EXHIBIT 10.6
EXECUTION COPY
AMENDED AND RESTATED
COMMODITIES REPURCHASE AGREEMENT
This AMENDED and RESTATED COMMODITIES REPURCHASE AGREEMENT (this "Agreement"),
dated as of October 18, 2002, by and among (1) EOTT Energy Operating Limited
Partnership (the "Client"), a limited partnership organized under the laws of
Delaware, (2) Standard Chartered Trade Services Corporation ("SCTSC"), a company
organized under the laws of the State of Delaware, and (3) STANDARD CHARTERED
BANK, as collateral agent for SCTSC (the "Collateral Agent"), hereby modifying
that certain Commodity Repurchase Agreement, dated as of February 28, 1998, as
amended by that certain letter agreement dated as of June 22, 2001 and that
certain letter agreement dated as of April 23, 2002, by and between Client and
SCTSC (the "Prior Agreement").
WHEREAS, SCTSC shall enter into a purchase and sale transaction with Client,
whereby SCTSC shall purchase from Client 2,764,117 million barrels of crude oil
constituting Client's line fill (the "Commodities"), on a spot basis as set
forth in Section 1 below;
WHEREAS, SCTSC shall agree to sell the Commodities to Client on the Repurchase
Date (as defined below) (such transaction is referred to herein as the
"Transaction");
WHEREAS, Client has filed a voluntary petition commencing a case (the "Case")
under Chapter 11 of the U.S. Bankruptcy Code (the "Bankruptcy Code") in the
United States Bankruptcy Court for the Southern District of Texas (the "Court");
WHEREAS, each of Client and SCTSC wishes to continue the Prior Agreement in
effect without interruption during the pendency of the Case;
WHEREAS, a modification of the Prior Agreement is necessary to enable the
parties to so perform during the pendency of the Case and each of Client and
SCTSC wishes to amend certain other provisions of the Prior Agreement on the
terms and conditions set forth herein;
NOW, THEREFORE, Client and SCTSC do hereby agree as follows:
1. If (a) all conditions precedent to Extensions of Credit in the SCB DIP
Credit Agreement (as defined below), (b) all other conditions precedent
herein are satisfied at the time Client proposes the Transaction and
(c) no Event of Default exists and is continuing, SCTSC will enter into
the Transaction; provided, that the Purchase Price (as defined below)
shall not exceed seventy-five million dollars ($75,000,000) (the
"Maximum Commitment").
As used herein, "SCB DIP Credit Agreement" means that certain Debtor in
Possession Letter of Credit Agreement, dated as of the date hereof, by
and between Client, EOTT Energy Canada Limited Partnership ("EOTT
Canada"), EOTT Energy
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Liquids, L.P. ("EOTT Liquids"), EOTT Energy Pipeline Limited
Partnership ("EOTT Pipeline"), EOTT Energy Partners, L.P. ("EOTT MLP"),
EOTT Energy General Partner, L.L.C. ("EOTT GP"), Standard Chartered
Bank, as Collateral Agent, LC Agent, and LC Issuer, and the other banks
and financial institutions party thereto from time to time. Capitalized
terms used and not defined herein have the meanings given to them in
the SCB DIP Credit Agreement.
The following steps shall be taken for the Transaction:
a) Client shall contact SCTSC either by telephone or by facsimile
in the manner set forth in Paragraph 5 below, informing SCTSC
of Client's desire to enter into a Transaction and indicating:
(i) the date on which Client proposes that SCTSC pay the
Purchase Price to Client and on which the Commodities
are to be delivered to SCTSC (the "Value Date"); and
(ii) if applicable, the location and account number of the
hedge account opened by Client for the Commodities
("Hedge Account").
b) The following general terms shall apply to the Transaction:
(i) The total price SCTSC shall pay to Client for the
Commodities involved in the Transaction shall be
$75,000,000 (the "Purchase Price").
(ii) The date on which Client proposes to pay SCTSC the
Repurchase Price (as defined below) for the
repurchase from SCTSC by Client of the Commodities
(the "Repurchase Date") shall be the earlier to occur
of (i) March 31, 2003 and (ii) the effective date of
a Reorganization Plan of Client that has been
confirmed by an order of the Bankruptcy Court;
provided, that Client shall have the option (but not
the obligation) to repurchase all the Commodities
from SCTSC on a date (the "Optional Prepayment Date")
prior to the Repurchase Date, including, without
limitation, pursuant to Section 3.3(a) of the
Intercreditor Agreement, subject to Section 13(b),
(iii) Client shall pay to SCTSC an amount equal to the
interest that would accrue on the Purchase Price as
if the Transaction were deemed to be a loan, at a
rate (the "Interest Rate") equal to LIBOR (as defined
in Schedule B attached hereto) for one-month periods
beginning on October 23, 2002 (the "Interest Period")
plus 3.0%, payable in arrears on each Monthly Payment
Date from the Value Date until the Repurchase Date,
or if earlier, the Optional Prepayment Date. Interest
accrued on the Purchase Price or other monetary
obligations after the date such amount is due and
payable (whether on the
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Repurchase Date, upon acceleration or otherwise)
shall be payable upon demand.
(iv) The price at which Client will repurchase the
Commodities from SCTSC on the Repurchase Date (the
"Repurchase Price") shall equal the Purchase Price.
(v) Client shall pay a Handling Fee equal to a flat fee
of US$500.00 with respect to each of SCTSC's invoices
in respect of the Transaction, payable upon receipt
of each such invoice.
c) SCTSC shall then send to Client a facsimile (the "Transaction
Confirmation") in substantially the form of Exhibit A to the
Agreement instructing Client to sell and deliver the
Commodities, Purchase Price, Value Date, Repurchase Date,
Repurchase Price (or the manner of calculating such price) and
details of the Hedging Account; and
d) Provided that Client receives SCTSC's Transaction Confirmation
on or prior to 5:00 p.m. (New York City time) on a business
day, if the terms set forth therein are acceptable to Client,
Client shall send to SCTSC on the same business day a
facsimile of the Transaction Confirmation executed by Client
(a "Confirmation of Acceptance"). Each Confirmation of
Acceptance shall be binding on Client to the same extent as a
manually signed Confirmation of Acceptance. It is understood
and agreed that a binding agreement relating to the
Transaction shall exist between Client and SCTSC only upon the
completion of all steps contemplated by this Section 1.
2. After agreement has been reached between Client and SCTSC with respect
to the Transaction as contemplated by Section 1 above:
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a) SCTSC shall on the Value Date purchase from Client the
Commodities at the Purchase Price;
b) Immediately upon delivery of the Commodities in accordance
with Section 2(c) below, SCTSC shall pay the Purchase Price to
Client in the manner set forth in Section 3 below, and subject
to Client's receipt of such Purchase Price, title to the
Commodities shall pass immediately to SCTSC;
c) Delivery of the Commodities shall, subject to the terms and
conditions of this Agreement, be made by Client on the Value
Date by the delivery to SCTSC at their offices at Xxx Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, of registered
negotiable warehouse receipts or other negotiable documents of
title in form and substance satisfactory to SCTSC and endorsed
to the order of SCTSC issued by warehousemen or other bailees
acceptable to SCTSC in its sole discretion or such other
delivery method (and documentation) that is acceptable to
SCTSC. It is agreed that such negotiable warehouse receipts or
other negotiable documents of title, or other documentation
acceptable to SCTSC, shall be held by SCTSC at all times until
the Repurchase Date. Notwithstanding anything to the contrary,
Client shall be responsible for all warehouse, transportation,
storage and other costs and expenses relating to the
ownership, storage or transportation of all Commodities;
d) (i) Client shall pay the Repurchase Price to SCTSC on the
Repurchase Date in the manner set forth in Section 3
and, subject to SCTSC's receipt of such Repurchase
Price and all other amounts due and owing to SCTSC
hereunder, SCTSC shall deliver to Client on such date
the warehouse receipts or other negotiable documents
of title or other evidences of delivery of the
Commodities SCTSC received from Client pursuant to
Section 2(c) above, together with any insurance
proceeds as paid to SCTSC under any policy maintained
by the Client, and title to the Commodities shall
pass to Client immediately upon such payment and
delivery. Client's obligation to pay the Repurchase
Price and all other amounts due and owing to SCTSC
hereunder on the Repurchase Date shall be absolute
and unconditional and shall not be subject to any
claim, defense, set-off or other reduction,
notwithstanding any loss or damage to, defect in or
non-existence of any Commodity or any other event or
circumstance whether or not similar to the foregoing.
(ii) If the Client shall fail to pay the Repurchase Price
or any other amount payable by Client hereunder when
due, the Client shall pay to SCTSC interest on the
outstanding unpaid amount at a rate per annum equal
to the rate of interest established from time to time
by Standard Chartered Bank in New York City as its
Reference Rate (as defined below) plus five percent
(5.0% p.a.).
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"Reference Rate" is defined as the rate publicly
announced from time to time by Standard Chartered
Bank, New York Branch as its Reference Rate.
(iii) SCTSC will deliver an invoice to Client prior to the
Repurchase Date setting forth the Repurchase Price
and all other amounts due and owing to SCTSC
hereunder which are payable on the Repurchase Date.
3. Reduction of Maximum Commitment. The Maximum Commitment shall be
reduced:
a) if Client elects to repurchase all the Commodities prior to
the Repurchase Date (in which case the Maximum Commitment
shall be reduced to zero); and
b) if Client fails to either (i) maintain a hedge contract (the
"Hedge Contract") at a price and an amount and otherwise in
form and substance satisfactory to SCTSC from a counterparty
acceptable to SCTSC or (ii) secure the Repurchase Price with
one or more letters of credit issued by a bank acceptable to
SCTSC, at a stated amount satisfactory to SCTSC, naming SCTSC
as the beneficiary and otherwise in form and substance
satisfactory to SCTSC (the "Letters of Credit") (in which case
the Maximum Commitment shall be reduced to an amount
acceptable to SCTSC).
4. Mandatory Prepayment. If at any time the Purchase Price exceeds the
Maximum Commitment (whether due to a reduction in the Maximum
Commitment in accordance with this Agreement, or otherwise), Client
shall pay to SCTSC an amount at least equal to such excess.
5. Hedge Contracts. If the Hedge Contract matures prior to the Repurchase
Date, the Client shall replace such matured Hedge Contract upon
maturity with a Hedge Contract at a hedge price equal to or greater
than the Repurchase Price (or such other price as may be agreed to by
Client and SCTSC).
6. Facility Fee. Upon assumption of this Agreement, Client will pay SCTSC
a non-refundable facility fee in an amount equal to (a) one percent
(1%) per annum multiplied by (b) the Average Daily Maximum Facility
Amount (as defined below), payable to SCTSC in arrears on each Monthly
Payment Date.
"Average Daily Maximum Facility Amount" for any month for each such
agreement shall equal the quotient of (x) the sum of the Maximum
Commitment on each day during the month (unless such amount shall be
permanently reduced by Client, which it may do pursuant to the terms of
this Agreement) divided by (y) the total number of days in such month.
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7. On each date on which any amounts fall due for payment from either
SCTSC or Client under this Agreement for the Transaction, the party
required to make such payment shall do so where such amount is
denominated in United States Dollars ("Dollars") by payment in Dollars
and in immediately available funds to such account in the United States
of the other party as may be specified by it in the Transaction
Confirmation.
8. All payments to be made hereunder by Client shall be made free and
clear of and without deduction for any set-off or counterclaim and
without deduction for or on account of any present or future taxes
including but not limited to duties, levies, sales or value added
taxes, and imposts now or hereafter imposed. If Client is required by
law to make any deduction or withholding from any sum payable
hereunder, the sum payable, in respect of which such deduction or
withholding is required to be made, shall be increased to the extent
necessary to ensure that, after the making of such deduction or
withholding (including, without limitation, deduction or withholding on
account of additional sums payable under this Section), SCTSC receives
(free from any liability in respect of any such deduction or
withholding) a net sum equal to the sum which would have been received
and so retained had no such deduction or withholding been made.
9. All facsimile communications arising as a consequence of this Agreement
shall be sent (a) if to SCTSC, at facsimile number (000) 000-0000 and
(b) if to Client, at facsimile number (000) 000-0000 or, in either
case, to such other facsimile number as SCTSC advises to Client or as
the case may be, Client advises SCTSC from time to time in writing.
10. This Agreement shall terminate on the earliest of: (i) at the sole
discretion of Client, immediately upon written notice given by Client
to SCTSC and repurchase of the Commodities pursuant to Section
1(b)(ii), or (ii) on the Repurchase Date or (iii) as provided in
Section 11 below (the "Termination Date"); provided, however, that no
such termination shall affect or nullify the rights and obligations of
the parties hereto with respect to the Transaction that has been
concluded or under which amounts may still be owing. Notwithstanding
any termination, the terms of this Agreement shall continue to apply to
the completion of any and the Transaction until such time that all
amounts owing under the Transaction shall have been duly paid or
otherwise discharged as contemplated by this Agreement.
11. In the event that:
a) any representation, warranty or statement made in writing by
Client (or any of its officers, partners or members) in this
Agreement or any certificate or document delivered under this
Agreement shall have been incorrect or untrue in any respect
when made or repeated; or
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b) Client shall fail to perform any covenant or agreement
contained herein or any of Client's obligations under the
Transaction effected under this Agreement; or
c) Any event or condition shall occur which, in the opinion of
SCTSC, constitutes a material adverse change in the financial
position of Client as set forth in the Cash Budget, or which
causes SCTSC to believe that the ability of Client to perform
its obligations under this Agreement, the Transaction
Confirmation or any other agreement delivered in connection
with the Transaction has been significantly impaired, provided
that such event or condition shall be continuing for fifteen
days after SCTSC notifies Client thereof and during such
fifteen-day period Client fails to cure such event or
condition or deliver collateral security for Client's
obligations hereunder which shall be in a form and with a
value satisfactory to SCTSC in all respects and subject to
documentation required by SCTSC to grant to SCTSC a first
priority perfected security interest therein; or
d) an order shall be entered in the Case authorizing Client to
reject this Agreement; or
e) an "Event of Default" shall have occurred under and as defined
in the SCB DIP Credit Agreement (any of the foregoing shall
hereinafter be known as an "Event of Default").
SCTSC shall have the right (in addition to any other right or remedy
SCTSC may have at law, in equity under this Agreement, or under the
Orders, and subject to the terms of the Intercreditor Agreement and the
Orders) to:
(w) accelerate the Repurchase Date and all other obligations
of the Client hereunder to the date such right is exercised,
(x) sell without notice to Client or any third party (except
as required by law) any Commodity held by SCTSC under the Transaction,
(y) apply any amounts received therefor against the amounts
owed by Client to SCTSC under the Transaction and all other obligations
of the Client hereunder (provided, that SCTSC may retain any balance of
such amounts until the Termination Date, and at any time prior thereto,
may apply such balance to cover any amounts due and owing to SCTSC
under the Receivables Purchase Agreement, and upon the Termination
Date, SCTSC shall promptly remit to the Collateral Agent any remaining
balance), and
(z) terminate this Agreement, as to all the foregoing, without
protest, presentment, demand or other formality, all of which are
expressly waived by Client.
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The Client shall remain liable to SCTSC for any amount still owed to
SCTSC under the Transaction and all other obligations of the Client
hereunder after the sale of all Commodities held by SCTSC together with
interest thereon at the rate provided in Section 2(d)(ii).
12. Client understands and agrees that Client is obligated to repurchase at
the Repurchase Price from SCTSC on the Repurchase Date any Commodity
that is the subject of the Transaction effected under this Agreement
irrespective of any loss, damage, theft or destruction whatsoever which
may occur with respect to such Commodity during the time the
Transaction is outstanding or any other event or circumstance. In
addition, if any claim is asserted against any Commodity by any third
party, including any governmental authority, Client agrees that Client
is nonetheless obligated to repurchase such Commodity from SCTSC on the
relevant Repurchase Date. Any risk of loss whatsoever with respect to
any Commodity that is the subject of the Transaction that is effected
under this Agreement is retained by Client.
13. Client agrees to indemnify and hold SCTSC harmless from and against:
a) all expenses and costs reasonably incurred by SCTSC and all
claims, liabilities and losses (including, but not limited to
legal fees reasonably incurred by SCTSC, sales or value added
taxes, duties and levies, excise and other taxes (other than
taxes imposed on the net income of SCTSC or franchise taxes by
(i) the United States of America or (ii) the State of New York
or any taxing authority thereof or therein)),
b) all costs and expenses reasonably incurred by SCTSC as a
result of any payment of the Repurchase Price on a date other
than the scheduled Repurchase Date or failure by SCTSC to
deliver a Commodity on the Value Date including, without
limitation, all cost or expense suffered by SCTSC in
liquidating LIBOR or other deposits or compensating any
funding bank therefor, and
c) all increases in costs or reductions in amounts receivable by
SCTSC as a result of any change in or adoption of any law,
rule, regulation or guideline (whether or not having the force
of law) after the date hereof,
incurred or suffered by SCTSC as a result of or arising from the
Transaction, SCTSC's ownership or control or possession of any
Commodity, Client's breach of any representation or warranties
contained herein or Client's failure to comply with any of the terms or
conditions contained in this Agreement except to the extent arising
from the willful misconduct or gross negligence of SCTSC. Such
agreement to indemnify shall extend to and apply to SCTSC's officers,
directors, shareholders, employees and agents and shall survive
termination of this Agreement and payment of Client's obligations
hereunder.
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14. Client shall continue to be responsible for all Commodities in all
respects including, but not limited to, arranging storage, maintenance,
shipment and other handling and treatment of all Commodities, and SCTSC
shall have no responsibility or right to participate in any of the
foregoing except in the event SCTSC purchases any Commodity after the
occurrence of an Event of Default or does any of the foregoing in
connection with its exercise of any rights or remedies under Section 8.
15. Client shall maintain the confidentiality of this Agreement and shall
not disclose this Agreement or any terms hereof to any person or entity
except as required by law and Securities Exchange Commission rules and
disclosure requirements and to Client's attorneys and advisors who
agree to such confidentiality and non-disclosure provisions.
16. Neither of SCTSC nor Client shall assign or otherwise transfer any
rights or obligations hereunder without the prior written consent of
the other.
17. SCTSC hereby represents and warrants that (i) it has the capacity, and
has taken all necessary action (corporate and otherwise) to enable it
to enter into and perform its obligations under this Agreement, and
(ii) upon execution of this Agreement by or on behalf of SCTSC, this
Agreement constitutes its legal, valid and binding obligation of such
party.
18. So long as the Transaction remains outstanding, Client represents,
warrants and covenants as follows:
a) there is no financing statement, as such term is defined by
the Uniform Commercial Code as in effect in the State of New
York, now on file in any public office covering any Commodity
which is included in any outstanding Transaction, nor is there
any lien, security interest or encumbrance on any such
Commodity, except for liens in favor of the Collateral Agent
as provided in the Orders and the Intercreditor Agreement;
b) other than the Cases, there are no proceedings pending or
threatened before any court, arbitrator or governmental or
administrative authority, instrumentality or agency that, in
any one case or in the aggregate, if adversely determined,
would materially adversely affect the financial condition or
operations of Client or result in cost, liability or expense
in excess of $ 5,000,000.00;
c) Client is a limited partnership duly organized under the laws
of the state of Delaware, has all necessary power and
authority to own its properties and to carry on its business
as now being and hereafter proposed to be conducted, without
limitation or restriction, except such limitations or
restrictions as are generally applicable to debtors in
possession in cases under Chapter 11 of the
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Bankruptcy Code, and has taken all necessary action to
authorize, execute, deliver and perform this Agreement and the
Transaction Confirmation;
d) this Agreement and the Transaction Confirmations shall
constitute a valid and binding legal obligation of Client,
enforceable in accordance with its terms, and the execution,
delivery and performance of this Agreement in accordance with
its terms do not and will not violate or conflict, result in a
breach of, or constitute a default under, any contract to
which Client is a party or by which it or any of its
properties may be bound;
e) immediately prior to the effectiveness of the Transaction,
Client is the owner of all Commodities, free from any adverse
claim, option, warrant, lien or any other right, title or
interest of any party other than SCTSC, subject to the Orders
and the Intercreditor Agreement;
f) from the Purchase Date until the earlier of (i) the Repurchase
Date or (ii) the Optional Prepayment Date, Client will
maintain at least 2,764,117 million barrels of crude oil
constituting its line fill;
g) Client has and will have full power and lawful authority at
the time of transfer to convey, sell, and transfer to SCTSC
title to all Commodities and to grant if necessary to the
Collateral Agent, in accordance with the Intercreditor
Agreement, a valid security interest therein as herein
provided, and no consent, license, or approval of any person
or entity (including, but not limited to, any governmental
authority or agency) (other than the Bankruptcy Court) is
required in connection therewith or for SCTSC's ownership,
purchase or sale of any Commodity;
h) Client has no place of business, offices where books of
accounts and records are kept, or places where the Commodities
are used, stored or located, except as set forth in Schedule A
annexed hereto, and the Client will notify SCTSC prior to any
change in the foregoing representation;
i) Client shall at all times maintain its records as to the
Commodities at its chief place of business at the address
referred to on Schedule A and at none other, except Client may
transfer such records to an off-site facility in accordance
with Client's internal policies relating to storage of
documents;
j) Client will not store, use or locate any of the Commodities at
any place other than as listed in Schedule A annexed hereto,
except upon prior written notice to SCTSC;
k) Client currently uses no business or trade names, except as
set forth on Schedule A annexed hereto, and covenants that it
will promptly notify
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SCTSC, in sufficient detail, of any changes in, additions to,
or deletions from the business or trade names used by the
Client;
l) Client agrees to pay and perform all of its obligations under
this Agreement according to their terms and to comply with all
acts, rules, regulations and orders of any legislative,
administrative or judicial body or official applicable to the
operation of its business, provided that Client may contest
any acts, rules, regulations, orders and directions of such
bodies or officials in any reasonable manner which will not,
in SCTSC's opinion, adversely affect SCTSC's rights in the
Commodities;
m) all Commodities subject to the Transaction hereunder will have
been acquired by Client from non-affiliated third parties in
the ordinary course of business; and
n) Client agrees, only with respect to any Commodities which are
subject to the Transaction, unless otherwise consented to by
SCTSC in writing:
(i) not to sell, offer to sell, exchange, assign, loan,
deliver, mortgage or otherwise dispose of any of the
Commodities, including but not limited to sales in
the ordinary course of its business;
(ii) to immediately deliver to SCTSC or SCTSC's agent all
documents, instruments or other writings representing
any of the Commodities or any rights thereto;
(iii) to pay and perform all of the obligations under this
Agreement according to their terms;
(iv) to keep all Commodities free and clear of any liens,
security interests, encumbrances, taxes and
assessments of any kind, except for liens in favor of
the Collateral Agent as provided in the Orders and
the Intercreditor Agreement;
(v) to advise SCTSC promptly, in sufficient detail, of
any substantial change in the Commodities, and of the
occurrence of any event which would have a material
effect on the value of the Commodities or on SCTSC's
interest therein;
(vi) to comply with all acts, rules, regulations and
orders of any legislative, administrative or judicial
body or official applicable to the Commodities or any
part thereof or to the operation of its business,
provided that Client may contest any acts, rules,
regulations, orders and directions of such bodies or
officials in any reasonable manner
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which will not, in SCTSC's opinion, adversely affect
SCTSC's rights in the Commodities; and
(vii) to deliver to SCTSC copies of, or certificates of the
issuing companies with respect to, and endorsements
of, any and all policies of insurance owned by Client
covering or in any manner relating to the
Commodities, in form and substance satisfactory to
SCTSC, naming SCTSC as an additional insured (without
recourse for non-payment of premium) and sole loss
payee as its interest may appear and indicating that
the policy will not be terminated or reduced in
coverage or amount without at least ten (10) days'
prior written notice from the insurer to SCTSC. As
further security for the due payment and performance
of all obligations of the Client to SCTSC whether
under this Agreement or otherwise, the Client hereby
assigns to SCTSC all sums, including returned or
unearned premiums, which may become payable under or
in respect of any policy of insurance owned by Client
covering or in any manner relating to Commodities,
and the Client hereby directs each insurance company
issuing any such policy to make payment of such sums
directly to SCTSC.
19. As a condition precedent to the effectiveness of this
Agreement, Client shall have delivered to SCTSC, in form and
substance satisfactory to SCTSC, the documents required under
the SCB DIP Credit Agreeement. It shall be an additional
condition precedent to the continuing effectiveness of this
Agreement that an order shall have entered in the case
authorizing Client to assume the Agreement under Section 365
of the Bankruptcy Code and authorizing Client to enter into
and perform its obligations under the SCB DIP Credit
Agreement.
20. In respect of this Agreement and the Transaction hereunder,
each party hereto acknowledges and confirms that:
a) Each purchase by SCTSC of a Commodity from Client as
contemplated herein is a "forward contract" and each party is
a "forward contract merchant" as those terms are defined in
the U.S. Bankruptcy Code; and
b) All payments made in connection with this Agreement and the
Transaction hereunder constitute "settlement payments" as that
term is defined in the U.S. Bankruptcy Code.
21. Although the parties intend that the Transaction hereunder be a
purchase and sale and not a loan, in the event the Transaction is
deemed to be a loan or financing, Client shall be deemed to have
pledged and hereby pledges, assigns and grants to the Collateral Agent,
acting on behalf of SCTSC in accordance with the Intercreditor
Agreement, as security for the performance by Client of all of Client's
obligations to
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SCTSC, whether now existing or hereafter arising, direct or indirect,
due or to become due, matured or unmatured, or absolute or contingent,
a first priority security interest in and lien on all of the
Commodities with respect to the Transaction hereunder, any Hedge
Contracts and all of the documents of title delivered to SCTSC pursuant
to this Agreement and all proceeds thereof, and this Agreement shall
constitute a valid and binding security agreement under applicable law.
SCTSC shall have all of the rights and remedies of a secured party
under the Uniform Commercial Code of the State of New York and other
applicable law with respect to such security interest, except as
provided in the Orders and the Intercreditor Agreement.
22. Notwithstanding anything to the contrary contained herein or the
Transaction Confirmation, SCTSC's only obligation to Client is to
deliver, against payment, the documents with respect to Commodities,
which SCTSC purchased or received from Client pursuant to this
Agreement and the Transaction Confirmation or the equivalent thereof.
ALL WARRANTIES BY SCTSC, EXPRESS OR IMPLIED, OF ANY NATURE WHATSOEVER,
INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS, ARE EXCLUDED.
22. Whether or not the Transaction is consummated, the Client shall
reimburse SCTSC, promptly upon demand, for all costs and expenses
incurred by SCTSC, including, without limitation, legal fees and
disbursements, in connection with or arising from the execution,
delivery, administration, amendment, modification or enforcement of
this Agreement, including, without limitation, legal fees and
disbursements arising from the defense of any claim, counterclaim or
proceeding asserted or commenced by Client against SCTSC.
23. THIS AGREEMENT AND THE TRANSACTION SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
CHOICE OF LAW PRINCIPLES.
24. CLIENT HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND
ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE BANKRUPTCY COURT
AND/OR THE COURTS OF NEW YORK STATE OR FEDERAL COURT OF THE UNITED
STATES OF AMERICA SITTING IN NEW YORK CITY, WHETHER TRIAL OR APPELLATE,
IN ANY ACTION OR PROCEEDING ARISING OUT OF, OR RELATING TO, THIS
AGREEMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT IN RESPECT
THEREOF, AND CLIENT HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT
ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN THE BANKRUPTCY COURT AND/OR ANY SUCH NEW YORK STATE COURT
OR, TO THE EXTENT PERMITTED BY LAW, IN SUCH FEDERAL COURT AND CONSENTS
THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN SUCH COURTS AND
WAIVES TO THE FULLEST EXTENT PERMITTED BY LAW ANY OBJECTION OR CLAIM
THAT IT MAY NOW OR
13
HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY
SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN
INCONVENIENT COURT AND AGREES NOT TO PLEAD OR CLAIM THE SAME. CLIENT
HEREBY AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING
SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT
ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS
AGREEMENT SHALL AFFECT ANY RIGHT THAT ANY PARTY MAY OTHERWISE HAVE TO
BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT IN THE COURTS
OF ANY JURISDICTION. CLIENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF,
OR RELATING TO, THIS AGREEMENT OR THE ACTIONS OF SCTSC IN THE
NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF. THIS
PROVISION IS A MATERIAL INDUCEMENT FOR SCTSC TO ENTER INTO
TRANSACTIONS.
25. a) No express or implied waiver of any Event of Default by SCTSC
shall constitute a waiver of any other Event of Default and no
exercise of any remedy hereunder by SCTSC shall constitute a
waiver of SCTSC's right to exercise any other remedy
hereunder. No modification or waiver of any provisions of this
Agreement and no consent by SCTSC to a departure from the
terms hereof shall be effective unless and until such shall be
in writing and duly executed by SCTSC. Without limitation of
any of the foregoing, the failure on any occasion to exercise
any remedy or to give any notice pursuant to any provisions
hereof shall not constitute a waiver of the right to exercise
such remedy or give such notice on any other occasion.
b) Each and every right granted to SCTSC hereunder or in
connection herewith, or allowed to it by law or equity, shall
be cumulative and may be exercised from time to time.
c) The due payment and performance of Client's obligations under
this Agreement shall be without regard to any counterclaim,
right of offset or any other claim whatsoever which the Client
may have against SCTSC, and no such counterclaim, right of
offset or other claims shall be asserted by the Client in any
action or proceeding instituted by SCTSC for payment or
performance of such obligations of the Client.
d) At any time and from time to time, upon the request of SCTSC,
the Client shall execute and deliver or cause to be executed
and delivered such further documents and instruments as SCTSC
may request in order to fully effect the purpose of this
Agreement and the Transaction Confirmations.
14
e) All representations, warranties and agreements made herein
shall survive the delivery of this Agreement and the
Transaction Confirmation.
f) Any provision of this Agreement which is prohibited or
unenforceable in any applicable jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition
or unenforceability without invalidating the remaining
provisions hereof or affecting the validity or enforceability
of such provision in any other jurisdiction. To the extent
permitted by applicable law, the Client hereby waives any
provision of law which renders any provision hereof prohibited
or unenforceable in any respect.
26. Amendment and Restatement. This Agreement amends and restates the Prior
Agreement in its entirety, and nothing in this Agreement shall be
deemed to constitute a novation of the Prior Agreement.
[Signature pages follow.]
15
IN WITNESS WHEREOF, the Seller, SCTSC and the Collateral Agent have
each caused this Agreement to be executed by a duly authorized officer(s) as of
the date first written above.
EOTT ENERGY OPERATING LIMITED
PARTNERSHIP
By: EOTT ENERGY GENERAL PARTNER, L.L.C., its General Partner
By: /s/ Xxxxx Xxxxx
----------------------------
Name: Xxxxx Xxxxx
Title: Treasurer
STANDARD CHARTERED TRADE STANDARD CHARTERED TRADE
SERVICES CORPORATION SERVICES CORPORATION
By: /s/ Xxxxx X. Xxx By: /s/ Xxxxx Xxxxxxx
---------------------------- ------------------------------
Name: Xxxxx X. Xxx Name: Xxxxx Xxxxxxx
Title: CEO Title: Assistant Vice President
STANDARD CHARTERED BANK, as Collateral Agent
By: /s/ Xxxx XxXxxxxx
----------------------------
Name: Xxxx XxXxxxxx
Title: Senior Vice President
By: /s/ Xxxxx X. Xxx
----------------------------
Name: Xxxxx X. Xxx
Title: S.V.P.
16
EXHIBIT A TO AMENDED AND RESTATED
COMMODITY REPURCHASE AGREEMENT
TRANSACTION CONFIRMATION
TO: EOTT Energy Operating Limited Partnership{"Client"}
ATTN: Xx. Xxxxx Xxxxx
FROM: Standard Chartered Trade Services Corporation ("SCTSC")
DATE:
Re: Amended and Restated Commodities Repurchase Agreement (the "Agreement")
dated October 18, 2002
Dear Sirs,
Reference is made to that certain Amended and Restated Commodities Repurchase
Agreement dated October 18, 2002 (as amended, modified or supplemented from time
to time, the "Agreement") between EOTT Energy Operating Limited Partnership and
SCTSC. This confirmation is delivered pursuant to Section 1 (d) of the Agreement
and shall be deemed to be a part of the Agreement. All provisions contained in
the Agreement govern this Confirmation, except as expressly provided below.
The terms of the particular Transaction to which this Confirmation relates are
as follows:
o Commodity Type and Location(s):
o Amount of Commodity:
o Total purchase price payable by SCTSC:
o Value Date:
o Repurchase Date:
o Hedge Account details:
o Repurchase Price:
o Interest Rate:
o Account for payments to SCTSC: SCTSC's A/C #0000-000000-000
at Standard Chartered Bank,
One Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
o Account for payments to Client:
17
Please confirm that the foregoing terms set forth our agreement by executing a
copy of this Confirmation below and returning it to us by facsimile.
Very Truly Yours,
Standard Chartered Trade Services Corporation
By: /s/ Xxxxx X. Xxx By: /s/ Xxxxx Xxxxxxx
------------------------------- -------------------------------
Authorized Officer Authorized Officer
Name: Xxxxx X. Xxx Name: Xxxxx Xxxxxxx
Title: CEO Title: Assistant Vice President
Confirmed on the date first written above.
EOTT Energy Operating Limited Partnership
By: EOTT Energy General Partner, L.L.C., its general partner
By: /s/ Xxxxx Xxxxx
-------------------------------
Authorized Officer
Name: Xxxxx Xxxxx
Title: Treasurer
18
SCHEDULE A
INFORMATION TO BE PROVIDED BY THE CLIENT
o Client's place of business (chief executive office):
0000 X. Xxx Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
o Offices where Client books of accounts and records are kept (other than
off-site locations used for storage of documents):
Same as chief executive office.
o Places where Commodities are used, stored or located:
See monthly inventory report.
o Client's business or trade name(s):
EOTT Energy
EOTT Energy Operating Limited Partnership
1
SCHEDULE B
DEFINITION OF LIBOR
"LIBOR" means, as applicable to any loan and with respect to the related
Interest Period therefor, the rate per annum (rounded upwards, if necessary, to
the nearest 1/32 of 1%) as determined on the basis of offered rates for deposits
in U.S. dollars, for a period of time comparable to such Interest Period and an
amount comparable to such loan which appears on Telerate Page 3750 (or any
successor page) as of 11:00 a.m. London time on the day that is two Business
Days preceding the first day of such LIBOR Loan; provided, however, if the rate
described above does not appear on the Telerate system on any applicable
interest determination date, LIBOR shall be the rate (rounded upwards as
described above, if necessary) for deposits in dollars for a period
substantially equal to such Interest Period on the Reuters Page "LIBO" (or such
other page as may replace the LIBO Page on that service for the purpose of
displaying such rates), as of 11:00 a.m. (London time), on the date that is two
Business Days prior to the beginning of such Interest Period; and provided
further, however, if more than one rate is specified on Reuters Screen LIBO
Page, the applicable rate shall be the arithmetic mean of all such rates
(rounded upwards, if necessary, to the nearest 1/1000 of 1%). If both the
Telerate and Reuters system are unavailable, then LIBOR for that date will be
determined on the basis of the offered rates for deposits in U.S. dollars for a
period of time comparable to such Interest Period which are offered by four
major banks in the London interbank market at approximately 11:00 a.m. London
time, on the day that is two (2) Business Days preceding the first day of such
LIBOR Loan as selected by SCTSC. The principal London office of each of the four
major London banks will be requested to provide a quotation of its U.S. dollar
deposit offered rate. If at least two such quotations are provided, the rate for
that date will be the arithmetic mean of the quotations. If fewer than two
quotations are provided as requested, the rate for that date will be determined
on the basis of the rates quoted for loans in U.S. dollars to leading European
banks for a period of time comparable to such Interest Period offered by major
banks in New York City at approximately 11:00 a.m. New York City time, on the
day that is two Business Days preceding the first day of such LIBOR Loan. In the
event that SCTSC is unable to obtain any such quotation as provided above, it
will be deemed that LIBOR pursuant to such LIBOR Loan cannot be determined. In
the event that the Board of Governors of the Federal Reserve System shall impose
a Reserve Percentage with respect to LIBOR deposits of any Lender, then for any
period during which such Reserve Percentage shall apply, LIBOR shall be equal to
the amount determined above divided by an amount equal to 1, minus the Reserve
Percentage. "Reserve Percentage" means the maximum aggregate reserve requirement
(including all basic, supplemental, marginal, special, emergency and other
reserves) which is imposed on member banks of the Federal Reserve System against
"Euro-currency Liabilities" as defined in Regulation D. Without limiting the
effect of the foregoing, the Reserve Percentage shall reflect any other reserves
2
required to be maintained by such member banks with respect to (i) any category
of liabilities that includes deposits by reference to which LIBOR is to be
determined or (ii) any category of extensions of credit or other assets that
include LIBOR Loans. The interest rate for any loan that bears interest at a
rate based upon LIBOR shall change whenever the Reserve Percentage changes.
3
EXAMPLE OF THE WORDING FOR A HOLDING CERTIFICATE
[LETTERHEAD OF ISSUER]
HOLDING CERTIFICATEHOLDING CERTIFICATE
Date
------------------------
Standard Chartered Trade Services Corporation
Xxx Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxx XxXxxxxx
AVP Trade Operations
Dear Sirs,
This document is a negotiable document of title under the Uniform Commercial
Code. This document evidence that the goods covered hereby shall be delivered to
the order of Standard Chartered Trade Services Corporation or its endorsees or
assigns.
As of this date, the undersigned, (Issuer) , holds the following material to
your order.
QUANTITY DESCRIPTION OF GOODS LOCATION
This quantity of material will not be released or delivered to any other person
except on your written instructions. This document evidences that the holder is
entitled to receive, hold and dispose of this document and the goods it covers.
The undersigned is a bailee of the goods covered by this document.
Sincerely,
[ISSUER]
By:
-----------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
4
