EXHIBIT 10.5(b)
EXECUTION COPY
LIMITED WAIVER TO TERM LOAN AGREEMENT
This LIMITED WAIVER TO TERM LOAN AGREEMENT (the "Waiver") is dated as
of November 14, 2003, 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) Xxxxxx Brothers Inc. as
Term Lender Agent ("Term Lender Agent") and (3) the Term Lenders who are
signatories hereto ("Term Lenders"). Capitalized terms used but not otherwise
defined herein shall have the meanings ascribed thereto in the Term Loan
Agreement (as defined below).
WHEREAS, the Borrowers, each Guarantor, the Term Lender Agent
and the Term Lenders entered into that certain Term Loan Agreement, dated as of
February 11, 2003 (as amended, supplemented, restated or otherwise modified from
time to time, the "Term Loan Agreement"); and
WHEREAS, the Borrowers and Guarantors have requested, and the
Term Lender Agent and the Term Lenders are willing to grant, a waiver with
respect to the Term Loan 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 Lender Agent and the Term Lenders 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 Term Loan Agreement resulting from (A) the Borrowers
having permitted (x) Consolidated EBIDA for the Reference Period ended on
September 30, 2003 to be less than $6,551,000 and (y) Consolidated EBIDA for the
Reference Period ended on October 31, 2003 to be less than $8,680,000, in breach
of Section 10(o) of the Term Loan Agreement, (B) the Borrowers having permitted
(x) the ratio of Consolidated EBIDA to Consolidated Total Interest Expense for
the Reference Period ended on September 30, 2003 to be less than 0.62:1.00 and
(y) the ratio of Consolidated EBIDA to Consolidated Total Interest Expense for
the Reference Period ended on October 31, 2003 to be less than 0.79:1.00, in
breach of Section 10(q) of the Term Loan Agreement, and (C) the Credit Parties'
failure to comply with Section 10(a) of the Term Loan Agreement as a result of
balancing or make-up obligations owed to third parties due to downward
adjustments in estimates of crude oil inventory owned by such third parties,
(ii) Section 11(n) of the Term Loan Agreement resulting from Link OLP's breaches
of the Purchase Agreements that are concurrently herewith being waived by
Section 1 of the Standard Chartered Waiver, (iii) Section 11(h) of the Term Loan
Agreement resulting from the occurrence
of "Events of Default" (under and as defined in the Letter of Credit Agreement)
waived by Section 1 of the Standard Chartered Waiver and (iv) Section 11(c) of
the Term Loan Agreement resulting from the occurrence of any "default" or "event
of default" under any Credit Document resulting from any Event of Default or
Event of Seller Default (x) under the Term Loan Agreement waived hereby or (y)
under the Letter of Credit Agreement, the Purchase Agreements waived pursuant to
Section 1 of the Standard Chartered Waiver.
SECTION 2. REPRESENTATIONS AND WARRANTIES. In order to induce the Term
Lender Agent and the Term Lenders to enter into this Waiver, the Borrowers and
the Guarantors represent and warrant to the Term Lender Agent and the Term
Lenders (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 Standard Chartered Waiver referred to below, (a)
all of the representations and warranties contained in the Term Loan 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 Term Loan 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 Term
Lenders and the Term Lender Agent, and (b) the due execution and delivery of a
waiver to the Letter of Credit Agreement and the Purchase Agreements in the form
attached as Exhibit A hereto (the "Standard Chartered Waiver") by the Borrowers,
the Guarantors, Standard Chartered Bank and Standard Chartered Trade Services,
waiving certain "Events of Default" (under and as defined in the Letter of
Credit Agreement and the Purchase Agreements).
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 Term Loan 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 Term Loan Agreement or any other Credit Document. This Waiver shall be
construed in connection with and as part of the Term Loan Agreement and all
terms, conditions, representations, warranties, covenants and agreements set
forth in the Term Loan 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. MISCELLANEOUS. It is the understanding of the parties hereto
that Link OLP and ChevronTexaco Global Trading shall execute and deliver the
Crude Oil Joint Marketing Agreement by no later than November 30, 2003.
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SECTION 7. 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.
SECTION 8. 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: H. Xxxxx Xxxxxxx
Title: Executive Vice President
and Chief Financial Officer
LINK ENERGY CANADA LIMITED
PARTNERSHIP, as a Borrower
By: LINK ENERGY GENERAL PARTNER LLC,
its General Partner
By:
----------------------------------
Name: H. Xxxxx Xxxxxxx
Title: Executive Vice President
and Chief Financial Officer
EOTT ENERGY LIQUIDS, L.P.,
as a Borrower
By: LINK ENERGY GENERAL PARTNER LLC,
its General Partner
By:
----------------------------------
Name: H. Xxxxx Xxxxxxx
Title: Executive Vice President
and Chief Financial Officer
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LINK ENERGY PIPELINE
LIMITED PARTNERSHIP, as a Borrower
By: LINK ENERGY GENERAL PARTNER LLC,
its General Partner
By:
----------------------------------
Name: H. Xxxxx Xxxxxxx
Title: Executive Vice President
and Chief Financial Officer
LINK ENERGY LLC,
as a Guarantor
By:
--------------------------------------
Name: H. Xxxxx Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
LINK ENERGY GENERAL PARTNER LLC,
as a Guarantor
By:
--------------------------------------
Name: H. Xxxxx Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
XXXXXX BROTHERS INC.
as Term Lender Agent
By:
--------------------------------------
Name:
Title:
XXXXXX COMMERCIAL PAPER, INC.
as a Term Lender
By:
--------------------------------------
Name:
Title:
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FARALLON CAPITAL PARTNERS, L.P., a
California limited partnership, as
a Term Lender
By: FARALLON PARTNERS, L.L.C.,
as General Partner
By:
----------------------------------
Managing Member,
Farallon Partners, L.L.C.
FARALLON CAPITAL INSTITUTIONAL
PARTNERS, L.P., a California limited
partnership, as a Term Lender
By: FARALLON PARTNERS, L.L.C.,
as General Partner
By:
----------------------------------
Managing Member,
Farallon Partners, L.L.C.
FARALLON CAPITAL INSTITUTIONAL
PARTNERS II, L.P., a California limited
partnership as a Term Lender
By: FARALLON PARTNERS, L.L.C.,
as General Partner
By:
----------------------------------
Managing Member,
Farallon Partners, L.L.C.
FARALLON CAPITAL INSTITUTIONAL
PARTNERS III, L.P., a Delaware limited
partnership, as a Term Lender
By: FARALLON PARTNERS, L.L.C.,
as General Partner
By:
------------------------------
Managing Member,
Farallon Partners, L.L.C.
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TINICUM PARTNERS, L.P., a New York limited
partnership, as a Term Lender
By: FARALLON PARTNERS, L.L.C.,
as General Partner
By:
----------------------------------
Managing Member,
Farallon Partners, L.L.C.
HIGH YIELD PORTFOLIO, a series of Income
Trust, as a Term Lender
By:
----------------------------------
Name:
Title:
AXP VARIABLE PORTFOLIO-EXTRA INCOME
FUND, a series of AXP Variable Portfolio
Income Series, Inc. as a Term Lender
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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