EXHIBIT 10.6(d)
EXECUTION COPY
AMENDMENT NO. 3 TO
SECOND AMENDED AND RESTATED
COMMODITIES REPURCHASE AGREEMENT
This AMENDMENT NO. 3 TO SECOND AMENDED AND RESTATED COMMODITIES
REPURCHASE AGREEMENT (this "Amendment") is made and dated as of February 24,
2004, by and among (a) Link Energy Limited Partnership (formerly EOTT Energy
Operating Limited Partnership) (the "Client") and (b) Standard Chartered Trade
Services Corporation ("SCTSC"). Capitalized terms used but not otherwise defined
herein shall have the meanings given to them in the Crude Oil Purchase Agreement
(as defined below).
WHEREAS, Client, SCTSC and Standard Chartered Bank have entered into
that 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 Amendment No.
2 to Second Amended and Restated Commodities Repurchase Agreement, dated as of
November 20, 2003, and as further amended, supplemented, restated or otherwise
modified from time to time, the "Crude Oil Purchase Agreement"), pursuant to
which SCTSC has purchased from Client, and Client has agreed to repurchase from
SCTSC on the Repurchase Date, certain barrels of crude oil constituting Client's
line fill; and
WHEREAS, Client has requested that SCTSC amend the Crude Oil Purchase
Agreement, and SCTSC, on the terms and subject to the conditions set forth
below, has agreed to amend the Crude Oil Purchase Agreement;
NOW, THEREFORE, in consideration of the foregoing premises, Client and
SCTSC agree as follows:
SECTION 1. AMENDMENTS TO THE CRUDE OIL PURCHASE AGREEMENT.
(a) Section 10(b) of the Crude Oil Purchase Agreement is hereby
amended and restated in its entirety to read as follows:
"b) If the Repurchase Date has been extended pursuant to clause (i)
above, on any date which is four Business Days prior to the First
Extension Date, at the option of Client and upon written notice
to SCTSC, Client may extend the Repurchase Date from the First
Extension Date until June 1, 2004, upon payment to SCTSC of a
non-refundable extension fee in an amount agreed upon between
SCTSC and Client."
SECTION 2. REPRESENTATION AND WARRANTIES. Client represents and
warrants to SCTSC as follows:
(a) The representations and warranties of Client
contained in the Crude Oil Purchase Agreement (i) were true and correct
when made and (ii) shall be true and correct on and as of the Effective
Date 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 Client of this
Amendment and the performance by Client 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 Client, do not and will not (a) contravene any
provision of Client's organizational documents or (b) conflict with any
law, regulation or contractual restriction binding on or affecting
Client.
(c) This Amendment and the Crude Oil Purchase Agreement,
as amended hereby, constitutes the legal, valid and binding obligations
of Client, 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.
SECTION 3. CONDITION TO EFFECTIVENESS. This Amendment shall become
effective as of the date hereof (the "Effective Date") upon the due execution
and delivery of this Amendment to SCTSC by SCTSC and Client.
SECTION 4. EXPENSES. Client shall pay all reasonable out-of-pocket
expenses incurred by SCTSC in connection with the preparation, negotiation,
execution, delivery and enforcement of this Amendment, including, but not
limited to, the reasonable fees and expenses of Xxxxxxx XxXxxxxxx LLP.
SECTION 5. 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 Crude Oil
Purchase Agreement, all of which are ratified and confirmed in all respects and
shall continue in full force and effect.
SECTION 6. 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.
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SECTION 7. 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: Xxxxx X. Xxxxxx
Title: Vice President and Treasurer
STANDARD CHARTERED TRADE SERVICES CORPORATION
By:_________________________________________
Name:
Title:
By:_________________________________________
Name:
Title:
ACKNOWLEDGED BY:
STANDARD CHARTERED BANK,
as Collateral Agent
By:_______________________________
Name:
Title:
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