IS CONTINUING UNDER AND
WITHIN THE MEANING OF THE AMENDED NOTE AGREEMENT.
3
3.3
NOT LATER THAN THE EFFECTIVENESS OF THE
AMENDMENT OF SECTION 10.1(A) OF THE AMENDED NOTE AGREEMENT PROVIDED FOR IN
SECTION 1 OF THIS AMENDMENT AND THE WAIVER UNDER SECTION 14(F) OF THE AMENDED
NOTE AGREEMENT PROVIDED FOR IN SECTION 2 HEREOF, AN AMENDMENT AND WAIVER SHALL
HAVE BECOME EFFECTIVE REGARDING THE RESPECTIVE CORRESPONDING PROVISIONS OF THE
COMPANY'S CREDIT AGREEMENT (THE "CREDIT AGREEMENT AMENDMENT"), DEFERRING UNTIL
AT LEAST MARCH 31, 2006 THE DATE BY WHICH THE COMPANY SHALL BE REQUIRED TO
FURNISH PURSUANT THERETO QUARTERLY FINANCIAL STATEMENTS FOR AND IN RESPECT OF
EACH OF ITS FISCAL QUARTERS ENDED OCTOBER 2, 2005 AND JANUARY 1, 2006 AND
WAIVING DEFAULTS OR EVENTS OF DEFAULT THEREUNDER RESULTING FROM THE COMPANY'S
BREACH OF SECTION 704 OF THE PUBLIC INDENTURE (UNTIL SUCH TIME AS AN "EVENT OF
DEFAULT" (AS DEFINED IN THE PUBLIC INDENTURE) SHALL HAVE OCCURRED AS A RESULT OF
SUCH BREACH). AFTER GIVING EFFECT TO THE AMENDMENT PROVIDED FOR IN SECTION 1
HEREOF, THE WAIVER PROVIDED FOR IN SECTION 2 HEREOF, AND SUCH AMENDMENT TO AND
WAIVER UNDER THE CREDIT AGREEMENT, NEITHER THE COMPANY NOR ANY OF ITS
SUBSIDIARIES SHALL BE SUBJECT TO ANY REQUIREMENT TO DELIVER OR FURNISH, PRIOR TO
MARCH 31, 2006, ANY FINANCIAL STATEMENTS FOR OR IN RESPECT OF EITHER OF THE
COMPANY'S FISCAL QUARTERS ENDED OCTOBER 2, 2005 OR JANUARY 1, 2006, PURSUANT TO
ANY LOAN AGREEMENT, CREDIT AGREEMENT, INDENTURE, MORTGAGE, DEED OF TRUST, OR
OTHER AGREEMENT OR INSTRUMENT (WHETHER OR NOT RELATING TO BORROWED MONEY
INDEBTEDNESS) TO WHICH IT IS A PARTY OR BY WHICH IT IS BOUND, EXCEPT FOR ANY
OTHER SUCH REQUIREMENT, INCLUDING THE REQUIREMENT SO TO DO PURSUANT TO
SECTION 704 OF THE PUBLIC INDENTURE, THE FAILURE TO COMPLY WITH WHICH PRIOR TO
SUCH DATE COULD NOT REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT.
3.4
NEITHER THE COMPANY NOR ANY OF ITS
SUBSIDIARIES HAS RECEIVED ANY "NOTICE OF DEFAULT" OR OTHER SIMILAR NOTICE FROM
THE TRUSTEE OR ANY HOLDER OF ANY OF THE PUBLIC NOTES WITH RESPECT TO THE
COMPANY'S FAILURE TO DELIVER THE FINANCIAL STATEMENTS FOR EITHER OF THE FISCAL
QUARTERS OF THE COMPANY ENDED OCTOBER 2, 2005 AND JANUARY 1, 2006 WITHIN THE
TIME PROVIDED BY SECTION 704 OF THE PUBLIC INDENTURE.
3.5
NEITHER THE CIRCUMSTANCES DESCRIBED IN THE
NOTIFICATION OF LATE FILING NOR ANY MATTERS THAT HAVE COME TO THE ATTENTION OF
THE COMPANY IN THE COURSE OF THE ONGOING INVESTIGATION INITIATED BY THE COMPANY
IN RESPONSE TO SUCH CIRCUMSTANCES HAVE HAD OR COULD REASONABLY BE EXPECTED TO
HAVE A MATERIAL ADVERSE EFFECT.
3.6
THE COMPANY HAS NO REASON TO BELIEVE THAT IT
WILL NOT BE ABLE, ON OR PRIOR TO MARCH 31, 2006, TO (I) COMPLETE AND FILE WITH
THE SECURITIES AND EXCHANGE COMMISSION THE COMPANY'S QUARTERLY REPORTS ON
FORM 10-Q FOR ITS FISCAL QUARTERS ENDED ON OCTOBER 2, 2005 AND JANUARY 1, 2006,
RESPECTIVELY, AND (II) DELIVER TO THE NOTEHOLDERS THE QUARTERLY FINANCIAL
STATEMENTS