GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT, dated as of September 27, 2002 (the "GUARANTY
AGREEMENT"), is made by TE PRODUCTS PIPELINE COMPANY, LIMITED PARTNERSHIP, a
Delaware limited partnership ("TEPPCO"), and MARATHON ASHLAND PETROLEUM LLC, a
Delaware limited liability company ("MAP" and together with TEPPCO, the "SPECIAL
GUARANTORS"), in favor of the holders from time to time of the Notes issued
under the below-described Note Agreements.
WHEREAS, Centennial Pipeline LLC, a Delaware limited liability company
(the "COMPANY") and The Prudential Insurance Company of America ("PRUDENTIAL")
have entered into (i) a Revolving Note Agreement dated as of May 4, 2001 (as the
same may be amended, restated, supplemented or otherwise modified from time to
time, the "REVOLVING NOTE AGREEMENT"), pursuant to which the Company sold and
Prudential purchased (in each case subject to the terms and conditions set forth
therein) $10,000,000 aggregate principal amount outstanding from time to time of
the Company's senior floating rate revolving notes (together with any notes
issued in substitution or exchange therefor pursuant to the terms of the
Revolving Note Agreement, the "REVOLVING NOTES"), and (ii) a Master Shelf
Agreement dated as of May 4, 2001 (as the same may be amended, restated,
supplemented or otherwise modified from time to time, the "SHELF AGREEMENT" and
together with the Revolving Note Agreement, the "NOTE AGREEMENTS"), pursuant to
which the Company has sold and may from time to time hereafter sell and
Prudential and/or one or more Prudential Affiliates or Identified Purchasers
(each as defined in the Shelf Agreement) has purchased and may from time to time
hereafter purchase (in each case subject to the terms and conditions set forth
therein) senior fixed rate term notes of the Company in an aggregate principal
amount not to exceed $140,000,000 (together with any notes issued in
substitution or exchange therefor pursuant to the terms of the Shelf Agreement,
the "TERM NOTES" and together with the Revolving Notes, the "NOTES");
WHEREAS, pursuant to the conditions of the Note Agreements, Panhandle
Eastern Pipe Line Company, a Delaware corporation ("PEPL"), TEPPCO and MAP
entered into, as guarantors thereunder, the Guaranty Agreement dated as of May
4, 2001 (as the same may be amended, restated, supplemented or otherwise
modified from time to time, the "ORIGINAL GUARANTY"), in favor of the holders
from time to time of the Notes issued under the Note Agreements;
WHEREAS, (i) a Sponsor Default Event (as defined in the Original Guaranty)
has occurred with respect to PEPL, (ii) the Required Holder(s) (as defined in
the Note Agreements) have requested PEPL to provide Acceptable Credit Support
(as defined in the Original Guaranty) as provided by the terms of the Original
Guaranty, (iii) PEPL has not provided any part of such required Acceptable
Credit Support, and (iv) the Special Guarantors have elected, pursuant to, and
for the purposes provided in, Section 12(c)(ii)(B) of the Original Guaranty and
subject to the terms of this Guaranty
Agreement, to provide Acceptable Credit Support by executing and delivering this
Guaranty Agreement;
NOW THEREFORE, in consideration of, and in reliance on, the premises and
the terms and agreements herein contained, and for other good and valuable
consideration and reasonably equivalent value, each of the Special Guarantors
hereby covenants and agrees with, and represents and warrants to each holder of
Notes as follows:
1. DEFINED TERMS. All capitalized terms used herein, unless specifically
otherwise defined, shall have the meanings ascribed to them in, or by, the
Original Guaranty. In addition, the terms defined in the introductory
paragraph and recitals of this Guaranty Agreement shall have the
respective meanings specified therein, and the following terms shall have
the meanings specified with respect thereto below:
"SPECIAL PEPL EVENT DATE" shall mean the initial date that
occurs on or after the effective date of this Guaranty Agreement on
which PEPL (which term "PEPL", for the avoidance of doubt, includes
any successor to PEPL or any assignee or transferee of PEPL's
interest in the Company) possesses both a senior unsecured long-term
debt rating of BBB- or better from S&P and a senior unsecured
long-term debt rating of Baa3 or better from Xxxxx'x.
"SPECIAL PRO RATA PORTION" shall mean, as to each Special
Guarantor and with respect to any of the Special Guaranteed
Obligations, fifty percent (50%) of PEPL's Pro Rata Portion of the
Guaranteed Obligations under the Original Guaranty.
2. THE GUARANTY. Each of the Special Guarantors hereby irrevocably,
unconditionally and severally (but not jointly) guarantees to each holder
from time to time of any of the Notes, such Special Guarantor's respective
Special Pro Rata Portion of (i) the due and punctual payment in full of
the principal of, Yield-Maintenance Amount or Breakage Cost Obligations,
if any, interest and all other amounts due under the Notes from time to
time outstanding, when and as the same shall become due and payable,
whether at stated maturity or by required or optional prepayment or
purchase, by acceleration or otherwise (including interest due on overdue
payments of principal, Yield-Maintenance Amount or Breakage Cost
Obligations, if any, or interest at the rate set forth in the Notes or any
other amounts due thereunder) which may become due under the terms and
provisions of the Notes or the Note Agreements, and (ii) the full and
prompt payment of all other obligations and liabilities of the Company
under the Note Agreements or under any other Shelf Documents or Revolving
Note Documents (collectively, the "NOTE DOCUMENTS") (all such obligations,
covenants, conditions and agreements described in the foregoing clauses
(i) and (ii) being hereinafter collectively referred to as the "SPECIAL
GUARANTEED OBLIGATIONS"); provided, however, that the amount of Special
Guaranteed Obligations owed at any time shall be reduced,
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pro tanto, by the aggregate amount indefeasibly paid in cash by, or on
behalf of, PEPL in respect of its Pro Rata Portion of the Guaranteed
Obligations. The guaranty in the preceding sentence is an absolute,
present and continuing guaranty of payment and not of collectibility and
is in no way conditional or contingent upon any attempt to collect from
the Company, PEPL or any other guarantor of the Notes or upon any other
action, occurrence or circumstance whatsoever; provided, however, in no
event shall amounts paid by the Special Guarantors in respect of the
Special Guaranteed Obligations be paid in duplication of amounts otherwise
indefeasibly paid in cash by or on behalf of PEPL in respect of the
Guaranteed Obligations, and if any such duplicative payment is made by a
Special Guarantor, then upon written notice thereof to the holders of
Notes from such Special Guarantor, which notice sets forth the amount of
such overpayment, the holders of Notes shall as soon as reasonably
practicable thereafter refund the amount thereof as directed in such
written notice. In the event that the Company shall fail so to pay any of
such Special Guaranteed Obligations, each of the Special Guarantors
severally (but not jointly) agrees to pay its respective Special Pro Rata
Portion of the same when due to the holders of the Notes entitled thereto,
without demand, presentment, protest or notice of any kind, in lawful
money of the United States of America, at the place for payment specified
in the Notes and the Note Agreements. Each default in payment of principal
of, Yield-Maintenance Amount or Breakage Cost Obligations, if any, or
interest or any other amounts due on any Note shall give rise to a
separate cause of action hereunder and separate suits may be brought
hereunder as each cause of action arises. Each of the Special Guarantors
hereby agrees that the Notes issued in connection with the Note Agreements
may make reference to this guaranty.
Each of the Special Guarantors hereby agrees to pay and to indemnify and
save the holders of the Notes harmless from and against any damage, loss,
cost or expense (including attorneys' fees) which such holder may incur or
be subject to as a consequence, direct or indirect, of (i) any breach by
such Special Guarantor or by the Company of any warranty, covenant, term
or condition in, or the occurrence of any default under, this Guaranty
Agreement, the Notes, the Note Agreements or any other Note Document,
together with all expenses resulting from the compromise or defense of any
claims or liabilities arising as a result of any such breach or default,
and (ii) any legal action commenced to challenge the validity of this
Guaranty Agreement, the Notes, the Note Agreements or any other Note
Document.
3. OBLIGATIONS ABSOLUTE. The obligations of each of the Special Guarantors
hereunder shall be primary, absolute, irrevocable and unconditional,
irrespective of the validity, regularity or enforceability of the Notes,
the Note Agreements or any other Note Documents, shall not be subject to
any counterclaim, setoff, deduction or defense (other than indefeasible
payment and if indefeasibly paid, payments made by, or on behalf of, PEPL
in respect of its Pro Rata Portion of the Guaranteed Obligations) based
upon any claim such Special Guarantor may have against the Company or any
holder of the Notes or
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otherwise, and shall remain in full force and effect without regard to,
and shall not be released, discharged or in any way affected by, any
circumstance or condition whatsoever (whether or not such Special
Guarantor shall have any knowledge or notice thereof), including, without
limitation: (a) any amendment, modification of or supplement to the Note
Agreements, the Notes or any other instrument referred to therein (except
that the obligations of such Special Guarantor hereunder shall apply to
the Note Agreements, the Notes or such other instruments as so amended,
modified or supplemented) or any assignment or transfer of any thereof or
of any interest therein, or any furnishing, acceptance or release of any
security for the Notes, (b) any waiver, consent, extension, indulgence or
other action or inaction under or in respect of the Notes or in respect of
the Note Agreements or any other Note Document; (c) any bankruptcy,
insolvency, readjustment, composition, liquidation or similar proceeding
with respect to the Company or its property; (d) any merger, amalgamation
or consolidation of such Special Guarantor or of the Company into or with
any other corporation or any sale, lease or transfer of any or all of the
assets of such Special Guarantor or of the Company to any person; (e) any
failure on the part of the Company for any reason to comply with or
perform any of the terms of any other agreement with such Special
Guarantor; or (f) any other circumstance which might otherwise constitute
a legal or equitable discharge or defense of a guarantor. Each of the
Special Guarantors covenants that, unless released in accordance with
Section 13 hereof, its obligations hereunder will not be discharged except
by payment in full of all of the Special Guaranteed Obligations.
4. WAIVER. Each of the Special Guarantors unconditionally waives to the
fullest extent permitted by law, (a) notice of acceptance hereof, of any
action taken or omitted in reliance hereon and of any defaults by the
Company in the payment of any amounts due under the Notes, the Note
Agreements or any other Note Document, and of any of the matters referred
to in Section 3 hereof, (b) all notices which may be required by statute,
rule of law or otherwise to preserve any of the rights of each holder from
time to time of the Notes against such Special Guarantor, including,
without limitation, presentment to or demand for payment from the Company
or such Special Guarantor with respect to any Note, notice to the Company
or to such Special Guarantor of default or protest for nonpayment or
dishonor and the filing of claims with a court in the event of the
bankruptcy of the Company, (c) any right to the enforcement, assertion or
exercise by any holder of the Notes of any right, power or remedy
conferred in this Guaranty Agreement, the Note Agreements, the Notes or
any other Note Document, (d) any requirement or diligence on the part of
any holder of the Notes and (e) any other act or omission or thing or
delay to do any other act or thing which might in any manner or to any
extent vary the risk of such Special Guarantor or which might otherwise
operate as a discharge of such Special Guarantor.
5. OBLIGATIONS UNIMPAIRED. Each of the Special Guarantors authorizes the
holders of the Notes, without notice or demand to such Special Guarantor
and without affecting its obligations hereunder, from time to time (a) to
renew,
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compromise, extend, accelerate or otherwise change the time for payment
of, or otherwise change the terms of, all or any part of the Notes, the
Note Agreements or any other instrument referred to therein, (b) to take
and hold security for the payment of the Notes, for the performance of
this Guaranty Agreement or otherwise for the indebtedness guaranteed
hereby and to exchange, enforce, waive and release any such security, (c)
to apply any such security and to direct the order or manner of sale
thereof as the holders of the Notes in their sole discretion may
determine, (d) to obtain additional or substitute endorsers or guarantors,
(e) to exercise or refrain from exercising any rights against the Company
and others, and (f) to apply any sums, by whomsoever paid or however
realized, to the payment of the principal of, Yield-Maintenance Amount or
Breakage Cost Obligations, if any, or interest or any other amounts due on
the Notes and any other Special Guaranteed Obligation hereunder. Each of
the Special Guarantors waives any right to require the holders of the
Notes to proceed against any additional or substitute endorsers or
guarantors or to pursue or exhaust any security provided by the Company,
such Special Guarantor or any other person or to pursue any other remedy
available to such holders.
6. SUBROGATION. Each of the Special Guarantors agrees that it will not
exercise any rights which it may have acquired by way of subrogation under
this Guaranty Agreement, by any payment made hereunder or otherwise, or
accept any payment on account of such subrogation rights, or any rights of
reimbursement or indemnity or any rights or recourse to any security for
the Notes or this Guaranty Agreement unless and until all of the
obligations, undertakings or conditions to be performed or observed by the
Company pursuant to the Notes, the Note Agreements and any other Note
Document at the time of such Special Guarantor's exercise of any such
right shall have been performed, observed or paid in full.
7. REINSTATEMENT OF GUARANTY. This Guaranty Agreement shall continue to be
effective, or be reinstated, as the case may be, if and to the extent at
any time, prior to the Guaranty Termination Date, payment, in whole or in
part, of any of the sums due to any holder of the Notes for principal of,
Yield-Maintenance Amount or Breakage Cost Obligations, if any, or interest
on the Notes or any of the other Special Guaranteed Obligations is
rescinded or must otherwise be restored or returned by such holder upon
the insolvency, bankruptcy, dissolution, liquidation or reorganization of
the Company, or upon or as a result of the appointment of a custodian,
receiver, trustee or other officer with similar powers with respect to the
Company or any substantial part of its property, or otherwise, all as
though such payments had not been made; provided, however, if subsequent
to such rescission, restoration or return but prior to the date a Special
Guarantor is obligated to make a payment hereunder as a result of any such
rescission, restoration or return this Guaranty Agreement terminates as a
result of the occurrence of the Special PEPL Event Date, then from and
after that date, this Guaranty Agreement shall no longer be deemed to
continue be effective or reinstated, as the case may be, and for the
avoidance of doubt, any such post-rescission, restoration or return
payment obligation of a Special Guarantor shall
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be cancelled. If an event permitting the acceleration of the maturity of
the principal amount of the Notes shall at any time have occurred and be
continuing and such acceleration shall at such time be prevented or the
right of any holder of a Note to receive any payment under any Note shall
at such time be delayed or otherwise affected by reason of the pendency
against the Company of a case or proceeding under a bankruptcy or
insolvency law, each of the Special Guarantors agrees that, for purposes
of this Guaranty Agreement and its obligations hereunder, the maturity of
such principal amount shall be deemed to have been accelerated with the
same effect as if the holders of the Notes had accelerated the same in
accordance with the terms of the Note Agreements, and such Special
Guarantor shall forthwith pay such accelerated principal amount, accrued
interest and Yield-Maintenance Amount or Breakage Cost Obligations, if
any, or any other amounts due thereon and any other amounts guaranteed
hereunder.
8. PAYMENTS. Each of the Special Guarantors hereby severally (but not
jointly) guarantees that its respective Special Pro Rata Portion of the
Special Guaranteed Obligations will be paid to each holder of the Notes in
lawful currency of the United States of America and in immediately
available funds, at the times and places provided in, and otherwise
strictly in accordance with the terms and provisions of, the Note
Agreements and the Notes (regardless of any law, regulation or decree now
or hereafter in effect which might in any manner affect the Special
Guaranteed Obligations, or the rights of any such holder with respect
thereto as against the Company or cause or permit to be invoked any
alteration in the time, amount or manner of payment by the Company of any
or all of the Special Guaranteed Obligations), without set-off or
counterclaim and free and clear of, and without reduction for or on
account of, any present or future income, stamp or other taxes, levies,
imposts, duties, charges, fees, deductions, withholdings now or hereafter
imposed, levied, collected withheld or assessed by any country (or by any
political subdivision or taxing authority thereof or therein) excluding
income and franchise taxes of the United States of America or any
political subdivision, state or taxing authority thereof or therein
(including Puerto Rico) (such non-excluded taxes being called "FOREIGN
TAXES"). If any Foreign Taxes are required to be withheld from any amount
payable to any such holder under this Guaranty Agreement or under the
Notes, the amounts so payable to such holder shall be increased to the
extent necessary to yield to such holder (after payment of all Foreign
Taxes) interest or any such other amounts at the rates or in the amounts
specified in the Note Agreements and the Notes.
9. RANK OF GUARANTY. Each of the Special Guarantors agrees that its
obligations under this Guaranty Agreement shall rank at least pari passu
with all other unsecured senior obligations of such Special Guarantor now
or hereafter existing.
10. [SECTION INTENTIONALLY LEFT BLANK]
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11. REPRESENTATIONS AND WARRANTIES OF THE SPECIAL GUARANTORS.
Each of the Special Guarantors represents and warrants as follows:
(a) Organization, Good Standing and Location. Such Special Guarantor
(and in the case of TEPPCO, its general partner) is (i) a corporation,
limited partnership or limited liability company (as applicable) duly
organized, validly existing and in good standing under the laws of its
state of organization, (ii) duly qualified and authorized to do business
and in good standing in every other jurisdiction where the nature of its
business requires such qualification and (iii) has all requisite
corporate, limited partnership or limited liability company (as
applicable) power and authority, and all governmental licenses and
permits, to own and operate its properties and to carry on its businesses
as presently conducted. Such Special Guarantor has the requisite
corporate, limited partnership or limited liability company (as
applicable) power to enter into and perform its obligations under this
Guaranty Agreement.
(b) Approval and Enforceability of Guaranty Agreement. The
execution, delivery and performance of this Guaranty Agreement has been
duly authorized by all necessary corporate, partnership or limited
liability company (as applicable) action on the part of such Special
Guarantor (and in the case of TEPPCO, its general partner). The Guaranty
Agreement has been duly and validly executed and delivered and constitutes
the legal, valid and binding obligation of such Special Guarantor,
enforceable against it in accordance with its terms.
(c) Actions Pending. There is no action, suit, investigation or
proceeding pending or, to the knowledge of such Special Guarantor (or, in
the case of TEPPCO, to the knowledge of its general partner), threatened
against such Special Guarantor or any of its Subsidiaries, or any
properties or rights of such Special Guarantor or any of its Subsidiaries,
by or before any court, arbitrator or administrative or governmental body
which could reasonably be expected to have a Material Adverse Effect.
(d) Conflicting Agreements and Other Matters. Neither such Special
Guarantor nor any of its Subsidiaries is a party to or otherwise subject
to any contract or agreement or subject to any charter, limited
partnership agreement, limited liability company agreement, other
organizational document or other corporate, limited partnership or limited
liability company (as applicable) restriction which could reasonably be
expected to have a Material Adverse Effect. Neither the execution nor
delivery of this Guaranty Agreement, nor fulfillment of nor compliance
with the terms and provisions hereof, will conflict with, or result in a
breach of the terms, conditions or provisions of, or constitute a default
under, or result in any violation of, or result in the creation of any
Lien upon any of the
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properties or assets of such Special Guarantor or any of its Subsidiaries
pursuant to, the charter, bylaws, limited partnership agreement, limited
liability company agreement, regulations or other organizational documents
of such Special Guarantor or any of its Subsidiaries, any award of any
arbitrator or any agreement (including any agreement with stockholders,
partners or members), instrument, order, judgment, decree, statute, law,
rule or regulation to which such Special Guarantor or any of its
Subsidiaries is subject. Neither such Special Guarantor nor any of its
Subsidiaries is a party to, or otherwise subject to any provision
contained in, any instrument evidencing Indebtedness of such Special
Guarantor or such Subsidiary, any agreement relating thereto or any other
contract or agreement (including its charter, limited partnership
agreement, limited liability company agreement or other organizational
documents) which limits the amount of, or otherwise imposes restrictions
on the incurring of, Indebtedness of such Special Guarantor represented by
this Guaranty Agreement.
(e) Governmental Consent. Neither the nature of such Special
Guarantor or of any Subsidiary, nor any of their respective businesses or
properties, nor any relationship between such Special Guarantor or any
Subsidiary and any other Person, nor any circumstance in connection with
the execution and delivery of this Guaranty Agreement is such as to
require any authorization, consent, approval, exemption or other action by
or notice to or filing with any court or administrative or governmental
body (other than routine filings after the date of closing with the
Securities and Exchange Commission and/or state Blue Sky authorities) in
connection with the execution and delivery of this Guaranty Agreement or
fulfillment of or compliance with the terms and provisions hereof.
(f) Disclosure. This Guaranty Agreement, together with each other
document, certificate or statement furnished to any holder of Notes by or
on behalf of such Special Guarantor in connection herewith, does not
contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements contained herein
and therein not misleading. There is no fact peculiar to such Special
Guarantor or any of its Subsidiaries (and not applicable to the oil and
gas industry generally) which materially adversely affects or in the
future may (so far as such Special Guarantor can now foresee) materially
adversely affect the business, property or assets, financial condition or
operations of such Special Guarantor and its Subsidiaries and which has
not been set forth in this Guaranty Agreement or in the other documents,
certificates and statements furnished to the holders of Notes by or on
behalf of such Special Guarantor prior to the date hereof in connection
with the transactions contemplated hereby.
12. [SECTION INTENTIONALLY LEFT BLANK]
13. TERMINATION AND RELEASE. Subject to the provisions of Section 7, and
except to the extent that any Special Guarantor's obligations arising
hereunder prior to such time have not been fulfilled, this Guaranty
Agreement shall
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terminate and each of the Special Guarantors shall be absolutely,
unconditionally and irrevocably released and discharged of any and all
obligations hereunder on (i) the Guaranty Termination Date, (ii)
indefeasible payment in full of the Special Guaranteed Obligations and the
termination of the Facility and the Commitment or (iii) the Special PEPL
Event Date, whichever of the preceding events shall first occur.
14. [SECTION INTENTIONALLY LEFT BLANK]
15. NOTICES. Unless otherwise specifically provided herein, all notices,
consents, directions, approvals, instructions, requests and other
communications required or permitted by the terms hereof shall be in
writing, and any such communication shall become effective when received,
addressed in the following manner: (a) if to TEPPCO, to it at 0000 Xxxxx
Xxxxxxx, Xxxxx 0000, Xxxxxxx, XX 00000, Attention: Chief Executive
Officer, (b) if to MAP, to it at 000 Xxxxx Xxxx Xxxxxx, Xxxxxxx, XX 00000,
Attention: Treasurer or (c) if to any holder of a Note, to the respective
addresses set forth in the Purchaser Schedules to the Note Agreements;
provided, however, that any such addressee may change its address for
communications by notice given as aforesaid to the other parties hereto.
16. CONSTRUCTION. The section and subsection headings in this Guaranty
Agreement are for convenience of reference only and shall neither be
deemed to be a part of this Guaranty Agreement nor modify, define, expand
or limit any of the terms or provisions hereof. All references herein to
numbered sections, unless otherwise indicated, are to sections of this
Guaranty Agreement. Words and definitions in the singular shall be read
and construed as though in the plural and vice versa, and words in the
masculine, neuter or feminine gender shall be read and construed as though
in either of the other genders where the context so requires.
17. SEVERABILITY. If any provision of this Guaranty Agreement, or the
application thereof to any person or circumstances, shall, for any reason
or to any extent, be invalid or unenforceable, such invalidity or
unenforceability shall not in any manner affect or render invalid or
unenforceable the remainder of this Guaranty Agreement, and the
application of that provision to other persons or circumstances shall not
be affected but, rather, shall be enforced to the extent permitted by
applicable law.
18. SUCCESSORS. The terms and provisions of this Guaranty Agreement shall be
binding upon and inure to the benefit of each of the Special Guarantors
and the holders of the Notes from time to time and their respective
permitted successors, transferees and assigns.
19. ENTIRE AGREEMENT; AMENDMENT. This Guaranty Agreement expresses the entire
understanding of the subject matter hereof; and all other understandings,
written or oral, are hereby merged herein and superseded. No
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amendment of or supplement to this Guaranty Agreement, or waiver or
modification of, or consent under, the terms hereof shall be effective
unless in writing and signed by the party to be bound thereby.
20. TERM OF GUARANTY AGREEMENT. Except if released in accordance with Section
13 hereof, the Guaranty Agreement and all guarantees, covenants and
agreements of each of the Special Guarantors contained herein shall
continue in full force and effect and shall not be discharged until such
time as all of the Special Guaranteed Obligations shall be paid or
otherwise discharged in full.
21. SURVIVAL. All warranties, representations and covenants made by each of
the Special Guarantors herein or in any certificate or other instrument
delivered by such Special Guarantor or on such Special Guarantor's behalf
under this Guaranty Agreement shall be considered to have been relied upon
by the holders of the Notes and shall survive the execution and delivery
of this Guaranty Agreement, regardless of any investigation made by the
holder of the Notes or on their behalf.
22. FURTHER ASSURANCES. Each of the Special Guarantors hereby agrees to
execute and deliver all such instruments and take all such action as the
holders of the Notes may from time to time reasonably request in order to
effectuate fully the purposes of this Guaranty Agreement.
23. GOVERNING LAW. This Guaranty Agreement shall be governed by, construed and
enforced in all respects in accordance with the laws of the State of New
York applicable to contracts made and to be performed entirely therein,
without regard to principles of conflicts of laws.
24. SUBMISSION TO JURISDICTION. Each of the Special Guarantors hereby
irrevocably submits itself to the nonexclusive jurisdiction of the Supreme
Court of the State of New York, New York County, of the United States of
America and to the jurisdiction of the United States District Court for
the Southern District of New York, for the purpose of any suit, action or
other proceeding arising out of, or relating to, this Guaranty Agreement
or the subject matter hereof, and hereby waives, and agrees not to assert,
by way of motion, as a defense or otherwise, in any such suit, action or
proceedings, (i) any claim that it is not personally subject to the
jurisdiction of the above-named courts for any reason whatsoever, that
such suit, action or proceeding is brought in an inconvenient forum or
that the venue of such suit, action or proceeding is improper and (ii) any
right which it may have to a trial by a jury. Any and all service of
process and any other notice in any such action, suit or proceeding shall
be effective against such parties if given by registered or certified
mail, return receipt requested, or by any other means or mail which
requires a signed receipt, postage prepaid, mailed to such parties as
herein provided in Section 15.
25. FACSIMILE TRANSMISSION; COUNTERPARTS. This Guaranty Agreement may be
executed and delivered by facsimile transmission, and may be
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executed in any number of counterparts, each of which shall be an
original, but all of which together shall constitute one instrument.
26. ADDITIONAL TERMS AND CONDITIONS OF THIS GUARANTY AGREEMENT. In addition to
the other terms and conditions of this Guaranty Agreement, the execution,
delivery and performance by the Special Guarantors of their respective
obligations hereunder are made subject to, and in reliance on, and the
holders of the Notes accept this Guaranty Agreement on, the agreements and
statements set forth as follows:
(a) this Guaranty Agreement constitutes Acceptable Credit Support
for purposes of curing the Sponsor Default Event with respect to PEPL
described in the recitals to this Guaranty Agreement; and
(b) so long as this Guaranty Agreement shall be in full force and
effect and valid and binding upon each of the Special Guarantors (and so
long as no Special Guarantor shall have asserted otherwise in writing), no
other Sponsor Default Event and no Event of Default shall arise or be
deemed to have arisen based upon (i) any action taken or omitted to be
taken by PEPL under any Note Document, including, but without limitation,
the failure of PEPL to pay in whole or part, timely, or otherwise, any
Credit Fee or other amount owed by it, or (ii) the occurrence of any other
event or circumstance in relation to PEPL.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK; SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, each of the Special Guarantors has caused this
Guaranty Agreement to be duly executed and delivered as of the date and year
first above written.
TE PRODUCTS PIPELINE COMPANY,
LIMITED PARTNERSHIP
By: TEPPCO GP, Inc.,
its sole general partner
By: /s/ XXXXXXX X. XXXXXXX
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President & Chief
Financial Officer
MARATHON ASHLAND PETROLEUM LLC
By: /s/ X. X. XXXXXXX
-----------------------------------
Name: X. X. Xxxxxxx
Title: Senior Vice President,
Finance & Information Technology
AGREED TO AND ACKNOWLEDGED
(FOR PURPOSES OF SECTIONS 2 AND 26 HEREOF):
THE PRUDENTIAL INSURANCE COMPANY
OF AMERICA
By: /s/ XXXXX X. XXXXXX
-----------------------------
Xxxxx X. Xxxxxx
Vice President
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