PROCEEDS
THEREOF, WHETHER OR NOT ANY INDEMNIFIED PERSON IS A PARTY THERETO INCLUDING ANY
SUCH LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS, JUDGMENTS,
SUITS, COSTS, CHARGES, EXPENSES AND REIMBURSEMENTS RESULTING FROM THE NEGLIGENCE
OF SUCH INDEMNIFIED PERSON (ALL THE FOREGOING, COLLECTIVELY, THE "INDEMNIFIED
LIABILITIES"); PROVIDED THAT THE BORROWERS SHALL HAVE NO OBLIGATION HEREUNDER TO
ANY INDEMNIFIED PERSON WITH RESPECT TO INDEMNIFIED LIABILITIES RESULTING SOLELY
FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SUCH INDEMNIFIED PERSON OR
ITS RESPECTIVE AFFILIATES.
5
THE AGREEMENTS IN THIS SECTION 15.11 SHALL SURVIVE PAYMENT OF ALL OTHER
OBLIGATIONS.
2.
ACKNOWLEDGMENT OF THE BORROWERS.
THE
BORROWERS ACKNOWLEDGE AND AGREE THAT THE LENDERS EXECUTING THIS AMENDMENT HAVE
DONE SO IN THEIR SOLE DISCRETION AND WITHOUT ANY OBLIGATION TO CONSENT TO ANY
OTHER OR FUTURE AMENDMENTS TO THE AGREEMENT.
THE BORROWERS FURTHER ACKNOWLEDGE
AND AGREE THAT ANY ACTION TAKEN OR NOT TAKEN BY THE LENDERS OR THE
ADMINISTRATIVE AGENT PRIOR TO, ON OR AFTER THE DATE HEREOF SHALL NOT CONSTITUTE
A WAIVER OR MODIFICATION OF ANY TERM, COVENANT OR PROVISION OF ANY LOAN
DOCUMENT.
3.
REPRESENTATIONS AND WARRANTIES.
BY ITS
EXECUTION AND DELIVERY HEREOF, THE BORROWERS REPRESENT AND WARRANT TO THE
LENDERS THAT, AS OF THE DATE HEREOF THE REPRESENTATIONS AND WARRANTIES CONTAINED
IN THE AGREEMENT AND THE OTHER LOAN DOCUMENTS ARE TRUE AND CORRECT ON AND AS OF
THE DATE HEREOF AS IF MADE ON AND AS OF SUCH DATE, AND NO EVENT HAS OCCURRED AND
IS CONTINUING WHICH CONSTITUTES A DEFAULT OR AN EVENT OF DEFAULT.
4.
CONDITIONS OF EFFECTIVENESS.
THIS
AMENDMENT SHALL BE EFFECTIVE AS OF THE EFFECTIVE DATE UPON EXECUTION BY THE
MAJORITY LENDERS AND THE OTHER PARTIES HERETO, SO LONG AS ALL CORPORATE ACTIONS
OF BORROWERS TAKEN IN CONNECTION HEREWITH AND THE TRANSACTIONS CONTEMPLATED
HEREBY SHALL BE SATISFACTORY IN FORM AND SUBSTANCE TO ADMINISTRATIVE AGENT AND
LENDERS, AND ADMINISTRATIVE AGENT SHALL HAVE RECEIVED SUCH OTHER DOCUMENTS,
CERTIFICATES, AND INSTRUMENTS AS ADMINISTRATIVE AGENT SHALL REASONABLY REQUIRE
PRIOR TO THE AGENT'S RECEIPT OF THIS AMENDMENT EXECUTED BY THE MAJORITY LENDERS
AND THE OTHER PARTIES HERETO.
5.
REFERENCE TO AGREEMENT.
UPON THE
EFFECTIVENESS OF THIS AMENDMENT, EACH REFERENCE IN THE AGREEMENT TO "THIS
AGREEMENT," "HEREUNDER," OR WORDS OF LIKE IMPORT SHALL MEAN AND BE A REFERENCE
TO THE AGREEMENT, AS AFFECTED AND AMENDED BY THIS AMENDMENT.
6.
COUNTERPARTS; EXECUTION VIA FACSIMILE.
THIS AMENDMENT MAY BE EXECUTED 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.
THIS AMENDMENT MAY BE VALIDLY EXECUTED AND DELIVERED BY
FACSIMILE OR OTHER ELECTRONIC TRANSMISSION.
7.
GOVERNING LAW: BINDING EFFECT.
THIS
AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF TEXAS AND SHALL BE BINDING UPON THE BORROWER, THE ADMINISTRATIVE AGENT,
EACH LENDER AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS.
8.
HEADINGS.
SECTION HEADINGS IN THIS
AMENDMENT ARE INCLUDED HEREIN FOR CONVENIENCE OF REFERENCE ONLY AND SHALL NOT
CONSTITUTE A PART OF THIS AMENDMENT FOR ANY OTHER PURPOSE.
9.
LOAN