EXHIBIT 10.6(c)
EXECUTION COPY
AMENDMENT NO. 2 TO
SECOND AMENDED AND RESTATED
COMMODITIES REPURCHASE AGREEMENT
This AMENDMENT NO. 2 TO SECOND AMENDED AND RESTATED COMMODITIES
REPURCHASE AGREEMENT (this "Amendment") is made and dated as of November 20,
2003, 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 as further
amended, supplemented, restated or otherwise modified prior to the effective
date hereof, 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;
WHEREAS, Link OLP proposes to dispose of certain assets 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 Crude Oil Purchase Agreement be amended in connection with the
ChevronTexaco Disposition.
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:
SECTION 1. AMENDMENTS TO THE CRUDE OIL PURCHASE AGREEMENT.
(a) Section 2(b)(iv) of the Crude Oil Purchase Agreement
is hereby amended by (i) inserting the words "any or" immediately
following the words "(but not the obligation) to repurchase" which
appear in item (i) thereof, and
(ii) deleting the reference to "Section 4" at the end of item (ii)
thereof and inserting the words "Section 4(a) and Section 4(b)".
(b) Section 3 of the Crude Oil Purchase Agreement is
hereby amended by deleting the words "The Maximum Commitment shall be
reduced as follows" which appear in the first sentence thereof and
inserting the words "The maximum commitment under this Agreement, equal
to $75,000,000 on the date hereof (the "Maximum Commitment"), shall be
reduced as follows".
(c) Section 3(b) of the Crude Oil Purchase Agreement is
hereby amended and restated in its entirety to read as follows:
"b) if Client repurchases all or a portion of the
Commodities prior to the Repurchase Date on the
Optional Prepayment Date or the Mandatory
Prepayment Date, the Maximum Commitment shall
automatically and permanently be reduced by an
amount equal to the amount of such repurchase;
and"
(d) Section 4 of the Crude Oil Purchase Agreement is
hereby amended by (i) deleting the word "and" at the end of Section
4(a), (ii) deleting the period at the end of Section 4(b) and inserting
"; and" in its place, and (iii) amending and restating Section 4(c) in
its entirety to read as follows:
"c) On any Optional Prepayment Date or Mandatory
Prepayment Date, (i) title to the
Commodities repurchased by Client shall pass
to Client immediately upon delivery, (ii) a
new Transaction Confirmation substantially
in the form attached hereto as Exhibit A and
a new holding certificate substantially in
the form attached hereto as Exhibit B
reflecting such repurchase shall be
delivered by Client to SCTSC, (iii) the
Repurchase Price shall be reduced by the
amount received by SCTSC on such date as a
result of the applicable prepayment, and
(iv) the Adjusted Barrel Amount shall be
reduced by the number of barrels so
repurchased, as reflected in the new
Transaction Confirmation referred to in item
(i) above."
(e) Section 17(g) of the Crude Oil Purchase Agreement is
hereby amended and restated in its entirety to read as follows:
"g) from the Purchase Date until the earlier of
(i) the Repurchase Date or (ii) the date on
which all the Commodities have been
repurchased by Client from
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SCTSC, Client will maintain at least a
number of barrels of crude oil constituting
its line fill equal to the Adjusted Barrel
Amount (as such amount shall be adjusted
from time to time in accordance with Section
4(c)(iii) hereof);"
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. MAXIMUM COMMITMENT AND ADJUSTED BARREL AMOUNT. The parties
hereto agree that as of the date hereof, the Maximum Commitment is $50,000,000
and the Adjusted Barrel Amount is 2,200,000 number of barrels of crude oil.
SECTION 4. 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 SCTSC by
SCTSC and Client.
SECTION 5. 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.
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SECTION 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 Crude Oil
Purchase Agreement, all of which are ratified and confirmed in all respects and
shall continue in full force and effect.
SECTION 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.
SECTION 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: 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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