AS NO DEFAULT OR EVENT OF DEFAULT THEN EXISTS OR WOULD
RESULT THEREFROM, THE BORROWER AND ITS SUBSIDIARIES MAY MAKE INVESTMENTS
(INCLUDING, WITHOUT LIMITATION, INVESTMENTS IN JOINT VENTURES, PARTNERSHIPS AND
OTHER SIMILAR ARRANGEMENTS) NOT OTHERWISE PERMITTED BY CLAUSES (I) THROUGH (XII)
OF THIS SECTION 9.05 IN AN AGGREGATE AMOUNT NOT TO EXCEED $2,500,000 AT ANY TIME
MINUS THE AGGREGATE PRINCIPAL AMOUNT OF INDEBTEDNESS INCURRED PURSUANT TO
SECTION 9.04(XII) HEREOF WHICH CONSTITUTES CONTINGENT OBLIGATIONS OF THE
BORROWER OR ANY OF ITS SUBSIDIARIES IN RESPECT OF INDEBTEDNESS OF ANY PERSON IN
WHICH BORROWER OR ANY OF ITS SUBSIDIARIES HAS MADE AN INVESTMENT PURSUANT TO
THIS CLAUSE (XIII).
THE AMOUNT OF ANY INVESTMENT MADE PURSUANT TO THIS CLAUSE
(XIII) SHALL BE DETERMINED WITHOUT REGARD TO ANY WRITE-DOWNS OR WRITE-OFFS
THEREOF.".
II.
AMENDMENTS TO SECURITY AGREEMENT.
1.
THE DEFINITION OF "SECURED SUPPLEMENTAL LETTERS OF CREDIT"
APPEARING IN ARTICLE IX OF THE SECURITY AGREEMENT IS HEREBY AMENDED BY DELETING
THE TEXT "$10,000,000" APPEARING IN SAID DEFINITION AND INSERTING THE TEXT
"$20,000,000" IN LIEU THEREOF.
III.
MISCELLANEOUS PROVISIONS.
1.
IN ORDER TO INDUCE THE LENDERS TO ENTER INTO THIS SECOND
AMENDMENT, THE BORROWER HEREBY REPRESENTS AND WARRANTS THAT (I) NO DEFAULT OR
EVENT OF DEFAULT EXISTS AS OF THE SECOND AMENDMENT EFFECTIVE DATE (AS DEFINED
BELOW) BOTH IMMEDIATELY BEFORE AND IMMEDIATELY AFTER GIVING EFFECT THERETO, (II)
ALL OF THE REPRESENTATIONS AND WARRANTIES CONTAINED IN THE CREDIT AGREEMENT OR
THE OTHER CREDIT DOCUMENTS ARE TRUE AND CORRECT IN ALL MATERIAL RESPECTS ON THE
SECOND AMENDMENT EFFECTIVE DATE BOTH IMMEDIATELY BEFORE AND IMMEDIATELY AFTER
GIVING EFFECT THERETO, WITH THE SAME EFFECT AS THOUGH SUCH REPRESENTATIONS AND
WARRANTIES HAD BEEN MADE ON AND AS OF THE SECOND AMENDMENT EFFECTIVE DATE (IT
BEING UNDERSTOOD THAT ANY REPRESENTATION OR WARRANTY MADE AS OF A SPECIFIC DATE
SHALL BE TRUE AND CORRECT IN ALL MATERIAL RESPECTS AS OF SUCH SPECIFIC DATE).
2.
THIS SECOND AMENDMENT IS LIMITED AS SPECIFIED AND SHALL NOT
CONSTITUTE A MODIFICATION, ACCEPTANCE OR WAIVER OF ANY OTHER PROVISION OF THE
CREDIT AGREEMENT, SECURITY AGREEMENT OR ANY OTHER CREDIT DOCUMENT.
2
3.
THIS SECOND AMENDMENT MAY BE EXECUTED IN ANY NUMBER OF
COUNTERPARTS AND BY THE DIFFERENT PARTIES HERETO ON SEPARATE COUNTERPARTS, EACH
OF WHICH COUNTERPARTS WHEN EXECUTED AND DELIVERED SHALL BE AN ORIGINAL, BUT ALL
OF WHICH SHALL TOGETHER CONSTITUTE ONE AND THE SAME INSTRUMENT. A COMPLETE SET
OF COUNTERPARTS SHALL BE LODGED WITH THE BORROWER AND THE ADMINISTRATIVE AGENT.
4.
THIS SECOND AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW
OF THE STATE OF NEW YORK.
5.
THIS SECOND AMENDMENT SHALL BECOME EFFECTIVE ON THE DATE (THE
"SECOND AMENDMENT EFFECTIVE DATE") WHEN (I) THE BORROWER, (II) EACH OTHER CREDIT
PARTY, AND (III) LENDERS CONSTITUTING THE REQUIRED LENDERS SHALL HAVE SIGNED A
COUNTERPART HEREOF (WHETHER THE SAME OR DIFFERENT COUNTERPARTS) AND SHALL HAVE
DELIVERED (INCLUDING BY WAY OF FACSIMILE OR OTHER ELECTRONIC TRANSMISSION) THE
SAME TO THE ADMINISTRATIVE AGENT.
6.
BY EXECUTING AND DELIVERING