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EXHIBIT 4.40
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TCR HOLDING CORPORATION
and
TRANSCONTINENTAL REFINING CORPORATION
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ASSUMPTION OF OBLIGATIONS UNDER 1998 WARRANT AGREEMENT
Dated as of December 15, 1998
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ASSUMPTION OF OBLIGATIONS UNDER 1998 WARRANT AGREEMENT
This Assumption of Obligations Under 1998 Warrant Agreement
("Assumption Agreement") is entered into as of this 15th day of December, 1998,
by TCR Holding Corporation, a Delaware corporation ("TCR") and TransContinental
Refining Corporation, a Delaware corporation ("TransContinental"), and in favor
of the holders of the Warrants (as defined below).
WHEREAS, TransAmerican Refining Corporation, a Texas corporation
("TARC") and First Union National Bank, as Warrant Agent (the "Warrant Agent")
entered into that certain Warrant Agreement dated as of March 16, 1998 (the
"Warrant Agreement"), pursuant to which warrants ("Warrants") to purchase shares
of Common Stock, par value $0.01 per share, of TARC are issued and outstanding;
and
WHEREAS, TARC proposes to consummate a reorganization pursuant to which
TARC will transfer substantially all of its assets (the "Refinery Assets") to
TCR Holding, which will in turn transfer the Refinery Assets to
TransContinental; and
WHEREAS, Section 4.14 of the Warrant Agreement provides that TARC may
not effect any Reorganization (as defined in the Warrant Agreement) unless prior
to or simultaneously with the consummation of the Reorganization, the successor
corporation or the corporation purchasing the assets of TARC expressly assumes
the obligations and liabilities of TARC under the Warrant Agreement;
WHEREAS, TCR Holding desires to acquire the Refinery Assets and, in
connection therewith, to comply with the requirements of Section 4.14 of the
Warrant Agreement by assuming the obligations and liabilities of TARC
thereunder, and TransContinental desires to acquire the Refinery Assets and, in
connection therewith, to comply with Section 4.14 of the Warrant Agreement by
assuming the obligations and liabilities of TCR Holding thereunder (which result
from the assumption thereof by TCR Holding pursuant hereto);
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, TCR Holding and TransContinental
hereby agree as follows:
1. TCR Holding hereby assumes and agrees to perform, discharge, and
satisfy, on and after the date hereof, all of the liabilities and obligations of
TARC under the Warrant Agreement, including, but not limited to, the obligation
to deliver to the Holders (as defined in the Warrant Agreement) such cash, such
shares of stock, securities or assets as, in accordance with the terms of the
Warrant Agreement, the Holders may be entitled to purchase upon exercise of the
Warrants.
2. TransContinental hereby assumes and agrees to perform, discharge,
and satisfy, on and after the date hereof, all of the liabilities and
obligations of TCR Holding (which result from the assumption thereof by TCR
Holding pursuant hereto) under the Warrant Agreement, including, but not limited
to, the obligation to deliver to the Holders such cash, such shares of stock,
securities or assets as, in accordance with the terms of the Warrant Agreement,
the Holders may be entitled to purchase upon exercise of the Warrants.
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3. Attached hereto as Exhibit A is a certificate of resolutions adopted
by the Board of Directors of TARC pursuant to the requirements of Section 4.14
of the Warrant Agreement.
4. THIS ASSUMPTION AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND
PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW.
IN WITNESS WHEREOF, TCR Holding and TransContinental have caused this
Assumption Agreement to be duly executed on and effective as of day and year
first above written.
TCR HOLDING CORPORATION,
A Delaware corporation
By:
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Name: Xx Xxxxxxx
Title: Vice President
TRANSCONTINENTAL REFINING CORPORATION,
A Delaware corporation
By:
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Name: Xx Xxxxxxx
Title: Vice President
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