Exhibit 4(b)(6)


 


THIRD AMENDMENT TO 


FIRST AMENDED AND RESTATED CREDIT AGREEMENT


 


Reference is made to First Amended and Restated Credit Agreement dated
as of March 31, 2003, as amended by the First Amendment to the First Amended
and Restated Credit Agreement dated as of March 31, 2003 and Second Amendment
to the First Amended and Restated Credit Agreement dated as of November 15,
2003 (sometimes collectively referred to as the “Agreement”), between GATEWAY
PIPELINE COMPANY, a Texas corporation and GATEWAY PROCESSING COMPANY, a Texas
corporation (collectively “Borrowers”), GATEWAY ENERGY CORPORATION, a Delaware
corporation (“Guarantor”) and SOUTHWEST BANK OF TEXAS, N. A., a national
banking association (the “Lender”), pursuant to which the Borrowers amended and
restated, upon the terms and conditions therein stated, a One Million Five
Hundred Thousand Dollars ($1,500,000.00) credit facility (“Loan”) with a
Maturity Date of December 31, 2005,  subject
to  the
conditions and covenants in the Agreement and Loan Documents.


 


RECITALS:


 


A.            The Borrowers have
requested the Lender extend the interest only period, and restate and rearrange
the amortization period, of the Loan.


 


B.            The Lender has
approved Borrowers’ requests, subject to the conditions and covenants specified
in this Third Amendment to First Amended and Restated Credit Agreement (the
“Third Amendment”) and in the Loan Documents to be delivered contemporaneously
with or pursuant to this Third Amendment.


 


THEREFORE, the
Borrowers and the Lender hereby agree as follows, intending to be legally
bound:


 


Section 1.               Definitions.  All capitalized terms shall have the meaning
assigned to them in the Agreement, except as added, restated or otherwise
defined herein below:


 


(a)           Agreement.  The definition of Agreement is hereby
restated as follows:


 


1

















 


“Agreement
means the First Amended and Restated Credit Agreement, as amended by (a) the
First Amendment to the First Amended and Restated Credit Agreement delivered as
of July 31, 2003, but dated as of March 31, 2003, (a) the Second Amendment to
the First Amended and Restated Credit Agreement delivered as of November 15,
2003 and (b) this  Third Amendment, including the Schedules and Exhibits
thereto, respectively, as the same may be amended or supplemented from time to
time.


 


(b)    Third Amendment.  The following definition of Third Amendment
is hereby added to the Agreement:


 


“Third
Amendment means the Third Amendment to First Amended and Restated Credit
Agreement dated as of March 31, 2004 by Borrowers and Guarantor to Lender.”


 


(c)           Loan Documents.  The definition of Loan Documents is hereby
restated as follows:


 


“Loan
Documents means (a) the Agreement, as amended by the Third Amendment and
any certificates delivered in connection therewith, respectively, (b) any and
all promissory notes (including, without limitation, the Note issued pursuant
to the Third Amendment), the Security Documents and any and other agreements in
favor of Lender now or hereafter delivered pursuant to the Agreement or the
Third Amendment and (c) all future renewals, extensions, rearrangements or
restatements of, or amendments or supplements to, any of the foregoing.


 


(d)           Madisonville
Mortgage. The definition of Madisonville Mortgage is hereby restated as
follows:


 


“Madisonville Mortgage means the First Amended and Restated Deed
of Trust, Mortgage, Assignment of Production, Security Agreement and Financing
Statement dated as of March 31, 2003, recorded in Volume 655, page 1 of the
Real Property Records of Madison County, Texas, as amended by First Amendment
to First Amended and Restated Deed of Trust, Mortgage, Assignment of
Production, Security Agreement and Financing Statement dated as of March 31,
2003, and recorded in Volume 655, page 321 of the Official Public Records of
Madison County, Texas, executed by Borrowers, as Mortgagor and Debtor, to A.
Stephen Kennedy, as Trustee for the benefit of Lender, as Beneficiary,
Mortgagee and Secured Party, and any amendment, extension, modification,
renewal or supplement thereof, which (a) covers the Madisonville Gathering
System and (b) partially amends, extends and restates (but does not discharge,
novate or release)  the Deed of Trust,
Mortgage, Assignment of Production, Security Agreement and Financing Statement
dated as of August 31, 2002, and recorded in Volume 632, page 186 of the
Official Public Records of Madison County, Texas, which was previously amended
by (i) Second Loan Modification Agreement dated as of February 28, 2003,
recording deferred, each of which was delivered by


 


2

















 


Borrowers, as mortgagor and debtor, to A. Stephen Kennedy, as Trustee
for the benefit of Lender, as holder and secured party, covering the
Madisonville Gathering System.”


 


(e)           Note.  The definition of Note is hereby restated as
follows:


 


“Note means (a) the promissory note dated as of March 31, 2004,
in the original principal amount of One Million Five Hundred Thousand and
No/100ths Dollars ($1,500,000.00), executed and delivered by Borrowers pursuant
to the Third Amendment, which amends, rearranges, restates, renews and extends
(but does not novate)  (i) Promissory
Note dated as of March 31, 2003 made by Borrowers and payable to the order of Lender
in the original principal amount of One Million Five Hundred Thousand and
No/100 Dollars ($1,500,000.00), (ii) Promissory Note dated March 31, 2003 made
by Borrowers and payable to the order of Lender in the original principal
amount of One Million Five Hundred Thousand and No/100 Dollars ($1,500,000.00),
(iii) Promissory Note dated August 31, 2002 made by Borrowers and payable to
the order of Lender in the original principal amount of One Million Five
Hundred Thousand and No/100 Dollars ($1,500,000.00) and (iv) Promissory Note
dated February 21, 2002 made by Borrowers and payable to the order of Lender in
the original principal amount of One Million Five Hundred Thousand and
No/100ths Dollars ($1,500,000.00) and (b) any amendment, rearrangement,
restatement, renewal and extension of the Note.


 


Each of the foregoing definitions as used in the Loan Documents shall
include the definition or exhibit as amended or restated hereby.


 


Section 2.  Amendments.  The Agreement is hereby amended and restated
as follows:


 


(a)           Section 2.2
of the Agreement is hereby amended and restated as follows:


 


“2.2. Payments.  The
Borrowers shall repay the principal and accrued but unpaid interest of the Loan
advanced under the Agreement in seventeen (17) monthly installments, the first
sixteen (16) installments shall be in the amount of Seventy Thousand and
no/100ths Dollars ($70,000.00) each, and the last installment shall be in the
amount of the then remaining unpaid principal balance of the Loan and all
accrued but unpaid interest thereon. 
The first monthly installment of principal and accrued but unpaid
interest shall be due and payable on August 31, 2004 and a like installment
shall be due and payable on each Payment Date thereafter until the Maturity
Date, when the then remaining unpaid principal balance, and accrued but unpaid
interest thereon, shall be due and payable in full. Each payment on the
Obligations must be paid at Lender’s office, 5 Post Oak Park Place Office
Building, 4400 Post Oak Parkway, Houston, Texas 77027, in funds which are or
will be available for immediate use by Lender by 2:00 p.m. (Houston time) on
the day due.  If any action is required
or any payment is to be made on a day which is not a Business Day, then that
action or payment may be delayed until the next succeeding Business Day.  Any extension of time shall be included in
the computation of payments of interest and fees. All


 


3

















 


payments by the Borrowers of principal of and interest on the Loan, and
of all fees and other amounts payable under any Loan Document, shall be payable
without deduction for or on account of any present or future Taxes or other
charges (excluding any franchise taxes or income taxes imposed on or measured
by the overall net income, assets net worth or shareholders’ capital of Lender)
levied or imposed by the United States of America (or by any political
subdivision or taxing authority thereof or therein) through withholding or
deduction with respect to any such payments. 
If any Taxes or other charges are so levied or imposed, the Borrowers
will make additional payments in such amounts so that every net payment of
principal of and interest on the Obligations, and of all other amounts payable
by it under any Loan Document, after withholding or deduction for or on account
of any such present or future Taxes or other charges, will not be less than the
amount provided for herein or therein.”


 


(b)           Sections 2.3
of the Agreement is hereby amended and restated as follows:


 


“2.3 Interest Rate and Payments.  The principal of the Loan advanced under the Agreement shall bear
interest prior to the earlier of the Maturity Date, or Default, at a fixed rate
of seven and one-quarter per cent (7.25%) per annum. The Borrowers shall pay
accrued but unpaid interest on the principal advanced hereunder as follows: (a)
the Borrowers shall pay interest only as it accrues on the Note beginning on
March 31, 2004 and continuing on each Payment Date thereafter through July 31,
2004; and (b) the Borrowers shall pay installments of principal and interest as
it accrues in accordance with Section 2.2 beginning on August  31,
2004 and continuing until the Maturity Date.”


 


(c)           Section
2.6 of the Agreement is hereby amended and restated as follows:


 


“2.6         Voluntary
Prepayments.  Borrowers may, upon
one Business Day’s notice, prepay the outstanding principal of the Loan prior
to the Maturity Date, in whole or in part; provided, however if
the entire principal balance of the Loan is repaid on or before (a) August 31,
2004, the Borrowers shall pay a prepayment fee equal to Sixteen Thousand and
no/100ths Dollars ($16,000.00) or (b) the Maturity Date, the Borrowers shall
pay a prepayment fee equal to the product of (i) One Thousand and no/100ths
Dollars ($1,000.00) times (ii) the number of Payment Dates remaining until the
Maturity Date as of the date that the Borrowers prepay the Loan. Borrowers
shall pay the fee within ten (10) Business Days following the date that a
prepayment fee becomes due. The Borrowers and Guarantor stipulate that any
prepayment fee which may accrue pursuant to Section 2.6 is compensation
to Lender for services performed separate and apart from the lending of money
or the provision of credit pursuant to the Loan Documents. A notice of
prepayment shall constitute a binding obligation of Borrowers to make a
prepayment on the date stated therein. 
Prepayments of principal of the Loan shall be applied to principal
installments in inverse order of maturity, and may not be re-borrowed.”


 


4

















 


Section 3. Conditions Precedent.  Borrowers acknowledge that the Lender’s obligations under this
Third Amendment are conditioned upon Borrowers’ and Guarantor’s compliance with
the conditions precedent set forth in Section 4 of the Agreement
including, without limitation, delivery of Security Documents, material
contracts, lien searches, evidence of title to Collateral and environmental
information.


 


Section 4.               Representations.  The Borrowers represent and warrant that all
of the representations and warranties contained in the Agreement and all
instruments and documents executed pursuant thereto or contemplated thereby are
true and correct in all material respects on and as of this date, except (a)
such representations that relate solely to an earlier date and that were true
and correct on such earlier date, and (b) the breach or inaccuracy of
representations and warranties about which the Lender has been notified in
writing prior to the date of this Third Amendment.


 


Section 5.               Continued
Force and Effect.  Except as specifically
amended herein, all of the terms and conditions of the Agreement and all
documents executed in connection therewith or contemplated thereby are and
remain in full force and effect in accordance with their respective terms.  All of the terms used herein have the same
meanings as set out in the Agreement, unless amended hereby or unless the
context clearly requires otherwise. 
References in the Agreement to the “Agreement,” the “Credit Agreement”,
“hereof”, “herein” and words of similar import shall be deemed to be references
to the Agreement as amended hereby.  Any
reference in the Note or any of the Security Documents to the “Agreement” or
the “Credit Agreement” shall be deemed to be references to the Agreement as
amended through the date hereof.


 


Section 6.               Severability.  In the event any one or more provisions
contained in the Agreement or this Third Amendment should be held to be
invalid, illegal or unenforceable in any respect, the validity, enforceability
and legality of the remaining provisions contained herein and therein shall not
be affected in any way or impaired thereby and shall be enforceable in
accordance with their respective terms.


 


Section 7.               Expenses.  The Borrowers agree to pay (a) a work fee of
Two Thousand Five Hundred and no/100ths Dollars ($2,500.00 ) to Lender and (b)
all out-of-pocket costs and expenses (including reasonable fees and expenses of
legal counsel) of the Lender in connection with the preparation and enforcement
of this Third Amendment.


 


Section 8.               Acknowledgment.  The Borrowers ratify and confirm that the
Agreement, and the other Loan Documents executed in connection therewith, or
pursuant thereto, are and remain in full force and effect in accordance with
their respective terms and that the Collateral is unimpaired by this Third
Amendment.  The officers of each of the
Borrowers executing this Third Amendment, or any Loan Documents executed in
connection with or contemplated by this Third Amendment, represent and warrant
that they have full power and authority to execute and deliver this Third
Amendment and the Loan Documents on behalf of each of the Borrowers, that such
execution and delivery has been duly authorized by the Board of Directors of
each of the Borrowers pursuant to resolutions delivered to Lender contemporaneously
herewith and that the resolutions previously delivered to the Lender on March
31, 2003, in connection with the execution and delivery of the Agreement, are
and remain in full force and effect and have not been altered, amended or
repealed in anywise.


 


5

















 


Section 9.               Governing
Law.  This Third Amendment shall be
governed by and construed in accordance with the laws of the State of Texas
and, to the extent applicable, by federal law.


 


Section 10.             Affirmation
of Security Interest.  The Borrowers
hereby confirm and agree that (a) any and all Liens granted to or for the
benefit of, or Collateral now or hereafter held by, the Lender as security for
payment and performance of the Note is hereby renewed and carried forth to
secure payment and performance of all of the Obligations; and (b) the Security
Documents are and remain legal, valid and binding obligations of the parties
thereto, enforceable in accordance with their respective terms.


 


Section
11.             ARBITRATION. THE BORROWERS,
GUARANTOR AND LENDER AGREE THAT ALL DISPUTES, CLAIMS AND CONTROVERSIES BETWEEN
THEM, OR ANY OF THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, WHETHER INDIVIDUAL,
JOINT OR CLASS IN NATURE, ARISING FROM THIS THIRD AMENDMENT OR ANY OF THE OTHER
LOAN DOCUMENTS (INCLUDING CONTRACT AND TORT DISPUTES) SHALL BE ARBITRATED
PURSUANT TO THE RULES OF THE AMERICAN ARBITRATION ASSOCIATION UPON THE REQUEST
OF ANY PARTY. NO ACT TO TAKE OR DISPOSE OF ANY COLLATERAL SECURING THE
OBLIGATIONS SHALL CONSTITUTE A WAIVER OF THIS ARBITRATION PROVISION OR BE
PROHIBITED BY THIS ARBITRATION PROVISION. THE FOREGOING INCLUDES OBTAINING
INJUNCTIVE RELIEF OR A TEMPORARY RESTRAINING ORDER; INVOKING A POWER OF SALE
UNDER ANY OF THE SECURITY DOCUMENTS; OBTAINING A WRIT OF ATTACHMENT OR THE
IMPOSITION OF A RECEIVER; OR EXERCISING ANY RIGHTS RELATING TO PERSONAL
PROPERTY, INCLUDING TAKING OR DISPOSING OF SUCH PROPERTY WITH OR WITHOUT
JUDICIAL PROCESS PURSUANT TO ARTICLE 9 OF THE UCC. ANY DISPUTES, CLAIMS AND
CONTROVERSIES CONCERNING THE LAWFULNESS OR REASONABLENESS OF ANY ACT OR
EXERCISE OF ANY RIGHTS OR ANY RIGHT RELATING TO THE COLLATERAL SECURING THE
OBLIGATIONS (INCLUDING, WITHOUT LIMITATION, ANY CLAIM TO RESCIND, REFORM OR
OTHERWISE MODIFY ANY AGREEMENT RELATING TO THE COLLATERAL SECURING THE
OBLIGATIONS) SHALL ALSO BE ARBITRATED; PROVIDED THAT NO ARBITRATOR SHALL HAVE
THE RIGHT OR POWER TO ENJOIN OR RESTRAIN ANY ACT OF ANY PARTY.  JUDGMENT UPON ANY AWARD RENDERED BY ANY
ARBITRATOR MAY BE ENTERED IN ANY COURT HAVING JURISDICTION; PROVIDED THAT
NOTHING CONTAINED HEREIN SHALL BE DEEMED TO BE A WAIVER BY LENDER OF THE
PROTECTIONS AFFORDED TO THE LENDER UNDER 12 USC § 91, TEX. FIN. CODE § 59.007,
OR THE LAWS OF ANY OTHER STATE (TO THE EXTENT APPLICABLE TO THE LENDER) OR ANY
OTHER PROTECTION PROVIDED TO THE LENDER BY THE LAWS OF THE STATE OF TEXAS OR
THE UNITED STATES. THE STATUTE OF LIMITATIONS, OR ESTOPPEL, LACHES, WAIVER OR
SIMILAR DOCTRINES THAT WOULD OTHERWISE BE APPLICABLE IN AN ACTION BROUGHT BY A
PARTY SHALL BE APPLICABLE IN ANY ARBITRATION PROCEEDING AND THE COMMENCEMENT OF
ANY ARBITRATION PROCEEDING SHALL BE DEEMED THE COMMENCEMENT OF AN ACTION FOR
THESE PURPOSES. THE FEDERAL ARBITRATION ACT SHALL APPLY TO THE CONSTRUCTION,
INTERPRETATION AND ENFORCEMENT OF THIS ARBITRATION PROVISION. IF THE FEDERAL
ARBITRATION ACT IS


 


6

















 


INAPPLICABLE
TO ANY SUCH DISPUTE, CLAIM OR CONTROVERSY FOR ANY REASON, THE ARBITRATION SHALL
BE CONDUCTED PURSUANT TO THE TEXAS GENERAL ARBITRATION ACT, THIS ARBITRATION
PROVISION AND THE COMMERCIAL ARBITRATION RULES OF THE AMERICAN ARBITRATION
ASSOCIATION.


 


Section 12.             JURISDICTION AND VENUE.
SUBJECT TO THE PROVISIONS OF SECTION 11, ALL ACTIONS OR PROCEEDINGS WITH
RESPECT TO, ARISING DIRECTLY OR INDIRECTLY IN CONNECTION WITH, OUT OF RELATED
TO OR FROM THIS THIRD AMENDMENT OR ANY OF THE OTHER LOAN DOCUMENTS MAY BE
LITIGATED, AT THE SOLE DISCRETION AND ELECTION OF THE LENDER, IN THE COURTS
HAVING SITUS IN HOUSTON, HARRIS COUNTY, TEXAS. IN THAT REGARD, THE BORROWERS
AND GUARANTOR HEREBY SUBMIT TO THE JURISDICTION OF ANY LOCAL, STATE OR FEDERAL
COURT LOCATED IN HOUSTON, HARRIS 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 ACCORDANCEWITH THIS SECTION.


 


Section 13.             Notice
and Acknowledgment of No Oral Agreements. 
To the extent allowed by law, the parties hereto agree to be bound by
the terms of the following notice:


 


NOTICE:  THIS AGREEMENT AND ALL OTHER DOCUMENTS
RELATING TO THIS LOAN CONSTITUTE A WRITTEN LOAN AGREEMENT WHICH REPRESENTS THE
FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.


 


THERE ARE NO UNWRITTEN
ORAL AGREEMENTS OF THE PARTIES RELATING TO THIS LOAN.


 


EXECUTED
effective as of March 31, 2004.


 


	
  Address:

  	
  BORROWERS:

  
	
   

  	
   

  
	
  One Allen
  Center

  	
  GATEWAY
  PIPELINE COMPANY

  
	
  500 Dallas
  Street, Suite 2615

  	
   

  
	
  Houston,
  Texas 77002

  	
  By:

  	
   

  	
   

  
	
  Phone:  (713) 336-0844

  	
   

  	
  Michael T. Fadden, President

  
	
  Fax:  (713) 336-0855

  	
   

  	
   

  



 


7

















 


	
  Address:

  	
  GATEWAY
  PIPELINE COMPANY

  
	
   

  	
   

  	
   

  
	
  One Allen
  Center

  	
  By:

  	
   

  	
   

  
	
  500 Dallas
  Street, Suite 2615

  	
   

  	
  Michael T. Fadden, President

  
	
  Houston,
  Texas 77002

  	
   

  	
   

  
	
  Phone:  (713) 336-0844

  	
   

  	
   

  
	
  Fax:  (713) 336-0855

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address:

  	
  SOUTHWEST
  BANK OF TEXAS, N.A.

  
	
   

  	
   

  	
   

  
	
  5 Post Oak
  Park Office Building

  	
   

  	
   

  
	
  4400 Post
  Oak Parkway

  	
  By:

  	
   

  	
   

  
	
  Houston,
  Texas 77027

  	
  Name:

  	
  Kenneth R.
  Batson, III

  
	
  Mail:

  	
  Title:

  	
  Assistant
  Vice President - Energy

  
	
  P. O. Box
  27459

  	
  Lending

  
	
  Houston,
  Texas 77227-7459

  	
   

  
	
  Phone:  (713) 232-1247

  	
   

  
	
  Fax:  (713) 561-0345

  	
   

  



 


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