5.
RATIFICATION.
EACH OF THE BORROWERS AND
GUARANTORS HEREBY RATIFIES ALL OF ITS OBLIGATIONS UNDER THE CREDIT AGREEMENT AND
EACH OF THE LOAN DOCUMENTS TO WHICH IT IS A PARTY, AND AGREES AND ACKNOWLEDGES
THAT THE CREDIT AGREEMENT AND EACH OF THE LOAN DOCUMENTS TO WHICH IT IS A PARTY
ARE AND SHALL CONTINUE TO BE IN FULL FORCE AND EFFECT AS AMENDED AND MODIFIED BY
THIS AMENDMENT.
NOTHING IN THIS AMENDMENT EXTINGUISHES, NOVATES OR RELEASES ANY
RIGHT, CLAIM, LIEN, SECURITY INTEREST OR ENTITLEMENT OF ANY OF THE LENDERS, THE
ADMINISTRATIVE AGENT OR THE EURO ADMINISTRATIVE AGENT CREATED BY OR CONTAINED IN
ANY OF SUCH DOCUMENTS NOR ARE THE BORROWERS NOR GUARANTORS RELEASED FROM ANY
COVENANT, WARRANTY OR OBLIGATION CREATED BY OR CONTAINED HEREIN OR THEREIN.
6.
REPRESENTATIONS AND WARRANTIES.
EACH OF
THE BORROWERS AND GUARANTORS HEREBY REPRESENTS AND WARRANTS TO THE
ADMINISTRATIVE AGENT, THE EURO ADMINISTRATIVE AGENT AND THE LENDERS THAT
(A) THIS AMENDMENT HAS BEEN DULY EXECUTED AND DELIVERED ON BEHALF OF EACH OF THE
BORROWERS AND GUARANTORS, (B) THIS AMENDMENT CONSTITUTES A VALID AND LEGALLY
BINDING AGREEMENT ENFORCEABLE AGAINST EACH OF THE BORROWERS AND GUARANTORS IN
ACCORDANCE WITH ITS TERMS, SUBJECT TO APPLICABLE BANKRUPTCY, INSOLVENCY,
FRAUDULENT TRANSFER, REORGANIZATION, MORATORIUM OR OTHER LAWS AFFECTING
CREDITORS' RIGHTS GENERALLY AND SUBJECT TO GENERAL PRINCIPLES OF EQUITY,
REGARDLESS OF WHETHER CONSIDERED IN A PROCEEDING IN EQUITY OR AT LAW, (C) THE
REPRESENTATIONS AND WARRANTIES CONTAINED IN THE CREDIT AGREEMENT AND THE LOAN
DOCUMENTS ARE TRUE AND CORRECT ON AND AS OF THE DATE HEREOF IN ALL MATERIAL
RESPECTS AS THOUGH MADE AS OF THE DATE HEREOF, EXCEPT AS HERETOFORE OTHERWISE
DISCLOSED IN WRITING TO THE ADMINISTRATIVE AGENT, (D) NO DEFAULT OR EVENT OF
DEFAULT EXISTS UNDER THE CREDIT AGREEMENT OR UNDER ANY LOAN DOCUMENT AND (E) THE
EXECUTION, DELIVERY AND PERFORMANCE OF THIS AMENDMENT HAS BEEN DULY AUTHORIZED
BY EACH OF THE BORROWERS AND GUARANTORS.
4
7.
CONDITIONS TO EFFECTIVENESS.
(A)
THIS AMENDMENT SHALL BE EFFECTIVE ON THE
AMENDMENT EFFECTIVE DATE UPON THE EXECUTION AND DELIVERY HEREOF BY THE
BORROWERS, THE GUARANTORS AND THE REQUIRED LENDERS TO THE ADMINISTRATIVE AGENT
AND RECEIPT BY THE ADMINISTRATIVE AGENT OF THE FOLLOWING IN FORM AND SUBSTANCE
SATISFACTORY TO THE ADMINISTRATIVE AGENT:
(I)
THIS AMENDMENT;
(II)
THE PAYMENT TO THE ADMINISTRATIVE AGENT OF
ALL FEES AND EXPENSES (INCLUDING THE FEES AND DISBURSEMENTS OF ANDREWS KURTH
LLP) IN CONNECTION WITH THIS AMENDMENT;
(III)
THE PAYMENT ON OR BEFORE 12:00 P.M.,
HOUSTON, TEXAS TIME ON OCTOBER 22, 2009 TO THE ADMINISTRATIVE AGENT FOR THE
BENEFIT OF ALL LENDERS EXECUTING THIS AMENDMENT ON OR BEFORE 12:00 P.M.,
HOUSTON, TEXAS TIME ON OCTOBER 21, 2009 (EACH, A "CONSENTING LENDER") OF AN
AMENDMENT FEE OF 0.20% (THE "AMENDMENT FEES"), OF (I) EACH CONSENTING LENDER'S
REVOLVING LOAN COMMITMENT AND EURO REVOLVING LOAN COMMITMENT, AS APPLICABLE, AND
(B) EACH CONSENTING LENDER'S PRO RATA PORTION OF THE AGGREGATE OUTSTANDING
PRINCIPAL AMOUNT OF THE TERM LOANS AND THE EURO TERM LOANS, AS APPLICABLE, AS OF
THE DATE HEREOF AFTER GIVING PRO FORMA EFFECT