EXHIBIT 10.4
FIRST AMENDMENT TO
PLEDGE AGREEMENT
THIS FIRST AMENDMENT TO PLEDGE AGREEMENT (this "AMENDMENT") dated as
of May 21, 1997 is made by and among TEXOIL, INC., a Nevada corporation
("PARENT") and RIMCO PARTNERS, L.P., a Delaware limited partnership, RIMCO
PARTNERS, X.X. XX, a Delaware limited partnership, RIMCO PARTNERS, L.P. III, a
Delaware limited partnership, and RIMCO PARTNERS, X.X. XX, a Delaware limited
partnership (collectively, the "NOTEHOLDERS") party to the Amended Note
Agreement (as defined below).
PRELIMINARY STATEMENT
A. The Parent and the Noteholders have entered into that certain
Note Purchase Agreement, dated September 6, 1996 (the "ORIGINAL NOTE
AGREEMENT").
B. In connection with the Original Note Agreement, the Parent and
the Noteholders entered into that certain Guaranty and Exchange Agreement dated
as of September 6, 1996 (the "GUARANTY AGREEMENT").
C. The Parent executed that certain Pledge Agreement, dated
September 6, 1996 covering certain shares of capital stock of the Company (the
"PLEDGE AGREEMENT") as security for, INTER ALIA, the obligations of the Company
to the Noteholders existing under the Original Note Agreement, the Notes and the
other Transaction Documents (as defined in the Original Note Agreement).
D. On even date herewith, the Company and the Noteholders have
amended and restated the Original Note Agreement by entering into that certain
Amended and Restated Note Purchase Agreement (the "AMENDED NOTE AGREEMENT")
whereby the Noteholders have committed to make Tranche C Advances (as defined in
the Amended Note Agreement) of up to $1,500,000.00.
E. On even date herewith, the Parent and the Noteholders entered
into that certain Amended and Restated Guaranty and Exchange Agreement (the
"AMENDED GUARANTY AGREEMENT").
F. The Parent and the Noteholders now desire to amend the Pledge
Agreement to secure all of the obligations of the Parent under the Amended
Guaranty Agreement.
G. It is a condition precedent to the effectiveness of the Amended
Note Agreement that the Parent and the Noteholders shall have executed this
Amendment.
Exhibit 10.4 - Page 1
NOW THEREFORE, in consideration of the foregoing and the mutual
agreements set forth herein, the parties agree as follows:
ARTICLE I
DEFINITIONS AND CONSTRUCTION
(a)All capitalized terms defined in the Pledge Agreement and not
otherwise defined herein shall have the same meanings herein as in the Pledge
Agreement including, without limitation, defined terms that are defined by
reference to the Amended Note Agreement. All references in the Pledge Agreement
to the Note Agreement shall be references to the Amended Note Agreement (as same
may be modified, amended or amended and restated from time to time).
(b)The words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Amendment as a whole and not to any particular
Article, Section or other subdivision.
(c)The Article and Section headings herein are for convenience only
and shall not affect the construction hereof.
ARTICLE II
AMENDMENT TO PLEDGE AGREEMENT
The term "Obligations" as defined in Section 3 of the Pledge
Agreement is hereby amended to include, without limitation, the (a) payment of
all obligations of Parent to the Noteholders now or hereafter existing under the
Amended Guaranty Agreement or the other Transaction Documents as such Amended
Guaranty Agreement and other Transaction Documents may be further amended,
amended and restated, extended or otherwise modified from time to time in the
future (including, without limitation, any interest accruing after the filing of
any petition or pleading in a bankruptcy or similar proceeding) and (b)
performance and observance by Parent of all obligations, covenants and
conditions contained in the Amended Guaranty Agreement and the other Transaction
Documents as such Amended Guaranty Agreement and other Transaction Documents may
be further amended, amended and restated, extended or otherwise modified from
time to time in the future (including, without limitation, the obligations,
covenants and conditions contained herein), whether for principal, interest,
fees, expenses or otherwise.
ARTICLE III
CONDITION OF EFFECTIVENESS
This Amendment shall become effective when, and only when, the
following conditions shall have been fulfilled:
Exhibit 10.4 - Page 2
(a)the Noteholders and the Parent shall have executed a counterpart
of this Amendment;
(b)the Amended Note Agreement shall have become effective; and
(c)the Amended Guaranty Agreement shall have become effective.
ARTICLE IV
MISCELLANEOUS
Section 4.01 REPRESENTATIONS AND WARRANTIES TRUE; NO DEFAULT OR
EVENT OF DEFAULT. Parent hereby represents and warrants to the Noteholders that,
after giving effect to the execution and delivery of this Amendment (a) this
Amendment constitutes a valid and legally binding agreement enforceable against
the Parent in accordance with its terms except, as such enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer or other similar laws relating to or affecting the enforcement of
creditors' rights generally and by general principles of equity, (b) the
representations and warranties by the Parent contained in the Pledge Agreement
as amended hereby are true and correct on and as of the date hereof in all
material respects as though made as of the date hereof, and (c) no Event of
Default has occurred and is continuing as of the date hereof.
Section 4.02 REFERENCE TO PLEDGE AGREEMENT AND EFFECT ON NOTES, NOTE
AGREEMENT AND OTHER TRANSACTION DOCUMENTS EXECUTED IN CONNECTION WITH THE PLEDGE
AGREEMENT.
(a)Upon the effectiveness of this Amendment, each reference in the
Pledge Agreement to "this Agreement," "hereunder," "herein," "hereof," or words
of similar import shall mean and be a reference to the Pledge Agreement as
affected and amended hereby.
(b)Upon the effectiveness of this Amendment, each reference in the
Notes, the Amended Note Agreement, the other Transaction Documents and the other
documents and agreements delivered or to be delivered pursuant to the Amended
Note Agreement and the other Transaction Documents to the Pledge Agreement shall
mean and be a reference to the Pledge Agreement, as affected and amended hereby.
(c)The Pledge Agreement and the other Transaction Documents, as
affected and amended hereby, shall remain in full force and effect and are
hereby ratified and confirmed.
Section 4.03 GOVERNING LAW; TERMS. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, EXCEPT AS
REQUIRED BY MANDATORY PROVISIONS OF LAW AND EXCEPT TO THE EXTENT THAT THE
VALIDITY OR PERFECTION OF THE SECURITY INTEREST HEREUNDER, OR REMEDIES
HEREUNDER, IN RESPECT OF
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ANY PARTICULAR COLLATERAL ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN
THE STATE OF TEXAS.
Section 4.04 EXECUTION IN COUNTERPARTS. This Amendment may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
TEXOIL, INC.
By: _________________
Xxxxx Xxxxxxx
President
RIMCO PARTNERS, L.P.,
RIMCO PARTNERS, X.X. XX,
RIMCO PARTNERS, L.P. III, AND
RIMCO PARTNERS, X.X. XX
By: RESOURCE INVESTORS MANAGEMENT
COMPANY LIMITED PARTNERSHIP,
THEIR GENERAL PARTNER
By: RIMCO ASSOCIATES, INC.,
its general partner
By: _________________
Xxxx Xxxxxxx
Vice President
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