EXHIBIT 10.8
AMENDMENT NO. 1 TO
SECOND AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT
This AMENDMENT NO. 1 TO SECOND AMENDED AND RESTATED RECEIVABLES
PURCHASE AGREEMENT (this "Amendment") is made and dated as of August 29, 2003,
by and among (a) EOTT Energy Operating Limited Partnership (the "Seller") 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 Receivables Purchase Agreement (as defined below).
WHEREAS, the Seller, SCTSC and Standard Chartered Bank have entered
into that Second Amended and Restated Receivables Purchase Agreement, dated as
of February 11, 2003 (as amended, supplemented, restated or otherwise modified
from time to time, the "Receivables Purchase Agreement"), pursuant to which
SCTSC has agreed to purchase from the Seller certain receivables which are
payable by Xxxx Supply and Trading, L.P. (f/k/a Xxxx Petroleum Group L.P.); and
WHEREAS, the Seller has requested that SCTSC amend the Receivables
Purchase Agreement, and SCTSC, on the terms and subject to the conditions set
forth below, has agreed to amend the Receivables Purchase Agreement;
NOW, THEREFORE, in consideration of the foregoing premises, the Seller
and SCTSC agree as follows:
SECTION 1. AMENDMENTS TO THE RECEIVABLES PURCHASE AGREEMENT.
(a) Section 8(C) of the Receivables Purchase Agreement is hereby
amended and restated in its entirety to read as follows:
"(i) On any date which is four Business Days prior to the Initial
Maturity Date, at the option of the Seller and upon written notice
to SCTSC, the Seller may extend the Maturity Date from the Initial
Maturity Date until March 1, 2004 (the "First Extension Date"),
upon payment to SCTSC of a non-refundable extension fee in an
amount equal to one-half of one percent (0.5%) multiplied by the
Maximum Commitment as of the Initial Maturity Date.
(ii) If the Maturity 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 the Seller and upon written
notice to SCTSC, the Seller may extend the Maturity Date from the
First Extension Date until August 30, 2004, upon payment to SCTSC
of a non-refundable extension fee in an amount equal to one-half
of one percent (0.5%) multiplied by the Maximum Commitment as of
the First Extension Date."
SECTION 2. REPRESENTATION AND WARRANTIES. The Seller represents and
warrants to SCTSC as follows:
(a) The representations and warranties of the Seller
contained in the Receivables 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 the Seller of this
Amendment and the performance by the Seller 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 the Seller, do not and will not (a) contravene any
provision of the Seller's organizational documents or (b) conflict with
any law, regulation or contractual restriction binding on or affecting
the Seller.
(c) This Amendment and the Receivables Purchase
Agreement, as amended hereby, constitutes the legal, valid and binding
obligations of the Seller, 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 Seller Default has occurred and is continuing. As used herein,
"Default" shall mean any default, event or condition that would, with
the giving of any requisite notices and the passage of any requisite
periods of time, constitute an Event of Seller Default.
SECTION 3. CONDITION TO EFFECTIVENESS. This Amendment shall become
effective as of the date hereof (the "Effective Date") subject to satisfaction
of the following conditions precedent:
(a) Amendment Agreement. This Amendment shall have been
duly authorized, executed and delivered to SCTSC by SCTSC and the
Seller.
(b) Officer's Certificate. SCTSC shall have received from
the Seller a certificate, dated the Effective Date, of its Secretary as
to:
(i) evidence of all action then in full force and
effect authorizing the execution, delivery and performance of
the Amendment;
(ii) the incumbency and signatures of the officers of
the Seller authorized to act with respect to the Amendment;
and
2
(iii) any amendments to the organizational documents
of the Seller since such organizational documents were last
certified to SCTSC.
Such certificate shall be in form and substance satisfactory to SCTSC.
SECTION 4. EXPENSES. The Seller 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 Receivables
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.
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]
3
IN WITNESS WHEREOF, the undersigned have duly executed this Amendment
as of the date first set forth above.
EOTT ENERGY OPERATING LIMITED
PARTNERSHIP
By: EOTT ENERGY GENERAL
PARTNER, L.L.C., its General
Partner
/s/ Xxxxx Xxxxxx
---------------------------
Xxxxx Xxxxxx
Vice President and Treasurer
STANDARD CHARTERED TRADE
SERVICES CORPORATION
By: /s/ Xxxxx Xxxxxxx
---------------------------------
Name: Xxxxx Xxxxxxx
Title: Assistant Vice President
By: /s/ Millet
---------------------------------
Name: Millet
Title: Chief Operating Officer
ACKNOWLEDGED BY:
STANDARD CHARTERED BANK,
as Collateral Agent
By: /s/ Xxxxxxxxx Xxxxxx
---------------------------------
Name: Xxxxxxxxx Xxxxxx
Title: Senior Vice President
4
