Exhibit 4.2
FIFTH AMENDMENT TO
CREDIT AGREEMENT
between
XXXXXXXX PETROLEUM COMPANY OF LOUISIANA
GPC, INC. OF LOUISIANA
and
COMPASS BANK
Effective as of
October 16, 1997
FIFTH AMENDMENT TO CREDIT AGREEMENT
-----------------------------------
This FOURTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment")
is made and entered into effective as of October 16, 1997, by and between
XXXXXXXX PETROLEUM COMPANY OF LOUISIANA ("GPCL"), a Nevada corporation, formerly
known as American National Petroleum Company, successor by merger to Xxxxxxx
Petroleum Corporation of Michigan, a Michigan corporation, GPC, INC. OF
LOUISIANA ("GPC"), a Nevada corporation, (collectively, the "Borrower"),
XXXXXXXX PETROLEUM CORPORATION, a Delaware corporation, ("Xxxxxxxx"), and
COMPASS BANK, a Texas state chartered banking corporation (the "Lender").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, GPCL, GPC, 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 as further amended by Third
Amendment to Credit Agreement dated as of January 31, 1997, and as further
amended by Fourth Amendment to Credit Agreement dated as of June 1, 1997, (as
amended, the "Agreement"), pursuant to which the Lender has extended credit to
GPCL and Xxxxxxxx has guaranteed the payment and performance of certain
indebtedness and other obligations of GPCL and GPC to the Lender; 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
------------------------------
1.1 Terms Defined Above. As used herein, each of the terms
"Agreement," "Amendment," "Borrower," "GPC", "GPCL," "Xxxxxxxx," and "Lender"
shall have the meaning assigned to such term hereinabove.
1.2 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.
1.3 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"
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shall be to this Amendment in its entirety and not only to the particular
Article or Section in which such reference appears.
1.4 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 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.
1.5 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 as follows:
2.1 Amendment of Section 1.2. Section 1.2 of the
-------------------------
Agreement is hereby amended as follows:
The following definition is amended to read as
follows:
"Applicable Margin" shall mean as to each Floating
-------------------
Rate Loan, zero percent (0%), and as to each LIBO
Rate Loan, the following:
Borrowing Base LIBO Rate Loan
Utilization Applicable Margin
-------------- -----------------
1) greater than 75% two percent (2%)
of Borrowing Base
2) less than or equal to 75% one and three-fourths
and greater than 50% of percent (1 3/4%)
Borrowing Base
3) less than or equal to one and one-half
50% of Borrowing Base percent (1 1/2%)
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The Borrowing Base Utilization and the corresponding
LIBO Rate shall be set at each quarter end for the next
quarter. Borrower will furnish to Lender a Form of Borrowing
Base Utilization, which is attached as Exhibit VII to this
Amendment, which shall stipulate the Borrowing Base level at
the end of such quarter. Such form shall be furnished to
Lender within five (5) days of the end of such quarter."
"Borrowing Base Utilization" shall mean the aggregate
---------------------------
principal amount of Loans outstanding hereunder as a
percentage of the Borrowing Base."
2.2 Amendment of Section 2.7(a). The first sentence of
----------------------------
Section 2.7(a) of the Agreement is hereby amended to read as follows:
(a) "Effective October 16, 1997, the Borrowing Base shall be
$19,000,000 until the next Borrowing Base review.
2.3 Amendment of Section 2.12. Section 2.12 of the
---------------------------
Agreement is amended by amending the first sentence to read as follows:
"To compensate the Lender for maintaining funds available, the
Borrower shall pay to the Lender a commitment fee calculated
on the basis of a year of 365 or 366 days, as the case may be,
and actual days elapsed (including the first day but excluding
the last day), on the average daily amount of the Available
Commitment as follows:
Borrowing Base
Utilization Commitment Fee
-------------- --------------
1) greater than 75% one-half percent(1/2%)
of Borrowing Base
2) less than or equal to three-eighths percent(3/8%)
50% of Borrowing Base
The Borrowing Base Utilization and the corresponding Commitment Fee
shall be set at each quarter end for the next quarter.
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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:
3.1 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) such other agreements, documents, items, instruments,
opinions, certificates, waivers, consents and evidence as the Lender
may reasonably request.
3.2 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.
3.3 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.
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ARTICLE VI
MISCELLANEOUS
-------------
6.1 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.
6.2 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.
6.3 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.
6.4 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.
6.5 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 PARTIES 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.
6.6 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.
6.7 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
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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.
6.8 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.
IN WITNESS WHEREOF, this Amendment is executed effective
as of the date first hereinabove written.
BORROWER:
XXXXXXXX PETROLEUM COMPANY OF LOUISIANA
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------
Xxxxxx X. Xxxxxxxx
President
GPC, INC. OF LOUISIANA
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------
Xxxxxx X. Xxxxxxxx
President
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GUARANTOR:
XXXXXXXX PETROLEUM CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------
Xxxxxx X. Xxxxxxxx
President
LENDER:
COMPASS BANK
By: /s/ Xxxxxxx Xxxxxx
-------------------------------
Xxxxxxx Xxxxxx
Vice-President
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EXHIBIT VII
[FORM OF BORROWING BASE UTILIZATION]
Compass Bank
00 Xxxxxxxx Xxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxx 00000
Attention: Energy Lending
Re: Credit Agreement dated as of August 16, 1995, as
Amended by and between the parties as set forth in the
Fifth Amendment to Credit Agreement
-----------------------------------
Ladies and Gentlemen:
Pursuant to applicable requirements of the Credit Agreement, the
undersigned, as Responsible Officers of the Borrowers and the Guarantors, hereby
certify to you the following information as true and correct as of the date
hereof or for the period indicated, as the case may be:
To the best knowledge of the undersigned, the Borrowing Base
Utilization as described in the definition of the Applicable Margin for the
quarter ending _________________, 19__, was as follows, and the LIBO Rate Loan
Applicable Margin for the following quarter is as follows:
Borrowing Base LIBO Rate
Utilization Margin Loan Applicable
------------------ ---------------
[1) greater than 75% two percent (2%)
of Borrowing Base]
[2) less than or equal to 75% one and three-fourths
and greater than 50% of percent (1 3/4%)
Borrowing Base]
[3) less than or equal to one and one-half
50% of Borrowing Base percent (1 1/2%)]
To the best knowledge of the undersigned, the Borrowing Base
Utilization as described in Section 2.12 for the quarter ending
_________________, 19__, was as follows and the Commitment Fee as described in
Section 2.12 for the following quarter is as follows:
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Borrowing Base
Utilization Margin Commitment Fee
------------------ --------------
[1) greater than 50% one-half percent (1/2%)
of Borrowing Base]
[2) less than or equal to three-eighths percent(3/8%)
50% of Borrowing Base]
Each capitalized term used but not defined herein shall have the
meaning assigned to such term in the Credit Agreement.
XXXXXXXX PETROLEUM COMPANY OF LOUISIANA
By: _____________________________________
Printed Name: ___________________________
Title: __________________________________
GPC, INC. OF LOUISIANA
By: _____________________________________
Printed Name: ___________________________
Title: __________________________________
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