Exhibit 10.9


 


AMENDMENT NUMBER 2 TO SECOND
AMENDED AND RESTATED INDENTURE


 


THIS AMENDMENT NUMBER 2 TO THE
SECOND AMENDED AND RESTATED INDENTURE, dated as of August 21, 2008 (this “Amendment”),
between CLI FUNDING LLC, a limited liability company organized under the laws
of the state of Delaware (the “Issuer”), and U.S. BANK NATIONAL ASSOCIATION, a
national banking association, as the Indenture Trustee (together with its
successors and permitted assigns, the “Indenture Trustee”) and consented
to by AMBAC ASSURANCE CORPORATION, as the Requisite Global Majority, is to the Amended
and Restated Indenture, dated as of August 24, 2006 (as amended, modified
and supplemented from time to time in accordance with its terms, the “Indenture”),
between the Issuer and the Indenture Trustee.


 


W I T N E S S E T H:


 


WHEREAS, the parties have
previously entered into the Indenture; and


 


WHEREAS, the parties hereto
desire to further amend the Indenture in certain respects as provided herein;


 


NOW THEREFORE, in
consideration of the premises and mutual covenants herein contained, the
parties hereto agree as follows:


 


1.                                       Defined Terms.  Unless otherwise amended by the terms of this
Amendment, terms used in this Amendment shall have the meanings assigned in the
Indenture.


 


2.                                       Amendment to
the Indenture.  Effective
as of the execution and delivery of this Amendment, Section 630(b) of
the Indenture is hereby amended and restated as follows:


 


“(b)                           In addition to
the requirement set forth in Section 630(a), the Issuer shall enter into
and maintain one or more Interest Rate Hedge Agreements, inclusive of the
Interest Rate Hedge Agreements entered into in accordance with the prior
paragraph, having an average aggregate notional balance of not less than an
amount equal to eighty-five percent (85%) of the average of the Aggregate Note
Principal Balance each as determined on such Determination Date (after giving
effect to all payments to be made on the corresponding Payment Date) and the
immediately preceding two (2) Determination Dates.  The Issuer will not allow the aggregate
notional balance of such Interest Rate Hedge Agreements to exceed one hundred
percent (100%) of the then Aggregate Note Principal Balance.”


 


3.                                       Representations
and Warranties of the Issuer.  The Issuer hereby represents and warrants
that:


 


(a)                                  It is duly
organized and validly existing under the laws of the jurisdiction of its
organization and in good standing and duly qualified to do business in each
jurisdiction where the failure to do so would have a material adverse effect
upon its financial condition and business;


 

















 


(b)                                 It has the power,
and it duly authorized, to execute and deliver this Amendment, and it is
authorized to perform its obligations under this Amendment and the Indenture as
amended hereby;


 


(c)                                  The execution,
delivery and performance of this Amendment and the Indenture as amended hereby does
not and will not require any consent or approval of any Governmental Authority,
manager or any other Person which is not being obtained herein;


 


(d)                                 This Amendment,
when duly executed and delivered by the parties hereto, and the Indenture as
amended hereby, shall be a legal, valid and binding obligation of the Issuer,
enforceable against it in accordance with the terms set forth herein;


 


(e)                                  No Early
Amortization Event, Event of Default or Manager Default or event which, with
notice or lapse of time or both, would constitute an Early Amortization Event,
Event of Default or Manager Default, has occurred and is continuing, and no
Early Amortization Event, Event of Default or Manager Default shall occur as a
result of the execution, delivery and performance of this Amendment and the
Indenture as amended hereby; and


 


(f)                                    Each of the
conditions precedent necessary to amend the Indenture as set forth herein have
been, or contemporaneously with the execution of this Amendment will be,
satisfied.


 


4.                                       Scope and
Effectiveness of Agreement.


 


(a)                                  This Amendment
shall be effective upon execution and delivery hereof and shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns.


 


(b)                                 On and after
the execution and delivery hereof, (i) this Amendment shall become a part
of the Indenture and each reference in the Indenture to “this Indenture”, “hereof,
“hereunder” or words of like import, and each reference in any other document
to the Indenture shall mean and be a reference to the Indenture as amended or
modified hereby.


 


(c)                                  Except as
expressly amended by the terms of this Amendment, all terms and conditions of the
Indenture, as amended, shall remain in full force and effect and are hereby
ratified in all respects.


 


(d)                                 Each party
hereto agrees and acknowledges that this Amendment constitutes a “Related
Document” under the Indenture.


 


(e)                                  The amendments
provided herein shall be effective only for the purposes set forth herein and
do not allow for any other or further departure from the terms of the Indenture
or any other Related Document, which terms shall continue in full force and
effect.


 


2

















 


5.                                       Entire
Agreement.  This
Amendment represents the entire agreement between the parties with respect to
the subject matter hereof.


 


6.                                       Execution in
Counterparts.  This
Amendment may be executed in counterparts, and by different parties on separate
counterparts, each of which shall be an original, but all of which shall
constitute one and the same instrument. 
Delivery of an executed counterpart of a signature page to this
amendment by facsimile shall be effective as delivery of a manually executed counterpart
of this amendment.


 


7.                                       Governing Law.  THIS AMENDMENT SHALL BE CONSTRUED BY AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING SECTIONS
5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAWS BUT OTHERWISE
WITHOUT GIVING EFFECT TO THE PRINCIPLES OF CONFLICTS OF LAWS, THAT WOULD RESULT
IN APPLICATION OF LAWS OTHER THAN THE STATE NEW YORK, AND THE RIGHTS,
OBLIGATIONS AND REMEDIES OF THE PARTIES HERETO SHALL BE DETERMINED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.


 


[Signature
Pages Follow]


 


3

















 


IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their respective officers as of the day and year first above
written.


 


 


	
   

  	
  CLI
  FUNDING LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Lisa D. Leach

  
	
   

  	
  Name:

  	
  Lisa
  D. Leach

  
	
   

  	
  Title:

  	
  Vice-President &
  General Counsel

  



 

















 


	
   

  	
  U.S.
  BANK NATIONAL ASSOCIATION,

  
	
   

  	
  not
  individually but solely as Indenture Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Diane L. Reynolds

  
	
   

  	
  Name:

  	
  Diane
  L. Reynolds

  
	
   

  	
  Title:

  	
  Vice
  President

  



 

















 


The Undersigned, as Requisite Global Majority, Hereby Consents To The
Foregoing Amendment No. 2 to the Second Amended and Restated Indenture:


 


AMBAC ASSURANCE CORPORATION,


as Requisite Global Majority


 


 


	
  By:

  	
  /s/
  Riley Quinn

  	
   

  
	
  Name:

  	
  Riley
  Quinn

  	
   

  
	
  Title:

  	
  Assistant Vice President