boaamend.htm


    EXHIBIT
10.1

     

    WAIVER
AND FOURTH AMENDMENT TO CREDIT AGREEMENT

     

    THIS
WAIVER AND FOURTH AMENDMENT TO CREDIT AGREEMENT (this “Amendment”)
is entered into as of July 9, 2008, between SOUTH HAMPTON RESOURCES, INC., a
Texas corporation (“Borrower”),
and BANK OF AMERICA, N.A., a national banking association (“Lender”).  Capitalized
terms used but not defined in this Amendment have the meaning given them in the
Credit Agreement (defined below).

     

    RECITALS

     

    A.           Borrower
and Lender entered into that certain Credit Agreement dated as of May 25, 2006
(as amended by that certain Waiver and First Amendment to Credit Agreement dated
as of December 31, 2006, that certain Waiver and Second Amendment to Credit
Agreement and First Amendment to Borrower Security Agreement dated as of
September 19, 2007, that certain Third Amendment to Credit Agreement dated as of
January 28, 2008, and as further, restated or supplemented, the “Credit
Agreement”), under which Lender agreed to provide to Borrower, subject to
the terms and conditions contained therein, a revolving credit facility and a
term loan facility.

     

    B.           A
certain Default has occurred as a result of TOCCO’s failure to comply with the
maximum Unfinanced Capital Expenditures covenant for calendar year ended
December 31, 2007 pursuant to Section
10.3 of the Credit Agreement (the “Existing
Default”).

     

    C.           Borrower
has requested that Lender waive the Existing Default and to make other
amendments to the Credit Agreement, in each case subject to the terms and
conditions of this Amendment

     

    NOW
THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are acknowledged, the undersigned hereby agree as follows:

     

    1. Waiver of Existing
Default.  Subject to the conditions set out in this Amendment,
Lender hereby (a) waives any violation of, or noncompliance with, any provision
of any Loan Document caused solely by the Existing Default, and (b) agrees not
to exercise any of its Rights available under the Loan Documents solely as a
result of any such violation or noncompliance described in clause (a) of this Section
1.  Except as set out in the immediately preceding sentence,
Borrower hereby agrees that such waiver does not constitute a waiver of any
present or future violation of or noncompliance with any provision of any Loan
Document or a waiver of Lender’s right to insist upon strict compliance with
each term, covenant, condition, and provision of the Loan
Documents.

     

    2. Amendments to Credit
Agreement.

     

    (a) The
Recitals to the Credit Agreement are hereby deleted in their entirety and
replaced with the following Recitals:

     

    “A.           Borrower
has requested that Lender extend credit to Borrower (i) in the maximum principal
amount of $17,000,000 in the form of a revolving credit facility that includes a
$3,000,000 subfacility for Swap Contracts, and a $9,000,000 subfacility for the
issuance of LCs, and (ii) in the maximum principal amount of up to $10,000,000
in the form of an advancing term loan facility to finance the Subject Expansion
(as defined below).

    


    B.           Lender
is willing to extend the revolving credit facility, extend the Swap Contract
subfacility, extend the letter of credit subfacility, and 

     

     

    
      
        
        

      

      
        
          

        

      

      
        
        

      

    

     

     

    extend
the term loan facility, in each case on the terms and conditions of this
Agreement.

    


    Accordingly,
Borrower and Lender agree as follows:”

    


    (b) Section
1.1 of the Credit Agreement is hereby amended to delete the defined term
“Revolving Committed Amount” and replace it as follows in its appropriate
alphabetical order:

     

    “Revolving
Committed Amount means $17,000,000.”

    


    3. Conditions.  This
Amendment shall be effective once each of the following have been delivered to
Lender in Proper Form:

     

    (a) this
Amendment executed by Borrower and Lender, together with Guarantors’ Consent and
Agreement attached to this Amendment executed by such Guarantors;

     

    (b) a
replacement Revolving Note in the principal amount of the Revolving Committed
Amount (after giving effect to this Amendment); and

     

    (c) such
other documents and information as Lender may reasonably request.

     

    4. Representations and
Warranties.  Borrower represents and warrants to Lender that
(a) it possesses all requisite power and authority to execute, deliver and
comply with the terms of this Amendment, (b) this Amendment has been duly
authorized and approved by all requisite corporate action on the part of
Borrower, (c) no other consent of any Person (other than Lender) is required for
this Amendment to be effective, (d) the execution and delivery of this Amendment
does not violate its organizational documents, (e) the representations and
warranties in each Loan Document to which it is a party are true and correct in
all material respects on and as of the date of this Amendment as though made on
the date of this Amendment after giving effect to this Amendment (except to the extent that
such representations and warranties speak to a specific date), (f) it is in full
compliance with all covenants and agreements contained in each Loan Document to
which it is a party other
than in respect of the Existing Default (before giving effect to this
Amendment), and (g) to the best of Borrower’s knowledge after due inquiry and
investigation, no Potential Default or Default has occurred and is
continuing.  No investigation by Lender is required for Lender to rely
on the representations and warranties in this Amendment.

     

    5. Scope of Amendment;
Reaffirmation; Release.  All references to the Credit Agreement
shall refer to the Credit Agreement as affected by this
Amendment.  Except as affected by this Amendment, the Loan Documents
are unchanged and continue in full force and effect.  However, in the
event of any inconsistency between the terms of the Credit Agreement (as
affected by this Amendment) and any other Loan Document, the terms of the Credit
Agreement (as affected by this Amendment) shall control and such other document
shall be deemed to be amended to conform to the terms of the Credit Agreement
(as amended by this Amendment).  Borrower hereby reaffirms its
obligations under the Loan Documents to which it is a party and agrees that all
Loan Documents to which it is a party remain in full force and effect and
continue to be legal, valid, and binding obligations enforceable in accordance
with their terms (as the same are affected by this Amendment).

     

    
      	
              6.  

            	
              Miscellaneous.

            


    

     

    
      
        
        

      

      
        2

        
          

        

      

      
        
        

      

    

    (a) No Waiver of
Defaults.  This Amendment does not constitute (i) a waiver of,
or a consent to, (A) any provision of the Credit Agreement or any other Loan
Document not expressly referred to in this Amendment, or (B) any present or
future violation of, or default under, any provision of the Loan Documents other
than the Existing Default, or (ii) a waiver of Lender’s right to insist upon
future compliance with each term, covenant, condition and provision of the Loan
Documents.

     

    (b) Headings.  The
headings and captions used in this Amendment are for convenience only and will
not be deemed to limit, amplify or modify the terms of this Amendment, the
Credit Agreement, or the other Loan Documents.

     

    (c) Costs, Expenses and
Attorneys’ Fees.  Borrower agrees to pay or reimburse Lender on
demand for all its reasonable out-of-pocket costs and expenses incurred in
connection with the preparation, negotiation, and execution of this Amendment,
including, without limitation, the reasonable fees and disbursements of Lender’s
counsel.

     

    (d) Successors and
Assigns.  This Amendment shall be binding upon and inure to the
benefit of each of the undersigned and their respective successors and permitted
assigns.

     

    (e) Multiple
Counterparts.  This Amendment may be executed in any number of
counterparts with the same effect as if all signatories had signed the same
document.  All counterparts must be construed together to constitute
one and the same instrument.  This Amendment may be transmitted and
signed by facsimile.  The effectiveness of any such documents and
signatures shall, subject to applicable law, have the same force and effect as
manually signed originals and shall be binding on Borrower and
Lender.

     

    (f) Governing
Law.  This Amendment and the other Loan Documents must be
construed, and their performance enforced, under Texas law.

     

    (g) Arbitration.  Upon
the demand of any party to this Amendment, any dispute shall be resolved by
binding arbitration as provided for in Section
13.9 of the Credit Agreement.

     

    (h) Entirety.  THE LOAN DOCUMENTS (AS
AMENDED HEREBY) REPRESENT THE FINAL AGREEMENT BETWEEN BORROWER AND LENDER AND
MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT
ORAL AGREEMENTS BY THE PARTIES.  THERE ARE NO UNWRITTEN ORAL
AGREEMENTS AMONG THE PARTIES.

     

    


    [Signatures
appear on the following page.]


    
      
         


      

      
        3

        
          

        

      

      
         


      

    


    This Amendment is executed as of the
date set out in the preamble to this Amendment.

    


    BORROWER

     

     

                                                                                                          
SOUTH HAMPTON RESOURCES, INC.

     

    By: /s/
Nick Carter

    Name:
Nick Carter

    Title:
President

     

    LENDER

     

    BANK OF AMERICA,
N.A.

     

    By: /s/
Adam Rose

    Name:  Adam
C. Rose

    Title:
Vice President

    



    
      
        
          Signature
Page to Waiver and Fourth Amendment to Credit Agreement

          


        

         


      

      
         


        
          

        

      

      
         


      

    


    GUARANTORS’
CONSENT AND AGREEMENT TO

    WAIVER
AND FOURTH AMENDMENT TO CREDIT AGREEMENT

    


    


    As an
inducement to Lender to execute, and in consideration of Lender’s execution of,
the Waiver and Fourth Amendment to Credit Agreement (the “Amendment”),
the undersigned hereby consent to the Amendment (including without limitation,
the provision by Lender of the Term Loan to Borrower) and agree that the
Amendment shall in no way release, diminish, impair, reduce or otherwise
adversely affect the obligations and liabilities of the undersigned under the
Guaranty executed by the undersigned in connection with the Credit Agreement, or
under any Loan Documents, agreements, documents or instruments executed by the
undersigned to create liens, security interests or charges to secure any of the
Obligations (as defined in the Credit Agreement), all of which are in full force
and effect. The undersigned further represent and warrant to Lender that (a) the
representations and warranties in each Loan Document to which it is a party are
true and correct in all material respects on and as of the date of this
Amendment as though made on the date of this Amendment (except to the extent
that such representations and warranties speak to a specific date), (b) they are
in full compliance with all covenants and agreements contained in each Loan
Document to which they are a party, and (c) no Default or Potential Default has
occurred and is continuing.  Guarantors hereby release Lender from any
liability for actions or omissions in connection with the Loan Documents prior
to the date of this Amendment.  This Guarantors’ Consent and Agreement
shall be binding upon the undersigned and their respective successors and
assigns, and shall inure to the benefit of Lender and its successors and
assigns.

     

    


     

          GUARANTOR:

     

    GULF STATE PIPE LINE COMPANY,
INC.

    


    


    By:   /s/ Nick
Carter                                                                 

    Name:    Nick
Carter                                                                

     Title:  President                                           

    


    TEXAS OIL & CHEMICAL CO. II,
INC.

    


    


    By:  /s/ Nick
Carter                                                               

    Name:  Nick
Carter                                              

    Title:  President                                                                  

    



    
      
         


      

      
         


        
          

        

      

      
         


      

    




    REVOLVING
NOTE

     

    $17,000,000                                                                                              
 Houston, Texas                                                 As of July 9,
2008

     

    FOR VALUE
RECEIVED, South Hampton Resources, Inc., a Texas corporation (“Borrower”),
hereby promises to pay to the order of Bank of America, N.A., a national banking
association (“Lender”)
on or before the Revolving Credit Termination Date, the principal amount of
$17,000,000 or so much thereof as may be disbursed and outstanding under this
note, together with interest, as described in this note.

     

    This note
has been executed and delivered under, and is subject to the terms of, the
Credit Agreement dated as of May 25, 2006 (as amended, supplemented or restated,
the “Credit
Agreement”), between Borrower and Lender and is the “Revolving
Note” referred to in the Credit Agreement.  Unless defined in
this note, or the context requires otherwise, capitalized terms used in this
note have the meanings given to such terms in the Credit
Agreement.  Reference is made to the Credit Agreement for provisions
affecting this note regarding applicable interest rates, principal and interest
payment dates, final maturity, voluntary and mandatory prepayments, acceleration
of maturity, exercise of rights, payment of attorneys’ fees, court costs and
other costs of collection, certain waivers by Borrower and others now or
hereafter obligated for payment of any sums due under this note, and security
for the payment of this note.  This note is a Loan Document and,
therefore, is subject to the applicable provisions of Section 13
of the Credit Agreement, all of which applicable provisions are incorporated
into this note by reference as if set forth in this note verbatim.

     

    Specific
reference is made to Section
3.7 of the Credit Agreement for usury savings provisions.

     

    This note
is issued in replacement of and an increase of (but not a novation of, or an
accord and satisfaction of) that certain Revolving Note dated as of May 25,
2006, by Borrower and payable to the order of Lender in the original principal
amount of $12,000,000.

     

    the
rights and obligations of Borrower and Lender shall be determined solely from
written agreements, documents, and instruments, and any prior oral agreements
between Borrower and Lender are superseded by and merged into such
writings.  this note, the Credit Agreement, and the other written loan
documents executed by Borrower and Lender (or by Borrower for the benefit of
Lender) represent the final agreement between Borrower and Lender and may not be
contradicted by evidence of prior, contemporaneous, or subsequent oral
agreements by the parties.  there are no unwritten oral agreements
between the parties.

     

    This note
must be construed, and its performance enforced, under Texas law.

     

    [Signature appears on the next
page.]

     


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    EXECUTED
as of the date first written above.

     

    BORROWER:

    


    SOUTH HAMPTON RESOURCES,
INC.

    


    


    By:/s/ Nick Carter

    Name: Nick Carter

    Title: President


    
      
        
          Signature
Page to the Revolving Note

          (Replacement
Revolving Note – Waiver and Fourth Amendment to Credit
Agreement)