OR (B) ANY
PRESENT OR FUTURE VIOLATION OF, OR DEFAULT UNDER, ANY PROVISION OF THE LOAN
DOCUMENTS, 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)
FORM.
EACH AGREEMENT, DOCUMENT, INSTRUMENT OR OTHER WRITING
TO BE FURNISHED TO LENDER UNDER ANY PROVISION OF THIS AMENDMENT MUST BE IN FORM
AND SUBSTANCE SATISFACTORY TO LENDER AND ITS COUNSEL.
(C)
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 LOAN AGREEMENT OR THE OTHER LOAN DOCUMENTS.
(D)
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.
First Amendment to Second AR Credit Agreement
4
(E)
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.
(F)
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.
LENDER MAY ALSO REQUIRE
THAT ANY SUCH DOCUMENTS AND SIGNATURES BE CONFIRMED BY A MANUALLY-SIGNED
ORIGINAL; PROVIDED THAT THE FAILURE TO REQUEST OR DELIVER THE SAME SHALL NOT
LIMIT THE EFFECTIVENESS OF ANY FACSIMILE DOCUMENT OR SIGNATURE.
(G)
GOVERNING LAW.
THIS AMENDMENT AND THE OTHER LOAN DOCUMENTS
MUST BE CONSTRUED, AND THEIR PERFORMANCE ENFORCED, UNDER TEXAS LAW.
(H)
ARBITRATION.
UPON THE DEMAND OF ANY PARTY TO THIS AMENDMENT,
ANY DISPUTE SHALL BE RESOLVED BY BINDING ARBITRATION AS PROVIDED FOR IN SECTION
11 OF THE LOAN AGREEMENT.
(I)
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 next page.]
First Amendment to Second AR Credit
Agreement
5
The Amendment is executed as of the date set out in the preamble to this
Amendment.
TOR MINERALS INTERNATIONAL, INC.
By:
Richard L. Bowers
President and Chief Executive
Officer
Signature Page to the First Amendment to Second Amended and Restated Loan
Agreement
BANK OF AMERICA, N.A.
By:
Victor N. Tekell
Senior Vice President
Signature Page to the First Amendment to Second Amended and Restated Loan
Agreement
Schedule 1
Conditions Precedent to Real Estate Term Loan
1.
Real Estate Term Note executed by Borrower and Lender
2.