Exhibit 10.2
LETTER AMENDMENT NO. 4
to
Amended and Restated Master Shelf Agreement
As of July 16, 2001
The Prudential Insurance Company
of America
U.S. Private Placement Fund
c/o Prudential Capital Group
0000 Xxxx Xxxxxx, Xxxxx 0000X
Xxxxxx, Xxxxx 00000
Ladies and Gentlemen:
We refer to the Amended and Restated Master Shelf Agreement dated as
of February 14, 2000, as amended by Letter Amendment No. 1 thereto dated as of
July 31, 2000, as further amended by Letter Amendment No. 2 thereto dated as of
March 30, 2001 and as further amended by Letter Amendment No. 3 thereto dated as
of June 29, 2001 (as so amended, the "Agreement"), among the undersigned,
TransMontaigne Inc. (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.
The Company has advised the Purchasers that it desires certain
amendments to the Agreement in order to permit the disposition of specified
assets, with no application of the proceeds thereof to the prepayment of the
Notes required. The Purchasers have agreed to amend the relevant provisions of
the Agreement to permit the foregoing.
1. Amendments to the Agreement. Subject to the accuracy of the representations
and warranties set forth in paragraph 3 hereof and satisfaction of the
conditions set forth in paragraph 4(c) hereof, the Agreement is, effective
as of the date first above written, hereby amended as follows:
(a) Paragraph 4A(3). Certain Net Asset Sale Proceeds. Paragraph 4A(3) of
the Agreement is deleted in its entirety.
(b) Paragraph 6C(5). Merger, Consolidation and Disposition of Assets.
Paragraph 6C(5)(v) of the Agreement is amended to read in its entirety as
follows:
(v) During the period commencing April 1, 2001 and ending December
31, 2001, the Company or any of its Subsidiaries may sell, exchange or
otherwise dispose of the following assets (in addition to those assets
otherwise permitted to be disposed of by this paragraph 6C(5)): (a) each of
the Little Rock Complex North and Little Rock Complex South, each located
in North Little Rock, Arkansas, and with an aggregate book value as of
December 31, 2000 of $6,362,566, (b) each of the Peoria Terminal,
Indianapolis Terminal, East Chicago Terminal, Hartsdale Terminal, South
Bend Terminal, Xxxxx Terminal and Toledo Terminal, located in Peoria,
Illinois, North Indianapolis, Indiana, East Chicago, Indiana, Schererville,
Indiana, South Bend, Indiana, Xxxxx, Ohio and Toledo, Ohio, respectively,
and the Norco Pipeline System, collectively with an aggregate book value as
of December 31, 2000 of $50,621,190, (c) 7,666 shares of outstanding common
stock of West Shore Pipe Line Company with an aggregate book value as of
December 31, 2000 of $35,960,769, and any shares of capital stock
distributed with respect to, in exchange for, or in substitution for such
shares, (d) each of the Border Terminal, Brownsville Terminal, Southwest
Terminal and Tejano Terminal, each located in Brownsville, Texas, and with
an aggregate book value as of December 31, 2000 of $12,127,481, and (e)
assets with an aggregate book value as of December 31, 2000 of no more than
$5,000,000; provided, that any sales of assets during such period which are
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described both in clause (b) or (c) of paragraph 6C(5)(i) and in this
paragraph 6C(5)(v) shall be allocated first to this paragraph 6C(5)(v) to
the extent permitted by this paragraph 6C(5)(v) and then to paragraph
6C(5)(i) (to the extent permitted by paragraph 6C(5)(i)).
2. Consent of Guarantors. Each Guarantor under the Guarantee contained in
paragraph 11 of the Agreement hereby consents to this letter amendment and
hereby confirms and agrees that such Guarantee 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, the letter
amendment, all references in such Guarantee to the Agreement, "thereunder",
"thereof", or words of like import referring to the Agreement shall mean the
Agreement as amended by this letter amendment.
3. Representations and Warranties. In order to induce you to enter into this
letter amendment, each of the Obligors hereby represents and warrants that: (a)
each of the representations and warranties contained in paragraph 8 of the
Agreement is true and correct on and as of the date hereof, except to the extent
of changes caused by the transactions herein contemplated; (b) the counterpart
of the amendment to the Bank Agreement furnished by the Company to the
Purchasers and reflecting amendments to the Bank Agreement that are in substance
parallel to those in this letter amendment is true and complete; and (c) there
has been no payment of any amount and no increase in, or additional types of,
the rate of interest, breakage costs or any other fees, costs, expenses or other
amounts payable with respect to the
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Bank Agreement in consideration of the amendment to the Bank Agreement described
in the foregoing clause (b).
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, each reference in
the Notes to "the Agreement", "thereunder", "thereof", or words of like import
referring to the Agreement, and each reference in the Security Documents to "the
Shelf 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. This letter amendment shall be a Loan Document.
(b) Counterparts. This letter amendment may be executed in any number of
counterparts (including those transmitted by facsimile) 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. Delivery of this letter amendment may be made by facsimile
transmission of a duly executed counterpart copy hereof.
(c) Effectiveness. This letter amendment shall become effective as of the
date first above written when and if each of the conditions set forth in this
subparagraph (c) shall have been satisfied.
(I) Executed Counterparts. Counterparts of this letter amendment
shall have been executed by the Company, each Guarantor and you.
(II) No Default or Event of Default. After giving effect to the
amendments effected hereby, no Default or Event of Default under the
Agreement shall have occurred and be continuing.
(III) Bank Agreement Modification. The Bank Agreement shall have been
amended to incorporate modifications substantially similar to those
contained in this letter amendment, all upon terms satisfactory to the
Purchasers (and by their execution of this letter amendment the Purchasers
agree and acknowledge that the modifications embodied by the final form of
that certain Amendment No. 4 of Fourth Amended and
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Restated Credit Agreement of even date herewith furnished to the Purchasers
by the Company are satisfactory to them).
(IV) Bank Consent. The Required Lenders under, and as defined in,
the Bank Agreement shall have consented to the modifications to the
Agreement effected by this letter amendment.
(d) Expenses. The Company confirms its agreement, pursuant to paragraph
12B of the Agreement, to pay promptly all expenses of the Purchasers related to
this letter amendment and all matters contemplated by this letter amendment,
including without limitation all fees and expenses of the Purchasers' special
counsel and any local or other counsel retained by the Collateral Agent.
(e) Governing Law. THIS LETTER AMENDMENT SHALL BE CONSTRUED AND ENFORCED
IN ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAW
OF THE STATE OF NEW YORK.
[Remainder of page intentionally left blank; signature pages follow]
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If you agree to the terms and provisions hereof, please evidence your
agreement by executing and returning a counterpart of this letter amendment
to TransMontaigne Inc., 000 00xx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000,
Attention of Xxxxxx X. Xxxxx, Xx.
Very truly yours,
TRANSMONTAIGNE INC.
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Xxxxxx X. Xxxxxxxx, President
Guarantors
TRANSMONTAIGNE PIPELINE INC.
TRANSMONTAIGNE TERMINALING INC.
TRANSMONTAIGNE PRODUCT SERVICES
INC.
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Xxxxxx X. Xxxxxxxx, President
Chief Executive Officer of each of the
foregoing corporations
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Agreed as of the date first above written:
THE PRUDENTIAL INSURANCE COMPANY
OF AMERICA
By: /s/ Xxx X. Xxxx
-------------------------------
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/ Xxx X. Xxxx
-------------------------------
Vice President
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