30, 2009
1.35:1
September 30, 2009
1.35:1
December 31, 2009 and thereafter
1.40:1
CONDITIONS TO EFFECTIVENESS.
THIS AMENDMENT SHALL BECOME EFFECTIVE UPON THE
DATE (THE "FIRST AMENDMENT EFFECTIVE DATE") ON WHICH THE ADMINISTRATIVE AGENT
SHALL HAVE RECEIVED:
THIS AMENDMENT, EXECUTED AND DELIVERED BY A DULY AUTHORIZED OFFICER OF EACH
BORROWER;
A DULY COMPLETED LENDER ADDENDUM, IN THE FORM SET FORTH AS EXHIBIT A HERETO, OR
A FACSIMILE TRANSMISSION THEREOF, EXECUTED AND DELIVERED BY LENDERS CONSTITUTING
THE MAJORITY LENDERS;
AN EXECUTED ACKNOWLEDGMENT AND CONSENT, IN THE FORM SET FORTH AS EXHIBIT B
HERETO, OR A FACSIMILE TRANSMISSION THEREOF, FROM EACH LOAN PARTY OTHER THAN THE
BORROWERS;
FOR THE ACCOUNT OF EACH LENDER EXECUTING AND DELIVERING A LENDER ADDENDUM TO
COUNSEL TO THE ADMINISTRATIVE AGENT BY 5:00 P.M., NEW YORK CITY TIME, ON
NOVEMBER 28, 2007, AN AMENDMENT FEE IN AN AMOUNT EQUAL TO 0.25% OF THE SUM OF
SUCH LENDER'S U.S. REVOLVING COMMITMENT, CANADIAN REVOLVING CREDIT COMMITMENT
AND TERM ADVANCES THEN OUTSTANDING; AND
ALL FEES REQUIRED TO BE PAID, AND ALL REASONABLE OUT-OF-POCKET EXPENSES FOR
WHICH INVOICES HAVE BEEN PRESENTED (INCLUDING REASONABLE FEES, DISBURSEMENTS AND
OTHER CHARGES OF COUNSEL TO THE ADMINISTRATIVE AGENT), ON OR BEFORE THE FIRST
AMENDMENT EFFECTIVE DATE.
The Administrative Agent shall notify the Borrowers and the Lenders of the First
Amendment Effective Date, and such notice shall be conclusive and binding.
REPRESENTATIONS AND WARRANTIES.
TO INDUCE THE ADMINISTRATIVE AGENT TO ENTER
INTO THIS AMENDMENT AND TO INDUCE THE LENDERS TO CONSENT THERETO, EACH BORROWER
HEREBY REPRESENTS AND WARRANTS TO THE ADMINISTRATIVE AGENT AND THE LENDERS THAT
THE REPRESENTATIONS AND WARRANTIES MADE BY THE LOAN PARTIES IN THE LOAN
DOCUMENTS ARE TRUE AND CORRECT IN ALL MATERIAL RESPECTS ON AND AS OF THE FIRST
AMENDMENT EFFECTIVE DATE, AFTER GIVING EFFECT TO THE EFFECTIVENESS OF THIS
AMENDMENT, AS IF MADE ON AND AS OF THE FIRST AMENDMENT EFFECTIVE DATE,
6
EXCEPT TO THE EXTENT SUCH REPRESENTATIONS AND WARRANTIES EXPRESSLY RELATE TO A
SPECIFIC EARLIER DATE, IN WHICH CASE SUCH REPRESENTATIONS AND WARRANTIES WERE
TRUE AND CORRECT IN ALL MATERIAL RESPECTS AS OF SUCH EARLIER DATE.
CONTINUING EFFECT OF LOAN DOCUMENTS.
THIS AMENDMENT SHALL NOT CONSTITUTE AN
AMENDMENT OR WAIVER OF OR CONSENT TO ANY PROVISION OF THE CREDIT AGREEMENT OR
THE OTHER LOAN DOCUMENTS NOT EXPRESSLY REFERRED TO HEREIN AND SHALL NOT BE
CONSTRUED AS AN AMENDMENT, WAIVER OR CONSENT TO ANY ACTION ON THE PART OF ANY
BORROWER OR ANY OF ITS RESPECTIVE SUBSIDIARIES THAT WOULD REQUIRE AN AMENDMENT,
WAIVER OR CONSENT OF THE ADMINISTRATIVE AGENT OR THE LENDERS EXCEPT AS EXPRESSLY
STATED HEREIN.
EXCEPT AS EXPRESSLY AMENDED HEREBY, THE PROVISIONS OF THE CREDIT
AGREEMENT AND THE OTHER LOAN DOCUMENTS ARE AND SHALL REMAIN IN FULL FORCE AND
EFFECT IN ACCORDANCE WITH THEIR RESPECTIVE TERMS.
COUNTERPARTS.
THIS AMENDMENT MAY BE EXECUTED BY ONE OR MORE OF THE PARTIES TO
THIS AMENDMENT ON ANY NUMBER OF SEPARATE COUNTERPARTS (INCLUDING BY FACSIMILE),
AND ALL OF SAID COUNTERPARTS TAKEN TOGETHER SHALL BE DEEMED TO CONSTITUTE ONE
AND THE SAME INSTRUMENT.