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EXHIBIT 4.27
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TRANSAMERICAN ENERGY CORPORATION,
as Issuer,
and
FIRSTAR BANK OF MINNESOTA, N.A.,
as Trustee
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FIRST SUPPLEMENTAL INDENTURE
Dated as of December 30, 1997
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$475,000,000 11 1/2% Senior Secured Notes due 2002
and
$1,130,000,000 13% Senior Secured Discount Notes due 2002
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THIS FIRST SUPPLEMENTAL INDENTURE, effective as of December 30, 1997
(the "Supplemental Indenture"), is made and entered into by and among
TRANSAMERICAN ENERGY CORPORATION, a Delaware corporation (the "Company"), and
FIRSTAR BANK OF MINNESOTA, N.A. (the "Trustee"), under an Indenture dated as of
June 13, 1997, by and between the Company and the Trustee (the "Original
Indenture"). All capitalized terms used in this Supplemental Indenture that are
defined in the Original Indenture, either directly or by reference therein, have
the respective meanings assigned to them therein, except to the extent such
terms are otherwise defined in this Supplemental Indenture or the context
clearly requires otherwise.
WHEREAS, Section 9.2 of the Original Indenture provides, among other
things, that, with the consent of the Holders of not less than a majority in
aggregate Value of then outstanding Notes or, with respect to certain matters,
not less than 66-2/3% in aggregate Value of the Notes at the time outstanding,
the Company, when authorized by Board Resolutions, and the Trustee may amend or
supplement the Original Indenture or the Security Documents or enter into an
indenture supplemental thereto for the purposes of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Original
Indenture or the Security Documents or of modifying in any manner the rights of
the Holders under the Original Indenture or the Notes; and
WHEREAS, the Company has solicited consents from the Holders of the
Notes (the "Consent Solicitation") to amendments (the "Proposed Amendments") to
(i) the Original Indenture; (ii) the Disbursement Agreement; (iii) the
TransTexas Disbursement Agreement; (iv) the Loan Agreement dated June 13, 1997,
by and between the Company and TARC; (v) the Loan Agreement dated June 13, 1997,
by and between the Company and TransTexas; and (vi) the Registration Rights
Agreement dated June 5, 1997 by and among the Company, TransTexas, TARC and
Jefferies & Company, Inc.; and
WHEREAS, the Holders of at least 66-2/3% in aggregate Value of Notes at
the time outstanding have consented to the Proposed Amendments pursuant to the
Consent Solicitation; and
WHEREAS, the Board of Directors of the Company has adopted resolutions
authorizing and approving the Proposed Amendments and the Company and the
Trustee are executing and delivering this Supplemental Indenture in order to
provide for such amendments;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties to this Supplemental
Indenture hereby agree as follows:
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ARTICLE I
AMENDMENTS TO ORIGINAL INDENTURE
Section 1.01. Amended Definitions. The following definitions in
Section 1.1 the Original Indenture are hereby amended as follows:
(a) Clause (ix) in the definition of "Permitted Investment" is
hereby amended to read in its entirety as follows:
(ix) Investments and expenditures made in the ordinary
course of business by TransTexas or its Subsidiaries, and of a
nature that is or shall have become customary in, the oil and
gas business as a means of actively exploiting, exploring for,
acquiring, developing, processing, gathering, marketing or
transporting oil or gas or providing services with respect to
such activities through agreements, transactions, interests or
arrangements which permit a person to share risks or costs,
comply with regulatory requirements regarding local ownership
or satisfy other objectives customarily achieved through the
conduct of the oil and gas business jointly with third
parties, including, without limitation, (a) ownership
interests in oil and gas properties or gathering systems and
(b) Investments and expenditures in the form of or pursuant to
operating agreements, processing agreements, farm-in
agreements, farm-out agreements, development agreements, area
of mutual interest agreements, unitization agreements, pooling
arrangements, joint bidding agreements, service contracts,
joint venture agreements, partnership agreements (whether
general or limited), subscription agreements, stock purchase
agreements and other similar agreements with third parties
(including Unrestricted Subsidiaries); provided, that in the
case of any joint venture primarily engaged in processing,
gathering, marketing or transporting oil or gas (i) all Debt
of such joint venture (other than a joint venture that is an
Unrestricted Subsidiary) that would not otherwise constitute
Debt of one of the TransTexas Entities shall be deemed Debt of
TransTexas in proportion to its direct or indirect ownership
interest in such joint venture and (ii) such joint venture
shall be reasonably calculated to enhance the value of the
reserves of the TransTexas Entities or marketability of
production from such reserves;
(b) Clause (d) in the definition of "Permitted TARC Liens" is
hereby amended to read in its entirety as follows:
(d) easements, servitudes, rights-of-way, zoning, similar
restrictions and other similar encumbrances or title defects
incurred in the ordinary course of business which, in the
aggregate, are not material in amount and which do not, in any
case, materially detract from the value of the property
subject thereto (as such property is used by any of the TARC
Entities) or materially interfere with the ordinary conduct of
the business of any of the
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TARC Entities including, without limitation, any easement or
servitude granted in connection with the Port Commission Bond
Financing;
(c) Clause (s) in the definition of "Permitted TARC Liens" is
hereby amended to read in its entirety as follows:
(s) Liens on the proceeds of any property that is not
Collateral, on the proceeds of any Debt Incurred in accordance
with the provisions hereof, or on deposit accounts containing
any such proceeds;
(d) The definition of "Permitted TARC Liens" is hereby amended by
deleting the word "and" immediately preceding "(y)" and inserting in
lieu thereof a ";", and by adding the following after clause (y):
; and (z) Liens on any property of TARC and any agreement to
grant such Liens; provided that such Liens may not be granted,
and any agreement to grant such Liens shall not obligate TARC
to grant such liens, until the TARC Intercompany Loan has been
paid in full and has not been refinanced, refunded or replaced
with the proceeds of other Debt ("Other Debt"), which Other
Debt has a lower cost of capital to TARC than the TARC
Intercompany Loan and the principal amount of such Other Debt
(or, if such Other Debt is issued with original issued
discount, the original issue price of such Other Debt) is
equal to or less than the original price of, plus amortization
of the original issue discount on, the TARC Intercompany Loan
at the time of the Incurrence of such Other Debt.
(e) Clause (s) in the definition of "Permitted TransTexas Liens"
is hereby amended to read in its entirety as follows:
(s) Liens on the proceeds of any property that is not
Collateral, on the proceeds of any Debt Incurred in accordance
with the provisions hereof, or on deposit accounts containing
any such proceeds;
(f) The definition of "Port Commission Bond Financing" is hereby
amended to read in its entirety as follows:
"Port Commission Bond Financing" means a financing
transaction involving the following elements: (a) the transfer
(including, without limitation, transfer by sale, lease, lien
or mortgage) of TARC's interest in all or some of the
following assets (together with the granting, at TARC's
discretion, of any easements or servitudes reasonably
necessary to the ownership and operation of such assets by the
transferee) which are under construction in or near TARC's
refinery: (i) the Prospect Road tank farm and other tanks;
(ii) certain dock improvements; (iii) the dock vapor recovery
system; (iv) the coke handling system; (v) the refinery waste
water treatment facility and (vi) tankage for liquefied
petroleum gas (the "Port Facility Assets") to the Port of
South Louisiana Commission (the "Tax-Exempt Issuer") or its
affiliate and a leaseback of the Port Facility Assets to TARC
or one of its Subsidiaries; (b) the issuance of tax-exempt
bonds by the Tax-Exempt Issuer; and (c) the
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loan of proceeds from such bonds to TARC or one of its
Subsidiaries for the purpose of financing the completion of
the Port Facility Assets.
Section 1.02. Section 4.7 of the Original Indenture. Section 4.7(a) of
the Original Indenture is hereby amended to read in its entirety as follows:
(a) The Company shall deliver to the Trustee within 60 days
after the end of each of its fiscal quarters, or 105 days after the end
of a fiscal quarter that is also the end of a fiscal year, an Officers'
Certificate complying with Section 314(a)(4) of the TIA and stating
that a review of its activities and the activities of its Subsidiaries
during the preceding fiscal quarter has been made under the supervision
of the signing Officers with a view to determining whether the Company
and its Subsidiaries have kept, observed, performed and fulfilled its
obligations (excluding those obligations addressed by Section 12.3)
under this Indenture and further stating, as to each such Officer
signing such certificate, regardless of whether the signer knows of any
failure by the Company or any Subsidiary of the Company to comply with
any conditions or covenants in this Indenture, or of the occurrence of
any Default, and, if such signer does know of such a failure to comply
or Default, the certificate shall describe such failure or Default with
particularity.
Section 1.03. Section 4.11 of the Original Indenture. Section 4.11 of
the Original Indenture is hereby amended as follows:
(a) Section 4.11(1)(r) of the Original Indenture is hereby amended to
read in its entirety as follows:
(r) Debt of TransTexas owed to the Company which together
with any Debt Incurred pursuant to clauses (2)(p), (3)(v) and (4)(t)
hereof does not in the aggregate exceed $50,000,000 principal amount
outstanding at any one time; provided that such Debt must have a
maturity date which is not after the maturity date of the Notes; and
provided further, that such loan must bear cash interest which,
together with (A) working capital available to the Company and (B) any
cash interest payable on (i) Debt Incurred pursuant to clauses (2)(p),
(3)(v) and (4)(t) hereof, (ii) the TARC Intercompany Loan, (iii) the
TransTexas Intercompany Loan and (iv) any other intercompany loan
payable to the Company, is sufficient to satisfy all interest payments
on the Notes through their stated maturity.
(b) Section 4.11(2)(g) of the Original Indenture is hereby amended
to read in its entirety as follows:
(g) Any guaranty of Debt permitted by clauses (c), (d), (f)
or (r) hereof which guaranty is subordinated in right of payment to the
Notes and the TARC Intercompany Loan to the same extent that the Debt
permitted to be Incurred pursuant to such clauses would be required to
be subordinated to the Notes and the TARC Intercompany Loan and which
guaranty shall not be included in the determination of the amount of
Debt which may be Incurred pursuant to (c), (d), (f) or (r) hereof;
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(c) Section 4.11(2)(l) of the Original Indenture is hereby amended
to read in its entirety as follows:
(l) Debt or Attributable Debt Incurred in connection with
the acquisition of tank storage and related facilities in the vicinity
of the refinery or a Sale and Leaseback Transaction with respect
thereto;
(d) Section 4.11(2)(p) of the Original Indenture is hereby amended
to read in its entirety as follows:
(p) Debt of TARC owed to the Company which together with
any Debt Incurred pursuant to clauses (1)(r), (3)(v) and (4)(t) hereof
does not in the aggregate exceed $50,000,000 principal amount
outstanding at any one time; provided that such Debt must have a
maturity date which is not after the maturity date of the Notes; and
provided further, that such loan must bear cash interest which,
together with (A) working capital available at the Company and (B) any
cash interest payable on (i) Debt Incurred pursuant to clauses (1)(r),
(3)(v) and (4)(t) hereof, (ii) the TARC Intercompany Loan, (iii) the
TransTexas Intercompany Loan and (iv) any other intercompany loan
payable to the Company, is sufficient to satisfy all interest payments
on the Notes through their stated maturity;
(e) Section 4.11(2)(q) of the Original Indenture is hereby amended
to read in its entirety as follows:
(q) TARC may Incur Debt as an extension, renewal,
replacement, or refunding of any of the Debt permitted to be Incurred
by clauses (e), (1) or (r) hereof, or this clause (q) (such Debt is
collectively referred to as "Pre-Phase I TARC Refinancing Debt"),
provided, that (1) the maximum principal amount of Pre-Phase I TARC
Refinancing Debt (or, if such Pre- Phase I TARC Refinancing Debt is
issued with original issue discount, the original issue price of such
Pre-Phase I TARC Refinancing Debt) permitted under this clause (q)
may not exceed the lesser of (x) the principal amount of the Debt being
extended, renewed, replaced, or refunded plus Refinancing Fees or (y)
if such Debt being extended, renewed, replaced, or refunded was issued
at an original issue discount, the original issue price, plus
amortization of the original issue discount as of the time of the
Incurrence of the Pre-Phase I TARC Refinancing Debt plus Refinancing
Fees, (2) the Pre-Phase I TARC Refinancing Debt has a Weighted Average
Life and a final maturity that is equal to or greater than the Debt
being extended, renewed, replaced, or refunded at the time of such
extension, renewal, replacement, or refunding and (3) the Pre-Phase I
TARC Refinancing Debt shall rank with respect to the Notes and the TARC
Intercompany Loan to an extent no less favorable in respect thereof to
the Holders than the Debt being refinanced; and
(f) Section 4.11(2) of the Original Indenture is hereby amended by
adding the following after clause (q):
(r) Subordinated Debt of TARC with initial proceeds to TARC
not in excess of $200,000,000.
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(g) Section 4.11(3)(v) of the Original Indenture is hereby amended
to read in its entirety as follows:
(v) Debt of TransTexas owed to the Company which together
with any Debt Incurred pursuant to clauses (1)(r), (2)(p) and (4)(t)
hereof does not in the aggregate exceed $50,000,000 principal amount
outstanding at any one time; provided that such Debt must have a
maturity date which is not after the maturity date of the Notes; and
provided further, that such loan must bear cash interest which,
together with (A) working capital available to the Company and (B) any
cash interest payable on (i) Debt Incurred pursuant to clauses (1)(r),
(2)(p) and (4)(t) hereof, (ii) the TARC Intercompany Loan, (iii) the
TransTexas Intercompany Loan and (iv) any other intercompany loan
payable to the Company, is sufficient to satisfy all interest payments
on the Notes through their stated maturity.
(h) Section 4.11(4)(c) of the Original Indenture is hereby amended
to read in its entirety as follows:
(c) Subordinated Debt of TARC with initial proceeds to TARC
not in excess of $200,000,000 in the aggregate, less the aggregate
proceeds received by TARC from the issuance of Subordinated Debt
pursuant to Section 4.11(2)(r) above;
(i) Section 4.11(4)(j) of the Original Indenture is hereby amended
to read in its entirety as follows:
(j) TARC may Incur Debt as an extension, renewal,
replacement, or refunding of any of the Debt permitted to be Incurred
by clauses (c) or (g) above, the fourth paragraph of this section, this
clause (j), clause (r) below or Debt permitted to be refinanced
pursuant to clause (2)(q) hereof (such Debt is collectively referred to
as "TARC Refinancing Debt"), that (1) the maximum principal amount of
TARC Refinancing Debt (or, if such TARC Refinancing Debt is issued with
original issue discount, the original issue price of such TARC
Refinancing Debt) permitted under this clause (j) may not exceed the
lesser of (x) the principal amount of the Debt being extended, renewed,
replaced, or refunded plus Refinancing Fees, or (y) if such Debt being
extended, renewed, replaced, or refunded was issued at an original
issue discount, the original issue price, plus amortization of the
original issue discount at the time of the Incurrence of the TARC
Refinancing Debt plus Refinancing Fees, (2) the TARC Refinancing Debt
has a Weighted Average Life and a final maturity that is equal to or
greater than the Debt being extended, renewed, replaced. or refunded at
the time of such extension, renewal, replacement, or refunding and (3)
the TARC Refinancing Debt shall rank with respect to the Notes and the
TARC Intercompany Loan to an extent no less favorable in respect
thereof to the Holders than the Debt being refinanced;
(j) Section 4.11(4)(t) of the Original Indenture is hereby amended
to read in its entirety as follows:
(t) Debt of TARC owed to the Company which together with
any Debt Incurred pursuant to clauses (1)(r), (2)(p) and (3)(v) hereof
does not in the aggregate exceed $50,000,000 principal amount
outstanding at any one time; provided that such Debt must have a
maturity date which is not after the maturity date of the Notes; and
provided further,
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that such loan must bear cash interest which, together with (A) working
capital available to the Company and (B) any cash interest payable on
(i) Debt Incurred pursuant to clauses (1)(r), (2)(p) and (3)(v) hereof,
(ii) the TARC Intercompany Loan, (iii) the TransTexas Intercompany Loan
and (iv) any other intercompany loan payable to the Company, is
sufficient to satisfy all interest payments on the Notes through their
stated maturity.
(k) Section 4.11(5)(d) of the Original Indenture is hereby amended
to read in its entirety as follows:
(d) Subordinated Debt of the Company with initial net
proceeds to the Company not in excess of $50,000,000 in the aggregate.
ARTICLE II
GENERAL PROVISIONS
Section 2.01. Effectiveness of Amendments. This Supplemental Indenture
is effective as of the date first above written.
Section 2.02. Ratification of Indenture. The Original Indenture is in
all respects acknowledged, ratified and confirmed, and shall continue in full
force and effect in accordance with the terms thereof and as supplemented by
this Supplemental Indenture. The Original Indenture and this Supplemental
Indenture, shall be read, taken and construed as one and the same instrument.
Section 2.03. Certificate and Opinion as to Conditions Precedent.
Simultaneously with and as a to the execution of this Supplemental Indenture,
the Company is delivering to the Trustee:
(a) an Officers' Certificate in the form attached hereto
as Exhibit A; and
(b) an Opinion of Counsel covering the matters described in
Exhibit B attached hereto.
Section 2.04. Effect of Headings. The Article and Section headings in
this Supplemental Indenture are for convenience only and shall not affect the
construction of this Supplemental Indenture.
Section 2.05. Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK,
AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
Section 2.06. Counterparts. This Supplemental Indenture may be executed
in any number if counterparts, each of which so executed shall be deemed to be
an original, but all such counterparts shall together constitute the same
instrument.
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IN WITNESS WHEREOF, the parties to this Supplemental Indenture have
caused the Supplemental Indenture to be duly executed, and their respective
corporate seals to be hereunto affixed and attached, on and effective as of day
and year first above written.
TRANSAMERICAN ENERGY CORPORATION
Attest: By:
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Tim Moore, Ed Donahue,
Assistant Secretary Vice President, Chief Financial Officer
and Secretary
FIRSTAR BANK OF MINNESOTA, N.A.,
Trustee
By:
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Frank P. Leslie, III,
Vice President
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