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April 8, 2005
via U.S. mail
Mr. Donald H. Anderson
Chief Executive Officer
TransMontaigne GP L.L.C.
1670 Broadway, Suite 3100
Denver, CO 80202
Re: TransMontaigne Partners L.P.
Form S-1 filed March 9, 2005
File No. 333-123219
Dear Mr. Anderson:
We have completed our review of the above filing, and we
have
the following comments. Where indicated, we think you should
revise
your document in response to these comments. If you disagree, we
will consider your explanation as to why our comment is
inapplicable
or a revision is unnecessary. Please be as detailed as
necessary
in your explanation. In some of our comments, we may ask you to
provide us with supplemental information so we may better
understand
your disclosure. After reviewing this information, we may or may
not raise additional comments.
Please understand that the purpose of our review process is
to
assist you in your compliance with the applicable disclosure
requirements and to enhance the overall disclosure in your filing.
We look forward to working with you in these respects. We welcome
any questions you may have about our comments or on any other
aspect
of our review. Feel free to call us at the telephone numbers
listed
at the end of this letter.
General
1. To the extent comments on one section apply to similar
disclosure
elsewhere, please make corresponding revisions to all affected
disclosure. This will minimize the need for us to issue
repetitive
comments.
2. Confirm that you considered Securities Act Release No. 33-6900
and
Securities Act Industry Guide 5 when preparing this registration
statement. Note that 33-6900 states that the requirements of
Guide 5
"should be considered, as appropriate, in the preparation of . . .
limited partnership offerings." Refer to Sections II.A.3.n9,
II.B.2,
and II.B.3 of Securities Act Release No. 33-6900 for guidance. We
may
have additional comments.
3. Prior to printing and distribution of the preliminary
prospectus,
please provide us with copies of all artwork and any graphics you
wish to include in the prospectus. Also provide accompanying
captions, if any. We may have comments after reviewing these
materials. In addition, please provide us with all sales
materials
for this offering. Pursuant to Release 33-6900, these materials
are
subject to our review and comment.
4. We note that you omit information required by Regulation S-K.
Revise your filing to provide all information other than that
specified by Rule 430A under Regulation C. See pages 7, 12 and
148,
for example. Where information may change prior to
effectiveness,
you may use brackets or another means to indicate this.
5. Tell us whether the underwriters will engage in any electronic
offer, sale or distribution of the units and describe their
procedures to us supplementally. If you become aware of any
additional members of the underwriting syndicate that may engage
in
electronic offers, sales or distributions after you respond to
this
comment, promptly supplement your response to identify those
members
and provide us with a description of their procedures.
Briefly describe any electronic distribution in the filing.
Consult
Releases 33-7233 and 33-7289 for guidance.
Also, in your discussion of your procedures, tell us how your
procedures ensure that the distribution complies with Section 5 of
the Securities Act. In particular, address:
* the communications used;
* the availability of the preliminary prospectus;
* the manner of conducting the distribution and sale, such as the
use
of indications of interest or conditional offers; and
* the funding of an account and payment of the purchase price.
Finally, tell us whether you or the underwriters have any
arrangements with a third party to host or access your preliminary
prospectus on the Internet. If so, identify the party and the
website, describe the material terms of your agreement and provide
us
with a copy of any written agreement. Provide us also with copies
of
all information concerning your company or prospectus that has
appeared on their website. Again, if you subsequently enter into
any
such arrangements, promptly supplement your response.
We may comment further.
6. Please provide us with all sales materials for this offering.
Pursuant to Release 33-6900, these materials are subject to our
review and comment.
7. Where you provide cross-references, consider including page
references to facilitate access to the referenced disclosure.
8. Please promptly file via EDGAR all omitted exhibits so that we
may
review and comment upon them. Ensure that you file as exhibits
all
documents Item 601(b) of Regulation S-K requires, such as any
material contracts with suppliers or customers upon which you are
substantially dependent. If you feel that such contracts do not
need
to be filed, provide us with your basis for not filing such
contracts.
Prospectus Cover Page
9. As appropriate, update the status of your application for
listing
of the common units on the New York Stock Exchange.
10. We suggest that you include each of the applicable risks cited
at
Section II.A.3.a of Securities Act Release No. 33-6900 in the
bullet
list of risk factors. Otherwise, explain to us why you omit any.
11. Disclose in footnote 1 the amount of the structuring fees
paid.
Are these the same as the financial advisory fees cited on page
149?
Prospectus Summary, page 1
12. Provide more than a bullet point reference to highlight
potential
conflicts of interest and the limited fiduciary duties. See page
3,
for example.
Risk Factors, page 17
13. All risk factors should be brief and concise, generally
consisting of only one or two short paragraphs at the most.
Identify
the risk, include a cross-reference to more detailed disclosure
elsewhere if appropriate, and eliminate all excess detail. Where
you
discuss multiple risks under one caption, break the discussion
into
separate factors and include appropriate captions for each.
14. Revise your Risk Factor subheadings to identify the risk to
your
business or your investors and to state the potential harm that
could
result. Refer to the risk "Our revenues" on page 22, for example.
Also make sure that your captions are precise and concise.
Cash Distribution Policy, page 40
15. In connection with the minimum quarterly distribution
disclosure,
we refer you to the Commission`s policy on projections in Item
10(b)
of Regulation S-K.
Distributions of Available Cash, page 40
16. Summarize all material restrictions or limitations on the
payment
of distributions contained in your debt instruments or other
agreements.
Business, page 67
Environmental Matters, page 86
17. Disclose whether you are in substantial compliance with each
of
the identified regulations. See "Air emissions" on page 88, for
example. Similarly, confirm that you are not a Potentially
Responsible Party with respect to any of your properties.
Management, page 93
18. As required by Section II.B.2.b of Securities Act Release No.
33-
6900, your compensation disclosure should give investors a clear
understanding of the nature and amount of compensation that may be
paid. Disclose how your general partner plans to compensate its
executive officers. Quantify the amount of the annual retainer
fees
and the compensation for attending meetings for the board of
directors of your general partner. Also disclose the maximum
amount
that may be paid to your general partner in each category of fees
or
compensation. If no such maximum exists, so state.
Executive Compensation, page 95
19. Describe the contracts or the absence thereof in necessary
detail.
Conflicts of Interest and Fiduciary Duties, page 104
Fiduciary Duties, page 108
20. Discuss why you modified the State-law fiduciary duty
standards
in your limited partnership agreement. Discuss the specific
benefits
and detriments to your common units as a result of these changes.
See Section II.B.2.d. of Securities Act Release 33-6900.
21. Why does the partnership agreement contain modified standards?
Was or is there an expectation that there will be violations of
the
standards that otherwise would apply? Provide clarifying
disclosure
here and in the risk factors section, as appropriate.
22. On page 8 and 110, you state that in order to become a limited
partner, a common unit holder must agree to be bound by the
provisions in the partnership agreement. Explain how you plan to
enforce this requirement.
23. Disclose the decisions or types of decisions that the general
partner is permitted to make in its sole discretion.
Material Tax Consequences, page 130
24. We may have additional comments on this disclosure once you
file
the omitted tax opinion as an exhibit. In that regard, please
file
all omitted exhibits with your next amendment.
Underwriting, page 148
25. We note your statement that "subject to the terms and
conditions
of the underwriting agreement," the underwriters have severally
agreed to purchase from you the common units offered in this
registration statement. Please expand your disclosure to identify
the conditions that would eliminate the underwriters` obligation
to
purchase these shares from you.
26. We note that you plan to conduct a Directed Unit Program.
Please:
(a) Clarify the scope and number of related parties that will be
able
to participate in the program, including identifying whether any
of
the parties are venture capital firms.
(b) Provide a more detailed description of the Directed Share
Program
and the mechanics of the offering.
(c) Ensure that your beneficial ownership disclosure includes any
common units that may be acquired within 60 days.
(d) Discuss whether the program requires any related party
transaction disclosure under Item 404 of Regulation S-K.
(e) Detail the timing and nature of any communications with
directed
share participants that have occurred or that you plan to make.
(f) Provide us with all materials sent and that you plan to send
to
potential directed share participants.
(g) Describe in adequate detail any account funding requirements.
We may have additional comments.
Exhibits
Legality Opinion
27. We may have additional comments on this disclosure once you
file
the omitted opinion as an exhibit. In that regard, please file
the
legality opinion with your next amendment.
Closing Comments
Please amend the above registration statement in response to
these comments. You may wish to provide us with marked copies of
the
amendments to expedite our review. Please furnish a cover letter
with your amendment(s) that keys your responses to our comments
and
provides any requested supplemental information. Detailed cover
letters greatly facilitate our review. Please file your cover
letter
on EDGAR. Please understand that we may have additional comments
after reviewing your amendment(s) and responses to our comments.
We urge all persons who are responsible for the accuracy and
adequacy of the disclosure in the filings reviewed by the staff to
be
certain that they have provided all information investors require
for
an informed decision. Since the company and its management are in
possession of all facts relating to a company`s disclosure, they
are
responsible for the accuracy and adequacy of the disclosures they
have made. You are also reminded to consider applicable
requirements
regarding distribution of the preliminary prospectus.
Notwithstanding our comments, in the event the company
requests
acceleration of the effective date of the pending registration
statement, it should furnish a letter, at the time of such
request,
acknowledging that
* should the Commission or the staff, acting pursuant to delegated
authority, declare the filing effective, it does not foreclose the
Commission from taking any action with respect to the filing;
* the action of the Commission or the staff, acting pursuant to
delegated authority, in declaring the filing effective, does not
relieve the company from its full responsibility for the adequacy
and
accuracy of the disclosure in the filing; and
* the company may not assert this action as defense in any
proceeding
initiated by the Commission or any person under the federal
securities laws of the United States.
In addition, please be advised that the Division of
Enforcement
has access to all information you provide to the staff of the
Division of Corporation Finance in connection with our review of
your
filing or in response to our comments on your filing.
We will consider a written request for acceleration of the
effective date of the registration statement as a confirmation of
the
fact that those requesting acceleration are aware of their
respective
responsibilities under the Securities Act of 1933 and the
Securities
Exchange Act of 1934 as they relate to the proposed public
offering
of the securities specified in the above registration statement.
We
will act on the request and, pursuant to delegated authority,
grant
acceleration of the effective date. We direct your attention to
Rules 460 and 461 regarding requesting acceleration of a
registration
statement. Please allow adequate time after the filing of any
amendment for further review before submitting a request for
acceleration. Please provide this request at least two business
days
in advance of the requested effective date.
Please direct any questions to Carrie Darling at (202) 942-
2972
or, in her absence, to the undersigned at (202) 942-1870. Direct
any
correspondence to us at the following ZIP Code: 20549-0405.
Sincerely,
H. Roger Schwall
Assistant Director
cc: via facsimile
Mr. M. Breen Haire
Baker Botts L.L.P.
(713) 229-2748
C. Darling
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TransMontaigne Partners, L.P.
April 8, 2005
page 7
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549-0405
DIVISION OF
CORPORATION FINANCE