Exhibit 3.1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
SABINE RIVER HOLDING CORP.
June 6, 2002
Sabine River Holding Corp., a corporation organized and existing
under the laws of the State of Delaware (the "Corporation"), hereby certifies
that:
FIRST: The name of the Corporation is Sabine River Holding Corp.;
SECOND: The Certificate of Incorporation of the Corporation was filed
with the Delaware Secretary of State on the 3rd day of May, 1999;
THIRD: The Board of Directors of the Corporation (the "Board of
Directors") has duly adopted this amendment and restatement of the
Certificate of Incorporation in accordance with the provisions of
Sections 242 and 245 of the Delaware General Corporation Law; and
FOURTH: The Certificate of Incorporation of the Corporation is hereby
restated and amended in its entirety to read as follows:
1. Name. The name of the corporation is Sabine River Holding
Corp. (the "Corporation").
2. Address; Registered Agent. The address of the Corporation's
registered office in the State of Delaware is located at 1209 Orange Street, in
the City of Wilmington, County of New Castle. The name of its registered agent
at such address is The Corporation Trust Company.
3. Purpose. The purpose of the Corporation is to engage
exclusively in the following activities:
(a) to engage in the ownership of a one percent (1%) partnership
interest in Port Arthur Coker Company L.P. (the "Partnership");
(b) to engage in the ownership of one hundred percent (100%) of
the issued and outstanding equity securities of Neches River Holding
Corp. (the "Limited Partner");
(c) to act as the sole general partner and managing member of the
Partnership;
(d) to issue one or more guarantees of the debt of Port Arthur
Finance Corp. (the "Financing Company"; together with the Corporation,
the Partnership and the Limited Partner, the "Project Companies") to
be incurred in connection with the Project (as
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defined in Article 9 below) (the "Guarantees") and to enter into any
and all documents in furtherance of its obligations thereunder;
(e) to execute, on behalf of the Partnership, any and all
documents required in connection with loans to be made by the Financing
Company to the Partnership in connection with the Project;
(f) to execute, on behalf of the Partnership, any and all
documents required in connection with the Partnership's ownership of
one hundred percent (100%) of the issued and outstanding equity
securities of the Financing Company;
(g) to execute, on behalf of the Partnership, any and all
Project Documents or Financing Documents (as such terms are defined in
Article 9 below) to which the Partnership is to be a party;
(h) to pledge its ownership interest in the Partnership to the
Financing Parties (as defined in Article 9 below) to secure the
financing of the Project;
(i) to execute on behalf of the Partnership, and enter into on
its own behalf, one or more equity contribution agreements in
connection with the equity funding of the Project by Blackstone Capital
Partners III Merchant Banking Fund L.P., Blackstone Offshore Capital
Partners III L.P. and Blackstone Family Investment Partnership III L.P.
(together with each of the direct and indirect owners thereof,
"Blackstone") and Occidental Petroleum Corporation ("Occidental") and
to issue to Occidental one or more warrants for the Corporation's
common stock in connection therewith;
(j) to engage in any lawful act or activity, and to exercise
such powers permitted to corporations organized under the laws of the
State of Delaware.
4. Capitalization. The total number of shares of capital stock
which the Corporation shall have authority to issue is twelve million
(12,000,000) shares of Common Stock with a par value of $0.01 per share.
5. By-Laws. In furtherance and not in limitation of the powers
conferred by statute, the Board of Directors of the Corporation is expressly
authorized to adopt, amend or repeal the By-Laws of the Corporation.
6. Liability of Directors. Except as otherwise provided by the
General Corporation Law of the State of Delaware as the same exists or may
hereafter be amended, the liability of the directors of the Corporation for
monetary damages shall be eliminated to the fullest extent permissible under
Delaware law. Any repeal or modification of this Article 6 by the stockholders
of the Corporation shall not adversely affect any right or protection of a
director of the Corporation existing at the time of such repeal or modification.
7. Indemnification. The Corporation shall, to the fullest extent
permitted by the provisions of the General Corporation Law of Delaware, as now
or hereafter in effect, indemnify
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all persons whom it may indemnify under such provisions. Any repeal or
modification of this Article 7 shall not adversely affect any right or
protection of a director of the Corporation existing at the time of such repeal
or modification.
8. Amendment of Certificate of Incorporation. The Corporation
reserves the right to amend, alter, change or repeal any provision contained in
this Certificate of Incorporation, in the manner now or hereafter prescribed by
statute, and all rights conferred upon stockholders herein are granted subject
to this reservation.
9. Additional Definitions. The following terms use herein shall
have the following meanings:
"Financing Documents" means any and all documents to be
executed in connection with the Project which evidence or secure the
financing of the construction of new delayed coking unit, hydrocracker,
sulfur complex and related assets by the Partnership at the Clark
refinery in Port Arthur, Texas or the on-going working capital
requirements of the Partnership including, without limitation (i) a
common security agreement, (ii) one or more loan agreements, (iii) a
transfer restrictions agreement, (iv) an intercreditor agreement, (v) a
guaranty insurance policy and reimbursement agreement, (vi) a debt
service reserve account insurance guarantee, (vii) a note purchase
agreement, (viii) an indenture, (ix) notes, (x) one or more mortgages,
(xi) one or more pledge agreements, (xii) a registration rights
agreement and (xiii) any other documents delivered under or in
connection with any of the foregoing.
"Financing Parties" means any financing parties that may at any
time be party to the Financing Documents and any trustee or agent
action on their behalf.
"Project" means the financing, construction, ownership and
operation by the Partnership of a new delayed coking unit,
hydrocracker, sulfur complex and related assets to be located at the
Port Arthur, Texas refinery of Clark and the leasing from Clark, and
operation of, the crude unit, the vacuum tower, two distillate
hydrotreaters and one naphtha hydrotreater owned by Clark and located
at its Port Arthur, Texas refinery.
"Project Documents" means, collectively, the following to be
entered into by the Partnership: (i) a contract for engineering,
procurement and construction services with Foster Wheeler USA for the
design and construction of the new coking unit, hydrocracker, sulfur
complex and related assets; (ii) a long-term oil supply agreement with
P.M.I. Comercio Internacional for the supply of heavy sour crude oil
for the Project; (iii) a services and supply agreement with Clark for
the provision of other necessary supplies and services for the Project;
(iv) a product purchase agreement with Clark for the purchase of all
the intermediate and refined products produced by the equipment owned
and leased by the Partnership; (v) a ground lease and easement
agreement with Clark for the lease of the sites for the new coking
unit, hydrocracker, sulfur complex and related assets and the granting
by Clark to the Partnership of various easements over, and licenses to
use other facilities at, Clark's Port Arthur refinery in connection
with the Project; (vi) a site and equipment lease and easement
agreement with Clark for the lease
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of the crude unit, vacuum tower and three hydrotreaters at Clark's
Port Arthur refinery and the site(s) on which such equipment is
located and the granting by Clark to the Partnership of additional
easements at the Port Arthur refinery; (vii) a hydrogen supply
agreement with Air Products and Chemicals, Inc. for the construction
of a hydrogen supply plant at Clark's Port Arthur refinery and the
supply of hydrogen to the Partnership; (viii) a purchase agreement
with Clark for work in progress related to the new coking unit,
hydrocracker, sulfur complex and related assets; (ix) contracts for
the supply of additional crude oil requirements for the Project; and
(x) any other contracts with third parties that are incidental to and
necessary, convenient or advisable in connection with the Project.
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IN WITNESS WHEREOF, Sabine River Holding Corp. has caused this
Amended and Restated Certificate of Incorporation to be signed by Dennis R.
Eichholz, its Senior Vice President - Finance and Controller on the date first
written above.
SABINE RIVER HOLDING CORP.
______________________________
Name: Dennis R. Eichholz
Title: Senior Vice President -
Finance and Controller