SECOND AMENDMENT TO
LOAN AGREEMENT
THIS SECOND AMENDMENT TO LOAN AGREEMENT (this "AMENDMENT") is entered
into as of November 18, 1997 by and between TEXSTAR PETROLEUM, INC., a Texas
corporation ("BORROWER"), and BANK ONE, TEXAS, NATIONAL ASSOCIATION
("Lender").
WHEREAS, Borrower and Lender entered into that certain Loan Agreement
dated as of July 17, 1997, as amended from time to time (collectively, the
"LOAN AGREEMENT"); and
WHEREAS, the Loan Agreement currently governs Borrower's Credit Facility
in the maximum amount of up to $10,000,000.00, as currently evidenced by that
certain promissory note dated July 17, 1997 payable by Borrower to the order
of Lender in the stated principal amount of $10,000,000.00 (the "REVOLVING
NOTE"); and
WHEREAS, the Loan Agreement, the Note and all other documents
evidencing, securing, governing, guaranteeing and/or pertaining to the Note
are hereinafter referred to collectively as the "LOAN DOCUMENTS"; and
WHEREAS, the parties hereto now desire to modify the Loan Agreement as
hereinafter provided;
NOW, THEREFORE, in consideration of the mutual covenants,
representations, warranties, and agreements contained herein, and for other
valuable consideration, the receipt and legal sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 The terms used in this Amendment to the extent not
otherwise defined herein shall have the same meanings as in the Loan
Agreement.
ARTICLE II
AMENDMENTS
Section 2.01 Effective as of the date hereof, Subparagraph 5(f) of the
Loan Agreement is hereby amended in its entirety to read as follows:
"(f) GUARANTEE. THE REVOLVING NOTE AND THE OTHER INDEBTEDNESS HEREUNDER
SHALL BE GUARANTEED BY PRENTIS B. TOMLINSON, JR. ("TOMLINSON"), PRENTIS
B. TOMLINSON, JR., TRUSTEE OF AND ON BEHALF OF THE SLATTERY TRUST, THE
RUSTON TRUST AND THE HOUSTON TRUST, CREATED BY TRUST AGREEMENTS DATED
JANUARY 14, 1987 EXECUTED BY MARJORIE J. TOMLINSON, AS GRANTOR, AND
PRENTIS B. TOMLINSON, JR., AS TRUSTEE. THE FOREGOING GUARANTORS ARE
INDIVIDUALLY REFERRED TO HEREIN AS A "GUARANTOR" AND COLLECTIVELY
REFERRED TO HEREIN AS THE GUARANTORS."
ARTICLE III
NOTE
3.01 The parties hereto acknowledge and agree that notwithstanding this
Amendment, the Note continues to evidence the indebtedness arising under the
Line of Credit.
ARTICLE IV
REPRESENTATIONS, WARRANTIES, RATIFICATION AND REAFFIRMATION
Section 4.01 Borrower hereby represents and warrants that: (i) the
representations and warranties contained in the Loan Agreement are true and
correct on and as of the date hereof as though made on and as of the date
hereof, (ii) no event has occurred and is continuing that constitutes an
Event of Default or would constitute an Event of Default but for the
requirement of notice or lapse of time or both, and (iii) there are no claims
or offsets against, or defenses or counterclaims to, the Note, the
indebtedness evidenced thereby or the liens securing same (including without
limitation, any defenses or offsets resulting from or arising out of breach
of contract or duty,
the amount of interest charged, collected or received on the Note heretofore,
or breach of any commitments or promises of any type).
Section 4.02 The terms and provisions set forth in this Amendment shall
modify and supersede all inconsistent terms and provisions set forth in the
Loan Agreement, but except as expressly modified and superseded by this
Amendment, the terms and provisions of the Loan Agreement are ratified and
confirmed and shall continue in full force and effect, Borrower hereby
agreeing that the Loan Agreement and the other Loan Documents are and shall
continue to be outstanding, validly existing and enforceable in accordance
with their respective terms.
Section 4.03 Guarantors previously executed those certain guaranty
agreements dated July 17, 1997, (collectively, the "GUARANTY AGREEMENTS"),
executed by the respective Guarantors for the benefit of Lender to
unconditionally guarantee the payment and performance by Borrower of all
indebtedness owing to Lender from time to time, including without limitation,
the indebtedness evidenced by the Note. Guarantors, by executing this
Amendment, hereby consent to this Amendment and agree that, notwithstanding
the execution of this Amendment, the obligations of the Guarantors under the
Guaranty Agreements remain in full force and effect with respect to the Note,
and that this Amendment does not in any manner impair, alter or modify the
obligations of the Guarantors under the Guaranty Agreements. Guarantors each
acknowledge and agree that there are no claims or offsets against, or
defenses or counterclaims to, the terms and provisions of their Guaranty
Agreements or the obligations created or evidenced thereby.
ARTICLE V
MISCELLANEOUS
Section 5.01 Each of the Loan Documents is hereby amended so that any
reference in the Loan Documents to the Loan Agreement shall mean a reference
to the Loan Agreement as amended hereby.
Section 5.02 This Amendment may be executed simultaneously in one or
more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
Section 5.03 This Amendment has been entered into in Harris County,
Texas and shall be performable for all purposes in Harris County, Texas. THIS
AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF TEXAS AND THE APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
Courts within the State of Texas shall have jurisdiction over any and all
disputes arising under or pertaining to this Amendment, and venue in any such
dispute shall be the courts located in Harris County, Texas.
Section 5.04 This Amendment shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns.
THE WRITTEN LOAN DOCUMENTS, REPRESENT 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 BETWEEN THE PARTIES
EXECUTED as of the date first above written.
BORROWER:
TEXSTAR PETROLEUM, INC.,
By: /s/ Prentis B. Tomlinson, Jr.
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Name: Prentis B. Tomlinson, Jr.
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Title: Chairman & CEO
GUARANTORS:
/s/ Prentis B. Tomlinson, Jr.
PRENTIS B. TOMLINSON, JR., TRUSTEE of
and on behalf of The Slattery Trust,
The Rustin Trust and The Houston
Trust, created by Trust Agreements
dated January 14, 1987, executed by
Marjorie J. Tomlinson, as Grantor and
Prentis B. Tomlinson, Jr., as Trustee
LENDER:
BANK ONE, TEXAS, NATIONAL ASSOCIATION
By: /s/ Michelle Walpert
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Name: Michelle Walpert
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Title: Vice President