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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:
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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
Lehman 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
