CREDIT AGREEMENT IS HEREBY AMENDED TO ADD THE
FOLLOWING DEFINITION:
"AGREED ADJUSTMENTS" SHALL MEAN ADJUSTMENTS HAVING THE
EFFECT OF REDUCING CONSOLIDATED NET INCOME BY NOT MORE THAN $3,000,000 ARISING
OUT OF THE RE-AUDIT, REVISION OR RESTATEMENT OF ANY FINANCIAL STATEMENT FOR THE
ANNUAL OR QUARTERLY ACCOUNTING PERIODS ENDED ON OCTOBER 31, 2006 DELIVERED TO
THE ADMINISTRATIVE AGENT OR ANY LENDER BY THE BORROWER OR ANY OF ITS
SUBSIDIARIES (INCLUDING, WITHOUT LIMITATION, ANY MISSTATEMENT THEREIN OR IN ANY
CERTIFICATE, REPRESENTATION OR WARRANTY RELATING THERETO AND ANY ERROR, DEFECT
OR DEFICIENCY IN ACCOUNTING PROCEDURES OR IN THE APPLICATION OF ACCOUNTING
PRINCIPLES REFLECTED THEREBY OR RELATING THERETO).
(C)
THE FIRST SENTENCE OF THE DEFINITION OF "CONSOLIDATED EBITDA" IN
SECTION 1.01 OF THE CREDIT AGREEMENT IS HEREBY AMENDED TO REMOVE THE WORD "AND"
PRIOR TO CLAUSE (VI) OF SUCH SENTENCE AND TO ADD AT THE END OF SUCH SENTENCE THE
FOLLOWING: ", AND (VII) AGREED ADJUSTMENTS"
(D)
SECTION 9.01(A) OF THE CREDIT AGREEMENT IS HEREBY AMENDED TO
INCLUDE THE FOLLOWING AT THE END OF CLAUSE (A):
"NOTWITHSTANDING THE REQUIREMENTS OF THIS SECTION 9.01(A), WITH RESPECT TO THE
QUARTERLY ACCOUNTING PERIOD ENDED JANUARY 31, 2007, THE BORROWER SHALL FURNISH
SUCH INFORMATION REQUIRED BY CLAUSES (I), (II) AND (III) ABOVE BY MAY 31, 2007."
SECTION 3.
Representations and Warranties.
The Borrower represents
and warrants to the Administrative Agent and to each of the Lenders that:
(A)
THIS AMENDMENT NO. 1 HAS BEEN DULY EXECUTED AND DELIVERED BY THE
BORROWER AND CONSTITUTES ITS LEGAL, VALID AND BINDING OBLIGATION ENFORCEABLE IN
ACCORDANCE WITH ITS TERMS, EXCEPT TO THE EXTENT THAT THE ENFORCEABILITY THEREOF
MAY BE LIMITED BY APPLICABLE BANKRUPTCY, INSOLVENCY, REORGANIZATION, MORATORIUM
OR OTHER SIMILAR LAWS GENERALLY AFFECTING CREDITORS' RIGHTS AND BY EQUITABLE
PRINCIPLES (REGARDLESS OF WHETHER ENFORCEMENT IS SOUGHT IN EQUITY OR AT LAW).
(B)
AFTER GIVING EFFECT TO THIS AMENDMENT NO. 1, THE REPRESENTATIONS
AND WARRANTIES OF EACH CREDIT PARTY SET FORTH IN THE CREDIT DOCUMENTS ARE TRUE
AND CORRECT IN ALL MATERIAL RESPECTS ON AND AS OF THE AMENDMENT NO. 1 EFFECTIVE
DATE, EXCEPT TO THE EXTENT SUCH REPRESENTATIONS AND WARRANTIES EXPRESSLY RELATE
TO AN EARLIER DATE (IN WHICH CASE SUCH REPRESENTATIONS AND WARRANTIES WERE TRUE
AND CORRECT IN ALL MATERIAL RESPECTS AS OF SUCH EARLIER DATE).
(C)
IMMEDIATELY AFTER GIVING EFFECT TO THIS AMENDMENT NO. 1, NO
DEFAULT OR
EVENT OF DEFAULT HAS OCCURRED AND IS CONTINUING.
SECTION 4.
Conditions to Effectiveness.
This Amendment No. 1 shall
become effective on the date (the "Amendment No. 1 Effective Date") on which
each of the following conditions is satisfied:
2
(A)
THE ADMINISTRATIVE AGENT (OR ITS COUNSEL) SHALL HAVE RECEIVED FROM
THE REQUIRED LENDERS, THE BORROWER AND THE GUARANTORS, A COUNTERPART OF THIS
AMENDMENT NO. 1 SIGNED ON BEHALF OF SUCH PARTY;
(B)
ALL CORPORATE AND OTHER PROCEEDINGS TAKEN OR TO BE TAKEN IN
CONNECTION WITH THIS AMENDMENT NO. 1 AND ALL DOCUMENTS INCIDENTAL THERETO,
WHETHER OR NOT REFERRED TO HEREIN, SHALL BE REASONABLY SATISFACTORY IN FORM AND
SUBSTANCE TO THE ADMINISTRATIVE AGENT;
(C)
THE