exh10k.htm


    Exhibit
10(k)

     

    


     

    FIFTH
AMENDMENT TO CREDIT AGREEMENT

     

    THIS
FIFTH AMENDMENT TO CREDIT AGREEMENT (this “Amendment”)
is entered into as of September 18, 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, that certain Waiver and Fourth Amendment to Credit Agreement
dated as of July 9, 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.           Borrower
has requested that Lender make, and Lender has agreed to make, an amendment to
the Credit Agreement, 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. Amendment to Credit
Agreement.   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, (a) until the earlier to occur of (i) the
date that Lender executes and amendment to this Agreement in Proper Form that
provides for an additional term loan in the amount of up to $4,000,000 to
finance further expansion to the Subject Property, and (ii) November 30, 2008,
$22,000,000, and (b) thereafter, $17,000,000.”

    


    2. 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);

     

    (c) a
Secretary’s Certificate by the Secretary of Borrower with all attachments
thereto; and

     

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

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    3. 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.

     

    4. 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).

     

    
      	
              5.  

            	
              Miscellaneous.

            


    

     

    (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.]


    
      
        
          1423366v1

        

         


      

      
         


        
          

        

      

      
         


      

    


    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
Rose                                                                      

    Title: Vice
President