EXHIBIT 10.7
AMENDMENT NO. 1 TO
SECOND AMENDED AND RESTATED
COMMODITIES REPURCHASE AGREEMENT
This AMENDMENT NO. 1 TO SECOND AMENDED AND RESTATED COMMODITIES
REPURCHASE AGREEMENT (this "Amendment") is made and dated as of August 29, 2003,
by and among (a) EOTT Energy Operating Limited Partnership (the "Client") and
(b) Standard Chartered Trade Services Corporation ("SCTSC"). Capitalized terms
used but not otherwise defined herein shall have the meanings given to them in
the Crude Oil Purchase Agreement (as defined below).
WHEREAS, Client, SCTSC and Standard Chartered Bank have entered into
that Second Amended and Restated Commodities Repurchase Agreement, dated as of
February 11, 2003 (as amended, supplemented, restated or otherwise modified from
time to time, the "Crude Oil Purchase Agreement"), pursuant to which SCTSC has
purchased from Client, and Client has agreed to repurchase from SCTSC on the
Repurchase Date, certain barrels of crude oil constituting Client's line fill;
and
WHEREAS, Client has requested that SCTSC amend the Crude Oil Purchase
Agreement, and SCTSC, on the terms and subject to the conditions set forth
below, has agreed to amend the Crude Oil Purchase Agreement;
NOW, THEREFORE, in consideration of the foregoing premises, Client and
SCTSC agree as follows:
SECTION 1. AMENDMENTS TO THE CRUDE OIL PURCHASE AGREEMENT.
(a) Section 10 of the Crude Oil Purchase Agreement is hereby
amended and restated in its entirety to read as follows:
"a) On any date which is four Business Days prior to the Initial
Maturity Date, at the option of Client and upon written notice to
SCTSC, Client may extend the Repurchase 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.
b) If the Repurchase 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 Client and upon written notice to
SCTSC, Client may extend the Repurchase 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. Client represents and
warrants to SCTSC as follows:
(a) The representations and warranties of Client
contained in the Crude Oil Purchase Agreement (i) were true and correct
when made and (ii) shall be true and correct on and as of the Effective
Date with the same effect as if made at and as of that time (except to
the extent that such representations and warranties relate expressly to
an earlier date).
(b) The execution and delivery by Client of this
Amendment and the performance by Client of its agreements and
obligations under this Amendment are within its authority, and have
been duly authorized by all necessary action. Such execution, delivery,
and performance by Client, do not and will not (a) contravene any
provision of Client's organizational documents or (b) conflict with any
law, regulation or contractual restriction binding on or affecting
Client.
(c) This Amendment and the Crude Oil Purchase Agreement,
as amended hereby, constitutes the legal, valid and binding obligations
of Client, enforceable in accordance with their respective terms,
except as enforcement may be limited by principles of equity,
bankruptcy, insolvency, or other laws affecting the enforcement of
creditors' rights generally.
(d) After giving effect to this Amendment, no Default or
Event of Default has occurred and is continuing.
SECTION 3. 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 Client.
(b) Officer's Certificate. SCTSC shall have received from
Client 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
Client authorized to act with respect to the Amendment; and
(iii) any amendments to the organizational documents
of Client since such organizational documents were last
certified to SCTSC.
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Such certificate shall be in form and substance satisfactory to SCTSC.
SECTION 4. EXPENSES. Client shall pay all reasonable out-of-pocket
expenses incurred by SCTSC in connection with the preparation, negotiation,
execution, delivery and enforcement of this Amendment, including, but not
limited to, the reasonable fees and expenses of Xxxxxxx XxXxxxxxx LLP.
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 Crude Oil
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]
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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
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