EXHIBIT 10.4(i)
EXECUTION COPY
LIMITED WAIVER TO LETTER OF CREDIT AGREEMENT, SECOND AMENDED AND RESTATED
COMMODITIES REPURCHASE AGREEMENT AND SECOND AMENDED AND RESTATED RECEIVABLES
PURCHASE AGREEMENT
This LIMITED WAIVER TO LETTER OF CREDIT AGREEMENT, SECOND AMENDED AND
RESTATED COMMODITIES REPURCHASE AGREEMENT AND SECOND AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT (the "Waiver") is dated as of March 9, 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) Standard Chartered Bank ("Standard Chartered"),
and (3) Standard Chartered Trade Services Corporation ("SCTSC"). Capitalized
terms used but not otherwise defined herein shall have the meanings ascribed
thereto in the Letter of Credit Agreement (as defined below).
WHEREAS, the Borrowers, each Guarantor and Standard Chartered
as administrative agent for the LC Participants (in such capacity, the "LC
Agent") and as LC Participant, LC Issuer and Collateral Agent, entered into that
Letter of Credit Agreement, dated as of February 11, 2003 (as amended,
supplemented, restated or otherwise modified from time to time, the "Letter of
Credit Agreement");
WHEREAS, Link OLP, SCTSC and Standard Chartered have entered
into that Second Amended and Restated Commodities Repurchase Agreement, dated as
of February 11, 2003 (as amended, supplemented, restated or otherwise modified
from time to time, the "Crude Oil Purchase Agreement");
WHEREAS, Link OLP, SCTSC and Standard Chartered have entered
into that Second Amended and Restated Receivables Purchase Agreement, dated as
of February 11, 2003 (as amended, supplemented, restated or otherwise modified
from time to time, the "Receivables Purchase Agreement"); and
WHEREAS, the Borrowers and Guarantors have requested, and
Standard Chartered and SCTSC are willing to grant, a waiver with respect to the
Letter of Credit Agreement, Crude Oil Purchase Agreement and Receivables
Purchase 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, Standard Chartered and SCTSC hereby agree as follows:
SECTION 1. LIMITED WAIVER. (a) Effective as of the Effective Date,
Standard Chartered hereby waives any Event of Default pursuant to (i) Section
8(d) of the Letter of 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 7(p) of the Letter of 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 7(r) of the Letter of Credit Agreement, (ii)
Section 8(b) and (d) of the Letter of Credit Agreement resulting from the
Borrowers permitting the aggregate LC obligations to exceed the Borrowing Base
and the failure of the Borrowers to pay to the Collateral Agent an amount at
least equal to such excess within the permitted time period in breach of Section
2(h) of the Letter of Credit Agreement, (iii) Section 8(g) of the Letter of
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 in favor of Enron
resulting from 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 has been remedied at the date hereof, (iv)
Section 8(c) and (n) of the Letter of Credit Agreement resulting from the
occurrence of any "default" or "event of default" under any Credit Document
resulting from an Event of Default under the Letter of Credit Agreement waived
hereby or an "event of default" under the Xxxxxx Credit Agreement waived
pursuant to the Term Loan Waiver, and (v) Section 8(h) of the Letter of Credit
Agreement resulting from the occurrence of a "Default" or "Event of Default"
under and as defined in the Xxxxxx Credit Agreement waived pursuant to Section 1
of the Term Loan Waiver.
(b) Effective as of the Effective Date, SCTSC hereby waives (i) the
"Event of Default" (as defined in the Crude Oil Purchase Agreement) pursuant to
Section 11(d) of the Crude Oil Purchase Agreement resulting from the occurrences
of the Events of Default under and as defined in the Letter of Credit Agreement
waived by Standard Chartered pursuant to Section 1(a) hereof, and (ii) the
"Event of Seller Default" (as defined in the Receivables Purchase Agreement)
pursuant to Section 5(C) of the Receivables Purchase Agreement resulting from
the occurrence of the Events of Default under and as defined in the Letter of
Credit Agreement waived by Standard Chartered pursuant to Section 1(a) hereof.
SECTION 2. REPRESENTATIONS AND WARRANTIES. In order to induce Standard
Chartered and SCTSC to enter into this Waiver, the Borrowers and the Guarantors
represent and warrant to Standard Chartered and SCTSC (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 Term Loan
Waiver referred to below, (a) all of the representations and warranties
contained in the Letter of 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," "Event of
Default" or "Event of Seller Default" under the Letter of Credit Agreement, the
Crude Oil Purchase Agreement or the Receivables Purchase 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, Standard
Chartered, and SCTSC, (b) receipt by Standard Chartered of a waiver fee of
$100,000, and (c) the due execution and delivery of a
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waiver to the Xxxxxx Credit Agreement in substantially the form attached hereto
as Exhibit A (the "Term Loan Waiver") by the Borrowers, the Guarantors, the
Majority Term Lenders and the Term Lender Agent, waiving certain "Events of
Default" (under and as defined in the Xxxxxx Credit 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 Letter of Credit Agreement, the Crude Oil
Purchase Agreement, the Receivables Purchase Agreement or of any other Credit
Document or (ii) prejudice any right or rights that Standard Chartered or SCTSC
may now have or may have in the future under or in connection with the Letter of
Credit Agreement, the Crude Oil Purchase Agreement, the Receivables Purchase
Agreement or any other Credit Document. This Waiver shall be construed in
connection with and as part of the Letter of Credit Agreement, the Crude Oil
Purchase Agreement and the Receivables Purchase Agreement and all terms,
conditions, representations, warranties, covenants and agreements set forth in
the Letter of Credit Agreement, the Crude Oil Purchase Agreement, the
Receivables Purchase 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.
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
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
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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
STANDARD CHARTERED BANK,
as LC Agent, LC Issuer, an LC
Participant and as Collateral Agent
By:_______________________________
Name:
Title:
STANDARD CHARTERED TRADE
SERVICES CORPORATION
By:_______________________________
Name:
Title:
By:_______________________________
Name:
Title:
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