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Exhibit
10.2
LETTER AMENDMENT NO.
1
Dated as of
May 18, 2007
Citicorp USA Inc.
One Sansome Street
San Francisco, CA 94105
Attention: Carolyn Wendler
Ladies and Gentlemen:
We refer to the 3-Year Letter
of Credit Agreement dated as of May 6, 2005 (such 3-Year
Letter of Credit Agreement, the “ Letter of Credit
Agreement ”) among the undersigned and you. Capitalized
terms not otherwise defined in this Letter Amendment No. 1
(this “ Letter Amendment ”) have the same
meanings as specified in the Letter of Credit Agreement.
It is hereby agreed by you
and us that the Letter of Credit Agreement is, effective as of the
date of this Letter Amendment, hereby amended as
follows:
(a) The definition of “
Termination Date ” in Section 1.01 is hereby
amended to read in its entirety as follows:
“ ‘
Termination Date ’ means the first to occur of
(i) the third anniversary of the date of Amendment No. 1,
(ii) the date the LC Issuer receives irrevocable written
notice from the Company of the termination of its right to request
Letters of Credit hereunder, or (iii) the date the obligation
of the LC Issuer to issue Letters of Credit is terminated pursuant
to Section 7.01 hereof.”
(b) Section 1.01 is
amended by adding in appropriate alphabetical order the following
definition:
“ ‘ Amendment
No. 1 ’ means the Letter Amendment No. 1 dated
as of May 18, 2007 to this Agreement.”
(c) Section 2.05(ii) is
amended by deleting the words “on the last day” therein
and replacing them with the words “no later than 30 days
after the last day”.
(d) Section 2.16 is
amended in full to read as follows:
“SECTION 2.16 LC
Subsidiaries . Any Subsidiary of the Company not an LC
Subsidiary on the date hereof may become an ‘LC
Subsidiary’ hereunder by delivering to the LC Issuer, an
agreement, in form and substance reasonably satisfactory to the LC
Issuer, wherein such Subsidiary agrees to be bound by all terms and
provisions of this Agreement relating to Letters of
Credit
to be issued for the account
of such Subsidiary and delivers a written consent of the Company
assenting to the inclusion of such Subsidiary as an ‘LC
Subsidiary’ hereunder, provided , that , no
Subsidiary shall become an ‘LC Subsidiary’ until the LC
Issuer shall have notified the Company in writing that such
agreement and consent are in form and substance satisfactory to the
LC Issuer.”
(e) Article II is amended by
adding to the end thereof a new Section 2.17, to read as
follows:
“Section 2.17
Extension of Termination Date . (a) At least 45 days
but not more than 60 days prior to each of the first and second
anniversary of the date of Amendment No. 1, the Company, by
written notice to the LC Issuer, may request an extension of the
Termination Date in effect at such time by one year from its then
scheduled expiration date. The LC Issuer, in its sole discretion,
not later than 30 days prior to such anniversary date, shall notify
the Company in writing as to whether it will consent to such
extension. If the LC Issuer shall fail to notify the Company in
writing of its consent to any such request for extension of the
Termination Date at least 30 days prior to such anniversary date,
the LC Issuer shall be deemed not to have consented.
(b) If the LC Issuer consents
in writing to any such request in accordance with subsection
(a) of this Section 2.17, the Termination Date in effect
at such time shall, effective as at such anniversary date (the
‘ Extension Date ’), be extended for one year;
provided that on each Extension Date the applicable
conditions set forth in clauses (a) and (b) of
Section 4.02 shall be satisfied. It is understood and agreed
that the LC Issuer shall have no obligation whatsoever to agree to
any request made by the Company for any requested extension of the
Termination Date.”
(f) Section 4.02 is
amended in full to read as follows:
“SECTION 4.02
Conditions Precedent to Each Issuance and Termination Date
Extension . The obligation of the LC Issuer to Issue each
Letter of Credit (including the initial Letter of
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