EXHIBIT 10.5(c)
EXECUTION COPY
LIMITED WAIVER TO XXXXXX CREDIT AGREEMENT
This LIMITED WAIVER TO XXXXXX CREDIT AGREEMENT (the "Waiver") is dated
as of November 18, 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 Commercial Paper,
Inc. ("Xxxxxx Commercial"), Farallon Capital Partners, L.P. ("Farallon
Capital"), Farallon Capital Institutional Partners, L.P. ("Farallon
Institutional"), Farallon Capital Institutional Partners II, L.P. ("Farallon
II"), Farallon Capital Institutional Partners III, L.P. ("Farallon III"),
Tinicum Partners, L.P. ("Tinicum"), Fortress Credit Opportunities I LP
("Fortress I") and Fortress Credit Opportunities II LP ("Fortress" and together
with Xxxxxx Commercial, Farallon Capital, Farallon Institutional, Farallon II,
Farallon III and Tinicum, the "Term Lenders") and (3) Xxxxxx Brothers Inc. as
Term Lender Agent (the "Term Lender Agent"). Capitalized terms used but not
otherwise defined herein shall have the meanings ascribed thereto in the Xxxxxx
Credit Agreement (as defined below).
WHEREAS, the Borrowers, each Guarantor, the Term Lenders and
the Term Lender Agent entered into that Term Loan Agreement, dated as of
February 11, 2003 (as amended, supplemented, restated or otherwise modified from
time to time, the "Xxxxxx Credit Agreement"); and
WHEREAS, the Borrowers and Guarantors have requested, and the
Term Lenders and the Term Lender Agent are willing to grant, a waiver with
respect to the Xxxxxx Credit 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 Lenders and the Term Lender Agent 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 Xxxxxx 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 10(o) of the Xxxxxx 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 10(q) of the Xxxxxx Credit
Agreement, and (C) the Credit Parties' failure to comply with Section 10(a) of
the Xxxxxx 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 11(n) of the Xxxxxx Credit
Agreement resulting from Link OLP's breaches of the Crude Oil Purchase Agreement
and Receivables Purchase Agreement as waived by Section 1 of the Loan Waiver,
(iii) Section 11(h) of the Xxxxxx Credit 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 Loan Waiver and (iv) Section 11(c) of the Xxxxxx
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 the Xxxxxx Credit Agreement waived hereby or (y)
under the Letter of Credit Agreement, the Crude Oil Purchase Agreement or the
Receivables Purchase Agreement waived pursuant to Section 1 of the Loan Waiver.
SECTION 2. REPRESENTATIONS AND WARRANTIES. In order to induce the Term
Lenders and the Term Lender Agent to enter into this Waiver, the Borrowers and
the Guarantors represent and warrant to the Term Lenders and the Term Lender
Agent (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 Loan Waiver referred to below, (a) all of the
representations and warranties contained in the Xxxxxx 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 or Event of Default under the Xxxxxx Credit 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, the Crude Oil Purchase Agreement and
the Receivables Purchase Agreement in the form attached as Exhibit A hereto (the
"Loan Waiver") by the Borrowers, the Guarantors, the Standard Chartered Bank and
Standard Chartered Trade Services, waiving certain "Events of Default" (under
and as defined in the Letter of Credit Agreement, the Crude Oil Purchase
Agreement and the Receivables Purchase 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 Xxxxxx Credit 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 Xxxxxx Credit Agreement or any other Credit Document. This Waiver shall be
construed in connection with and as part of the Xxxxxx Credit Agreement and all
terms, conditions, representations, warranties, covenants and agreements set
forth in the Xxxxxx Credit Agreement and each other
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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: ____________________________________
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.
Term Lender Agent
By: ____________________________________
Name:
Title:
XXXXXX COMMERCIAL PAPER, INC.
a Term Lender
By: ____________________________________
Name:
Title:
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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, a Term Lender
By: FARALLON PARTNERS, L.L.C.,
as General Partner
By: ____________________________________
Managing Member,
Farallon Partners, L.L.C.
FARALLON CAPITAL OFFSHORE INVESTORS
INC.
By: FARALLON CAPITAL MANAGEMENT,
L.L.C., its Agent and Attorney-In-Fact
By: ____________________________________
Managing Member,
Farallon Capital Management,
L.L.C.
HIGH YIELD PORTFOLIO, a series of
Income Trust
By: ____________________________________
Name:
Title:
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AXP VARIABLE PORTFOLIO-EXTRA INCOME
FUND, a series of AXP Variable
Portfolio Income Series, Inc.
By: ____________________________________
Name:
Title:
DRAWBRIDGE INVESTMENT PARTNERS LLC,
a Term Lender
By: ____________________________________
Name:
Title:
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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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