Exhibit 10.07
FORM OF PARENT COMPANY GUARANTEE
This Agreement (hereinafter called the "Guarantee") made this 13th day
of July, 1999, between Xxxxxx Xxxxxxx Corporation, a New York corporation, with
a principal place of business at Xxxxxxxxxx Xxxxxxxxx Xxxx, Xxxxxxx, Xxx Xxxxxx
00000-0000 (hereinafter called "Guarantor") of the first part, and Port Xxxxxx
Xxxxx Company L.P., a Delaware limited partnership ("Owner"), with a principal
place of business at Xxxx Xxxxxx Xxxxxxxx, X.X. Xxx 000, Xxxx Xxxxxx, Texas
77641-0908(hereinafter called "Owner") of the second part. Capitalized terms
not defined herein shall have the meanings ascribed to them in the Contract for
Engineering, Procurement and Construction Services (the "Contract"), dated as of
July 12, 1999, between Owner and Xxxxxx Xxxxxxx USA Corporation, a Delaware
corporation, whose principal place of business is at Xxxxxxxxxx Xxxxxxxxx Xxxx,
Xxxxxxx, Xxx Xxxxxx 00000-0000 (hereinafter called "Contractor").
WITNESSETH:
In consideration of Owner entering into the Contract with Contractor,
a subsidiary of Guarantor, for the performance by Contractor of engineering,
procurement and construction services for a delayed coking unit and certain
related refinery equipment (the "Xxxxx Complex") to be located at Xxxxx Refining
and Marketing, Inc.'s existing refinery in Port Arthur, Jefferson County, Texas,
upon land leased by Owner, the Guarantor hereby agrees with Owner as follows:
1. (a) Guarantor does hereby acknowledge that it is fully aware of
the terms and conditions of the Contract and the transactions contemplated
thereby, and does hereby irrevocably and unconditionally guarantee, as primary
obligor and not as surety merely, to Owner, the performance by Contractor of all
Contractor's obligations under the Contract (the "Obligations"), when due,
strictly in accordance with the terms of the Contract, including without
limitation the payment of any damages arising out of or based upon any failure
of Contractor to perform any obligations required of it under the Contract.
(b) Guarantor waives notice of the acceptance of this Guarantee and
of the performance or nonperformance by Contractor, demand for payment from
Contractor or any other person and notice of nonpayment or failure to perform on
the part of Contractor, diligence, presentment, protest, dishonor (to the
fullest extent permitted by law), all other demands or notices whatsoever other
than the request for payment or performance under this Guarantee. The
obligations of Guarantor shall be absolute, irrevocable and unconditional and
shall remain in full force and effect until satisfaction in full of all
Obligations and, without limiting the generality of the foregoing, shall not be
released, discharged or otherwise affected by the existence of any set-off or
counterclaim that Guarantor, Contractor, or any affiliate of Guarantor or
Contractor may have at any time and from time to time against Owner. This
Guarantee shall continue to be
effective or be reinstated, as the case may be, notwithstanding whether at any
time for any reason any payment of any Obligation is rescinded or must otherwise
be returned by Owner upon the insolvency, bankruptcy, reorganization,
arrangement, readjustment of debt, dissolution, liquidation or similar
proceeding with respect to Contractor or otherwise, all as though such payment
had not been made.
(c) Guarantor, by virtue of any payment under this Section 1 to Owner,
shall be subrogated to such Owner's claim against Contractor or any other person
relating thereto. The Guarantor agrees that it shall not exercise any rights of
subrogation which it may acquire due to any payment or payments made under this
Section 1 until all of the Obligations shall have been paid and performed in
full.
(d) The obligations of Guarantor under this Guarantee shall not be
affected by the genuineness, validity, regularity or enforceability of any of
Contractor's obligations under the Contract, or any amendment, waiver or other
modification thereof (except, with respect to the Contract, to the extent of
such amendment, waiver or modification), or substitution, release or exchange of
collateral for, or other guarantee, of any of the Obligations (except to the
extent of such substitution, release or exchange), any priority or preference to
which any other obligations of Contractor may be entitled over the Contractor's
obligations under the Contract or, to the fullest extent permitted by applicable
law, any other circumstance which might otherwise constitute a legal or
equitable defense to or discharge of the obligations of a surety or guarantor,
including, without limitation, any defense arising out of any laws of the United
States of America or any State or subdivision thereof which would either exempt,
modify or delay the due or punctual payment and performance of the obligations
of Guarantor hereunder.
(e) Without limiting the generality of the foregoing, it is agreed
that the occurrence of any one or more of the following shall, to the fullest
extent permitted by law, neither release Guarantor from its obligations
hereunder nor affect the liability of Guarantor under this Section 1: (i) the
extension of the time for or waiver of, at any time or from time to time,
without notice to Guarantor, the Contractor's performance of or compliance with
any of its obligations under the Contract (except that such extension or waiver
shall be given effect in determining the obligations of Guarantor hereunder),
(ii) any assignment, transfer or other arrangement by which the Contractor
transfers its rights under the Contract, (iii) any merger or consolidation of
Contractor or Guarantor into or with any other person, (iv) any change in the
ownership of any shares of capital stock of Contractor, (v) termination of the
Contract (other than for the convenience of Owner under Section 14.2 of the
Contract), (vi) forbearance or forgiveness in respect of any matter or thing
concerning the Contractor on the part of Owner or Contractor, or (vii) any
assignment of the rights of Owner under the Contract to the Financing Parties
(as such term is defined in the Contract).
(f) This Guarantee is an absolute, present and continuing Guarantee of
payment and performance and not of collectibility and is in no way conditional
or contingent upon any attempt to collect from Contractor any unpaid amounts due
or otherwise to enforce
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performance by Contractor. Guarantor further specifically agrees that it shall
not be necessary or required for Owner to take any action against Contractor or
any other person to enforce the terms of this Guarantee, including the following
actions:
(v) file suit or proceed to obtain or assert a claim for personal
judgment against Contractor for the Obligations, or
(w) make any effort to enforce the performance of the Obligations by
Contractor or to collect any such Obligation under the Contract or under
this Guarantee, or
(x) foreclose against or seek to realize upon security, if any, now
or hereafter existing for the Obligations, or
(y) file suit or proceed to obtain or assert a claim for personal
judgment against any other person liable for the Obligations, or make any
effort at collection of the Obligations from any such other person, or
exercise or assert any other right or remedy to which Owner is or may be
entitled in connection with the Obligations or any security or other
guarantee therefor, or
(z) assert or file any claim against the assets of Contractor or any
other guarantor or other person liable for the Obligations, or any part
thereof, before or as a condition of enforcing the liability of Guarantor
under this Guarantee or requiring payment of said Obligation by Guarantor
hereunder, or at any time thereafter.
Guarantor hereby unconditionally waives any requirement that, as a condition
precedent to the enforcement of the obligations of Guarantor hereunder,
Contractor or all or any one or more of any other guarantors of any of the
Obligations be joined as parties to any proceedings for the enforcement of any
provision of this Guarantee.
2. (a) If Contractor fails to perform any of its obligations under
the Contract, or commits any breach thereof, Guarantor shall, within five (5)
days of advance written notice from Owner, immediately: (i) take such steps as
may, in the judgment of Owner reasonably exercised, be necessary to have
Contractor perform all Contractor's obligations under the Contract, or remedy
any breach thereof; or (ii) take such steps as may, in the judgment of Owner
reasonably exercised, be necessary to perform itself, or through a third party
other than Contractor, all of Contractor's obligations under the Contract, or to
remedy any breach thereof.
(b) If Guarantor fails, to the satisfaction of Owner, at any time to
perform any obligations under this Guarantee, Owner may, after affording
Guarantor written notice of any such failure and a reasonable opportunity to
cure the same, itself perform, or have any third party perform, any such
obligations, and Guarantor shall be responsible for all costs incurred by Owner
in so performing or so having performed, such obligations.
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3. Notwithstanding anything which may be to the contrary in this
Guarantee, the obligations guaranteed by Guarantor and Guarantor's liability
under this Guarantee shall not be greater than those of Contractor under the
Contract.
4. The Guarantor hereby represents and warrants to Owner as follows
(all as of the date hereof):
(a) The Guarantor is a corporation duly organized and existing under
the laws of New York, and has the power and authority to carry on its
business as now conducted, to own or hold under lease the properties it
holds itself out as owning or leasing and to enter into and perform its
obligations under this Guarantee.
(b) The Guarantor has power to issue this Guarantee, and this
Guarantee has been duly authorized by all necessary action on the part of
Guarantor, does not require any approval or other action of the
shareholders of Guarantor or approval or consent of any trustee or holders
of any indebtedness or obligations of Guarantor, except for such as have
been obtained, and has been duly executed and delivered by Guarantor, and
the execution and delivery and performance thereof, contravenes any law,
judgment, governmental rule, regulation or order applicable to or binding
on Guarantor or contravenes or results in any breach of or constitutes any
default under, any indenture, mortgage, chattel mortgage, deed of trust,
conditional sales contract, bank loan or credit agreement, corporate
charter, bylaw or other agreement or instrument to which Guarantor is a
party or by which Guarantor or its properties may at present be bound or
affected.
(c) Neither the execution and delivery by Guarantor of this
Guarantee, nor the performance thereof by Guarantor contemplated hereby,
requires the consent or approval of, or the giving of notice (other than
ex-post-facto reporting requirements) to, or the registration with, or the
taking of any other action in respect of, any governmental authority or
agency of the United States of America or any State or subdivision thereof.
(d) This Guarantee has been duly entered into and delivered by
Guarantor and constitutes the legal, valid and binding obligation of
Guarantor enforceable against Guarantor in accordance with the terms
hereof, except as limited by bankruptcy, reorganization, insolvency,
moratorium and other laws affecting the enforcement of creditors' rights
and remedies generally, subject to general principles of equity (regardless
of whether such enforceability is considered in a proceeding in equity or
at law).
(e) There are no pending, and to the best of Guarantor's knowledge
after due inquiry, no threatened, actions or proceedings against the
Guarantor before any court or administrative agency of the United States or
any State or subdivision thereof which, either individually or in the
aggregate would adversely affect the ability of Guarantor to perform its
obligations under this Guarantee, taking into consideration reserves
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which have been allocated and the probability of unfavorable judgments in
any such actions or proceedings.
5. THIS GUARANTEE AND THE RIGHTS AND DUTIES OF THE PARTIES HEREUNDER
SHALL BE GOVERNED BY, AND IN ALL RESPECTS CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
6. Each of the parties hereto submits to the jurisdiction of the
courts of the State of New York and the courts of the United States of America
located in the State of New York over any suit, action or proceeding with
respect to this Guarantee or the transactions contemplated hereby. Any suit,
action of proceeding with respect to this Guarantee or the transactions
contemplated hereby may be brought only in the Supreme Court of the State of New
York or the United States District Court of the United States of America, in
each case located in the County of New York, or Southern District of New York,
respectively, and which shall be accepted as the proper legal venue for the
settlement of any controversy or dispute arising in connection with it. Each of
the parties hereto waives any objection that it may have to the venue of such
suit, action or proceeding in any such court or that such suit, action or
proceeding in such court was brought in an inconvenient court and agrees not to
plead or claim the same.
7. Owner hereto irrevocably appoints CT Corporation, at 0000
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, as its authorized agent in the State of New
York upon which process may be served, and Guarantor hereto irrevocably appoints
Prentice Hall Corporation System Inc., 00 Xxxxx Xxxxxx, Xxxxxx, Xxx Xxxx 00000-
2543 as its authorized agent in the State of New York upon which process may be
served, in any suit, action or proceeding with respect to this Guarantee or the
transactions contemplated hereby, and agrees that service of process upon such
agent, and written notice of said service to such party by the person serving
the same to the address stipulated herein for the sending of notices, shall be
deemed in every respect effective service of process upon such party in any such
suit or proceeding. Each party hereto further agrees to take any and all action
as may be necessary to maintain such designation and appointment of such agent
in full force and effect so long as this Guarantee is in effect.
8. Notices to Guarantor which are required under the terms of this
Guarantee shall be sent by certified mail, return receipt requested, postage
prepaid at Guarantor's address first above written and to the attention of
Secretary, Xxxxxx Xxxxxxx Corporation. Notice shall be considered given and
received on the latest original delivery or attempted delivery date as indicted
in the postage receipt.
9. This Guarantee shall bind and inure to the benefit of the parties
of this Guarantee, their successors and permitted assigns.
10. This Guarantee shall not be assigned by Guarantor without the
prior written consent of Owner and the Financing Parties. Owner may without
consent of Guarantor assign or collaterally assign its interest and obligations
hereunder to the Financing Parties for security
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purposes. The Guarantor hereby expressly authorizes the Financing Parties to
exercise the rights of Owner under this Guarantee following realization of their
security interest in this Guarantee.
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The foregoing rights and obligations are in addition to those set forth in
Section 9 above.
11. This Guarantee may be executed in several counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument, and shall be binding upon the successors and
assigns of Guarantor and shall inure to the benefit of, and shall be enforceable
by, Owner to the fullest extent permitted by applicable laws.
12. No failure on the part of Owner to exercise, no delay in
exercising, and no course of dealing with respect to, any right or remedy
hereunder will operate as a waiver thereof; nor will any single or partial
exercise of any right or remedy hereunder preclude any other further exercise of
any other right or remedy.
13. All representations and warranties contained herein or made in
writing by Guarantor in connection herewith shall survive the execution and
delivery of this Guarantee regardless of any investigation made by Owner or any
other person.
14. To the fullest extent permitted by applicable law, any provision
of this Guarantee which is prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective only to the extent of such
prohibition or unenforceability without invalidating the remaining provisions
hereof or of any provision in the Contract, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
15. The Guarantor agrees to pay to Owner any and all reasonable costs
and expenses (including reasonable legal fees and expenses) incurred by Owner in
enforcing this Guarantee.
IN WITNESS WHEREOF, the Parties to this Guarantee have caused this
Guarantee to be executed by their duly authorized representatives the day and
year first above written.
PORT XXXXXX XXXXX COMPANY X. X. XXXXXX XXXXXXX CORPORATION
By: SABINE RIVER HOLDING
CORP., General Partner By: /s/ Xxxxxxx X. Xxxxx
---------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chairman & CFO
By: /s/ Xxxxx X. Xxxxx
-------------------------
Name: Xxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
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