OF
CREDIT ISSUED FOR THE ACCOUNT OF SUCH PERSON AND, WITHOUT DUPLICATION, THE
UNREIMBURSED AMOUNT OF ALL DRAFTS DRAWN THEREUNDER, AND ALL OTHER OBLIGATIONS OF
SUCH PERSON ASSOCIATED WITH SUCH LETTERS OF CREDIT OR DRAWS THEREON; (VI) ALL
OBLIGATIONS OF SUCH PERSON IN RESPECT OF ACCEPTANCES OR SIMILAR OBLIGATIONS
ISSUED FOR THE ACCOUNT OF SUCH PERSON; (VII) ALL OBLIGATIONS OF SUCH PERSON
UNDER A PROJECT FINANCING OR SIMILAR ARRANGEMENT; (VIII) ALL OBLIGATIONS OF SUCH
PERSON UNDER ANY INTEREST RATE OR CURRENCY PROTECTION AGREEMENT, INTEREST RATE
OR CURRENCY FUTURE, INTEREST RATE OR CURRENCY OPTION, INTEREST RATE OR CURRENCY
SWAP OR CAP OR OTHER INTEREST RATE OR CURRENCY HEDGE AGREEMENT; AND (IX) ALL
OBLIGATIONS AND LIABILITIES WITH RESPECT TO UNFUNDED VESTED BENEFITS UNDER ANY
"EMPLOYEE BENEFIT PLAN" OR WITH RESPECT TO WITHDRAWAL LIABILITIES INCURRED UNDER
ERISA BY BORROWER OR ANY ERISA AFFILIATE TO A "MULTIEMPLOYER PLAN", AS SUCH
TERMS ARE DEFINED UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974;
PROVIDED THAT IN THE COMPUTATION OF THE RATIO FOR THE FISCAL QUARTERS ENDING
DECEMBER 31, 2008 AND THEREAFTER, TANGIBLE NET WORTH WILL BE ADJUSTED BY
DEDUCTING NON-CONTROLLING INTERESTS IN SUBSIDIARIES FROM LIABILITIES AND ADDING
NON-CONTROLLING INTERESTS IN SUBSIDIARIES TO EQUITY CONSISTENT WITH GAAP FOR
FISCAL QUARTERS ENDING AFTER DECEMBER 31, 2008.
(II)
BY RESTATING IN ITS ENTIRETY AS OF DECEMBER 31, 2008 THE
DEFINITION OF "TANGIBLE NET WORTH" THEREIN TO READ AS FOLLOWS:
"TANGIBLE NET WORTH", AT ANY TIME, SHALL MEAN THE TOTAL OF SHAREHOLDERS' EQUITY
(INCLUDING CAPITAL STOCK (BOTH COMMON AND PREFERRED), ADDITIONAL PAID - IN CAPITAL
AND RETAINED EARNINGS AFTER DEDUCTING TREASURY STOCK OF A PERSON), LESS THE SUM
OF THE TOTAL AMOUNT OF ANY INTANGIBLE ASSETS, WHICH, FOR PURPOSES OF THIS
DEFINITION, SHALL INCLUDE, WITHOUT LIMITATION, GENERAL INTANGIBLES AND, IF
APPLICABLE, ALL ACCOUNTS RECEIVABLE NOT INCURRED IN THE ORDINARY COURSE OF
BUSINESS FROM ANY AFFILIATE OF SUCH PERSON OR ANY LOANS TO DIRECTORS OR OFFICERS
OF ANY AFFILIATE OF SUCH PERSON, UNAMORTIZED DEFERRED CHARGES AND GOOD WILL, ALL
AS DETERMINED IN ACCORDANCE WITH GAAP, PROVIDED THAT IN THE COMPUTATION OF
TANGIBLE NET WORTH FOR THE FISCAL QUARTERS ENDING DECEMBER 31, 2008 AND
THEREAFTER, THE DEFINITION IS AMENDED TO ADD TO EQUITY THE NON-CONTROLLING
INTERESTS IN SUBSIDIARIES CONSISTENT WITH GAAP FOR FISCAL QUARTERS ENDING AFTER
DECEMBER 31, 2008.
4.
REPRESENTATIONS.
IN ORDER TO INDUCE THE AGENT AND THE LENDERS TO EXECUTE
THIS AMENDMENT, THE BORROWER HEREBY REPRESENTS, WARRANTS AND COVENANTS TO THE
AGENT AND THE LENDERS AS OF THE DATE HEREOF AND (IF DIFFERENT) AS OF THE
AMENDMENT CLOSING DATE (WHICH
2
REPRESENTATIONS, WARRANTIES AND COVENANTS SHALL SURVIVE THE EXECUTION, DELIVERY
AND EFFECTIVENESS OF THIS AMENDMENT) AS FOLLOWS:
(A)
NO DEFAULT OR EVENT OF DEFAULT EXISTS NOR, AFTER GIVING EFFECT TO
THE CONSENTS CONTAINED HEREIN, WILL ANY DEFAULT OR EVENT OF DEFAULT ARISE.
(B)
EACH REPRESENTATION AND WARRANTY MADE BY THE BORROWER IN THE LOAN
DOCUMENTS IS TRUE AND CORRECT.
(C)
THE EXECUTION AND DELIVERY OF THIS AMENDMENT BY THE BORROWER AND
THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREIN HAVE BEEN