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EXHIBIT 4.33
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TRANSAMERICAN REFINING CORPORATION,
as Issuer,
and
FIRST UNION NATIONAL BANK,
as Trustee
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FIRST SUPPLEMENTAL INDENTURE
Effective as of December 15, 1998
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$25,000,000 16% Senior Subordinated Notes due 2003
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FIRST SUPPLEMENTAL INDENTURE
THIS FIRST SUPPLEMENTAL INDENTURE, effective as of December 15, 1998
(the "Supplemental Indenture"), is made and entered into by and among
TRANSAMERICAN REFINING CORPORATION, a Texas corporation (the "Company"), and
FIRST UNION NATIONAL BANK (the "Trustee"), under an Indenture dated as of March
16, 1998, 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 and (ii) the Registration Rights Agreement dated
March 16, 1998 by and among the Company 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 of the Original Indenture are hereby amended as follows:
(a) The definition of "Accounts Receivable Subsidiary" is hereby
amended to read in its entirety as follows:
"Accounts Receivable Subsidiary" means a subsidiary of TEC,
the Company, TCR Holding or TransContinental designated as an
Accounts Receivable Subsidiary for the purpose of financing the
accounts receivable of TransContinental.
(b) The definition of "Affiliate" is hereby amended to read in its
entirety as follows:
"Affiliate" means, with respect to any specified Person, (i)
any other Person directly or indirectly controlling or controlled
by, or under direct or indirect common control with, such specified
Person or (ii) any officer, director or controlling shareholder of
such other Person. For purposes of this definition, the term
"control" means (a) the power to direct the management and policies
of a Person, directly or through one or more intermediaries,
whether through the ownership of voting securities, by contract, or
otherwise, or (b) without limiting the foregoing, the beneficial
ownership of 10% or more of the voting power of the voting common
equity of such Person (on a fully diluted basis) or of warrants or
other rights to acquire such equity (regardless of whether
presently exercisable). Notwithstanding the foregoing, none of the
Purchasers shall be deemed to be "Affiliates" of the Company or any
of its Subsidiaries.
(c) The definition of "Capital Improvement Program" is hereby amended
to read in its entirety as follows:
"Capital Improvement Program" means the expansion and
improvement program at the Company (or, after the Transaction
Closing Date, TransContinental).
(d) The definition of "CATOFIN(R) Unit" is hereby amended to read in
its entirety as follows:
"CATOFIN(R) Unit" means certain real property owned by the
Company before the Transaction Closing Date as more specifically
defined in the security documents relating to the TEC Notes,
together with all personal property of TransContinental now or
hereinafter located on such real property but only to the extent
that such property is part of a refining unit designed to produce
propane and butane mono-olefins using the CATOFIN(R) process.
(e) The definition of "Change of Control" is hereby deleted in its
entirety.
(f) The definition of "Consolidated Fixed Charge Coverage Ratio" is
hereby amended to read in its entirety as follows:
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"Consolidated Fixed Charge Coverage Ratio" on any date (the
"Transaction Date") means, with respect to any Person, the ratio,
on a pro forma basis, of (i) (x) with respect to any Person other
than TCR Holding, the aggregate amount of Consolidated EBITDA of
such Person (attributable to continuing operations and businesses
and exclusive of the amounts attributable to operations and
businesses discontinued or disposed of, on a pro forma basis as if
such operations and businesses were discontinued or disposed of on
the first day of the Reference Period) for the Reference Period or
(y) with respect to TCR Holding, the aggregate amount of dividends
and other distributions on the Capital Stock of TransContinental
received by TCR Holding from TransContinental during the Reference
Period to (ii) the aggregate Consolidated Fixed Charges of such
Person (exclusive of amounts attributable to discontinued
operations and businesses on a pro forma basis as if such
operations and businesses were discontinued or disposed of on the
first day of the Reference Period, but only to the extent that the
obligations giving rise to such Consolidated Fixed Charges would no
longer be obligations contributing to such Person's Consolidated
Fixed Charges subsequent to the Transaction Date) during the
Reference Period; provided, that for purposes of such computation,
in calculating Consolidated EBITDA and Consolidated Fixed Charges,
(a) the transaction giving rise to the need to calculate the
Consolidated Fixed Charge Coverage Ratio shall be assumed to have
occurred on the first day of the Reference Period, (b) the
incurrence of any Debt or issuance of Disqualified Capital Stock or
the retirement of any Debt or Capital Stock during the Reference
Period or subsequent thereto and on or prior to the Transaction
Date shall be assumed to have occurred on the first day of such
Reference Period, (c) Consolidated Interest Expense attributable to
any Debt (whether existing or being incurred) bearing a floating
interest rate shall be computed as if the rate in effect on the
Transaction Date had been the applicable rate for the entire
period, unless such Person or any of its Subsidiaries is a party to
a Swap Obligation (that remains in effect for the 12-month period
after the Transaction Date) that has the effect of fixing the
interest rate on the date of computation, in which case such rate
(whether higher or lower) shall be used.
(g) The definitions of "Construction Supervisor" and "Debt" are hereby
amended to read in their entirety as follows:
"Construction Supervisor" means Baker & O'Brien, Inc., as
construction supervisor of the Capital Improvement Program or any
successor construction supervisor appointed by TEC with the
approval of TCR Holding, which approval shall not be unreasonably
withheld.
"Debt" means with respect to any person, without duplication
(i) all liabilities, contingent or otherwise, of such Person (a)
for borrowed money (whether or not the recourse of the lender is to
the whole of the assets of such Person or only to a portion
thereof), (b) evidenced by bonds, notes, debentures, or similar
instruments or letters of credit or representing the balance
deferred and unpaid of the purchase price of any property acquired
by such Person or services received by such Person (other than
long-term services or supply contracts which required minimum
periodic payments), (c) evidenced by bankers' acceptances or
similar instruments issued or accepted by banks or Swap
Obligations, (d) for the payment of money relating to a Capitalized
Lease Obligation, (e) the Attributable Debt associated with any
Sale and Leaseback Transaction or (f) Dollar-
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Denominated Production Payments that TransTexas or any of its
Subsidiaries elect to treat as Debt (excluding all other Permitted
Production Payment Obligations); (ii) reimbursement obligations of
such Person with respect to letters of credit; (iii) all
liabilities of others of the kind described in the preceding clause
(i) or (ii) that such Person has guaranteed or that is otherwise
its legal liability (to the extent of such guaranty or other legal
liability) other than for endorsements, with recourse, of
negotiable instruments in the ordinary course of business; (iv) all
obligations secured by a Lien (other than Permitted Liens, except
to the extent the obligations secured by such Permitted Liens are
otherwise included in clause (i), (ii) or (iii) of this definition
and are obligations of such Person) to which the property or assets
(including, without limitation, leasehold interests and any other
tangible or intangible property rights) of such Person are subject,
regardless of whether the obligations secured thereby shall have
been assumed by or shall otherwise be such Person's legal liability
(but, if such obligations are not assumed by such Person or are not
otherwise such Person's legal liability, the amount of such Debt
shall be deemed to be limited to the fair market value of such
property or assets determined as of the end of the preceding fiscal
quarter); and (v) any and all deferrals, renewals, extensions,
refinancings, and refundings (whether direct or indirect) of, or
amendments, modifications, or supplements to, any liability of the
kind described in any of the preceding clauses (i) through (iv)
regardless of whether between or among the same parties.
Notwithstanding anything to the contrary contained herein, for
purposes of Section 4.11, notes issued in satisfaction of the
interest obligation on up to $150 million principal amount of 15%
Senior Secured Notes due 2003 issued pursuant to the Transaction in
accordance with the terms thereof shall not constitute Debt except
for purposes of the third to last and second to last paragraphs of
Section 4.11.
(h) The definition of "Disqualified Capital Stock" is hereby amended to
read in its entirety as follows:
"Disqualified Capital Stock" means, with respect to any
Person, any Capital Stock of such Person or its Subsidiaries that,
by its terms of any security into which it is convertible or
exchangeable, is, or upon the happening of an event or the passage
of time would be, required to be redeemed or repurchased by such
Person or its Subsidiaries, including at the option of the holder,
in whole or in part, or has, or upon the happening of an event or
passage of time would have, a redemption or similar payment due, on
or prior to June 30, 2003.
(i) The definition of "Gas Purchase Agreement" is hereby amended to
read in its entirety as follows:
"Gas Purchase Agreement" means the Interruptible Gas Sales
Terms and Conditions between the Company and TransTexas, as in
effect on the Series A/B Issue Date and as amended from time to
time, provided that any such amendment is approved by the Board of
Directors of each of the parties thereto.
(j) The definition of "Insurance Proceeds" is hereby amended to read in
its entirety as follows:
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"Insurance Proceeds" means the interest in and to all proceeds
(net of costs of collection, including attorney's fees) which now
or hereafter may be paid under any insurance policies now or
hereafter obtained by or on behalf of the Company, TEC, TCR
Holding, TransContinental, TransTexas, or any Guarantor in
connection with any assets thereof, together with interest payable
thereon and the right to collect and receive the same, including,
without limitation, proceeds of casualty insurance, title
insurance, business interruption insurance and any other insurance
now or hereafter maintained with respect to such assets.
(k) The definition of "Permitted Investment" is hereby amended to read
in its entirety as follows:
"Permitted Investment" means, when used with reference to the
Company or its Subsidiaries, (i) trade credit extended to persons
in the ordinary course of business; (ii) purchases of Cash
Equivalents; (iii) Investments by any of the TARC Entities or any
of the TCR Holding Entities in any of the TCR Holding Entities or
in TransContinental and Investments by any of the TCR Holding
Entities in any of the TARC Entities; (iv) Swap Obligations; (v)
the receipt of Capital Stock in lieu of cash in connection with the
settlement of litigation; (vi) advances to officers and employees
in connection with the performance of their duties in the ordinary
course of business in an amount not to exceed $3 million in the
aggregate outstanding at any time; (vii) margin deposits in
connection with Permitted Hedging Transactions; (viii) an
Investment in one or more Unrestricted Subsidiaries of the Company
in an aggregate amount not in excess of $10,000,000 since the
Series A/B/ Issue Date (net of returns on investment) plus the
assets comprising the CATOFIN(R) Unit owned by the Company as of
the date hereof, less the amount of any Unrestricted Non-Recourse
Debt outstanding of the Company or any of its Subsidiaries; (ix)
deposits permitted by the definition of Permitted Liens or any
extension, renewal, or replacement of any of them; (x) Investments
in Accounts Receivables Subsidiary Notes by any of the TARC
Entities or any of the TCR Holding Entities in amounts not to
exceed the greater of $20 million or 20% of the TransContinental
Borrowing Base at any one time; (xi) Investments by the Company in
a reincorporation subsidiary in connection with the initial
capitalization thereof and not to exceed $1,000 since the Series
A/B Issue Date; (xii) Investments by the Company or any of its
wholly owned Subsidiaries in an aggregate amount not to exceed
$250,000 since the Series A/B Issue Date, for the purpose of
facilitating a redemption, repurchase or other retirement for value
of the Old TARC Warrants or the conversion of the Old TARC Warrants
into the right to receive cash; (xiii) a guaranty by a Subsidiary
of the Company permitted under clause (h) of Section 4.11; (xiv)
deposits permitted by the definition of "Permitted Liens" or any
extension, renewal, or replacement of any of them; (xv) other
Investments not in excess of $5 million at any time outstanding;
(xvi) loans made (X) to officers, directors and employees of the
Company or any of its Subsidiaries approved by the applicable Board
of Directors (or by an authorized officer), the proceeds of which
are used solely to purchase stock or to exercise stock options
received pursuant to an employee stock option plan or other
incentive plan, in a principal amount not to exceed the purchase
price of such stock or the exercise price of such stock options, as
applicable and (Y) to refinance loans, together with accrued
interest thereon made pursuant to this clause, in each case not in
excess of $3 million in the aggregate outstanding at any one time,
(xvii) Investments in money market mutual or similar funds having
assets in excess of $100,000,000 and (xviii)
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the purchase or other acquisition by TARC, TCR Holding and their
Subsidiaries of TEC Notes or by TCR Holding and its Subsidiaries of
Notes or Series A/B Notes.
(l) The definition of "Permitted Liens" is hereby amended to read in
its entirety as follows:
"Permitted Liens" means (a) Liens imposed by governmental
authorities for taxes, assessments, or other charges not yet due or
which are being contested in good faith and by appropriate
proceedings, if adequate reserves with respect thereto are
maintained on the books of the Company or any of its Subsidiaries
in accordance with GAAP; (b) statutory Liens of landlords,
carriers, warehousemen, mechanics, materialmen, repairmen, mineral
interest owners, or other like Liens arising by operation of law in
the ordinary course of business provided that (i) the underlying
obligations are not overdue for a period of more than 60 days, or
(ii) such Liens are being contested in good faith and by
appropriate proceedings and adequate reserves with respect thereto
are maintained on the books of the Company or any of its
Subsidiaries in accordance with GAAP; (c) deposits of cash or Cash
Equivalents to secure (i) the performance of bids, trade contracts
(other than borrowed money), leases, statutory obligations, surety
bonds, performance bonds, and other obligations of a like nature
incurred in the ordinary course of business (or to secure
reimbursement obligations or letters of credit issued to secure
such performance or other obligations) in an aggregate amount
outstanding at any one time not in excess of $5 million or (ii)
appeal or supersedeas bonds (or to secure reimbursement obligations
or letters of credit in support of such bonds); (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 TARC Entities including
without limitation, any easement or servitude granted in connection
with the financing of the Storage Assets; (e) Liens arising by
operation of law in connection with judgments, only to the extent,
for an amount and for a period not resulting in an Event of Default
with respect thereto; (f) Liens securing Debt or other obligations
not in excess of $3 million; (g) pledges or deposits made in the
ordinary course of business in connection with worker's
compensation, unemployment insurance, other types of social
security legislation, property insurance and liability insurance;
(h) Liens on Equipment, Receivables and Inventory; (i) Liens on the
assets of any entity existing at the time such assets are acquired
by any of the TARC Entities, whether by merger, consolidation,
purchase of assets or otherwise so long as such Liens (i) are not
created, incurred or assumed in contemplation of such assets being
acquired by any of the TARC Entities and (ii) do not extend to any
other assets of any of the TARC Entities; (j) Liens (including
extensions and renewals thereof) on real or personal property,
acquired after the Series A/B Issue Date ("New Property");
provided, however, that (i) such Lien is created solely for the
purpose of securing Debt Incurred to finance the cost (including
the cost of improvement or construction) of the item of New
Property subject thereto and such Lien is created at the time of or
within six months after the later of the acquisition, the
completion of construction, or the commencement of full operations
of such New Property, (ii) the principal amount of the Debt secured
by such Lien does not exceed 100% of such costs plus reasonable
financing fees and other associated reasonable out-of-pocket
expenses and (iii) any such Lien shall not extend to or cover any
property or assets other than such item of
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New Property and any improvements on such New Property; (k) leases
or subleases granted to others that do not materially interfere
with the ordinary course of business of any of the TARC Entities,
taken as a whole; (l) Liens on the assets of one of the TARC
Entities in favor of another TARC Entity; (m) Liens securing
reimbursement obligations with respect to letters of credit that
encumber documents relating to such letters of credit and the
products and proceeds thereof; provided, that, such reimbursement
obligations are not matured for a period of over 60 days; (n) Liens
in favor of customs and revenue authorities arising as a matter of
law to secure payment of customs duties in connection with the
importation of goods; (o) Liens encumbering customary initial
deposits and margin deposits securing Swap Obligations or Permitted
Hedging Transactions and Liens encumbering contract rights under
Permitted Hedging Transactions; (p) Liens on cash deposits to
secure reimbursement obligations with respect to letters of credit
after the Delayed Coking Unit is completed; (q) Liens that secure
Unrestricted Non-Recourse Debt; provided, however, that at the time
of incurrence the aggregate fair market value of the assets
securing such Lien (exclusive of the stock of the applicable
Unrestricted Subsidiary) shall not exceed the amount of allowed
Unrestricted Non-Recourse Debt of the Company or TCR Holding; (r)
Liens on the proceeds of any property subject to a Permitted Lien
and Liens on the proceeds of any Debt Incurred in accordance with
the provisions hereof, or on deposit accounts containing any such
proceeds; (s) Liens imposed in connection with Debt incurred
pursuant to clause (f) of Section 4.11; provided, that such liens,
if not Permitted Liens, do not extend to property other than the
Storage Assets, the proceeds of financing related to the Storage
Assets or deposit accounts containing such proceeds; and (t) any
extension, renewal or replacement of the Liens created pursuant to
any of clauses (a) through (g), (i) through (s) or (u) provided
that such Liens would have otherwise been permitted under such
clauses, and provided further that the Liens, permitted by this
clause (t) do not secure any additional Debt or encumber any
additional property; (u) Liens that secure Senior Debt; (v) Liens
on any property of the Company or its Subsidiaries (or any
agreement to grant such Liens) securing the Series A/B Notes or the
Notes, (w) Liens on any Property owned by TransContinental and (x)
Liens on any Property owned by the Company or TCR Holding to secure
Debt permitted by clause (s) of Section 4.11.
(m) The definition of "Phase I Completion Date" is hereby amended to
read in its entirety as follows:
"Phase I Completion Date" means the date on which the
Construction Supervisor issues a written notice (the "Phase I
Completion Notice") to TEC certifying that the Phase I Performance
Test has been completed.
(n) A definition of "Phase I Performance Test " is hereby added to the
Original Indenture to read in its entirety as follows:
"Phase I Performance Test" means for a period of at least 72
uninterrupted hours, TransContinental's refinery has sustained (i)
an average feedstock throughput level of at least 150,000 barrels
per day and (ii) no net production of vacuum tower bottoms when
using as input a combined feedstock slate with an average API
Gravity of 22 degrees or less.
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(o) The definition of "Phase II Completion Date" is hereby amended to
read in its entirety as follows:
"Phase II Completion Date" means the date on which the
Construction Supervisor issues a written notice (the "Phase II
Completion Notice") to TEC certifying that for a period of at least
72 uninterrupted hours, TransContinental's refinery has sustained
(i) an average feedstock throughput level of at least 180,000
barrels per day and (ii) average production yields (measured as the
liquid volume percent of feedstock throughput) of refined products
with a specific gravity of gasoline or lighter of at least 40% and
of middle distillates or lighter of at least 60%, when using a
combined Crude Unit feedstock slate with an average API Gravity of
22 degrees or less.
(p) The definition of "Plans" is hereby amended to read in its entirety
as follows:
"Plans" means (a) the plans and specifications prepared by or
on behalf of the Company (or, after the Transaction Closing Date,
TransContinental), which describe and show the proposed expansion
and modification of the Company's (or, after the Transaction
Closing Date, TransContinental's) refinery as amended from time to
time with the consent of the Construction Supervisor and (b) a
budget prepared by or on behalf of the Company (or, after the
Transaction Closing Date, TransContinental) as amended from time to
time with the consent of the Construction Supervisor.
(q) A definition of "Purchasers" is hereby added to the Original
Indenture to read in its entirety as follows:
"Purchasers" means the initial purchasers from TARC pursuant
to the Transaction of voting stock of TCR Holding and their
transferees and Affiliates (in each case other than the Company and
its Subsidiaries).
(r) A definition of "Refinery Assets" is hereby added to the Original
Indenture to read in its entirety as follows:
"Refinery Assets" means substantially all of the assets of
TARC immediately prior to the Transaction Closing Date.
(s) The definition of "Related Persons" is hereby amended to read in
its entirety as follows:
"Related Person" means (i) any Person (other than a Purchaser
or TransContinental and any of its Subsidiaries) directly or
indirectly controlling or controlled by or under direct or indirect
common control with the Company or any Subsidiary of the Company or
any officer, director, or employee of the Company or any Subsidiary
of the Company or of such Person, (ii) the spouse, any immediate
family member, or any other relative who has the same principal
residence of any Person described in clause (i) above, and any
Person, directly or indirectly, controlling or controlled by or
under direct or indirect common control with, such spouse, family
member, or other relative, and (iii) any trust in which any Person
described in clause (i) or (ii), above, is a fiduciary or has a
beneficial interest. For purposes of this definition the term
"control" means (a) the power
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to direct the management and policies of a Person, directly or
through one or more intermediaries, whether through the ownership
of voting securities, by contract, or otherwise, or (b) the
beneficial ownership of 10% or more of the voting common equity of
such Person (on a fully diluted basis) or of warrants or other
rights to acquire such equity (whether or not presently
exercisable).
(t) The definition of "Restricted Payment" is hereby amended to read in
its entirety as follows:
"Restricted Payment" means, with respect to any Person, (i)
any Restricted Investment, (ii) any dividend or other distribution
on shares of Capital Stock of such Person or any Subsidiary of such
Person (iii) any payment on account of the purchase, redemption, or
other acquisition or retirement for value of any shares of Capital
Stock of such Person, and (iv) any defeasance, redemption,
repurchase, or other acquisition or retirement for value, or any
payment in respect of any amendment in anticipation of or in
connection with any such retirement, acquisition, or defeasance, in
whole or in part, of any Pari Passu Debt or Subordinated Debt,
directly or indirectly, of such Person or a Subsidiary of such
Person prior to the scheduled maturity or prior to any scheduled
repayment of principal in respect of such Pari Passu Debt or
Subordinated Debt; provided, however, that the term "Restricted
Payment" does not include (i) any dividend, distribution, or other
payment on shares of Capital Stock of an issuer solely in shares of
Qualified Capital Stock of such issuer that is at least as junior
in ranking as the Capital Stock on which such dividend,
distribution, or other payment is to be made, (ii) any dividend,
distribution, or other payment to the Company from TCR Holding or
from any of the Company's Subsidiaries or to TCR Holding by any of
TCR Holding's Subsidiaries, (iii) any defeasance, redemption,
repurchase, or other acquisition or retirement for value, in whole
or in part, of any Pari Passu Debt or Subordinated Debt of such
Person payable solely in shares of Qualified Capital Stock of such
Person, (iv) any payments or distributions made pursuant to and in
accordance with the Services Agreement, the Expense Reimbursement
Agreement, the Office Leases, the Transfer Agreement or the Tax
Allocation Agreement, (v) any redemption, repurchase or other
retirement for value of the Old TARC Warrants by the Company,
including any premium paid thereon, (vi) the redemption, purchase,
retirement or other acquisition of any Debt including any premium
paid thereon, with the proceeds of any refinancing Debt permitted
to be incurred pursuant to clauses (o), (s) and (u) of the covenant
described herein under the heading "Limitation on the Incurrences
of Additional Debt and Issuances of Disqualified Capital Stock,"
(vii) the purchase by the Company or TCR Holding of shares of
Capital Stock of the Company, TCR Holding, TransContinental,
TransTexas or TTXD in connection with each of its employee benefit
plans, including without limitation any employee stock ownership
plans or any employee stock option plans, in an aggregate amount,
with respect to the issuer, not to exceed 7% of the aggregate
number of shares of voting stock held by nonaffiliates of the
issuer measured from the date of the first such purchase, (viii)
distributions of common stock of TransTexas to TEC, (ix) any
dividend or other distribution on the Capital Stock of any
Subsidiary of the Company, (x) any purchase of Capital Stock of TCR
Holding by the Company, (xi) any purchase of Capital Stock of
TransContinental by TCR Holding, (xii) any dividend or payment on
shares of Capital Stock of TCR Holding the proceeds of the issuance
of which are used to purchase TEC Notes and (xiii) the TCR Holding
Participating Preferred Stock Redemption.
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(u) The definition of "Senior Debt" is hereby amended to read in its
entirety as follows:
"Senior Debt" means, all Debt of the Company or, with respect
to its use in the definition of "Permitted Liens" only, TCR
Holding, including, without limitation, the TARC Discount Notes,
the TARC Mortgage Notes, the TARC Working Capital Loan and the TARC
Intercompany Loan, now or hereafter created, incurred, assumed or
guaranteed by the Company (and all renewals, extensions or
refundings thereof or of any part thereof) (including the principal
of, interest on and fees, premiums, expenses (including costs of
collection), indemnities and other amounts payable in connection
with such Indebtedness, and including Post-Commencement Amounts),
unless the instrument governing such Debt expressly provides that
such Debt is not senior or superior in right of payment to the
Notes. Notwithstanding the foregoing, Senior Debt of the Company
shall not include (i) Debt evidenced by the Series A/B Notes and
the Notes, (ii) Debt of the Company to any Subsidiary of the
Company or to any Unrestricted Subsidiary of the Company (other
than to facilitate the purchase of the common stock purchase
warrants of TARC), or (iii) any amounts payable or other Debt to
trade creditors created, incurred, assumed or guaranteed by the
Company or any Subsidiary of the Company in the ordinary course of
business in connection with obtaining goods or services.
(v) The definition of "Services Agreement" is hereby amended to read in
its entirety as follows:
"Services Agreement" means the Services Agreement among TNGC
Holdings and its Subsidiaries, as in effect on the Series A/B Issue
Date and as amended from time to time, provided that any such
amendment is approved by the Board of Directors of each of the
parties thereto that will be bound by such amendment.
(w) The definition of "Subsidiary" is hereby amended to read in its
entirety as follows:
"Subsidiary" with respect to any Person, means (i) a
corporation with respect to which such Person or its Subsidiaries
owns, directly or indirectly, at least fifty percent of such
corporation's Capital Stock with voting power, under ordinary
circumstances, to elect directors, or (ii) a partnership in which
such Person or a subsidiary of such Person is, at the time, a
general partner of such partnership and has more than 50% of the
total voting power of partnership interests entitled (without
regard to the occurrence of any contingency) to vote in the
election of managers thereof, or (iii) any other Person (other than
a corporation or a partnership) in which such Person, one or more
Subsidiaries of such Person, or such Person and one or more
Subsidiaries of such Person, directly or indirectly, at the date of
determination thereof has (x) at least a fifty percent ownership
interest or (y) the power to elect or direct the election of the
directors or other governing body of such other Person; provided,
however, that "Subsidiary" shall not include (i) for the purposes
of the Indenture provisions "Subsidiary Guarantees," and
"Limitation on Transactions with Related Persons" a joint venture
an investment in which would constitute a Permitted Investment,
provided that, for purposes of the covenant described herein under
the heading "Limitation on Transactions with Related Persons," such
investment is not with a Related Person other than solely because
the party engaging in such transaction has the ability to control
the Related Person under the definition of "Control" contained
within the definition of Related Person or (ii) any Unrestricted
Subsidiary of such Person; provided,
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further, however, that TCR Holding and its subsidiaries other than
TransContinental shall be "Subsidiaries" of TARC (except for
purposes of Section 4.16) and TransContinental shall not be a
"Subsidiary" of any Person.
(x) The definition of "TARC Intercompany Loan" is hereby amended to
read in its entirety as follows:
"TARC Intercompany Loan" means the senior secured promissory
note from the Company to TEC in the fully accreted principal amount
of $920,000,000 upon substantially the terms described in the
Registration Statement on Form S-4, as amended, of TEC under the
heading "Description of Existing Indebtedness -- TARC Intercompany
Loan" and as amended from time to time in accordance with its
terms.
(y) A definition of "TARC Intercompany Loan Amendment" is hereby added
to the Original Indenture to read in its entirety as follows:
"TARC Intercompany Loan Amendment" means the second amendment
to the TARC Intercompany Loan Agreement upon substantially the
terms described in the form attached hereto as Exhibit C.
(z) A definition of "TransContinental" is hereby added to the Original
Indenture to read in its entirety as follows:
"TransContinental" means TransContinental Refining
Corporation, a Delaware corporation, to which the Refinery Assets
will be transferred by TCR Holding pursuant to the Transaction and,
for purposes of Section 4.11 hereof, its Subsidiaries.
(aa) The definition of "TARC Borrowing Base" is hereby amended to read
in its entirety as follows:
"TransContinental Borrowing Base" means, as of any date, an
amount equal to the sum of (a) 90% of the book value of all
accounts receivable owned by TransContinental and its Subsidiaries
(excluding any accounts receivable that are more than 90 days past
due, less (without duplication) the allowance for doubtful accounts
attributable to such current accounts receivable) calculated on a
consolidated basis and in accordance with GAAP and (b) 85% of the
current market value of all inventory owned by TransContinental and
its Subsidiaries as of such date. To the extent that information is
not available as to the amount of accounts receivable as of a
specific date, TransContinental may utilize, to the extent
reasonable, the most recent available information for purposes of
calculating the TransContinental Borrowing Base.
(bb) A definition of "TCR Holding" is hereby added to the Original
Indenture to read in its entirety as follows:
"TCR Holding" means TCR Holding Corporation, a Delaware
corporation, to which the Refinery Assets will be transferred by
TARC pursuant to the Transaction.
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(cc) A definition of "TCR Holding Entities" is hereby added to the
Original Indenture to read in its entirety as follows:
"TCR Holding Entities" means TCR Holding and each of its
Subsidiaries.
(dd) A definition of "TCR Holding Participating Preferred Stock" is
hereby added to the Original Indenture to read in its entirety as
follows:
"TCR Holding Participating Preferred Stock" means the
participating preferred stock of TCR Holding issued pursuant to the
Transaction.
(ee) A definition of "TCR Holding Participating Preferred Stock
Redemption" is hereby added to the Original Indenture to read in its
entirety as follows:
"TCR Holding Participating Preferred Stock Redemption" means
the redemption by TCR Holding of the TCR Holding Participating
Preferred Stock in exchange for (i) debt securities of TCR Holding
with an aggregate principal amount equal to the liquidation
preference of the TCR Holding Participating Preferred Stock, with a
maturity date of June 1, 2002 and bearing interest at a rate
sufficient to pay interest on the TARC Intercompany Loan, the Notes
and the Series C/D Notes and (ii) common stock of TCR Holding equal
to 30.6% of the equity interest in TCR Holding and 41% of the
voting power of TCR Holding's capital stock.
(ff) A definition of "TARC Intercompany Subordinated Note" is hereby
added to the Original Indenture to read in its entirety as follows:
"TARC Intercompany Subordinated Note" means that certain note
and related documents (i) evidencing debt of TCR Holding to TARC in
an amount and with principal and interest payment terms sufficient
to service the payment of interest and principal on the Notes and
the Series A/B Notes (after giving effect to any amounts in any
Interest Reserve Account) and (ii) containing a covenant of TCR
Holding to pledge the stock it owns of TransContinental, if any, as
of the date of the payment in full of the TARC Intercompany Loan;
provided, that TCR Holding shall not be required to grant such Lien
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 TCR Holding than the TARC Intercompany Loan and the principal
amount of such Other Debt (or, if such Other Debt is issued with
original issue discount, the original issue amount of such Other
Debt) is equal to or less than the original issue price of, plus
amortization of the original issue discount on, the TARC
Intercompany Loan at the time of the incurrence of such Other Debt.
(gg) A definition of "TARC Working Capital Loan" is hereby added to the
Original Indenture to read in its entirety as follows:
"TARC Working Capital Loan" means a loan by TEC to TARC of up
to $50 million, which will be assumed by TCR Holding pursuant to
the Transaction.
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(hh) The definition of "Tax Allocation Agreement" is hereby amended to
read in its entirety as follows:
"Tax Allocation Agreement" means the Tax Allocation Agreement,
dated as of August 24, 1993, among TNGC Holdings Corporation, the
Company, TEC and other subsidiaries of TNGC Holdings Corporation,
as in effect on the Issue Date and as amended from time to time,
provided that any such amendment is approved by the Board of
Directors of each of the parties thereto that will be bound by such
amendment.
(ii) A definition of "Transaction" is hereby added to the Original
Indenture to read in its entirety as follows:
"Transaction" means a series of related transactions (as more
fully described in the Company's Consent Solicitation Statement
dated October 5, 1998, as amended, pursuant to which consents were
solicited from the Holders to amendments to the Indenture to
facilitate the Transaction, which description is incorporated
herein by reference) pursuant to which, among other things, (i) the
Lien on the TARC Collateral (as defined in the TEC Indenture) is
released, (ii) TARC transfers to TCR Holding the Refinery Assets in
exchange for (x) all of the capital stock of TCR Holding and (y)
the assumption by TCR Holding of certain debt and other obligations
of TARC, (iii) TCR Holding transfers to TransContinental the
Refinery Assets in exchange for all of the common stock of
TransContinental and TransContinental assumes the debt and other
obligations of TARC assumed by TCR Holding other than the TARC
Working Capital Loan and (iv) certain Purchasers purchase (x) debt
securities issued by TARC, (y) equity securities issued by
TransContinental and (z) TCR Holding Capital Stock from TARC for
aggregate gross proceeds of approximately $151 million.
(jj) A definition of "Transaction Closing Date" is hereby added to the
Original Indenture to read in its entirety as follows:
"Transaction Closing Date" means the date the Refinery Assets
are transferred by TARC to TCR Holding and by TCR Holding to
TransContinental pursuant to the Transaction.
(kk) The definition of "Unrestricted Non-Recourse Debt" is hereby
amended to read in its entirety as follows:
"Unrestricted Non-Recourse Debt" of the Company,
TransContinental or any of the Subsidiaries of the Company means
(i) Debt of such Person that is secured solely (other than with
respect to clause (ii) below) by a Lien upon the stock of an
Unrestricted Subsidiary of such Person and as to which there is no
recourse (other than with respect to clause (ii) below) against
such Person or any of its assets other than against such stock (and
the dollar amount of any Debt of such Person as described in this
clause (i) shall be deemed to be zero for purposes of all other
provisions of the Indenture) and (ii) guarantees of the Debt of
Unrestricted Subsidiaries of such Person; provided, that the
aggregate of all Debt of such Person Incurred and outstanding
pursuant to clause (ii) of this definition, together with all
Permitted Investments (net of any return on such Investment) in
Unrestricted
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Subsidiaries of such Person, does not exceed (x) 20% of the
Company's Consolidated EBITDA since the Phase II Completion Date in
the case of the Company, (y) 20% of TCR Holding's Consolidated
EBITDA since the Phase II Completion Date in the case of TCR
Holding or (z) 20% of TransContinental's Consolidated EBITDA since
the Phase II Completion Date in the case of TransContinental plus
in the case of clause (ii) of this definition of Unrestricted
Non-Recourse Debt, Restricted Payments permitted to be made
pursuant to Section 4.3.
Section 1.02. Section 4.3 of the Original Indenture. Section 4.3 of the
Original Indenture is hereby amended to read in its entirety as follows:
Section 4.3 Limitation on Restricted Payments. The Company
shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, make any dividend or other distribution on
shares of Capital Stock of the Company or any Subsidiary of the
Company or make any payment on account of the purchase, redemption,
or other acquisition or retirement for value of any such shares of
Capital Stock unless such dividends, distributions, or payments are
made in cash or Capital Stock or a combination thereof. In
addition, the Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, make any Restricted
Payment; provided, however, that the Company or TCR Holding may
make a Restricted Payment if, at the time or after giving effect
thereto on a pro forma basis no Default or Event of Default would
occur or be continuing, and:
(i) in the case of Restricted Payments by the Company:
(a) the Company's Consolidated Fixed Charge Coverage Ratio
exceeds 2.25 to 1; and
(b) the aggregate amount of all Restricted Payments made
by all of the TARC Entities, including such proposed
Restricted Payment and all payments that may be made pursuant
to the proviso at the end of this sentence (if not made in
cash, then the fair market value of any property used
therefor), from and after the Series A/B Issue Date and on or
prior to the date of such Restricted Payment, would not exceed
an amount equal to (x) 50% of Adjusted Consolidated Net Income
of the Company accrued for the period (taken as one accounting
period) from the first full fiscal quarter that commenced
after the Series A/B Issue Date to and including the fiscal
quarter ended immediately prior to the date of each
calculation for which financial statements are available (or,
if the Company's Adjusted Consolidated Net Income for such
period is a deficit, then minus 100% of such deficit), plus
(y) the aggregate Net Proceeds received by the Company from
the issuance or sale (other than to a Subsidiary of the
Company) of its Qualified Capital Stock from and after the
Series A/B Issue Date and on or prior to the date of such
Restricted Payment, minus (z) 100% of the amount of any
write-downs, write-offs, other negative revaluations, and
other negative extraordinary charges not otherwise reflected
in the Company's Adjusted Consolidated Net Income during such
period; and
(ii) in the case of Restricted Payments by TCR Holding:
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(a) TCR Holding's Consolidated Fixed Charge Coverage Ratio
exceeds 2.25 to 1; and
(b) the aggregate amount of all Restricted Payments made by
all of the TCR Holding Entities, including such proposed
Restricted Payment and all payments that may be made pursuant
to the proviso at the end of this sentence (if not made in
cash, then the fair market value of any property used
therefor), from and after the Transaction Closing Date and on
or prior to the date of such Restricted Payment, would not
exceed an amount equal to the sum of (w) $1,000,000, plus (x)
50% of Adjusted Consolidated Net Income of TCR Holding accrued
for the period (taken as one accounting period) from the first
full fiscal quarter that commenced after the Transaction
Closing Date to and including the fiscal quarter ended
immediately prior to the date of each calculation for which
financial statements are available (or, if TCR Holding's
Adjusted Consolidated Net Income for such period is a deficit,
then minus 100% of such deficit), plus (y) the aggregate Net
Proceeds received by TCR Holding from the issuance or sale
(other than to a Subsidiary of TCR Holding) of its Qualified
Capital Stock from and after the Transaction Closing Date and
on or prior to the date of such Restricted Payment, minus (z)
100% of the amount of any write-downs, write-offs, other
negative revaluations, and other negative extraordinary
charges not otherwise reflected in TCR Holding's Adjusted
Consolidated Net Income during such period;
provided, that nothing in this Section 4.3 shall prohibit the payment
of any dividend within 60 days after the date of its declaration if
such dividend could have been made on the date of its declaration in
compliance with the foregoing provisions.
Section 1.03. Section 4.7 of the Original Indenture. Section 4.7(d) of
the Original Indenture is hereby deleted in its entirety.
Section 1.04. Section 4.8 of the Original Indenture. Section 4.8 of the
Original Indenture is hereby amended to read as follows:
Section 4.8 SEC Reports. The Company shall deliver to the
Trustee and each Holder, within 15 days after it files the same
with the SEC, copies of all reports and information (or copies of
such portions of any of the foregoing as the SEC may by rules and
regulations prescribe), if any, which the Company is required to
file with the SEC pursuant to Section 13 or 15(d) of the Exchange
Act. The Company shall include in all such reports and information
a summary of the status of the Company's Capital Improvement
Program, including a description of sources of funds available for
the completion of the Capital Improvements Program. The Company
agrees to continue to be subject to and comply with the filing and
reporting requirements of the Commission as long as any of the
Notes are outstanding.
Concurrently with the reports delivered pursuant to the
preceding paragraph, the Company shall deliver to the Trustee and
to each Holder annual and quarterly financial statements with
appropriate footnotes of the Company and its Subsidiaries, all
prepared and presented in a manner substantially consistent with
those of the Company required by the
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preceding paragraph. The Company shall also comply with the other
provisions of TIA Section 314(a).
The Company shall, upon request, provide to each Holder and to
each beneficial owner and prospective purchaser of Notes identified
by any Holder of Restricted Notes the information required by
clause (d)(4) of Rule 144A until the earlier to occur of (i) there
existing no further necessity for an offer or sale of the Notes to
qualify for an exemption under such Rule or (ii) the consummation
of a registered exchange offer for the Notes.
Section 1.05. Section 4.10 of the Original Indenture. Section 4.10 of
the Original Indenture is hereby amended as follows:
(a) Section 4.10(a) of the Original Indenture is hereby amended to read
in its entirety as follows:
(a) The Company shall not, and shall not permit any of its
Subsidiaries to, enter directly or indirectly into, or permit to
exist, any transaction or series of related transactions with any
Related Person (including, without limitation: (i) the sale, lease,
transfer or other disposition of properties, assets or securities
to such Related Person, (ii) the purchase or lease of any property,
assets or securities from such Related Person, (iii) an Investment
in such Related Person (excluding Investments permitted to be made
pursuant to clauses (iii), (vi), (viii), (x), (xi), (xii), (xvi)
and (xviii) of the definition of "Permitted Investment"), and (iv)
entering into or amending any contract or agreement with or for the
benefit of a Related Person (each, a "Related Person
Transaction")), except for (A) permitted Restricted Payments,
including for this purpose the transactions excluded from the
definition of Restricted Payments by the proviso contained in the
definition of "Restricted Payments"; (B) transactions made in good
faith, the terms of which are (x) fair and reasonable to the
Company or such Subsidiary, as the case may be, and (y) at least as
favorable as the terms which could be obtained by the Company or
such Subsidiary, as the case may be, in a comparable transaction
made on an arm's length basis with Persons who are not Related
Persons; (C) transactions between the Company and any of its Wholly
Owned Subsidiaries or between Wholly Owned Subsidiaries of the
Company; (D) transactions pursuant to the Services Agreement, the
Tax Allocation Agreement, the Gas Purchase Agreement, and the
Expense Reimbursement Agreement, in each case including amendments
thereto that are approved by the Board of Directors of each of the
parties thereto that will be bound by such amendments, and the
Transfer Agreement, the TARC Intercompany Loan and related security
documents, and the Registration Rights Agreement; (E) the lease of
office space to the Company or an Affiliate of the Company by
TransAmerican or an Affiliate of TransAmerican, provided that
payments thereunder do not exceed in the aggregate $200,000 per
year; (F) any employee compensation arrangement in an amount which
together with the amount of all other cash compensation paid to
such employee by the Company and its Subsidiaries does not provide
for cash compensation in excess of $5,000,000 in any fiscal year of
the Company or any Subsidiary and which has been approved by a
majority of the Company's Independent Directors and found in good
faith by such directors to be in the best interests of the Company
or such Subsidiary, as the case may be; (G) loans to the Company
and TCR Holding which are permitted to be Incurred pursuant to the
terms of Section 4.11; (H) the amounts payable by the TEC and its
Subsidiaries to Southeast Contractors for employee services
provided to the Company or
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TransContinental not exceeding the actual costs to Southeast
Contractors of the employees, which costs consist solely of payroll
and employee benefits, plus related administrative costs and an
administrative fee, not exceeding $2,000,000 per year in the
aggregate; (I) the Company and its Subsidiaries may pay a
management fee to TransAmerican in an amount not to exceed
$2,500,000 per year; (J) transactions effected pursuant to the
Transaction, including without limitation (i) the execution,
delivery and performance of the TARC Intercompany Loan Amendment,
the TCR Holding Pledge Agreement, an amendment of the Services
Agreement and a Securities Purchase Agreement among TARC, TCR
Holding, TransContinental, TEC and certain of the Purchasers
providing for the sale to such Purchasers of Capital Stock of TCR
Holding owned by TARC pursuant to the Transaction, (ii) the
transfer of the Refinery Assets by TARC to TCR Holding and, as
consideration therefor, the issuance by TCR Holding to TARC of
Capital Stock of TCR Holding, the assumption by TCR Holding of
certain debt and obligations of TARC (including Debt of TARC to the
Purchasers and certain others), and (iii) the transfer of the
Refinery Assets by TCR Holding to TransContinental and, as
consideration therefor, the issuance by TransContinental of its
common stock to TCR Holding and the assumption by TransContinental
of certain debt and obligations of TCR Holding; (K) the delivery of
TEC Notes to TEC in satisfaction of the TARC Intercompany Loan; (L)
the issuance and sale of the TCR Holding Participating Preferred
Stock; (M) the TCR Holding Participating Preferred Stock
Redemption; and (N) transactions between or among TCR Holding or
TransContinental and any of their respective Related Persons,
provided such transaction is approved by the Board of Directors of
each of the parties thereto.
(b) Section 4.10(b) of the Original Indenture is hereby amended to read
in its entirety as follows:
(b) Without limiting the foregoing, except for sales of
accounts receivable to an Accounts Receivable Subsidiary in
accordance with Section 4.20, (i) with respect to any Related
Person Transaction or series of Related Person Transactions (other
than any Related Person Transaction described in clause (A) (with
respect to Permitted Restricted Payments by virtue of clauses (i),
(ii), (iv), (vii), (ix), (x) or (xi) of the proviso contained in
the definition of "Restricted Payments"), (C), (D), (E), (G), (J),
(K), (L), (M) or (N) of Section 4.10(a)) with an aggregate value in
excess of $5,000,000, such transaction must first be approved by a
majority of the Board of Directors of the Company or its Subsidiary
which is the transacting party and a majority of the directors of
such entity who are disinterested in the transaction pursuant to a
Board Resolution, as (x) fair and reasonable to the Company or such
Subsidiary, as the case may be, and (y) on terms which are at least
as favorable as the terms which could be obtained by the Company or
such Subsidiary, as the case may be, on an arm's length basis with
Persons who are not Related Persons, and (ii) with respect to any
Related Person Transaction or series of related Person Transactions
(other than any Related Person Transaction described in clause (A)
(with respect to permitted Restricted Payments by virtue of clauses
(i), (ii), (iv), (vii), (ix), (x) or (xi) of the proviso contained
in the definition of "Restricted Payments") (C), (D), (E), (G),
(J), (K), (L), (M) or (N) of Section 4.10(a)) with an aggregate
value in excess of $10,000,000, the Company must first obtain a
favorable written opinion as to the fairness of such transaction to
the Company or such Subsidiary, as the case may be, from a
financial point of view, from a nationally recognized investment
banking or accounting firm; provided that such opinion
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shall not be necessary if approval of the Board of Directors to
such Related Person Transaction has been obtained after receipt of
bona fide bids of at least two other independent parties and such
Related Person Transaction is in the ordinary course of business.
Section 1.06. Section 4.11 of the Original Indenture. Section 4.11 of
the Original Indenture is hereby amended as follows:
(a) The first paragraph of Section 4.11 of the Original Indenture is
hereby amended to read in its entirety as follows:
Section 4.11 Limitation on Incurrences of Additional Debt and
Issuances of Disqualified Capital Stock. Except as set forth in
this Section 4.11, from and after the Issue Date, the Company shall
not, and shall not permit TransContinental or any of the Company's
Subsidiaries to, directly or indirectly, create, incur, assume,
guarantee, or otherwise become liable for, contingently or
otherwise (to "Incur" or, as appropriate, an "Incurrence"), any
Debt or issue any Disqualified Capital Stock, except: (a) Debt
evidenced by the Notes and the Guarantees in an aggregate amount
not to exceed $200 million in proceeds to the Company less the
aggregate amount of proceeds to the Company pursuant to Debt
incurred under clause (p) below; (b) Debt evidenced by the TARC
Intercompany Loan and any other Debt at any time owing by any of
the TARC Entities to TEC in an aggregate outstanding principal
amount, when added to the then outstanding principal amount of the
TARC Intercompany Loan and any other Debt incurred pursuant to this
clause (b) or pursuant to clause (o) below to replace, extend,
renew or refund Debt incurred pursuant to this clause (b), at any
one time outstanding not in excess of $920 million less any amount
repaid pursuant to paragraph (c)(i) of the covenant described
herein under Section 4.14 hereof; (c) Subordinated Debt of the
Company solely to any wholly owned Subsidiary of the Company, Debt
of TCR Holding solely to TransContinental or any wholly owned
Subsidiary of TCR Holding, Debt or Disqualified Capital Stock of
TCR Holding to TARC, Debt of any wholly owned Subsidiary of the
Company solely to the Company or to any wholly owned Subsidiary of
the Company or Debt of TransContinental or any wholly owned
Subsidiary of TCR Holding solely to TCR Holding or to any wholly
owned Subsidiary of TCR Holding; (d) Debt of TransContinental
outstanding at any time in an aggregate principal amount not to
exceed the greater of (x) $100 million or (y) the TransContinental
Borrowing Base, less, in each case, the amount of any Debt of an
Accounts Receivable Subsidiary (other than Debt owed to the Company
or TransContinental); (e) Debt in an aggregate principal amount not
to exceed at any one time $50 million; (f) Debt secured by the
Storage Assets in an aggregate amount outstanding at any one time
not to exceed $115 million; (g) Debt secured by a Permitted Lien
that meets the requirements of clause (c), (g), (m), (o) or (r) of
the definition of "Permitted Liens," to the extent that such Liens
would give rise to Debt under clauses (i), (ii), or (iii) of the
definition of "Debt;" (h) Any guaranty of Debt incurred pursuant to
clauses (d), (e), (g) or (n) hereof which guaranty shall not be
included in the determination of the amount of Debt which may be
Incurred pursuant to (d), (e), (g) or (n) hereof; (i) Swap
Obligation; (j) Unrestricted Non-Recourse Debt; (k) Debt evidenced
by the TARC Mortgage Notes; (l) letters of credit and reimbursement
obligations relating thereto to the extent collateralized by cash
or Cash Equivalents; (m) Debt evidenced by the TARC Discount Notes;
(n) Debt of the Company or any of its Subsidiaries
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or TransContinental owed to TEC which is loaned pursuant to terms
of the fourth paragraph of either of the covenants contained under
the headings "-- Excess Cash" and "-- Additional Interest Excess
Cash Offer" under the TEC Indenture in the aggregate not in excess
of $50 million; (o) each of the Company, its Subsidiaries and
TransContinental may Incur Debt as an extension, renewal,
replacement, or refunding of any item of the Debt permitted to be
Incurred by clauses (b), (p), (r), (v), (w) or (x) hereof, or this
clause (o) (each such item of Debt is referred to as "Refinancing
Debt"), provided, that (1) the maximum principal amount of each
item of Refinancing Debt (or, if such Refinancing Debt is issued
with original issue discount, the original issue price of such
Refinancing Debt) permitted under this clause (o) may not exceed
the lesser of (x) the principal amount of the item of Debt being
extended, renewed, replaced, or refunded plus Refinancing Fees or
(y) if such item of 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 Refinancing Debt plus Refinancing
Fees and (2) each item of Refinancing Debt shall rank with respect
to the Notes to an extent no less favorable in respect thereof to
the Holders than the related Debt being refinanced; (p) Pari Passu
Debt or Subordinated Debt of the Company or TCR Holding with
initial net proceeds to the Company not in excess of $25 million in
the aggregate less the aggregate amount of proceeds to the Company
pursuant to Debt incurred under clause (a) above after the Issue
Date; (q) Debt secured by Liens permitted pursuant to clauses (h)
and (j) of Permitted Liens, in an aggregate principal amount not to
exceed $35 million; (r) Debt of TransContinental Incurred in
connection with the acquisition, construction or improvement of a
CATOFIN(R) Unit not in excess of 20% of TransContinental's
Consolidated EBITDA accrued for the period (taken as one accounting
period) commencing with the first full fiscal quarter that
commenced after the Phase I Completion Date, to and including the
fiscal quarter ended immediately prior to the date of such
calculation, (s) Debt of TARC, TCR Holding or TransContinental with
an aggregate principal amount outstanding at any one time of up to
$225 million, (t) Debt of TARC (other than Debt secured by Storage
Assets in the initial aggregate principal amount of $36 million)
that is assumed by TCR Holding or TransContinental in connection
with the Transaction, (u) Debt of TCR Holding with an aggregate
principal amount outstanding at any one time not in excess of $200
million, (v) Debt of TCR Holding (other than Debt incurred pursuant
to clause (s) above) that is assumed by TransContinental in
connection with the Transaction, (w) Disqualified Capital Stock of
TCR Holding or TransContinental or unsecured Debt of TCR Holding or
unsecured or secured Debt of TransContinental, (1) the proceeds of
which are used to repurchase TEC Notes or (2) that is exchanged for
TEC Notes, (x) Debt or Disqualified Capital Stock of TCR Holding or
TransContinental that is used to refinance or replace the TARC
Intercompany Loan and (y) Debt of the Company, TCR Holding or
TransContinental owed to TEC that does not in the aggregate exceed
$50 million principal amount outstanding at any one time.
(a) The third to last and second to last paragraph of Section 4.11 of
the Original Indenture is hereby amended to read in its entirety as
follows:
Notwithstanding the foregoing provisions of this covenant, (a)
the Company, TCR Holding and TransContinental may Incur Senior Debt
and the Company, TCR Holding and TransContinental may issue
Disqualified Capital Stock if, at the time such Senior Debt is
Incurred or such Disqualified Capital Stock is issued, (i) no
Default or Event of Default
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shall have occurred and be continuing at the time or immediately
after giving effect to such transaction on a pro forma basis, and
(ii) immediately after giving effect to the Consolidated Fixed
Charges in respect of such Debt being Incurred or such Disqualified
Capital Stock being issued and the application of the proceeds
therefrom to the extent used to reduce Debt or Disqualified Capital
Stock, on a pro forma basis, the Consolidated Fixed Charge Coverage
Ratio of the entity incurring such Debt for the Reference Period is
greater than 2.25 to 1, and (b) the Company, TCR Holding and
TransContinental may Incur Subordinated Debt if, at the time such
Subordinated Debt is incurred, (i) no Default or Event of Default
shall have occurred and be continuing at the time or immediately
after giving effect to such transaction on a pro forma basis, and
(ii) immediately after giving effect to the Consolidated Fixed
Charges in respect of such Subordinated Debt being incurred and the
application of the proceeds therefrom to the extent used to reduce
Debt, on a pro forma basis, the Consolidated Fixed Charge Coverage
Ratio of the entity incurring such Debt for the Reference Period is
greater than 2.0 to 1.
Debt Incurred and Disqualified Capital Stock issued by any
Person that is not a Subsidiary of the Company, TCR Holding or
TransContinental, as the case may be, which Debt or Disqualified
Capital Stock is outstanding at the time such Person becomes a
Subsidiary of, or is merged into, or consolidated with the Company,
TCR Holding or TransContinental or one of their Subsidiaries, as
the case may be, shall be deemed to have been Incurred or issued,
as the case may be, at the time such Person becomes a Subsidiary
of, or is merged into, or consolidated with the Company, TCR
Holding or TransContinental, respectively, or one of their
respective Subsidiaries.
Section 1.07. Section 4.12 of the Original Indenture. Section 4.12 of
the Original Indenture is hereby amended to read in its entirety as follows:
Section 4.12 Limitations on Restricting Subsidiary Dividends.
The Company shall not, and shall not permit any of its Subsidiaries
(other than TCR Holding) to, directly or indirectly, create,
assume, or suffer to exist any consensual encumbrance or
restriction on the ability of any Subsidiary of the Company (other
than TCR Holding) to pay dividends or make other distributions on
the Capital Stock of any Subsidiary of the Company, except
encumbrances and restrictions existing under this Indenture and any
agreement of a Person acquired by the Company or a Subsidiary of
the Company, which restrictions existed at the time of acquisition,
were not put in place in anticipation of such acquisition and are
not applicable to any Person or property, other than the Person or
any property of the Person so acquired. Notwithstanding anything
contained herein to the contrary, neither the Company nor TCR
Holding may create an encumbrance or restriction on their ability
to pay premium, if any, principal of, or interest on, the TARC
Intercompany Loan.
Section 1.08. Section 4.13 of the Original Indenture. Section 4.13 of
the Original Indenture is hereby amended to read in its entirety as follows:
Section 4.13 Liens. The Company shall not, and shall not
permit any of its Subsidiaries to, directly or indirectly, Incur,
or suffer to exist any Lien upon any of its respective property or
assets, whether now owned or hereafter acquired, other than
Permitted Liens. Notwithstanding anything in this Indenture to the
contrary, (i) TARC shall
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not, directly or indirectly, Incur or suffer to exist any Lien on
the Capital Stock of TCR Holding owned by it (other than a Lien to
secure the TARC Intercompany Loan), (ii) TCR Holding may incur a
Lien on Capital Stock of TransContinental to secure the TARC
Working Capital Loan and (iii) TransContinental shall not be bound
by this Section 4.13. For the purpose of determining compliance
with this Section 4.13, if a Lien meets the criteria of more than
one of the types of Permitted Liens, the Company or the Subsidiary
in question shall have the right to determine in its sole
discretion the category of Permitted Lien to which such Lien
applies, shall not be required to include such Lien in more than
one of such categories, and may elect to apportion such Lien
between or among any two or more categories otherwise applicable.
Section 1.09. Section 4.14 of the Original Indenture. Section 4.14 of
the Original Indenture is hereby amended to read in its entirety as follows:
Section 4.14 Limitation on Asset Sales. Intentionally
Omitted.
Section 1.10. Section 4.18 of the Original Indenture. Section 4.18 of
the Original Indenture is hereby amended to read as follows:
Section 4.18 Limitations on Line of Business. The Company shall not
directly or indirectly engage to any substantial extent in any line
or lines of business activity other than a Related Business and,
such other business activities as are reasonably related or
incidental thereto. The Company shall not permit TransContinental
directly or indirectly to engage to any substantial extent in any
line or lines of business activity other than a Related Business or
such other business activities as are reasonably related or
incidental thereto.
Section 1.11. Section 4.20 of the Original Indenture. Section 4.20(a)
of the Original Indenture is hereby amended to read as follows:
(a) Notwithstanding the provisions of Section 4.3, the Company
may, and may permit any of its Subsidiaries to, make Investments in
an Accounts Receivable Subsidiary (i) the proceeds of which are
applied within five Business Days of the making thereof solely to
finance the purchase of accounts receivable of the Company and its
Subsidiaries and (ii) in the form of Accounts Receivable Subsidiary
Notes to the extent permitted by clause (b) below; provided that
the aggregate amount of such Investments shall not exceed the
greater of $20 million or 20% of the TransContinental Borrowing
Base at any time;
Section 1.12. Section 4.23 of the Original Indenture. Section 4.23 of
the Original Indenture is hereby deleted.
Section 1.13. Sections 4.23 and 4.24 of the Original Indenture. New
Sections 4.23 and 4.24 are hereby added to the Original Indenture to follow
Section 4.22 to read in their entirety as follows:
Section 4.23 Monthly Status Reports. The Company shall cause
TransContinental to, (A) not later than the 20th day of each month
(or, if such day is not a Business Day, then the first Business Day
following such day), commencing in December 1998 and continuing
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through the Phase II Completion Date, issue a press release (and,
if applicable, file a copy thereof with the SEC pursuant to a Form
8-K Current Report) generally disclosing the status of completion
of the Capital Improvement Program through the end of the
immediately preceding month and (B) conduct a monthly telephone
conference call relating thereto with the chief executive officer
of TARC or his designee in which Holders will be entitled to
participate and provide notice by press release of the time and
place of such call at least 48 hours in advance thereof.
Section 4.24 Limitation on Issuances of Equity Securities by
TCR Holding or TransContinental. The Company shall not permit TCR
Holding, TransContinental or any Subsidiary of either of them to
issue (other than pursuant to the Transaction, including securities
issued upon conversion of or in exchange for securities issued
pursuant to the Transaction upon the terms established in
connection with the Transaction, or issuances to TransContinental
or any of its Subsidiaries) any Capital Stock or other equity
securities (other than Disqualified Capital Stock that is not
convertible into or exchangeable for Qualified Capital Stock and
other equity securities that are not accounted for as equity
securities in accordance with GAAP) unless the issuer first obtains
a favorable written opinion as to the fairness of such transaction
to the issuer, from a financial point of view, from an independent
nationally recognized accounting or investment banking firm.
Section 1.14. Section 5.1 of the Original Indenture. Section 5.1 of the
Original Indenture is hereby amended to add subsection (d) to read in its
entirety as follows:
(d) Notwithstanding anything contained in this Article V to
the contrary, (i) the provisions of clause (a) shall not apply to
the transfer by TARC to TCR Holding of the Refinery Assets as part
of the Transaction, (ii) the provisions of clause (a) shall not
apply to the transfer to TransContinental by TCR Holding of the
Refinery Assets as part of the Transaction and (iii) the provisions
of clauses (a)(2), (a)(3) and (a)(5) shall not apply to a merger of
TARC with or into TEC.
Section 1.15. Section 5.2 of the Original Indenture. Section 5.2 of the
Original Indenture is hereby amended to read in its entirety as follows:
Section 5.2 Successor Corporation Substituted. Upon any
consolidation or merger, or any transfer of assets in accordance
with Section 5.1 (other than the transfers of the Refinery Assets
by the Company to TCR Holding and by TCR Holding to
TransContinental pursuant to the Transaction), the Surviving Person
formed by such consolidation or into which the Company, or a
Guarantor, as the case may be, is merged or to which such transfer
is made shall succeed to, and be substituted for, and may exercise
every right and power of, the Company, or such Guarantor, as the
case may be, under this Indenture with the same effect as if such
Surviving Person had been named as the Company, or such Guarantor,
as the case may be, herein. When a Surviving Person duly assumes
all of the obligations of the Company pursuant hereto and pursuant
to the Notes, the predecessor shall be released from such
obligations.
Section 1.16. Section 6.1 of the Original Indenture. Section 6.1(d) of
the Original Indenture is hereby amended to read in its entirety as follows:
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(d) a default which extends beyond any stated period of grace
applicable thereto, including any extension thereof, under any
mortgage, indenture or instrument under which there is outstanding
any Debt of the Company, any of its Subsidiaries or
TransContinental with an aggregate principal amount in excess of
$20,000,000 if by reason of such default the principal of such Debt
and all accrued and unpaid interest thereon has been declared due
and payable, or failure to pay such Debt at its stated maturity, if
either (a) such default results from the failure to pay principal
of, premium, if any, or interest on any such Debt when due and such
default continues beyond any applicable cure, forebearance or
notice period; provided that a waiver by the lenders of such Debt
of such default shall constitute a waiver hereunder for the same
period or (b) as a result of such default, the maturity of such
Debt has been accelerated prior to its scheduled maturity, and such
default or acceleration continues for a period of 10 days;
provided, that a rescission or annulment of such default or
acceleration (prior to any action taken by the Trustee with respect
to the acceleration of the Obligations under the Notes) pursuant to
the agreement governing such Debt shall constitute a waiver
hereunder for the same period.
Section 1.17. Section 9.1 of the Original Indenture. Section 9.1 of the
Original Indenture is hereby amended to read in its entirety as follows:
Section 9.1 Supplemental Indentures Without Consent of
Holders. Without the consent of any Holder, the Company and the
Guarantors, if any, when authorized by Board Resolutions, and the
Trustee, at any time and from time to time, may enter into one or
more indentures supplemental hereto or a restatement hereof in form
satisfactory to the Trustee, for any of the following purposes:
(a) to cure any ambiguity, defect, or inconsistency, or to
make any other provisions with respect to matters or questions
arising under this Indenture which shall not be inconsistent with
the provisions of this Indenture, provided such action pursuant to
this clause (a) shall not adversely affect the interests of any
Holder in any respect;
(b) to add to the covenants of the Company for the benefit of
the Holders or to surrender any right or power herein conferred
upon the Company or to make any other change that does not
adversely affect the rights of any Holder, provided that the
Company has delivered to the Trustee an Opinion of Counsel stating
that such change does not adversely affect the rights of any
Holder;
(c) to evidence the succession of another Person to the
Company and the assumption by any such successor of the obligations
of the Company herein and in the Notes in accordance with Article
V;
(d) to comply with the TIA; or
(e) to restate this Indenture so that it reflects this
Indenture as originally executed as amended by all amendments and
supplements hereto through the date of such restatement and
contains only the then effective provisions of this Indenture.
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Section 1.18. Section 9.6 of the Original Indenture. Section 9.6 of the
Original Indenture is hereby amended to read in its entirety as follows:
Section 9.6 Trustee to Sign Amendments, Etc. The Trustee shall
execute any amendment, supplement, restatement or waiver authorized
pursuant to this Article IX, provided that the Trustee may, but
shall not be obligated to, execute any such amendment, supplement,
restatement or waiver which affects the Trustee's own rights,
duties or immunities under this Indenture. The Trustee at the
expense of the Company shall be entitled to receive, and shall be
fully protected in relying upon, an Opinion of Counsel stating that
the execution of any amendment, supplement, restatement or waiver
authorized pursuant to this Article IX is authorized or permitted
by this Indenture.
Section 1.19. Article XI of the Original Indenture. Article XI of the
Original Indenture is hereby amended to read in its entirety as follows:
ARTICLE XI
RIGHT TO REPURCHASE
INTENTIONALLY OMITTED
ARTICLE II
GENERAL PROVISIONS
Section 2.01. Effectiveness of Amendments. This Supplemental Indenture
is effective as of the date first above written. However, the provisions of the
Original Indenture amended or eliminated as provided in this Supplemental
Indenture (the "Amended Provisions") shall remain operative in the form in which
they exist in the Original Indenture until the Transaction Closing Date,
whereupon the Amended Provisions will be amended or eliminated as provided
herein, effective immediately prior to the Transaction Closing Date.
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 condition 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
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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 REFINING CORPORATION,
A Texas corporation
Attest: By:
------------------------ -------------------------------------
Ann F. Gullion, Name:
Assistant Secretary Title:
FIRST UNION NATIONAL BANK,
As Trustee
By:
-------------------------------------
Name:
Title:
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