Exhibit 10.1
Execution Copy
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TRANSMONTAIGNE INC.
TRANSMONTAIGNE PRODUCT SERVICES INC.
TRANSMONTAIGNE PIPELINE INC.
TRANSMONTAIGNE TERMINALING INC.
0000 Xxxxxxxx Xxxxx
000 Xxxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
AMENDMENT NO. 1 OF
FOURTH AMENDED AND RESTATED CREDIT AGREEMENT
As of July 31, 2000
FLEET NATIONAL BANK
(formerly known as BankBoston, N.A.),
as Agent under the Credit Agreement
defined herein
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Ladies and Gentlemen:
Each of TransMontaigne Inc. (the "Company") and TransMontaigne Product
Services Inc., each a Delaware corporation, and TransMontaigne Pipeline Inc. and
TransMontaigne Terminaling Inc., each an Arkansas corporation, hereby agrees
with you as follows:
1. Reference to Credit Agreement and Definitions. Reference is made to the
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Fourth Amended and Restated Credit Agreement dated as of February 11, 2000, as
from time to time in effect (the "Credit Agreement"), among the Company, the
Guarantors named therein, Fleet National Bank (formerly known as BankBoston,
N.A.), for itself and as Agent, Bank of America, N.A., for itself and as
Documentation Agent, First Union National Bank, for itself and as Syndication
Agent, and the other Lenders from time to time party thereto. Terms defined in
the Credit Agreement and not otherwise defined herein are used herein with the
meanings so defined.
2. Recital. The Company has advised the Lenders that it intends to acquire
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100% of the equity of Genesis Energy, L.L.C., a Delaware limited liability
company, for cash consideration not to exceed $3,000,000 and that the Company
and its Subsidiaries are required by environmental and other regulations to
increase capital expenditures in fiscal year 2001 by up to $4,000,000. The
Required Lenders have agreed to amend the relevant covenants of the Credit
Agreement to permit these activities.
Effective June 30, 2000 and as permitted by Section 6.11.2 of the Credit
Agreement, (1) TransMontaigne Product Services Midwest Inc., an Arkansas
corporation, was merged with and into TransMontaigne Product Services Inc., a
Delaware corporation, and (2) TransMontaigne Transportation Services Inc., an
Arkansas corporation, was merged with and into the Company.
3. Amendments. Subject to the accuracy of the representations and warranties
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set forth in Section 4 hereof and satisfaction of the conditions set forth in
Section 5 hereof, the Credit Agreement is hereby amended, effective as of the
date hereof, as follows:
3.1. Section 6.5.5 of the Credit Agreement is amended to read in its
entirety as follows:
6.5.5. Capital Expenditures. For each fiscal quarter of the
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Company, commencing with the fiscal quarter ending December 31, 2000, the
aggregate amount of Capital Expenditures for the period of four consecutive
fiscal quarters then ending shall not exceed $8,000,000; provided, however,
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that the Company and its Subsidiaries may incur additional Capital
Expenditures (a) for contracted projects identified in the Committed
Capital Expenditures Schedule in an aggregate amount not to exceed
$15,000,000 and (b) for additional projects required to comply with
environmental or other governmental regulations incurred in fiscal year
2001 in an aggregate amount not to exceed $4,000,000.
3.2. Section 6.9.5 of the Credit Agreement is amended to read in its
entirety as follows:
6.9.5. Investments made after June 30, 1999 in Subsidiaries listed
in Exhibit 7.1 hereto as supplemented from time to time other than Wholly
Owned Subsidiaries, provided that the aggregated 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 the greater of (a) an amount equal to the difference (if
positive) of 15% of Consolidated Net Tangible Assets minus $3,000,000 or
(b) zero.
3.3. Section 6.9 of the Credit Agreement is further amended by adding
thereto a new Section 6.9.8 reading in its entirety as follows:
6.9.8. An Investment consisting of the acquisition of 100% of the
equity of Genesis Energy, L.L.C., a Delaware limited liability company, for
cash consideration not exceeding $3,000,000.
3.4. Section 6.10.1 of the Credit Agreement is amended to read in its
entirety as follows:
6.10.1. Subsidiaries of the Company may make Distributions to the
Company or any Wholly Owned Subsidiary of the Company (other than Genesis
Energy, L.L.C., a Delaware limited liability company).
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3.5. Section 7.1.2 of the Credit Agreement is amended by amending the
first sentence thereof to read in its entirety as follows:
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
Agent for the benefit of 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; provided, however, that clauses (a) through (c) of this
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sentence shall not apply in the case of Genesis Energy, L.L.C., a Delaware
limited liability company.
3.6. Section 9.9 of the Credit Agreement is further amended to read in its
entirety as follows:
9.9. Future Subsidiaries; Further Assurances. The Company will from
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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;
provided, however, that Genesis Energy, L.L.C., a Delaware limited
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liability company, shall not be required to become a Guarantor. 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.
4. Representations and Warranties. In order to induce you to enter into this
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Amendment, each of the Obligors hereby represents and warrants that each of the
representations and warranties contained in Section 7 of the Credit Agreement is
true and correct on the date hereof.
5. Conditions to Effectiveness of Amendment. Acceptance of the foregoing
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amendments by the Required Lenders shall be subject, without limitation, to the
conditions (a) that no Default or Event of Default under the Credit Agreement
shall have occurred and be continuing and (b) that Prudential and each other
holder of Indebtedness issued under the Master Shelf Agreement shall have
consented to the modifications of the Credit Agreement effected hereby and the
covenants of the Company set forth in the Master Shelf Agreement shall have been
amended to incorporate such modifications, all upon terms satisfactory to the
Agent. By their consent to this Amendment, the Required Lenders also consent to
such amendment of the Master Shelf Agreement.
6. Required Lenders. The Agent represents and warrants that it has received
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consents to the foregoing amendments executed by the Required Lenders, in
satisfaction of the requirements of Section 12.6 of the Credit Agreement.
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7. Miscellaneous. This Amendment may be executed in any number of
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counterparts, which together shall constitute one instrument, shall be a Credit
Document, shall be governed by and construed in accordance with the laws of The
Commonwealth of Massachusetts (without giving effect to the conflict of laws
rules of any jurisdiction) 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.
If the foregoing corresponds with your understanding of our agreement,
please sign this letter and the accompanying copies thereof in the appropriate
space below and return the same to the undersigned. This letter shall become a
binding agreement among each of the Lenders and the Agent when both the Company
and the Agent shall have one or more copies hereof executed by each of the
Company and the Agent on behalf of the Required Lenders.
Very truly yours,
TRANSMONTAIGNE INC.
By /s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx, President
TRANSMONTAIGNE PRODUCT SERVICES INC.
TRANSMONTAIGNE PIPELINE INC.
TRANSMONTAIGNE TERMINALING INC.
By /s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx, Chief Executive Officer
of each of the foregoing corporations
The foregoing Amendment is hereby agreed to:
FLEET NATIONAL BANK, as Agent under the Credit
Agreement, on behalf of the Required Lenders
By /s/ Xxxxxxxx Xxxxx
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Xxxxxxxx Xxxxx, Director
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