EXHIBIT 10.45
EXECUTION COPY
SECOND AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT
This SECOND AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT (the
"Agreement"), dated as of February 11, 2003, by and among (1) EOTT Energy
Operating Limited Partnership (the "Seller"), 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 Amended and Restated Receivables Purchase
Agreement, dated as of October 18, 2002, by and among the Seller, SCTSC and the
Collateral Agent (the "Prior Agreement").
WHEREAS, the Seller is engaged in the sale of certain goods ("Goods") to Xxxx
Supply and Trading, L.P. (f/k/a Xxxx Petroleum Group L.P.) (the "Buyer") (as
indicated in Appendix "A"); and
WHEREAS, pursuant to the Prior Agreement, SCTSC purchased from the Seller
certain receivables which are payable by the Buyer on March 20, 2003 and April
21, 2003 (the "Existing Receivables"); and
WHEREAS, the sales of Goods by the Seller to the Buyer will give rise to
receivable(s) (which, together with the Existing Receivables, shall constitute
"Qualified Receivable(s)") which are current and evidenced by Pro-Forma
Invoice(s) and Final Invoice(s) (as defined below in Section 1.A) and title
documents, as may be required by SCTSC, and in form and content acceptable to
SCTSC, such as transport documents, pipeline tickets, receipts and/or
nominations and truck or marine bills of lading; and
WHEREAS, the payment of such Qualified Receivable(s) shall be due to the Seller
on due dates which apply to each of the Qualified Receivable(s); and
WHEREAS, the Seller has requested that SCTSC purchase from the Seller, from time
to time, all of its rights, title and interest in Qualified Receivable(s), up to
the Maximum Commitment (as defined below), in accordance with the terms and
conditions set forth in this Agreement which include recourse back to the Seller
in the circumstances outlined below;
WHEREAS, the Buyer will remit payment, in accordance with instructions provided
by the Seller, as per Appendix "B", to Standard Chartered Bank, New York Branch,
for the EOTT Account (as defined below), with value on the due date of each
Invoice (as defined below). The due date of each Invoice shall be referred to
hereafter as an "Invoice Due Date";
WHEREAS, each of the Seller and SCTSC wishes to continue the Prior Agreement by
extending the Maturity Date (as defined in the Prior Agreement) and amend
certain other provisions of the Prior Agreement on the terms and conditions set
forth herein;
NOW, THEREFORE, the Seller and SCTSC do hereby agree as follows:
1. Transaction Origination
A. Initiation of each Transaction
From time to time, the Seller will cause copies of the
pro-forma and/or the final invoices to the Buyer (each an
"Invoice" or, as the context may require, a "Pro-Forma
Invoice" or a "Final Invoice") and the relevant title
documents, as may be required by nominations, truck xxxx(s) of
lading, marine xxxx(s) of lading or any other title document
as may be acceptable to SCTSC, to be delivered to SCTSC by
courier, which Invoices shall contain information required by
SCTSC, including a description of the Goods, their quantity,
type, value and other relevant terms and conditions. Payment
terms on the Seller's Invoices will be for a period not to
exceed fifty two (52) days from the date of the Seller's
Pro-Forma Invoice. A Final Invoice will substitute each
Pro-Forma Invoice within a forty-nine (49) day period of time
from the date the Pro-Forma Invoice was issued. The Final
Invoice is the invoice issued by the Seller to the Buyer,
subsequent to the Pro-Forma Invoice which indicates the total
amount of Goods actually delivered to the Buyer within an
agreed period of time and the amount due for payment on the
Invoice Due Date. The Invoice Due Date shall be on the
twentieth (20th) day of each month (or, if such day is not a
Business Day and (x) falls on a Saturday, the next preceding
Business Day, or (y) does not fall on a Saturday, the next
succeeding Business Day). The aggregate amount outstanding for
all Qualified Receivable(s) as of the Effective Date (as
defined below) shall not exceed One Hundred Million U.S.
Dollars ($100,000,000) (the "Maximum Commitment").
B. SCTSC Notice of Qualified Receivable(s)
SCTSC may accept the Seller's Transaction Confirmation in the
form of Appendix "C-1", annexed, if the Goods and terms
covering the Qualified Receivable(s) are acceptable to SCTSC
and if it appears to SCTSC that all conditions set forth in
this Agreement have been met. SCTSC shall evidence any such
acceptance by returning a copy of the Seller's Transaction
Confirmation marked "Accepted on (date) by (signature)" by
telefax to the Seller.
C. Commitment to Purchase
If at the time the Seller proposes that SCTSC purchase any
Qualified Receivable(s), the following conditions have all
been satisfied, SCTSC will purchase any such Qualified
Receivable(s):
(i) all conditions precedent to Extensions of Credit
under the Letter of Credit Agreement (as defined
below) shall be satisfied or waived by the LC Agent;
(ii) all other conditions precedent herein shall be
satisfied or waived by SCTSC;
(iii) each of the representations and warranties of the
Seller contained in this Agreement or in any document
or instrument delivered pursuant to or in
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connection with this Agreement shall be true as of
the time which they were made and shall also be true
at and as of the time the Seller proposes that SCTSC
purchase any Qualified Receivable(s), 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); and
(iv) no Event of Seller Default shall have occurred and be
continuing.
As used herein, "Letter of Credit Agreement" means that
certain Letter of Credit Agreement, dated as of the date
hereof, by and among the Seller, EOTT Energy Canada Limited
Partnership ("EOTT Canada"), EOTT Energy Liquids, L.P. ("EOTT
Liquids"), EOTT Energy Pipeline Limited Partnership ("EOTT
Pipeline"), EOTT Energy LLC ("EOTT LLC"), 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 Letter of Credit Agreement.
D. Payment to the Seller by SCTSC
(i) Upon purchase of any Qualified Receivable(s), SCTSC
shall pay to the Seller an amount equal to 90% of the
aggregate face value of such Qualified Receivable(s)
indicated on the applicable Pro-Forma Invoice (the
"Purchase Price") less the Discount Fee, handling
fees and any other fees or expenses owing to SCTSC as
described in Section 2 of this Agreement. Within
forty-nine (49) days after the Seller's issuance of
the Pro-Forma Invoice, the Seller will issue its
corresponding Final Invoice to the Buyer. Each Final
Invoice will replace the corresponding Pro-Forma
Invoice. As a condition precedent for SCTSC's
payment, the Seller hereby sells, assigns and
transfers over to SCTSC its entire title and interest
in and right to receive payment for each Qualified
Receivable, all contract rights with respect thereto
and all of the Seller's rights to the Goods and
property represented thereby.
(ii) From time to time, to the extent, if any, that the
Maximum Commitment exceeds 90% of the aggregate
amount due for payment on the applicable Invoice Due
Date for all Qualified Receivable(s), the Seller
shall be entitled to post a Letter of Credit (subject
to applicability of availability restrictions in the
Letter of Credit Agreement) in a stated amount equal
to such excess amount for the benefit of SCTSC. Such
Letter of Credit shall have an expiry date no earlier
than one month from the date of issuance and shall be
in form and substance satisfactory to SCTSC. Upon
receipt of such Letter of Credit, SCTSC shall pay to
the Seller an amount equal to 100% of the stated
amount of such Letter of Credit (the "Additional
Purchase") less the Discount Fee and any other fees
or expenses owing to SCTSC as described in Section 2
of this Agreement (without duplication of the fees or
expenses referred to in Section 1.C(i) above).
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E. Payment to SCTSC by the Buyer
With respect of each Qualified Receivable, the Buyer will be
required to remit payment for the full amount of the Final
Invoice, in accordance with instructions provided by the
Seller as per Appendix "B" and as per each Final Invoice, to
Standard Chartered Bank, New York Branch (the "Bank"), ABA
Number 000000000, for the account of EOTT Energy Operating
Limited Partnership, Account No. 0000-000000-000, Attention:
Xx. Xxxxx Xxxxxxx (the "EOTT Account"). The EOTT Account will
be subject to a Blocked Account Agreement under which the
Seller authorizes the Bank to remit such funds credited to the
EOTT Account, from time to time to Standard Chartered Bank,
New York Branch, ABA Number 000000000, for the account of
Standard Chartered Trade Services Corporation, Account No.
0000-000000-000, Attention: Xx. Xxxxx Xxxxxxx (the "SCTSC
Account") in order to repay SCTSC for the Purchase Price of
such Qualified Receivable and any fees, costs, expenses and
other amounts owing to SCTSC pursuant to this Agreement in
respect of such Qualified Receivable.
The balance remaining in the SCTSC Account shall be applied as
follows:
(1) Provided that no Event of Seller Default has occurred
and is continuing upon receipt of such funds in the SCTSC
Account, SCTSC shall promptly remit such balance to the
Collateral Agent; and
(2) In the event that an Event of Seller Default has
occurred and is continuing upon receipt of such funds in the
SCTSC Account, SCTSC shall retain such balance until the
Termination Date, and at any time prior thereto, may apply
such balance to cover any amounts due and owing to SCTSC under
(a) this Agreement, with respect to any other Qualified
Receivables, and (b) the Crude Oil Purchase Agreement. Upon
the Termination Date, after application of all amounts owing
to SCTSC pursuant to this Agreement, SCTSC shall promptly
remit to the Collateral Agent any remaining balance in the
SCTSC Account.
2. Fees and Interest
A. Extension Fee
On the date hereof, the Seller will pay SCTSC a non-refundable
extension fee in an amount equal to one percent (1.0%)
multiplied by (a) $100,000,000 and (b) a ratio (i) the
numerator of which is the number of days measured from the
Effective Date until the date immediately prior to the Initial
Maturity Date and (ii) the denominator of which is 365 days.
B. Handling Fee
The Seller shall pay to SCTSC a handling fee ("Handling Fee")
on all Qualified Receivable(s) purchased by SCTSC hereunder in
a flat amount of Five Hundred U.S. Dollars ($500), on each of
the Seller's Pro-Forma Invoices purchased by
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SCTSC. Such Handling Fee shall be deducted from any payment
due to the Seller.
C. Discount Fee
The Seller agrees to pay SCTSC a discount fee (the "Discount
Fee") on (i) the outstanding Qualified Receivable(s) purchased
and (ii) the Additional Purchase, in each case calculated at
the applicable LIBOR (defined below) plus the Applicable
Margin. As used herein, "Applicable Margin" shall mean, if the
Maturity Date is on the Initial Maturity Date, three percent
(3.0%) per annum, and if the Maturity Date is extended
pursuant to Section 8.C below, seven percent (7.0%) per annum.
As used herein, "Initial Maturity Date" shall the date which
is six (6) calendar months after the Effective Date.
The Discount Fee due by the Seller to SCTSC shall be
calculated as follows: (x) with respect to the outstanding
Qualified Receivable(s) purchased, on the aggregate Purchase
Price of the Qualified Receivable(s) purchased by SCTSC from
the date payment was made to the Seller to the Invoice Due
Date, and (y) with respect to the Additional Purchase, on the
stated amount of the applicable Letters of Credit, in each
case calculated on the basis of a 360 day year and paid on the
actual number of days elapsed. SCTSC will deduct the
applicable Discount Fee from its payment due to the Seller,
plus any and all other fees and incidental expenses incurred
or anticipated by SCTSC (including, without limitation, legal
and other fees) in obtaining payment from the Buyer. The
Discount Fee as specified above will apply until (A) the
Invoice Due Date for the Qualified Receivable(s) purchased and
(B) the expiry date for the Letters of Credit supporting the
Additional Purchases, as applicable.
LIBOR is defined as the rate per annum at which deposits in US
Dollars for the period comparable to the period from the date
SCTSC is to make payment to the Seller to the date payment is
due to SCTSC from the Buyer are offered to SCTSC by the Bank,
as quoted at 11:00 a.m. New York time, for value two (2)
Business Days (as defined herein) prior to the date when
payment is made by SCTSC to the Seller, provided, however,
that if the Bank cannot offer SCTSC a LIBOR rate calculated as
set forth above, the Seller agrees that the LIBOR rate shall
be defined as such other rate as the Bank shall determine as
its cost of funds.
As used herein, "Business Day" shall mean a day on which SCTSC
and commercial banks are open for business in New York, New
York.
D. Excess Costs
Any Qualified Receivable(s) not paid on the Invoice Due Date
by Buyer shall be subject to a penalty, payable by the Seller
within one Business Day following demand, to cover any excess
costs incurred by SCTSC as a result of any delay in the Buyer
making payment by the Invoice Due Date. The Seller shall have
the responsibility of collecting such excess costs from the
Buyer. The Seller hereby assigns and transfers to SCTSC all
such amounts the Seller shall receive from the
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Buyer in coverage of such excess costs. The Seller shall set
the penalty rate for such excess costs, but it shall be no
less than the Bank's applicable overnight Reference Rate in
effect from time to time plus a margin of (i) if the Maturity
Date is on the Initial Maturity Date, two percent (2.0%) per
annum and (ii) if the Maturity Date is extended pursuant to
Section 8.C below, six percent (6.0%) per annum. Such penalty
rate shall be based on the face amount of the Final Invoice
from the Invoice Due Date until full repayment thereof has
been received by SCTSC from the Buyer.
"Reference Rate" is defined as the rate established from time
to time by the Bank as its Reference Rate, as quoted at 11:00
a.m. New York time.
Notwithstanding the above, the Seller shall not be obligated
to collect or pay any such penalties hereunder (except to the
extent funds for such penalties are actually received by the
Seller from the Buyer) for any portion of the Qualified
Receivables deemed Uncollectible (as defined herein). A
Qualified Receivable will be deemed "Uncollectible" if (i) it
has been unpaid for more than 120 days after the due date
stated on the Final Invoice, (ii) it has been written off by
SCTSC as uncollectible or should have been written off in
accordance with SCTSC's sole and absolute credit
determination, (iii) the Buyer becomes a debtor in bankruptcy
proceedings or is otherwise judicially determined to be
insolvent, or (iv) the Buyer acknowledges in writing that it
is insolvent or financially unable to pay such Qualified
Receivable(s).
E. Mis-directed Payments
In the event of funds being forwarded in error by the Buyer
directly to another account of the Seller rather than to the
SCTSC Account, the Seller is deemed to hold these funds in
trust for SCTSC and to immediately remit said payment to the
SCTSC Account. The Seller will pay SCTSC a rate of interest
equal to the Bank's applicable overnight Reference Rate plus
the Applicable Margin, based on a 360 day year and paid on the
actual number of days elapsed, for the period between receipt
of payment by the Seller and the date such funds are received
in full by SCTSC.
3. Reduction of Maximum Commitment; Mandatory and Optional Prepayment.
A. If the Seller is obligated to repurchase all or a portion of
the Qualified Receivables prior to the Maturity Date in
accordance with Section 3. B below, on the Mandatory
Prepayment Date (as defined below), the Maximum Commitment
shall automatically and permanently be reduced by an amount
equal to the amount of such repurchase.
B. If at any time any Designated Assets are sold in accordance
with the Letter of Credit Agreement, the Seller shall, in
accordance with the Intercreditor Agreement, cause all the
proceeds of such sale (net of costs of sale) (the "Net Sale
Proceeds") be paid to the Collateral Agent for deposit in the
Debt Service Payment Account (as defined in the Intercreditor
Agreement). Upon receipt, the
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Collateral Agent shall, on behalf of the Seller, make a
mandatory prepayment of the amounts owing by the Seller to
SCTSC under this Agreement in accordance with the
Intercreditor Agreement. The date of such mandatory prepayment
shall be referred to as the "Mandatory Prepayment Date".
C. The Seller may, from time to time on any Business Day
occurring after the Effective Date, make a voluntary
prepayment, in whole or in part, of the amounts owing by the
Seller to SCTSC under this Agreement.
D. With respect to any Qualified Receivables repurchased by the
Seller from SCTSC pursuant to Sections 3.B and 3.C above,
SCTSC agrees that it shall reasonably co-operate with the
Seller in providing instructions to the Buyer to remit payment
for the applicable amount of the Final Invoice for such
Qualified Receivables directly to the Seller. Notwithstanding
the above, SCTSC shall not have any responsibility to the
Seller to collect any portion of such Qualified Receivables
from the Buyer.
4. Role and Responsibility of the Seller
A. Relationship of Parties
Neither the Seller nor SCTSC shall be deemed a partner, agent,
representative or joint venturer of the other.
B. Covenants, Representations and Warranties of the Seller
The Seller agrees, represents, warrants with and to SCTSC both
now and with each transaction contemplated hereunder that:
(i) it is a limited partnership duly organized under the
laws of the state of Delaware, and has the full
power, authority and legal right to incur and to
perform its obligations under this Agreement;
(ii) it has taken all required action necessary to
authorize the due execution and delivery by its duly
appointed officers of this Agreement;
(iii) the officers executing this Agreement and any
Appendix are duly authorized and empowered to execute
said documents on behalf of the Seller;
(iv) no authorization or approval or other action by, and
no notice to or filing with, any governmental
authority or regulatory body is required for the due
execution, delivery and performance by it of this
Agreement;
(v) the execution, delivery and performance by the Seller
of this Agreement does not contravene any law,
regulation or contractual restriction binding on or
affecting the Seller and that the Buyer is a party
with which the Seller is permitted to transact
business pursuant to all applicable laws, regulations
and rulings of both the United States and its
agencies and the
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State in which the Seller maintains its principal
place of business and, in particular, to the
regulations of the U.S. Treasury Department's Office
of Foreign Assets Control;
(vi) to the best of its knowledge there exist no material
disputes or discrepancies outstanding between the
Seller and the Buyer relating to prior transactions
(except to the extent that the Seller advises SCTSC
of such a dispute and SCTSC chooses in its sole
discretion to waive such dispute or discrepancy
solely for the purpose of purchasing a Qualified
Receivable);
(vii) each of the Qualified Receivable(s) is a legal,
binding and assignable by the Seller and is
enforceable in accordance with is respective terms;
(viii) each of the Qualified Receivable(s) is or will be
unaltered and genuine and the Seller has exclusive
and unencumbered title to same;
(ix) except for liens in favor of the Collateral Agent as
provided in the Intercreditor Agreement and the other
Security Documents, each of the Qualified
Receivable(s) will not have been sold, assigned,
transferred or encumbered by a lien or security
interest of any nature, directly or indirectly, prior
to its acceptance by SCTSC;
(x) the Seller is not prohibited by any security, loan or
other agreement from selling the Qualified
Receivable(s) as contemplated herein and such sales
do not conflict with any agreement binding on the
Seller;
(xi) to the best of the Seller's knowledge, the Buyer has
not asserted any claim, defense or right of offset to
payment of the Qualified Receivable(s), nor does it
have grounds to make such assertions; and promptly
upon the Seller learning of any such claim, defense
or right of offset, it will notify SCTSC thereof in
writing;
(xii) each of the Invoices and title documents, such as
transport documents, pipeline tickets, receipts or
nominations, truck or marine xxxx(s) of lading, as
may be required by SCTSC, is or will be unaltered and
genuine and the Seller has exclusive and unencumbered
title to same;
(xiii) the Seller agrees to compensate SCTSC for all costs,
claims, losses and expenses (including, but not
limited to legal fees) incurred or suffered by SCTSC
as a result of any transaction or as a result of the
Seller's breach of any representation or warranty
contained herein or the Seller's failure to comply
with any of the terms or conditions contained herein;
(xiv) the transactions under this Agreement are intended to
be true sales; however, for precautionary purposes,
SCTSC is granted hereby a security interest in and a
right of set-off with respect to all Qualified
Receivable(s) which have been purchased by SCTSC and
in all contract rights and proceeds related thereto,
all as security for payment and performance of all
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of the Seller'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. SCTSC may file such financing
statements as it elects to perfect its security
interest;
(xv) it will cooperate fully with SCTSC in taking any and
all actions requested by SCTSC in collecting all
amounts owed by the Buyer which the Seller is allowed
to perform under its contract with the Buyer,
including, and not limited to, delaying or not
shipping future deliveries of Goods to the Buyer
unless (and until) SCTSC has been paid in full;
(xvi) SCTSC shall have the right to request, and the Seller
shall provide promptly, such information about the
purchase, delivery and terminalling of the Goods as
SCTSC may reasonably request and SCTSC may, upon
reasonable advance notice, inspect the Goods and the
Seller's records pertaining to the Goods;
(xvii) the guarantee issued in favor of the Seller by Xxxx
Industries Inc. (the "Xxxx Guarantee"), which
guarantees all obligations of the Buyer to the Seller
is in full force and effect on the date of this
Agreement and will continue to be in full force and
effect as long as any amounts are due and owing to
SCTSC with respect to any Qualified Receivable(s); no
amendments to the Xxxx Guarantee are permitted
without the prior written consent of SCTSC; and
(xviii) the Seller agrees to issue to the Buyer a Final
Invoice within forty-nine (49) days after the
issuance of the corresponding Pro-Forma Invoice, but
not later than the eighteenth (18th) day of each
month, and to provide SCTSC with a copy thereof on
the same day as it is issued to the Buyer.
C. Indemnity
The Seller acknowledges that SCTSC shall have no liability for
any product liability claim from the Seller, the Buyer or any
other person relating to or arising out of the Goods,
including but not limited to claims relating to the
performance (or nonperformance) of the Seller, the quality of
the Goods supplied, the contents of any shipments and/or any
damage or loss (economic or physical) suffered by the Buyer or
any other person arising out of the Goods supplied. The Seller
agrees to bear the full risk of defects in or due to the
nonconformity of the Goods. The Seller further agrees that it
shall hold SCTSC harmless and indemnify SCTSC from any and all
claims of the Buyer or any third party relating to any product
liability and/or damage claim of any party or person arising
from the non-performance of the Seller, from defects in the
Goods or injury or loss arising from the Goods. The Seller
further acknowledges that SCTSC shall be excused from
performing any obligations hereunder which are prevented or
delayed by any occurrence not within its effective control
including, without limitation, destruction or damage to the
Goods, strikes, floods, fire, accidents, Acts of God or any
governmental orders or regulations.
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D. On each date on which any amounts fall due for payment from
either SCTSC or the Seller under this Agreement for any
transaction, the party required to make such payment shall
effect such payment denominated in U.S. Dollars ("Dollars") by
payment in Dollars and in immediately available funds (or such
funds as may at the time be customary in the City of New York
for settlement in the City of New York of banking transactions
in Dollars) to such account in the United States of the other
party as such party may designate to the other in writing; or,
where such amount is denominated in any other currency, by
payment in such other currency and in immediately available
funds (or in such funds as may at the time be customary in the
city of delivery of such funds for the settlement in such city
of international banking transactions) to such account of the
other party as shall be specified by it in the Transaction
Confirmation.
E. All payments hereunder by the Buyer or by the Seller to SCTSC
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 the Buyer is required by
law to make any deduction or any withholding is required to be
made, the Seller shall ensure that the relevant payment shall
be increased to the extent necessary to ensure that, after the
making of such deduction or withholding, 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. Event of Seller Default
Each of the following events are herein defined as an "Event of Seller
Default":
A. any representation, warranty or statement made in writing by
the Seller (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
B. the Seller shall fail to perform any covenant or agreement
contained herein or any of its obligations under this
Agreement or with respect to the Goods or the underlying
contract pertaining thereto; or
C. an "Event of Default" shall have occurred under and as defined
in the Letter of Credit Agreement.
The Seller shall immediately notify SCTSC in writing of the occurrence
of an Event of Seller Default or any event that, with the passage of
time or the giving of notice, will constitute an Event of Seller
Default ("Default"). During the continuance of an Event of Seller
Default, SCTSC shall have the right (in addition to any other right or
remedy SCTSC may have at law, in equity or under this Agreement,
subject to the Intercreditor Agreement) to demand that the Seller
deliver immediately, at the request of SCTSC to it
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or to any third party nominated by SCTSC for collection by such party
(which may be an affiliate of SCTSC), any Qualified Receivable(s) held
by SCTSC under any transaction.
6. Event of Buyer Default
Each of the following events are herein defined as the "Event of Buyer
Default":
A. the filing of a petition in bankruptcy or for the appointment
of a receiver by or against the Buyer or any similar event; or
B. the Buyer's failure to pay within one Business Day after the
Invoice Due Date for the full amount of the Final Invoice to
SCTSC or to the Seller, as the case may be, by the Invoice Due
Date or to discharge any of its other obligations with respect
to the Goods or the underlying contract pertaining thereto for
any reason whatsoever or for no reason, including any claim
that the Goods are, in whole or in part, not suitable or not
consistent with the underlying contract of sale.
The Seller shall immediately notify SCTSC in writing of the occurrence
of an Event of Buyer Default or any event that, with the passage of
time or the giving of notice, will constitute an Event of Buyer
Default. If the Buyer's bankruptcy or failure to pay is due to any of
the causes listed in Section 9 of this Agreement, SCTSC shall have the
same limited recourse rights against the Seller as are described in
Section 9 below.
7. Conditions Precedent to Effectiveness of Agreement
As a condition precedent to the effectiveness of this Agreement, the
Seller shall have caused to be delivered to SCTSC, in form and
substance satisfactory to SCTSC, (a) a counterpart of this Agreement
executed by the parties hereto, (b) a copy of resolutions of the Board
of Directors or other authorizing documents of the Seller, in form and
substance satisfactory to SCTSC, approving the execution and
performance of the Agreement, certified by the Secretary or other
appropriate officer of the Seller, (c) an incumbency certificate
executed by the Secretary or other appropriate officer of the Seller
certifying the names and signatures of the officers of the Seller
authorized to execute and act under this Agreement, (d) a duly executed
Blocked Account Agreement between the Seller, SCTSC and the Bank, (e) a
copy of the Xxxx Guarantee and the Oil Supply Contract (referred to in
Section 9 below), and (f) a copy of the underlying contract pertaining
to the sale of Goods from the Seller to the Buyer, if any until the
date immediate prior to the Initial Maturity Date. In addition, the
Seller shall have paid to SCTSC, on or prior to the date hereof, (x)
any accrued and unpaid facility fee owing to SCTSC under Section 6 of
the Prior Agreement and (y) the extension fee referred to in Section
2.A. The date on which all of the above conditions precedent have been
satisfied, in each case on or prior to March 31, 2003, shall be the
"Effective Date".
8. Term of the Agreement
A. This Agreement shall terminate:
(i) At the sole discretion of the Seller, immediately
upon written notice given by the Seller to SCTSC;
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(ii) Upon the earliest to occur of (x) an Event of Seller
Default, at SCTSC's election, (y) an Event of Buyer
Default, at SCTSC's election, and (z) the Initial
Maturity Date, unless extended pursuant to Section
8.C below (the "Maturity Date"); or
(iii) Upon payment in full in cash by the Seller of all of
the obligations owing to SCTSC hereunder.
The date that this Agreement terminates shall be referred to
as the "Termination Date".
B. Notwithstanding anything else contained herein, the
termination of this Agreement shall not affect the rights or
obligations of either party hereto with respect to any
Qualified Receivable(s) purchased prior to the effective date
of termination, unless SCTSC has not purchased the Qualified
Receivable(s) from the Seller, in which case SCTSC may treat
the purchase of said Qualified Receivable(s) as rescinded
without further obligation or liability of SCTSC.
C. 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 a date no later than the
earlier of (a) twelve (12) calendar months after the Initial
Maturity Date and (b) August 30, 2004, upon payment to SCTSC
of a non-refundable extension fee in an amount equal to one
percent (1.0%) multiplied by the Maximum Commitment as of the
Initial Maturity Date.
9. SCTSC Remedies
The sale of the Qualified Receivable(s) herein is with limited recourse
to the Seller. This right of limited recourse shall apply in the event
of:
a) rejection of documents presented to the Buyer and/or
assertion by the Buyer of any commercial disputes concerning quantity,
quality, specifications, suitability/merchantability or performance of
the Goods, or the institution of any litigation, counterclaims,
set-offs or write-offs, or
b) assertion by the Buyer that the Pro-Forma Invoice,
the Final Invoice and/or the Crude Oil Supply and Terminalling
Agreement dated December 1, 1998 (as same may have been amended) (the
"Oil Supply Contract") between the Seller and the Buyer that relates to
a Qualified Receivable(s) was not adhered to, or
c) the occurrence of any of the events or circumstances
listed in Article 8 of the Oil Supply Contract or the termination or
material amendment or modification to that Contract, or
d) any one of the covenants, representations or
warranties made by the Seller in this Agreement proving to have been
incorrect in any material respect, or
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e) the Goods under any Qualified Receivable shall have
been lost, destroyed or subjected to an event which could create an
insurance claim of any nature, or
f) if the Seller fails to issue to the Buyer (or the
Buyer claims non-receipt of) a Final Invoice within forty-nine (49)
days from the date of the Pro-Forma Invoice.
Upon the occurrence of any of the foregoing circumstances or in the
event of non-acceptance of the Goods by the Buyer for any reason (or
for no reason), the Seller shall, upon demand, immediately return to
SCTSC any monies received from SCTSC relating to said transaction,
together with interest calculated at the Bank's Reference Rate in
effect from time to time plus the Applicable Margin, from the date of
SCTSC's payment to the Seller to the date of SCTSC's receipt of full
payment. SCTSC shall, upon receipt of payment in full from the Seller,
assign all of its rights, title and interest in the Goods and/or assign
any evidence of debt from the Buyer relating to said transaction to the
Seller and shall have no further liability or obligation with respect
to the transaction. The Seller shall be fully liable for any claims,
costs, fines, levies, duties, interests, fees and/or penalties arising
out of the Buyer's failure to accept the Goods, provided, however, that
the Seller shall reimburse SCTSC for any reasonable costs and fees
SCTSC may incur relating to the Buyer's non-acceptance of the Goods
and/or fees and costs incurred in attempting to seek payment from the
Buyer.
10. Miscellaneous
A. Notices
All notices, requests, reports, information or demands shall
be effective when given or made through telex or telefax, two
days after deposit in the mails, or upon hand delivery, at the
following addresses (or at such other addresses as either
party may notify to the other in writing):
To the Seller:
Name: EOTT Energy Operating Limited Partnership
Address: X.X. Xxx 0000
Xxxxxxx, Xxxxx 00000-0000
Telefax: (000) 000-0000
To SCTSC:
Name: Standard Chartered Trade Services
Corporation
Address: Xxx Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx Xxxxxxx, Assistant Vice President
Telefax: (000) 000-0000
B. Continuous Conditions
SCTSC's obligations shall be subject at all times to appropriate and
satisfactory credit support documentation relating to the Buyer being
provided to SCTSC. The Seller agrees that it is familiar with the Buyer
and that Goods provided to the Buyer by the Seller shall continue to
meet all requirements of the Buyer.
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C. Further Assurances
Each party hereto 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; (ii) upon execution of this
Agreement by or on behalf of such party, this Agreement
constitutes a legal, valid and binding obligation of such
party; and (iii) execution and delivery by such party of this
Agreement and the consummation of each transaction herein
contemplated by such party is binding upon such party. In
addition, the Seller represents and warrants that none of the
Qualified Receivable(s) which are the subject of any
transaction hereunder will be, at the time of such transaction
or thereafter, subject to any lien or security interest held
by any third party (other than SCTSC), including, but not
limited to, any security filing under the Uniform Commercial
Code or any similar filing and that the Seller is the sole and
beneficial owner of all Qualified Receivable(s), except for
liens in favor of the Collateral Agent as provided in the
Intercreditor Agreement and the other Security Documents.
D. Integration
This Agreement shall supersede any prior agreements or
understandings between the parties as to the subject matter
hereof. The parties may from time to time elect by mutual
agreement to enter into transactions on terms different from
those contained herein, provided, that any such agreement
shall be evidenced by a writing signed by both parties.
E. Waivers and Amendments
Any waiver of any right hereunder shall be in writing and
shall be effective when signed by the party granting the
waiver. No amendment of any provision of this Agreement shall
be effective unless it is in writing and is signed by the
Seller and SCTSC. No such amendment shall take effect during
the pendency of the Case absent the entry of an order
authorizing such amendment.
F. Taxes
All payments relating to the transactions contemplated by this
Agreement shall be made free and clear of and without
deduction or withholding for any present or future taxes,
levies, imposts or duties imposed by any governmental
authority in any jurisdiction or by any political subdivision
or taxing authority thereof or therein. If any such taxes,
levies, imposts or duties are required to be withheld from any
payments made hereunder, the amounts so payable shall be
increased to the extent necessary to yield to SCTSC (after
deduction of all such taxes, levies, imposts or duties)
interest or any such other amounts as specified herein.
G. Assignment and Delegation
The Seller may not, without the consent of SCTSC, assign or
delegate any of its respective rights or obligations under
this Agreement. Provided that no Default or
14
Event of Seller Default shall have occurred and be continuing,
so long as the aggregate credit exposure of Standard Chartered
and SCTSC under the Credit Agreement and the Purchase
Agreements is reduced to $200,000,000 or less, SCTSC (and its
assigns) may, with the consent of the Seller (which consent
shall not be unreasonably withheld or delayed), assign any or
all of its rights and obligations under this Agreement to any
Eligible Assignee. Otherwise, upon consultation with EOTT OLP,
SCTSC (and its assigns) may assign any or all of its rights
and obligations under this Agreement to any Eligible Assignee.
As used herein, "Eligible Assignee" shall mean any commercial
bank, savings and loan association, savings bank, finance
company, insurance company, pension fund, mutual fund
investment company, investment fund, financial institution, or
other institutional lender (whether a corporation, partnership
or other entity) acceptable to SCTSC.
The parties hereto agree that this Agreement shall inure to
the benefit of any successor to such parties.
H. Agreement not Exclusive
The rights to indemnification and recourse to the Seller
provided to SCTSC under this Agreement shall be independent
of, and neither subject to nor in derogation of, any other
rights to which SCTSC may be entitled, including, without
limitation, any such rights which may be assertable under the
General Corporation Law of New York.
I. Severability
Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall not invalidate the
remaining provisions hereof, which shall remain in full force
and effect, and any such prohibition or unenforceability in
any jurisdiction shall not invalidate or render unenforceable
such provision in any other jurisdiction.
J. Disclaimer of Warranty
SCTSC does not make and shall not be deemed to have made any
representation or warranty of any kind in favor of the Buyer
or any other person, including without limitation: any
representation concerning the title of SCTSC to the Goods; any
representation that SCTSC is a manufacturer, merchant or
dealer in goods; any representation or warranty, express or
implied, as to the merchantability, compliance with
specifications, design, operation, freedom from patent or
trademark infringement, absence of latent defects or fitness
for use of the Goods, or any other representations, express or
implied, with respect to the Goods. SCTSC shall not be liable
for any consequential damages.
K. Governing Law and Jurisdiction
THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED UNDER THE LAWS
OF THE STATE OF NEW YORK. THE SELLER HEREBY
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IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS
PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF 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 THE SELLER HEREBY IRREVOCABLY
AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY
SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN 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 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. THE SELLER 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. THE SELLER
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.
L. 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.
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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: ________________________________________
Name: H. Xxxxx Xxxxxxx
Title: Executive Vice President and Chief Financial Officer
STANDARD CHARTERED TRADE
SERVICES CORPORATION
By: ________________________________________
Name: ________________________________________
Title: ________________________________________
By: ________________________________________
Name: ________________________________________
Title: ________________________________________
STANDARD CHARTERED BANK, as Collateral Agent
By: ________________________________________
Name: Xxxx XxXxxxxx
Title: Senior Vice President
17
APPENDIX "A"
SELLER'S LETTERHEAD
Date: [Month day, 200_]
Standard Chartered Trade Services Corporation
Xxx Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Reference: Qualified Buyer
Ladies and Gentlemen:
The following entity shall be deemed a Buyer under the terms of the Second
Amended and Restated Receivables Purchase Agreement among ourselves and Standard
Chartered Bank, as collateral agent, dated as of February 11, 2003 (the
"Agreement"), subject to your approval as evidenced by your signature below.
BUYER ADDRESS TYPE OF GOODS CREDIT TERMS
1. Xxxx Supply Crude Oil Industry Norm
and Trading L.P. (The 20th day of
each month)
The Buyer is hereby authorized and will be instructed by us both in our
Pro-Forma Invoice and in our Final Invoice and prior thereto by means of the
Notice of Assignment mailed by us to the Buyer in the form of Appendix "B" to
our Agreement to make payment directly to you or your designee (upon receipt of
written notice from you to do so) of all Qualified Receivable(s) (as defined in
the Agreement) and any such payment, to the extent thereof, shall satisfy such
Buyer's obligations to us.
This list will remain in effect until it is replaced or modified in accordance
with the terms of the Agreement.
Very truly yours,
EOTT Energy Operating Limited
Partnership
By: EOTT ENERGY GENERAL PARTNER, L.L.C., its General Partner
By: ____________________________
Name: H. Xxxxx Xxxxxxx
Title: Executive Vice President and Chief Financial Officer
READ, AGREED TO AND ACCEPTED ON _________:
STANDARD CHARTERED TRADE SERVICES STANDARD CHARTERED TRADE SERVICES
CORPORATION CORPORATION
By: ______________________________ By: _____________________________
Name: ____________________________ Name: ___________________________
Title: ___________________________ Title: __________________________
APPENDIX "B"
NOTICE OF ASSIGNMENT
For those pro-forma and final invoices of EOTT Energy Operating Limited
Partnership ("the Seller") covering sales of crude oil ("Goods") to Xxxx Supply
and Trading L.P. ("Buyer") accepted by, sold and assigned to Standard Chartered
Trade Services Corporation ("SCTSC"), or its successors, the Seller shall
maintain all existing responsibilities including, but not limited to,
negotiating all prices and terms with the Buyer, arranging shipment of the Goods
and all product responsibility and liability. The Seller hereby sells and
assigns to SCTSC all of the Seller's rights, title and interest in, to and under
the above mentioned invoices; provided, however, that SCTSC does not hereby
assume any obligations, duties or liabilities whatsoever of the Seller under the
invoices.
Each of the Seller's pro-forma and final invoices to the Buyer shall contain the
following statement:
"THIS INVOICE HAS BEEN SOLD AND ASSIGNED FOR THE PURPOSE OF
COLLECTION TO STANDARD CHARTERED TRADE SERVICES CORPORATION OR
ITS SUCCESSORS (THE "ASSIGNEE"). ALL PAYMENTS HEREUNDER SHALL
BE MADE TO THE ASSIGNEE BY REMITTING FUNDS, BY WIRE TRANSFER,
TO STANDARD CHARTERED BANK, NEW YORK BRANCH, ABA NO.
000000000, FOR CREDIT TO A/C #0000-000000-000 OF EOTT ENERGY
OPERATING LIMITED PARTNERSHIP, TO THE ATTENTION OF XX. XXXXX
XXXXXXX. THE ACCOUNT EVIDENCED BY THIS INVOICE WILL ONLY BE
SATISFIED BY PAYMENT TO THE ASSIGNEE AS INDICATED IN THE
PRECEDING SENTENCE."
Agreed and accepted this [day] day of [Month], 200_.
EOTT ENERGY OPERATING LIMITED PARTNERSHIP
By: EOTT ENERGY GENERAL PARTNER, L.L.C., its general partner
By: ____________________________
Name: H. Xxxxx Xxxxxxx
Title: Executive Vice President and Chief Financial Officer
STANDARD CHARTERED TRADE SERVICES STANDARD CHARTERED TRADE SERVICES
CORPORATION CORPORATION
By: ______________________________ By: _____________________________
Name: ____________________________ Name: ___________________________
Title: ___________________________ Title: __________________________
APPENDIX "C-1"
Seller's Letterhead
Date: [Month day, 200_]
Standard Chartered Trade Services Corporation
Xxx Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Reference: Transaction Confirmation of Qualified Receivable(s)
Dear Sirs:
We hereby inform you of our desire to sell new Qualified Receivable(s) to you,
as described in Section 1.B of the Second Amended and Restated Receivables
Purchase Agreement, dated as of February 11, 2003, among EOTT Energy Operating
Limited Partnership, Standard Chartered Trade Services Corporation ("SCTSC") and
Standard Chartered Bank, as collateral agent ("Collateral Agent"), as follows:
Qualified Receivable(s) totaling: US$_________________
EOTT Energy Operating Limited Partnership has caused copies of the invoices to
the Buyer and the relevant title documents, as may be required by SCTSC, as
evidenced by transport documents, pipeline tickets, receipts and/or nominations,
truck xxxx(s) of lading, marine xxxx(s) of lading or any other title document as
may be acceptable to SCTSC, to be attached hereto, which contain all the
information required by SCTSC, including a description of the Goods, their
quantity, type, value and other relevant terms and conditions.
Kindly remit funds, by wire transfer, to Standard Chartered Bank, New York
Branch, ABA #000000000, Attn: Xx. Xxxxx Xxxxxxx, for credit to A/C
#0000-000000-000 of EOTT Energy Operating Limited Partnership.
Please indicate your acceptance by signing below.
Very truly yours,
EOTT Energy Operating Limited
Partnership
By: EOTT ENERGY GENERAL PARTNER, L.L.C., its General Partner
By: ____________________________
Name: H. Xxxxx Xxxxxxx
Title: Executive Vice President and Chief Financial Officer
READ, AGREED TO AND ACCEPTED ON _____:
STANDARD CHARTERED TRADE SERVICES STANDARD CHARTERED TRADE SERVICES
CORPORATION CORPORATION
By: ______________________________ By: _____________________________
Name: ____________________________ Name: ___________________________
Title: ___________________________ Title: __________________________
