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EXHIBIT 99.13
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REPURCHASE RIGHTS AGREEMENT
BY AND AMONG
TRANSAMERICAN ENERGY CORPORATION,
TCR HOLDING CORPORATION
AND
CERTAIN STOCKHOLDERS
OF
TCR HOLDING CORPORATION
DECEMBER __, 1998
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REPURCHASE RIGHTS AGREEMENT
This Repurchase Rights Agreement (this "Agreement") dated as of December
__, 1998, is by and among TransAmerican Energy Corporation, a Delaware
corporation ("TEC"), TCR Holding Corporation, a Delaware corporation ("TCR
Holding"), and certain stockholders (the "Initial Stockholder Parties") of TCR
Holding listed on Exhibit A attached hereto.
W I T N E S S E T H
WHEREAS, TARC, TCR Holding, TransContinental Refining Corporation, a
Delaware corporation ("TransContinental"), and certain of the Initial
Stockholder Parties have entered into a Securities Purchase Agreement, dated
December -, 1998 (the "Purchase Agreement"), pursuant to which (a) TARC will
issue and sell $150 million in aggregate principal amount of its 15% Senior
Secured Notes due 2003 (the "Notes"), (b) TransContinental will issue and sell
6,000,000 shares of its 6% participating preferred stock (the "TransContinental
Preferred Stock") and (c) TARC will sell to the Initial Stockholder Parties,
among other securities, (i) 6,000,000 shares of TCR Holding's Class B Junior
Non-Voting Participating Preferred Stock (the "Class B Preferred Stock"), (ii)
3,300,000 shares of TCR Holding's Class C Junior Non-Voting Participating
Preferred Stock (the "Class C Preferred Stock"), and (iii) 8,700,000 shares of
TCR Holding's Class D Junior Non-Voting Participating Preferred Stock (the
"Class D Preferred Stock", and together with the Class B Preferred Stock and the
Class C Preferred Stock, the "TCR Holding Repurchasable Preferred Stock");
WHEREAS, upon consummation of the transactions contemplated by the
Purchase Agreement , each Initial Stockholder Party shall individually own
record and beneficial title to the number of shares of TCR Holding Repurchasable
Preferred Stock set forth beside their name on Exhibit A attached hereto; and
WHEREAS, the Initial Stockholder Parties, TEC and TCR Holding wish to
enter into this agreement to set forth certain rights of TEC to repurchase
shares of the TCR Holding Repurchasable Preferred Stock from the Stockholder
Parties (as defined herein).
NOW, THEREFORE, the parties hereto agree as follows:
1. Definitions. As used in this Agreement:
(a) "Addendum Agreement" means an addendum agreement in the form
attached hereto as Exhibit B.
(b) "Aggregate Exercise Price" has the meaning given such term
in Section 2.
(c) "Capital Expenditures" of a Person means expenditures
(whether paid in cash or accrued as a liability) by such Person or any
of its subsidiaries that, in conformity with GAAP, are or would be
included in "capital expenditures", "additions to property, plant or
equipment" or comparable items in the consolidated financial statements
of such Person consistent with prior accounting practices.
(d) "Capital Improvement Program" has the meaning given such
term in the Indenture.
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(e) "Capitalized Lease Obligation" means obligations under a
lease that are required to be capitalized for financial reporting
purposes in accordance with GAAP, and the amount of Debt represented by
such obligations shall be the capitalized amount of such obligations, as
determined in accordance with GAAP.
(f) "Completion Cost" means the cost of completion of
construction of Phase I and Phase II commencing November 1, 1998. For
purposes of this definition, the costs of completing Phase I and Phase
II commencing November 1, 1998 shall be deemed to include accounts
payable of TARC for work that had been completed but not paid for at
October 31, 1998.
(g) "Consolidated Adjusted EBITDA" for any period, means (a) the
Consolidated Net Income for such period minus the amount that the board
of directors of TransContinental reasonably determines to have
constituted Maintenance Capital Expenditures for such period, plus (b)
the sum, without duplication (and only to the extent such amounts are
deducted from net revenues in determining such Consolidated Net Income),
of (i) the provision for income taxes for such period for TCR Holding
and its consolidated Subsidiaries, (ii) depreciation, depletion, and
amortization of TCR Holding and its consolidated Subsidiaries (but not
in excess of TCR Holding's pro rata share of depreciation, depletion and
amortization of any such Subsidiary) for such period and (iii)
Consolidated Fixed Charges for such period, determined, in each case, on
a consolidated basis for TCR Holding and its consolidated Subsidiaries
in accordance with GAAP.
(h) "Consolidated Fixed Charge Coverage Ratio" on any date (the
"Transaction Date") means the ratio, on a pro forma basis, of (i) the
aggregate amount of Consolidated Adjusted EBITDA (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 to (ii) the aggregate Consolidated Fixed
Charges (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 TCR Holding's Consolidated Fixed Charges subsequent to the
Transaction Date) during the Reference Period; provided, that for
purposes of such computation, in calculating Consolidated Adjusted
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 Disqualified 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 and (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 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.
(i) "Consolidated Fixed Charges" for any period means (without
duplication) the sum of (i) Consolidated Interest Expense for such
period, (ii) dividend requirements of TCR Holding and its consolidated
Subsidiaries (whether in cash or otherwise (except dividends payable
solely in shares of capital stock that is not Disqualified Capital
Stock)) with respect to Preferred Stock paid, accrued, or scheduled to
be paid or accrued during such period, in each case to the extent
attributable
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to such period and excluding items eliminated in consolidation and (iii)
fees paid, accrued, or scheduled to be paid or accrued during such
period by TCR Holding and its Subsidiaries in respect of performance
bonds or other guarantees of payment. For purposes of clause (ii) above,
dividend requirements shall be increased to an amount representing the
pre-tax earnings that would be required to cover such dividend
requirements; accordingly, the increased amount shall be equal to a
fraction, the numerator of which is such dividend requirements and the
denominator of which is one minus the applicable actual combined
effective Federal, state, local, and foreign income tax rate of TCR
Holding and its Subsidiaries (expressed as a decimal), on a consolidated
basis, for the fiscal year immediately preceding the Repurchase Notice
Date.
(j) "Consolidated Interest Expense" means, for any period, the
aggregate interest (without duplication), whether expensed or
capitalized, paid, accrued, or scheduled to be paid or accrued during
such period in respect of all Debt of TCR Holding and its consolidated
Subsidiaries determined on a consolidated basis in accordance with GAAP.
(k) "Consolidated Net Income" for any period means the net income
(loss) of TCR Holding and its consolidated Subsidiaries for such period,
determined in accordance with GAAP, excluding (without duplication) (i)
all extraordinary, unusual and nonrecurring gains (but not losses), (ii)
the net income, if positive, of any other Person, other than a
consolidated Subsidiary, in which TCR Holding or any of its consolidated
Subsidiaries has an interest, except to the extent of the amount of any
dividends or distributions actually paid in cash to TCR Holding or a
consolidated Subsidiary of TCR Holding during such period, but not in
excess of TCR Holding's pro rata share of such other Person's aggregate
net income earned during such period or earned during the immediately
preceding period and not distributed during such period, (iii) the net
income, if positive, of any Person acquired in a pooling of interests
transaction for any period prior to the date of such acquisition and
(iv) the net income, if positive, of any Subsidiary of TCR Holding to
the extent that the declaration or payment of dividends or similar
distributions is not at the time permitted by operation of the terms of
its charter or any agreement, instrument, judgment, decree, order,
statute, rule, or governmental regulation applicable to such Subsidiary.
(l) "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 deferred and unpaid balance of the
purchase price of any property acquired by such Person or services
received by such Person (other than long-term service or supply
contracts which require minimum periodic payments), (c) evidenced by
bankers' acceptances or similar instruments issued or accepted by banks
or obligations under interest rate or currency exchange rate agreements,
(d) for the payment of money relating to a Capitalized Lease Obligation
and (e) the obligation of such Person as lessee under any sale and
leaseback transaction; (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 to which the property
or assets of such Person are subject, regardless of whether the
obligation 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,
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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.
(m) "Disbursement Agent" means The Bank of New York, together
with its successors in such capacity pursuant to the terms of the
Disbursement Agreement.
(n) "Disbursement Agreement" means the Construction Collateral
and Disbursement Agreement of even date with the Indenture among TARC,
the securities intermediary, the Trustee, the Disbursement Agent and the
Independent Engineer, as amended, supplemented or otherwise modified
from time to time.
(o) "Disposition" means any sale, inter vivos transfer, pledge,
mortgage or other encumbrance, foreclosure of such a pledge, mortgage or
other encumbrance, or any other disposition of TCR Holding Repurchasable
Preferred Stock whatsoever.
(p) "Disqualified Capital Stock" means any capital stock of TCR
Holding or its subsidiaries that, by its terms or by the 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 TCR Holding 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 two years after the Repurchase
Notice Date.
(q) "GAAP" means generally accepted accounting principles as in
effect in the United States on the date of issuance of the TCR Holding
Repurchasable Preferred Stock to the Initial Stockholder Parties applied
on a basis consistent with that used in the preparation of the audited
financial statements of TCR Holding.
(r) "Indenture" means the indenture, dated as of December 15,
1998, by and between TARC and the Trustee, relating to the Notes, as
assigned to and assumed by TCR Holding and TransContinental.
(s) "Independent Consultant" means the Independent Engineer.
(t) "Independent Engineer" means Turner, Mason & Company and any
successor independent engineer appointed in accordance with the terms of
the Disbursement Agreement.
(u) "Maintenance Capital Expenditures" means those expenditures
that would be classified as Capital Expenditures under GAAP and that are
required to maintain the operation of the Refinery.
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(v) "Net Debt" means the aggregate Debt of TCR Holding and
TransContinental to the extent recorded in accordance with GAAP, less
cash and cash equivalents of TCR Holding and TransContinental, in each
case as measured on a consolidated basis and as of the last day of the
month ended immediately prior to the exercise of the Repurchase Right on
a pro forma basis giving effect to any recapitalization in connection
therewith.
(w) "Notes" has the meaning given such term in the first
"Whereas" clause hereof.
(x) "Person" means any corporation, individual, joint stock
company, joint venture, partnership, unincorporated association,
governmental regulatory entity, country, state or political subdivision
thereof, trust, municipality or other entity.
(y) "Phase I" has the meaning given such term in the Indenture.
(z) "Phase II" has the meaning given such term in the Indenture.
(aa) "Permissible Construction Costs" means the sum of (i) $216.9
million and (ii) the lesser of (x) $1 million and (y) the amount by
which the costs of construction of Phase I commencing November 1, 1998
(including accounts payable of TARC for work on Phase I that had been
completed but not paid for at October 31, 1998) exceed $49.1 million.
(bb) "Preferred Stock" means any class or classes (however
designated) of capital stock of TCR Holding that is preferred as to the
payment of dividends, or as to the distribution of assets upon any
voluntary or involuntary liquidation or dissolution of TCR Holding over
shares of capital stock of any other class of TCR Holding.
(cc) "Reference Period" means, with respect to any Repurchase
Notice Date, (i) prior to January 1, 2000, the period from January 1,
1999 through December 31, 1999, in which case Consolidated Adjusted
EBITDA for that portion of the Reference Period that will occur after
the Repurchase Notice Date may be based on projections of TEC if TEC
provides a certificate of the Independent Consultant to the effect that
such projections are reasonable, provided that no such certificate shall
be required if, within 15 days of the receipt of a request therefor, the
Independent Consultant fails to deliver to TEC a certificate to the
effect that such projections are reasonable and fails to nominate a new
Independent Consultant and (ii) on and after January 1, 2000, the 12
month period ending on the last day of the calendar month immediately
preceding the Repurchase Notice Date.
(dd) "Refinery" means TARC's refinery located in St. Charles
Parish, Louisiana as more particularly described in the Mortgage,
Assignment of Leases and Rents, Security Agreement and Financing
Statement from TARC in favor of the Trustee.
(ee) "Repurchase Notice Date" means the date TEC provides notice
to the Stockholder Parties pursuant to Section 4.
(ff) "Repurchase Right" has the meaning given such term in
Section 2.
(gg) "Stockholder Parties" means the Initial Stockholder Parties
and each transferee or pledgee of TCR Holding Repurchasable Preferred
Stock that is subject to this Agreement at the time of the Disposition
of such stock.
(hh) "Subsidiary" means, with respect to TCR Holding, (i) a
corporation with respect to which TCR Holding 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
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(ii) a partnership in which TCR Holding or a Subsidiary of TCR Holding
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 TCR Holding, one or more Subsidiaries of TCR
Holding, or such other Person and one or more Subsidiaries of such other
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.
(ii) "Swap Obligation" has the meaning given such term in the
Indenture.
(jj) "TARC" means TransAmerican Refining Corporation, a Texas
corporation.
(kk) "TransContinental" has the meaning given such term in the
first "Whereas" clause hereof.
(ll) "TransContinental Preferred Stock" has the meaning given
such term in the first "Whereas" clause hereof.
(mm) "TARC Subordinated Notes" means, collectively, TARC's 16%
Series A Senior Subordinated Notes due 2003 and 16% Series C Senior
Subordinated Notes due 2003, and upon exchange therefor, TARC's 16%
Series B Senior Subordinated Notes due 2003.
(nn) "TCR Holding Repurchasable Preferred Stock" has the meaning
given such term in the first "Whereas" clause hereof.
(oo) "TEC Notes" means, collectively, TEC's 11-1/2% Senior
Secured Notes due 2002 and 13% Senior Secured Discount Notes due 2002.
(pp) "Trustee" means The Bank of New York, together with its
successors in such capacity under the Indenture.
2. Repurchase Right. Subject to satisfaction of the conditions set
forth in Section 3, TEC shall have the right to repurchase (the "Repurchase
Right") from the Stockholder Parties shares of the TCR Holding Repurchasable
Preferred Stock. TEC may repurchase, in whole but not in part,
(a) from the date hereof through May 31, 1999, at an aggregate
price equal to the greater of $180 million or 30% of the difference
between $1.7 billion and the Net Debt, all of the shares of the Class B
Preferred Stock, the Class C Preferred Stock and the Class D Preferred
Stock;
(b) from June 1, 1999 through November 30, 1999, at an aggregate
price equal to the greater of $140 million or 20% of the difference
between $1.9 billion and the Net Debt, all of the shares of the Class C
Preferred Stock and the Class D Preferred Stock; or
(c) from December 1, 1999 through November 30, 2000, at a price
equal to the greater of $125 million or 14.5% of the difference between
$2.1 billion and the Net Debt, all of the shares of the Class D
Preferred Stock.
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The aggregate price paid by TEC to the Stockholder Parties for the TCR Holding
Repurchasable Preferred Stock shall be the "Aggregate Exercise Price".
3. Conditions to Repurchase Right. The Repurchase Right may be
exercised only if:
(a) the Notes have been paid in full;
(b) all TEC Notes, TARC Subordinated Notes and the promissory
note from TARC to TEC in the original principal amount of $50 million
dated October 1, 1998 have been paid in full;
(c) the Consolidated Fixed Charge Coverage Ratio for the
Reference Period with respect to the Repurchase Notice Date is not less
than 3.0 to 1.0; and
(d) the estimated Completion Cost, based on the most recent
estimate thereof by the Independent Engineer contained in the
Independent Engineer's monthly status report delivered to the
Disbursement Agent and TransContinental pursuant to the Disbursement
Agreement is not in excess of the Permissible Construction Costs.
4. Exercise of Repurchase Right. If TEC desires to exercise the
Repurchase Right, then it shall provide a notice to each of the Stockholder
Parties stating (a) the number of shares of the TCR Holding Repurchasable
Preferred Stock to be repurchased, (b) the purchase price to be paid for such
shares of the TCR Holding Repurchasable Preferred Stock and (c) the closing date
of the repurchase, which date shall be no earlier than 10 days and not later
than 60 days after the date of such notice. The place of the closing shall be as
agreed upon among the parties thereto or, if no such agreement is reached, at
the principal office of TEC. The purchase price of the shares of the TCR Holding
Repurchasable Preferred Stock to be purchased pursuant to the Repurchase Right
shall be paid by certified or cashier's check or by wire transfer upon the
closing and receipt of the certificates representing such shares of the TCR
Holding Repurchasable Preferred Stock together with appropriate stock powers. If
requested by the Stockholder Party and if proper wiring instructions are
provided to TEC, the purchase price shall be delivered by wire transfer to such
Stockholder Party. If the purchase price is paid by check, such check shall be
actually delivered to the Stockholder Party or sent by certified or registered
mail, postage prepaid, return receipt requested, to the address of the
Stockholder Party. In the latter case, delivery shall be deemed to have been
made to the Shareholder Party upon the deposit of such check in the mails.
5. Termination of Repurchase Right. The Repurchase Right shall
expire if the Completion Cost is in excess of the Permissible Construction
Costs.
6. Transfers of TCR Holding Repurchasable Preferred Stock. No
Stockholder Party shall make any Disposition of any shares of TCR Holding
Repurchasable Preferred Stock unless the transferee or pledgee of such shares of
TCR Holding Repurchasable Preferred Stock is a Stockholder Party or executes and
delivers to TEC an Addendum Agreement prior to such Disposition.
7. Changes in TCR Holding Repurchasable Preferred Stock.
(a) Stock Splits and Reverse Splits. In the event that TCR
Holding shall at any time subdivide its outstanding shares of TCR
Holding Repurchasable Preferred Stock into a greater number of shares,
the number of shares of TCR Holding Repurchasable Preferred Stock
purchasable pursuant to the Repurchase Right immediately prior to such
subdivision shall be proportionately increased and, conversely, in the
event that the outstanding shares of TCR Holding Repurchasable Preferred
Stock shall at any time be combined into a smaller number of shares, the
number of shares
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of TCR Holding Repurchasable Preferred Stock purchasable pursuant to the
Repurchase Right immediately prior to such combination shall be
proportionately reduced.
(b) Conversions, Reorganizations, Mergers and Asset Sales. If (i)
the TCR Holding Repurchasable Preferred Stock is converted into common
stock or any other class of capital stock of TCR Holding or (ii) any
capital reorganization or reclassification of the capital stock of TCR
Holding, or any consolidation, merger or share exchange of TCR Holding
with another person or entity, or the sale, transfer or other
disposition of all or substantially all of its assets to another person
or entity shall be effected and, in either case, a holder of shares of
TCR Holding Repurchasable Preferred Stock shall receive or be entitled
to receive capital stock, securities or assets with respect to or in
exchange for its shares of TCR Holding Repurchasable Preferred Stock,
then the provisions hereof shall thereafter be applicable, as nearly as
possible, in relation to any shares of capital stock, securities or
assets issued or payable with respect to, upon conversion of or in
exchange for such shares of TCR Holding Repurchasable Preferred Stock.
(c) Adjustment for Asset Distribution. If TCR Holding declares a
dividend or other distribution payable to all holders of shares of Class
B Preferred Stock, Class C Preferred Stock or Class D Preferred Stock in
notes or other evidences of indebtedness of TCR Holding or other assets
of TCR Holding (including cash (other than regular cash dividends
declared by the Board of Directors), capital stock or other property),
the Aggregate Exercise Price in effect immediately prior to such
declaration of such dividend or other distribution that is related to
such shares shall be reduced by an amount equal to the aggregate amount
of such dividend or distribution attributable to the shares that are
then subject to the Repurchase Right, in the case of a cash dividend or
distribution, or by the fair value of such dividend or distribution (as
reasonably determined in good faith by the Board of Directors of TCR
Holding), in the case of any other dividend or distribution. Such
reduction shall be made whenever any such dividend or distribution is
made and shall be effective as of the date as of which a record is taken
for purpose of such dividend or distribution or, if a record is not
taken, the date as of which holders of record of TCR Holding
Repurchasable Preferred Stock entitled to such dividend or distribution
are determined.
8. Representations of the Stockholder Parties. Each of the
Stockholder Parties represents and warrants to each of the other Stockholder
Parties and to TEC that:
(a) such Stockholder Party has the requisite power and authority
to enter into and perform this Agreement;
(b) if such Stockholder Party is a corporation, the execution,
delivery and performance of this Agreement have been duly authorized by
all necessary corporate action on the part of such Stockholder Party,
and this Agreement has been duly executed by a duly authorized officer
of such Stockholder Party;
(c) if such Stockholder Party is a partnership, the execution,
delivery and performance of this Agreement have been duly authorized by
all necessary partnership action on the part of such Stockholder Party,
and this Agreement has been duly executed by a duly authorized partner
of such Stockholder Party;
(d) the performance of this Agreement by the Stockholder Party
will not require such Stockholder Party to obtain the consent, waiver or
approval of any person and will not violate, result
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in a breach of or constitute a default under any statute, regulation,
agreement, trust instrument, judgment, consent, decree or restriction by
which it is bound;
(e) if it is an Initial Stockholder Party, such Stockholder Party
is the record and/or beneficial owner of the shares of TCR Holding
Repurchasable Preferred Stock as described in Exhibit A hereto; and
(f) at the time of the delivery of the shares of TCR Holding
Repurchasable Preferred Stock by such Stockholder Party pursuant to
Section 4, such Stockholder Party will own beneficially and of record
and will have full power and authority to convey free and clear of all
liens, encumbrances, restrictions and claims of every kind, the shares
of TCR Holding Repurchasable Preferred Stock subject to the Repurchase
Right and, upon delivery of and payment for such shares of TCR Holding
Repurchasable Preferred Stock as provided in this Agreement, TEC will
acquire good and valid title thereto, free and clear of all liens,
encumbrances, restrictions and claims of every kind.
9. Representations of TEC. TEC represents and warrants to each
Stockholder Party that:
(a) TEC has the requisite power and authority to enter into and
perform this Agreement; and
(b) the execution, delivery and performance of this Agreement
have been duly authorized by all necessary corporate action on the part
of TEC, and this Agreement has been duly executed by a duly authorized
officer of TEC.
10. Endorsement of Stock Certificates. All certificates representing
shares of TCR Holding Repurchasable Preferred Stock to be issued pursuant to the
Purchase Agreement and any certificates representing shares of TCR Holding
Repurchasable Preferred Stock that are issued in the future shall be endorsed on
the back thereof as follows, or in words of similar meaning:
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE
TERMS OF THE REPURCHASE RIGHTS AGREEMENT DATED DECEMBER 15, 1998
(THE "AGREEMENT"), BY AND AMONG THE COMPANY, TRANSAMERICAN ENERGY
CORPORATION AND CERTAIN STOCKHOLDERS OF THE COMPANY. THE COMPANY
WILL FURNISH TO THE RECORD HOLDER HEREOF WITHOUT CHARGE UPON
WRITTEN REQUEST TO THE COMPANY AT ITS PRINCIPAL PLACE OF BUSINESS
OR ITS REGISTERED OFFICE A COPY OF THE AGREEMENT. A TRANSFEREE,
PLEDGEE OR MORTGAGEE OF THE SHARES REPRESENTED BY THIS
CERTIFICATE SHALL BE DEEMED TO HAVE NOTICE OF AND TO BE BOUND BY
THE TERMS OF THE AGREEMENT.
Such certificates shall be endorsed on the front thereof as follows, or
in words of similar meaning:
"SEE REVERSE FOR IMPORTANT NOTICE ON TRANSFER
RESTRICTIONS AND OTHER INFORMATION."
11. Termination. This Agreement shall continue in effect for the
period commencing on the date hereof until its termination on December 1, 2000
or its earlier termination in accordance with the terms hereof; provided that
this Agreement shall continue in effect thereafter if the Repurchase Right has
theretofore been exercised. The representations and warranties of the parties
contained in this Agreement
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shall survive termination of this Agreement and the delivery of the shares of
TCR Holding Repurchasable Preferred Stock pursuant to the exercise of the
Repurchase Right.
12. Amendments. This Agreement may be changed, modified or amended by a
writing signed by TEC, TCR Holding and the Stockholder Parties who own a
majority of the shares of the TCR Holding Repurchasable Preferred Stock then
subject to the Repurchase Right; provided that no such change, modification or
amendment shall be enforceable against any party to this Agreement whose rights
or obligations hereunder will be materially and adversely affected thereby
unless the same shall be in writing and signed by such party.
13. Notices. All notices, requests, demands and other communications
made in connection with this Agreement shall be in writing and shall be deemed
to have been duly given on the date delivered, if delivered personally, by
overnight delivery service or sent by facsimile machine to the persons
identified below, or three days after mailing in the U.S. Mail if mailed by
certified or registered mail, postage prepaid, return receipt requested,
addressed as follows:
(a) if to TCR Holding:
TCR Holding Corporation
14902 River Road
New Sarpy, Louisiana 70078
Facsimile: (504) 764-2359
Attn: Glenn McGinnis
(b) if to TEC:
TransAmerican Energy Corporation
1300 North Sam Houston Parkway East, Suite 200
Houston, Texas 77032-2949
Facsimile: 281.986.8865
Attn: Ed Donahue
(c) if to the Stockholder Parties, to the address of
each Stockholder Party as indicated on Exhibit A
hereto (with respect to the Initial Stockholder
Parties) or their respective Addendum Agreements
(with respect to other Stockholder Parties).
Such addresses may be changed, from time to time, by means of a notice given in
the manner provided in this Section 13.
14. Waiver. No waiver of any of the provisions of this Agreement
shall be deemed or shall constitute a waiver of any other provision hereof
(regardless of whether such provision is similar), nor shall any such waiver
constitute a continuing waiver unless otherwise expressly provided.
15. Severability. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner adverse to
any party. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereto shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the
parties
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as closely as possible in an acceptable manner to the end that transactions
contemplated hereby are fulfilled to the extent possible.
16. Entire Agreement. This Agreement and the other agreements
contemplated hereby constitute the entire agreement among the parties pertaining
to the subject matter hereof and supersedes all prior agreements,
understandings, negotiations and discussions, whether oral, written or inferred,
of the parties, and there are no other warranties, representations or agreements
between the parties in connection with the subject matter hereof.
17. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK. TO
THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, EACH OF THE
PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY NEW YORK
STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY OR ANY FEDERAL
COURT SITTING IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY IN RESPECT OF ANY
SUIT ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT AND
IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH SUIT, ACTION OR
PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT. EACH OF THE PARTIES
HERETO IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER
APPLICABLE LAW, TRIAL BY JURY AND ANY OBJECTION TO WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT
IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT
IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
18. Binding Effect and Assignment. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective heirs,
successors and permitted assigns. TEC shall have the right to assign this
Agreement and its rights hereunder at its discretion. TCR Holding may not assign
its obligations under this Agreement. Nothing in this Agreement, express or
implied, is intended to confer upon any person other than the parties hereto and
their respective heirs, successors and permitted assigns, any rights, benefits
or obligations hereunder.
19. Specific Performance. If any of the Stockholder Parties refuses
to consummate the Repurchase Right pursuant to the terms of this Agreement for
any reason other than termination hereof pursuant to a right granted to the
Stockholder Parties hereunder to do so, then TEC may (a) enforce specific
performance of the obligations of the Stockholder Parties and (b) seek any other
rights, recourses or remedies available to TEC.
20. Headings. The headings contained herein are inserted for
convenience of reference only and are not intended to be a part of or affect the
meaning or interpretation of this Agreement.
21. Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
[SIGNATURES ON FOLLOWING PAGES]
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13
TRANSAMERICAN ENERGY CORPORATION
By: ____________________________________
Name:
Title:
TCR HOLDING CORPORATION
By: ____________________________________
Name:
Title:
INITIAL STOCKHOLDER PARTIES:
THE TCW FUNDS: TCW LEVERAGED INCOME TRUST, L.P.
By: TCW ADVISORY (BERMUDA), LTD.,
as General Partner
By:
-----------------------------------
Name:
Title:
By: TCW INVESTMENT MANAGEMENT COMPANY,
as Investment Advisor
By:
-----------------------------------
Name:
Title:
TCW LEVERAGED INCOME TRUST II, L.P.
By: TCW Advisory (Bermuda), Ltd.,
as General Partner
By:
-----------------------------------
Name
Title
By: TCW Investment Management Company,
as Investment Advisor
By:
----------------------------------
Name
Title
TCW SHARED OPPORTUNITY FUND III, L.P.
By: TCW ASSET MANAGEMENT COMPANY,
as Investment Advisor
By:
-----------------------------------
Name:
Title:
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JEFFERIES & COMPANY, INC.
By: ____________________________________
Name:
AUTHORIZED SIGNATORY
[SIGNATURES OF OTHER INITIAL STOCKHOLDER PARTIES CONTINUE
ON THE FOLLOWING PAGES]
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SIGNATURE PAGE TO REPURCHASE RIGHTS AGREEMENT
This signature page is for the Repurchase Rights Agreement dated as of
December ___, 1998 (the "Agreement"), by and among TEC, TCR Holding and the
Initial Stockholder Parties, and by execution below the undersigned agrees that
it shall be attached as a signature page to the Agreement.
________________________________________
By: ____________________________________
Name:
Title:
________________________________________
________________________________________
________________________________________
[Address]
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EXHIBIT A
INITIAL STOCKHOLDER PARTIES
Number of Shares of TCR Holding Repurchasable Preferred Stock
-----------------------------------------------------------------
Class B Class C Class D
------- ------- -------
TCW Leveraged Income Trust, L.P.
11100 Santa Monica Blvd.
Suite 2000
Los Angeles, CA 90025
Attn. Nicholas W. Tell, Jr.
Facsimile:
TCW Leveraged Income Trust II, L.P.
11100 Santa Monica Blvd.
Suite 2000
Los Angeles, CA 90025
Attn. Nicholas W. Tell, Jr.
Facsimile:
TCW Shared Opportunity
Fund III, L.P.
11100 Santa Monica Blvd.
Suite 2000
Los Angeles, CA 90025
Attn. Nicholas W. Tell, Jr.
Facsimile:
Jefferies & Company, Inc.
11100 Santa Monica Blvd.
10th Floor
Los Angeles, CA 90025
Attn. Joe Maly
Facsimile:
[Name]
[address]
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EXHIBIT B
ADDENDUM AGREEMENT
Addendum Agreement made this ___ day of ___________, _____ , by and
between ___________________ (the "New Stockholder") and TransAmerican Energy
Corporation, a Delaware corporation ("TEC"), TCR Holding Corporation, a Delaware
corporation ("TCR Holding"), and such stockholders (the "Stockholders") of TCR
Holding who are parties to that certain Repurchase Rights Agreement dated
December ___, 1998 (the "Agreement"), by and among TEC, TCR Holding and the
Stockholders.
W I T N E S S E T H:
WHEREAS, TEC, TCR Holding and the Stockholders entered into the
Agreement to impose certain restrictions and obligations upon the Stockholders
and certain shares of capital stock (the "TCR Holding Repurchasable Preferred
Stock") of TCR Holding owned by the Stockholders;
WHEREAS, the New Stockholder is desirous of becoming a stockholder of
TCR Holding; and
WHEREAS, TCR Holding, TEC and the Stockholders have required in the
Agreement that any person being offered shares of TCR Holding Repurchasable
Preferred Stock must enter into an Addendum Agreement binding the New
Stockholder to the Agreement to the same extent as if the New Stockholder was an
original party thereto, so as to promote the mutual interests of TCR Holding,
TEC, the Stockholders and the New Stockholder by imposing the same restrictions
and obligations on the New Stockholder and the shares of capital stock of TCR
Holding to be acquired by the New Stockholder as were imposed upon the
Stockholders under the Agreement;
NOW, THEREFORE, in consideration of the mutual promises of the parties,
and as a condition of the purchase of the shares of TCR Holding Repurchasable
Preferred Stock, the New Stockholder acknowledges that the New Stockholder has
read the Agreement. The New Stockholder shall be a "Stockholder Party" (as
defined in the Agreement) and shall be bound by, and shall have the benefit of,
all of the terms and conditions set out in the Agreement to the same extent as
if the New Stockholder were an "Initial Stockholder Party" (as defined in the
Agreement). This Addendum Agreement shall be attached to and become a part of
the Agreement.
_____________________________ ________________________________________
[New Stockholder]
________________________________________
[New Stockholder's Address]
ACCEPTED BY TCR HOLDING
ON BEHALF OF ITSELF, TEC
AND THE STOCKHOLDERS:
TCR HOLDING CORPORATION
_____________________________
Name:
Title:
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