THEIR TERMS (AS THE SAME ARE AFFECTED BY THIS
FIRST AMENDMENT).
BORROWERS HEREBY RELEASE LENDER FROM ANY LIABILITY FOR
ACTIONS OR OMISSIONS IN CONNECTION WITH THE CREDIT AGREEMENT AND THE OTHER LOAN
DOCUMENTS PRIOR TO THE DATE OF THIS FIRST AMENDMENT.
VII.
MISCELLANEOUS.
(A)
NO WAIVER OF DEFAULTS.
EXCEPT AS
SPECIFICALLY PROVIDED IN PART II ABOVE, THIS FIRST AMENDMENT DOES NOT CONSTITUTE
(I) A WAIVER OF, OR A CONSENT TO, (A) ANY PROVISION OF THE CREDIT AGREEMENT OR
ANY OTHER LOAN DOCUMENT, 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 FIRST
AMENDMENT MUST BE IN FORM AND SUBSTANCE SATISFACTORY TO LENDER AND ITS COUNSEL.
(C)
HEADINGS.
THE HEADINGS AND CAPTIONS USED
IN THIS FIRST AMENDMENT ARE FOR CONVENIENCE ONLY AND WILL NOT BE DEEMED TO
LIMIT, AMPLIFY OR MODIFY THE TERMS OF THIS FIRST AMENDMENT, THE CREDIT
AGREEMENT, OR THE OTHER LOAN DOCUMENTS.
(D)
COSTS, EXPENSES AND ATTORNEYS' FEES.
BORROWERS AGREE 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 FIRST AMENDMENT, INCLUDING, WITHOUT
LIMITATION, THE REASONABLE FEES AND DISBURSEMENTS OF LENDER'S COUNSEL.
(E)
SUCCESSORS AND ASSIGNS.
THIS FIRST
AMENDMENT SHALL BE BINDING UPON AND INURE TO THE BENEFIT OF EACH OF THE
UNDERSIGNED AND THEIR RESPECTIVE SUCCESSORS AND PERMITTED ASSIGNS.
4
(F)
MULTIPLE COUNTERPARTS.
THIS FIRST
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 FIRST
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 BORROWERS
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 FIRST AMENDMENT AND THE
OTHER LOAN DOCUMENTS MUST BE CONSTRUED, AND THEIR PERFORMANCE ENFORCED, UNDER
TEXAS LAW.
(H)
ENTIRETY.
THE LOAN DOCUMENTS (AS AMENDED
HEREBY) REPRESENT THE FINAL AGREEMENT BY AND AMONG BORROWERS, GUARANTOR 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.
(Signature page follows)
5
IN WITNESS WHEREOF, this First Amendment is executed effective as of the First
Amendment Closing Date.
BORROWERS:
CYMRI, L.L.C. (F/K/A THE CYMRI CORPORATION)
By:
/s/ D. Hughes Watler, Jr.
D. Hughes Watler, Jr.
Secretary
TRIUMPH ENERGY, INC.
By:
/s/ D. Hughes