EXHIBIT 10.5(d)
EXECUTION COPY
LIMITED WAIVER TO XXXXXX CREDIT AGREEMENT
This LIMITED WAIVER TO XXXXXX CREDIT AGREEMENT (the "Waiver") is dated
as of January 15, 2004, by and among (1) Link Energy Limited Partnership
(formerly EOTT Energy Operating Limited Partnership) ("Link OLP"), Link Energy
Canada Limited Partnership (formerly EOTT Energy Canada Limited Partnership)
("Link Canada"), EOTT Energy Liquids, L.P. ("EOTT Liquids") and Link Energy
Pipeline Limited Partnership (formerly EOTT Energy Pipeline Limited Partnership)
("Link Pipeline", and together with Link OLP, Link Canada and EOTT Liquids, the
"Borrowers"), Link Energy LLC (formerly EOTT Energy LLC) ("Link LLC"), Link
Energy General Partner LLC (formerly EOTT Energy General Partner, L.L.C.) ("Link
GP", and together with Link LLC, the "Guarantors"), (2) each of the banks or
other lending institutions that is listed as a Term Lender on the signature
pages hereof (each a "Term Lender" and, collectively, the "Term Lenders") and
(3) Xxxxxx Brothers Inc., as Term Lender Agent (the "Term Lender Agent").
Capitalized terms used but not otherwise defined herein shall have the meanings
ascribed thereto in the Xxxxxx Credit Agreement (as defined below).
WHEREAS, the Borrowers, each Guarantor, the Term Lenders and
the Term Lender Agent entered into that Term Loan Agreement, dated as of
February 11, 2003 (as amended, supplemented, restated or otherwise modified from
time to time, the "Xxxxxx Credit Agreement"); and
WHEREAS, the Borrowers and Guarantors have requested, and the
Term Lenders and the Term Lender Agent are willing to grant, a waiver with
respect to the Xxxxxx Credit Agreement, as set forth herein subject to the terms
and conditions contained herein.
NOW THEREFORE, in consideration of the premises contained in
this Waiver, and fully intending to be legally bound by this Waiver, the
Borrowers, the Guarantors, the Term Lenders and the Term Lender Agent hereby
agree as follows:
SECTION 1. LIMITED WAIVER. Effective as of the Effective Date, the Term
Lenders and the Term Lender Agent hereby waive any Event of Default pursuant to
(i) Section 11(d) of the Xxxxxx Credit Agreement resulting from (A) the
Borrowers having permitted Consolidated EBIDA for the Reference Period ended on
December 31, 2003 to be less than $12,684,000 in breach of Section 10(o) of the
Xxxxxx Credit Agreement and (B) the Borrowers having permitted the ratio of
Consolidated EBIDA to Consolidated Total Interest Expense for the Reference
Period ended on December 31, 2003 to be less than 1.11:1.00 in breach of Section
10(q) of the Xxxxxx Credit Agreement, (ii) Sections 11(g) and 11(h) of the
Xxxxxx Credit Agreement resulting from an Event of Default under and as defined
in that certain Secured Promissory Note, dated December 31, 2002 ("Enron Note"),
in the initial principal amount of $6,211,673.13, payable by Link OLP, due to
the failure of Link OLP to cause the letter of credit that was issued to secure
the Enron Note to be renewed or replaced by July 18, 2003, which is at least 10
business days prior to its expiry, as required by the terms of the Enron Note,
which failure resulted in an Event of Default under, and the automatic
acceleration of, the Enron Note, (iii) Section 11(c) or (n) of the Xxxxxx Credit
Agreement resulting from the occurrence of any Event of
Default under any Credit Document resulting from an Event of Default under the
Xxxxxx Credit Agreement waived hereby, and (iv) Section 11(c), (h) and (n) of
the Xxxxxx Credit Agreement resulting from the occurrence of a "Default" or
"Event of Default" (as defined in the Letter of Credit Agreement) under the
Letter of Credit Agreement, the Crude Oil Purchase Agreement or the Receivables
Purchase Agreement waived pursuant to Section 1 of the Loan Waiver.
SECTION 2. REPRESENTATIONS AND WARRANTIES. In order to induce the Term
Lenders and the Term Lender Agent to enter into this Waiver, the Borrowers and
the Guarantors represent and warrant to the Term Lenders and the Term Lender
Agent (which representations and warranties shall survive the execution and
delivery of this Waiver), that on and as of the Effective Date after giving
effect to this Waiver and the Loan Waiver referred to below, (a) all of the
representations and warranties contained in the Xxxxxx Credit Agreement and in
the other Credit Documents (except to the extent that such representations and
warranties relate expressly to an earlier date) are true and correct and (b) no
Default or Event of Default under the Xxxxxx Credit Agreement other than those
described in Section 1 hereof has occurred and is continuing.
SECTION 3. CONDITIONS TO EFFECTIVENESS. This Waiver shall be deemed to
be effective as of the date hereof (the "Effective Date") only upon (a) the due
execution and delivery of this Waiver by the Borrowers, the Guarantors, the
Majority Term Lenders and the Term Lender Agent, and (b) the due execution and
delivery of a waiver to the Letter of Credit Agreement, the Crude Oil Purchase
Agreement and the Receivables Purchase Agreement in the form attached as Exhibit
A hereto (the "Loan Waiver") by the Borrowers, the Guarantors, the Standard
Chartered Bank and Standard Chartered Trade Services, waiving certain "Events of
Default" (under and as defined in the Letter of Credit Agreement, the Crude Oil
Purchase Agreement and the Receivables Purchase Agreement).
SECTION 4. APPLICABLE LAW. THIS WAIVER SHALL BE CONSTRUED AND ENFORCED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICTS OF LAW.
SECTION 5. EFFECT; RATIFICATION. The waivers set forth herein are
effective solely for the purposes set forth herein and shall be limited
precisely as written, and shall not be deemed to (i) except as expressly
provided in this Waiver, be a consent to any amendment, waiver or modification
of any term or condition of the Xxxxxx Credit Agreement, or of any other Credit
Document or (ii) prejudice any right or rights that the Term Lenders or the Term
Lender Agent may now have or may have in the future under or in connection with
the Xxxxxx Credit Agreement or any other Credit Document. This Waiver shall be
construed in connection with and as part of the Xxxxxx Credit Agreement and all
terms, conditions, representations, warranties, covenants and agreements set
forth in the Xxxxxx Credit Agreement and each other Credit Document, except as
herein amended or waived, are hereby ratified and confirmed and shall remain in
full force and effect.
SECTION 6. COUNTERPARTS. This Waiver may be executed in any number of
counterparts, each such counterpart constituting an original but all together
one and the same instrument. Delivery of an executed counterpart of a signature
page by facsimile transmission shall be effective as delivery of a manually
executed signature page.
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SECTION 7. SEVERABILITY. In case any provision in or obligation under
this Waiver shall be invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction, shall
not in any way be affected or impaired thereby.
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IN WITNESS WHEREOF, each of the undersigned has caused this
Waiver to be executed and delivered as an agreement under seal as of the date
first written above.
LINK ENERGY LIMITED PARTNERSHIP
By: LINK ENERGY GENERAL PARTNER
LLC, its General Partner
By: ______________________________
Name: Xxxxx X. Xxxxxx
Title: Vice President
and Treasurer
LINK ENERGY CANADA LIMITED
PARTNERSHIP, as a Borrower
By: LINK ENERGY GENERAL PARTNER
LLC, its General Partner
By: ______________________________
Name: Xxxxx X. Xxxxxx
Title: Vice President and
Treasurer
EOTT ENERGY LIQUIDS, L.P.,
as a Borrower
By: LINK ENERGY GENERAL PARTNER
LLC, its General Partner
By: ______________________________
Name: Xxxxx X. Xxxxxx
Title: Vice President and
Treasurer
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LINK ENERGY PIPELINE LIMITED
PARTNERSHIP, as a Borrower
By: LINK ENERGY GENERAL PARTNER
LLC, its General Partner
By: ______________________________
Name: Xxxxx X. Xxxxxx
Title: Vice President and
Treasurer
LINK ENERGY LLC, as a Guarantor
By: _________________________________
Name: Xxxxx X. Xxxxxx
Title: Vice President and
Treasurer
LINK ENERGY GENERAL PARTNER LLC,
as a Guarantor
By: _________________________________
Name: Xxxxx X. Xxxxxx
Title: Vice President and
Treasurer
XXXXXX BROTHERS INC. Term Lender
Agent
By: _______________________________
Name:
Title:
XXXXXX COMMERCIAL PAPER, INC.
a Term Lender
By: _______________________________
Name:
Title:
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FARALLON CAPITAL PARTNERS, L.P., a
California limited partnership, as a
Term Lender
FARALLON CAPITAL INSTITUTIONAL
PARTNERS, L.P., a California limited
partnership, as a Term Lender
FARALLON CAPITAL INSTITUTIONAL
PARTNERS II, L.P., a California
limited partnership as a Term Lender
FARALLON CAPITAL INSTITUTIONAL
PARTNERS III, L.P., a Delaware
limited partnership, as a Term
Lender
TINICUM PARTNERS, L.P., a New York
limited partnership, a Term Lender
By: FARALLON PARTNERS, L.L.C.,
as General Partner
By: _________________________________
Managing Member,
Farallon Partners, L.L.C.
FARALLON CAPITAL OFFSHORE INVESTORS
INC.
By: FARALLON CAPITAL MANAGEMENT,
L.L.C., its Agent and Attorney-
In-Fact
By: _________________________________
Managing Member,
Farallon Capital Management,
L.L.C.
HIGH YIELD PORTFOLIO, a series of
Income Trust
By: _____________________________________
Name:
Title:
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AXP VARIABLE PORTFOLIO-EXTRA INCOME
FUND, a series of AXP Variable
Portfolio Income Series, Inc.
By: ______________________________________
Name:
Title:
FORTRESS CREDIT OPPORTUNITIES I LP,
as a Term Lender
By: FORTRESS CREDIT OPPORTUNITIES I
GP LLC, as General Partner
By: __________________________________
Name:
Title:
FORTRESS CREDIT OPPORTUNITIES II LP,
as a Term Lender
By: FORTRESS CREDIT OPPORTUNITIES II
GP LLC, as General Partner
By: __________________________________
Name:
Title:
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