Exhibit 4.9
SIXTH AMENDMENT TO
CREDIT AGREEMENT
between
XXXXXXXX PETROLEUM COMPANY OF LOUISIANA
GPC, INC. OF LOUISIANA
and
COMPASS BANK
Effective as of
March 27, 1998
SEVENTH AMENDMENT TO CREDIT AGREEMENT
-------------------------------------
This SEVENTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is made
and entered into effective as of December 20, 1998, by and between XXXXXXXX
PETROLEUM COMPANY, L.L.C. ("GP"), a Louisiana limited liability company,
successor by merger to XXXXXXXX PETROLEUM COMPANY OF LOUISIANA, a Nevada
corporation ("GPCL"), (the "Borrower"), XXXXXXXX PETROLEUM CORPORATION, a
Delaware corporation, ("Xxxxxxxx"), and COMPASS BANK, an Alabama state chartered
banking institution (the "Lender").
W I T N E S S E T H:
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WHEREAS, GPCL, GPC, Inc. of Louisiana (which was merged into GPCL),
the Lender, and Xxxxxxxx are parties to the Credit Agreement dated August 16,
1995, as amended by First Amendment to Credit Agreement dated as of December 15,
1995, and Letter Amendment dated March 26, 1996, and Second Amendment to Credit
Agreement dated as of June 1, 1996, and Letter Amendment dated November 12,
1996, and by Third Amendment to Credit Agreement dated as of January 31, 1997,
and by Fourth Amendment to Credit Agreement dated as of June 1, 1997 and by
Fifth Amendment to Credit Agreement dated as of October 16, 1997, and as amended
by Letter Amendment dated February 25, 1998, and as further amended by Sixth
Amendment to Credit Agreement dated as of March 27, 1998 (as amended, the
"Agreement"), pursuant to which the Lender has extended credit to GPCL and GPC
and Xxxxxxxx has guaranteed the payment and performance of certain indebtedness
and other obligations of GPCL and GPC to the Lender; and
WHEREAS, GPCL has merged with GP and GP is the surviving entity; and
WHEREAS, the parties hereto desire to amend the Agreement as
hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained in the Agreement and this Amendment, the parties hereto
agree as follows:
ARTICLE I
DEFINITIONS AND INTERPRETATION
------------------------------
I.1 Terms Defined Above. As used herein, each of the terms "Agreement,"
"Amendment," "Borrower," "GP," "GPCL", "Xxxxxxxx," and "Lender" shall have the
meaning assigned to such term hereinabove.
I.1 Terms Defined in Agreement. As used herein, each term defined in the
Agreement shall have the meaning assigned thereto in the Agreement, unless
expressly provided herein to the contrary.
I.2 References. References in this Amendment to Article or Section numbers shall
be to Articles and Sections of this Amendment, unless expressly stated to the
contrary. References in this Amendment to "hereby," "herein," "hereinafter,"
"hereinabove," "hereinbelow," "hereof," and "hereunder" shall be to this
Amendment in its entirety and not only to the particular Article or Section in
which such reference appears.
I.1 Articles and Sections. This Amendment, for convenience only, has been
divided into Articles and Sections and it is understood that the rights, powers,
privileges, duties, and
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other legal relations of the parties hereto shall be determined from this
Amendment as an entirety and without regard to such division into Articles and
Sections and without regard to headings prefixed to such Articles and Sections.
I.1 Number and Gender. Whenever the context requires, reference herein made to
the single number shall be understood to include the plural and likewise the
plural shall be understood to include the singular. Words denoting sex shall be
construed to include the masculine, feminine, and neuter, when such construction
is appropriate, and specific enumeration shall not exclude the general, but
shall be construed as cumulative. Definitions of terms defined in the singular
and plural shall be equally applicable to the plural or singular, as the case
may be.
ARTICLE II
AMENDMENTS TO AGREEMENT
-----------------------
The Agreement is hereby amended to substitute GP for GPCL and GP
agrees to be bound by all of the terms and provisions of the Agreement and to
execute a note in the form set forth as Exhibit A to this Amendment.
ARTICLE III
CONDITIONS
----------
The obligation of the Lender to amend the Agreement as provided herein
is subject to the fulfillment of the following conditions precedent:
I.1 Receipt of Documents and Other Items. The Lender shall have received,
reviewed, and approved the following documents and other items, appropriately
executed when necessary and in form and substance satisfactory to the Lender:
(a) multiple counterparts of this Amendment executed by the Borrower
and Xxxxxxxx, as requested by the Lender; and
(b) the Note;
(c) copies of the Articles of Organization and all amendments thereto
and the operating agreement and all amendments thereto of GP accompanied by
a certificate issued by the secretary or an assistant secretary or chief
financial officer of GP, to the effect that each such copy is correct and
complete;
(d) certificates of incumbency and signatures of all officers of GP
who are authorized to execute Loan Documents on behalf of such entities,
each such certificate being executed by the secretary or an assistant
secretary or chief financial officer of the Borrower or the Guarantors, as
the case may be;
(e) copies of resolutions approving the Loan Documents and authorizing
the transactions contemplated herein and therein, duly adopted by the
management committee of GP, accompanied by certificates of the secretary,
an assistant secretary or chief financial officer of GP, to the effect that
such copies are true and correct copies of
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resolutions duly adopted at a meeting or by unanimous consent of the
management committee of GP, and that such resolutions constitute all the
resolutions adopted with respect to such transactions, have not been
amended, modified, or revoked in any respect, and are in full force and
effect as of the date of such certificate;
(f) Articles of Merger for GPC, Inc. of Louisiana into Xxxxxxxx
Petroleum Company of Louisiana and Articles of Merger for Xxxxxxxx
Petroleum Company of Louisiana into Xxxxxxxx Petroleum Company, L.L.C. must
be filed in all counties and parishes where Mortgaged Property is located
and within thirty days from the execution of this Amendment the Lender
shall be furnished with recording references for each county or parish; and
(g) such other agreements, documents, items, instruments, opinions,
certificates, waivers, consents, and evidence as the Lender may reasonably
request.
I.1 Accuracy of Representations and Warranties. The representations and
warranties contained in Article IV of the Agreement and in any other Loan
Document shall be true and correct, except as affected by the transactions
contemplated in the Agreement and this Amendment.
I.1 Matters Satisfactory to Lender. All matters incident to the consummation of
the transactions contemplated hereby shall be satisfactory to the Lender.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
------------------------------
Each of the Borrower and Xxxxxxxx hereby expressly re-makes, in favor
of the Lender, all of the representations and warranties set forth in Article IV
of the Agreement and set forth in any other Loan Document to which it is a
party, and represents and warrants that all such representations and warranties
remain true and unbreached, except as affected by the transactions contemplated
in the Agreement and this Amendment.
ARTICLE V
RATIFICATION
------------
Each of the parties hereto does hereby adopt, ratify, and confirm the
Agreement and the other Loan Documents to which it is a party, in all things in
accordance with the terms and provisions thereof, as amended by this Amendment
and the documents executed in connection herewith.
ARTICLE VI
MISCELLANEOUS
-------------
I.1 Scope of Amendment. The scope of this Amendment is expressly limited to the
matters addressed herein and this Amendment shall not operate as a waiver of any
past, present, or future breach, Default, or Event of Default under the
Agreement, except to the extent, if any, that any such breach, Default, or Event
of Default is remedied by the effect of this Amendment.
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I.1 Agreement as Amended. All references to the Agreement in any document
heretofore or hereafter executed in connection with the transactions
contemplated in the Agreement shall be deemed to refer to the Agreement as
amended by this Amendment.
I.1 Parties in Interest. All provisions of this Amendment shall be binding upon
and shall inure to the benefit of the Borrower, the Lender, Xxxxxxxx, and their
respective successors and permitted assigns.
I.1 Rights of Third Parties. All provisions herein are imposed solely and
exclusively for the benefit of the parties hereto and their respective
successors and permitted assigns. No other Person shall have standing to require
satisfaction of such provisions in accordance with their terms and any or all of
such provisions may be freely waived in whole or in part by the Lender at any
time if in its sole discretion it deems it advisable to do so.
I.1 Entire Agreement. THIS AMENDMENT CONSTITUTES THE ENTIRE AGREEMENT AMONG THE
PARTIES HERETO WITH RESPECT TO THE SUBJECT HEREOF AND SUPERSEDES ANY PRIOR
AGREEMENT, WHETHER WRITTEN OR ORAL, AMONG SUCH PARTIES REGARDING THE SUBJECT
HEREOF. FURTHERMORE IN THIS REGARD, THIS AMENDMENT, THE AGREEMENT, AND THE OTHER
WRITTEN LOAN DOCUMENTS REPRESENT, COLLECTIVELY, THE FINAL AGREEMENT AMONG THE
PARTIES THERETO AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF SUCH PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS AMONG SUCH PARTIES.
I.1 Governing Law. THIS AMENDMENT AND ALL ISSUES ARISING IN CONNECTION HEREWITH
AND THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE CONSTRUED IN ACCORDANCE WITH
AND GOVERNED BY THE LAWS OF THE STATE OF TEXAS WITHOUT GIVING EFFECT TO
PRINCIPLES THEREOF RELATING TO CONFLICTS OF LAW.
I.1 Jurisdiction and Venue. ALL ACTIONS OR PROCEEDINGS WITH RESPECT TO, ARISING
DIRECTLY OR INDIRECTLY IN CONNECTION WITH, OUT OF, RELATED TO OR FROM THIS
AMENDMENT, THE AGREEMENT, OR ANY OTHER LOAN DOCUMENT MAY BE LITIGATED, AT THE
SOLE DISCRETION AND ELECTION OF THE LENDER, IN COURTS HAVING SITUS IN HOUSTON,
XXXXXX COUNTY, TEXAS. EACH OF THE BORROWER AND XXXXXXXX HEREBY SUBMITS TO THE
JURISDICTION OF ANY LOCAL, STATE, OR FEDERAL COURT LOCATED IN HOUSTON, XXXXXX
COUNTY, TEXAS, AND HEREBY WAIVES ANY RIGHTS IT MAY HAVE TO TRANSFER OR CHANGE
THE JURISDICTION OR VENUE OF ANY LITIGATION BROUGHT AGAINST IT BY THE LENDER IN
ACCORDANCE WITH THIS SECTION.
I.1 Waiver of Rights to Jury Trial. EACH OF THE BORROWER, XXXXXXXX, AND THE
LENDER HEREBY KNOWINGLY, VOLUNTARILY, INTENTIONALLY, IRREVOCABLY, AND
UNCONDITIONALLY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, SUIT,
PROCEEDING, COUNTERCLAIM, OR OTHER LITIGATION THAT RELATES TO OR ARISES OUT OF
THIS AMENDMENT, THE AGREEMENT, OR ANY OTHER LOAN DOCUMENT OR THE ACTS OR
OMISSIONS OF THE LENDER IN THE ENFORCEMENT OF ANY OF THE TERMS OR PROVISIONS OF
THIS AMENDMENT, THE AGREEMENT, OR ANY OTHER LOAN DOCUMENT OR OTHERWISE WITH
RESPECT THERETO. THE PROVISIONS OF THIS SECTION ARE A MATERIAL INDUCEMENT FOR
THE LENDER ENTERING INTO THIS AMENDMENT.
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IN WITNESS WHEREOF, this Amendment is executed effective as of the
date first hereinabove written.
BORROWER:
XXXXXXXX PETROLEUM COMPANY,
L.L.C.
By:
Xxxxxx X. Xxxxxxxxx
Management Committee Member
GUARANTOR:
XXXXXXXX PETROLEUM CORPORATION
By:
Xxxxxx X. Xxxxxxxxx
Chief Financial Officer and Treasurer
LENDER:
COMPASS BANK
By:
Xxxxxxx Xxxxxx
Vice-President
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