AMENDED AND RESTATED GUARANTY AGREEMENT
Exhibit 10.13
AMENDED AND RESTATED
GUARANTY AGREEMENT
GUARANTY AGREEMENT
This Amended and Restated Guaranty Agreement dated as of August 27, 2007 (this
“Guaranty”) is executed by each of the undersigned (individually a “Guarantor” and
collectively, the “Guarantors”), in favor of Union Bank of California, N.A, as
Administrative Agent (in such capacity, the “Administrative Agent”) for the ratable benefit
of itself, the Banks (as defined below), the Issuing Banks (as defined below), and the Swap
Counterparties (as defined below) (together with the Administrative Agent, the Issuing Banks, the
Banks, individually a “Beneficiary”, and collectively, the “Beneficiaries”).
INTRODUCTION
A. The Guarantors have previously executed and delivered that certain Guaranty Agreement dated
as of July 13, 2004 (the “Existing Guaranty”) in connection with that certain Credit
Agreement dated as of July 7, 2004, as amended heretofore (as so amended, the “Existing Credit
Agreement”), among Xxxxx Energy Partners — Operating, L.P., a Delaware limited partnership
(formerly known as HEP Operating Company, L.P.) (“Borrower”), the Banks party thereto from time to
time (individually, a “Bank”, and collectively the “Banks”), the Banks issuing
letters of credit thereunder from time to time (individually, an “Issuing Bank”, and
collectively, the “Issuing Banks”) and the Administrative Agent.
B. The Existing Credit Agreement is being amended and restated in its entirety pursuant to
that certain Amended and Restated Credit Agreement dated as of August 27, 2007 (as amended,
restated, supplemented and otherwise modified from time to time, the “Credit Agreement”)
among the Borrower, the Banks, the Issuing Banks and the Administrative Agent.
C. The Guarantors are Subsidiaries of the Borrower and will derive substantial direct and
indirect benefit from (i) the transactions contemplated by the Credit Agreement, and the other
Credit Documents (as defined in the Credit Agreement), and (ii) the Interest Rate Contracts (as
defined in the Credit Agreement) entered into by the Borrower or any of its Subsidiaries with a
Bank or an Affiliate of a Bank (each such counterparty being referred to as a “Swap
Counterparty”).
D. It is a requirement under the Credit Agreement that the Grantors shall continue to
guarantee the due payment and performance of all Obligations (as defined in the Credit Agreement)
by amending and restating in its entirety the Existing Guaranty as set forth herein.
NOW, THEREFORE, in consideration of the premises, each Guarantor hereby agrees (a) that the
Existing Guaranty is amended and restated in its entirety as follows and (b) further agrees as
follows:
Section 1. Definitions. All capitalized terms not otherwise defined in this Guaranty
that are defined in the Credit Agreement shall have the meanings assigned to such terms by the
Credit Agreement.
Section 2. Guaranty.
(a) Each Guarantor hereby absolutely, unconditionally and irrevocably guarantees the punctual
payment and performance, when due, whether at stated maturity, by acceleration or otherwise, of all
Obligations, whether absolute or contingent and whether for principal, interest (including, without
limitation, interest that but for the existence of a bankruptcy, reorganization or similar
proceeding would accrue), fees, amounts owing in respect of Letter of Credit Obligations, amounts
required to be provided as collateral, indemnities, expenses or otherwise (collectively, the
“Guaranteed Obligations”). Without limiting the generality of the foregoing, each
Guarantor’s liability shall extend to all amounts that constitute part of the Guaranteed
Obligations and would be owed by the Borrower to the Administrative Agent, any Issuing Bank or any
Bank under the Credit Documents and by the Borrower to any Swap Counterparty but for the fact that
they are unenforceable or not allowable due to insolvency or the existence of a bankruptcy,
reorganization or similar proceeding involving the Borrower.
(b) It is the intention of the Guarantors and each Beneficiary that the amount of the Guaranteed
Obligations guaranteed by each Guarantor shall be in, but not in excess of, the maximum amount
permitted by fraudulent conveyance, fraudulent transfer or similar Legal Requirements applicable to
such Guarantor. Accordingly, notwithstanding anything to the contrary contained in this Guaranty or
in any other agreement or instrument executed in connection with the payment of any of the
Guaranteed Obligations, the amount of the Guaranteed Obligations guaranteed by a Guarantor under
this Guaranty shall be limited to an aggregate amount equal to the largest amount that would not
render such Guarantor’s obligations hereunder subject to avoidance under Section 548 of the United
States Bankruptcy Code or any comparable provision of any other applicable law.
Section 3. Guaranty Absolute. Each Guarantor guarantees that the Guaranteed
Obligations will be paid strictly in accordance with the terms of the Credit Documents, regardless
of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of
such terms or the rights of any Beneficiary with respect thereto but subject to Section 2(b) above.
The obligations of each Guarantor under this Guaranty are independent of the Guaranteed Obligations
or any other obligations of any other Person under the Credit Documents or in connection with any
Interest Rate Contract, and a separate action or actions may be brought and prosecuted against any
Guarantor to enforce this Guaranty, irrespective of whether any action is brought against the
Borrower, any other Guarantor or any other Person or whether the Borrower, any other Guarantor or
any other Person is joined in any such action or actions. The liability of each Guarantor under
this Guaranty shall be irrevocable, absolute and unconditional irrespective of, and each Guarantor
hereby irrevocably waives any defenses it may now or hereafter have in any way relating to, any or
all of the following:
(a) any lack of validity or enforceability of any Credit Document or any agreement or instrument
relating thereto or any part of the Guaranteed Obligations being irrecoverable;
(b) any change in the time, manner or place of payment of, or in any other term of, all or any of
the Guaranteed Obligations or any other obligations of any Person under the Credit Documents or any
agreement or instrument relating to Interest Rate Contract with a Swap Counterparty, or any other
amendment or waiver of or any consent to departure from any Credit Document or any agreement or
instrument relating to Interest Rate Contract with a Swap
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Counterparty, including, without limitation, any increase in the Guaranteed Obligations resulting
from the extension of additional credit to the Borrower or otherwise;
(c) any taking, exchange, release or non-perfection of any collateral, or any taking, release or
amendment or waiver of or consent to departure from any other guaranty, for all or any of the
Guaranteed Obligations;
(d) any manner of application of collateral, or proceeds thereof, to all or any of the Guaranteed
Obligations, or any manner of sale or other disposition of any collateral for all or any of the
Guaranteed Obligations or any other obligations of any other Person under the Credit Documents or
any other assets of the Borrower or any of its Subsidiaries;
(e) any change, restructuring or termination of the corporate structure or existence of the
Borrower or any of its Subsidiaries;
(f) any failure of any Bank, the Administrative Agent, any Issuing Bank or any other Beneficiary to
disclose to the Borrower or any Guarantor any information relating to the business, condition
(financial or otherwise), operations, properties or prospects of any Person now or in the future
known to the Administrative Agent, any Issuing Bank, any Bank or any other Beneficiary (and each
Guarantor hereby irrevocably waives any duty on the part of any Beneficiary to disclose such
information);
(g) any signature of any officer of the Borrower being mechanically reproduced in facsimile or
otherwise; or
(h) any other circumstance or any existence of or reliance on any representation by any Beneficiary
that might otherwise constitute a defense available to, or a discharge of, the Borrower, any
Guarantor or any other guarantor, surety or other Person.
Section 4. Continuation and Reinstatement, Etc. Each Guarantor agrees that, to the
extent that payments of any of the Guaranteed Obligations are made, or any Beneficiary receives any
proceeds of collateral, and such payments or proceeds or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside, or otherwise required to be
repaid, then to the extent of such repayment the Guaranteed Obligations shall be reinstated and
continued in full force and effect as of the date such initial payment or collection of proceeds
occurred. EACH GUARANTOR SHALL DEFEND AND INDEMNIFY EACH BENEFICIARY FROM AND AGAINST ANY CLAIM,
DAMAGE, LOSS, LIABILITY, COST OR EXPENSE UNDER THIS SECTION 4 (INCLUDING REASONABLE ATTORNEYS’ FEES
AND EXPENSES) IN THE DEFENSE OF ANY SUCH ACTION OR SUIT INCLUDING SUCH CLAIM, DAMAGE, LOSS,
LIABILITY, COST, OR EXPENSE ARISING AS A RESULT OF THE INDEMNIFIED BENEFICIARY’S OWN NEGLIGENCE BUT
EXCLUDING SUCH CLAIM, DAMAGE, LOSS, LIABILITY, COST, OR EXPENSE THAT IS FOUND IN A FINAL,
NON-APPEALABLE JUDGMENT BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH INDEMNIFIED
BENEFICIARY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
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Section 5. Waivers and Acknowledgments.
(a) Each Guarantor hereby waives promptness, diligence, presentment, notice of acceptance and any
other notice with respect to any of the Guaranteed Obligations and this Guaranty and any
requirement that any Beneficiary protect, secure, perfect or insure any Lien or any property or
exhaust any right or take any action against the Borrower or any other Person or any collateral.
(b) Each Guarantor hereby irrevocably waives any right to revoke this Guaranty, and acknowledges
that this Guaranty is continuing in nature and applies to all Guaranteed Obligations, whether
existing now or in the future.
(c) Each Guarantor acknowledges that it will receive substantial direct and indirect benefits from
the financing arrangements involving the Borrower contemplated by the Credit Documents and the
Interest Rate Contracts with the Swap Counterparties and that the waivers set forth in this
Guaranty are knowingly made in contemplation of such benefits.
Section 6. Subrogation. No Guarantor will exercise any rights that it may now have or
hereafter acquire against the Borrower or any other Person to the extent that such rights arise
from the existence, payment, performance or enforcement of such Guarantor’s obligations under this
Guaranty or any other Credit Document, including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution or indemnification and any right to participate in any
claim or remedy of any Beneficiary against the Borrower or any other Person, whether or not such
claim, remedy or right arises in equity or under contract, statute or common law, including,
without limitation, the right to take or receive from the Borrower or any other Person, directly or
indirectly, in cash or other property or by set-off or in any other manner, payment or security on
account of such claim, remedy or right, unless and until all of the Guaranteed Obligations and any
and all other amounts payable by the Guarantors under this Guaranty shall have been paid in full in
cash, all Letters of Credit have terminated or expired and no Letter of Credit Obligations shall
remain outstanding, all Interest Rate Contracts with the Beneficiaries have been terminated, and
all Commitments shall have expired or terminated. If any amount shall be paid to a Guarantor in
violation of the preceding sentence at any time prior to (a) the payment in full in cash of the
Guaranteed Obligations and any and all other amounts payable by the Guarantors under this Guaranty,
(b) the satisfaction of all Letter of Credit Obligations and the termination of all obligations of
the Issuing Banks and the Banks in respect of Letters of Credit, (c) the termination of all
Interest Rate Contracts with the Beneficiaries, and (d) the termination of the Commitments, such
amount shall be held in trust for the benefit of the Beneficiaries and shall forthwith be paid to
the Administrative Agent to be credited and applied to the Guaranteed Obligations and any and all
other amounts payable by the Guarantors under this Guaranty, whether matured or unmatured, in
accordance with the terms of the Credit Documents.
Section 7. Representations and Warranties. Each Guarantor hereby represents and
warrants as follows:
(a) There are no conditions precedent to the effectiveness of this Guaranty. Such Guarantor
benefits from executing this Guaranty.
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(b) Such Guarantor has, independently and without reliance upon the Administrative Agent, the
Issuing Bank or any Bank and based on such documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this Guaranty, and such Guarantor has
established adequate means of obtaining from the Borrower and each other relevant Person on a
continuing basis information pertaining to, and is now and on a continuing basis will be reasonably
familiar with, the business, condition (financial and otherwise), operations, properties and
prospects of the Borrower and each other relevant Person.
(c) The obligations of such Guarantor under this Guaranty are the valid, binding and legally
enforceable obligations of such Guarantor, and the execution and delivery of this Guaranty by such
Guarantor has been duly and validly authorized in all respects by such Guarantor, and the Person
who is executing and delivering this Guaranty on behalf of such Guarantor has full power, authority
and legal right to so do, and to observe and perform all of the terms and conditions of this
Guaranty on such Guarantor’s part to be observed or performed.
Section 8. Right of Set-Off. Upon the occurrence and during the continuance of any
Event of Default, any Bank or the Administrative Agent, the Issuing Bank and any other Beneficiary
is hereby authorized at any time, to the fullest extent permitted by law, to set off and apply any
deposits (general or special, time or demand, provisional or final) and other indebtedness owing by
such Beneficiary to the account of each Guarantor against any and all of the obligations of the
Guarantors under this Guaranty, irrespective of whether or not such Beneficiary shall have made any
demand under this Guaranty and although such obligations may be contingent and unmatured. Such
Beneficiary shall promptly notify the affected Guarantor after any such set-off and application is
made, provided that the failure to give such notice shall not affect the validity of such set-off
and application. The rights of the Beneficiaries under this Section 8 are in addition to other
rights and remedies (including, without limitation, other rights of set-off) which any Beneficiary
may have.
Section 9. Amendments, Etc. No amendment or waiver of any provision of this Guaranty
and no consent to any departure by any Guarantor therefrom shall in any event be effective unless
the same shall be in writing and signed by the affected Guarantor, the Administrative Agent and the
Majority Banks, and then such waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given; provided that no amendment, waiver or consent
shall, unless in writing and signed by all of the Banks, (a) other than to the extent expressly
provided in such amendment, waiver or consent, limit the liability of any Guarantor hereunder (it
being understood that waivers and amendments permitted to be made under the Credit Agreement by the
Majority Banks with respect to any of the underlying obligations guaranteed hereunder shall not be
deemed to limit the liability of any Guarantor within the meaning of this clause (a)), (b) postpone
any date fixed for payment hereunder in respect of any of the Guaranteed Obligations that is
principal of, or interest on, the Notes or any fees, or Letter of Credit Obligations, or (c) change
the percentage of the Commitments or of the aggregate unpaid principal amount of the Notes required
to take any action hereunder.
Section 10. Notices, Etc. All notices and other communications provided for hereunder
shall be sent in the manner provided for in Section 9.02 of the Credit Agreement and if to a
Guarantor, at its address specified on the signature page hereto and if to the Administrative
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Agent, any Issuing Bank or any Bank, at its address specified in or pursuant to the Credit
Agreement, and if to a Swap Counterparty, at its address specified in the applicable Interest Rate
Contract. All such notices and communications shall be effective when delivered, except that
notices and communications to the Administrative Agent shall not be effective until received by the
Administrative Agent.
Section 11. No Waiver: Remedies. No failure on the part of the Administrative Agent
or any other Beneficiary to exercise, and no delay in exercising, any right hereunder shall operate
as a waiver thereof; nor shall any single or partial exercise of any right hereunder preclude any
other or further exercise thereof or the exercise of any other right. The remedies herein provided
are cumulative and not exclusive of any remedies provided by law.
Section 12. Continuing Guaranty: Assignments under the Credit Agreement. This
Guaranty is a continuing guaranty and shall (a) remain in full force and effect until the payment
in full of all Guaranteed Obligations and all other amounts payable under the Credit Documents, the
termination of all Letter of Credit Obligations, and the termination of all the Commitments, (b) be
binding upon each Guarantor and its successors and assigns, (c) inure to the benefit of and be
enforceable by the Administrative Agent, each Bank, and each Issuing Bank, and their respective
successors, and, in the case of transfers and assignments made in accordance with the Credit
Agreement, transferees and assigns, and (d) inure to the benefit of and be enforceable by a Swap
Counterparty and each of its successors, transferees and assigns to the extent such successor,
transferee or assign is a Bank or an Affiliate of a Bank. Without limiting the generality of the
foregoing clause (c), subject to Section 9.06 of the Credit Agreement, any Bank may assign or
otherwise transfer all or any portion of its rights and obligations under the Credit Agreement
(including, without limitation, all or any portion of its Commitment, the Advances owing to it and
the Note or Notes held by it) to any other Person, and such other Person shall thereupon become
vested with all the benefits in respect thereof granted to such Bank herein or otherwise, subject,
however, in all respects to the provisions of the Credit Agreement. Furthermore, when any Swap
Counterparty assigns or otherwise transfers any interest held by it under an Interest Rate Contract
to any other Swap Counterparty pursuant to the terms of such agreement, that other Swap
Counterparty shall thereupon become vested with all the benefits held by the assigning Swap
Counterparty under this Guaranty, subject, however, in all respects to the provisions of the Credit
Agreement. Each Guarantor acknowledges that upon any Person becoming a Bank, the Administrative
Agent, or an Issuing Bank in accordance with the Credit Agreement, such Person shall be entitled to
the benefits hereof.
Section 13. Governing Law. This Guaranty shall be governed by, and construed and
enforced in accordance with, the laws of the State of Texas. Each Guarantor hereby irrevocably
submits to the jurisdiction of any Texas state or federal court sitting in Dallas, Texas in any
action or proceeding arising out of or relating to this Guaranty and the other Credit Documents,
and each Guarantor hereby irrevocably agrees that all claims in respect of such action or
proceeding may be heard and determined in such court. Each Guarantor hereby irrevocably waives, to
the fullest extent it may effectively do so, any right it may have to the defense of an
inconvenient forum to the maintenance of such action or proceeding. Each Guarantor hereby agrees
that service of copies of the summons and complaint and any other process which may be served in
any such action or proceeding may be made by mailing or delivering a copy of such process to such
Guarantor at its address set forth in the Credit Agreement or set forth on the
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signature page of this Guaranty. Each Guarantor agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Section shall affect the rights
of any Beneficiary to serve legal process in any other manner permitted by the law or affect the
right of any Beneficiary to bring any action or proceeding against any Guarantor or its Property in
the courts of any other jurisdiction.
Section 14. Patriot Act. Each Beneficiary and the Administrative Agent (for itself
and not on behalf of any Beneficiary) hereby notifies each Guarantor that pursuant to the
requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the “Act”), it is required to obtain, verify and record information that identifies such
Guarantor, which information includes the name and address of the Guarantor and other information
that will allow such Beneficiary or the Administrative Agent, as applicable, to identify the
Guarantor in accordance with the Act.
Section 15. Amendment and Restatement. As to the Guarantors party to the Existing
Guaranty, this Guaranty is an amendment and restatement of the Existing Guaranty and is given in
renewal and replacement for such Existing Guaranty. Such Guarantors, though not required, hereby
consent to the terms of the Credit Agreement.
Section 16. INDEMNIFICATION. EACH GUARANTOR SHALL INDEMNIFY EACH OF THE
BENEFICIARIES, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS FROM, AND DISCHARGE,
RELEASE, AND HOLD EACH OF THEM HARMLESS AGAINST, ANY AND ALL LIABILITIES, OBLIGATIONS, LOSSES,
CLAIMS, EXPENSES, OR DAMAGES OF ANY KIND OR NATURE WHATSOEVER TO WHICH ANY OF THEM MAY BECOME
SUBJECT RELATING TO OR ARISING OUT OF THIS GUARANTY, INCLUDING ANY LIABILITIES, OBLIGATIONS,
LOSSES, CLAIMS, EXPENSES, OR DAMAGES WHICH ARISE OUT OF OR RESULT FROM (A) ANY ACTUAL OR PROPOSED
USE BY THE BORROWER, ANY GUARANTOR OR ANY AFFILIATE OF THE BORROWER OR ANY GUARANTOR OF THE
PROCEEDS OF THE ADVANCES, (B) ANY BREACH BY THE BORROWER OR ANY GUARANTOR OF ANY PROVISION OF THE
CREDIT AGREEMENT OR ANY OTHER CREDIT DOCUMENT, (C) ANY INVESTIGATION, LITIGATION OR OTHER
PROCEEDING (INCLUDING ANY THREATENED INVESTIGATION OR PROCEEDING) RELATING TO THE FOREGOING, (D)
ANY ENVIRONMENTAL CLAIM OR REQUIREMENT OF ENVIRONMENTAL LAWS CONCERNING OR RELATING TO THE PRESENT
OR PREVIOUSLY-OWNED OR OPERATED PROPERTIES OF THE BORROWER, ANY GUARANTOR OR THE OPERATIONS OR
BUSINESS, OF THE BORROWER OR ANY GUARANTOR, INCLUDING ANY MATTER DISCLOSED WITHIN THE CREDIT
AGREEMENT, OR (E) ANY ENVIRONMENTAL CLAIM OR REQUIREMENT OF ENVIRONMENTAL LAWS CONCERNING OR
RELATED TO THE BORROWER’S OR ANY GUARANTOR’S PROPERTIES AND EACH GUARANTOR SHALL REIMBURSE THE
BENEFICIARIES AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS, UPON DEMAND FOR ANY
REASONABLE OUT-OF-POCKET EXPENSES (INCLUDING REASONABLE OUTSIDE LEGAL FEES) INCURRED IN CONNECTION
WITH ANY
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SUCH INVESTIGATION, LITIGATION OR OTHER PROCEEDING; AND EXPRESSLY INCLUDING ANY SUCH LOSSES,
LIABILITIES, CLAIMS, DAMAGES, OR EXPENSES INCURRED BY REASON OF THE PERSON BEING INDEMNIFIED’S OWN
NEGLIGENCE, BUT EXCLUDING ANY SUCH LOSSES, LIABILITIES, CLAIMS, DAMAGES OR EXPENSES THAT IS FOUND
IN A FINAL, NON-APPEALABLE JUDGMENT BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH
INDEMNIFIED PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
Section 17. WAIVER OF JURY TRIAL. EACH GUARANTOR HEREBY ACKNOWLEDGES THAT IT HAS BEEN
REPRESENTED BY AND HAS CONSULTED WITH COUNSEL OF ITS CHOICE, AND HEREBY KNOWINGLY, VOLUNTARILY,
INTENTIONALLY, AND IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN RESPECT OF ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY, ANY OTHER CREDIT DOCUMENT, OR ANY OF THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
Section 18. Additional Guarantors. Pursuant to Section 5.10 of the Credit Agreement,
each Subsidiary of the Borrower (other than a Restricted Subsidiary) that was not in existence on
the date of the Credit Agreement is required to enter into this Guaranty as a Guarantor upon
becoming a Subsidiary. Upon execution and delivery after the date hereof by the Administrative
Agent and such Subsidiary of an instrument in the form of Annex 1, such Subsidiary shall become a
Guarantor hereunder with the same force and effect as if originally named as a Guarantor herein.
The execution and delivery of any instrument adding an additional Guarantor as a party to this
Guaranty shall not require the consent of any other Guarantor hereunder. The rights and
obligations of each Guarantor hereunder shall remain in full force and effect notwithstanding the
addition of any new Guarantor as a party to this Guaranty.
Section 19. NOTICE OF FINAL AGREEMENTS. PURSUANT TO SECTION 26.02 OF THE TEXAS
BUSINESS AND COMMERCE CODE, AN AGREEMENT IN WHICH THE AMOUNT INVOLVED IN AGREEMENT EXCEEDS $50,000
IN VALUE IS NOT ENFORCEABLE UNLESS THE AGREEMENT IS IN WRITING AND SIGNED BY THE PARTY TO BE BOUND
OR THAT PARTY’S AUTHORIZED REPRESENTATIVE.
THE RIGHTS AND OBLIGATIONS OF THE PARTIES TO AN AGREEMENT SUBJECT TO THE PRECEDING PARAGRAPH
SHALL BE DETERMINED SOLELY FROM THE WRITTEN AGREEMENT, AND ANY PRIOR ORAL AGREEMENTS BETWEEN THE
PARTIES ARE SUPERSEDED BY AND MERGED INTO THIS GURANTY. THIS GUARANTY AND THE CREDIT DOCUMENTS
REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF AND MAY
NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE
PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
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Each Guarantor has caused this Guaranty to be duly executed as of the date first above
written.
| GUARANTORS: HEP PIPELINE GP, L.L.C., a Delaware limited liability company HEP REFINING GP, L.L.C., a Delaware limited liability company HEP MOUNTAIN HOME, L.L.C., a Delaware limited liability company HEP PIPELINE, L.L.C., a Delaware limited liability company HEP REFINING, L.L.C., a Delaware limited liability company HEP XXXXX CROSS, L.L.C., a Delaware limited liability company |
||||
| Each by: Xxxxx Energy Partners — Operating, L.P., a Delaware limited partnership and its Sole Member |
||||
| By: | HEP Logistics GP, L.L.C., a Delaware limited | |||
| liability company, its General Partner | ||||
| By: | Xxxxx Energy Partners, L.P., a Delaware limited | |||
| partnership, its Managing Member | ||||
| By: | HEP Logistics Holdings, L.P., a Delaware | |||
| limited partnership, its General Partner | ||||
| By: | Xxxxx Logistic Services, L.L.C., a Delaware | |||
| limited liability company, its General Partner | ||||
| By: | ||||
| Xxxxxxx X. Xxxx | ||||
| Treasurer | ||||
| Address of Guarantors: 000 Xxxxxxxx Xxxxx, Xxxxx 0000 Xxxxxx, Xxxxx 00000-0000 Facsimile: (000)000-0000 Attention: Xxxxxxx X. Xxxx |
[Signature pages continue.]
Signature page to Amended and Restated Guaranty Agreement
| HEP NAVAJO SOUTHERN, L.P., a Delaware limited partnership HEP PIPELINE ASSETS, LIMITED PARTNERSHIP, a Delaware limited partnership HEP FIN-TEX/TRUST-RIVER, L.P., a Delaware limited partnership |
||||
| Each by: HEP Pipeline GP, L.L.C., a Delaware limited liability company and its General Partner |
||||
| By: | Xxxxx Energy Partners - Operating, L.P., a | |||
| Delaware limited partnership and its Sole Member | ||||
| By: | HEP Logistics GP, L.L.C., a Delaware limited | |||
| liability company, its General Partner | ||||
| By: | Xxxxx Energy Partners, L.P., a Delaware limited | |||
| partnership, its Managing Member | ||||
| By: | HEP Logistics Holdings, L.P., a Delaware | |||
| limited partnership, its General Partner | ||||
| By: | Xxxxx Logistic Services, L.L.C., a Delaware | |||
| limited liability company, its General Partner | ||||
| By: | ||||
| Xxxxxxx X. Xxxx | ||||
| Treasurer | ||||
| Address of Guarantors: 000 Xxxxxxxx Xxxxx, Xxxxx 0000 Xxxxxx, Xxxxx 00000-0000 Facsimile: (000)000-0000 Attention: Xxxxxxx X. Xxxx |
[Signature pages continue.]
Signature page to Amended and Restated Guaranty Agreement
| HEP REFINING ASSETS, L.P., a Delaware limited partnership |
||||
| By: | HEP Refining GP, L.L.C., a Delaware limited | |||
| liability company and its General Partner | ||||
| By: | Xxxxx Energy Partners — Operating, L.P., a | |||
| Delaware limited partnership and its Sole Member | ||||
| By: | HEP Logistics GP, L.L.C., a Delaware limited | |||
| liability company, its General Partner | ||||
| By: | Xxxxx Energy Partners, L.P., a Delaware limited | |||
| partnership, its Managing Member | ||||
| By: | HEP Logistics Holdings, L.P., a Delaware limited partnership, its General Partner |
|||
| By: | Xxxxx Logistic Services, L.L.C., a Delaware limited liability company, its General Partner |
|||
| By: | ||||
| Xxxxxxx X. Xxxx | ||||
| Treasurer | ||||
| Address of Guarantor: 000 Xxxxxxxx Xxxxx, Xxxxx 0000 Xxxxxx, Xxxxx 00000-0000 Facsimile: (000)000-0000 Attention: Xxxxxxx X. Xxxx |
Signature page to Amended and Restated Guaranty Agreement
| HEP LOGISTICS GP, L.L.C., a Delaware limited liability company |
||||
| By: | Xxxxx Energy Partners, L.P., a Delaware limited partnership, its Managing Member |
|||
| By: | HEP Logistics Holdings, L.P., a Delaware | |||
| limited partnership, its General Partner | ||||
| By: | Xxxxx Logistic Services, L.L.C., a Delaware | |||
| limited liability company, its General Partner | ||||
| By: | ||||
| Xxxxxxx X. Xxxx | ||||
| Treasurer | ||||
| Address of Guarantors: 000 Xxxxxxxx Xxxxx, Xxxxx 0000 Xxxxxx, Xxxxx 00000-0000 Facsimile: (000)000-0000 Attention: Xxxxxxx X. Xxxx |
[Signature pages continue.]
Signature page to Amended and Restated Guaranty Agreement
| XXXXX ENERGY PARTNERS, L.P., a Delaware limited partnership |
||||
| By: | HEP Logistics Holdings, L.P., a Delaware limited partnership, its General Partner |
|||
| By: | Xxxxx Logistic Services, L.L.C., a Delaware | |||
| limited liability company, its General Partner | ||||
| By: | ||||
| Xxxxxxx X. Xxxx | ||||
| Treasurer | ||||
| Address of Guarantors: 000 Xxxxxxxx Xxxxx, Xxxxx 0000 Xxxxxx, Xxxxx 00000-0000 Facsimile: (000)000-0000 Attention: Xxxxxxx X. Xxxx |
[Signature pages continue.]
Signature page to Amended and Restated Guaranty Agreement
| XXXXX ENERGY FINANCE CORP., a Delaware corporation |
||||
| By: | ||||
| Xxxxxxx X. Xxxxxxx | ||||
| President and Chief Executive Officer | ||||
| Address of Guarantors: 000 Xxxxxxxx Xxxxx, Xxxxx 0000 Xxxxxx, Xxxxx 00000-0000 Facsimile: (000)000-0000 Attention: Xxxxxxx X. Xxxx |
[Signature pages continue.]
Signature page to Amended and Restated Guaranty Agreement
Annex 1 to the Amended and
Restated Guaranty Agreement
Restated Guaranty Agreement
SUPPLEMENT NO. dated as of (the “Supplement”), to the Amended and
Restated Guaranty Agreement dated as of August 27, 2007 (as amended, supplemented or otherwise
modified from time to time, the “Guaranty Agreement”), executed by each of the subsidiaries
party thereto (each such subsidiary individually, a “Guarantor” and collectively, the
“Guarantors”) of Xxxxx Energy Partners — Operating, L.P., a Delaware limited partnership
(the “Borrower”), in favor of Union Bank of California, N.A., as Administrative Agent (in
such capacity, the “Administrative Agent”) for the benefit of the Beneficiaries (as defined
in the Guaranty Agreement).
A. Reference is made to the Amended and Restated Credit Agreement dated as of August 27, 2007
(as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”),
among the Borrower, the Banks from time to time party thereto (the “Banks”), and the
Administrative Agent.
B. Capitalized terms used herein and not otherwise defined herein shall have the meanings
assigned to such terms in the Guaranty Agreement or the Credit Agreement.
C. The Guarantors have entered into the Guaranty Agreement in order to induce the Banks to
make Advances and the Issuing Banks to issue Letters of Credit. Pursuant to Section 5.10 of the
Credit Agreement, certain Subsidiaries of the Borrower are required to enter into the Guaranty
Agreement as Guarantors. Section 18 of the Guaranty Agreement provides that additional
Subsidiaries of the Borrower may become Guarantors under the Guaranty Agreement by execution and
delivery of an instrument in the form of this Supplement. The undersigned Subsidiary of the
Borrower (the “New Guarantor”) is executing this Supplement in accordance with the
requirements of the Credit Agreement to become a Guarantor under the Guaranty Agreement in order to
induce the Banks to make additional Advances and the Issuing Banks to issue additional Letters of
Credit and as consideration for Advances previously made and Letters of Credit previously issued.
Accordingly, the Administrative Agent and the New Guarantor agree as follows:
SECTION 1. In accordance with Section 18 of the Guaranty Agreement, the New Guarantor by its
signature below becomes a Guarantor under the Guaranty Agreement with the same force and effect as
if originally named therein as a Guarantor and the New Guarantor hereby (a) agrees to all the terms
and provisions of the Guaranty Agreement applicable to it as a Guarantor thereunder and (b)
represents and warrants that the representations and warranties made by it as a Guarantor
thereunder are true and correct in all material respects on and as of the date hereof. Each
reference to a “Guarantor” in the Guaranty Agreement shall be deemed to include the New Guarantor.
The Guaranty Agreement is hereby incorporated herein by reference.
SECTION 2. The New Guarantor represents and warrants to the Administrative Agent and the other
Beneficiaries that this Supplement has been duly authorized, executed and delivered by it and
constitutes its legal, valid and binding obligation, enforceable against it in
Annex 1 to Amended and Restated Guaranty Agreement
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accordance with its terms (subject to applicable bankruptcy, reorganization, insolvency,
moratorium or similar laws affecting creditors’ rights generally and subject, as to enforceability,
to equitable principles of general application (regardless of whether enforcement is sought in a
proceeding in equity or at law)).
SECTION 3. This Supplement may be executed in counterparts, each of which shall constitute an
original, but all of which when taken together shall constitute a single contract. This Supplement
shall become effective when the Administrative Agent shall have received counterparts of this
Supplement that, when taken together, bear the signatures of the New Guarantor and the
Administrative Agent. Delivery of an executed signature page to this Supplement by fax transmission
shall be as effective as delivery of a manually executed counterpart of this Supplement.
SECTION 4. Except as expressly supplemented hereby, the Guaranty Agreement shall remain in
full force and effect.
SECTION 5. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF TEXAS. The New Guarantor hereby irrevocably submits to the
jurisdiction of any Texas state or federal court sitting in Houston, Texas in any action or
proceeding arising out of or relating to this Supplement or the Guaranty and the other Credit
Documents, and the New Guarantor hereby irrevocably agrees that all claims in respect of such
action or proceeding may be heard and determined in such court. The New Guarantor hereby
irrevocably waives, to the fullest extent it may effectively do so, any right it may have to the
defense of an inconvenient forum to the maintenance of such action or proceeding. The New
Guarantor hereby agrees that service of copies of the summons and complaint and any other process
which may be served in any such action or proceeding may be made by mailing or delivering a copy of
such process to such Guarantor at its address set forth on the signature page hereof. The New
Guarantor agrees that a final judgment in any such action or proceeding shall be conclusive and may
be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Section shall affect the rights of any Beneficiary to serve legal process in any
other manner permitted by the law or affect the right of any Beneficiary to bring any action or
proceeding against the New Guarantor or its Property in the courts of any other jurisdiction.
SECTION 6. In case any one or more of the provisions contained in this Supplement should be
held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of
the remaining provisions contained herein and in the Guaranty Agreement shall not in any way be
affected or impaired thereby (it being understood that the invalidity of a particular provision
hereof in a particular jurisdiction shall not in and of itself affect the validity of such
provision in any other jurisdiction). The parties hereto shall endeavor in good-faith negotiations
to replace the invalid, illegal or unenforceable provisions with valid provisions the economic
effect of which comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 7. All communications and notices hereunder shall be in writing and given as provided
in Section 10 of the Guaranty Agreement. All communications and notices hereunder to the New
Guarantor shall be given to it at the address set forth under its signature below.
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SECTION 8. The New Guarantor agrees to reimburse the Administrative Agent for its reasonable
out-of-pocket expenses in connection with this Supplement, including the fees, disbursements and
other charges of counsel for the Administrative Agent.
SECTION 9. PURSUANT TO SECTION 26.02 OF THE TEXAS BUSINESS AND COMMERCE CODE, AN AGREEMENT IN
WHICH THE AMOUNT INVOLVED IN AGREEMENT EXCEEDS $50,000 IN VALUE IS NOT ENFORCEABLE UNLESS THE
AGREEMENT IS IN WRITING AND SIGNED BY THE PARTY TO BE BOUND OR THAT PARTY’S AUTHORIZED
REPRESENTATIVE.
THE RIGHTS AND OBLIGATIONS OF THE PARTIES TO AN AGREEMENT SUBJECT TO THE PRECEDING PARAGRAPH
SHALL BE DETERMINED SOLELY FROM THE WRITTEN AGREEMENT, AND ANY PRIOR ORAL AGREEMENTS BETWEEN THE
PARTIES ARE SUPERSEDED BY AND MERGED INTO THIS GUARANTY. THIS SUPPLEMENT, THE GUARANTY AGREEMENT
AND THE OTHER CREDIT DOCUMENTS REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES WITH RESPECT TO THE
SUBJECT MATTER HEREOF AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
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IN WITNESS WHEREOF, the New Guarantor and the Administrative Agent have duly executed this
Supplement to the Guaranty Agreement as of the day and year first above written.
| [Name Of New Guarantor] |
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| By: | ||||
| Name: | ||||
| Title: | ||||
| Address: | ||||
| UNION BANK OF CALIFORNIA, N.A., as Administrative Agent |
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| By: | ||||
| Name: | ||||
| Title: | ||||
Annex 1 to Amended and Restated Guaranty Agreement
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