EXHIBIT 10.10
TRANSMONTAIGNE OIL COMPANY
CREDIT AGREEMENT
Amendment No. 3
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This Agreement, dated as of December 1, 1997, is among TransMontaigne Oil
Company, a Delaware corporation (the "Company"), the Subsidiaries of the Company
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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
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other Lenders. The parties agree as follows:
1. Reference to Credit Agreement; Background.
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1.1 Reference to Credit Agreement; Definitions. Reference is made to the
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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
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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
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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
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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
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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").
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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
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into this Agreement, each of the Company and the Guarantors jointly and
severally represents and warrants to each of the Lenders that:
3.1 No Legal Obstacle to Agreements. Neither the execution and delivery
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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
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Default shall exist.
3.3 Incorporation of Representations and Warranties of Company.
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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
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Section 2 hereof shall
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be subject to the satisfaction of the following conditions:
4.1 Officer's Certificate. The representations and warranties contained
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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
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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
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Lenders shall have executed and delivered this Agreement.
5. Further Assurances. The Company will, promptly upon the request of the
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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
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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.
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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/ Xxxxxxx X. Xxxxxxxxx
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President and Chief Operating Officer
TRANSMONTAIGNE TRANSPORTATION
SERVICES INC.
TRANSMONTAIGNE PRODUCT
SERVICES INC.
TRANSMONTAIGNE PIPELINE INC.
TRANSMONTAIGNE TERMINALING INC.
By /s/ Xxxxxxx X. Xxxxxxxxx
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As C.E.O. of each of the foregoing
corporations
BEAR PAW ENERGY INC.
By /s/ Xxxxxx X. Xxxxx
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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. Xxxxx Xxxxxx
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Authorized Officer
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THE BANK OF MONTREAL
By /s/ Xxxxxx X. Xxxxxxx
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Authorized Officer
CIBC INC.
By /s/ Xxxxxxxxxx Xxxxxxx
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Authorized Officer
COLORADO NATIONAL BANK
By /s/ Xxxxx X. Xxxxxxx
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Authorized Officer
NATIONSBANK OF TEXAS, N.A.
By /s/ Xxxxx Xxxxxxxxx
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Authorized Officer
BANQUE PARIBAS
By /s/ Zali Win, Vice President
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Authorized Officer
By /s/ Xxxxxx X. Xxxx, Director
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Authorized Officer
ING (U.S.) CAPITAL CORPORATION
By /s/ Xxxxx Xxxxxxx
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Authorized Officer
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