EXHIBIT 10.29
[*] Certain portions of this exhibit have been omitted pursuant to a request
for confidential treatment which has been filed separately with the SEC.
RECEIVABLE(S) PURCHASE AGREEMENT
THIS RECEIVABLE(S) PURCHASE AGREEMENT (the "Agreement") IS MADE AS OF THIS 19th
day of October, 1999 BY AND BETWEEN EOTT ENERGY OPERATING LIMITED PARTNERSHIP
(the "Seller"), a limited partnership organized under the laws of Delaware and
STANDARD CHARTERED TRADE SERVICES CORPORATION ("SCTSC"), a company organized
under the laws of the State of Delaware.
WHEREAS, the Seller is engaged in the sale of certain goods ("Goods") to the
buyer (the "Buyer") listed in Appendix "A", as may be amended from time to time;
and
WHEREAS, the sales to the Buyer (once approved by SCTSC) will give rise to
Receivable(s) ("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 on an uncommitted and fully discretionary basis, all of its rights,
title and interest in Qualified Receivable(s), up to an aggregate amount of One
Hundred Million US Dollars ($ 100,000,000) outstanding at any one time, in
accordance with the terms and conditions set forth in this Agreement which
include recourse back to the Seller in the circumstances outlined below; and
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 account of EOTT Energy Operating Limited Partnership. [*], 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".
NOW, THEREFORE, in consideration of the mutual promises contained herein, and
for other good and valuable consideration, the parties 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 SCTSC, as evidenced by
transport documents, pipeline tickets, receipts and/or
nominations, truck ▇▇▇▇(s) of lading, marine ▇▇▇▇(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 thirty five
(35) 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 aggregate amount
outstanding at any point in time for all Qualified
Receivable(s) shall not exceed One Hundred Million U.S.
Dollars ($100,000,000).
B. SCTSC Notice of Qualified Receivable(s)
Subject at all times to SCTSC's full discretion as to whether
or not it shall choose to purchase any of the 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. Payment to the Seller
Upon purchase of the Qualified Receivable(s), SCTSC shall
thereupon make payment to the Seller for 90% of the total
value of the Pro-Forma Invoice less the discount fee, handling
fees and any other fees or expenses incurred due to SCTSC as
defined in Section 2 of this Agreement and remit the
difference to the Seller. Approximately thirty five (35) days
after Seller's issuance of the Pro-Forma Invoice, the Seller
will issue its Final Invoice to the Buyer. This Final Invoice
will replace the 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.
D. Payment to SCTSC
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"), [*] (the "Account"). The Account will be subject
to a Blocked Account Agreement under which the Seller
authorizes the Bank to remit such funds credited to this
Account, from time to time to Standard Chartered Bank, New
York Branch, [*] in order to repay SCTSC for the amount paid
to the Seller for the Qualified Receivable(s) purchased. The
balance remaining in the Account after SCTSC has been repaid
in full shall be remitted to the Seller.
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2. FEES AND INTEREST
A. Arrangement Fee
Upon execution of this Agreement, the Seller will pay SCTSC a
non-refundable arrangement fee of Twenty Five Thousand U.S.
Dollars ($ 25,000) to cover the initial legal, structuring and
set up expenses of SCTSC.
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 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 on the
outstanding Qualified Receivable(s) purchased calculated at
the applicable LIBOR (defined below) plus a spread of seventy
five basis point per annum (75 b.p. p.a.) (the "Discount
Fee"). The Discount Fee due by the Seller to SCTSC shall be
calculated on the aggregate face value of the Qualified
Receivable(s) purchased by SCTSC from the date payment was
made to the Seller to the Invoice Due Date, calculated on the
basis of a 360 actual day year. 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 legal and other fees) in
obtaining payment from the Buyer. The Discount Fee as
specified above will apply for a period not to exceed the
Invoice Due Date for the Qualified Receivable(s) purchased.
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.
A Business Day is defined as 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 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 as well as the ultimate responsibility for payment of
SCTSC's excess costs. The Seller
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hereby assigns and transfers to SCTSC all such amounts the
Seller shall receive 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
two percent per annum (2% p.a.) and 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.
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
Account, the Seller undertakes to hold these funds in trust
for SCTSC and to immediately remit said payment to the Bank,
ABA Number ▇▇▇▇▇▇▇▇▇, for the account of SCTSC, Account No.
▇▇▇▇-▇▇▇▇▇▇-▇▇▇, Attention: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇. The Seller
will pay SCTSC a rate of interest equal to the Bank's
applicable overnight Reference Rate plus three percent per
annum (3% p.a.) based on a 360 day year and 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. 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 duly incorporated, 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
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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 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 its 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) 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 and this
is a material term of this Agreement.
(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. However, if the
Seller learns of any such claim, defense or right of
offset, it will promptly 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 ▇▇▇▇(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) 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 of
the Seller's obligations
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hereunder. SCTSC may file such financing statements
as it elects with the Seller's signature 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 ▇▇▇▇
Industries Inc. 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).
(xviii) the Seller agrees to issue to the Buyer a Final
Invoice approximately thirty five (35) days after the
issuance of the Pro-Forma Invoice, but not later than
the fifth Business 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; provided, however, any
disruption of obligations to be performed by SCTSC due to the
date roll-over from 1999 to 2000 and the leap-year in 2000
shall not be deemed to excuse SCTSC from its obligations
hereunder.
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")
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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.
4. EVENT OF SELLER DEFAULT
Each of the following events are herein defined as an "Event of Seller
Default":
a) the filing of a petition in bankruptcy or for the appointment
of a receiver by or against the Seller or any similar event;
or
b) the Seller's failure (alleged or actual) to discharge any of
its obligations under this Agreement or with respect to the
Goods or the underlying contract pertaining thereto.
The Seller shall immediately notify SCTSC in writing of the occurrence
of an Event of Seller 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 demand that the Seller deliver immediately
at the request of SCTSC to it 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.
5. EVENT OF BUYER'S DEFAULT
Each of the following events are herein defined as the "Buyer's Event
of 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 (alleged or actual) to pay timely 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
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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 a "Buyer's Event of Default" and, if the Buyer's bankruptcy or
failure to pay is due to any of the causes listed in Section 8 of this
Agreement, SCTSC shall have the same limited recourse rights against
the Seller as are described in Section 8, below.
6. 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) the opening of
the Account with the Bank, (e) a duly executed Blocked Account
Agreement between the Seller, SCTSC and the Bank, (f) the filing of a
UCC-1 Financing Statement against the Qualified Receivable(s), (g) the
Arrangement Fee set forth herein and (h) a copy of the guarantee
referred to in Section 3.A. (xvii), above, and the Oil Supply Contract
referred to in Section 8, below.
7. TERMINATION
A. This Agreement shall terminate:
(i) At the sole discretion of either party, immediately
upon written notice given by either party to this
Agreement to the other; or
(ii) Upon the occurrence of an Event of Seller Default or,
if SCTSC shall so elect upon the occurrence of a
Buyer's Event of Default; or
(iii) Immediately, without notice being required, in the
event of any bankruptcy or insolvency of the Seller
or of the Buyer, or the filing of any proceeding by
or against the Seller, SCTSC or the Buyer under any
law relating to bankruptcy, insolvency or
reorganization or upon the sale, dissolution or
merger of SCTSC.
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.
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8. 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
(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 thirty five (35) 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 rate of 3% per annum over the
Bank's Reference Rate in effect from time to time, 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.
9. 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 address as either party
may notify to the other in writing):
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To Seller:
Name: EOTT Energy Operating Limited Partnership
Address: ▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇, Treasurer
Telefax: (▇▇▇) ▇▇▇-▇▇▇▇
To SCTSC:
Name: Standard Chartered Trade Services
Corporation
Address: 7 World Trade Center, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Vice President & Manager
Telefax: (▇▇▇) ▇▇▇-▇▇▇▇
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.
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).
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.
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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.
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 parties hereto may assign this Agreement and their
respective rights, duties and obligations hereunder solely
upon the written consent of the other; provided, however, that
SCTSC may freely assign this Agreement and its rights, duties
and obligations to any entity within the Standard Chartered
Bank Group upon notice to the Seller, provided that such
assignment does not result in additional costs to the Seller.
The parties agree that this Agreement shall inure to the
benefit of any successor to the 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
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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. Each party hereby consents to the
non-exclusive jurisdiction of the Federal Court in the
Southern District of New York or the State Courts of New York
with respect to any suit, action or proceeding arising out of
this Agreement. The Seller specifically and unconditionally
waives any and all right to any trial before a jury in any
action connected with or arising under this Agreement or under
any transaction as contemplated herein. The Seller agrees to
waive any right to seek a change of venue once an action is
commenced in the U.S. District Court, Southern District of New
York or the Supreme Court of the State of New York.
IN WITNESS WHEREOF, the Seller and SCTSC 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 CORP., its General Partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
---------------------------
Title: Treasurer
--------------------------
STANDARD CHARTERED TRADE STANDARD CHARTERED TRADE
SERVICES CORPORATION SERVICES CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ III
----------------------------- --------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ III
--------------------------- ------------------------------
Title: Vice President & Manager Title: President & CEO
-------------------------- -----------------------------
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APPENDIX "A"
- Seller's Letterhead -
Date: [Month day, 1999]
Standard Chartered Trade Services Corporation
7 World Trade Center, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Reference: Qualified Buyer
Ladies and Gentlemen:
The following entity shall be deemed a Buyer under the terms of the
Receivable(s) Purchase Agreement between ourselves dated as of the 19th day of
October, 1999 (the "Agreement"), subject to your approval as evidenced by your
signature below.
BUYER ADDRESS TYPE OF GOODS CREDIT TERMS
1. ▇▇▇▇ Petroleum Group L.P. Crude Oil Industry Norm
(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 CORP., its General Partner
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
Read, agreed to and accepted on ____________:
Standard Chartered Trade Services Corporation
By: By:
----------------------------- --------------------------------
Name: Name:
--------------------------- ------------------------------
Title: Title:
-------------------------- -----------------------------
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APPENDIX "B"
NOTICE OF ASSIGNMENT
For those pro-forma and final invoices of EOTT Energy Operating Limited
Partnership ("Seller") covering sales of crude oil ("Goods") to ▇▇▇▇ Petroleum
Group L.P. ("Buyer") accepted by, sold and assigned to Standard Chartered Trade
Services Corporation ("SCTSC"), or its successors, 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. Seller hereby sells and assigns to SCTSC all of
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 Seller under the invoices.
Each of 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, [*] 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], 1999.
EOTT Energy Operating Limited Partnership
By: EOTT ENERGY CORP., its General Partner
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
Standard Chartered Trade Services Standard Chartered Trade Services
Corporation Corporation
By: By:
----------------------------- --------------------------------
Name: Name:
--------------------------- ------------------------------
Title: Title:
-------------------------- -----------------------------
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APPENDIX "C-1"
- Seller's Letterhead -
Date: [Month day, 1999]
Standard Chartered Trade Services Corporation
7 World Trade Center, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
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 Receivable(s) Purchase Agreement dated the
19th day of October, 1999 between EOTT Energy Operating Limited Partnership and
Standard Chartered Trade Services Corporation ("SCTSC"), 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 ▇▇▇▇(s) of lading, marine ▇▇▇▇(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, [*]
Please indicate your acceptance by signing below.
Very truly yours,
EOTT Energy Operating Limited
Partnership
By: EOTT ENERGY CORP., its General Partner
By: By:
----------------------------- --------------------------------
Name: Name:
--------------------------- ------------------------------
Title: Title:
-------------------------- -----------------------------
Transaction Confirmation Acknowledgement Read, agreed to and accepted on
Standard Chartered Trade Services Corporation _________________:
By: By:
----------------------------- --------------------------------
Name: Name:
--------------------------- ------------------------------
Title: Title:
-------------------------- -----------------------------
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