FOURTH AMENDMENT TO LOAN AGREEMENT
Exhibit 10.64
FOURTH AMENDMENT TO
LOAN AGREEMENT
LOAN AGREEMENT
This FOURTH AMENDMENT TO LOAN AGREEMENT dated as of February 28, 2009 (this “Fourth
Amendment”), is between RZB FINANCE LLC (the “Lender”) and Rio Vista Energy Partners L.P. (the
“Borrower”).
W I T N E S S E T H:
WHEREAS, Lender and the Borrower are parties to a Loan Agreement dated as of July 26, 2007
(as amended, supplemented or otherwise modified from time to time, the “Loan Agreement”;
capitalized terms used herein having the meanings ascribed thereto in the Loan Agreement unless
otherwise defined herein); and
WHEREAS, the Borrower has requested certain amendments to the Loan Agreement, and Lender is
willing to agree to such amendments, subject to the terms and conditions hereof.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
Section 1. Amendments.
Effective on the Effective Date set forth below, the definition of “Maturity Date” in Section
1.1 of the Loan Agreement is amended and restated in its entirety as follows:
““Maturity Date” means March 31, 2009.”
Section 2. Effectiveness of Amendment.
This Fourth Amendment shall become effective on the date (the “Effective Date”) on which
Lender shall have received:
(a) this Fourth Amendment duly executed by all parties hereto;
(b) the consents substantially in the form attached hereto (the “Consents”) duly executed by
the Guarantors and subordinated creditors (the names of which are set forth on the Consents), as
applicable;
(c) an amendment to the Mortgage, Deed of Trust and Security Agreement dated as of July 26,
2007 (as amended, supplemented or otherwise modified from time to time) duly executed and delivered
by Merger Sub, in form and substance acceptable to Lender in its sole discretion; and
(d) such partnership or other authorization documents of the Borrower, the Guarantors and
subordinated creditors, as required by Lender, and opinions of counsel as Lender shall request.
Section 3. Effect of Amendment; Ratification; Representations; etc.
(a) On and after the date hereof, when counterparts of this Fourth Amendment shall have been
executed by all parties hereto, this Fourth Amendment shall be a part of the Loan Agreement, all
references to the Loan Agreement in the Loan Agreement and the other Loan Documents shall be deemed
to refer to the Loan Agreement as amended by this Fourth Amendment, and the term “this Agreement”,
and the words “hereof”, “herein”, “hereunder” and words of similar import, as used in the Loan
Agreement, shall mean the Loan Agreement as amended hereby.
(b) Except as expressly set forth herein, this Fourth Amendment shall not constitute an
amendment, waiver or consent with respect to any provision of the Loan Agreement, as amended
hereby, and the Loan Agreement, as amended hereby, is hereby ratified, approved and confirmed in
all respects.
(c) In order to induce Lender to enter into this Fourth Amendment, the Borrower represents and
warrants to Lender that before and after giving effect to the execution and delivery of this Fourth
Amendment:
(i) the representations and warranties of the Borrower set forth in
the Loan Agreement and in the other Loan Documents are true and correct (except
that for the purpose of this Section 4(c)(i), the references to “Subsidiaries”
in subsections 4.3(c) (second reference only), 4.8, 4.9, 4.10, 4.12, 4.15, 4.18
and 4.19 shall be deemed to be references to “Restricted Subsidiaries”),
(ii)
no Default or Event of Default has occurred and is continuing;
and
(iii)
none of the Borrower or any Guarantor is (or will be at any
time) a party to any Related Contract (as defined in the MSA).
(d) The Borrower hereby represents and warrants to Lender, and by their execution of the
Guarantor Consent attached hereto, the Guarantors hereby represent and warrant to Lender that:
(i)
as of the date hereof, the principal amount outstanding of the Loan is $4,000,000;
(ii)
interest and fees have accrued thereon as provided in the Loan Agreement; and
(iii)
the obligation of the Borrower and the Guarantors to repay the Loan and the other
Obligations, together with all interest and fees accrued thereon, is absolute and unconditional,
and there exists no right of set off or recoupment, counterclaim or defense of any nature
whatsoever to the payment of the Obligations.
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Section 4. Release.
EACH OF THE BORROWER (IN ITS OWN RIGHT AND ON BEHALF OF ITS OFFICERS, EMPLOYEES, INDEPENDENT
CONTRACTORS, ATTORNEYS AND AGENTS) AND, BY THEIR EXECUTION OF THE GUARANTOR CONSENT ATTACHED
HERETO, THE GUARANTORS, HEREBY REPRESENTS, ACKNOWLEDGES AND AGREES THAT IT DOES NOT HAVE ANY
DEFENSES, COUNTERCLAIMS, OFFSETS, CROSS-COMPLAINTS, CLAIMS OR DEMANDS OF ANY KIND OR NATURE
WHATSOEVER INCLUDING, WITHOUT LIMITATION, ANY SUCH DEFENSES, COUNTERCLAIMS, OFFSETS,
CROSS-COMPLAINTS, CLAIMS OR DEMANDS THAT CAN BE ASSERTED (I) TO REDUCE OR ELIMINATE ALL OR ANY PART
OF THE OBLIGATIONS OR (II) TO SEEK AFFIRMATIVE RELIEF OR DAMAGES OF ANY KIND OR NATURE FROM THE
LENDER OR ANY OF ITS PREDECESSORS, SUCCESSORS AND ASSIGNS, OFFICERS, EMPLOYEES, INDEPENDENT
CONTRACTORS, ATTORNEYS AND AGENTS (COLLECTIVELY WITH THE LENDER, THE “RELEASED PARTIES”). EACH OF
THE BORROWER AND, BY THEIR EXECUTION OF THE GUARANTOR CONSENT ATTACHED HERETO, THE GUARANTORS,
HEREBY UNCONDITIONALLY AND IRREVOCABLY, VOLUNTARILY AND KNOWINGLY WAIVES, REMISES, ACQUITS, AND
FULLY AND FOREVER RELEASES AND DISCHARGES THE RELEASED PARTIES FROM ALL POSSIBLE CLAIMS, DEMANDS,
ACTIONS, CAUSES OF ACTION, DAMAGES, COSTS, OR EXPENSES, AND LIABILITIES WHATSOEVER, KNOWN OR
UNKNOWN, ANTICIPATED OR UNANTICIPATED, SUSPECTED OR UNSUSPECTED, FIXED, CONTINGENT, OR CONDITIONAL,
AT LAW OR IN EQUITY, ORIGINATING IN WHOLE OR IN PART ON OR BEFORE THE DATE THIS FOURTH AMENDMENT IS
EXECUTED, WHICH THE BORROWER OR ANY GUARANTOR MAY NOW OR HEREAFTER HAVE AGAINST ANY OF THE RELEASED
PARTIES AND IRRESPECTIVE OF WHETHER ANY SUCH CLAIMS ARISE OUT OF CONTRACT, TORT, VIOLATION OF LAW
OR REGULATIONS, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE EXERCISE OF ANY RIGHTS AND
REMEDIES UNDER THE LOAN AGREEMENT OR OTHER LOAN DOCUMENTS, AND NEGOTIATION AND EXECUTION OF THIS
FOURTH AMENDMENT.
Section 5. New York Law.
This Fourth Amendment shall be construed in accordance with and governed by the laws of the
State of New York, without regard to New York conflicts of laws principles.
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Section 6. Severability.
If any provision hereof is invalid and unenforceable in any jurisdiction, then, to the fullest
extent permitted by law, (i) the other provisions hereof shall remain in full force and effect in
such jurisdiction and shall be liberally construed in order to carry out the intentions of the
parties hereto as nearly as may be possible, and (ii) the invalidity or unenforceability of any
provision hereof in any jurisdiction shall not affect the validity or enforceability of such
provision in any other jurisdiction.
Section 7. Counterparts.
This Fourth Amendment may be executed by the parties hereto individually or in any
combination, in one or more counterparts, each of which shall be an original and all of which shall
together constitute one and the same agreement. Signatures of the parties may appear on separate
counterparts.
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IN WITNESS WHEREOF, the parties hereto have caused this Fourth Amendment to be duly executed
as of the day and year first above written.
| RIO VISTA ENERGY PARTNERS L.P. | RZB FINANCE LLC | |||||||||
| By: | Rio Vista GP LLC, as its General Partner | |||||||||
| By: | By: | |||||||||
| Title: | Title: | |||||||||
| By: | ||||||||||
| Title: | ||||||||||
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GUARANTOR CONSENT
Each of the undersigned hereby (i) consents and agrees to the terms and provisions of the
Fourth Amendment to Loan Agreement to which this Guarantor Consent is attached (the “Fourth
Amendment”; capitalized terms used herein having the meanings given to them in the Fourth Amendment
unless otherwise defined herein) and (ii) affirms the terms, conditions and the undersigned’s
obligations under and in connection with the Existing Guarantees (as defined below) and confirms
that its obligations thereunder are and shall remain in full force and effect and apply to the Loan
Agreement as amended by the Fourth Amendment. “Existing Guarantees” shall mean (i) the Guarantee &
Agreement dated as of July 26, 2007 (as amended, supplemented or otherwise modified from time to
time) between Penn Octane Corporation (“POC”) and Lender, (ii) the Guarantee & Agreement dated as
of July 26, 2007 (as amended, supplemented or otherwise modified from time to time) between Rio
Vista Operating Partnership L.P. (“RVOP”) and Lender and (iii) the Guarantee & Agreement dated as
of July 26, 2007 (as amended, supplemented or otherwise modified from time to time) between
Regional Enterprises, Inc. (“Regional”) and Lender.
Each of the undersigned further acknowledges and agrees that the Existing Security Agreements
(as defined below) and the liens and security interests granted under the Existing Security
Agreements shall remain in full force and effect, shall continue without interruption as security
for all of such undersigned’s present and future liabilities and obligations to Lender under the
Existing Guarantees and each of the other Loan Documents to which it is a party and shall not be
limited or impaired by the Fourth Amendment. “Existing Security Agreements” shall mean (i) the
General Security Agreement dated February 13, 2002 between POC and Lender (as amended, supplemented
or otherwise modified from time to time), (ii) the General Security Agreement dated September 15,
2004 between RVOP and Lender (as amended, supplemented or otherwise modified from time to time),
(iii) the Mortgage, Deed of Trust and Security Agreement dated as of July 26, 2007 (as amended,
supplemented or otherwise modified from time to time), recorded on July 27, 2007 in Hopewell
County, Virginia (instrument #070002627) executed by Regional, (iv) the Assignment of Leases and
Rents dated July 26, 2007 (as amended, supplemented or otherwise modified from time to time),
recorded on July 27, 2007 in Hopewell County, Virginia (instrument #070002628) executed by Regional
and (v) the General Security Agreement dated July 26, 2007 between Regional and Lender (as amended,
supplemented or otherwise modified from time to time).
| PENN OCTANE CORPORATION | ||||
By: |
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| Title: | ||||
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| RIO VISTA OPERATING PARTNERSHIP L.P. | ||||
| By: Rio Vista Operating GP LLC | ||||
By: |
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| Title: | ||||
| REGIONAL ENTERPRISES, INC. | ||||
By: |
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| Title: | ||||
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SUBORDINATED CREDITOR CONSENT
Each of the undersigned hereby:
(i) reaffirms the terms, conditions and the undersigned’s obligations under and in connection
with (i) the Agreement of Subordination and Assignment dated November 18, 2007 (as amended,
supplemented or otherwise modified from time to time, the “ Xxxxx Subordination Agreement”)
executed by Rio Vista Xxxxx LLC, Northport Production Company and the Borrower and (ii) the
Agreement of Subordination and Assignment dated January 27, 2009 (as amended, supplemented or
otherwise modified from time to time, the “RVOGP Subordination Agreement” and together with the
Xxxxx Subordination Agreement, the “Subordination Agreements”) executed by Rio Vista Operating GP
LLC and the Borrower; and
(ii) confirms that the Liabilities (as defined in the Subordination Agreements) include,
without limitation, all Liabilities arising from Loans (as defined in the Loan Agreement) and other
extensions of credit made by Lender after giving effect to the Fourth Amendment to Loan Agreement
to which this Subordinated Creditor Consent is attached (the “Fourth Amendment”; capitalized terms
used herein having the meanings given to them in the Fourth Amendment unless otherwise defined
herein).
| RIO VISTA XXXXX LLC | ||||
By: |
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| Title: | ||||
By: |
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| Title: | ||||
| RIO VISTA OPERATING GP LLC | ||||
By: |
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| Title: | ||||
By: |
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| Title: | ||||
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