Exhibit 4.06
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INTERCREDITOR AGREEMENT
among
BANKERS TRUST COMPANY,
as Collateral Trustee for the Secured Parties,
DEUTSCHE BANK AG, NEW YORK BRANCH,
as Administrative Agent for and on behalf of the Bank Senior Lenders,
WINTERTHUR INTERNATIONAL INSURANCE COMPANY LIMITED,
for itself and as Administrative Agent for and on behalf of the Oil
Payment Insurers,
HSBC BANK USA,
as Capital Markets Trustee for the Capital Markets Senior Lenders,
and
WINTERTHUR INTERNATIONAL INSURANCE COMPANY LIMITED,
as Debt Service Reserve Insurer
Dated as of August 19, 1999
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TABLE OF CONTENTS
SECTION PAGE
ARTICLE I
DEFINITIONS AND INTERPRETATION
1.01 Definitions......................................................2
1.02 Interpretation...................................................2
1.03 Conflict.........................................................3
ARTICLE II
GENERAL INTERCREDITOR ARRANGEMENTS
2.01 Sharing of Information...........................................3
2.02 Notice of Non-Pro Rata Payments..................................3
2.03 General Consultation.............................................3
2.04 Voting Restrictions..............................................4
2.05 No Reliance......................................................4
2.06 Sharing of Non-Pro Rata Payments.................................5
2.07 Excluded Payments................................................5
2.08 Termination of Senior Debt Commitments...........................6
ARTICLE III
OIL PAYMENT INSURANCE ARRANGEMENTS
3.01 Covenants of the Oil Payment Insurers Administrative Agent.......6
3.02 Exercise of Voting Rights........................................6
3.03 Rights under Debt Service Reserve Insurance Guarantee............7
ARTICLE IV
DEBT SERVICE RESERVE INSURANCE ARRANGEMENTS
4.01 General Covenants of the Debt Service Reserve Insurer............7
4.02 Subordination....................................................7
ARTICLE V
MISCELLANEOUS
5.01 Termination......................................................8
5.02 GOVERNING LAW....................................................8
5.03 Waiver of Jury Trial.............................................8
5.04 Severability.....................................................8
5.05 Entire Agreement.................................................8
5.06 Notices..........................................................9
5.07 Benefits of Agreement............................................9
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SECTION PAGE
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5.08 Remedies.........................................................9
5.09 Execution in Counterparts.......................................10
5.10 Consent to Jurisdiction.........................................10
5.11 Amendments, Etc.................................................10
5.12 Effectiveness...................................................11
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INTERCREDITOR AGREEMENT
This Agreement, dated as of August 19, 1999, is made among:
BANKERS TRUST COMPANY, a banking corporation incorporated under the
laws of the State of New York, acting through its New York Branch, as Collateral
Trustee for the Secured Parties,
DEUTSCHE BANK AG, NEW YORK BRANCH, a New York State licensed branch
of a German bank, as Administrative Agent for and on behalf of the Bank Senior
Lenders,
WINTERTHUR INTERNATIONAL INSURANCE COMPANY LIMITED, a company
incorporated under the laws of England and Wales, for itself and as
Administrative Agent for and on behalf of the Oil Payment Insurers,
HSBC BANK USA, a New York banking corporation and trust company, as
Capital Markets Trustee for the Capital Markets Senior Lenders; and
WINTERTHUR INTERNATIONAL INSURANCE COMPANY LIMITED, a company
incorporated under the laws of England, as Debt Service Reserve Insurer.
WHEREAS:
A. The Bank Senior Lenders propose to loan the Borrower
Bank Senior Term Debt and make available to the Partnership the Secured
Working Capital Facility;
B. The Borrower proposes to issue Capital Markets Senior
Debt in favor of the Capital Markets Senior Lenders;
C. The Oil Payment Insurers propose to guarantee certain of the
Partnership's payment obligations to PMI under the Long-Term Oil Supply
Agreement;
D. The Collateral Trustee proposes to act on behalf of the
Secured Parties pursuant to the Security Documents and has authorized the
execution and delivery of this Agreement;
E. The Bank Senior Lenders Administrative Agent proposes to act
on behalf of the Bank Senior Lenders pursuant to the Bank Senior Loan Agreements
and has authorized the execution and delivery of this Agreement;
F. The Capital Markets Trustee proposes to act on behalf of the
Capital Markets Senior Lenders pursuant to the Indenture and has authorized the
execution and delivery of this Agreement;
G. The Oil Payment Insurers Administrative Agent proposes to act
on behalf of the Oil Payment Insurers pursuant to the Reimbursement Agreement
and has authorized the execution and delivery of this Agreement; and
H. The Debt Service Reserve Insurer proposes to guarantee the
Borrower's obligation to pay Senior Debt Obligations when due pursuant to, and
in accordance with the terms of, the Debt Service Reserve Guarantee Arrangement
and has authorized the execution and delivery of this Agreement.
NOW, THEREFORE, to set forth the terms of their relationship and
respective rights and obligations under the Financing Documents, the parties
hereto now agree with and among each other as follows:
ARTICLE I
DEFINITIONS AND INTERPRETATION
1.01 Definitions. Defined terms in this Agreement and the
Appendices to this Agreement, which may be identified by the capitalization of
the first letter of each principal word thereof, have the meanings assigned to
them in Appendix A to the Common Security Agreement, dated as of August 19,
1999, among Port ▇▇▇▇▇▇ Finance Corp., Port ▇▇▇▇▇▇ ▇▇▇▇▇ Company L.P., Sabine
River Holding Corp., Neches River Holding Corp., Bankers Trust Company, as
Collateral Trustee for the Secured Parties, Deutsche Bank AG, New York Branch,
as Administrative Agent for and on behalf of the Bank Senior Lenders,
Wintherthur International Insurance Company Limited, for itself and as
Administrative Agent for and on behalf of the Oil Payment Insurers, HSBC Bank
USA, as Capital Markets Trustee for the Capital Markets Senior Lenders, and
Bankers Trust Company, as Depositary Bank, as the same may be amended or
supplemented in accordance with its terms and in effect from time to time (the
"Common Security Agreement").
1.02 Interpretation. In this Agreement, except to the extent that
the context otherwise requires:
(a) the table of contents and headings are for convenience only and
shall not affect the interpretation of this Agreement;
(b) unless otherwise specified, references to Articles, Sections and
clauses are references to Articles, Sections, and clauses of this
Agreement;
(c) references to any document or agreement, including without
limitation this Agreement, shall be deemed to include references to such
document or agreement (together with all appendices, annexes and schedules
thereto) as amended, supplemented, replaced or restated from time to time
in accordance with its terms and (where applicable) subject to compliance
with the requirements set forth therein; and
(d) references to any party to this Agreement or any other document
or agreement shall include its successors and permitted assigns.
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1.03 Conflict. In the event of any conflict between this
Agreement and the Common Security Agreement, the Common Security
Agreement shall govern.
ARTICLE II
GENERAL INTERCREDITOR ARRANGEMENTS
2.01 Sharing of Information. Each Secured Party and each Applicable
Agent shall use reasonable efforts promptly to make available to all other
Secured Parties, Applicable Agents and the Collateral Trustee any material
information it receives in its capacity as a Secured Party or Applicable Agent,
as the case may be, regarding (a) the construction or operation of the Project,
the prospects for the timely achievement of Final Completion by the Guaranteed
Final Completion Date, or the financial condition or business of any of the
Borrower, the Partnership or the Partners, (b) the Borrower's and the
Partnership's ability to pay the Senior Debt Obligations when due, (c) the
security interests granted by or pursuant to the Common Security Agreement and
the other Security Documents, (d) the ability of any of the Borrower, the
Partnership or the Partners to comply with their obligations under each of the
Financing Documents, (e) the ability of any of the parties to the Project
Documents to comply with their obligations thereunder, (f) the occurrence of any
Event of Default or Potential Default or (g) any other matter regarding any of
the Borrower, the Partnership or the Partners or the Senior Debt that such
Secured Party, or Applicable Agent, as the case may be, in its reasonable
judgment, considers to be of common interest to the Secured Parties, provided
that (i) this Section 2.01 shall not require any Secured Party or Applicable
Agent to make available to the Collateral Trustee information that, (A) in such
Secured Party's reasonable judgment, is not of common interest to the other
Secured Parties, (B) that is subject to confidentiality restrictions that
prohibit such disclosure or (C) that such Secured Party or Applicable Agent
reasonably believes to have already been provided to the other Secured Parties,
Applicable Agents and the Collateral Trustee and (ii) no Secured Party or
Applicable Agent shall have any liability for any failure to make available to
any other Secured Party, Applicable Agent or the Collateral Trustee such
information or for any inaccuracy or incompleteness of any such information made
available by it in good faith.
2.02 Notice of Non-Pro Rata Payments. To the extent applicable,
each Secured Party shall notify each Applicable Agent and the Collateral Trustee
of any payment received in respect of Senior Debt Obligations or Oil Payment
Insurance Obligations in excess of its pro rata share of such obligations then
due under its respective Financing Document.
2.03 General Consultation. The Secured Parties agree that, without
affecting in any manner the rights of the Secured Parties and without improving
in any way the rights or defenses of any of the Borrower, the Partnership or the
Partners, to the extent practicable under the circumstances, they shall endeavor
to afford each other a reasonable opportunity to exchange views before taking
any action that could reasonably be expected to have a Material Adverse Effect
or significantly disadvantage certain Secured Parties in favor of other Secured
Parties.
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Subject to the voting provisions set forth in the Common Security
Agreement and the percentage of Secured Parties required to take action or make
decisions thereunder or under any other Financing Document, it is the intention
of each Secured Party that, in connection with any action or decision requiring
a determination by more than one Secured Party, all Secured Parties entitled
pursuant to the Common Security Agreement to vote thereon are to be afforded the
opportunity to express their views, and to vote, on the matter subject to such
determination.
Any Secured Party may, at any time following the occurrence and
during the continuance of an Event of Default, request that a meeting or
meetings of Secured Parties, at reasonable times and locations, and with
reasonable frequency, be convened, and upon such request having been given in
accordance with this Section 2.03, such meetings shall be convened as provided
in this Agreement. Such a request for a meeting shall be made in a written
notice given to the Collateral Trustee and each Applicable Agent in accordance
herewith. Each such notice shall state the date of such meeting (which shall be
not less than 15 nor more than 30 days after the date of such notice, unless
otherwise agreed by all Secured Parties) and a general outline of the issues to
be discussed at such meeting. Any Secured Party shall have the right to appoint
any other Person (including another Secured Party) to act as its representative
at any such meeting of Secured Parties. No Secured Party shall be obligated to
attend any such meetings.
2.04 Voting Restrictions. In each instance that a vote with respect
to any consent, waiver, approval, direction, amendment, supplement, other
modification or other matter is to be cast in accordance with the Common
Security Agreement or the Transfer Restrictions Agreement, no Secured Party that
is an Affiliate of any of the Borrower, the Partnership, the Partners, the
Shareholders or the ▇▇▇▇▇ Entities (each, a "Non-Voting Lender") shall be
entitled to participate in such vote and Senior Debt and Senior Debt Commitments
held by a Non-Voting Lender shall not be considered outstanding for the purpose
of determining the percentages of outstanding principal amount of Senior Debt
and Senior Debt Commitments under the definitions of "Majority Lenders",
"Requisite Lenders", "Supermajority Lenders", "Majority Secured Parties",
"Requisite Secured Parties" and "Supermajority Secured Parties", provided that
in no event shall any amendment, modification or waiver of Section 2.06 or
Section 2.07 that is adverse to any Non-Voting Lender be made without the
written consent of such Non-Voting Lender.
2.05 No Reliance. Notwithstanding any other provision of the Common
Security Agreement, no Secured Party has relied or shall rely on any other
Secured Party, any Applicable Agent or the Collateral Trustee (a) to inquire
into or verify the accuracy or completeness of any information provided by any
of the Borrower, the Partnership or the Partners or made available by any
Secured Party to any other Secured Party on or prior to the date hereof, or
hereafter pursuant to Section 2.01 or (b) to review or evaluate the condition of
any of the Borrower, the Partnership, the Partners or the Project. Each Secured
Party acknowledges and agrees that it has made its own credit decision, and
shall take, or refrain from taking, any future decision or action, on the basis
of its own independent judgment, without reliance on information provided by or
expected from, or on views expressed by, any other Secured Party, any Applicable
Agent or the Collateral Trustee.
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2.06 Sharing of Non-Pro Rata Payments. Each Secured Party agrees
that in the event any Secured Party shall obtain payment of any amounts due to
it on or in respect of Senior Debt Obligations or Oil Payment Insurance
Obligations from the Borrower, the Partnership or from any other Person, whether
through exercise of a right of set-off, banker's lien or counterclaim, or from
any realization (whether through attachment, foreclosure or otherwise) of assets
of the Borrower, the Partnership or either of the Partners, or otherwise, and
such payment is not in accordance with such Secured Party's pro rata share of
such obligations then due under its respective Financing Document, then, except
to the extent such payment is an Excluded Payment (as defined in Section 2.07),
such Secured Party shall promptly remit to the Collateral Trustee for
distribution to other Secured Parties the amount of such payment necessary to
ensure that each Secured Party shall have received only its pro rata share of
such obligations, provided that, if at such time redistribution of such payment
in such manner is inadvisable in the judgment of any Secured Party, then at the
request of such Secured Party, Secured Parties shall promptly consult with each
other to determine whether there is a preferable manner to make equitable
adjustments (including the purchase by such Secured Party of Senior Debt
Obligations or Oil Payment Insurance Obligations, as the case may be, held by
other Secured Parties) to permit all Secured Parties to share such payment (net
of expenses incurred by the recipient Secured Party in obtaining or preserving
such payment) pro rata, provided, further, that, if the Capital Markets Trustee
shall have acted negligently in distributing such non-pro rata payment, it shall
be liable to the other Secured Parties to the extent that the amounts so paid
are not remitted promptly to the Collateral Trustee. If any such redistributed
or shared payment is rescinded or must otherwise be restored by the Secured
Party which first obtained it, each other Secured Party that shares the benefit
of such payment shall return to such Secured Party its portion of the payment so
rescinded or required to be restored.
2.07 Excluded Payments. The following payments on or in respect of
Senior Debt Obligations or Oil Payment Insurance Obligations shall constitute
"Excluded Payments":
(a) any payment pursuant to a contract of guaranty, indemnity or
insurance applicable to Senior Debt Obligations or Oil Payment Insurance
Obligations, as the case may be, made by any Person other than any of the
Borrower, the Partnership and the Partners, the Shareholders, the ▇▇▇▇▇
Entities and any of their respective Affiliates;
(b) the pro rata share otherwise allocable under this Agreement to
any particular Secured Party of any payment received by another Secured
Party as a result of an action or proceeding commenced by such Secured
Party in a court to the extent that, after receipt of timely notice of the
commencement of such action or proceeding by the particular Secured Party,
such particular Secured Party does not (i) join such action or proceeding
or agree to share (pro rata in accordance with the outstanding Senior Debt
Obligations or Oil Payment Insurance Obligations held by it) the costs and
expenses of such action or proceeding or (ii) commence and diligently
prosecute a separate action or proceeding in any appropriate court to
collect the analogous obligations of the Borrower, the Partnership and the
Partners owing to such particular Secured Party; and
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(c) any payment or prepayment to one or more Secured Parties or
Senior Lender Groups pursuant to, and to the extent permitted under,
Article II of the Common Security Agreement that is not required to be a
Pro Rata Payment.
For the avoidance of doubt, notwithstanding any other provision of the Common
Security Agreement or any other Financing Document to the contrary, no Secured
Party shall have any obligation to share any payment made by any Person to such
Secured Party pursuant to a contract of participation or assignment or any other
arrangement by which a direct or indirect interest of such Secured Party under
the Financing Documents is transferred.
2.08 Termination of Senior Debt Commitments. In the event the
Senior Debt Commitment of a Secured Party is terminated in full prior to
disbursement of any Senior Loans by such Secured Party, such Secured Party shall
cease to be a party to the Common Security Agreement, the Security Documents and
the Transfer Restrictions Agreement.
ARTICLE III
OIL PAYMENT INSURANCE ARRANGEMENTS
3.01 Covenants of the Oil Payment Insurers Administrative Agent.
The Oil Payment Insurers Administrative Agent hereby covenants and agrees, for
and on behalf of the Oil Payment Insurers, for the benefit of the other parties
hereto that:
(a) it shall maintain the coverage provided under the Oil Payment
Insurance Policy in accordance with its terms, subject to suspension or
termination of such coverage in accordance with the Oil Payment Insurance Policy
and the Reimbursement Agreement; and
(b) it shall promptly notify each of the other Applicable Agents in the
event of (i) any failure by the Partnership to pay any premium or other amounts
payable under the Reimbursement Agreement or the Oil Payment Insurance Policy
when due, (ii) any claim made under Section 2.03 of the Reimbursement Agreement
and (iii) any suspension or termination of the Oil Payment Insurance Policy.
3.02 Exercise of Voting Rights. Each of the Bank Senior Lenders
Administrative Agent and the Capital Markets Trustee hereby acknowledge and
agree that the Oil Payment Insurers Administrative Agent shall exercise all
voting rights arising under the Financing Documents for and on behalf of the Oil
Payment Insurers as directed by the Oil Payment Insurers and, in the case of any
Oil Payment Insurers that are reinsurers with respect to all or part of the
insurance coverage provided by the Oil Payment Insurance Policy, in accordance
with the relevant reinsurance documentation.
3.03 Rights under Debt Service Reserve Insurance Guarantee. The
Senior Lenders hereby acknowledge and agree that each Oil Payment Insurer shall
have the right, at its sole discretion, to renounce any payment under the Debt
Service Insurance Guarantee to which it may be entitled, provided that no such
renunciation with respect to any Oil
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Payment Reimbursement Obligation held by such Oil Payment Insurer shall operate
as a waiver with respect to any other Oil Payment Reimbursement Obligation or
any other rights such Oil Payment Insurer may have under the Debt Service
Reserve Insurance Guarantee.
ARTICLE IV
DEBT SERVICE RESERVE INSURANCE ARRANGEMENTS
4.01 General Covenants of the Debt Service Reserve Insurer. The
Debt Service Reserve Insurer hereby covenants and agrees for the benefit of the
other parties hereto that:
(a) it shall maintain the coverage provided under the Debt Service
Reserve Guarantee Arrangement in accordance with its terms, subject to
suspension or termination of such coverage in accordance with the Debt Service
Reserve Guarantee Arrangement; and
(b) it shall promptly notify each of the other Applicable Agents
in the event of (i) any failure by the Borrower to pay any premium or other
amounts payable under the Reimbursement Agreement or the Debt Service Reserve
Guarantee Arrangement when due and (ii) any suspension or termination of the
coverage provided under the Debt Service Reserve Guarantee Arrangement.
4.02 Subordination. (a) The Debt Service Reserve Insurer hereby
covenants and agrees that the liens and security interests created for the
benefit of the Secured Parties under the Common Security Agreement and the other
Financing Documents, to the extent they are created for the benefit of the Debt
Service Reserve Insurer, and the amounts owed to the Debt Service Reserve
Insurer now or hereafter secured thereby and all rights, remedies, terms and
covenants contained therein or in any of the other Financing Documents for the
benefit of the Debt Service Reserve Insurer shall be and at all times remain
subject and subordinate to the full payment of all of the Senior Debt
Obligations and all of the Oil Payment Reimbursement Obligations.
(b) The Debt Service Reserve Insurer hereby agrees that it shall
not be entitled to any proceeds from the sale or other disposition of any
Collateral or any other proceeds with respect to the Collateral, unless and
until all of the Senior Debt Obligations and all of the Oil Payment
Reimbursement Obligations have been paid in full. If at any time the Debt
Service Reserve Insurer receives any such proceeds and if at such time the
Senior Debt Obligations and the Oil Payment Reimbursement Obligations shall not
have been paid in full, the Debt Service Reserve Insurer shall hold such
proceeds in trust for the benefit of the Collateral Trustee and shall promptly
forward such proceeds to the Collateral Trustee
(c) With respect to the Collateral, so long as any Senior Debt
Obligations and Oil Payment Reimbursement Obligations are outstanding, the
Collateral Trustee shall have the sole and exclusive right to carry out the
provisions of the Common Security Agreement and the other Financing Documents
for the benefit of the Secured Parties and to enforce all rights and privileges
accruing to the Secured Parties by reason of the Common
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Security Agreement and the other Financing Documents, and to exercise all rights
and remedies of a secured lender under the applicable Uniform Commercial Code or
other applicable law in respect of the Collateral without the consent of the
Debt Service Reserve Insurer. Until all of the Senior Debt Obligations and all
of the Oil Payment Reimbursement Obligations are paid in full, the Debt Service
Reserve Insurer shall not exercise any legal or equitable rights or remedies
with respect to the Collateral, including without limitation the exercise of any
rights or remedies arising out of or in connection with the subordinated lien
granted to it under the Deed of Trust, Absolute Assignment of Rents, Security
Agreement and Financing Statement, dated as of August 19, 1999, by the
Partnership for the benefit of the Debt Service Reserve Insurer, without the
prior written consent of the Collateral Trustee. The Debt Service Reserve
Insurer hereby waives the right to object pursuant to Section 9-505 of the
applicable Uniform Commercial Codes as adopted.
ARTICLE X
MISCELLANEOUS
5.01 Termination. This Agreement shall terminate when all Senior
Debt Obligations and all Oil Payment Insurance Obligations have been paid in
full and all lending commitments have terminated or expired.
5.02 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
5.03 Waiver of Jury Trial. Each party hereto hereby waives, to the
fullest extent permitted by applicable law, any and all right to trial by jury
in any legal proceeding directly or indirectly arising out of or relating to
this Agreement.
5.04 Severability. If any provision of this Agreement shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
5.05 Entire Agreement. This Agreement constitutes the entire
agreement and understanding, and supersedes all prior agreements and
understandings (both written and oral), among the Collateral Trustee, the Bank
Senior Lenders Administrative Agent, the Capital Markets Trustee, the Oil
Payment Insurers Administrative Agent and the Debt Service Reserve Insurer
relating to the subject matter hereof.
5.06 Notices. (a) Any notice, claim, request, demand, consent,
designation, direction, instruction, certificate, report or other communication
to be given under this Agreement, any Senior Loan Agreement or the Reimbursement
Agreement will be deemed duly given when given or made in writing and (i)
personally delivered, (ii) sent by facsimile transmission (with written
confirmation or acknowledgment of receipt, whether written or oral) or (iii)
five days have elapsed after mailing by certified or registered mail, postage
pre-paid, return receipt requested, in each case addressed to a party at its
address or facsimile transmission number as indicated in Appendix P to the
Common Security Agreement or to
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such other address or facsimile transmission number of which such party has
given notice. Notice of any address or facsimile number change shall be
effective only upon receipt. Notices and all written documents to be provided to
the Collateral Trustee under this Agreement shall be deemed received by the
Collateral Trustee only if addressed in accordance with the requirements of
Appendix P to the Common Security Agreement, including but not limited to the
addressee thereon.
(b) The Collateral Trustee shall promptly forward to each
Applicable Agent copies of any notice, claim, certificate, report instrument,
demand, request, direction, instruction, designation, waiver, receipt, consent
or other communication or document that it receives in connection with the
Transaction Documents, including without limitation any report received pursuant
to Article VIII to the Common Security Agreement, unless the Collateral Trustee
reasonably believes that such material has already been provided to such Person.
5.07 Benefits of Agreement. Nothing in this Agreement or any other
Financing Document, express or implied, shall give to any Person, other than the
parties hereto and their respective successors and permitted assigns, any
benefit or any legal or equitable right or remedy under this Agreement.
5.08 Remedies. (a) No remedy in this Agreement or any other
Financing Document conferred upon any of the parties hereto is intended to be
exclusive of any other remedy and each and every such remedy shall be cumulative
and shall be in addition to every other remedy given hereunder or under or any
other Financing Document or now or hereafter existing at law or in equity or by
statute or otherwise.
(b) No failure on the part of any of the parties hereto to
exercise and no delay in exercising, and no course of dealing with respect to,
any right, power or privilege under this Agreement shall operate as a waiver
thereof nor shall any single or partial exercise of any right, power or
privilege under this Agreement preclude any other or further exercise thereof or
the exercise of any other right, power or privilege. None of the parties hereto
shall be responsible for the failure of any other Secured Party to perform its
obligations under this Agreement or any other Financing Document.
(c) In case any party hereto, or the Collateral Trustee on behalf
of any Secured Party, shall have proceeded to enforce any right, remedy or power
under this Agreement or any other Financing Document and the proceeding for the
enforcement thereof shall have been discontinued or abandoned for any reason or
shall have been determined adversely to such Secured Party, then and in every
such case the parties hereto shall, subject to any effect of or determination in
such proceeding, severally and respectively be restored to their former
positions and rights hereunder and under such other Financing Document and
thereafter all rights, remedies and powers of the parties hereto shall continue
as though no such proceeding had been taken.
5.09 Execution in Counterparts. This Agreement may be executed in
any number of counterparts and by the different parties hereto on separate
counterparts, each of
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which when so executed and delivered shall be an original, but all the
counterparts shall together constitute one and the same instrument.
5.10 Consent to Jurisdiction. (a) Subject to clause (c) of this
Section 5.10, each party hereto hereby irrevocably consents and agrees, for the
benefit of each other party hereto, that any legal action, suit or proceeding
against it with respect to its obligations, liabilities or any other matter
under or arising out of or in connection with this Agreement may be brought in
any Federal or State court located in the Borough of Manhattan, The City of New
York, and hereby irrevocably accepts and submits to the exclusive jurisdiction
of each such court, to the exclusion of all other courts, with respect to any
such action, suit or proceeding. Each party hereto hereby waives to the fullest
extent permitted by applicable laws any objection that it may now or hereafter
have to the laying of venue of any of the aforesaid actions, suits or
proceedings, brought in any such court and hereby further waives and agrees not
to plead or claim in any such court that any such action, suit or proceeding
brought therein has been brought in any inconvenient forum.
(b) Each party hereto hereby irrevocably agrees that any and all
legal process may be served in any such action, suit or proceeding brought in
any Federal or State court located in the Borough of Manhattan, The City of New
York at the address of such party set forth in Appendix P to the Common Security
Agreement. Each party hereto agrees that service of process upon it at such
address made in the manner provided in Section 14.08 of the Common Security
Agreement, shall be deemed to be effective service of process upon it in any
such action, suit or proceeding.
(c) Each party hereto agrees that a final judgment against it in
any action, suit or proceeding taken in any Federal or State Court in the
Borough of Manhattan, The City of New York in accordance with clause (a) of this
Section 5.10 shall be conclusive and may be enforced in any jurisdiction by suit
on the judgment, a certified copy of which judgment shall be conclusive evidence
thereof, or by any other means provided by law.
5.11 Amendments, Etc. Except as otherwise expressly provided in
this Agreement, no provision of this Agreement may be amended, modified,
supplemented or waived except by an agreement in writing signed by each party
hereto.
5.12 Effectiveness. This Agreement shall come into full force and
effect upon its execution and delivery by each of the parties named on the
signature pages hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed.
BANKERS TRUST COMPANY,
as Collateral Trustee for the Secured Parties
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Vice President
DEUTSCHE BANK AG, NEW YORK BRANCH, as
Administrative Agent for and on behalf of the Bank
Senior Lenders
By: /s/ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇
Title: Associate
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
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WINTERTHUR INTERNATIONAL INSURANCE
COMPANY LIMITED,
for itself and as Administrative Agent for
and on behalf of the Oil Payment Insurers
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Property Underwriting Manager
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chief Financial Officer
HSBC BANK USA,
as Capital Markets Trustee for the
Capital Markets Senior Lenders
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Assistant Vice President
WINTERTHUR INTERNATIONAL INSURANCE
COMPANY LIMITED,
as Debt Service Reserve Insurer
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Property Underwriting Manager
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chief Financial Officer
-13-