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EXHIBIT 2.2
ASSET TRANSFER AGREEMENT
by and between
TRANSAMERICAN REFINING CORPORATION
(a Texas Corporation)
and
TCR HOLDING CORPORATION
(a Delaware Corporation)
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TABLE OF CONTENTS
This Table of Contents is not part of the Agreement to which
it is attached but is inserted for convenience only.
PAGE
NO.
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ARTICLE I TRANSFER OF ASSETS AND CLOSING.........................................................................1
1.01 Assets.........................................................................................1
1.02 Liabilities....................................................................................1
1.03 Closing........................................................................................2
1.04 Further Assurances; Post-Closing Cooperation...................................................2
1.05 Third-Party Consents...........................................................................3
1.06 Agreed Value...................................................................................3
ARTICLE II REPRESENTATIONS AND WARRANTIES OF TARC................................................................3
2.01 Representations and Warranties in the Securities Purchase Agreement............................3
2.02 Disclosure.....................................................................................3
2.03 Real Property Lease Obligations................................................................4
2.04 Personal Property Leases Obligations...........................................................4
2.05 Indebtedness...................................................................................4
2.06 Accounts Payable...............................................................................4
2.07 Contracts and Licenses.........................................................................4
2.08 Legal Proceedings..............................................................................4
2.09 Liens..........................................................................................4
2.10 Taxes..........................................................................................4
ARTICLE III INDEMNIFICATION......................................................................................5
3.01 Indemnification................................................................................5
3.02 Survival of Indemnity and Representations and Warranties.......................................6
3.03 General Indemnification Procedures.............................................................6
3.04 Indemnification of Third Party Claims..........................................................6
ARTICLE IV TAX...................................................................................................9
4.01 Transfer Taxes.................................................................................9
4.02 Tax Cooperation................................................................................9
4.03 Tax Indemnification............................................................................9
ARTICLE V DEFINITIONS............................................................................................9
5.01 Definitions....................................................................................9
5.02 Construction of Certain Terms and Phrases.....................................................13
ARTICLE VI MISCELLANEOUS........................................................................................13
6.01 Notices.......................................................................................13
6.02 Bulk Sales Act................................................................................14
6.03 Waiver of Vendors' Privileges.................................................................14
6.04 Entire Agreement..............................................................................14
6.05 Expenses......................................................................................14
6.06 Waiver........................................................................................14
6.07 Amendment.....................................................................................14
6.08 No Third Party Beneficiary....................................................................14
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6.09 Headings......................................................................................14
6.10 Invalid Provisions............................................................................14
6.11 Governing Law.................................................................................15
6.12 Counterparts..................................................................................15
SCHEDULE A Assumed Liabilities
SCHEDULE B General Assignment and Xxxx of Sale
SCHEDULE C Assumption Agreement
SCHEDULE D Real Property Leases
SCHEDULE E Personal Property Leases
SCHEDULE F Indebtedness
SCHEDULE G Accounts Payable as of December 2, 1998
SCHEDULE H Contracts and Licenses
SCHEDULE I Legal Proceedings
SCHEDULE J Liens
SCHEDULE K Retained Assets
SCHEDULE L Retained Liabilities
SCHEDULE M Current Tax Filings and Audits
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This ASSET TRANSFER AGREEMENT dated as of December 15, 1998 is
made and entered into by and between TransAmerican Refining Corporation, a Texas
corporation ("TARC"), TransAmerica Energy Corporation, a Delaware corporation
("TEC") and TCR Holding Corporation, a Delaware corporation ("TCR Holding").
Capitalized terms not otherwise defined herein have the meanings set forth in
Section 5.01 hereof.
WHEREAS, TARC is engaged in the business of owning,
constructing, developing and operating a petroleum refinery in St. Xxxxxxx
Xxxxxx, Louisiana (the "Refinery");
WHEREAS, TEC, TARC, TCR Holding and TransContinental Refining
Corporation, a Delaware corporation and wholly-owned subsidiary of TCR Holding
("TransContinental"), have entered into a Securities Purchase Agreement dated
December 10, 1998 with Xxxxxxxxx & Company, Inc., as amended and restated
December 15, 1998 by and among TEC, TARC, TCR Holding, TransContinental, TCW
Leveraged Income Trust, L.P., TCW Leveraged Income Trust II, L.P, TCW Shared
Opportunity Fund III, L.P., TCW Shared Opportunity Fund II, L.P., TCW Shared
Opportunity Fund IIB, LLC, and Xxxxxxxxx & Company, Inc. (the "Securities
Purchase Agreement"); and
WHEREAS, it is a condition to the consummation of the
transactions under the Securities Purchase Agreement that TARC transfer and
assign to TCR Holding, and that TCR Holding acquire from TARC certain of the
assets of TARC and that TCR Holding assume certain liabilities of TARC;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth in this Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
ARTICLE I
TRANSFER OF ASSETS AND CLOSING
1.01 Assets
(a) Assets Transferred. On the terms and subject to the
conditions set forth in this Agreement, TARC will transfer, convey, assign and
deliver to TCR Holding, and TCR Holding will acquire, at the Closing, all of
TARC's right, title and interest in, to and under the Assets and Properties of
TARC, except as otherwise provided in Sections 1.01(b) and 1.02, as the same
shall exist on the Closing Date (the "Assets").
(b) Retained Assets. Notwithstanding anything in this
Agreement to the contrary, the Retained Assets shall be excluded from and shall
not constitute Assets and TCR Holding shall have neither any rights nor any
obligations with respect thereto.
1.02 Liabilities. In consideration of the transfer,
conveyance, assignment and delivery of the Assets pursuant to this Agreement, on
the terms and subject to the conditions set forth in this Agreement, at the
Closing, TCR Holding will assume and will agree to pay, perform
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and discharge when due the Liabilities of TARC listed in Schedule A hereto (the
"Assumed Liabilities").
1.03 Closing. The Closing will take place on the Closing Date
at the offices of Milbank, Tweed, Xxxxxx & XxXxxx, 000 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx. Xx the Closing Date, (i) TARC will assign and transfer to TCR Holding
all of its right, title and interest in and to the Assets (free and clear of all
Liens, other than Permitted Liens) by delivery of (A) a General Assignment and
Xxxx of Sale in the form of Schedule B hereto (the "General Assignment), duly
executed by TARC, (B) an assignment of Intellectual Property in form and
substance acceptable to TCR Holding, (C) general warranty deeds in proper
statutory form for recording and otherwise in form and substance acceptable to
TCR Holding conveying title to the Assets comprised of real property and all of
the rights arising out of the ownership thereof or appurtenant thereto, together
with all buildings, structures, facilities, fixtures and other improvements
thereto, and (D) such other good and sufficient instruments of conveyance,
assignment and transfer, in form and substance acceptable to TCR Holding and its
counsel, as shall be effective to vest in TCR Holding good title to the Assets
(the General Assignment and the other instruments referred to in clauses (B),(C)
and (D) being collectively referred to herein as the "Assignment Instruments")
and (ii) TCR Holding will assume the Assumed Liabilities pursuant to (X) an
Assumption Agreement in the form of Schedule C hereto (the "Assumption
Agreement"), duly executed by TCR Holding, and (Y) such other instruments of
assumption as shall be effective to cause TCR Holding to assume the Assumed
Liabilities as and to the extent provided in Section 1.02 (the Assumption
Agreement and such other instruments referred to in clause (Y) being
collectively referred to herein as the "Assumption Instruments").
1.04 Further Assurances; Post-Closing Cooperation.
(a) At any time or from time to time after the Closing, at TCR
Holding's request and without further consideration, TARC shall execute and
deliver to TCR Holding such other instruments of sale, transfer, conveyance,
assignment and confirmation, provide such materials and information and take
such other actions as TCR Holding may reasonably deem necessary or desirable in
order more effectively to transfer, convey and assign to TCR Holding, and to
confirm TCR Holding's title to, all of the Assets, and, to the full extent
permitted by Law, to put TCR Holding in actual possession and operating control
of the Refinery and the Assets and to assist TCR Holding in exercising all
rights with respect thereto, and otherwise to cause TARC to fulfill its
obligations under this Agreement.
(b) Effective on the Closing Date, TARC hereby constitutes and
appoints TCR Holding the true and lawful attorney of TARC, with full power of
substitution, in the name of TARC or TCR Holding, but on behalf of TARC and for
the benefit of TCR Holding: (i) to demand and receive from time to time any and
all of the Assets and to make endorsements and give receipts and releases for
and in respect of the same and any part thereof; (ii) to institute, prosecute,
compromise and settle any and all Actions or Proceedings that TCR Holding may
deem proper in order to collect, assert or enforce any claim, right or title of
any kind in or to the Assets; (iii) to defend or compromise any or all Actions
or Proceedings in respect of any of the Assets; and (iv) to do all such acts and
things in relation to the matters set forth in the preceding clauses (i) through
(iii) as TCR Holding shall deem desirable. TARC hereby acknowledges that
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the appointment hereby made and the powers hereby granted are coupled with an
interest and are not and shall not be revocable by it in any manner or for any
reason. TARC shall execute and deliver to TCR Holding at the Closing an
acknowledged power of attorney to the foregoing effect.
(c) Following the Closing, TARC will afford TCR Holding, its
counsel and accountants access to the books, records and other data relating to
the Assets in TARC's possession, if any, with respect to periods prior to the
Closing and the right to make copies and extracts therefrom. Further, TARC
agrees for a period extending six (6) years after the Closing Date not to
destroy or otherwise dispose of any books, records and other data without first
offering in writing to surrender such books, records and other data to TCR
Holding and TCR Holding shall not have agreed to take possession thereof within
thirty (30) days of such offer.
1.05 Third-Party Consents. To the extent that any Contract is
not assignable without the consent of another party, this Agreement shall not
constitute an assignment or an attempted assignment thereof if such assignment
or attempted assignment would constitute a breach of or a default under any
contract either constituting or governing Contract. TARC shall use its best
efforts to obtain the consent of such other party to the assignment of any
Contract in all cases in which such consent is or may be required for such
assignment. If any such consent shall not be obtained, TARC shall cooperate with
TCR Holding in any arrangement designed to provide TCR Holding with the benefits
intended to be assigned to TCR Holding under or pursuant to such Asset,
including enforcement at the cost and for the account of TARC of any and all
rights of TARC against the other party thereto arising out of the breach or
cancellation thereof by such other party or otherwise.
1.06 Agreed Value. The parties agree that for purposes of all
federal and state income tax filings the agreed upon value of the Assets will be
$1,100,000,000 as of October 31, 1998.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF TARC
TARC and TEC hereby represent and warrant, jointly and
severally to TCR Holding as follows:
2.01 Representations and Warranties in the Securities Purchase
Agreement. TARC and TEC hereby represents and warrants to TCR Holding for the
benefit of TCR Holding that each of the representations and warranties made by
TARC and TEC in the Securities Purchase Agreement are true and correct.
2.02 Disclosure. All material facts relating to the condition
of the Refinery and the other Assets and Properties and Liabilities of TARC have
been disclosed to TCR Holding in the Securities Purchase Agreement and neither
the Securities Purchase Agreement nor any of the documents or certificates
delivered by or on behalf of TARC in connection therewith contains any untrue
statement of a material fact or omits to state a material fact necessary in
order to make
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the statements herein or therein, in the light of the circumstances under which
they were made, not misleading.
2.03 Real Property Lease Obligations. Schedule D contains a
true and correct list of all leases and subleases of real property as to which
TARC is the lessee or sublessee.
2.04 Personal Property Leases Obligations. Schedule E contains
a true and correct list of all leases and subleases of furniture, fixtures,
equipment, machinery, vehicles and other tangible personal property used or held
for use by TARC in the conduct of its business as to which TARC is the lessee or
sublessee.
2.05 Indebtedness. Schedule F contains a true and correct list
of all Indebtedness of TARC.
2.06 Accounts Payable. Schedule G contains a true and correct
list of all obligations of TARC with respect to accounts payable as of December
2, 1998 and all accrued liabilities as of December 14, 1998. All such accounts
payable were incurred in the ordinary course of the Business and, to the extent
incurred as part of the development of Phase I or Phase II of the Refinery, were
incurred in accordance with the Plans (as defined in the Securities Purchase
Agreement).
2.07 Contracts and Licenses. Schedule H contains a true and
correct list of all (i) Contracts (other than those listed in Schedules D and E)
to which TARC is a party and which are utilized in the conduct of TARC's
business, including, without limitation, Contracts relating to suppliers, sales
representatives, distributors, purchase orders, marketing arrangements and
manufacturing arrangements and (ii) all Licenses owned or possessed by TARC or
utilized by TARC in the conduct of its business.
2.08 Legal Proceedings. Schedule I contains a true and
complete list of all Actions and Proceedings to which TARC is a party or to
which any of the Assets and Properties of TARC is subject.
2.09 Liens. Schedule J contains a true and correct list of all
Liens on the Assets and Properties of TARC.
2.10 Taxes.
(a) TARC (or the affiliated group of which TARC is a member)
has filed (or will file) all Tax Returns required to be filed by applicable law
on or prior to Closing Date. All Tax Returns were (and, as to Tax Returns not
filed as of the date hereof, will be) true, complete and correct and filed on a
timely basis. TARC (or the affiliated group of which TARC is a member) has paid
(and as to Tax Returns not filed as of the date hereof, will pay) all Taxes that
are due, or claimed or asserted by any taxing authority to be due for the
periods covered by the Tax Returns or (ii) has duly and fully provided reserves
adequate to pay all Taxes in accordance with GAAP. TARC (or the affiliated group
of which TARC is a member) maintains (and until the Closing Date will maintain)
on its books and records reserves adequate to pay all Taxes not yet due and
payable.
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(b) There are no Tax liens upon the Assets other than liens
for Taxes not yet due and payable.
(c) TARC (or the affiliated group of which TARC is a member)
has complied (and until the Closing Date will comply) with all applicable laws,
rules, and regulations relating to the payment and withholding of Taxes
(including withholding and reporting requirements under Code Sections 1441
through 1464, 3401 through 3406, 6041 and 6049 and similar provisions under any
other laws) and has, within the time and in the manner prescribed by law,
withheld from employee wages and paid over to the proper governmental
authorities all required amounts.
(d) Except as set forth in Schedule M, TARC (or the affiliated
group of which it is a member) has not requested any extension of time within
which to file any Tax Return and has not executed any outstanding waivers or
comparable consents regarding the application of the statute of limitations for
any Taxes or Tax Returns; the statute of limitations for the assessment of all
Taxes has expired for all applicable Tax Returns of TARC (or the affiliated
group of which it is a member); Tax Returns have been examined by the
appropriate taxing authorities for all periods; (iii) no deficiency for any
Taxes has been suggested, proposed, asserted or assessed against TARC or any
member if the affiliated group of which TARC is a member that has not been
resolved and paid in full; and (iv) no audits or other administrative
proceedings or court proceedings are presently pending with regard to any Taxes
or Tax Returns of TARC or any member of the affiliated group of which TARC is a
member.
ARTICLE III
INDEMNIFICATION
3.01 Indemnification.
(a) Each of TARC and TEC shall, jointly and severally, to the
fullest extent permitted by applicable law, indemnify TCR Holding, its officers,
directors, Affiliates, agents and representatives and their respective
successors and assigns (collectively, the "TCR Parties") in respect of, and hold
the TCR Parties harmless from and against, any and all Losses suffered, incurred
or sustained, as suffered, incurred or sustained by any of them or to which any
of them becomes subject, resulting from, arising out of or relating to (i) any
breach of representation or warranty or nonfulfillment of or failure to perform
any agreement on the part of TARC contained in this Agreement (including those
made by reference to the Securities Purchase Agreement) or (ii) the Retained
Assets or any Retained Liability.
(b) TCR Holding shall, to the fullest extent permitted by
applicable law, indemnify TARC, its officers, directors, Affiliates, agents and
representatives and their respective successors and assigns (collectively, the
"TARC Parties") in respect of, and hold the TARC Parties harmless from and
against, any and all Losses suffered, incurred or sustained by any of them or to
which any of them becomes subject, resulting from, arising out of or relating to
the Assets or the Assumed Liabilities, except to the extent any such loss arises
out of any Loss giving rise to indemnification under Section 3.01(a).
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3.02 Survival of Indemnity and Representations and Warranties.
The indemnity provisions contained in this Article III and the representations
and warranties of TARC and TEC contained in this Agreement (including those made
by reference to the Securities Purchase Agreement) shall survive indefinitely
regardless of (i) any investigation made at any time by or on behalf of any TCR
Party, (ii) any termination of this Agreement or the Securities Purchase
Agreement or (iii) acceptance of the Assets by TCR Holding.
3.03 General Indemnification Procedures. Any party claiming
entitlement to indemnification pursuant to Section 3.01 (the "Indemnified
Party"), shall give the party obligated to provide indemnification under Section
3.01 (the "Indemnifying Party") notice of any matter which an Indemnified Party
has determined has given or could give rise to a right of indemnification under
this Agreement, within 90 days of such determination, stating the amount of the
Loss, if known, and method of computation thereof, and containing a reference to
the provisions of this Agreement in respect of which such right of
indemnification is claimed or arises; provided, however, that the failure to
provide such notice shall not release the Indemnifying Party from any of its
obligations under this Article III, except to the extent the Indemnifying Party
is materially prejudiced by such failure, and shall not relieve the Indemnifying
Party from any other obligation or liability that it may have to any Indemnified
Party otherwise than under this Article III.
3.04 Indemnification of Third Party Claims.
(a) The obligations and Liabilities of an Indemnifying Party
under this Article III with respect to Losses arising from claims of any third
party which are subject to the indemnification provided for in this Article III
("Third Party Claims") shall be governed by and contingent upon the following
additional terms and conditions:
(1) If an Indemnified Party shall receive notice of any Third
Party Claim, the Indemnified Party shall give the Indemnifying
Party notice of such Third Party Claim within 30 days of the
receipt by the Indemnified Party of such notice; provided,
however, that the failure to provide such notice shall not
release the Indemnifying Party from any of its obligations
under this Article III, except to the extent the Indemnifying
Party is materially prejudiced by such failure, and shall not
relieve the Indemnifying Party from any other obligation or
liability that it may have to any Indemnified Party otherwise
than under this Article III.
(2) If the Indemnifying Party acknowledges in writing its
obligation to indemnify the Indemnified Party hereunder
against any Losses that may result from such Third Party
Claim, then the Indemnifying Party shall be entitled to assume
and control the defense of such Third Party Claim at its
expense and through counsel of its choice if it gives notice
of its intention to do so to the Indemnified Party; provided,
however, that if there exists or is reasonably likely to exist
a conflict of interest that would make it inappropriate for
the same counsel to represent both the Indemnified Party and
the Indemnifying Party, then the Indemnified Party shall be
entitled, upon obtaining the prior written approval of the
Indemnifying Party, to retain its own counsel, in each
jurisdiction for which
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the Indemnified Party determines counsel is required, at the
expense of the Indemnifying Party; provided further, that in
no event shall the Indemnifying Party be obligated to pay the
fees and expenses of more than one counsel for all Indemnified
Parties in each such jurisdiction.
(3) In the event the Indemnifying Party exercises the right to
undertake any such defense against any such Third Party Claim,
as provided above, the Indemnified Party shall cooperate with
the Indemnifying Party in such defense and make available to
the Indemnifying Party, without further cost or expense to the
Indemnifying Party, all witnesses, pertinent records,
materials and information in the Indemnified Party's
possession or under the Indemnified Party's control relating
thereto as is reasonably required by the Indemnifying Party.
(4) In the event the Indemnified Party is, directly or
indirectly, conducting the defense against any such Third
Party Claim, the Indemnifying Party shall cooperate with the
Indemnified Party in such defense and make available to the
Indemnified Party, without further cost or expense to the
Indemnified Party, all such witnesses, records, materials and
information in the Indemnifying Party's possession or under
the Indemnifying Party's control relating thereto as is
reasonably required by the Indemnified Party.
(5) No Third Party Claim may be settled without the prior
written consent of the Indemnifying Party, unless such
settlement (i) includes an unconditional release of both the
Indemnifying Party and each Indemnified Party from all
liability arising out of such Third Party claim and (ii) does
not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of either the
Indemnifying Party or any Indemnified Party.
(6) The Indemnified Party agrees to repay to the Indemnifying
Party all amounts advanced to the Indemnified Party or
expended on Indemnified Party's behalf pursuant to this
Article III in the event that a court of competent
jurisdiction subsequently determines that the Indemnified
Party was not entitled to be indemnified pursuant to the terms
of this Article III.
(b) Subject to the foregoing conditions and obligations and
the conditions set forth below, TCR Holding has agreed to provide the TARC
Parties with limited indemnification with respect to the proceeding commenced by
the New Orleans District Office of the U.S. Equal Employment Opportunity
Commission ("EEOC"), which proceeding is captioned, "Commissioner Xxxxx X.
Xxxxxx, Charging Party, and TransAmerican Refining Company/Southeast Louisiana
Contractors of Norco, Inc., Respondent, Charge Number ###-##-#### (the "EEOC
Charge"):
(1) TCR Holding shall, to the fullest extent permitted by
applicable law, indemnify and hold the TARC Parties harmless
against all judgments, fines and amounts paid in settlement,
to the extent actually and reasonably incurred by the TARC
Parties in connection with the EEOC Charge or any EEOC
Litigation (as
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such term is defined below), but excluding all expenses
(including reasonable attorneys' fees and disbursements)
incurred by the TARC Parties in connection therewith, to a
maximum amount of $1,000,000 (the "Indemnification Amount").
(2) TARC shall keep TCR Holding apprised of all activities
regarding the EEOC Charge, including, without limitation, all
communications from the EEOC, whether written or oral, any
attempt by the EEOC to engage in conciliation with respect to
the EEOC Charge and any actual or threatened court action
based on or arising out of the EEOC Charge (the "EEOC
Litigation");
(3) TCR Holding, at its option, shall be permitted to
participate in any activity relating to the EEOC Charge,
including any conciliation or other discussions with the EEOC,
and/or any EEOC Litigation and to assume the defense of
thereof, in whole or in part;
(4) TARC must cooperate fully in the defense of the EEOC
Charge and any EEOC Litigation; and
(5) TARC must refrain from settling or otherwise disposing of
the EEOC Charge and/or any EEOC Litigation, or having any
discussions in connection therewith, without obtaining TCR
Holding's prior written consent. In addition, TARC may not
enter into a settlement agreement with respect to the EEOC
Charge and/or any EEOC Litigation unless such settlement
agreement (i) includes an unconditional release of TCR
Holding, as a third party beneficiary, and (ii) does not
include a statement as to or any admission of fault,
culpability or a failure to act by or on behalf of either TARC
or TCR Holding.
(6) The Indemnification Amount shall be reduced by the
following:
(i) Any amounts recovered by TARC, or any of
its successors or assigns, or Xxxx X. Xxxxxxx, or anyone
acting on his behalf, in connection with the action captioned
TransAmerican Refining Company and Xxxx X. Xxxxxxx x. Xxxx
Xxxxx, WWL-TV A.H. Belo Corp, Case No.: WWL-TV 30-S-94168, in
state court in Louisiana, whether by settlement, by judgment
of the court or otherwise, and
(ii) All amounts spent by TCR Holding in
connection with its participation in or assumption of the
defense of the EEOC Charge or any EEOC Litigation, as provided
above, including, without limitation, all reasonable
attorneys' fees, costs and disbursements.
(7) Notwithstanding the foregoing, TCR Holding shall not be
obligated to indemnify the TARC Parties if a court of
competent jurisdiction shall determine that the TARC Parties,
or anyone acting on any of the TARC Parties' behalf,
misrepresented any material fact with regard to the EEOC
Charge in the course of
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negotiations in connection with the Transaction Documents (as
defined in the Securities Purchase Agreement).
ARTICLE IV
TAX
4.01 Transfer Taxes. TCR Holding shall pay all Transfer Taxes
arising out of or in connection with the transactions effected pursuant to this
Agreement, and shall indemnify, defend, and hold harmless TARC on an after-Tax
basis with respect to such Transfer Taxes. TCR Holding shall file all necessary
documentation and Tax Returns with respect to such Transfer Taxes.
4.02 Tax Cooperation. After the Closing Date, TARC and the
affiliated group of which it is a member will cooperate in the preparation of
all Tax Returns, will provide any records and other information that TRC Holding
requests, will provide access to, and the cooperation of, its auditor, and will
cooperate with TRC Holding in connection with any Tax investigation, audit or
other proceeding.
4.03 Tax Indemnification. After the Closing Date, TARC will
indemnify and hold harmless TCR Holding from and against any and all claims,
actions, causes of action, liabilities, losses, damages, and reasonable
out-of-pocket expenses and costs resulting from, arising out of or relating to
all Taxes imposed on TARC or any member of the affiliated group of which TARC is
a member, including Taxes imposed on TARC or any such member under Treas. Reg.
Section 1.1502-6 or any state or local counterpart thereto or as a result of any
contractual agreements between TARC or any member of the affiliated group of
which TARC is a member and any other persons the Closing Date
ARTICLE V
DEFINITIONS
5.01 Definitions.
(a) Defined Terms. As used in this Agreement, the following
defined terms have the meanings indicated below:
"Act" has the meaning set forth in Section 2.04.
"Actions or Proceedings" means any action, suit, proceeding,
arbitration or Governmental or Regulatory Authority investigation or audit.
"Affiliate" means any Person that (i) directly, or indirectly
through one of more intermediaries, controls or is controlled by or is under
common control with the Person specified or (ii) is an employee, officer,
director or stockholder of such person. For purposes of this
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definition, control of a Person means the power, direct or indirect, to direct
or cause the direction of the management and policies of such Person whether by
Contract or otherwise and, in any event and without limitation of the previous
sentence, any Person owning ten percent (10%) or more of the voting securities
of another Person shall be deemed to control that Person.
"Agreement" means this Asset Transfer Agreement and the
Schedules hereto as the same shall be amended from time to time.
"Assets" has the meaning set forth in Section 1.01(a).
"Assets and Properties" of any Person means all assets and
properties of every kind, nature, character and description (whether real,
personal or mixed, whether tangible or intangible, whether absolute, accrued,
contingent, fixed or otherwise and wherever situated), including the goodwill
related thereto, operated, owned or leased by such Person, including without
limitation cash, cash equivalents, Investment Assets, accounts and notes
receivable, chattel paper, documents, instruments, general intangibles, real
estate, equipment, inventory, goods and Intellectual Property.
"Assignment Instruments" has the meaning set forth in
Section 1.03.
"Assumed Liabilities" has the meaning set forth in
Section 1.02.
"Assumption Agreement" has the meaning set forth in
Section 1.03.
"Assumption Instruments" has the meaning set forth in
Section 1.03.
"Business Day" means a day other than Saturday, Sunday or any
day on which banks located in New York or California are authorized or obligated
to close.
"Closing" means the closing of the transactions contemplated
by Section 1.03.
"Closing Date" means December 15, 1998 or such other date as
the parties hereto may mutually agree.
"Code" means the Internal Revenue Code of 1986.
"Contract" means any agreement, lease, license, evidence of
Indebtedness, mortgage, indenture, security agreement or other contract (whether
written or oral).
"General Assignment" has the meaning set forth in
Section 1.03.
"Governmental or Regulatory Authority" means any court,
tribunal, arbitrator, authority, agency, commission, official or other
instrumentality of the United States, any foreign country or any domestic or
foreign state, county, city or other political subdivision.
"Indebtedness" of any Person means all obligations of such
Person (i) for borrowed money, (ii) evidenced by notes, bonds, debentures or
similar instruments, (iii) for the deferred purchase price of goods or services
(other than trade payables or accruals incurred in the
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ordinary course of business), (iv) under capital leases and (v) in the nature of
guarantees of the obligations described in clauses (i) through (iv) above of any
other Person.
"Indemnified Party" has the meaning set forth in Section 3.07.
"Indemnifying Party" has the meaning set forth in
Section 3.07.
"Indenture" means the Indenture of even date herewith among
TARC and The Bank of New York as trustee (the "Trustee") governing the 15%
Senior Secured Notes due 2003 issued by TARC and to be assumed by TCR Holding.
"Intellectual Property" means all patents and patent rights,
trademarks and trademark rights, trade names and trade name rights, service
marks and service xxxx rights, service names and service name rights, brand
names, inventions, processes, formulae, copyrights and copyright rights, trade
dress, business and product names, logos, slogans, trade secrets, industrial
models, processes, designs, methodologies, computer programs (including all
source codes) and related documentation, technical information, manufacturing,
engineering and technical drawings, know-how and all pending applications for
and registrations of patents, trademarks, service marks and copyrights.
"Investment Assets" means all debentures, notes and other
evidences of Indebtedness, stocks, securities (including rights to purchase and
securities convertible into or exchangeable for other securities), interests in
joint ventures and general and limited partnerships, mortgage loans and other
investment or portfolio assets owned of record or beneficially by TARC (other
than trade receivables generated in the ordinary course of business of the
TARC).
"Laws" means all laws, statutes, rules, regulations,
ordinances and other pronouncements having the effect of law of the United
States, any foreign country or any domestic or foreign state, county, city or
other political subdivision or of any Governmental or Regulatory Authority.
"Liabilities" means all Indebtedness, obligations and other
liabilities of a Person (whether absolute, accrued, contingent, fixed or
otherwise, or whether due or to become due).
"License" means all licenses, permits, certificates of
authority, authorizations, approvals, registrations, franchises and similar
consents granted or issued by any Governmental or Regulatory Authority.
"Liens" means any mortgage, pledge, assessment, security
interest, lease, lien, adverse claim, levy, charge or other encumbrance of any
kind, or any conditional sale Contract, title retention Contract or other
Contract to give any of the foregoing.
"Loss" means any and all damages, fines, fees, penalties,
deficiencies, losses and expenses (including without limitation interest, court
costs, fees of attorneys, accountants and other experts or other expenses of
litigation or other proceedings or of any claim, default or assessment).
11
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"Order" means any writ, judgment, decree, injunction or
similar order of any Governmental or Regulatory Authority (in each such case
whether preliminary or final).
"Permitted Lien" means (i) any Lien for Taxes not yet due or
delinquent or being contested in good faith by appropriate proceedings for which
adequate reserves have been established in accordance with GAAP, (ii) any
statutory Lien arising in the ordinary course of business by operation of Law
with respect to a Liability that is not yet due or delinquent and (iii) any
minor imperfection of title or similar Lien which individually or in the
aggregate with other such Liens does not materially impair the value of the
property subject to such Lien or the use of such property in the conduct of
TARC's business.
"Person" means any natural person, corporation, limited
liability company, general partnership, limited partnership, proprietorship,
other business organization, trust, union, association or Governmental or
Regulatory Authority.
"Refinery" has the meaning set forth in the recitals to this
Agreement.
"Retained Assets" means those assets of TARC listed in
Schedule K hereto.
"Retained Liabilities" means all Liabilities of TARC other
than Assumed Liabilities, including the Liabilities listed on Schedule L hereto.
"Securities" has the meaning set forth in the recitals to this
Agreement.
"Securities Purchase Agreement" has the meaning set forth in
the recitals to this Agreement.
"Tax" means any federal, state, local, or foreign income,
gross receipts, license, payroll, employment, excise, severance, stamp,
occupation, premium, windfall profits, environmental (including taxes under Code
Section 59A), customs duties, capital stock, franchise, profits, withholding,
social security (or similar), unemployment, disability, real property, personal
property, sales, use, transfer, registration, value added, alternative or add-on
minimum, estimated, or other tax of any kind whatsoever, including any interest,
penalty, or addition thereto, whether disputed or not and any expenses incurred
in connection with the determination, settlement or litigation of any Tax
liability.
"Tax Return" means a report, return or other information
(including any amendments) required to be supplied to a governmental entity by
(i) TARC or (ii) any member of the affiliated group of which TARC is a member
with respect to Taxes that relate to the Assets.
"TCR Parties" has the meaning set forth in Section 3.01.
"Third Party Claim" has the meaning ascribed to it in Section
3.03.
"Transfer Taxes" means all sales, use, transfer, real property
transfer, recording, gains, stock transfer and other similar taxes and fees.
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5.02 Construction of Certain Terms and Phrases. Unless the
context of this Agreement otherwise requires, (i) words of any gender include
each other gender; (ii) words using the singular or plural number also include
the plural or singular number, respectively; (iii) the terms "hereof," "herein,"
"hereby" and derivative or similar words refer to this entire Agreement; and
(iv) the terms "Article" or "Section" refer to the specified Article or Section
of this Agreement. Whenever this Agreement refers to a number of days, such
number shall refer to calendar days unless Business Days are specified.
ARTICLE VI
MISCELLANEOUS
6.01 Notices. All notices, requests and other communications
hereunder must be in writing and will be deemed to have been duly given only if
delivered personally or by facsimile transmission or mailed (first class postage
prepaid) to the parties at the following addresses or facsimile numbers:
If to TCR Holding, to:
00000 Xxxxx Xxxx
Xxx Xxxxx, XX 00000
Attn: Xxxxx XxXxxxxx
with copies to:
Trust Company of the West
00000 Xxxxx Xxxxxx Xxxxxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxxx X. Tell
Milbank, Tweed, Xxxxxx & XxXxxx
000 Xxxxx Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxx
If to TARC, to:
0000 Xxxx Xxxxx Xxxx, Xxxxx 000
Xxxxxxx, XX 00000-0000
Attn: Xx Xxxxxxx
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with a copy to:
Gardere & Xxxxx, LLP
0000 Xxx Xxxxxx
0000 Xxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attn: C. Xxxxxx Xxxxxxxxxxx
6.02 Bulk Sales Act. The parties hereby waive compliance with
the bulk sales act or comparable statutory provisions of each applicable
jurisdiction.
6.03 Waiver of Vendors' Privileges. TARC waives any and all
vendors' privileges to which TARC is entitled and further waives any right to
rescind or dissolve the transfer of the Assets conveyed to TCR Holdings on
account of the nonfulfillment of any of TCR Holdings' obligations hereunder, to
which TARC might be entitled pursuant to La. Civ. Code Arts. 2561-2564 or
otherwise and further warrants that third parties may deal with TCR Holdings,
free and clear of any express or implied resolutory condition or any express or
implied right of recission.
6.04 Entire Agreement. This Agreement constitutes the entire
agreement of the parties with respect to the subject matter hereof, and
supersedes all prior and contemporaneous agreements, representations and
understandings of the parties with respect thereto.
6.05 Expenses. Except as set forth herein, each party will pay
its own costs and expenses incurred in connection with the negotiation,
execution and closing of this Agreement and the transactions contemplated hereby
and thereby.
6.06 Waiver. No waiver of any provision of this Agreement
shall be deemed a waiver of any other provisions hereof, nor shall any waiver in
any one instance be deemed a continuing waiver or a waiver in any other
instance. No waiver shall be binding unless executed in writing by the party to
be charged with such waiver.
6.07 Amendment. This Agreement may be amended, supplemented or
modified only by a written instrument duly executed by or on behalf of each
party hereto.
6.08 No Third Party Beneficiary. The terms and provisions of
this Agreement are intended solely for the benefit of each party hereto and
their respective successors or permitted assigns, and it is not the intention of
the parties to confer third-party beneficiary rights upon any other Person other
than any Person entitled to indemnity under Article III.
6.09 Headings. The headings used in this Agreement have been
inserted for convenience of reference only and do not define or limit the
provisions hereof.
6.10 Invalid Provisions. If any provision of this Agreement is
held to be illegal, invalid or unenforceable under any present or future Law,
and if the rights or obligations of any party hereto under this Agreement will
not be materially and adversely affected thereby,
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(a) such provision will be fully severable, (b) this Agreement will be construed
and enforced as if such illegal, invalid or unenforceable provision had never
comprised a part hereof and (c) the remaining provisions of this Agreement will
remain in full force and effect and will not be affected by the illegal, invalid
or unenforceable provision or by its severance herefrom.
6.11 Governing Law. This Agreement shall be governed by and
construed in accordance with the Laws of the State of New York applicable to a
contract executed and performed in such state, including, without limitation,
Section 5-1401 of the New York General Obligations Law.
6.12 Counterparts. This Agreement may be executed in any
number of counterparts, each of which will be deemed an original, but all of
which together will constitute one and the same instrument.
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IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered by the duly authorized officer of each party as of the date first
above written.
TCR HOLDING CORPORATION
By:
----------------------------------
Name:
Title:
TRANSAMERICAN REFINING CORPORATION
By:
----------------------------------
Name:
Title:
16
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TARC/TCR HOLDING
ASSET TRANSFER AGREEMENT
SCHEDULE A
ASSUMED LIABILITIES
1. $150 million aggregate principal amount of the 15% Senior
Secured Notes due 2003 ("Notes") issued pursuant to the Indenture (the
"Indenture") dated as of December 15, 1998, between TransAmerican Refining
Corporation and The Bank of New York, as Trustee, as secured by (a) an Act of
Mortgage, Assignment of Leases and Rents, Security Agreement and Financing
Statement dated as of December 14, 1998, by TransAmerican Refining Corporation,
as mortgagor, in favor of The Bank of New York, as Trustee, as mortgagee,
recorded in the records of the Clerk of Court, St. Xxxxxxx Xxxxxx, Louisiana,
Entry No. 227767, MOB _________, folio _________, COB ________, folio
__________; and (b) a Security Agreement (the "Security Agreement"), dated as of
December 15, 1998 by TransAmerican Refining Corporation, in favor of The Bank of
New York, as Trustee, together with the financing statement(s) filed in
connection therewith.
2. The Indenture.
3. As defined in the Indenture:
(a) The Notes;
(b) The Project Agreements;
(c) The Construction Collateral and Disbursement
Agreement; and
(d) The Registration Rights Agreement.
4. Real Property Lease Obligations. All obligations of
TARC under the leases and subleases listed on
Schedule D.
5. Personal Property Lease Obligations. All obligations of
TARC under the leases and subleases listed on
Schedule E.
6. Indebtedness. All obligations of TARC under the
Indebtedness listed under the heading "Assumed" on
Schedule F.
7. Accounts Payable. All obligations of TARC under (i) the
accounts payable listed on Schedule G to the extent
such accounts payable were incurred in the ordinary
course of Business, and to the extent incurred as part
of development of Phase I or Phase II of the Refinery,
were incurred in accordance with the Plans (as defined
in the Securities Purchase Agreement) and (ii) those
additional accrued liabilities of TARC listed under the
heading "Assumed" on Schedule G.
A-1
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8. Contracts and Licenses. All obligations of TARC under
(i) the Contracts listed under the heading "Assumed
Contracts" on Schedule H and (ii) all of the Licenses
listed on Schedule H.
9. Legal Proceedings. All obligations of TARC arising out
of the Actions and Proceedings listed on Schedule I,
other than TARC and JRS v. Xxxx Xxxxx, WWL-TV, A.H.
Belo Corp.
10. Liens. Those Liens listed under the heading "Assumed"
on Schedule J.
11. The other Transaction Documents, as defined in the
Securities Purchase Agreement.
Liabilities not otherwise assumed or specifically related
hereunder up to $500, plus additional liabilities incurred in the ordinary
course of business not to exceed $1.0 million in the aggregate.
Penalty interest on TARC sub debt (so long as an exchange
offer is consummated within 2 months (or 3 months if the exchange offer
Registration Statement is reviewed by the Securities and Exchange Commission)).
A-2
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SCHEDULE B
GENERAL ASSIGNMENT AND XXXX OF SALE
THIS GENERAL ASSIGNMENT AND XXXX OF SALE is entered into this
15th day of December, 1998 by and between TCR Holding Corporation, a Delaware
corporation ("Purchaser"), and TransAmerican Refining Corporation, a Texas
corporation ("Seller").
WHEREAS, Purchaser and Seller have entered into an Asset
Transfer Agreement, dated as of December 15, 1998 (the "Asset Transfer
Agreement"; capitalized terms not defined herein shall have the meanings
ascribed to them in the Asset Transfer Agreement), pursuant to which Seller has
agreed to transfer, convey, assign and deliver to Purchaser and Purchaser has
agreed to purchase from Seller substantially all of the Assets and Properties of
Seller, and Purchaser has agreed, in partial consideration therefor, to assume
certain obligations in connection therewith by executing an Assumption Agreement
of even date herewith;
WHEREAS, Seller desires to transfer and assign to Purchaser
the Assets and Properties of Seller pursuant to Section 1.04 of the Asset
Transfer Agreement and Purchaser desires to accept the transfer, conveyance,
assignment and delivery thereof;
NOW, THEREFORE, for and in consideration of the mutual
covenants contained herein and other good and valuable consideration the receipt
and sufficiency of which are hereby acknowledged, Seller hereby irrevocably
transfers, conveys, assigns and delivers to Purchaser all of Seller's right,
title and interest in, to and under all of the Assets of Seller, other than the
Retained Assets listed in Schedule K to the Asset Transfer Agreement, as the
same shall exist on the date hereof TO HAVE AND TO HOLD the same unto Purchaser,
its successors and assigns, forever.
Purchaser hereby accepts the transfer, conveyance, assignment
and delivery of the Assets.
At any time or from time to time after the date hereof, at
Purchaser's request and without further consideration, Seller shall execute and
deliver to Purchaser such other instruments of sale, transfer, conveyance,
assignment and confirmation, provide such materials and information and take
such other actions as Purchaser may reasonably deem necessary or desirable in
order more effectively to transfer, convey and assign to Purchaser, and to
confirm Purchaser's title to, all of the Assets, and, to the full extent
permitted by Law, to put Purchaser in actual possession and operating control of
the Assets and to assist Purchaser in exercising all rights with respect
thereto.
Seller hereby constitutes and appoints Purchaser the true and
lawful attorney of Seller, with full power of substitution, in the name of
Seller or Purchaser, but on behalf of and for the benefit of Purchaser: (i) to
demand and receive from time to time any and all of the Assets and to make
endorsements and give receipts and releases for and in respect of the same
23
and any part thereof; (ii) to institute, prosecute, compromise and settle any
and all Actions or Proceedings that Purchaser may deem proper in order to
collect, assert or enforce any claim, right or title of any kind in or to the
Assets; (iii) to defend or compromise any or all Actions or Proceedings in
respect of any of the Assets; and (iv) to do all such acts and things in
relation to the matters set forth in the preceding clauses (i) through (iii) as
Purchaser shall deem desirable. Seller hereby acknowledges that the appointment
hereby made and the powers hereby granted are coupled with an interest and are
not and shall not be revocable by it in any manner or for any reason.
This General Assignment and Xxxx of Sale may be executed in
any number of counterparts, each of which will be deemed an original, but all of
which together will constitute one and the same instrument.
This General Assignment and Xxxx of Sale shall be governed by
and construed in accordance with the laws of the State of New York applicable to
a contract executed and performed in such State without giving effect to the
conflicts of laws principles thereof, except that if it is necessary in any
other jurisdiction to have the law of such other jurisdiction govern this
General Assignment and Xxxx of Sale in order for this General Assignment and
Xxxx of Sale to be effective in any respect, then the laws of such other
jurisdiction shall govern this General Assignment and Xxxx of Sale to such
extent.
IN WITNESS WHEREOF, the undersigned have caused their duly
authorized officers to execute this General Assignment and Xxxx of Sale on the
day and year first above written.
TCR HOLDING CORPORATION
By:
----------------------------------
Name:
Title:
TRANSAMERICAN REFINING CORPORATION
By:
----------------------------------
Name:
Title:
24
SCHEDULE C
ASSUMPTION AGREEMENT
THIS ASSUMPTION AGREEMENT is entered into this 15th day of
December, 1998 by and between TCR Holding Corporation, a Delaware corporation
("Purchaser"), and TransAmerican Refining Corporation, a Texas corporation
("Seller").
WHEREAS, Purchaser and Seller have entered into an Asset
Transfer Agreement, dated as of December 15, 1998 (the "Asset Transfer
Agreement"; capitalized terms not defined herein shall have the meanings
ascribed to them in the Asset Transfer Agreement), pursuant to which Seller has
agreed to sell, transfer, convey, assign and deliver to Purchaser and Purchaser
has agreed to purchase from Seller substantially all of the Assets and
Properties of Seller, and Purchaser has agreed, in partial consideration
therefor, to assume certain obligations in connection therewith by executing
this Assumption Agreement;
WHEREAS, pursuant to Section 1.04 of the Asset Transfer
Agreement, Purchaser is required to execute and deliver to Seller this
Assumption Agreement whereby Purchaser assumes such obligations;
NOW, THEREFORE, for and in consideration of the mutual
covenants contained herein and other good and valuable consideration the receipt
and sufficiency of which are hereby acknowledged, Purchaser hereby undertakes
and agrees from and after the date hereof, subject to the limitations contained
herein, to assume and to pay, perform and discharge when due the Assumed
Liabilities.
Nothing contained herein shall require Purchaser to pay or
discharge any debts or obligations expressly assumed hereby so long as Purchaser
shall in good faith contest or cause to be contested the amount or validity
thereof.
Other than as specifically stated above or in the Asset
Transfer Agreement, Purchaser assumes no debt, liability or obligation of
Seller, including without limitation the Retained Liabilities, by this
Assumption Agreement, and it is expressly understood and agreed that all debts,
liabilities and obligations not assumed hereby by Purchaser shall remain the
sole obligation of Seller, its successors and assigns.
No Person other than Seller, its successors and assigns shall
have any rights under this Assumption Agreement or the provisions contained
herein.
This Assumption Agreement may be executed in any number of
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
This Assumption Agreement shall be governed by and construed
in accordance with the laws of the State of New York applicable to a contract
executed and performed in such
25
State without giving effect to the conflicts of laws principles thereof, except
that if it is necessary in any other jurisdiction to have the law of such other
jurisdiction govern this Assumption Agreement in order for this Assumption
Agreement to be effective in any respect, then the laws of such other
jurisdiction shall govern this Assumption Agreement to such extent.
IN WITNESS WHEREOF, the undersigned have caused their duly
authorized officers to execute this Assumption Agreement on the day and year
first above written.
TCR HOLDING CORPORATION
By:
----------------------------------
Name:
Title:
TRANSAMERICAN REFINING CORPORATION
By:
----------------------------------
Name:
Title:
26
Omitted Schedules
-----------------
Pursuant to Item 601(b)(2) of Regulation S-K, the Company has omitted
from this filing certain schedules to Exhibit 2.2. The Company agrees to
furnish supplementally copies of any such omitted schedules to the Commission
upon request. The contents of the omitted schedules are described below:
Schedule D -- Real Property Leases
Schedule E -- Personal Property Leases
Schedule F -- Indebtedness
Schedule G -- Accounts Payable as of December 2, 1998
Schedule H -- Contracts and Licenses
Schedule I -- Legal Proceedings
Schedule J -- Liens
Schedule K -- Retained Assets
Schedule L -- Retained Liabilities
Schedule M -- Current Tax Filings and Audits
