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EXHIBIT 4.36
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TRANSAMERICAN REFINING CORPORATION
AND
JEFFERIES & COMPANY, INC.
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$200,000,000 Series A 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 Jefferies & 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 December 30, 1997, 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 December 30, 1997, as amended by a First
Supplemental Indenture thereto dated of even date herewith (the "Indenture"),
pursuant to which the Company issued $175,000,000 aggregate principal amount of
its 16% Senior Subordinated Notes due 2003, Series A; 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 390 days of the Closing Date 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: Ed Donahue
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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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