IN CLAUSE (I) OF THE FOREGOING PROVISO, THE AMOUNT OF ANY SUCH
INVESTMENT MADE IN A NON-GUARANTOR SUBSIDIARY SHALL BE EXCLUDED TO THE EXTENT
SUCH INVESTMENT IS CONTRIBUTED OR MADE, DIRECTLY OR INDIRECTLY, TO AN ITALIAN
CONCESSION VEHICLE AND USED TO FUND OR SATISFY ITALIAN CONCESSION OBLIGATIONS OR
IS OTHERWISE USED TO FUND OR SATISFY ITALIAN CONCESSION OBLIGATIONS".
(T)
SECTION 8.8 OF THE CREDIT AGREEMENT IS HEREBY FURTHER AMENDED BY DELETING
THE WORD "AND" AT THE END OF CLAUSE (R) THEREOF, REPLACING THE PERIOD AT THE END
OF CLAUSE (S) THEREOF WITH A SEMICOLON AND THE WORD "AND", AND ADDING THE
FOLLOWING NEW CLAUSES (T) AND (U):
"(T) INVESTMENTS TO FUND OR SATISFY ANY ITALIAN CONCESSION OBLIGATIONS,
INCLUDING ANY INVESTMENT IN ANY ITALIAN CONCESSION VEHICLE (OR ITS EQUITY
HOLDERS OR MEMBERS) USED BY OR ON BEHALF OF ANY ITALIAN CONCESSION
9
VEHICLE (OR ITS EQUITY HOLDERS OR MEMBERS) TO FUND OR SATISFY ANY ITALIAN
CONCESSION OBLIGATIONS; AND
(U) INVESTMENTS CONSISTING OF ANY DISPOSITION PERMITTED BY CLAUSE (L) OF
SECTION 8.5."
(U)
SECTION 8.14 IS HEREBY AMENDED BY DELETING THE WORD "AND" PRIOR TO CLAUSE
(II) THEREOF AND REPLACING IT WITH A COMMA, AND INSERTING THE FOLLOWING
IMMEDIATELY BEFORE THE PERIOD AT THE END THEREOF:
", (III) ANY RESTRICTIONS IMPOSED BY CUSTOMARY PROVISIONS IN AGREEMENTS ENTERED
INTO IN THE ORDINARY COURSE OF BUSINESS RESTRICTING THE ASSIGNMENT THEREOF AND
(IV) ANY CUSTOMARY RESTRICTIONS IMPOSED BY ANY AGREEMENT GOVERNING INDEBTEDNESS
PERMITTED BY SECTION 8.2(H) OR (N) IF SUCH RESTRICTIONS APPLY ONLY TO THE
SUBSIDIARY INCURRING SUCH INDEBTEDNESS OR ANY OF ITS SUBSIDIARIES".
(V)
THE CREDIT AGREEMENT IS HEREBY AMENDED BY ADDING A NEW SCHEDULE
1.1(C) THERETO AS SET FORTH IN ANNEX A ATTACHED HERETO.
SECTION 2.
REPRESENTATIONS AND WARRANTIES.
HOLDINGS AND THE BORROWER HEREBY
REPRESENT AND WARRANT ON THE SECOND AMENDMENT EFFECTIVE DATE (AS DEFINED BELOW)
TO THE ADMINISTRATIVE AGENT AND EACH LENDER THAT:
(A)
EACH OF THE REPRESENTATIONS AND WARRANTIES MADE BY ANY LOAN PARTY IN OR
PURSUANT TO THE LOAN DOCUMENTS IS TRUE AND CORRECT ON AND AS OF THE SECOND
AMENDMENT EFFECTIVE DATE, EXCEPT TO THE EXTENT SUCH REPRESENTATIONS AND
WARRANTIES RELATE TO AN EARLIER DATE, IN WHICH CASE SUCH REPRESENTATIONS AND
WARRANTIES SHALL BE TRUE AND CORRECT AS OF SUCH EARLIER DATE.
(B)
NO DEFAULT OR EVENT OF DEFAULT HAS OCCURRED AND IS CONTINUING.
SECTION 3.
AMENDMENT FEES.
THE BORROWER AGREES TO PAY TO THE ADMINISTRATIVE
AGENT FOR THE ACCOUNT OF EACH LENDER THAT EXECUTES AND DELIVERS A COPY OF THIS
AMENDMENT TO THE ADMINISTRATIVE AGENT (OR ITS COUNSEL) AT OR PRIOR TO 5:00 P.M.,
NEW YORK CITY TIME, ON SEPTEMBER 25, 2009 (OR SUCH OTHER TIME OR DATE ON WHICH
THE ADMINISTRATIVE AGENT AND THE BORROWER SHALL AGREE), AN AMENDMENT FEE (THE
"AMENDMENT FEES") IN AN AMOUNT EQUAL TO 0.25% OF THE SUM OF (I) THE AGGREGATE
PRINCIPAL AMOUNT OF TERM LOANS OF SUCH LENDER AND (II) THE REVOLVING COMMITMENT
(WHETHER USED OR UNUSED) OF SUCH LENDER AS OF SUCH DATE; PROVIDED THAT THE
BORROWER SHALL HAVE