AMENDED BY THIS FOURTH AMENDMENT;
(E)
THE EXITING LENDERS SHALL HAVE ACKNOWLEDGED
AND AGREED TO THIS FOURTH AMENDMENT FOR THE PURPOSES OF SECTION 4 HEREOF ONLY
AND THE EXITING LENDERS SHALL HAVE RECEIVED PAYMENT IN FULL OF ALL AMOUNTS DUE
AND OWING TO THEM UNDER THE CREDIT AGREEMENT;
(F)
THE ADMINISTRATIVE AGENT SHALL HAVE
RECEIVED FROM THE BORROWER FOR THE ACCOUNT OF THE LENDER WHICH EXECUTES AND
DELIVERS THIS FOURTH AMENDMENT TO THE ADMINISTRATIVE AGENT BY 5:00 P.M.,
HOUSTON, TEXAS TIME, DECEMBER 11, 2008, AN AMOUNT EQUAL TO THE PRODUCT OF
(I) 0.30% AND (II) THE LENDER'S COMMITMENT, AS AMENDED BY THIS FOURTH AMENDMENT;
AND
(G)
THE ADMINISTRATIVE AGENT SHALL HAVE
RECEIVED, IN FORM AND SUBSTANCE SATISFACTORY TO THE ADMINISTRATIVE AGENT AND ITS
COUNSEL, SUCH OTHER DOCUMENTS, CERTIFICATES AND INSTRUMENTS AS THE
ADMINISTRATIVE AGENT SHALL REASONABLY REQUIRE.
4.
EXITING LENDERS.
UPON SATISFACTION OF
THE CONDITIONS SET FORTH IN SECTION 3 HEREOF, THE EXITING LENDERS SHALL (A) NOT
BE LENDERS UNDER THE CREDIT AGREEMENT, (B) NOT HAVE ANY RIGHTS OR OBLIGATIONS
WITH RESPECT TO BEING LENDERS, EXCEPT FOR THOSE THAT EXPRESSLY SURVIVE
TERMINATION OF THE CREDIT AGREEMENT OR ANY COMMITMENTS THEREUNDER AND (C) MARK
THEIR RESPECTIVE REVOLVING LOAN NOTES "PAID IN FULL", AND PROMPTLY RETURN THEIR
RESPECTIVE REVOLVING LOAN NOTES TO THE BORROWER.
5.
REFERENCE TO THE CREDIT AGREEMENT.
(A)
UPON THE EFFECTIVENESS OF THIS FOURTH
AMENDMENT, EACH REFERENCE IN THE CREDIT AGREEMENT TO "THIS AGREEMENT",
"HEREUNDER", OR WORDS OF LIKE IMPORT SHALL MEAN AND BE A REFERENCE TO THE CREDIT
AGREEMENT, AS AFFECTED AND AMENDED HEREBY.
(B)
THE CREDIT AGREEMENT, AS AMENDED BY THE
AMENDMENTS REFERRED TO ABOVE, SHALL REMAIN IN FULL FORCE AND EFFECT AND IS
HEREBY RATIFIED AND CONFIRMED.
6.
COSTS, EXPENSES AND TAXES.
THE
BORROWER AGREES TO PAY ON DEMAND ALL REASONABLE COSTS AND EXPENSES OF THE
ADMINISTRATIVE AGENT IN CONNECTION WITH THE PREPARATION, REPRODUCTION, EXECUTION
AND DELIVERY OF THIS FOURTH AMENDMENT AND THE OTHER INSTRUMENTS AND DOCUMENTS TO
BE DELIVERED HEREUNDER (INCLUDING THE REASONABLE FEES AND OUT-OF-POCKET EXPENSES
OF COUNSEL FOR THE ADMINISTRATIVE AGENT WITH RESPECT THERETO).
7.
GUARANTOR'S ACKNOWLEDGMENT.
BY SIGNING
BELOW, EACH GUARANTOR (A) ACKNOWLEDGES, CONSENTS AND AGREES TO THE EXECUTION,
DELIVERY AND PERFORMANCE BY THE BORROWER AND LIMITED OF THIS FOURTH AMENDMENT,
(B) ACKNOWLEDGES AND AGREES THAT ITS OBLIGATIONS IN RESPECT OF ITS GUARANTY
(I) ARE NOT RELEASED, DIMINISHED, WAIVED, MODIFIED, IMPAIRED OR AFFECTED IN ANY
MANNER BY THIS FOURTH AMENDMENT OR ANY OF THE PROVISIONS CONTEMPLATED HEREIN,
(C) RATIFIES AND CONFIRMS ITS OBLIGATIONS UNDER ITS GUARANTY, AND
(D) ACKNOWLEDGES AND AGREES THAT IT HAS NO CLAIMS OR OFFSETS AGAINST, OR
DEFENSES OR COUNTERCLAIMS TO, ITS GUARANTY.
10
8.
EXECUTION IN COUNTERPARTS.
THIS FOURTH
AMENDMENT MAY BE EXECUTED IN ANY NUMBER OF COUNTERPARTS AND BY DIFFERENT PARTIES
HERETO IN SEPARATE COUNTERPARTS, EACH OF WHICH WHEN SO EXECUTED AND DELIVERED
SHALL BE DEEMED TO BE AN ORIGINAL AND ALL OF WHICH WHEN TAKEN TOGETHER SHALL
CONSTITUTE BUT ONE AND THE SAME INSTRUMENT.
FOR PURPOSES OF THIS FOURTH
AMENDMENT, A COUNTERPART HEREOF (OR SIGNATURE