AND TO EACH OF THE LENDERS
THAT:
(A)
THIS AMENDMENT HAS BEEN DULY AUTHORIZED, EXECUTED AND DELIVERED BY
HOLDINGS, EACH BORROWER AND EACH OTHER LOAN PARTY AND CONSTITUTES A LEGAL, VALID
AND BINDING OBLIGATION OF HOLDINGS, EACH BORROWER AND EACH OTHER LOAN PARTY,
ENFORCEABLE IN ACCORDANCE WITH ITS TERMS, SUBJECT TO APPLICABLE BANKRUPTCY,
INSOLVENCY, REORGANIZATION, MORATORIUM OR OTHER LAWS AFFECTING CREDITORS' RIGHTS
GENERALLY AND SUBJECT TO GENERAL PRINCIPLES OF EQUITY, REGARDLESS OF WHETHER
CONSIDERED IN A PROCEEDING IN EQUITY OR AT LAW.
(B)
AFTER GIVING EFFECT TO THIS AMENDMENT, THE REPRESENTATIONS AND WARRANTIES
SET FORTH IN ARTICLE III OF THE CREDIT AGREEMENT (OTHER THAN THE REPRESENTATION
AND WARRANTY SET FORTH IN SECTION 3.07 OF THE CREDIT AGREEMENT (INSOFAR AS SUCH
REPRESENTATION AND WARRANTY RELATES TO COMPLIANCE WITH THE INTEREST PAYMENT
REQUIREMENTS OF THE SENIOR SECURED NOTES INDENTURE)) ARE TRUE AND CORRECT IN ALL
MATERIAL RESPECTS ON AND AS OF THE DATE HEREOF AFTER GIVING EFFECT TO THIS
AMENDMENT, WITH THE SAME EFFECT AS THOUGH MADE ON AND AS OF SUCH DATE, EXCEPT TO
THE EXTENT SUCH REPRESENTATIONS AND WARRANTIES EXPRESSLY RELATE TO AN EARLIER
DATE (IN WHICH CASE SUCH REPRESENTATIONS AND WARRANTIES SHALL BE TRUE AND
CORRECT IN ALL MATERIAL RESPECTS AS OF SUCH EARLIER DATE).
(C)
IMMEDIATELY AFTER GIVING EFFECT TO THIS AMENDMENT, NO DEFAULT (OTHER THAN
THE SPECIFIED EVENTS OF DEFAULT) SHALL HAVE OCCURRED AND BE CONTINUING.
13
SECTION 29.
CONDITIONS TO EFFECTIVENESS.
THIS AMENDMENT SHALL BECOME EFFECTIVE
AS OF THE DATE FIRST WRITTEN ABOVE (SUCH DATE BEING THE "AMENDMENT NO. 2
EFFECTIVE DATE") WHEN:
(A)
THE ADMINISTRATIVE AGENT (OR ITS COUNSEL) SHALL HAVE RECEIVED (I) FROM
HOLDINGS, EACH BORROWER, EACH OTHER LOAN PARTY, EACH TERM LENDER AND LENDERS
HAVING REVOLVING EXPOSURE AND UNUSED REVOLVING COMMITMENTS REPRESENTING MORE
THAN 66 2/3% OF THE SUM OF THE TOTAL REVOLVING EXPOSURE AND TOTAL UNUSED
REVOLVING COMMITMENTS IMMEDIATELY PRIOR TO THE AMENDMENT NO. 2 EFFECTIVE DATE
EITHER (A) A COUNTERPART OF THIS AMENDMENT SIGNED ON BEHALF OF SUCH PARTY OR
(B) WRITTEN EVIDENCE REASONABLY SATISFACTORY TO THE ADMINISTRATIVE AGENT (WHICH
MAY INCLUDE FACSIMILE OR OTHER ELECTRONIC TRANSMISSION OF A SIGNED SIGNATURE
PAGE OF THIS AMENDMENT) THAT SUCH PARTY HAS SIGNED A COUNTERPART OF THIS
AMENDMENT AND (II) A DULY EXECUTED COPY OF EACH OF THE DOMESTIC SECURITY
AMENDMENT AND THE CANADIAN SECURITY AMENDMENT;
(B)
THE ADMINISTRATIVE AGENT AND THE LENDERS SHALL HAVE RECEIVED PAYMENT OF ALL
FEES AND EXPENSES REQUIRED TO BE PAID OR REIMBURSED BY THE PARENT BORROWER OR
ANY OTHER LOAN PARTY UNDER OR IN CONNECTION WITH THIS AMENDMENT AND ANY OTHER
LOAN DOCUMENT, INCLUDING THOSE EXPENSES SET FORTH IN SECTION 35 HEREOF;
(C)
THE ADMINISTRATIVE AGENT SHALL HAVE RECEIVED A CERTIFICATE OF A FINANCIAL
OFFICER SETTING FORTH REASONABLY DETAILED CALCULATIONS OF THE FIXED CHARGE
COVERAGE RATIO AS OF THE LAST DAY OF EACH OF THE FOUR-CONSECUTIVE-FISCAL-QUARTER
PERIODS ENDED SEPTEMBER 30, 2008, AND DECEMBER 31, 2008;
(D)
THE ADMINISTRATIVE AGENT SHALL HAVE RECEIVED FROM HOLDINGS AND THE
BORROWERS (I) A BORROWING BASE CERTIFICATE AND SUPPORTING INFORMATION FOR THE