POSTPONEMENT SHALL NOT BE ENFORCEABLE AGAINST SUCH
DEFAULTING LENDER; AND (B) THE U.S. REVOLVING CREDIT COMMITMENT OF SUCH
DEFAULTING LENDER SHALL TERMINATE ON JANUARY 31, 2010 WITHOUT GIVING EFFECT TO
SUCH CHANGE IN THE TERMINATION DATE AND ANY THEN OUTSTANDING ADVANCES UNDER THE
U.S. REVOLVING CREDIT FACILITY OWING TO SUCH DEFAULTING LENDER SHALL BE PAID IN
FULL ON JANUARY 31, 2010.
SECTION 29.
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 (A) 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 SECOND AMENDMENT EFFECTIVE DATE, AFTER GIVING EFFECT TO THE EFFECTIVENESS OF
THIS AMENDMENT, AS IF MADE ON AND AS OF THE SECOND AMENDMENT EFFECTIVE DATE,
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 AND (B) THE
MOST RECENT FINANCIAL STATEMENTS DELIVERED TO THE LENDER PARTIES PURSUANT TO
SECTION 5.03(B) OF THE CREDIT AGREEMENT FAIRLY PRESENT IN ALL MATERIAL RESPECTS,
SUBJECT TO YEAR-END AUDIT ADJUSTMENTS, THE CONSOLIDATED FINANCIAL CONDITION OF
THE U.S. BORROWER AND ITS SUBSIDIARIES AS AT SEPTEMBER 30, 2008 AND THE
CONSOLIDATED RESULTS OF THE OPERATIONS OF THE U.S. BORROWER AND ITS SUBSIDIARIES
FOR THE PERIOD ENDED ON SUCH DATE, ALL IN ACCORDANCE WITH GENERALLY ACCEPTED
ACCOUNTING PRINCIPLES APPLIED ON A CONSISTENT BASIS (UNLESS OTHERWISE EXPRESSLY
NOTED THEREIN).
SECTION 30.
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 OR WAIVED 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.
SECTION 31.
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. DELIVERY OF AN EXECUTED SIGNATURE
PAGE OF THIS AMENDMENT BY FACSIMILE TRANSMISSION SHALL BE EFFECTIVE AS DELIVERY
OF A MANUALLY EXECUTED COUNTERPART HEREOF.
27
SECTION 32.
GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES UNDER THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
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