EXHIBIT 10.1
Standard Chartered Bank, as Administrative Agent,
L/C Issuer and Lender under and as defined in
the Reimbursement Agreement (as defined below)
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx XX 00000
Dated as of August 13, 2002
EOTT Energy Operating Limited Partnership
0000 X. Xxx Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
RE: LIMITED FORBEARANCE
Ladies and Gentlemen:
Reference is hereby made to the Second Amended and Restated
Reimbursement, Loan and Security Agreement, dated as of April 23, 2002 (as
heretofore amended, supplemented or otherwise modified and in effect on the date
hereof, the "REIMBURSEMENT AGREEMENT"), among EOTT ENERGY OPERATING LIMITED
PARTNERSHIP, a Delaware limited partnership ("EOTT OLP"), EOTT ENERGY CANADA
LIMITED PARTNERSHIP, a Delaware limited partnership ("EOTT CANADA"), EOTT ENERGY
LIQUIDS, L.P., a Delaware limited partnership ("EOTT LIQUIDS"), EOTT ENERGY
PIPELINE LIMITED PARTNERSHIP, a Delaware limited partnership ("EOTT PIPELINE"
and together with EOTT Canada and EOTT Liquids, collectively, the "ADDITIONAL
OBLIGORS" and the Additional Obligors together with EOTT OLP on a joint and
several basis, "BORROWER"), EOTT ENERGY PARTNERS, L.P., a Delaware limited
partnership ("EOTT MLP"), EOTT ENERGY GENERAL PARTNER, L.L.C. a Delaware limited
liability company ("EOTT GP" and together with EOTT MLP, collectively, the
"GUARANTORS" and together with EOTT OLP and each of the Additional Obligors,
collectively, the "CREDIT PARTIES"), EOTT ENERGY CORP., a Delaware corporation
("EOTT CORP." and together with the Credit Parties, the "ORIGINAL CREDIT
PARTIES"), each of the banks or other lending institutions from time to time
party thereto (the "LENDERS") and STANDARD CHARTERED BANK, a banking institution
organized and existing under the laws of England and Wales ("STANDARD
CHARTERED"), as administrative agent for the Lenders (the "ADMINISTRATIVE
AGENT"), and as L/C Issuer. Capitalized terms which are used in this Agreement
(this "AGREEMENT")
without definition and which are defined in the Reimbursement Agreement shall
have the same meanings herein as in the Reimbursement Agreement.
The Credit Parties have informed the Administrative Agent and the
Lenders that the Credit Parties have failed to comply with Section 9(o)
("Minimum Consolidated Net Income (Loss), Minimum Consolidated EBITDA and
Minimum Consolidated Net Worth") of the Reimbursement Agreement for the Fiscal
Quarter ended June 30, 2002, such failure to comply constituting an Event of
Default under Section 10(d) of the Reimbursement Agreement (such Event of
Default being herein referred to as the "SPECIFIED DEFAULT");
The Credit Parties have requested that the Lenders and the
Administrative Agent agree to forbear from exercising their rights and remedies
as a result of the occurrence of the Specified Default. The Lenders and the
Administrative Agent have advised the Credit Parties that they are prepared to
agree to such forbearance for a limited period on the terms, subject to the
conditions and in reliance on the representations contained herein.
SECTION 1. LIMITED FORBEARANCE. In consideration of and reliance upon
the representations of the Credit Parties contained herein, the Lenders hereby
agree to forbear from exercising their contractual, legal and equitable rights
and remedies arising as a result of the occurrence of the Specified Default for
(but solely for) the period commencing on the Effective Date and ending 5:00
p.m. (New York time) on September 16, 2002 (the "FORBEARANCE PERIOD"). Such
agreement to forbear shall automatically, and without action, notice, demand or
any other occurrence, expire on and as of the end of the Forbearance Period. The
Administrative Agent, the L/C Issuer and the Lenders hereby expressly reserve
their right, at any time after the Forbearance Period, to proceed to enforce any
or all of their respective rights and remedies under or in respect of the Credit
Documents and applicable law which are available as a result of the occurrence
of the Specified Default. The agreement to forbear set forth in this Section 1
shall apply only to the Specified Default. No forbearance with respect to any
other Default or Event of Default, whether presently existing or hereafter
arising, is agreed to hereby.
SECTION 2. REPRESENTATIONS AND WARRANTIES. Each of the Credit Parties
represents and warrants to the Administrative Agent and the Lenders as follows:
(a) The representations and warranties of the Credit Parties contained
in the Credit Documents (i) were true when made, and (ii) shall be true on and
as of the date hereof, except to the extent that such representation or warranty
was made as of a specific date.
(b) This Agreement, the Reimbursement Agreement and the other Credit
Documents to which the Credit Parties are a party constitute legal, valid and
binding obligations of such Credit Party, enforceable in accordance with their
respective terms except as such enforcement may be limited by bankruptcy,
insolvency or similar Laws of general application relating to the enforcement of
creditors' rights.
(c) No Default or Event of Default exists on the date hereof after
giving effect to the agreement to forbear in respect of the Specified Default
described in Section 1 above.
SECTION 3. CONDITIONS TO EFFECTIVENESS. This Agreement shall become
effective upon receipt by the Administrative Agent of duly executed counterparts
of this Agreement, which, when taken together, bear the authorized signatures of
each of the parties hereto.
SECTION 4. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT
REFERENCE TO CONFLICT OF LAWS).
SECTION 5. EXPENSES. The Credit Parties shall pay all reasonable
out-of-pocket expenses (including, without limitation, reasonable legal fees and
expenses) incurred by the Administrative Agent in connection with the
preparation, negotiation, execution, delivery and enforcement of this Agreement.
SECTION 6. MISCELLANEOUS. From and after the date hereof, this
Agreement shall be deemed a Credit Document for all purposes of the
Reimbursement Agreement and the other Credit Documents and each reference to
Credit Documents in the Reimbursement Agreement and the other Credit Documents
shall be deemed to include this Agreement. Except as expressly provided herein,
this Agreement shall not, by implication or otherwise, limit, impair, constitute
an agreement to forbear or otherwise affect any rights or remedies of the
Administrative Agent or the Lenders in respect of the Reimbursement Agreement or
the other Credit Documents, nor alter, modify, amend or in any way affect any of
the obligations or covenants contained in the Reimbursement Agreement or any of
the other Credit Documents, all of which are ratified and confirmed in all
respects and shall continue in full force and effect. This Agreement may be
executed in any number of counterparts, but all of such counterparts shall
together constitute but one and the same agreement. Delivery of an executed
counterpart of a signature page by facsimile transmission shall be effective as
delivery of a manually executed counterpart of this Agreement. In making proof
of this Agreement, it shall not be necessary to produce or account for more than
one such counterpart.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their duly authorized officer, all as of the date first above
written.
EOTT ENERGY OPERATING LIMITED PARTNERSHIP,
as a Borrower Party and as the Borrower
Representative
By: EOTT ENERGY GENERAL PARTNER,
L.L.C., its General Partner
By: /s/ Xxxxxxxx Xxxxxxx, Xx.
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Name: Xxxxxxxx Xxxxxxx, Xx.
Title: Senior VP and CFO
EOTT ENERGY CANADA LIMITED PARTNERSHIP,
as a Borrower Party
By: EOTT ENERGY GENERAL PARTNER, L.L.C.,
its General Partner
By: /s/ Xxxxxxxx Xxxxxxx, Xx.
------------------------------------
Name: Xxxxxxxx Xxxxxxx, Xx.
Title: Senior VP and CFO
EOTT ENERGY LIQUIDS, L.P.,
as a Borrower Party
By: EOTT ENERGY GENERAL PARTNER, L.L.C.,
its General Partner
By: /s/ Xxxxxxxx Xxxxxxx, Xx.
------------------------------------
Name: Xxxxxxxx Xxxxxxx, Xx.
Title: Senior VP and CFO
EOTT ENERGY PIPELINE LIMITED PARTNERSHIP,
as a Borrower Party
By: EOTT ENERGY GENERAL PARTNER, L.L.C.,
its General Partner
By: /s/ Xxxxxxxx Xxxxxxx, Xx.
------------------------------------
Name: Xxxxxxxx Xxxxxxx, Xx.
Title: Senior VP and CFO
EOTT ENERGY PARTNERS, L.P.,
as a Guarantor
By: EOTT ENERGY CORP., its General Partner
By: /s/ Xxxxxxxx Xxxxxxx, Xx.
------------------------------------
Name: Xxxxxxxx Xxxxxxx, Xx.
Title: Senior VP and CFO
EOTT ENERGY GENERAL PARTNER, L.L.C.,
as a Guarantor
By: /s/ Xxxxxxxx Xxxxxxx, Xx.
------------------------------------
Name: Xxxxxxxx Xxxxxxx, Xx.
Title: Senior VP and CFO
STANDARD CHARTERED BANK,
a Administrative Agent, L/C Issuer and
Lender
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: Head Commodity Finance
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Senior Vice President
