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EXHIBIT 4.28
GUARANTY
THIS GUARANTY, dated as of October 10, 1997, made separately
by each of the undersigned corporations (together with their successors and
assigns, each a "GUARANTOR" and collectively, the "GUARANTORS"), in favor of
each of the purchasers (together with their successors and assigns, including,
without limitation, any holder of a Note (as defined below), each a "HOLDER"
and collectively, the "HOLDERS") listed on Annex 1 to the separate Note
Agreements (collectively, as amended from time to time, the "NOTE AGREEMENT"),
dated as of June 15, 1991, between Xxxxx Corporation (the "COMPANY"), a
Delaware corporation, and each of the Holders, pursuant to which the Company
has issued Twenty Eight Million Dollars ($28,000,000) in aggregate original
principal amount of its 9.72% Senior Notes due June 15, 1998 (the "9.72%
NOTES") and Fifty Two Million Dollars in aggregate original principal amount of
its 10.16% Senior Notes due June 15, 2001 (the "10.16% NOTES," the 9.72% Notes
and the 10.16% Notes outstanding as of the date hereof are referred to
collectively in this Guaranty as the "NOTES").
WITNESSETH:
WHEREAS, the Company owns directly, or indirectly through one
or more subsidiaries, all of the outstanding shares of stock of each Guarantor;
and
WHEREAS, the Company has issued and sold its 9.72% Notes and
its 10.16% Notes to the Holders pursuant to the Note Agreement; and
WHEREAS, pursuant to the terms of the Note Agreement, it is a
continuing obligation of the Company to cause each Restricted Subsidiary which
guaranties the obligations of the Company under the Revolving Credit Agreement
to execute and deliver to the Holders a satisfactory guaranty of the
obligations of the Company under the Note Agreement and the Notes; and
WHEREAS, each Guarantor a party hereto is a Restricted
Subsidiary and has guarantied the obligations of the Company under the
Revolving Credit Agreement;
WHEREAS, the board of directors of each Guarantor has
determined that such Guarantor's execution, delivery and performance of this
Guaranty may reasonably be expected to benefit such Guarantor, directly or
indirectly, and are in the best interests of such Guarantor;
NOW, THEREFORE, in consideration of the premises and of Ten
Dollars ($10) and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and in order to comply with the
terms and provisions of the Note Agreement and to avoid an Event of Default
thereunder, each Guarantor hereby agrees with the Holders as follows:
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1. DEFINITIONS.
Reference is hereby made to the Note Agreement for all
purposes. All terms used in this Guaranty that are defined in the Note
Agreement and not otherwise defined in this Guaranty have the same meanings
when used in this Guaranty. As used in this Guaranty, the following terms shall
have the following meanings:
"OBLIGATIONS" means collectively all of the indebtedness,
obligations, and undertakings that are guaranteed by Guarantor and
described in subsections (a) and (b) of Section 2 hereof.
"OBLIGATION DOCUMENTS" means this Guaranty, the Note Agreement,
the Notes, all other documents and instruments under, by reason of
which, or pursuant to which any or all of the Obligations are
evidenced, governed, secured, or otherwise dealt with, heretofore or
hereafter delivered.
"OBLIGORS" means the Company, the Guarantors, and any other
endorsers, guarantors or obligors, primary or secondary, of any or all
of the Obligations.
"SECURITY" means any rights, properties, or interests of the
Holders under the Obligation Documents or otherwise, that provide
recourse or other benefits to the Holders in connection with the
Obligations or the non-payment or non-performance thereof, including,
without limitation, collateral (whether real or personal, tangible or
intangible) in which the Holders have rights under or pursuant to any
Obligation Documents, guaranties of the payments or performance of any
Obligation, bonds, surety agreements, keep-well agreements, letters of
credit, rights of subrogation, rights of offset, and rights pursuant
to which other claims are subordinated to the Obligations.
2. GUARANTY.
(a) Each Guarantor hereby irrevocably, absolutely, and
unconditionally guarantees, jointly and severally, to the Holders the
prompt, complete, and full payment when due, and no matter how the same
shall become due, of:
(i) the Notes, including all principal, all
interest thereon and all other sums payable thereunder; and
(ii) all other sums payable under the other
Obligation Documents, whether for principal, interest, fees,
delivery of cash collateral, costs, expenses or otherwise.
(b) Each Guarantor, hereby irrevocably, absolutely, and
unconditionally guarantees, jointly and severally, to the Holders the
prompt, complete and full performance,
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when due, and no matter how the same shall become due, of all
obligations and undertakings of the Company to the Holder under, by
reason of, or pursuant to any of the Obligation Documents.
(c) If the Company shall for any reason fail to pay any
Obligation, as and when such Obligation shall become due and payable,
whether at its stated maturity, as a result of the exercise of any
power to accelerate, or otherwise, then each Guarantor will, forthwith
upon demand by the Required Holders, pay such Obligation in full to
the Holders. If the Company shall for any reason fail to perform
promptly any Obligation, then Guarantor will, forthwith upon demand by
the Required Holders, cause such Obligation to be performed or, if
specified by the Required Holders, provide sufficient funds, in such
amount and manner as the Required Holders shall in good faith
determine, for the prompt, full and faithful performance of such
Obligation by the Required Holders or such other Person as the
Required Holders shall designate.
(d) If either the Company or any Guarantor fails to pay
or perform upon demand any Obligation as described in the immediately
preceding subsections (a), (b) or (c), then each Guarantor will incur
the additional obligation to pay to the Holders and each Guarantor
will forthwith upon demand by the Required Holders pay to the Holders,
the amount of any and all expenses, including fees and disbursements
of any counsel and of any experts or agents, in each case, retained by
the Required Holders on behalf of the Holders that the Holders may
incur as a result of such failure, such expenses to be incurred in
accordance with paragraph 11B of the Note Agreement.
(e) Each Guarantor shall be primarily liable hereunder
for the payment and performance of the Obligations, from each other
Guarantor.
3. UNCONDITIONAL GUARANTY.
(a) No action that any one or more Holder may take or
omit to take in connection with any of the Obligation Documents, any
of the Obligations (or any other indebtedness owing by Guarantor to
the Holders), or any Security, and no course of dealing of any one or
more Holder with any Obligor or any other Person, shall release or
diminish any Guarantor's obligations, liabilities, agreements or
duties under this Guaranty, affect this Guaranty in any way, or afford
any Guarantor any recourse against any Holder, regardless of whether
any such action or inaction may increase any risks to or liabilities
of the Holders or any Obligor or increase any risk to or diminish any
safeguard of any Security. Without limiting the foregoing, each
Guarantor hereby expressly agrees that, except as may be provided in
the Note Agreement, any Holder may, from time to time, without notice
to or the consent of Guarantor:
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(i) Amend, change or modify, in whole or in part, any one
or more of the Obligation Documents and give or refuse to give any
waivers or other indulgences with respect thereto;
(ii) Neglect, delay, fail, or refuse to take or prosecute
any action for the collection or enforcement of any of the
Obligations, to foreclose or take or prosecute any action in
connection with any Security or Obligation Document, to bring suit
against any Obligor or any other Person, or to take any other action
concerning the Obligations or the Obligation Documents;
(iii) Accelerate, change, rearrange, extend, or renew the
time, terms, or manner for payment or performance of any one or more
of the Obligations;
(iv) Compromise or settle any unpaid or unperformed
Obligation or any other obligation or amount due or owing, or claimed
to be due or owing, under any one or more of the Obligation Documents;
(v) Take, exchange, amend, eliminate, surrender, release,
or subordinate any or all Security for any or all of the Obligations,
accept additional or substituted Security therefor, and perfect or
fail to perfect the Holders' rights in any or all Security;
(vi) Discharge, release, substitute or add Obligors; and
(vii) Apply all monies received from Obligors or others, or
from any Security for any of the Obligations, as such Holder may
determine to be in its best interest, without in any way being
required to xxxxxxxx Security or assets or to apply all or any part of
such monies upon any particular Obligations.
(b) No action or inaction of any Obligor or any other Person, and no
change of law or circumstances, shall release or diminish any Guarantor's
obligations, liabilities, agreements, or duties under this Guaranty, affect this
Guaranty in any way, or afford any Guarantor any recourse against any Holder.
Without limiting the foregoing, the obligations, liabilities, agreements, and
duties of each Guarantor under this Guaranty shall not be released, diminished,
impaired, reduced, or affected by the occurrence of any of the following from
time to time, even if occurring without notice to or without the consent of such
Guarantor:
(i) Any voluntary or involuntary liquidation,
dissolution, sale of all or substantially all assets, marshalling of
assets of liabilities, receivership, conservatorship, assignment for
the benefit of creditors, insolvency, bankruptcy, reorganization,
arrangement, or composition of any Obligor or any other proceedings
involving any Obligor or any of the assets of any Obligor under laws
for the
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protection of debtors, or any discharge, impairment, modification,
release, or limitation of the liability of, or stay of actions or lien
enforcement proceedings against, any Obligor, any properties of any
Obligor, or the estate in bankruptcy of any Obligor in the course of
or resulting from any such proceedings;
(ii) The failure by any Holder or the Required Holders to
file or enforce a claim in any proceeding described in the immediately
preceding subsection (i) or to take any other action in any proceeding
to which any Obligor is a party;
(iii) The release by operation of law of any Obligor from
any of the Obligations or any other obligations to the Holders;
(iv) The invalidity, deficiency, illegality, or
unenforceability of any of the Obligations or the Obligation
Documents, in whole or in part, any bar by any statute of limitations
or other law of recovery on any of the Obligations, or any defense or
excuse for failure to perform on account of force majeure, act of God,
casualty, impossibility, impracticability, or other defense or excuse
whatsoever;
(v) The failure of any Obligor or any other Person to
sign any guaranty or other instrument or agreement within the
contemplation of any Obligor or the Holders;
(vi) The fact that any Guarantor may have incurred
directly part of the Obligations or is otherwise primarily liable
therefor; or
(vii) Without limiting any of the foregoing, any fact or
event (whether or not similar to any of the foregoing) that in the
absence of this provision would or might constitute or afford a legal
or equitable discharge or release of or defense to a guarantor or
surety other than the actual payment and performance by each Guarantor
under this Guaranty.
(c) The Required Holders may invoke the benefits of this Guaranty
before pursuing any remedies against any Obligor or any other Person and before
proceeding against any Security now or hereafter existing for the payment or
performance of any of the Obligations. The Required Holders may maintain an
action against any Guarantor on this Guaranty without joining any other Obligor
therein and without bringing separate action against any other Obligor. The
obligations of each Guarantor under this Guaranty are not joint, but are
separate and distinct from the obligations of each other Guarantor and all
other Obligors.
(d) If any payment to the Holders by any Obligor is held to
constitute a preference or a voidable transfer under applicable state or
federal laws, or if for any other reason the Holders are required to refund
such payment to the payor thereof or to pay the
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amount thereof to any other Person, then such payment to the Holders
shall not constitute a release of any Guarantor from any liability
under this Guaranty, and each Guarantor agrees to pay such amount to
the Holders on demand and agrees and acknowledges that this Guaranty
shall continue to be effective or shall be reinstated, as the case may
be, to the extent of any such payment or payments.
(e) This is a continuing guaranty and shall apply to and cover
all obligations and renewals and extensions thereof and substitutions
therefor from time to time.
4. WAIVER.
Each Guarantor hereby waives, with respect to the Obligations,
this Guaranty, and the other Obligation Documents:
(a) notice of the incurrence of any Obligation by the Company;
(b) notice that the Holders, any Obligor, or any other Person
has taken or omitted to take any action under any Obligation Document
or any other agreement or instrument relating thereto or relating to
any Obligation;
(c) notice of acceptance of this Guaranty and all rights of
the Guarantor under Section 34.02 of the Texas Business and Commerce
Code;
(d) demand, presentment for payment, and notice of demand,
dishonor, nonpayment, or nonperformance;
(e) notice of intention to accelerate, notice of acceleration,
protest, and notice of protest; and
(f) all other notices whatsoever.
5. EXERCISE OF REMEDIES.
Each Holder and the Required Holders, on behalf of the
Holders, as provided in the Note Agreement, shall have the right to enforce,
from time to time, in any order and at the sole discretion of the Required
Holders' or such Holder, as the case may be, any rights, powers and remedies
that the Holders may have under the Obligation Documents or otherwise,
including, but not limited to, judicial foreclosure, the exercise of rights
power of sale, the taking of a deed or assignment in lieu of foreclosure, the
appointment of a receiver to collect rents, issues and profits, the exercise of
remedies against personal property, or the enforcement of any assignment of
leases, rentals, oil or gas production, or other properties or rights, whether
real or personal, tangible or intangible. and each Guarantor shall be liable to
the Holders under this Guaranty for any deficiency resulting from the exercise
by any Holder of any such right or remedy even though any rights that
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such Guarantor may have against the Company or others may be destroyed or
diminished by exercise of any such right or remedy. No failure on the part of
any Holder or the Required Holders to exercise, and no delay in exercising, any
right under this Guaranty or under any other Obligation Document shall operate
as a waiver thereof; nor shall any single or partial exercise of any right
preclude any other or further exercise thereof or the exercise of any other
right. The rights, powers and remedies of each Holder and the Required Holders
provided in this Guaranty and in the other Obligation Documents are cumulative
and are in addition to, and not exclusive of, any other rights, powers or
remedies provided by law or in equity. The rights of each Holder and the
Required Holders under this Guaranty are not conditional or contingent on any
attempt by any Holder and the Required Holders to exercise any of their rights
under any other Obligation Document against any Obligor or any other Person.
6. SUBROGATION.
Until all of the Obligations have been paid and performed in
full, no Guarantor shall have the right to exercise any right of subrogation
with respect hereto (including without limitation any right of subrogation
under Section 34.04 of the Texas Business and Commerce Code), and each
Guarantor hereby waives any rights to enforce any remedy that such Guarantor
may have against the Company and any right to participate in any Security until
such time. If any amount shall be paid to any Guarantor on account of any
subrogation rights or other remedy or Security at any time when all of the
Obligations and all other expenses guaranteed pursuant to this Guaranty shall
not have been paid in full, then such amount shall be held in trust for the
benefit of the Holders, shall be segregated from the other funds of Guarantor
and shall forthwith be paid over to the Holders as collateral for, or then or
at any time thereafter applied in whole or in part by the Holders against, all
or any portion of the Obligations, whether matured or unmatured, in such order
as each Holder shall elect. If Guarantor shall make payment to the Holders of
all or any portion of the Obligations and if all of the Obligations shall be
finally paid in full, then each Holder will, at each Guarantor's request and
expense, execute and deliver to such Guarantor (without recourse,
representation or warranty) appropriate documents necessary to evidence the
transfer by subrogation to Guarantor of an interest in the Obligations
resulting from such payment by such Guarantor.
7. SUCCESSORS AND ASSIGNS.
No Guarantor's rights or obligations under this Guaranty may be
assigned or delegated. This Guaranty shall apply to and inure to the benefit of
each Holder and such Holder's successors and assigns, including, without
limitation, any subsequent holder of Notes. Without limiting the generality of
the immediately preceding sentence, any Holder may assign its rights under this
Guaranty or grant a participation in such rights in connection with the
assignment of or the granting of a participation in the Obligations.
8. REPRESENTATIONS AND WARRANTIES.
Each Guarantor hereby represents and warrants as follows:
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(a) The recitals at the beginning of this Guaranty are
true and correct in all respects as to such Guarantor.
(b) The value of the consideration received and to be
received by such Guarantor in connection herewith is reasonably worth
at least as much as the liability and obligations of such Guarantor
under this Guaranty, and the incurrence of such liability and
obligations in return for such consideration may reasonably be
expected to benefit such Guarantor, directly or indirectly.
(c) Such Guarantor is not "insolvent" on the date of the
execution and delivery by such Guarantor of this Guaranty (that is,
the sum of Guarantor's absolute and contingent liabilities, including
the Obligations, does not exceed the Fair Market Value of Guarantor's
assets). Such Guarantor's capital is adequate for the businesses in
which Guarantor is engaged and intends to be engaged. Such Guarantor
has not by this Guaranty incurred, nor does such Guarantor intend to
incur or believe that it will incur, debts that will be beyond its
ability to pay as such debts mature.
9. NO ORAL CHANGE.
No amendment of any provision of this Guaranty shall be effective
unless it is in writing and signed by each Guarantor and the Required Holders,
and no waiver of any provision of this Guaranty, and no consent to any
departure by any Guarantor from this Guaranty, shall be effective unless it is
in writing and signed by the Required Holders, and then such waiver or consent
shall be effective only in the specific instance and for the specified purposes
for which given.
10. GOVERNING LAW; SUBMISSION TO JURISDICTION.
(a) GOVERNING LAW. THIS GUARANTY IS TO BE PERFORMED IN THE
STATE OF TEXAS AND SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE LAWS OF SUCH STATE APPLICABLE TO CONTRACTS MADE
AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE.
(b) JURISDICTION. EACH GUARANTOR HEREBY IRREVOCABLY SUBMITS
ITSELF TO THE NON-EXCLUSIVE JURISDICTION OF THE STATE OF NEW YORK AND
FEDERAL COURTS OF THE STATE OF NEW YORK AND AGREES AND CONSENTS THAT
SERVICE OF PROCESS MAY BE MADE UPON IT IN ANY LEGAL PROCEEDING
RELATING HERETO BY SERVING THE SECRETARY OF STATE OF THE STATE OF
TEXAS (OR BY OTHER SERVICE) IN ACCORDANCE WITH ANY APPLICABLE
PROVISIONS OF THE TEXAS REVISED CIVIL STATUTES, AS AMENDED, GOVERNING
SERVICE OF PROCESS UPON FOREIGN CORPORATIONS.
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11. INVALIDITY OF PARTICULAR PROVISION.
If any term or provision of this Guaranty shall be determined
to be illegal or unenforceable, then all other terms and provisions hereof shall
nevertheless remain effective and shall be enforced to the fullest extent
permitted by applicable law.
12. HEADINGS AND REFERENCES.
The headings used in this Guaranty are for purposes of
convenience shall not be used in construing the provisions of this Guaranty.
The words "this Guaranty," "this instrument," "herein," "hereof," "hereby" and
words of similar import refer to this Guaranty as a whole and not to any
particular subdivision unless so limited. The word "or" is not exclusive.
Pronouns in masculine, feminine and neuter genders shall be construed to
include any other gender, and words in the singular form shall be construed to
include the plural and vice versa, unless the context otherwise requires.
13. TERM.
This Guaranty shall be irrevocable and shall terminate when all
of the Obligations have been completely and finally paid and performed, the
Holders have no obligation to make any loans or other advances to the Company,
and all obligations and undertakings of the Company under, by reason of, or
pursuant to the Obligation Documents have been completely performed, and this
Guaranty is thereafter subject to reinstatement as provided in Section 3(d) of
this Guaranty. All extensions of credit and financial accommodations
heretofore or hereafter made by the Holders to the Company pursuant to the
terms of the Note Agreement, the Notes or any amendment or waiver of any
provision thereof, shall be conclusively presumed to have been made in
acceptance of this Guaranty and in reliance on this Guaranty.
14. NOTICES.
Any notice of communication required or permitted under this
Guaranty shall be given as provided in the Note Agreement.
15. LIMITATION ON INTEREST.
The Holders and each Guarantor intend to contract in strict
compliance with applicable usury law from time to time in effect, and the
provisions of the Note Agreement limiting the interest for which each Guarantor
is obligated are expressly incorporated in this Guaranty by reference.
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16. COUNTERPARTS.
This Guaranty may be executed in any number of counterparts,
each of which when so executed shall be deemed to constitute one and the same
Guaranty.
17. ENTIRE AGREEMENT.
THIS WRITTEN GUARANTY AND THE OTHER LOAN DOCUMENTS REPRESENT
THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE
OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE
ARE NO UNWRITTEN AGREEMENTS BETWEEN THE PARTIES.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK. SIGNATURE PAGES FOLLOW.]
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IN WITNESS WHEREOF, each Guarantor has executed and delivered
this Guaranty as of the date first above written.
NAVAJO CORP.
By: /s/ XXXXX X. XXXXXXXXX
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Name: Xxxxx X. Xxxxxxxxx
Title: Vice President and Treasurer
NAVAJO SOUTHERN, INC.
By: /s/ XXXXX X. XXXXXXXXX
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Name: Xxxxx X. Xxxxxxxxx
Title: Vice President and Treasurer
NAVAJO CRUDE OIL PURCHASING, INC.
By: /s/ XXXXX X. XXXXXXXXX
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Name: Xxxxx X. Xxxxxxxxx
Title: Vice President and Treasurer
LOREFCO, INC.
By: /s/ XXXXX X. XXXXXXXXX
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Name: Xxxxx X. Xxxxxxxxx
Title: Vice President and Treasurer
