EXHIBIT 24B
Case 2:10-md-02179-CJB-SS Document 6430-43 Filed 05/03/12 Page 1 of 9
BP P.L.C. BACK-UP GUARANTEE
1.
Recitals.
(a)
Whereas, BP Corporation North America
Inc., an Indiana corporation (the “
First
Guarantor
”), is providing a guarantee (the “
BPCNA Guarantee
”) in favor of the Economic and
Property Damages Settlement Class (the “
Beneficiary
”) in connection with that certain
Deepwater Horizon Economic and Property Damage
s Settlement Agreement to be dated on or
around April 18, 2012 (the “
Agreement
”), guaranteeing the payment obligations (the
“
Obligations
”) of BP Exploration and Production In
c. and BP America Production Company
(the “
Primary Obligors
”) under the Agreement.
(b)
Whereas, the First Guarantor is a wholly-own
ed indirect subsidiary of BP p.l.c., a
company incorporated in
England and Wales (the “
Second Guarantor
”), and the Second
Guarantor has agreed to pr
ovide this guarantee (the “
Guarantee
”) pursuant to Section 37 of the
Agreement.
(c)
Now, therefore, for good and valuable
consideration receiv
ed, the receipt and
sufficiency of which are hereby acknowledge
d, the Second Guarantor agrees as follows:
2.
Guarantee of Obligations.
The Second Guarantor, subject to the terms and conditions
herein, including, without limita
tion, the occurrence and continuance of a BPCNA Default,
hereby absolutely, irrecoverabl
y, and unconditionally guarantees
the Beneficiary, by and through
(i) the Claims Administrator, or (ii) Stephen
J. Herman and/or James Parkerson Roy, or their
successors, acting as Economic and Propert
y Damages Class Settlement Counsel (“
Lead Class
Counsel
”), that the Primary Obligors (or, if app
licable, the First Guarantor) will duly and
punctually pay all of the Primary Obligors’ Obligations
under the
Agreement, as and when
required in accordance with the terms thereof, in
each case, without regard to whether such
obligation is direct or indirect, contingent or
otherwise, now or hereaf
ter existing or owing, or
incurred or payable before or
after commencement of any proceedi
ngs by or against the Primary
Obligors under any applicable bankruptcy or inso
lvency law or similar
law or proceeding. For
purposes of this Guarantee, all
capitalized terms not otherwise
defined herein shall have the
meaning ascribed to such term in the Agreement.
3.
Event of Default of Primary Ob
ligors and First Guarantor.
The Primary Obligors
and the First Guarantor shall be deemed in defa
ult solely after the occurrence of all of the
following events (“
BPCNA Default
”):
(a)
The Primary Obligors have failed to pay an Obligation within the period allowed
by the Agreement.
(b)
The Claims Administrator or Lead Cla
ss Counsel issues a Demand (defined in
Clause 11(b)) to the Primary Obligors, the First Guarantor, and the Second Guarantor alleging
that the Primary Obligors have not paid their Obligations within the period allowed by the
Agreement.
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(c)
The Primary Obligors do not cure the alleged b
reach within five (5
)
business days
after receipt of the Demand
(d)
The Claims Administrator or Lead Class Counsel shall concurrently notify the
Court (presiding judge or magistrate of the division of the District Court for the Eastern District
of Louisiana having oversight of the Agreement)
of the
alleged breach, and Second Guarantor
shall not oppose
expedited consultation and or mediation of the dispute
(e)
The Court informally
consults regarding and or mediates the dispute
(f)
The Primary Obligors fail to take curative action within the greater of (i) two
business days after the conclusion of the consultation and/or mediation with the Court, or (ii) the
balance of the time period specified in Clause 3(c).
(g)
The occurrence and continuation of either: (i) a failure by First Guarantor to pay
the applicable Obligations or otherwise cure the Default (as defined in the BPCNA Guarantee) of
the Primary Obligors within the time specified in the BPCNA Guarantee, or (ii) a Net Worth
Event as defined hereinafter.
4.
Obligation of Second Guarantor.
If and only if
a
BPCNA Default has occurred and
such BPCNA Default has not been cured and is continuing, then Second
Guarantor must pay or
procure the
payment of the applicable overdue and unpaid Obligations of the Primary Obligors
within the greater of (i) 30 days from receipt of the Demand or (ii) 15 days after the
determination of a BPCNA Default as specified in Clauses 3(a)
–
(g).
5.
Net Worth Event
. For purposes of this Guarantee, the terms set forth below have the
following meanings.
“Consolidated Net Worth” means Total
Assets less Total Liabilities.
“G P” means, as at any date of determination, generally accepted accounting
principles in the United States.
“Net Worth Event” means
the Consolidated Net Worth of the First Guarantor, as
demonstrated in the most recently produced audited, annual consolidated balance sheet
shall be less than
ten billion ( 10,000,000,000),
pursuant to audited financials that First
Guarantor shall produce to Lead Class Counsel and the Claims Administrator at least
once a year, subject to a customary confidentiality agreement reasonably acceptable to
the First Guarantor and the Second Guarantor.
f the annual audited financials required
hereunder (subject to the confidentiality agreement
)
are
not produced on or before the
earlier of (a) 120 days a
fter the end of First Guarantor’s fiscal year or (b
)
the date the
audited financials are provided to the First Guarantor’s creditors, a Net Worth
Event will
immediately be deemed to have occurred withou
t the need for further action of any kind
;
provided, however, that the First Guarantor’s subsequent provision of the audited
financials to ead Class Counsel and the Claims dministrator showing the Consolidated
Net
Worth of the First Guarantor to be in
excess of ten billion dollars ( 10,000,000,000
)
shall immediately cure the Net Worth Event
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“Total ssets” means, as at any date of determination, all assets of the First Guarantor
and its subsidiaries on a consolidated basis in conformity with GAAP.
“T
otal iabilities” means, as at any date of determination, all liabilities of the First
Guarantor and its subsidiaries on a consolidated basis in conformity with GAAP.
6.
Joint and Several Obligation.
The Second
Guarantor’s obligations under this
Guarantee are contingent upon the occurrence and continuation of a BPCNA Default. Upon and
after the occurrence, and during the continuance, of a BPCNA Default, (a) this Guarantee shall
be a guarantee of payment, and not of collection, of the applicable overdue and unpaid
Obligations
;
(b) the Second Guarantor
’s
obligations hereunder
shall be on a “joint and several”
basis with the Primary Obligors and the First Guarantor to the same degree and extent as if the
Second Guarantor had been
a
co
-principal obligor of the
ap
plicable unpaid Obligations, and (c)
a
separate action or actions may be brought and prosecuted against the Second Guarantor to
enforce this Guarantee, irrespective of whether any action is brought upon the Primary Obligors
or the First Guarantor or whether any Primary Obligor or First Guarantor is joined in any such
action or actions.
7.
Duration.
The obligations of the Second Guarantor set forth herein constitute the full
recourse obligations of the Second Guarantor enforceable against it to the full extent of all its
assets and properties and shall remain in full force and effect until the earlier of (i) such time as
all the Obligations of the Primary Obligors under the Agreement have been performed in full
an
d
so declared by Court order, (ii) five years after the Effective Date, as defined in the Agreement,
or (iii
)
such time as the Agreement terminates or becomes null and void for any of the reasons set
out in Section 21 of the Agreement.
8.
Waiver of Defenses.
The obligations of the Second Guarantor hereunder shall not be
subject to any counterclaim, setoff, deduction, diminution, abatement, stay, recoupment,
suspension, deferment, reduction or defense (other than full and strict payment or other
satisfaction of the Obligations) based upon any claim the Second Guarantor may have against the
Beneficiary or any other obligor. Subject to Clause 7, the obligations of the Second Guarantor
hereunder shall remain in full force and effect without regard to, and shall not be released,
discharged or reduced (except to the extent of any defenses to payment or performance to which
the Primary Obligors are entitled under the Agreement) for any reason, including (a) any
amendment or waiver of any term of the Agreement, whether or not the Beneficiary, Primary
Obligors, or the Second Guarantor has notice or knowledge of any of the foregoing; or (b) any
bankruptcy, insolvency or similar proceeding with respect to the First Guarantor or Primary
Obligors or their respective properties, or any action taken by any trustee or receiver or by any
court in any such proceeding. The Second Guarantor also waives any right to demand arbitration
or mediation, and any right to a jury trial. The obligations of the Second Guarantor hereunder
shall be subject to, and the Second Guarantor shall be entitled to assert, any counterclaim, setoff,
deduction, or defense that the Primary Obligors could assert against the Beneficiary under the
Agreement.
9.
Waiver of Notice.
Except as set forth in this Guarantee, the Second Guarantor
unconditionally waives all notices which may be required by statute, rule of law or otherwise to
preserve any rights against the Second Guarantor hereunder, including (a) notice of the
acceptance of this Guarantee by the Beneficiary or any assignee thereof, or the modification of
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the Obligations or notice of any other matters relating thereto; (b) any presentment, demand,
notice of dishonor, protest or nonpayment of any damages or other amounts payable under the
Agreement; (c) any requirement for the enforcement, assertion or exercise of any right or remedy
under the Agreement; (d) any requirement of diligence; (e) if the Primary Obligors are in default,
the right to require the Beneficiary to proceed against the Primary Obligors or any other person
liable on the Obligations, and the Second Guarantor waives the right to have the property of the
Primary Obligors first applied to discharge the Obligations.
10.
Subordination of Rights.
The Second Guarantor shall be subrogated to all rights of the
Beneficiary against the Primary Obligo
rs
and the First Guarantor in respect of any amounts paid
by the Second Guarantor pursuant to the Guarantee, provided that the Second Guarantor waives
any rights it may acquire by way of subrogation under this Guarantee, by any payment made
hereunder or otherwise (including, without limitation, any statutory rights of subrogation under
Section 509 of the Bankruptcy Code, 11 U.S.C. § 509, or otherwise), reimbursement,
exoneration, contribution, indemnification, or any right to participate in any claim or remedy of
the Beneficiary against the Primary Obligors or any collateral which the Beneficiary now has or
acquires, until all of the Obligations shall have been irrevocably and indefeasibly paid to the
Beneficiary in full. If (a) the Second Guarantor shall make payment to the Beneficiary of all or
any part of the Obligations, and (b) all the Obligations shall have been indefeasibly paid in full,
then the Beneficiary shall, at the Second
Guarantor’s request, execute and deliver to the
Second
Guarantor appropriate documents necessary to evidence the transfer by subrogation to the
Second Guarantor of any interest in the Obligations resulting from such payment of the Second
Guarantor.
Any sums received by the Second Guarantor in violation of the foregoing shall b
e
held in trust for the Beneficiary and shall be promptly paid over to the Claims Administrator or
Lead Class Counsel on behalf of the Beneficiary without any need for further action of any kind
by the Beneficiary, to be credited and applied against the Obligations.
11.
Demands.
(a)
This Guarantee may only be enforced by the Claims Administrator or Lead Class
Counsel on behalf of the Beneficiary and may not be enforced by any other Natural Person or
Entity, including, without limitation, any member of the Beneficiary.
(b)
Any demand sent by the Claims Administrator or Lead Class Counsel to the
Second Guarantor under this Guarantee shall be in writing and shall (i) state the reasons for
making such demand, and (ii) clearly identify the Obligations under the Agreement which the
Primary Obligors have failed to pay, and such notice shall be delivered or sent by email,
facsimile, and overnight mail to the Second Guarantor at its address as provided under Clause
14(b)
(“
Demand
”)
.
(c)
All Demands to proceed under this Guarantee must be sent to the Second
Guarantor by the Claims Administrator or Lead Class Counsel.
12.
Representations and Warranties.
(a)
The Second Guarantor is a company duly formed and validly existing under the
laws of England and Wales.
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(b)
The Second Guarantor has the power and authority to execute, deliver and
perform its obligations under this Guarantee and has taken all necessary action to authorize the
execution, delivery and performance of this Guarantee. No consent is required for the due
execution, delivery, and performance by the Second Guarantor of this Guarantee, except those
that have been obtained and are in full force and effect.
(c)
The authorization, execution, delivery and performance of this Guarantee by the
Second Guarantor will not result in any breach of or default under (or any condition which with
the giving of notice or lapse of time or both would constitute a breach or default under) (i) the
constituent documents of the Second Guarantor, or (ii) any contract, indenture, mortgage,
security agreement or other document, instrument or agreement or any judgment, order or decree
or law, rule, or regulation to which the Second Guarantor is a party or to which the Second
Guarantor or any of its property is subject.
13.
Sole Remedy.
The Second
Guarantor’s obligations un
der this Guarantee are the sole and
exclusive remedy of the Beneficiary against the Second Guarantor under the Agreement. The
Second
Guarantor’s entire obligation to the Beneficiar
y is the guarantee of the Obligations and
the other obligations expressly set forth in Clause 14 and the Second Guarantor shall have no
other obligations of any kind to the Beneficiary. No person or entity, other than the Beneficiary
acting through the Claims Administrator or Lead Class Counsel, shall have any rights, remedies
or recourse to the Second Guarantor under this Guarantee.
14.
Miscellaneous.
(a)
The Second Guarantor shall not assign any of its rights or delegate any of its
duties under this Guarantee to any person or entity without the prior written consent of the
Beneficiarie
s.
This Guarantee shall be binding upon Second Guarantor, its successors, and
assigns, and shall inure to the benefit of Beneficiary, its successors, and assigns.
(b)
Any notice to the Second Guarantor pursuant to this Guarantee shall be sent by
electronic mail, facsimile, and overnight mail to the following individuals, who are authorized to
receive all notices, demands, suits to perform, and all other correspondence arising out of the
Guarantee:
Rupert Bondy
Group General Counsel
BP p.l.c.
1 St James's Squar
e
London SW1Y 4PD
United Kingdo
m
Fax:
+44
-
20
-
7
496
-
4242
E
-
mail:
Rupert.Bondy@uk.bp.com
David Bucknall
Group Treasurer
BP p.l.c.
4th Floor
20 Canada Square
London E14 5NJ
United Kingdom
Fax
:
+44
-
20
-
7948
-
7783
E
-
mail:
David.Bucknall@uk.bp.com
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6
John E.
(Jack) Lynch Jr.
Deputy Group General Counsel
U.S. General Counsel
BP America Inc.
501 Westlake Park Boulevard
Houston, TX 77079
Fax:
713
-
375
-
2808
E
-
mail: John.Lynch@uk.bp.com
James J. Neath
Associate General Counsel
BP America Inc.
501 Westlake Park B
oulevard
Houston, TX 77079
Fax:
281
-
366
-
5901
E
-
mail: James.Neath@bp.com
Any notice to Beneficiary pursuant to this Guarantee shall be sent by electronic mail, facsimile,
and overnight mail to the following individuals in their capacity as Lead Class Counsel:
Stephen J. Herman
Herman Herman Katz & Cotlar LLP
820 O’Keefe venue
New Orleans, LA 70113
Fax
:
504
-
561
-
6024
E
-
mail: sherman@hhkc.com
James Parkerson Roy
Domengeaux Wright Roy & Edwards
LLC 556 Jefferson Street, Suite 500
Lafayette, LA 70501
Fax:
337
-
233
-
2796
E
-
Mail: jimr@wrightroy.com
Any notice to the Claims Administrator pursuant to this Guarantee shall be sent by electronic
mail, facsimile, and overnight mail to the following individual in his capacity as the Claims
Administrator:
Patrick June
au
Juneau David, APLC
Post Office Drawer
51268
afayette
,
70505
-
1268
Fax
:
337
-
269
-
0061
E
-
mail:
paj@juneaudavid.com
fgg@juneaudavid.com
Whenever any notice is sent related to this Guarantee, such notice shall be sent to all of the
addressees listed in this Clause 14(b).
(c)
This Guarantee shall not be amended without the written consent of the Second
Guarantor and the Beneficiaries.
(d)
The provisions of this Guarantee shall be deemed severable, and if any one or
more provisions of this Guarantee shall be determined to be invalid or unenforceable, all other
provisions shall, nevertheless, remain in full force and effect.
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(e)
If the Second Guarantor has performed under this Guarantee, then within 30 days
of a written demand, the Second Guarantor shall pay all reasonably incurred and properly
documented out-of-pocket costs, fees, and/or expenses incurred by the Claims Administrator
and/or Lead Class Counsel, including fees and disbursements of counsel, in connection with the
pursuit of performance under this Guarantee.
(f)
THIS GUARANTEE SHALL BE GOVERNED IN ALL RESPECTS,
INCLUDING AS TO VALIDITY, INTERPRETATION AND EFFECT, BY THE LAWS OF
THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ITS PRINCIPLES OR
RULES OF CONFLICT OF LAWS, TO THE EXTENT SUCH PRINCIPLES OR RULES ARE
NOT MANDATORILY APPLICABLE BY STATUTE AND WOULD PERMIT OR REQUIRE
THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.
(g)
Pursuant to the Court’s continuing jurisdiction over the greement, the
Second
Guarantor, Beneficiary, Claims Administrator, and Lead Class Counsel agree that the United
States District Court for the Eastern District of Louisiana shall have exclusive jurisdiction and
venue to enforce, interpret, give effect to, or resolve any disputes, cases, or controversies
concerning this Guarantee. If MDL 2179 has not yet been terminated, any pleading filed on
behalf of any complainant party relating to the Guarantee shall be accompanied by a legal
request for such dispute, case, or controversy to be made part of MDL 2179.
In all other respects
and purposes unrelated to matters involving the Guarantee or its enforcement, the Second
Guarantor specifically reserves any and all defenses to the jurisdiction and venue of this Court.
The Beneficiary, Claims Administrator, and Lead Class Counsel agree that the Second
Guarantor’s
agreement in this Clause 14(g) does not constitute a waiver of jurisdictional
defenses, consent to jurisdiction, or an act supporting or sufficient to establish jurisdiction ove
r
the Second Guarantor for any matter besides disputes, cases, or controversies concerning this
Guarantee.
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