Agent wish to amend the
Security Agreement as set forth herein.
NOW THEREFORE, in consideration of the matters set forth in the recitals and the
covenants and provisions herein set forth, and other valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1.
DEFINITIONS.
CAPITALIZED TERMS USED BUT NOT DEFINED HEREIN ARE
USED AS DEFINED IN THE SECURITY AGREEMENT.
2.
AMENDMENTS TO SECURITY AGREEMENT.
THE SECURITY AGREEMENT IS
HEREBY AMENDED AS FOLLOWS:
(A)
SECTION 2(A) OF THE SECURITY AGREEMENT SHALL BE AMENDED BY
DELETING THE LAST SENTENCE THEREOF AND REPLACING IT WITH THE FOLLOWING:
"Notwithstanding the foregoing, except for fixtures (to the extent covered by
Article 9 of the UCC), such grant of a security interest shall not extend to,
and the term "Collateral" shall not include, any asset which would be real
property under the law of the jurisdiction in which it is located."
(B)
SECTION 2(L) OF THE SECURITY AGREEMENT SHALL BE AMENDED BY
DELETING THE FINAL SENTENCE THEREOF AND BY AMENDING AND RESTATING THE FIRST
SENTENCE AS FOLLOWS:
1
"(l)
Without limiting the foregoing provisions of this Section 2, each
Grantor will cooperate with the Administrative Agent in obtaining control (as
defined in the UCC) of Collateral consisting of any (i) Deposit Accounts or
Investment Property with any U.S. branch or office of any depository
institution, financial intermediary or financial institution, (ii) Electronic
Chattel Paper or (iii) Letter-of-Credit Rights."
(C)
SECTION 2(O) OF THE SECURITY AGREEMENT SHALL BE AMENDED BY
DELETING THE PHRASE "SUBSECTIONS (F), (G), (H), (I), (J), (K) AND (L)" AND
REPLACING IT WITH THE FOLLOWING:
"SUBSECTIONS (F), (G), (I), (J), AND (K)".
(D)
SECTION 3(G) OF THE SECURITY AGREEMENT SHALL BE AMENDED BY ADDING
THE FOLLOWING AFTER THE ";" AT THE END OF CLAUSE (VI) THEREOF:
"and
(vii)
with respect to the Rights to Payment constituting Eligible
Receivables, except as disclosed in writing to the Administrative Agent, the
Company has no knowledge that any of the criteria for eligibility are not
satisfied."
(E)
SECTION 4(L) OF THE SECURITY AGREEMENT SHALL BE AMENDED AND
RESTATED TO READ AS FOLLOWS:
"(L)
UPON THE ESTABLISHMENT OF ANY NEW DEPOSIT ACCOUNT, OR ANY NEW
SECURITIES ACCOUNT WITH RESPECT TO ANY INVESTMENT PROPERTY WITH ANY U.S. BRANCH
OR OFFICE OF ANY DEPOSITORY INSTITUTION, FINANCIAL INTERMEDIARY OR FINANCIAL
INSTITUTION, EACH GRANTOR SHALL IMMEDIATELY DELIVER TO ADMINISTRATIVE AGENT A
CONTROL AGREEMENT IN FORM AND SUBSTANCE SATISFACTORY TO ADMINISTRATIVE AGENT IN
RESPECT OF SUCH NEW DEPOSIT ACCOUNT OR NEW SECURITIES ACCOUNT, DULY EXECUTED BY
EACH PARTY THERETO (OTHER THAN THE ADMINISTRATIVE AGENT)."
3.
EFFECTIVENESS.
THIS AMENDMENT SHALL BECOME EFFECTIVE UPON THE
"EFFECTIVE DATE", AS DEFINED IN THAT FOURTH AMENDMENT TO CREDIT AGREEMENT, DATED
AS OF THE DATE HEREOF, BY AND AMONG THE COMPANY, THE LENDERS AND THE
ADMINISTRATIVE AGENT (THE "FOURTH AMENDMENT").
4.
REPRESENTATIONS AND WARRANTIES.
TO INDUCE THE ADMINISTRATIVE
AGENT TO EXECUTE THIS AMENDMENT, EACH GRANTOR REPRESENTS AND WARRANTS AS
FOLLOWS:
(A)
SUCH GRANTOR IS DULY AUTHORIZED TO EXECUTE AND DELIVER THIS