Exhibit 10.13
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT, dated as of August 19, 1999 (this
"Assignment and Assumption Agreement"), between Xxxxx Refining & Marketing Inc.
(the "Assignor") and Port Xxxxxx Xxxxx Company L.P. (the "Assignee").
W I T N E S S E T H:
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WHEREAS, the Assignor entered into the Maya Crude Oil Sales Agreement,
dated as of March 10, 1998, with P.M.I. Comercio Internacional, S.A. de C.V.
("P.M.I."), as amended and supplemented by the First Amendment and Supplement to
the Maya Crude Oil Sales Agreement dated as of August 19, 1999 (as it may be
from time to time further amended, the "Supply Agreement");
WHEREAS, in connection with the Supply Agreement, Petroleos Mexicanos
("Pemex") issued the Pemex Performance Guarantee dated as of March 10, 1998 for
the benefit of Assignor (the "Pemex Performance Guarantee");
WHEREAS, the Assignor desires to sell and assign to the Assignee all of its
right, title and interest in, to and under each of the Supply Agreement and the
Pemex Performance Guarantee, and the Assignee desires to (i) purchase and accept
from the Assignor the assignment of all of the Assignor's right, title and
interest in, to and under each of the Supply Agreement and the Pemex Performance
Guarantee and (ii) assume the Assumed Obligations (as defined herein); and
WHEREAS, such assignment and assumption is contemplated in Article 29.5 of
the Supply Agreement and Section 14 of the Pemex Performance Guarantee.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
contained herein, the parties agree as follows:
1. Definitions. Capitalized terms used herein without definition and
which are defined in the Supply Agreement are used herein with the respective
meanings given such terms in the Supply Agreement.
2. Assignment. Effective as of the date hereof, the Assignor hereby
irrevocably sells, assigns, transfers, conveys and sets over to the Assignee all
of its right, title and interest in, to and under each of the Supply Agreement
and the Pemex Performance Guarantee.
3. Assumption. The Assignee hereby assumes all of the obligations,
liabilities and duties of the Assignor under the Supply Agreement, except such
terms and obligations for which the Assignor remains solely liable pursuant to
the Supply Agreement (the "Assumed Obligations") and confirms that it shall
become a party to the Supply Agreement and shall be bound by all the terms
thereof as if it were named as the Buyer therein.
4. Further Assurances. The Assignor shall, at any time and from time to
time, upon the request and at the expense of the Assignee, promptly and duly
execute and deliver any and all such further instruments and documents and take
all such further action as the Assignee
may reasonably request to obtain the full benefits of this Assignment and of the
rights and powers herein granted.
5. Representations and Warranties. The Assignor hereby represents
and warrants to each of the Assignee, P.M.I. and Pemex that:
(a) Organization; Authority. The Assignor is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Delaware and has full corporate power and authority to conduct its
business as presently conducted, to own, lease, sublease, or hold under
lease or sublease, its properties and to execute and deliver this
Assignment and Assumption Agreement.
(b) Due Authorization and Consent. The execution and delivery of this
Assignment and Assumption Agreement have been duly authorized by all
necessary corporate action on the part of the Assignor and do not require
approval or consent of, or notice to, any trustee or holders of any
indebtedness or obligations of the Assignor or any lessor under any lease
to the Assignor.
(c) Compliance with Other Instruments. The execution and delivery by
the Assignor of this Assignment and Assumption Agreement does not and will
not with or result in any violation of, constitute a default under, or
result in the creation of any Lien upon any property of the Assignor under,
any term of the charter documents or by-laws of the Assignor or any
agreement, mortgage, contract, indenture, lease or other instrument, or any
Applicable Law of the United States or any political subdivision thereof,
by which the Assignor is bound or to which the Assignor or any of its
properties or assets are subject.
(d) Government Consents. Neither the execution and delivery nor the
performance of this Assignment and Assumption Agreement by the Assignor
requires the consent or approval of, the giving of notice to, the
registration with, or the taking of any other action in respect of any
United States Federal, state or other governmental authority or agency,
including any judicial body in the United States or any political
subdivision thereof.
(e) Legal, Valid and Binding Obligations. This Assignment and
Assumption Agreement constitutes a legal, valid and binding obligation of
the Assignor enforceable against the Assignor in accordance with its terms
except as such enforcement may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, and similar laws affecting the
rights of creditors generally and by general principles of equity,
regardless of whether enforcement is pursuant to a proceeding in equity or
at law.
(f) Litigation. There are no pending or, to the knowledge of the
Assignor, threatened actions or proceedings by or before any court or
administrative agency or arbitrator that involve this Assignment and
Assumption Agreement, the Supply Agreement or the transactions contemplated
thereby, the Pemex Performance Guarantee or the transactions contemplated
thereby or that, either individually or in the aggregate, are reasonably
likely to adversely affect the validity of this Assignment and Assumption
Agreement, the Assumed Obligations, the Supply Agreement or the Pemex
Performance Guarantee.
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6. Representations and Warranties. The Assignee hereby represents
and warrants to each of the Assignor, P.M.I. and Pemex that:
(a) Organization; Authority. The Assignee is a limited partnership
duly organized, validly existing and in good standing under the laws of the
State of Delaware and has full power and authority to conduct its business
as presently conducted, to own, lease, sublease, or hold under lease or
sublease, its properties and to execute, deliver and perform this
Assignment and Assumption Agreement and to perform the Assumed Obligations
and the Supply Agreement to which it is or is to be a party.
(b) Due Authorization and Consent. The execution, delivery and
performance of this Assignment and Assumption Agreement and the performance
of the Assumed Obligations and the Supply Agreement have been duly
authorized by all necessary corporate action on the part of the Assignee
and do not require approval or consent of, or notice to, any trustee or
holders of any indebtedness or obligations of the Assignee or any lessor
under any lease to the Assignee.
(c) Compliance with Other Instruments. Neither the execution,
delivery or performance by the Assignee of this Assignment and Assumption
Agreement and the performance of the Assumed Obligations and the Supply
Agreement, nor the consummation or performance by the Assignee of the
transactions contemplated thereby, do not and will not conflict with or
result in any violation of, constitute a default under, or result (other
than pursuant to the Supply Agreement) in the creation of any Lien upon any
property of the Assignee under, any term of the charter documents or by-
laws of the Assignee or any agreement, mortgage, contract, indenture, lease
or other instrument, or any Applicable Law of the United States or any
political subdivision thereof, by which the Assignee is bound or to which
the Assignee or any of its properties or assets are subject.
(d) Government Consents. Neither the execution or delivery of this
Assignment and Assumption Agreement and the performance of the Assumed
Obligations and the Supply Agreement, nor the consummation of any of the
transactions contemplated thereby by the Assignee requires the consent or
approval of, the giving of notice to, the registration with, or the taking
of any other action in respect of any United States Federal, state or other
governmental authority or agency, including any judicial body in the United
States or any political subdivision thereof.
(e) Legal, Valid and Binding Obligations. The Assumed Obligations and
this Assignment and Assumption Agreement constitute, and the Supply
Agreement, when executed and delivered, will constitute, a legal, valid and
binding obligations of the Assignee enforceable against the Assignee in
accordance with its terms except as such enforcement may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, and similar
laws affecting the rights of creditors generally and by general principles
of equity, regardless of whether enforcement is pursuant to a proceeding in
equity or at law.
(f) Litigation. There are no pending or, to the knowledge of the
Assignee, threatened actions or proceedings by or before any court or
administrative agency or arbitrator that involve the Supply Agreement or
the transactions contemplated thereby, the
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Pemex Performance Guarantee or the transactions contemplated thereby or
that, either individually or in the aggregate, are reasonably likely to
adversely affect the ability of the Assignee to perform its obligations
under this Assumption Agreement, the Assumed Obligations or the Supply
Agreement or the validity of this Assumption Agreement, the Assumed
Obligations or the Supply Agreement.
7. Governing Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered on the date first above written.
PORT XXXXXX XXXXX COMPANY L.P.,
as Assignee
By: SABINE RIVER HOLDING CORP., ITS
GENERAL PARTNER
By: /s/ Xxxxx X. Xxxxx
---------------------------
Name: Xxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
XXXXX REFINING & MARKETING, INC.
as Assignor
By: /s/ Xxxxx X. Xxxxx
---------------------------
Name: Xxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
By signing in the respective spaces provided below,
each of the undersigned acknowledges and agrees that
this Assignment and Assumption Agreement satisfies
the criteria set forth in Article 29.5(a)(iii) of the Supply
Agreement
P.M.I. COMERCIO INTERNACIONAL,
S.A. de C.V.
By: /s/ Xxxxxxx Xxxxxxxx del Rio
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Name: Xxxxxxx Xxxxxxxx del Rio
Title: General Director
PETROLEOS MEXICANOS
By: /s/ Xxxxxxx Xxxxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Managing Director
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