SECOND AMENDMENT TO
AMENDED AND RESTATED INVESTMENT AGREEMENT
SECOND AMENDMENT (this "Amendment"), dated as of December 28,
2006, to the Amended and Restated Investment Agreement, dated as of July 30,
1999 (as previously amended, supplemented or otherwise modified, the
"Agreement"), by and among Apollo Investment Fund IV, L.P., a Delaware limited
partnership, Apollo Investment Fund III, L.P., a Delaware limited partnership,
Apollo Overseas Partners IV, L.P., a Delaware limited partnership, Apollo
Overseas Partners III, L.P., a Delaware limited partnership, Apollo (U.K.)
Partners III, L.P., an English limited partnership, Apollo/AW LLC, a Delaware
limited liability company, Blackstone Capital Partners II Merchant Banking
Fund L.P., a Delaware limited partnership, Blackstone Capital Partners III
Merchant Banking Fund L.P., a Delaware limited partnership, Blackstone
Offshore Capital Partners III L.P., a Cayman Islands limited partnership,
Blackstone Offshore Capital Partners II L.P., a Cayman Islands limited
partnership, Blackstone Family Investment Partnership III L.P., a Delaware
limited partnership, Blackstone Family Investment Partnership II L.P., a
Delaware limited partnership, Greenwich Street Capital Partners II, L.P., a
Delaware limited partnership, GSCP Offshore Fund, L.P., a Cayman Islands
exempted limited partnership, Greenwich Fund, L.P., a Delaware limited
partnership, Greenwich Street Employees Fund, L.P., a Delaware limited
partnership, TRV Executive Fund, L.P., a Delaware limited partnership, DLJMB
Funding II, Inc., a Delaware corporation, DLJ Merchant Banking Partners II,
L.P., a Delaware limited partnership, DLJ Merchant Banking Partners II-A,
L.P., a Delaware limited partnership, DLJ Diversified Partners, L.P., a
Delaware limited partnership, DLJ Diversified Partners-A, L.P., a Delaware
limited partnership, DLJ Millennium Partners, L.P., a Delaware limited
partnership, DLJ Millennium Partners-A, L.P., a Delaware limited partnership,
DLJ First ESC L.P., a Delaware limited partnership, DLJ Offshore Partners II,
C.V., a Netherlands Antilles limited partnership, DLJ EAB Partners, L.P., a
Delaware limited partnership and DLJ ESC II, L.P., a Delaware limited
partnership.
The Stockholders are parties to the Agreement and they wish to amend
the Agreement as described below in consideration of the promises and for
other good and valuable consideration, the receipt of which is hereby
acknowledged:
1. Defined Terms. Unless otherwise defined herein, capitalized terms
are used herein as defined in the Agreement.
2. Amendment to Section 4.4 (Notice of Certain Sales) of the
Agreement. Section 4.4 of the Agreement is hereby deleted in its entirety.
3. Amendment to Section 5.2 (Shares Included) of the Agreement.
Section 5.2(a) of the Agreement is hereby amended by inserting the following
text at the end of the last sentence thereof:
; provided that with respect to the exercise of any shelf, demand or
piggy-back rights relating to an automatic shelf registration
statement on Form S-3ASR or a successor form that becomes effective
upon filing with the Securities and
2
Exchange Commission, in lieu of giving notice to each other, the
Apollo/Blackstone Shareholders shall only be required to give notice
to the Company and only if such notice is necessary in order to enable
the Company to provide any notice to either of the applicable
Apollo/Blackstone Shareholders required pursuant to any Registration
Rights Agreement.
4. Waiver of Past Notices. The parties hereto waive all notices
pursuant to the Agreement they may have otherwise been entitled to prior to
the date hereof.
5. Continuing Effect; No Other Amendments. Except as expressly
amended pursuant to this Amendment, the Agreement is and shall continue to
be in full force and effect in accordance with its terms, and this Amendment
shall not constitute the consent of any Stockholder or indicate the
willingness of any Stockholder to consent to any other amendment,
modification or waiver of the Agreement.
6. Counterparts. This Amendment may be executed by one or more of
the parties hereto in any number of separate counterparts (which may include
counterparts delivered by facsimile transmission), and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
7. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
8. Termination and Mutual Release. Upon execution of this Amendment
by the undersigned Greenwich Stockholders and the undersigned DLJ Stockholders
(the "Non-Apollo/Blackstone Shareholders"), such Non-Apollo/Blackstone
Shareholders agree to terminate their respective rights and obligations under
this Agreement, which will be of no further force and effect in all respects
with respect to such undersigned Non-Apollo/Blackstone Shareholders, and the
undersigned Non-Apollo/Blackstone Shareholders hereby release the Company and
the other Stockholders of their respective obligations under this Agreement
and the Company and the Apollo Stockholders and the Blackstone Stockholders
hereby release the undersigned Non-Apollo/Blackstone Shareholders of their
respective obligations under this Agreement.
9. Effectiveness. This Amendment shall become effective only upon
execution by the Company and all of the shareholders parties thereto of the
First Amendment to the Second Amended and Restated Registration Rights
Agreement and the First Amendment to the Third Amended and Restated
Shareholders Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their proper and duly
authorized officers as of the day and year first above written.
APOLLO INVESTMENT FUND III, L.P.
APOLLO OVERSEAS PARTNERS III, L.P.
APOLLO (U.K.) PARTNERS III, L.P.
By: Apollo Advisors II, L.P.
By: Apollo Capital Management II, Inc.
By /s/ Xxxxx Xxxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Partner
APOLLO INVESTMENT FUND IV, L.P.
APOLLO OVERSEAS PARTNERS IV, L.P.
By: Apollo Advisors IV, L.P.
By: Apollo Capital Management IV, Inc.
By /s/ Xxxxx Xxxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Partner
APOLLO/AW, LLC
By: Apollo Management IV, L.P.
By: AIF IV Management, Inc.
By /s/ Xxxxx Xxxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Partner
BLACKSTONE CAPITAL PARTNERS II
MERCHANT BANKING FUND X.X.
XXXXXXXXXX OFFSHORE CAPITAL PARTNERS II
X.X.
XXXXXXXXXX FAMILY INVESTMENT PARTNERSHIP
II L.P.
By: Blackstone Management Associates
II L.L.C.
By /s/ Xxxxx Xxxxx
-------------------------------------
Name: Xxxxx Xxxxx
Title: Authorized Signatory
BLACKSTONE CAPITAL PARTNERS III
MERCHANT BANKING FUND X.X.
XXXXXXXXXX OFFSHORE CAPITAL PARTNERS III
X.X.
XXXXXXXXXX FAMILY INVESTMENT PARTNERSHIP
III L.P.
By: Blackstone Management Associates III
L.L.C.
By /s/ Xxxxx Xxxxx
-------------------------------------
Name: Xxxxx Xxxxx
Title: Authorized Signatory
GREENWICH STREET CAPITAL PARTNERS II, L.P.
GCP OFFSHORE FUND, L.P.
GREENWICH FUND, L.P.
GREENWICH STREET EMPLOYEES FUND, L.P.
TRV EXECUTIVE FUND, L.P.
By: Greenwich Street Investments II, L.L.C.
By /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Managing Director
DLJMB FUNDING II, INC.
By /s/ Xxx Xxxxx
-----------------------------------
Name: Xxx Xxxxx
Title: Authorized Signatory
DLJ MERCHANT BANKING PARTNERS II, L.P.
By: DLJ Merchant Banking II, Inc.
Managing General Partner
By /s/ Xxx Xxxxx
-----------------------------------
Name: Xxx Xxxxx
Title: Authorized Signatory
DLJ MERCHANT BANKING PARTNERS II-A, L.P.
By: DLJ Merchant Banking II, Inc.
Managing General Partner
By /s/ Xxx Xxxxx
-----------------------------------
Name: Xxx Xxxxx
Title: Authorized Signatory
DLJ DIVERSIFIED PARTNERS, L.P.
By: DLJ Diversified Partners, Inc.
Managing General Partner
By /s/ Xxx Xxxxx
-----------------------------------
Name: Xxx Xxxxx
Title: Authorized Signatory
DLJ DIVERSIFIED PARTNERS-A, L.P.
By: DLJ Diversified Partners, Inc.
Managing General Partner
By /s/ Xxx Xxxxx
-------------------------------------
Name: Xxx Xxxxx
Title: Authorized Signatory
DLJ MILLENNIUM PARTNERS, L.P.
By: DLJ Merchant Banking II, Inc.
Managing General Partner
By /s/ Xxx Xxxxx
------------------------------------
Name: Xxx Xxxxx
Title: Authorized Signatory
DLJ MILLENNIUM PARTNERS-A, L.P.
By: DLJ Merchant Banking II, Inc.
Managing General Partner
By /s/ Xxx Xxxxx
-----------------------------------
Name: Xxx Xxxxx
Title: Authorized Signatory
DLJ FIRST ESC L.P.
By: DLJ LBO Plans Management Corporation
General Partner
By /s/ Xxx Xxxxx
-----------------------------------
Name: Xxx Xxxxx
Title: Authorized Signatory
DLJ OFFSHORE PARTNERS II, C.V.
By: DLJ Merchant Banking II, Inc.
Managing General Partner
By /s/ Xxx Xxxxx
-----------------------------------
Name: Xxx Xxxxx
Title: Authorized Signatory
DLJ EAB PARTNERS, L.P.
By: DLJ LBO Plans Management Corporation
General Partner
By /s/ Xxx Xxxxx
-----------------------------------
Name: Xxx Xxxxx
Title: Authorized Signatory
DLJ ESC II L.P.
By: DLJ LBO Plans Management Corporation
General Partner
By /s/ Xxx Xxxxx
-----------------------------------
Name: Xxx Xxxxx
Title: Authorized Signatory
