EXHIBIT 10.28
[*] Certain portions of this exhibit have been omitted pursuant to a request
for confidential treatment which has been filed separately with the SEC.
[STANDARD CHARTERED LOGO]
STANDARD CHARTERED TRADE SERVICES CORPORATION
0 XXXXX XXXXX XXXXXX
XXX XXXX, XXX XXXX 00000
XXXXXX XXXXXX XX XXXXXXX
February 28, 1998
EOTT Energy Operating Limited Partnership
0000 Xxxx Xxx Xxxxxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xx. Xxxxx Xxxxx
Dear Xx. Xxxxx,
RE: COMMODITY REPURCHASE AGREEMENT
Standard Chartered Trade Services Corporation ("SCTSC"), is pleased to confirm
the terms and conditions on which SCTSC may, from time to time, enter into
purchase and sale transactions whereby SCTSC (a) shall purchase from EOTT Energy
Operating Limited Partnership, a limited partnership organized under the laws of
the state of Delaware ("Client"), specified quantities of commodities, such as
crude oil (each a "Commodity"), on a spot basis (or such other settlement basis
as may be agreed between SCTSC and Client); and (b) shall agree to sell the same
to Client on the Repurchase Date, as defined below (each such transaction
referred to herein as a "Transaction").
1. Neither SCTSC nor Client, by execution of this Agreement, shall be
obligated to enter into a Transaction. If, however, SCTSC wishes to
enter into a Transaction with Client, the following steps shall be
taken:
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 specific Commodity, the amount of such Commodity
and any other specific requirements relating to the
Commodity (the "Commodity Data");
(ii) the total price (the "Purchase Price") SCTSC shall
pay to Client for the Commodity involved in that
Transaction;
(iii) the date on which Client proposes that SCTSC pay the
Purchase Price to Client and on which the Commodity
is to be delivered to SCTSC (the "Value Date");
(iv) the date on which Client proposes to pay SCTSC the
Resale Price (as defined below) for the repurchase
from SCTSC by Client of that Commodity (the
"Repurchase Date") (with respect to any given
transaction, in no case will the Repurchase Date
occur sooner than two (2) full business days (as
defined below) after the Value Date); and
(v) if applicable, the location and account number of the
hedge account opened by Client for the Commodity
("Hedge Account").
b) The following general terms shall apply to the Transactions:
(i) The Repurchase Date for each Transaction shall be no
later than 180 days after the Value Date for such
Transaction.
(ii) The 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 Transaction hereunder, payable
upon receipt of each such invoice.
c) Concurrent with the events in Section 1 (a), SCTSC and Client
shall mutually determine the price (the "Resale Price") at (or
the manner of calculating such price) which Client will
repurchase that Commodity from SCTSC with payment on the
Repurchase Date;
d) 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 Commodity
and confirming the Commodity Data, Purchase Price, Value Date,
Repurchase Date, Resale Price (or the manner of calculating
such price) and details of the Hedging Account; and
e) Prior to 5:00 p.m. (New York City time) on the next business
day following the day of Client's receipt of SCTSC's
Transaction Confirmation, if the terms set forth therein are
acceptable to Client, Client shall send to SCTSC 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 any Transaction shall
exist between Client and SCTSC only upon the completion of all
steps contemplated by this paragraph 1.
2. After agreement has been reached between Client and SCTSC with respect
to a Transaction as contemplated by paragraph 1 above:
a) SCTSC shall on the Value Date purchase from Client the
Commodity as specified in the Commodity Data at the Purchase
Price;
2
b) Immediately upon delivery of the Commodity in accordance with
sub-Paragraph 2c below, SCTSC shall pay the Purchase Price to
Client in the manner set forth in Paragraph 3 below, and
subject to Client's receipt of such Purchase Price, title to
the Commodity shall pass immediately to SCTSC;
c) Delivery of the Commodity 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 0 Xxxxx
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, 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 Resale Price to SCTSC on the
Repurchase Date in the manner set forth in Paragraph
3 and, subject to SCTSC's receipt of such Resale
Price, SCTSC shall deliver to Client on such date the
warehouse receipts or other negotiable documents of
title or other evidences of delivery of the Commodity
SCTSC received from Client pursuant to paragraph (c)
above, together with any insurance proceeds as paid
to SCTSC under any policy maintained by the Client,
and title to the Commodity shall pass to Client
immediately upon such payment and delivery. Client's
obligation to pay the Resale Price 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 Resale 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 plus two percent (2.0% p.a.).
Reference Rate is defined as the rate publicly
announced from time to time by Standard Chartered
Bank, New York Branch as its Reference Rate.
3
(iii) SCTSC will deliver invoices to Client prior to each
Repurchase Date setting forth the Resale Price
payable on the Repurchase Date and, if requested by
Client, containing a breakdown of the components of
the Resale Price.
3. On each date on which any amounts fall due for payment from either
SCTSC or Client under this Agreement for any 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.
4. 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 paragraph), 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.
5. 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.
6. Either party to this Agreement may terminate this Agreement immediately
upon written notice to the other party; provided, however, that no such
termination shall affect or nullify the rights and obligations of the
parties hereto with respect to any 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 all Transactions until such time that all amounts
owing under all Transactions shall have been duly paid or otherwise
discharged as contemplated by this Agreement.
7. In the event that
a) a petition in bankruptcy or for the appointment of a receiver;
custodian or trustee is filed by or against Client or any
affiliate or subsidiary, or any similar
4
event shall occur with respect to Client, or any of its
affiliates or subsidiaries, or any other proceeding under any
bankruptcy, reorganization, arrangement, readjustment of debt,
dissolution or liquidation law or statute of any jurisdiction,
whether now or hereafter in effect, shall be commenced by or
against the Client or any of its affiliates or subsidiaries,
or an order for relief shall be entered in any such
proceeding, or the Client or any of its affiliates or
subsidiaries, by any act or omission, shall indicate its
consent to, approval of or acquiescence in any such petition
or proceeding or shall generally not pay its debts as such
debts become due (each, a "Bankruptcy Event"); or
b) 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
c) Client shall fail to perform any covenant or agreement
contained herein or any of Client's obligations under any
Transaction effected under this Agreement; or
d) (i) Client or any affiliate or subsidiary shall fail to
perform or observe any term, condition or covenant of
any bond, note, debenture, loan agreement, indenture,
guaranty, trust agreement, mortgage or similar
instrument to which Client or any affiliate or
subsidiary is a party or by which it is bound, or by
which any of its properties or assets may be affected
(a "Debt Instrument"), so that, as a result of any
such failure to perform, the indebtedness included
therein or secured or covered thereby may be declared
due and payable prior to the date on which such
indebtedness would otherwise become due and payable;
or
(ii) Any event or condition referred to in any Debt
Instrument shall occur or fail to occur, so that, as
a result thereof, the indebtedness included therein
or secured or covered thereby may be declared due and
payable prior to the date on which such indebtedness
would otherwise become due and payable; or
(iii) Failure to pay any indebtedness for borrowed money
due at final maturity or pursuant to demand under any
Debt Instrument; provided that the provisions of the
preceding clauses (i), (ii) and (iii) shall not apply
to any Debt Instrument which relates to or evidences
indebtedness in a principal amount less than five
million Dollars (US$ 5,000,000); or
5
e) Any judgment against the Client or any affiliate or subsidiary
or any attachment, levy or execution against any of its
properties for an amount exceeding five million Dollars (US$
5,000,000) individually, or in the aggregate, shall remain
unpaid, unstayed on appeal, undischarged, unbonded or
undismissed for a period of thirty (30) days or more; or
f) Any event or condition shall occur which, in the opinion of
SCTSC, constitutes a material adverse change in the financial
position of Client or which causes SCTSC to believe that the
ability of Client to perform its obligations under this
Agreement, any Transaction Confirmation or any other agreement
delivered in connection with the Transactions 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,
(any of which shall hereinafter be known as an "Event of Default")
SCTSC shall immediately notify Client in writing of the "Event of
Default", (the date of such notice shall be the "Date of the Event of
Default"), and SCTSC shall have the right (in addition to any other
right or remedy SCTSC may have at law, in equity or under this
Agreement) to accelerate the Repurchase Dates of all Transactions for
which SCTSC has purchased the Commodity but has not received full
payment of the Resale Price ("Open Transaction") and all other
obligations of the Client hereunder to the Date of the Event of Default
and to sell without notice to Client or any third party (except as
required by law) any Commodity held by SCTSC under any Transaction and
to apply any amounts received therefor against the amounts owed by
Client to SCTSC under all Open Transactions and all other obligations
of the Client hereunder and to terminate this Agreement, as to all the
foregoing, without written notice (except as required by law) and
without protest, presentment, demand or other formality, all of which
are expressly waived by Client, provided that upon the occurrence of a
Bankruptcy Event all such Repurchase Dates and other obligations shall
be automatically accelerated without any notice from SCTSC. The Client
expressly acknowledges that because prices of the Commodities are
subject to rapid fluctuations and volatile changes during periods less
than one day, SCTSC may be required to exercise remedies hereunder
(including, without limitation, sale of Commodities) on less than five
days' notice, and Client agrees such notice shall be deemed reasonable.
Any amounts received by SCTSC in excess of the total amount owed by
Client to SCTSC with respect to all Open Transactions and all other
obligations of the Client hereunder shall be remitted promptly to
Client, and, conversely, Client shall remain liable to SCTSC for any
amount still owed to SCTSC under all Open Transactions
6
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 Paragraph 2 (d) (ii).
8. Client understands and agrees that Client is obligated to repurchase at
the Resale Price from SCTSC on the Repurchase Date any Commodity that
is the subject of any 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 any
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 any Transaction that is effected
under this Agreement is retained by Client.
9. 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 Resale 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 Eurodollar 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 any
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.
10. [Intentionally Omitted]
7
11. If specified in a Transaction Confirmation, Client shall maintain the
Hedge Account with a broker acceptable to SCTSC, and shall cause the
broker to enter into a Tri-Partite Agreement with the Client and SCTSC
in form and substance satisfactory to SCTSC. The Hedge Account shall
contain only such futures contracts or options as SCTSC shall approve.
12. 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 7.
13. 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.
14. Except as provided in Section 7, neither of SCTSC nor Client shall
assign or otherwise transfer any rights or obligations hereunder
without the prior written consent of the other, which consent shall not
be unreasonably withheld.
15. 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.
16. So long as Client has any outstanding Transactions with SCTSC, 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;
b) 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;
8
c) Client is a qualified individual or a business entity duly
organized, validly existing and in good standing under the
laws of the State of its incorporation or organization, and
Client 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, and is duly qualified in all jurisdictions in
which the character of its properties or the nature of its
business requires such qualifications and Client has taken all
necessary action to authorize, execute, deliver and perform
this Agreement and each 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) at the time of transfer, Client will be 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;
f) 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 SCTSC 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) is required in connection therewith or for SCTSC's
ownership, purchase or sale of any Commodity;
g) 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;
h) 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;
i) 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;
9
j) Client currently uses no business or trade names, except as
set forth on Schedule A annexed hereto, and covenants that it
will promptly notify SCTSC, in sufficient detail, of any
changes in, additions to, or deletions from the business or
trade names used by the Client;
k) 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;
l) all Commodities subject to any Transaction hereunder will have
been acquired by Client from non-affiliated third parties in
the ordinary course of business during the four month period
preceding the date of any Transaction with respect thereto;
and
m) Client agrees, only with respect to any Commodities which are
subject to any 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;
(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,
10
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; 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.
17. 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 listed in Exhibit B annexed hereto.
18. The parties will enter into each Transaction hereunder in consideration
of and in reliance upon the fact that all Transactions hereunder
constitute a single business and contractual relationship and have been
made in consideration of each other. Accordingly, payments made by
either party in respect of any Transaction shall be deemed to have been
made in consideration of payments in respect of any other Transaction
entered into hereunder.
19. In respect of this Agreement and each Transaction entered into from
time to time 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 any
Transactions hereunder constitute "settlement payments" as
that term is defined in the U.S. Bankruptcy Code.
11
20. Although the parties intend that all Transactions hereunder be
purchases and sales and not loans, in the event any Transaction is
deemed to be a loan or financing, Client shall be deemed to have
pledged and hereby pledges, assigns and grants to SCTSC as security for
the performance by Client of all of Client's obligations to 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 all Transactions hereunder 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.
21. Notwithstanding anything to the contrary contained herein or any
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 any 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 any 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 EACH 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. CLIENT HEREBY AGREES THAT ANY LEGAL ACTION OR
PROCEEDING AGAINST IT WITH RESPECT TO THIS AGREEMENT MAY BE BROUGHT IN
THE COURTS OF THE STATE OF NEW YORK IN THE CITY OF NEW YORK OR THE
UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK AS SCTSC
MAY ELECT, AND, BY EXECUTION AND DELIVERY HEREOF, THE CLIENT ACCEPTS
AND CONSENTS TO, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY
AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS AND
AGREES THAT SUCH JURISDICTION SHALL BE EXCLUSIVE, UNLESS WAIVED BY
SCTSC IN WRITING, WITH RESPECT TO ANY CLAIM, ACTION OR PROCEEDING
BROUGHT BY THE CLIENT AGAINST SCTSC AND ANY QUESTIONS RELATING TO
USURY. NOTHING HEREIN SHALL LIMIT
12
SCTSC'S RIGHT TO BRING PROCEEDINGS AGAINST THE CLIENT IN ANY OTHER
JURISDICTION. THE CLIENT HEREBY IRREVOCABLY WAIVES ANY OBJECTION,
INCLUDING WITHOUT LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE OR
BASED ON THE GROUNDS OF FORUM-NON-CONVENIENS WHICH THE CLIENT MAY NOW
OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH SUIT, ACTION OR
PROCEEDING IN SUCH RESPECTIVE JURISDICTION. AFTER REVIEWING THIS
PROVISION SPECIFICALLY WITH ITS RESPECTIVE COUNSEL, EACH OF THE CLIENT
AND SCTSC HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY
AND ALL RIGHTS EITHER SCTSC OR THE CLIENT MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION BASED ON, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH, THIS AGREEMENT OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF SCTSC OR
THE CLIENT. THIS PROVISION IS A MATERIAL INDUCEMENT FOR SCTSC TO ENTER
INTO TRANSACTIONS.
24. 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.
13
e) All representations, warranties and agreements made herein
shall survive the delivery of this Agreement and each
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.
Please signify your agreement to the terms and conditions set forth herein by
countersigning and returning to SCTSC the enclosed copy of this Agreement.
Very truly yours,
Standard Chartered Trade Services Corporation
By: /s/ Xxxxx X. Xxx By: /s/ Xxxxxxx X. Xxxxx XXX
--------------------------------------- -------------------------
Authorized Officer Authorized Officer
Name: Xxxxx X. Xxx Name: Xxxxxxx X. Xxxxx, III
------------------------------------- -----------------------
Title: Senior Vice President Title: President & CEO
------------------------------------ ---------------------
Agreed and accepted:
EOTT Energy Operating Limited Partnership
By: EOTT Energy Corp., its general partner
By: /s/ Xxxxx Xxxxx mms
-------------------------------
Authorized Officer
Name: Xxxxx Xxxxx
-----------------------------
Title: Treasurer
--------------------
14
EXHIBIT A TO 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: Commodity Repurchase Agreement (the "Agreement") dated February , 1998
Dear Sirs,
Reference is made to the Commodity Repurchase Agreement dated February ____,
1998 (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:
- Commodity Type and Location(s):
- Amount of Commodity:
- Total purchase price payable by SCTSC:
- Value Date:
- Repurchase Date:
- Hedge Account details:
- Resale Price:
- Account for payments to SCTSC: [*]
- Account for payments to Client:
15
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: By:
-------------------------------- -----------------------------------
Authorized Officer Authorized Officer
Name: Name:
------------------------------ ---------------------------------
Title: Title:
------------------------------ --------------------------------
Confirmed on the date first written above.
EOTT Energy Operating Limited Partnership
By: EOTT Energy Corp., its general partner
By:
--------------------------------
Authorized Officer
Name:
------------------------------
Title:
------------------------------
16
EXHIBIT B TO COMMODITY REPURCHASE AGREEMENT
LIST OF DOCUMENTS
1. Copy of partnership agreement certified by appropriate person
2. Copy of Partnership Certificate
3. Partnership Declaration and Agreement reflecting authorized signatories
4. If documents are executed by an officer of a corporate general partner:
Certificate as to Resolutions and Incumbency including the following
attachments:
a Certified copy of certificate of incorporation
b By-Laws certified by the Secretary
c Good standing certificate
5. Lien search reports - locations and names indicated in Schedule A
6. Negotiable title documents endorsed to the order of SCTSC
17
SCHEDULE A
INFORMATION TO BE PROVIDED BY THE CLIENT
- Client's place of business (chief executive office)
- Offices where Client books of account and records are kept (other than
off-site locations used for storage of documents)
- Places where Commodities are used, stored or located
- Client's business or trade name(s)
18
EXAMPLE OF THE WORDING FOR A HOLDING CERTIFICATE
[LETTERHEAD OF ISSUER]
HOLDING CERTIFICATE
Date _____________________
Standard Chartered Trade Services Corporation
0 Xxxxx Xxxxx 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:
-------------------------
19
