SECONDAMENDMENT TO SECURITY AGREEMENT

NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are acknowledged, the undersigned hereby agree as follows:

1.    Exhibits and Schedules.  Schedule 1 to the Security Agreement is hereby deleted in its entirety and replaced with Schedule 1 to this Amendment.

2.    Representations and Warranties.  Each Debtor represents and warrants to Secured Party that (a) it possesses all requisite power and authority to execute, deliver and comply with the terms of this Amendment, (b) this Amendment has been duly authorized and approved by all requisite corporate action on the part of Parent, (c) no other consent of any Person (other than Secured Party) is required for this Amendment to be effective, (d) the execution and delivery of this Amendment does not violate its organizational documents, (e) the representations and warranties in each Loan Document to which it is a party are true and correct in all material respects on and as of the date of this Amendment as though made on the date of this Amendment (except to the extent that such representations and warranties speak to a specific date), (f) it is in full compliance with all covenants and agreements contained in each Loan Document to which it is a party, and (g) no Default or Potential Default has occurred and is continuing.  The representations and warranties made in this Amendment shall survive the execution and delivery of this Amendment.  No investigation by Secured Party is required for Secured Party to rely on the representations and warranties in this Amendment.

3.    Scope of Amendment; Reaffirmation; Release.  All references to the Security Agreement shall refer to the Security Agreement as amended by this Amendment.  Except as effected by this Amendment, the Security Agreement is unchanged and continues in full force and effect.  Each Debtor hereby reaffirms its obligations under the Loan Documents to which it is a party and agrees that all Loan Documents to which they are a party remain in full force and effect and continue to be legal, valid, and binding obligations enforceable in accordance with their terms (as the same are affected by this Amendment).  Each Debtor hereby releases Secured Party from any liability for actions or omissions in connection with the Credit Agreement, Security Agreement, and the other Loan Documents prior to the date of this Amendment.

4.    Miscellaneous.

(a)    No Waiver of Defaults.  Except as expressly set out above, this Amendment does not constitute (i) a waiver of, or a consent to, (A) any provision of the Credit Agreement, Security Agreement, or any other Loan Document not expressly referred to in this Amendment, or (B) any present or future violation of, or default under, any provision of the Loan Documents, or (ii) a waiver of Secured Party’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 Secured Party under any provision of this Amendment must be in form and substance satisfactory to Secured Party and its counsel.

 

(c)    Headings.  The headings and captions used in this Amendment are for convenience only and will not be deemed to limit, amplify or modify the terms of this Amendment, the Credit Agreement, the Security Agreement, or the other Loan Documents.

 

(d)    Costs, Expenses and Attorneys’ Fees.  Each Debtor agrees to pay or reimburse Secured Party on demand for all its reasonable out-of-pocket costs and expenses incurred in connection with the preparation, negotiation, and execution of this Amendment, including, without limitation, the reasonable fees and disbursements of Secured Party’s counsel.

 

(e)    Successors and Assigns.  This Amendment shall be binding upon and inure to the benefit of each of the undersigned and their respective successors and permitted assigns.

 

(f)    Multiple Counterparts.  This 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 Amendment may be transmitted and signed by facsimile or portable document format (PDF).  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 Debtors and Secured Party.  Secured Party 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 or PDF document or signature.

 

(g)    Governing Law.  This 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 Between Debtors and Secured Party and May Not Be Contradicted by Evidence of Prior, Contemporaneous, or Subsequent Oral Agreements by the Parties.  There Are No Unwritten Oral Agreements among the Parties.