Exhibit 10.17
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. 3 OF
FOURTH AMENDED AND RESTATED CREDIT AGREEMENT
As of June 29, 2001
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
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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
amended by Amendment No. 1 thereto dated as of July 31, 2000 and as further
amended by Amendment No. 2 thereto dated as of March 30, 2001 (as so amended,
the "Credit Agreement"), among the Company, the Guarantors named therein, Fleet
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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 desires certain
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amendments to the Credit Agreement in order to prepay principal with respect to
certain outstanding indebtedness under the Master Shelf Agreement along with
accrued interest and applicable make-whole amounts. The Required Lenders have
agreed to amend the relevant provisions of the Credit Agreement.
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 6.10 of the Credit Agreement is amended by adding thereto a
new Section 6.10.4 reading in its entirety as follows:
6.10.4. So long as immediately before and after giving effect thereto
no Default exists, the Company may make a prepayment of principal with
respect to the Indebtedness under the Master Shelf Agreement in an amount
not to exceed $25,000,000 (inclusive of any principal with respect to the
Indebtedness under the Master Shelf Agreement prepaid pursuant to Section
4.2.3 on or before July 6, 2001).
3.2. Section 6.10 of the Credit Agreement is further amended by amending
the last paragraph thereof to read in its entirety as follows:
Notwithstanding Section 6.10.3, cash Distributions are not permitted
under Section 6.10.3 unless, after giving effect to any such Distribution,
the ratio (expressed as a percentage) of the Consolidated EBITDA of the
Company and its Subsidiaries to Consolidated Fixed Charges of the Company
and its Subsidiaries, in each case for the fiscal quarter in which such
Distribution is proposed to occur, equals or exceeds 125%, as demonstrated
in a certificate of the Company signed by a Financial Officer delivered to
the Lenders prior to any such Distribution.
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 that (a) no Default or Event of Default under the Credit Agreement
shall have occurred and be continuing, (b) 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 upon terms satisfactory to
the Agent, and (c) the Company shall have paid in full the outstanding Term Loan
and Prudential and each other holder of Indebtedness issued under the Master
Shelf Agreement shall have consented thereto. By their consent to this
Amendment, the Required Lenders also consent to any amendment of the Master
Shelf Agreement required to effect the foregoing.
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.
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.
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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
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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, Managing Director
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