SUBSIDIARY GUARANTY
Exhibit
4.7
SUBSIDIARY
GUARANTY dated as of December 20, 2007 among each of the signatories listed on
the signature pages hereto and each of the other entities that becomes a party
hereto pursuant to Section 9 hereof (the “Guarantors” and individually,
a “Guarantor”), in favor
of Citibank, N.A., (“Citibank”) in its capacity as
the administrative agent (the “Administrative Agent”) for the
benefit of the Secured Parties (as defined in the Security Agreement (as defined
below)).
WHEREAS,
Lyondell Chemical Company, Equistar Chemicals, LP, Houston Refining LP, Basell
USA Inc., and the other borrowers named therein (the “Borrowers”) have entered into
that certain Credit Agreement dated December 20, 2007 among the Borrowers, the
Lenders party thereto, Citibank, as collateral agent and administrative agent
and the other banks and financial institutions party thereto (as the same may be
amended, restated, supplemented or otherwise modified through the date hereof,
the “Credit Agreement”,
capitalized terms unless defined herein, shall have the meanings specified in
the Credit Agreement) pursuant to which, among other things, the
Lenders have severally agreed to make loans and issue or participate in letters
of credit under the Credit Agreement;
WHEREAS,
each Borrower has entered into that certain security agreement dated December
20, 2007 among the Borrowers and the Administrative Agent (the “Security Agreement”) to secure
their obligations under the Credit Agreement and other Loan Documents, as well
as certain cash management obligations in favor of the Administrative Agent, on
behalf of the Secured Parties;
WHEREAS,
each Guarantor is a direct or indirect wholly-owned Subsidiary of one of the
Borrowers; and
WHEREAS,
in consideration of the financial and other support that the Secured Parties
have provided, and such financial and other support as any Borrower may in the
future provide, to the Guarantors, each Guarantor is willing to enter into this
Subsidiary Guaranty.
NOW,
THEREFORE, in consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
each Guarantor agrees as follows:
1. The Subsidiary
Guaranty. Each Guarantor hereby, jointly and severally,
unconditionally guarantees the full and punctual payment (whether at stated
maturity, upon acceleration or otherwise) of each Guaranteed Obligation, as
hereinafter defined. Upon failure by any Borrower to pay punctually
any Guaranteed Obligation, each Guarantor shall forthwith on demand pay the
amount not so paid at the place and in the manner specified in the instrument
evidencing such Guaranteed Obligation (or, in the case of any extension of time
of payment or renewal of any Guaranteed Obligation, in accordance with the terms
of such extension or renewal). “Guaranteed Obligations” means
(i) the “Obligations” (as defined in the Credit Agreement) payable by any
Borrower from time to time pursuant to the Credit Agreement or any Secured
Agreement (as defined in the Security Agreement) (including, without limitation,
any interest (“Post-Petition
Interest”) which accrues (or which would accrue but for such case,
proceeding or action) after the commencement of any case, proceeding or other
action relating to the bankruptcy, insolvency or reorganization of any Borrower
(whether or not such interest is allowed or allowable as a claim in any such
case, proceeding or other action) with respect to such amounts) and (ii) any
renewals, refinancings or extensions of any of the foregoing (including
Post-Petition Interest).
2. Guarantee
Unconditional. The obligations of each Guarantor hereunder
shall be unconditional and absolute and, without limiting the generality of the
foregoing, shall not be released, discharged or otherwise affected
by:
(a) any
extension, renewal, settlement, compromise, waiver or release in respect of any
obligation of any Borrower under the Credit Agreement or any Secured Agreement,
by operation of law or otherwise;
(b) any
modification or amendment of or supplement to the Credit Agreement or any
Secured Agreement;
(c) any
release, impairment, non-perfection or invalidity of any direct or indirect
security for any obligation of any Borrower under the Credit Agreement or any
Secured Agreement;
(d) any
change in the corporate existence, structure or ownership of any Borrower, or
any insolvency, bankruptcy, reorganization or other similar proceeding affecting
any Borrower or its assets or any resulting release or discharge of any
obligation of any Borrower contained in the Credit Agreement or any Secured
Agreement;
(e) the
existence of any claim, set-off or other rights which any Guarantor may have at
any time against any Borrower, the Administrative Agent or the Secured Parties
or any other entity, whether in connection herewith or with any unrelated
transactions, provided
that nothing herein shall prevent the assertion of any such claim by separate
suit or compulsory counterclaim;
(f) any
invalidity or unenforceability relating to or against any Borrower for any
reason of the Credit Agreement or any Secured Agreement, or any provision of
applicable law or regulation purporting to prohibit the payment by any Borrower
of any amounts payable pursuant to the Credit Agreement or any Secured
Agreement; or
(g) any other
act or omission to act or delay of any kind by any Borrower, the Administrative
Agent, any Secured Party or any other person or any other circumstance
whatsoever which might, but for the provisions of this paragraph, constitute a
legal or equitable discharge of or defense to such Guarantor’s obligations
hereunder.
3. Limit of
Liability. Each Guarantor shall be liable under this
Subsidiary Guaranty only for amounts aggregating up to the largest amount that
would not render its obligations hereunder subject to avoidance under Section
548 of the United States Bankruptcy Code or any comparable provision of any
other applicable law.
4. Discharge Only Upon Payment in Full;
Reinstatement In Certain Circumstances. Each Guarantor’s
obligations hereunder shall remain in full force and effect until all Guaranteed
Obligations shall have been paid in full. If at any time any payment
of any Guaranteed Obligation is rescinded or must be otherwise restored or
returned upon the insolvency, bankruptcy or reorganization of any Borrower or
otherwise, such Guarantor’s obligations hereunder with respect to such payment
shall be reinstated as though such payment had been due but not made at such
time.
5. Waiver by
Guarantors. Each Guarantor irrevocably waives acceptance
hereof, presentment, demand, protest and any notice not provided for herein, as
well as any requirement that at any time any action be taken by any person or
entity against such Guarantor, any Borrower or any other person or
entity.
6. Subrogation. Upon
making full payment with respect to any obligation of any Borrower hereunder,
such Guarantor shall be subrogated to the rights of the payee against such
Borrower with respect to such obligation; provided that such Guarantor
shall not enforce any payment by way of subrogation so long as any Guaranteed
Obligation remains unpaid.
7. Stay of
Acceleration. If acceleration of the time for payment of any
Guaranteed Obligation is stayed upon the insolvency, bankruptcy or
reorganization of any Borrower, all such Guaranteed Obligations otherwise
subject to acceleration under the terms of the Credit Agreement or any Secured
Agreement, shall nonetheless be payable by each Guarantor hereunder forthwith on
demand by the Administrative Agent, on behalf of the Secured
Parties.
8. Representations and
Warranties. Each Guarantor represents and warrants to the
Administrative Agent and each Secured Party that:
(a) such
Guarantor is duly organized, validly existing and in good standing under the
laws of the jurisdiction of its organization;
(b) the
execution, delivery and performance by such Guarantor of this Subsidiary
Guaranty are within such Guarantor’s corporate powers and have been duly
authorized by all necessary corporate or other company action;
(c) this
Subsidiary Guaranty constitutes a legal, valid and binding obligation of such
Guarantor, enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium, and other laws affecting
creditors’ rights generally and subject to general principles of equity,
regardless of whether considered in a proceeding in equity or at
law;
(d) the
execution, delivery and performance of this Subsidiary Guaranty (i) do not
require any material approval, consent, exemption, authorization or other action
by, or notice to, or filing with, any Governmental Authority or any other
Person, except the approvals, consents, exemptions, authorizations, actions,
notice and filings which have been duly obtained, taken, given or made and are
in full force and effect, (ii) will not, (x) in any material way, conflict with
or result in any breach or contravention of any contractual obligation to which
such Guarantor is a party or affecting such Guarantor or the properties of such
Guarantor or (y) contravene the terms of such Guarantor’s Organizational
Documents, or (iii) violate any material law in any material way
except to the extent that such violation or default (except for clause (ii))
could not reasonably be expected to have a Material Adverse Effect;
and
(e) there are
no actions, suits, proceedings, claims or disputes pending or, to the knowledge
of such Guarantor, threatened in writing or contemplated, at law, in equity, in
arbitration or before any Governmental Authority, by or against such Guarantor
or against any of its properties or revenues that could, individually or in the
aggregate. reasonably be expected to have a Material Adverse
Effect.
9. Additional Guarantors. Upon
the execution and delivery by any Subsidiary of a Guaranty Supplement in
substantially the form of Exhibit A hereto (each, a “Guaranty Supplement”), (a)
such Person shall be referred to as an “Additional Guarantor” and
shall become and be a Guarantor hereunder, and each reference in this Subsidiary
Guaranty to a “Guarantor” shall also mean a
reference to such Additional Guarantor, and each reference in any Loan Document
to a “Guarantor” shall
also mean and be a reference to such Additional Guarantor, and (b) each
reference herein to “this
Subsidiary Guaranty,” “hereunder,” “hereof” or words of like
import referring to this Subsidiary Guaranty, and each reference in any other
Loan Document to “the
Subsidiary Guaranty,” “thereunder,” “thereof” or words of like
import referring to this Subsidiary Guaranty, shall mean and be a reference to
this Subsidiary Guaranty as supplemented by the Guaranty
Supplement.
10. Taxes. Any
and all payments by or on account of any Guaranteed Obligation of each Guarantor
hereunder shall be made free and clear of and without deduction for Indemnified
Taxes or Other Taxes, in accordance with Section 2.19 of the Credit
Agreement.
11. Notices. Each
notice, request or other communication given to any party hereunder shall be
given in accordance with Section 10.01 of the Credit Agreement, and in the case
of any such notice, request or other communication to any Guarantor, shall be
given to it in care of the Borrowers’ Agent.
12. No Waiver. No
failure or delay by the Administrative Agent or any Secured Party in exercising
any right, power or privilege under this Subsidiary Guaranty shall operate as a
waiver thereof nor shall any single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege.
13. Amendments and
Waivers. Any provision of this Subsidiary Guaranty may be
amended or waived if, but only if, such amendment or waiver is in writing and is
signed by the Administrative Agent (on behalf of the Secured Parties) and each
Guarantor.
14. Successors and
Assigns. This Subsidiary Guaranty shall be binding upon each
Guarantor and its successors and assigns, for the benefit of the Administrative
Agent, the Secured Parties and their respective successors and assigns, except
that no Guarantor may transfer or assign any or all of its rights or obligations
hereunder without the prior written consent of the Lenders.
15. Governing Law;
Jurisdiction. (a) This Subsidiary
Guaranty shall be construed and interpreted in accordance with and governed by
the law of the State of New York.
(b)
To the extent it may effectively do so under applicable law, each Guarantor (1)
irrevocably submits to the nonexclusive jurisdiction of any New York State or
Federal court sitting in the Borough of Manhattan, The City of New York, over
any suit, action or proceeding arising out of or relating to this Subsidiary
Guaranty or any other document contemplated thereby, and (2) irrevocably waives
and agrees not to assert, by way of motion, as a defense or otherwise, any claim
that it is not subject to the jurisdiction of any such court, any objection that
it may now or hereafter have to the laying of the venue of any such suit, action
or proceeding brought in any such court and any claim that any such suit, action
or proceeding brought in any such court has been brought in an inconvenient
forum.
(c)
Each Guarantor agrees, to the fullest extent it may effectively do so under
applicable law, that a judgment in any suit, action or proceeding of the nature
referred to in paragraph (b) above brought in any such court shall be conclusive
and binding upon such Guarantor and may be enforced in the courts of the United
States of America or the State of New York (or any other courts to the
jurisdiction of which such Guarantor is or may be subject) by a suit upon such
judgment.
(d)
To the extent it may effectively do so under applicable law, each Guarantor
consents to process being served in any suit, action or proceeding of the nature
referred to in paragraph (b) by mailing a copy thereof by registered or
certified mail, postage prepaid, return receipt requested, to the address of
such Guarantor set forth or referred to in Section 11. To the extent it may
effectively do so under applicable law, each Borrower agrees that such service
(x) shall be deemed in every respect effective service of process upon such
Borrower in any such suit, action or proceeding and (y) shall be taken and held
to be valid personal service upon and personal delivery to such
Guarantor.
(d)
Nothing in this Section 15 shall affect the right of any Agent or Lender to
serve process in any manner permitted by law, or limit any right that any Agent
or Lender may have to bring proceedings against any Guarantor in the courts of
any jurisdiction or to enforce in any lawful manner a judgment obtained in one
jurisdiction in any other jurisdiction.
16.
WAIVER OF JURY TRIAL.
EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
SUBSIDIARY GUARANTY. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE,
AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE
BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION.
17.
Guaranty Limitations in
Respect of Millennium Chemicals Inc.Any amount that may be guaranteed by
Millennium Chemicals Inc or any of its Subsidiaries, shall not exceed the amount
permitted to be Incurred (as defined in the Millennium Indenture (as defined
below)) as Funded Debt (as defined in the Millennium Indenture) as more fully
set forth in Section 1009 of the Millennium Indenture; provided, however, that upon the
refinancing in full of the Millennium America Inc. 7⅝ Senior Notes due 2026 (the
“Millennium
Notes”), this Section 17 shall cease to operate and have any force and
effect as of the date of such refinancing. For purposes of this section, “ Millennium
Indenture” means the indenture dated January 29,
1996 in respect of the Millennium Notes, as supplemented by a Supplemental
Indenture dated February 15, 1996, December 1, 1997, December 3, 2000 and
November 17, 2000, as in effect on the Closing Date (as defined
therein).
[Signature
Pages Follow]
IN
WITNESS WHEREOF, the parties hereto have caused this Subsidiary Guaranty to be
duly executed by their respective authorized officers as of the day and year
first above written.
LYONDELL REFINING COMPANY LLC
LYONDELL HOUSTON REFINERY INC.
LYONDELL CHEMICAL NEDERLAND, LTD.
LYONDELL-EQUISTAR HOLDINGS PARTNERS
LYONDELL (PELICAN) PETROCHEMICAL L.P. 1, INC.
LYONDELL LP4 INC.
LYONDELL LP3 GP, LLC
MILLENNIUM PETROCHEMICALS PARTNRS, LP
MILLENNIUM US OP CO LLC
MILLENNIUM AMERICA INC.
MILLENNIUM AMERICA HOLDINGS INC.
MILLENNIUM WORLDWIDE HOLDINS I INC.
MILLENNIUM CHEMICALS INC.
MILLENNIUM PETROCHEMICALS GP LLC
LYONDELL CHEMICAL TECHNOLOGY MANAGEMENT, INC.
LYONDELL REFINING I, LLC
LYONDELL LP3 PARTNERS, LP
LYONDELL PETROCHEMICAL L.P. INC.
LYONDELL EUROPE HOLDINGS INC.
LYONDELL CHEMICAL PRODUCTS EUROPE, LLC
LYONDELL CHIMIE FRANCE LLC
MILLENNIUM SPECIALTY CHEMICALS INC.
MILLENNIUM PETROCHEMICALS INC.
LYONDELL CHEMICAL TECHNOLOGY, L.P.
LYONDELL CHEMICAL TECHNOLOGY 1, INC.
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By:
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/s/ Xxxxx X. Xxxxxxxxx | |
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Name:
Xxxxx X. Xxxxxxxxx
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Title:
Authorized Representative
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Agreed to and
accepted by:
CITIBANK, N.A.
as Administrative
Agent
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By:
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/s/ Xxxxxxx Xxxxxx | |
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Name:
Xxxxxxx Xxxxxx
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Title:
Vice President
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Exhibit
A
to
Subsidiary Guaranty
GUARANTY
SUPPLEMENT NO. [__] dated as of [________] between [NAME OF ADDITIONAL
GUARANTOR] (a “Guarantor”) and Citibank,
N.A., as Administrative Agent for the benefit of the Secured
Parties.
A.
Reference is made to the Credit Agreement, dated as of December [20], 2007 (as
the same may be amended, restated, supplemented or otherwise modified,
refinanced or replaced from time to time, the “Credit Agreement”) among
Lyondell Chemical Company, Equistar Chemicals, LP, Houston Refining LP, Basell
USA Inc., the other borrowers named therein, the lenders party thereto,
Citibank, N.A., as collateral agent and administrative agent and the other banks
and financial institutions party thereto.
B.
Capitalized terms used herein and not otherwise defined herein shall have the
meanings assigned to such terms in the Subsidiary Guaranty.
C.
The Guarantors have entered into the Subsidiary Guaranty in order to induce the
Secured Parties, among other things, to extend loans and issue letters of credit
and provide cash management services to the Borrowers.
D.
Section 5.03 of the Credit Agreement and Section 9 of the Subsidiary Guaranty
provide that additional Subsidiaries may become Guarantors under the Subsidiary
Guaranty by execution and delivery of an instrument in the form of this Guaranty
Supplement. Each undersigned Subsidiary (each an “Additional Guarantor”) is
executing this Guaranty Supplement in accordance with the requirements of the
Credit Agreement to become a Guarantor under the Subsidiary Guaranty in order to
induce the Secured Parties, among other things, to extend loans and issue
letters of credit and provide cash management services to the Borrowers, and as
consideration for such extensions of credit previously made to the
Borrowers.
Accordingly,
the Administrative Agent and each Additional Guarantor agree as
follows:
SECTION
1.
In accordance with Section 9 of the Subsidiary Guaranty, each Additional
Guarantor by its signature below becomes a Guarantor under the Subsidiary
Guaranty with the same force and effect as if originally named therein as a
Guarantor and each Additional Guarantor hereby (a) agrees to all the terms and
provisions of the Subsidiary Guaranty applicable to it as a Guarantor thereunder
and (b) represents and warrants that the representations and warranties made by
it as a Guarantor thereunder are true and correct on and as of the date hereof
(or, where such representations and warranties expressly relate to an earlier
date, as of such earlier date). Each reference to a Guarantor in the Subsidiary
Guaranty shall be deemed to include each Additional Guarantor. The Subsidiary
Guaranty is hereby incorporated herein by reference.
SECTION
2.
Each Additional Guarantor represents and warrants to the Administrative Agent
and the other Secured Parties that the execution, delivery and performance by it
of this Guaranty Supplement are within such Guarantor’s corporate powers and
have been duly authorized by all necessary corporate or other company
action, and constitute its
legal, valid and binding obligation, enforceable against it in accordance with
its terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium, and other laws affecting creditors’ rights generally and subject to
general principles of equity, regardless of whether considered in a proceeding
in equity or at law.
SECTION
3.
This Guaranty Supplement may be executed by one or more of the parties to this
Guaranty Supplement on any number of separate counterparts (including by
facsimile or other electronic transmission), and all of said counterparts taken
together shall be deemed to constitute one and the same instrument. A set of the
copies of this Guaranty Supplement signed by all the parties shall be lodged
with the Borrowers’ Agent and the Administrative Agent. This Guaranty
Supplement shall become effective as to each Additional Guarantor when the
Administrative Agent shall have received counterparts of this Guaranty
Supplement that, when taken together, bear the signatures of such Additional
Guarantor and the Administrative Agent.
SECTION
4.
Except as expressly supplemented hereby, the Subsidiary Guaranty shall remain in
full force and effect.
SECTION
5.
THIS GUARANTY SUPPLEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW
OF THE STATE OF NEW YORK.
SECTION
6.
All notices, requests and demands pursuant hereto shall be made in accordance
with Section 10.01 of the Credit Agreement. All communications and notices
hereunder to each Additional Guarantor shall be given to it in care of the
Borrowers’ Agent at its address set forth in Section 10.01 of the Credit
Agreement.
[Signature
Pages Follow]
2
IN
WITNESS WHEREOF, each Additional Guarantor and the Administrative Agent have
duly executed this Guaranty Supplement as of the day and year first above
written.
as Guarantor
By:
Name:
Title:
CITIBANK,
N.A., as Administrative Agent
By:
Name:
Title:
