Exhibit 10.2
EXECUTION VERSION
AMENDMENT NO. 1 TO
INTERCREDITOR AGREEMENT
THIS AMENDMENT
NO. 1 TO INTERCREDITOR AGREEMENT (this “ Amendment
”), dated as of June 12, 2007, is made by and among the
institutional investors listed under the caption
“Noteholders” on the signature pages hereto
(collectively, together with the other holders from time to time of
the hereinafter described NPA Notes and their successors and
assigns, the “ Noteholders ”); Capital One,
National Association, and Union Bank of California, N.A.
(collectively, together with the other lenders from time to time
party to the hereinafter described Bank Loan Agreement and their
successors and assigns, the “ Banks ”); Capital
One, National Association, as agent for the Banks (in such
capacity, the “ Bank Agent ”), and The Bank of
New York Trust Company, N.A., as collateral agent for the
Noteholders (together with its successors and assigns in such
capacity, the “ Noteholder Collateral Agent
”).
RECITALS
A. The
Noteholders, the Banks, the Bank Agent and the Noteholder
Collateral Agent are parties to an Intercreditor Agreement dated as
of July 31, 2007 (the “ Agreement ”).
B. The parties
hereto have agreed to amend the Agreement as described
herein.
NOW,
THEREFORE, in consideration of the premises and the mutual
covenants herein contained and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
Section 1. Existing Defined Terms . Effective as of the
date hereof, the following defined terms in Article I of the
Intercreditor Agreement are hereby amended as follows:
(a) The defined term “ Eligible Swap Agreement
” is hereby amended by (1) deleting the second sentence
occurring therein and (2) replacing such sentence in its
entirety with the following:
“For the avoidance of doubt, a Swap Agreement continues to be
an Eligible Swap Agreement so long as the Person that is the
counterparty to the Company under a Swap Agreement at the time such
Swap Agreement is entered into is a Bank (or an
