EXHIBIT (c)(4)
GUARANTY BY LYONDELL PETROCHEMICAL COMPANY
FOR VALUE RECEIVED, effective as of the Purchase, Lyondell Petrochemical
Company, a Delaware corporation ("Guarantor"), pursuant to the Tax Agreement
(the "Tax Agreement"), dated as of June 18, 1998 , among Atlantic Richfield
Company, a Delaware corporation ("ARCO"), ARCO Chemical Company, a Delaware
corporation ("ACC"), and Guarantor, (ARCO, together with its successors and
permitted assigns, the "Guaranteed Party"), does hereby unconditionally and
irrevocably guarantee to Guaranteed Party (i) the due and punctual performance
and observance by ARCO Chemical of each covenant, agreement, undertaking, and
any other obligation or condition binding upon or to be performed or observed by
it under and in accordance with the terms of the Tax Agreement, the Tax Sharing
Agreement and the Prior Agreement (collectively, the "Tax Obligation
Agreements") and (ii) the due and punctual payment of each amount that ARCO
Chemical is or may become obligated to pay under and in accordance with the
terms of the Tax Obligation Agreements, (such payment and other obligations of
ARCO Chemical being herein referred to as the "Obligations"). Guarantor further
agrees to pay all expenses (including, without limitation, all reasonable fees
and disbursements of counsel) that may be paid or incurred by any Guaranteed
Party in enforcing any rights with respect to, or collecting, any or all of the
Obligations and/or enforcing any rights with respect to, or collecting against,
Guarantor under this Guaranty.
Capitalized terms used but not defined herein shall have the respective
meanings set forth or incorporated by reference, and shall be construed and
interpreted in the manner described, in the Tax Agreement.
Guarantor hereby waives notice of acceptance of this Guaranty, and agrees
that, in its capacity as a guarantor, it shall not be required to consent to, or
to receive any notice of, any supplement to or amendment of, or waiver or
modification of the terms of, any of the Tax Obligation Agreements that may be
made or given as provided therein.
Effective as of the Purchase, ARCO Chemical will be an
affiliate of Guarantor, and this Guaranty is being furnished to induce
Guaranteed Party to contract with ARCO Chemical and Guarantor as set forth in
the Tax Agreement.
Guarantor represents and warrants to Guaranteed Party that (a) Guarantor is
duly incorporated, validly existing and in good standing under the laws of the
State of Delaware; (b) the execution, delivery and performance of this Guaranty
are within Guarantor's power and authority and do not contravene the charter or
the by-laws of Guarantor or any indenture, mortgage, credit agreement, note,
lease or other agreement to which Guarantor is a party or by which Guarantor is
bound, or any law, governmental rule, regulation, judgment or order binding on
Guarantor; and (c) this Guaranty has been duly authorized, executed and
delivered on behalf of Guarantor and constitutes a legal, valid, binding and
enforceable obligation of Guarantor.
No failure or delay or lack of demand, notice or diligence in exercising
any right under this Guaranty shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right under this Guaranty.
This Guaranty is an absolute, unconditional and continuing guaranty of
payment and not of collection and Guarantor waives any right to require that any
right to take action against ARCO Chemical be exhausted or that resort be made
to any security prior to action being taken against Guarantor.
In the event that this Guaranty or any of the Tax Obligation Agreements
shall be terminated, rejected or disaffirmed as a result of bankruptcy,
insolvency, reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar proceedings with respect to ARCO Chemical, Guarantor's
obligations hereunder shall continue to the same extent as if the same had not
been so terminated, rejected or disaffirmed. Guarantor shall and does hereby
waive all rights and benefits that might, in whole or in part, relieve Guarantor
from the performance of its duties and obligations by reason of any proceeding
as specified in the preceding sentence, and Guarantor agrees that it shall be
liable for all sums guaranteed, in respect of and without regard to, any
modification, limitation or discharge of the liability of ARCO Chemical that may
result from any such proceedings and notwithstanding any stay, injunction or
other prohibition issued in any such proceedings. Furthermore,
the obligation of Guarantor hereunder will not be discharged by: (a) any
extension or renewal with respect to any obligation of ARCO Chemical under any
of the Tax Obligation Agreements; (b) any modification of, or amendment or
supplement to, any such agreement made in accordance with the terms of such
agreement; (c) any furnishing or acceptance of additional security or any
release of any security; (d) any waiver, consent or other action or inaction or
any exercise or non-exercise of any right, remedy or power with respect to ARCO
Chemical, or any change in the structure of ARCO Chemical; (e) any change in
ownership of the shares of capital stock of Guarantor or ARCO Chemical or any
merger or consolidation of either thereof into or with any other person; or (f)
any other occurrence whatsoever, except payment in full of all amounts payable
by ARCO Chemical under the Tax Obligation Agreements and performance in full of
all the Obligations in accordance with the terms and conditions of the Tax
Obligation Agreements.
Guarantor understands and agrees that its obligations hereunder shall be
continuing, absolute and unconditional without regard to, and Guarantor hereby
waives any defense to, or right to seek a discharge of, its obligations
hereunder with respect to: (a) the validity, legality, regularity or
enforceability of any of the Tax Obligation Agreements, any of the Obligations
or any collateral security therefor or guaranty or right of offset with respect
thereto at any time or from time to time held by any Guaranteed Party; (b) any
defense, setoff or counterclaim (other than a defense of payment or performance)
that may at any time be available to or be asserted by Guarantor or ARCO
Chemical against any Guaranteed Party; or (c) any other circumstances whatsoever
(with or without notice to or knowledge of ARCO Chemical or Guarantor) that
constitutes, or might be construed to constitute, an equitable or legal
discharge of ARCO Chemical or the Obligations, or of Guarantor under this
Guaranty, in bankruptcy or in any other instance.
Notwithstanding any payment or payments made by Guarantor hereunder or any
setoff or application of funds of Guarantor by any Guaranteed Party hereof,
Guarantor shall not be entitled to be subrogated to any of the rights of any
Guaranteed Party against ARCO Chemical or any collateral, security or guaranty
or
right of setoff held by any Guaranteed Party for the payment of the Obligations,
nor shall Guarantor seek or be entitled to seek any reimbursement from ARCO
Chemical in respect of payments made by Guarantor hereunder, until all amounts
and performance owing to Guaranteed Party by ARCO Chemical on account of the
Obligations are paid and performed in full.
The obligations of Guarantor hereunder shall be automatically reinstated if
and to the extent that any payment by or on behalf of ARCO Chemical in respect
of any of the Obligations is rescinded or must be otherwise restored by any
holder of any of the Obligations as a result of any proceedings in bankruptcy or
reorganization or similar proceedings and Guarantor agrees that it will
reimburse such holders on demand for all reasonable expenses (including, without
limitation, all fees and disbursements of counsel) incurred by such holders in
connection with such rescission or restoration.
Any provision of this Guaranty that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
This Guaranty shall be binding upon the successors and assigns of
Guarantor; provided, that no transfer, assignment or delegation by Guarantor
without the consent of the Guaranteed Party shall release Guarantor from its
liabilities hereunder.
All notices, requests and demands to or upon Guarantor or any Guaranteed
Party shall be made in accordance with the terms of Section_14 of the Tax
Agreement.
This Guaranty and the Guarantor's duties and obligations hereunder shall
remain in full force and effect and be binding in accordance with its terms,
until the date on which all Obligations and the obligations of the Guarantor
hereunder shall have been satisfied by payment and performance in full.
THIS GUARANTY SHALL IN ALL RESPECTS BE GOVERNED BY THE LAWS OF THE STATE OF
DELAWARE, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE.
Dated: As of June 18, 1998.
LYONDELL PETROCHEMICAL COMPANY
By /s/ Xxx X. Xxxxx
---------------------------
Name: Xxx X. Xxxxx
Title: President and Chief
Executive Officer
