EXHIBIT 10.4(h)
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 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) 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 (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 7(p) of the Letter of Credit 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 7(r) of the Letter of Credit Agreement, and (C)
the Credit Parties' failure to comply with Section 7(a) of the Letter of Credit
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 8(n) of the Letter of Credit Agreement resulting
from Link OLP's breaches of the Crude Oil Purchase Agreement and Receivables
Purchase Agreement as set forth in Section 1(b) hereto, (iii) Section 8(h) of
the Letter of Credit Agreement resulting from the occurrence of "Events of
Default" (under and as defined in the Xxxxxx Credit Agreement) and (iv) Section
8(c) of the Letter of Credit 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 and as defined in the
Letter of Credit Agreement, the Crude Oil Purchase Agreement or the Receivables
Purchase Agreement waived pursuant to this Section 1(a) and (b) or (y) under the
Xxxxxx Credit Agreement waived pursuant to 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) (A) pursuant
to Sections 11(b) and 11(d) of the Crude Oil Purchase Agreement resulting from
Link OLP's failure to maintain at least a number of barrels of crude oil
constituting its line fill equal to the "Adjusted Barrel Amount" (as defined in
the Crude Oil Purchase Agreement), in breach of Section 17(g) of the Crude Oil
Purchase Agreement, provided that such number of barrels of line fill does not
fall below 2,150,000, and (B) 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 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.
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.
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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, and (b) the due execution and delivery of a 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 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. 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.
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:
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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:
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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
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
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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
STANDARD CHARTERED BANK,
as LC Agent, LC Issuer, an LC Participant
and as Collateral Agent
By:
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Name:
Title:
STANDARD CHARTERED TRADE
SERVICES CORPORATION
By:
---------------------------------------
Name:
Title:
By:
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Name:
Title:
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