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EXHIBIT 4.37
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TRANSAMERICAN REFINING CORPORATION
AND
XXXXXXXXX & COMPANY, INC.
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$25,000,000 Series C 16% Senior Subordinated Note due 2003
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FIRST AMENDMENT TO REGISTRATION RIGHTS AGREEMENT
Dated as of December 15, 1998
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FIRST AMENDMENT TO REGISTRATION RIGHTS AGREEMENT
This First Amendment to Registration Rights Agreement (this "First
Amendment") is made as of December 15, 1998, by and among TransAmerican Refining
Corporation, a Texas corporation (the "Company"), and Xxxxxxxxx & Company, Inc.
(the "Purchaser"). Capitalized terms used but not defined herein shall have the
meaning attributed to them in that certain Registration Rights Agreement, dated
as of March 16, 1998, among the Company and the Purchaser (the "Registration
Rights Agreement").
WHEREAS, the Company and First Union National Bank, as Trustee, have
entered into an Indenture dated as of March 16, 1998, as amended by a First
Supplemental Indenture thereto dated of even date herewith (the "Indenture"),
pursuant to which the Company issued $25,000,000 aggregate principal amount of
its 16% Senior Subordinated Notes due 2003, Series C; and
WHEREAS, as an inducement to the Purchaser to enter into the Purchase
Agreement (as defined in the Registration Rights Agreement), the Company entered
into the Registration Rights Agreement with the Purchaser for the benefit of the
Holders of the Securities; and
WHEREAS, the parties to the Registration Rights Agreement have agreed
to certain amendments to the Registration Rights Agreement as hereinafter set
forth (the "Proposed Amendments"); and
WHEREAS, in accordance with the provisions of Section 11(c) of the
Registration Rights Agreement, the written consent of the of Holders of at least
a majority of the then outstanding aggregate principal amount of Registrable
Securities to the adoption of the Proposed Amendments have been obtained;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties to this First
Amendment hereby agree as follows:
ARTICLE I
AMENDMENT TO REGISTRATION RIGHTS AGREEMENT
Section 1.01. Section 2 of the Registration Rights Agreement.
(a) Section 2(g) of the Registration Rights Agreement is
hereby amended to read in its entirety as follows:
(g) If, prior to consummation of the Exchange Offer, the
Purchaser holds any Securities acquired by it and having the
status as an unsold allotment in the initial distribution, the
Company shall, upon the request of the Purchaser,
simultaneously with the delivery of the Exchange Securities in
the Exchange Offer, issue (pursuant to the same indenture as
the Exchange Securities) and deliver to the Purchaser, in
exchange for the Securities held by the Purchaser (the "Private
Exchange"), a like principal amount of debt securities of the
Company that are identical to the Exchange Securities (the
"Private Exchange Securities"). The Private Exchange Securities
shall bear the same CUSIP number as the Exchange Securities.
Any Holder that is an affiliate of the Company that has
informed the Company in writing of its desire to participate in
a Private Exchange shall be permitted to request and
participate, on the same terms as if such Holder were the
Purchaser.
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(b) Section 2(i) of the Registration Rights Agreement is
hereby amended to read in its entirety as follows:
(i) If (i) prior to the consummation of the Exchange
Offer, either the Company or the Holders of a majority in
aggregate principal amount of Registrable Securities determines
in its or their reasonable judgment that (A) the Exchange
Securities would not, upon receipt, be tradeable by the Holders
thereof without restriction under the Securities Act and the
Exchange Act and without material restrictions under applicable
Blue Sky or state securities laws, or (B) the interests of the
Holders under this Agreement, taken as a whole, would be
materially adversely affected by the consummation of the
Exchange Offer, (ii) applicable interpretations of the staff of
the SEC would not permit the consummation of the Exchange Offer
prior to 90 days after the Effectiveness Date, (iii) subsequent
to the consummation of the Private Exchange but within one year
of the Closing Date, the Purchaser so requests, (iv) the
Exchange Offer is not consummated within 255 days of the
Closing Date or such later date as is permitted under the
Series A Registration Rights Agreement to consummate the
Exchange Offer (as defined therein) for any reason or (v) in
the case of any Holder not permitted to participate in the
Exchange Offer or of any Holder participating in the Exchange
Offer that receives Exchange Securities that may not be sold
without material restriction under state and federal securities
laws and, in either case contemplated by this clause (v), such
Holder notifies the Company within six months of consummation
of the Exchange Offer, then the Company shall promptly deliver
to the Holders (or in the case of any occurrence of the event
described in clause (v) of this Section 2(i), to any such
Holder) and the Trustee notice thereof (the "Shelf Notice") and
shall as promptly as possible thereafter file an Initial Shelf
Registration pursuant to Section 3.
ARTICLE II
MISCELLANEOUS
Section 2.01. Ratification and Confirmation. As amended and modified by
this First Amendment, the terms and provisions of the Registration Rights
Agreement are hereby ratified and confirmed and shall continue in full force and
effect.
Section 2.02. Reference to Registration Rights Agreement. The
Registration Rights Agreement and any and all other agreements, documents or
instruments now or hereafter executed and delivered pursuant to the terms of the
Registration Rights Agreement, are hereby amended so that any reference therein
to the Registration Rights Agreement shall mean a reference to the Registration
Rights Agreement as amended hereby.
Section 2.03. Counterparts. This First Amendment may be executed in one
or more counterparts, each of which when executed shall be deemed to be an
original, but all of which when taken together shall constitute one and the same
instrument.
Section 2.04. Headings. The headings, captions and arrangements used in
this First Amendment are for convenience only and shall not affect the
interpretation of this First Amendment.
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Section 2.05. Governing Law. THIS FIRST AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, INCLUDING
WITHOUT LIMITATION, NEW YORK GENERAL OBLIGATIONS LAW SECTIONS 5-1401 AND 5-1402
AND NEW YORK CIVIL PRACTICE LAW AND RULE 327.
Section 2.06. Effectiveness of Amendments. This First Amendment is
effective as of the date first above written. However, the provisions of the
Registration Rights Agreement amended or eliminated as provided in this First
Amendment (the "Amended Provisions") shall remain operative in the form in which
they exist in the Registration Rights Agreement until the Transaction Closing
Date (as defined in the Indenture), whereupon the Amended Provisions will be
amended or eliminated as provided herein, effective immediately prior to the
Transaction Closing Date.
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment
to be executed as of the date of first written above.
TRANSAMERICAN REFINING CORPORATION
By:
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Name: Xx Xxxxxxx
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Title: Vice President
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Accepted and Agreed to:
JEFFERIES & COMPANY, INC.
By:
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Name:
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Title:
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