in Section 2, in payment of the Obligations in the
order set forth in Section 7.02(a) of the Credit Agreement.
SECTION 26.
WAIVER. THE LENDERS HEREBY WAIVE ANY DEFAULT OR EVENT OF DEFAULT
ARISING SOLELY BY REASON OF THE FAILURE OF THE U.S. BORROWER TO COMPLY WITH
SECTION 5.04 (FINANCIAL COVENANTS) OF THE CREDIT AGREEMENT, AS IN EFFECT
IMMEDIATELY PRIOR TO THE SECOND AMENDMENT EFFECTIVE DATE, WITH RESPECT TO
MEASUREMENT PERIOD ENDING DECEMBER 31, 2008; PROVIDED THAT (A) THE SENIOR
SECURED LEVERAGE RATIO FOR THE MEASUREMENT PERIOD ENDING DECEMBER 31, 2008 IS
NOT MORE THAN 6.00:1, (B) THE INTEREST COVERAGE RATIO FOR THE MEASUREMENT PERIOD
ENDING DECEMBER 31, 2008 IS NOT LESS THAN 1.30:1 AND (C) THE FIXED CHARGE
COVERAGE RATIO FOR THE MEASUREMENT PERIOD ENDING DECEMBER 31, 2008 IS NOT LESS
THAN 0.75:1.
SECTION 27.
CONDITIONS TO EFFECTIVENESS. THIS AMENDMENT SHALL BECOME EFFECTIVE
UPON THE DATE (THE "SECOND AMENDMENT EFFECTIVE DATE") ON WHICH THE
ADMINISTRATIVE AGENT SHALL HAVE RECEIVED:
(A)
THIS AMENDMENT, EXECUTED AND DELIVERED BY A DULY AUTHORIZED
OFFICER OF EACH BORROWER;
(B)
A DULY COMPLETED LENDER ADDENDUM, IN THE FORM SET FORTH AS
EXHIBIT A HERETO, OR A FACSIMILE TRANSMISSION THEREOF, EXECUTED AND DELIVERED BY
THE MAJORITY LENDERS, THE MAJORITY FACILITY LENDERS, EACH CANADIAN REVOLVING
CREDIT LENDER AND EACH U.S. REVOLVING CREDIT LENDER (OTHER THAN ANY DEFAULTING
LENDER);
(C)
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;
(D)
FAVORABLE OPINIONS OF (I) LATHAM AND WATKINS LLP, U.S. COUNSEL FOR
THE BORROWERS, (II) STEPHEN MARTIN, GENERAL COUNSEL OF THE U.S. BORROWER, AND
(III) OSLER, HOSKIN & HARCOURT LLP, CANADIAN COUNSEL FOR THE CANADIAN BORROWER,
IN EACH CASE IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE ADMINISTRATIVE
AGENT;
(E)
FOR THE ACCOUNT OF EACH LENDER THAT IS INCLUDED IN THE CALCULATION
OF MAJORITY LENDERS OR MAJORITY FACILITY LENDERS AND THAT EXECUTES AND DELIVERS
A LENDER ADDENDUM TO COUNSEL TO THE ADMINISTRATIVE AGENT BY 5:00 P.M., NEW YORK
CITY TIME, ON FEBRUARY 2, 2009, AN AMENDMENT FEE IN AN AMOUNT EQUAL TO 0.75% OF
THE SUM OF SUCH LENDER'S U.S. REVOLVING COMMITMENT, CANADIAN REVOLVING CREDIT
COMMITMENT AND TERM ADVANCES THEN OUTSTANDING; AND
(F)
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 SECOND AMENDMENT EFFECTIVE DATE.
26
The Administrative Agent shall notify the Borrowers and the Lenders of the
Second Amendment Effective Date, and such notice shall be conclusive and
binding.
SECTION 28.
EFFECTIVENESS OF CHANGE IN TERMINATION DATE. NOTWITHSTANDING
ANYTHING TO THE CONTRARY CONTAINED IN THIS AMENDMENT, TO THE EXTENT THAT THE
CHANGE IN THE DEFINITION OF TERMINATION DATE CONTAINED IN THIS AMENDMENT
POSTPONES THE FINAL MATURITY DATE FOR THE U.S. REVOLVING CREDIT FACILITY THEN
(A) IF SUCH CHANGE IS NOT APPROVED BY ANY DEFAULTING LENDER THAT IS A U.S.
REVOLVING CREDIT LENDER, SUCH