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EXHIBIT 99.10
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$150,000,000 15% Senior Secured Notes due 2003
INDENTURE
between
TRANSAMERICAN REFINING CORPORATION,
a Texas corporation
as Issuer
and
THE BANK OF NEW YORK,
as Trustee
Dated as of December __, 1998
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CROSS-REFERENCE TABLE
TIA INDENTURE
SECTION SECTION
310 (a)(1) .......................................................... 7.10
(a)(2) .......................................................... 7.10
(a)(3) .......................................................... N.A.
(a)(4) .......................................................... N.A.
(a)(5) .......................................................... 7.10
(b) .......................................................... 7.8; 7.10
(c) .......................................................... N.A.
311 (a) .......................................................... 7.11
(b) .......................................................... 7.11
(c) .......................................................... N.A.
312 (a) .......................................................... 2.5
(b) .......................................................... 12.3
(c) .......................................................... 12.3
313 (a) .......................................................... 7.6
(b)(1) .......................................................... 7.6
(b)(2) .......................................................... 7.6
(c) .......................................................... 7.6; 12.2
(d) .......................................................... 7.6
314 (a) .......................................................... 4.7; 4.8; 12.2
(b) .......................................................... 11.2(b)
(c)(1) .......................................................... 2.2; 7.2; 11.4(b);
.......................................................... 12.4
(c)(2) .......................................................... 7.2; 11.4(b); 12.4
(c)(3) .......................................................... N.A.
(d) .......................................................... 11.2(b); 11.4(b)
(e) .......................................................... 12.5
(f) .......................................................... N.A.
315 (a) .......................................................... 7.1(b)
(b) .......................................................... 7.5; 12.2
(c) .......................................................... 7.1(a)
(d) .......................................................... 6.11; 7.1(c)
(e) .......................................................... 6.13
316 (a)(last sentence)...................................................... 2.9
(a)(1)(A) .......................................................... 6.11
(a)(1)(B) .......................................................... 6.12
(a)(2) .......................................................... N.A.
(b) .......................................................... 6.12; 6.8
(c) .......................................................... 9.4; 10.5
317 (a)(1) .......................................................... 6.3
(a)(2) .......................................................... 6.4
(b) .......................................................... 2.4
318 (a) .......................................................... 12.1
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N.A. means Not Applicable
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be
part of this Indenture.
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TABLE OF CONTENTS
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Article I DEFINITIONS AND INCORPORATION BY REFERENCE.........................................1
Section 1.1 Definitions............................................................1
Section 1.2 Incorporation by Reference of TIA.....................................26
Section 1.3 Rules of Construction.................................................26
Article II THE NOTES........................................................................27
Section 2.1 Form and Dating.......................................................27
Section 2.2 Execution and Authentication..........................................27
Section 2.3 Registrar and Paying Agent............................................28
Section 2.4 Paying Agent to Hold Assets in Trust..................................29
Section 2.5 Noteholder Lists......................................................29
Section 2.6 Transfer and Exchange of Definitive Notes.............................29
Section 2.7 Replacement Notes.....................................................33
Section 2.8 Outstanding Notes.....................................................33
Section 2.9 Treasury Notes........................................................34
Section 2.10 Temporary Notes.......................................................34
Section 2.11 Cancellation..........................................................34
Section 2.12 Defaulted Interest....................................................34
Section 2.13 Computation of Interest...............................................35
Section 2.14 Legends...............................................................35
Section 2.15 PIK Notes.............................................................36
Section 2.16 Additional Notes......................................................36
Article III REDEMPTION......................................................................37
Section 3.1 Right of Redemption...................................................37
Section 3.2 Notices to Trustee....................................................37
Section 3.3 Selection of Notes to Be Redeemed.....................................37
Section 3.4 Notice of Redemption..................................................37
Section 3.5 Effect of Notice of Redemption........................................38
Section 3.6 Deposit of Redemption Price...........................................39
Section 3.7 Notes Redeemed in Part................................................39
Article IV COVENANTS........................................................................39
Section 4.1 Payment of Notes......................................................39
Section 4.2 Maintenance of Office or Agency.......................................40
Section 4.3 Limitation on Restricted Payments.....................................40
Section 4.4 Corporate Existence...................................................41
Section 4.5 Payment of Taxes and Other Claims.....................................42
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Section 4.6 Maintenance of Properties and Insurance...............................42
Section 4.7 Compliance Certificate; Notice of Default.............................43
Section 4.8 Commission Reports....................................................43
Section 4.9 Limitation on Status as Investment Company or Public Utility Company..44
Section 4.10 Limitation on Transactions with Related Persons.......................44
Section 4.11 Limitation on Incurrences of Additional Debt and Issuances of Disqualified
Capital Stock.........................................................45
Section 4.12 Limitations on Restricting Subsidiary Dividends.......................47
Section 4.13 Limitation on Liens...................................................48
Section 4.14 Waiver of Stay; Extension or Usury Laws...............................48
Section 4.15 Separate Existence and Formalities....................................49
Section 4.16 [INTENTIONALLY OMITTED]...............................................50
Section 4.17 Repurchase of Notes at the Option of the Holder Upon a
Change of Control ....................................................50
Section 4.18 Minimum Consolidated Adjusted EBITDA..................................51
Section 4.19 Guarantee by Subsidiaries.............................................51
Section 4.20 Limitation on Asset Sales.............................................52
Section 4.21 Limitation on Line of Business........................................53
Section 4.22 Automatic Payment Upon Completion of Phase II.........................53
Section 4.23 Event of Loss.........................................................54
Section 4.24 Compliance with Environmental Laws....................................55
Section 4.25 Maintenance of Rights.................................................56
Section 4.26 Use of Proceeds.......................................................56
Section 4.27 Independent Engineer..................................................56
Section 4.28 Amendments, Waivers and Enforcement of Certain Agreements.............56
Section 4.29 Modifications of Charter Documents....................................57
Section 4.30 Capital Expenditures..................................................57
Section 4.31 Notice of Default.....................................................57
Section 4.32 Limitation on Issuance of Preferred Stock by Subsidiaries.............57
Article V SUCCESSOR CORPORATION.............................................................57
Section 5.1 When the Company and its Subsidiaries May Merge, Etc..................57
Section 5.2 Successor Corporation Substituted.....................................58
Article VI EVENTS OF DEFAULT AND REMEDIES...................................................59
Section 6.1 Events of Default.....................................................59
Section 6.2 Acceleration of Maturity Date; Rescission and Annulment...............61
Section 6.3 Collection of Indebtedness and Suits for Enforcement by Trustee.......62
Section 6.4 Trustee May File Proofs of Claim......................................63
Section 6.5 Trustee May Enforce Claims Without Possession of Notes................63
Section 6.6 Priorities............................................................64
Section 6.7 Limitation on Suits...................................................64
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Section 6.8 Unconditional Right of Holders to Receive Principal, Premium and
Interest .............................................................65
Section 6.9 Rights and Remedies Cumulative........................................65
Section 6.10 Delay or Omission Not Waiver..........................................65
Section 6.11 Control by Holders....................................................65
Section 6.12 Waiver of Past Default................................................66
Section 6.13 Undertaking for Costs.................................................66
Section 6.14 Restoration of Rights and Remedies....................................66
Article VII TRUSTEE.........................................................................67
Section 7.1 Duties of Trustee.....................................................67
Section 7.2 Rights of Trustee.....................................................68
Section 7.3 Individual Rights of Trustee..........................................69
Section 7.4 Trustee's Disclaimer..................................................69
Section 7.5 Notice of Default.....................................................69
Section 7.6 Reports by Trustee to Holders.........................................69
Section 7.7 Compensation and Indemnity............................................70
Section 7.8 Replacement of Trustee................................................71
Section 7.9 Successor Trustee by Merger, Etc......................................72
Section 7.10 Eligibility; Disqualification.........................................72
Section 7.11 Preferential Collection of Claims against Company.....................72
Section 7.12 No Bond...............................................................72
Section 7.13 Condition to Action...................................................72
Section 7.14 Investment............................................................72
Article VIII SATISFACTION AND DISCHARGE.....................................................73
Section 8.1 [INTENTIONALLY OMITTED]...............................................73
Section 8.2 Termination of Obligations Upon Cancellation of the Notes.............73
Section 8.3 Survival of Certain Obligations.......................................73
Section 8.4 Acknowledgment of Discharge by Trustee................................73
Section 8.5 [INTENTIONALLY OMITTED]...............................................73
Section 8.6 [INTENTIONALLY OMITTED]...............................................73
Section 8.7 Reinstatement.........................................................73
Article IX AMENDMENTS, SUPPLEMENTS AND WAIVERS..............................................74
Section 9.1 Supplemental Indentures Without Consent of Holders....................74
Section 9.2 Amendments, Supplemental Indentures and Waivers with Consent
of Holders............................................................75
Section 9.3 Compliance with TIA...................................................76
Section 9.4 Revocation and Effect of Consents.....................................76
Section 9.5 Notation on or Exchange of Notes......................................77
Section 9.6 Trustee to Sign Amendments, Etc.......................................77
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Article X MEETINGS OF NOTEHOLDERS...........................................................77
Section 10.1 Purposes for Which Meetings May Be Called.............................77
Section 10.2 Manner of Calling Meetings............................................78
Section 10.3 Call of Meetings by Company or Holders................................78
Section 10.4 Who May Attend and Vote at Meetings...................................78
Section 10.5 Regulations May Be Made by Trustee; Conduct of the Meeting; Voting
Rights; Adjournment...................................................79
Section 10.6 Voting at the Meeting and Record to Be Kept...........................79
Section 10.7 Exercise of Rights of Trustee or Noteholders May Not Be Hindered
or Delayed by Call of Meeting.........................................80
Article XI SECURITY.........................................................................80
Section 11.1 Grant of Security Interest............................................80
Section 11.2 Recording; Opinions of Counsel........................................80
Section 11.3 Disposition of Certain Collateral Without Requesting Release..........81
Section 11.4 Requesting Release of Collateral......................................82
Section 11.5 Substitute Collateral Other Than Cash Collateral......................84
Section 11.6 Release Upon Satisfaction and Discharge of this Indenture.............85
Section 11.7 Reliance on Opinion of Counsel........................................85
Section 11.8 Purchaser May Rely....................................................85
Section 11.9 Payment of Expenses...................................................85
Section 11.10 Trustee's Duties......................................................86
Section 11.11 Authorization of Actions to be Taken by the Trustee Under the Security
Documents.............................................................86
Article XII MISCELLANEOUS...................................................................87
Section 12.1 TIA Controls..........................................................87
Section 12.2 Notices...............................................................87
Section 12.3 Communications by Holders with Other Holders..........................88
Section 12.4 Certificate and Opinion as to Conditions Precedent....................88
Section 12.5 Statements Required in Certificate or Opinion.........................88
Section 12.6 Rules by Trustee, Paying Agent, Registrar.............................89
Section 12.7 Legal Holidays........................................................89
Section 12.8 Governing Law.........................................................89
Section 12.9 No Adverse Interpretation of Other Agreements.........................89
Section 12.10 No Recourse against Others............................................90
Section 12.11 Successors............................................................90
Section 12.12 Duplicate Originals...................................................90
Section 12.13 Severability..........................................................90
Section 12.14 Table of Contents, Headings, Etc......................................90
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SIGNATURES .................................................................................90
EXHIBITS
Exhibit A - Form of Note
Exhibit B - Certificate of Transferor
Exhibit C - Form of Mortgage
Exhibit D - Form of Security Agreement
Exhibit E - Company's Board Resolutions
Exhibit F - Form of Construction Collateral and Disbursement Agreement
Note: This Table of Contents shall not, for any purpose, be deemed to be part
of this Indenture.
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INDENTURE, dated as of December __ , 1998, between TRANSAMERICAN
REFINING CORPORATION, a Texas corporation (together with its successors and
permitted assigns, the "COMPANY"), and THE BANK OF NEW YORK, a New York banking
corporation, as Trustee.
Each party hereto agrees as follows for the benefit of each other
party and for the equal and ratable benefit of the Holders of the Company's 15%
Senior Secured Notes due 2003:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1 Definitions.
"ACCELERATION NOTICE" shall have the meaning specified in Section 6.2.
"ADDITIONAL NOTES" shall have the meaning specified in Section 2.16.
"ADJUSTED CONSOLIDATED NET INCOME" of any Person for any period means
the net income (loss) of such Person and its consolidated Subsidiaries for such
period, determined in accordance with GAAP, excluding (without duplication) (i)
all extraordinary gains, (ii) the net income, if positive, of any other Person,
other than a consolidated Subsidiary, in which such Person 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 such Person or a
consolidated Subsidiary of such Person 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 such Person 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.
"ADJUSTED NET ASSETS" of a Guarantor means the lesser of (a) the amount
by which the Guarantor's Property, at a fair valuation, exceeds the sum of its
debts (including unliquidated or contingent debts), (b) the amount by which the
present fair salable value of the Guarantor's assets exceeds the amount that
will be required to pay its probable liability on its existing debts as they
become absolute and matured, (c) the amount by which the Guarantor's assets
exceed the maximum amount that would constitute unreasonably small capital for
its business or (d) the amount by which the Guarantor's assets exceed the amount
that such Guarantor should reasonably retain to pay its debts (including
unliquidated or contingent debts) as they mature.
"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
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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 5% 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
Holders shall be deemed "Affiliates" of the Company or any of its Subsidiaries.
"AGENT" means any Registrar, Paying Agent or co-Registrar.
"APPRAISAL" means, when used with respect to the valuation of any
Property, an appraisal prepared by an Appraiser as to the Appraised Value of
such Property.
"APPRAISED VALUE" means, with respect to any Property at any date, the
then current fair market value of such Property as set forth in the most recent
Appraisal.
"APPRAISER" means an independent appraiser of national recognition
qualified to appraise the Property appraised.
"ASBESTOS" shall have the meaning provided under any relevant
Environmental Laws and shall include, without limitation, asbestos fibers and
friable asbestos, as such terms are defined under the relevant Environmental
Laws.
"ASSET SALE" means any direct or indirect conveyance, sale, transfer or
other disposition, excluding through damage or destruction for which Insurance
Proceeds are paid or by condemnation, in one transaction or a series of related
transactions, of any of the properties, businesses or assets of the Company or
any Subsidiary of the Company, whether owned on the Issue Date or thereafter
acquired; provided, however, that "Asset Sale" shall not include any pledge or
disposition of assets (if such pledge or disposition would otherwise constitute
an Asset Sale) to the extent and only to the extent that it results in the
creation of a Permitted Lien or in connection with the Transaction on the Issue
Date.
"ASSET SALE AGREEMENTS" means the agreement pursuant to which TARC
transfers certain assets and liabilities to TCR Holding and TCR Holding
transfers certain assets and liabilities to TransContinental, made as part of
the Transaction on the Issue Date.
"ATTRIBUTABLE DEBT" in respect of a Sale and Leaseback Transaction
means, at the time of determination, the present value (discounted at the rate
of interest implicit in such transaction, determined in accordance with GAAP or,
in the event that such rate of interest is not reasonably determinable,
discounted at the rate of interest borne by the Notes) of the obligation of the
lessee for net rental payments during the remaining term of the lease included
in such Sale and Leaseback Transaction (including any period for which such
lease has been extended or may, at the option of the lessor, be extended).
"BANKRUPTCY LAW" means Title 11, U.S. Code or any similar Federal, state
or foreign law for the relief of debtors.
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"BOARD OF DIRECTORS" means, with respect to any Person, the Board of
Directors of such Person or any committee of the Board of Directors of such
Person authorized, with respect to any particular matter, to exercise the power
of the Board of Directors of such Person.
"BOARD RESOLUTION" means, with respect to any Person, a duly adopted
resolution of the Board of Directors of such Person.
"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 the Company 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 the Company and its Subsidiaries as of such date. To the
extent that information is not available as to the amount of accounts receivable
and inventory as of a specific date, the Company may utilize, to the extent
reasonable, the most recent available information for purposes of calculating
the Borrowing Base.
"BUDGET" shall have the meaning given to such term in the Construction
Collateral and Disbursement Agreement.
"BUSINESS DAY" means a day that is not a Legal Holiday in New York,
Louisiana, Texas or California.
"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.
"CAPITAL IMPROVEMENT PROGRAM" means the expansion and improvement
program of the Company as described in the Offering Circular under the heading
"Business -- Capital Improvement Program" as such program subsequently may be
modified or expanded by the Company in a manner determined by the Board of
Directors of the Company, in their judgment as reflected in a Board Resolution,
to improve the potential cash flow of the Company.
"CAPITAL STOCK" means, with respect to any Person, any capital stock of
such Person and shares, interests, participations, or other ownership interests
(however designated) of such Person and any rights (other than debt securities
convertible into corporate stock), warrants or options to purchase any of the
foregoing, including without limitation, each class of common stock and
preferred stock of such Person, if such Person is a corporation, and each
general or limited partnership interest or other equity interest of such Person,
if such Person is a partnership.
"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.
"CASH" means U.S. Legal Tender.
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"CASH EQUIVALENTS" means (a) United States dollars, (b) securities
issued, or directly and fully guaranteed or insured, by the United States
government or any agency or instrumentality thereof having maturities of not
more than one year from the date of acquisition, (c) certificates of deposit
with maturities of one year or less from the date of acquisition, bankers'
acceptances with maturities not exceeding one year, and overnight bank deposits,
in each case, with any Eligible Institution, (d) repurchase obligations with a
term of not more than seven days for underlying securities of the types
described in clauses (b) and (c) entered into with any Eligible Institution, (e)
commercial paper rated "P-1," "A-1" or the equivalent thereof by ▇▇▇▇▇'▇
Investors Service, Inc. or Standard & Poor's Corporation, Inc., respectively,
and in each case maturing within one year after the date of acquisition, (f)
shares of money market funds, including those of the Trustee, that invest solely
in United States dollars and securities of the types described in clauses (a)
through (e), (g) demand and time deposits and certificates of deposit not
meeting the qualifications specified in clause (c) above with any commercial
bank organized in the United States or an Eligible Institution; provided that
such deposits and certificates support bonds, letters of credit and other
similar types of obligations are incurred in the ordinary course of business,
(h) deposits, including deposits denominated in foreign currency, with any
Eligible Institution, provided that all such deposits do not exceed $10,000,000
in the aggregate at any one time, and (i) demand or fully insured time deposits
used in the ordinary course of business with commercial banks insured by the
Federal Deposit Insurance Corporation.
"CHANGE OF CONTROL" means (i) the liquidation or dissolution of, or the
adoption of a plan of liquidation by, the Company or (ii) any transaction, event
or circumstance pursuant to which any "person" or "group" (as such terms are
used for purposes of Sections 13(d) and 14(d) of the Exchange Act, whether or
not applicable), other than TCR Holding, Trust Company of the West or ▇▇▇▇▇▇▇▇▇
& Company, Inc. or any of their respective Affiliates, is or becomes the
"beneficial owner" (as that term is used in Rules 13d-3 and 13d-5 under the
Exchange Act, whether or not applicable), directly or indirectly, of more than
50% of the total voting power of the Company's then outstanding Voting Stock;
provided that the transactions contemplated by the Transaction to occur on the
Issue Date will be deemed not to constitute a Change of Control.
"CHANGE OF CONTROL OFFER" shall have the meaning specified in Section
4.17.
"CHANGE OF CONTROL PAYMENT DATE" shall have the meaning specified in
Section 4.17.
"CHANGE OF CONTROL PURCHASE PRICE" shall have the meaning specified in
Section 4.17.
"CLOSING DATE" shall mean December 15, 1998.
"COLLATERAL" means (x) the assets of the Company that are mortgaged or
pledged to the Trustee as security for the Notes or in which a security interest
is otherwise granted in accordance with the Security Documents and (y) the
assets of the Guarantors that are mortgaged or pledged to the Trustee as
security for the Guarantees; subject to the release and subordination provisions
in Section 11.
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"COMMISSION" means the Securities and Exchange Commission and any
successor agency thereof.
"COMMON STOCK" means the TransContinental's common stock, $0.01 par
value.
"COMPANY" means the party named as such in this Indenture until a
successor or permitted assign replaces it pursuant to this Indenture (including,
without limitation, TransContinental, upon consummation of the Transaction on
the Issue Date and the transactions contemplated by the Asset Sale Agreements)
and thereafter means such successor or permitted assign.
"COMPANY ORDER" means a written request or order signed in the name of
the Company by any one of its Chairman of the Board, its President or a Vice
President (regardless of vice presidential designation), and by any one of its
Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and
delivered to the Trustee.
"CONSOLIDATED ADJUSTED EBITDA" of any Person for any period, unless
otherwise provided herein, means (a) the Consolidated Net Income of such Person
for such period minus the amount that the Board of Directors of the Company
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 such Person
and its consolidated Subsidiaries, (ii) depreciation, depletion, and
amortization of such Person and its consolidated Subsidiaries (but not in excess
of such Person's pro rata share of depreciation, depletion and amortization of
any such Subsidiary) for such period and (iii) Consolidated Fixed Charges of
such Person for such period, determined, in each case, on a consolidated basis
for such Person and its consolidated Subsidiaries in accordance with GAAP.
"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) the aggregate amount of Consolidated Adjusted 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
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 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
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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 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.
"CONSOLIDATED FIXED CHARGES" of any Person for any period means (without
duplication) the sum of (i) Consolidated Interest Expense of such Person for
such period, (ii) dividend requirements of such Person and its consolidated
Subsidiaries (whether in cash or otherwise (except dividends payable solely in
shares of Qualified 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 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 such Person 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 such Person and its Subsidiaries (expressed as a decimal), on
a consolidated basis, for the fiscal year immediately preceding the date of the
transaction giving rise to the need to calculate Consolidated Fixed Charges.
"CONSOLIDATED INTEREST EXPENSE" of any Person 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 such Person and its consolidated Subsidiaries (including (i)
amortization of deferred financing costs and original issue discount and
non-cash interest payments or accruals, (ii) the interest portion of all
deferred payment obligations, calculated in accordance with the effective
interest method and (iii) all commissions, discounts, other fees, and charges
owed with respect to letters of credit and banker's acceptance financing and
costs associated with Swap Obligations, in each case to the extent attributable
to such period) determined on a consolidated basis in accordance with GAAP. For
purposes of this definition, (x) interest on a Capitalized Lease Obligation
shall be deemed to accrue at an interest rate reasonably determined to be the
rate of interest implicit in such Capitalized Lease Obligation in accordance
with GAAP (including Statement of Financial Accounting Standards No. 13 of the
Financial Accounting Standards Board), and (y) Consolidated Interest Expense
attributable to any Debt represented by the guarantee by such Person or a
Subsidiary of such Person other than with respect to Debt of such Person or a
Subsidiary of such Person shall be deemed to be the interest expense
attributable to the item guaranteed.
"CONSOLIDATED NET INCOME" of any Person for any period means the net
income (loss) of such Person 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), including,
without limitation gains (but not losses) arising from Asset Sales, Sale and
Leaseback Transactions, dispositions of securities and extinguishment of Debt,
(ii) the net income, if positive, of any other Person, other than a consolidated
Subsidiary, in which such
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Person 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
such Person or a consolidated Subsidiary of such Person during such period, but
not in excess of such Person'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 such Person 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.
"CONSTRUCTION COLLATERAL AND DISBURSEMENT AGREEMENT" means the
Construction Collateral and Disbursement Agreement of even date with this
Indenture among the Company, the securities intermediary, the Trustee, the
Disbursement Agent and the Independent Engineer, as amended, supplemented or
otherwise modified from time to time in accordance with the terms of this
Indenture and the other Security Documents.
"CONSTRUCTION DISBURSEMENT ACCOUNT" means that certain account, to be
maintained by the Disbursement Agent pursuant to the terms of the Construction
Collateral and Disbursement Agreement, into which the net proceeds will be
deposited from (i) the sale of the Notes, (ii) in certain circumstances the Port
Commission Bond Financing and (iii) any other financing (other than purchase
money financing) conducted by the Company for the purpose of completion of Phase
I and Phase II, except in the case of the foregoing clauses (ii) and (iii) to
the extent such proceeds are set aside to fund a reserve required by the terms
of such financing.
"CRUDE UNIT" means the No. 2 Crude Unit constructed as part of the
Capital Improvement Program.
"CUSTODIAN" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
"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 Swap
Obligations, (d) for the payment of money relating to a Capitalized Lease
Obligation and (e) the Attributable Debt associated with 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
(other than Permitted Liens, except to the extent the obligations secured by
such Permitted Liens are otherwise included in
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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.
"DEFAULT" means an event or condition, the occurrence of which is, or
with the lapse of time or giving of notice or both would be, an Event of
Default.
"DEFAULTED INTEREST" shall have the meaning specified in Section 2.12.
"DEFINITIVE NOTES" means Notes that are in the form of the Notes
attached hereto as Exhibit A, and that do not include the information called for
by footnotes 1 and 2 thereof.
"DELAYED COKING UNIT" means the delayed coking unit being constructed as
part of the Capital Improvement Program.
"DEPOSITORY" means the Person specified in Section 2.3 as the Depository
with respect to the Notes issuable in global form, until a successor shall have
been appointed and become such pursuant to the applicable provision of this
Indenture, and, thereafter, "Depository" shall mean or include such successor.
"DIRECT PURCHASERS" means the Holders who purchase the Notes on the
Issue Date directly from the Company.
"DISBURSEMENT AGENT" means The Bank of New York, together with its
successors in such capacity.
"DISQUALIFIED CAPITAL STOCK" means, with respect to any Person, any
Capital Stock of such Person 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 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 December 1, 2003.
"DTC" means The Depository Trust Company.
"ELIGIBLE INSTITUTION" means a commercial banking institution that has
combined capital and surplus of not less than $250,000,000 and that is rated "A"
(or higher) according to ▇▇▇▇▇'▇ Investors Service, Inc. or Standard & Poor's
Corporation, Inc. at the time as of which any Investment or rollover of any
Investment therein is made.
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"ENVIRONMENTAL APPROVALS" means Governmental Approvals required under
applicable Environmental Laws.
"ENVIRONMENTAL LAWS" means any and all Federal, state and local Laws (as
well as obligations, duties and requirements to avoid liability under common
law) relating to: (a) emissions, discharges, spills, releases or threatened
releases of pollutants, contaminants, Hazardous Materials, materials containing
Hazardous Materials or hazardous or toxic materials or wastes into ambient air,
surface water, groundwater, watercourses, publicly or privately-owned treatment
works, drains, sewer systems, wetlands, septic systems or onto land surface or
subsurface strata; (b) the use, treatment, storage, disposal, handling,
manufacturing, transportation or shipment of Hazardous Materials, materials
containing Hazardous Materials or hazardous and/or toxic wastes, materials,
substances, products or by-products (or of equipment or apparatus containing
Hazardous Materials); (c) pollution or the protection of human health, the
environment or natural resources; or (d) zoning and land use.
"EQUIPMENT" means and includes all of the Company's or any of its
Subsidiaries' now owned or hereafter acquired Vehicles, rolling stock and
related equipment, construction equipment and other assets accounted for as
equipment by the Company or its Subsidiaries in its financial statements, all
proceeds thereof (from insurance or otherwise), and all documents of title,
books, records, ledger cards, files, correspondence and computer files, tapes,
disks and related data processing software that at any time evidence or contain
information relating to the foregoing; provided that "Equipment" shall not
include any assets constituting part of the Company's Refinery or fixed assets
used in the Company's processing or storage operations.
"EVENT OF DEFAULT" shall have the meaning specified in Section 6.1.
"EVENT OF LOSS" means, with respect to any Collateral, any of the
following: (i) any loss, destruction or damage of such Property or asset; (ii)
any actual condemnation, seizure or taking by exercise of the power of eminent
domain or otherwise of such Property or asset, or confiscation of such Property
or asset or the requisition of the use of such Property or asset; or (iii) any
settlement in lieu of clause (ii) above or with respect to the institution of
any proceedings for any such condemnation, seizure, taking, confiscation or
requisition.
"EVENT OF LOSS OFFER" shall have the meaning specified in Section 4.23.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated by the Commission thereunder.
"EXCHANGE AND REGISTRATION RIGHTS AGREEMENT" means the Exchange and
Registration Rights Agreement entered into among TARC, TCR Holding, certain
holders of Capital Stock of TCR Holding and TransContinental Participating
Preferred Stock dated as of the Issue Date.
"EXCHANGE OFFER" means the offer that may be made by the Company
pursuant to the Registration Rights Agreement to exchange Series B Notes for
Series A Notes.
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"EXPENSE REIMBURSEMENT AGREEMENT" means the Expense Reimbursement
Agreement among TEC, TARC, TCR Holding and TransContinental.
"FIRST LIEN DEBT" means any Debt or other obligation secured by a
Permitted Lien described in clause (c), (d), (f), (g), (h), (i), (j), (l), (n),
(o), (p) (to the extent that the Incurrence of the Permitted Lien to which such
clause (p) relates is one of the other clauses listed here), (q) and (t) of the
definition of "Permitted Liens," including, in each case, any refinancings
thereof.
"FLUID CATALYTIC CRACKING UNIT " means the MSCC(sm) Fluid Catalytic
Cracking Unit being constructed as part of the Capital Improvement Program.
"GAAP" means generally accepted accounting principles as in effect in
the United States on the Issue Date applied on a basis consistent with that used
in the preparation of the audited financial statements of the Company
incorporated by reference in the Offering Circular.
"GLOBAL NOTE" means a Note in the form of the Note attached hereto as
Exhibit A and that contains the paragraph referred to in footnote 1 and the
additional schedule referred to in footnote 2.
"GOVERNMENTAL APPROVALS" means any authorization, application, consent,
approval, order, consent decree, license, franchise, lease, ruling, permit,
tariff, rate, certification, exemption, filing or registration by or with any
Governmental Authority (including, without limitation, Environmental Approvals,
zoning variances, special exceptions and non-conforming uses) relating to the
construction, ownership, operation or maintenance of the Refinery.
"GOVERNMENTAL AUTHORITY" means any government, governmental or
quasi-governmental department, ministry, commission, board, bureau, agency,
regulatory authority, instrumentality of any government (central or local),
judicial, legislative or administrative body, domestic or foreign, federal,
state or local, having jurisdiction over the Person or matter in question.
"GUARANTEE" means any guarantee of the obligations of the Company under
this Indenture by any Guarantor.
"GUARANTOR" means each of TransContinental's Subsidiaries that becomes a
guarantor of the Notes in compliance with the provisions of this Indenture.
"HAZARDOUS MATERIALS" means (i) hazardous materials, hazardous wastes,
hazardous substances, extremely hazardous wastes, restricted hazardous wastes,
toxic substances, toxic pollutants, contaminants, pollutants or words of similar
import, as used under Environmental Laws, including but not limited to the
following: the Hazardous Materials Transportation Act, 49 U.S.C. 5101 et seq.,
the Resource Conservation and Recovery Act, 42 U.S.C. 6901 et seq., the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42
U.S.C. 9601 et seq., the Federal Water Pollution Control Act, 33 U.S.C. 1251 et
seq., the Clean Air Act, 42 U.S.C. Section 7401 et seq., the Toxic Substances
Control Act, 15 U.S.C. 2601 et seq., the Safe
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18
Drinking Water Act, 42 U.S.C. Section 300f et seq., and the Oil Pollution Act,
33 U.S.C. Section 2701 et seq., as each may be amended from time to time, and
their state and local counterparts or equivalents; (ii) petroleum, petroleum
products, by-products and wastes, including crude oil and any fractions thereof;
(iii) natural gas, synthetic gas and any mixtures or liquids thereof; (iv)
Asbestos and/or any material which contains any hydrated mineral silicate,
whether friable or nonfriable; (v) polychlorinated biphenyls ("PCBs"), or
PCB-containing materials or fluids; (vi) radon; (vii) any other hazardous
radioactive, toxic or noxious substance, material, pollutant, or solid, liquid
or gaseous waste; and (viii) any substance that, whether by its nature or its
use, is subject to regulation under any Environmental Law or with respect to
which any Federal, state or local Environmental Law or governmental agency
requires environmental investigation, monitoring or remediation.
"HDS UNIT" means the hydrodesulfurization unit being constructed as part
of the Capital Improvement Program.
"HOLDER" means the Person in whose name a Note is registered on the
Registrar's books.
"INCUR" or, as appropriate, "INCURRENCE" shall have the meaning
specified in Section 4.11.
"INDENTURE" means this Indenture, as amended or supplemented from time
to time in accordance with the terms hereof.
"INDEPENDENT ENGINEER" means ▇▇▇▇▇▇, ▇▇▇▇▇ & Company and any successor
independent engineer appointed in accordance with the terms of the Construction
Collateral and Disbursement Agreement.
"INSURANCE PROCEEDS" means the interest in and to all proceeds (net of
costs of collection, including reasonable 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 or any Guarantor in connection with any Collateral,
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 Collateral.
"INTEREST PAYMENT DATE" means the stated due date of an installment of
interest on the Notes.
"INTEREST RATE OR CURRENCY AGREEMENT" of any Person means any forward
contract, futures contract, swap, option or other financial agreement or
arrangement (including, without limitation, caps, floors, collars, puts and
similar agreements) relating to, or the value of which is dependent upon,
interest rates or currency exchange rates.
"INVENTORY" means and includes, as to any Person, all now owned or
hereafter acquired feedstock, raw materials, work or materials in process and
refined petroleum products, all proceeds thereof (from insurance or otherwise),
all documents of title,
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(excluding copies thereof retained by such Person) and copies of each of the
following (excluding copies thereof retained by such Person): all books,
records, ledger cards, files and correspondence that at any time evidence or
contain information relating to the foregoing.
"INVESTMENT" by any Person in any other Person means: (a) the
acquisition (whether for cash, Property, services, securities or otherwise) of
capital stock, bonds, notes, debentures, partnership, or other ownership
interests or other securities of such other Person or any agreement to make any
such acquisition; (b) the making by such Person of any deposit with, or advance,
loan or other extension of credit to such other Person (including the purchase
of Property from another Person subject to an understanding or agreement,
contingent or otherwise, to resell such Property to such other Person) and
(without duplication) any amount committed to be advanced, loaned or extended to
such other Person; (c) the entering into of any guarantee of, or other
contingent obligation with respect to, Debt or other liability of such other
Person; (d) the entering into of any Swap Obligation with such other Person; or
(e) the making of any capital contribution by such Person to such other Person.
"INVESTMENT GRADE RATING" means, with respect to any Person or issue of
debt securities or preferred stock, a rating in one of the four highest letter
rating categories (without regard to "+" or "--" or other modifiers) by any
rating agency or if any such rating agency has ceased using letter rating
categories or the four highest of such letter rating categories are not
considered to represent "investment grade" ratings, then the comparable
"investment grade" ratings (as designated by any such rating agency).
"ISSUE DATE" means the date of first issuance of the Notes under this
Indenture.
"LAW" means any statute, law, rule, regulation, ordinance, order, code,
policy or rule of common law or any published guideline or policy having the
force of law, now or hereafter in effect, and any judicial or administrative
interpretation thereof by a Governmental Authority or otherwise, including any
judicial or administrative order, consent decree or judgment.
"LEGAL HOLIDAY" shall have the meaning specified in Section 12.7.
"LIEN" means any mortgage, lien, pledge, charge, security interest, or
other encumbrance of any kind, regardless of whether filed, recorded, or
otherwise perfected under applicable law (including any conditional sale or
other title retention agreement and any lease deemed to constitute a security
interest and any option or other agreement to give any security interest).
"MAINTENANCE CAPITAL EXPENDITURE" means those expenditures that would be
classified as Capital Expenditures under GAAP and that are required to maintain
the operation of the Refinery.
"MAJORITY HOLDERS" means (i) at any time that the Direct Purchasers hold
25% or more of the aggregate principal amount of the Notes outstanding at the
time, the Direct Purchasers holding not less than a majority in the aggregate
principal amount of all Notes outstanding at the time held by all Direct
Purchasers and (ii) at any time that the Direct Purchasers hold less than 25% of
the aggregate principal amount of the Notes outstanding at the time, the Holders
holding
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not less than a majority in the aggregate principal amount of all Notes
outstanding at the time held by all Holders.
"MATERIAL ADVERSE CHANGE" means a material adverse change in, or effect
on, (a) the financial position, business prospects, results of operations or
business of the Company, (b) the ability of the Company to complete Phase I by
the Phase I Completion Date or Phase II by the Phase II Completion Date, (c) the
ability of the Company to complete the Capital Improvement Program in accordance
with the construction schedule therefor, as such schedule may be amended from
time to time with the approval of a majority of Board of Directors of the
Company and the Independent Engineer, (d) the Company's ability to perform any
of its material obligations under this Indenture, the Notes, the Security
Documents or the Project Agreements, (e) the validity or priority of the Liens
on the Collateral pursuant to any of the Security Documents or (f) the validity
or enforceability of any of the Security Documents.
"MATURITY DATE," when used with respect to any Note, means the date on
which the principal of such Note becomes due and payable as therein or herein
provided, whether at the Stated Maturity or by declaration of acceleration, call
for redemption or otherwise.
"MORTGAGE" means the Mortgage, Assignment of Leases and Rents, Security
Agreement and Financing Statement from the Company in favor of the Trustee as
amended from time to time in accordance with the terms of this Indenture and the
other Security Documents.
"NAPHTHA PRETREATER" means the naphtha pretreater being constructed as
part of the Capital Improvement Program.
"NET CASH PROCEEDS" means an amount equal to the aggregate amount of
cash received by the Company and its Subsidiaries in respect of an Asset Sale,
less the sum of (i) all reasonable out-of-pocket fees, commissions, and other
expenses incurred in connection with such Asset Sale including the amount
(estimated in good faith by the Company) of income, franchise, sales and other
applicable taxes to be paid, payable or accrued by the Company or any Subsidiary
of the Company (in each case as estimated in good faith by the Company or such
Subsidiary without giving effect to tax attributes unrelated to such Asset Sale)
in connection with such Asset Sale and (ii) the aggregate amount of cash so
received which is used to retire any then existing Debt of the Company or its
Subsidiaries (other than the Notes), as the case may be, which is required by
the terms of such Debt to be repaid in connection with such Asset Sale.
"NET LOSS PROCEEDS" means the aggregate cash proceeds received by the
Company or any of its Subsidiaries in respect of any Event of Loss, including,
without limitation, insurance proceeds, condemnation awards or damages awarded
by any judgment, net of the direct costs of recovery of such Net Loss Proceeds
(including, without limitation, legal, accounting, appraisal and insurance
adjuster fees and any relocation expenses incurred as a result thereof), amounts
required to be applied to the repayment of Debt (to the extent, in the case of
revolving credit Debt, such Debt is permanently reduced) secured by a Lien on
the asset or assets that were the subject of such Event of Loss, and any taxes
paid or payable as a result thereof.
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21
"NET PROCEEDS" means (a) in the case of any sale by a Person of
Qualified Capital Stock, the aggregate net cash proceeds received by such Person
from the sale of Qualified Capital Stock (other than to a Subsidiary) after
payment of reasonable out-of-pocket expenses, commissions and discounts incurred
in connection therewith and (b) in the case of any exchange, exercise,
conversion or surrender of any outstanding securities or Debt of such Person for
or into shares of Qualified Capital Stock of such Person, the net book value of
such outstanding securities as adjusted on the books of such Person or Debt of
such Person to the extent recorded in accordance with GAAP, in each case, on the
date of such exchange, exercise, conversion or surrender (plus any additional
amount required to be paid by the holder of such Debt or securities to such
Person upon such exchange, exercise, conversion or surrender and less (i) any
and all payments made to the holders of such Debt or securities and (ii) all
other expenses incurred by such Person in connection therewith, in each case, in
so far as such payments or expenses are incident to such exchange, exercise,
conversion, or surrender).
"NET WORTH" of any Person means, at any date of determination,
stockholders' equity as set forth on the most recently available quarterly or
annual consolidated balance sheet of such Person and its Subsidiaries (which
shall be as of a date not more than 90 days prior to the date of such
computation), less any amounts included therein attributable to Disqualified
Capital Stock or any equity security convertible into or exchangeable for Debt,
the cost of treasury stock (not otherwise deducted from stockholder's equity),
and the principal amount of any promissory notes receivable from the sale of the
Capital Stock of such Person or any of its Subsidiaries, each item to be
determined in conformity with GAAP.
"NO. 2 REFORMER" means the No. 2 reformer being constructed as part of
the Capital Improvement Program.
"NOTEHOLDER" means the Person in whose name a Note is registered on the
Registrar's book.
"NOTES" means, collectively, the Series A Notes and the Series B Notes
in an aggregate principal amount up to $150,000,000, any Additional Notes in an
aggregate principal amount up to $150,000,000 and any PIK Notes, in each case as
issued or supplemented from time to time in accordance with the terms of this
Indenture.
"OFFERING CIRCULAR" means the final offering circular dated as of
December __, 1998 pursuant to which the Notes were offered.
"OFFICE LEASE" means the lease of the Company's office space at ▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇.
"OFFICER" means, with respect to any Person, the Chairman of the Board,
the Chief Executive Officer, the President, the Chief Operating Officer, the
Chief Financial Officer, the Treasurer, any Assistant Treasurer, the Controller,
the Secretary or any Vice President of such Person.
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22
"OFFICERS' CERTIFICATE" means a certificate signed on behalf of the
Company or a Guarantor, as the case may be, by two Officers of the Company or a
Guarantor, as the case may be, one of whom must be the principal accounting
officer of the Company or a Guarantor, as the case may be, that meets the
requirements of Sections 12.4 and 12.5.
"OPINION OF COUNSEL" means a written opinion from legal counsel,
reasonably acceptable to the Trustee, complying with the requirements of
Sections 12.4 and 12.5 and the TIA.
"PAYING AGENT" shall have the meaning specified in Section 2.3.
"PERMITTED HEDGING TRANSACTIONS" means non-speculative transactions in
futures, forwards, swaps or option contracts (including both physical and
financial settlement transactions) engaged in by the Company or its Subsidiaries
as part of their normal business operations as a risk-management strategy or
hedge against adverse changes in the prices of natural gas, feedstock or refined
products; provided that, at the time of such transaction (i) the counter party
to any such transaction is an Eligible Institution or a Person that has an
Investment Grade Rating or has an issue of debt securities or preferred stock
outstanding with an Investment Grade Rating or (ii) such counter-party's
obligation pursuant to such transaction is unconditionally guaranteed in full
by, or secured by a letter of credit issued by, an Eligible Institution or a
Person that has an Investment Grade Rating or that has an issue of debt
securities or preferred stock outstanding with an Investment Grade Rating.
"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) Investments in Cash Equivalents; (iii) Swap Obligations; (iv) the
receipt of Capital Stock in lieu of cash in connection with the settlement of
litigation; (v) 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 $1,000,000 in the aggregate outstanding at any time; (vi) margin
deposits in connection with Permitted Hedging Transactions; (vii) Investments
made as a part of the Transaction on the Issue Date; (viii) deposits permitted
by the definition of Permitted Liens or any extension, renewal or replacement of
any of them; (ix) other Investments not in excess of $1,000,000 in the aggregate
outstanding at any one time; (x) a guaranty by the Company or any Subsidiary of
the Company permitted under Section 4.11; (xi) bonding or similar arrangements
securing Debt permitted under Section 4.11; and (xii) Investments (except of
Property comprising the Refinery) in Guarantors wholly-owned by the Company.
"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 any of the Company and 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 any of the Company and its Subsidiaries in
accordance with GAAP; (c) deposits of cash or Cash Equivalents to secure (i) the
performance of
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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
$5,000,000 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 Company and its Subsidiaries) or materially
interfere with the ordinary conduct of the business of any of the Company and
its Subsidiaries, including, without limitation, any easement or servitude
granted in connection with the Port Commission Bond Financing, the Substation
Financing or the financing of the Tank Storage Debt or any Debt permitted to be
Incurred as described in clause (c) of Section 4.11; (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)
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; (g) Liens on Equipment,
Receivables and Inventory; (h) Liens on the assets of any entity existing at the
time such assets are acquired by any of the Company or its Subsidiaries, 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 Company or its Subsidiaries and (ii) do not extend to any
other assets of any of the Company and its Subsidiaries (unless such extension
or coverage would otherwise constitute a Permitted Lien); (i) Liens (including
extensions and renewals thereof) on real or personal property, acquired after
the Issue Date ("NEW PROPERTY"); provided 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
operation of such New Property, (ii) the principal amount of the Debt secured by
such Lien does not exceed 100% of such cost plus reasonable financing fees and
other associated reasonable out-of-pocket expenses, (iii) any such Lien shall
not extend to or cover any Property or assets other than such item of New
Property and any improvements on such New Property (unless such extension or
coverage would otherwise constitute a Permitted Lien) and (iv) such Lien does
not extend to assets or Property which are part of the fixed refinery assets
that are part of the Capital Improvement Program (unless such extension or
coverage would otherwise constitute a Permitted Lien); (j) leases or subleases
granted to others that do not materially interfere with the ordinary course of
business of any of the Company and its Subsidiaries, taken as a whole; (k) Liens
on the assets of the Company in favor of any Guarantors or on the assets of any
Guarantors in favor of any other of the Company and any Guarantors; (l) 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; (m) 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; (n) Liens encumbering customary
initial deposits and margin deposits securing Swap
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Obligations or Permitted Hedging Transactions and Liens encumbering contract
rights in connection with Permitted Hedging Transactions; (o) Liens on cash
deposits to secure reimbursement obligations with respect to letters of credit;
(p) Liens on (i) the proceeds of any Property subject to a Permitted Lien or
deposit accounts containing any such proceeds, (ii) the proceeds of any Property
that is not Collateral or deposit accounts containing any such proceeds and
(iii) the proceeds of Debt permitted to be Incurred pursuant to Section 4.11 to
the extent such proceeds are set aside to fund a reserve required by the terms
of such financing or deposit accounts containing any such proceeds; (q) Liens
imposed on the Port Facility Assets; (r) any extension, renewal or replacement
of the Liens created pursuant to any of clauses (a) through (f), (h) through (q)
or (t) through (w); provided that such Liens would have otherwise been permitted
under such clauses, and provided further that the Liens permitted by this clause
(r) do not secure any additional Debt or encumber any additional Property; (s)
Liens created by the Security Documents; (t) Liens on the Tank Storage Facility
for the purpose of securing the Tank Storage Debt; (u) Liens granted to secure
any Debt permitted to be incurred pursuant to clauses (c), (d), (j) and (l) of
Section 4.11, provided that the Debt secured by such Liens will rank pari passu
with or subordinate to the Notes; and (v) other Liens securing Debt or other
obligations with an aggregate principal amount or value not in excess of
$1,000,000 at any one time outstanding.
"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.
"PHASE I" has the meaning given to it in the Offering Circular under the
heading "Business -- Capital Improvement Program."
"PHASE I COMPLETION DATE" means the date on which the Independent
Engineer issues a written notice (the "PHASE I COMPLETION NOTICE") to the
Company and the Disbursement Agent certifying that the Phase I Performance Test
has been completed and that the portion of the Refinery comprising Phase I has
been constructed in accordance with the Plans with respect to Phase I (and the
cost therefor from and including November 1, 1998 has not exceeded the amount
budgeted therefor (including contingency amounts) as set fourth in the Budget by
more than $1,000,000), and that all mechanic's Liens with respect to Phase I
have been fully and finally released or amounts remain in the Construction
Disbursement Account which, together with an amount equal to 50% of Projected
Net Operating Cash Flow for the next 90 day period, are sufficient to pay in
full the amounts claimed by the beneficiaries of all such Liens, provided that,
for purposes of this definition of "Phase I Completion Date," Phase I shall
exclude the No. 2 Reformer.
"PHASE I PERFORMANCE TEST" means, for a period of at least 72
uninterrupted hours, the Refinery has simultaneously averaged (i) at least
150,000 barrels per day Crude Unit throughput while processing a combined
feedstock slate with an API gravity of 22 degrees or less, (ii) vacuum tower
operations at rates equivalent to 100% of the Crude Unit bottoms yield, (iii)
Delayed Coking Unit operations at rates equivalent to 100% of the vacuum tower
bottoms yield, (iv) operation of the HDS Unit at a rate of 60,000 barrels per
day, and (v) operation of the sulfur recovery system, including the Claus Units
and tailgas treater, at levels sufficient to preclude flaring or hydrogen
sulfide.
-▇▇-
▇▇
"▇▇▇▇▇ ▇▇" has the meaning given to it in the Offering Circular under
the heading "Business -- Capital Improvement Program."
"PHASE II COMPLETION DATE" means the date on which the Independent
Engineer issues a written notice (the "Phase II Completion Notice") to the
Company and the Disbursement Agent certifying that the Phase II Performance Test
has been completed and that all Phase II units, including, for this purpose, the
No. 2 Reformer, have been constructed in accordance with the Plans therefor (and
the cost therefor from and including November 1, 1998 has not exceeded the
amount budgeted therefor (including contingency amounts) as set forth in the
Budget by more than the sum of $6,000,000 and the amount, if any, by which the
amount budgeted for Phase I (including contingency amounts) as set forth in the
Budget exceeds the actual cost of Phase I from and including November 1, 1998)
and that all mechanic's Liens have been fully and finally released or that
amounts remain in the Construction Disbursement Account which, together with an
amount equal to 50% of Projected Net Operating Cash Flow for the next 90 day
period, are sufficient to pay in full the amounts claimed by the beneficiaries
of all such Liens.
"PHASE II MECHANICAL COMPLETION DATE" means the date on which the
Independent Engineer issues a written notice to the Company certifying that the
portion of the Refinery comprising Phase II has been sufficiently constructed in
accordance with the Plans with respect to Phase II to begin commissioning.
"PHASE II PERFORMANCE TEST" means that (a) for a period of at least 72
uninterrupted hours, the Refinery has simultaneously averaged (i) at least
180,000 barrels per day Crude Unit throughput while processing a combined
feedstock slate with an API gravity of 22 degrees or less, (ii) liquid yield of
at least 94.0 volume percent of total refinery feedstock, with all facilities
included in the Capital Improvement Program operating, and (iii)
on-specification light transportation fuels (combined gasoline, No. 2 diesel,
No. 2 heating oil and kerosene) production of 117,000 barrels per day, and (b)
for a minimum period of at least 24 hours, the Refinery has simultaneously
averaged on (i) the Delayed Coking Unit at 65,000 barrels per day of feed and
4,000 tons per day of coke production (may be separate demonstrations), (ii) the
Fluid Catalytic Cracking Unit at 100,000 barrels per day of feed with an average
▇▇▇▇▇▇▇▇▇ carbon of 1.8%, (iii) the naphtha pretreater at 30,000 barrels per day
of feed, (iv) the No. 2 Reformer at 12,000 barrels per day of feed, and (v) the
sulfur recovery system including the Claus Units and tailgas treater at combined
rates of 370 long tons per day of sulfur.
"PHASE II MECHANICAL COMPLETION DATE" means the date on which the
Independent Engineer issues a written notice to the Company certifying that the
portion of the Refinery comprising Phase II has been sufficiently constructed in
accordance with the Plans with respect to Phase II to begin commissioning.
"PIK NOTES" shall have the meaning specified in Section 2.15.
"PLANS" means (a) the plans and specifications prepared by or on behalf
of the Company, in the form delivered to the Trustee and the Independent
Engineer on the Issue Date and which describe and show the proposed expansion
and modification of the Refinery and (b) a budget prepared by or on behalf of
the Company; in each case, as amended, supplemented or otherwise modified from
time to time by the Board of Directors of the Company by resolutions and as
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approved by the Independent Engineer in writing; provided that the Plans with
respect to Phase I and Phase II will not be amended without the consent of the
Majority Holders in accordance with the terms of this Indenture.
"PORT COMMISSION BOND FINANCING" means a financing transaction involving
the transfer (including by sale, lease, Lien or mortgage) of the Company's
interest in all or some of the Port Facility Assets (together with the granting,
at the Company's discretion, of any easements or servitudes or similar rights
reasonably necessary to the ownership and operation of such assets by the
transferee) or a financing secured by the Port Facility Assets.
"PORT FACILITY ASSETS" means some or all of (i) the Prospect Road tank
farm; (ii) certain docks and dock improvements; (iii) the dock vapor recovery
system; (iv) the coke handling system; (v) the refinery waste water treatment
facility; (vi) tankage for liquefied petroleum gas; and (vii) tankage for crude
oil.
"PREFERRED STOCK" means, with respect to any corporation, any class or
classes (however designated) of Capital Stock of such Person 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 such corporation over
shares of Capital Stock of any other class of such corporation.
"PROJECT" means the construction and commissioning of assets in the
Capital Improvement Program.
"PROJECT AGREEMENTS" means each of (i) the Construction Services
Agreement, dated October 1, 1998, as amended, between the Company and ▇▇▇▇
Constructors, Inc., (ii) the Engineering Services Agreement dated May 25, 1995,
as amended, between the Company and Raytheon Engineers & Constructors, Inc., and
(iii) the Agreement for Engineering, Procurement and Construction Services dated
June 6, 1995, as amended, between the Company and Fluor ▇▇▇▇▇▇, Inc., each as
amended from time to time in accordance with Section 4.28.
"PROJECTED NET OPERATING CASH FLOW" means projected Consolidated Net
Income for such period (i) plus projected depreciation, depletion and
amortization for such period, (ii) plus projected non-cash interest for such
period, (iii) minus projected Maintenance Capital Expenditures for such period
and (iv) plus projected non-cash deferred taxes for such period, in each case as
determined by the Company's Board of Directors and approved by the Independent
Engineer.
"PROPERTY" means any right or interest in or to property or assets of
any kind whatsoever, whether real, personal or mixed and whether tangible or
intangible.
"QIB" means "qualified institutional buyer" as defined in Rule 144A.
"QUALIFIED CAPITAL STOCK" means any Capital Stock that is not
Disqualified Capital Stock.
"RECEIVABLES" means and includes, as to any Person, the right to receive
payment for any feedstock or refined petroleum products sold by such Person.
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"RECORD DATE" means a Record Date specified in the Notes regardless of
whether such Record Date is a Business Day.
"REDEMPTION DATE" means, when used with respect to any Note to be
redeemed, the date fixed for such redemption pursuant to this Indenture and
Paragraph 5 in the form of Note attached hereto as Exhibit A.
"REDEMPTION PRICE" when used with respect to any Note to be redeemed,
means the redemption price for such redemption pursuant to Paragraph 5 in the
form of Note attached hereto as Exhibit A, which shall include, without
duplication, in each case, accrued and unpaid interest to the Redemption Date.
"REFERENCE PERIOD" with regard to any Person means the four full fiscal
quarters of such Person ended on or immediately preceding any date upon which
any determination is to be made pursuant to the terms of the Notes or this
Indenture.
"REFINANCING DEBT" shall have the meaning specified in Section 4.11(g).
"REFINERY" means the Company's refinery located in St. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
Louisiana as more particularly described in the Mortgage.
"REGISTRAR" shall have the meaning specified in Section 2.3.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights Agreement
in connection with the registration under federal securities laws of the Notes
and between the Company and the initial Holders, as in effect on the Issue Date
and as amended from time to time.
"RELATED BUSINESS" means the business of (i) processing, blending,
terminaling, storing, marketing, refining or distilling crude oil, condensate,
natural gas liquids, petroleum blendstocks or refined products thereof and (ii)
after the Phase II Completion Date, the exploration for, acquisition of,
development of, production, transportation and gathering of crude oil, natural
gas, condensate and natural gas liquids from outside of the United States and
retail marketing of refined petroleum products.
"RELATED PERSON" means (i) any Person 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 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
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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); provided
that the initial Holders and their respective Affiliates and any transferees
that are not Affiliates of such Persons will be deemed not to constitute Related
Persons.
"RELATED PERSON TRANSACTION" shall have the meaning specified in Section
4.10.
"RELEASE", when used in connection with any Hazardous Material, means
and includes any release, spill, emission, leaking, pumping, injection, deposit,
disposal, discharge, dispersal, leaching or migration, where such release is
either regulated by applicable Environmental Law or may serve as the basis for
liability.
"RELEASE REQUEST" means a written request of the Company (or with
respect to the Security Documents, the grantor of the security interest
thereunder) in the form of an Officers' Certificate delivered pursuant to
Article XI.
"RELIABILITY TEST" means a demonstration, certified by the Independent
Engineer, made no later than June 30, 2001 over a 12 calendar month consecutive
period that (i) the Delayed Coking Unit and Fluid Catalytic Cracking Unit were
mechanically available for operation a minimum of 330 calendar days and that all
other Refinery units were mechanically available for a minimum of 345 calendar
days, and (ii) the following minimum cumulative throughputs were achieved:
UNIT THOUSAND
---- BARRELS
-------
Delayed Coking Unit.................. 18,500
Fluid Catalytic Cracking Unit........ 30,000
HDS Unit............................. 18,500
"REQUIRED PHASE I COMPLETION DATE" means April 30, 1999.
"RESTRICTED INVESTMENT" means any direct or indirect Investment by the
Company or any Subsidiary of the Company other than a Permitted Investment.
"RESTRICTED NOTES" means Notes that bear or are required to bear the
legends set forth in Exhibit A.
"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 or any Subsidiary 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 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
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Subordinated Debt; provided, however, that the term "Restricted Payment" does
not include (a) 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, (b) any dividend,
distribution, or other payment to the Company from any of its Subsidiaries, (c)
any defeasance, redemption, repurchase, or other acquisition or retirement for
value, in whole or in part, of any Subordinated Debt of such Person payable
solely in shares of Qualified Capital Stock of such Person, (d) any payments or
distributions made pursuant to and in accordance with the Asset Sale Agreements,
the Services Agreement, the Office Lease, the Expense Reimbursement Agreement,
the Secondment Agreement and the Tax Allocation Agreement, (e) 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 clause (g) of Section 4.11, (f) any dividend, distribution or other
payment by the Company to the holders of TransContinental's 6% Participating
Preferred Stock, par value $.01 per share, in accordance with the Certificate of
Designation as in effect on the Issue Date or other shares of Preferred Stock
issued in connection with the issuance of Additional Notes issued after the
Issue Date and (g) any payment made as part of the Transaction on the Issue
Date.
"RULE 144A" means Rule 144A under the Securities Act, as such Rule may
be amended from time to time, or under any similar rule or regulation hereafter
adopted by the Commission.
"SALE AND LEASEBACK TRANSACTION" means an arrangement relating to
Property owned on the Issue Date or thereafter acquired whereby the Company or a
Subsidiary of the Company transfers such Property to a Person and leases it back
from such Person.
"SECONDMENT AGREEMENT" means the Secondment Agreement between TransTexas
and TARC, as amended from time to time; provided that any such amendment is not
materially adverse to the Holders of the Notes.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder.
"SECURITY AGREEMENT" means the Security Agreement of even date with this
Indenture between the Company and the Trustee, as amended from time to time in
accordance with the terms of this Indenture and the other Security Documents.
"SECURITY DOCUMENTS" means this Indenture, the Security Agreement, the
Mortgage, the Construction Collateral and Disbursement Agreement and any other
ancillary documents under which security for repayment of the Notes is provided.
"SECURITY INTERESTS" means the Liens on the Collateral created by the
Security Documents in favor of the Trustee for the benefit of the Holders.
"SERIES A NOTES" means the Company's 15% Series A Senior Secured Notes
due 2003, as authenticated and issued under this Indenture.
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"SERIES B NOTES" means the Company's 15% Series B Senior Secured Notes
due 2003, as authenticated and issued under this Indenture.
"SERVICES AGREEMENT" means the Amended and Restated Services Agreement
among TNGC Holdings Corporation and certain of its Affiliates, TARC, TCR
Holding, TransContinental and TransTexas, as in effect on the Issue Date and as
amended from time to time, provided that any such amendment is not materially
adverse to the holders of the Notes.
"SITE" means the tracts of land or interests therein located in St.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Louisiana, which are more particularly described in the Mortgage
and that certain lease dated July 24, 1994 between ▇▇▇▇▇▇▇ ▇▇▇▇ and TARC.
"SPECIAL RECORD DATE" for payment of any Defaulted Interest means a date
fixed by the Trustee pursuant to Section 2.12.
"STATED MATURITY," when used with respect to any Note, means December 1,
2003.
"STOCKHOLDERS AGREEMENTS" means the Stockholders Agreements of even date
with this Indenture entered into among certain of TransAmerican, TEC, TARC, TCR
Holding, TransContinental and certain purchasers named therein, as amended from
time to time.
"SUBORDINATED DEBT" means Debt of the Company that (i) requires no
payment of principal prior to or on the date on which all principal of and
interest on the Notes is paid in full and (ii) is subordinate and junior in
right of payment to the Notes in the event of a liquidation.
"SUBSIDIARY" means, with respect to any Person, (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.
"SUBSTATION ASSETS" means certain transformers, switch gear and other
high-voltage electrical equipment and related facilities that constitute the
Prospect Avenue Substation, the Good Hope Substation and the primary electrical
distribution system of the Refinery.
"SUBSTATION FINANCING" means a sale-leaseback or other financing or
disposition with respect to the Substation Assets.
"SUBSTITUTE COLLATERAL" means Property that is substituted for
Collateral in accordance with Section 11.5.
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"SULFUR RECOVERY SYSTEM" means the two sulfur units being constructed as
part of the Capital Improvement Program.
"SURVIVING PERSON" shall have the meaning specified in Section 5.1(a).
"SWAP OBLIGATION" of any Person means any Interest Rate or Currency
Agreement entered into with one or more financial institutions or one or more
futures exchanges in the ordinary course of business and not for purposes of
speculation; provided that Swap Obligations will be designed to protect such
Person against fluctuations in (x) interest rates with respect to Debt Incurred
and which shall have a notional amount no greater than 105% of the principal
amount of the Debt being hedged thereby, or (y) currency exchange rates.
"TANK STORAGE DEBT" means the 13% Senior Secured Notes of TARC due 2002
in aggregate principal amount of $36,000,000, to be assumed by TCR Holding (in
connection with the release of TARC from the obligations thereunder) and to be
assumed by TransContinental (in connection with the release of TCR Holding from
the obligations thereunder).
"TANK STORAGE FACILITY" means those tanks, docks, pipelines and
supporting facilities and buildings and associated real property acquired by
TARC pursuant to a purchase agreement dated as of September 19, 1997, together
with all subsequently acquired Property required to be incorporated therein by
the terms of the Tank Storage Debt.
"TARC" means TransAmerican Refining Corporation, a Texas corporation.
"TARC NOTES" means the 16% Senior Subordinated Notes due 2003 of TARC.
"TAX ALLOCATION AGREEMENT" means the Tax Allocation Agreement, dated as
of the Issue Date, between TCR Holding and TransContinental as amended from time
to time; provided that any such amendment is not materially adverse to the
holders of the Notes.
"TCR HOLDING" means TCR Holding Corporation, a Delaware corporation.
"TCR HOLDING INTERCOMPANY OBLIGATIONS" means (a) the dividend obligation
and repayment of the liquidation preference of the participating preferred stock
issued by TCR Holding to TARC with a maximum aggregate liquidation preference of
$1,120,000,000 or the principal and interest payment obligations under any Debt
of TCR Holding issued in exchange for such participating preferred stock in an
aggregate principal amount not in excess of the aggregate liquidation preference
of the then outstanding participating preferred stock for which such debt is
exchanged and (b) the payment obligations of TCR Holding (as assignee) under one
or more promissory notes made by TARC in favor of TEC in an aggregate principal
amount not exceeding $50,000,000 at any one time.
"TEC" means TransAmerican Energy Corporation, a Delaware corporation.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code Sections
77aaa-77bbbb) as in effect on the date of the execution of this Indenture.
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"TRANSACTION" means a series of related transactions as more fully
described in the Offering Circular pursuant to which, among other things, (i)
TARC transfers to TCR Holding the assets comprising the Refinery in exchange for
(x) all of the capital stock of TCR Holding, (y) the assumption by TCR Holding
of substantially all of the debt and other obligations of TARC, other than the
TARC Notes, the debt issued pursuant to the Loan Agreement dated as of June 13,
1997, as amended, between TEC and TARC, and certain accounts payable and other
liabilities and (z) the issuance of preferred stock of TCR Holding to TARC
providing for payment of amounts owed by TARC with respect to the TARC Notes,
(ii) TCR Holding transfers to TransContinental the assets comprising the
Refinery and TransContinental assumes substantially all of the debt and other
obligations of TARC assumed by TCR Holding other than the working capital loan
from TEC to TARC of up to $50,000,000 and (iii) the Holders purchase (x) the
Notes, (y) equity securities issued by TransContinental and (z) TCR Holding
capital stock from TARC.
"TRANSAMERICAN" means TransAmerican Natural Gas Corporation, a Texas
corporation.
"TRANSCONTINENTAL" means TransContinental Refining Corporation, a
Delaware corporation.
"TRANSTEXAS" means TransTexas Gas Corporation, a Delaware corporation.
"TRUSTEE" means The Bank of New York until a successor replaces it in
accordance with the provisions of this Indenture and thereafter means such
successor.
"TRUST OFFICER" means any officer within the corporate trust department
(or any successor group) of the Trustee including any vice president, assistant
vice president, assistant treasurer or any other officer or assistant officer of
the Trustee customarily performing functions similar to those performed by the
Persons who at that time shall be such officers, and also means, with respect to
a particular corporate trust matter, any other officer of the corporate trust
department (or any successor group) of the Trustee to whom such trust matter is
referred because of his knowledge of and familiarity with the particular
subject.
"U.S. GOVERNMENT OBLIGATIONS" means direct non-callable obligations of,
or non-callable obligations guaranteed by, the United States of America for the
payment of which obligation or guarantee the full faith and credit of the United
States of America is pledged.
"U.S. LEGAL TENDER" means such coin or currency of the United States of
America as at the time payment shall be legal tender for the payment of public
and private debts.
"VEHICLES" means all trucks, automobiles, trailers and other vehicles
covered by a certificate of title.
"VOTING STOCK" means Capital Stock of a Person having generally the
right to vote in the election of directors of such Person.
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"WEIGHTED AVERAGE LIFE" means, as of the date of determination, with
respect to any debt instrument, the quotient obtained by dividing (i) the sum of
the products of the numbers of years from the date of determination to the dates
of each successive scheduled principal payment of such debt instrument
multiplied by the amount of such principal payment by (ii) the sum of all such
principal payments.
"YIELD ENHANCEMENT" shall have the meaning specified in the Registration
Rights Agreement.
Section 1.2 Incorporation by Reference of TIA. Whenever this Indenture
refers to a provision of the TIA, such provision is incorporated by reference in
and made a part of this Indenture. The following TIA terms used in this
Indenture have the following meanings:
"INDENTURE SECURITIES" means the Notes.
"INDENTURE SECURITYHOLDER" means a Holder or a Noteholder.
"INDENTURE TO BE QUALIFIED" means this Indenture.
"TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the Trustee.
"OBLIGOR" on the Notes means the Company and any other obligor on the
Notes.
All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by Commission
rule and not otherwise defined herein have the meanings assigned to them
thereby.
Section 1.3 Rules of Construction. Unless the context otherwise
requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and words in
the plural include the singular;
(5) provisions apply to successive events and transactions;
(6) "herein," "hereof" and other words of similar import
refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision; and
(7) references to Sections or Articles means reference to
such Section or Article in this Indenture, unless stated
otherwise.
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ARTICLE II
THE NOTES
Section 2.1 Form and Dating. The Notes and the Trustee's certificate of
authentication, in respect thereof, shall be substantially in the form of
Exhibit A, the terms of which are incorporated in and made a part of this
Indenture. The Notes may have notations, legends or endorsements required by
law, stock exchange rule or usage. The Company and the Trustee shall approve the
form of the Notes and any notation, legend or endorsement on them. Any such
notations, legends or endorsements not contained in the forms of Note attached
as Exhibit A hereto shall be delivered in writing to the Trustee. Each Note
shall be dated the date of its authentication.
The terms and provisions contained in the forms of Note shall
constitute, and are hereby expressly made, a part of this Indenture and, to the
extent applicable, the Company and the Trustee, by their execution and delivery
of this Indenture, expressly agree to such terms and provisions and to be bound
thereby. In the event of any inconsistency between the Notes and this Indenture,
this Indenture controls.
The Notes will be issued (i) in global form (the "GLOBAL NOTE"),
substantially in the form of Exhibit A attached hereto (including the text
referred to in footnotes 1 and 2 thereto) and (ii) in definitive form (the
"DEFINITIVE NOTES"), substantially in the form of Exhibit A attached hereto
(excluding the text referred to in footnotes 1 and 2 thereto). The Global Note
shall represent the aggregate amount of outstanding Notes from time to time
endorsed thereon; provided, that the aggregate amount of outstanding Notes
represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges and redemptions. Any endorsement of the Global
Note to reflect the amount of any increase or decrease in the amount of
outstanding Notes represented thereby shall be made by the Trustee, in
accordance with instructions given by the Holder thereof as required by Section
2.6.
Section 2.2 Execution and Authentication. Two Officers shall sign, or
one Officer shall sign and one Officer or any Assistant Secretary shall attest
to, the Notes for the Company by manual or facsimile signature.
If an Officer whose signature is on a Note was an Officer at the
time of such execution but no longer holds that office at the time the Trustee
authenticates the Note, the Note shall be valid nevertheless and the Company
shall nevertheless be bound by the terms of the Notes and this Indenture.
A Note shall not be valid until an authorized signatory of the
Trustee manually signs the certificate of authentication on the Note but such
signature shall be conclusive evidence that the Note has been authenticated
pursuant to the terms of this Indenture.
The Trustee shall authenticate Notes for original issue in the
aggregate principal amount of up to $150,000,000 and shall authenticate any
other Notes permitted to be issued under this Indenture, upon a written order of
the Company in the form of an Officers' Certificate.
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The Officers' Certificate shall specify the amount of Notes to be authenticated
and the date on which the Notes are to be authenticated. The aggregate principal
amount of Notes outstanding at any time may not exceed $300,000,000 plus the
principal amount of any PIK Notes, except as provided in Section 2.7. Upon the
written order of the Company in the form of an Officers' Certificate, the
Trustee shall authenticate Notes in substitution of Notes originally issued to
reflect any name change of the Company.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Notes. Unless otherwise provided in the appointment, an
authenticating agent may authenticate Notes whenever the Trustee may do so. Each
reference in this Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating agent has the same rights as an
Agent to deal with any Obligor, any Affiliate of any Obligor, or any of their
respective Subsidiaries.
Notes shall be issuable only in registered form without coupons
in denominations (rounded, if necessary, to the nearest dollar) of $1 and any
integral multiple thereof.
Section 2.3 Registrar and Paying Agent. The Company shall
maintain an office or agency in the Borough of Manhattan in the City of New
York, New York, where Notes may be presented for registration of transfer or for
exchange ("REGISTRAR") and an office or agency in the Borough of Manhattan in
the City of New York, New York, where Notes may be presented for payment
("PAYING AGENT"). Notices and demands to or upon the Company in respect of the
Notes may be served as is provided in Section 12.2. The Company or any Affiliate
of the Company may act as Registrar or Paying Agent, except that, for the
purposes of Articles III, VIII and XI, neither the Company nor any Affiliate of
the Company shall act as Paying Agent. The Registrar shall keep a register of
the Notes and of their transfer and exchange. The Company may have one or more
co-Registrars and one or more additional Paying Agents. The term "Paying Agent"
includes any additional Paying Agent. The Company hereby initially appoints the
Trustee as Registrar and Paying Agent, and the Trustee hereby initially agrees
so to act.
The Company shall enter into an appropriate written agency
agreement with any Agent not a party to this Indenture, which agreement shall
implement the provisions of this Indenture that relate to such Agent. The
Company shall notify the Trustee in writing in advance of the name and address
of any such Agent. If the Company fails to maintain a Registrar or Paying Agent,
the Trustee shall act as such.
The Company initially appoints DTC to act as Depository with
respect to the Global Notes. The Trustee shall act as custodian for the
Depository with respect to the Global Notes.
Except as otherwise required by the TIA, nothing herein shall
require the Trustee to communicate with any beneficial owner (other than the
Direct Purchasers) and the Trustee shall perform hereunder only with the
registered holders.
Section 2.4 Paying Agent to Hold Assets in Trust. The Company shall
require each Paying Agent other than the Trustee to agree in writing that each
Paying Agent shall hold in trust
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for the benefit of Holders or the Trustee all assets held by the Paying Agent
for the payment of principal of, or interest on, the Notes (whether such assets
have been distributed to it by the Company or any other obligor on the Notes),
and shall notify the Trustee in writing of any Default in making any such
payment. If the Company or any Affiliate of the Company acts as Paying Agent, it
shall segregate such assets and hold them as a separate trust fund for the
benefit of the Holders or the Trustee. The Company at any time may require a
Paying Agent to distribute all assets held by it to the Trustee and account for
any assets disbursed and the Trustee may at any time during the continuance of
any payment Default, upon written request to a Paying Agent, require such Paying
Agent to distribute all assets held by it to the Trustee and to account for any
assets distributed. Upon distribution to the Trustee of all assets that shall
have been delivered by the Company to the Paying Agent, the Paying Agent (if
other than the Company, or any Affiliate of the Company) shall have no further
liability for such assets.
Section 2.5 Noteholder Lists. The Trustee shall preserve in as current a
form as is reasonably practicable the most recent list available to it of the
names and addresses of Holders. If the Trustee is not the Registrar, the Company
shall furnish to the Trustee on or before the third Business Day preceding each
Interest Payment Date and at such other times as the Trustee may request in
writing a list in such form and as of such date as the Trustee reasonably may
require of the names and addresses of Holders.
Section 2.6 Transfer and Exchange of Definitive Notes.
(a) When Definitive Notes are presented by a Holder to the
Registrar with a request (1) to register the transfer of the Definitive Notes or
(2) to exchange such Definitive Notes for an equal principal amount of
Definitive Notes of other authorized denominations, the Registrar shall register
the transfer or make the exchange as requested if its requirements for such
transactions are met; provided, that (A) the Definitive Notes so presented have
been duly endorsed or accompanied by a written instruction of transfer in form
satisfactory to the Registrar duly executed by such Holder or by his attorney,
duly authorized in writing, and (B) if such Definitive Notes are Restricted
Notes, such request shall be accompanied by the following additional documents:
(i) if such Restricted Note is being delivered to the
Registrar by a Holder for registration in the name of such
Holder, without transfer, a certification to that effect (in
substantially the form of Exhibit B attached hereto); or
(ii) if such Restricted Note is being transferred to a
QIB in accordance with Rule 144A or pursuant to an effective
registration statement under the Securities Act, a certification
to that effect (in substantially the form of Exhibit B attached
hereto); or
(iii) if such Restricted Note is being transferred in
reliance on another exemption from the registration requirements
of the Securities Act, a certification to that effect (in
substantially the form of Exhibit B attached hereto) and an
Opinion of Counsel reasonably acceptable to the Company and the
Registrar to the effect that such transfer is in compliance with
the Securities Act.
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(b) Transfer of a Definitive Note for a Beneficial Interest in a
Global Note. A Definitive Note may be exchanged for a beneficial interest in a
Global Note only upon receipt by the Trustee of a Definitive Note, duly endorsed
or accompanied by appropriate instruments of transfer, in form satisfactory to
the Trustee, together with:
(i) written instructions directing the Trustee to make
an endorsement on the Global Note to reflect an increase in the
aggregate principal amount of the Notes represented by the
Global Note, and
(ii) if such Definitive Note is a Restricted Note, a
certification (in substantially the form of Exhibit B attached
hereto) to the effect that such Definitive Note is being
transferred to a QIB in accordance with Rule 144A;
in which case the Trustee shall cancel such Definitive Note and cause the
aggregate principal amount of Notes represented by the Global Note to be
increased accordingly. If no Global Note is then outstanding, the Company shall
issue and the Trustee shall authenticate a new Global Note in the appropriate
principal amount.
(c) Transfer and Exchange of Global Notes. The transfer and
exchange of Global Notes or beneficial interests therein shall be effected
through the Depository in accordance with this Indenture and the procedures of
the Depository therefor, which shall include restrictions on transfer comparable
to those set forth herein to the extent required by the Securities Act.
(d) Transfer of a Beneficial Interest in a Global Note for a
Definitive Note. Upon receipt by the Trustee of written transfer instructions
(or such other form of instructions as is customary for the Depository), from
the Depository (or its nominee) on behalf of any Person having a beneficial
interest in a Global Note, the Trustee shall, in accordance with the standing
instructions and procedures existing between the Depository and the Trustee,
cause the aggregate principal amount of Global Notes to be reduced accordingly
and, following such reduction, the Company shall execute and the Trustee shall
authenticate and make available for delivery to the transferee a Definitive Note
in the appropriate principal amount; provided, that in the case of a Restricted
Note, such instructions shall be accompanied by the following additional
documents:
(i) if such beneficial interest is being transferred to
the Person designated by the Depository as being the beneficial
owner, a certification to that effect (in substantially the form
of Exhibit B attached hereto); or
(ii) if such beneficial interest is being transferred to
a QIB in accordance with Rule 144A or pursuant to an effective
registration statement under the Securities Act, a certification
to that effect (in substantially the form of Exhibit B attached
hereto); or
(iii) if such beneficial interest is being transferred
in reliance on another exemption from the registration
requirements of the Securities Act, a certification to that
effect (in substantially the form of Exhibit B attached hereto)
and, if the Trustee deems it
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appropriate, an Opinion of Counsel reasonably acceptable to the
Company and to the Registrar to the effect that such transfer is
in compliance with the Securities Act.
Definitive Notes issued in exchange for a beneficial interest in
a Global Note shall be registered in such names and in such authorized
denominations as the Depository shall instruct the Trustee.
(e) Transfer and Exchange of Global Notes. Notwithstanding any
other provision of this Indenture, the Global Note may not be transferred as a
whole except by the Depository to a nominee of the Depository or by a nominee of
the Depository to the Depository or another nominee of the Depository or by the
Depository or any such nominee to a successor Depository or a nominee of such
successor Depository; provided, that if:
(i) the Depository notifies the Company that the
Depository is unwilling or unable to continue as Depository and
a successor Depository is not appointed by the Company within 90
days after delivery of such notice; or
(ii) the Company, at its sole discretion, notifies the
Trustee in writing that it elects to cause the issuance of
Definitive Notes under this Indenture,
then the Company shall execute and the Trustee shall authenticate and make
available for delivery, Definitive Notes in an aggregate principal amount equal
to the aggregate principal amount of the Global Note in exchange for such Global
Note.
(f) Cancellation and/or Adjustment of Global Notes. At such time
as all beneficial interests in the Global Note have either been exchanged for
Definitive Notes, redeemed, repurchased or cancelled, the Global Note shall be
returned to or retained and cancelled by the Trustee. At any time prior to such
cancellation, if any beneficial interest in the Global Note is exchanged for
Definitive Notes, redeemed, repurchased or cancelled, the aggregate principal
amount of Notes represented by such Global Note shall be reduced accordingly and
an endorsement shall be made on such Global Note by the Trustee to reflect such
reduction.
(g) General Provisions Relating to Transfers and Exchanges of
Notes. To permit registrations of transfers and exchanges, the Company shall
execute and the Trustee shall authenticate Definitive Notes and Global Notes at
the Registrar's request. All Definitive Notes and Global Notes issued upon any
registration of transfer or exchange of Definitive Notes or Global Notes shall
be legal, valid and binding obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Definitive
Notes or Global Notes surrendered upon such registration of transfer or
exchange.
No service charge shall be made to a Holder for any registration
of transfer or exchange, but the Company may require payment of a sum sufficient
to cover any transfer tax or similar governmental charge payable in connection
therewith (other than any such transfer taxes or similar governmental charge
payable upon exchange (without transfer to another Person) pursuant to Sections
2.10, 3.1 and 9.5)
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The Company shall not be required to (i) issue, register the
transfer of or exchange Notes during a period beginning at the opening of
business 15 days before the mailing of a notice of redemption under Section 3.2
and ending at the close of business on the day of such mailing; or (ii) register
the transfer of or exchange any Note so selected for redemption in whole or in
part, except the unredeemed portion of any Note being redeemed in part; or (iii)
register the transfer of or exchange a Note between a record date and the next
succeeding interest payment date.
Prior to due presentment for the registration of a transfer of
any Note, the Trustee, any Agent and the Company may deem and treat the Person
in whose name any Note is registered as the absolute owner of such Note for all
purposes, and neither the Trustee, any Agent nor the Company shall be affected
by notice to the contrary.
(h) Exchange of Series A Notes for Series B Notes. The Series A
Notes may be exchanged for Series B Notes pursuant to the terms of the Exchange
Offer. The Trustee and Registrar shall make the exchange as follows:
The Company shall present the Trustee with an Officers'
Certificate certifying the following:
(A) upon issuance of the Series B Notes, the transactions
contemplated by the Exchange Offer have been consummated;
and
(B) the principal amount of Series A Notes properly tendered
in the Exchange Offer that are represented by a Global
Note and the principal amount of Series A Notes properly
tendered in the Exchange Offer that are represented by
Definitive Notes, the name of each Holder of such
Definitive Notes, the principal amount at maturity
properly tendered in the Exchange Offer by each such
Holder and the name and address to which Series B Notes
represented by Definitive Notes shall be registered and
sent for each such Holder.
The Trustee, upon receipt of (i) such Officers' Certificate, (ii)
an Opinion of Counsel (x) to the effect that the Series B Notes have been
registered under Section 5 of the Securities Act and this Indenture has been
qualified under the TIA and (y) with respect to the matters set forth in Section
6 of the Registration Rights Agreement and (iii) a Company Order, shall
authenticate (A) a Global Note for Series B Notes in an aggregate principal
amount equal to the aggregate principal amount of Series A Notes represented by
a Global Note indicated in such Officers' Certificate as having been properly
tendered and (B) Definitive Notes representing Series B Notes registered in the
names of, and in the principal amounts indicated in such Officers' Certificate.
If the principal amount at maturity of the Global Note for the
Series B Notes is less than the principal amount at maturity of the Global Note
for the Series A Notes, the Trustee shall make an endorsement on such Global
Note for Series A Notes indicating a reduction in the principal amount at
maturity represented thereby.
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Section 2.7 Replacement Notes. If a mutilated Note is surrendered to the
Trustee or if the Holder of a Note claims and submits an affidavit or other
evidence, satisfactory to the Company and Trustee, to the Trustee to the effect
that the Note has been lost, destroyed or wrongfully taken, the Company shall
issue and the Trustee shall authenticate a replacement Note if the Trustee's
requirements are met. If required by the Trustee or the Company, such Holder
must provide an indemnity bond or other indemnity, sufficient in the judgment of
both the Company and the Trustee, to protect the Company, the Trustee or any
Agent from any loss which any of them may suffer if a Note is replaced. The
Company and the Trustee may charge such Holder for its reasonable, out-of-pocket
expenses in replacing a Note. Every replacement Note is an additional obligation
of the Company.
Section 2.8 Outstanding Notes. Notes outstanding at any time are all the
Notes that have been authenticated by the Trustee except those cancelled by it,
those delivered to it for cancellation, those reductions in the interest in a
Global Note effected by the Trustee in accordance with the provisions hereof,
and those described in this Section 2.8 as not outstanding. A Note does not
cease to be outstanding because the Company or an Affiliate of the Company holds
the Note, except as provided in Section 2.9.
If a Note is replaced pursuant to Section 2.7 (other than a
mutilated Note surrendered for replacement), it ceases to be outstanding unless
the Trustee receives proof satisfactory to it that the replaced Note is held by
a bona fide purchaser. A mutilated Note ceases to be outstanding upon surrender
of such Note and replacement thereof pursuant to Section 2.7.
If on a Redemption Date or the Maturity Date the Paying Agent
(other than the Company or an Affiliate of the Company) holds U.S. Legal Tender
or U.S. Government Obligations sufficient to pay all of the principal and
interest due on the Notes payable on that date, then on and after that date such
Notes cease to be outstanding and interest on them ceases to accrue.
Section 2.9 Treasury Notes. In determining whether the Holders of the
required outstanding principal amount of Notes have concurred in any direction,
amendment, supplement, waiver or consent, Notes owned by the Company and
Affiliates of the Company shall be disregarded, except that, for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, amendment, supplement, waiver or consent, only Notes that the Trustee
knows or has reason to know are so owned shall be disregarded.
Section 2.10 Temporary Notes. Until Definitive Notes are ready for
delivery, the Company may prepare and the Trustee shall authenticate temporary
Notes. Temporary Notes shall be substantially in the form of Definitive Notes
but may have variations that the Company reasonably and in good faith considers
appropriate for temporary Notes. Without unreasonable delay, the Company shall
prepare and the Trustee shall authenticate Definitive Notes in exchange for
temporary Notes. Until so exchanged, the temporary Notes shall in all respects
be entitled to the same benefits under this Indenture as permanent Notes
authenticated and delivered hereunder.
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Section 2.11 Cancellation. The Company at any time may deliver Notes to
the Trustee for cancellation. The Registrar and the Paying Agent shall forward
to the Trustee any Notes surrendered to them for transfer, exchange or payment.
The Trustee, or, at the direction of the Trustee, the Registrar or the Paying
Agent (other than the Company or any Affiliate of the Company), and no one else,
shall cancel, but in no event shall be required to destroy, all Notes
surrendered for transfer, exchange, payment or cancellation. Subject to Section
2.7, the Company may not issue new Notes to replace Notes it has paid or
delivered to the Trustee for cancellation. No Notes shall be authenticated in
lieu of or in exchange for any Notes cancelled as provided in this Section 2.11,
except as expressly permitted in the forms of Note and as permitted by this
Indenture.
Section 2.12 Defaulted Interest. Interest on any outstanding Note which
is payable, and is punctually paid or duly provided for, on any Interest Payment
Date shall be paid to the Person in whose name that Note (or one or more
predecessor Notes) is registered at the close of business on the Record Date for
such interest.
Any interest on any outstanding Note which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date plus, to the
extent lawful, any interest payable on the defaulted interest (herein called
"DEFAULTED INTEREST") shall forthwith cease to be payable to the registered
Holder on the relevant Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the Notes (or
their respective predecessor Notes) are registered at the close
of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following
manner. The Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each Note
and the date of the proposed payment, and, at the same time, the
Company shall deposit with the Trustee an amount of money equal
to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as
provided in this clause (1). Thereupon the Trustee shall fix a
Special Record Date for the payment of such Defaulted Interest
which shall be not more than 15 days and not less than 10 days
prior to the date of the proposed payment and not less than 10
days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company
of such Special Record Date and, in the name and at the expense
of the Company, shall cause notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor to
be mailed, first-class postage prepaid, to each Holder at his
address set forth upon the registry books of the Company on the
10th day prior to such Special Record Date. The Trustee may, in
its discretion, in the name and at the expense of the Company,
cause a similar notice to be published at least once in a
newspaper, customarily published in the English language on each
Business Day and of general circulation in the Borough of
Manhattan, The City of New York, but such publication shall not
be a condition precedent to the establishment of
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such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having
been mailed as aforesaid, such Defaulted Interest shall be paid
to the Persons in whose names the Notes (or their respective
predecessor Notes) are registered on such Special Record Date
and shall no longer be payable pursuant to the following clause
(2).
(2) The Company may make payment of any Defaulted
Interest in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Notes may
be listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company to the Trustee
of the proposed payment pursuant to this clause accompanied by
an Opinion of Counsel stating that the manner of payment
complies with this clause, such manner shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Note
delivered under this Indenture upon transfer of or in exchange for or in lieu of
any other Note shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Note.
Section 2.13 Computation of Interest. Interest on the Notes will be
computed on the basis of a 360-day year consisting of twelve 30-day months.
Section 2.14 Legends. Except as permitted by subsection (b) hereof, each
Note shall bear legends relating to restrictions on transfer pursuant to the
securities laws in substantially the form set forth on Exhibit A attached
hereto.
(a) Upon any sale or transfer of a Restricted Note (including
any Restricted Note represented by a Global Note) pursuant to Rule 144A under
the Securities Act or pursuant to an effective registration statement under the
Securities Act:
(i) in the case of any Restricted Note that is a
Definitive Note, the Registrar shall permit the Holder thereof
to exchange such Restricted Note for a Definitive Note that does
not bear the legends required by subsection (a) above; and
(ii) in the case of any Restricted Note represented by a
Global Note, such Restricted Note shall not be required to bear
the legends required by subsection (a) above, but shall continue
to be subject to the provisions of Section 2.6(c); provided,
that with respect to any request for an exchange of a Restricted
Note that is represented by a Global Note for a Definitive Note
that does not bear the legends required by subsection (a) above,
which request is made in reliance upon Rule 144A, the Holder
thereof shall certify in writing to the Registrar that such
request is being made pursuant to Rule 144A.
(b) The Company shall issue and the Trustee shall authenticate
Series B Notes in exchange for Series A Notes accepted for exchange in the
Exchange Offer. The Series B Notes shall not bear the legends required by
subsection (a) above unless the Holder of such Series A Notes is either (A) a
broker-dealer who purchased Series A Notes directly from the
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Company to resell pursuant to Rule 144A or any other available exemption under
the Securities Act, or (B) a Person participating in the distribution of the
Series A Notes.
Section 2.15 PIK Notes. On each Interest Payment Date through and
including December 1, 2000, the Company may, at its option and in its sole
discretion, in lieu of the payment of interest in cash on the Notes, pay
interest on all outstanding Notes in whole, but not in part, through the
issuance of PIK Notes ("PIK NOTES"), in denominations (rounded, if necessary to
the nearest dollar) of $1 and integral multiples thereof, in an aggregate
principal amount equal to the amount of interest that would be payable with
respect to such Notes, if such interest were paid in cash. The Company shall
notify the Holders and the Trustee in writing of its election to pay interest
through the issuance of PIK Notes not less than 10 nor more than 45 days prior
to the record date for an Interest Payment Date on which PIK Notes will be
issued. On each such Interest Payment Date, the Company shall issue and deliver
PIK Notes to each Holder as of the relevant Record Date in the aggregate
principal amount required to pay such interest. Each PIK Note is an additional
obligation of the Company and shall be governed by, and entitled to the benefits
of, and shall be subject to the terms of, this Indenture and shall rank pari
passu with and be subject to the same terms (including the interest rate from
time to time payable thereon) as the Notes with respect to which such PIK Notes
were issued (except, as the case may be, with respect to the issuance date and
aggregate principal amount).
Section 2.16 Additional Notes. The Company may, at its option and in its
sole discretion, issue Additional Notes ("ADDITIONAL NOTES"), in denominations
(rounded, if necessary to the nearest dollar) of $1 and integral multiples
thereof, in an aggregate principal amount of up to $150,000,000. The Company
shall notify the Holders and the Trustee in writing of any issuance of
Additional Notes not less than 10 days prior to the date on which Additional
Notes will be issued. Each Additional Note is an additional obligation of the
Company and shall be governed by, and entitled to the benefits of, and shall be
subject to the terms of, this Indenture and shall rank pari passu with and be
subject to the same terms (including the interest rate from time to time payable
thereon) as any other Note (except, as the case may be, with respect to the
issuance date and aggregate principal amount).
ARTICLE III
REDEMPTION
Section 3.1 Right of Redemption. Redemption of Notes, as permitted or
required by any provision of this Indenture, shall be made in accordance with
such provision and this Article III. The Notes may be redeemed at the election
of the Company, as a whole or from time to time in part, at any time, at the
applicable Redemption Price specified in Paragraph 5 of the forms of Note
attached as Exhibit A hereto, set forth therein under the caption "Optional
Redemption," in each case, including accrued and unpaid interest, if any, to the
Redemption Date.
Section 3.2 Notices to Trustee. If the Company elects to redeem Notes
pursuant to Paragraph 5 of the Notes, it shall notify the Trustee in writing of
the Redemption Date and the
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principal amount of Notes to be redeemed and whether it wants the Trustee to
give notice of redemption to the Holders.
The Company shall give each notice to the Trustee provided for in
this Section 3.2 at least 30 days before the Redemption Date (unless a shorter
notice shall be satisfactory to the Trustee).
Section 3.3 Selection of Notes to Be Redeemed. If less than all of the
Notes are to be redeemed pursuant to Paragraph 5 thereof, the Trustee shall
select the Notes to be redeemed, pro rata, by lot or in such other manner as in
its sole discretion it deems appropriate and fair, and in such manner as
complies with any applicable legal and stock exchange requirements.
The Trustee shall make the selection from the Notes outstanding
and not previously called for redemption and shall promptly notify the Company
in writing of the Notes selected for redemption and, in the case of any Note
selected for partial redemption, the principal amount thereof to be redeemed.
Notes in denominations of $1,000 may be redeemed only in whole. The Trustee may
select for redemption portions (equal to $1,000 or any integral multiple
thereof) of the principal of Notes that have denominations larger than $1,000.
Provisions of this Indenture that apply to Notes called for redemption also
apply to portions of Notes called for redemption.
Section 3.4 Notice of Redemption. At least 15 days but not more than 60
days before a Redemption Date, the Company shall mail a notice of redemption by
first class mail, postage prepaid, to the Trustee and each Holder whose Notes
are to be redeemed. At the Company's request, the Trustee shall give the notice
of redemption in the Company's name and at the Company's expense. The date fixed
for redemption contained in any notice of redemption and the obligation of the
Company to redeem any Notes upon such date may be subject to the satisfaction or
waiver of conditions determined by the Company in its sole discretion. Each
notice for redemption shall identify the Notes to be redeemed and shall state
the following and such other matters as the Trustee shall deem proper:
(1) the Redemption Date;
(2) the Redemption Price, including the amount of accrued
and unpaid interest to be paid upon such redemption;
(3) the name, address and telephone number of the Paying
Agent;
(4) that Notes called for redemption must be surrendered to
the Paying Agent at the address specified in such notice
to collect the Redemption Price;
(5) that, unless the Company defaults in its obligation to
deposit U.S. Legal Tender with the Paying Agent in
accordance with Section 3.6, interest on Notes called
for redemption ceases to accrue on Notes called for
redemption on and after the Redemption Date and the only
remaining right of the Holders of such Notes is to
receive payment of the Redemption
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Price, including accrued and unpaid interest, upon
surrender to the Paying Agent of the Notes called for
redemption and to be redeemed;
(6) if any Note is being redeemed in part, the portion of
the principal amount, equal to $1,000 or any integral
multiple thereof, of such Note that will not be redeemed
and that, after the Redemption Date, and upon surrender
of such Note, a new Note or Notes in aggregate principal
amount equal to the unredeemed portion thereof will be
issued;
(7) if less than all the Notes are to be redeemed, the
identification of the particular Notes (or portion
thereof) to be redeemed, as well as the aggregate
principal amount of such Notes to be redeemed and the
aggregate principal amount of Notes to be outstanding
after such partial redemption;
(8) the CUSIP number of the Notes to be redeemed; and
(9) that the notice is being sent pursuant to this Section
3.4 and pursuant to the redemption provisions of
Paragraph 5 of the Notes.
Section 3.5 Effect of Notice of Redemption. Once notice of redemption is
mailed in accordance with Section 3.4, Notes called for redemption shall become
due and payable on the Redemption Date and at the Redemption Price, including
accrued and unpaid interest. Upon surrender to the Trustee or Paying Agent, such
Notes called for redemption shall be paid at the Redemption Price, including
interest, if any, accrued and unpaid on the Redemption Date; provided that if
the Redemption Date is after a regular Record Date and on or prior to the
Interest Payment Date, the accrued interest through the Redemption Date shall be
payable to the Holder of the redeemed Notes registered on the relevant Record
Date; and provided, further, that if a Redemption Date is a Legal Holiday,
payment shall be made on the next succeeding Business Day and no interest shall
accrue for the period from such Redemption Date to such succeeding Business Day.
Upon compliance by the Company with the provisions of this
Article III, including but not limited to Section 3.6, and upon satisfaction or
waiver of any conditions precedent to the Company's obligation to effect such
redemption contained in the related notice of redemption, interest on the Notes
called for redemption will cease to accrue on the Notes called for redemption,
on and after the Redemption Date, regardless of whether such Notes are presented
for payment.
Section 3.6 Deposit of Redemption Price. On or prior to the Redemption
Date, the Company shall deposit with the Paying Agent (other than the Company or
an Affiliate of the Company) U.S. Legal Tender sufficient to pay the Redemption
Price of, including accrued and unpaid interest on, all Notes to be redeemed on
such Redemption Date (other than Notes or portions thereof called for redemption
on that date that have been delivered by the Company to the Trustee for
cancellation). The Paying Agent shall promptly return to the Company any U.S.
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Legal Tender so deposited which is not required for that purpose upon the
written request of the Company.
If the Company complies with the preceding paragraph and the
other provisions of this Article III, interest on the Notes to be redeemed will
cease to accrue on the applicable Redemption Date regardless of whether such
Notes are presented for payment. Notwithstanding anything herein to the
contrary, if any Note surrendered for redemption in the manner provided in the
Notes shall not be so paid upon surrender for redemption because of the failure
of the Company to comply with the preceding paragraph, interest shall continue
to accrue and be paid from the Redemption Date until such payment is made on the
unpaid principal and, to the extent lawful, on any interest not paid on such
unpaid principal, in each case at the rate and in the manner provided in Section
4.1 and the Note.
Section 3.7 Notes Redeemed in Part. Upon surrender of a Note that is to
be redeemed in part, the Company shall execute and the Trustee shall
authenticate and deliver to the Holder, without service charge, a new Note or
Notes equal in principal amount to the unredeemed portion of the Note
surrendered.
ARTICLE IV
COVENANTS
Section 4.1 Payment of Notes.
The Company shall pay the principal of and interest on the
outstanding Notes on the dates and in the manner provided in the Notes to the
Trustee at its New York agent's office unless otherwise instructed in writing by
the Trustee. An installment of principal of or interest on the Notes shall be
considered paid on the date it is due if the Trustee or Paying Agent (other than
the Company or an Affiliate of the Company) holds for the benefit of the
Holders, on or before 12:00 noon, New York time on that date, U.S. Legal Tender
deposited and designated for and sufficient to pay the installment. The Company
shall pay any and all amounts, including without limitation, Yield Enhancement,
if any, on the dates and in the manner required under the Registration Rights
Agreement.
The Company shall pay interest on overdue principal and on
overdue installments of interest at the rate specified in the Notes compounded
semi-annually, to the extent lawful.
Notwithstanding anything to the contrary contained in this
Indenture, the Company or the Trustee may, to the extent required by law, deduct
or withhold income or other similar taxes imposed by the United States of
America from principal, premium or interest payments on the Notes.
Section 4.2 Maintenance of Office or Agency. The Company shall maintain
in the Borough of Manhattan in The City of New York, New York, an office or
agency where Notes may be presented or surrendered for payment, where Notes may
be surrendered for registration
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of transfer or exchange and where notices and demands to or upon the Company in
respect of the Notes and this Indenture may be served. The Company shall give
prior written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the address of the Trustee set forth in Section 12.2.
The Company may also from time to time designate one or more
other offices or agencies where the Notes may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in the
Borough of Manhattan in The City of New York, New York, for such purposes. The
Company shall give prior written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency. The Company hereby initially designates the corporate trust office of
the Trustee in the Borough of Manhattan in the City of New York, New York, as
such office of the Company.
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 Restricted Payment; provided, however, that the Company and its Subsidiaries
may make a Restricted Payment if, at the time and after giving effect thereto on
a pro forma basis, no Default or Event of Default would occur or be continuing,
and:
(a) the Company's Consolidated Fixed Charge Coverage
Ratio exceeds 3.0 to 1; and
(b) the aggregate amount of all Restricted Payments made
by all of the Company and its Subsidiaries, 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 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
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 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;
provided, that this Section 4.3 shall not prohibit the payment of any dividend
by the Company to TCR Holding in an amount equal to the next scheduled payment
of the TCR Holding Intercompany Obligations to the extent that (x) no Default
has occurred and is continuing and (y)
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the Company receives a certificate from the Independent Engineer to the effect
that amounts remaining in the Construction Disbursement Account, together with
an amount equal to (A) 50% of Projected Net Operating Cash Flow from the date
such dividend is declared for the next 90 day period plus (B) an amount equal to
the portion of the proceeds of the Port Commission Bond Financing held by the
entity serving as collateral agent or in similar capacity with respect to such
financing the Capital Improvement Program, plus (C) without duplication, cash on
hand that has been approved by the Company's Board of Directors to be escrowed
in a segregated account and allocated only for the purpose of completion of the
Capital Improvement Program, are sufficient to make all Capital Expenditures
necessary in the opinion of the Independent Engineer to complete the Capital
Improvement Program; provided, further, that this Section 4.3 shall not 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 4.4 Corporate Existence. Subject to Article V, the Company shall
do or cause to be done all things necessary to preserve and keep in full force
and effect its corporate existence and the corporate or other existence of each
of its Subsidiaries in accordance with the respective organizational documents
of each of them and the rights (charter and statutory) and corporate franchises
of the Company and each of its Subsidiaries; provided, however, that the Company
shall not be required to preserve, with respect to itself, any right or
franchise, and with respect to any of its Subsidiaries, any such existence,
right or franchise, if (a) the Board of Directors of the Company shall determine
that the preservation thereof is no longer desirable in the conduct of the
business of the Company and (b) the loss thereof is not disadvantageous in any
material respect to the Holders.
Section 4.5 Payment of Taxes and Other Claims. The Company shall, and
shall cause each of its Subsidiaries to, pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, all taxes, assessments and
governmental charges (including withholding taxes and any penalties, interest
and additions to taxes) levied or imposed upon the Company or any of its
Subsidiaries or any of their respective properties and assets; provided,
however, that the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment or charge whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings and for which disputed amounts adequate reserves have been
established in accordance with GAAP.
Section 4.6 Maintenance of Properties and Insurance.
(a) Each of the Company and its Subsidiaries shall cause the
properties to be used or useful to the conduct of its business and the business
of itself and each of its Subsidiaries to be maintained and kept in good
condition, repair, and working order (reasonable wear and tear excepted) and
supplied with all necessary equipment and shall cause to be made all necessary
repairs, renewals, replacements, betterments, and improvements thereof, all as
in its reasonable judgment may be necessary, so that the business carried on in
connection therewith may be properly and advantageously conducted at all times.
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(b) Each of the Company and its Subsidiaries shall provide, or
cause to be provided, for itself and each of its Subsidiaries, insurance
(including appropriate self-insurance) against loss or damage of the kinds that
are set forth herein or in the Mortgage, with reputable insurers or with the
government of the United States of America or an agency or instrumentality
thereof, in such amounts, with such deductibles, and by such methods as are set
forth in the Mortgage. In addition, all such insurance shall be payable to the
Trustee as loss payee, as its interests may appear, under a "standard" or
"Texas" mortgagee and loss payee clause. Without limiting the foregoing, each of
the Company and its Subsidiaries shall (i) keep all of its physical Property
insured with hazard insurance on an "all risks" basis, with broad form flood and
earthquake coverages and electronic data processing coverage, with a full
replacement cost endorsement and an "agreed amount" clause in an amount equal to
100% of the full replacement cost of such Property, (ii) maintain all such
workers' compensation or similar insurance as may be required by law and (iii)
maintain, in amounts and with deductibles equal to those generally maintained by
businesses engaged in similar activities in similar geographic areas, general
public liability insurance against claims of bodily injury, death or Property
damage occurring on, in or about the properties of the Company and its
Subsidiaries.
(c) All policies of insurance shall provide for at least 15
days' prior written cancellation notice to the Trustee. In the event of failure
by the Company and its Subsidiaries to provide and maintain insurance as herein
provided, any one or more Holders may, at their option, provide such insurance
and charge the amount thereof to the Company and its Subsidiaries. The Company
and its Subsidiaries shall furnish the Trustee with certificates of insurance
and policies evidencing compliance with the foregoing insurance provision.
Section 4.7 Compliance Certificate; Notice of Default.
(a) The Company shall deliver to the Trustee within 60 days
after the end of each of its fiscal quarters, or 105 days after the end of a
fiscal quarter that is also the end of a fiscal year, an Officers' Certificate
complying with Section 314(a)(4) of the TIA and stating that a review of its
activities and the activities of its Subsidiaries during the preceding fiscal
quarter has been made under the supervision of the signing Officers with a view
to determining whether the Company and its Subsidiaries have kept, observed,
performed and fulfilled its obligations (excluding those obligations addressed
by Section 11.2) under this Indenture and further stating, as to each such
Officer signing such certificate, regardless of whether the signer knows of any
failure by the Company or any Subsidiary of the Company to comply with any
conditions or covenants in this Indenture, or of the occurrence of any Default,
and, if such ▇▇▇▇▇▇ does know of such a failure to comply or Default, the
certificate shall describe such failure or Default with particularity.
(b) The Company shall promptly deliver to the Trustee within 90
days after the end of each of its fiscal years a written report of a firm of
independent certified public accountants with an established national reputation
stating that in conducting their audit for such fiscal year, nothing has come to
their attention that caused them to believe that the Company or any Subsidiary
of the Company was not in compliance with the provisions set forth in Section
4.3 or 4.11.
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(c) The Company shall, so long as any of the Notes are
outstanding, deliver to the Trustee, immediately upon becoming aware of any
Default or Event of Default under this Indenture, an Officers' Certificate
specifying such Default or Event of Default and what action the Company is
taking or proposes to take with respect thereto. The Trustee shall not be deemed
to have knowledge of a Default or an Event of Default unless one of its trust
officers receives notice of the Default giving rise thereto from the Company or
any of the Holders.
Section 4.8 Commission Reports. The Company and each of its
Subsidiaries, where applicable, shall deliver to the Trustee and each Holder,
within 15 days after it files the same with the Commission, copies of all
reports and information (or copies of such portions of any of the foregoing as
the Commission may by rules and regulations prescribe), if any, which such
Person is required to file with the Commission in accordance with Section 13 or
15(d) of the Exchange Act. The Company shall, at any time it is not subject to
Section 13 or 15(d) of the Exchange Act and to the extent permitted by the
Exchange act, file with the Trustee and the Commission such supplementary and
periodic information, reports and documents as it would be required to file if
it were so subject as if it were so subject. Prior to the Phase II Completion
Date, the Company shall include in all such reports filed with the Commission
(other than current reports filed on form 8-K) a summary of the status of the
Capital Improvement Program, including a description of sources of funds
available for the completion of the Capital Improvement 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 preceding paragraph. The
Company shall also comply with the other provisions of Section 314(a) of the
TIA.
So long as is required for an offer or sale of the Notes to
qualify for an exemption under Rule 144A, the Company shall, upon request,
provide the information required by clause (d)(4) thereunder to each Holder and
to each beneficial owner and prospective purchaser of Notes identified by any
Holder of Restricted Notes.
Section 4.9 Limitation on Status as Investment Company or Public Utility
Company. The Company shall not, and shall not permit any of its Subsidiaries to
become an "investment company" (as that term is defined in the Investment
Company Act of 1940, as amended), or a "holding company," or "public utility
company" (as such terms are defined in the Public Utility Holding Company Act of
1935, as amended), or otherwise become subject to regulation under the
Investment Company Act or the Public Utility Holding Company Act.
Section 4.10 Limitation on Transactions with Related Persons.
(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
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of properties, assets, or securities to such Related Person; (ii) the purchase
or lease of any properties, assets, or securities from such Related Person;
(iii) an Investment in such Related Person (excluding Investments permitted to
be made pursuant to clauses (v), (vii), (ix) or (x) 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) Restricted Payments 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)
are 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 transactions
between wholly owned Subsidiaries of the Company, (d) transactions pursuant to
the Asset Sale Agreements, the Services Agreement, the Expense Reimbursement
Agreement, the Secondment Agreement, the Tax Allocation Agreement, the Security
Documents, the Registration Rights Agreement, the Exchange and Registration
Rights Agreement, the Stockholders Agreements and the Office Lease, provided
that payments under such Office Lease do not exceed in the aggregate $500,000
per year, (e) amounts payable by the Company to Southeast Louisiana Contractors
of Norco, Inc., pursuant to the contract between such parties as in effect on
the Issue Date, for employee services provided to the Company, not to exceed
actual costs of payroll, payroll taxes and employee benefits, plus related
administrative costs, (f) indemnity provided on behalf of officers, directors,
employees or consultants of the Company or of its Subsidiaries, as approved by a
majority of the directors of the Company or such Subsidiary, (g) the delivery to
TEC, TARC or TCR Holding of Senior Secured Notes due 2002 of TEC or of the TARC
Notes in satisfaction of all or a portion of the TCR Holding Intercompany
Obligations, (h) payments of dividends in compliance with the penultimate
proviso of Section 4.3 and (i) transactions that are a part of the Transaction
on the Issue Date.
(b) As an additional restriction on the foregoing, (a) 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 (a), (b), (c), (f) and (g) of
the proviso contained in the definition of "Restricted Payments"), (c), (d)
(other than any amendment to any agreement referred to in such clause), (e)
(other than any amendment to the contract referred to in such clause), (f) or
(h) of the first paragraph of this Section 4.10) with an aggregate value in
excess of $1,000,000, 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 (i) fair and reasonable to
the Company or such Subsidiary, as the case may be, and (ii) 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 (b) 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 (a), (b), (c), (f) and (g) of the proviso
contained in the definition of "Restricted Payments"), (c), (d) (other than any
amendment to any agreement referred to in such clause), (e) (other than any
amendment to the contract referred to in such clause), (f) or (h) of clause (a)
of
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this Section 4.10) with an aggregate value in excess of $5,000,000, 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.
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
any of its 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 (other than the Additional
Notes) or the Guarantees;
(b) Subordinated Debt of the Company solely to any Guarantor, or
Debt of any Guarantor solely to the Company or to any Guarantor;
(c) Debt in an aggregate principal amount at any one time not to
exceed the greater of (x) $100,000,000 or (y) the Borrowing Base;
(d) Debt in an aggregate principal amount not to exceed at any
one time $10,000,000;
(e) Debt Incurred in connection with the Port Commission Bond
Financing and the Tank Storage Debt, and in each case any Attributable Debt
related thereto, in an aggregate amount not to exceed $115,000,000;
(f) [INTENTIONALLY OMITTED];
(g) Debt Incurred as an extension, renewal, replacement,
modification or refunding of any item of the Debt permitted to be Incurred by
clause (e) of this Section 4.11, the third paragraph of this Section 4.11 or
this clause (g) (each such item of Debt is collectively 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 (g) may not exceed the lesser of (x) the principal amount of the
item of Debt being extended, renewed, replaced, modified or refunded plus
reasonable fees incurred to secure such Refinancing Debt, or (y) if such item of
Debt being extended, renewed, replaced, modified or refunded was issued at an
original issue discount, the original issue price, plus amortization of the
original issue discount at the time of the Incurrence of the Refinancing Debt
plus reasonable fees incurred to secure such Refinancing Debt, (2) each item of
Refinancing Debt has a Weighted Average Life and a final maturity that is equal
to or greater than the related Debt being extended, renewed, replaced, modified
or refunded at the time of such extension, renewal, replacement, modification or
refunding and (3) each item of Refinancing Debt shall rank with respect to the
Notes to an extent
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no less favorable in respect thereof to the Holders than the related Debt being
refinanced and shall be issued by the same issuer thereof;
(h) Debt represented by trade payables or accrued expenses, in
each case, incurred on normal, customary terms in the ordinary course of
business, not overdue for a period of more than 90 days (or, if overdue for a
period of more than 90 days, being contested in good faith and by appropriate
proceedings and adequate reserves with respect thereto being maintained on the
books of the obligor thereunder in accordance with GAAP) and not constituting
any amounts due to banks or other financial institutions;
(i) Swap Obligations;
(j) Debt Incurred and Disqualified Capital Stock issued on the
Issue Date as part of the Transaction or in connection with the issuance of
Additional Notes;
(k) Letters of credit and reimbursement obligations relating
thereto to the extent collateralized by cash or Cash Equivalents;
(l) Debt in an amount not to exceed $75,000,000 in aggregate
principal amount at any one time outstanding;
(m) Debt secured by Liens permitted pursuant to clauses (g) and
(i) of the definition of "Permitted Liens" not to exceed $35,000,000 in
aggregate principal amount at any one time outstanding; and
(n) any guarantee of Debt permitted by clauses (c), (d), (e),
(f), (g) or (m) hereof.
For the purpose of determining the amount of outstanding Debt
that has been Incurred pursuant to this Section 4.11, there shall be included in
any of the foregoing clauses the principal amount then outstanding of any Debt
originally Incurred pursuant to such clause and, after any renewal, replacement
or refunding of such Debt, any outstanding Debt Incurred pursuant to clause (g)
above so as to renew, replace or refund such Debt Incurred pursuant to this
Section 4.11 and any subsequent renewals, replacements, refinancings or
refundings thereof.
Notwithstanding the foregoing provisions of this Section 4.11,
the Company and its Subsidiaries may Incur Subordinated Debt and the Company and
its Subsidiaries may issue Disqualified Capital Stock if, at the time such
Subordinated Debt is Incurred or such Disqualified Capital Stock is issued, (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 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 Company for the Reference Period
is greater than 2.5 to 1.
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Debt Incurred and Disqualified Capital Stock issued by any Person
that is not a Subsidiary of the Company, 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 or one of its 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, or one of its Subsidiaries.
For the purpose of determining compliance with this Section 4.11,
(A) if an item of Debt meets the criteria of more than one of the types of Debt
described in the above clauses (a) through (m), the Company or the Subsidiary in
question shall have the right to determine in its sole discretion the category
to which such Debt applies and shall not be required to include the amount and
type of such Debt in more than one of such categories and may elect to apportion
such item of Debt between or among any two or more of such categories otherwise
applicable, and (B) the amount of any Debt which does not pay interest in cash
or which was issued at a discount to face value shall be deemed to be equal to
the amount of the liability in respect thereof determined in accordance with
GAAP.
Section 4.12 Limitations on Restricting Subsidiary Dividends. The
Company shall not, and shall not permit any of its Subsidiaries to, directly or
indirectly, create, assume, or suffer to exist any consensual encumbrance or
restriction on the ability of any Subsidiary of the Company to (a) pay dividends
or make other distributions on the Capital Stock of any Subsidiary of the
Company, (b) make payments on or in respect of any Debt owed to the Company or
any of its Subsidiaries, (c) make loans or advances to the Company or any of its
Subsidiaries or (d) transfer any of its assets to the Company or any of its
Subsidiaries, in each case except encumbrances and restrictions (i) existing
under this Indenture, the Notes and the Security Documents, or any Debt
permitted to be Incurred as described in clause (c) or (e) of Section 4.11; (ii)
existing under agreements in effect on the Issue Date; (iii) in 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; (iv)
existing under any agreement that refinances or replaces any of the agreements
under clause (ii) or (iii) above; provided that the terms and conditions of any
such restrictions are not materially less favorable to the Company or such
Subsidiary than those under the agreement refinanced or replaced; and (v)
customary non-assignment and sublease provisions of any lease governing a
leasehold interest of the Company or such Subsidiary or any contract or
agreement of the Company or such Subsidiary entered into in the ordinary course
of business under which goods or services will be provided.
Section 4.13 Limitation on Liens. The Company shall not, and shall not
permit any Subsidiary to, directly or indirectly, Incur, or suffer to exist, any
Lien upon any of their respective properties or assets, whether now owned or
hereafter acquired which Property or assets constitute Collateral, other than
Permitted Liens. 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
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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 4.14 Waiver of Stay; Extension or Usury Laws. The Company
covenants (to the extent that it may lawfully do so) that it shall not at any
time insist upon, plead, or in any manner whatsoever claim or take the benefit
or advantage of, any stay or extension law or any usury law or other law which
would prohibit or forgive the Company from paying all or any portion of the
principal of or interest on the Notes as contemplated herein, wherever enacted,
now or at any time hereafter in force, or which may affect the covenants or the
performance of this Indenture; and (to the extent that it may lawfully do so)
the Company hereby expressly waives all benefit or advantage of any such law,
and covenants that it shall not hinder, delay or impede the execution of any
power herein granted to the Trustee, but shall suffer and permit the execution
of every such power as though no such law had been enacted.
It is the intention of the parties hereto to comply strictly with
applicable usury laws; accordingly, notwithstanding any provision to the
contrary in this Indenture or in any of the documents securing the payment of
the Notes or otherwise relating thereto, in no event shall this Indenture or
such documents require or permit the payment, charging, taking, reserving, or
receiving of any sums constituting interest under applicable laws which exceed
the maximum amount permitted by such laws. If any such excess interest is
contracted for, charged, taken, reserved, or received in connection with the
Notes or in any of the documents securing the payment thereof or otherwise
relating thereto, or in any communication by the Holders or any other Person to
the Company or any other Person, or in the event all or part of the principal or
interest on the Notes shall be prepaid or accelerated, so that under any of such
circumstances or under any other circumstance whatsoever the amount of interest
contracted for, charged, taken, reserved, or received on the amount of principal
actually outstanding from time to time under the Notes shall exceed the maximum
amount of interest permitted by applicable usury laws, then in any such event it
is agreed as follows: (i) the provisions of this paragraph shall govern and
control, (ii) any such excess shall be deemed an accidental and bona fide error
and canceled automatically to the extent of such excess, and shall not be
collected or collectible, (iii) any such excess which is or has been paid or
received notwithstanding this paragraph shall be credited against the then
unpaid principal balance on the Notes or refunded to the Company, at the
Holders' option, and (iv) the effective rate of interest shall be automatically
reduced to the maximum lawful rate allowed under applicable laws as construed by
courts having jurisdiction hereof or thereof. Without limiting the foregoing,
all calculations of the rate of interest contracted for, charged, taken,
reserved, or received in connection herewith which are made for the purpose of
determining whether such rate exceeds the maximum lawful rate shall be made to
the extent permitted by applicable laws by amortizing, prorating, allocating and
spreading during the period of the full term of the Notes, including all prior
and subsequent renewals and extensions, all interest at any time contracted for,
charged, taken, reserved, or received. The terms of this paragraph shall be
deemed to be incorporated in every document, security instrument, and
communication relating to this Indenture and the Notes.
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Section 4.15 Separate Existence and Formalities. The Company hereby
covenants and agrees that:
(a) it shall maintain procedures designed to prevent commingling
of the funds of the Company and its Subsidiaries, other than pursuant to the
Services Agreement and the Tax Allocation Agreement;
(b) all actions taken by the Company and its Subsidiaries shall
be taken pursuant to authority granted by the Board of Directors of the Company
and its Subsidiaries, to the extent required by law or the Company's and its
Subsidiaries' Certificate of Incorporation or By-laws;
(c) the Company and its Subsidiaries shall maintain separate
records and books of account in each case in accordance with GAAP;
(d) the Company and its Subsidiaries shall maintain correct
minutes of the meetings and other corporate proceedings of the owners of its
capital stock and the Board of Directors and otherwise comply with requisite
corporate formalities required by law;
(e) the Company and its Subsidiaries shall not knowingly mislead
any other Person as to the identity or authority of the Company and its
Subsidiaries; and
(f) the Company and its Subsidiaries shall maintain procedures
designed to assure that all written communications of the Company and its
Subsidiaries, including, without limitation, letters, invoices, purchase orders,
contracts, statements and applications, shall appropriately identify the entity
on whose behalf such communication is made.
Section 4.16 [INTENTIONALLY OMITTED]
Section 4.17 Repurchase of Notes at the Option of the Holder Upon a
Change of Control.
(a) In the event that a Change of Control occurs, each Holder of
Notes shall have the right, at such Holder's option, subject to the terms and
conditions of this Indenture, to require the Company to repurchase all or any
part of such Holder's Notes (provided that the principal amount of such Notes
must be $1,000 or an integral multiple thereof) on a date that is no earlier
than 10 Business Days after the Company makes a Change of Control Offer and no
later than 60 Business Days after the occurrence of such Change of Control (the
date on which the repurchase is effected being referred to herein as the "CHANGE
OF CONTROL PAYMENT DATE"), at a cash purchase price equal to 100% of the
aggregate outstanding principal amount of the Notes (the "CHANGE OF CONTROL
PURCHASE PRICE"), plus accrued and unpaid interest, if any, through and
including the Change of Control Payment Date.
(b) The Company shall notify the Trustee within five Business
Days after each date upon which the Company knows, or reasonably should know, of
the occurrence of a Change of Control. Within 20 Business Days after the Company
knows, or reasonably should know, of the occurrence of each Change of Control,
the Company shall make an irrevocable,
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unconditional offer (a "CHANGE OF CONTROL OFFER") to the Holders of Notes to
purchase all of the Notes at the Change of Control Purchase Price by sending
written notice of a Change of Control Offer, by first class mail, to each Holder
at its registered address, with a copy to the Trustee. The notice to Holders
shall contain all instructions and materials required by applicable Law and
shall contain or make available to Holders other information material to such
Holders' decision to tender Notes pursuant to the Change of Control Offer.
(c) On or before the Change of Control Payment Date, the Company
shall (i) accept for payment Notes or portions thereof properly tendered
pursuant to the Change of Control Offer prior to the close of the third Business
Day prior to the Change of Control Payment Date, (ii) deposit with the Paying
Agent U.S. Legal Tender sufficient to pay the Change of Control Purchase Price
of all Notes so tendered, and (iii) deliver or cause to be delivered to the
Trustee Notes so accepted together with an Officers' Certificate listing the
Notes or portions thereof being purchased by the Company. The Paying Agent shall
promptly mail to the Holders of Notes so accepted payment in an amount equal to
the Change of Control Purchase Price, and the Trustee shall promptly
authenticate and mail or deliver to such Holders a new Note equal in principal
amount to any unpurchased portion of the Note surrendered. Any Notes not so
accepted shall be promptly mailed or delivered by the Company to the Holder
thereof. The Company shall publicly announce the results of the Change of
Control Offer on or as soon as practicable after the Change of Control Purchase
Date.
(d) To the extent applicable and if required by law, the Company
shall comply with Section 14 of the Exchange Act and the provisions of
Regulation 14E and any other tender offer rules under the Exchange Act and other
securities laws, rules, and regulations which may then be applicable to any
offer by the Company to purchase the Notes at the option of Holders upon a
Change of Control and, if such laws, rules, and regulations require or prohibit
any action inconsistent with the foregoing, compliance by the Company with such
laws, rules, and regulations shall not constitute a breach of the Company's
obligations with respect to the foregoing.
Section 4.18 Minimum Consolidated Adjusted EBITDA. The Company shall not
permit its Consolidated Adjusted EBITDA to be less than the following respective
amounts for the following respective periods:
AMOUNT
PERIOD (IN MILLIONS)
------ -------------
February 1, 1999 through April 30, 1999..................... $ 15
February 1, 1999 through July 31, 1999...................... $ 35
February 1, 1999 through October 31, 1999................... $ 60
February 1, 1999 through January 31, 2000................... $100
The four quarters ending April 30, 2000..................... $120
The four quarters ending July 31, 2000...................... $140
The four quarters ending October 31, 2000................... $160
The four quarters ending January 31, 2001 and each of the
four quarters ending at the end of each quarter thereafter.. $180
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Section 4.19 Guarantee by Subsidiaries. If the Company or any of its
respective Subsidiaries shall, except as part of the Transaction, make
Investments in an aggregate amount, or otherwise transfer (including by capital
contribution) or cause to be transferred, in a manner otherwise permitted
pursuant to this Indenture, any assets (tangible or intangible), businesses,
divisions, real property, or equipment having a book value as shown in the
Company's most recent consolidated balance sheet or the notes thereto (or if
greater, a fair market value at the time of transfer) in excess of $1,000,000 in
or to any Subsidiary that is not a Guarantor or an obligor on the Notes, the
Company shall (a) cause such transferee Subsidiary to (x) guarantee payment of
the Notes, by executing a Guarantee and (y) execute the appropriate security
document, in substantially the form of the relevant Security Document, necessary
to grant a security interest in all of the assets of such Subsidiary (other than
Inventory and Receivables) to secure such Guarantee and (b) deliver to the
Trustee an Opinion of Counsel, in form reasonably satisfactory to the Trustee,
that such Guarantee and each related security document is a valid, binding and
enforceable obligation of such Subsidiary, subject to customary exceptions for
bankruptcy, fraudulent transfer and equitable principles.
The liability of each Guarantor under its Guarantee shall be
limited to the amount of its Adjusted Net Assets. Each Guarantor that makes a
payment under its Guarantee of the Notes shall be entitled to assert a claim for
reimbursement from each other Guarantor of the payment of the Notes, in each
case in an amount not to exceed the product of (x) the other Guarantor's
Adjusted Net Assets multiplied by (y) a fraction, the numerator of which is the
other Guarantor's Adjusted Net Assets and the denominator of which is the sum of
the Adjusted Net Assets of all Guarantors of the Notes.
Section 4.20 Limitation on Asset Sales. The Company shall not, and shall
not permit any of its Subsidiaries to, consummate an Asset Sale unless: (I) an
amount equal to the Net Cash Proceeds therefrom is (i) in the case of an Asset
Sale by the Company in excess of $5,000,000, deposited in the Construction
Disbursement Account or treated as Remaining Amounts pursuant to Section 4.22,
or (ii) with respect to an Asset Sale by the Company or any of its Subsidiaries
after the Phase II Completion Date, used for Capital Expenditures in a Related
Business within 180 days after the date of such Asset Sale; provided that (a)
prior to the payment in full of the Notes, the aggregate amount does not exceed
$10,000,000, (b) in the case of any Asset Sale or series of related Asset Sales,
at least 85% of the value of the consideration for such Asset Sales consists of
cash, Cash Equivalents or any combination thereof, and (c) the value of
consideration received from each Asset Sale is not less than the fair market
value of the Property subject to such Asset Sale; or (II) such Asset Sale is a
part of the Transaction on the Issue Date. Notwithstanding the foregoing
limitations on Asset Sales and restrictions on the use of Net Cash Proceeds
therefrom (other than clause (c) above):
(A) [INTENTIONALLY OMITTED];
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(B) the Company and its Subsidiaries may engage in Asset Sales
in the ordinary course of business, including, without limitation, in
connection with a financing secured by a pledge or assignment of
Inventory or Receivables;
(C) the Company and its Subsidiaries may engage in Asset Sales
not otherwise permitted in clauses (A), (B) or (D) through (H) of this
Section 4.20, provided that the aggregate proceeds from all such Asset
Sales do not exceed $5,000,000 in any twelve-month period;
(D) the Company and its Subsidiaries may engage in Asset Sales
in accordance with Section 5.2;
(E) the Company and its Subsidiaries may sell, assign, lease,
license, transfer, abandon or otherwise dispose of (a) damaged, worn
out, unserviceable or other obsolete Property in the ordinary course of
business or (b) other Property no longer necessary for the proper
conduct of their business;
(F) the Company and its Subsidiaries may convey, sell, transfer
or otherwise dispose of crude oil and refined products in the ordinary
course of business;
(G) [INTENTIONALLY OMITTED]; and
(H) the Company may transfer the Port Facility Assets in
connection with the Port Commission Bond Financing, or the Tank Storage
Facility in connection with the Tank Storage Debt, or the Substation
Assets in connection with the financing thereof, or in each case any
renewal, refunding or refinancing thereof.
Unless otherwise required by the foregoing clauses (A) through
(H), the proceeds of any Asset Sale permitted thereby shall be used by the
Company or its Subsidiaries for purposes not otherwise prohibited by this
Indenture.
For the purpose of determining compliance with this Section 4.20
with respect to the application or use of the Net Cash Proceeds of any Asset
Sale consummated by the Company or any Subsidiary of the Company, if such Net
Cash Proceeds would be eligible for application or use under or pursuant to more
than one of the categories of application or use permitted under this Section
4.20, the Company shall have the right to determine in its sole discretion the
eligible category or categories of application or use pursuant to which all or
any portion of such Net Cash Proceeds shall be applied or used.
Notwithstanding any exception from the limitations on Asset Sales
and restrictions on the use of Net Cash Proceeds therefrom (other than the
exception set forth in clause (D) above), the Company shall not sell the Delayed
Coking Unit, the Fluid Catalytic Cracking Unit or the Crude Unit unless the Net
Cash Proceeds are deposited in the Construction Disbursement Account pursuant to
Section 4.22.
Section 4.21 Limitation on Line of Business. None of the Company or its
Subsidiaries shall directly or indirectly engage to any substantial extent in
any line or lines of business
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activity other than a Related Business and such other business activities as
are reasonably related or incidental thereto.
Section 4.22 Automatic Payment Upon Completion of Phase II. After the
Phase II Completion Date, the Company is required to use amounts remaining in
the Construction Disbursement Account if such amounts (net of any amount thereof
reserved to satisfy mechanic's liens and other payments to vendors to complete
Phase II but only to the extent the same cannot be funded or paid out of 50% of
the Projected Net Operating Cash Flow for the next 90 day period) equal or
exceed $1,000,000 in the aggregate (the "REMAINING AMOUNTS") to prepay
outstanding Notes (up to the unpaid principal amount thereof), pro rata among
all Holders, at a purchase price in cash in an amount equal to 100% of the
principal amount thereof, plus accrued and unpaid interest thereon to the date
of purchase, which date may not be more than 60 days from the Phase II
Completion Date. If the Remaining Amount is less than $1,000,000, such amount
may be used by the Company for general corporate purposes.
Section 4.23 Event of Loss. The Company and its Subsidiaries shall
deposit the Net Loss Proceeds from any Event of Loss into the Construction
Disbursement Account or, after the Final Disbursement Date (as defined in the
Construction Collateral and Disbursement Agreement), in accordance with the
Mortgage. Within 30 days after any Event of Loss with respect to any Collateral,
the Independent Engineer shall certify to the Trustee and the Disbursement Agent
as to whether the expected Net Loss Proceeds together with all other
unrestricted funds available to the Company will be sufficient to rebuild,
repair, replace or construct the improvements to the Refinery necessary to
complete the Capital Improvement Program or, if the Capital Improvement Program
is complete, the affected Collateral. Within 180 days after any Event of Loss
with respect to any Collateral with a fair market value (or replacement cost, if
greater) of less than $10,000,000, the Company or the affected Subsidiary of the
Company, as the case may be, may apply the Net Loss Proceeds from such Event of
Loss to the rebuilding, repair, replacement or construction of the affected
Collateral, with no concurrent obligation to make any purchase of any Notes;
provided that the Company delivers to the Trustee within 90 days of such Event
of Loss (a) a written certificate from the Independent Engineer that the
affected Collateral can be rebuilt, repaired, replaced, or constructed and the
Refinery operating (or, if the Refinery can operate without such Collateral,
such Collateral will be operating) within 180 days of such Event of Loss and (b)
an Officers' Certificate certifying that the Company has available from Net Loss
Proceeds or other sources sufficient funds to complete such rebuilding, repair,
replacement or construction. If (i) the Collateral with respect to the Event of
Loss has a fair market value (or replacement cost, if greater) in excess of
$10,000,000 or (ii) the Net Loss Proceeds with respect to one or more Events of
Loss not used within any 180-day period to rebuild, repair or replace the
affected Collateral equals or exceeds in the aggregate $10,000,000, then the
Company shall make an offer to all Holders to purchase the maximum principal
amount of Notes that may be purchased out of the Net Loss Proceeds (an "EVENT OF
LOSS OFFER"), at a purchase price in cash in an amount equal to 100% of the
principal amount thereof, plus accrued and unpaid interest thereon to the date
of purchase, which date shall not be less than 30 or more than 60 days from the
date of such Event of Loss Offer, in accordance with this Indenture. If the
aggregate principal amount of Notes tendered pursuant to an Event of Loss Offer
exceeds the Net Loss Proceeds, the Trustee shall select the Notes to be
purchased in the manner set forth in this Indenture. To the extent that the
aggregate amount of Notes tendered
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pursuant to any Event of Loss Offer is less than the Net Loss Proceeds, the
Company may, subject to the other provisions of this Indenture and the other
Security Documents, use any remaining Net Loss Proceeds for general corporate
purposes.
Section 4.24 Compliance with Environmental Laws. The Company shall:
(a) comply with all Environmental Laws and Environmental
Approvals applicable to the ownership, construction, operation and use
of the Site and the Project, use best efforts to cause all tenants,
operators, lessees, employees, invitees, licensees, contractors,
subcontractors, agents, representatives, Affiliates, consultants and
other Persons occupying the Site or the Project to comply with all such
Environmental Laws and Environmental Approvals, and promptly pay or
cause to be paid when due all costs and expenses incurred in connection
with such compliance as such costs and expenses become due and payable,
except for such failures to comply as could not reasonably be expected
to result in (i) investigation, response or cleanup costs or liabilities
to third parties outstanding at any one time that exceed $2,000,000 per
non-compliance or series of related non-compliances or $10,000,000, in
the aggregate, for all such non-compliances (excluding up to $5,000,000
of response or clean up costs related to the Tank Storage Facility), or
(ii) unpaid fines or penalties outstanding at any one time that exceed
$100,000 per non-compliance or series of related non-compliances or
$5,000,000, in the aggregate, for all such non-compliances; provided
that such failures to comply are remedied as soon as reasonably
practicable after discovery by or notification to the Company or earlier
if required by Environmental Law; provided further that any contingent
liabilities for the payment of money that have not been resolved,
settled, or reduced to judgment shall not be considered outstanding if
the company has recorded adequate reserves for the payment thereof;
(b) not generate, use, treat, store, release, dispose of,
arrange for the disposal of or transport, or fail to use best efforts to
prevent the use, generation, treatment, storage, release, disposal or
transportation of Hazardous Materials by any third party in, on, at,
under, from or to the Site or the Project or onto any other Property
except for such use, generation, treatment, release, storage, disposal
or transportation that could not reasonably be expected to result in
investigation, response or cleanup costs, or unpaid fines, penalties or
liabilities to third parties outstanding at any one time that exceed
$2,000,000 relating to individual events or series of related events or
$10,000,000, in the aggregate for all such events; provided that such
costs, fines, penalties or liabilities are paid or discharged (or, in
the event of contingent liabilities for the payment of money that have
not been resolved, settled or reduced to judgment, the Company has
recorded adequate reserves for the payment thereof) as soon as
reasonably practicable after discovery by or notification to the Company
or earlier if required by Environmental Law; provided further that any
contingent liabilities for the payment of money that have not been
resolved, settled, or reduced to judgment shall not be considered
outstanding if the company has recorded adequate reserves for the
payment thereof;
(c) conduct any investigation, study, sampling and testing, and
undertake any cleanup, removal, remedial or other action necessary to
remove and clean
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up all Hazardous Materials from the Site and any operations thereon in
accordance with the requirements of all applicable Environmental Laws,
and in accordance with the orders and directives of all Governmental
Authorities; and
(d) develop and implement a plan for evaluating environmental
compliance and environmental risk management issues relating to the
construction, ownership and operation of the Refinery, Project and Site,
and for remedying as soon as practicable conditions and circumstances
that constitute failures to comply with applicable Environmental Law and
Environmental Approvals or that otherwise fail to comply with
environmental compliance and risk management objectives established and
approved by the Board of Directors of the Company.
Section 4.25 Maintenance of Rights. The Company shall, and shall cause
each of its Subsidiaries to, preserve and enforce all its rights, and comply
with all its respective obligations, under the Project Agreements and shall
comply with all Requirements of Law, in each case except to the extent
noncompliance could not reasonably be expected to result in a Material Adverse
Change or except as otherwise provided under Section 4.28.
Section 4.26 Use of Proceeds. The Company shall use the aggregate net
cash proceeds from the sale of, and in connection with the subsequent assumption
by the Company of, the Notes strictly to, (i) complete the Capital Improvement
Program and otherwise cause the Refinery to become operational, (ii) repay
certain obligations of the Company or (iii) permit TCR Holding to pay interest
due on December 15, 1998 under the Promissory Note dated October 1, 1998 made by
TARC in favor of TEC. The Company shall make additional deposits into the
Construction Disbursement Account as required by the Construction Collateral and
Disbursement Agreement.
Section 4.27 Independent Engineer. The Company shall cooperate in all
reasonable respects with the Independent Engineer in the performance of its
duties under the Construction Collateral and Disbursement Agreement.
Section 4.28 Amendments, Waivers and Enforcement of Certain Agreements.
The Company shall not, directly or indirectly, consent to or enter into any
transfer of rights, termination, assignment, amendment or waiver under, of or to
any Project Agreement, without the consent of the Majority Holders to such
proposed transfer, termination, assignment, amendment or waiver; provided,
however, that such consent shall not be required if (i) no Event of Default
shall have occurred and be continuing and as a result of such transfer,
termination, assignment, amendment or waiver, no Default or Event of Default
shall have occurred and be continuing, and (ii) the proposed transfer,
termination, assignment, amendment or waiver could not reasonably be expected to
adversely affect the Company's ability to repay any Notes on a timely basis or
to comply with the terms of this Indenture (as certified by the Independent
Engineer) or the ability of the Trustee, on behalf of the Holders, to realize on
the Collateral. In the case of any entry into an amendment to any Project
Agreement or the entry into any replacement Project Agreement, the Company shall
take all necessary actions (including the execution, filing and recording of any
public deed or other instrument or document) to continue or create, as the case
may be, and to perfect the first-priority Lien of the Security Documents on
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such Project Agreement or such replacement agreement, and, within forty-five
(45) days of the end of each fiscal year of the Company, the Company shall
deliver to the Trustee an Opinion of Counsel to the effect that all Project
Agreements to which the Company is then a party shall comprise part of the
Collateral and be subject to the Lien of the Security Documents.
Section 4.29 Modifications of Charter Documents. The Company shall not
amend or modify any of its charter documents (except as may be required by Law
or in connection with the Transaction) or change its fiscal year unless such
action could not reasonably be expected to result in a Material Adverse Change.
Section 4.30 Capital Expenditures. The Company shall not, and shall not
permit its Subsidiaries to, make any material Capital Expenditure not provided
for in the capital budget set forth in the Capital Improvement Plan, except as
necessary to comply with Applicable Law, including Environmental Law.
Section 4.31 Notice of Default. The Company shall notify the Trustee
promptly, but in all cases within five Business Days, after the Company obtains
knowledge of the occurrence thereof, written notice of the occurrence of any
event or condition that constitutes (or that, upon notice or lapse of time or
both, would constitute) a Default or an Event of Default, specifically stating
that such event or condition has occurred and describing the nature thereof and
the action the Company proposes to take with respect thereto.
Section 4.32 Limitation on Issuance of Preferred Stock by Subsidiaries.
The Company shall not permit any of its Subsidiaries to, directly or indirectly,
issue, contingently or otherwise, any shares of such Subsidiary's Preferred
Stock, warrants, rights or options to purchase or acquire shares of such
Subsidiary's Preferred Stock now or hereafter authorized for issuance except to
the Company or a wholly owned Subsidiary of the Company.
ARTICLE V
SUCCESSOR CORPORATION
Section 5.1 When the Company and its Subsidiaries May Merge, Etc.
(a) The Company shall not, and shall not permit any of its
Subsidiaries to, consolidate with or merge with or into any other Person, or,
directly or indirectly, sell, lease, assign, transfer or convey all or
substantially all of its assets (computed on a consolidated basis), to another
Person or group of Persons acting in concert, whether in a single transaction or
through a series of related transactions, unless:
(A) in accordance with the Asset Sale Agreements; or
(B) subsequent to the consummation of all of the
transactions contemplated by clause (A) above (i) either (a) the Company
or such Subsidiary, as the case may be, shall be the continuing Person
or (b) the resulting, surviving, or transferee entity (the Company or
such other Person being hereinafter referred to as the "SURVIVING
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PERSON") shall be a corporation, limited liability company or
partnership organized under the laws of the United States, any state
thereof, or the District of Columbia, and shall expressly assume all of
the obligations of the Company or such Subsidiary, as the case may be,
under the Notes, the Security Documents, the Exchange and Registration
Rights Agreement, the Stockholder Agreements, the Registration Rights
Agreement and this Indenture by a supplemental indenture or other
appropriate document supplemental hereto, and execute and deliver to the
Trustee on or prior to the consummation of such transaction, in form
satisfactory to the Trustee, any supplements to any Security Documents
as the Trustee, in its sole discretion, may require to ratify and
confirm the continuing first priority of, and to regrant, the Liens
(subject to Permitted Liens) created by the Security Documents; (ii) no
Default or Event of Default shall exist or shall occur immediately after
giving effect to such transaction; (iii) immediately after giving effect
to such transaction on a pro forma basis, the Net Worth of the surviving
or transferee entity is at least equal to the Net Worth of such
predecessor or transferring entity immediately prior to such
transaction; (iv) the surviving or transferee entity would immediately
thereafter be permitted to Incur at least $1.00 of additional
Subordinated Debt pursuant to the third paragraph following clause (n)
of Section 4.11; and (v) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, assignment, or transfer and such supplemental
indenture comply with this Article V and that all conditions precedent
herein provided relating to such transaction have been satisfied.
For purposes of this Section 5.1, the Consolidated Fixed Charge
Coverage Ratio shall be determined on a pro forma consolidated basis (after
giving effect to such transaction) for the four fiscal quarters immediately
preceding such transaction.
(b) For purposes of clause (a), the sale, lease, conveyance,
assignment, transfer, or other disposition of all or substantially all of the
properties and assets of one or more Subsidiaries of the Company, which
properties and assets, if held by the Company instead of such Subsidiaries,
would constitute all or substantially all of the properties and assets of the
Company on a consolidated basis, shall be deemed to be the transfer of all or
substantially all of the properties and assets of the Company.
Section 5.2 Successor Corporation Substituted. Upon any consolidation or
merger or any transfer of all or substantially all of the assets of the Company
or any of its Subsidiaries in accordance with Section 5.1, the Surviving Person
formed by such consolidation or into which the Company 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 Subsidiary under this
Indenture or the other Security Documents with the same effect as if such
Surviving Person had been named as the Company herein. Upon consummation of the
Transaction on the Issue Date (including, without limitation, the transactions
contemplated by the Asset Sale Agreements), then TARC and TCR Holding
respectively will be released from all obligations under this Indenture and the
other Security Documents, TransContinental will be the "Company" for all
purposes of this Indenture and the other Security Documents and TARC and TCR
Holding will have no rights or interests under this Indenture.
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ARTICLE VI
EVENTS OF DEFAULT AND REMEDIES
Section 6.1 Events of Default. "Event of Default," wherever used herein,
means any one of the following events (whatever the reason for such Event of
Default and whether it shall be caused voluntarily or involuntarily or effected,
without limitation, by operation of law or pursuant to any judgment, decree or
order of any court or any order, rule or regulation of any administrative or
governmental body):
(a) default in the payment of any interest upon any Note as and
when the same becomes due and payable, and the continuance of such default for a
period of 30 days;
(b) default in the payment of all or any part of the principal
of (or premium, if any, applicable to), the Notes when and as the same becomes
due and payable at maturity, redemption, by acceleration, or otherwise including
payment of the Change of Control Purchase Price;
(c) default in the observance or performance of, or breach of,
any covenant, agreement or warranty of the Company or any of its Subsidiaries
contained in the Notes or this Indenture or any of the Security Documents (other
than a default in the performance of any covenant, agreement or warranty which
is specifically dealt with elsewhere in this Section 6.1), and continuance of
such default or breach for the period of 30 days after written notice is given
to the Company by the Trustee or the Company and the Trustee by the Majority
Holders;
(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
or any of its Subsidiaries with an aggregate principal amount in excess of
$5,000,000, if by reason of such default the principal of such Debt and all
accrued interest thereon has been declared due and payable, or failure to pay
such Debt at its stated maturity, provided that a waiver by all of the requisite
lenders of such debt of such default shall constitute a waiver hereunder for the
same period;
(e) a decree, judgment, or order by a court of competent
jurisdiction shall have been entered adjudging the Company or any of its
Subsidiaries or TCR Holding as bankrupt or insolvent, or ordering relief against
the Company or any of its Subsidiaries, TEC, TARC or TCR Holding in response to
the commencement of an involuntary bankruptcy case, or approving as properly
filed a petition seeking reorganization or liquidation of the Company or any of
its Subsidiaries or TCR Holding under any bankruptcy or similar law, and such
decree or order shall have continued undischarged and unstayed for a period of
60 days; or a decree or order of a court of competent jurisdiction over the
appointment of a receiver, liquidator, trustee, or assignee in bankruptcy or
insolvency of the Company, any of its Subsidiaries, TEC, TARC, TCR Holding, or
of the Property of any such Person, or for the winding up or liquidation of the
affairs of any such Person, shall have been entered, and such decree, judgment,
or order shall have remained in force undischarged and unstayed for a period of
60 days;
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(f) the Company or any of its Subsidiaries, TEC, TARC or TCR
Holding shall institute voluntary bankruptcy proceedings, or shall consent to
the filing of a bankruptcy proceeding against it, or shall file a petition or
answer or consent seeking reorganization or liquidation under any bankruptcy or
similar law or similar statute, or shall consent to the filing of any such
petition, or shall consent to the appointment of a Custodian, receiver,
liquidator, trustee, or assignee in bankruptcy or insolvency of it or any of its
assets or Property, or shall make a general assignment for the benefit of
creditors, or shall admit in writing its inability to pay its debts generally as
they become due, or shall, within the meaning of any Bankruptcy Law, become
insolvent, fail generally to pay its debts as they become due, or take any
corporate action in furtherance of or to facilitate, conditionally or otherwise,
any of the foregoing;
(g) final judgments not covered by insurance for the payment of
money, or the issuance of any warrant of attachment against any portion of the
Property or assets of the Company or any Subsidiary, which, in the aggregate,
equal or exceed $5,000,000 at any one time shall be entered against the Company
or any of its Subsidiaries by a court of competent jurisdiction and not be
stayed, bonded or discharged for a period (during which execution shall not be
effectively stayed) of 60 days (or, in the case of any such final judgment which
provides for payment over time, which shall so remain unstayed, unbonded or
undischarged beyond any applicable payment date provided therein);
(h) any of the Security Documents shall for any reason cease to
be in full force and effect (except where no material adverse effect to the
Holders would result), or shall cease to give the Trustee for the ratable
benefit of the Holders the Liens, rights, powers and privileges purported to be
created thereby including but not limited to, a perfected security interest in,
and Lien on, the Collateral in accordance with the terms thereof (including,
without limitation, a first priority perfected Lien (subject to Permitted Liens)
on the Collateral), except where the failure to have such Lien, rights, powers
and privileges shall not have a material adverse effect on the Holders;
(i) the Phase I Completion Date has not occurred by the Required
Phase I Completion Date;
(j) the Phase II Mechanical Completion Date has not occurred by
October 1, 1999;
(k) the Reliability Test has not been completed by June 30,
2001;
(l) the Phase II Completion Date has not occurred by December 1,
1999;
(m) any of the Stockholders Agreements shall cease to be in full
force and effect or cease to cause the election of directors by the parties
thereto as set forth therein;
(n) the actual cost of Phase I from and including November 1,
1998 exceeds the amount budgeted therefor (including contingency amounts) as set
forth in the Budget by more than $1,000,000; or
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(o) the actual cost of Phase II from and including November 1,
1998 exceeds the amount budgeted therefor (including contingency amounts) as set
forth in the Budget by more than the sum of $6,000,000 and the amount, if any,
by which the amount budgeted for Phase I (including contingency amounts) as set
forth in the Budget exceeds the actual cost of Phase I from and including
November 1, 1998.
If a default occurs and is continuing and if a Trust Officer of
the Trustee receives written notice thereof, the Trustee must, within 30 days
after the occurrence of such default, give to the Holders notice of such
default; provided that, except in the case of default in payment of principal
of, premium, if any, or interest on the Notes, including a default in the
payment of the Change of Control Purchase Price, the Trustee will be protected
in withholding such notice if it in good faith determines that the withholding
of such notice is in the interest of the Holders.
A Default under clause (c) above (other than in the case of any
Defaults under Sections 4.3, 4.11 or 5.1, which Defaults shall be Events of
Default without the notice specified in this paragraph or Section 4.7(c) and
upon the passage of 10 days) is not an Event of Default until the Trustee
notifies the Company, or the Majority Holders notify the Company and the Trustee
of the Default, and the Company does not cure the Default within 30 days after
receipt of the notice. The notice must specify the Default, demand that it be
remedied and state that the notice is a "Notice of Default." Such notice shall
be given by the Trustee if so requested by the Majority Holders.
In the case of any Event of Default pursuant to the provisions of
this Section 6.1 occurring by reason of any willful action (or inaction) taken
(or not taken) by or on behalf of the Company or any Subsidiary with the
intention of avoiding the period of time the Notes are not optionally redeemable
or the payment of the premium which the Company would have to pay if the Company
then had elected to redeem the Notes pursuant to Paragraph 5 of the Notes, an
equivalent premium shall also become and be immediately due and payable to the
extent permitted by law, anything in this Indenture or in the Notes to the
contrary notwithstanding.
Section 6.2 Acceleration of Maturity Date; Rescission and Annulment. If
an Event of Default (other than an Event of Default specified in Section 6.1(e)
or (f) relating to the Company or its Subsidiaries) occurs and is continuing,
then, and in every such case, unless the principal of all of the Notes shall
have already become due and payable, either the Trustee or the Majority Holders,
by a notice in writing to the Company and to the Disbursement Agent (and to the
Trustee if given by Holders) (an "ACCELERATION NOTICE"), may declare all of the
principal of the Notes determined as set forth below, including in each case
accrued interest thereon, or, as appropriate, the Change of Control Purchase
Price, to be due and payable immediately. If an Event of Default specified in
Section 6.1(e) or (f) relating to the Company or its Subsidiaries occurs, all
principal and accrued interest on the Notes shall be immediately due and payable
on all outstanding Notes without any declaration or other act on the part of the
Trustee or the Holders.
At any time prior to such a declaration of acceleration being
made, the Majority Holders, by written notice to the Company and the Trustee,
may waive, on behalf of all Holders,
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any default or potential default if the Company has paid or deposited with the
Trustee a sum sufficient to pay:
(1) all accrued but unpaid interest on all Notes,
(2) the principal of (and premium, if any, applicable to) any
Notes and accrued but unpaid interest thereon at the rate borne by the
Notes,
(3) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate borne by the Notes, and
(4) all sums paid or advanced by the Trustee hereunder and the
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel.
Section 6.3 Collection of Indebtedness and Suits for Enforcement by
Trustee. The Company covenants that if an Event of Default in payment of
principal, premium or interest specified in Section 6.1 occurs and is
continuing, the Company shall, upon demand of the Trustee, pay to the Trustee,
for the benefit of the Holders of such Notes, the whole amount then due and
payable on such Notes for principal, premium (if any) and interest, and, to the
extent that payment of such interest shall be legally enforceable, interest on
any overdue principal (and premium, if any) and on any overdue interest, at the
rate borne by the Notes, and, in addition thereto, such further amount as shall
be sufficient to cover the costs and expenses of collection, including
compensation to, and expenses, disbursements and advances of the Trustee, its
agents and counsel.
If the Company fails to pay such amounts within ten days of such
demand, the Trustee, in its own name and as trustee of an express trust in favor
of the Holders, may institute a judicial proceeding for the collection of the
sums so due and unpaid, may prosecute such proceeding to judgment or final
decree and may enforce the same against the Company or any other obligor upon
the Notes and collect the moneys adjudged or decreed to be payable in the manner
provided by law out of the Property of the Company or any other obligor upon the
Notes, wherever situated. If an Event of Default occurs and is continuing, the
Trustee may in its discretion proceed to protect and enforce its rights and the
rights of the Holders by such appropriate judicial proceedings as the Trustee
shall deem most effective to protect and enforce any such rights, whether for
the specific enforcement of any covenant or agreement in this Indenture or in
aid of the exercise of any power granted herein, or to enforce any other proper
remedy.
The Trustee shall also be authorized to take whatever additional
action at law or in equity may appear to be necessary or desirable to collect
the monies necessary to pay the principal, premium (if any) and interest on the
Notes.
Section 6.4 Trustee May File Proofs of Claim. In case of the pendency of
any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
the Company or any other obligor upon the
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Notes or the Property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Notes shall
then be due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand on the Company or
any obligor for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise to take any and
all actions under the TIA, including:
(a) to file and prove a claim for the whole amount of principal
(and premium, if any) and interest owing and unpaid in respect of the Notes and
to file such other papers or documents as may be necessary or advisable in order
to have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agent and
counsel) and of the Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other Property payable
or deliverable on any such claims and to distribute the same;
and any debtor-in-possession or Custodian or other similar official in any such
judicial proceeding is hereby authorized by each Holder to make such payments to
the Trustee and, in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due it
for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.7.
Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment, or composition affecting the Notes
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
Section 6.5 Trustee May Enforce Claims Without Possession of Notes. All
rights of action and claims under this Indenture or the Notes may be prosecuted
and enforced by the Trustee without the possession of any of the Notes or the
production thereof in any proceeding relating thereto, and any such proceeding
instituted by the Trustee shall be brought in its own name as trustee of an
express trust in favor of the Holders, and any recovery of judgment shall, after
provision for the payment of compensation to, and expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the ratable benefit of
the Holders of the Notes in respect of which such judgment has been recovered.
Section 6.6 Priorities. Any money collected by the Trustee pursuant to
this Article VI shall be applied in the following order, at the date or dates
fixed by the Trustee and, in case of the distribution of such money on account
of principal, premium (if any) or interest, upon presentation of the Notes and
the notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: To the Trustee in payment of all amounts due pursuant to
Section 7.7;
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SECOND: To the Holders in payment of the amounts then due and
unpaid for principal of, premium (if any) and interest on, the Notes in
respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Notes for principal,
premium (if any) and interest, respectively; and
THIRD: To whomsoever may be lawfully entitled thereto, the
remainder, if any.
Section 6.7 Limitation on Suits. No Holder of any Note shall have any
right to order or direct the Trustee to institute any proceeding, judicial or
otherwise, with respect to this Indenture, or for the appointment of a receiver
or trustee, or for any other remedy hereunder, unless:
(a) such Holder has previously given written notice to the
Trustee of a continuing Event of Default;
(b) the Majority Holders shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder; and
(c) such Holder or Holders have offered to the Trustee security
reasonably acceptable to the Trustee or indemnity against the costs, expenses
and liabilities to be incurred or reasonably probable to be incurred in
compliance with such request;
it being understood and agreed that no Holder (including, without limitation,
any Direct Purchaser) shall constitute or be deemed to be an agent, trustee or
fiduciary in any capacity under this Indenture or the other Security Documents
of any other Holder or have any duties or responsibilities to any Holder or be
required to initiate or conduct any action on behalf of any other Holder. Each
Holder (including, without limitation, each Direct Purchaser) may, at all times,
act to further its own interests without regard to the interests of any other
Holder and no such action will create any liability of any such Holder or Direct
Purchaser to any other Holder.
Section 6.8 Unconditional Right of Holders to Receive Principal, Premium
and Interest. Notwithstanding any other provision of this Indenture, the Holder
of any Note shall have the right, which is absolute and unconditional, to
receive payment of the principal of, and premium (if any) and interest on, such
Note on the Maturity Dates of such payments as expressed in such Note and to
institute suit for the enforcement of any such payment after such respective
dates, and such rights shall not be impaired without the consent of such Holder.
Section 6.9 Rights and Remedies Cumulative. Except as otherwise provided
with respect to the replacement or payment of mutilated, destroyed, lost or
stolen Notes in Section 2.7, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders is intended to be exclusive of any
other right or remedy, and every right and remedy shall, to the extent permitted
by law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The
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assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.
Section 6.10 Delay or Omission Not Waiver. No delay or omission by the
Trustee or by any Holder of any Note to exercise any right or remedy arising
upon any Default or Event of Default shall impair the exercise of any such right
or remedy or constitute a waiver of any such Event of Default. Every right and
remedy given by this Article VI or by law to the Trustee or to the Holders may
be exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders, as the case may be.
Section 6.11 Control by Holders. The Majority Holders shall have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or exercising any trust or power conferred upon
the Trustee, provided that:
(a) such direction shall not be in conflict with any rule of law
or with this Indenture,
(b) the Trustee shall not determine that the action so directed
would be unjustly prejudicial to the Holders not taking part in such direction
or that such action may involve the Trustee in personal liability,
(c) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(d) the Trustee shall be entitled to be indemnified by the
Holders before taking any such action directed by the Holders.
Section 6.12 Waiver of Past Default. Subject to Section 6.8, the
Majority Holders may, on behalf of all Holders, prior to the declaration of the
maturity of the Notes, waive any past default hereunder and its consequences,
except a default in the payment of the principal of, premium, if any, or
interest on, any Note as specified in clauses (a) and (b) of Section 6.1.
Upon any such waiver, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair the exercise of any right arising therefrom.
Section 6.13 Undertaking for Costs. All parties to this Indenture agree,
and each Holder of any Note by his acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken, suffered or omitted to be taken by it as
Trustee, the filing by any party litigant in such suit of an undertaking to pay
the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees, against any party
litigant in such suit, having due regard to the merits and good faith of the
claims or defenses made by such party litigant; but the provisions of this
Section 6.13 shall not apply to any suit instituted by the Trustee, to any suit
instituted by any Holder, or group
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of Holders, holding in the aggregate more than 10% in aggregate principal amount
of the outstanding Notes, or to any suit instituted by any Holder for
enforcement of the payment of principal of, or premium (if any) or interest on,
any Note on or after the respective Maturity Date expressed in such Note
(including, in the case of redemption, on or after the Redemption Date).
Section 6.14 Restoration of Rights and Remedies. If the Trustee or any
Holder has instituted any proceeding to enforce any right or remedy under this
Indenture and such proceeding has been discontinued or abandoned for any reason,
or has been determined adversely to the Trustee or to such Holder, then and in
every case, subject to any determination in such proceeding, the Company, the
Trustee and the Holders shall be restored severally and respectively to their
former positions hereunder and thereafter all rights and remedies of the Trustee
and the Holders shall continue as though no such proceeding had been instituted.
ARTICLE VII
TRUSTEE
The Trustee hereby accepts the trust imposed upon it by this
Indenture and covenants and agrees to perform the same, as herein expressed.
Section 7.1 Duties of Trustee
(a) After a Default or an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Indenture and use the same degree of care and skill in their exercise
as a prudent person would exercise or use under the circumstances in the conduct
of his own affairs.
(b) Except during the continuance of a Default or an Event of
Default:
(1) The Trustee need perform only those duties as are
specifically set forth in this Indenture and no others, and no
covenants or obligations shall be implied in or read into this
Indenture which are adverse to the Trustee.
(2) In the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates
or opinions furnished to the Trustee and conforming to the
requirements of this Indenture. The Trustee shall examine
certificates and opinions which are required under this
Indenture to be delivered to the Trustee to determine whether or
not they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of
paragraph (b) of this Section 7.1.
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(2) The Trustee shall not be liable for any error of
judgment made in good faith by a Trust Officer, unless it is
proved that the Trustee was negligent in ascertaining the
pertinent facts.
(3) The Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance
with a direction received by it pursuant to Section 6.2 or
Section 6.11.
(d) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or to take or omit to take any action
under this Indenture or at the request, order or direction of the Holders or in
the exercise of any of its rights or powers if it shall have reasonable grounds
for believing that repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it.
(e) Every provision of this Indenture that in any way relates to
the Trustee is subject to paragraphs (a), (b), (c), (d), (e) and (f) of this
Section 7.1.
(f) The Trustee shall not be liable for loss on Permitted
Investments made pursuant to this Indenture or interest on any assets received
by it except as the Trustee may agree in writing with the Company. Assets held
in trust by the Trustee need not be segregated from other assets except to the
extent required by law.
Section 7.2 Rights of Trustee. Subject to Section 7.1:
(a) The Trustee may rely and shall be fully protected in acting
or refraining from acting on any document or legal opinion believed by it to be
genuine and to have been signed or presented by the proper Person. The Trustee
need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
consult with counsel and may require an Officers' Certificate or an Opinion of
Counsel, which shall conform to Sections 12.4 and 12.5. The Trustee shall be
entitled to rely upon the advice or written opinion of counsel selected by it
and the Trustee shall not be liable for any action it takes or omits to take in
good faith in reliance on such certificate or opinion.
(c) The Trustee may act through its attorneys and agents and
shall not be responsible for the misconduct or negligence of any agent appointed
with due care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within its
rights or powers.
(e) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, notice, request, direction, consent, order, bond,
debenture, or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters as it may
see fit.
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(f) The Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the request, order
or direction of any of the Holders, pursuant to the provisions of this
Indenture, unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which may be
incurred therein or thereby.
(g) Whenever by the terms of this Indenture, the Trustee shall
be required to transmit notices or reports to any or all Holders, the Trustee
shall be entitled to rely on the information provided by the Registrar as to the
names and addresses of the Holders as being correct. If the Registrar is other
than the Trustee, the Trustee shall not be responsible for the accuracy of such
information.
Section 7.3 Individual Rights of Trustee. The Trustee in its individual
or any other capacity may become the owner or pledgee of Notes and may otherwise
deal with the Company, its Subsidiaries, or their respective Affiliates with the
same rights it would have if it were not Trustee. Any Agent may do the same with
like rights. However, the Trustee must comply with Sections 7.10 and 7.11.
Section 7.4 Trustee's Disclaimer. The Trustee makes no representation as
to the validity or adequacy of this Indenture or the Notes or disclosure
documentation related thereto and it shall not be accountable for the Company's
use of the proceeds from the Notes, and it shall not be responsible for (i) the
use or application of any funds received by a Paying Agent other than the
Trustee, (ii) any statement in the Notes, other than the Trustee's certificate
of authentication or (iii) the sufficiency of the collateral for the Notes. The
Trustee shall have no liability and shall be held harmless by the Holders and
the Company in the event that the Project is not completed, and the Trustee
makes no representations with respect to the likelihood of such completion. For
the avoidance of doubt, under no circumstances shall any provision of this
Indenture or the Mortgage be interpreted to require that the Trustee foreclose
on the Mortgage or exercise any remedy with respect to the Mortgage unless and
until the Trustee has received full indemnification deemed satisfactory to it.
The Trustee shall have no environmental liability whatsoever, and makes no
representations as to the adequacy of the Mortgage or with respect to
environmental contamination of any property subject to the Mortgage. The assets
held or collected by the Trustee described in the third paragraph of Section 7.7
shall (after payment of the fees and expenses of the Trustee) be the sole source
of any funds expended by the Trustee for remediation of potential or actual
environmental costs.
The Trustee shall not be bound to ascertain or inquire as to the
performance or observance of any covenants, conditions or agreements on the part
of the Company hereunder or in any Security Documents, except as specifically
set forth herein or therein.
Section 7.5 Notice of Default. If a Default or an Event of Default
occurs and is continuing and a Trust Officer has received written notice
thereof, the Trustee shall mail to DTC notice of the uncured Default or Event of
Default within 30 days after such Default or Event of Default occurs. Except in
the case of a Default or an Event of Default in payment of principal (or
premium, if any,) of, or interest on, any Note (including all payments due on
any Maturity Date), the Trustee may withhold the notice if and so long as the
Board of Directors, the executive
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committee or a trust committee of directors and/or responsible officers of the
Trustee in good faith determines that withholding the notice is in the interest
of the Holders.
Section 7.6 Reports by Trustee to Holders. On or before each May15th
beginning with May 15, 1999, the Trustee shall, if required, mail to each
Noteholder a brief report dated as of such May 15th that complies with TIA
Section 313(a). The Trustee also shall comply with TIA Sections 313(b) and
313(c).
A copy of each report at the time of its mailing to Noteholders
shall be mailed to the Company and filed with the Commission and each stock
exchange, if any, on which the Notes are listed.
Section 7.7 Compensation and Indemnity. The Company shall pay to the
Trustee from time to time compensation for its services (in whatever capacity
rendered) in accordance with the Trustee's fee schedule, as may be amended from
time to time. The Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Company shall reimburse the
Trustee upon request for all reasonable disbursements, expenses and advances
incurred or made by it. Such expenses shall include the reasonable compensation,
disbursements and expenses of the Trustee's agents, accountants, experts and
counsel. The reasonable fees and expenses of the Trustee's legal counsel shall
be payable on the Issue Date, and on the date of execution and delivery of any
amendment hereto.
The Company shall indemnify the Trustee (in its capacity as
Trustee) and each of its officers, directors, attorneys-in-fact and agents for,
and hold it harmless against, any claim, demand, expense (including but not
limited to, compensation, disbursements and expenses of the Trustees' agents and
counsel), loss or liability incurred by it without negligence or bad faith on
its part, arising out of or in connection with the administration of this trust
and its rights or duties hereunder including the reasonable costs and expenses
of defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder. The Trustee
shall notify the Company promptly of any claim asserted against the Trustee for
which it may seek indemnity. The Company shall defend the claim and the Trustee
shall provide reasonable cooperation at the Company's expense in the defense.
The Trustee may have separate counsel and the Company shall pay the reasonable
fees and expenses of such counsel; provided that the Company will not be
required to pay such fees and expenses if it assumes the Trustee's defense and
there is no conflict of interest as reasonably determined by the Trustee between
the Company and the Trustee in connection with such defense. The Company need
not reimburse any expense or indemnify against any loss or liability to the
extent incurred by the Trustee solely through its negligence, bad faith or
willful misconduct.
Following the occurrence of an Event of Default, to secure the
Company's payment obligations in this Section 7.7, the Trustee shall have a Lien
prior to the Notes on all assets held or collected by the Trustee, in its
capacity as Trustee. Prior to the occurrence of an Event of Default, the Trustee
shall have a Lien prior to the Notes on all such assets, except assets held in
trust to pay principal (and premium, if any,) or interest on particular Notes,
and the Trustee shall be entitled to use such assets to pay the fees and
expenses of the Trustee incurred in the performance of its obligations under
this Indenture relating to the engagement of an
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environmental auditor or engineer to assess the existence, extent and costs of
remediating contamination at the Refinery.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.1(e) or (f) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
The Company's obligations under this Section 7.7 and any Lien
arising hereunder shall survive the resignation or removal of the Trustee, the
discharge of the Company's obligations pursuant to Article VIII and any
rejection or termination of this Indenture under any Bankruptcy Law.
Section 7.8 Replacement of Trustee. The Trustee may resign by so
notifying the Company in writing. The Majority Holders may remove the Trustee by
so notifying the Company and the Trustee in writing and may appoint a successor
trustee with the Company's consent. The Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver, Custodian, or other public officer takes
charge of the Trustee or its Property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company shall promptly appoint a
successor Trustee. Within one year after the successor Trustee takes office, the
Majority Holders may appoint a successor Trustee to replace the successor
Trustee appointed by the Company.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after that
and provided that all sums owing to the Trustee provided for in Section 7.7 have
been paid, the retiring Trustee shall transfer all Property held by it as
Trustee to the successor Trustee, subject to the Lien provided in Section 7.7,
the resignation or removal of the retiring Trustee shall become effective, and
the successor Trustee shall have all the rights, powers and duties of the
Trustee under this Indenture. A successor Trustee shall mail notice of its
succession to each Holder.
If a successor Trustee does not take office within 60 days after
the retiring Trustee resigns or is removed, the retiring Trustee, the Company or
the Holder or Holders of at least 10% in principal amount of the outstanding
Notes may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee fails to comply with Section 7.10, any Noteholder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
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Notwithstanding replacement of the Trustee pursuant to this
Section 7.8, the Company's obligations under Section 7.7 shall continue for the
benefit of the retiring Trustee.
Section 7.9 Successor Trustee by Merger, Etc. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all of its corporate trust business to, another corporation, the resulting,
surviving or transferee corporation without any further act shall, if such
resulting, surviving or transferee corporation is otherwise eligible hereunder,
be the successor Trustee.
Section 7.10 Eligibility; Disqualification. The Trustee shall at all
times satisfy the requirements of TIA Section 310(a)(1), (a)(2) and (a)(5). The
Trustee shall comply with TIA Section 310(b).
Section 7.11 Preferential Collection of Claims against Company. The
Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated.
Section 7.12 No Bond. The Trustee shall not be required to give any bond
or surety in respect to the execution of its trusts, powers, rights and duties
under this Indenture or otherwise in respect of the premises.
Section 7.13 Condition to Action. Notwithstanding anything elsewhere in
this Indenture to the contrary, the Trustee shall have the right, but shall not
be required, to demand, in respect of the authentication of any Notes or any
other action within the purview of this Indenture, any showings, certificates,
opinions, or other information, or corporate action or evidence thereof in
addition to that by the terms hereof required, as a condition of such action by
the Trustee if reasonably deemed desirable by the Trustee for the purpose of
establishing the right to the authentication of any Notes or the taking of any
other action by the Trustee.
Section 7.14 Investment. The Trustee shall not be responsible or liable
for any loss suffered in connection with any investment of funds made by it at
the direction of the Company.
ARTICLE VIII
SATISFACTION AND DISCHARGE
Section 8.1 [INTENTIONALLY OMITTED].
Section 8.2 Termination of Obligations Upon Cancellation of the Notes.
The Company may terminate all of its obligations under this Indenture (subject
to Sections 8.3 and 8.7) when (a) all Notes theretofore authenticated and
delivered (other than Notes which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 2.7) have been delivered to
the Trustee for cancellation or the Company has paid or caused to be paid all
sums payable hereunder by the Company and (b) the Company has delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel, each stating that
all conditions precedent
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specified herein relating to the satisfaction and discharge of this Indenture
have been complied with.
Section 8.3 Survival of Certain Obligations. Notwithstanding the
satisfaction and discharge of this Indenture and of the Notes referred to in
Section 8.2, the respective obligations of the Company and the Trustee under
Sections 2.3, 2.4, 2.5, 2.6, 2.7, 4.1, 4.2, 4.4, 7.7, 8.7 and this Section 8.3
shall survive until the Notes are no longer outstanding, and thereafter the
obligations of the Company and the Trustee under Sections 7.7 and this Section
8.3 shall survive. Nothing contained in this Article VIII shall abrogate any of
the obligations or duties of the Trustee under this Indenture.
Section 8.4 Acknowledgment of Discharge by Trustee. After (i) the
conditions of Section 8.2 have been satisfied, (ii) the Company has paid or
caused to be paid all other sums payable hereunder by the Company and (iii) the
Company has delivered to the Trustee an Officers' Certificate and an Opinion of
Counsel, each stating that all conditions precedent referred to in clause (i),
above, relating to the satisfaction and discharge of this Indenture have been
complied with, the Trustee upon request shall acknowledge in writing the
discharge the Company's obligations under this Indenture except for those
surviving obligations specified in Section 8.3.
Section 8.5 [INTENTIONALLY OMITTED].
Section 8.6 [INTENTIONALLY OMITTED].
Section 8.7 Reinstatement. If the Trustee or Paying Agent is unable to
apply any U.S. Legal Tender or U.S. Government Obligations in accordance with
Section 8.2 by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the Company's obligations under this
Indenture, the Security Documents and the Notes shall be revived and reinstated
as though no deposit had occurred pursuant to Section 8.2 until such time as the
Trustee or Paying Agent is permitted to apply all such U.S. Legal Tender or U.S.
Government Obligations in accordance with Section 8.2; provided, however, that
if the Company has made any payment of principal of or interest on any Notes
because of the reinstatement of its obligations, the Company shall be subrogated
to the rights of the Holders of such Notes to receive such payment from the U.S.
Legal Tender or U.S. Government Obligations held by the Trustee or Paying Agent.
ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 9.1 Supplemental Indentures Without Consent of Holders. Without
the consent of any Holder, the Company, 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 amendments to the Security Documents or the
Construction Collateral and Disbursement Agreement, in form satisfactory to the
Trustee, for any of the following purposes:
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(a) to cure any ambiguity, defect, or inconsistency, or to make
any other provisions with respect to matters or questions arising under this
Indenture, the Security Documents or the Construction Collateral and
Disbursement Agreement 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 provide for additional collateral for the Notes;
(d) 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;
(e) to comply with the TIA; or
(f) after the date upon which a Change of Control Offer is
required to be made, reduce the Change of Control Purchase Price or make changes
in Section 4.17.
Section 9.2 Amendments, Supplemental Indentures and Waivers with Consent
of Holders. Subject to Section 6.8, with the consent of the Majority Holders, by
written act of said Holders (including an electronic mechanism utilized by DTC
as a means of receiving consents or tenders of securities) delivered to the
Company and the Trustee, the Company, when authorized by Board Resolutions, and
the Trustee may amend or supplement this Indenture, the Notes, any of the
Security Documents, or the Plans with respect to Phase I or Phase II or enter
into an indenture or indenture supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or the Notes or of modifying in any manner the rights of the
Holders under this Indenture or the Notes. Subject to Section 6.8, the Majority
Holders may waive compliance by the Company with any provision of this Indenture
or the Notes. Notwithstanding any of the above, however, no such amendment,
supplemental indenture or waiver shall, without the consent of the Holder of
each outstanding Note affected thereby:
(a) reduce the percentage of outstanding principal amount of
Notes whose Holders must consent to an amendment, supplement or waiver of any
provision of this Indenture or the Notes;
(b) reduce the rate or extend the time for payment of interest
on any Note;
(c) reduce the principal amount of any Note;
(d) change the Stated Maturity or the payment date of any
installment of principal of, or the payment date of any installment of interest
on, any Note;
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(e) alter the redemption provisions of Article III or of
Paragraph 5 of the Notes;
(f) make any changes in the provisions concerning waivers of
Defaults or Events of Default by Holders of the Notes (except to increase any
required percentage or to provide that certain other provisions hereof cannot be
modified or waived without the consent of the Holders of each outstanding Note
affected thereby) or the rights of Holders to recover the principal or premium
of, interest on, or redemption payment with respect to, any Note;
(g) make any changes in Section 6.4, 6.7 or this third sentence
of this Section 9.2;
(h) make the principal of, or the interest on, any Note payable
with anything or in any manner other than as provided for in this Indenture
(including changing the place of payment where, or the coin or currency in
which, any Note or any premium or the interest thereon is payable) and the Notes
as in effect on the date hereof; or
(i) after the date upon which a Change of Control Offer is
required to be made, reduce the Change of Control Purchase Price or alter the
provisions of Section 4.17.
It shall not be necessary for the consent of the Holders under
this Section 9.2 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section 9.2
becomes effective, the Company shall mail to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure of
the Company to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such supplemental indenture.
After an amendment, supplement or waiver under this Section 9.2
or 9.4 becomes effective, it shall bind each Holder.
In connection with any amendment, supplement or waiver under this
Article IX, the Company may, but shall not be obligated to, offer to any Holder
who consents to such amendment, supplement or waiver, or to all Holders,
consideration for such Holder's consent to such amendment, supplement or waiver.
Section 9.3 Compliance with TIA. Every amendment, waiver or supplement of this
Indenture or the Notes shall comply with the TIA as then in effect.
Section 9.4 Revocation and Effect of Consents. Until an
amendment, waiver or supplement becomes effective, a consent to it by a Holder
is a continuing consent by the Holder and every subsequent Holder of a Note or
portion of a Note that evidences the same debt as the consenting Holder's Note,
even if notation of the consent is not made on any Note. However, any such
Holder or subsequent Holder may revoke the consent as to his Note or portion of
his Note by written notice to the Company or the Person designated by the
Company as the Person
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to whom consents should be sent if such revocation is received by the Company or
such Person before the date on which the Trustee receives an Officers'
Certificate certifying that the Holders of the requisite principal amount of
Notes have consented (and not theretofore revoked such consent) to the
amendment, supplement or waiver.
The Company may, but shall not be obligated to, fix a Record Date
for the purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver, which Record Date shall be the date so fixed by the
Company notwithstanding the provisions of the TIA. If a Record Date is fixed,
then notwithstanding the last sentence of the immediately preceding paragraph,
those Persons who were Holders at such Record Date, and only those Persons (or
their duly designated proxies), shall be entitled to revoke any consent
previously given, regardless of whether such Persons continue to be Holders
after such Record Date. No such consent shall be valid or effective for more
than 90 days after such Record Date.
After an amendment, supplement or waiver becomes effective, it
shall bind every Noteholder; provided that any such waiver shall not impair or
affect the right of any Holder to receive payment of principal and premium of
and interest on a Note, on or after the respective dates set for such amounts to
become due and payable expressed in such Note, or to bring suit for the
enforcement of any such payment on or after such respective dates.
Section 9.5 Notation on or Exchange of Notes. If an amendment,
supplement or waiver changes the terms of a Note, the Trustee may require the
Holder of the Note to deliver it to the Trustee or require the Holder to put an
appropriate notation on the Note. The Trustee may place an appropriate notation
on the Note about the changed terms and return it to the Holder. Alternatively,
if the Company or the Trustee so determines, the Company in exchange for the
Note shall issue and the Trustee shall authenticate a new Note that reflects the
changed terms. Any failure to make the appropriate notation or to issue a new
Note shall not affect the validity of such amendment, supplement or waiver.
Section 9.6 Trustee to Sign Amendments, Etc. The Trustee shall execute
any amendment, supplement or waiver authorized pursuant to this Article IX,
provided that the Trustee may, but shall not be obligated to, execute any such
amendment, supplement 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 or
waiver authorized pursuant to this Article IX is authorized or permitted by this
Indenture.
ARTICLE X
MEETINGS OF NOTEHOLDERS
Section 10.1 Purposes for Which Meetings May Be Called. A meeting of
Noteholders may be called at any time and from time to time pursuant to the
provisions of this Article X for any of the following purposes:
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(a) to give any notice to the Company or to the Trustee, or to
give any directions to the Trustee, or to waive or to consent to the waiving of
any Default or Event of Default hereunder and its consequences, or to take any
other action authorized to be taken by Noteholders pursuant to any of the
provisions of Article VI;
(b) to remove the Trustee or appoint a successor Trustee pursuant
to the provisions of Article VII;
(c) to consent to an amendment, supplement or waiver pursuant to
the provisions of Section 9.2; or
(d) to take any other action (i) authorized to be taken by or on
behalf of the Holder or Holders of any specified aggregate principal amount of
the Notes under any other provision of this Indenture, or authorized or
permitted by law or (ii) which the Trustee deems necessary or appropriate in
connection with the administration of this Indenture.
Section 10.2 Manner of Calling Meetings. The Trustee may at any time
call a meeting of Noteholders to take any action specified in Section 10.1, to
be held at such time and at such place in the City of New York, New York or
elsewhere as the Trustee shall determine. Notice of every meeting of
Noteholders, setting forth the time and place of such meeting and in general
terms the action proposed to be taken at such meeting, shall be mailed by the
Trustee, first-class postage prepaid, to the Company and to the Holders at their
last addresses as they shall appear on the registration books of the Registrar,
not less than 10 nor more than 60 days prior to the date fixed for a meeting.
Any meeting of Noteholders shall be valid without notice if the
Holders of all Notes then outstanding are present in Person or by proxy, or if
notice is waived before or after the meeting by the Holders of all Notes
outstanding, and if the Company and the Trustee are either present by duly
authorized representatives or have, before or after the meeting, waived notice.
Section 10.3 Call of Meetings by Company or Holders. In case at any time
the Company, pursuant to a Board Resolution, or the Holders of not less than 10%
in aggregate principal amount of the Notes then outstanding, shall have
requested the Trustee to call a meeting of Noteholders to take any action
specified in Section 10.1, by written request setting forth in reasonable detail
the action proposed to be taken at the meeting, and the Trustee shall not have
mailed the notice of such meeting within 20 days after receipt of such request,
then the Company or the Holders of Notes in the amount above specified may
determine the time and place in the City of New York, New York or elsewhere for
such meeting and may call such meeting for the purpose of taking such action, by
mailing or causing to be mailed notice thereof as provided in Section 10.2, or
by causing notice thereof to be published at least once in each of two
successive calendar weeks (on any Business Day during such week) in a newspaper
or newspapers printed in the English language, customarily published at least
five days a week of a general circulation in the City of New York, State of New
York, the first such publication to be not less than 10 nor more than 60 days
prior to the date fixed for the meeting.
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Section 10.4 Who May Attend and Vote at Meetings. To be entitled to vote
at any meeting of Noteholders, a Person shall (a) be a registered Holder of one
or more Notes, or (b) be a Person appointed by an instrument in writing as proxy
for the registered Holder or Holders of Notes. The only Persons who shall be
entitled to be present or to speak at any meeting of Noteholders shall be the
Persons entitled to vote at such meeting and their counsel and any
representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.
Section 10.5 Regulations May Be Made by Trustee; Conduct of the Meeting;
Voting Rights; Adjournment. Notwithstanding any other provision of this
Indenture, the Trustee may make such reasonable regulations as it may deem
advisable for any action by or any meeting of Noteholders, in regard to proof of
the holding of Notes and of the appointment of proxies, and in regard to the
appointment and duties of inspectors of votes, and submission and examination of
proxies, certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it shall think appropriate.
Such regulations may fix a record date and time for determining the Holders of
record of Notes entitled to vote at such meeting, in which case those and only
those Persons who are Holders of Notes at the record date and time so fixed, or
their proxies, shall be entitled to vote at such meeting regardless of whether
they shall be such Holders at the time of the meeting.
The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Noteholders as provided in Section 10.3, in which case the
Company or the Noteholders calling the meeting, as the case may be, shall in
like manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the Majority Holders
represented at the meeting and entitled to vote.
At any meeting each Noteholder or proxy shall be entitled to one
vote for each $1,000 outstanding principal amount of Notes held or represented
by him; provided, however that no vote shall be cast or counted at any meeting
in respect of any Notes challenged as not outstanding and ruled by the chairman
of the meeting to be not then outstanding. The chairman of the meeting shall
have no right to vote other than by virtue of Notes held by him or instruments
in writing as aforesaid duly designating him as the proxy to vote on behalf of
other Noteholders. Any meeting of Noteholders duly called pursuant to the
provisions of Section 10.2 or Section 10.3 may be adjourned from time to time by
vote of the Majority Holders represented at the meeting and entitled to vote,
and the meeting may be held as so adjourned without further notice.
Section 10.6 Voting at the Meeting and Record to Be Kept. The vote upon
any resolution submitted to any meeting of Noteholders shall be by written
ballots on which shall be subscribed the signatures of the Holders of Notes or
of their representatives by proxy and the principal amount of the Notes voted by
the ballot. The permanent chairman of the meeting shall appoint two inspectors
of votes, who shall count all votes cast at the meeting for or against any
resolution and who shall make and file with the secretary of the meeting their
verified written reports in duplicate of all votes cast at the meeting. A record
in duplicate of the proceedings of each meeting of Noteholders shall be prepared
by the secretary of the meeting and there shall be
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attached to such record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more Persons having
knowledge of the facts, setting forth a copy of the notice of the meeting and
showing that such notice was mailed as provided in Section 10.2 or published as
provided in Section 10.3. The record shall be signed and verified by the
affidavits of the permanent chairman and the secretary of the meeting and one of
the duplicates shall be delivered to the Company and the other to the Trustee to
be preserved by the Trustee, the latter to have attached thereto the ballots
voted at the meeting.
Any record so signed and verified shall be conclusive evidence of
the matters therein stated.
Section 10.7 Exercise of Rights of Trustee or Noteholders May Not Be
Hindered or Delayed by Call of Meeting. Nothing contained in this Article X
shall be deemed or construed to authorize or permit, by reason of any call of a
meeting of Noteholders or any rights expressly or impliedly conferred hereunder
to make such call, any hindrance or delay in the exercise of any right or rights
conferred upon or reserved to the Trustee or to the Noteholders under any of the
provisions of this Indenture or of the Notes.
ARTICLE XI
SECURITY
Section 11.1 Grant of Security Interest. In order to secure the payment
and performance of all obligations of the Company with respect to the Notes
including the due and punctual payment of the principal of, interest on and
premium, if any, on the Notes when and as the same shall become due and payable,
whether on an interest payment date, at a Maturity Date, by acceleration, call
for redemption or otherwise, and interest on the overdue principal and interest,
if any, of the Notes, the Company hereby covenants to execute, deliver and file
of record for the benefit of the Holders, the Security Documents to which it is
a party and this Indenture. The Security Documents shall grant to the Trustee a
security interest in the collateral therein described and when filed shall be
deemed hereby incorporated by reference herein to the same extent and as fully
as if set forth in their entirety at this place, and reference is made hereby to
each Security Document for a more complete description of the terms and
provisions thereof. Each Holder, by accepting a Note, agrees to all of the terms
and provisions of the Security Documents and the Trustee agrees to all of the
terms and provisions of the Security Documents signed by it. At such time, if
any, that (a) any Collateral released pursuant to Section 11.4(a)(vii) becomes
unencumbered by the Permitted Liens described in such Section or (b) the Tank
Storage Facility becomes encumbered by Liens securing the Tank Storage Debt or
any refinancing thereof, such released Collateral or the Tank Storage Facility
(as the case may be) shall, for all purposes of this Indenture and the other
Security Documents, become Collateral and the Company shall, in each instance,
confirm that the Security Interests in such Collateral is effective pursuant to
the Security Documents and Section 11.2, duly perfected and subject to no prior
Security Interests other than Permitted Liens.
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Section 11.2 Recording; Opinions of Counsel
(a) The Company has executed, delivered, filed and recorded and
shall execute, deliver, file and record, all instruments and documents, and has
done and shall do all such acts and other things, at the expense of the Company,
as are reasonably necessary to subject the Collateral to the Security Interests.
As soon as practicable, the Company shall execute, deliver, file and record all
instruments and do all acts and other things as may be reasonably necessary or
advisable to perfect, maintain and protect the Security Interests.
(b) The Company shall cause (x) TIA Section 314(b), relating to
Opinions of Counsel regarding the Lien of the Security Documents, and (y) TIA
Section 314(d), relating to the release of Collateral from the Lien of the
Security Documents and Officers' Certificates or other documents regarding fair
value of the Collateral, to be complied with to the extent applicable. Any
certificate or opinion required by TIA Section 314(d) may be made by an Officer
of the Company or any other obligor upon the Notes, as applicable, to the extent
permitted by TIA Section 314(d).
(c) The Company shall furnish to the Trustee, within 30 days
after the end of the Company's first fiscal year after the date hereof, within
30 days after the end of each fiscal year thereafter, and at least 30 days prior
to the expiration of any financing statements filed in connection with the
Security Interests, an Officers' Certificate, dated as of such date, (i) stating
that either (A) all action has been taken with respect to the recording,
registering, filing, rerecording and refiling of this Indenture, all
supplemental indentures, the Security Documents, financing statements,
continuation statements and all other instruments of further assurance as are
necessary and desirable fully to maintain, protect and preserve the Security
Interests and the rights of the Holders and the Trustee hereunder and under the
Security Documents and reciting the details of such action or referring to prior
Officers' Certificates in which such details are given or (B) no such action is
necessary to maintain, preserve and protect the Security Interests and the
rights of the Holders and the Trustee hereunder and under the Security Documents
during such period, (ii) stating either (A) that, with respect to the trademarks
and service marks, all filings with the United States Patent and Trademark
Office, any state office or other appropriate governmental body necessary to
maintain, protect and preserve the Security Interests in the trademarks and
service marks have been made or (B) that no such action is necessary and (iii)
stating what, if any, action of the forgoing character is necessary during the
fiscal year so as to maintain, protect and preserve the rights of the Holders
and the Trustee hereunder and under the Security Documents.
Section 11.3 Disposition of Certain Collateral Without Requesting
Release.
(a) Notwithstanding the provisions of Sections 11.4, 11.5, 11.6
and 11.7, the Company (or with respect to the Security Documents, the grantor of
the security interest thereunder) may, without requesting or receiving the
consent of the Trustee (and any lender, trustee or collateral agent under any of
the Security Documents):
(i) sell, assign, transfer, license or otherwise dispose
of, free from the Security Interests, any personal property
constituting Collateral that has become worn
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out, obsolete, or unserviceable, upon replacing the same with
machinery or equipment constituting Collateral not necessarily
of the same character but, at the time of such sale, assignment,
transfer, license or other disposition, being of at least equal
value and utility as the Property so disposed of, which Property
shall without further action become Collateral subject to the
Security interests;
(ii) (A) sell, assign, transfer, license or otherwise
dispose of, free from the Security Interests, inventory in the
ordinary course of business and consistent with past practices,
(B) collect, liquidate, sell, factor or otherwise dispose of,
free from the Security Interests, notes receivable in the
ordinary course of business and consistent with past practices
or (C) make cash payments (including repayments of Debt
permitted to be Incurred hereby) that are not otherwise
prohibited by this Indenture;
(iii) sell, assign, lease, license, transfer, abandon or
otherwise dispose of (a) damaged, worn out or other obsolete
Property in the ordinary course of business or (b) other
Property certified by the Independent Engineer to be no longer
necessary for the proper conduct of its business; and
(b) Notwithstanding the provisions of subsection (a) above: (x)
the Company (or with respect to the Security Documents, the grantor of the
security interest thereunder) shall not dispose of or transfer (by lease,
assignment, sale or otherwise) Collateral pursuant to the provisions of Section
11.3(a)(ii) or (iii), having, in the good faith judgment of the Company (or with
respect to the Security Documents, the grantor of the security interest
thereunder) and, if required by the TIA, an Appraiser, a fair value of 5% or
more of the aggregate fair value of all Collateral then existing in any
transaction or any series of related transactions without complying with Section
11.4; and (y) the right of the Company (or with respect to the Security
Documents, the grantor of the security interest thereunder) to rely upon the
provisions of Section 11.3(a)(ii) and (iii) from the date of this Indenture to
December 31, 1998 and for each twelve-month period thereafter beginning on
January 1 (a "TWELVE-MONTH PERIOD") shall be conditioned upon the Company (or
with respect to the Security Documents, the grantor of the security interest
thereunder) delivering to the Trustee, on or before January 30, 1999 and
thereafter within 30 days following the end of such Twelve-Month Period, an
Officers' Certificate to the effect that the proceeds of all of such
dispositions, collections and cash payments which involve Collateral during such
Twelve-Month Period (other than those such dispositions, collections or payments
wherein the Company (or with respect to the Security Documents, the grantor of
the security interests thereunder) has complied with Section 11.4) were used by
the Company (or with respect to the Security Documents, the grantor of the
security interest thereunder) in connection with their businesses.
(c) Any disposition of Collateral made in compliance with the
provisions of this Section 11.3 shall be deemed not to impair the Security
Interests in contravention of the provisions of this Indenture.
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Section 11.4 Requesting Release of Collateral.
(a) Upon receipt of a Release Request, the Trustee shall execute and
deliver, within five Business Days from the receipt of such Release Request, any
instruments prepared by the Company deemed by the Company (or with respect to
the Security Documents, the grantor of the security interests thereunder) to be
reasonably necessary or reasonably appropriate to release all or a part of the
Collateral from the Security Interests, if the provisions of this Section 11.4
have been complied with. Any such Release Request shall request the Trustee to
execute one or more specifically described release instruments (which release
instruments shall accompany such Release Request) and shall certify (i) that no
Default has occurred and is continuing (or with respect to a Release Request
relating to any of the Security Documents, that no default has occurred and is
continuing under the applicable Security Document) and (ii) that one of the
conditions of this Section 11.4(a) set forth below (specifying such condition),
and if such specified condition is described in clause (i), (ii) or (iii) below,
that the conditions of Section 11.3, 11.5 or 11.7, if applicable, have been, or
simultaneously with or immediately following the release will be, fulfilled:
(i) the Collateral will be disposed of in compliance
with Section 11.3;
(ii) there is a substitution of Substitute Collateral in
accordance with Section 11.5;
(iii) the Collateral to be released will be used within
five Business Days either to make redemptions or purchases of
Notes which will be delivered to the Trustee for cancellation;
(iv) all of the conditions precedent to the termination
of the Security Document under which the Lien in the Collateral
to be released was created, or to the release of such Collateral
from the Lien created by such Security Document, as set forth in
such Security Document, have been satisfied;
(v) the Majority Holders have consented in writing to
such release of Collateral from the Security Interests;
(vi) [INTENTIONALLY OMITTED]; or
(vii) the Collateral to be released constitutes First
Lien Debt and such Collateral is (or will be, upon obtaining
such release) encumbered by a Lien permitted pursuant to the
terms of clauses (d), (j), (q) and (t) of the definition of
Permitted Lien.
(b) As a condition to any release of Collateral under this Section
11.4, the Company shall deliver to the Trustee any certificate or opinion
required by TIA Section 314(d), as to the fair value to the obligor of any
Substitute Collateral and as to the fair value of any Collateral to be released,
or by TIA Section 314(c), as to the fulfillment of any condition precedent to
such release, dated as of a date not more than 60 days prior to the date of
substitution or release. Such certificate or opinion shall state that the
proposed release of
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Collateral will not impair the Security Interests in contravention of the
provisions of this Indenture. The Person delivering such certificate or opinion
must be independent with respect to the Company if required by TIA Section
314(d).
(c) In addition to any certificates or opinions required by Section
11.4(b), as a condition to any release of Collateral pursuant to Section 11.5,
the Company (or with respect to releases under the Security Documents, the
grantor of the security interest thereunder) shall deliver to the Trustee an
Opinion of Counsel to the effect that, in the opinion of such counsel, subject
to necessary qualifications, exceptions or limitations, the Trustee is
authorized to execute and deliver the instruments requested and such execution
and delivery will not result in a violation of the terms hereof or any violation
of applicable law and that either (a) all such instruments and documents have
been duly and validly executed and delivered and have been properly recorded and
filed so as to make effective the Security Interest intended to be created by
this Indenture and the Security Documents in the Substitute Collateral or Cash
Collateral to be substituted for the Collateral to be released, and reciting the
details of such action or referring to prior Opinions of Counsel in which such
details are given, or (b) no such action is necessary to make the Security
Interest in such Substitute Collateral or Cash Collateral effective.
(d) Any release or subordination of Collateral made in compliance
with the provisions of this Section 11.4 shall be deemed not to impair the
Security Interests in contravention of the provisions of this Indenture.
Section 11.5 Substitute Collateral Other Than Cash Collateral.
(a) The Company (or with respect to releases under the Security
Documents, the grantor of the security interest thereunder) may, at its option,
obtain a release of Collateral by subjecting other proposed Collateral to the
respective Security Interests in place of and in exchange for such Collateral to
be released, all in accordance with the provisions and conditions of Section
11.4 and this Section 11.5. The Trustee shall not be bound to ascertain or
inquire as to the Company's (or with respect to substitutions of Collateral
under the Security Documents, the applicable grantor's) title in and to any such
Substitute Collateral or as to the existence of any Liens or encumbrances on any
such Substitute Collateral.
(b) The Company (or with respect to substitutions of Collateral
under the Security Documents, the grantor of the security interest) may
substitute Collateral pursuant to this Section 11.5, if all of the following
conditions are met:
(1) the Company (or with respect to substitutions of Collateral
under the Security Documents, the grantor of the security interest)
complies with Section 11.4(a) and the Company (or with respect to
substitutions of Collateral under the Security Documents, the grantor of
the security interest) delivers a Release Request to the Trustee
stating, in addition to the other requirements of Section 11.4, that the
Company (or with respect to substitutions of Collateral under the
Security Documents, the grantor of the security interest), as the case
may be, intends to substitute the Property specifically described
therein for the Collateral specifically described therein;
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(2) the fair value of the proposed Substitute Collateral is at
least equal to the fair value of the Collateral to be released and, if
and only if the fair value of Collateral to be released, and the fair
value of all other Collateral released without an Appraisal pursuant to
this Section 11.5 during the then current calendar year exceeds 10% of
the aggregate principal amount of the Notes, the Company shall deliver
to the Trustee an Appraisal stating that the Appraised Value of the real
property Collateral to be released or the dollar amount of the cash
collateral to be released is less than or equal to the Appraised Value
of such proposed Substitute Collateral; and
(3) as of the date of the release of the Collateral to be
released, the Security Interests in the Substitute Collateral are
effective pursuant to the Security Documents and Section 11.2, duly
perfected and subject to no prior Security Interests other than
Permitted Liens.
(c) Any release of Collateral made in compliance with the provisions
of this Section 11.5 shall be deemed not to impair the Security Interests in
contravention of the provisions of this Indenture.
(d) Notwithstanding anything to the contrary in this Section 11.5,
the Company shall not substitute the Delayed Coking Unit, the Fluid Catalytic
Cracking Unit or the Crude Unit.
Section 11.6 Release Upon Satisfaction and Discharge of this Indenture.
(a) In the event that the Company delivers an Officers' Certificate
certifying that all of the provisions of Section 8.2 have been satisfied, the
Trustee shall disclaim and give up any and all rights it has in or to the
Collateral, and any rights it has under the Security Documents (subject to
Section 8.7).
(b) Any release of Collateral made in compliance with the provisions
of this Section 11.6 shall be deemed not to impair the Security Interests in
contravention of the provisions of this Indenture.
Section 11.7 Reliance on Opinion of Counsel. The Trustee shall, before
taking any action under this Article XI, be entitled to receive an Opinion of
Counsel at the expense of the Company, stating the legal effect of such action,
and that such action will not be in contravention of the provisions hereof, and
such opinion shall be full protection to the Trustee for any action taken or
omitted to be taken in reliance thereon; provided that the Trustee's action
under this Article XI shall at all times be and remain subject to its duties and
protections under Article VII.
Section 11.8 Purchaser May Rely. A purchaser in good faith of the
Collateral or any part thereof or interest therein which is purported to be
transferred, granted or released by the Trustee as provided in this Article XI
(i) shall not be obligated to ascertain the validity of the transfer, grant or
release, and may rely on the authority of the Trustee to execute the document
evidencing such transfer, grant or release, (ii) shall not be obligated to
inquire as to the
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satisfaction of any conditions precedent to the exercise of such authority, and
(iii) shall not be obligated to determine whether the application of the
purchase price therefor complies with the terms hereof.
Section 11.9 Payment of Expenses. Without limiting Section 7.7, on
demand of the Trustee, the Company forthwith shall pay or satisfactorily provide
for all reasonable expenditures incurred by the Trustee under this Article XI
(including the reasonable fees and expenses of counsel). In the event that the
Company (or with respect to any Security Documents, the grantor of the security
interest thereunder) makes a Release Request more often than once a month, the
Trustee and the Company shall negotiate an additional reasonable fee for each
such request. All such sums referred to in this Section 11.9 shall be a Lien
upon the Collateral and shall be secured thereby.
Section 11.10 Trustee's Duties. The powers and duties conferred upon the
Trustee by this Article XI are solely to protect the Security Interests and
shall not impose any duty upon the Trustee to exercise any such powers except as
expressly provided in this Indenture. The Trustee shall be under no duty to the
Company (or with respect to any Security Documents, the grantor of the security
interest thereunder) whatsoever to make or give any presentment, demand for
performance, notice of non-performance, protest, notice of protest, notice of
dishonor, or other notice or demand in connection with any Collateral, or to
take any steps necessary to preserve any rights against prior parties except as
expressly provided in this Indenture. The Trustee shall not be liable to the
Company (or with respect to any Security Documents, the grantor of the security
interest thereunder) for failure to collect or realize upon any or all of the
Collateral, or for any delay in so doing, nor shall the Trustee be under any
duty to the Company (or with respect to any Security Documents, the grantor of
the security interest thereunder) to take any action whatsoever with regard
thereto. The Trustee shall have no duty to the Company (or with respect to any
Security Documents, the grantor of the security interest thereunder) to comply
with any recording, filing, or other legal requirements necessary to establish
or maintain the validity, priority or enforceability of the Security Interests
in, or the Trustee's rights in or to, any of the Collateral.
Section 11.11 Authorization of Actions to be Taken by the Trustee Under
the Security Documents. The Trustee may, in its sole discretion and without the
consent of the Holders, but subject to Article VII, take all actions it deems
necessary or appropriate in order to (a) enforce or effect the Security
Documents and (b) collect and receive any and all amounts payable in respect of
the obligations of the Company hereunder in accordance with and to the extent
provided in the Security Documents. Such actions shall include, but not be
limited to, enforcing or effecting any term or provision of the Security
Documents. Subject to the provisions of the Security Documents, the Trustee
shall have the power to institute and to maintain such suits and proceedings as
it may deem expedient to prevent any impairment of the Collateral by any acts
which may be unlawful or in violation of the Security Documents or this
Indenture, and such suits and proceedings as the Trustee may deem expedient to
preserve or protect its interests and the interests of the Holders in the
Collateral (including power to institute and maintain suits or proceedings to
restrain the enforcement of or compliance with any legislative or other
governmental enactment, rule or order that may be unconstitutional or otherwise
invalid if the enforcement of, or compliance with, such enactment, rule or order
would impair the security
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hereunder or be prejudicial to the interests of the Holders or of the Trustee).
In addition, the Trustee may act upon any Release Request by the Company (or
with respect to any Security Documents, the grantor of the security interest
thereunder) on behalf of the Company.
ARTICLE XII
MISCELLANEOUS
Section 12.1 TIA Controls. If any provision of this Indenture limits,
qualifies, or conflicts with the duties imposed by operation of the TIA, the
imposed duties, upon qualification of this Indenture under the TIA, shall
control.
Section 12.2 Notices. Any notices or other communications to the Company
or the Trustee required or permitted hereunder shall be in writing, and shall be
sufficiently given if made by hand delivery, by telex, by telecopier or
registered or certified mail, postage prepaid, return receipt requested,
addressed as follows:
if to the Company:
TransAmerican Refining Corporation
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
with a copy to:
Gardere & ▇▇▇▇▇, L.L.P.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: C. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
if to the Trustee:
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
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The Company or the Trustee by notice to each other party may
designate additional or different addresses as shall be furnished in writing by
such party. Any notice or communication to the Company or the Trustee shall be
deemed to have been given or made as of the date so delivered, if personally
delivered; when answered back, if telexed; when receipt is acknowledged, if
telecopied; and five Business Days after mailing if sent by registered or
certified mail, postage prepaid (except that a notice of change of address shall
not be deemed to have been given until actually received by the addressee).
Any notice or communication mailed to DTC shall be mailed to DTC
by first class mail or other equivalent means at his address as it appears on
the registration books of the Registrar and shall be sufficiently given to him
if so mailed within the time prescribed.
Failure to mail a notice or communication to a Noteholder or any
defect in it shall not affect its sufficiency with respect to other Noteholders.
If a notice or communication is mailed in the manner provided above, it is duly
given, regardless of whether the addressee receives it.
Section 12.3 Communications by Holders with Other Holders. Noteholders
may communicate pursuant to TIA Section 312(b) with other Noteholders with
respect to their rights under this Indenture or the Notes. The Company, the
Trustee, the Registrar and any other Person shall have the protection of TIA
Section 312(c).
Section 12.4 Certificate and Opinion as to Conditions Precedent. Upon
any request or application by the Company to the Trustee to take any action
under this Indenture, the Company shall furnish to the Trustee:
(1) an Officers' Certificate (in form and substance reasonably
satisfactory to the Trustee) stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(2) an Opinion of Counsel (in form and substance reasonably
satisfactory to the Trustee) stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
Section 12.5 Statements Required in Certificate or Opinion. Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture shall include:
(1) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
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(3) a statement that, in the opinion of such Person, he has made
such examination or investigation as is necessary to enable him to
express an informed opinion as to whether such covenant or condition has
been complied with; and
(4) a statement as to whether, in the opinion of each such
Person, such condition or covenant has been complied with; provided,
however, that with respect to matters of fact an Opinion of Counsel may
rely on an Officers' Certificate or certificates of public officials.
Section 12.6 Rules by Trustee, Paying Agent, Registrar. The Trustee may
make reasonable rules for action by or at a meeting of Noteholders. The Paying
Agent or Registrar may make reasonable rules for its functions.
Section 12.7 Legal Holidays. A "LEGAL HOLIDAY" used with respect to a
particular place of payment is a Saturday, a Sunday or a day on which banking
institutions at such place are not required to be open. If a payment date is a
Legal Holiday at such place, payment may be made at such place on the next
succeeding day that is not a Legal Holiday, and no interest shall accrue for the
intervening period.
Section 12.8 Governing Law. THIS INDENTURE AND THE NOTES SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF
NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW
YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. INSOFAR AS THIS
INDENTURE RELATES TO THE MORTGAGE OR THE CREATION, PERFECTION OR FORECLOSURE OF
LIENS AND THE ENFORCEMENT OF RIGHTS AND REMEDIES AGAINST THE COLLATERAL UNDER
THE SECURITY DOCUMENTS, IT SHALL BE GOVERNED BY THE LAWS OF THE JURISDICTION
SPECIFIED IN SUCH DOCUMENTS. THE COMPANY HEREBY IRREVOCABLY SUBMITS TO THE
JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN
THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN
THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF
OR RELATING TO THIS INDENTURE AND THE NOTES AND IRREVOCABLY ACCEPTS FOR ITSELF
AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, JURISDICTION OF
THE AFORESAID COURTS. THE COMPANY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT THEY
MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, TRIAL BY JURY AND ANY OBJECTION
WHICH THEY 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. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE TRUSTEE OR ANY
NOTEHOLDER TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE
LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE COMPANY IN ANY OTHER
JURISDICTION.
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Section 12.9 No Adverse Interpretation of Other Agreements. This
Indenture may not be used to interpret another indenture, loan or debt agreement
of the Company or any of its Subsidiaries. Any such indenture, loan or debt
agreement may not be used to interpret this Indenture.
Section 12.10 No Recourse against Others. A director, officer, employee,
stockholder or incorporator, as such, of the Company or any of its Subsidiaries
shall not have any liability for any obligations of the Company or such
Subsidiary under the Notes or this Indenture or for any claim based on, in
respect of or by reason of such obligations or their creations. Each Noteholder
by accepting a Note waives and releases all such liability. Such waiver and
release are part of the consideration for the issuance of the Notes.
Section 12.11 Successors. All agreements of the Company in this
Indenture and the Notes shall bind its successor. All agreements of the Trustee
in this Indenture shall bind its successor.
Section 12.12 Duplicate Originals. All parties may sign any number of
copies or counterparts of this Indenture. Each signed copy or counterpart shall
be an original, but all of them together shall represent the same agreement.
Section 12.13 Severability. In case any one or more of the provisions in
this Indenture or in the Notes shall be held invalid, illegal or unenforceable,
in any respect for any reason, the validity, legality and enforceability of any
such provision in every other respect and of the remaining provisions shall not
in any way be affected or impaired thereby, it being intended that all of the
provisions hereof shall be enforceable to the full extent permitted by law.
Section 12.14 Table of Contents, Headings, Etc. The Table of Contents,
Cross-Reference Table and headings of the Articles and the Sections of this
Indenture have been inserted for convenience of reference only, are not to be
considered a part hereof and shall in no way modify or restrict any of the terms
or provisions hereof.
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SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed as of the date first written above.
TRANSAMERICAN REFINING CORPORATION
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
[Seal]
Attest:
-----------------------------------
THE BANK OF NEW YORK, as Trustee
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
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EXHIBITS
Exhibit A - Form of Note
Exhibit B - Certificate of Transferor
Exhibit C - Form of Mortgage
Exhibit D - Form of Security Agreement
Exhibit E - Company's Board Resolutions
Exhibit F - Form of Construction Collateral and Disbursement Agreement
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EXHIBIT A
(FACE OF SENIOR SECURED NOTE)
[UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITORY TRUST
COMPANY (THE "DEPOSITORY") TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE
DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE
DEPOSITORY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITORY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO.
OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY
OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.](1)
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT") OR ANY STATE SECURITIES LAWS. NEITHER THIS NOTE NOR ANY
INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION
OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION. THE
HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE
TRANSFER SUCH NOTE, PRIOR TO THE DATE WHICH IS TWO YEARS (OR SUCH SHORTER PERIOD
THAT MAY HEREAFTER BE PROVIDED UNDER RULE 144(K) AS PERMITTING RESALES BY
NON-AFFILIATES OF RESTRICTED SECURITIES WITHOUT RESTRICTION) AFTER THE LATER OF
THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY
AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS NOTE (OR ANY PREDECESSOR OF SUCH
NOTE) ONLY (A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH
HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE
NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY
BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING
MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S.
PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S
UNDER THE
-----------
(1) This paragraph should be included only if the Note is issued in global
form.
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SECURITIES ACT, (E) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING
OF RULE 501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS PURCHASING
THE NOTE FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL
"ACCREDITED INVESTOR," FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR
OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND
THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO
CLAUSES (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH
OF THE FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THIS
NOTE IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE.
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[FORM OF NOTE]
TRANSAMERICAN REFINING CORPORATION
15% SENIOR SECURED NOTE DUE 2003
No.__________ $________ CUSIP_______________
TransAmerican Refining Corporation, a Texas corporation
(hereinafter called the "COMPANY," which term includes any successor corporation
under the Indenture hereinafter referred to), for value received, hereby
promises to pay to ____________________________, or registered assigns, the
principal sum of ________________ Dollars, on December 1, 2003.
Interest Payment Dates: June 1 and December 1, commencing [_____]
Record Dates: May 15 and November 15
Reference is made to the further provisions of this Note on the
reverse side, which will, for all purposes, have the same effect as if set forth
at this place.
IN WITNESS WHEREOF, the Company has caused this Note to be signed
manually or by facsimile by its duly authorized officers.
TRANSAMERICAN REFINING CORPORATION
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
Trustee's Certificate of Authentication:
This is one of the Notes referred to in the within-mentioned Indenture:
_______________________________, as Trustee
By:
--------------------------------
Authorized Signature
Dated:
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(BACK OF NOTE)
TRANSAMERICAN REFINING CORPORATION
15% SENIOR SECURED NOTE DUE 2003
1. Interest.
TransAmerican Refining Corporation, a Texas corporation (the
"COMPANY"), promises to pay interest on the principal amount of this Note at a
rate of 15% per annum. To the extent it is lawful, the Company promises to pay
interest on any interest payment due but unpaid on such principal amount at a
rate of 2% per annum compounded semi-annually. On each Interest Payment Date
through and including December 1, 2000, the Company may, at its option and in
its sole discretion, in lieu of the payment of interest in cash on the Notes,
pay interest on all outstanding Notes in whole, but not in part, through the
issuance of PIK Notes, in denominations (rounded, if necessary to the nearest
dollar) of $1 and integral multiples thereof, in an aggregate principal amount
equal to the amount of interest that would be payable with respect to such
Notes, if such interest were paid in cash. The Company shall notify the Holders
and the Trustee in writing of its election to pay interest through the issuance
of PIK Notes not less than 10 nor more than 45 days prior to the record date for
an Interest Payment Date on which PIK Notes will be issued. The Company may, at
its option and in its sole discretion, issue Additional Notes, in denominations
(rounded, if necessary to the nearest dollar) of $1 and integral multiples
thereof, in an aggregate principal amount of up to $150,000,000. The Company
shall notify the Holders and the Trustee in writing of any issuance of
Additional Notes not less than 10 days prior to the date on which Additional
Notes will be issued.
Each PIK Note or Additional Note is an additional obligation of
the Company and shall be governed by, and entitled to the benefits of, and shall
be subject to the terms of, this Agreement and shall rank pari passu with and be
subject to the same terms (including the interest rate from time to time payable
thereon) as any other Note (except, as the case may be, with respect to the
issuance date and aggregate principal amount).
The Company will pay interest semi-annually on June 1 and
December 1 of each year (each, an "INTEREST PAYMENT DATE"), commencing
[________]. Interest on the Notes will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from the date of
issuance of the Notes. Interest on the Notes will be computed on the basis of a
360-day year consisting of twelve 30-day months.
2. Method of Payment.
The Company shall pay interest on the Notes (except defaulted
interest) to the Persons who are the registered Holders at the close of business
on the Record Date immediately preceding the Interest Payment Date. Holders must
surrender Notes to a Paying Agent to collect principal payments. Except as
provided below, the Company shall pay principal and interest in
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such coin or currency of the United States of America as at the time of payment
shall be legal tender for payment of public and private debts ("U.S. LEGAL
TENDER"). However, the Company may pay principal and interest by wire transfer
of Federal funds, or interest by its check payable in such U.S. Legal Tender or,
to the extent provided above, by issuance of PIK Notes. The Company shall
deliver any such interest payment to the Paying Agent who shall remit such
payment to a Holder at the Holder's registered address.
3. Paying Agent and Registrar.
Initially, The Bank of New York (the "TRUSTEE") will act as
Paying Agent and Registrar. The Company may change any Paying Agent, Registrar
or co-Registrar without notice to the Holders. The Company or an Affiliate of it
may, subject to certain exceptions, act as Paying Agent, Registrar or
co-Registrar.
4. Indenture.
The Company issued the Notes under an Indenture, dated as of
December __, 1998 (the "INDENTURE"), between the Company and the Trustee.
Capitalized terms herein are used as defined in the Indenture unless otherwise
defined herein. The terms of the Notes include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of
1939, as in effect on the date of the Indenture. The Notes are subject to all
such terms, and Holders of Notes are referred to the Indenture and said Act for
a statement of them. The Notes are senior secured obligations of the Company
limited in aggregate principal amount to $300,000,000 plus the principal amount
of any PIK Notes.
5. Optional Redemption.
The Notes may be redeemed in whole or from time to time in part
at any time at the option of the Company, at par, in each case, together with
any accrued but unpaid interest to the Redemption Date. Any such redemption will
comply with Article III of the Indenture.
6. Notice of Redemption.
Notice of redemption will be mailed by first class mail at least
15 days but not more than 60 days before the Redemption Date to each Holder of
Notes to be redeemed at his registered address. Notes in denominations larger
than $1,000 may be redeemed in part.
Except as set forth in the Indenture, from and after any
Redemption Date, if monies for the redemption of the Notes called for redemption
shall have been deposited with the Paying Agent on such Redemption Date the
Notes called for redemption will cease to bear interest and the only right of
the Holders of such Notes will be to receive payment of the Redemption Price and
any accrued and unpaid interest to the Redemption Date.
7. Denominations; Transfer; Exchange.
The Notes are in registered form, without coupons, in
denominations of $1 and integral multiples thereof. A Holder may register the
transfer of, or exchange Notes in accordance with, the Indenture. The Registrar
may require a Holder, among other things, to
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furnish appropriate endorsements and transfer documents and to pay any taxes and
fees required by law or permitted by the Indenture. The Registrar need not
register the transfer of or exchange any Notes selected for redemption.
8. Persons Deemed Owners.
The registered Holder of a Note may be treated as the owner of it
for all purposes.
9. Unclaimed Money.
If money for the payment of principal or interest remains
unclaimed for two years, the Trustee and the Paying Agent(s) will pay the money
back to the Company at its written request. Thereafter, all liability of the
Trustee and such Paying Agent(s) with respect to such money shall cease.
10. Discharge Prior to Redemption or Maturity.
If the Company at any time deposits into an irrevocable trust
with the Trustee U.S. Legal Tender or U.S. Government Obligations sufficient to
pay the principal of and interest on the Notes to redemption or maturity and
complies with the other provisions of the Indenture relating thereto, the
Company will be discharged from certain provisions of the Indenture and the
Notes (including the financial covenants, but excluding its obligation to pay
the principal of and interest on the Notes).
11. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture or the Notes may be
amended or supplemented with the written consent of the Majority Holders, and
any existing Default or Event of Default or compliance with any provision may be
waived with the consent of the Majority Holders. Without notice to or consent of
any Holder, the parties thereto may amend or supplement the Indenture or the
Notes to, among other things, cure any ambiguity, defect or inconsistency
(provided such amendment or supplement does not adversely affect the rights of
any Holder of a Note).
12. Restrictive Covenants.
The Indenture imposes certain limitations on the ability of the
Company and its Subsidiaries to, among other things, Incur additional Debt or
issue Disqualified Capital Stock, make payments in respect of its Capital Stock,
enter into transactions with Related Persons, incur Liens, merge or consolidate
with any other Person and sell, lease, transfer or otherwise dispose of
substantially all of its properties or assets. The limitations are subject to a
number of important qualifications and exceptions. The Company must deliver a
quarterly report to the Trustee on compliance with such limitations.
13. Successors.
When a successor assumes all the obligations of its predecessor
under the Notes and the Indenture, the predecessor will be released from those
obligations.
▇-▇
▇▇▇
▇▇. Defaults and Remedies.
If an Event of Default occurs and is continuing, the Trustee or
the Majority Holders may declare all the Notes to be due and payable immediately
in the manner and with the effect provided in the Indenture. Holders of Notes
may not enforce the Indenture or the Notes except as provided in the Indenture.
The Trustee may require indemnity satisfactory to it before it enforces the
Indenture or the Notes. Subject to certain limitations, Majority Holders may
direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from Holders of Notes notice of any continuing Default or Event of
Default (except a Default in payment of principal, premium, if any, or interest,
including a Default at any Maturity Date), if it determines that withholding
notice is in their interest.
15. No Recourse Against Others.
No stockholder, director, officer, employee or incorporator, as
such, past, present or future, of the Company or any of its Subsidiaries or any
successor corporation shall have any liability for any obligation of the Company
or such Subsidiary under the Notes or the Indenture or for any claim based on,
in respect of or by reason of, such obligations or their creation.
Each Holder of a Note by accepting a Note waives and releases all
such liability. The waiver and release are part of the consideration for the
issuance of the Notes.
16. Authentication.
This Note shall not be valid until the Trustee or authenticating
agent signs the certificate of authentication on the other side of this Note.
17. Abbreviations and Defined Terms.
Customary abbreviations may be used in the name of a Holder of a
Note or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants
by the entireties), JT TEN (= joint tenants with right of survivorship and not
as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to
Minors Act). Capitalized terms used herein and not otherwise defined shall have
the meanings assigned to them in the Indenture.
18. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Company will cause CUSIP numbers
to be printed on the Notes as a convenience to the Holders of the Notes. No
representation is made as to the accuracy of such numbers as printed on the
Notes and reliance may be placed only on the other identification numbers
printed hereon.
19. Holders' Compliance with Registration Rights Agreement.
Each Holder of a Note, by his acceptance thereof, acknowledges
and agrees to the provisions of the Registration Rights Agreement, dated as of
December __, 1998, between the Company and the initial Holders (the
"REGISTRATION RIGHTS AGREEMENT"), including but not
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limited to the obligations of the Holders with respect to a registration and the
indemnification of the Company and the Purchasers (as defined therein) to the
extent provided therein.
The Company shall furnish to any Holder upon written request and
without charge a copy of the Indenture and/or the Registration Rights Agreement.
Requests may be made to:
TransAmerican Refining Corporation
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇.
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ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to .
(Insert assignee's soc. sec. or tax I.D. No. )
-------------------------------------------------------------------------------.
-------------------------------------------------------------------------------.
-------------------------------------------------------------------------------.
-------------------------------------------------------------------------------.
(Print or type assignee's name, address and zip code)
and irrevocably appoint________________________________________________________
agent to transfer this Note on the books of the Company. The agent may
substitute another to act for him.
Date:
Signature
------------------------------------------
(Sign exactly as your name appears on the face of this Note)
Signature Guarantee*
------------------------------------------
* NOTICE: The signature must be guaranteed by an institution which is a member
of one of the following recognized signature guarantee programs:
(1) The Securities Transfer Agents Medallion Program (STAMP);
(2) The New York Stock Exchange Medallion Stamp Program (MSP);
(3) The Stock Exchange Medallion Program (SEMP).
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SCHEDULE OF EXCHANGES OF DEFINITIVE NOTES(2)
The following exchanges of a part of this Global Note for
Definitive Notes have been made:
Amount of Amount of
decrease in increase in Principal Amount Signature of
Principal Amount Principal Amount of this Global authorized
of this Global of this Global Note decrease (or signatory of
Date of Exchange Note Note increase) Trustee
---------------
(2) This should be included only if the Note is issued in global form.
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EXHIBIT B
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF
TRANSFER OF SENIOR SECURED NOTES
Re: [Series A] [Series B] 15% Senior Secured Notes due 2003 (the "NOTES") of
TransAmerican Refining Corporation.
This Certificate relates to $_______________ principal amount of Notes held in
* [ ] book-entry or * [ ] definitive form by
________________________________________ (the "TRANSFEROR").
The Transferor, by written order, has requested the Trustee:
[ ] to deliver in exchange for its beneficial interest in the Global Notes
held by the depository, a Note or Notes in definitive, registered form
of authorized denominations and an aggregate principal amount equal to
its beneficial interest in such Global Note (or the portion thereof
indicated above); or
[ ] to exchange or register the transfer of a Note or Notes. In connection
with such request and in respect of each such Note, the Transferor does
hereby certify that Transferor is familiar with the Indenture relating
to the above captioned Notes and, the transfer of this Note does not
require registration under the Securities Act of 1933, as amended (the
"SECURITIES ACT"), because such Note:
[ ] is being acquired for the Transferor's own account, without transfer;
[ ] is being transferred pursuant to an effective registration statement;
[ ] is being transferred to a "qualified institutional buyer" (as defined in
Rule 144A under the Securities Act), in reliance on such Rule 144A;
[ ] is being transferred pursuant to an exemption from registration in
connection with Rule 904 under the Securities Act;**
[ ] is being transferred pursuant to Rule 144 under the Securities Act;** or
[ ] is being transferred pursuant to another exemption from the registration
requirements of the Securities Act (explain:
______________________________________________).**
[INSERT NAME OF TRANSFEROR]
Date:___________________________ By:_________________________________
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* Check applicable box.
** If this box is checked, this certificate must be accompanied by an
opinion of counsel to the effect that such transfer is in compliance
with the Securities Act.