Exhibit 4.05
EXECUTION COPY
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TRANSFER RESTRICTIONS AGREEMENT
among
PORT XXXXXX FINANCE CORP.
PORT XXXXXX XXXXX COMPANY X.X.
XXXXX REFINING HOLDINGS INC.
SABINE RIVER HOLDING CORP.
NECHES RIVER HOLDING CORP.
BLACKSTONE CAPITAL PARTNERS III MERCHANT BANKING FUND X.X.
XXXXXXXXXX OFFSHORE CAPITAL PARTNERS III X.X.
XXXXXXXXXX FAMILY INVESTMENT PARTNERSHIP III L.P.
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,
and
HSBC BANK USA,
as Capital Markets Trustee for the Capital Markets Senior Lenders
Dated as of August 19, 1999
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Table of Contents
Section PAGE
ARTICLE 1
DEFINITIONS AND INTERPRETATION
1.01 Definitions .................................................................... 3
1.02 Interpretation ................................................................. 4
ARTICLE II
COVENANTS ON TRANSFERS
2.01 General Rule ................................................................... 4
2.02 Transfers by the Blackstone Entities of their Equity Interests in Xxxxx Holdings 4
2.03 Restriction on Xxxxx Holding's Acquisition of Interests in the General Partner . 5
2.04 Transfers by Xxxxx Holdings of its Interest in the Refinery, Xxxxx R&M and
the Partnership .............................................................. 5
2.05 Conditions for Authorized Transfers ............................................ 5
2.06 Assumption of Obligations; Novation ............................................ 6
2.07 Involuntary Transfers .......................................................... 6
2.08 Effect on Security Interests ................................................... 6
2.09 Transfers Not Permitted Under this Article II .................................. 7
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.01 Representations and Warranties ................................................. 7
ARTICLE IV
MISCELLANEOUS
4.01 Termination .................................................................... 9
4.02 GOVERNING LAW .................................................................. 9
4.03 Waiver of Jury Trial ........................................................... 9
4.04 Severability ................................................................... 9
4.05 Notices ........................................................................ 9
4.06 Execution in Counterparts ...................................................... 9
4.08 Consent to Jurisdiction ........................................................ 9
4.09 No Recourse .................................................................... 11
4.10 Amendments ..................................................................... 11
4.11 Conflicts ...................................................................... 11
4.12 Effectiveness .................................................................. 00
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XXXXXXXX XXXXXXXXXXXX AGREEMENT
This Agreement, dated as of August 19, 1999, is made among:
PORT XXXXXX FINANCE CORP., a company incorporated under the laws of
the State of Delaware (the "Borrower"),
PORT XXXXXX XXXXX COMPANY L.P., a limited partnership organized under
the laws of the State of Delaware (the "Partnership"),
XXXXX REFINING HOLDINGS INC., a company incorporated under the laws of
the State of Delaware ("Xxxxx Holdings"),
SABINE RIVER HOLDING CORP., a company incorporated under the laws of
the State of Delaware (the "General Partner"),
NECHES RIVER HOLDING CORP., a company incorporated under the laws of
the State of Delaware (the "Limited Partner"),
BLACKSTONE CAPITAL PARTNERS III MERCHANT BANKING FUND L.P., a limited
partnership organized under the laws of the State of Delaware ("Blackstone
Capital Partners"),
BLACKSTONE OFFSHORE CAPITAL PARTNERS III L.P., a limited partnership
organized under the laws of the Cayman Islands ("Blackstone Offshore Partners"),
BLACKSTONE FAMILY INVESTMENT PARTNERSHIP III L.P., a limited
partnership organized under the laws of the State of Delaware ("Blackstone
Family Partnership", and together with Blackstone Capital Partners and
Blackstone Offshore Partners, the "Blackstone Entities"),
BANKERS TRUST COMPANY, a New York banking corporation and trust
company, as Collateral Trustee for the Secured Parties (the "Collateral
Trustee"),
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 (the "Bank Senior Lenders Administrative Agent"),
WINTERTHUR INTERNATIONAL INSURANCE COMPANY LIMITED, a company
incorporated under the laws of England, for itself and as Administrative Agent
for and on behalf of the Oil Payment Insurers (the "Oil Payment Insurers
Administrative Agent"); and
HSBC BANK USA, a New York banking corporation and trust company, as
Capital Markets Trustee for the Capital Markets Senior Lenders (the "Capital
Markets Trustee").
WHEREAS:
A. The Partnership proposes (i) to develop, construct, own and
operate the Project for the primary purpose of refining heavy sour crude oil and
(ii) to undertake all other activities necessary in connection with the
financing, development, operation and maintenance of the Project;
B. In order to finance the cost of the Project, the Borrower
proposes to incur Senior Debt and loan all the proceeds thereof to the
Partnership.
C. The Partnership and the Oil Payment Insurers Administrative Agent
propose to enter into agreements pursuant to which the Oil Payment Insurers
Administrative Agent, on behalf of the Oil Payment Insurers, will guarantee, for
the benefit of PMI, the payment by the Partnership of its payment obligations
under the Long-Term Oil Supply Agreement, and the Partnership will reimburse the
Oil Payment Insurers Administrative Agent, on behalf of the Oil Payment
Insurers, for any such payments they so make.
D. The Partnership proposes to guarantee the Senior Debt and secure
the Senior Debt Obligations and the Oil Payment Insurance Obligations;
E. The Blackstone Entities collectively own 68% and Occidental
Petroleum owns 31% of the outstanding capital stock of Xxxxx Holdings;
F Xxxxx Holdings owns 90% and Occidental owns 10% of the
outstanding capital stock of the General Partner.
X. Xxxxx Holdings owns 100% of the outstanding capital stock of
Xxxxx USA;
X. Xxxxx USA owns 100% of the outstanding capital stock of Xxxxx
R&M;
I. The General Partner owns 100% of the outstanding capital stock of
the Limited Partner;
J. The General Partner owns a 1% general partnership interest in,
and the Limited Partner a 99% limited partnership interest in, the Partnership,
and the Partners
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have entered into a Partnership Agreement, dated as of the date hereof, for the
formation of the Partnership;
K. The Partnership owns 100% of the outstanding capital stock of the
Borrower;
L. The Partnership and Xxxxx R&M propose to enter into the
Intercompany Agreements in connection with the operation of the Project;
M. Each of the parties hereto has authorized the execution and
delivery of this Agreement to undertake specified obligations to induce the
Senior Lenders to provide Senior Debt to the Borrower and to induce the Oil
Payment Insurers to provide the coverage under the Oil Payment Insurance Policy;
N. The parties hereto desire to provide for certain restrictions on
direct and indirect transfers of any of the parties' or their Affiliates' direct
or indirect interests in the Project; and
O. All things have been done which are necessary to constitute this
Agreement a valid contract.
NOW, THEREFORE, in consideration of the premises and of the execution
of the Senior Loan Agreements by the Senior Lenders and of the Oil Payment
Insurance Policy and Oil Payment Reimbursement Agreement by the Oil Payment
Insurers and of the making of Senior Loans and the Oil Payment Commitment,
respectively thereunder, the parties hereby agree as follows:
ARTICLE I
DEFINITIONS AND INTERPRETATION
1.01 Definitions. Except for terms defined herein, defined terms
in 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 the
Common Security Agreement (including Appendix A thereto), dated as of the date
hereof, among the Borrower, the Partnership, the General Partner, the Limited
Partner, the Collateral Trustee, the Bank Senior Lenders Administrative Agent,
the Oil Payment Insurers Administrative Agent, the Capital Markets Trustee and
the Depositary Bank as that agreement may be amended, supplemented or replaced
from time to time (the "Common Security Agreement"). For purposes of this
Agreement and the Common Security Agreement, any permitted assignee of a Person
under Article II hereof shall be a "Permitted Assignee" of such Person.
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1.02 Interpretation. The rules of interpretation set forth in Section
1.02 of the Common Security Agreement shall apply mutatis mutandis to this
Agreement as if set forth in full in this Section 1.02.
ARTICLE II
COVENANTS ON TRANSFERS
2.01 General Rule. None of the Blackstone Entities nor Xxxxx Holdings
(together, the "Restricted Parties") shall effect, or permit any Affiliate to
effect, any transfer, assignment, pledge, sale or other disposition (whether
directly or indirectly, in whole or in part, including without limitation with
respect to an intermediate holding company) (collectively, "Transfer") of its
respective direct or indirect interest, if any, in Xxxxx Holdings, the
Partnership, Xxxxx R&M or the Refinery, subject to Section 2.09, except for (a)
the grant of security interests under or pursuant to the Common Security
Agreement and the Security Documents and (b) any Transfer expressly permitted
under this Article II ((a) and (b) collectively, "Permitted Transfers"). Any of
the Restricted Parties, the Borrower, the Partnership, the General Partner or
the Limited Partner, as the case may be, shall notify each Credit Rating Agency
then rating the Senior Debt of any Transfer promptly after it becomes aware of
such Transfer.
2.02 Transfers by the Blackstone Entities of their Equity Interests in
Xxxxx Holdings.
(a) The Blackstone Entities shall have the right to Transfer their
respective equity interests in Xxxxx Holdings:
(i) prior to Final Completion,
(A) in whole or in part to (1) a transferee that is a single entity
or group of related entities that is rated investment grade by both Credit
Rating Agencies after giving effect to such transfer or (2) any other
transferee with (x) the prior consent of Majority Bank Lenders and (y)
either the prior consent of Majority Bondholders or a Ratings
Reaffirmation, provided in either of case (1) or (2) that either the
Blackstone Entities retain their several obligations to fund their pro rata
portion of any unfunded Capital Commitment, including without limitation
any unfunded Initial Capital Contribution (such pro rata portion, the
"Blackstone Capital Commitment") or such transferee assumes such
obligations; or
(B) in part but not in whole by means of a primary or secondary
public offering, a Rule 144A offering or private sale, provided that the
Blackstone Entities collectively (1) retain not less than 40% of the total
capital stock outstanding of Xxxxx
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Holdings or (2) retain the largest single direct or indirect shareholding
in Xxxxx Holdings and maintain the direct or indirect right to appoint no
fewer than one-third of the members of the board of directors of Xxxxx
Holdings, and provided, further, that, in any case, the Blackstone Entities
retain their several obligations to fund the Capital Commitment; or
(ii) following Final Completion, in any manner.
(b) Any Blackstone Capital Commitment continuing after a Transfer
pursuant to clause (a) of this Section 2.02 shall be limited to the maximum
unfunded amount of the Blackstone Capital Commitment prior to such Transfer.
2.03 Restriction on Xxxxx Holding's Acquisition of Interests in the
General Partner. Xxxxx Holdings may not acquire any of the 10% equity interest
in the General Partner held by Occidental Petroleum unless, after giving effect
to such acquisition, the Senior Debt and the senior unsecured long-term debt of
Xxxxx R&M and Xxxxx USA are rated investment grade by the Credit Rating
Agencies.
2.04 Transfers by Xxxxx Holdings of its Interest in the Refinery,
Xxxxx R&M and the Partnership. Following Final Completion, Xxxxx Holdings may
Transfer, upon not less than 30 days' prior written notice to the Secured
Parties, its indirect interest in the Refinery, Xxxxx R&M and the Partnership in
whole but not in part to a transferee that is engaged as one of its businesses
in petroleum refinery operations, provided that if such Transfer is to a
transferee that is not rated investment grade by both Credit Rating Agencies
after giving effect to such Transfer, (a) Xxxxx Holdings has obtained the prior
consent of Majority Lenders (or, after 30 days following the giving of a
Priority Termination Notice in accordance with clause (c) of Section 10.04 of
the Common Security Agreement, Majority Secured Parties) and (b) the Credit
Rating Agencies have reaffirmed without negative implication the rating on the
Senior Debt at or above the then-current rating, provided, further, that, in any
case, if such Transfer is by means other than a Transfer of all the shares of
Xxxxx R&M or Xxxxx USA, such transferee assumes all obligations of Xxxxx R&M
under the Project Documents to which Xxxxx R&M is party.
2.05 Conditions for Authorized Transfers. Any Transfer pursuant to
this Article II shall be permitted only if the following conditions are
satisfied.
(a) The transferee and transferor execute and deliver an instrument
in form and substance reasonably satisfactory to the Secured Parties that
contains representations, warranties and agreements confirming the compliance of
such Transfer with this Agreement and the other Transaction Documents and
otherwise effecting the requirements of this Agreement and other Transaction
Documents in connection with such Transfer;
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(b) Any such Transfer shall not (i) give rise to a right to
accelerate any Indebtedness in an aggregate principal amount in excess of $5
million of any of the Borrower, the Partner, the General Partner or the Limited
Partner or (ii) constitute a material breach of any agreement to which any of
the Borrower, the Partnership, the General Partner, the Limited Partner or the
Xxxxx Entities is party;
(c) The transferor and the transferee shall deliver to the Secured
Parties such legal opinions to the effect that (i) the instrument of assignment
has been duly authorized, executed and delivered, (ii) the assignment is
enforceable against the parties thereto in accordance with its terms, (iii) the
Transfer does not result in a violation of the Securities Act or any other
applicable federal or state law or an order of any court having jurisdiction
over the Borrower, the Partnership, the General Partner, the Limited Partner,
any of the Blackstone Entities, the Xxxxx Entities or the Xxxxx Project and (iv)
the Transfer does not (A) give rise to a right to accelerate any Indebtedness in
an aggregate principal amount in excess of $5 million of any of the Borrower,
the Partner, the General Partner or the Limited Partner or (B) constitute a
material breach of any agreement to which any of the Borrower, the Partnership,
the General Partner, the Limited Partner or the Xxxxx Entities is party; and
(d) The Transferor becomes a party to this Agreement.
2.06 Assumption of Obligations; Novation. No Transfer pursuant to
this Article II shall be effective unless the Permitted Assignee assumes in
writing all of the obligations of the transferor under this Agreement and the
Common Security Agreement with respect to the interest being transferred. The
transferor shall be relieved of all such obligations assumed by its Permitted
Assignee pursuant to this clause subject, with respect to the Blackstone
Entities, to clause (a) of Section 2.02.
2.07 Involuntary Transfers. A Transfer that is not permitted under
this Agreement which results from any actions by any Person other than the
transferor or an Affiliate thereof and as to which neither the transferor nor
the respective Affiliate has consented in writing, shall not result in a breach
of the obligations of the parties hereto under this Agreement unless such
Transfer is not reversed within 60 days of the occurrence thereof, provided,
however, that the transferor shall have given written notice of such involuntary
Transfer to the Secured Parties within 30 days of the date of such Transfer.
2.08 Effect on Security Interests. Notwithstanding the foregoing, no
Transfer that is permitted by this Article shall be made (a) if such Transfer
would have a material adverse effect upon the security interests created under
or pursuant to the Common Security Agreement and the Security Documents and (b)
unless the Partnership has delivered to the Secured Parties 21 days' prior
written notice of the proposed Transfer and a written opinion or opinions of any
of the General Counsel of the Partnership, Xxxxx Xxxxx & Xxxxx (as to matters of
Texas law), Xxxxxxx Xxxxxxx & Xxxxxxxx (as to matters of New York law)
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or such other counsel selected by it (and not objected to by Secured Parties
within 30 days of the Partnership notifying Secured Parties of the identity of
such counsel) in the appropriate jurisdictions to the effect that no material
adverse effect would result from such Transfer.
2.09 Transfers Not Permitted Under this Article II. Any Transfer
other than as set forth above shall require the consent of Requisite Lenders
(or, after 30 days following the giving of a Priority Termination Notice in
accordance with clause (c) of Section 10.04 of the Common Security Agreement,
Requisite Secured Parties). A request for the consent of Requisite Lenders or
Requisite Secured Parties, as the case may be, shall be submitted in writing to
each Senior Lender Group (and, after 30 days following the giving of a Priority
Termination Notice in accordance with clause (c) of Section 10.04 of the Common
Security Agreement, the Oil Payment Insurers Administrative Agent) and the
Collateral Trustee by the party seeking such consent and shall set forth in
reasonable detail (i) the terms and conditions of the proposed Transfer,
including without limitation the identity of the proposed transferee and, if
applicable, of the ultimate beneficial owner thereof (and the proposed
assumption of obligations under the Financing Documents), (ii) the date upon
which the Transfer is proposed to be made (if known) and (iii) any other
information reasonably requested by Senior Lenders (or, after 30 days following
the giving of a Priority Termination Notice in accordance with clause (c) of
Section 10.04 of the Common Security Agreement, Secured Parties).
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.01 Representations and Warranties. Each of the Borrower, the
Partnership, the General Partner, the Limited Partner, Xxxxx Holdings and the
Blackstone Entities, insofar as the following applies to itself, represents and
warrants to the Collateral Trustee, the Bank Senior Lenders Administrative
Agent, the Oil Payment Insurers Administrative Agent and the Capital Markets
Trustee, as of the date hereof:
(a) Organization. It is a corporation, in the case of the Borrower,
Xxxxx Holdings and each of the Partners, and a limited partnership, in the case
of the Partnership and each of the Blackstone Entities, duly organized and
validly existing in good standing under the laws of its jurisdiction of
incorporation or organization, as the case may be.
(b) Ownership. (i) The Blackstone Entities collectively (A) directly
own 68% of the outstanding capital stock of Xxxxx Holdings and (B) indirectly
own 90% of the outstanding capital stock of the General Partner, (ii) Occidental
Petroleum directly owns 31% of the outstanding capital stock of Xxxxx Holdings
and 10% of the outstanding capital stock of the General Partner, (iii) Xxxxx
Holdings directly owns 100% of the outstanding capital stock of Xxxxx USA, Inc.
and 90% of the outstanding capital stock of the General Partner,
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(iv) Xxxxx USA, Inc. directly owns 100% of the outstanding capital stock of
Xxxxx R&M, (v) the General Partner directly owns 100% of the outstanding capital
stock of the Limited Partner and the 1% general partnership interest in the
Partnership, (vi) the Limited Partner directly owns the 99% limited partnership
interest in the Partnership and (vii) the Partnership directly owns 100% of the
outstanding capital stock of the Borrower.
(c) Authority. It has full power and authority to execute and
deliver this Agreement and to incur and perform its obligations hereunder in
accordance with the terms provided herein.
(d) Binding Agreement. This Agreement has been duly authorized,
executed and delivered by it and constitutes a valid and legally binding
agreement of such party enforceable in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
and to general equity principles.
(e) Consents and Approvals for this Agreement. All Third-Party
Authorizations that are necessary for the execution and delivery by it of this
Agreement and the performance of its obligations hereunder have been obtained
and are in full force and effect.
(f) Conflicts. There is no provision of law, statute, regulation,
rule, order, injunction, decree, writ or judgment, no provision of its charter
documents and no provision of any mortgage, indenture, contract or agreement
binding on it or affecting its properties, which would prohibit, conflict with
or in any way prevent its execution, delivery, or performance of the terms of
this Agreement.
(g) No Immunity. Neither it nor any of its properties has any
immunity from jurisdiction of any court or from any legal process in the United
States (whether through service, notice, attachment prior to judgment,
attachment in aid of execution, execution or otherwise).
(h) No Legal Proceedings. There are no legal actions, suits or
proceedings pending or, to its knowledge, threatened against or affecting it or
any of its properties in any court, before or by any governmental department,
board, agency, administration or instrumentality or before any arbitrator, and
no existing default by it under any applicable order, writ, injunction, decree
or other decision of any court, governmental department, board agency,
administrator or instrumentality or any arbitrator, in each case, (i) that could
be expected to have a material adverse effect on its ability to perform its
obligations under this Agreement, or (ii) which could be expected to render this
Agreement unenforceable.
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ARTICLE IV
MISCELLANEOUS
4.01 Termination. This Agreement shall terminate on the earlier of
(a) the date on which the Common Security Agreement shall terminate and (b) as
to any party to this Agreement to whom the transfer restrictions apply, the date
on which the applicable Transfer restrictions applicable to such party cease to
apply to it. Upon the termination of this Agreement, the obligations of the
party or parties as to which this Agreement shall have terminated shall cease to
apply.
4.02 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
4.03 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 arising out of or relating to this Agreement or the
transactions contemplated hereby.
4.04 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.
4.05 Notices. Any notice, claim, request, demand, consent,
designation, direction, instruction, certificate, report or other communication
to be given hereunder shall be given in writing and will be deemed duly given
when (a) personally delivered, (b) sent by facsimile transmission (with written
confirmation or acknowledgment of receipt, whether written or oral) or (c) 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 set forth in Appendix P to the Common
Security Agreement or to such other address or facsimile transmission number of
which that party has given notice. Notice of address or facsimile number change
shall be effective only upon receipt.
4.06 Execution in Counterparts. This Agreement may be executed in any
number of counterparts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an original,
but all the counterparts shall together constitute one and the same instrument.
4.08 Consent to Jurisdiction. (a) Subject to clause (c) of this
Section 4.08, 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,
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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
which 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 an inconvenient
forum.
(b) Each of the Restricted Parties (other than the Blackstone
Entities) hereby irrevocably appoints CT Corporation System, with offices at the
date hereof at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, as its authorized agent
on which 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. Each party hereto agrees that service of
process in respect of it upon its respective agent, together with written notice
of such service given to it in the manner provided in Section 4.05, shall be
deemed to be effective service of process upon it in any such action, suit or
proceeding. Each of the Restricted Parties (other than the Blackstone Entities)
agrees that the failure of its respective agent to give notice to it of any such
service shall not impair or affect the validity of such service or any judgment
rendered in any action, suit or proceeding based thereon. If for any reason any
such Restricted Party's respective agent shall cease to be available to act as
such, or if any of the Blackstone Entities ceases to be located in New York,
such party agrees to designate a new agent in the Borough of Manhattan, The City
of New York, on the terms and for the purposes of this clause (b).
(c) Notwithstanding the provision of clause (a) of this Section 4.08,
nothing herein shall be deemed to limit the ability of any of the Secured
Parties, the Collateral Trustee or any Applicable Agent to serve any such legal
process in any other manner permitted by applicable law or to obtain
jurisdiction over any of the Restricted Parties or bring actions, suits or
proceedings against any such party in such other jurisdiction, including without
limitation in any Federal or State court located in the State of Texas, and in
such manner, as may be permitted by applicable law.
(d) 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
4.08 or, in the case of any of the Borrower, the Partnership, the General
Partner or the Limited Partner, in any other court in accordance with clause (c)
of this Section 4.08, 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.
4.09 No Recourse. Unless expressly provided herein or in any of
the Senior Loan Agreements, Security Documents or any other agreement in
connection herewith or
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therewith (collectively, the "Senior Debt Documents"), no recourse shall be had
by the Collateral Trustee, the Applicable Agents or any other Secured Party in
an action to collect any Senior Debt Obligations against any principal, partner,
shareholder, officer, director, employee, trustee, beneficiary, tenant in
common, agent or Affiliate (other than the Borrower Parties) of the Partnership
(collectively "Exculpated Persons"), provided that this Section 4.09 shall be
inapplicable to the extent of gross negligence or willful misconduct by such
Exculpated Person.
4.10 Amendments. Except to the extent provided in Section 2.06, this
Agreement may be amended only by an agreement in writing signed by each party
hereto. Except as otherwise expressly provided herein, no waiver or consent of
any term or condition of this Agreement in favor of any party hereto (other than
the Secured Parties) may be given or granted except by the written agreement of
all Secured Parties.
4.11 Conflicts. In case of any conflict or inconsistency between this
Agreement and any Senior Loan Agreement or the Oil Payment Reimbursement
Agreement, this Agreement shall control.
4.12 Effectiveness. This Agreement shall come into full force and
effect upon (a) its execution and delivery by each of the parties named on the
signature pages hereof and (b) the effectiveness of the Common Security
Agreement in accordance with Section 14.15 thereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first above written.
PORT XXXXXX FINANCE CORP.
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
PORT XXXXXX XXXXX COMPANY L.P.
By: SABINE RIVER HOLDING CORP.,
GENERAL PARTNER
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
SABINE RIVER HOLDING CORP.
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
NECHES RIVER HOLDING CORP.
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
XXXXX REFINING HOLDINGS, INC.
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
BLACKSTONE CAPITAL PARTNERS III
MERCHANT BANKING FUND L.P.
By: BLACKSTONE MANAGEMENT ASSOCIATES III L.L.C.,
GENERAL PARTNER
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Member
BLACKSTONE OFFSHORE CAPITAL PARTNERS III L.P.
By: BLACKSTONE MANAGEMENT ASSOCIATES III L.L.C.,
GENERAL PARTNER
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Member
BLACKSTONE FAMILY INVESTMENT
PARTNERSHIP III L.P.
By: BLACKSTONE MANAGEMENT ASSOCIATES III L.L.C.,
GENERAL PARTNER
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Member
BANKERS TRUST COMPANY,
as Collateral Trustee
By: /s/ Xxxxx XxXxxxxxx
------------------------------------
Name: Xxxxx XxXxxxxxx
Title: Vice President
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Assistant Vice President
DEUTSCHE BANK AG, NEW YORK BRANCH, as
Administrative Agent for the Bank Senior Lenders
By: /s/ Xxxxxxx Xx Xxxxxx
------------------------------------
Name: Xxxxxxx Xx Xxxxxx
Title: Associate
By: /s/ Xxxxx Xxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President
WINTERTHUR INTERNATIONAL INSURANCE COMPANY
LIMITED,
as Administrative Agent for and on behalf of the
Oil Payment Insurers
By: /s/ Xxxxxx XxXxxxxx
------------------------------------
Name: Xxxxxx XxXxxxxx
Title: Property Underwriting Manager
HSBC BANK USA,
as Capital Markets Trustee
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Assistant Vice President
