading losses on futures contracts of
approximately $389,000 for the year ended April 30, 1998 and net trading
gains of approximately $161,000 for the year ended April 30, 1997 have been
included in product sales and product costs and direct operating expenses in
the accompanying consolidated statements of operations.
Product futures contracts are traded on the New York Mercantile Exchange
(NYMEX). The change in market value of NYMEX-traded futures contracts
requires daily cash settlements in margin accounts with brokers. NYMEX
future contracts are guaranteed by the NYMEX and have nominal credit risk.
TransMontaigne is exposed to credit risk in the event the counterparties to
other third party agreements are not able to perform their contractual
obligations.
49
<PAGE>
TRANSMONTAIGNE OIL COMPANY
AND SUBSIDIARIES
Notes to Consolidated Financial Statements
APRIL 30, 1998 AND 1997
- --------------------------------------------------------------------------------
(1) SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
(m) EARNINGS PER COMMON SHARE
Earnings per common share has been calculated based on the weighted average
number of common shares outstanding during the period in accordance with
the Statement of Financial Accounting Standards No. 128, issued in February
1997.
(n) RECLASSIFICATIONS
Certain amounts in the accompanying consolidated financial statements for
prior periods have been reclassified to conform to the classifications used
in 1998.
(2) MERGER
TransMontaigne is the surviving corporation of a merger between
TransMontaigne Oil Company and Sheffield Exploration Company, Inc.
(Sheffield) effective June 4, 1996. The merger constituted a reverse
acquisition, in that Sheffield survived the merger, but was then owned
approximately 93% by the former stockholders of TransMontaigne Oil Company.
Consequently, the transaction was accounted for as a purchase of Sheffield
by TransMontaigne. As a result of the merger, (i) Sheffield's name was
changed to TransMontaigne Oil Company; (ii) the number of shares of
authorized common stock was increased to 40,000,000; and (iii) stock
options which Sheffield had outstanding prior to the merger became options
to purchase 79,338 shares of TransMontaigne's common stock at $3.65 per
share. These options were exercised prior to their September 2, 1996
expiration date.
50
<PAGE>
TRANSMONTAIGNE OIL COMPANY
AND SUBSIDIARIES
Notes to Consolidated Financial Statements
APRIL 30, 1998 AND 1997
- --------------------------------------------------------------------------------
(3) ACQUISITIONS
On November 25, 1997 TransMontaigne, through a wholly owned subsidiary,
TransMontaigne Terminaling Inc., acquired the common stock of 17
corporations, known as the "ITAPCO Terminal Corporations", and certain
related property and property interests. The acquisition included 17 bulk
liquid storage and distribution terminals located in 8 states having total
tankage capacity in excess of 3.3 million barrels, handling primarily
refined petroleum products, chemicals and other bulk liquids together with
the related operations of the terminals; and certain other assets.
The ITAPCO Terminal Corporations purchase price was $32,000,000 ($31,458,000
cash plus assumption of outstanding bank debt of approximately $542,000) and
was funded by an advance of $22,000,000 from the TransMontaigne bank credit
facility with the balance from TransMontaigne cash reserves. The 17 ITAPCO
Terminal Corporations were merged into a wholly owned subsidiary of
TransMontaigne effective December 1, 1997. The cost of the ITAPCO Terminal
Corporations has been allocated primarily to the terminal facilities
acquired and to the other related assets acquired and liabilities assumed
based on their estimated fair market value as determined by TransMontaigne.
The transaction was accounted for as a purchase.
On December 20, 1996, TransMontaigne, through a wholly owned subsidiary,
Bear Paw Energy Inc., acquired for approximately $71,000,000 cash the
Grasslands natural gas gathering, treating, processing and fractionating
system located in western North Dakota and northeastern Montana (the
"Grasslands Facilities"). The cost of the Grasslands Facilities has been
allocated to the assets acquired based on their estimated fair market value
as determined by TransMontaigne. The transaction was accounted for as a
purchase.
The following summarized unaudited pro forma results of operations assumes
that the acquisitions of the ITAPCO Terminal Corporations and Grasslands
Facilities occurred as of May 1, 1996.
51
<PAGE>
TRANSMONTAIGNE OIL COMPANY
AND SUBSIDIARIES
Notes to Consolidated Financial Statements
APRIL 30, 1998 AND 1997
- --------------------------------------------------------------------------------
(3) ACQUISITIONS (CONTINUED)
The unaudited pro forma results of operations are not necessarily indicative
of the results of operations which would actually have occurred if the
ITAPCO Terminal Corporations and Grasslands Facilities had been acquired as
of May 1, 1996 or which will be attained in the future.
1998 1997
---- ----
Revenues $1,974,770,030 1,208,635,978
============== =============
Net earnings $ 7,548,372 11,117,170
============== =============
Earnings per common share:
Basic $ 0.29 0.51
============== =============
Diluted $ 0.28 0.49
============== =============
(4) INVENTORIES
1998 1997
---- ----
Refined petroleum products $ 28,874,634 35,758,217
Refined petroleum products due from
third parties under exchange agreements 4,392,462 6,148,220
Other 143,385 440,014
-------------- -------------
$ 33,410,481 42,346,451
============== =============
As of April 30, 1998, TransMontaigne recorded an adjustment of approximately
$1,688,000 to reduce inventories to the lower of cost (LIFO) or market and
decrease net earnings for the year ended April 30, 1998 by approximately
$999,000.
If the lower of average or replacement cost method of accounting had been
used instead of the LIFO method for valuing refined petroleum products,
inventories would have been approximately the same at April 30, 1998 due to
the fourth quarter adjustment of inventory to replacement cost and
$5,563,000 greater than reported at April 30, 1997.
52
<PAGE>
TRANSMONTAIGNE OIL COMPANY
AND SUBSIDIARIES
Notes to Consolidated Financial Statements
APRIL 30, 1998 AND 1997
- -------------------------------------------------------------------------------
(4) INVENTORIES (CONTINUED)
TransMontaigne's refined petroleum products inventory consists primarily of
gasoline and distillates. A portion of this inventory represents line fill
and tank bottoms which is required for operating balances in the conduct of
TransMontaigne's daily distribution activities and is maintained both in
tanks and pipelines owned by TransMontaigne and pipelines owned by third
parties. TransMontaigne's natural gas liquids and residual natural gas
inventory is not significant.
(5) PROPERTY, PLANT AND EQUIPMENT
1998 1997
---- ----
Land $ 2,801,964 1,222,195
Pipelines, rights of way and equipment 25,267,771 19,088,562
Terminals and equipment 53,722,440 14,726,237
Natural gas gathering and processing 98,253,680 83,209,767
Other plant and equipment 6,426,020 2,986,245
------------ ------------
186,471,875 121,233,006
Less accumulated depreciation 18,705,670 10,704,252
------------ ------------
$167,766,205 110,528,754
============ ============
53
<PAGE>
TRANSMONTAIGNE OIL COMPANY
AND SUBSIDIARIES
Notes to Consolidated Financial Statements
APRIL 30, 1998 AND 1997
- --------------------------------------------------------------------------------
(6) INVESTMENT IN LION
TransMontaigne, through its 65% ownership of TransMontaigne Holding Inc.,
effectively owns 18% of the common stock of Lion. At April 30, 1998
TransMontaigne's investment in Lion, carried at cost, was approximately
$10,111,000. At April 30, 1997 TransMontaigne's investment in Lion, carried
at equity, was approximately $15,586,000 and the minority interests were
approximately $5,475,000.
TransMontaigne has a $2,600,000 standby letter of credit outstanding to a
bank to assist Lion in obtaining financing. No outstanding obligations
exist under this letter of credit as of April 30, 1998.
(7) LONG-TERM DEBT
Long-term debt at April 30, 1998 and 1997 is as follows:
1998 1997
---- ----
Line of credit with a bank $ 50,000,000 10,815,000
Senior notes 75,000,000 50,000,000
12 3/4% senior subordinated debentures, net
of discount (face amount $4,000,000) 3,969,667 3,959,267
------------- -----------
$ 128,969,667 64,774,267
============= ===========
TransMontaigne's bank credit facility at April 30, 1998 is a $175,000,000
working capital revolving credit facility with a money center bank due
December 31, 2002. Borrowings under the bank credit facility generally bear
interest at an annual rate equal to the lender's announced Base Rate,
subject to a Eurodollar pricing option at TransMontaigne's election. The
interest rate at April 30, 1998 was 6.375% and at April 30, 1997 was 6.94%.
As of April 30, 1998, TransMontaigne had advances of $50,000,000
outstanding under the bank credit facility and $2,600,000 of the facility
was used to support a standby letter of credit to a bank on behalf of Lion.
In April 1997 TransMontaigne entered into a Master Shelf Agreement with an
institutional lender which provides that the lender will agree to quote,
from time to time, an interest rate at which the lender would be willing to
purchase, on an uncommitted basis, up to $100 million of TransMontaigne's
senior promissory notes which will mature in no more than 12 years, with an
average life not in excess of 10 years.
54
<PAGE>
TRANSMONTAIGNE OIL COMPANY
AND SUBSIDIARIES
Notes to Consolidated Financial Statements
APRIL 30, 1998 AND 1997
- --------------------------------------------------------------------------------
(7) LONG-TERM DEBT (CONTINUED)
On April 17, 1997 and December 16, 1997, TransMontaigne sold to the lender,
under the Master Shelf Agreement, $50,000,000 of 7.85% and $25,000,000 of
7.22% Senior Notes due April 17, 2003 and October 17, 2004, respectively,
all of which was outstanding at April 30, 1998.
The bank credit facility agreement and the Master Self Agreement each
contain similar negative pledge covenants by TransMontaigne and its
subsidiaries and both are secured by the stock of the subsidiaries. These
agreements also include financial tests relating to fixed charges coverage,
leverage ratio, consolidated tangible net worth, distributions and open
inventory positions. As of April 30, 1998, TransMontaigne was in
compliance with all such tests.
In March 1991, TransMontaigne issued 12 3/4% senior subordinated debentures
which are guaranteed by certain subsidiaries and are due December 15, 2000.
The debentures are subject to a required redemption of $2,000,000 on
December 15, 1999 and December 15, 2000. The debentures may be prepaid
prior to maturity at a premium, under certain circumstances. In
conjunction with the issuance of these debentures, TransMontaigne issued
warrants to purchase 248,686 shares of its common stock. The warrant
exercise price was reduced effective April 26, 1995 from $6.10 per share to
$3.60 per share, through December 15, 2000.
Maturities of long-term debt for fiscal years subsequent to 1998 are as
follows:
<TABLE>
<S> <C>
1999 $ -
2000 2,000,000
2001 1,969,667
2002 -
2003 100,000,000
2004 -
2005 25,000,000
--------------
$ 128,969,667
==============
</TABLE>
Cash payments for interest were approximately $6,995,000, $4,404,000, and
$2,994,000 for the years ended April 30, 1998, 1997 and 1996, respectively.
55
<PAGE>
TRANSMONTAIGNE OIL COMPANY
AND SUBSIDIARIES
Notes to Consolidated Financial Statements
APRIL 30, 1998 AND 1997
- --------------------------------------------------------------------------------
(8) DISCLOSURES ABOUT FAIR VALUE OF FINANCIAL INSTRUMENTS
The following methods and assumptions were used to estimate the fair value
of each of on and off-balance sheet financial instruments, along with the
methods and assumptions used to estimate such fair values at April 30, 1998
and 1997:
CASH AND CASH EQUIVALENTS, TRADE RECEIVABLES AND TRADE ACCOUNTS PAYABLE
The carrying amount approximates fair value because of the short term
maturity of these instruments.
LONG-TERM DEBT
The carrying value of the line of credit approximates fair value since it
bears interest at current market interest rates.
The carrying values of the Senior notes approximate fair value since the
interest rates approximate the current market rates for similar debt
instruments.
The estimated fair value of the 12 3/4% senior subordinated debentures
is $4,477,000. The fair value estimate has been calculated assuming a
current market rate for similar debt instruments of 9%.
FUTURES CONTRACTS
The carrying value and fair value of the futures contracts entered into for
trading purposes was an asset of approximately $2,585,000 at April 30, 1998
and a liability of approximately $148,000 at April 30, 1997 based on the
quoted market price of the related futures contracts.
LIMITATIONS
Fair value estimates are made at a specific point in time, based on
relevant market information and information about the financial instrument.
These estimates are subjective in nature and involve uncertainties and
matters of significant judgment and therefore cannot be determined with
precision. Changes in assumptions could significantly affect the estimates.
56
<PAGE>
TRANSMONTAIGNE OIL COMPANY
AND SUBSIDIARIES
Notes to Consolidated Financial Statements
APRIL 30, 1998 AND 1997
- --------------------------------------------------------------------------------
(9) SALE OF SUBSIDIARY
On October 31, 1996 TransMontaigne sold a wholly owned subsidiary for
approximately $2,237,000 and received as consideration a note for
approximately $2,067,000 payable over five years, a receivable for $100,000
and shares of common stock representing an approximate 18% interest in the
acquiring company's common stock. On November 4, 1996 TransMontaigne
received a $700,000 cash payment on the note and the $100,000 receivable
was collected. On January 3, 1997, 14,815 shares of TransMontaigne's stock
and cash of $200,000 were received as payment on the note. These shares
were valued at the January 2, 1997 closing price of $13.50 and were
retired. Additional cash payments on the note of $50,000 were received on
January 2, 1998 and April 1, 1998.
(10) SHAREHOLDERS' EQUITY
In April 1996 TransMontaigne completed a private placement of 4,545,456
shares of common stock at $5.50 per share receiving net proceeds of
$24,731,000.
In February 1997, TransMontaigne closed a public offering of 4,357,000
shares of its common stock of which 4,035,000 shares were issued and sold
by TransMontaigne and 322,000 shares were sold by certain selling
stockholders. The net proceeds to TransMontaigne, based on the public
offering price of $14.25 per share, were approximately $53,506,000, after
deducting underwriting discounts and commissions and offering costs, of
which $45,000,000 was used to repay a portion of the debt incurred under
its bank credit facility. In March 1997 the underwriters' overallotment
option to purchase an additional 557,543 shares and the Merrill Lynch
Growth Fund antidilution right to purchase an additional 98,390 shares were
both exercised and TransMontaigne received additional net proceeds of
$8,809,000.
(11) RESTRICTED STOCK
TransMontaigne has a restricted stock plan that provides for awards of
common stock to certain key employees, subject to forfeiture if employment
terminates prior to the vesting dates. The market value of shares awarded
under the plan is recorded in stockholders' equity as unearned
compensation. During the year ended April 30, 1998, the TransMontaigne
Board of Directors approved the issuance of 56,000 shares to certain key
employees. Unearned compensation is amortized over the four year vesting
period. Accumulated amortization was $258,469 at April 30, 1998.
57
<PAGE>
TRANSMONTAIGNE OIL COMPANY
AND SUBSIDIARIES
Notes to Consolidated Financial Statements
APRIL 30, 1998 AND 1997
- --------------------------------------------------------------------------------
(12) STOCK OPTIONS
TransMontaigne has adopted three stock option plans, (the "1991 Plan", the
"1995 Plan" and the "1997 Plan") under which stock options may be granted
to employees. No additional options are available to be granted under
either the 1991 Plan or the 1995 Plan. Options granted under the 1991 Plan
and 1997 Plan expire no later than ten years from the date of grant and
under the 1995 Plan expire no later than seven years from the date of
grant. At April 30, 1998, options granted under the 1991 Plan and 1995
Plan have vested and none of the options granted under the 1997 Plan have
vested. The options granted under the 1997 Plan, vest 10% end of first
year, 20% end of second year, 30% end of third year, and 40% end of fourth
year.
The following table summarize information about stock options outstanding
for the years ended April 30, 1998, 1997 and 1996:
<TABLE>
<CAPTION>
1991 Plan 1995 Plan 1997 Plan
------------------------------ --------------------------- ----------------------------
Weighted Weighted Weighted
average average average
Shares exercised price Shares exercised price Shares exercised price
---------- ------------------ -------- ----------------- -------- ------------------
<S> <C> <C> <C> <C> <C> <C>
Outstanding at April 30, 1995 95,754 $5.12 482,500 $2.70 - -
Granted - - 421,746 5.23 - -
Exercised - - (5,000) 2.70 - -
---------- ------------------ -------- ----------------- -------- ------------------
Outstanding at April 30, 1996 95,754 5.12 899,246 3.88 - -
Granted - - - - - -
Exercised (17,500) 6.10 (118,246) 3.27 - -
---------- ------------------ -------- ----------------- -------- ------------------
Outstanding at April 30, 1997 78,254 4.90 781,000 3.98 - -
Granted - - - - 711,000 $16.65
Cancelled - - - - (17,500) 17.25
Exercised (50,000) 4.46 (42,150) 4.37 - -
---------- ------------------ -------- ----------------- -------- ------------------
Outstanding at April 30, 1998 28,254 $5.66 738,850 $3.96 693,500 $16.63
========== ================== ======== ================= ======== ==================
Exercisable at April 30, 1998 28,254 $5.66 738,850 $3.96 - -
========== ================== ======== ================= ======== ==================
</TABLE>
58
<PAGE>
TRANSMONTAIGNE OIL COMPANY
AND SUBSIDIARIES
Notes to Consolidated Financial Statements
APRIL 30, 1998 AND 1997
- --------------------------------------------------------------------------------
(12) STOCK OPTIONS (CONTINUED)
The following table summarizes information about options outstanding at
April 30, 1998:
<TABLE>
<CAPTION>
Options Outstanding Options Exercisable
--------------------------------------------------------- ----------------------------------
Weighted Weighted Weighted
Range of Number average remaining average Number average
exercise prices outstanding life in years exercise prices exercisable exercise prices
- ----------------- ------------- ------------------- ----------------- ------------- -----------------
<S> <C> <C> <C> <C> <C>
1991 Plan $ 3.50 - 6.10 28,254 2 $ 5.66 28,254 $5.66
1995 Plan 2.70 - 5.50 738,850 4 3.96 738,850 3.96
1997 Plan 15.00 - 17.25 693,500 9 16.63 - -
</TABLE>
TransMontaigne applies Accounting Principles Board Opinion No. 25,
Accounting for Stock Issued to Employees, and related Interpretations in
accounting for its plans. Accordingly, no compensation cost has been
recognized for its stock option plans. If compensation cost for
TransMontaigne's three stock-based compensation plans had been determined
on the fair value at the grant dates for awards under those plans
consistent with Statement of Financial Accounting Standards No. 123,
Accounting for Stock-Based Compensation, TransMontaigne's net earnings and
earnings per common share would have been reduced to the pro forma amounts
indicated below:
1998 1997 1996
---- ---- ----
Net earnings:
As reported $7,637,630 $9,171,312 $4,617,969
Pro forma $5,943,340 $8,724,685 $4,268,159
Earnings per common share
As reported
Basic $ .30 $ .42 $ .31
Diluted $ .29 $ .41 $ .30
Pro forma
Basic $ .23 $ .40 $ .29
Diluted $ .22 $ .39 $ .28
59
<PAGE>
TRANSMONTAIGNE OIL COMPANY
AND SUBSIDIARIES
Notes to Consolidated Financial Statements
APRIL 30, 1998 AND 1997
- --------------------------------------------------------------------------------
(12) STOCK OPTIONS (CONTINUED)
The fair value of each option grant is estimated on the date of grant
using the Black-Scholes option-pricing model with the following weighted
average assumptions used for options granted: no dividend yield; expected
volatility of 31%; risk-free rate of 6.14% and 6.27%; and expected life of
7 years and 6.37 years during the years ended April 30, 1998 and 1996,
respectively. The weighted average fair value at grant date for options
granted during the years ended April 30, 1998 and 1996 was $16.68 and
$5.23, respectively. There were no stock options granted during the year
ended April 30, 1997.
(13) EMPLOYEE BENEFIT PLAN
TransMontaigne has established a 401(k) retirement savings plan for all
employees. The plan allows participants to contribute up to 15% of their
compensation, with TransMontaigne making a discretionary percentage
matching contribution as determined by management based upon its financial
performance. Employees vest 25% per year in TransMontaigne's contribution.
The total amount of TransMontaigne's discretionary percentage matching
contributions for the year ended April 30, 1998 was $172,434 and for the
year ended April 30, 1997 was $31,410. TransMontaigne did not make a
contribution to a predecessor employee profit sharing plan for the year
ended April 30, 1996.
60
<PAGE>
TRANSMONTAIGNE OIL COMPANY
AND SUBSIDIARIES
Notes to Consolidated Financial Statements
APRIL 30, 1998 AND 1997
- --------------------------------------------------------------------------------
(14) INCOME TAXES
Income tax expense (benefit) expense for years ending April 30 consists of
the following:
<TABLE>
<CAPTION>
1998 1997 1996
---- ---- ----
<S> <C> <C> <C>
Current state income taxes $ 319,500 585,822 192,747
Deferred federal income taxes 4,630,000 (1,975,300) -
Deferred state income taxes 543,000 (299,300) -
---------- ----------- ----------
Income tax expense (benefit) $ 5,492,500 (1,688,778) 192,747
=========== =========== ==========
</TABLE>
Income tax expense (benefit) differs from the amount computed by applying
the federal corporate income tax rate of 34% to pretax earnings as a
result of the following:
<TABLE>
<CAPTION>
1998 1997 1996
---- ---- ----
<S> <C> <C> <C>
Computed "expected"
tax expense $ 4,464,000 2,544,000 1,636,000
Increase (reduction) in income
taxes resulting from:
Increase (decrease) in the
valuation allowance for
deferred tax assets
allocated to income tax
expense - (4,474,000) (1,785,000)
Recognition of tax benefit of net
operating loss carryforwards
of acquired entity - (1,021,600) -
Adjustment of prior year's
cumulative temporary differences
offset by a change in the
valuation allowance - 497,000 -
State income taxes, net of
federal income tax benefit 723,300 387,000 127,000
Other, net 305,200 378,822 214,747
----------- ----------- -----------
Income tax expense (benefit) $ 5,492,500 (1,688,778) 192,747
=========== =========== ===========
</TABLE>
61
<PAGE>
TRANSMONTAIGNE OIL COMPANY
AND SUBSIDIARIES
Notes to Consolidated Financial Statements
APRIL 30, 1998 AND 1997
- --------------------------------------------------------------------------------
(14) INCOME TAXES (CONTINUED)
The tax effects of temporary differences which give rise to significant
portions of the deferred tax assets and deferred tax liabilities at April
30, 1998 and 1997 are as follows:
<TABLE>
<CAPTION>
1998 1997
---- ----
<S> <C> <C>
Deferred tax assets:
Inventories, principally due to difference in
costing method used for tax purposes $ 3,384,000 2,196,000
Net operating loss carryforwards 5,829,000 6,969,000
Alternative minimum tax credit carryforwards 67,000 24,000
------------ ------------
Gross deferred tax assets 9,280,000 9,189,000
Deferred tax liabilities:
Unrealized commodity futures contract
gains (957,000) (122,000)
Plant and equipment, principally due to (4,895,000)
differences in depreciation methods (8,741,000)
Investments in affiliated company,
principally due to undistributed earnings (496,000) (496,000)
------------ ----------
Deferred tax (liabilities) assets, net $ (914,000) 3,676,000
============ ==========
</TABLE>
In assessing the realizability of deferred tax assets, management
considers whether it is more likely than not that some portion or all of
the deferred tax assets will not be realized. The ultimate realization of
deferred tax assets is dependent upon the generation of future taxable
income during the periods in which those temporary differences become
deductible. Management considers the scheduled reversal of deferred tax
liabilities, projected future taxable income, and tax planning strategies
in making this assessment.
As of April 30, 1996, management believed that the benefits of future
deductible differences might not be realized due to losses incurred in
recent years and uncertainty about future earnings. Accordingly, a
valuation allowance was provided for net deferred tax assets at that
date.
62
<PAGE>
TRANSMONTAIGNE OIL COMPANY
AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
APRIL 30, 1998 AND 1997
- --------------------------------------------------------------------------------
(14) INCOME TAXES (CONTINUED)
As a result of the Grasslands acquisition in December 1996 and the public
offering of common stock in February 1997, and based upon projections for
future taxable income over the periods which the deferred tax assets are
deductible, management believed the "more likely than not" criteria had
been satisfied as of April 30, 1997, and that the benefits of future
deductible differences will be realized. Accordingly, the remaining
valuation allowance was reversed to income for the year ended April 30,
1997.
At April 30, 1998, TransMontaigne has aggregate net operating loss
carryforwards for federal income tax purposes of approximately $15,350,000
which are available to offset future federal taxable income, if any,
through 2010. In addition, TransMontaigne has alternative minimum tax
credit carryforwards of approximately $67,000 available to reduce future
federal regular income taxes, if any, which can be carried forward
indefinitely.
As a result of the merger in June 1996, TransMontaigne acquired net
operating loss carryforwards of approximately $7,892,000, which are
included in the aggregate net operating loss carryforwards, and are
limited to approximately $1,300,000 annually. A portion of the tax benefit
of the utilization of such carryforwards has been recognized as a
reduction of goodwill recorded in the acquisition. Due to changes in
ownership which occurred through April 30, 1996, the use of the remaining
net operating loss carryforwards to offset taxable income is limited to
approximately $4,300,000 annually.
Under SFAS 109, TransMontaigne provides for deferred income taxes on the
undistributed net earnings of Lion. Under the transition rules in SFAS
109, TransMontaigne is not required to recognize a deferred tax liability
of approximately $6,100,000 for the undistributed net earnings of Lion
which arose prior to the adoption of SFAS 109 because TransMontaigne
currently does not expect those undistributed earnings to become taxable
to it in the foreseeable future. A deferred tax liability will be
recognized on these undistributed earnings when TransMontaigne expects
that it will recover those undistributed earnings in a taxable manner,
such as through the receipt of dividends or the sale of the investment.
TransMontaigne paid in cash federal income taxes of approximately $500,000
and $126,000 for the years ended April 30, 1998 and April 30, 1997,
respectively, and state income taxes of approximately $575,000, $214,000
and $106,000 for the years ended April 30, 1998, 1997 and 1996,
respectively.
63
<PAGE>
TRANSMONTAIGNE OIL COMPANY
AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
APRIL 30, 1998 AND 1997
- --------------------------------------------------------------------------------
(15) RELATED PARTY TRANSACTIONS
TransMontaigne had sales of $13,550,000 and $10,900,000 to, and purchases
of $51,940,000 and $49,700,000 from, Lion for the years ended April 30,
1998 and 1997, respectively.
Related party balances at April 30, 1998 and 1997 were:
1998 1997
---- ----
Accounts receivable $ 99,095 2,694,913
Accounts payable 1,644,195 228,462
(16) NEW ACCOUNTING STANDARDS
Statement of Financial Accounting Standards No. 121, "Accounting for
Impairment of Long-Lived Assets to be Disposed of" ("SFAS 121"), was
issued in March, 1995, by the Financial Accounting Standards Board. It
requires that long-lived assets and certain identifiable intangibles to be
held and used by an entity be reviewed for impairment whenever events or
changes in circumstances indicate that the carrying amount of an asset may
not be recoverable. The adoption of this statement by TransMontaigne as of
May 1, 1996 had no effect on its consolidated financial statements.
Statement of Financial Accounting Standards No. 128, "Earnings Per Share"
("SFAS 128"), was issued in February 1997, by the Financial Accounting
Standards Board. SFAS 128 established new standards for computing and
presenting earnings per share ("EPS") including simplifying the standards
for computing EPS and making them comparable to international EPS
standards. This statement replaces the presentation of primary EPS
previously prescribed by Accounting Principles Board Opinion No. 15 ("APB
No. 15") with a presentation of basic EPS which is computed by dividing
income available to common stockholders by the weighted average number of
common shares outstanding for the period. SFAS 128 also requires dual
presentation of basic and diluted EPS. Diluted EPS is computed similarly
to fully diluted EPS pursuant to APB No. 15. This statement is effective
for financial statements issued for periods ending after December 15,
1997, and requires restatement of all prior period EPS data presented. The
following tables reconcile the computation of basic EPS and diluted EPS
for the years ended April 30, 1998, 1997 and 1996.
64
<PAGE>
TRANSMONTAIGNE OIL COMPANY
AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
APRIL 30, 1998 AND 1997
- --------------------------------------------------------------------------------
(16) NEW ACCOUNTING STANDARDS (CONTINUED)
<TABLE>
<CAPTION>
1998 1997
----------------------------------------------- -----------------------------------------------
Earnings Shares Per Earnings Shares Per
(Numerator) (Denominator) Share (Numerator) (Denominator) Share
--------------- ----------------- --------- --------------- ----------------- ---------
<S> <C> <C> <C> <C> <C> <C>
Basic EPS - Net earnings
available to common
stockholders $7,637,630 25,886,737 $0.30 $9,171,312 21,742,625 $0.42
========= =========
Effect of Dilutive
Securities
Stock options - 600,478 - 630,900
Stock warrants - 192,288 - 170,877
--------------- ----------------- --------------- -----------------
Diluted EPS - Net earnings
available to common
stockholders
and assumed
conversions $7,637,630 26,679,503 $0.29 $9,171,312 22,544,402 $0.41
=============== ================= ========= =============== ================= =========
</TABLE>
<TABLE>
<CAPTION>
1996
----------------------------------------------------------------------
Earnings Shares Per
(Numerator) (Denominator) Share
--------------------- ---------------------- -------------
<S> <C> <C> <C>
Basic EPS - Net earnings
available to common
stockholders $4,617,969 $14,971,775 $0.31
=============
Effect of Dilutive
Securities
Stock options - 160,370
Stock warrants - 21,477
--------------------- ----------------------
Diluted EPS - Net
earnings available
to
common stockholders
and assumed
conversions $4,617,969 $15,153,622 $0.30
===================== ====================== =============
</TABLE>
Stock options to purchase 503,500 and 190,000 shares of common stock at
$17.25 and $15.00 per share, respectively, were outstanding at April 30,
1998, but were not included in the computation of diluted EPS because the
options' exercise price was greater than the market price of the common
shares at April 30, 1998.
65
<PAGE>
TRANSMONTAIGNE OIL COMPANY
AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
APRIL 30, 1998 AND 1997
- --------------------------------------------------------------------------------
(17) CONCENTRATION OF CREDIT RISK
Substantially all of TransMontaigne's trade accounts receivable at April
30, 1998 and 1997 result from sales of refined petroleum products to
numerous companies in the oil and gas industry. This concentration could
impact TransMontaigne's overall credit risk since these companies could be
affected by industry-wide changes in economics or other conditions. Since
TransMontaigne provides short-term credit to its customers, which are
generally either major and large independent oil companies or wholesale
distributors of these products, it may require collateral, such as letters
of credit, liens on products and guarantees as determined on a customer by
customer basis. TransMontaigne maintains allowances for potential
uncollectible accounts receivable, which historically have been minimal.
The trade accounts receivable outstanding at April 30, 1998 and 1997 were
substantially paid during the 60 day period subsequent to those respective
dates.
(18) BUSINESS SEGMENTS
Prior to the year ended April 30, 1997 TransMontaigne's principal
operating business segment was logistical petroleum services related to
pipelining, terminaling and storing and supply, distribution and marketing
of refined petroleum products. In November 1997 TransMontaigne acquired
the ITAPCO Terminal Corporations the refined petroleum products, chemicals
and other bulk liquids operations of which are included in the logistical
petroleum services business segment.
In December 1996, TransMontaigne acquired the Grasslands Facilities and
expanded its other natural gas gathering and processing facilities. The
natural gas services business segment conducted operations for
approximately five months during the year ended April 30, 1997 and during
all of the year ended April 30, 1998.
66
<PAGE>
TRANSMONTAIGNE OIL COMPANY
AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
APRIL 30, 1998 AND 1997
- --------------------------------------------------------------------------------
(18) BUSINESS SEGMENTS (CONTINUED)
Information about TransMontaigne's business segments for the years ended
April 30, 1998 and 1997 is summarized below:
<TABLE>
<CAPTION>
Revenues 1998 1997
---- ----
<S> <C> <C>
Logistical petroleum services $ 1,907,041,515 $ 1,143,524,074
Natural gas services 60,464,981 23,140,547
-------------------- ----------------------
$ 1,967,506,496 $ 1,166,664,621
==================== ======================
Operating income
Logistical petroleum services $ 15,203,078 $ 6,747,996
Natural gas services 5,231,371 4,189,122
Corporate (1,200,000) (1,036,550)
-------------------- ----------------------
$ 19,234,449 $ 9,900,568
==================== ======================
Identifiable assets at year end (net of
depreciation)
Logistical petroleum services $ 177,707,215 $ 112,178,478
Natural gas services 94,089,703 86,730,296
Corporate 51,507,912 62,815,546
-------------------- ----------------------
$ 323,304,830 $ 261,724,320
==================== ======================
Depreciation and amortization
Logistical petroleum services $ 2,515,030 $ 1,338,768
Natural gas services 5,114,745 1,735,034
Corporate 845,686 382,197
-------------------- ----------------------
$ 8,475,461 $ 3,455,999
==================== ======================
Capital expenditures
Logistical petroleum services $ 47,588,090 $ 11,118,556
Natural gas services 15,561,633 80,059,318
Corporate 3,484,568 1,116,520
-------------------- ----------------------
$ 66,634,291 $ 92,294,394
==================== ======================
</TABLE>
The Corporate business segment represents all of TransMontaigne's
activities and assets which are not specifically identified with the
primary business segments, including cash and cash equivalents,
investments and other assets.
67
<PAGE>
TRANSMONTAIGNE OIL COMPANY
AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
APRIL 30, 1998 AND 1997
- --------------------------------------------------------------------------------
(19) FINANCIAL RESULTS BY QUARTER (UNAUDITED)
<TABLE>
<CAPTION>
Three Months Ended Year Ended
------------------------------------------------------------------- ---------------
July 31 October 31 January 31 April 30 April 30
1997 1997 1998 1998 1998
---------------- --------------- --------------- --------------- ---------------
<S> <C> <C> <C> <C> <C>
Revenues $ 462,149,000 545,100,000 470,732,000 489,525,000 1,967,506,000
Total costs
and expenses 456,462,000 540,105,000 466,108,000 485,597,000 1,948,272,000
---------------- --------------- --------------- --------------- ---------------
Operating income $ 5,687,000 4,995,000 4,624,000 3,928,000 19,234,000
Net earnings $ 3,010,000 2,397,000 1,718,000 513,000 7,638,000
Earnings per
common share
Basic $ .12 .09 .07 .02 .30
Diluted $ .12 .09 .06 .02 .29
</TABLE>
<TABLE>
<CAPTION>
Three Months Ended Year Ended
------------------------------------------------------------------- ---------------
July 31 October 31 January 31 April 30 April 30
1996 1996 1997 1997 1997
---------------- --------------- --------------- --------------- ---------------
<S> <C> <C> <C> <C> <C>
Revenues $ 194,052,000 276,771,000 340,654,000 355,188,000 1,166,665,000
Total costs
and expenses 191,816,000 274,298,000 338,210,000 352,440,000 1,156,764,000
---------------- --------------- --------------- --------------- ---------------
Operating income $ 2,236,000 2,473,000 2,444,000 2,748,000 9,901,000
Net earnings $ 1,807,000 2,673,000 1,426,000 3,265,000 9,171,000
Earnings per
common share
Basic $ .08 .13 .07 .14 .42
Diluted $ .08 .12 .07 .14 .41
</TABLE>
<TABLE>
<CAPTION>
Three Months Ended Year Ended
------------------------------------------------------------------- --------------
July 31 October 31 January 31 April 30 April 30
1995 1995 1996 1996 1996
---------------- --------------- --------------- --------------- ---------------
<S> <C> <C> <C> <C> <C>
Revenues $ 107,691,000 134,324,000 105,960,000 185,132,000 533,107,000
Total costs
and expenses 105,128,000 133,461,000 106,118,000 181,851,000 526,558,000
---------------- --------------- --------------- --------------- ---------------
Operating income $ 2,563,000 863,000 (158,000) 3,281,000 6,549,000
Net earnings $ 2,031,000 438,000 (867,000) 3,016,000 4,618,000
Earnings per
common share
Basic $ .14 .03 (.06) .20 .31
Diluted $ .14 .03 (.06) .19 .30
</TABLE>
68
<PAGE>
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON
ACCOUNTING AND FINANCIAL DISCLOSURES
Not Applicable
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS
The information required by Item 10 concerning executive officers of
the registrant is included under the caption "Executive Officers of
the Registrant" on page 70 of this report.
ITEM 11. EXECUTIVE COMPENSATION
*
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND
MANAGEMENT
*
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
*
* Incorporated by reference from the Proxy Statement dated August 6,
1998 for the Annual Meeting of Stockholders to be held on August 26,
1998.
69
<PAGE>
EXECUTIVE OFFICERS OF THE REGISTRANT
<TABLE>
<CAPTION>
Current Positions and Principal
Name Age Occupations During Last Five Years
---- --- ----------------------------------
<S> <C> <C>
Cortlandt S. Dietler 76 Chairman, Chief Executive Officer and a Director since
April 1995; Chief Executive Officer of Associated Natural
Gas Corporation prior to its 1994 merger with Panhandle
Eastern Corporation (now Duke Energy Corporation) from
1985 to 1994
Richard E. Gathright 44 President and Chief Operating Officer since September
1996; Director since April 1995; Executive Vice President
from April 1995 to September 1996; President of a
subsidiary of TransMontaigne from December 1993 to April
1995; President and Director of North American Operations
for Aberdeen Petroleum PLC from 1988 to 1993
Harold R. Logan, Jr. 53 Executive Vice President/Finance, Treasurer and a Director
since April 1995; Senior Vice President/Finance of
Associated Natural Gas Corporation from 1985 to 1994
W. A. Sikora 61 Executive Vice President since September 1996; Senior Vice
President and Chief Financial Officer of a subsidiary of
TransMontaigne from May 1995 to September 1996; business
consultant from 1982 to April 1995
Erik B. Carlson 51 Senior Vice President, General Counsel, and Secretary
since January 1998; Senior Vice President, General Counsel
and Secretary for Duke Energy Field Services, Inc.
(formerly known as Pan Energy Field Services, Inc. and
Associated Natural Gas, Inc.) in Denver from 1983 until
December 1997
Frederick W. Boutin 43 Senior Vice President since April 1995; Vice President of
Associated Natural Gas Corporation from 1985 to 1994
Rodney S. Pless 37 Vice President, Controller and Chief Accounting Officer
since December 1996; Vice President, Controller and other
accounting positions of a subsidiary of TransMontaigne
from 1987 to December 1996
Robert W. Bradberry 44 President of TransMontaigne Product Services Inc. since
January 1, 1997; other senior management positions of a
subsidiary of TransMontaigne from 1979 to January 1997
Robert J. Clark 53 President of Bear Paw Energy Inc. since June 1996;
President of a predecessor of Bear Paw Energy Inc. from
March 1995 to June 1996; Senior Vice President of Snyder
Oil Corporation from 1988 to March 1995
Larry F. Clynch 53 President of TransMontaigne Transportation Services Inc.
since January 1, 1997; Senior Vice President of a
subsidiary of TransMontaigne from January 1996 to January
1997; prior to January 1996 employed 28 years by Conoco
Pipe Line Company, the last 3 years as President
</TABLE>
70
<PAGE>
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS
ON FORM 8-K
(a) The following documents are filed as a part of this report.
(1) Consolidated Financial Statements:
TransMontaigne Oil Company
Independent Auditors' Report
Consolidated Balance Sheets as of April 30, 1998 and 1997
Consolidated Statements of Operations for the years ended
April 30, 1998, 1997 and 1996
Consolidated Statements of Stockholders' Equity for the years ended
April 30, 1998, 1997, and 1996
Consolidated Statements of Cash Flows for the years ended
April 30, 1998, 1997 and 1996
Notes to Consolidated Financial Statements
(2) Financial Statement Schedules: Not Applicable
(3) Exhibits:
A list of the exhibits required by Item 601 of Regulation S-K to
be filed as part of this report:
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<S> <C>
3.1 Restated Articles of Incorporation and Certificate of Merger.
Incorporated by reference to TransMontaigne Oil Company Form
10-K (Securities and Exchange Commission File No. 001-11763) for
the year ended April 30, 1996.
3.2 Amended and Restated By-Laws. Incorporated by reference to
TransMontaigne Oil Company Form S-2 (Securities and Exchange
Commission File No. 333-18795).
</TABLE>
71
<PAGE>
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS
ON FORM 8-K (continued)
<TABLE>
<S> <C>
10.1 The TransMontaigne Oil Company Amended and Restated 1995 Stock
Option Plan. Incorporated by reference to TransMontaigne Oil
Company Form 10-K (Securities and Exchange Commission File No.
001-11763) for the year ended April 30, 1996.
10.2 TransMontaigne Oil Company Equity Incentive Plan. Incorporated by
reference to TransMontaigne Oil Company's Definitive Proxy
Statement (Securities and Exchange Commission File No. 001-11763)
filed in connection with the August 28, 1997 Annual Meeting of
Shareholders.
10.3 Stock Purchase Agreement effective April 17, 1996 between
TransMontaigne Oil Company and the investors named therein.
Incorporated by reference to TransMontaigne Oil Company Form 10-K
(Securities and Exchange Commission File No. 001-11763) for the
year ended April 30, 1996.
10.4 Anti-dilution Rights Agreement dated as of April 17, 1996 between
TransMontaigne Oil Company and Waterwagon & Co., nominee for
Merrill Lynch Growth Fund. Incorporated by reference to
TransMontaigne Oil Company Form 10-K (Securities and Exchange
Commission File No. 001-11763) for the year ended April 30, 1996.
10.5 Agreement to Elect Directors dated as of April 17, 1996 between
TransMontaigne Oil Company and the First Reserve Investors named
therein. Incorporated by reference to TransMontaigne Oil Company
Form 10-K (Securities and Exchange Commission File No. 001-11763)
for the year ended April 30, 1996.
10.6 Registration Rights Agreement dated as of April 17, 1996 between
TransMontaigne Oil Company and the entities named therein.
Incorporated by reference to TransMontaigne Oil Company Form 10-K
(Securities and Exchange Commission File No. 001-11763) for the
year ended April 30, 1996.
10.7 Agreement for Sale of McKenzie Gas Processing Plant and
Grasslands Gas Gathering System dated as of October 31, 1996
between Bear Paw Energy, Inc. and Koch Hydrocarbon Company.
Incorporated by reference to TransMontaigne Oil Company Form S-2
(Securities and Exchange Commission File No. 333-18795).
10.8 Credit Agreement between TransMontaigne Oil Company and The First
National Bank of Boston, as Agent, dated December 18, 1996.
Incorporated by reference to TransMontaigne Oil Company Form S-2
(Securities and Exchange Commission File No. 333-18795).
</TABLE>
72
<PAGE>
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS
ON FORM 8-K (continued)
<TABLE>
<S> <C>
10.9 Amendment No. 2 to Credit Agreement between TransMontaigne Oil
Company and The First National Bank of Boston, as Agent, dated
April 17, 1997. Incorporated by reference to TransMontaigne Oil
Company Form 10-K (Securities and Exchange Commission File No.
001-11763) for the year ended April 30, 1997.
10.10 Amendment No. 3 to Credit Agreement between TransMontaigne Oil
Company and BankBoston, N.A. (formerly known as The First
National Bank of Boston), as Agent, dated December 1, 1997.
FILED HEREWITH.
10.11 Amended and Restated Credit Agreement between TransMontaigne
Oil Company and BankBoston, N.A., as Agent, dated March 31,
1998. FILED HEREWITH.
10.12 Master Shelf Agreement among TransMontaigne Oil Company, The
Prudential Insurance Company and U.S. Private Placement Fund,
dated April 17, 1997. Incorporated by reference to
TransMontaigne Oil Company Form 10-K (Securities and Exchange
Commission File No. 001-11763) for the year ended April 30,
1997.
10.13 Letter Amendment No. 1, dated March 31, 1998, to Master Shelf
Agreement dated as of April 17, 1997, among TransMontaigne Oil
Company, The Prudential Insurance Company of America and U.S.
Private Placement Fund. FILED HEREWITH.
10.14 Offer to Purchase Stock and Certain Assets of the ITAPCO
Corporations as listed therein and the Independent Terminal and
Pipeline Company as described therein dated October 20, 1997,
together with Exhibits A-E. Incorporated by reference to
TransMontaigne Oil Company Current Report on Form 8-K
(Securities and Exchange Commission File No. 001-11763) filed
on December 10, 1997.
21 Schedule of TransMontaigne's Subsidiaries. FILED HEREWITH.
23.1 Consent of KPMG Peat Marwick LLP. FILED HEREWITH.
27.1 Financial Data Schedule for the Fiscal Year Ended April 30,
1998. FILED HEREWITH.
27.2 Financial Data Schedules (restated) for the Quarters Ended July
31, 1997 and October 31, 1997. FILED HEREWITH.
27.3 Financial Data Schedules (restated) for the Quarters Ended July
31, 1996, October 31, 1996 and January 31, 1997 and the Fiscal
Years Ended April 30, 1997 and April 30, 1996. FILED HEREWITH.
</TABLE>
73
<PAGE>
(b) Reports on Form 8-K.
The following amendment on form 8-K/A was filed during the quarter ended
April 30, 1998:
February 9, 1998 Amendment on Form 8-K/A to Current Report on Form 8-K filed by
TransMontaigne Oil Company on December 10, 1997, amending the Form 8-K solely to
add the financial statements of the business acquired, ITAPCO Terminal
Corporations, as required by Item 7(a) of Form 8-K, and the pro forma financial
information, as required by Item 7(b) of Form 8-K.
74
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities and
Exchange Act of 1934, the Registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized.
TRANSMONTAIGNE OIL COMPANY
By /s/CORTLANDT S. DIETLER
-----------------------
Cortlandt S. Dietler
Chairman and Chief Executive Officer
Date: July 28, 1998
Pursuant to the requirements of the Securities and Exchange Act of 1934, this
report is signed below by the following persons on behalf of the Registrant and
in the capacities indicated on July 24, 1998.
<TABLE>
<CAPTION>
Name and Signature Title
------------------ -----
<S> <C>
(i) Principal executive officer:
/s/CORTLANDT S. DIETLER Chairman, Chief Executive Officer and Director
- -----------------------
Cortlandt S. Dietler
(ii) Principal operating officer:
/s/RICHARD E. GATHRIGHT President, Chief Operating Officer and Director
- -----------------------
Richard E. Gathright
(iii) Principal financial officer:
/s/HAROLD R. LOGAN, JR. Executive Vice President/Finance,
- ----------------------- Treasurer and Director
Harold R. Logan, Jr.
(iv) Principal accounting officer:
/s/RODNEY S. PLESS Vice President, Controller and Chief Accounting Officer
- ------------------
Rodney S. Pless
(v) Non Employee Directors:
/s/THOMAS R. DENISON Director
- --------------------
Thomas R. Denison
/s/JOHN A. HILL Director
- -----------------
John A. Hill
/s/BRYAN H. LAWRENCE Director
- --------------------
Bryan H. Lawrence
/s/EDWIN H. MORGENS Director
- -------------------
Edwin H. Morgens
</TABLE>
75
<PAGE>
EXHIBIT 10.10
TRANSMONTAIGNE OIL COMPANY
CREDIT AGREEMENT
Amendment No. 3
---------------
This Agreement, dated as of December 1, 1997, is among TransMontaigne Oil
Company, a Delaware corporation (the "Company"), the Subsidiaries of the Company
-------
party hereto, the Lenders party hereto and BankBoston, N.A. (formerly known as
The First National Bank of Boston), as agent (the "Agent") for itself and the
-----
other Lenders. The parties agree as follows:
1. Reference to Credit Agreement; Background.
-----------------------------------------
1.1 Reference to Credit Agreement; Definitions. Reference is made to the
------------------------------------------
Credit Agreement dated as of December 18, 1996, as amended by Amendment No. 1
thereto dated as of January 30, 1997 and by Amendment No. 2 thereof dated as of
April 17, 1997 (as so amended, the "Credit Agreement"), among the Company, the
----------------
Guarantors, the Lenders from time to time party thereto and the Agent. The
Credit Agreement, as amended by the amendments set forth in Section 2 hereof
(the "Amendment"), is referred to as the "Amended Credit Agreement." Terms
--------- ------------------------
defined in the Amended Credit Agreement and not otherwise defined herein are
used herein with the meanings so defined.
1.2 Background. The Company has advised the Lenders that Section 6.16 of
----------
the Credit Agreement should be amended to permit the negative pledge granted by
the Company under Section 6C(1) of the Master Shelf Agreement. The parties
agree that such an amendment should have been included in Amendment No. 2 of the
Credit Agreement dated as of April 17, 1997.
2. Amendments to Credit Agreement. Subject to all of the terms and conditions
------------------------------
hereof and in reliance upon the representations and warranties set forth or
incorporated by reference in Section 4 hereof, the Credit Agreement is amended
as follows, effective as of April 17, 1997 (the "Amendment Closing Date").
----------------------
2.1 A new Section 6.16.3 is added reading in its entirety as follows:
6.16.3. The Master Shelf Agreement.
3. Representations and Warranties. In order to induce the Lenders to enter
------------------------------
into this Agreement, each of the Company and the Guarantors jointly and
severally represents and warrants to each of the Lenders that:
<PAGE>
3.1 No Legal Obstacle to Agreements. Neither the execution and delivery
-------------------------------
of this Agreement or any other Credit Document, nor the making of any borrowing
under the Amended Credit Agreement, nor the guaranteeing of the Credit
Obligations, nor the securing of the Credit Obligations with the Credit
Security, nor the consummation of any transaction referred to in or contemplated
by this Agreement, the Amended Credit Agreement or any other Credit Document,
nor the fulfillment of the terms hereof or thereof or of any other agreement,
instrument, deed or lease contemplated by this Agreement, the Amended Credit
Agreement or any other Credit Document, has constituted or resulted in or will
constitute or result in:
(a) any breach or termination of the provisions of any agreement,
instrument, deed or lease to which the Company or any of its Subsidiaries
is a party or by which it is bound, or of the Charter or By-laws of the
Company or any of its Subsidiaries;
(b) the violation of any law, statute, judgment, decree or
governmental order, rule or regulation applicable to the Company or any of
its Subsidiaries;
(c) the creation under any agreement, instrument, deed or lease of
any Lien (other than Liens on the Credit Security which secure the Credit
Obligations and Liens permitted by Section 6.8 of the Amended Credit
Agreement) upon any of the assets of the Company or any of its
Subsidiaries; or
(d) any redemption, retirement or other repurchase obligation of the
Company or any of its Subsidiaries under any Charter, By-law, agreement,
instrument, deed or lease.
No approval, authorization or other action by, or declaration to or filing with,
any governmental or administrative authority or any other Person is required to
be obtained or made by the Company or any of its Subsidiaries in connection with
the execution and delivery of this Agreement, the performance of this Agreement,
the Amended Credit Agreement or any other Credit Document, the transactions
contemplated hereby or thereby, the making of any borrowing under the Amended
Credit Agreement, the guaranteeing of the Credit Obligations or the securing of
the Credit Obligations with the Credit Security.
3.2 Defaults. Immediately after giving effect to the Amendment, no
--------
Default shall exist.
3.3 Incorporation of Representations and Warranties of Company.
----------------------------------------------------------
Immediately after giving effect to the Amendment, the representations and
warranties set forth in Section 8 of the Amended Credit Agreement will be true
and correct as if originally made on and as of the Amendment Closing Date
(except to the extent of any representation or warranty which refers to a
specific earlier date).
4. Conditions. The effectiveness of each of the amendments set forth in
----------
Section 2 hereof shall
-2-
<PAGE>
be subject to the satisfaction of the following conditions:
4.1 Officer's Certificate. The representations and warranties contained
---------------------
in Section 4 hereof shall be true and correct on and as of the Amendment Closing
Date with the same force and effect as though originally made on and as of the
Amendment Closing Date; immediately after giving effect to such amendments, no
Default shall exist; no Material Adverse Change shall have occurred since
January 31, 1997; and the Company shall have furnished to the Lenders on or
before the Amendment Closing Date a certificate to these effects signed by a
Financial Officer of the Company.
4.2 Proper Proceedings. All proper proceedings shall have been taken by
------------------
the Company and the Guarantors (including without limitation TransMontaigne
Transportation Services Inc.) to authorize this Agreement, the Amended Credit
Agreement and the transactions contemplated hereby and thereby. On or before
the Amendment Closing Date, the Agent shall have received copies of all
documents, including legal opinions of counsel and records of corporate
proceedings which the Agent may have requested in connection therewith, such
documents, where appropriate, to be certified by proper corporate or
governmental authorities.
4.3 Execution and Delivery. Each of the Company, the Guarantors and the
----------------------
Lenders shall have executed and delivered this Agreement.
5. Further Assurances. The Company will, promptly upon the request of the
------------------
Agent from time to time, execute, acknowledge and deliver, and file and record,
all such instruments and notices, and take all such action, as the Agent deems
necessary or advisable to carry out the intent and purposes of this Agreement.
6. General. The Amended Credit Agreement and all of the other Credit Documents
-------
are each confirmed as being in full force and effect. This Agreement, the
Amended Credit Agreement and the other Credit Documents referred to herein or
therein constitute the entire understanding of the parties with respect to the
subject matter hereof and thereof and supersede all prior and current
understandings and agreements, whether written or oral, with respect to such
subject matter. The invalidity or unenforceability of any provision hereof
shall not affect the validity and enforceability of any other term or provision
hereof. The headings in this Agreement are for convenience of reference only
and shall not alter, limit or otherwise affect the meaning hereof. Each of this
Agreement and the Amended Credit Agreement is a Credit Document and may be
executed in any number of counterparts, which together shall constitute one
instrument, and shall bind and inure to the benefit of the parties and their
respective successors and assigns, including as such successors and assigns all
holders of any Note. This Agreement shall be governed by and construed in
accordance with the laws (other than the conflict of law rules) of The
Commonwealth of Massachusetts.
-3-
<PAGE>
Each of the undersigned has caused this Agreement to be executed and
delivered by its duly authorized officer as an agreement under seal as of the
date first above written.
TRANSMONTAIGNE OIL COMPANY
By /s/ Richard E. Gathright
--------------------------------------
President and Chief Operating Officer
TRANSMONTAIGNE TRANSPORTATION
SERVICES INC.
TRANSMONTAIGNE PRODUCT
SERVICES INC.
TRANSMONTAIGNE PIPELINE INC.
TRANSMONTAIGNE TERMINALING INC.
By /s/ Richard E. Gathright
--------------------------------------
As C.E.O. of each of the foregoing
corporations
BEAR PAW ENERGY INC.
By /s/ Robert J. Clark
--------------------------------------
President
BANKBOSTON, N.A. (formerly known as
The First National Bank of Boston), as a
Lender and as Agent for the Lenders
By /s/ H. Louis Bailey
--------------------------------------
Authorized Officer
-4-
<PAGE>
THE BANK OF MONTREAL
By /s/ Donald S. Skipper
--------------------------------------
Authorized Officer
CIBC INC.
By /s/ Aleksandra Dymanus
--------------------------------------
Authorized Officer
COLORADO NATIONAL BANK
By /s/ Monte E. Deckerd
--------------------------------------
Authorized Officer
NATIONSBANK OF TEXAS, N.A.
By /s/ David Rubenking
--------------------------------------
Authorized Officer
BANQUE PARIBAS
By /s/ Zali Win, Vice President
--------------------------------------
Authorized Officer
By /s/ Edward K. Chin, Director
--------------------------------------
Authorized Officer
ING (U.S.) CAPITAL CORPORATION
By /s/ Frank Ferrara
--------------------------------------
Authorized Officer
-5-
<PAGE>
Exhibit 10.11
Execution Copy
--------------
================================================================================
TRANSMONTAIGNE OIL COMPANY
AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF MARCH 31, 1998
BANKBOSTON, N.A., AGENT
================================================================================
<PAGE>
TABLE OF CONTENTS
1. Definitions; Certain Rules of Construction.............................. 1
------------------------------------------
2. The Credits............................................................. 22
-----------
2.1. Revolving Credit.................................................. 22
----------------
2.1.1. Revolving Loan............................................ 22
--------------
2.1.2. Maximum Amount of Revolving Credit........................ 23
----------------------------------
2.1.3. Borrowing Requests........................................ 23
------------------
2.1.4. Revolving Loan Account; Revolving Notes................... 23
---------------------------------------
2.2. Swingline Credit.................................................. 23
----------------
2.2.1. Swingline Loan............................................ 23
--------------
2.2.2. Borrowing Requests........................................ 24
------------------
2.2.3. Swingline Loan Account; Swingline Notes................... 24
---------------------------------------
2.2.4. Conversion of Swingline Loan into Revolving Loan.......... 24
------------------------------------------------
2.3. [Intentionally Omitted]........................................... 25
2.4. Letters of Credit................................................. 25
-----------------
2.4.1. Issuance of Letters of Credit............................. 25
-----------------------------
2.4.2. Requests for Letters of Credit............................ 25
------------------------------
2.4.3. Form and Expiration of Letters of Credit.................. 26
----------------------------------------
2.4.4. Lenders' Participation in Letters of Credit............... 26
-------------------------------------------
2.4.5. Presentation.............................................. 26
------------
2.4.6. Payment of Drafts......................................... 27
-----------------
2.4.7. Uniform Customs and Practice.............................. 27
----------------------------
2.4.8. Subrogation............................................... 28
-----------
2.4.9. Modification, Consent, etc................................ 28
---------------------------
2.5. Application of Proceeds........................................... 29
-----------------------
2.5.1. Revolving Loan............................................ 29
--------------
2.5.2. Swingline Loan............................................ 29
--------------
2.5.3. [Intentionally Omitted]................................... 29
2.5.4. [Intentionally Omitted]................................... 29
2.5.5. Letters of Credit......................................... 29
-----------------
2.5.6. Specifically Prohibited Applications...................... 29
------------------------------------
2.6. Nature of Obligations of Lenders to Make Extensions of Credit..... 29
-------------------------------------------------------------
3. Interest; Eurodollar Pricing Options; Fees.............................. 30
------------------------------------------
3.1. Interest.......................................................... 30
--------
3.2. Eurodollar Pricing Options........................................ 30
--------------------------
3.2.1. Election of Eurodollar Pricing Options.................... 30
--------------------------------------
3.2.2. Notice to Lenders and Company............................. 31
-----------------------------
3.2.3. Selection of Eurodollar Interest Periods.................. 31
----------------------------------------
3.2.4. Additional Interest....................................... 31
-------------------
3.2.5. Violation of Legal Requirements........................... 32
-------------------------------
-i-
<PAGE>
3.2.6. Funding Procedure......................................... 32
-----------------
3.3. Facility Fees..................................................... 33
-------------
3.4. Letter of Credit Fees............................................. 33
---------------------
3.5. Reserve Requirements, etc......................................... 33
-------------------------
3.6. Taxes............................................................. 34
-----
3.7. Capital Adequacy.................................................. 34
----------------
3.8. Regulatory Changes................................................ 35
------------------
3.9. Computations of Interest and Fees................................. 35
---------------------------------
4. Payment................................................................. 36
-------
4.1. Payment at Maturity............................................... 36
-------------------
4.2. Contingent Required Prepayments................................... 36
-------------------------------
4.2.1. Excess Credit Exposure.................................... 36
----------------------
4.2.2. Letter of Credit Exposure................................. 36
-------------------------
4.3. [Intentionally Omitted]........................................... 36
4.4. [Intentionally Omitted]........................................... 36
4.5. Voluntary Prepayments............................................. 36
---------------------
4.6. Letters of Credit................................................. 36
-----------------
4.7. Reborrowing; Application of Payments, etc......................... 37
------------------------------------------
4.7.1. Reborrowing............................................... 37
-----------
4.7.2. Order of Application...................................... 37
--------------------
4.7.3. Payment with Accrued Interest, etc........................ 37
----------------------------------
4.7.4. Payments for Lenders...................................... 37
--------------------
5. Conditions to Extending Credit.......................................... 37
------------------------------
5.1. Conditions on Restatement Date.................................... 37
------------------------------
5.1.1. Revolving Notes........................................... 38
---------------
5.1.2. Perfection of Security.................................... 38
----------------------
5.1.3. Payment of Fees........................................... 38
---------------
5.1.4. Legal Opinions............................................ 38
--------------
5.1.5. Letter of Credit Agreements............................... 38
---------------------------
5.1.6. Prudential Consent........................................ 38
------------------
5.1.7. Termination of Existing Credit Agreement.................. 39
----------------------------------------
5.2. Conditions to Each Extension of Credit............................ 39
--------------------------------------
5.2.1. Officer's Certificate..................................... 39
---------------------
5.2.2. Proper Proceedings........................................ 39
------------------
5.2.3. Legality, etc............................................. 39
-------------
5.2.4. General................................................... 40
-------
6. General Covenants....................................................... 40
-----------------
6.1. Taxes and Other Charges; Accounts Payable......................... 40
-----------------------------------------
6.1.1. Taxes and Other Charges................................... 40
-----------------------
6.1.2. Accounts Payable.......................................... 40
----------------
-ii-
<PAGE>
6.2. Conduct of Business, etc. .......................................41
------------------------
6.2.1. Types of Business........................................41
-----------------
6.2.2. Maintenance of Properties. ..............................41
-------------------------
6.2.3. Statutory Compliance.....................................41
--------------------
6.2.4. Compliance with Material Agreements......................41
-----------------------------------
6.2.5. Trading Policy...........................................42
--------------
6.2.6. Subordinated Debentures..................................42
-----------------------
6.2.7. Inventory Accounting.....................................42
--------------------
6.2.8. Inactive Subsidiaries....................................42
---------------------
6.3. Insurance........................................................42
---------
6.3.1. Property Insurance.......................................42
------------------
6.3.2. Liability Insurance......................................42
-------------------
6.4. Financial Statements and Reports.................................43
--------------------------------
6.4.1. Annual Reports...........................................43
--------------
6.4.2. Quarterly Reports........................................44
-----------------
6.4.3. [Intentionally Omitted]..................................45
6.4.4. Other Reports............................................45
-------------
6.4.5. Notice of Litigation.....................................45
--------------------
6.4.6. Notice of Defaults.......................................46
------------------
6.4.7. ERISA Reports............................................46
-------------
6.4.8. Other Information; Audit.................................46
------------------------
6.5. Certain Financial Tests..........................................47
-----------------------
6.5.1. Fixed Charges Coverage...................................47
----------------------
6.5.2. Leverage.................................................47
--------
6.5.3. Consolidated Tangible Net Worth..........................47
-------------------------------
6.6. Indebtedness.....................................................47
------------
6.7. Guarantees; Letters of Credit....................................50
-----------------------------
6.8. Liens............................................................50
-----
6.9. Investments and Acquisitions.....................................52
----------------------------
6.10. Distributions....................................................53
-------------
6.11. Merger, Consolidation and Dispositions of Assets.................53
------------------------------------------------
6.12. Lease Obligations................................................54
-----------------
6.13. Issuance of Stock by Subsidiaries; Subsidiary Distributions......54
-----------------------------------------------------------
6.13.1. Issuance of Stock by Subsidiaries.......................54
---------------------------------
6.13.2. No Restrictions on Subsidiary Distributions.............54
-------------------------------------------
6.14. [Intentionally Omitted]..........................................54
6.15. Derivative Contracts.............................................54
--------------------
6.16. Negative Pledge Clauses..........................................54
-----------------------
6.17. ERISA, etc. .....................................................55
----------
6.18. Transactions with Affiliates.....................................55
----------------------------
6.19. Open Positions...................................................55
--------------
6.20. Environmental Laws...............................................55
------------------
6.20.1. Compliance with Law and Permits.........................55
-------------------------------
-iii-
<PAGE>
6.20.2. Notice of Claims, etc. ..................................56
-----------------
7. Representations and Warranties........................................56
------------------------------
7.1. Organization and Business.......................................56
-------------------------
7.1.1. The Company.............................................56
-----------
7.1.2. Subsidiaries............................................56
------------
7.1.3. Qualification...........................................57
-------------
7.1.4. Capitalization..........................................57
--------------
7.2. Financial Statements and Other Information; Material Agreements.57
-----------------------------------------------------------
7.2.1. Financial Statements and Other Information..............57
------------------------------------------
7.2.2. Material Agreements.....................................58
-------------------
7.3. Agreements Relating to Financing Debt, Investments, etc. .......58
-------------------------------------------------------
7.4. Changes in Condition............................................59
--------------------
7.5. Title to Assets.................................................59
---------------
7.6. Operations in Conformity with Law, etc. ........................59
---------------------------------------
7.7. Litigation......................................................59
----------
7.8. Authorization and Enforceability................................59
--------------------------------
7.9. No Legal Obstacle to Agreements.................................60
-------------------------------
7.10. Defaults........................................................60
--------
7.11. Licenses, etc. .................................................61
-------------
7.12. Tax Returns.....................................................61
-----------
7.13. Certain Business Representations................................61
--------------------------------
7.13.1. Labor Relations........................................61
---------------
7.13.2. Antitrust..............................................61
---------
7.13.3. Consumer Protection....................................62
-------------------
7.13.4. Burdensome Obligations.................................62
----------------------
7.13.5. Future Expenditures....................................62
-------------------
7.14. Environmental Regulations.......................................62
-------------------------
7.14.1. Environmental Compliance...............................62
------------------------
7.14.2. Environmental Litigation...............................62
------------------------
7.14.3. Hazardous Material.....................................63
------------------
7.14.4. Environmental Condition of Properties..................63
-------------------------------------
7.15. Pension Plans...................................................63
-------------
7.16. [Intentionally Omitted].........................................64
7.17. Foreign Trade Regulations; Government Regulation; Margin Stock..64
--------------------------------------------------------------
7.17.1. Foreign Trade Regulations..............................64
-------------------------
7.17.2. Government Regulation..................................64
---------------------
7.17.3. Margin Stock...........................................64
------------
7.18. Disclosure......................................................64
----------
8. Defaults..............................................................64
--------
8.1. Events of Default...............................................64
-----------------
8.1.1. Payment.................................................65
-------
-iv-
<PAGE>
8.1.2. Specified Covenants..........................................65
-------------------
8.1.3. Other Covenants..............................................65
---------------
8.1.4. Representations and Warranties...............................65
------------------------------
8.1.5. Cross Default, etc. .........................................65
------------------
8.1.6. Ownership; Liquidation; etc. ................................66
---------------------------
8.1.7. Enforceability, etc. ........................................66
-------------------
8.1.8. Judgments....................................................66
---------
8.1.9. ERISA........................................................67
-----
8.1.10. Bankruptcy, etc. ............................................67
----------------
8.1.11. Subordinated Debentures.....................................68
-----------------------
8.2. Certain Actions Following an Event of Default........................68
---------------------------------------------
8.2.1. Terminate Obligation to Extend Credit........................68
-------------------------------------
8.2.2. Specific Performance; Exercise of Rights.....................68
----------------------------------------
8.2.3. Acceleration.................................................68
------------
8.2.4. Enforcement of Payment; Credit Security; Setoff..............68
-----------------------------------------------
8.2.5. Cumulative Remedies..........................................69
-------------------
8.3. Annulment of Defaults................................................69
---------------------
8.4. Waivers..............................................................69
-------
9. Guarantees.................................................................69
----------
9.1. Guarantees of Credit Obligations.....................................69
--------------------------------
9.2. Continuing Obligation................................................70
---------------------
9.3. Waivers with Respect to Credit Obligations...........................71
------------------------------------------
9.4. Lenders' Power to Waive, etc. .......................................72
----------------------------
9.5. Information Regarding the Company, etc. .............................73
--------------------------------------
9.6. Certain Guarantor Representations....................................73
---------------------------------
9.7. Subrogation..........................................................74
-----------
9.8. Subordination........................................................74
-------------
9.9. Future Subsidiaries; Further Assurances..............................74
---------------------------------------
10.Security...................................................................75
--------
10.1. Credit Security......................................................75
---------------
10.1.1. Pledged Stock...............................................75
-------------
10.1.2. Pledged Rights..............................................75
--------------
10.1.3. Pledged Indebtedness........................................75
--------------------
10.1.4. Proceeds and Products.......................................75
---------------------
10.1.5. Excluded Property...........................................75
-----------------
10.2. [Intentionally Omitted]..............................................76
10.3. Representations, Warranties and Covenants
-----------------------------------------
with Respect to Credit Security......................................76
-------------------------------
10.3.1. Pledged Stock...............................................76
-------------
10.3.2. Pledged Indebtedness........................................76
--------------------
10.3.3. [Intentionally Omitted].....................................76
-v-
<PAGE>
10.3.4. No Liens or Restrictions on Transfer or Change of Control...77
---------------------------------------------------------
10.3.5. [Intentionally Omitted]. ...................................77
10.3.6. Trade Names.................................................77
-----------
10.3.7. [Intentionally Omitted]. ...................................77
10.3.8. Modifications to Credit Security............................77
--------------------------------
10.3.9. Delivery of Documents.......................................77
---------------------
10.3.10. Perfection of Credit Security...............................78
-----------------------------
10.4. Administration of Credit Security....................................78
---------------------------------
10.4.1. Use of Credit Security......................................78
----------------------
10.4.2. [Intentionally Omitted].....................................78
10.4.3. Pledged Securities..........................................78
------------------
10.5. Right to Realize upon Credit Security................................79
-------------------------------------
10.5.1. Assembly of Credit Security; Receiver.......................79
-------------------------------------
10.5.2. General Authority...........................................79
-----------------
10.5.3. Marshaling, etc. ...........................................80
---------------
10.5.4. Sales of Credit Security....................................80
------------------------
10.5.5. Sale Without Registration...................................81
-------------------------
10.5.6. Application of Proceeds.....................................82
-----------------------
10.6. Custody of Credit Security...........................................82
--------------------------
11. Expenses; Indemnity..................................................82
-------------------
11.1. Expenses....................................................82
--------
11.2. General Indemnity...........................................83
-----------------
11.3. Indemnity With Respect to Letters of Credit.................83
-------------------------------------------
12. Operations; Agent....................................................84
-----------------
12.1. Interests in Credits........................................84
--------------------
12.2. Agent's Authority to Act, etc. .............................84
-----------------------------
12.3. Company to Pay Agent, etc. .................................84
-------------------------
12.4. Lender Operations for Advances, Letters of Credit, etc. ....84
------------------------------------------------------
12.4.1. Advances...........................................84
--------
12.4.2. Letters of Credit..................................85
-----------------
12.4.3. Agent to Allocate Payments, etc. ..................85
-------------------------------
12.4.4. Delinquent Lenders; Nonperforming Lenders..........85
-----------------------------------------
12.5. Sharing of Payments, etc. ..................................86
------------------------
12.6. Amendments, Consents, Waivers, etc. ........................87
----------------------------------
12.7. Agent's Resignation.........................................88
-------------------
12.8. Concerning the Agent........................................88
--------------------
12.8.1. Action in Good Faith, etc. ........................88
-------------------------
12.8.2. No Implied Duties, etc. ...........................88
----------------------
12.8.3. Validity, etc. ....................................89
-------------
12.8.4. Compliance.........................................89
----------
12.8.5. Employment of Agents and Counsel...................89
--------------------------------
-vi-
<PAGE>
12.8.6. Reliance on Documents and Counsel.........................89
---------------------------------
12.8.7. Agent's Reimbursement.....................................89
---------------------
12.8.8. Agent's Fees. ............................................90
------------
12.9. Rights as a Lender.................................................90
------------------
12.10. Independent Credit Decision........................................90
---------------------------
12.11. Indemnification....................................................90
---------------
13. Successors and Assigns; Lender Assignments and Participations.............91
---------------------------------------------------
13.1. Assignments by Lenders.............................................91
----------------------
13.1.1. Assignees and Assignment Procedures.......................91
-----------------------------------
13.1.2. Terms of Assignment and Acceptance........................92
----------------------------------
13.1.3. Register..................................................93
--------
13.1.4. Acceptance of Assignment and Assumption...................93
---------------------------------------
13.1.5. Federal Reserve Bank......................................93
--------------------
13.1.6. Further Assurances........................................94
------------------
13.2. Credit Participants................................................94
-------------------
13.3. Replacement of Lender..............................................95
---------------------
14. Confidentiality...........................................................96
---------------
15. Foreign Lenders...........................................................96
---------------
16. Notices...................................................................97
-------
17. Course of Dealing; Amendments and Waivers.................................97
-----------------------------------------
18. Defeasance................................................................97
----------
19. Venue; Service of Process.................................................98
-------------------------
20. WAIVER OF JURY TRIAL......................................................98
--------------------
21. General...................................................................99
-------
-vii-
<PAGE>
EXHIBITS
<TABLE>
<CAPTION>
<S> <C>
2.1.4 - Form of Revolving Note
2.2.4 - Form of Swingline Note
5.2.1 - Form of Officer's Certificate
6.2.5 - Risk and Product Management Policy Statement dated March 1998 of
TransMontaigne Product Services Inc.
6.4.1 - Form of Covenant Compliance Certificate
7 - Disclosure Schedule
7.1 - Company and Subsidiaries
7.2.2 - Material Agreements
7.3 - Financing Debt, Certain Investments, etc.
7.14 - Hazardous Material Sites
7.15 - Multi-employer and Defined Benefit Plans
12.1 - Percentage Interests
13.1.1 - Form of Assignment and Acceptance
-viii-
</TABLE>
<PAGE>
TRANSMONTAIGNE OIL COMPANY
AMENDED AND RESTATED CREDIT AGREEMENT
This Agreement, dated as of March 31, 1998, is among TransMontaigne Oil
Company, a Delaware corporation, the Subsidiaries of TransMontaigne Oil Company
from time to time party hereto, the Lenders from time to time party hereto and
BankBoston, N.A., both in its capacity as a Lender and in its capacity as agent
for itself and the other Lenders.
RECITALS
The parties hereto are party to a Credit Agreement dated as of December 18,
1996, as amended through Amendment No. 3 thereof dated as of December 1, 1997
(as so amended and restated, the "Existing Credit Agreement").
-------------------------
The Company has requested, and the Lenders have consented to, certain
amendments of the terms of the Existing Credit Agreement.
Accordingly, the parties hereby agree that the Existing Credit Agreement is
amended and restated, effective as of March 31, 1998, subject to satisfaction of
each of the conditions set forth in Section 5.1 hereof, as follows:
1. Definitions; Certain Rules of Construction. Certain capitalized terms are
------------------------------------------
used in this Agreement and in the other Credit Documents with the specific
meanings defined below in this Section 1. Except as otherwise explicitly
specified to the contrary or unless the context clearly requires otherwise, (a)
the capitalized term "Section" refers to sections of this Agreement, (b) the
capitalized term "Exhibit" refers to exhibits to this Agreement, (c) references
to a particular Section include all subsections thereof, (d) the word
"including" shall be construed as "including without limitation", (e) accounting
terms not otherwise defined herein have the meaning provided under GAAP, (f)
terms defined in the UCC and not otherwise defined herein have the meaning
provided under the UCC, (g) references to a particular statute or regulation
include all rules and regulations thereunder and any successor statute,
regulation or rules, in each case as from time to time in effect and (h)
references to a particular Person include such Person's successors and assigns
to the extent not prohibited by this Agreement and the other Credit Documents.
References to "the date hereof" mean the date first set forth above.
1.1 "Accumulated Benefit Obligations" means the actuarial present value of
-------------------------------
the accumulated benefit obligations under any Plan, calculated in accordance
with Statement No. 87 of the Financial Accounting Standards Board.
1.2 "Affected Lender" is defined in Section 13.3.
---------------
1.3 "Affiliate" means, with respect to the Company (or any other specified
---------
Person), any other Person directly or indirectly controlling, controlled by or
under direct or indirect common
<PAGE>
control with the Company, and shall include (a) any executive officer or
director or general partner of the Company and (b) any Person of which the
Company or any Affiliate (as defined in clause (a) above) of the Company shall,
directly or indirectly, beneficially own either (i) at least 25% of the
outstanding equity securities having the general power to vote or (ii) at least
25% of all equity interests; provided, however, that Lion Oil Company, an
-------- -------
Arkansas corporation, shall not be deemed to be an Affiliate of the Company or
of any Subsidiary of the Company under clause (b) of this definition, unless the
Company or such Subsidiary shall, directly or indirectly, beneficially own
either (x) at least 30% of the outstanding equity securities having the general
power to vote of Lion Oil Company or (y) at least 30% of all equity interests in
Lion Oil Company.
1.4 "Agent" means BankBoston in its capacity as agent for the Lenders
-----
hereunder, as well as its successors and assigns in such capacity pursuant to
Section 12.7.
1.5 "Applicable Margin" means with respect to any portion of the Loan
-----------------
subject to a Eurodollar Pricing Option:
(a) on any date on which the Leverage Ratio is less than 25% or on
which the Company has a senior unsecured long-term debt rating issued and
maintained by S&P or Moody's ("Senior Debt Rating") equal to or higher than
------------------
BBB- from S&P or Baa3 from Moody's ("Level I"), seven-twentieths of one
-------
percent (.350%);
(b) on any date on which the Leverage Ratio is equal to or greater
than 25% and less than 35% or on which the Company has a Senior Debt Rating
equal to BB+ from S&P or Ba1 from Moody's ("Level II"), nine-twentieths of
--------
one percent (.450%);
(c) on any date on which the Leverage Ratio is equal to or greater
than 35% and less than 45% or on which the Company has a Senior Debt Rating
equal to BB from S&P or Ba2 from Moody's ("Level III"), eleven-twentieths
---------
of one percent (.550%);
(d) on any date on which the Leverage Ratio is equal to or greater
than 45% and less than 55% or on which the Company has a Senior Debt Rating
equal to or lower than BB- from S&P or Ba3 from Moody's ("Level IV"),
--------
three-quarters of one percent (.750%);
(e) on any date on which the Leverage Ratio is equal to or greater
than 55% and less than 60% ("Level V"), one percent (1.000%); and
-------
(f) on any date on which the Leverage Ratio is equal to or greater
than 60% ("Level VI"), one percent (1.000%).
--------
Notwithstanding the foregoing, in the event that on any date (i) the Level
indicated by the Leverage Ratio and the Level indicated by the Senior Debt
Rating (such Levels to be determined as indicated in the next sentence in case
the Company receives a split rating from S&P and
-2-
<PAGE>
Moody's) are one Level apart, the Applicable Margin shall be determined based on
the lower of such two Levels and (ii) the Level indicated by the Leverage Ratio
and the Level indicated by the Senior Debt Rating are more than one Level apart,
the Applicable Margin shall be determined based on the Level one below the
higher of such two Levels. In the event that on any date (x) the Level indicated
by the S&P rating and the Level indicated by the Moody's rating are one Level
apart, the Level indicated by the Senior Debt Rating to be used for purposes of
the preceding sentence shall be the lower of such two Levels and (y) the Level
indicated by the S&P rating and the Level indicated by the Moody's rating are
more than one Level apart, the Level indicated by the Senior Debt Rating to be
used for purposes of the preceding sentence shall be the Level one below the
higher of such two Levels.
By way of example, if the Company has a Senior Debt Rating of BBB- from S&P
and a Senior Debt Rating of Ba1 from Moody's, the Level indicated by the Senior
Debt Rating to be used for purposes of determining the Applicable Margin shall
be Level I and if the Company has a Senior Debt Rating of BBB- from S&P and a
Senior Debt Rating of Ba3 from Moody's, the Level indicated by the Senior Debt
Rating to be used for purposes of determining the Applicable Margin shall be
Level III. Similarly, if the Leverage Ratio is less than 25% such that the
Level indicated by the Leverage Ratio is Level I and the Level indicated by the
Senior Debt Rating is Level II, the Applicable Margin shall be the pricing
determined by Level I and if the Leverage Ratio is less than 25% such that the
Level indicated by the Leverage Ratio is Level I and the Level indicated by the
Senior Debt Rating is Level IV, the Applicable Margin shall be the pricing
determined by Level III.
For purposes of calculating the Applicable Margin, (i) the Leverage Ratio
shall be determined (A) as at the end of the most recent January, April, July or
October for which financial statements have been furnished (or are required to
have been furnished) by the Company to the Lenders pursuant to Section 6.4.1,
6.4.2 or 7.2.1 and (B) upon the consummation of any acquisition (giving effect
to such acquisition and the financing thereof) in connection with which the
Company is required to provide to the Lenders a certificate of a Financial
Officer pursuant to Section 6.9 and (ii) any adjustment in the Applicable Margin
shall be prospective and shall take effect on the fifth Business Day following
either the date upon which the financial statements referred to in the foregoing
clause (i) are furnished (or are required to be furnished) by the Company to the
Lenders pursuant to Section 6.4.1 or 6.4.2 or the date of consummation of an
acquisition referred to in the foregoing clause (i), as the case may be.
1.6 "Applicable Rate" means, at any date, the sum of:
---------------
(a) (i) with respect to each portion of the Revolving Loan
subject to a Eurodollar Pricing Option, the sum of the Applicable
Margin plus the Eurodollar Rate with respect to such Eurodollar
----
Pricing Option; or
(ii) with respect to each other portion of the Revolving Loan,
the Base Rate;
-3-
<PAGE>
plus (b) an additional 2% effective on the day the Agent notifies
----
the Company that the interest rates hereunder are increasing as a
result of the occurrence and continuance of an Event of Default until
the earlier of such time as (i) such Event of Default is no longer
continuing or (ii) such Event of Default is deemed no longer to exist,
in each case pursuant to Section 8.3.
1.7 "Assignee" is defined in Section 13.1.1.
--------
1.8 "Assignment and Acceptance" is defined in Section 13.1.1.
-------------------------
1.9 "BankBoston" means BankBoston, N.A.
----------
1.10 "BankBoston Fee Letter" is defined in Section 5.1.3.
---------------------
1.11 "Banking Day" means any day other than Saturday, Sunday or a day on
-----------
which banks in Boston, Massachusetts are authorized or required by law or other
governmental action to close and, if such term is used with reference to a
Eurodollar Pricing Option, any day on which dealings are effected in the
Eurodollars in question by first-class banks in the inter-bank Eurodollar
markets in New York, New York.
1.12 "Bankruptcy Code" means Title 11 of the United States Code.
---------------
1.13 "Bankruptcy Default" means an Event of Default referred to in Section
------------------
8.1.10.
1.14 "Base Rate" means, on any day, the greater of (a) the rate of interest
---------
announced by BankBoston at the Boston Office as its Base Rate or (b) the sum of
1/2% plus the Federal Funds Rate.
----
1.15 "Boston Office" means the principal banking office of BankBoston in
-------------
Boston, Massachusetts.
1.16 "By-laws" means all written by-laws, rules, regulations and all other
-------
documents relating to the governance of any Person other than an individual, or
interpretive of the Charter of such Person, all as from time to time in effect.
1.17 "Capitalized Lease" means any lease which is required to be
-----------------
capitalized on the balance sheet of the lessee in accordance with GAAP,
including Statement Nos. 13 and 98 of the Financial Accounting Standards Board.
1.18 "Capitalized Lease Obligations" means the amount of the liability
-----------------------------
reflecting the aggregate discounted amount of future payments under all
Capitalized Leases calculated in accordance with GAAP, including Statement Nos.
13 and 98 of the Financial Accounting Standards Board.
-4-
<PAGE>
1.19 "Cash Equivalents" means:
----------------
(a) negotiable certificates of deposit, time deposits (including sweep
accounts), demand deposits and bankers' acceptances having a maturity of
nine months or less and issued by any United States financial institution
having capital and surplus and undivided profits aggregating at least
$100,000,000 and rated at least Prime-1 by Moody's or A-1 by S&P or issued
by any Lender;
(b) corporate obligations having a maturity of nine months or less and
rated at least Prime-1 by Moody's or A-1 by S&P or issued by any Lender;
(c) any direct obligation of the United States of America or any
agency or instrumentality thereof, or of any state or municipality thereof,
(i) which has a remaining maturity at the time of purchase of not more than
one year or which is subject to a repurchase agreement with any Lender (or
any other financial institution referred to in clause (a) above)
exercisable within one year from the time of purchase and (ii) which, in
the case of obligations of any state or municipality, is rated at least Aa
by Moody's or AA by S&P; and
(d) any mutual fund or other pooled investment vehicle rated at least
Aa by Moody's or AA by S&P which invests principally in obligations
described above.
1.20 "CERCLA" means the federal Comprehensive Environmental Response,
------
Compensation and Liability Act of 1980.
1.21 "CERCLIS" means the federal Comprehensive Environmental Response
-------
Compensation Liability Information System List (or any successor document)
promulgated under CERCLA.
1.22 "Charter" means the articles of organization, certificate of
-------
incorporation, statute, constitution, joint venture agreement, partnership
agreement, trust indenture, limited liability company agreement or other charter
document of any Person other than an individual, each as from time to time in
effect.
1.23 "Closing Date" means the Restatement Date and each other date on which
------------
any extension of credit is made pursuant to Section 2.1, 2.2 or 2.4.
1.24 "Code" means the federal Internal Revenue Code of 1986, as amended.
----
1.25 "Commitment" means, with respect to any Lender, such Lender's
----------
obligations to extend the credits contemplated by the Credit Documents. The
original Commitments are set forth in Exhibit 12.1 and the current Commitments
are recorded from time to time in the Register.
-5-
<PAGE>
1.26 "Company" means TransMontaigne Oil Company, a Delaware corporation.
-------
1.27 "Computation Covenants" means Sections 6.5, 6.6.7, 6.6.16, 6.6.17,
---------------------
6.9.5, 6.9.7, 6.10.2, 6.11.1, 6.12.2 and 6.19.
1.28 "Consolidated" and "Consolidating", when used with reference to any
------------ -------------
term, mean that term as applied to the accounts of the Company (or other
specified Person) and all of its Subsidiaries (or other specified group of
Persons), or such of its Subsidiaries as may be specified, consolidated (or
combined) or consolidating (or combining), as the case may be, in accordance
with GAAP and with appropriate deductions for minority interests in
Subsidiaries.
1.29 "Consolidated Current Liabilities" means, at any date, all amounts
--------------------------------
that are or should be carried as current liabilities on the balance sheet of the
Company and its Subsidiaries determined in accordance with GAAP on a
Consolidated basis, including the current portion of all Funded Debt.
1.30 "Consolidated Income from Operations" means, for any period, gross
-----------------------------------
revenues of the Company and its Subsidiaries, determined in accordance with GAAP
on a Consolidated basis, minus the sum of (a) the cost of operations of the
-----
Company and its Subsidiaries for such period, determined in accordance with GAAP
on a Consolidated basis, and (b) the selling, general and administrative
expenses of the Company and its Subsidiaries for such period, determined in
accordance with GAAP on a Consolidated basis.
1.31 "Consolidated Net Income" means, for any period, the net income (or
-----------------------
loss) of the Company and its Subsidiaries, determined in accordance with GAAP on
a Consolidated basis; provided, however, that Consolidated Net Income shall not
-------- -------
include:
(a) the income (or loss) of any Person accrued prior to the date such
Person becomes a Subsidiary or is merged into or consolidated with the
Company or any of its Subsidiaries;
(b) the income (or loss) of any Person (other than a Subsidiary) in
which the Company or any of its Subsidiaries has an ownership interest;
provided, however, that (i) Consolidated Net Income shall include amounts
-------- -------
in respect of the income of such Person when actually received in cash by
the Company or such Subsidiary in the form of dividends or similar
Distributions and (ii) Consolidated Net Income shall be reduced by the
aggregate amount of all Investments, regardless of the form thereof, made
by the Company or any of its Subsidiaries in such Person for the purpose of
funding any deficit or loss of such Person;
-6-
<PAGE>
(c) all amounts included in computing such net income (or loss) in
respect of the write-up of any asset or the retirement of any Indebtedness
or equity at less than face value after April 30, 1997;
(d) extraordinary and nonrecurring gains;
(e) the income of any Subsidiary to the extent the payment of such
income in the form of a Distribution or repayment of Indebtedness to the
Company or a Wholly Owned Subsidiary is not permitted, whether on account
of any Charter or By-law restriction, any agreement, instrument, deed or
lease or any law, statute, judgment, decree or governmental order, rule or
regulation applicable to such Subsidiary; and
(f) any after-tax gains or losses attributable to returned surplus
assets of any Plan.
1.32 "Consolidated Net Tangible Assets" means at any date the total of:
--------------------------------
(a) the total assets of the Company and its Subsidiaries determined
in accordance with GAAP on a Consolidated basis;
minus (b) Consolidated Current Liabilities;
-----
minus (c) all other liabilities of the Company and its Subsidiaries
-----
determined in accordance with GAAP on a Consolidated basis other than
liabilities for Funded Debt;
minus (d) the amount of intangible assets carried on the balance sheet of
-----
the Company and its Subsidiaries determined in accordance with GAAP on a
Consolidated basis, including goodwill, patents, patent applications,
copyrights, trademarks, tradenames, research and development expense,
organizational expense, annualized debt discount and expense, deferred
financing charges and debt acquisition costs;
minus (e) the amount at which any minority interest in a Subsidiary appears
-----
as a liability on the Consolidated balance sheet of the Company and its
Subsidiaries.
1.33 "Consolidated Tangible Net Worth" means, at any date, the total of:
-------------------------------
(a) stockholders' equity of the Company and its Subsidiaries
determined in accordance with GAAP on a Consolidated basis, excluding the
effect of any foreign currency translation adjustments;
minus (b) the amount by which such stockholders' equity has been increased
-----
after April 30, 1997 by the items described in clauses (a) through (f) of
the definition of Consolidated Net Income;
-7-
<PAGE>
minus (c) to the extent not already deducted from the amount in clause (a)
-----
above, (i) treasury stock, (ii) receivables due from an employee stock
ownership plan and (iii) Guarantees of Indebtedness incurred by an employee
stock ownership plan;
minus (d) the amount of intangible assets carried on the balance sheet of
-----
the Company and its Subsidiaries determined in accordance with GAAP on a
Consolidated basis, including goodwill, patents, patent applications,
copyrights, trademarks, tradenames, research and development expense,
organizational expense, unamortized debt discount and expense, deferred
financing charges and debt acquisition costs.
1.34 "Credit Documents" means:
----------------
(a) this Agreement, the Notes, each Letter of Credit, each draft
presented or accepted under a Letter of Credit, the BankBoston Fee Letter,
the Intercreditor Agreement, the Pledge Agreement and each Interest Rate
Protection Agreement provided by a Lender (or an Affiliate of a Lender) to
the Company or any of its Subsidiaries, each as from time to time in
effect;
(b) all financial statements, reports, notices, mortgages,
assignments, UCC financing statements or certificates delivered to the
Agent or any of the Lenders by the Company, any of its Subsidiaries or any
other Obligor in connection herewith or therewith; and
(c) any other present or future agreement or instrument from time to
time entered into among the Company, any of its Subsidiaries or any other
Obligor, on one hand, and the Agent, any Letter of Credit Issuer or all the
Lenders, on the other hand, relating to, amending or modifying this
Agreement or any other Credit Document referred to above or which is stated
to be a Credit Document, each as from time to time in effect.
1.35 "Credit Obligations" means all present and future liabilities,
------------------
obligations and Indebtedness of the Company, any of its Subsidiaries or any
other Obligor owing to the Agent or any Lender under or in connection with this
Agreement or any other Credit Document, including without limitation obligations
in respect of principal, interest, reimbursement obligations under Letters of
Credit and Interest Rate Protection Agreements provided by a Lender (or an
Affiliate of a Lender), commitment fees, facility fees, Letter of Credit fees,
amounts provided for in Sections 3.2.4, 3.5, 3.6, 3.7, 3.8 and 11, amounts
payable under the BankBoston Fee Letter and other fees, charges, indemnities and
expenses from time to time owing hereunder or under any other Credit Document
(whether accruing before or after a Bankruptcy Default).
1.36 "Credit Participant" is defined in Section 13.2.
------------------
1.37 "Credit Security" means all assets now or from time to time hereafter
---------------
subjected to a security interest, mortgage or charge (or intended or required so
to be subjected pursuant to this
-8-
<PAGE>
Agreement or any other Credit Document) to secure the payment or performance of
any of the Credit Obligations, including the assets described in Section 10.1.
1.38 "Default" means any Event of Default and any event or condition which
-------
with the passage of time or giving of notice, or both, would become an Event of
Default and the filing against the Company, any of its Subsidiaries or any other
Obligor of a petition commencing an involuntary case under the Bankruptcy Code.
1.39 "Delinquency Period" is defined in Section 12.4.4.
------------------
1.40 "Delinquent Lender" is defined in Section 12.4.4.
-----------------
1.41 "Delinquent Payment" is defined in Section 12.4.4.
------------------
1.42 "Distribution" means, with respect to the Company (or other specified
------------
Person):
(a) the declaration or payment of any dividend or distribution,
including dividends payable in shares of capital stock of or other equity
interests in the Company (or such specified Person), on or in respect of
any shares of any class of capital stock of or other equity interests in
the Company (or such specified Person);
(b) the purchase, redemption or other retirement of any shares of any
class of capital stock of or other equity interest in the Company (or such
specified Person) or of options, warrants or other rights for the purchase
of such shares, directly, indirectly through a Subsidiary or otherwise;
(c) any other distribution on or in respect of any shares of any
class of capital stock of or equity or other beneficial interest in the
Company (or such specified Person);
(d) any payment of principal or interest with respect to, or any
purchase, redemption or defeasance of, any Indebtedness of the Company (or
such specified Person) which by its terms or the terms of any agreement is
subordinated to the payment of the Credit Obligations; and
(e) any loan or advance by the Company (or such specified Person) to,
or any other Investment by the Company (or such specified Person) in, the
holder of any shares of any class of capital stock of or equity interest in
the Company (or such specified Person), or any Affiliate of such holder;
provided, however, that the term "Distribution" shall not include (i) dividends
- -------- -------
payable in perpetual common stock of or other similar equity interests in the
Company (or such specified Person), (ii) payments in the ordinary course of
business in respect of (A) reasonable compensation paid to employees, officers
and directors or (B) advances to employees for travel expenses, drawing
-9-
<PAGE>
accounts and similar expenditures, (iii) any loan or advance by the Company to
any Guarantor or (iv) any other loan or advance by the Company which constitutes
an Investment permitted under Section 6.9.5, 6.9.6 or 6.9.7.
1.43 "Environmental Laws" means all applicable federal, state or local
------------------
statutes, laws, ordinances, codes, rules, regulations and guidelines (including
consent decrees and administrative orders) relating to public health and safety
and protection of the environment, including OSHA.
1.44 "ERISA" means the federal Employee Retirement Income Security Act of
-----
1974.
1.45 "ERISA Group Person" means the Company, any Subsidiary of the Company
------------------
and any Person which is a member of the controlled group or under common control
with the Company or any Subsidiary within the meaning of section 414 of the Code
or section 4001(a)(14) of ERISA.
1.46 "Eurodollars" means, with respect to any Lender, deposits of United
-----------
States Funds in a non-United States office or an international banking facility
of such Lender.
1.47 "Eurodollar Basic Rate" means, for any Eurodollar Interest Period, the
---------------------
sum of the Eurodollar Basic Reference Rates furnished by the Reference Lenders
to the Agent divided by the number of such Reference Lenders.
1.48 "Eurodollar Basic Reference Rate" means, for any Eurodollar Interest
-------------------------------
Period and any Reference Lender, the rate of interest at which Eurodollar
deposits in an amount comparable to the Percentage Interest of such Reference
Lender in the portion of the Loan as to which a Eurodollar Pricing Option has
been elected and which have a term corresponding to such Eurodollar Interest
Period are offered to such Reference Lender by first class banks in the inter-
bank Eurodollar market for delivery in immediately available funds at a
Eurodollar Office on the first day of such Eurodollar Interest Period as
determined by such Reference Lender at approximately 10:00 a.m. (Boston time)
two Banking Days prior to the date upon which such Eurodollar Interest Period is
to commence (which determination by such Reference Lender shall, in the absence
of demonstrable error, be conclusive) and as furnished promptly thereafter by
such Reference Lender to the Agent.
1.49 "Eurodollar Interest Period" means any period, selected as provided in
--------------------------
Section 3.2.1, of one, two, three or six months, commencing on any Banking Day
and ending on the corresponding date in the subsequent calendar month so
indicated (or, if such subsequent calendar month has no corresponding date, on
the last day of such subsequent calendar month); provided, however, that subject
-------- -------
to Section 3.2.3, if any Eurodollar Interest Period so selected would otherwise
begin or end on a date which is not a Banking Day, such Eurodollar Interest
Period shall instead begin or end, as the case may be, on the immediately
preceding or succeeding Banking Day as determined by the Agent in accordance
with the then current banking practice in the inter-bank Eurodollar market with
respect to Eurodollar deposits at the applicable Eurodollar
-10-
<PAGE>
Office, which determination by the Agent shall, in the absence of demonstrable
error, be conclusive.
1.50 "Eurodollar Office" means such non-United States office or
-----------------
international banking facility of any Lender as the Lender may from time to time
select.
1.51 "Eurodollar Pricing Options" means the options granted pursuant to
--------------------------
Section 3.2.1 to have the interest on any portion of the Loan computed on the
basis of a Eurodollar Rate.
1.52 "Eurodollar Rate" for any Eurodollar Interest Period means the rate,
---------------
rounded upward to the nearest 1/100%, obtained by dividing (a) the Eurodollar
Basic Rate for such Eurodollar Interest Period by (b) an amount equal to 1 minus
-----
the Eurodollar Reserve Rate; provided, however, that if at any time during such
-------- -------
Eurodollar Interest Period the Eurodollar Reserve Rate applicable to any
outstanding Eurodollar Pricing Option changes, the Eurodollar Rate for such
Eurodollar Interest Period shall automatically be adjusted to reflect such
change, effective as of the date of such change.
1.53 "Eurodollar Reserve Rate" means the stated maximum rate (expressed as
-----------------------
a decimal) of all reserves (including any basic, supplemental, marginal or
emergency reserve or any reserve asset), if any, as from time to time in effect,
required by any Legal Requirement to be maintained by any Lender against (a)
"Eurocurrency liabilities" as specified in Regulation D of the Board of
Governors of the Federal Reserve System applicable to Eurodollar Pricing
Options, (b) any other category of liabilities that includes Eurodollar deposits
by reference to which the interest rate on portions of the Loan subject to
Eurodollar Pricing Options is determined, (c) the principal amount of or
interest on any portion of the Loan subject to a Eurodollar Pricing Option or
(d) any other category of extensions of credit, or other assets, that includes
loans subject to a Eurodollar Pricing Option by a non-United States office of
any of the Lenders to United States residents.
1.54 "Event of Default" is defined in Section 8.1.
----------------
1.55 "Exchange Act" means the federal Securities Exchange Act of 1934.
------------
1.56 "Existing Credit Agreement" is defined in the Recitals to this
-------------------------
Agreement.
1.57 "FACA" means the Federal Assignment of Claims Act as set forth in 31
----
U.S.C. (S) 3727 and 41 U.S.C. (S) 15.
1.58 "Facility Fee Rate" means:
-----------------
(a) on any date on which the Leverage Ratio is less than 25% or on
which the Company has a Senior Debt Rating equal to or higher than BBB-
from S&P or Baa3 from Moody's ("Level I"), three-twentieths of one percent
-------
(.150%);
-11-
<PAGE>
(b) on any date on which the Leverage Ratio is equal to or greater
than 25% and less than 35% or on which the Company has a Senior Debt Rating
equal to BB+ from S&P or Ba1 from Moody's ("Level II"), seven-fortieths of
--------
one percent (.175%);
(c) on any date on which the Leverage Ratio is equal to or greater
than 35% and less than 45% or on which the Company has a Senior Debt Rating
equal to BB from S&P or Ba2 from Moody's ("Level III"), two-tenths of one
---------
percent (.200%);
(d) on any date on which the Leverage Ratio is equal to or greater
than 45% and less than 55% or on which the Company has a Senior Debt Rating
equal to or lower than BB- from S&P or Ba3 from Moody's ("Level IV"), one-
--------
quarter of one percent (.250%);
(e) on any date on which the Leverage Ratio is equal to or greater
than 55% and less than 60% ("Level V"), three-eighths of one percent
-------
(.375%); and
(f) on any date on which the Leverage Ratio is equal to or greater
than 60% ("Level VI"), one-half of one percent (.500%).
--------
Notwithstanding the foregoing, in the event that on any date (i) the Level
indicated by the Leverage Ratio and the Level indicated by the Senior Debt
Rating (such Levels to be determined as indicated in the next sentence in case
the Company receives a split rating from S&P and Moody's) are one Level apart,
the Facility Fee Rate shall be determined based on the lower of such two Levels
and (ii) the Level indicated by the Leverage Ratio and the Level indicated by
the Senior Debt Rating are more than one Level apart, the Facility Fee Rate
shall be determined based on the Level one below the higher of such two Levels.
In the event that on any date (x) the Level indicated by the S&P rating and the
Level indicated by the Moody's rating are one Level apart, the Level indicated
by the Senior Debt Rating to be used for purposes of the preceding sentence
shall be the lower of such two Levels and (y) the Level indicated by the S&P
rating and the Level indicated by the Moody's rating are more than one Level
apart, the Level indicated by the Senior Debt Rating to be used for purposes of
the preceding sentence shall be the Level one below the higher of such two
Levels.
By way of example, if the Company has a Senior Debt Rating of BBB- from S&P
and a Senior Debt Rating of Ba1 from Moody's, the Level indicated by the Senior
Debt Rating to be used for purposes of determining the Facility Fee Rate shall
be Level I and if the Company has a Senior Debt Rating of BBB- from S&P and a
Senior Debt Rating of Ba3 from Moody's, the Level indicated by the Senior Debt
Rating to be used for purposes of determining the Facility Fee Rate shall be
Level III. Similarly, if the Leverage Ratio is less than 25% such that the
Level indicated by the Leverage Ratio is Level I and the Level indicated by the
Senior Debt Rating is Level II, the Facility Fee Rate shall be the pricing
determined by Level I and if the Leverage Ratio is less than 25% such that the
Level indicated by the Leverage Ratio is Level I and the Level indicated by the
Senior Debt Rating is Level IV, the Facility Fee Rate shall be the pricing
determined by Level III.
-12-
<PAGE>
For purposes of calculating the Facility Fee Rate, (i) the Leverage Ratio
shall be determined (A) as at the end of the most recent January, April, July or
October for which financial statements have been furnished (or are required to
have been furnished) by the Company to the Lenders pursuant to Section 6.4.1,
6.4.2 or 7.2.1 and (B) upon the consummation of any acquisition (giving effect
to such acquisition and the financing thereof) in connection with which the
Company is required to provide to the Lenders a certificate of a Financial
Officer pursuant to Section 6.9 and (ii) any adjustment in the Facility Fee Rate
shall be prospective and shall take effect on the fifth Business Day following
either the date upon which the financial statements referred to in the foregoing
clause (i) are furnished (or are required to be furnished) by the Company to the
Lenders pursuant to Section 6.4.1 or 6.4.2 or the date of consummation of an
acquisition referred to in the foregoing clause (i), as the case may be.
1.59 "Federal Funds Rate" means, for any day, the rate equal to the
------------------
weighted average (rounded upward to the nearest 1/8%) of the rates on overnight
federal funds transactions with members of the Federal Reserve System arranged
by federal funds brokers, (a) as such weighted average is published for such day
(or, if such day is not a Banking Day, for the immediately preceding Banking
Day) by the Federal Reserve Bank of New York or (b) if such rate is not so
published for such Banking Day, as determined by the Agent using any reasonable
means of determination. Each determination by the Agent of the Federal Funds
Rate shall, in the absence of demonstrable error, be conclusive.
1.60 "Final Maturity Date" means December 31, 2002.
-------------------
1.61 "Financial Officer" of the Company (or other specified Person) means
-----------------
its chief executive officer, chief financial officer, chief operating officer,
chairman, president, treasurer or any of its vice presidents whose primary
responsibility is for its financial affairs, all of whose incumbency and
signatures have been certified to the Agent by the secretary or other
appropriate attesting officer of the Company (or such specified Person).
1.62 "Financing Debt" means each of the items described in clauses (a)
--------------
through (f) of the definition of the term "Indebtedness".
1.63 "Foreign Trade Regulations" means (a) any act that prohibits or
-------------------------
restricts, or empowers the President or any executive agency of the United
States of America to prohibit or restrict, exports to or financial transactions
with any foreign country or foreign national, (b) the regulations with respect
to certain prohibited foreign trade transactions set forth at 22 C.F.R. Parts
120-130 and 31 C.F.R. Part 500 and (c) any order, regulation, ruling,
interpretation, direction, instruction or notice relating to any of the
foregoing.
1.64 "Funded Debt" means all Indebtedness of the Company or other specified
-----------
Person which is payable more than one year from the date of creation thereof and
shall include (a) current maturities of such Indebtedness and (b) all
Indebtedness consisting of reimbursement obligations
-13-
<PAGE>
with respect to letters of credit other than letters of credit issued to finance
inventory purchases or to secure other debt appearing on the balance sheet of
the obligor.
1.65 "Funding Liability" means (a) any Eurodollar deposit which was used
-----------------
(or deemed by Section 3.2.6 to have been used) to fund any portion of the Loan
subject to a Eurodollar Pricing Option, and (b) any portion of the Loan subject
to a Eurodollar Pricing Option funded (or deemed by Section 3.2.6 to have been
funded) with the proceeds of any such Eurodollar deposit.
1.66 "GAAP" means generally accepted accounting principles as from time to
----
time in effect, including the statements and interpretations of the United
States Financial Accounting Standards Board and any predecessor or successor
entity.
1.67 "Guarantee" means, with respect to the Company (or other specified
---------
Person):
(a) any guarantee by the Company (or such specified Person), of the
payment or performance of, or any contingent obligation by the Company (or
such specified Person), in respect of, any Indebtedness or other obligation
of any primary obligor;
(b) any other arrangement whereby credit is extended to a primary
obligor on the basis of any promise or undertaking of the Company (or such
specified Person), including any binding "comfort letter" or "keep well
agreement" written by the Company (or such specified Person), to a creditor
or prospective creditor of such primary obligor, to (i) pay the
Indebtedness of such primary obligor, (ii) purchase an obligation owed by
such primary obligor, (iii) pay for the purchase or lease of assets or
services regardless of the actual delivery thereof or (iv) maintain the
capital, working capital, solvency or general financial condition of such
primary obligor;
(c) any liability of the Company (or such specified Person), as a
general partner of a partnership in respect of Indebtedness or other
obligations of such partnership;
(d) any liability of the Company (or such specified Person) as a
joint venturer of a joint venture in respect of Indebtedness or other
obligations of such joint venture; and
(e) reimbursement obligations of the Company (or such specified
Person) with respect to letters of credit, bankers acceptances, surety
bonds, other financial guarantees and Interest Rate Protection Agreements,
whether or not any of the foregoing are reflected on the balance sheet of the
Company (or such specified Person) or in a footnote thereto; provided, however,
-------- -------
that the term "Guarantee" shall not include endorsements for collection or
deposit in the ordinary course of business. The amount of any Guarantee and the
amount of Indebtedness resulting from such Guarantee shall be the maximum amount
that the guarantor may become obligated to pay in respect of the obligations
(whether or not such obligations are outstanding at the time of computation).
-14-
<PAGE>
1.68 "Guarantor" means each Subsidiary listed on the signature page hereto
---------
or which subsequently becomes party to this Agreement as a Guarantor.
1.69 "Hazardous Material" means any pollutant, toxic or hazardous material
------------------
or waste, including any "hazardous substance" or "pollutant" or "contaminant" as
defined in section 101(14) of CERCLA or any other Environmental Law or regulated
as toxic or hazardous under RCRA or any other Environmental Law.
1.70 "Indebtedness" means all obligations, contingent or otherwise, which
------------
in accordance with GAAP are required to be classified upon the balance sheet of
the Company (or other specified Person) as liabilities, but in any event
including (without duplication):
(a) borrowed money;
(b) indebtedness evidenced by notes, debentures or similar
instruments;
(c) Capitalized Lease Obligations;
(d) the deferred purchase price of assets or securities, including
related noncompetition, consulting and stock repurchase obligations (other
than ordinary trade accounts payable within six months after the incurrence
thereof in the ordinary course of business);
(e) mandatory redemption or dividend obligations on capital stock (or
other equity);
(f) reimbursement obligations with respect to letters of credit,
bankers acceptances, surety bonds, other financial guarantees and Interest
Rate Protection Agreements;
(g) unfunded pension liabilities;
(h) obligations that are immediately and directly due and payable out
of the proceeds of or production from property;
(i) liabilities secured by any Lien existing on property owned or
acquired by the Company (or such specified Person), whether or not the
liability secured thereby shall have been assumed; and
(j) all Guarantees in respect of Indebtedness of others.
1.71 "Indemnified Party" is defined in Section 11.2.
-----------------
-15-
<PAGE>
1.72 "Intercreditor Agreement" means the Intercreditor Agreement dated as
-----------------------
of April 17, 1997, as from time to time in effect, among the Company, the
Guarantors, the Lenders, the Agent and Prudential.
1.73 "Interest Rate Protection Agreement" means any interest rate swap,
----------------------------------
interest rate cap, interest rate hedge or other contractual arrangement that
converts variable interest rates into fixed interest rates, fixed interest rates
into variable interest rates or other similar arrangements.
1.74 "Investment" means, with respect to the Company (or other specified
----------
Person):
(a) any share of capital stock, partnership or other equity interest,
evidence of Indebtedness or other security issued by any other Person to
the Company (or such other specified Person);
(b) any loan, advance or extension of credit to, or contribution to
the capital of, any other Person;
(c) any Guarantee of the Indebtedness of any other Person;
(d) any acquisition of all or any part of the business of any other
Person or the assets comprising such business or part thereof; and
(e) any other similar investment.
The investments described in the foregoing clauses (a) through (e) shall be
included in the term "Investment" whether they are made or acquired by purchase,
exchange, issuance of stock or other securities, merger, reorganization or any
other method; provided, however, that the term "Investment" shall not include
-------- -------
(i) current trade and customer accounts receivable for property leased, goods
furnished or services rendered in the ordinary course of business and payable in
accordance with customary trade terms, (ii) advances and prepayments to
suppliers for property leased, goods furnished and services rendered in the
ordinary course of business, (iii) advances to employees for travel expenses,
drawing accounts and similar expenditures, (iv) stock or other securities
acquired in connection with the satisfaction or enforcement of Indebtedness or
claims due to the Company (or such specified Person) or as security for any such
Indebtedness or claim or (v) demand deposits in banks or similar financial
institutions.
In determining the amount of outstanding Investments:
(A) the amount of any Investment shall be the cost thereof minus any
-----
returns of capital in cash on such Investment (determined in accordance
with GAAP without regard to amounts realized as income on such Investment);
-16-
<PAGE>
(B) the amount of any Investment in respect of a purchase described
in clause (d) above shall be increased by the amount of any Indebtedness
assumed in connection with such purchase or secured by any asset acquired
in such purchase (whether or not any Indebtedness is assumed) or for which
any Person that becomes a Subsidiary is liable on the date on which the
securities of such Person are acquired; and
(C) no Investment shall be increased as the result of an increase in
the undistributed retained earnings of the Person in which the Investment
was made or decreased as a result of an equity interest in the losses of
such Person.
1.75 "Legal Requirement" means any present or future requirement imposed
-----------------
upon any of the Lenders or the Company and its Subsidiaries by any law, statute,
rule, regulation, directive, order, decree, guideline (or any interpretation
thereof by courts or of administrative bodies) of the United States of America,
or any jurisdiction in which any Eurodollar Office is located or any state or
political subdivision of any of the foregoing, or by any board, governmental or
administrative agency, central bank or monetary authority of the United States
of America, any jurisdiction in which any Eurodollar Office is located, or any
political subdivision of any of the foregoing. Any such requirement imposed on
any of the Lenders not having the force of law shall be deemed to be a Legal
Requirement if such Lender reasonably believes that compliance therewith is in
the best interest of such Lender.
1.76 "Lender" means each of the Persons listed as lenders on the signature
------
page hereto, including BankBoston in its capacity as a Lender and such other
Persons who may from time to time own a Percentage Interest in the Credit
Obligations, but the term "Lender" shall not include any Credit Participant.
1.77 "Lending Officer" means such individuals whom the Agent may designate
---------------
by notice to the Company from time to time as an officer who may receive
telephone requests for borrowings under Sections 2.1.3 and 2.2.2.
1.78 "Letter of Credit" is defined in Section 2.4.1.
----------------
1.79 "Letter of Credit Exposure" means, at any date, the sum of (a) the
-------------------------
aggregate face amount of all drafts that may then or thereafter be presented by
beneficiaries under all Letters of Credit then outstanding, plus (b) the
----
aggregate face amount of all drafts that the Letter of Credit Issuer has
previously accepted under Letters of Credit but has not paid.
1.80 "Letter of Credit Fee Rate" means on any date an amount equal to the
-------------------------
Applicable Margin.
1.81 "Letter of Credit Issuer" means, for any Letter of Credit, BankBoston
-----------------------
or, in the event BankBoston does not for any reason issue a requested Letter of
Credit, another Lender designated by the Agent to issue such Letter of Credit in
accordance with Section 2.4.
-17-
<PAGE>
1.82 "Leverage Ratio" means on any date the quotient, expressed as a
--------------
percentage, equal to the Consolidated Funded Debt of the Company and its
Subsidiaries divided by the Consolidated Net Tangible Assets of the Company and
its Subsidiaries.
1.83 "Lien" means, with respect to the Company (or any other specified
----
Person):
(a) Any lien, encumbrance, mortgage, pledge, charge or security
interest of any kind upon any property or assets of the Company (or such
specified Person), whether now owned or hereafter acquired, or upon the
income or profits therefrom;
(b) The acquisition of, or the agreement to acquire, any property or
asset upon conditional sale or subject to any other title retention
agreement, device or arrangement (including a Capitalized Lease);
(c) The sale, assignment, pledge or transfer for security of any
accounts, general intangibles or chattel paper of the Company (or such
specified Person), with or without recourse;
(d) The transfer of any tangible property or assets for the purpose
of subjecting such items to the payment of previously outstanding
Indebtedness in priority to payment of the general creditors of the Company
(or such specified Person); and
(e) The existence for a period of more than 120 consecutive days of
any Indebtedness against the Company (or such specified Person) which if
unpaid would by law or upon a Bankruptcy Default be given any priority over
general creditors.
1.84 "Loan" means the aggregate outstanding amount of the Revolving Loan
----
and Swingline Loan, as applicable.
1.85 "Loan Account" means each Revolving Loan Account and Swingline Loan
------------
Account, as applicable.
1.86 "Mandatory Borrowing" is defined in Section 2.2.4.
-------------------
1.87 "Margin Stock" means "margin stock" within the meaning of Regulations
------------
G, T, U or X of the Board of Governors of the Federal Reserve System.
1.88 "Master Shelf Agreement" is defined in Section 6.6.12.
----------------------
1.89 "Material Adverse Change" means, since any specified date or from the
-----------------------
circumstances existing immediately prior to the happening of any specified
event, a material adverse change in the business, assets, financial condition or
income of the Company and its
-18-
<PAGE>
Subsidiaries on a Consolidated basis, whether as a result of (a) general
economic conditions affecting the petroleum industry, (b) difficulties in
obtaining supplies and raw materials, (c) fire, flood or other natural
calamities, (d) environmental pollution, (e) regulatory changes, judicial
decisions, war or other governmental action or (f) any other event or
development, whether or not related to those enumerated above.
1.90 "Material Adverse Effect" means a material adverse effect on the
-----------------------
business, assets, financial condition or income of the Company and its
Subsidiaries on a Consolidated basis.
1.91 "Material Agreements" is defined in Section 7.2.2.
-------------------
1.92 "Maximum Amount of Revolving Credit" is defined in Section 2.1.2.
----------------------------------
1.93 "Moody's" means Moody's Investors Service, Inc.
-------
1.94 "Multiemployer Plan" means any Plan that is a "multiemployer plan" as
------------------
defined in section 4001(a)(3) of ERISA.
1.95 "Nonperforming Lender" is defined in Section 12.4.4.
--------------------
1.96 "Notes" means the Revolving Notes and the Swingline Notes, as
-----
applicable.
1.97 "Obligor" means the Company, each Guarantor and each Person
-------
guaranteeing, providing collateral for or subordinating obligations to, the
Credit Obligations.
1.98 "Open Position" means any difference (whether positive or negative)
-------------
between (a) the number of barrels of petroleum product the Company and its
Subsidiaries hold in inventory or have contracted to buy and (b) the number of
barrels of petroleum product the Company and its Subsidiaries have contracted to
sell.
1.99 "OSHA" means the federal Occupational Health and Safety Act.
----
1.100 "Overdue Rate" is defined in Section 3.1.
------------
1.101 "Payment Date" means (a) the last Banking Day of each calendar month
------------
occurring after the Restatement Date and (b) the Final Maturity Date.
1.102 "PBGC" means the Pension Benefit Guaranty Corporation or any
----
successor entity.
1.103 "Percentage Interest" means (a) at all times when no Event of Default
-------------------
under Section 8.1.1 and no Bankruptcy Defaults exists, the ratio that the
respective Commitments of the Lenders bear to the total Commitments of all
Lenders as from time to time in effect and reflected in the Register, and (b) at
all other times, the ratio that the respective amounts of the outstanding Credit
-19-
<PAGE>
Obligations owing to the Lenders in respect of extensions of credit under
Section 2 to the total outstanding Credit Obligations owing to all Lenders.
1.104 "Performing Lender" is defined in Section 12.4.4.
-----------------
1.105 "Person" means any present or future natural person or any
------
corporation, association, partnership, joint venture, limited liability, joint
stock or other company, business trust, trust, organization, business or
government or any governmental agency or political subdivision thereof.
1.106 "Plan" means, at any date, any pension benefit plan subject to Title
----
IV of ERISA maintained, or to which contributions have been made or are required
to be made, by any ERISA Group Person within six years prior to such date.
1.107 "Pledge Agreement" means the Pledge Agreement dated as of April 17,
----------------
1997, as from time to time in effect, among the Company, the Guarantors and the
Agent, as collateral agent.
1.108 "Pledged Indebtedness" is defined in Section 10.1.3.
--------------------
1.109 "Pledged Rights" is defined in Section 10.1.2.
--------------
1.110 "Pledged Securities" means the Pledged Stock, the Pledged Rights and
------------------
the Pledged Indebtedness, collectively.
1.111 "Pledged Stock" is defined in Section 10.1.1.
-------------
1.112 "Prudential" is defined in Section 6.6.12.
----------
1.113 "RCRA" means the federal Resource Conservation and Recovery Act, 42
----
U.S.C. (S) 690, et seq.
-- ---
1.114 "Reference Lender" means BankBoston.
----------------
1.115 "Register" is defined in Section 13.1.3.
--------
1.116 "Replacement Lender" is defined in Section 13.3.
------------------
1.117 "Required Lenders" means, with respect to any approval, consent,
----------------
modification, waiver or other action to be taken by the Agent or the Lenders
under the Credit Documents which require action by the Required Lenders, such
Lenders as own at least 51% of the Percentage Interests; provided, however, that
-------- -------
with respect to any matters referred to in the proviso to Section
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<PAGE>
12.6, Required Lenders means such Lenders as own at least the respective
portions of the Percentage Interests required by Section 12.6.
1.118 "Restatement Date" means March 31, 1998 or such other date as may be
----------------
agreed to by the Company and the Agent.
1.119 "Revolving Loan" is defined in Section 2.1.4.
--------------
1.120 "Revolving Loan Account" is defined in Section 2.1.4.
----------------------
1.121 "Revolving Notes" is defined in Section 2.1.4.
---------------
1.122 "Securities Act" means the federal Securities Act of 1933.
--------------
1.123 "Senior Debt Rating" is defined in Section 1.5.
------------------
1.124 "S&P" means Standard & Poor's, a Division of The McGraw-Hill
---
Companies, Inc.
1.125 "Subordinated Debentures" is defined in Section 6.6.10.
-----------------------
1.126 "Subordinated Debentures Agreement" is defined in Section 7.2.2.
---------------------------------
1.127 "Subordinated Debentures Guarantee" is defined in Section 6.7.5.
---------------------------------
1.128 "Subsidiary" means any Person of which the Company (or other
----------
specified Person) shall at the time, directly or indirectly through one or more
of its Subsidiaries, (a) own more than 50% of the outstanding capital stock (or
other shares of beneficial interest) entitled to vote generally or (b) hold more
than 50% of the partnership, joint venture or similar interests.
1.129 "Swingline Lender" means BankBoston, in its capacity as swingline
----------------
lender hereunder.
1.130 "Swingline Loan" is defined in Section 2.2.3.
--------------
1.131 "Swingline Loan Account" is defined in Section 2.2.3.
----------------------
1.132 "Swingline Note" is defined in Section 2.2.3.
--------------
1.133 "Swingline Rate" means the rate equal to the sum of (a) the Federal
--------------
Funds Rate plus the Applicable Margin, plus (b) an additional 2% per annum
---- ----
effective on the day the Agent notifies the Company that the interest rates
hereunder are increasing as a result of the occurrence and continuance of an
Event of Default until the earlier of such time as (i) such Event of Default
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<PAGE>
is no longer continuing or (ii) such Event of Default is deemed no longer to
exist, in each case pursuant to Section 8.3.
1.134 "Tax" means any present or future tax, levy, duty, impost,
---
deduction, withholding or other charges of whatever nature at any time required
by any Legal Requirement (a) to be paid by any Lender or (b) to be withheld or
deducted from any payment otherwise required hereby to be made to any Lender, in
each case on or with respect to its obligations hereunder, the Loan, any payment
in respect of the Credit Obligations or any Funding Liability not included in
the foregoing; provided, however, that the term "Tax" shall not include any
-------- -------
franchise tax or taxes imposed upon or measured by the gross or net income of
such Lender (or withholding taxes with respect to such taxes).
1.135 "UCC" means the Uniform Commercial Code as in effect in
---
Massachusetts on the date hereof; provided, however, that with respect to the
-------- -------
perfection of the Agent's Lien in the Credit Security and the effect of
nonperfection thereof, the term "UCC" means the Uniform Commercial Code as in
effect in any jurisdiction the laws of which are made applicable by Section 9-
103 of the Uniform Commercial Code as in effect in Massachusetts.
1.136 "Uniform Customs and Practice" is defined in Section 2.4.7.
----------------------------
1.137 "United States Funds" means such coin or currency of the United
-------------------
States of America as at the time shall be legal tender therein for the payment
of public and private debts.
1.138 "Wholly Owned Subsidiary" means any Subsidiary of which all of the
-----------------------
outstanding capital stock (or other shares of beneficial interest) entitled to
vote generally (other than directors' qualifying shares) is owned by the Company
(or other specified Person) directly, or indirectly through one or more Wholly
Owned Subsidiaries.
2. The Credits.
-----------
2.1 Revolving Credit.
----------------
2.1.1. Revolving Loan. Subject to all the terms and conditions of
--------------
this Agreement and so long as no Default exists, from time to time on and after
the Restatement Date and prior to the Final Maturity Date the Lenders will,
severally in accordance with their respective Percentage Interests, make loans
to the Company in such amounts as may be requested by the Company in accordance
with Section 2.1.3. The sum of the aggregate principal amount of loans made
under this Section 2.1.1 at any one time outstanding plus the Swingline Loan
----
plus the Letter of Credit Exposure shall in no event exceed the Maximum Amount
- ----
of Revolving Credit. In no event will the principal amount of loans at any one
time outstanding made by any Lender pursuant to this Section 2.1 exceed such
Lender's Commitment.
-22-
<PAGE>
2.1.2. Maximum Amount of Revolving Credit. The term "Maximum Amount
---------------------------------- --------------
of Revolving Credit" means the lesser of (a) $175,000,000 or (b) the amount (in
- -------------------
an integral multiple of $1,000,000 equal to or greater than $10,000,000) to
which the then applicable amount set forth in clause (a) shall have been
irrevocably reduced from time to time by notice from the Company to the Agent.
2.1.3. Borrowing Requests. The Company may from time to time request
------------------
a loan under Section 2.1.1 by providing to the Agent a notice (which may be
given by a telephone call received by a Lending Officer if promptly confirmed in
writing). Such notice must be not later than 2:00 p.m. (Boston time) on the same
Banking Day as the requested Closing Date for such loan (third Banking Day prior
to the requested Closing Date of such loan if any portion of such loan will be
subject to a Eurodollar Pricing Option on the requested Closing Date). The
notice must specify (a) the amount of the requested loan (which shall be not
less than $500,000 and an integral multiple of $100,000) and (b) the requested
Closing Date therefor (which shall be a Banking Day). Upon receipt of such
notice, the Agent will promptly inform each other Lender (by telephone or
otherwise). Each such loan will be made at the Boston Office by depositing the
amount thereof to the general account of the Company with the Agent. In
connection with each such loan, the Company shall furnish to the Agent a
certificate in substantially the form of Exhibit 5.2.1.
2.1.4. Revolving Loan Account; Revolving Notes. The Agent will
---------------------------------------
establish on its books a loan account for the Company (the "Revolving Loan
--------------
Account") which the Agent shall administer as follows: (a) the Agent shall add
- -------
to the Revolving Loan Account, and the Revolving Loan Account shall evidence,
the principal amount of all loans from time to time made by the Lenders to the
Company pursuant to Section 2.1.1 and (b) the Agent shall reduce the Revolving
Loan Account by the amount of all payments made on account of the Indebtedness
evidenced by the Revolving Loan Account. The aggregate principal amount of the
Indebtedness evidenced by the Revolving Loan Account is referred to as the
"Revolving Loan". The Revolving Loan shall be deemed owed to each Lender
- ---------------
severally in accordance with such Lender's Percentage Interest, and all payments
credited to the Revolving Loan Account shall be for the account of each Lender
in accordance with its Percentage Interest. The Company's obligations to pay
each Lender's Percentage Interest in the Revolving Loan shall be evidenced by a
separate note of the Company in substantially the form of Exhibit 2.1.4 (the
"Revolving Notes"), payable to each Lender in maximum principal amount equal to
- ----------------
such Lender's Percentage Interest in the Revolving Loan.
2.2 Swingline Credit.
----------------
2.2.1. Swingline Loan. Subject to all the terms and conditions of this
--------------
Agreement and so long as no Default exists, from time to time on and after the
Restatement Date and prior to the Final Maturity Date, the Swingline Lender will
make loans to the Company in such amounts as may be requested by the Company in
accordance with Section 2.2.2.
-23-
<PAGE>
The sum of the aggregate principal amount of loans made under this Section 2.2
at any one time outstanding plus the Revolving Loan plus the Letter of Credit
---- ----
Exposure shall in no event exceed the Maximum Amount of Revolving Credit. In no
event will the principal amount of loans made pursuant to this Section 2.2 at
any one time outstanding exceed $10,000,000.
2.2.2. Borrowing Requests. The Company may from time to time request
------------------
a loan under Section 2.2.1 by providing to the Swingline Lender a notice (which
may be given by a telephone call received by a Lending Officer). Such notice
must be not later than 2:00 p.m. (Boston time) on the requested Closing Date
(which must be a Banking Day) for such loan. The notice must specify the amount
of the requested loan (which shall be not less than $100,000 and an integral
multiple of $50,000). Each such loan will be made at the Boston Office by
depositing the amount thereof to the general account of the Company with the
Swingline Lender. In connection with each such loan, the Company shall furnish
to the Swingline Lender a certificate in substantially the form of Exhibit
5.2.1.
2.2.3. Swingline Loan Account; Swingline Notes. The Swingline Lender
---------------------------------------
will establish on its books a loan account for the Company (the "Swingline Loan
--------------
Account") which the Swingline Lender shall administer as follows: (a) the
- -------
Swingline Lender shall add to the Swingline Loan Account, and the Swingline Loan
Account shall evidence, the principal amount of all loans from time to time made
by the Swingline Lender to the Company pursuant to Section 2.2.1 and (b) the
Swingline Lender shall reduce the Swingline Loan Account by the amount of all
payments made on account of the Indebtedness evidenced by the Swingline Loan
Account. The aggregate principal amount of the Indebtedness evidenced by the
Swingline Loan Account is referred to as the "Swingline Loan". The Company's
--------------
obligation to pay the Swingline Loan shall be evidenced by a note of the Company
in substantially the form of Exhibit 2.2.3 (the "Swingline Note"), payable to
--------------
the Swingline Lender in maximum principal amount equal to the Swingline Loan.
2.2.4. Conversion of Swingline Loan into Revolving Loan. On any
------------------------------------------------
Banking Day after the occurrence and during the continuance of an Event of
Default, the Swingline Lender may, in its sole discretion, give notice to the
other Lenders and the Company that the Swingline Loan shall be paid in full with
a mandatory borrowing under the Revolving Loan (the "Mandatory Borrowing").
-------------------
Such a notice of a Mandatory Borrowing shall be deemed to have been
automatically given upon a Bankruptcy Default or upon the exercise of any of the
remedies provided in Section 8.2. Upon the giving of any such notice or deemed
notice, a Mandatory Borrowing under the Revolving Loan in the amount of the
Swingline Loan shall be made on the next Banking Day from all Lenders in
accordance with their respective Percentage Interests in the Revolving Loan, and
the proceeds thereof shall be applied to the Swingline Lender as a repayment of
the Swingline Loan. Each Lender irrevocably agrees to make such loan pursuant
to each such Mandatory Borrowing notice in the amount and in the manner
specified above in this Section 2.2.4,
-24-
<PAGE>
notwithstanding (a) whether any conditions specified in Section 5 have been
satisfied, (b) that a Default or an Event of Default has occurred and is
continuing or (c) the date of such Mandatory Borrowing. In the event that any
Mandatory Borrowing cannot for any reason be made on the date required above
(including as a result of the commencement of a proceeding under the Bankruptcy
Code), each Lender shall promptly purchase from the Swingline Lender as of the
date the Mandatory Borrowing otherwise would have occurred such participation in
the Swingline Loan as shall be necessary to cause the Lenders to share in the
Swingline Loan ratably based upon their respective Percentage Interests in the
Revolving Loan. In the event of such participations, all interest payable on the
Swingline Loan shall be for the account of the Swingline Lender until the date
on which the participations are required to be purchased and, to the extent
attributable to the purchased participations, shall be payable to the
participants from and after such date. At the time any such purchase of
participations is actually made, the purchasing Lender shall pay the Swingline
Lender interest on the principal amount of the participation purchased at the
overnight Federal Funds Rate for each day, commencing with the date the
Mandatory Borrowing otherwise would have occurred, to the date of payment for
such participation.
2.3 [Intentionally Omitted].
2.4 Letters of Credit.
-----------------
2.4.1. Issuance of Letters of Credit. Subject to all the terms and
-----------------------------
conditions of this Agreement and so long as no Default exists, from time to time
on and after the Restatement Date and prior to the Final Maturity Date, the
Letter of Credit Issuer will issue for the account of the Company or, if the
Company shall so direct, for the account of any Guarantor one or more
irrevocable documentary or standby letters of credit (the "Letters of Credit");
-----------------
provided, that the Letter of Credit Exposure shall in no event exceed
$45,000,000 and the sum of the Letter of Credit Exposure plus the Revolving Loan
----
plus the Swingline Loan shall in no event exceed the Maximum Amount of Revolving
- ----
Credit; and, provided, further, that all letters of credit issued pursuant to
Section 2.4.1 of the Existing Credit Agreement that are outstanding on the
Restatement Date shall be continued and treated in all respects from and after
the Restatement Date as Letters of Credit issued under this Section 2.4.1.
2.4.2. Requests for Letters of Credit. The Company may from time to time
------------------------------
request a Letter of Credit to be issued by providing to the Letter of Credit
Issuer (and the Agent if the Letter of Credit Issuer is not the Agent) a notice
which is actually received not less than two Banking Days prior to the requested
Closing Date for such Letter of Credit specifying (a) the amount of the
requested Letter of Credit, (b) the beneficiary thereof, (c) the requested
Closing Date and (d) the principal terms of the text for such Letter of Credit.
Each Letter of Credit will be issued by forwarding it to the Company or to such
other Person as directed in writing by the Company, with a copy to the Company.
In connection with the issuance of any Letter of Credit, the Company shall
furnish to the Letter of Credit
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<PAGE>
Issuer (and the Agent if the Letter of Credit Issuer is not the Agent) a
certificate in substantially the form of Exhibit 5.2.1 and any customary
application forms required by the Letter of Credit Issuer.
2.4.3. Form and Expiration of Letters of Credit. Each Letter of Credit
----------------------------------------
issued under this Section 2.4 and each draft accepted or paid under such a
Letter of Credit shall be issued, accepted or paid, as the case may be, by the
Letter of Credit Issuer at its principal office. No Letter of Credit shall
provide for the payment of drafts drawn thereunder, and no draft shall be
payable, at a date which is later than the earlier of (a) the date twelve months
after the date of issuance or (b) the Final Maturity Date. Each Letter of
Credit and each draft accepted under a Letter of Credit shall be in such form as
is generally acceptable in the petroleum industry, shall be in such amount as
the Letter of Credit Issuer and the Company may agree upon at the time such
Letter of Credit is issued and shall include a requirement of not less than
three Banking Days after presentation of a draft before payment must be made
thereunder.
2.4.4. Lenders' Participation in Letters of Credit. Upon the issuance
-------------------------------------------
of any Letter of Credit, a participation therein, in an amount equal to each
Lender's Percentage Interest, shall automatically be deemed granted by the
Letter of Credit Issuer to each Lender on the date of such issuance and the
Lenders shall automatically be obligated, as set forth in Section 12.4, to
reimburse the Letter of Credit Issuer to the extent of their respective
Percentage Interests for all obligations incurred by the Letter of Credit Issuer
to third parties in respect of such Letter of Credit not reimbursed by the
Company. The Letter of Credit Issuer will send to each Lender (and the Agent if
the Letter of Credit Issuer is not the Agent) a confirmation regarding the
participations in Letters of Credit outstanding during such month.
2.4.5. Presentation. The Letter of Credit Issuer may accept or pay any
------------
draft presented to it, regardless of when drawn and whether or not negotiated,
if such draft, the other required documents and any transmittal advice are
presented to the Letter of Credit Issuer and dated on or before the expiration
date of the Letter of Credit under which such draft is drawn. Except insofar as
instructions actually received may be given by the Company in writing expressly
to the contrary with regard to, and prior to, the Letter of Credit Issuer's
issuance of any Letter of Credit for the account of the Company and such
contrary instructions are reflected in such Letter of Credit, the Letter of
Credit Issuer may honor as complying with the terms of the Letter of Credit and
with this Agreement any drafts or other documents otherwise in order signed or
issued by an administrator, executor, conservator, trustee in bankruptcy, debtor
in possession, assignee for benefit of creditors, liquidator, receiver or other
legal representative of the party authorized under such Letter of Credit to draw
or issue such drafts or other documents. Within two Banking Days following the
presentation of a draft under any Letter of Credit, the Letter of Credit Issuer
shall give notice thereof to the Company, which notice shall be accompanied by
copies of the draft and all documents presented therewith.
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<PAGE>
2.4.6. Payment of Drafts. At such time as a Letter of Credit Issuer makes
-----------------
any payment on a draft presented or accepted under a Letter of Credit, the
Company will on demand pay to such Letter of Credit Issuer in immediately
available funds the amount of such payment. Unless the Company shall otherwise
pay to the Letter of Credit Issuer the amount required by the foregoing
sentence, any such amount paid prior to the Final Maturity Date shall be
considered a loan under Section 2.1.1 and part of the Revolving Loan. So long as
no Default shall exist or be created thereby, the addition of such amount to the
Revolving Loan pursuant to the preceding sentence shall constitute payment for
the purposes of this Section 2.4.6.
2.4.7. Uniform Customs and Practice. The Uniform Customs and Practice for
----------------------------
Documentary Credits (1993 Revision), International Chamber of Commerce
Publication No. 500, and any subsequent revisions thereof approved by a Congress
of the International Chamber of Commerce and adhered to by the Letter of Credit
Issuer (the "Uniform Customs and Practice"), shall be binding on the Company and
----------------------------
the Letter of Credit Issuer except to the extent otherwise provided herein, in
any Letter of Credit or in any other Credit Document. Anything in the Uniform
Customs and Practice to the contrary notwithstanding:
(a) Neither the Company nor any beneficiary of any Letter of Credit shall
be deemed an agent of any Letter of Credit Issuer.
(b) With respect to each Letter of Credit, neither the Letter of Credit
Issuer nor its correspondents shall be responsible for or shall have any duty to
ascertain:
(i) the genuineness of any signature;
(ii) the validity, form, sufficiency, accuracy, genuineness or legal
effect of any endorsements;
(iii) delay in giving, or failure to give, notice of arrival, notice
of refusal of documents or of discrepancies in respect of which any Letter
of Credit Issuer refuses the documents or any other notice, demand or
protest;
(iv) the performance by any beneficiary under any Letter of Credit of
such beneficiary's obligations to the Company;
(v) inaccuracy in any notice received by the Letter of Credit
Issuer;
(vi) the validity, form, sufficiency, accuracy, genuineness or legal
effect of any instrument, draft, certificate or other document required by
such Letter of
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<PAGE>
Credit to be presented before payment of a draft, or the office held by or
the authority of any Person signing any of the same; or
(vii) failure of any instrument to bear any reference or adequate
reference to such Letter of Credit, or failure of any Person to note the
amount of any instrument on the reverse of such Letter of Credit or to
surrender such Letter of Credit or to forward documents in the manner
required by such Letter of Credit.
(c) The occurrence of any of the events referred to in the Uniform Customs
and Practice or in the preceding clauses of this Section 2.4.7 shall not affect
or prevent the vesting of any of the Letter of Credit Issuer's rights or powers
hereunder or the Company's obligation to make reimbursement of amounts paid
under any Letter of Credit or any draft accepted thereunder.
(d) Upon receipt, the Company will promptly examine (i) each Letter of
Credit (and any amendments thereof) sent to it by the Letter of Credit Issuer
and (ii) all instruments and documents delivered to it from time to time by the
Letter of Credit Issuer. The Company will notify the Letter of Credit Issuer of
any claim of noncompliance by notice actually received within 36 hours
(excluding hours included in non-Banking Days) after receipt of any of the
foregoing documents, the Company being conclusively deemed to have waived any
such claim against such Letter of Credit Issuer and its correspondents unless
such notice is given.
(e) In the event of any conflict between the provisions of this Agreement
and the Uniform Customs and Practice, the provisions of this Agreement shall
govern.
2.4.8. Subrogation. Upon any payment by a Letter of Credit Issuer under
-----------
any Letter of Credit and until the reimbursement of such Letter of Credit Issuer
by the Company with respect to such payment as provided in Section 2.4.6, the
Letter of Credit Issuer shall be entitled to be subrogated to, and to acquire
and retain, the rights which the Person to whom such payment is made may have
against the Company, all for the benefit of the Lenders. The Company will take
such action as the Letter of Credit Issuer may reasonably request, including
requesting the beneficiary of any Letter of Credit to execute such documents as
the Letter of Credit Issuer may reasonably request, to assure and confirm to the
Letter of Credit Issuer such subrogation and such rights, including the rights,
if any, of the beneficiary to whom such payment is made in accounts receivable,
inventory and other properties and assets of any Obligor.
2.4.9. Modification, Consent, etc. If the Company requests or consents in
--------------------------
writing to any modification or extension of any Letter of Credit, or waives in
writing any failure of any draft, certificate or other document to comply with
the terms of such Letter of Credit, and if the Letter of Credit Issuer consents
thereto, the Letter of Credit Issuer shall be entitled to rely on such request,
consent or waiver. This Agreement shall be binding
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<PAGE>
upon the Company with respect to such Letter of Credit as so modified or
extended, and with respect to any action taken or omitted by such Letter of
Credit Issuer pursuant to any such request, consent or waiver.
2.5 Application of Proceeds.
-----------------------
2.5.1. Revolving Loan. Subject to Section 2.5.6, the Company will apply
--------------
the proceeds of the Revolving Loan to refinance the Company's obligations under
the Existing Credit Agreement, to fund acquisitions and capital expenditures and
for working capital and other lawful corporate purposes of the Company and its
Subsidiaries.
2.5.2. Swingline Loan. Subject to Section 2.5.6, the Company will apply
--------------
the proceeds of the Swingline Loan for working capital and other lawful
corporate purposes of the Company and its Subsidiaries.
2.5.3. [Intentionally Omitted].
2.5.4. [Intentionally Omitted].
2.5.5. Letters of Credit. Letters of Credit shall be issued only for such
-----------------
lawful corporate purposes as the Company has requested in writing.
2.5.6. Specifically Prohibited Applications. The Company will not,
------------------------------------
directly or indirectly, apply any part of the proceeds of any extension of
credit made pursuant to the Credit Documents to purchase or to carry Margin
Stock or to any transaction prohibited by the Foreign Trade Regulations, by
other Legal Requirements applicable to the Lenders or by the Credit Documents.
2.6 Nature of Obligations of Lenders to Make Extensions of Credit. The
-------------------------------------------------------------
Lenders' obligations to extend credit under this Agreement are several and are
not joint or joint and several. Notwithstanding the foregoing, the obligation to
make a Swingline Loan shall be an obligation solely of the Swingline Lender. If
on any Closing Date any Lender shall fail to perform its obligations under this
Agreement, the aggregate amount of Commitments to make the extensions of credit
under this Agreement shall be reduced by the amount of unborrowed Commitment of
the Lender so failing to perform and the Percentage Interests shall be
appropriately adjusted. Lenders that have not failed to perform their
obligations to make the extensions of credit contemplated by Section 2 may, if
any such Lender so desires, assume, in such proportions as such Lenders may
agree, the obligations of any Lender who has so failed and the Percentage
Interests shall be appropriately adjusted. The provisions of this Section 2.6
shall not affect the rights of the Company against any Lender failing to perform
its obligations hereunder.
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<PAGE>
3. Interest; Eurodollar Pricing Options; Fees.
------------------------------------------
3.1 Interest. The Revolving Loan shall accrue and bear interest at a rate
--------
per annum which shall at all times equal the Applicable Rate. Prior to any
stated or accelerated maturity of the Revolving Loan, the Company will, on each
Payment Date, pay the accrued and unpaid interest on the portion of the
Revolving Loan which was not subject to a Eurodollar Pricing Option. On the
last day of each Eurodollar Interest Period or on any earlier termination of any
Eurodollar Pricing Option, the Company will pay the accrued and unpaid interest
on the portion of the Revolving Loan which was subject to the Eurodollar Pricing
Option which expired or terminated on such date. In the case of any Eurodollar
Interest Period longer than three months, the Company will also pay the accrued
and unpaid interest on the portion of the Revolving Loan subject to the
Eurodollar Pricing Option having such Eurodollar Interest Period at three-month
intervals, the first such payment to be made on the last Banking Day of the
three-month period which begins on the first day of such Eurodollar Interest
Period. On the stated or any accelerated maturity of the Revolving Loan, the
Company will pay all accrued and unpaid interest on the Revolving Loan,
including any accrued and unpaid interest on any portion of the Revolving Loan
which is subject to a Eurodollar Pricing Option. The Swingline Loan shall
accrue and bear interest at a rate per annum which shall at all times equal the
Swingline Rate. Interest on the Swingline Loan shall be calculated on a daily
basis and on the basis of a year of 360 days. Prior to any stated or
accelerated maturity of the Swingline Loan, the Company will on each Wednesday,
beginning on the first Wednesday after the Restatement Date, pay the accrued and
unpaid interest, if any, on such Indebtedness. On any stated or accelerated
maturity of the Swingline Loan all accrued and unpaid interest thereon shall be
forthwith due and payable. All payments of interest hereunder in respect of the
Swingline Loan shall be made by the Company to the Agent for the account of the
Swingline Lender. In addition, the Company will on demand pay interest on any
overdue installments of principal and, to the extent not prohibited by
applicable law, on any overdue installments of interest, fees and any other
overdue amounts owed under any Credit Document at a rate per annum equal to the
sum of 2% plus the highest Applicable Rate then in effect or at a rate per annum
----
equal to the sum of 2% plus the Swingline Rate then in effect in the case of
----
overdue installments of principal and interest with respect to a Swingline Loan
(the "Overdue Rate"). All payments of interest hereunder shall be made to the
------------
Agent for the account of each Lender in accordance with such Lender's Percentage
Interest.
3.2 Eurodollar Pricing Options.
--------------------------
3.2.1. Election of Eurodollar Pricing Options. Subject to all of the
--------------------------------------
terms and conditions hereof and so long as no Default exists, the Company may
from time to time, by irrevocable notice to the Agent actually received not less
than three Banking Days prior to the commencement of the Eurodollar Interest
Period selected in such notice, elect to have such portion of the Loan as the
Company may specify in such notice accrue and bear interest during the
Eurodollar Interest Period so selected at the Applicable Rate computed on the
basis of the Eurodollar Rate. No such election shall become effective:
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<PAGE>
(a) if, prior to the commencement of any such Eurodollar Interest
Period, the Agent determines that (i) the electing or granting of the
Eurodollar Pricing Option in question would violate a Legal Requirement,
(ii) Eurodollar deposits in an amount comparable to the principal amount of
the Loan as to which such Eurodollar Pricing Option has been elected and
which have a term corresponding to the proposed Eurodollar Interest Period
are not readily available in the inter-bank Eurodollar market, or (iii) by
reason of circumstances affecting the inter-bank Eurodollar market,
adequate and reasonable methods do not exist for ascertaining the interest
rate applicable to such deposits for the proposed Eurodollar Interest
Period; or
(b) if any Lender shall have advised the Agent by telephone or
otherwise at or prior to noon (Boston time) on the second Banking Day prior
to the commencement of such proposed Eurodollar Interest Period (and shall
have subsequently confirmed in writing) that, after reasonable efforts to
determine the availability of such Eurodollar deposits, such Lender
reasonably anticipates that Eurodollar deposits in an amount equal to the
Percentage Interest of such Lender in the portion of the Loan as to which
such Eurodollar Pricing Option has been elected and which have a term
corresponding to the Eurodollar Interest Period in question will not be
offered in the Eurodollar market to such Lender.
3.2.2. Notice to Lenders and Company. The Agent will promptly inform
-----------------------------
each Lender (by telephone or otherwise) of each notice received by it from the
Company pursuant to Section 3.2.1 and of the Eurodollar Interest Period
specified in such notice. Upon determination by the Agent of the Eurodollar Rate
for such Eurodollar Interest Period or in the event such election shall not
become effective, the Agent will promptly notify the Company and each Lender (by
telephone or otherwise) of the Eurodollar Rate so determined or why such
election did not become effective, as the case may be.
3.2.3. Selection of Eurodollar Interest Periods. Eurodollar Interest
----------------------------------------
Periods shall be selected so that:
(a) the minimum portion of the Loan subject to any Eurodollar Pricing
Option shall be $1,000,000 and an integral multiple of $500,000;
(b) no more than ten Eurodollar Pricing Options shall be outstanding
at any one time; and
(c) no Eurodollar Interest Period with respect to any part of the Loan
subject to a Eurodollar Pricing Option shall expire later than the Final
Maturity Date.
3.2.4. Additional Interest. If any portion of the Loan subject to a
-------------------
Eurodollar Pricing Option is repaid, or any Eurodollar Pricing Option is
terminated for any reason (including acceleration of maturity), on a date which
is prior to the last Banking Day of the
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<PAGE>
Eurodollar Interest Period applicable to such Eurodollar Pricing Option, the
Company will pay to the Agent for the account of each Lender in accordance with
such Lender's Percentage Interest, in addition to any amounts of interest
otherwise payable hereunder, an amount equal to the present value (calculated in
accordance with this Section 3.2.4) of interest for the unexpired portion of
such Eurodollar Interest Period on the portion of the Loan so repaid, or as to
which a Eurodollar Pricing Option was so terminated, at a per annum rate equal
to the excess, if any, of (a) the rate applicable to such Eurodollar Pricing
Option minus (b) the lowest rate of interest obtainable by the Agent upon the
-----
purchase of debt securities customarily issued by the Treasury of the United
States of America which have a maturity date approximating the last Banking Day
of such Eurodollar Interest Period. The present value of such additional
interest shall be calculated by discounting the amount of such interest for each
day in the unexpired portion of such Eurodollar Interest Period from such day to
the date of such repayment or termination at a per annum interest rate equal to
the interest rate determined pursuant to clause (b) of the preceding sentence,
and by adding all such amounts for all such days during such period. The
determination by the Agent of such amount of interest shall, in the absence of
demonstrable error, be conclusive. For purposes of this Section 3.2.4, if any
portion of the Loan which was to have been subject to a Eurodollar Pricing
Option is not outstanding on the first day of the Eurodollar Interest Period
applicable to such Eurodollar Pricing Option other than for reasons described in
Section 3.2.1, the Company shall be deemed to have terminated such Eurodollar
Pricing Option.
3.2.5. Violation of Legal Requirements. If any Legal Requirement shall
-------------------------------
prevent any Lender from funding or maintaining through the purchase of deposits
in the interbank Eurodollar market any portion of the Loan subject to a
Eurodollar Pricing Option or otherwise from giving effect to such Lender's
obligations as contemplated by Section 3.2, (a) the Agent may by notice to the
Company describing such Legal Requirement terminate all of the affected
Eurodollar Pricing Options, (b) the portion of the Loan subject to such
terminated Eurodollar Pricing Options shall immediately bear interest thereafter
at the Applicable Rate computed on the basis of the Base Rate and (c) the
Company shall make any payment required by Section 3.2.4.
3.2.6. Funding Procedure. The Lenders may fund any portion of the Loan
-----------------
subject to a Eurodollar Pricing Option out of any funds available to the
Lenders. Regardless of the source of the funds actually used by any of the
Lenders to fund any portion of the Loan subject to a Eurodollar Pricing Option,
however, all amounts payable hereunder, including the interest rate applicable
to any such portion of the Loan and the amounts payable under Sections 3.2.4,
3.5, 3.6, 3.7 and 3.8, shall be computed as if each Lender had actually funded
such Lender's Percentage Interest in such portion of the Loan through the
purchase of deposits in such amount of the type by which the Eurodollar Basic
Rate was determined with a maturity the same as the applicable Eurodollar
Interest Period relating thereto and through the transfer of such deposits from
an office of the Lender having the same location
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<PAGE>
as the applicable Eurodollar Office to one of such Lender's offices in the
United States of America.
3.3 Facility Fees. In consideration of the Lenders' commitments to make
-------------
the extensions of credit provided for in Section 2, while such commitments are
outstanding, the Company will pay to the Agent for the account of the Lenders in
accordance with the Lenders' respective Percentage Interests, on each Payment
Date and on the Final Maturity Date, an amount equal to interest computed at a
rate per annum equal to the Facility Fee Rate on the average daily Maximum
Amount of Revolving Credit during the quarter or portion thereof ending on such
Payment Date or, as the case may be, the Final Maturity Date; provided, however,
-------- -------
that the first such payment shall be for the period beginning on the Restatement
Date and ending on the first Payment Date.
3.4 Letter of Credit Fees. The Company will pay to the Agent for the
---------------------
account of each of the Lenders, in accordance with the Lenders' respective
Percentage Interests, on each Payment Date and on the Final Maturity Date, a
Letter of Credit fee equal to interest at a rate per annum equal to the Letter
of Credit Fee Rate on the average daily Letter of Credit Exposure during the
quarter or portion thereof ending on such Payment Date or, as the case may be,
the Final Maturity Date; provided, that if any Letter of Credit or any extension
of a Letter of Credit would produce a fee hereunder that is less than $250
during the term of such Letter of Credit or extension, the fee owing to the
Lenders hereunder with respect to such Letter of Credit or extension shall be
$250. The Company also will pay to the Letter of Credit Issuer (i) on the date
of issuance of each Letter of Credit an issuance fee of $150 with respect to
such Letter of Credit, (ii) on each Payment Date and on the Final Maturity Date,
an additional Letter of Credit fee equal to interest at the rate of one-eighth
of one percent (1/8%) per annum on the average daily Letter of Credit Exposure
during the quarter or portion thereof ending on such Payment Date or, as the
case may be, the Final Maturity Date and (iii) as invoiced, other customary
service charges and expenses for the services of the Letter of Credit Issuer in
connection with the Letters of Credit at the times and in the amounts from time
to time in effect in accordance with its general rate structure, including fees
and expenses relating to issuance, amendment, negotiation, cancellation and
similar operations.
3.5 Reserve Requirements, etc. If any Legal Requirement shall (a) impose,
-------------------------
modify, increase or deem applicable any insurance assessment, reserve, special
deposit or similar requirement against any Funding Liability or the Letters of
Credit, (b) impose, modify, increase or deem applicable any other requirement or
condition with respect to any Funding Liability or the Letters of Credit, or (c)
change the basis of taxation of Funding Liabilities or payments in respect of
any Letter of Credit (other than changes in the rate of taxes measured by the
overall net income of such Lender) and the effect of any of the foregoing shall
be to increase the cost to any Lender of issuing, making, funding or maintaining
its respective Percentage Interest in any portion of the Loan subject to a
Eurodollar Pricing Option or any Letter of Credit, to reduce the amounts
received or receivable by such Lender under this Agreement or to require such
Lender to make any payment or forego any amounts otherwise payable to such
Lender under this Agreement, then, within 15 days after the receipt by the
Company of a certificate from such Lender setting forth
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<PAGE>
why it is claiming compensation under this Section 3.5 and computations (in
reasonable detail) of the amount thereof, the Company shall pay to the Agent for
the account of such Lender such additional amounts as are specified by such
Lender in such certificate as sufficient to compensate such Lender for such
increased cost or such reduction, together with interest at the Overdue Rate on
such amount from the 15th day after receipt of such certificate until payment in
full thereof; provided, however, that the foregoing provisions shall not apply
-------- -------
to any Tax or to any reserves which are included in computing the Eurodollar
Reserve Rate. The determination by such Lender of the amount of such costs
shall, in the absence of demonstrable error, be conclusive. The Company shall be
entitled to replace any such Lender in accordance with Section 13.3.
3.6 Taxes. All payments of the Credit Obligations shall be made without
-----
set-off or counterclaim and free and clear of any deductions, including
deductions for Taxes, unless the Company is required by law to make such
deductions. If (a) any Lender shall be subject to any Tax with respect to any
payment of the Credit Obligations or its obligations hereunder or (b) the
Company shall be required to withhold or deduct any Tax on any payment on the
Credit Obligations, within 15 days after the receipt by the Company of a
certificate from such Lender setting forth why it is claiming compensation under
this Section 3.6 and computations (in reasonable detail) of the amount thereof,
the Company shall pay to the Agent for such Lender's account such additional
amount as is necessary to enable such Lender to receive the amount of Tax so
imposed on the Lender's obligations hereunder or the full amount of all payments
which it would have received on the Credit Obligations (including amounts
required to be paid under Sections 3.5, 3.7, 3.8 and this Section 3.6) in the
absence of such Tax, as the case may be, together with interest at the Overdue
Rate on such amount from the 15th day after receipt of such certificate until
payment in full thereof. Whenever Taxes must be withheld by the Company with
respect to any payments of the Credit Obligations, the Company shall promptly
furnish to the Agent for the account of the applicable Lender official receipts
(to the extent that the relevant governmental authority delivers such receipts)
evidencing payment of any such Taxes so withheld. If the Company fails to pay
any such Taxes when due or fails to remit to the Agent for the account of the
applicable Lender the required receipts evidencing payment of any such Taxes so
withheld or deducted, the Company shall indemnify the affected Lender for any
incremental Taxes and interest or penalties that may become payable by such
Lender as a result of any such failure. The determination by such Lender of the
amount of such Tax and the basis therefor shall, in the absence of demonstrable
error, be conclusive. The Company shall be entitled to replace any such Lender
in accordance with Section 13.3.
3.7 Capital Adequacy. If any Lender shall determine that compliance by
----------------
such Lender with any Legal Requirement regarding capital adequacy of banks or
bank holding companies has or would have the effect of reducing the rate of
return on such Lender's capital as a consequence of such Lender's commitment to
make the extensions of credit contemplated hereby, or such Lender's maintenance
of the extensions of credit contemplated hereby, to a level below that which
such Lender could have achieved but for such compliance (taking into
consideration such Lender's policies with respect to capital adequacy
immediately before such compliance and assuming that such Lender's capital was
fully utilized prior to such compliance) by an amount deemed by such
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<PAGE>
Lender to be material, then, within 15 days after the receipt by the Company of
a certificate from such Lender setting forth why it is claiming compensation
under this Section 3.7 and computations (in reasonable detail) of the amount
thereof, the Company shall pay to the Agent for the account of such Lender such
additional amounts as shall be sufficient to compensate such Lender for such
reduced return, together with interest at the Overdue Rate on each such amount
from the 15th day after receipt of such certificate until payment in full
thereof. The determination by such Lender of the amount to be paid to it and the
basis for computation thereof shall, in the absence of demonstrable error, be
conclusive. In determining such amount, such Lender may use any reasonable
averaging, allocation and attribution methods. The Company shall be entitled to
replace any such Lender in accordance with Section 13.3.
3.8 Regulatory Changes. If any Lender shall determine that (a) any change
------------------
in any Legal Requirement (including any new Legal Requirement) after the date
hereof shall directly or indirectly (i) reduce the amount of any sum received or
receivable by such Lender with respect to the Loan or the Letters of Credit or
the return to be earned by such Lender on the Loan or the Letters of Credit,
(ii) impose a cost on such Lender or any Affiliate of such Lender that is
attributable to the making or maintaining of, or such Lender's commitment to
make, its portion of the Loan or the Letters of Credit, or (iii) require such
Lender or any Affiliate of such Lender to make any payment on, or calculated by
reference to, the gross amount of any amount received by such Lender under any
Credit Document, and (b) such reduction, increased cost or payment shall not be
fully compensated for by an adjustment in the Applicable Rate or the Letter of
Credit fees, then, within 15 days after the receipt by the Company of a
certificate from such Lender setting forth why it is claiming compensation under
this Section 3.8 and computations (in reasonable detail) of the amount thereof,
the Company shall pay to such Lender such additional amounts as such Lender
determines will, together with any adjustment in the Applicable Rate, fully
compensate for such reduction, increased cost or payment, together with interest
on such amount from the 15th day after receipt of such certificate until payment
in full thereof at the Overdue Rate. The determination by such Lender of the
amount to be paid to it and the basis for computation thereof hereunder shall,
in the absence of demonstrable error, be conclusive. In determining such
amount, such Lender may use any reasonable averaging and attribution methods.
The Company shall be entitled to replace any such Lender in accordance with
Section 13.3.
3.9 Computations of Interest and Fees. For purposes of this Agreement,
---------------------------------
interest, facility fees and Letter of Credit fees (and any other amount
expressed as interest or such fees) shall be computed on the basis of a 360-day
year for actual days elapsed. If any payment required by this Agreement becomes
due on any day that is not a Banking Day, such payment shall, except as
otherwise provided in the Eurodollar Interest Period, be made on the next
succeeding Banking Day. If the due date for any payment of principal is
extended as a result of the immediately preceding sentence, interest shall be
payable for the time during which payment is extended at the Applicable Rate or,
in the case of principal of the Swingline Loan, at the Swingline Rate.
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<PAGE>
4. Payment.
-------
4.1 Payment at Maturity. On the Final Maturity Date or any accelerated
-------------------
maturity of the Loan, the Company will pay to the Agent for the account of the
Lenders an amount equal to the Loan then due, together with all accrued and
unpaid interest thereon and all other Credit Obligations then outstanding.
4.2 Contingent Required Prepayments.
-------------------------------
4.2.1. Excess Credit Exposure. If at any time the Loan exceeds the
----------------------
Maximum Amount of Revolving Credit, the Company will within three Banking Days
pay the amount of such excess to the Agent for the account of the Lenders. If at
any time the Swingline Loan exceeds $10,000,000, the Company will within three
Banking Days pay the amount of such excess to the Swingline Lender.
4.2.2. Letter of Credit Exposure. If at any time the Letter of
-------------------------
Credit Exposure exceeds the limits set forth in Section 2.4, the Company will
promptly pay the amount of such excess to the Agent for the account of the
Lenders to be applied as provided in Section 4.6.
4.3 [Intentionally Omitted].
4.4 [Intentionally Omitted].
4.5 Voluntary Prepayments. In addition to the prepayments required by
---------------------
Section 4.2, the Company may from time to time prepay all or any portion of the
Revolving Loan (in a minimum amount of $1,000,000 and an integral multiple of
$100,000), without premium or penalty of any type (except as provided in Section
3.2.4 with respect to the early termination of Eurodollar Pricing Options). The
Company shall give the Agent at least three Banking Days prior notice of its
intention to prepay, specifying the date of payment, the total amount of the
Loan to be paid on such date and the amount of interest to be paid with such
prepayment. At any time or from time to time upon telephone notice to the
Swingline Lender, given not later than 3:00 p.m. (Boston time) on any Banking
Day, the Company shall have the right to prepay, without premium or penalty of
any type, all or any part of the outstanding principal amount of its Swingline
Loan in such amounts as are not less than $100,000 and in integral multiples of
$50,000, unless such payment is equal to the entire outstanding principal amount
of the Swingline Loan.
4.6 Letters of Credit. If on the stated or any accelerated maturity of
-----------------
the Credit Obligations the Lenders shall be obligated in respect of a Letter of
Credit or a draft accepted under a Letter of Credit, the Company will either:
(a) prepay such obligation by depositing with the Agent an amount of
cash, or
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(b) deliver to the Agent a standby letter of credit (designating the
Agent as beneficiary and issued by a bank and on terms reasonably
acceptable to the Agent),
in each case in an amount equal to the portion of the then Letter of Credit
Exposure issued for the account of the Company. Any such cash so deposited and
the cash proceeds of any draw under any standby letter of credit so furnished,
including any interest thereon, shall be returned by the Agent to the Company
only when, and to the extent that, the amount of such cash held by the Agent
exceeds the Letter of Credit Exposure at a time when no Default exists;
provided, however, that if an Event of Default occurs and the Credit Obligations
- -------- -------
become or are declared immediately due and payable, the Agent may apply such
cash, including any interest thereon, to the payment of any of the Credit
Obligations as provided in Section 10.5.6.
4.7 Reborrowing; Application of Payments, etc.
------------------------------------------
4.7.1. Reborrowing. The amounts of the Revolving Loan prepaid
-----------
pursuant to Section 4.2.1 or 4.5 may be reborrowed from time to time prior to
the Final Maturity Date in accordance with Section 2.1, subject to the limits
set forth therein. The amounts of the Swingline Loan prepaid pursuant to Section
4.2.1 or 4.5 may be reborrowed from time to time prior to the Final Maturity
Date in accordance with Section 2.2, subject to the limits set forth therein.
4.7.2. Order of Application. Any prepayment of the Revolving Loan
--------------------
shall be applied first to the portion thereof not then subject to Eurodollar
Pricing Options, then the balance of any such prepayment shall be applied to the
portion thereof then subject to Eurodollar Pricing Options, in the chronological
order of the respective maturities thereof, together with any payments required
by Section 3.2.4.
4.7.3. Payment with Accrued Interest, etc. Notice of prepayment
----------------------------------
having been given in accordance with Section 4.5, and whether or not notice is
given of prepayments pursuant to Section 4.2 the amount specified to be prepaid
shall become due and payable on the date specified for prepayment.
4.7.4. Payments for Lenders. All payments of principal hereunder
--------------------
shall be made to the Agent for the account of the Lenders in accordance with the
Lenders' respective Percentage Interests.
5. Conditions to Extending Credit.
------------------------------
5.1 Conditions on Restatement Date. The obligations of the Lenders to
------------------------------
make any extension of credit pursuant to Section 2 shall be subject to the
satisfaction, on or before the Restatement Date, of the conditions set forth in
this Section 5.1 as well as the further conditions in Section 5.2. If the
conditions set forth in this Section 5.1 are not met on or prior to the
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Restatement Date, the Lenders shall have no obligation to make any extensions of
credit hereunder.
5.1.1. Revolving Notes. The Company shall have duly executed and
---------------
delivered to the Agent a Revolving Note for each Lender and a Swingline Note for
the Swingline Lender.
5.1.2. Perfection of Security. Each Obligor shall have duly
----------------------
authorized, executed, acknowledged, delivered, filed, registered and recorded
such security agreements, notices, financing statements and other instruments as
the Agent may have requested in order to perfect the Liens purported or required
pursuant to the Credit Documents to be created in the Credit Security.
5.1.3. Payment of Fees. The Company shall have paid to the Agent for
---------------
the account of BankBoston all fees required to be paid on or prior to the
Restatement Date pursuant to the separate agreement dated March 3, 1998 among
the Company, BankBoston and BancBoston Securities Inc. (the "BankBoston Fee
Letter") and the fees and disbursements of the Agent's special counsel and other
costs and expenses of the Agent for which statements have been rendered on or
prior to the Restatement Date.
5.1.4. Legal Opinions. On the Restatement Date, the Lenders shall
--------------
have received from the following counsel their respective opinions with respect
to the transactions contemplated by the Credit Documents, which opinions shall
be in form and substance satisfactory to the Required Lenders:
(a) Erik B. Carlson, general counsel of the Company and Bear Paw
Energy, Inc.
(b) Jennifer J. May, associate general counsel of TransMontaigne
Product Services Inc.
(c) Ropes & Gray, special counsel for the Agent.
Each of the Company, Bear Paw Energy, Inc. and TransMontaigne Product
Services Inc. authorizes and directs its counsel to furnish the foregoing
opinions.
5.1.5. Letter of Credit Agreements. The Company shall have executed
---------------------------
and delivered to BankBoston a Master Standby Letter of Credit Reimbursement and
Security Agreement and a Trade Key (R) Services Agreement, each in the form
previously supplied by BankBoston to the Company.
5.1.6. Prudential Consent. Prudential shall have consented, to the
------------------
extent required under the Master Shelf Agreement and the Intercreditor
Agreement, to the modifications
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of the Existing Credit Agreement effected hereby, the terms and conditions
of such consent to be satisfactory to the Required Lenders; and the
covenants of the Company set forth in the Master Shelf Agreement shall have
been amended to reflect the covenant modifications of the Existing Credit
Agreement made herein.
5.1.7. Termination of Existing Credit Agreement. The Company shall
----------------------------------------
have paid in full all principal, interest and other accrued and outstanding
amounts under the Existing Credit Agreement, and all commitments to extend
further credit under the Existing Credit Agreement shall have been
terminated (subject to the continuation of any letters of credit, as
provided in Section 2.4.1). All Liens securing amounts owing under the
Existing Credit Agreement shall remain in effect as part of the Credit
Security.
5.2 Conditions to Each Extension of Credit. The obligations of the
--------------------------------------
Lenders to make any extension of credit pursuant to Section 2 (which, for the
avoidance of any doubt, shall not include any pricing election under Section
3.2.2 with respect to any portion of the Loan that is already outstanding) shall
be subject to the satisfaction, on or before the Closing Date for such extension
of credit, of the following conditions:
5.2.1. Officer's Certificate. The representations and warranties
---------------------
contained in Sections 7 and 10.3 shall be true and correct on and as of
such Closing Date with the same force and effect as though made on and as
of such date (except as to any representation or warranty which refers to a
specific earlier date); provided, that the information contained in
Exhibits 7.1, 7.3 and 7.15 shall be correct as most recently supplemented,
including any supplements thereto noted in the certificate provided under
this Section 5.2.1; no Default shall exist on such Closing Date prior to or
immediately after giving effect to the requested extension of credit; no
Material Adverse Change shall have occurred and be continuing since April
30, 1997; and the Company shall have furnished to the Agent in connection
with the requested extension of credit a certificate to these effects, in
substantially the form of Exhibit 5.2.1, signed by a Financial Officer.
5.2.2. Proper Proceedings. This Agreement, each other Credit
------------------
Document and the transactions contemplated hereby and thereby shall have
been authorized by all necessary corporate or other proceedings. All
necessary consents, approvals and authorizations of any governmental or
administrative agency or any other Person of any of the transactions
contemplated hereby or by any other Credit Document shall have been
obtained and shall be in full force and effect.
5.2.3. Legality, etc. The making of the requested extension of
-------------
credit shall not (a) subject any Lender to any penalty or special tax
(other than a Tax for which the Company is required to reimburse the
Lenders under Section 3.6), (b) be prohibited by any Legal Requirement or
(c) violate any credit restraint program of the executive branch of the
government of the United States of America, the Board of Governors of the
Federal
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<PAGE>
Reserve System or any other governmental or administrative agency so long
as any Lender reasonably believes that compliance therewith is in the best
interests of such Lender.
5.2.4. General. All legal and corporate proceedings in connection
-------
with the transactions contemplated by this Agreement shall be satisfactory
in form and substance to the Agent and the Agent shall have received copies
of all documents, including certified copies of the Charter and By-Laws of
the Company and the other Obligors, records of corporate proceedings,
certificates as to signatures and incumbency of officers and opinions of
counsel, which the Agent may have reasonably requested in connection
therewith, such documents where appropriate to be certified by proper
corporate or governmental authorities.
6. General Covenants. Each of the Company and the Guarantors covenants that,
-----------------
until all of the Credit Obligations shall have been paid in full and until the
Lenders' commitments to extend credit under this Agreement and any other Credit
Document shall have been irrevocably terminated, the Company and its
Subsidiaries will comply with the following provisions:
6.1 Taxes and Other Charges; Accounts Payable.
-----------------------------------------
6.1.1. Taxes and Other Charges. Each of the Company and its
-----------------------
Subsidiaries shall duly pay and discharge, or cause to be paid and
discharged, before the same becomes in arrears, all material taxes,
assessments and other governmental charges imposed upon such Person and its
properties, sales or activities, or upon the income or profits therefrom,
as well as all claims for labor, materials or supplies which if unpaid
might by law become a Lien upon any of its property; provided, however,
-------- -------
that any such tax, assessment, charge or claim need not be paid if the
validity or amount thereof shall at the time be contested in good faith by
appropriate proceedings and if such Person shall have set aside on its
books adequate reserves with respect thereto to the extent required by
GAAP; and provided, further, that each of the Company and its Subsidiaries
-------- -------
shall pay or bond, or cause to be paid or bonded, all such taxes,
assessments, charges or other governmental claims immediately upon the
commencement of proceedings to foreclose any Lien which may have attached
as security therefor (except to the extent such proceedings have been
dismissed or stayed).
6.1.2. Accounts Payable. Each of the Company and its Subsidiaries
----------------
shall promptly pay when due, or in conformity with customary trade terms,
all other material Indebtedness incident to the operations of such Person
not referred to in Section 6.1.1; provided, however, that any such
-------- -------
Indebtedness need not be paid if the validity or amount thereof shall at
the time be contested in good faith and if such Person shall have set aside
on its books adequate reserves with respect thereto to the extent required
by GAAP.
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6.2 Conduct of Business, etc.
------------------------
6.2.1. Types of Business. The Company and its Subsidiaries shall
-----------------
engage principally in the business of (a) providing transportation,
terminaling and storage services for petroleum products and the
distribution, purchase and/or sale of petroleum products, chemicals and
other bulk liquids, (b) natural gas gathering, processing, transmission and
marketing and (c) other activities related thereto. The Company and its
Subsidiaries may engage in businesses other than those described in the
preceding sentence, provided that the gross revenues of such other
businesses in any fiscal year of the Company shall not exceed 10% of the
Consolidated gross revenues of the Company and its Subsidiaries.
6.2.2. Maintenance of Properties. Each of the Company and its
-------------------------
Subsidiaries:
(a) shall keep its properties in such repair, working order and
condition, and shall from time to time make such repairs, replacements,
additions and improvements thereto as are necessary for the efficient
operation of its businesses and shall comply at all times in all material
respects with all material franchises, licenses and leases to which it is
party so as to prevent any loss or forfeiture thereof or thereunder, except
where failure to comply with such provisions has not resulted, and does not
create a material risk of resulting, in the aggregate in any Material
Adverse Change; and
(b) shall do all things necessary to preserve, renew and keep in full
force and effect and in good standing its legal existence and authority
necessary to continue its business; provided, however, that this Section
-------- -------
6.2.2(b) shall not prevent the merger, consolidation or liquidation of
Subsidiaries permitted by Section 6.11.
6.2.3. Statutory Compliance. Each of the Company and its
--------------------
Subsidiaries shall comply in all material respects with all valid and
applicable statutes, laws, ordinances, zoning and building codes and other
rules and regulations of the United States of America, of the states and
territories thereof and their counties, municipalities and other
subdivisions and of any foreign country or other jurisdictions applicable
to such Person, except where failure so to comply with such provisions has
not resulted, and does not create a material risk of resulting, in the
aggregate in any Material Adverse Change.
6.2.4. Compliance with Material Agreements. Each of the Company and
-----------------------------------
its Subsidiaries shall comply in all material respects with the Material
Agreements (to the extent not in violation of the other provisions of this
Agreement or any other Credit Document). Without the prior written consent
of the Required Lenders, no Material Agreement shall be amended, modified,
waived or terminated in any manner that would have in any material respect
an adverse effect on the interests of the Lenders; provided, without
limitation of the foregoing, that any modification of the Master Shelf
Agreement that would cause the covenants of the Company or the defaults
thereunder to be more
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<PAGE>
restrictive than the covenants or defaults, respectively, contained in this
Agreement or that would constitute or cause a Default shall require the
prior written consent of the Required Lenders.
6.2.5. Trading Policy. The Company and its Subsidiaries will
--------------
maintain and follow a policy of managing petroleum inventory risk with the
objective of minimizing potentially adverse impacts on earnings arising
from volatility in refined petroleum product prices. The Lenders
acknowledge that the policy described in the Risk and Product Management
Policy Statement dated March 1998 of TransMontaigne Product Services Inc.
(formerly known as Continental Ozark, Inc.), an Arkansas corporation, a
copy of which is attached to this Credit Agreement as Exhibit 6.2.5,
represents such a policy.
6.2.6. Subordinated Debentures. The Company shall do all things
-----------------------
necessary to assure that the Loan and all of the Credit Obligations be and
remain "Superior Indebtedness" within the meaning of Section 10 of the
Subordinated Debentures Agreement.
6.2.7. Inventory Accounting. The Company and its Subsidiaries shall
--------------------
account for their inventory on the basis of the "LIFO" method of
accounting; provided, that they may change to the "FIFO" method of
inventory accounting, if such method is then permitted by GAAP and if the
provisions of Section 6.5 are amended in such manner as the Required
Lenders shall consider necessary in the reasonable judgment to maintain the
same standards of creditworthiness.
6.2.8. Inactive Subsidiaries. The Company and its Subsidiaries shall
---------------------
not make any Investment in or transfer any assets to each of K123
Corporation, a Colorado corporation, and Republic Natural Gas Company, a
Kansas corporation, each of which is a Wholly Owned Subsidiary of the
Company.
6.3 Insurance.
---------
6.3.1. Property Insurance. Each of the Company and its Subsidiaries
------------------
shall keep its assets which are of an insurable character insured by
financially sound and reputable insurers against theft and fraud and
against loss or damage by fire, explosion and hazards insured against by
extended coverage to the extent, in amounts and with deductibles at least
as favorable as those generally maintained by businesses of similar size
engaged in similar activities.
6.3.2. Liability Insurance. Each of the Company and its Subsidiaries
-------------------
shall maintain with financially sound and reputable insurers insurance
against liability for hazards, risks and liability to persons and property
to the extent, in amounts and with deductibles at least as favorable as
those generally maintained by businesses of similar size engaged in similar
activities; provided, however, that it may effect workers' compensation
-------- -------
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<PAGE>
insurance or similar coverage with respect to operations in any particular
state or other jurisdiction through an insurance fund operated by such
state or jurisdiction or by meeting the self-insurance requirements of such
state or jurisdiction.
6.4 Financial Statements and Reports. Each of the Company and its
--------------------------------
Subsidiaries shall maintain a system of accounting in accordance with generally
accepted accounting practices. The fiscal year of the Company and its
Subsidiaries shall end on April 30 in each year and the fiscal quarters of the
Company and its Subsidiaries shall end on July 31, October 31, January 31 and
April 30 in each year.
6.4.1. Annual Reports. The Company shall furnish to the Lenders as
--------------
soon as available, and in any event within 95 days after the end of each
fiscal year, the Consolidated balance sheet of the Company and its
Subsidiaries as at the end of such fiscal year, the Consolidated statements
of income, changes in shareholders' equity and cash flows of the Company
and its Subsidiaries for such fiscal year (all in reasonable detail) and
together with Consolidating schedules as of such date and for such period
and, in the case of Consolidated financial statements, comparative figures
for the immediately preceding fiscal year, all accompanied by:
(a) Unqualified reports of KPMG Peat Marwick LLP (or, if they cease
to be auditors of the Company and its Subsidiaries, other independent
certified public accountants of recognized national standing reasonably
satisfactory to the Required Lenders), containing no material uncertainty,
to the effect that they have audited the foregoing Consolidated financial
statements in accordance with generally accepted auditing standards and
that such Consolidated financial statements present fairly, in all material
respects, the financial position of the Company and its Subsidiaries
covered thereby at the dates thereof and the results of their operations
for the periods covered thereby in conformity with GAAP.
(b) The statement of such accountants that they have caused this
Agreement to be reviewed and that in the course of their audit of the
Company and its Subsidiaries no facts have come to their attention that
cause them to believe that any Default exists and in particular that they
have no knowledge of any Default under Sections 6.5 through 6.20 or, if
such is not the case, specifying such Default and the nature thereof. This
statement is furnished by such accountants with the understanding that the
examination of such accountants cannot be relied upon to give such
accountants knowledge of any such Default except as it relates to
accounting or auditing matters within the scope of their audit.
(c) A certificate of the Company signed by a Financial Officer to the
effect that such officer has caused this Agreement to be reviewed and has
no knowledge of any Default, or if such officer has such knowledge,
specifying such Default and the nature thereof, and what action the Company
has taken, is taking or proposes to take with respect thereto.
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<PAGE>
(d) Computations by the Company in the form set forth in Exhibit 6.4.1
hereto demonstrating, as of the end of such fiscal year, compliance with
the Computation Covenants, certified by a Financial Officer.
(e) Calculations, as at the end of such fiscal year, of (i) the
Accumulated Benefit Obligations for each Plan covered by Title IV of ERISA
(other than Multiemployer Plans) and (ii) the fair market value of the
assets of such Plan allocable to such benefits.
(f) Supplements to Exhibits 7.1, 7.3 and 7.15 showing any changes in
the information set forth in such Exhibits not previously furnished to the
Lenders in writing, as well as any changes in the Charter, Bylaws or
incumbency of officers of the Company or its Subsidiaries from those
previously certified to the Agent.
6.4.2. Quarterly Reports. The Company shall furnish to the Lenders
-----------------
as soon as available and, in any event, within 50 days after the end of
each of the first three fiscal quarters of the Company, the internally
prepared Consolidated balance sheet of the Company and its Subsidiaries as
of the end of such fiscal quarter, the Consolidated statements of income,
changes in shareholders' equity and cash flows of the Company and its
Subsidiaries for such fiscal quarter and for the portion of the fiscal year
then ended (all in reasonable detail) and together with Consolidating
schedules as of such date and for such period (if such Consolidating
schedules are requested by the Agent or the Required Lenders) and, in the
case of Consolidated statements, comparative figures for the same period in
the preceding fiscal year, all accompanied by:
(a) A certificate of the Company signed by a Financial Officer to the
effect that such financial statements have been prepared in accordance with
GAAP and present fairly, in all material respects, the financial position
of the Company and its Subsidiaries covered thereby at the dates thereof
and the results of their operations for the periods covered thereby,
subject only to normal year-end audit adjustments and the addition of
footnotes.
(b) A certificate of the Company signed by a Financial Officer to the
effect that such officer has caused this Agreement to be reviewed and has
no knowledge of any Default, or if such officer has such knowledge,
specifying such Default and the nature thereof and what action the Company
has taken, is taking or proposes to take with respect thereto.
(c) Computations by the Company in the form set forth in Exhibit 6.4.1
hereto demonstrating, as of the end of such quarter, compliance with the
Computation Covenants, certified by a Financial Officer.
(d) Supplements to Exhibits 7.1, 7.3 and 7.15 showing any changes in
the information set forth in such Exhibits not previously furnished to the
Lenders in writing,
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<PAGE>
as well as any changes in the Charter, Bylaws or incumbency of officers of
the Company and its Subsidiaries from those previously certified to the
Agent.
6.4.3. [Intentionally Omitted].
6.4.4. Other Reports. The Company shall promptly furnish to the
-------------
Lenders:
(a) As soon as prepared and in any event within 90 days after the
beginning of each fiscal year, an annual budget and operating projections
for such fiscal year of the Company and its Subsidiaries, prepared in a
manner consistent with the manner in which the financial projections
described in Section 7.2.1 were prepared and shall include a capital
expenditure plan for such fiscal year.
(b) Any material updates of such budget and projections.
(c) Any management letters furnished to the Company or any of its
Subsidiaries by the Company's auditors.
(d) All budgets, projections, statements of operations and other
reports furnished generally to the shareholders of the Company.
(e) Such registration statements, proxy statements and reports,
including Forms S-1, S-2, S-3, 10-K, 10-Q and 8-K, as may be filed by the
Company or any of its Subsidiaries with the Securities and Exchange
Commission.
(f) Any 90-day or 30-day letter from the federal Internal Revenue
Service asserting material tax deficiencies against the Company or any of
its Subsidiaries; and any similar notice from a state or other taxing
authority asserting material tax deficiencies against the Company or any of
its Subsidiaries that are not fully resolved without the assessment of a
material tax deficiency (and any tax paid) within 90 days following the
date of such notice.
(g) Notice of the issuance of any Funded Debt permitted by Section
6.6.11 or 6.6.12, together with a calculation of the proceeds thereof (net
of costs of issuance) and copies of all evidence of Indebtedness and other
documentation governing such Funded Debt.
(h) Any revised versions of the Risk and Product Management Policy
Statement referred to in Section 6.2.5.
6.4.5. Notice of Litigation. The Company shall promptly furnish to
--------------------
the Lenders notice of any litigation or any administrative or arbitration
proceeding (a) to which the Company or any of its Subsidiaries may
hereafter become a party if the damages claimed
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<PAGE>
in such proceeding exceed $2,000,000 or (b) which creates a material risk
of resulting, after giving effect to any applicable insurance, in the
payment by the Company and its Subsidiaries of more than $1,000,000 or (c)
which results, or creates a material risk of resulting, in a Material
Adverse Change.
6.4.6. Notice of Defaults. Promptly upon acquiring knowledge
------------------
thereof, the Company shall notify the Lenders of the existence of any
Default, specifying the nature thereof and what action the Company or any
Subsidiary has taken, is taking or proposes to take with respect thereto.
6.4.7. ERISA Reports. The Company shall furnish to the Lenders as
-------------
soon as available the following items with respect to any Plan:
(a) any request for a waiver of the funding standards or an extension
of the amortization period,
(b) any reportable event (as defined in section 4043 of ERISA), unless
the notice requirement with respect thereto has been waived by regulation,
(c) any notice received by any ERISA Group Person that the PBGC has
instituted or intends to institute proceedings to terminate any Plan, or
that any Multiemployer Plan is insolvent or in reorganization,
(d) notice of the possibility of the termination of any Plan by its
administrator pursuant to section 4041 of ERISA, and
(e) notice of the intention of any ERISA Group Person to withdraw, in
whole or in part, from any Multiemployer Plan.
6.4.8. Other Information; Audit. From time to time at reasonable
------------------------
intervals upon request of the Agent or the Required Lenders, each of the
Company and its Subsidiaries shall furnish to the Lenders such other
information regarding the business, assets, financial condition, income or
prospects of the Company and its Subsidiaries as such officer may
reasonably request, including copies of all tax returns, licenses,
agreements, leases and instruments to which any of the Company or its
Subsidiaries is party. The authorized officers and representatives of the
Agent shall have the right during normal business hours upon reasonable
notice and at reasonable intervals to examine the books and records of the
Company and its Subsidiaries, to make copies and notes therefrom for the
purpose of ascertaining compliance with or obtaining enforcement of this
Agreement or any other Credit Document. The Agent, upon reasonable advance
notice, may at the expense of the Company undertake to have the Company and
its Subsidiaries reviewed by the Agent's commercial financial examiners and
fixed asset appraisers; provided, that so long as no
--------
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<PAGE>
Event of Default shall have occurred and be continuing, the Agent shall not
request such reviews more than twice in any fiscal year of the Company.
6.5 Certain Financial Tests.
-----------------------
6.5.1. Fixed Charges Coverage. On the last day of each fiscal
----------------------
quarter of the Company, the Consolidated Income from Operations of the
Company and its Subsidiaries for the period of four consecutive fiscal
quarters then ended shall equal or exceed 225% of the Consolidated interest
expense of the Company and its Subsidiaries for such period determined in
accordance with GAAP.
6.5.2. Leverage Ratio. The Leverage Ratio of the Company and its
--------------
Subsidiaries shall at no time during each period specified below equal or
exceed the percentage set forth below next to such period:
Period Percentage
------ ----------
To and including April 29, 2001 65%
From and including April 30, 2001 60%
to and including April 29, 2002
April 30, 2002 and thereafter 55%
6.5.3. Consolidated Tangible Net Worth. Consolidated Tangible Net
-------------------------------
Worth shall not at any time be less than $115,000,000 plus 50% of
----
Consolidated Net Income (if positive) for the period from May 1, 1997 to
January 31, 1998; provided, however, that on April 30, 1998 and on the last
-------- -------
day of each fiscal quarter of the Company thereafter, the then effective
dollar amount in this Section 6.5.3 shall be increased by the sum of (a)
50% of Consolidated Net Income (if positive) for the fiscal quarter then
ended plus (b) 50% of the net proceeds realized by the Company and its
Subsidiaries, calculated on a Consolidated basis in accordance with GAAP,
from the issuance of any equity securities during the fiscal quarter then
ended.
6.6 Indebtedness. Neither the Company nor any of its Subsidiaries shall
------------
create, incur, assume or otherwise become or remain liable with respect to any
Indebtedness except the following:
6.6.1. Indebtedness in respect of the Credit Obligations.
6.6.2. Guarantees permitted by Section 6.7.
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6.6.3. Current liabilities, other than Financing Debt, incurred in
the ordinary course of business.
6.6.4. To the extent that payment thereof shall not at the time be
required by Section 6.1, Indebtedness in respect of taxes, assessments,
governmental charges and claims for labor, materials and supplies.
6.6.5. Indebtedness secured by Liens of carriers, warehouses,
mechanics and landlords permitted by Sections 6.8.5 and 6.8.6.
6.6.6. Indebtedness in respect of judgments or awards (a) which have
been in force for less than the applicable appeal period or (b) in respect
of which the Company or any Subsidiary shall at the time in good faith be
prosecuting an appeal or proceedings for review and, in the case of each of
clauses (a) and (b), the Company or such Subsidiary shall have taken
appropriate reserves therefor in accordance with GAAP and execution of such
judgment or award shall not be levied.
6.6.7. To the extent permitted by Section 6.8.9, Indebtedness in
respect of Capitalized Lease Obligations or secured by purchase money
security interests; provided, however, that (a) the aggregate principal
-------- -------
amount of all Indebtedness permitted by this Section 6.6.7 which consists
of Indebtedness in respect of Capital Lease Obligations and other
Indebtedness incurred for the acquisition of equipment shall not exceed 2%
of Consolidated Net Tangible Assets at any one time outstanding and (b)
that the aggregate principal amount of all Indebtedness permitted by this
Section 6.6.7 which consists of Indebtedness issued to sellers of any
business or part thereof or operating assets in consideration for the
acquisition thereof by the Company or a Subsidiary shall not exceed 4% of
Consolidated Net Tangible Assets at any one time outstanding.
6.6.8. Indebtedness in respect of deferred taxes arising in the
ordinary course of business.
6.6.9. Indebtedness in respect of inter-company loans and advances
among the Company and its Subsidiaries which are not prohibited by Section
6.9.
6.6.10. Indebtedness of the Company in respect of its 12.75%
Guaranteed Senior Subordinated Debentures due December 15, 2000 (the
"Subordinated Debentures").
6.6.11. Unsecured Funded Debt of the Company which is incurred or
issued for the purpose of financing acquisitions permitted by Section 6.9.5
or 6.9.7 and/or by the last paragraph of Section 6.9 and which is
subordinated to the Credit Obligations on terms satisfactory to the
Required Lenders.
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6.6.12 The 7.85% Senior Secured Notes, Series A, Due April 10, 2003
of the Company issued pursuant to the Master Shelf Agreement dated as of
April 17, 1997 (as from time to time amended subject to the provisions of
Section 6.2.4 hereof, the "Master Shelf Agreement") between the Company and
----------------------
The Prudential Insurance Company of America and affiliates thereof from
time to time party thereto (collectively, "Prudential") in aggregate
principal amount not exceeding $50,000,000, the 7.22% Senior Secured Notes,
Series B, Due October 17, 2004 of the Company issued pursuant to the Master
Shelf Agreement in aggregate principal amount not exceeding $25,000,000 and
other "Obligations", as defined in the Master Shelf Agreement, of the
Company and the Guarantors under the Master Shelf Agreement (excluding any
"Series" of "Notes" other than the "Series A Notes", each as defined in the
Master Shelf Agreement).
6.6.13 Unfunded pension liabilities and obligations with respect to
Plans so long as the Company is in compliance with Section 6.17.
6.6.14 Indebtedness outstanding on the date hereof and described in
Exhibit 7.3.
6.6.15 Funded Debt of the Company issued under and subject to the
terms of the Master Shelf Agreement, provided, that the aggregate principal
amount of such additional Funded Debt so issued shall not exceed
$25,000,000 and that the average life of such additional Funded Debt shall
be equal to or greater than six years from the date of issuance; and
provided, further, that after giving effect to the issuance of such Funded
Debt and the application of the proceeds thereof on the issuance date no
Default shall exist and the Company shall have delivered to the Agent a
certificate of a Financial Officer of the Company in reasonable detail
demonstrating compliance with Section 6.5 after giving effect to such
issuance and application.
6.6.16 Unsecured Funded Debt of the Company; provided, that after
giving effect to the issuance of such Unsecured Funded Debt and the
application of any of the proceeds thereof on the issuance date no Default
shall exist, the Leverage Ratio shall not exceed 60% if the issuance date
is on or before April 29, 2000, 55% if the issuance date is after April 29,
2000 and on or before April 29, 2001 or 50% if the issuance date is on or
after April 30, 2001, and the Company shall have delivered to the Agent a
certificate of a Financial Officer of the Company in reasonable detail
demonstrating compliance with these conditions after giving effect to such
issuance and application; and provided, further, either (a) that the terms
and conditions of such unsecured Funded Debt, including without limitation,
financial covenants, defaults, amortization and rate of interest shall have
been consented to by the Required Lenders or (b) that the sum of (i) the
aggregate outstanding principal amount of Indebtedness permitted by Section
6.6.15 plus (ii) the aggregate outstanding principal amount of Indebtedness
permitted under this clause (b) and not consented to as provided in the
preceding clause (a) at no time shall exceed $60,000,000.
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6.6.17. Indebtedness of the Company (other than Financing Debt) in
addition to the foregoing; provided, however, that the aggregate amount of
-------- -------
all such Indebtedness at any one time outstanding shall not exceed
$2,000,000.
6.7 Guarantees; Letters of Credit. Neither the Company nor any of its
-----------------------------
Subsidiaries shall become or remain liable with respect to any Guarantee,
including reimbursement obligations under letters of credit or other financial
guarantees by third parties, except the following:
6.7.1. Letters of Credit and Guarantees of the Credit Obligations.
6.7.2. Guarantees by the Company or its Subsidiaries of Indebtedness
incurred by any of its Subsidiaries and permitted by Section 6.6.
6.7.3. Unsecured Guarantees by Wholly Owned Subsidiaries of the
Credit Obligations or Indebtedness of the Company permitted by Sections
6.6.10 and 6.6.11, so long as such Wholly Owned Subsidiaries are Guarantors
and such Guarantees are subordinated to such Guarantors' Guarantees of the
Credit Obligations to the same extent and in the same manner as the
Indebtedness of the Company permitted by Sections 6.6.10 and 6.6.11.
6.7.4. Guarantees and reimbursement obligations with respect to
letters of credit issued in support of Lion Oil Company, an Arkansas
corporation, but only so long as the Investment represented thereby is
permitted under Section 6.9.6 or 6.9.7 and, if permitted by Section 6.9.7,
is counted toward the limit provided therein.
6.7.5. The unsecured Guarantee by TransMontaigne Product Services
Inc. (formerly known as Continental Ozark, Inc.), an Arkansas corporation,
of the Subordinated Debentures pursuant to the Senior Subordinated
Debenture Guarantee dated March 28, 1991 (the "Subordinated Debentures
Guarantee") executed by such corporation.
6.7.6. Guarantees of the Funded Debt permitted by Sections 6.6.12 and
6.6.15.
6.8 Liens. Neither the Company nor any of its Subsidiaries shall create,
-----
incur or enter into, or suffer to be created or incurred or to exist, any Lien,
except the following:
6.8.1. Liens on the Credit Security that secure the Credit
Obligations.
6.8.2. Liens to secure taxes, assessments and other governmental
charges, to the extent that payment thereof shall not at the time be
required by Section 6.1.
6.8.3. Deposits or pledges made (a) in connection with, or to secure
payment of, workers' compensation, unemployment insurance, old age pensions
or other social security, (b) in connection with casualty insurance
maintained in accordance with Section
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6.3, (c) to secure the performance of bids, tenders, contracts (other than
contracts relating to Financing Debt) or leases, (d) to secure statutory
obligations or surety or appeal bonds, (e) to secure indemnity, performance
or other similar bonds in the ordinary course of business or (f) in
connection with contested amounts to the extent that payment thereof shall
not at that time be required by Section 6.1.
6.8.4. Liens in respect of judgments or awards, to the extent that
such judgments or awards are permitted by Section 6.6.6.
6.8.5 Liens of carriers, warehouses, mechanics and similar Liens, in
each case (a) in existence less than 90 days from the date of creation
thereof or (b) being contested in good faith by the Company or any
Subsidiary in appropriate proceedings (so long as the Company or such
Subsidiary shall have set aside on its books adequate reserves with respect
thereto to the extent required by GAAP).
6.8.6. Encumbrances in the nature of (a) zoning restrictions, (b)
easements, (c) restrictions of record on the use of real property, (d)
landlords' and lessors' Liens on rented premises and (e) restrictions on
transfers or assignment of leases, which in each case do not materially
detract from the value of the encumbered property or materially impair the
use thereof in the business of the Company or any Subsidiary.
6.8.7. Restrictions under federal and state securities laws on the
transfer of securities.
6.8.8. Restrictions under Foreign Trade Regulations on the transfer
or licensing of certain assets of the Company and its Subsidiaries.
6.8.9. Liens constituting (a) purchase money security interests
(including mortgages, conditional sales, Capitalized Leases and any other
title retention or deferred purchase devices) in real property, interests
in leases or tangible personal property (other than inventory) existing or
created on the date on which such property is acquired, and (b) the
renewal, extension or refunding of any security interest referred to in the
foregoing clause (a) in an amount not to exceed the amount thereof
remaining unpaid immediately prior to such renewal, extension or refunding;
provided, however, that (i) each such security interest shall attach solely
-------- -------
to the particular item of property so acquired, and the principal amount of
Indebtedness (including Indebtedness in respect of Capitalized Lease
Obligations) secured thereby shall not exceed the cost (including all such
Indebtedness secured thereby, whether or not assumed) of such item of
property; and (ii) the aggregate principal amount of all Indebtedness
secured by Liens permitted by this Section 6.8.9 shall not exceed the
amount permitted by Section 6.6.7.
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6.8.10. Liens on the Credit Security securing the Funded Debt
permitted by Sections 6.6.12 and 6.6.15, but only so long as such Liens are
on parity with or subordinate to the Lien of Section 10 hereof.
6.9 Investments and Acquisitions. Neither the Company nor any of its
----------------------------
Subsidiaries shall have outstanding, acquire, commit itself to acquire or hold
any Investment (including any Investment consisting of the acquisition of any
business) except for the following:
6.9.1. Investments of the Company and its Subsidiaries in Wholly
Owned Subsidiaries as long as such Wholly Owned Subsidiaries are or become
Guarantors; provided, that Investments consisting of all or part of a
business or operating assets shall be permitted under this Section 6.9.1 to
the extent that such business or assets shall be acquired as assets of the
Company or of a Wholly Owned Subsidiary which is or becomes a Guarantor.
6.9.2. Intercompany loans and advances from any Wholly Owned
Subsidiary to the Company or other Wholly Owned Subsidiaries but in each
case only to the extent reasonably necessary for Consolidated tax planning
and working capital management.
6.9.3. Investments in Cash Equivalents.
6.9.4. Guarantees permitted by Section 6.7.
6.9.5. Investments made after the date hereof in Subsidiaries listed
in Exhibit 7.1 hereto as supplemented from time to time other than Wholly
Owned Subsidiaries, provided that the aggregate outstanding amount of
loans, advances and other Investments in such Subsidiaries, measured in
each case as of the date of the making of such Investment, shall not at any
time exceed 15% of Consolidated Net Tangible Assets.
6.9.6. Investments outstanding on the date hereof and identified in
Exhibit 7.3, in each case as said Exhibit 7.3 is in effect on the
Restatement Date.
6.9.7. Other Investments made after the date hereof that are not
permitted by any of the foregoing subsections of this Section 6.9, provided
that the aggregate outstanding amount of loans, advances and other
Investments of the Company and its Subsidiaries permitted under this
Section 6.9.7, measured in each case as of the date of the making of such
Investment, shall not at any time exceed 10% of Consolidated Tangible Net
Worth; provided, however, that no Investment may be made in a Subsidiary
-------- -------
unless such Subsidiary is listed in Exhibit 7.1 hereto as supplemented from
time to time.
In addition, the Company covenants that the Company and its Subsidiaries
shall not acquire any operating business unless, after giving effect to such
acquisition and the financing thereof, the Company and its Subsidiaries will not
suffer any Default under any Computation Covenant or any
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other provision of this Agreement; and, provided, that, if the consideration
(including without limitation any assumption of Indebtedness, any deferred
consideration and any consideration paid for any related non-competition
agreement) given shall exceed $3,000,000 for any single acquisition or
$15,000,000 in the aggregate for acquisitions consummated in any period of
twelve consecutive months, then prior to consummating any such acquisition the
Company shall provide to the Lenders a certificate of a Financial Officer
demonstrating that, after giving effect to such acquisition and the financing
thereof, the Company and its Subsidiaries will not suffer any Default under any
Computation Covenant or any other provision of this Agreement.
6.10 Distributions. Neither the Company nor any of its Subsidiaries
-------------
shall make any Distribution except for the following:
6.10.1 Subsidiaries of the Company may make Distributions to the
Company or any Wholly Owned Subsidiary of the Company.
6.10.2 So long as immediately before and after giving effect
thereto no Default exists, the Company may make Distributions to its
stockholders; provided, that the cumulative amount distributed after April
30, 1997 shall not exceed the sum of (a) $10,000,000 plus (b) 50% of the
cumulative Consolidated Net Income of the Company and its Subsidiaries
commencing May 1, 1997.
6.10.3 So long as immediately before and after giving effect
thereto no Default exists, the Company may make scheduled payments of
interest and principal on the Subordinated Debentures and other Funded Debt
of the Company permitted under Section 6.6.11.
6.11. Merger, Consolidation and Dispositions of Assets. Neither the
------------------------------------------------
Company nor any of its Subsidiaries shall merge or enter into a consolidation or
sell, lease, sell and lease back, sublease or otherwise dispose of any of its
assets, except the following:
6.11.1. The Company and any of its Subsidiaries may sell or
otherwise dispose of (a) inventory in the ordinary course of business, (b)
tangible assets to be replaced in the ordinary course of business within
six months by other tangible assets of equal or greater value and (c)
tangible assets that are no longer used or useful in the business of the
Company or such Subsidiary, the fair market value (or book value if
greater) of which shall not exceed 4% of Consolidated Net Tangible Assets
of the Company and its Subsidiaries as of the last day of the next
preceding fiscal year.
6.12.1. Any Wholly Owned Subsidiary of the Company may merge or be
liquidated into the Company or any other Wholly Owned Subsidiary of the
Company so long as after giving effect to any such merger to which the
Company is a party the Company shall be the surviving or resulting Person.
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6.11.3. The Company and its Subsidiaries may enter into leases
(other than Capitalized Leases) as lessor of real and tangible personal
property and rights associated therewith in the ordinary course of
business.
6.11.4. Any inactive Subsidiary other than a Guarantor may be
liquidated.
6.12. Lease Obligations. Neither the Company nor any of its Subsidiaries
-----------------
shall be or become obligated as lessee under any lease except:
6.12.1. Capitalized Leases permitted by Sections 6.6.7 and 6.8.9.
6.12.2. Leases other than Capitalized Leases; provided, however,
-------- -------
that the aggregate fixed rental obligations for any fiscal year (excluding
payments required to be made by the lessee in respect of taxes and
insurance whether or not denominated as rent) shall not exceed in any
fiscal year 3% of Consolidated Net Tangible Assets as of the last day of
the next preceding fiscal year.
6.13. Issuance of Stock by Subsidiaries; Subsidiary Distributions.
-----------------------------------------------------------
6.13.1. Issuance of Stock by Subsidiaries. No Subsidiary shall
---------------------------------
issue or sell any shares of its capital stock or other evidence of
beneficial ownership to any Person other than the Company or any Wholly
Owned Subsidiary of the Company, which shares shall have been pledged to
the Agent as part of the Credit Security.
6.13.2. No Restrictions on Subsidiary Distributions. Except for
-------------------------------------------
this Agreement and the Credit Documents, neither the Company nor any
Subsidiary shall enter into or be bound by any agreement (including
covenants requiring the maintenance of specified amounts of net worth or
working capital) restricting the right of any Subsidiary to make
Distributions or extensions of credit to the Company (directly or
indirectly through another Subsidiary).
6.14. [Intentionally Omitted].
6.15. Derivative Contracts. Neither the Company nor any of its
--------------------
Subsidiaries shall enter into any Interest Rate Protection Agreement, foreign
currency exchange contract or other financial or commodity derivative contracts
except to provide hedge protection for an underlying economic transaction in the
ordinary course of business.
6.16. Negative Pledge Clauses. Neither the Company nor any of its
-----------------------
Subsidiaries shall enter into any agreement, instrument, deed or lease which
prohibits or limits the ability of the Company or any of its Subsidiaries to
create, incur, assume or suffer to exist any Lien upon any of their respective
properties, assets or revenues, whether now owned or hereafter acquired, except
the following:
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6.16.1. This Agreement and the other Credit Documents.
6.17.1. Covenants in documents creating Liens permitted by Section
6.8 prohibiting further Liens on the assets encumbered thereby.
6.18.1. The Master Shelf Agreement.
6.17. ERISA, etc. Each of the Company and its Subsidiaries shall comply,
----------
and shall cause all ERISA Group Persons to comply, in all material respects,
with the provisions of ERISA and the Code applicable to each Plan. Each of the
Company and its Subsidiaries shall meet, and shall cause all ERISA Group Persons
to meet, all minimum funding requirements applicable to them with respect to any
Plan pursuant to section 302 of ERISA or section 412 of the Code, without giving
effect to any waivers of such requirements or extensions of the related
amortization periods which may be granted. At no time shall the Accumulated
Benefit Obligations under any Plan that is not a Multiemployer Plan exceed the
fair market value of the assets of such Plan allocable to such benefits by more
than $1,000,000. The Company and its Subsidiaries shall not withdraw, and shall
cause all other ERISA Group Persons not to withdraw, in whole or in part, from
any Multiemployer Plan so as to give rise to withdrawal liability exceeding
$1,000,000 in the aggregate. At no time shall the actuarial present value of
unfunded liabilities for post-employment health care benefits, whether or not
provided under a Plan, calculated in a manner consistent with Statement No. 106
of the Financial Accounting Standards Board, exceed $1,000,000.
6.18. Transactions with Affiliates. Neither the Company nor any of its
----------------------------
Subsidiaries shall effect any transaction with any of their respective
Affiliates (except for the Company and its Subsidiaries) on a basis less
favorable to the Company and its Subsidiaries than would be the case if such
transaction had been effected with a non-Affiliate.
6.19. Open Positions. The Company and its Subsidiaries may maintain Open
--------------
Positions relating to product inventory requirements that do not exceed the
amount permitted by the Risk and Product Management Policy Statement then in
effect, so long as that policy is materially consistent with the requirements of
the first sentence of Section 6.2.5.
6.20. Environmental Laws.
------------------
6.20.1. Compliance with Law and Permits. Each of the Company and
-------------------------------
its Subsidiaries shall use and operate all of its facilities and properties
in material compliance with all Environmental Laws, keep all necessary
permits, approvals, certificates, licenses and other authorizations
relating to environmental matters in effect and remain in material
compliance therewith, and handle all Hazardous Materials in material
compliance with all applicable Environmental Laws, except where any failure
to so act could not, individually or in the aggregate, have a Material
Adverse Effect.
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6.20.2. Notice of Claims, etc. Each of the Company and its
----------------------
Subsidiaries shall immediately notify the Agent, and provide copies upon
receipt, of all written claims, complaints, notices or inquiries from
governmental authorities relating to the condition of its facilities and
properties or compliance with Environmental Laws which could have a
Material Adverse Effect, and shall use best efforts to promptly cure and
have dismissed with prejudice to the satisfaction of the Agent any actions
and proceedings relating to compliance with Environmental Laws.
7. Representations and Warranties. In order to induce the Lenders to extend
------------------------------
credit to the Company hereunder, each of the Company and such of its
Subsidiaries as are party hereto from time to time jointly and severally
represents and warrants that, except as disclosed in the Disclosure Schedule
attached hereto as Exhibit 7:
7.1 Organization and Business.
-------------------------
7.1.1. The Company. The Company is a duly organized and validly
-----------
existing corporation, in good standing under the laws of Delaware, with all
power and authority, corporate or otherwise, necessary to (a) enter into
and perform this Agreement and each other Credit Document to which it is
party, (b) grant the Agent for the benefit of the Lenders the security
interests in the Credit Security owned by it to secure the Credit
Obligations and (c) own its properties and carry on the business now
conducted or proposed to be conducted by it. Certified copies of the
Charter and By-laws of the Company have been previously delivered to the
Agent and are correct and complete. Exhibit 7.1, as from time to time
hereafter supplemented in accordance with Sections 6.4.1 and 6.4.2, sets
forth, as of the later of the date hereof or as of the end of the most
recent fiscal quarter for which financial statements are required to be
furnished in accordance with such Sections, (i) the jurisdiction of
incorporation of the Company, (ii) the address of the Company's principal
executive office and chief place of business, (iii) each name, including
any trade name, under which the Company conducts its business and (iv) the
jurisdictions in which the Company keeps tangible personal property.
7.1.2. Subsidiaries. Each Subsidiary of the Company is duly
------------
organized, validly existing and in good standing under the laws of the
jurisdiction in which it is organized, with all power and authority,
corporate or otherwise, necessary to (a) enter into and perform this
Agreement and each other Credit Document to which it is party, (b)
guarantee the Credit Obligations, (c) grant the Lenders the security
interest in the Credit Security owned by such Subsidiary to secure the
Credit Obligations and (d) own its properties and carry on the business now
conducted or proposed to be conducted by it. Certified copies of the
Charter and By-laws of each Subsidiary of the Company have been previously
delivered to the Agent and are correct and complete. Exhibit 7.1, as from
time to time hereafter supplemented in accordance with Sections 6.4.1 and
6.4.2, sets forth, as of the later of the date hereof or as of the end of
the most recent fiscal quarter for which financial
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<PAGE>
statements are required to be furnished in accordance with such Sections,
(i) the name and jurisdiction of organization of each Subsidiary of the
Company, (ii) the address of the chief executive office and principal place
of business of each such Subsidiary, (iii) each name under which each such
Subsidiary conducts its business, (iv) each jurisdiction in which each such
Subsidiary keeps tangible personal property, and (v) the number of
authorized and issued shares and ownership of each such Subsidiary;
provided, however, that there may be omitted from Exhibit 7.1 one or more
-------- -------
Subsidiaries which have no business operations and no assets or
liabilities.
7.1.3. Qualification. Each of the Company and its Subsidiaries is
-------------
duly and legally qualified to do business as a foreign corporation or other
entity and is in good standing in each state or jurisdiction in which such
qualification is required and is duly authorized, qualified and licensed
under all laws, regulations, ordinances or orders of public authorities, or
otherwise, to carry on its business in the places and in the manner in
which it is conducted, except for failures to be so qualified, authorized
or licensed which would not in the aggregate result, or create a material
risk of resulting, in any Material Adverse Change.
7.1.4. Capitalization. No options, warrants, conversion rights,
--------------
preemptive rights or other statutory or contractual rights to purchase
shares of capital stock or other securities of any Subsidiary now exist,
nor has any Subsidiary authorized any such right, nor is any Subsidiary
obligated in any other manner to issue shares of its capital stock or other
securities.
7.2 Financial Statements and Other Information; Material Agreements.
---------------------------------------------------------------
7.2.1. Financial Statements and Other Information. The Company has
------------------------------------------
previously furnished to the Lenders copies of the following:
(a) The audited Consolidated and unaudited Consolidating balance
sheets of the Company and its Subsidiaries as at April 30, 1995, 1996 and
1997 and the audited Consolidated statements of income, changes in
shareholders' equity and cash flows of the Company and its Subsidiaries for
the fiscal years of the Company then ended.
(b) The unaudited Consolidated balance sheet of the Company and its
Subsidiaries as at January 31, 1998 and the unaudited Consolidated
statements of income, changes in shareholders' equity and cash flows of the
Company and its Subsidiaries for the portion of the fiscal year then ended.
(c) The two-year financial and operational projections and current
capital expenditures plan of the Company and its Subsidiaries dated January
12, 1998.
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(d) Calculations demonstrating pro forma compliance with the
Computation Covenants as of the end of the most recent month or quarter, as
applicable, preceding the date hereof.
The audited Consolidated financial statements (including the notes
thereto) referred to in clause (a) above were prepared in accordance with
GAAP and fairly present the financial position of the Company and its
Subsidiaries on a Consolidated basis at the respective dates thereof and
the results of their operations for the periods covered thereby. The
unaudited Consolidating financial statements referred to in clause (a)
above and the unaudited Consolidated financial statements referred to in
clause (b) above were prepared in accordance with GAAP and fairly present
the financial position of the Company and its Subsidiaries at the
respective dates thereof and the results of their operations for the
periods covered thereby, subject to normal year-end audit adjustment and
the addition of footnotes in the case of interim financial statements.
Neither the Company nor any of its Subsidiaries has any known contingent
liability material to the Company and its Subsidiaries on a Consolidated
basis which is not reflected in the balance sheets referred to in clause
(a) or (b) above (or delivered pursuant to Section 6.4.1 or 6.4.2) or in
the notes thereto.
In the Company's judgment, the financial and operational projections
referred to in clause (c) above constitute a reasonable basis as of the
Restatement Date for the assessment of the future performance of the
Company and its Subsidiaries during the periods indicated therein, it being
understood that any projected financial information represents an estimate,
based on various assumptions, of future results of operations, which
assumptions may prove to have been incorrect and which results may not in
fact occur.
7.2.2. Material Agreements. The Company has previously furnished to
-------------------
the Lenders a correct and complete copy of the Securities Purchase
Agreement dated March 28, 1991 (the "Subordinated Debentures Agreement")
between the Company's predecessor, Continental Ozark Corporation, and
Dillon, Read & Co., Inc., as nominee, and correct and complete copies,
including all exhibits, schedules and amendments thereto, of the
agreements, each as in effect on the date hereof, listed in Exhibit 7.2.2
(together with the Subordinated Debentures, the Subordinated Debentures
Agreement, the Subordinated Debentures Guarantee and the Master Shelf
Agreement, the "Material Agreements").
7.3 Agreements Relating to Financing Debt, Investments, etc. Exhibit 7.3,
-------------------------------------------------------
as from time to time hereafter supplemented in accordance with Sections 6.4.1
and 6.4.2, sets forth (a) the amounts (as of the dates indicated in Exhibit 7.3,
as so supplemented) of all Financing Debt of the Company and its Subsidiaries
and all agreements which relate to such Financing Debt, (b) all Liens and
Guarantees with respect to such Financing Debt, (c) all agreements which
directly or indirectly require the Company or any Subsidiary to make any
Investment and (d) all Investments permitted under Section 6.9.6. The Company
has furnished the Lenders with correct and complete
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copies of any agreements described in clauses (a), (b), (c) and (d) above
requested by the Required Lenders.
7.4 Changes in Condition. Since April 30, 1997 no Material Adverse Change
--------------------
has occurred and between April 30, 1997 and the date hereof, neither the Company
nor any Subsidiary of the Company has entered into any material transaction
outside the ordinary course of business except for the transactions contemplated
by this Agreement and the Material Agreements.
7.5 Title to Assets. The Company and its Subsidiaries have defensible
---------------
title to or the right to use all material assets necessary for or used in the
operations of their business as now conducted by them and reflected in the most
recent balance sheet referred to in Section 7.2.1 (or the balance sheet most
recently furnished to the Lenders pursuant to Sections 6.4.1 or 6.4.2), and to
all assets acquired subsequent to the date of such balance sheet, subject to no
Liens except for Liens permitted by Section 6.8 and except for assets disposed
of as permitted by Section 6.11.
7.6 Operations in Conformity with Law, etc. To the best knowledge of the
--------------------------------------
Company and the Guarantors, the operations of the Company and its Subsidiaries
as now conducted or proposed to be conducted are not in violation of, nor is the
Company or its Subsidiaries in default under, any Legal Requirement presently in
effect, except for such violations and defaults as do not and will not, in the
aggregate, result, or create a material risk of resulting, in any Material
Adverse Change. The Company has received no notice of any such violation or
default and has no knowledge of any basis on which the operations of the Company
or its Subsidiaries, as now conducted and as currently proposed to be conducted
after the date hereof, would be held so as to violate or to give rise to any
such violation or default.
7.7 Litigation. No litigation, at law or in equity, or any proceeding
----------
before any court, board or other governmental or administrative agency or any
arbitrator is pending or, to the knowledge of the Company or any Guarantor,
threatened which may involve any material risk of any final judgment, order or
liability which, after giving effect to any applicable insurance, has resulted,
or creates a material risk of resulting, in any Material Adverse Change or which
seeks to enjoin the consummation, or which questions the validity, of any of the
transactions contemplated by this Agreement or any other Credit Document. No
judgment, decree or order of any court, board or other governmental or
administrative agency or any arbitrator has been issued against or binds the
Company or any of its Subsidiaries which has resulted, or creates a material
risk of resulting, in any Material Adverse Change.
7.8 Authorization and Enforceability. Each of the Company and each other
--------------------------------
Obligor has taken all corporate action required to execute, deliver and perform
this Agreement and each other Credit Document to which it is party. No consent
of stockholders of the Company is necessary in order to authorize the execution,
delivery or performance of this Agreement or any other Credit Document to which
the Company is party. Each of this Agreement and each other Credit Document
constitutes the legal, valid and binding obligation of each Obligor party
thereto and is enforceable against such Obligor in accordance with its terms.
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7.9. No Legal Obstacle to Agreements. Neither the execution and delivery
-------------------------------
of this Agreement or any other Credit Document, nor the making of any borrowings
hereunder, nor the guaranteeing of the Credit Obligations, nor the securing of
the Credit Obligations with the Credit Security, nor the consummation of any
transaction referred to in or contemplated by this Agreement or any other Credit
Document, nor the fulfillment of the terms hereof or thereof or of any other
agreement, instrument, deed or lease contemplated by this Agreement or any other
Credit Document, has constituted or resulted in or will constitute or result in:
(a) any breach or termination of the provisions of any material
agreement, instrument, deed or lease to which the Company, any of its
Subsidiaries or any other Obligor is a party or by which it is bound
(including the Master Shelf Agreement, the Pledge Agreement and the
Intercreditor Agreement), or of the Charter or By-laws of the Company, any
of its Subsidiaries or any other Obligor;
(b) the violation of any law, statute, judgment, decree or
governmental order, rule or regulation applicable to the Company, any of
its Subsidiaries or any other Obligor;
(c) the creation under any agreement, instrument, deed or lease
(including the Master Shelf Agreement, the Pledge Agreement and the
Intercreditor Agreement) of any Lien (other than Liens on the Credit
Security which secure the Credit Obligations) upon any of the assets of the
Company, any of its Subsidiaries or any other Obligor; or
(d) any redemption, retirement or other repurchase obligation of the
Company, any of its Subsidiaries or any other Obligor under any Charter,
By-law, agreement, instrument, deed or lease.
No approval, authorization or other action by, or declaration to or filing with,
any governmental or administrative authority or any other Person is required to
be obtained or made (which has not been so obtained or made), including any
approval, authorization, consent or other action of Prudential under the Master
Shelf Agreement, the Intercreditor Agreement and the Pledge Agreement, by the
Company, any of its Subsidiaries or any other Obligor in connection with the
execution, delivery and performance of this Agreement, the Notes or any other
Credit Document, the transactions contemplated hereby or thereby, the making of
any borrowing hereunder, the guaranteeing of the Credit Obligations or the
securing of the Credit Obligations with the Credit Security.
7.10. Defaults. Neither the Company nor any of its Subsidiaries is in
--------
default under any provision of its Charter or By-laws or of this Agreement or
any other Credit Document. Neither the Company nor any of its Subsidiaries is
in default under any provision of (a) the Subordinated Debentures, the
Subordinated Debentures Agreement or the Subordinated Debentures Guarantee, (b)
the Master Shelf Agreement or (c) any other agreement, instrument, deed or lease
to which it is party or by which it or its property is bound or has violated any
law, judgment, decree or
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governmental order, rule or regulation, in each case referred to in this clause
(c) so as to result, or create a material risk of resulting, in any Material
Adverse Effect.
7.11. Licenses, etc. To the best knowledge of the Company and the
-------------
Guarantors, the Company and its Subsidiaries have all material patents, patent
applications, patent licenses, patent rights, trademarks, trademark rights,
trade names, trade name rights, copyrights, licenses, franchises, permits,
authorizations and other rights as are necessary for the conduct of the business
of the Company and its Subsidiaries as now conducted by them. All of the
foregoing are in full force and effect in all material respects, and each of the
Company and its Subsidiaries is in substantial compliance with the foregoing
without any known conflict with the valid rights of others which has resulted,
or creates a material risk of resulting, in any Material Adverse Effect. No
event has occurred which permits, or after notice or lapse of time or both would
permit, the revocation or termination of any such license, franchise or other
right or which affects the rights of any of the Company and its Subsidiaries
thereunder so as to result, or to create a material risk of resulting, in any
Material Adverse Effect. No litigation or other proceeding or dispute exists
with respect to the validity or, where applicable, the extension or renewal, of
any of the foregoing which has resulted, or creates a material risk of
resulting, in any Material Adverse Effect.
7.12. Tax Returns. Each of the Company and its Subsidiaries has filed all
-----------
material tax and information returns or permitted extensions which are required
to be filed by it and has paid, or made adequate provision for the payment of,
all taxes which have or may become due pursuant to such returns or to any
assessment received by it. Neither the Company nor any of its Subsidiaries
knows of any material additional assessments or any basis therefor. The Company
reasonably believes that the charges, accruals and reserves on the books of the
Company and its Subsidiaries in respect of taxes or other governmental charges
are adequate.
7.13. Certain Business Representations.
--------------------------------
7.13.1. Labor Relations. No dispute or controversy between the
---------------
Company or any of its Subsidiaries and any of their respective employees
has resulted, or is reasonably likely to result, in any Material Adverse
Effect, and neither the Company nor any of its Subsidiaries anticipates
that its relationships with its unions or employees will result, or are
reasonably likely to result, in any Material Adverse Effect. The Company
and each of its Subsidiaries is in compliance in all material respects with
all federal and state laws with respect to (a) non-discrimination in
employment with which the failure to comply, in the aggregate, has
resulted, or creates a material risk of resulting, in a Material Adverse
Effect and (b) the payment of wages.
7.13.2. Antitrust. Each of the Company and its Subsidiaries is in
---------
compliance in all material respects with all federal and state antitrust
laws relating to its business and the geographic concentration of its
business.
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7.13.3. Consumer Protection. Neither the Company nor any of its
-------------------
Subsidiaries is in violation of any rule, regulation, order, or interpretation
of any rule, regulation or order of the Federal Trade Commission (including
truth-in-lending), with which the failure to comply, in the aggregate, has
resulted, or creates a material risk of resulting, in a Material Adverse Effect.
7.13.4. Burdensome Obligations. Neither the Company nor any of its
----------------------
Subsidiaries is party to or bound by any agreement, instrument, deed or lease or
is subject to any Charter, By-law or other restriction, commitment or
requirement which, in the opinion of the management of such Person, is so
unusual or burdensome as in the foreseeable future to result, or create a
material risk of resulting, in a Material Adverse Effect.
7.13.5. Future Expenditures. Neither the Company nor any of its
-------------------
Subsidiaries anticipate that the future expenditures, if any, by the Company and
its Subsidiaries needed to meet the provisions of any federal, state or foreign
governmental statutes, orders, rules or regulations will be so burdensome as to
result, or create a material risk of resulting, in any Material Adverse Effect.
7.14. Environmental Regulations.
-------------------------
7.14.1. Environmental Compliance. To the best knowledge of the
------------------------
Company and the Guarantors, each of the Company and its Subsidiaries is in
compliance in all material respects with the Clean Air Act, the Federal Water
Pollution Control Act, the Marine Protection Research and Sanctuaries Act, RCRA,
CERCLA and any other Environmental Law in effect in any jurisdiction in which
any properties of the Company or any of its Subsidiaries are located or where
any of them conducts its business, and with all applicable published rules and
regulations (and applicable standards and requirements) of the federal
Environmental Protection Agency and of any similar agencies in states or foreign
countries in which the Company or its Subsidiaries conducts its business, in
each case other than those which in the aggregate have not resulted, and do not
create a material risk of resulting, in a Material Adverse Effect.
7.14.2. Environmental Litigation. Except in instances in which such
------------------------
event has not resulted, and does not create a material risk of resulting, in a
Material Adverse Effect, no suit, claim, action or proceeding of which the
Company or any of its Subsidiaries has been given notice or otherwise has
knowledge is now pending before any court, governmental agency or board or other
forum, or to the Company's or any of its Subsidiaries' knowledge, threatened by
any Person (nor to the Company's or any of its Subsidiaries' knowledge, does any
factual basis exist therefor) for, and neither the Company nor any of its
Subsidiaries have received written correspondence from any federal, state or
local governmental authority with respect to:
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(a) noncompliance by the Company or any of its Subsidiaries with any
Environmental Law;
(b) personal injury, wrongful death or other tortious conduct relating
to materials, commodities or products used, generated, sold, transferred or
manufactured by the Company or any of its Subsidiaries (including products
made of, containing or incorporating asbestos, lead or other hazardous
materials, commodities or toxic substances); or
(c) the release into the environment by the Company or any of its
Subsidiaries of any Hazardous Material generated by the Company or any of
its Subsidiaries whether or not occurring at or on a site owned, leased or
operated by the Company or any of its Subsidiaries.
7.14.3. Hazardous Material. Exhibit 7.14 contains a list as of the
------------------
date hereof of all waste disposal or dump sites at which Hazardous Material
generated by either the Company or any of its Subsidiaries has been
disposed of directly by the Company or any of its Subsidiaries and all
independent contractors to whom the Company and its Subsidiaries have
delivered Hazardous Material, or to the Company's or any of its
Subsidiaries' knowledge, where Hazardous Material finally came to be
located, and indicates all such sites which are or have been included
(including as a potential or suspect site) in any published federal, state
or local "superfund" or other list of hazardous or toxic waste sites,
except sites as to which the involvement of the Company or any Subsidiary
has not resulted, and does not present a material risk of resulting, in a
Material Adverse Effect. Any waste disposal or dump sites at which
Hazardous Material generated by either the Company or any of its
Subsidiaries has been disposed of directly by the Company or any of its
Subsidiaries and all independent contractors to whom the Company or any of
its Subsidiaries have delivered Hazardous Material, or to the Company's or
any of its Subsidiaries' knowledge, where Hazardous Material finally came
to be located, has not resulted, and does not present a material risk of
resulting, in a Material Adverse Effect.
7.14.4 Environmental Condition of Properties. None of the properties
-------------------------------------
owned or leased by the Company or any of its Subsidiaries has been used as
a treatment, storage or disposal site, other than as disclosed in Exhibit
7.14, except sites as to which the involvement of the Company or any
Subsidiary has not resulted, and does not present a material risk of
resulting, in a Material Adverse Effect. No Hazardous Material is present
in any real property currently or formerly owned or operated by the Company
or any of its Subsidiaries except that which has not resulted, and does not
present a material risk of resulting, in a Material Adverse Effect.
7.15. Pension Plans. Each Plan (other than a Multiemployer Plan) and, to
-------------
the knowledge of the Company and its Subsidiaries, each Multiemployer Plan is in
material compliance with the applicable provisions of ERISA and the Code. Each
Multiemployer Plan and each Plan that
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constitutes a "defined benefit plan" (as defined in ERISA) are set forth in
Exhibit 7.15. Each ERISA Group Person has met all of the funding standards
applicable to all Plans that are not Multiemployer Plans, and no condition
exists which would permit the institution of proceedings to terminate any Plan
that is not a Multiemployer Plan under section 4042 of ERISA. To the best
knowledge of the Company and each Subsidiary, no Plan that is a Multiemployer
Plan is currently insolvent or in reorganization or has been terminated within
the meaning of ERISA.
7.16. [Intentionally Omitted]
7.17. Foreign Trade Regulations; Government Regulation; Margin Stock.
--------------------------------------------------------------
7.17.1. Foreign Trade Regulations. Neither the execution and
-------------------------
delivery of this Agreement or any other Credit Document, nor the making by
the Company of any borrowings hereunder, nor the guaranteeing of the Credit
Obligations by any Guarantor, nor the securing of the Credit Obligations
with the Credit Security, has constituted or resulted in or will constitute
or result in the violation of any Foreign Trade Regulation.
7.17.2. Government Regulation. Neither the Company nor any of its
---------------------
Subsidiaries, nor any Person controlling the Company or any of its
Subsidiaries or under common control with the Company or any of its
Subsidiaries, is subject to regulation under the Public Utility Holding
Company Act of 1935, the Federal Power Act, the Investment Company Act, the
Interstate Commerce Act or any statute or regulation which regulates the
incurring by the Company or any of its Subsidiaries of Financing Debt as
contemplated by this Agreement and the other Credit Documents.
7.17.3. Margin Stock. Neither the Company nor any of its
------------
Subsidiaries owns any Margin Stock.
7.18. Disclosure. To the best knowledge of the Company and the
----------
Guarantors, neither this Agreement nor any other Credit Document to be furnished
to the Lenders by or on behalf of the Company or any of its Subsidiaries in
connection with the transactions contemplated hereby or by such Credit Document
contains any untrue statement of material fact or omits to state a material fact
necessary in order to make the statements contained herein or therein,
considered as a whole, not misleading in light of the circumstances under which
they were made. No fact is actually known to the Company or any Guarantor which,
so far as the Company or any Guarantor is aware, has resulted, or in the future
(so far as the Company or any Guarantor can reasonably foresee) will result, or
presents a material risk of resulting, in any Material Adverse Change, except to
the extent that present or future general economic conditions may result in a
Material Adverse Change.
8. Defaults.
--------
8.1 Events of Default. The following events are referred to as "Events
----------------- -------
of Default":
-------
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8.1.1. Payment. The Company shall fail to make any payment in
-------
respect of: (a) interest or any fee on or in respect of any of the Credit
Obligations owed by it as the same shall become due and payable, and such
failure shall continue for a period of three Banking Days, or (b) any
Credit Obligation with respect to payments made by any Letter of Credit
Issuer under any Letter of Credit or any draft drawn thereunder within
three Banking Days after demand therefor by such Letter of Credit Issuer or
(c) principal of any of the Credit Obligations owed by it as the same shall
become due, whether at maturity or by acceleration or otherwise.
8.1.2. Specified Covenants. The Company or any of its Subsidiaries
-------------------
shall fail to perform or observe any of the provisions of Section 6.2.5,
6.4.6, 6.5, 6.6, 6.7, 6.8, 6.11, 6.12 or 6.19.
8.1.3. Other Covenants. The Company, any of its Subsidiaries or any
---------------
other Obligor shall fail to perform or observe any other covenant,
agreement or provision to be performed or observed by it under this
Agreement or any other Credit Document, and such failure shall not be
rectified or cured to the written satisfaction of the Required Lenders
within 30 days after the earlier of (a) notice thereof by the Agent to the
Company or (b) a Financial Officer shall have actual knowledge thereof.
8.1.4. Representations and Warranties. Any representation or
------------------------------
warranty of or with respect to the Company, any of its Subsidiaries or any
other Obligor made to the Lenders or the Agent in, pursuant to or in
connection with this Agreement or any other Credit Document shall be
materially false on the date as of which it was made.
8.1.5. Cross Default, etc.
------------------
(a) The Company or any of its Subsidiaries shall fail to make any
payment when due (after giving effect to any applicable grace periods) in
respect of any Financing Debt (other than the Credit Obligations)
outstanding in an aggregate amount of principal (whether or not due) and
accrued interest exceeding $3,000,000, and such failure shall continue,
without having been duly cured, waived or consented to, beyond the period
of grace, if any, specified in the agreement or instrument governing such
Financing Debt;
(b) the Company or any of its Subsidiaries shall fail to perform or
observe the terms of any agreement or instrument relating to such Financing
Debt, and such failure shall continue, without having been duly cured,
waived or consented to, beyond the period of grace, if any, specified in
such agreement or instrument, and such failure shall permit the
acceleration of such Financing Debt;
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(c) all or any part of such Financing Debt of the Company or any of
its Subsidiaries shall be accelerated or shall become due or payable prior
to its stated maturity (except with respect to voluntary prepayments
thereof) for any reason whatsoever;
(d) any Lien on any property of the Company or any of its Subsidiaries
securing any such Financing Debt shall be enforced by foreclosure or
similar action; or
(e) any holder of any such Financing Debt shall exercise any right of
rescission or put right with respect thereto.
8.1.6. Ownership; Liquidation; etc. Except as permitted by Section
---------------------------
6.11:
(a) The Company shall cease to own, directly or indirectly, all the
capital stock of any Subsidiary which is a Wholly Owned Subsidiary on the
date hereof or subsequently becomes a Wholly Owned Subsidiary;
(b) any Person, together with "affiliates" and "associates" of such
Person within the meaning of Rule 12b-2 of the Exchange Act, which is not
now a beneficial owner of equity securities of the Company shall acquire
after the date hereof beneficial ownership within the meaning of Rule 13d-3
of the Exchange Act of 50% or more of either the voting stock or total
equity capital of the Company;
(c) a majority of the board of directors shall consist of individuals
who were not on the date hereof members of such board, except to the extent
that the new members were nominated by a majority of the directors serving
on the date hereof; and
(d) The Company or any of its Subsidiaries or any other Obligor shall
initiate any action to dissolve, liquidate or otherwise terminate its
existence.
8.1.7. Enforceability, etc. Any Credit Document shall cease for any
-------------------
reason (other than the scheduled termination thereof in accordance with its
terms) to be enforceable in accordance with its terms or in full force and
effect and such enforceability shall not be restored, or other provision
therefor made, to the satisfaction of the Required Lenders within 30 days
following such cessation; or any party to any Credit Document shall so
assert in a judicial or similar proceeding; or the security interests
created by this Agreement or any other Credit Documents shall cease to be
enforceable and of the same effect and priority purported to be created
hereby.
8.1.8. Judgments. A final judgment (a) which, with other outstanding
---------
final judgments against the Company and its Subsidiaries, exceeds an
aggregate of $1,000,000 in excess of applicable insurance coverage shall be
rendered against the Company or any of its Subsidiaries, or (b) which
grants injunctive relief that results, or creates a material risk of
resulting, in a Material Adverse Change and in either case if, (i) within
60 days
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after entry thereof, such judgment shall not have been discharged or
execution thereof stayed pending appeal or (ii) within 60 days after the
expiration of any such stay, such judgment shall not have been discharged.
8.1.9. ERISA. Any "reportable event" (as defined in section 4043 of
-----
ERISA) shall have occurred that reasonably could be expected to result in
termination of a Plan or the appointment by the appropriate United States
District Court of a trustee to administer any Plan or the imposition of a
Lien in favor of a Plan; or any ERISA Group Person shall fail to pay when
due amounts aggregating in excess of $1,000,000 which it shall have become
liable to pay to the PBGC or to a Plan under Title IV of ERISA; or notice
of intent to terminate a Plan shall be filed under Title IV of ERISA by any
ERISA Group Person or administrator; or the PBGC shall institute
proceedings under Title IV of ERISA to terminate or to cause a trustee to
be appointed to administer any Plan or a proceeding shall be instituted by
a fiduciary of any Plan against any ERISA Group Person to enforce section
515 or 4219(c)(5) of ERISA and such proceeding shall not have been
dismissed within 60 days thereafter; or a condition shall exist by reason
of which the PBGC would be entitled to obtain a decree adjudicating that
any Plan must be terminated.
8.1.10. Bankruptcy, etc. The Company, any of its Subsidiaries or any
---------------
other Obligor shall:
(a) commence a voluntary case under the Bankruptcy Code or authorize,
by appropriate proceedings of its board of directors or other governing
body, the commencement of such a voluntary case;
(b) (i) have filed against it a petition commencing an involuntary
case under the Bankruptcy Code that shall not have been dismissed within 90
days after the date on which such petition is filed, or (ii) file an answer
or other pleading within such 90-day period admitting or failing to deny
the material allegations of such a petition or seeking, consenting to or
acquiescing in the relief therein provided, or (iii) have entered against
it an order for relief in any involuntary case commenced under the
Bankruptcy Code;
(c) seek relief as a debtor under any applicable law, other than the
Bankruptcy Code, of any jurisdiction relating to the liquidation or
reorganization of debtors or to the modification or alteration of the
rights of creditors, or consent to or acquiesce in such relief;
(d) have entered against it an order by a court of competent
jurisdiction (i) finding it to be bankrupt or insolvent, (ii) ordering or
approving its liquidation or reorganization as a debtor or any modification
or alteration of the rights of its creditors or (iii) assuming custody of,
or appointing a receiver or other custodian for, all or a substantial
portion of its property; or
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(e) make an assignment for the benefit of, or enter into a composition
with, its creditors, or appoint, or consent to the appointment of, or
suffer to exist a receiver or other custodian for, all or a substantial
portion of its property.
8.1.11 Subordinated Debentures. There shall occur any "Event of
-----------------------
Default" as defined in Section 13.1 of the Subordinated Debentures Agreement, or
any of the Credit Obligations shall fail to be "Superior Indebtedness" within
the meaning of Section 10 of the Subordinated Debentures Agreement.
8.2 Certain Actions Following an Event of Default. If any one or more
---------------------------------------------
Events of Default shall occur, then in each and every such case:
8.2.1 Terminate Obligation to Extend Credit. The Agent on behalf of
-------------------------------------
the Lenders may (and upon written request of the Required Lenders the Agent
shall) terminate the obligations of the Lenders to make any further extensions
of credit under the Credit Documents by furnishing notice of such termination to
the Company.
8.2.2 Specific Performance; Exercise of Rights. The Agent on behalf
----------------------------------------
of the Lenders may (and upon written request of the Required Lenders the Agent
shall) proceed to protect and enforce the Lenders' rights by suit in equity,
action at law and/or other appropriate proceeding, either for specific
performance of any covenant or condition contained in this Agreement or any
other Credit Document or in any instrument or assignment delivered to the
Lenders pursuant to this Agreement or any other Credit Document, or in aid of
the exercise of any power granted in this Agreement or any other Credit Document
or any such instrument or assignment.
8.2.3 Acceleration. The Agent on behalf of the Lenders may (and upon
------------
written request of the Required Lenders the Agent shall) by notice in writing to
the Company (a) declare all or any part of the unpaid balance of the Credit
Obligations then outstanding to be immediately due and payable, and (b) require
the Company immediately to deposit with the Agent in cash an amount equal to the
then Letter of Credit Exposure (which cash shall be held and applied as provided
in Section 4.5), and thereupon such unpaid balance or part thereof and such
amount equal to the Letter of Credit Exposure shall become so due and payable
without presentation, protest or further demand or notice of any kind, all of
which are hereby expressly waived; provided, however, that if a Bankruptcy
-------- -------
Default shall have occurred, the unpaid balance of the Credit Obligations shall
automatically become immediately due and payable.
8.2.4 Enforcement of Payment; Credit Security; Setoff. The Agent on
-----------------------------------------------
behalf of the Lenders may (and upon written request of the Required Lenders the
Agent shall) proceed to enforce payment of the Credit Obligations in such manner
as it may elect, to cancel, or instruct other Letter of Credit Issuers to
cancel, any outstanding Letters of Credit which permit the cancellation thereof
and to realize upon any and all rights in the
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Credit Security. The Lenders may offset and apply toward the payment of the
Credit Obligations (and/or toward the curing of any Event of Default) any
Indebtedness from the Lenders to the respective Obligors, including any
Indebtedness represented by deposits in any account maintained with the
Lenders, regardless of the adequacy of any security for the Credit
Obligations. The Lenders shall have no duty to determine the adequacy of
any such security in connection with any such offset.
8.2.5. Cumulative Remedies. To the extent not prohibited by applicable
-------------------
law which cannot be waived, all of the Lenders' rights hereunder and under
each other Credit Document shall be cumulative.
8.3 Annulment of Defaults. Once an Event of Default has occurred, such
---------------------
Event of Default shall be deemed to exist and be continuing for all purposes of
the Credit Documents until the Required Lenders or the Agent (with the consent
of the Required Lenders) shall have waived such Event of Default in writing,
stated in writing that the same has been cured to such Lenders' reasonable
satisfaction or entered into an amendment to this Agreement which by its express
terms cures such Event of Default, at which time such Event of Default shall no
longer be deemed to exist or to have continued. No such action by the Lenders
or the Agent shall extend to or affect any subsequent Event of Default or impair
any rights of the Lenders upon the occurrence thereof. The making of any
extension of credit during the existence of any Default or Event of Default
shall not constitute a waiver thereof.
8.4 Waivers. To the extent that such waiver is not prohibited by the
-------
provisions of applicable law that cannot be waived, each of the Company and the
other Obligors waives:
(a) all presentments, demands for performance, notices of
nonperformance (except to the extent required by this Agreement or any
other Credit Document), protests, notices of protest and notices of
dishonor;
(b) any requirement of diligence or promptness on the part of any
Lender in the enforcement of its rights under this Agreement, the Notes or
any other Credit Document;
(c) any and all notices of every kind and description which may be
required to be given by any statute or rule of law; and
(d) any defense (other than indefeasible payment in full) which it may
now or hereafter have with respect to its liability under this Agreement,
the Notes or any other Credit Document or with respect to the Credit
Obligations.
9. Guarantees.
----------
9.1 Guarantees of Credit Obligations. Each Guarantor unconditionally
--------------------------------
jointly and severally guarantees that the Credit Obligations will be performed
and will be paid in full in cash
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when due and payable, whether at the stated or accelerated maturity thereof or
otherwise, this guarantee being a guarantee of payment and not of collectability
and being absolute and in no way conditional or contingent. In the event any
part of the Credit Obligations shall not have been so paid in full when due and
payable, each Guarantor will, immediately upon notice by the Agent or, without
notice, immediately upon the occurrence of a Bankruptcy Default, pay or cause to
be paid to the Agent for the account of each Lender in accordance with the
Lenders' respective Percentage Interests the amount of such Credit Obligations
which are then due and payable and unpaid. The obligations of each Guarantor
hereunder shall not be affected by the invalidity, unenforceability or
irrecoverability of any of the Credit Obligations as against any other Obligor,
any other guarantor thereof or any other Person. For purposes hereof, the Credit
Obligations shall be due and payable when and as the same shall be due and
payable under the terms of this Agreement or any other Credit Document
notwithstanding the fact that the collection or enforcement thereof may be
stayed or enjoined under the Bankruptcy Code or other applicable law.
9.2 Continuing Obligation. Each Guarantor acknowledges that the Lenders
---------------------
and the Agent have entered into this Agreement (and, to the extent that the
Lenders or the Agent may enter into any future Credit Document, will have
entered into such agreement) in reliance on this Section 9 being a continuing
irrevocable agreement, and such Guarantor agrees that its guarantee may not be
revoked in whole or in part. The obligations of the Guarantors hereunder shall
terminate when the commitment of the Lenders to extend credit under this
Agreement shall have terminated and all of the Credit Obligations have been
indefeasibly paid in full in cash and discharged; provided, however, that:
-------- -------
(a) if a claim is made upon the Lenders at any time for repayment or
recovery of any amounts or any property received by the Lenders from any
source on account of any of the Credit Obligations and the Lenders repay or
return any amounts or property so received (including interest thereon to
the extent required to be paid by the Lenders) or
(b) if the Lenders become liable for any part of such claim by reason
of (i) any judgment or order of any court or administrative authority
having competent jurisdiction, or (ii) any settlement or compromise of any
such claim of which the Company has notice and an opportunity to comment,
then the Guarantors shall remain liable under this Agreement for the amounts so
repaid or property so returned or the amounts for which the Lenders become
liable (such amounts being deemed part of the Credit Obligations) to the same
extent as if such amounts or property had never been received by the Lenders,
notwithstanding any termination hereof or the cancellation of any instrument or
agreement evidencing any of the Credit Obligations. Not later than five days
after receipt of notice from the Agent, the Guarantors shall jointly and
severally pay to the Agent an amount equal to the amount of such repayment or
return for which the Lenders have so become liable. Payments hereunder by a
Guarantor may be required by the Agent on any number of occasions.
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9.3 Waivers with Respect to Credit Obligations. Except to the extent
------------------------------------------
expressly required by this Agreement or any other Credit Document, each
Guarantor waives, to the fullest extent permitted by the provisions of
applicable law, all of the following (including all defenses, counterclaims and
other rights of any nature based upon any of the following):
(a) presentment, demand for payment and protest of nonpayment of any
of the Credit Obligations, and notice of protest, dishonor or
nonperformance;
(b) notice of acceptance of this guarantee and notice that credit has
been extended in reliance on the Guarantor's guarantee of the Credit
Obligations;
(c) notice of any Default or of any inability to enforce performance
of the obligations of the Company or any other Person with respect to any
Credit Document, or notice of any acceleration of maturity of any Credit
Obligations;
(d) demand for performance or observance of, and any enforcement of
any provision of, the Credit Obligations, this Agreement or any other
Credit Document or any pursuit or exhaustion of rights or remedies with
respect to any Credit Security or against the Company or any other Person
in respect of the Credit Obligations or any requirement of diligence or
promptness on the part of the Agent or the Lenders in connection with any
of the foregoing;
(e) any act or omission on the part of the Agent or the Lenders which
may impair or prejudice the rights of the Guarantor, including rights to
obtain subrogation, exoneration, contribution, indemnification or any other
reimbursement from the Company or any other Person, or otherwise operate as
a deemed release or discharge;
(f) failure or delay to perfect or continue the perfection of any
security interest in any Credit Security or any other action which harms or
impairs the value of, or any failure to preserve or protect the value of,
any Credit Security;
(g) any statute of limitations or any statute or rule of law which
provides that the obligation of a surety must be neither larger in amount
nor in other respects more burdensome than the obligation of the principal;
(h) any "single action" or "anti-deficiency" law which would otherwise
prevent the Lenders from bringing any action, including any claim for a
deficiency, against the Guarantor before or after the Agent's or the
Lenders' commencement or completion of any foreclosure action, whether
judicially, by exercise of power of sale or otherwise, or any other law
which would otherwise require any election of remedies by the Agent or the
Lenders;
(i) all demands and notices of every kind with respect to the
foregoing; and
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(j) to the extent not referred to above, all defenses (other than
payment) which the Company may now or hereafter have to the payment of the
Credit Obligations, together with all suretyship defenses, which could
otherwise be asserted by such Guarantor.
Each Guarantor represents that it has obtained the advice of counsel as to the
extent to which suretyship and other defenses may be available to it with
respect to its obligations hereunder in the absence of the waivers contained in
this Section 9.3.
No delay or omission on the part of the Agent or the Lenders in exercising
any right under this Agreement or any other Credit Document or under any
guarantee of the Credit Obligations or with respect to the Credit Security shall
operate as a waiver or relinquishment of such right. No action which the Agent
or the Lenders or the Company may take or refrain from taking with respect to
the Credit Obligations, including any amendments thereto or modifications
thereof or waivers with respect thereto, shall affect the provisions of this
Agreement or the obligations of the Guarantor hereunder. None of the Lenders'
or the Agent's rights shall at any time in any way be prejudiced or impaired by
any act or failure to act on the part of any Obligor, or by any noncompliance by
the Company with the terms, provisions and covenants of this Agreement,
regardless of any knowledge thereof which the Agent or the Lenders may have or
otherwise be charged with.
9.4 Lenders' Power to Waive, etc. Each Guarantor grants to the Lenders
----------------------------
full power in their discretion, without notice to or consent of such Guarantor,
such notice and consent being expressly waived to the fullest extent permitted
by applicable law, and without in any way affecting the liability of the
Guarantor under its guarantee hereunder:
(a) To waive compliance with, and any Default under, and to consent
to any amendment to or modification or termination of any terms or
provisions of, or to give any waiver in respect of, this Agreement, any
other Credit Document, the Credit Security, the Credit Obligations or any
guarantee thereof (each as from time to time in effect);
(b) To grant any extensions of the Credit Obligations (for any
duration), and any other indulgence with respect thereto, and to effect any
total or partial release (by operation of law or otherwise), discharge,
compromise or settlement with respect to the obligations of the Obligors or
any other Person in respect of the Credit Obligations, whether or not
rights against the Guarantor under this Agreement are reserved in
connection therewith;
(c) To take security in any form for the Credit Obligations, and to
consent to the addition to or the substitution, exchange, release or other
disposition of, or to deal in any other manner with, any part of any
property contained in the Credit Security whether or not the property, if
any, received upon the exercise of such power shall be of a character or
value the same as or different from the character or value of any property
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disposed of, and to obtain, modify or release any present or future
guarantees of the Credit Obligations and to proceed against any of the
Credit Security or such guarantees in any order;
(d) To collect or liquidate or realize upon any of the Credit
Obligations or the Credit Security in any manner or to refrain from
collecting or liquidating or realizing upon any of the Credit Obligations
or the Credit Security; and
(e) To extend credit under this Agreement, any other Credit Document
or otherwise in such amount as the Lenders may determine, including
increasing the amount of credit and the interest rate and fees with respect
thereto, even though the condition of the Obligors (financial or otherwise
on an individual or Consolidated basis) may have deteriorated since the
date hereof.
9.5 Information Regarding the Company, etc. Each Guarantor has made such
--------------------------------------
investigation as it deems desirable of the risks undertaken by it in entering
into this Agreement and is fully satisfied that it understands all such risks.
Each Guarantor waives any obligation which may now or hereafter exist on the
part of the Agent or the Lenders to inform it of the risks being undertaken by
entering into this Agreement or of any changes in such risks and, from and after
the date hereof, each Guarantor undertakes to keep itself informed of such risks
and any changes therein. Each Guarantor expressly waives any duty which may now
or hereafter exist on the part of the Agent or the Lenders to disclose to the
Guarantor any matter related to the business, operations, character, collateral,
credit, condition (financial or otherwise), income or prospects of the Company
or its Affiliates or their properties or management, whether now or hereafter
known by the Agent or the Lenders. Each Guarantor represents, warrants and
agrees that it assumes sole responsibility for obtaining from the Company all
information concerning this Agreement and all other Credit Documents and all
other information as to the Company and its Affiliates or their properties or
management as such Guarantor deems necessary or desirable.
9.6 Certain Guarantor Representations. Each Guarantor represents that:
---------------------------------
(a) it is in its best interest and in pursuit of the purposes for
which it was organized as an integral part of the business conducted and
proposed to be conducted by the Company and its Subsidiaries, and
reasonably necessary and convenient in connection with the conduct of the
business conducted and proposed to be conducted by them, to induce the
Lenders to enter into this Agreement and to extend credit to the Company by
making the Guarantees contemplated by this Section 9,
(b) the credit available hereunder will directly or indirectly inure
to its benefit,
(c) by virtue of the foregoing it is receiving at least reasonably
equivalent value from the Lenders for its Guarantee,
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(d) it will not be rendered insolvent as a result of entering into
this Agreement,
(e) after giving effect to the transactions contemplated by this
Agreement, it will have assets having a fair saleable value in excess of
the amount required to pay its probable liability on its existing debts as
they become absolute and matured,
(f) it has, and will have, access to adequate capital for the
conduct of its business,
(g) it has the ability to pay its debts from time to time incurred
in connection therewith as such debts mature, and
(h) it has been advised by the Agent that the Lenders are unwilling
to enter into this Agreement unless the Guarantees contemplated by this
Section 9 are given by it.
9.7 Subrogation. Each Guarantor agrees that, until the Credit Obligations
-----------
are paid in full, it will not exercise any right of reimbursement, subrogation,
contribution, offset or other claims against the other Obligors arising by
contract or operation of law in connection with any payment made or required to
be made by such Guarantor under this Agreement. After the payment in full of
the Credit Obligations, each Guarantor shall be entitled to exercise against the
Company and the other Obligors all such rights of reimbursement, subrogation,
contribution and offset, and all such other claims, to the fullest extent
permitted by law.
9.8 Subordination. Each Guarantor covenants and agrees that, after the
-------------
occurrence of an Event of Default, all Indebtedness, claims and liabilities then
or thereafter owing by the Company or any other Obligor to such Guarantor
whether arising hereunder or otherwise are subordinated to the prior payment in
full of the Credit Obligations and are so subordinated as a claim against such
Obligor or any of its assets, whether such claim be in the ordinary course of
business or in the event of voluntary or involuntary liquidation, dissolution,
insolvency or bankruptcy, so that no payment with respect to any such
Indebtedness, claim or liability will be made or received while any Event of
Default exists.
9.9 Future Subsidiaries; Further Assurances. The Company will from time
---------------------------------------
to time cause (a) any present Wholly Owned Subsidiary that is not a Guarantor
within 30 days after notice from the Agent or (b) any future Wholly Owned
Subsidiary within 30 days after any such Person becomes a Wholly Owned
Subsidiary, to join this Agreement as a Guarantor pursuant to a joinder
agreement in form and substance satisfactory to the Agent. Each Guarantor will,
promptly upon the request of the Agent from time to time, execute, acknowledge
and deliver, and file and record, all such instruments, and take all such
action, as the Agent deems necessary or advisable to carry out the intent and
purposes of this Section 9.
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10. Security.
--------
10. Credit Security. As security for the payment and performance of the
---------------
Credit Obligations, each Obligor mortgages, pledges and collaterally grants and
assigns to the Agent for the benefit of the Lenders and the holders from time to
time of any Credit Obligation, and creates a security interest in favor of the
Agent for the benefit of the Lenders and such holders in, all of such Obligor's
right, title and interest in and to (but none of its obligations or liabilities
with respect to) the items and types of present and future property described in
Sections 10.1.1 through 10.1.4 (subject, however, to Section 10.1.5), whether
now owned or hereafter acquired, all of which shall be included in the term
"Credit Security":
---------------
10.1.1. Pledged Stock. (a) All shares of capital stock or other
-------------
evidence of beneficial interest in any corporation, business trust or
limited liability company, including without limitation of all shares of
stock of each of TransMontaigne Transportation Services, Inc.,
TransMontaigne Product Services Inc., Bear Paw Energy Inc. and
TransMontaigne Holding Inc. owned by the Company, and all shares of stock
of TransMontaigne Pipeline Inc. and TransMontaigne Terminaling Inc. owned
by TransMontaigne Transportation Services Inc., (b) all limited partnership
interests in any limited partnership, (c) all general partnership interests
in any general partnership, (d) all joint venture interests in any joint
venture and (e) all options, warrants and similar rights to acquire such
capital stock or such interests. All such capital stock, interests,
options, warrants and other rights are collectively referred to as the
"Pledged Stock".
-------------
10.1.2. Pledged Rights. All rights to receive profits or surplus
--------------
of, or other Distributions (including income, return of capital and
liquidating distributions) from, any corporation, business trust, limited
liability company, partnership or joint venture, including any
distributions by any such Person to partners or joint venturers. All such
rights are collectively referred to as the "Pledged Rights".
--------------
10.1.3. Pledged Indebtedness. All Indebtedness from time to time
--------------------
owing to such Obligor from any Obligor or any Subsidiary of any Obligor
(all such Indebtedness being referred to as the "Pledged Indebtedness").
--------------------
10.1.4. Proceeds and Products. All proceeds, including insurance
---------------------
proceeds, and products of the items of Credit Security described or
referred to in Sections 10.1.1 through 10.1.3 and, to the extent not
included in the foregoing, all Distributions with respect to the Pledged
Securities.
10.1.5. Excluded Property. Notwithstanding Sections 10.1.1 through
-----------------
10.1.4, the payment and performance of the Credit Obligations shall not be
secured by:
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(a) any rights arising under, and any property, tangible or
intangible, acquired under, any agreement which validly prohibits the
creation by such Obligor of a security interest in such rights or property;
(b) any rights or property to the extent that any valid and
enforceable law or regulation applicable to such rights or property
prohibits the creation of a security interest therein; or
(c) more than 66% of the outstanding stock or other equity in any
foreign Subsidiary.
10.2 [Intentionally Omitted].
10.3 Representations, Warranties and Covenants with Respect to Credit
----------------------------------------------------------------
Security. Each Obligor represents, warrants and covenants that:
- --------
10.3.1 Pledged Stock. All shares of capital stock, limited
-------------
partnership interests, membership interests, beneficial interests and similar
securities included in the Pledged Stock are and shall be at all times duly
authorized, validly issued, fully paid and (in the case of capital stock and
limited partnership interests) nonassessable. Each Obligor will deliver to the
Agent certificates representing any Pledged Stock represented by a certificate,
accompanied by a stock transfer power executed in blank and, if the Agent so
requests, with the signature guaranteed, all in form and manner satisfactory to
the Agent. Pledged Stock that is not evidenced by a certificate will be
registered in the Agent's name as pledgee on the issuer's records, all in form
and substance satisfactory to the Agent. At any time after the occurrence of an
Event of Default, the Agent may transfer into its name or the name of its
nominee, as pledgee, any Pledged Securities. In the event the Pledged Stock
includes any Margin Stock, the Obligors will furnish to the Lenders Federal
Reserve Form U-1 and take such other action as the Agent may request to ensure
compliance with applicable laws.
10.3.2 Pledged Indebtedness. All Pledged Indebtedness owed by any
--------------------
Affiliate of the Obligors shall be on open account and shall not be evidenced by
any note or other instrument; provided, however, that all Pledged Indebtedness
-------- -------
owed by any Obligor shall, if the Agent requests, be evidenced by a promissory
note, which note shall be delivered to the Agent after having been endorsed in
blank. Each Obligor will, immediately upon the receipt thereof, deliver to the
Agent any promissory note or similar instrument representing any Pledged
Indebtedness, after having endorsed such promissory note or instrument in blank.
10.3.3 [Intentionally Omitted].
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10.3.4. No Liens or Restrictions on Transfer or Change of Control.
---------------------------------------------------------
All Credit Security shall be free and clear of any Liens and restrictions on the
transfer thereof, including contractual provisions which prohibit the assignment
of rights under contracts, except for Liens permitted by Section 6.8. Without
limiting the generality of the foregoing, each Obligor will exclude from
contracts to which it becomes a party after the date hereof (other than
partnership and joint venture agreements) provisions that would prevent such
Obligor from creating a security interest in such contract or any property
acquired thereunder as contemplated hereby. None of the Pledged Stock is subject
to any adverse claims, option to purchase or similar rights of any Person.
Except with the written consent of the Agent, no Obligor is, and none of them
will be, party to or bound by any agreement, instrument, deed or lease that
restricts the change of control or ownership, or the creation of a security
interest in the ownership, of the Company or any of its Subsidiaries (other than
a Subsidiary which is a partnership).
10.3.5. [Intentionally Omitted].
10.3.6. Trade Names. No Obligor will adopt or do business under any
-----------
name other than its name or names designated in Exhibit 7.1 or any other name
specified by notice actually received by the Agent not less than ten Banking
Days prior to the conduct of business under such additional name. Since its
incorporation, no Obligor has changed its corporate name or adopted or conducted
business under any trade name other than a name specified on Exhibit 7.1.
10.3.7. [Intentionally Omitted].
10.3.8. Modifications to Credit Security. Except with the prior
--------------------------------
written consent of the Agent, no Obligor shall amend or modify, or waive any of
its rights under or with respect to, any Pledged Securities if the effect of
such amendment, modification or waiver would be to reduce the amount of any such
items or to extend the time of payment thereof, to waive any default by any
other party thereto, or to waive or impair any remedies of the Obligors or the
Lenders under or with respect to any Pledged Securities, in each case other than
consistent with past practice in the ordinary course of business and on an
arm's-length basis. Each Obligor will promptly give the Agent written notice of
any request by any Person for any credit or adjustment with respect to any
Pledged Securities.
10.3.9. Delivery of Documents. At the Agent's request, each Obligor
---------------------
shall deliver to the Agent, promptly upon such Obligor's receipt thereof, copies
of any agreements, instruments, documents or invoices comprising or relating to
the Credit Security. Pending such request, such Obligor shall keep such items
at its chief executive office and principal place of business, which office and
place of business shall be set forth in Exhibit 7.1, or at such other address as
such Obliger may specify by notice actually received by the Agent not less than
ten Banking Days prior to such change of address.
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10.3.10. Perfection of Credit Security. Upon the Agent's request
-----------------------------
from time to time, the Obligors will execute and deliver, and file and
record in the proper filing and recording places, all such instruments,
including financing statements, collateral assignments of copyrights,
trademarks and patents, mortgages or deeds of trust, and notations on
certificates of title and will take all such other action, as the Agent
deems advisable for confirming to it the Credit Security or to carry out
any other purposes of this Agreement or any other Credit Document.
10.4 Administration of Credit Security. The Credit Security shall be
---------------------------------
administered as follows; and if an Event of Default shall have occurred, Section
10.5 shall also apply.
10.4.1. Use of Credit Security. Until the Agent provides written
----------------------
notice to the contrary, each Obligor may use, commingle and dispose of any
part of the Credit Security in the ordinary course of its business, all
subject to Section 6.11.
10.4.2. [Intentionally Omitted].
10.4.3. Pledged Securities.
------------------
(a) Distributions.
-------------
(i) Until an Event of Default shall occur, the respective
Obligors shall be entitled to receive all Distributions on or with
respect to the Pledged Securities (other than Distributions
constituting additional Pledged Securities). All Distributions
constituting additional Pledged Securities will be retained by the
Agent (or if received by any Obligor shall be held by such Person in
trust and shall be immediately delivered by such Person to the Agent
in the original form received, endorsed in blank) and held by the
Agent as part of the Credit Security.
(ii) If an Event of Default shall have occurred, all
Distributions on or with respect to the Pledged Securities shall be
retained by the Agent (or if received by any Obligor shall be held by
such Person in trust and shall be immediately delivered by it to the
Agent in the original form received, endorsed in blank) and held by
the Agent as part of the Credit Security or applied by the Agent to
the payment of the Credit Obligations in accordance with Section
10.5.6.
(b) Voting.
------
(i) Until an Event of Default shall occur, the respective
Obligors shall be entitled to vote or consent or refrain from voting
or consenting with respect to the Pledged Securities in any manner not
inconsistent with the terms of any Credit Document, and the Agent
will, if so requested, execute appropriate revocable proxies therefor.
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(ii) If an Event of Default shall have occurred, if and to the
extent that the Agent shall so notify in writing the Obligor pledging
the Pledged Securities in question, only the Agent shall be entitled
to vote or consent or take any other action with respect to the
Pledged Securities (and any Obligor will, if so requested, execute or
cause to be executed appropriate proxies therefor).
10.5. Right to Realize upon Credit Security. Except to the extent
-------------------------------------
prohibited by applicable law that cannot be waived, this Section 10.5 shall
govern the Lenders' right to realize upon the Credit Security if any Event of
Default shall have occurred. The provisions of this Section 10.5 are in
addition to any rights and remedies available at law or in equity and in
addition to the provisions of any other Credit Document. In the case of a
conflict between this Section 10.5 and any other Credit Document, this Section
10.5 shall govern.
10.5.1. Assembly of Credit Security; Receiver. Each of the
-------------------------------------
Obligors shall, upon the Agent's request, assemble the Credit Security and
otherwise make it available to the Agent. The Agent may have a receiver
appointed for all or any portion of the Obligor's assets or business which
constitutes the Credit Security in order to manage, protect, preserve, sell
and otherwise dispose of all or any portion of the Credit Security in
accordance with the terms of the Credit Documents, to continue the
operations of the Obligors and to collect all revenues and profits
therefrom to be applied to the payment of the Credit Obligations, including
the compensation and expenses of such receiver.
10.5.2. General Authority. To the extent specified in written
-----------------
notice from the Agent to the Obligor in question, each Obligor grants the
Agent full and exclusive power and authority, subject to the other terms
hereof and applicable law, to take any of the following actions (for the
sole benefit of the Agent on behalf of the Lenders and the holders from
time to time of any Credit Obligations, but at the Obligor's expense):
(a) To ask for, demand, take, collect, sue for and receive all
payments in respect of any Pledged Securities which the Obligor could
otherwise ask for, demand, take, collect, sue for and receive for its own
use.
(b) To extend the time of payment of any Pledged Securities and to
make any allowance or other adjustment with respect thereto.
(c) To settle, compromise, prosecute or defend any action or
proceeding with respect to any Pledged Securities and to enforce all rights
and remedies thereunder which the Obligor could otherwise enforce.
(d) To enforce the payment of any Pledged Securities, either in the
name of the Obligor or in its own name, and to endorse the name of the
Obligor on all checks, drafts,
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money orders and other instruments tendered to or received in payment of
any Credit Security.
(e) To notify the third party payor with respect to any Pledged
Securities of the existence of the security interest created hereby and to
cause all payments in respect thereof thereafter to be made directly to the
Agent; provided, however, that whether or not the Agent shall have so
-------- -------
notified such payor, the Obligors will at their expense render all
reasonable assistance to the Agent in collecting such items and in
enforcing claims thereon.
(f) To sell, transfer, assign or otherwise deal in or with any
Credit Security or the proceeds thereof, as fully as any Obligor otherwise
10.5.3. Marshaling, etc. Neither the Agent nor the Lenders shall be
---------------
required to make any demand upon, or pursue or exhaust any of their rights
or remedies against, any Obligor or any other guarantor, pledgor or any
other Person with respect to the payment of the Credit Obligations or to
pursue or exhaust any of their rights or remedies with respect to any
collateral therefor or any direct or indirect guarantee thereof. Neither
the Agent nor the Lenders shall be required to marshal the Credit Security
or any guarantee of the Credit Obligations or to resort to the Credit
Security or any such guarantee in any particular order, and all of its and
their rights hereunder or under any other Credit Document shall be
cumulative. To the extent it may lawfully do so, each of the Obligors
absolutely and irrevocably waives and relinquishes the benefit and
advantage of, and covenants not to assert against the Agent or the Lenders,
any valuation, stay, appraisement, extension, redemption or similar laws
now or hereafter existing which, but for this provision, might be
applicable to the sale of any Credit Security made under the judgment,
order or decree of any court, or privately under the power of sale
conferred by this Agreement, or otherwise. Without limiting the generality
of the foregoing, each of the Obligors (a) agrees that it will not invoke
or utilize any law which might prevent, cause a delay in or otherwise
impede the enforcement of the rights of the Agent or any Lender in the
Credit Security, (b) waives all such laws, and (c) agrees that it will not
invoke or raise as a defense to any enforcement by the Agent or any Lender
of any rights and remedies relating to the Credit Security or the Credit
Obligations any legal or contractual requirement with which the Agent or
any Lender may have in good faith failed to comply. In addition, each of
the Obligors waives any right to prior notice (except to the extent
expressly required by this Agreement) or judicial hearing in connection
with foreclosure on or disposition of any Credit Security, including any
such right which such Obligor would otherwise have under the Constitution
of the United States of America, any state or territory thereof or any
other jurisdiction.
10.5.4. Sales of Credit Security. All or any part of the Credit
------------------------
Security may be sold for cash or other value in any number of lots at
public or private sale, without demand, advertisement or notice; provided,
--------
however, that unless the Credit Security to be sold threatens to decline
-------
speedily in value or is of a type customarily sold on a recognized
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market, the Agent shall give the Obligor granting the security interest in such
Credit Security ten days' prior written notice of the time and place of any
public sale, or the time after which a private sale may be made, which notice
each of the Obligors and the Lenders hereby agrees to be reasonable. At any sale
or sales of Credit Security, any Lender or any of its respective officers acting
on its behalf, or such Lender's assigns, may bid for and purchase all or any
part of the property and rights so sold, may use all or any portion of the
Credit Obligations owed to such Lender as payment for the property or rights so
purchased, and upon compliance with the terms of such sale may hold and dispose
of such property and rights without further accountability to the respective
Obligor, except for the proceeds of such sale or sales pursuant to Section
10.5.6. The Obligors acknowledge that any such sale will be made by the Agent on
an "as is" basis with disclaimers of all warranties, whether express or implied.
The respective Obligors will execute and deliver or cause to be executed and
delivered such instruments, documents, assignments, waivers, certificates and
affidavits, will supply or cause to be supplied such further information and
will take such further action as the Agent shall request in connection with any
such sale.
10.5.5. Sale Without Registration. If, at any time when the Agent
-------------------------
shall determine to exercise its rights hereunder to sell all or part of the
securities included in the Credit Security, the securities in question shall not
be effectively registered under the Securities Act (or other applicable law),
the Agent may, in its sole discretion, sell such securities by private or other
sale not requiring such registration in such manner and in such circumstances as
the Agent may deem necessary or advisable in order that such sale may be
effected in accordance with applicable securities laws without such registration
and the related delays, uncertainty and expense. Without limiting the generality
of the foregoing, in any event the Agent may, in its sole discretion, (a)
approach and negotiate with a single purchaser or one or more possible
purchasers to effect such sale, (b) restrict such sale to one or more purchasers
each of whom will represent and agree that such purchaser is purchasing for its
own account, for investment and not with a view to the distribution or sale of
such securities and (c) cause to be placed on certificates representing the
securities in question a legend to the effect that such securities have not been
registered under the Securities Act (or other applicable law) and may not be
disposed of in violation of the provisions thereof. Each of the Obligors agrees
that such manner of disposition is commercially reasonable, that it will upon
the Agent's request give any such purchaser access to such information regarding
the issuer of the securities in question as the Agent may reasonably request and
that the Agent and the Lenders shall not incur any responsibility for selling
all or part of the securities included in the Credit Security at any private or
other sale not requiring such registration, notwithstanding the possibility that
a substantially higher price might be realized if the sale were deferred until
after registration under the Securities Act (or other applicable law) or until
made in compliance with certain other rules or exemptions from the registration
provisions under the Securities Act (or other applicable law). Each of the
Obligors acknowledges that no adequate remedy at law exists for breach by it of
this Section 10.5.5 and that such breach would not be adequately
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compensable in damages and therefore agrees that this Section 10.5.5 may
be specifically enforced.
10.5.6. Application of Proceeds. The proceeds of all sales and
-----------------------
collections in respect of any Credit Security or other assets of any
Obligor, all funds collected from the Obligors and any cash contained in
the Credit Security, the application of which is not otherwise
specifically provided for herein, shall be applied as follows:
First, to the payment of the costs and expenses of such sales and
collections, the reasonable expenses of the Agent and the reasonable fees
and expenses of its special counsel;
Second, any surplus then remaining to the payment of the Credit
Obligations (other than in respect of Interest Rate Protection
Agreements) in such order and manner as the Agent may in its sole
discretion determine; provided, however, that any such payment of Credit
-------- -------
Obligations owed to all Lenders shall be pro rata in accordance with the
respective Percentage Interests of the Lenders;
Third, any surplus then remaining to the payment of the Credit
Obligations in respect of Interest Rate Protection Agreements with any
Lender in such order and manner as the Agent may in its sole discretion
determine; and
Fourth, any surplus then remaining shall be paid to the Obligors,
subject, however, to the rights of the holder of any then existing Lien
of which the Agent has actual notice.
10.6. Custody of Credit Security. Except as provided by applicable law
--------------------------
that cannot be waived, the Agent will have no duty as to the custody and
protection of the Credit Security, the collection of any part thereof or of any
income thereon or the preservation or exercise of any rights pertaining thereto,
including rights against prior parties, except for the use of reasonable care in
the custody and physical preservation of any Credit Security in its possession.
The Lenders will not be liable or responsible for any loss or damage to any
Credit Security, or for any diminution in the value thereof, by reason of the
act or omission of any agent selected by the Agent acting in good faith.
11. Expenses; Indemnity.
-------------------
11.1. Expenses. Whether or not the transactions contemplated hereby
--------
shall be consummated, the Company will pay:
(a) all reasonable expenses of the Agent (including the out-of-
pocket expenses related to forming the group of Lenders and reasonable
fees and disbursements of the counsel to the Agent) in connection with
the preparation and duplication of this Agreement, each other Credit
Document, any environmental audit or review reports, examinations by,
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and reports of, the Agent's commercial financial examiners, the
transactions contemplated hereby and thereby and amendments, waivers,
consents and other operations hereunder and thereunder;
(b) all recording and filing fees and transfer and documentary
stamp and similar taxes at any time payable in respect of this Agreement,
any other Credit Document, any Credit Security or the incurrence of the
Credit Obligations; and
(c) all other reasonable expenses incurred by the Lenders or the
holder of any Credit Obligation in connection with the enforcement of any
rights hereunder or under any other Credit Document, including costs of
collection and reasonable attorneys' fees (including a reasonable allowance
for the hourly cost of attorneys employed by the Lenders on a salaried
basis) and expenses.
11.2. General Indemnity. The Company shall indemnify the Lenders and the
-----------------
Agent and hold them harmless from any liability, loss or damage resulting from
the violation by the Company of Section 2.5. In addition, the Company shall
indemnify each Lender, the Agent, each of the Lenders' or the Agent's directors,
officers and employees, and each Person, if any, who controls any Lender or the
Agent (each Lender, the Agent and each of such directors, officers, employees
and control Persons is referred to as an "Indemnified Party") and hold each of
-----------------
them harmless from and against any and all claims, damages, liabilities and
reasonable expenses (including reasonable fees and disbursements of counsel with
whom any Indemnified Party may consult in connection therewith and all
reasonable expenses of litigation or preparation therefor) which any Indemnified
Party may incur or which may be asserted against any Indemnified Party in
connection with (a) the Indemnified Party's compliance with or contest of any
subpoena or other process issued against it in any proceeding involving the
Company or any of its Subsidiaries or their Affiliates, (b) any litigation or
investigation involving the Company, any of its Subsidiaries or their
Affiliates, or any officer, director or employee thereof, (c) the existence or
exercise of any security rights with respect to the Credit Security in
accordance with the Credit Documents, or (d) this Agreement, any other Credit
Document or any transaction contemplated hereby or thereby; provided, however,
-------- -------
that the foregoing indemnity shall not apply to litigation commenced by the
Company against the Lenders or the Agent which seeks enforcement of any of the
rights of the Company hereunder or under any other Credit Document and is
determined adversely to the Lenders or the Agent in a final nonappealable
judgment or to the extent such claims, damages, liabilities and expenses result
from a Lender's or the Agent's gross negligence or willful misconduct.
11.3. Indemnity With Respect to Letters of Credit. The Company shall
-------------------------------------------
indemnify each Letter of Credit Issuer and its correspondents and hold each of
them harmless from and against any and all claims, losses, liabilities, damages
and reasonable expenses (including reasonable attorneys' fees) arising from or
in connection with any Letter of Credit, including any such claim, loss,
liability, damage or expense arising out of any transfer, sale, delivery,
surrender or endorsement of any invoice, bill of lading, warehouse receipt or
other document at any time held by the Agent, any other Letter of Credit Issuer
or held for their respective accounts by any of their
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correspondents, in connection with any Letter of Credit, except to the extent
such claims, losses, liabilities, damages and expenses result from gross
negligence or willful misconduct on the part of the Agent or any other Letter of
Credit Issuer.
12. Operations; Agent.
-----------------
12.1. Interests in Credits. The Percentage Interest of each Lender in the
--------------------
Loan and the Letters of Credit, and the related Commitments, shall be computed
based on the maximum principal amount for each Lender as set forth in the
Register, as from time to time in effect. The current Percentage Interests are
set forth in Exhibit 12.1, which may be updated by the Agent from time to time
to conform to the Register.
12.2. Agent's Authority to Act, etc. Each of the Lenders appoints and
-----------------------------
authorizes BankBoston to act for the Lenders as the Lenders' Agent in connection
with the transactions contemplated by this Agreement and the other Credit
Documents on the terms set forth herein. In acting hereunder, the Agent is
acting for the account of BankBoston to the extent of its Percentage Interest
and for the account of each other Lender to the extent of the Lenders'
respective Percentage Interests, and all action in connection with the
enforcement of, or the exercise of any remedies (other than the Lenders' rights
of set-off as provided in Section 8.2.4 or in any Credit Document) in respect of
the Credit Obligations and Credit Documents shall be taken by the Agent.
12.3. Company to Pay Agent, etc. The Company and each Guarantor shall be
-------------------------
fully protected in making all payments in respect of the Credit Obligations to
the Agent, in relying upon consents, modifications and amendments executed by
the Agent purportedly on the Lenders' behalf, and in dealing with the Agent as
herein provided. The Agent may charge the accounts of the Company, on the dates
when the amounts thereof become due and payable, with the amounts of the
principal of and interest on the Loan, any amounts paid by the Letter of Credit
Issuers to third parties under Letters of Credit or drafts presented thereunder,
facility fees, Letter of Credit fees and all other fees and amounts owing under
any Credit Document.
12.4. Lender Operations for Advances, Letters of Credit, etc.
------------------------------------------------------
12.4.1. Advances. On each Closing Date, each Lender shall advance
--------
to the Agent in immediately available funds such Lender's Percentage Interest in
the portion of the Loan advanced on such Closing Date prior to 3:30 p.m. (Boston
time). If such funds are not received at such time, but all applicable
conditions set forth in Section 5 have been satisfied, each Lender authorizes
and requests the Agent to advance for the Lender's account, pursuant to the
terms hereof, the Lender's respective Percentage Interest in such portion of the
Loan and agrees to reimburse the Agent in immediately available funds for the
amount thereof prior to 4:30 p.m. (Boston time) on the day any portion of the
Loan is advanced hereunder; provided, however, that the Agent is not authorized
-------- -------
to make any such advance for the account of any Lender who has previously
notified the Agent in writing
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that such Lender will not be performing its obligations to make further advances
hereunder; and provided, further, that the Agent shall be under no obligation
-------- -------
to make any such advance.
12.4.2. Letters of Credit. Each of the Lenders authorizes and
-----------------
requests each Letter of Credit Issuer to issue the Letters of Credit provided
for in Section 2.4 and to grant each Lender a participation in each of such
Letters of Credit in an amount equal to its Percentage Interest in the amount of
each such Letter of Credit. Promptly upon the request of the Letter of Credit
Issuer, each Lender shall reimburse the Letter of Credit Issuer in immediately
available funds for such Lender's Percentage Interest in the amount of all
obligations to third parties incurred by the Letter of Credit Issuer in respect
of each Letter of Credit and each draft accepted under a Letter of Credit to the
extent not reimbursed by the Company. The Letter of Credit Issuer will notify
each Lender of the issuance of any Letter of Credit, the amount and date of
payment of any draft drawn or accepted under a Letter of Credit and whether in
connection with the payment of any such draft the amount thereof was added to
the Revolving Loan or was reimbursed by the Company.
12.4.3. Agent to Allocate Payments, etc. All payments of principal
--------------------------------
and interest in respect of the extensions of credit made pursuant to this
Agreement, reimbursement of amounts paid by any Letter of Credit Issuer to third
parties under Letters of Credit or drafts presented thereunder, facility fees,
Letter of Credit fees and other fees under this Agreement shall, as a matter of
convenience, be made by the Company and the Guarantors to the Agent in
immediately available funds. The share of each Lender shall be credited to such
Lender by the Agent in immediately available funds in such manner that the
principal amount of the Credit Obligations to be paid shall be paid
proportionately in accordance with the Lenders' respective Percentage Interests
in such Credit Obligations, except as otherwise provided in this Agreement.
Under no circumstances shall any Lender be required to produce or present its
Notes as evidence of its interests in the Credit Obligations in any action or
proceeding relating to the Credit Obligations.
12.4.4. Delinquent Lenders; Nonperforming Lenders. In the event
-----------------------------------------
that any Lender fails to reimburse the Agent pursuant to Section 12.4.1 for the
Percentage Interest of such lender (a "Delinquent Lender") in any credit
-----------------
advanced by the Agent pursuant hereto, overdue amounts (the "Delinquent
----------
Payment") due from the Delinquent Lender to the Agent shall bear interest,
payable by the Delinquent Lender on demand, at a per annum rate equal to (a) the
Federal Funds Rate for the first three days overdue and (b) the sum of 2% plus
----
the Federal Funds Rate for any longer period. Such interest shall be payable to
the Agent for its own account for the period commencing on the date of the
Delinquent Payment and ending on the date the Delinquent Lender reimburses the
Agent on account of the Delinquent Payment (to the extent not paid by the
Company as provided below) and the accrued interest thereon (the "Delinquency
-----------
Period"), whether pursuant to the assignments referred to below or otherwise.
- ------
Upon notice by the Agent, the Company will pay to the Agent the principal (but
not the interest) portion of the Delinquent Payment.
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During the Delinquency Period, in order to make reimbursements for the
Delinquent Payment and accrued interest thereon, the Delinquent Lender
shall be deemed to have assigned to the Agent all interest, facility fees
and other payments made by the Company under Section 3 that would have
thereafter otherwise been payable under the Credit Documents to the
Delinquent Lender. During any other period in which any Lender is not
performing its obligations to extend credit under Section 2 (a
"Nonperforming Lender"), the Nonperforming Lender shall be deemed to have
--------------------
assigned to each Lender that is not a Nonperforming Lender (a "Performing
----------
Lender") all principal and other payments made by the Company under
------
Section 4 that would have thereafter otherwise been payable under the
Credit Documents to the Nonperforming Lender. The Agent shall credit a
portion of such payments to each Performing Lender in an amount equal to
the Percentage Interest of such Performing Lender in an amount equal to
the Percentage Interest of such Performing Lender divided by one minus the
-----
Percentage Interest of the Nonperforming Lender until the respective
portions of the Loan owed to all the Lenders are the same as the
Percentage Interests of the Lenders immediately prior to the failure of
the Nonperforming Lender to perform its obligations under Section 2. The
foregoing provisions shall be in addition to any other remedies the Agent,
the Performing Lenders or the Company may have under law or equity against
the Delinquent Lender as a result of the Delinquent Payment or against the
Nonperforming Lender as a result of its failure to perform its obligations
under Section 2.
12.5. Sharing of Payments, etc. Each Lender agrees that (a) if by
-------------------------
exercising any right of set-off or counterclaim or otherwise, it shall receive
payment of (i) a proportion of the aggregate amount due with respect to its
Percentage Interest in the Loan and Letter of Credit Exposure which is greater
than (ii) the proportion received by any other Lender in respect of the
aggregate amount due with respect to such other Lender's Percentage Interest in
the Loan and Letter of Credit Exposure and (b) if such inequality shall continue
for more than 10 days, the Lender receiving such proportionately greater payment
shall purchase participations in the Percentage Interests in the Loan and Letter
of Credit Exposure held by the other Lenders, and such other adjustments shall
be made from time to time (including rescission of such purchases of
participations in the event the unequal payment originally received is recovered
from such Lender through bankruptcy proceedings or otherwise), as may be
required so that all such payments of principal and interest with respect to the
Loan and Letter of Credit Exposure held by the Lenders shall be shared by the
Lenders pro rata in accordance with their respective Percentage Interests;
provided, however, that this Section 12.5 shall not impair the right of any
- -------- -------
Lender to exercise any right of set-off or counterclaim it may have and to apply
the amount subject to such exercise to the payment of Indebtedness of any
Obligor other than such Obligor's Indebtedness with respect to the Loan and
Letter of Credit Exposure; provided, further, that such application may be
-------- -------
affected by Section 4.05 of the Intercreditor Agreement. Each Lender that
grants a participation in the Credit Obligations to a Credit Participant shall
require as a condition to the granting of such participation that such Credit
Participant agree to share payments received in respect of the Credit
Obligations as provided in this Section 12.5. The provisions of this Section
12.5 are for the sole and exclusive benefit of the Lenders and no failure of any
Lender to comply
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with the terms hereof shall be available to any Obligor as a defense to the
payment of the Credit Obligations.
12.6. Amendments, Consents, Waivers, etc. Except as otherwise set forth
----------------------------------
herein, the Agent may (and upon the written request of the Required Lenders the
Agent shall) take or refrain from taking any action under this Agreement or any
other Credit Document, including giving its written consent to any modification
of or amendment to and waiving in writing compliance with any covenant or
condition in this Agreement or any other Credit Document (other than an Interest
Rate Protection Agreement) or any Default or Event of Default, all of which
actions shall be binding upon all of the Lenders; provided, however, that:
-------- -------
(a) Except as provided below, without the written consent of the
Required Lenders, no written modification of, amendment to, consent with
respect to, waiver of compliance with or waiver of a Default under, any of
the Credit Documents (other than an Interest Rate Protection Agreement)
shall be made.
(b) Without the written consent of such Lenders as own 100% of the
Percentage Interests (other than Delinquent Lenders during the existence of
a Delinquency Period so long as such Delinquent Lender is treated the same
as the other Lenders with respect to any actions enumerated below):
(i) No reduction shall be made in (A) the amount of principal
of the Loan or reimbursement obligations for payments made under
Letters of Credit, (B) the interest rate on the Loan or (C) the Letter
of Credit fees (except those owed solely to the Letter of Credit
Issuer, which may be reduced by agreement solely between the Company
and the Letter of Credit Issuer) or facility fees.
(ii) No change shall be made in the stated time of payment of
all or any portion of the Loan or interest thereon or reimbursement of
payments made under Letters of Credit or fees relating to any of the
foregoing payable to all of the Lenders and no waiver shall be made of
any Default under Section 8.1.1.
(iii) No increase shall be made in the amount, or extension of
the term, of the Commitments beyond that provided for under Section 2.
(iv) No alteration shall be made of the Lenders' rights of set-
off contained in Section 8.2.4.
(v) No release of any Credit Security or of any Guarantor
shall be made (except that the Agent may release particular items of
Credit Security or particular Guarantors in dispositions permitted by
Section 6.11 and may release all Credit Security pursuant to Section
18 upon payment in full of the Credit Obligations and termination of
the Commitments without the written consent of the Lenders).
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(vi) No amendment to or modification of this Section 12.6(b)
shall be made.
12.7. Agent's Resignation. The Agent may resign at any time by giving at
-------------------
least 60 days' prior written notice of its intention to do so to each other of
the Lenders and the Company and upon the appointment by the Required Lenders of
a successor Agent satisfactory to the Company. If no successor Agent shall have
been so appointed and shall have accepted such appointment within 45 days after
the retiring Agent's giving of such notice of resignation, then the retiring
Agent may with the consent of the Company, which shall not be unreasonably
withheld, appoint a successor Agent which shall be a bank or a trust company
organized under the laws of the United States of America or any state thereof
and having a combined capital, surplus and undivided profit of at least
$100,000,000; provided, however, that any successor Agent appointed under this
-------- -------
sentence may be removed upon the written request of the Required Lenders, which
request shall also appoint a successor Agent satisfactory to the Company. Upon
the appointment of a new Agent hereunder, the term "Agent" shall for all
purposes of this Agreement thereafter mean such successor. After any retiring
Agent's resignation hereunder as Agent, or the removal hereunder of any
successor Agent, the provisions of this Agreement shall continue to inure to the
benefit of such Agent as to any actions taken or omitted to be taken by it while
it was Agent under this Agreement.
12.8. Concerning the Agent.
--------------------
12.8.1. Action in Good Faith, etc. The Agent and its officers,
-------------------------
directors, employees and agents shall be under no liability to any of the
Lenders or to any future holder of any interest in the Credit Obligations for
any action or failure to act taken or suffered in good faith, and any action or
failure to act in accordance with an opinion of its counsel shall conclusively
be deemed to be in good faith. The Agent shall in all cases be entitled to
rely, and shall be fully protected in relying, on instructions given to the
Agent by the required holders of Credit Obligations as provided in this
Agreement.
12.8.2. No Implied Duties, etc. The Agent shall have and may
----------------------
exercise such powers as are specifically delegated to the Agent under this
Agreement or any other Credit Document together with all other powers incidental
thereto. The Agent shall have no implied duties to any Person or any obligation
to take any action under this Agreement or any other Credit Document except for
action specifically provided for in this Agreement or any other Credit Document
to be taken by the Agent. Before taking any action under this Agreement or any
other Credit Document, the Agent may request an appropriate specific indemnity
satisfactory to it from each Lender in addition to the general indemnity
provided for in Section 12.11. Until the Agent has received such specific
indemnity, the Agent shall not be obligated to take (although it may in its sole
discretion take) any such action under this Agreement or any other Credit
Document. Each Lender confirms that the Agent does not have a fiduciary
relationship to it under the Credit Documents. Each
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of the Company and its Subsidiaries party hereto confirms that neither the
Agent nor any other Lender has a fiduciary relationship to it under the Credit
Documents.
12.8.3. Validity, etc. The Agent shall not be responsible to any
-------------
Lender or any future holder of any interest in the Credit Obligations (a) for
the legality, validity, enforceability or effectiveness of this Agreement or any
other Credit Document, (b) for any recitals, reports, representations,
warranties or statements contained in or made in connection with this Agreement
or any other Credit Document, (c) for the existence or value of any assets
included in any security for the Credit Obligations, (d) for the effectiveness
of any Lien purported to be included in the Credit Security, (e) for the
specification or failure to specify any particular assets to be included in the
Credit Security, or (f) unless the Agent shall have failed to comply with
Section 12.8.1, for the perfection of the security interests in the Credit
Security.
12.8.4. Compliance. The Agent shall not be obligated to ascertain
----------
or inquire as to the performance or observance of any of the terms of this
Agreement or any other Credit Document; and in connection with any extension of
credit under this Agreement or any other Credit Document, the Agent shall be
fully protected in relying on a certificate of the Company as to the fulfillment
by the Company of any conditions to such extension of credit.
12.8.5. Employment of Agents and Counsel. The Agent may execute
--------------------------------
any of its duties as Agent under this Agreement or any other Credit Document by
or through employees, agents and attorneys-in-fact and shall not be responsible
to any of the Lenders, the Company or any other Obligor for the default or
misconduct of any such agents or attorneys-in-fact selected by the Agent acting
in good faith. The Agent shall be entitled to advice of counsel concerning all
matters pertaining to the agency hereby created and its duties hereunder or
under any other Credit Document.
12.8.6. Reliance on Documents and Counsel. The Agent shall be
---------------------------------
entitled to rely, and shall be fully protected in relying, upon any affidavit,
certificate, cablegram, consent, instrument, letter, notice, order, document,
statement, telecopy, telegram, telex or teletype message or writing reasonably
believed in good faith by the Agent to be genuine and correct and to have been
signed, sent or made by the Person in question, including any telephonic or oral
statement made by such Person, and, with respect to legal matters, upon an
opinion or the advice of counsel selected by the Agent.
12.8.7 Agent's Reimbursement. Each of the Lenders severally
---------------------
agrees to reimburse the Agent, in the amount of such Lender's Percentage
Interest, for any reasonable expenses not reimbursed by the Company or the
Guarantors (without limiting the obligation of the Company or the Guarantors to
make such reimbursement): (a) for which the Agent is entitled to reimbursement
by the Company or the Guarantors under this Agreement or any other Credit
Document, and (b) after the occurrence of a Default, for
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any other reasonable expenses incurred by the Agent on the Lenders'
behalf in connection with the enforcement of the Lenders' rights under
this Agreement or any other Credit Document.
12.8.8. Agent's Fees. The Company shall pay to the Agent for its own
------------
account an agent's fee in the amounts separately agreed to from time to
time by the Company and the Agent.
12.9. Rights as a Lender. With respect to any credit extended by it
------------------
hereunder, BankBoston shall have the same rights, obligations and powers
hereunder as any other Lender and may exercise such rights and powers as though
it were not the Agent, and unless the context otherwise specifies, BankBoston
shall be treated in its individual capacity as though it were not the Agent
hereunder. Without limiting the generality of the foregoing, the Percentage
Interest of BankBoston shall be included in any computations of Percentage
Interests. BankBoston and its Affiliates may accept deposits from, lend money
to, act as trustee for and generally engage in any kind of banking or trust
business with the Company, any of its Subsidiaries or any Affiliate of any of
them and any Person who may do business with or own an equity interest in the
Company, any of its Subsidiaries or any Affiliate of any of them, all as if
BankBoston were not the Agent and without any duty to account therefor to the
other Lenders.
12.10. Independent Credit Decision. Each of the Lenders acknowledges
---------------------------
that it has independently and without reliance upon the Agent, based on the
financial statements and other documents referred to in Section 7.2, on the
other representations and warranties contained herein and on such other
information with respect to the Company and its Subsidiaries as such Lender
deemed appropriate, made such Lender's own credit analysis and decision to enter
into this Agreement and to make the extensions of credit provided for hereunder.
Each Lender represents to the Agent that such Lender will continue to make its
own independent credit and other decisions in taking or not taking action under
this Agreement or any other Credit Document. Each Lender expressly acknowledges
that neither the Agent nor any of its officers, directors, employees, agents,
attorneys-in-fact or Affiliates has made any representations or warranties to
such Lender, and no act by the Agent taken under this Agreement or any other
Credit Document, including any review of the affairs of the Company and its
Subsidiaries, shall be deemed to constitute any representation or warranty by
the Agent. Except for notices, reports and other documents expressly required to
be furnished to each Lender by the Agent under this Agreement or any other
Credit Document, the Agent shall not have any duty or responsibility to provide
any Lender with any credit or other information concerning the business,
operations, property, condition, financial or otherwise, or creditworthiness of
the Company or any Subsidiary which may come into the possession of the Agent or
any of its officers, directors, employees, agents, attorneys-in-fact or
Affiliates.
12.11. Indemnification. The holders of the Credit Obligations shall
---------------
indemnify the Agent and its officers, directors, employees and agents (to the
extent not reimbursed by the Obligors and without limiting the obligation of any
of the Obligors to do so), pro rata in accordance with their
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respective Percentage Interests, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind whatsoever which may at any time be
imposed on, incurred by or asserted against the Agent or such Persons relating
to or arising out of this Agreement, any other Credit Document, the transactions
contemplated hereby or thereby, or any action taken or omitted by the Agent in
connection with any of the foregoing; provided, however, that the foregoing
-------- -------
shall not extend to actions or omissions which are taken by the Agent with gross
negligence or willful misconduct.
13. Successors and Assigns; Lender Assignments and Participations. Any
-------------------------------------------------------------
reference in this Agreement to any of the parties hereto shall be deemed to
include the successors and assigns of such party, and all covenants and
agreements by or on behalf of the Company, the Guarantors, the Agent or the
Lenders that are contained in this Agreement or any other Credit Documents shall
bind and inure to the benefit of their respective successors and assigns;
provided, however, that (a) the Company and its Subsidiaries may not assign
- -------- -------
their rights or obligations under this Agreement except for mergers or
liquidations permitted by Section 6.11, and (b) the Lenders shall be not
entitled to assign their respective Percentage Interests in the Loan hereunder
except as set forth below in this Section 13.
13.1. Assignments by Lenders.
----------------------
13.1.1. Assignees and Assignment Procedures. Each Lender may (a)
-----------------------------------
without the consent of the Agent or the Company if the proposed assignee is
already a Lender hereunder or a Wholly Owned Subsidiary of the same
corporate parent of which the assigning Lender is a Subsidiary, or (b)
otherwise with the consents of the Agent and (so long as no Event of
Default exists) the Company (which consents will not be unreasonably
withheld), in compliance with applicable laws in connection with such
assignment, assign to one or more commercial banks or other financial
institutions (each, an "Assignee") all or a portion of its interests,
--------
rights and obligations under this Agreement and the other Credit Documents,
including all or a portion, which need not be pro rata between the Loan and
the Letter of Credit Exposure, of its Commitment, the portion of the Loan
and Letter of Credit Exposure at the time owing to it and the Notes held by
it, but excluding its rights and obligations as a Letter of Credit Issuer;
provided, however, that:
-------- -------
(i) the aggregate amount of the Commitment of the assigning
Lender subject to each such assignment to any Assignee other than
another Lender (determined as of the date the Assignment and
Acceptance with respect to such assignment is delivered to the Agent)
shall be not less than $5,000,000 and in increments of $1,000,000; and
(ii) the parties to each such assignment shall execute and
deliver to the Agent an Assignment and Acceptance (the "Assignment and
--------------
Acceptance") substantially in the form of Exhibit 13.1.1, together
----------
with the Note subject to such
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assignment and a processing and
recordation fee of $3,000 payable to the Agent by the assigning
Lender.
Upon acceptance and recording pursuant to Section 13.1.4, from and after the
effective date specified in each Assignment and Acceptance (which effective date
shall be at least five Banking Days after the execution thereof unless waived by
the Agent):
(1) the Assignee shall be a party hereto and, to the extent provided
in such Assignment and Acceptance, have the rights and
obligations of a Lender under this Agreement and
(2) the assigning Lender shall, to the extent provided in such
assignment, be released from its obligations under this Agreement
(and, in the case of an Assignment and Acceptance covering all or
the remaining portion of an assigning Lender's rights and
obligations under this Agreement, such Lender shall cease to be a
party hereto but shall continue to be entitled to the benefits of
Sections 3.2.4, 3.5, 3.6, 3.7, 3.8 and 11, as well as to any fees
accrued for its account hereunder and not yet paid).
13.1.2. Terms of Assignment and Acceptance. By executing and
----------------------------------
delivering an Assignment and Acceptance, the assigning Lender and Assignee shall
be deemed to confirm to and agree with each other and the other parties hereto
as follows:
(a) other than the representation and warranty that it is the legal
and beneficial owner of the interest being assigned thereby free and clear of
any adverse claim, such assigning Lender makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with this Agreement or the execution,
legality, validity, enforceability, genuineness, sufficiency or value of this
Agreement, any other Credit Document or any other instrument or document
furnished pursuant hereto;
(b) such assigning Lender makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the Company
and its Subsidiaries or the performance or observance by the Company or any of
its Subsidiaries of any of its obligations under this Agreement, any other
Credit Document or any other instrument or document furnished pursuant hereto;
(c) such Assignee confirms that it has received a copy of this
Agreement, together with copies of the most recent financial statements
delivered pursuant to Section 7.2 or Section 6.4 and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Acceptance;
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<PAGE>
(d) such Assignee will independently and without reliance upon the
Agent, such assigning Lender or any other Lender, and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under this Agreement;
(e) such Assignee appoints and authorizes the Agent to take such
action as agent on its behalf and to exercise such powers under this Agreement
as are delegated to the Agent by the terms hereof, together with such powers as
are reasonably incidental thereto; and
(f) such Assignee agrees that it will perform in accordance with the
terms of this Agreement all the obligations which are required to be performed
by it as a Lender.
13.1.3. Register. The Agent shall maintain at the Boston Office a
--------
register (the "Register") for the recordation of (a) the names and addresses of
--------
the Lenders and the Assignees which assume rights and obligations pursuant to an
assignment under Section 13.1.1, (b) the Percentage Interest of each such Lender
as set forth in Section 12.1 and (c) the amount of the Loan and Letter of Credit
Exposure owing to each Lender from time to time. The entries in the Register
shall be conclusive, in the absence of demonstrable error, and the Company, the
Agent and the Lenders may treat each Person whose name is registered therein for
all purposes as a party to this Agreement. The Register shall be available for
inspection by the Company or any Lender at any reasonable time and from time to
time upon reasonable prior notice.
13.1.4. Acceptance of Assignment and Assumption. Upon its receipt
---------------------------------------
of a completed Assignment and Acceptance executed by an assigning Lender and an
Assignee together with the Note subject to such assignment, and the processing
and recordation fee referred to in Section 13.1.1, the Agent shall (a) accept
such Assignment and Acceptance, (b) record the information contained therein in
the Register and (c) give prompt notice thereof to the Company. Within five
Banking Days after receipt of notice, the Company, at its own expense, shall
execute and deliver to the Agent, in exchange for the surrendered Note, a new
Note to the order of such Assignee in a principal amount equal to the applicable
Commitment and Loan assumed by it pursuant to such Assignment and Acceptance
and, if the assigning Lender has retained a Commitment and Loan, a new Note to
the order of such assigning Lender in a principal amount equal to the applicable
Commitment and Loan retained by it. Such new Note shall be in an aggregate
principal amount equal to the aggregate principal amount of such surrendered
Note, and shall be dated the date of the surrendered Note which it replaces.
13.1.5. Federal Reserve Bank. Notwithstanding the foregoing
--------------------
provisions of this Section 13, any Lender may at any time pledge or assign all
or any portion of such Lender's rights under this Agreement and the other Credit
Documents to a Federal Reserve
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<PAGE>
Bank; provided, however, that no such pledge or assignment shall
-------- -------
release such Lender from such Lender's obligations hereunder or under any
other Credit Document.
13.1.6. Further Assurances. The Company and its Subsidiaries shall
------------------
sign such documents and take such other actions from time to time
reasonably requested by an Assignee to enable it to share in the benefits
of the rights created by the Credit Documents.
13.2. Credit Participants. Each Lender may, (a) without the consent of
-------------------
the Company or the Agent if the proposed participant is already a Lender or a
Credit Participant hereunder or a Wholly Owned Subsidiary of the same corporate
parent of which the Lender is a Subsidiary or (b) otherwise with the consents of
the Agent and (so long as no Event of Default exists) the Company (which
consents will not be unreasonably withheld), in compliance with applicable laws
in connection with such participation, sell to one or more commercial banks or
other financial institutions (each a "Credit Participant") participations in all
------------------
or a portion of its interests, rights and obligations under this Agreement and
the other Credit Documents (including all or a portion of its Commitment, the
Loan and Letter of Credit Exposure owing to it and the Note held by it);
provided, however, that:
- -------- -------
(a) such Lender's obligations under this Agreement shall remain
unchanged;
(b) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations;
(c) the Credit Participant shall be entitled to the benefit of the
cost protection provisions contained in Sections 3.2.4, 3.5, 3.6, 3.7, 3.8
and 11, but shall not be entitled to receive any greater payment
thereunder than the selling Lender would have been entitled to receive
with respect to the interest so sold if such interest had not been sold;
and
(d) the Company, the Agent and the other Lenders shall continue to
deal solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement, and such Lender shall retain
the sole right as one of the Lenders to vote with respect to the
enforcement of the obligations of the Company relating to the Loan and
Letter of Credit Exposure and the approval of any amendment, modification
or waiver of any provision of this Agreement (other than amendments,
modifications, consents or waivers described in clause (b) of the proviso
to Section 12.6).
Each Obligor agrees, to the fullest extent permitted by applicable law, that any
Credit Participant and any Lender purchasing a participation from another Lender
pursuant to Section 12.5 may exercise all rights of payment (including the right
of set-off), with respect to its participation as fully as if such Credit
Participant or such Lender were the direct creditor of the Obligors and a Lender
hereunder in the amount of such participation.
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<PAGE>
13.3. Replacement of Lender. In the event that any Lender or, to the
---------------------
extent applicable, any Credit Participant (the "Affected Lender"):
---------------
(a) fails to perform its obligations to fund any portion of the Loan
or to issue any Letter of Credit on any Closing Date when required to do so
by the terms of the Credit Documents;
(b) demands payment under the Reserve provisions of Section 3.5, the
Tax provisions of Section 3.6, the capital adequacy provisions of Section
3.7 or the regulatory change provisions in Section 3.8 in an amount the
Company deems materially in excess of the amounts with respect thereto
demanded by the other Lenders; or
(c) refuses to consent to a proposed amendment, modification, waiver
or other action requiring consent of the holders of 100% of the Percentage
Interests under Section 12.6(b) that is consented to by the other Lenders;
then, so long as no Event of Default exists, the Company shall have the right to
seek a replacement lender which is reasonably satisfactory to the Agent (the
"Replacement Lender"). The Replacement Lender shall purchase the interests of
- -------------------
the Affected Lender in the Loan, Letters of Credit and its Commitment and shall
assume the obligations of the Affected Lender hereunder and under the other
Credit Documents upon execution by the Replacement Lender of an Assignment and
Acceptance and the tender by it to the Affected Lender of a purchase price
agreed between it and the Affected Lender (or, if they are unable to agree, a
purchase price in the amount of the Affected Lender's Percentage Interest in the
Loan and Letter of Credit Exposure, or appropriate credit support for contingent
amounts included therein, and all other outstanding Credit Obligations then owed
to the Affected Lender). Such assignment by the Affected Lender shall be deemed
an early termination of any Eurodollar Pricing Option to the extent of the
Affected Lender's portion thereof, and the Company will pay to the Affected
Lender any resulting amounts due under Section 3.2.4. Upon consummation of such
assignment, the Replacement Lender shall become party to this Agreement as a
signatory hereto and shall have all the rights and obligations of the Affected
Lender under this Agreement and the other Credit Documents with a Percentage
Interest equal to the Percentage Interest of the Affected Lender, the Affected
Lender shall be released from its obligations hereunder and under the other
Credit Documents, and no further consent or action by any party shall be
required. Upon the consummation of such assignment, the Company, the Agent and
the Affected Lender shall make appropriate arrangements so that a new Revolving
Note is issued to the Replacement Lender if it has acquired a portion of the
Revolving Loan. The Company and the Guarantors shall sign such documents and
take such other actions reasonably requested by the Replacement Lender to enable
it to share in the benefits of the rights created by the Credit Documents.
Until the consummation of an assignment in accordance with the foregoing
provisions of this Section 13.3, the Company shall continue to pay to the
Affected Lender any Credit Obligations as they become due and payable.
-95-
<PAGE>
14. Confidentiality. Each Lender will make no disclosure of confidential
---------------
information furnished to it directly or indirectly by the Company or any of its
Subsidiaries unless such information shall have become public, except:
(a) in connection with operations under or the enforcement of this
Agreement or any other Credit Document;
(b) pursuant to any statutory or regulatory requirement or any
mandatory court order, subpoena or other legal process;
(c) to any parent or corporate Affiliate of such Lender or to any
Credit Participant, proposed Credit Participant or proposed Assignee;
provided, however, that any such Person shall agree to comply with the
-------- -------
restrictions set forth in this Section 14 with respect to such
information;
(d) to its independent counsel, auditors and other professional
advisors with an instruction to such Person to keep such information
confidential; and
(e) with the prior written consent of the Company, to any other
Person.
15. Foreign Lenders. If any Lender is not incorporated or organized under
---------------
the laws of the United States of America or a state thereof, such Lender shall
deliver to the Company and the Agent the following:
(a) Two duly completed copies of United States Internal Revenue
Service Form 1001 or 4224 or successor form, as the case may be, certifying
in each case that such Person is entitled to receive payments under this
Agreement, the Notes and reimbursement obligations under Letters of Credit
payable to it, without deduction or withholding of any United States
federal income taxes; and
(b) A duly completed Internal Revenue Service Form W-8 or W-9 or
successor form, as the case may be, to establish an exemption from United
States backup withholding tax.
Each such Lender that delivers to the Company and the Agent a Form 1001 or
4224 and Form W-8 or W-9 pursuant to this Section 15 further undertakes to
deliver to the Company and the Agent two further copies of Form 1001 or 4224 and
Form W-8 or W-9, or successor applicable form, or other manner of certification,
as the case may be, on or before the date that any such form expires or becomes
obsolete or after the occurrence of any event requiring a change in the most
recent form previously delivered by it to the Company and the Agent. Such Forms
1001 or 4224 shall certify that such Lender is entitled to receive payments
under this Agreement without deduction or withholding of any United States
federal income taxes. The foregoing documents need not be delivered in the
event any change in treaty, law or regulation or official
-96-
<PAGE>
interpretation thereof has occurred which renders all such forms inapplicable or
which would prevent such Lender from delivering any such form with respect to
it, or such Lender advises the Company that it is not capable of receiving
payments without any deduction or withholding of United States federal income
tax and, in the case of a Form W-8 or W-9, establishing an exemption from United
States backup withholding tax. Until such time as the Company and the Agent have
received such forms indicating that payments hereunder are not subject to United
States withholding tax or are subject to such tax at a rate reduced by an
applicable tax treaty, the Company shall withhold taxes from such payments at
the applicable statutory rate without regard to Section 3.6.
16. Notices. Except as otherwise specified in this Agreement, any notice
-------
required to be given pursuant to this Agreement shall be given in writing. Any
notice, consent, approval, demand or other communication in connection with this
Agreement shall be deemed to be given if given in writing (including telex,
telecopy or similar teletransmission) addressed as provided below (or to the
addressee at such other address as the addressee shall have specified by notice
actually received by the addressor), and if actually delivered in fully legible
form to such address (evidenced in the case of a telex, telecopy or similar
teletransmission by receipt of the correct answerback).
If to the Company or any of its Subsidiaries, to it at its address set
forth in Exhibit 7.1 (as supplemented pursuant to Sections 6.4.1 and 6.4.2), to
the attention of the chief financial officer.
If to any Lender or the Agent, to it at its address set forth on the
signature pages of this Agreement or in the Register, with a copy to the Agent.
17. Course of Dealing; Amendments and Waivers. No course of dealing between
-----------------------------------------
any Lender or the Agent, on one hand, and the Company or any other Obligor, on
the other hand, shall operate as a waiver of any of the Lenders' or the Agent's
rights under this Agreement or any other Credit Document or with respect to the
Credit Obligations. Each of the Company and the Guarantors acknowledges that if
the Lenders or the Agent, without being required to do so by this Agreement or
any other Credit Document, give any notice or information to, or obtain any
consent from, the Company or any other Obligor, the Lenders and the Agent shall
not by implication have amended, waived or modified any provision of this
Agreement or any other Credit Document, or created any duty to give any such
notice or information or to obtain any such consent on any future occasion. No
delay or omission on the part of any Lender of the Agent in exercising any right
under this Agreement or any other Credit Document or with respect to the Credit
Obligations shall operate as a waiver of such right or any other right hereunder
or thereunder. A waiver on any one occasion shall not be construed as a bar to
or waiver of any right or remedy on any future occasion. No waiver, consent or
amendment with respect to this Agreement or any other Credit Document shall be
binding unless it is in writing and signed by the Agent or the Required Lenders.
18. Defeasance. When all Credit Obligations have been paid and all Letters
----------
of Credit terminated and returned to the Letter of Credit Issuer or cash
collateralized in a manner satisfactory to the Lenders, and if at the time no
Lender continues to be committed to extend any
-97-
<PAGE>
credit to the Company hereunder or under any other Credit Document, this
Agreement shall terminate and, at the Company's written request, accompanied by
such certificates and other items as the Agent shall reasonably deem necessary,
the Credit Security shall revert to the Obligors and the right, title and
interest of the Lenders therein shall terminate. Thereupon, on the Obligor's
demand and at their cost and expense, the Agent shall execute proper
instruments, acknowledging satisfaction of and discharging this Agreement, and
shall redeliver to the Obligors any Credit Security then in its possession;
provided, however, that Sections 3.2.4, 3.5, 3.6, 3.7, 3.8, 11, 12.8.7, 12.11,
- -------- -------
14, 19 and 20 shall survive the termination of this Agreement.
19. Venue; Service of Process. Each of the Company and the other Obligors:
-------------------------
(a) Irrevocably submits to the nonexclusive jurisdiction of the state
courts of The Commonwealth of Massachusetts and to the nonexclusive
jurisdiction of the United States District Court for the District of
Massachusetts for the purpose of any suit, action or other proceeding
arising out of or based upon this Agreement or any other Credit Document or
the subject matter hereof or thereof.
(b) Waives to the extent not prohibited by applicable law that cannot
be waived, and agrees not to assert, by way of motion, as a defense or
otherwise, in any such proceeding brought in any of the above-named courts,
any claim that it is not subject personally to the jurisdiction of such
court, that its property is exempt or immune from attachment or execution,
that such proceeding is brought in an inconvenient forum, that the venue of
such proceeding is improper, or that this Agreement or any other Credit
Document, or the subject matter hereof or thereof, may not be enforced in
or by such court.
Each of the Company and the other Obligors consents to service of process in any
such proceeding in any manner at the time permitted by Chapter 223A of the
General Laws of The Commonwealth of Massachusetts and agrees that service of
process by registered or certified mail, return receipt requested, at its
address specified in or pursuant to Section 16 is reasonably calculated to give
actual notice.
20. WAIVER OF JURY TRIAL. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW
--------------------
THAT CANNOT BE WAIVED, EACH OF THE COMPANY, THE OTHER OBLIGORS, THE AGENT AND
THE LENDERS WAIVES, AND COVENANTS THAT IT WILL NOT ASSERT (WHETHER AS PLAINTIFF,
DEFENDANT OR OTHERWISE), ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT OF
ANY ISSUE, CLAIM OR PROCEEDING ARISING OUT OF THIS AGREEMENT OR ANY OTHER CREDIT
DOCUMENT OR THE SUBJECT MATTER HEREOF OR THEREOF OR ANY CREDIT OBLIGATION OR IN
ANY WAY CONNECTED WITH THE DEALINGS OF THE LENDERS, THE AGENT, THE COMPANY OR
ANY OTHER OBLIGOR IN CONNECTION WITH ANY OF THE ABOVE, IN EACH CASE WHETHER NOW
EXISTING OR HEREAFTER ARISING AND WHETHER IN CONTRACT, TORT OR OTHERWISE. Each
of the Company and the other Obligors
-98-
<PAGE>
acknowledges that it has been informed by the Agent that the provisions of this
Section 20 constitute a material inducement upon which each of the Lenders has
relied and will rely in entering into this Agreement and any other Credit
Document, and that it has reviewed the provisions of this Section 20 with its
counsel. Any Lender, the Agent, the Company or any other Obligor may file an
original counterpart or a copy of this Section 20 with any court as written
evidence of the consent of the Company, the other Obligors, the Agent and the
Lenders to the waiver of their rights to trial by jury.
21. General. All covenants, agreements, representations and warranties made
-------
in this Agreement or any other Credit Document or in certificates delivered
pursuant hereto or thereto shall be deemed to have been relied on by each
Lender, notwithstanding any investigation made by any Lender on its behalf, and
shall survive the execution and delivery to the Lenders hereof and thereof. The
invalidity or unenforceability of any provision hereof shall not affect the
validity or enforceability of any other provision hereof. The headings in this
Agreement are for convenience of reference only and shall not limit or otherwise
affect the meaning hereof. This Agreement and the other Credit Documents
constitute the entire understanding of the parties with respect to the subject
matter hereof and thereof and supersede all prior and contemporaneous
understandings and agreements, whether written or oral. This Agreement may be
executed in any number of counterparts which together shall constitute one
instrument. This Agreement shall be governed by and construed in accordance
with the laws (other than the conflict of laws rules) of The Commonwealth of
Massachusetts, except as may be required by the UCC with respect to matters
involving the perfection of the Agent's Lien on the Credit Security.
-99-
<PAGE>
Each of the undersigned has caused this Agreement to be executed and
delivered by its duly authorized officer as an agreement under seal as of the
date first above written.
TRANSMONTAIGNE OIL COMPANY
By /s/ Richard E. Gathright
__________________________________
Title: President
TRANSMONTAIGNE PRODUCT SERVICES INC.
TRANSMONTAIGNE TRANSPORTATION
SERVICES INC.
TRANSMONTAIGNE PIPELINE INC.
TRANSMONTAIGNE TERMINALING INC.
By /s/ Richard E. Gathright
_________________________________
As CEO of each of the foregoing
___
corporations
BEAR PAW ENERGY INC.
By /s/ Richard E. Gathright
_________________________________
Title: CEO
BANKBOSTON, N.A.,
for Itself and as Agent
By /s/ Terrance Ronan
_________________________________
Authorized Officer
BankBoston, N.A.
Energy and Utilities Division
100 Federal Street
Boston, Massachusetts 02110
Telecopy: (617) 434-3652
Telex: 940581
-100-
<PAGE>
THE BANK OF MONTREAL
By /s/ B. R. Gallow
_________________________________
Authorized Officer
CIBC INC.
By /s/ Robin W. Elliott
_________________________________
Authorized Officer
U.S. BANK NATIONAL ASSOCIATION
(f/k/a Colorado National Bank)
By /s/ Monte E. Deckerd
_________________________________
Authorized Officer
NATIONSBANK OF TEXAS, N.A.
By /s/ David Rubenking
_________________________________
Authorized Officer
BANQUE PARIBAS
By /s/ Zali Winn, Vice President
_________________________________
Authorized Officer
By /s/ Stephen Paris, Vice President
_________________________________
Authorized Officer
ING (U.S.) CAPITAL CORPORATION
By /s/ Frank Ferrara
_________________________________
Authorized Officer
-101-
<PAGE>
EXHIBIT 2.1.4
-------------
FORM OF REVOLVING NOTE
$__________________ ____________ __, 199_
FOR VALUE RECEIVED, the undersigned TransMontaigne Oil Company, a Delaware
corporation (the "Company"), hereby promises to pay to _______________________
-------
(the "Lender") or order, in accordance with the terms of the Credit Agreement
------
hereinafter referred to, to the extent not sooner paid, on the Final Maturity
Date, __________________________ DOLLARS ($ ) or such amount as may be
advanced by the payee hereof under said Credit Agreement with daily interest
from the date hereof, computed as provided in such Credit Agreement, on the
aggregate principal amount of such advances from time to time unpaid at the per
annum rate applicable to such unpaid principal amount as provided in such Credit
Agreement and to pay interest on overdue principal and, to the extent not
prohibited by applicable law, on overdue installments of interest, fees and any
other overdue amounts at the rate specified in such Credit Agreement, all such
interest being payable at the times specified in such Credit Agreement, except
that all accrued interest shall be paid at the stated or accelerated maturity
hereof or upon the prepayment in full hereof.
Payments hereunder shall be made to BankBoston, N.A., as Agent for the
payee hereof, Energy and Utilities Division, 100 Federal Street, Boston,
Massachusetts 02110.
This Note evidences borrowings under, and is entitled to the benefits and
security of, and is subject to the provisions of, the Amended and Restated
Credit Agreement dated as of March 31, 1998, as from time to time in effect (the
"Credit Agreement"), among the Company, certain Guarantors named therein,
----------------
BankBoston, N.A., for itself and as Agent, and certain other Lenders from time
to time party thereto. The principal of this Note is prepayable in the amounts
and under the circumstances set forth in the Credit Agreement, and may be
prepaid in whole or from time to time in part, all as set forth in the Credit
Agreement. Terms defined in the Credit Agreement and not otherwise defined
herein are used herein with the meanings so defined.
In case an Event of Default shall occur, the entire principal of this Note
may become or be declared due and payable in the manner and with the effect
provided in the Credit Agreement.
This Note shall be governed by and construed in accordance with the laws
(other than the conflict of laws rules) of The Commonwealth of Massachusetts.
The undersigned maker and all guarantors and endorsers, hereby waive
presentment, demand, notice, protest and all other demands and notices in
connection with the delivery, acceptance, performance and enforcement of this
Note, except as specifically otherwise
<PAGE>
provided in the Credit Agreement, and assent to extensions of time of payment,
or forbearance or other indulgence without notice.
TRANSMONTAIGNE OIL COMPANY
By__________________________________
Title:
-2-
<PAGE>
EXHIBIT 2.2.4
-------------
FORM OF SWINGLINE NOTE
No. ___ ____________ __, 199_
FOR VALUE RECEIVED, the undersigned TransMontaigne Oil Company, a Delaware
corporation (the "Company"), hereby promises to pay to BANKBOSTON, N.A. (the
-------
"Lender") or order, in accordance with the terms of the Credit Agreement
- -------
hereinafter referred to, to the extent not sooner paid, on the Final Maturity
Date the aggregate unpaid Swingline Loan made to the Company by the Lender, with
daily interest from the date hereof, computed as provided in such Credit
Agreement, on the aggregate principal amount of such Swingline Loan from time to
time unpaid at the rate per annum provided in such Credit Agreement and to pay
interest on overdue principal and, to the extent not prohibited by applicable
law, on overdue installments of interest, fees and any other overdue amounts at
the rate specified in such Credit Agreement. Interest shall be payable on the
dates specified in the Credit Agreement, except that all accrued interest shall
be paid at the stated or accelerated maturity hereof or upon the prepayment in
full hereof.
Payments hereunder shall be made to BankBoston, N.A., as Agent for the
payee hereof, Energy and Utilities Division, 100 Federal Street, Boston,
Massachusetts 02110.
This Note evidences the Swingline Loan under, and is entitled to the
benefits and security of, and is subject to the provisions of, the Amended and
Restated Credit Agreement dated as of March 31, 1998, as from time to time in
effect, among the Company, certain Guarantors from time to time party thereto,
BankBoston, N.A., for itself and as Agent, and certain other Lenders from time
to time party thereto (the "Credit Agreement"). The principal of this Note is
----------------
prepayable in the amounts and under the circumstances set forth in the Credit
Agreement, and may be prepaid in whole or from time to time in part, all as set
forth in the Credit Agreement. Terms defined in the Credit Agreement and not
otherwise defined herein are used herein with the meanings so defined.
In case an Event of Default shall occur, the entire principal amount of
this Note may become or be declared due and payable in the manner and with the
effect provided in the Credit Agreement.
This Note shall be governed by and construed in accordance with the laws
(other than the conflict of laws rules) of The Commonwealth of Massachusetts.
<PAGE>
The undersigned maker and all guarantors and endorsers, hereby waive
presentment, demand, notice, protest and all other demands and notices in
connection with the delivery, acceptance, performance and enforcement of this
Note, except as specifically otherwise provided in the Credit Agreement, and
assent to extensions of time of payment or forbearance or other indulgence
without notice.
TRANSMONTAIGNE OIL COMPANY
By__________________________________
Title:
-2-
<PAGE>
EXHIBIT 5.2.1
-------------
FORM OF OFFICER'S CERTIFICATE
Pursuant to Section 5.2.1 of the Amended and Restated Credit Agreement
dated as of March 31, 1998, as now in effect (the "Credit Agreement"), among
----------------
TransMontaigne Oil Company, a Delaware corporation (the "Company"), certain
-------
Guarantors named therein, BankBoston, N.A., for itself and as Agent, and certain
other Lenders from time to time party thereto, the Company requests that a Loan
be made or a Letter of Credit be issued on the date specified below (the
"Closing Date") in the following amount:
- -------------
Closing Date: ____________________
Revolving Loan Amount: $___________________
Swingline Loan Amount: $___________________
Letter of Credit Amount: $___________________
Letter of Credit Termination Date: ______________, 199_
Letter of Credit Beneficiary: ____________________
Letter of Credit Account Party: ____________________
In connection with the foregoing request, the Company certifies that the
representations and warranties contained in Sections 7 and 10.3 of the Credit
Agreement are true and correct on and as of the date hereof with the same force
and effect as though originally made on and as of the date hereof; no Default
exists on the date hereof or will exist immediately after giving effect to the
extension of credit requested hereby and no Material Adverse Change has occurred
and is continuing since April 30, 1997.
The foregoing representations and warranties shall be deemed made by the
Company on the requested Closing Date unless the Company shall have notified the
Agent in writing to the contrary prior to such Closing Date.
Terms defined in the Credit Agreement and not otherwise defined herein are
used herein with the meanings so defined.
<PAGE>
If and to the extent necessary to maintain the accuracy of Exhibits 7.1,
7.3 and 7.15 to the Credit Agreement, as previously supplemented, this
certificate is accompanied by supplements to such Exhibits.
This certificate has been executed by a duly authorized Financial Officer
this ___ day of ____________, 199__.
TRANSMONTAIGNE OIL COMPANY
By__________________________________
Title:
-2-
<PAGE>
EXHIBIT 6.4.1
-------------
FORM OF COVENANT COMPLIANCE CERTIFICATE
BankBoston, N.A.,
for itself and as Agent
100 Federal Street
Boston, Massachusetts 02110
Attn: Energy and Utilities Division
Ladies and Gentlemen:
Reference is made to the Amended and Restated Credit Agreement dated as of
March 31, 1998 among TransMontaigne Oil Company, a Delaware corporation (the
"Company"), certain Guarantors named therein, BankBoston, N.A., for itself and
as Agent, and certain other Lenders from time to time party thereto (the "Credit
Agreement"). Terms defined in the Credit Agreement and not otherwise defined
herein are used herein as defined in the Credit Agreement.
Pursuant to Section 6.4 or 7.2 of the Credit Agreement, the Company is
furnishing to you herewith [or has most recently furnished to you] the financial
statements of the Company and its Subsidiaries for the fiscal period ended
__________ (the "Balance Sheet Date"). Such financial statements have been
prepared in accordance with generally accepted accounting principles and present
fairly, in all material respects, the financial position of the Company and its
Subsidiaries covered thereby at the date thereof and the results of their
operations for the period covered thereby, subject in the case of interim
statements only to normal year-end audit adjustments and the addition of
footnotes and except that permanent base product inventory will be recorded at
historical cost.
This certificate is submitted in compliance with the requirements of
Section 6.4.1(d), 6.4.2(c) or 7.2.1(d) of the Credit Agreement. If this
certificate is provided under Section 7.2.1(d), the calculations provided below
are made on a pro forma basis using the financial statements of the Company and
--- -----
its Subsidiaries as of the Balance Sheet Date adjusted in the best good-faith
estimate of the Company to give effect to the transactions contemplated by the
Credit Agreement and the Company's estimate of the effects of such transactions
is set forth in reasonable detail in an attachment hereto. The undersigned
officer of the Company is a duly authorized Financial Officer.
The undersigned officer has caused the provisions of the Credit Agreement
to be reviewed and has no knowledge of any Default or Event of Default. [Note:
If the signer does have knowledge of any Default or Event of Default, the form
of certificate should be revised to
<PAGE>
specify the Default or Event of Default, the nature thereof and the actions
taken, being taken or proposed to be taken by the Company with respect thereto.]
The Company is providing the following information to demonstrate
compliance as of the Balance Sheet Date with the following Computation
Covenants:
1. Section 6.5.1. Fixed Charges Coverage.
------------- ----------------------
A. Consolidated Income from Operations
Consolidated gross revenues (per $___________
income statement)
Minus Consolidated cost of operations (___________)
(per income statement)
Minus Consolidated selling, general (___________)
and administrative expenses (per
income statement)
Subtotal for most recent quarter $___________
Consolidated Income from Operations
for three prior quarters:
Quarter ended __________ ____________
Quarter ended __________ ____________
Quarter ended __________ ____________
Total $___________
B. Consolidated Interest Expense
Subtotal for most recent quarter (per $___________
income statement)
Consolidated interest expense for
three prior quarters:
Quarter ended__________ ___________
Quarter ended__________ ___________
-2-
<PAGE>
Quarter ended__________ ___________
Total $__________
A divided by B equals (may not be less than 225%) ___________%
2. Section 6.5.2. Leverage Ratio.
-------------- ---------------
A. Consolidated Funded Debt
Long term debt (per balance sheet) $__________
Current maturities of long term ___________
debt, unless included above (per
balance sheet)
Other Funded Debt, including ___________
certain letter of credit
reimbursement obligations
Total $___________
B. Consolidated Net Tangible Assets
Consolidated total assets (per $___________
balance sheet)
Minus Consolidated Current Liabilities (___________)
Minus Consolidated other liabilities (___________)
(other than liabilities for Funded
Debt) (per balance sheet)
Minus Consolidated intangible assets (___________)
(per balance sheet)
Minus book value of any minority (___________)
interest in a Subsidiary (per
balance sheet)
Total $___________
A divided by B equals (may not equal ___________%
or exceed the applicable percentage)
-3-
<PAGE>
3. Section 6.5.3. Consolidated Tangible Net Worth.
-------------- --------------------------------
A. Consolidated Tangible Net Worth
Consolidated stockholders' equity $___________
(per balance sheet) (excluding
effect of any foreign currency
translation adjustments)
Minus increase in such stockholders' (___________)
equity after April 30, 1997 because
of items (a) - (f) in definition of
Consolidated Net Income
Minus (without duplication) the book (___________)
value of treasury stock, receivables
due from an employee stock ownership
plan and Guarantees of Indebtedness
incurred by an employee stock
ownership plan
Minus Consolidated intangible assets (___________)
(per balance sheet)
Total $___________
B. Requirement
Initial requirement $115,000,000
50% of Consolidated Net ____________
Income (if positive) from
May 1, 1997 to January 31,
1998
Total initial requirement $___________
Cumulative increases through quarter ___________
preceding most recent quarter
50% of Consolidated Net Income (if ___________
positive) in most recent quarter
(commencing quarter ended April 30,
1998)
50% of Consolidated net proceeds from ___________
issuance of equity securities in
most recent quarter (commencing
quarter ended April 30, 1998)
-4-
<PAGE>
Total $__________
A must exceed B.
4. Section 6.6.7. Certain Indebtedness.
-------------- ---------------------
A. Aggregate principal amount of all
Indebtedness in respect of Capital
Lease Obligations and other
Indebtedness incurred for
acquisition of equipment
Total (may not exceed 2% of $___________
Consolidated Net Tangible Assets
(per (P)2B)
B. Aggregate principal amount of
Section 6.6.7 Indebtedness issued to
sellers of any business or part
thereof or operating assets for the
acquisition thereof
Total (may not exceed 4% of $___________
Consolidated Net Tangible Assets
(per (P)2B)
5. Section 6.6.16. Unsecured Funded Debt.
--------------- ----------------------
A. Aggregate outstanding principal
of Indebtedness permitted by Section
6.6.15
Total $___________
B. Aggregate outstanding principal
amount of indebtedness permitted by
clause (b) of Section 6.6.16 and not
consented to under clause (a) thereof
Total $___________
A plus B equals (may not exceed $60,000,000) $___________
6. Section 6.6.17. Other Indebtedness.
--------------- -------------------
A. Indebtedness (other than
Financing Debt) in addition to other
types of indebtedness permitted by
Section 6.6
[List Indebtedness]
-5-
<PAGE>
Total (may not exceed $2,000,000) $___________
7. Section 6.9.5. Investments in Certain Subsidiaries.
-------------- ------------------------------------
A. Investments in Subsidiaries
listed in Exhibit 7.1 other than
Wholly Owned Subsidiaries (after
March 31, 1998):
[List Investments]
Total $___________
B. Consolidated Net Tangible Assets
Total (per (P)2B) $___________
A divided by B equals (may not exceed 15%) ___________%
8. Section 6.9.7. Other Investments.
-------------- ------------------
A. Investments otherwise not
permitted in Section 6.9 (after
March 31, 1998):
[List Investments]
Total $___________
B. Consolidated Tangible Net Worth
Total (per (P)3A) $___________
A divided by B equals (may not exceed 10%) ___________%
9. Section 6.10.2. Distributions.
--------------- --------------
A. Cumulative Consolidated Net
Income (cumulative since May 1, 1997)
Consolidated net income (or loss) $___________
(per income statement)
Minus income (or loss) of any Person (___________)
accrued prior to becoming a Subsidiary
-6-
<PAGE>
Minus income (or loss) of any Person (__________)
(other than a Subsidiary) in which
the Company or a Subsidiary has an
ownership interest (subject to
certain exceptions in Section 1.31)
[definition of Consolidated Net
Income])
Minus amounts included in net income (__________)
(or loss) in respect of the write-up
of any asset or retirement of any
Indebtedness or equity at less than
face value after April 30, 1997
Minus extraordinary and nonrecurring gains (__________)
Minus income from an impermissible (__________)
Distribution or repayment of
Indebtedness by any Subsidiary
Minus after-tax gains or losses (__________)
attributable to returned surplus
assets of any Plan
Total $__________
B. Distributions
Total of cumulative Distributions $___________
after April 30, 1997
($10,000,000 plus 50% of A) minus B $___________
equals (may not be less than zero)
10. Section 6.11.1. Dispositions of Certain Assets.
--------------- -------------------------------
A. Assets disposed of (at fair
market value or book value if
greater) to date in fiscal year
[List assets]
Total $___________
B. Consolidated Net Tangible Assets
(as of last day of next preceding fiscal year)
Consolidated total assets (per balance sheet) $___________
-7-
<PAGE>
Minus Consolidated Current Liabilities (___________)
Minus Consolidated other liabilities (___________)
(other than liabilities for Funded
Debt) (per balance sheet)
Minus Consolidated intangible assets (___________)
(per balance sheet)
Minus book value of any minority (___________)
interest in a Subsidiary (per
balance sheet)
Total $__________
A divided by B equals (may not exceed ____________%
4% in any fiscal year)
11. Section 6.12.2. Certain Lease Obligations.
--------------- --------------------------
A. Leases Other than Capitalized Leases
Aggregate fixed rental obligations for fiscal year $____________
Minus payments required in respect of (____________)
taxes and insurance (if included above)
Total $____________
A (may not exceed 3% of Consolidated $____________
Net Tangible Assets (as of last day
of next preceding fiscal year) (per (P) 10B)
12. Section 6.19. Open Positions.
------------- ---------------
A. Consolidated Open Positions
Number of barrels of petroleum ____________
product held in inventory or subject
to purchase contracts
Minus number of barrels of petroleum (___________)
product subject to sale contracts
Total (may not exceed Company policy ____________
of ________ barrels)
-8-
<PAGE>
If the Balance Sheet Date is the last day of a fiscal quarter of the
Company, this certificate is accompanied by supplements to Exhibits 7.1, 7.3 and
7.15 to the extent required by Section 6.4.1(f) or 6.4.2(d).
If the Balance Sheet Date is the last day of the fiscal year of the
Company, this certificate is accompanied by a written statement of the
independent certified public accountants of the Company complying with the terms
of Section 6.4.1(a) of the Credit Agreement and the calculations of Accumulated
Benefit Obligations and Plan assets complying with the terms of Section 6.4.1(e)
of the Credit Agreement.
IN WITNESS WHEREOF, the undersigned Financial Officer of the Company has
set his or her hand and seal this ____ day of _________, 199_.
TRANSMONTAIGNE OIL COMPANY
By_______________________________
Title:
-9-
<PAGE>
EXHIBIT 7
---------
DISCLOSURE SCHEDULE
No disclosures
<PAGE>
EXHIBIT 7.1
-----------
COMPANY AND SUBSIDIARIES
Jurisdiction of Business
Name Incorporation Capitalization Locations
---- ------------- -------------- -------------
1. TransMontaigne Delaware Publicly held Colorado
Oil Company Arkansas
2. TransMontaigne Arkansas 10,000 common Arkansas
Product Services shares, par Colorado
Inc. value $.10 Illinois
Indiana
Iowa
Kansas
Kentucky
Louisiana
Michigan
Minnesota
Mississippi
Missouri
Montana
Nebraska
North Dakota
Ohio
Oklahoma
South Dakota
Tennessee
Texas
Wisconsin
3. TransMontaigne Arkansas 10,000 common Arkansas
Transportation shares, par Indiana
Services Inc. value $.10
4. TransMontaigne Arkansas 10,000 common Illinois
Pipeline Inc. shares, par Indiana
value $.10 Iowa
Missouri
Ohio
Texas
<PAGE>
5. TransMontaigne Arkansas 10,000 common Arkansas
Terminaling Inc. shares, par Florida
value $.10 Georgia
Illinois
Indiana
Kentucky
Mississippi
Missouri
Ohio
Texas
West Virginia
Wisconsin
Wyoming
6. TransMontaigne Arkansas 1,000 common Arkansas
Holding, Inc. shares, par
value $.10
7. Bear Paw Energy Colorado 10,000 common Arkansas
Inc. shares, par Colorado
value $0.10 Kansas
Montana
North Dakota
Oklahoma
Texas
Wyoming
8. K123 Corporation Colorado 1,000 common N/A
shares, par
value $.01
9. Republic Natural Kansas 2,500 common N/A
Gas Company shares, par
value $1.00
Additional Information:
All of the issued and outstanding capital stock of TransMontaigne Product
Services Inc., TransMontaigne Transportation Services Inc., Bear Paw Energy Inc.
and K123 Corporation is owned by the Company. The Company owns 65% of the
capital stock of TransMontaigne Holding Inc.
-2-
<PAGE>
All of the issued and outstanding capital stock of Republic Natural Gas
Company is owned by Bear Paw Energy Inc.
All of the issued and outstanding capital stock of TransMontaigne Pipeline
Inc. and TransMontaigne Terminaling Inc. is owned by TransMontaigne
Transportation Services Inc.
The address of the principal executive office of the Company and each of
the Subsidiaries and the chief place of business of the Company, Bear Paw Energy
Inc., Republic Natural Gas Company and K123 Corporation is 2750 Republic Plaza,
370 Seventeenth Street, Denver, Colorado 80202.
The address of the chief place of business of each of the other
Subsidiaries is 280 N. College, First South Centre, Suite 500, Fayetteville,
Arkansas 72702.
None of the Company or its Subsidiaries operates under any name other than
its own name listed above, except that TransMontaigne Terminaling Inc. operates
a terminal at Rogers, Arkansas under the name "Razorback Terminaling Company."
-3-
<PAGE>
EXHIBIT 7.2.2
-------------
MATERIAL AGREEMENTS
1. Razorback Pipeline Company Partnership Agreement dated as of January
11, 1989 by and among Conoco Pipe Line Company, a Delaware corporation, and COZ
Pipeline, Inc. (formerly known as COZ Pipeline Co.).
2. Pipeline Operating Agreement dated November 1, 1989 between Razorback
Pipeline Company and Conoco Pipe Line Company, as amended through the Agreement
and Second Amendment to Pipeline Operating Agreement effective September 8,
1995.
3. Terminal Lease effective September 1, 1996 between COZ Terminaling,
Inc. and Razorback Pipeline Company.
4. TransMontaigne Oil Company Equity Incentive Plan.
5. Partnership agreement between TransMontaigne's wholly-owned
subsidiary, Sheffield Gas Processors, Inc. and Interenergy.
6. Stock Purchase Agreement effective April 17, 1996 between
TransMontaigne Oil Company and the investors named therein.
7. Anti-dilution Rights Agreement dated as of April 17, 1996 between
TransMontaigne Oil Company and Waterwagon & Co., nominee for Merrill Lynch
Growth Fund for Investment and Retirement.
8. Agreement to Elect Directors dated as of April 17, 1996 between
TransMontaigne Oil Company and the First Reserve Investors named therein.
9. Registration Rights Agreement dated as of April 17, 1996 between
TransMontaigne Oil Company and the entities named therein.
10. Agreement for Sale McKenzie Gas Processing Plant and Grasslands Gas
Gathering System dated as of October 31, 1996 between Bear Paw Energy Inc. and
Koch Hydrocarbon Company.
11. First Amendment to the Agreement for Sale McKenzie Gas Processing
Plant and Grasslands Gas Gathering System dated as of November 22, 1996 between
Bear Paw Energy Inc. and Koch Hydrocarbon Company.
12. Closing Agreement dated December 20, 1996 between Bear Paw Energy,
Inc. and Koch Hydrocarbon Company.
<PAGE>
13. Master Shelf Agreement.
14. Pledge Agreement.
15. Letter Agreement dated October 20, 1997 by and among TransMontaigne
Oil Company, Transmontaigne Terminaling Inc. and Independent Terminal and
Pipeline Company.
<PAGE>
EXHIBIT 7.3
-----------
FINANCING DEBT AND INVESTMENTS
As of March 31, 1998, the Financing Debt of the Company and its
Subsidiaries, and all Liens and Guarantees relating thereto, include the
following:
(1) The Credit Obligations and the Credit Security and Guarantees
provided therefor under the Credit Agreement.
(2) The Subordinated Debentures in the aggregate outstanding principal
amount of $4,000,000 and the Subordinated Debentures Guarantee.
(3) The 7.85% Senior Secured Notes, Series A, due April 10, 2003
issued pursuant to the Master Shelf Agreement, the Subsidiary Guarantees
thereunder and the Liens granted by the Pledge Agreement.
(4) The 7.22% Senior Secured Notes, Series B, due December 31, 2007
issued pursuant to the Master Shelf Agreement.
As of March 31, 1998, the Investments referred to in Section 6.9.5 include
the following:
(1) Ownership by TransMontaigne Holding Inc. of approximately 28% of
the common stock of Lion Oil Company, an Arkansas corporation.
(2) The 60% ownership interest of TransMontaigne Pipeline Inc. in
Razorback Pipeline Company, a Delaware general partnership.
(3) The 50% ownership interest of Bear Paw Energy Inc. in InterEnergy
Sheffeld Processing Company.
<PAGE>
EXHIBIT 7.14
------------
HAZARDOUS MATERIAL SITES
The Company owns certain properties in North Dakota and Montana that may be
sites included within the meaning of Section 7.14.4 of the Agreement. The
following documents regarding the environmental condition of such properties
have been delivered to the Lender and the Agent:
1. Limited Phase Land II Environmental Site Assessment Dated December 6,
1996 regarding Koch Grasslands Gas Gathering System, located in North
Dakota and Montana;
2. Deficiency Letter addressed to Koch Hydrocarbon Company dated December
6, 1996 regarding Grasslands Gathering System.
<PAGE>
EXHIBIT 7.15
------------
MULTI-EMPLOYER AND DEFINED BENEFIT PLANS
None
<PAGE>
EXHIBIT 12.1
------------
PERCENTAGE INTERESTS
The Percentage Interest of each Lender in the Revolving Loan and the
related Commitments, shall be computed based on the maximum principal amounts
for each Lender as follows:
Maximum Principal
Amount in Percentage
Lender Revolving Loan Interest
------ -------------- ---------
BankBoston, N.A. $ 30,000,000 17.1%
The Bank of Montreal $ 25,000,000 14.3%
CIBC Inc. $ 25,000,000 14.3%
U.S. BANK NATIONAL ASSOCIATION $ 25,000,000 14.3%
NationsBank of Texas, N.A. $ 25,000,000 14.3%
ING (U.S.) Capital Corporation $ 25,000,000 14.3%
Banque Paribas $ 20,000,000 11.4%
TOTAL $175,000,000 100%
============ ====
<PAGE>
EXHIBIT 13.1.1
--------------
FORM OF ASSIGNMENT AND ACCEPTANCE
This Agreement, dated as of ____________, 199_, is between _______________,
a Lender under the Credit Agreement referred to below (the "Assignor"), and
_______________ (the "Assignee").
For valuable consideration, the receipt of which is hereby acknowledged,
the Assignor agrees with the Assignee as follows:
1. Reference to Credit Agreement and Definitions. Reference is made to
---------------------------------------------
the Amended and Restated Credit Agreement dated as of March 31, 1998, as from
time to time in effect, among TransMontaigne Oil Company, a Delaware corporation
(the "Company"), certain Guarantors named therein, BankBoston, N.A., for itself
and as Agent, and certain other Lenders from time to time party thereto (the
"Credit Agreement"). Terms defined in the Credit Agreement and not otherwise
defined herein are used herein with the meanings so defined.
2. Assignment and Assumption. The Assignor hereby sells and assigns to
-------------------------
the Assignee, and the Assignee hereby purchases and assumes from the Assignor, a
__% interest in and to all the Assignor's interests, rights and obligations
under the Credit Agreement and the other Credit Documents (other than its rights
and obligations as a Letter of Credit Issuer) as of the Assignment Date (as
defined below), including without limitation such percentage interest in the
Commitment of the Assignor on the Assignment Date and such percentage interest
in the Loan outstanding and the Letter of Credit Exposure on the Assignment
Date, together with such percentage interest in all unpaid interest with respect
to the Loan and all fees arising pursuant to the Credit Agreement accrued to the
Assignment Date.
3. Representations, Warranties, etc.
--------------------------------
3.1. Assignor's Representations and Warranties. The Assignor:
-----------------------------------------
(a) represents that as of the date hereof, its Commitment is
$____________, the outstanding principal balance of its portion of the
Revolving Loan is $___________ and its portion of the Letter of Credit
Exposure is $___________;
(b) makes no representation or warranty and assumes no responsibility
with respect to any statements, warranties or representations made in or in
connection with the Credit Agreement or the other Credit Documents or the
execution, legality, validity, enforceability, genuineness, sufficiency or
value of the Credit Agreement or
<PAGE>
the other Credit Documents or any other instrument or document furnished
pursuant thereto, other than that it is the legal and beneficial owner of
the interest being assigned by it hereunder and that such interest is free
and clear of any adverse claim; and
(c) makes no representation or warranty and assumes no responsibility
with respect to the financial condition of the Company and its Subsidiaries
or the performance of any of their respective obligations under the Credit
Agreement, any of the Credit Documents or any other instrument or document
furnished pursuant hereto or thereto.
3.2. Assignee's Representations, Warranties and Agreements. The Assignee:
-----------------------------------------------------
(a) represents and warrants that it is legally authorized to enter
into this Agreement;
(b) confirms that it has received a copy of the Credit Agreement and
certain other Credit Documents it has requested, together with copies of
the most recent financial statements delivered pursuant to Section 6.4 or
7.2 of the Credit Agreement and such other documents and information as it
has deemed appropriate to make its own credit analysis and decision to
enter into this Agreement;
(c) agrees that it will, independently and without reliance upon the
Agent, Assignor or any other Person which has become a Lender, and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action
under the Credit Agreement and the other Credit Documents;
(d) agrees that it will be bound by the provisions of the Credit
Agreement and the other Credit Documents and will perform in accordance
with their terms all the obligations which are required to be performed by
it as a Lender; and
(e) agrees to appoint and authorize the Agent to take such action as
agent on its behalf and to exercise such powers under the Credit Agreement
as are delegated to the Agent by the terms thereof, together with such
powers as are reasonably incidental thereto.
4. Assignment Date. The effective date of this Agreement shall be
---------------
____________, 199_ (the "Assignment Date").
5. Assignee Party to Credit Agreement; Assignor Release of Obligations.
-------------------------------------------------------------------
From and after the Assignment Date, (a) the Assignee shall be a party to the
Credit Agreement and, to the extent provided in this Agreement, have the rights
and obligations of a Lender thereunder and under the Credit Documents and (b)
the Assignor shall, to the extent provided in this
-2-
<PAGE>
Agreement, relinquish its rights and be released from its obligations under the
Credit Agreement and the other Credit Documents.
6. Notices. All notices and other communications required to be given or
-------
made to the Assignee under this Agreement, the Credit Agreement or any other
Credit Documents shall be given or made at the address of the Assignee set forth
on the signature page hereof or at such other address as the Assignee shall have
specified to the Assignor, the Agent and the Company in writing.
7. Further Assurances. The parties hereto agree to execute and deliver
------------------
such other instruments and documents and to take such other actions as any party
hereto may reasonably request in connection with the transactions contemplated
by this Agreement.
8. General. This Agreement, the Credit Agreement and the other Credit
-------
Documents constitute the entire agreement of the parties hereto with respect to
the subject matter hereof and supersede all current and prior agreements and
understandings, whether written or oral. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof. The invalidity or unenforceability of any term or provision
hereof shall not affect the validity or enforceability of any other term or
provision hereof. This Agreement may be executed in any number of counterparts,
which together shall constitute one instrument, and shall bind and inure to the
benefit of the parties hereto and their respective successors and assigns,
including as such successors and assigns all holders of any Credit Obligation.
This Agreement shall be governed by and construed in accordance with the laws
(other than the conflict of laws rules) of the jurisdiction in which the
principal office of the Assignor is located.
-3-
<PAGE>
Each of the Assignor and the Assignee has caused this Agreement to be
executed and delivered by its duly authorized officer under seal as of the date
first written above.
[ASSIGNOR]
By____________________________________
Title:
[ASSIGNEE]
By____________________________________
Title:
[Street Address
City, State Zip Code]
Telecopy:
Telex:
The foregoing is hereby consented to:
BANKBOSTON, N.A.,
as Agent
By____________________________________
Title:
TRANSMONTAIGNE OIL COMPANY
By____________________________________
Title:
-4-
<PAGE>
Exhibit 10.13
LETTER AMENDMENT NO. 1
March 31, 1998
The Prudential Insurance Company
of America
U.S. Private Placement Fund
c/o Prudential Capital Group
2200 Ross Avenue, Suite 4200E
Dallas, Texas 75201
Ladies and Gentlemen:
We refer to the Master Shelf Agreement dated as of April 17, 1997 (the
"AGREEMENT") between the undersigned, TransMontaigne Oil Company (the
"COMPANY"), and The Prudential Insurance Company of America ("PRUDENTIAL") and
U.S. Private Placement Fund (collectively, the "PURCHASERS"). Unless otherwise
defined herein, the terms defined in the Agreement shall be used herein as
therein defined.
On April 17, 1997 the Company issued to the Purchasers $50,000,000
aggregate principal amount of its 7.85% Series A Senior Notes due April 17, 2003
and on December 16, 1997 the Company issued to Prudential $25,000,000 aggregate
principal amount of its 7.22% Series B Senior Notes due October 17, 2004. The
Company is entering into an Amended and Restated Credit Agreement dated as of
the date hereof which amends the existing Bank Agreement. The Company has
requested that you agree to amend certain definitions and covenants contained in
the Agreement to conform them to the changes in the amended Bank Agreement. You
have indicated your willingness to so agree. Accordingly, it is hereby agreed
by you and us as follows:
1. AMENDMENTS. The Agreement is, effective the date first above
written, hereby amended as follows:
(a) PARAGRAPH 5F. Paragraph 5F of the Agreement is amended in full to
read as follows:
5F. TYPES OF BUSINESS. The Company shall, and shall cause each of
its Subsidiaries to, engage principally in one or more of the business of (a)
providing transportation, terminaling and storage services for petroleum
products and the distribution, purchase and/or sale of petroleum products,
chemicals and other bulk liquids, (b) natural gas
<PAGE>
gathering, processing, transmission and marketing and (c) other activities
related thereto. The Company and its Subsidiaries may engage in businesses other
than those described in the preceding sentence, provided that the gross revenues
--------
of such other businesses in any fiscal year of the Company shall not exceed 10%
of the Consolidated gross revenues of the Company and its Subsidiaries."
(b) PARAGRAPH 5J. Paragraph 5J of the Agreement is amended in full to
read as follows:
"5J. TRADING POLICY. The Company shall, and shall cause each of its
Subsidiaries (to the extent they are engaged in such business) to, maintain and
follow a policy of managing petroleum inventory risk with the objective of
minimizing potentially adverse impacts on earnings arising from volatility in
refined petroleum product prices. The holders acknowledge that the policy
described in the Risk and Product Management Policy Statement dated March 1998
of TransMontaigne Product Services Inc. (formerly known as Continental Ozark,
Inc.), an Arkansas corporation, a copy of which is attached to this Agreement as
Schedule 5J, represents such a policy."
- -----------
(c) PARAGRAPH 6A(2). Paragraph 6A(2) of the Agreement is amended in
full to read as follows:
"6A(2) LEVERAGE RATIO. The Company will not permit the Leverage
Ratio of the Company and its Subsidiaries at any time during each period
specified below to equal or exceed the percentage set forth below next to such
period:
Period Percentage
------ ----------
To and including April 29, 2001 65%
From and including April 30, 2001 to 60%
and including April 29, 2002
April 30, 2002 and thereafter 55%."
(d) PARAGRAPH 6A(3). Paragraph 6A(3) of the Agreement is amended in
full to read as follows:
"6A(3) CONSOLIDATED TANGIBLE NET WORTH. The Company will not permit
Consolidated Tangible Net Worth at any time to be less than $115,000,000 plus
50% of Consolidated Net Income (if positive) for the period from May 1, 1997 to
January 31, 1998; provided, however, that on April 30, 1998 and on the last day
-------- -------
of each fiscal quarter of the Company thereafter, the then effective dollar
amount in this paragraph 6A(3) shall be
2
<PAGE>
increased by the sum of (a) 50% of Consolidated Net Income (if positive) for the
fiscal quarter then ended plus (b) 50% of the net proceeds realized by the
Company and its Subsidiaries, calculated on a Consolidated basis in accordance
with GAAP, from the issuance of any equity securities during the fiscal quarter
then ended."
(e) PARAGRAPH 6B. Clause (ii) of paragraph 6B of the Agreement is
amended in full to read as follows:
"(ii) So long as immediately before and after giving effect thereto
no Default or Event of Default exists, the Company may make Distributions to its
stockholders; provided that the cumulative amount distributed after April 30,
--------
1997 shall not exceed the sum of (a) $10,000,000 plus (b) 50% of the cumulative
----
Consolidated Net Income of the Company and its Subsidiaries commencing May 1,
1997."
(f) PARAGRAPH 6C(2). Clauses (vii) and (xv) of paragraph 6C(2) of the
Agreement are amended in full to read as follows:
"(vii) To the extent permitted by paragraph 6C(1)(ix),
Indebtedness in respect of Capitalized Lease Obligations or secured by purchase
money security interests; provided, however, that (a) the aggregate principal
-------- -------
amount of all Indebtedness permitted by this paragraph 6C(2)(vii) which consists
of Indebtedness in respect of Capital Lease Obligations and other Indebtedness
incurred for the acquisition of equipment shall not exceed 2% of Consolidated
Net Tangible Assets at any one time outstanding and (b) that the aggregate
principal amount of all Indebtedness permitted by this paragraph 6C(2)(vii)
which consists of Indebtedness issued to sellers of any business or part thereof
or operating assets in consideration for the acquisition thereof by the Company
or a Subsidiary shall not exceed 4% of Consolidated Net Tangible Assets at any
one time outstanding."
"(xii) So long as the Intercreditor Agreement is in effect, Funded
Debt of the Company under the Bank Agreement not exceeding $175,000,000, and
other "Credit Obligations" (as defined in the Bank Agreement) of the Company and
the Guarantors under the Bank Agreement."
"(xv) Unsecured Funded Debt of the Company; provided that after
--------
giving effect to the issuance of such unsecured Funded Debt and the application
of any of the proceeds thereof on the issuance date no Default or Event of
Default shall exist, the Leverage Ratio shall not exceed 60% on or before April
29, 2000, 55% on or after April 30, 2000 and on or before April 29, 2001, or 50%
on or after April 30, 2001 and the Company shall have delivered to the holders a
certificate of a Financial Officer of the Company in reasonable detail
demonstrating compliance with these conditions after giving effect to such
issuance and application; provided, further, either (a) that the terms and
-------- -------
conditions of such unsecured Funded Debt, including without limitation,
financial covenants, defaults, amortization and rate
3
<PAGE>
of interest shall have been consented to by to the Majority Holders or (b) that
the sum of (I) the aggregate outstanding principal amount of Notes (other than
the Series A Notes and the Series B Notes) plus (II) the aggregate principal
----
amount of Indebtedness permitted under this clause (b) and not consented to as
provided in the preceding clause (a) at no time shall exceed $60,000,000."
(g) PARAGRAPH 6C(4). Clause (v) of paragraph 6C(4) of the Agreement is
amended by deleting the figure "10%" and substituting therefor the figure"15%."
(h) PARAGRAPH 6C(6). Clause (ii) of paragraph 6C(6) of the Agreement
is amended in full to read as follows:
"(ii) Leases other than Capitalized Leases; provided, however,
-------- -------
that the aggregate fixed rental obligations for any fiscal year (excluding
payments required to be made by the lessee in respect of taxes and insurance
whether or not denominated as rent) shall not exceed an amount equal to 3% of
Consolidated Net Tangible Assets as of the last day of the next preceding fiscal
year."
(i) PARAGRAPH 10B. Paragraph 10B of the Agreement is amended by
amending the following definitions in full to read as follows:
"'BANK AGREEMENT' shall mean the Amended and Restated Credit
Agreement dated as of March 31, 1998 among the Company, the Guarantors and the
Bank Agent and the institutions parties thereto, as amended from time to time."
"'CONSOLIDATED NET INCOME' shall mean, for any period, the net
income (or loss) of the Company and its Subsidiaries, determined in accordance
with GAAP on a Consolidated basis; provided, however, that Consolidated Net
-------- -------
Income shall not include:
---
(a) the income (or loss) of any Person accrued prior to the date
such Person becomes a Subsidiary or is merged into or consolidated with the
Company or any of its Subsidiaries;
(b) the income (or loss) of any Person (other than a Subsidiary)
in which the Company or any of its Subsidiaries has an ownership interest;
provided, however, that (i) Consolidated Net Income shall include amounts in
- -------- -------
respect of the income of such Person when actually received in cash by the
Company or such Subsidiary in the form of dividends or similar Distributions and
(ii) Consolidated Net Income shall be reduced by the aggregate amount of all
Investments, regardless of the form thereof, made by the Company or any of its
Subsidiaries in such Person for the purpose of funding any deficit or loss of
such Person;
4
<PAGE>
(c) all amounts included in computing such net income (or loss) in
respect of the write-up of any asset or the retirement of any Indebtedness or
equity at less than face value after April 30, 1997;
(d) extraordinary and nonrecurring gains;
(e) the income of any Subsidiary to the extent the payment of such
income in the form of a Distribution or repayment of Indebtedness to the Company
or a Wholly Owned Subsidiary is not permitted, whether on account of any Charter
or By-law restriction, any agreement, instrument, deed or lease or any law,
statute, judgment, decree or governmental order, rule or regulation applicable
to such Subsidiary; and
(f) any after-tax gains or losses attributable to returned surplus
assets of any Plan."
"'CONSOLIDATED TANGIBLE NET WORTH' shall mean, at any date, the
total of:
(a) stockholders' equity of the Company and its Subsidiaries
determined in accordance with GAAP on a Consolidated basis, excluding the effect
of any foreign currency translation adjustments;
minus (b) the amount by which such stockholders' equity has been
-----
increased after April 30, 1997 by the items described in clauses (a) through (f)
of the definition of Consolidated Net Income;
minus (c) to the extent not already deducted from the amount in clause
-----
(a) above, (i) treasury stock, (ii) receivables due from an employee stock
ownership plan and (iii) Guarantees of Indebtedness incurred by an employee
stock ownership plan;
minus (d) the amount of intangible assets carried on the balance sheet
-----
of the Company and its Subsidiaries determined in accordance with GAAP on a
Consolidated basis, including goodwill, patents, patent applications,
copyrights, trademarks, tradenames, research and development expense,
organizational expense, unamortized debt discount and expense, deferred
financing charges and debt acquisition costs."
"'SERIES B NOTES' shall mean the 7.22% Series B Senior Notes due
October 17, 2004 in the principal amount of $25,000,000."
(j) SCHEDULE 5A(i). Schedule 5A(i) to the Agreement is replaced by the
Schedule 5A(i) attached hereto.
5
<PAGE>
(k) SCHEDULE 5J. Schedule 5J to the Agreement is replaced by the
Schedule 5J attached hereto.
2. CONSENT OF GUARANTORS. Each Guarantor under the Guaranty contained
in paragraph 11 of the Agreement, hereby consents to this letter amendment and
hereby confirms and agrees that the Guaranty is, and shall continue to be, in
full force and effect and is hereby confirmed and ratified in all respects
except that, upon the effectiveness of, and on and after the date of, said
letter amendment, all references in the Guaranty to the Agreement, "thereunder",
"thereof", or words of like import referring to the Agreement shall mean the
Agreement as amended by said letter amendment.
3. CONSENT OF PLEDGORS. Each of the Company and TransMontaigne
Transportation Services Inc. is a Pledgor under the Pledge Agreement (the
"PLEDGORS") and each hereby agrees that (i) the Pledge Agreement shall continue
to be, in full force and effect and is hereby confirmed and ratified in all
respects except that, upon the effectiveness of, and on and after the date of,
this letter amendment, all references in the Pledge Agreement to the Loan
Documents shall mean the Loan Documents as amended by this Amendment and (ii)
all of the Loan Security described therein does, and shall continue to, secure
the payment by the Pledgors of their obligations under the Loan Documents, as
amended by this letter amendment.
4. MISCELLANEOUS.
(a) EFFECT ON AGREEMENT. On and after the effective date of this
letter amendment, each reference in the Agreement to "this Agreement",
"hereunder", "hereof", or words of like import referring to the Agreement, and
each reference in the Notes to "the Agreement", "thereunder", "thereof", or
words of like import referring to the Agreement, shall mean the Agreement as
amended by this letter amendment. The Agreement, as amended by this letter
amendment, is and shall continue to be in full force and effect and is hereby in
all respects ratified and confirmed. The execution, delivery and effectiveness
of this letter amendment shall not, except as expressly provided herein, operate
as a waiver of any right, power or remedy under the Agreement nor constitute a
waiver of any provision of the Agreement.
(b) COUNTERPARTS. This letter amendment may be executed in any number
of counterparts and by any combination of the parties hereto in separate
counterparts, each of which counterparts shall be an original and all of which
taken together shall constitute one and the same letter amendment.
(c) EFFECTIVENESS. This letter amendment shall become effective as of
the date first above written when and if (I) counterparts of this letter
amendment shall have been executed by the Company, each Guarantor and the
Pledgors and you; and (II) the covenants of
6
<PAGE>
the Company set forth in the Bank Agreement shall have been amended to reflect
the covenant modifications of the Agreement made herein.
(d) FEES. The Company agrees to pay Prudential $1,500 for the
allocated costs of internal counsel for the preparation of this Amendment.
(e) GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAW OF
THE STATE 0F NEW YORK.
If you agree to the terms and provisions hereof, please evidence your
agreement by executing and returning at least a counterpart of this letter
amendment to TransMontaigne Oil Company, 370 17th Street, Suite 2750, Denver,
Colorado 80202, Attention of Harold R. Logan.
Very truly yours,
TRANSMONTAIGNE OIL COMPANY
By: /s/ Harold R. Logan, Jr.
-------------------------------------
Title:EVP/Finance
GUARANTORS/PLEDGORS
TRANSMONTAIGNE PRODUCT SERVICES INC.
TRANSMONTAIGNE PIPELINE INC.
TRANSMONTAIGNE TERMINALING INC.
TRANSMONTAIGNE TRANSPORTATION
SERVICES INC.
BEAR PAW ENERGY INC.
By: /s/ Richard E. Gathright
-------------------------------------
As C.E.O. of each of the foregoing
corporations
7
<PAGE>
Agreed as of the date first above written:
THE PRUDENTIAL INSURANCE COMPANY
OF AMERICA
By: /s/ Randall M. Kob
-------------------------------------
Vice President
U.S. PRIVATE PLACEMENT FUND
By: Prudential Private Placement
Investors, L.P., Investment Advisor
By: Prudential Private Placement
Investors, Inc., its General Partner
By: /s/ Randall M. Kob
-------------------------------------
Vice President
8
<PAGE>
SCHEDULE 5A(i)
--------------
FORM OF COVENANT COMPLIANCE CERTIFICATE
The Prudential Insurance Company of America
U.S. Private Placement Fund
c/o Prudential Capital Group
2200 Ross Ave., Suite 4200E
Dallas, Texas 75201
Attn: Managing Director
[other Holders]
Ladies and Gentlemen:
Reference is made to the Master Shelf Agreement dated as of April 17, 1997
among TransMontaigne Oil Company, a Delaware corporation (the "COMPANY"),
certain Guarantors named therein, The Prudential Insurance Company of America,
and the other holders from time to time of Notes issued thereunder (the "SHELF
AGREEMENT"). Terms defined in the Shelf Agreement and not otherwise defined
herein are used herein as defined in the Shelf Agreement.
Pursuant to paragraph 5A of the Shelf Agreement, the Company is furnishing
to you herewith [or has most recently furnished to you] the financial statements
of the Company and its Subsidiaries for the fiscal period ended __________ (the
"BALANCE SHEET DATE"). Such financial. statements have been prepared in
accordance with generally accepted accounting principles and present fairly, in
all material respects, the financial position of the Company and its
Subsidiaries covered thereby at the date thereof and the results of their
operations for the period covered thereby, subject in the case of interim
statements only to normal year-end audit adjustments and the addition of
footnotes and except that permanent base product inventory will be recorded at
historical cost.
This certificate is submitted in compliance with the requirements of
paragraph 5A(i)(d) or 5A(ii)(c) of the Shelf Agreement. The undersigned officer
of the Company is a duly authorized Financial Officer.
The undersigned officer has caused the provisions of the Shelf Agreement to
be reviewed and has no knowledge of any Default or Event of Default. [Note: If
the signer does have knowledge of any Default or Event of Default, the form of
certificate should be revised to specify the Default or Event of Default, the
nature thereof and the actions taken, being taken or proposed to be taken by the
Company with respect thereto.]
The Company is providing the following information to demonstrate
compliance as of
<PAGE>
the Balance Sheet Date with the following Computation Covenants:
<TABLE>
<CAPTION>
1. Paragraph 6A(1). Fixed Charges Coverage.
---------------------------------------
<S> <C>
A. Consolidated Income from Operations
Consolidated gross revenues (per income statement) $____________
Minus Consolidated cost of operations (per income statement) (____________)
Minus Consolidated selling, general and administrative (____________)
expenses (per income statement)
Subtotal for most recent quarter $____________
Consolidated Income from Operations for three prior quarters:
Quarter ended _____________
Quarter ended _____________
Quarter ended _____________
Total $____________
Consolidated Interest Expense
Subtotal for most recent quarter (per income $ statement) $____________
Consolidated interest expense for three prior quarters:
Quarter ended _____________
Quarter ended _____________
Quarter ended _____________
Total $____________
A divided by B equals (may not be less than 225 %) _____________%
2. Paragraph 6A(2). Leverage Ratio.
-------------------------------
A. Consolidated Funded Debt
Long term debt (per balance sheet) _____________
Current maturities of long term debt, unless included above _____________
(per balance sheet)
Other Funded Debt, including certain letter of credit _____________
</TABLE>
2
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
reimbursement obligations
Total $____________
B. Consolidated Net Tangible Assets
Consolidated total assets (per balance sheet) $____________
Minus Consolidated Current Liabilities (per balance sheet) (____________)
Minus Consolidated other liabilities (other than liabilities (____________)
for Funded Debt) (per balance sheet)
Minus Consolidated intangible assets (per balance sheet) (____________)
Minus book value of any minority interest in a Subsidiary (per (____________)
balance sheet)
Total $____________
A divided by B equals (may not equal or exceed the applicable _____________%
percentage)
3. Paragraph 6A(3). Consolidated Tangible Net Worth.
-------------------------------------------------
A. Consolidated Tangible Net Worth
Consolidated stockholders' equity (per balance sheet) $____________
(excluding effect of any foreign currency translation
adjustments)
Minus increase in such stockholders' equity after April 30, (____________)
1997 because of items (a) - (f) in definition of Consolidated
Net Income
Minus (without duplication) the book value of treasury stock, (____________)
receivables due from an employee stock ownership plan and
Guarantees of Indebtedness incurred by an employee stock
ownership plan
Minus Consolidated intangible assets (____________)
Total $____________
B. Requirement
Initial requirement $ 115,000,000
Cumulative increases through quarter preceding most recent _____________
quarter
</TABLE>
<PAGE>
<TABLE>
<S> <C>
50% of Consolidated Net Income (if positive) in most recent _____________
quarter (commencing quarter ended April 30, 1997)
50% of Consolidated net proceeds from issuance of equity _____________
securities in most recent quarter (commencing quarter ended
April 30, 1997)
Total $____________
A must exceed B.
4. Paragraph 6C(2). Certain Indebtedness.
-------------------------------------
A. Aggregate principal amount of all Indebtedness in respect of
Capital Lease Obligations and other Indebtedness incurred for
acquisition of equipment
Total (may not exceed 2% of Consolidated Net Tangible Assets) $____________
B. Aggregate principal amount of paragraph 6C(2)(vii) Indebtedness
issued to sellers of any business or part thereof or operating
assets for the acquisition thereof
Total (may not exceed 4% of Consolidated Net Tangible Assets) $____________
5. Paragraph 6C(2)(xv). Unsecured Funded Debt.
------------------------------------------
A. Aggregate outstanding principal of Indebtedness permitted by
paragraph 6C(2)(xv)
Total $____________
B. Aggregate outstanding principal of Indebtedness permitted by
clause (b) of paragraph 6C(2)(xv) and not consented to under
clause (a) thereof.
Total $____________
A plus B equals (may not exceed $60,000,000) $____________
6. Paragraph 6C(2)(xvi). Other Indebtedness.
----------------------------------------
A. Indebtedness (other than Financing Debt) in addition to other
types of indebtedness permitted by paragraph 6C(2)
[List Indebtedness]
Total (may not exceed $2,000,000) $____________
</TABLE>
<PAGE>
7. Paragraph 6C(4). Investments in Certain Subsidiaries.
----------------------------------------------------
A. Investments in Subsidiaries listed in Schedule 8A other than Wholly
Owned Subsidiaries (after December 18, 1996):
[List Investments]
Total $__________
B. Consolidated Net Tangible Assets
Total (per (P)2B) $__________
A divided by B equals (may not exceed 10%) __________%
8. Paragraph 6C(4)(vii). Other Investments.
----------------------------------------
A. Investments in Subsidiaries listed in Schedule 8A otherwise not
permitted in paragraph 6C(4)
[List Investments]
Total $__________
B. Consolidated Tangible Net Worth
Total (per (P)3A) $__________
A divided by B equals (may not exceed 15%) __________%
9. Paragraph 6B. Distributions.
----------------------------
A. Consolidated Net Income (cumulative since November 1, 1996)
Cumulative Consolidated Net Income from November 1, 1996 $__________
to beginning of most recent quarter
Consolidated net income (or loss) (per income statement) __________
Minus income (or loss) of any Person accrued prior to (_________)
becoming a Subsidiary
Minus income (or loss) of any Person (other than a (_________)
Subsidiary) in which the Company or a Subsidiary has an
ownership interest (subject to certain exceptions in
Section) [definition of Consolidated Net Income])
Minus amounts included in net income (or loss) in respect (_________)
of
<PAGE>
the write-up of any asset or retirement of any
Indebtedness or equity at less than face value after
October 31, 1996
Minus extraordinary and nonrecurring gains (_________)
Minus income from an impermissible Distribution or (_________)
repayment of Indebtedness by any Subsidiary
Minus after-tax gains or losses attributable to returned (_________)
surplus assets of any Plan
Total $__________
B. Distributions
Total of cumulative Distributions after October 31, 1996 $__________
B minus ($5,000,000 plus 50% of A) equals (may not exceed zero) __________%
10. Paragraph 6C(5). Dispositions of Certain Assets.
------------------------------------------------
A. Assets disposed of (at fair market value or book value if
greater) to date in fiscal year
[List assets]
Total $__________
B. Consolidated Net Tangible Assets (as of last day of next
preceding fiscal year)
Consolidated total assets (per balance sheet) $__________
Minus Consolidated Current Liabilities (per balance sheet) (_________)
Minus Consolidated other liabilities (other than liabilities (_________)
for Funded Debt) (per balance sheet)
Minus Consolidated intangible assets (per balance sheet) (_________)
Minus book value of any minority interest in a Subsidiary (_________)
(per balance sheet)
Total $__________
A divided by B equals (may not exceed 4% in any fiscal year) __________%
11. Paragraph 6C(6). Certain Lease Obligations.
-------------------------------------------
A. Leases Other than Capitalized Leases
<PAGE>
Aggregate fixed rental obligations for fiscal year $__________
Minus payments required in respect of taxes and insurance- (_________)
(if included above)
Total (may not exceed 3% of Consolidated Net Tangible $__________
Assets and the last day of the next preceding fiscal year)
12. Paragraph 5O. Open Positions.
-----------------------------
A. Consolidated Open Positions
Number of barrels of petroleum product held in inventory or ___________
subject to purchase contracts
Minus number of barrels of petroleum product subject to (_________)
sale contracts
Total (may not exceed Company policy of barrels) ___________
If the Balance Sheet Date is the last day of a fiscal quarter of the
Company, this certificate is accompanied by supplements to Schedule 7A, 8D and
8J to the extent required by paragraph 5A(i)(f) or 5A(ii)(d).
If the Balance Sheet Date is the last day of the fiscal year of the Company,
this certificate is accompanied by a written statement of the independent
certified public accountants of the Company complying with the terms of
paragraph 5A(i)(a) of the Shelf Agreement and the calculations of Accumulated
Benefit Obligations and Plan assets complying with the terms of paragraph
5A(1)(e) of the Shelf Agreement.
IN WITNESS WHEREOF, the undersigned Financial Officer of the Company has set
his or her hand and seal this day of __________, 199_.
TRANSMONTAIGNE OIL COMPANY
By: ____________________________________
Title
<PAGE>
EXHIBIT 21
TransMontaigne Oil Company
List of Subsidiaries
<TABLE>
<CAPTION>
State/Country of Ownership of
Name of Subsidiary Organization Subsidiary Trade Name
- --------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> None
Bear Paw Energy Inc. Colorado 100% None
GOIN, Inc. Colorado 100% None
Interenergy Sheffield Processing Company (Canada) Ltd. Canada 100% None
K123 Corporation Colorado 100% None
Razorback Pipeline Company Delaware 60% None
Republic Natural Gas Company Kansas 100% None
TransMontaigne Canada Ltd. Canada 100% None
TransMontaigne Holding Inc. Arkansas 65% None
TransMontaigne Pipeline Inc. Arkansas 100% None
TransMontaigne Product Services Inc. Arkansas 100% None
TransMontaigne Terminaling Inc. Arkansas 100% Razorback Terminaling Co.
TransMontaigne Transportation Services Inc. Arkansas 100% None
</TABLE>
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
-------------------------------
THE BOARD OF DIRECTORS
TRANSMONTAIGNE OIL COMPANY:
We consent to incorporation by reference in the registration statement (no. 333-
23691) on Form S-3 and the registration statements (nos. 333-04405, 333-15055
and 333-34579) on Form S-8 of TransMontaigne Oil Company of our report dated
July 10, 1998 relating to the consolidated balance sheets of TransMontaigne Oil
Company and subsidiaries as of April 30, 1998 and 1997, and the related
consolidated statements of operations, stockholders' equity and cash flows for
each of the years in the three-year period ended April 30, 1998, which report
appears in the April 30, 1998, annual report on Form 10-K of TransMontaigne Oil
Company.
KPMG PEAT MARWICK LLP
Denver, Colorado
July 27, 1998
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
COMPANY'S FINANCIAL STATEMENTS FOR THE FISCAL YEAR ENDED APRIL 30, 1998
AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> APR-30-1998
<PERIOD-START> MAY-01-1997
<PERIOD-END> APR-30-1998
<CASH> 29,807,354
<SECURITIES> 0
<RECEIVABLES> 74,118,482
<ALLOWANCES> 0
<INVENTORY> 33,410,481
<CURRENT-ASSETS> 140,010,124
<PP&E> 186,471,875
<DEPRECIATION> (18,705,670)
<TOTAL-ASSETS> 323,304,830
<CURRENT-LIABILITIES> 45,616,860
<BONDS> 128,969,667
0
0
<COMMON> 259,429
<OTHER-SE> 147,544,874
<TOTAL-LIABILITY-AND-EQUITY> 323,304,830
<SALES> 0
<TOTAL-REVENUES> 1,967,506,496
<CGS> 0
<TOTAL-COSTS> 1,948,272,047
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 7,591,223
<INCOME-PRETAX> 13,130,130
<INCOME-TAX> 5,492,500
<INCOME-CONTINUING> 7,637,630
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 7,637,630
<EPS-PRIMARY> 0.30<F1>
<EPS-DILUTED> 0.29
<FN>
<F1>REPRESENTS BASIC EARNINGS PER SHARE
</FN>
</TABLE>
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
COMPANY'S FINANCIAL STATEMENTS FOR THE QUARTERS ENDED JULY 31, 1997 AND OCTOBER
31, 1997 AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL
STATEMENTS.
</LEGEND>
<RESTATED>
<S> <C> <C>
<PERIOD-TYPE> 3-MOS 6-MOS
<FISCAL-YEAR-END> APR-30-1998 APR-30-1998
<PERIOD-START> MAY-01-1997 MAY-01-1997
<PERIOD-END> JUL-31-1997 OCT-31-1997
<CASH> 41,265,879 45,764,652
<SECURITIES> 0 0
<RECEIVABLES> 54,351,843 39,926,328
<ALLOWANCES> 0 0
<INVENTORY> 53,487,027 64,452,354
<CURRENT-ASSETS> 152,739,025 152,683,589
<PP&E> 126,080,782 133,577,721
<DEPRECIATION> (12,382,410) (14,171,962)
<TOTAL-ASSETS> 286,675,004 292,409,258
<CURRENT-LIABILITIES> 60,195,917 53,249,906
<BONDS> 78,961,867 88,964,467
0 0
0 0
<COMMON> 258,097 259,144
<OTHER-SE> 141,783,746 144,460,364
<TOTAL-LIABILITY-AND-EQUITY> 286,675,004 292,409,258
<SALES> 0 0
<TOTAL-REVENUES> 462,149,021 1,007,249,077
<CGS> 0 0
<TOTAL-COSTS> 456,461,558 996,566,388
<OTHER-EXPENSES> 0 0
<LOSS-PROVISION> 0 0
<INTEREST-EXPENSE> 1,498,746 3,067,523
<INCOME-PRETAX> 4,609,565 8,477,037
<INCOME-TAX> 1,600,000 3,070,000
<INCOME-CONTINUING> 3,009,565 5,407,037
<DISCONTINUED> 0 0
<EXTRAORDINARY> 0 0
<CHANGES> 0 0
<NET-INCOME> 3,009,565 5,407,037
<EPS-PRIMARY> 0.12<F1><F2> 0.21<F1><F2>
<EPS-DILUTED> 0.11<F2> 0.20<F2>
<FN>
<F1>REPRESENTS BASIC EARNINGS PER SHARE.
<F2>RESTATED TO REFLECT THE COMPANY'S ADOPTION OF SFAS 128, "EARNINGS PER SHARE".
</FN>
</TABLE>
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
COMPANY'S FINANCIAL STATEMENTS FOR THE QUARTERS ENDED JULY 31, 1996, OCTOBER 31,
1996 AND JANUARY 31, 1997 AND THE FISCAL YEARS ENDED APRIL 30, 1997 AND APRIL
30, 1996 AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL
STATEMENTS.
</LEGEND>
<RESTATED>
<S> <C> <C> <C> <C> <C>
<PERIOD-TYPE> 3-MOS 6-MOS 9-MOS YEAR YEAR
<FISCAL-YEAR-END> APR-30-1997 APR-30-1997 APR-30-1997 APR-30-1997 APR-30-1996
<PERIOD-START> MAY-01-1996 MAY-01-1996 MAY-01-1996 MAY-01-1996 MAY-01-1995
<PERIOD-END> JUL-31-1996 OCT-31-1996 JAN-31-1997 APR-30-1997 APR-30-1996
<CASH> 34,210,175 33,001,504 28,168,373 36,384,325 38,403,234
<SECURITIES> 0 0 0 0 0
<RECEIVABLES> 24,713,349 42,150,480 41,758,953 46,871,207 20,905,812
<ALLOWANCES> 0 0 0 0 0
<INVENTORY> 32,258,160 36,951,892 49,296,802 42,346,451 23,609,136
<CURRENT-ASSETS> 92,423,039 113,315,834 120,534,394 130,925,973 84,393,794
<PP&E> 29,150,847 34,055,163 113,694,325 121,233,006 25,999,107
<DEPRECIATION> (6,807,470) (7,218,868) (8,151,832) (10,704,252) (6,461,244)
<TOTAL-ASSETS> 134,937,349 161,052,487 248,201,779 261,724,320 120,962,976
<CURRENT-LIABILITIES> 27,905,731 46,094,524 44,451,675 52,502,935 28,741,955
<BONDS> 33,951,517 37,684,067 124,906,667 64,774,267 28,948,867
0 0 0 0 0
0 0 0 0 0
<COMMON> 208,056 209,830 210,742 257,947 1,933,117
<OTHER-SE> 67,526,239 71,462,054 73,072,869 138,713,794 55,886,074
<TOTAL-LIABILITY-AND-EQUITY> 134,937,349 161,052,487 248,201,779 261,724,320 120,962,976
<SALES> 0 0 0 0 0
<TOTAL-REVENUES> 194,052,201 470,822,944 811,476,612 1,166,664,621 533,106,747
<CGS> 0 0 0 0 0
<TOTAL-COSTS> 191,815,816 466,210,230 804,419,995 1,156,764,053 526,557,794
<OTHER-EXPENSES> 0 0 0 0 0
<LOSS-PROVISION> 0 0 0 0 0
<INTEREST-EXPENSE> 655,837 1,370,280 2,647,990 4,042,616 2,530,945
<INCOME-PRETAX> 1,866,575 4,749,663 6,355,540 7,482,534 4,810,716
<INCOME-TAX> 60,000 270,000 450,000 (1,688,778) 192,747
<INCOME-CONTINUING> 1,806,575 4,479,663 5,905,540 9,171,312 4,617,969
<DISCONTINUED> 0 0 0 0 0
<EXTRAORDINARY> 0 0 0 0 0
<CHANGES> 0 0 0 0 0
<NET-INCOME> 1,806,575 4,479,663 5,905,540 9,171,312 4,617,969
<EPS-PRIMARY> 0.09<F1><F2> 0.22<F1><F2> .28<F1><F2> 0.42<F1><F2> 0.31<F1><F2>
<EPS-DILUTED> 0.09<F2> 0.21<F2> .27<F2> 0.41<F2> 0.30<F2>
<FN>
<F1>REPRESENTS BASIC EARNINGS PER SHARE.
<F2>RESTATED TO REFLECT THE COMPANY'S ADOPTION OF SFAS 128, "EARNINGS PER SHARE".
</FN>
</TABLE>
