EXHIBIT 10.4(d)
EXECUTION COPY
AMENDMENT NO. 3 TO
LETTER OF CREDIT AGREEMENT
This AMENDMENT NO. 3 TO LETTER OF CREDIT AGREEMENT (this "AMENDMENT"),
dated as of November 20, 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"), 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"),
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 Participant, LC Issuer and Collateral Agent under the
Letter of Credit Agreement (as defined below), (2) ▇▇▇▇▇▇ BROTHERS INC., as
agent for the Term Lenders under the ▇▇▇▇▇▇ Credit Agreement (as defined in the
Letter of Credit Agreement) (the "TERM LENDER AGENT"), 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 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, as amended by Amendment No. 2 to Letter of Credit Agreement, dated as of
November 14, 2003, and as further amended, supplemented or otherwise modified
prior to the effective date hereof, the "LETTER OF CREDIT AGREEMENT");
WHEREAS, Link OLP and SCTSC have entered into (a) the Second Amended
and Restated Commodities Repurchase Agreement, dated as of February 11, 2003 (as
amended by Amendment No. 1 to Second Amended and Restated Commodities Repurchase
Agreement, dated as of August 29, 2003, and as further amended, supplemented or
otherwise modified from time to time, the "CRUDE OIL PURCHASE AGREEMENT"), and
(b) the Second Amended and Restated Receivables Purchase Agreement, dated as of
February 11, 2003 (as amended by Amendment No. 1 to Second Amended and Restated
Receivables Purchase Agreement, dated as of August 29, 2003, and as further
amended, supplemented or otherwise modified from time to time, the "RECEIVABLES
PURCHASE AGREEMENT");
WHEREAS, the Borrowers, each Guarantor, the LC Agent, the Term Lender
Agent and SCTSC have entered into the Intercreditor and Security Agreement,
dated as
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of March 1, 2003 (as amended, supplemented or otherwise modified from time to
time, the "INTERCREDITOR AGREEMENT");
WHEREAS, Link OLP proposes to assign certain contracts and dispose of
certain crude oil line fill inventory in west Texas and eastern New Mexico, as
particularly described in the Consent to Proposed Assignment of Crude Oil
Contracts and Sale of Designated Property in West Texas and Eastern New Mexico,
dated October 31, 2003, among Link OLP, the LC Agent, the LC Participant, the
Term Lender Agent and the Term Lenders (the "CHEVRONTEXACO CONSENT") (such
disposition, the "CHEVRONTEXACO DISPOSITION"), which disposition the LC Agent,
the LC Participant, the Term Lender Agent and the Term Lenders have consented to
upon the term and conditions set forth in the ChevronTexaco Consent; and
WHEREAS, it is a condition to the effectiveness of the ChevronTexaco
Consent that the Letter of Credit Agreement be amended.
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 definition of "BORROWING BASE" is hereby amended by adding
a new proviso at the end of this definition reading in its entirety as follows:
"provided, further, however, that upon the closing of the ChevronTexaco
Disposition, on the "Effective Date" as defined in the ChevronTexaco
Marketing Agreement, (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; provided, further, that on
February 29, 2004, if the aggregate MTBE Net Proceeds as of such date
shall be less than $10,000,000, clause (i)(L) above shall be further
amended by reducing the amount referred to therein by the Shortfall
Amount multiplied by a factor of 2.5; provided, further, that after
February 29, 2004, upon receipt by the Collateral Agent of additional
MTBE Net Proceeds, as of the date of such receipt, there shall be added
to the then current amount in clause (i)(L) above an amount equal to
such MTBE Net Proceeds multiplied by a factor of 2.5."
(b) The defined terms "Amendment No. 3", "MTBE Disposition", "MTBE
Net Proceeds" and "Shortfall Amount" are hereby inserted in Section 1 of the
Letter of Credit Agreement in appropriate alphabetical order, each reading in
its entirety as follows:
"AMENDMENT NO. 3" means the Amendment No. 3 to Letter of Credit
Agreement, dated as of November 20, 2003, among the Borrowers, the
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Guarantors, the LC Agent, the LC Issuer, the LC Participant, the
Collateral Agent, the Term Lender Agent and SCTSC.
"MTBE DISPOSITION" means the sale or transfer from time to time of
certain MTBE Assets, including, without limitation, platinum,
machinery, inventory, receivables and emissions credits constituting
MTBE Assets, to third parties.
"MTBE NET PROCEEDS" has the meaning set forth in Amendment No. 3.
"SHORTFALL AMOUNT" means $10,000,000 minus the aggregate MTBE Net
Proceeds received by the Collateral Agent as of February 29, 2004.
2. APPLICATION OF MTBE NET PROCEEDS. Upon the closing of each
MTBE Disposition (a) all the net proceeds from such MTBE Disposition (which
shall be in amounts satisfactory to the LC Agent and the Term Lender Agent)
("MTBE NET PROCEEDS") shall be paid directly to repay amounts outstanding under
the Crude Oil Purchase Agreement, in the manner specified in Section 3.3(a) of
the Intercreditor Agreement, and (b) the Maximum Commitment (as defined in the
Crude Oil Purchase Agreement) shall be permanently reduced by the amount of such
net proceeds. Upon the closing of each MTBE Disposition, Link OLP agrees to
deliver to the LC Agent and the Term Lender Agent a certificate setting forth a
calculation of the MTBE Net Proceeds in reasonable detail.
3. LIMITED FORBEARANCE. The LC Agent hereby agrees that, if the
LC Agent has received a fully-executed copy of the ChevronTexaco Marketing
Agreement, certified by an executive officer of the general partner of Link OLP
to be true, correct and complete, then beginning on the date of such receipt and
ending on the "Effective Date" as defined in the ChevronTexaco Marketing
Agreement, the LC Agent shall forbear from exercising its rights to reduce
Advance Rates as set forth in the first proviso to the definition of "Borrowing
Base" in the Letter of Credit Agreement.
4. 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
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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.
(d) After giving effect to this Amendment, no Default or
Event of Default has occurred and is continuing.
5. 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 the LC Agent, the LC Issuer, the LC Participant, each Credit Party,
SCTSC and the Term Lender Agent.
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.
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]
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IN WITNESS WHEREOF, the undersigned have duly executed this Amendment
as of the date first set forth above.
LINK ENERGY LIMITED PARTNERSHIP
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
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: Executive Vice President
ACKNOWLEDGED AND AGREED BY:
STANDARD CHARTERED TRADE
SERVICES CORPORATION
By: _______________________________
Name:
Title:
By: _______________________________
Name:
Title:
▇▇▇▇▇▇ BROTHERS INC.,
as Term Lender Agent
By: _______________________________
Name: J. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Managing Director