EXHIBIT 10.4(e)
EXECUTION COPY
AMENDMENT NO. 4 TO
LETTER OF CREDIT AGREEMENT
This AMENDMENT NO. 4 TO LETTER OF CREDIT AGREEMENT (this "AMENDMENT"),
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"), LINK ENERGY
PIPELINE LIMITED PARTNERSHIP (formerly EOTT ENERGY PIPELINE LIMITED PARTNERSHIP)
("LINK PIPELINE", and together with Link Canada, EOTT Liquids, and Link OLP, 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, each a "GUARANTOR", and together with the
Borrowers, each a "CREDIT PARTY" and collectively, the "CREDIT PARTIES"), and
(2) STANDARD CHARTERED BANK, as administrative agent for the LC Participants (in
such capacity, the "LC AGENT" and in its individual capacity, "STANDARD
CHARTERED") and as LC Issuer and Collateral Agent under the Letter of Credit
Agreement (as defined below), and each of the banks and other lending
institutions which is a party hereto (as evidenced by the signature pages of
this Amendment) (each a "LC PARTICIPANT" and collectively, the "LC
PARTICIPANTS"). 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 Bank, as
LC Agent, LC Issuer, LC Participant and Collateral Agent, entered into the
Letter of Credit Agreement, dated as of February 11, 2003 (as amended by
Amendment No. 1 to Letter of Credit Agreement, dated as of September 29, 2003,
by Amendment No. 2 to Letter of Credit Agreement, dated as of November 14, 2003,
by Amendment No. 3 to Letter of Credit Agreement, dated as of November 20, 2003,
and as further amended, supplemented or otherwise modified prior to the
effective date hereof, the "LETTER OF CREDIT AGREEMENT");
WHEREAS, the Borrowers desire, and the LC Agent and the LC Participant
agree, to amend the Letter of Credit Agreement as set forth herein.
NOW, THEREFORE, in consideration of the foregoing and other
consideration the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
1. AMENDMENTS TO THE LETTER OF CREDIT AGREEMENT.
(a) The second proviso in the definition of "Borrowing Base" in
Section I of the Letter of Credit Agreement is hereby amended to read in its
entirety as follows:
provided, further, however, that on December 31, 2003, (i) the LC
Agent's right to reduce Advance Rates as set forth in the above proviso
shall be permanently terminated, (ii) the reference to "$65,000,000" in
clause (i)(L) above shall be
amended to "$25,000,000", and (iii) clauses (v) and (vi) of this
definition shall be deleted in their entireties;
(b) "Exhibit C" to the Letter of Credit Agreement is hereby
deleted and there is substituted therefor "Exhibit C" attached hereto.
2. REPRESENTATION AND WARRANTIES. Each Credit Party represents
and warrants to the LC Agent, the LC Issuer and the LC Participant as follows:
(a) The representations and warranties of such Credit Party
contained in the Letter of Credit Agreement (i) were true and correct when made
and (ii) shall be true and correct on and as of the Effective Date (as defined
below) with the same effect as if made at and as of that time (except to the
extent that such representations and warranties relate expressly to an earlier
date).
(b) The execution and delivery by such Credit Party of this
Amendment and the performance by such Credit Party of its agreements and
obligations under this Amendment are within its authority, and have been duly
authorized by all necessary action. Such execution, delivery, and performance by
such Credit Party, do not and will not (a) contravene any provision of such
Credit Party's Organizational Documents or (b) conflict with any provision of
(i) any Law, (ii) the Organizational Documents of such Credit Party, or (iii)
the terms of or result in a breach or default under any material contract,
indenture, lease, license or other agreement to which such Credit Party is
party.
(c) This Amendment and the Letter of Credit Agreement, as amended
hereby, constitute the legal, valid and binding obligations of such Credit
Party, enforceable in accordance with their respective terms, except as
enforcement may be limited by principles of equity, bankruptcy, insolvency, or
other laws affecting the enforcement of creditors' rights generally.
3. PAYMENT OF REDUCTION FEE. Notwithstanding that the Reduction
Fee was due and payable as of March 1, 2004 in accordance with Section 26)(ix)
of the Letter of Credit Agreement, the LC Agent hereby agrees to extend the date
of payment until March 15, 2004. Each of the parties hereto agrees that in the
event that the LC Agent shall not have received payment in full in cash of the
Reduction Fee on or prior to March 15, 2004, notwithstanding anything to the
contrary in the Intercreditor Agreement, the LC Agent is hereby authorized to
direct the Collateral Agent, and the Collateral Agent is hereby authorized to,
transfer funds in the amount of the unpaid portion of the Reduction Fee from the
Concentration Account to an account specified by the LC Agent until the
Reduction Fee has been paid in full.
4. CONDITIONS TO EFFECTIVENESS. This Amendment shall become
effective as of the date hereof, on the date (the "EFFECTIVE DATE") that this
Amendment shall have been duly authorized, executed and delivered to the LC
Agent by Standard Chartered Bank, as the LC Agent, the LC Issuer and the LC
Participant and each Credit Party.
5. RELEASE.
(a) In consideration of the foregoing, each of the Borrowers and
the Guarantors and each of their respective affiliates, successors, assigns,
agents, employees and attorneys, hereby release and forever discharge each of
the LC Agent, the LC Issuer, the LC Participants and
SCTSC and each of their affiliates, successors, assigns, agents, employees and
attorneys from any and all claims, liabilities or demands whatsoever arising out
of or in any way connected with the Credit Documents or any document or
instrument related thereto from the beginning of time through and including the
Effective Date.
(b) In consideration of the agreement and consent to this
Amendment given below by the Term Lender Agent and the Term Lenders, each of the
Borrowers and the Guarantors and each of their respective affiliates,
successors, assigns, agents, employees and attorneys, hereby release and forever
discharge each of the Term Lender Agent and the Term Lenders and each of their
affiliates, successors, assigns, agents, employees and attorneys from any and
all claims, liabilities or demands whatsoever arising out of or in any way
connected with the Credit Documents (as defined in the Term Loan Agreement) or
any document or instrument related thereto from the beginning of time through
and including the Effective Date.
6. MISCELLANEOUS. Except as expressly provided herein, this
Amendment shall not by implication or otherwise, alter, modify, amend or in any
way affect any of the obligations or covenants contained in the Letter of Credit
Agreement or any other Credit Document, all of which are ratified and confirmed
in all respects and shall continue in full force and effect. The parties hereto
agree that the Term Lender Agent and the Term Lenders shall have the rights of
third party beneficiaries to enforce Section 5(b) hereto.
7. COUNTERPARTS. This Amendment 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 Amendment. In making proof of this Amendment, it shall not
be necessary to produce or account for more than one such counterpart.
8. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT
REFERENCE TO CONFLICT OF LAWS).
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the undersigned have duly executed this Amendment
as of the date first set forth above.
LINK ENERGY LIMITED PARTNERSHIP, as a
Borrower and as the Borrower Representative
By: LINK ENERGY GENERAL
PARTNER LLC, its General Partner
By:_______________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and Treasurer
LINK ENERGY CANADA LIMITED PARTNERSHIP,
as a Borrower
By: LINK ENERGY GENERAL PARTNER LLC, its
General Partner
By: _______________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and Treasurer
EOTT ENERGY LIQUIDS, L.P., as a
Borrower
By: LINK ENERGY GENERAL
PARTNER LLC, its General Partner
By:_______________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and Treasurer
LINK ENERGY LLC, as a Guarantor
By: _______________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and Treasurer
LINK ENERGY GENERAL PARTNER LLC, as a
Guarantor
By: _______________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and Treasurer
STANDARD CHARTERED BANK, as LC Agent,
LC Issuer, an LC Participant and as
Collateral Agent
By: _______________________________
Name:
Title:
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The undersigned hereby consent to and accept the foregoing Amendment and, in
particular, agree to the terms of Section 3 thereof, all as of the date set out
above.
▇▇▇▇▇▇ BROTHERS INC.
Term Lender Agent
By: _____________________________________
Name:
Title:
▇▇▇▇▇▇ COMMERCIAL PAPER INC.
a Term Lender
By: _____________________________________
Name:
Title:
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, 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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FARALLON CAPITAL OFFSHORE INVESTORS
INC., as a Term Lender
By: FARALLON CAPITAL MANAGEMENT,
LLC., its Agent and Attorney-In-Fact
By: _________________________________
Managing Member,
Farallon Capital Management,
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 L.P.,
as a Term Lender
By: FORTRESS CREDIT OPPORTUNITIES I
GP LLC, as General Partner
By: _________________________________
Name:
Time:
FORTRESS CREDIT OPPORTUNITIES II L.P.,
as a Term Lender
By: FORTRESS CREDIT OPPORTUNITIES II
GP LLC, as General Partner
By: _________________________________
Name:
Time:
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EXHIBIT C
[LETTERHEAD OF BORROWER]
BORROWING BASE REPORT
as of ___/___/___
MARKET ADVANCE BORROWING
I. COLLATERAL TYPE VALUE RATE BASE
1. Eligible Cash Equivalents _________ 100% ____________
2. Eligible Accounts Receivables
a. Tier I Eligible Receivables _________ 87.5% ____________
b. Tier II Eligible Receivables _________ 82.5% ____________
3. Eligible Crude/Product/Liquid Deliveries
a. Tier I Eligible Crude/Product/Liquid Deliveries _________ 87.5% ____________
b. Tier II Eligible Crude/Product/Liquid Deliveries _________ 82.5% ____________
4. Appraised Value of Eligible Fixed Assets _________ 75% ____________
5. Inventory
a. (i) NYMEX Hedged Eligible Inventory _________ 87.5% ____________
(ii) Other Hedged Eligible Inventory _________ 77.5% ____________
b. Market Value of Unhedged Eligible Inventory _________ 77.5% ____________
6. Eligible Margin Deposits _________ 77.5% ____________
7. Undrawn Product Purchase Letters of Credit _________ 77.5% ____________
8. Does a Borrower own the MTBE Assets? [Y][N] NA NA [$25,000,000]
[0]
MINUS:
9. First Purchaser Crude Payables _________ 100% ____________
10. Other Priority Claims _________ 100% ____________
11. The aggregate net amounts payable by each Borrower under
all Hedging Contracts to which it is a party: _________ 110% ____________
12. The amount of any setoff or contra account to any
Eligible Receivable thatcould arise from an obligation of any
Borrower to sell or purchase crude oil in any future month to
the extent not otherwise reflected as a reduction of Eligible
Receivables, such amount to be determined on an early
termination or ▇▇▇▇ to market basis: _________ 100% ____________
COLLATERAL TOTAL: ____________
II. OUTSTANDINGS
1. Principal amount of loans outstanding and any accrued and
unpaid fees and expenses under ▇▇▇▇▇▇ DIP Credit Agreement: __________
2. Outstanding amounts under the Purchase Agreements,
including all accrued and unpaid fees and expenses thereunder: __________
TOTAL OUTSTANDINGS __________
III. EXCESS / DEFICIT (I-II) __________
I hereby certify that (a) the information provided herein is true and correct to
the best of my knowledge and (b) as of the date hereof, no Default or Event of
Default has occurred and is continuing.
BY: _______________________________
TITLE: (CEO, CFO or Treasurer)
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