EXHIBIT 4.4
WAIVER AND AMENDMENT
THIS WAIVER AND AMENDMENT AGREEMENT is entered into February 11, 1998
("Waiver") among Market Hub Partners, L.P. (the "Company") and the
registered holders of the Company's 10.09% Senior Notes due December 31, 2001
signatory hereto (the "Holders"). The Senior Notes were issued pursuant to a
Note Purchase Agreement dated as of April 11, 1997 (the "Agreement") among the
Company and Xxxx Xxxxxxx Mutual Life Insurance Company, Signature IA (Cayman),
Ltd., Connecticut General Life Insurance Company (on its own behalf and on
behalf of one or more separate accounts), Life Insurance Company of North
America, The Travelers Insurance Company, Massachusetts Mutual Life Insurance
Company, CM Life Insurance Company, and MassMutual Corporate Value Partners
Limited.
Capitalized terms not defined in this Waiver shall have the meanings given
therefor in the Agreement.
The Company has advised the Holders that it desires to prepay the
Subordinated Notes and that it desires to amend the covenant in the Agreement
limiting incurrence of Debt. The Holders are willing to permit such prepayment
and for such purpose to waive compliance with the covenant limiting Restricted
Payments and to amend the covenant in the Agreement limiting incurrence of Debt
on the terms and conditions of this Waiver.
NOW THEREFORE, for good and valuable consideration, the sufficiency of
which is hereby acknowledged, the parties agree:
1. RESTRICTED PAYMENT WAIVER. At the date of this Waiver, the Company
represents and warrants that, in compliance with the provisions of paragraph
10.2.1 of the Agreement, it could make a Restricted Payment of $7,000,000 (a
"Complying Payment"). The Holders waive compliance by the Company with its
covenant in paragraph 10.2.1 of the Note Agreement to the extent required for
the Company to prepay the Subordinated Notes, in an amount which when aggregated
with the Complying Payment, does not exceed $17,800,000, and thereafter,
paragraph 10.2.1 of the Agreement is amended to read as follows: "No Member
shall make, declare or incur any liability to make any Restricted Payment."
2. LIMITATION ON CONSOLIDATED TOTAL DEBT. Clause (ii) of paragraph 10.1.3
of the Agreement is amended to read as follows: "Immediately after the
incurrence of such Debt, Consolidated Total Debt does not exceed 80% of
Consolidated Total Capitalization."
3. COMPANY GUARANTEES. Paragraph 10.6 of the Agreement is amended to read
as follows: "The Company will not make or enter into any Guarantees of
Construction Debt", and Schedule B to the Agreement is amended by the deletion
of the term "Permitted Construction Debt Guaranty".
4. INTEREST RATE ON NOTES. From and after the date of this Waiver as
written above, the principal amount from time to time unpaid and not yet due
under each of the Notes shall accrue interest (computed on the basis of a
360-day year of twelve 30-day months) at the rate of 10.34% per annum, due and
payable semi-annually in arrears on each June 30 and December 31 of each
calendar year and any principal of any Note which is not paid when due shall
bear interest, payable on demand, at the rate of 12.34% per annum, whether
overdue by acceleration or otherwise. The Company, at its sole cost and expense,
shall upon request of any Purchaser and against surrender by such Purchaser of
its existing Note(s), issue and deliver to such Purchaser a replacement Note or
Notes in an aggregate principal amount equal to the unpaid principal amount of
the surrendered Note(s) in the form of Exhibit A attached hereto, dated the date
to which interest shall have then been paid on the surrendered Note(s). The
failure of a Purchaser to make such request or surrender any Note for
replacement in accordance with this Section 4, shall not, however, affect the
Company's obligation to pay interest on such Note in accordance with the terms
hereof. In addition, Exhibit A attached shall be substituted for the Exhibit A
to the Agreement and any Note issued upon any transfer or exchange of a Note
pursuant to paragraph 13.2 of the Agreement or in replacement of a Note pursuant
to paragraph 13.3 of the Agreement shall be issued solely in the form of Exhibit
A, regardless of whether or not the Note being transferred, exchanged or
replaced shall have previously been reissued in the form of Exhibit A.
5. PARAGRAPH 10.5 OF THE AGREEMENT. From and after the date of this
Waiver subparagraph (i) of paragraph 10.5 of the Agreement shall be amended such
that the words "business entity" shall be substituted for the word
"corporation" each time it appears in such subparagraph (i).
6. EFFECTIVENESS OF THIS WAIVER. Sections 1, 2, 3 and 4 of this Waiver
shall be effective solely if Market Hub Partners Storage, L.P. and Market Hub
Partners Finance, Inc. shall have sold at least $110,000,000 (but not more than
$115,000,000) in aggregate principal amount of debt securities (such securities,
the "Rule 144A Securities") having a rating at the time of issuance of not
less than BB- by Standard and Poor's Rating Group ("S&P") and Ba3 by Xxxxx'x
Investors Service ("Moodys") (and no other rating agency shall have rated such
Rule 144A Securities less favorably) in a private offering effected under Rule
144A under the Securities Act on or before March 31, 1998; PROVIDED, if as of
the date of issuance, the Rule 144A Securities shall have been rated less than
BB- by S&P or Ba3 by Moodys, Sections 1, 2, 3 and 4 of this Waiver shall
nonetheless be effective if at the time of issuance of the Rule 144A Securities
the Notes shall have been rated at least B- by S&P or B3 by Moodys (and no
rating agency shall have rated the Notes less favorably). Nothing in this
Section 6 shall constitute a waiver by the Purchasers of compliance by the
Company with any covenant set forth in the Agreement (as the same is amended
pursuant to this Waiver) in connection with the issuance of the Rule 144A
Securities.
7. NO OTHER AMENDMENTS OR WAIVERS. Except as specifically stated in this
Waiver, this Waiver shall not constitute a waiver of or amendment to any term or
condition of the Note Agreement or a waiver of any Event of Default or Default
now existing or hereafter arising under the Note Agreement and in all respects
the Note Agreement shall remain in full force and effect and unmodified.
8. GOVERNING LAW. THIS AGREEMENT IS TO BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAWS OF
THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO ANY LAWS OR RULES RELATING TO
CONFLICTS OF LAWS THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY
JURISDICTION OTHER THAN THE STATE OF NEW YORK).
9. COUNTERPARTS. This Agreement may be executed simultaneously in two or
more counterparts, each of which shall be deemed an original, and it shall not
be necessary in making proof of this Agreement to produce or account for more
than one such counterpart.
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[Signature Page to Waiver
and Amendment Agreement]
EXECUTED under seal as of the date first above written.
MARKET HUB PARTNERS, L.P.
By: Market Hub Partners, Inc., the
general partner
By: /s/ Xxxxxxx X. Xxxxx
Vice President and Chief
Financial Officer
XXXX XXXXXXX MUTUAL LIFE
INSURANCE COMPANY
By: /s/ Xxxxxx X. Xxxxx
Investment officer
XXXXXXX & CO. (as nominee of
Signature IA (Cayman), Ltd.,
beneficial owner of Senior
Note No. 3)
By: /s/ Xxxxxx Xxxxxx
CIG & CO. (as nominee of Connecticut
General Life Insurance Company,
beneficial owner of Senior Notes
Nos. 4, 5 and 8)
By: /s/ Xxxxx X. Xxxxxxxxx
Xxxxx X. Xxxxxxxxx
Partner
CIG & CO. (at the direction of The
Lincoln National Life Insurance
Company, beneficial owner of Senior
Note No. 6)
By: /s/ Xxxxx X. Xxxxxxxxx
Xxxxx X. Xxxxxxxxx
Partner
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[Signature of Page to Waiver
and Amendment Agreement]
CIG & CO. (at the direction of Lincoln
Life and Annuity Company of New York,
beneficial owner of Senior Note No. 7)
By: /s/XXXXX X. XXXXXXXXX
Xxxxx X. Xxxxxxxxx
Partner
CIG & CO. (as nominee of Connecticut
General Life Insurance Company,
beneficial owner of Senior Note Nos. 9
and 10, on behalf of one or more
separate accounts)
By: /s/XXXXX X. XXXXXXXXX
Xxxxx X. Xxxxxxxxx
Partner
CIG & CO. (as nominee of Life
Insurance Company of North America,
beneficial owner of Senior Note No. 11)
By: /s/XXXXX X. XXXXXXXXX
Xxxxx X. Xxxxxxxxx
Partner
TRAL & CO. (as nominee of The
Travelers Insurance Company, beneficial
owner of Senior Note No. 12)
By: /s/ Xxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxxx
Attorney-in-fact
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By: /s/ Xxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxxx
Managing Director
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[Signature Page to Waiver
and Amendment Agreement]
CM LIFE INSURANCE COMPANY
By: /s/ XXXXXXX X. XXXXXXXX
Investment Officer
XXXXXXX & CO. (as nominee for
MassMutual Corporate Value Partners
United, beneficial owner of Senior Note
No. 17)
By: _________________________________
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DIRECTION TO CIG & CO.
The Lincoln National Life Insurance Company, as beneficial owner of Market
Hub Partners' 10.09% Senior Note No. 6 issued in the original principal amount
of $1,950,375 in favor of CIG & CO., and Lincoln Life and Annuity Company of New
York, as beneficial owner of Market Hub Partners' 10.09% Senior Note No. 7
issued in the original amount of 572,250 in favor of CIG & CO., hereby authorize
and direct CIG & CO. to execute and deliver the foregoing Waiver and Amendment
on their behalf with respect to their interests, respectively, in Senior Note
No. 6 and Senior Note No. 7.
THE LINCOLN NATIONAL LIFE INSURANCE
COMPANY
By Lincoln Investment Management, Inc.
Its Attorney-in-Fact
By: /s/ XXXXXXX X. XXXXXX
Xxxxxxx X. Xxxxxx
Vice President
LINCOLN LIFE & ANNUITY COMPANY OF
NEW YORK
By Lincoln Investment Management, Inc.
Its Attorney-in-Fact
By: /s/ XXXXXXX X. XXXXXX
Xxxxxxx X. Xxxxxx
Vice President
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