EXHIBIT 99.5
SECOND AMENDMENT TO INVESTMENT AGREEMENT
THIS SECOND AMENDMENT (the "Amendment") to the Investment Agreement
(the "Agreement"), dated as of July 26, 2002, as amended on September 30, 2002,
is made as of this 15th day of October, 2002, by and among Leucadia National
Corporation, a New York corporation ("Purchaser"), and Xxxxxxxx Communications
Group, Inc., a Delaware corporation (the "Company") and debtor-in-possession
under chapter 11 of title 11 of the United States Code in case No. 02-11957
(BRL), pending in the United States Bankruptcy Court for the Southern District
of New York, and Xxxxxxxx Communications, LLC, a Delaware limited liability
company and wholly owned subsidiary of the Company. All capitalized terms not
otherwise defined herein shall have the meanings given to such terms in the
Agreement.
FOR good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto agree as follows:
1. Exhibits. Exhibits B, C, D and E to the Agreement shall be replaced and
superceded by the terms of Exhibits B, C, D and E, respectively, attached to
this Amendment.
2. Definitions. The following definition is hereby added, in alphabetical order
to Section 8.8(a) of the Agreement:
"Escrow Agreement" means that certain escrow agreement,
entered into as of October 15, 2002 among Purchaser, New WCG, TWC and
the Escrow Agent.
"Escrow Agent" means The Bank of New York, a New York banking
institution.
3. Purchase Price. Section 1.2 is hereby amended and restated in its entirety to
read as follows:
The Purchase Price will be payable on the Closing Date by (i) delivery
in cash of $1,000 by bank wire transfer of immediately available funds to an
account of New WCG designated by the Company by written notice to Purchaser at
least two business days prior to the Closing Date and (ii) delivery of a letter
of credit to the Escrow Agent with a face amount equal to $151,000,000 in
accordance with the terms of the Escrow Agreement.
4. Representation and Warranty in Section 2.3. The representation and warranty
in Section 2.3 is hereby amended to
(a) add the following at the end of the first sentence thereof:
"provided, however, that the Company makes no representation and warranty as to
whether the Shares are fully paid and non-assessable unless and until the
Escrowed Property is released from escrow pursuant to Section 4 of the Escrow
Agreement and the Company has received the proceeds of the Company Letter of
Credit (as defined in the Escrow Agreement) and the Escrowed Property to which
it is entitled under the Escrow Agreement" and
(b) add the following at the end of the second sentence thereof: "or
under the Escrow Agreement."
5. General Provisions. This Amendment shall be deemed to be a part of the
Agreement, to the same extent as set forth therein in its entirety, and all
other terms and provisions of the Agreement, as heretofore amended, shall
continue in full force and effect.
[Signature Page to Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to be duly executed by their respective authorized officers as of the
date and year first written above.
XXXXXXXX COMMUNICATIONS GROUP, INC.
By: /s/ XXXXXX X. XXXXXX
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Name: Xxxxxx X. Xxxxxx
Title: Vice President and
Group Executive, Corporate
Development and Finance
LEUCADIA NATIONAL CORPORATION
By: /s/ XXXXXX X. ORLANDO
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Name: Xxxxxx X. Orlando
Title: Vice President and CFO
XXXXXXXX COMMUNICATIONS, LLC
By: /s/ XXXXXX X. XXXXXX
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Name: Xxxxxx X. Xxxxxx
Title: Vice President and
Group Executive, Corporate
Development and Finance
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