EXHIBIT 10.32
STANDARD CHARTERED TRADE SERVICES CORPORATION
1285 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
April 23, 2002
EOTT Energy Operating Limited Partnership
0000 X. Xxx Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Re: Commodity Repurchase Agreement and Receivable(s) Purchase Agreement
Ladies and Gentlemen:
Reference is made to (i) the Commodity Repurchase Agreement by and
between Standard Chartered Trade Services Corporation ("SCTSC") and EOTT Energy
Operating Limited Partnership ("EOTT OLP") dated February, 1998 (the "CRUDE OIL
REPO AGREEMENT") and (ii) the Receivable(s) Purchase Agreement by and between
SCTSC and EOTT OLP dated November 19, 1999 (the "RECEIVABLES AGREEMENT"), in
each case as amended to, and as in effect on, the date hereof. Capitalized terms
used and not defined herein have the meanings given them in the Second Amended
and Restated Reimbursement, Loan and Security Agreement, dated as of April 23,
2002, among EOTT OLP, EOTT Energy Canada Limited Partnership, EOTT Energy
Liquids, L.P., EOTT Energy Pipeline Limited Partnership, EOTT Energy Partners,
L.P., EOTT Energy General Partner, L.L.C., Standard Chartered Bank and the other
signatories thereto (the "CREDIT AGREEMENT").
By execution of this letter agreement, SCTSC waives (i) any Seller's
Event of Default arising from a breach of Section 3B(ix), (x) or (xiv) of the
Receivables Agreement and any Event of Default arising from a breach of Section
16(a), (e), (f), (j) or (m)(iv) of the Crude Oil Repo Agreement that results
from the execution, filing or recordation of any Security Document and (ii) any
Event of Default arising from a breach of Section 16(b) of the Crude Oil Repo
Agreement that results from the existence of any matter described in Section
7(t) of the Disclosure Schedule. SCTSC further agrees that prior to February 28,
2003, unless there shall have occurred and be continuing a Seller's Event of
Default under the Receivables Agreement, an Event of Default under the Crude Oil
Repo Agreement or an Event of Default under the Credit Agreement, SCTSC will not
exercise its discretionary right to terminate the Receivables Agreement or the
Crude Oil Repo Agreement. EOTT OLP confirms that no such event of default has
occurred and is continuing at the date hereof (giving effect to the foregoing
waivers), and further acknowledges and confirms that all of the Collateral is
and will be held by Standard Chartered as collateral agent for the benefit of
the Lenders and SCTSC.
In addition to all other amounts due to the Administrative Agent under
each of the Crude Oil Repo Agreement and the Receivables Agreement, EOTT OLP
will pay to SCTSC a fee, payable monthly in arrears on the first day of each
month with respect to the immediately
preceding month in an amount equal to (i) two percent (2.0%) per annum
multiplied by (ii) the Average Daily Maximum SCTSC Facility Amount for each such
agreement for each month. The first installment of such fee shall be payable on
May 1, 2002 with respect to each of the months of February, March and April,
2002. For purposes of this letter agreement, the "AVERAGE DAILY MAXIMUM SCTSC
FACILITY AMOUNT" for any month for each such agreement shall equal the quotient
of (x) $100,000,000 (unless such amount shall be permanently reduced by EOTT
OLP, which it may do pursuant to the terms of each such agreement) divided by
(y) the total number of days in such month.
SCTSC and EOTT OLP further agree that the June 22, 2001 letter
agreement amending the Crude Oil Repo Agreement is amended hereby by replacing
"two hundred million dollars ($200,000,000)" in the second paragraph thereof
with "one hundred million dollars ($100,000,000)." Notwithstanding any language
in the Crude Oil Repo Agreement giving SCTSC discretion as to whether or not it
shall choose to enter into any Transaction (as defined in the Crude Oil Repo
Agreement), provided that all conditions precedent to Extensions of Credit under
the Credit Agreement and all other conditions precedent under the Crude Oil Repo
Agreement are satisfied at the time EOTT OLP proposes a Transaction (as defined
in the Crude Oil Repo Agreement), SCTSC will enter into such Transaction to the
extent that all Commodities to be purchased by SCTSC under such Transaction
would constitute Eligible Inventory. Unless otherwise agreed, the Repurchase
Date (as proposed by EOTT OLP under the Crude Oil Repo Agreement) shall be the
date ending one, three, or six months after the Value Date (as defined in the
Crude Oil Repo Agreement); provided, however, that any such Repurchase Date
which would otherwise be a day which is not a Business Day shall be extended to
the succeeding Business Day unless such Business Day falls in another calendar
month, in which case such Repurchase Date shall be the preceding Business Day.
Unless otherwise agreed, the Purchase Price (as used in the Crude Oil Repo
Agreement) that SCTSC shall pay EOTT OLP for such Commodities will be the Market
Price on the Value Date (as used in the Crude Oil Repo Agreement). Unless
otherwise agreed, the Resale Price (as used in the Crude Oil Repo Agreement)
that EOTT OLP shall pay to SCTSC for such Commodities will be the total of (i)
the product of (x) the Purchase Price (as used in the Crude Oil Repo Agreement)
and (y) one-month, three-month or six-month, as applicable, LIBOR in effect on
the Value Date (as defined in the Crude Oil Repo Agreement) plus three percent
(3.0%) plus (ii) such Purchase Price.
Notwithstanding any language in the Receivables Agreement giving SCTSC
discretion as to whether or not it shall choose to purchase any of the Qualified
Receivable(s) (as defined in the Receivables Agreement), provided that all
conditions precedent to Extensions of Credit under the Credit Agreement and all
other conditions precedent under the Receivables Agreement are satisfied at the
time EOTT OLP proposes that SCTSC purchase any Qualified Receivable(s) (as
defined in the Receivables Agreement), SCTSC will purchase any such Qualified
Receivable(s) constituting Tier I Eligible Receivables.
This letter agreement (i) shall be deemed to be a contract under, and
shall be construed, interpreted and governed by the laws of the State of New
York, excluding any conflict of laws principles, (ii) may be executed in
multiple counterparts, each of which, when executed, shall be deemed an
original, and all of which shall constitute but one and the same instrument, and
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(iii) shall be binding upon and shall inure to the benefit of each party and its
respective successors and assigns.
Please indicate your consent to the foregoing by signing each duplicate
original hereof in the space provided below and returning a signed original of
this letter agreement to us.
Very truly yours,
STANDARD CHARTERED TRADE SERVICES
CORPORATION
By: /s/ XXXXX X. XXX
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Xxxxx X. Xxx
Chief Executive Officer
By: /s/ XXXXXX XXXXXXXX
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Xxxxxx Xxxxxxxx
President
Agreed to and accepted
this __ day of April, 2002
EOTT ENERGY OPERATING LIMITED PARTNERSHIP,
By: EOTT ENERGY GENERAL PARTNER, L.L.C., its General Partner
By:
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Name:
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Title:
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