in compliance with this covenant for the fiscal quarter ending February 28,
2007.
(f)
Fixed Charge Coverage Ratio.
Under Section 6.19 of the Credit Agreement,
the Borrowers' Agent agreed not to permit the Fixed Charge Coverage Ratio, as of
the last day of any fiscal quarter for the four consecutive fiscal quarters
ending on that date, to be less than a specified amount.
For the quarter ending
February 28, 2007, the Borrowers' Agent agreed not to permit the Fixed Charge
Coverage Ratio to be less than 1.0 to 1.0.
The Borrowers' Agent has informed
the Administrative Agent that it was not in compliance with this covenant for
the fiscal quarter ending February 28, 2007.
4.2
WAIVER.
(A)
UPON THE DATE ON WHICH THIS AMENDMENT BECOMES EFFECTIVE, THE LENDERS
HEREBY WAIVE THE DEFAULTS AND EVENTS OF DEFAULT DESCRIBED IN THE PRECEDING
SECTION 4.1 (THE "EXISTING DEFAULTS"); PROVIDED, HOWEVER, THAT THE
5
WAIVERS SET FORTH HEREIN WITH RESPECT TO THE DEFAULTS DESCRIBED IN SECTION
4.1(A) ARE SUBJECT TO THE REMEDIATION OF THE ENVIRONMENTAL VIOLATIONS THAT LED
TO THE ISSUANCE OF THE NOTICES OF VIOLATION NO LATER THAN MARCH 1, 2008 AND THE
PROMPT COMMUNICATION OF ANY AND ALL MATERIAL DEVELOPMENTS WITH RESPECT THERETO.
(B)
THE WAIVER OF THE EXISTING DEFAULTS SET FORTH IN SECTION 4.1 ABOVE ABOVE
IS LIMITED TO THE EXPRESS TERMS THEREOF, AND NOTHING HEREIN SHALL BE DEEMED A
WAIVER BY THE LENDERS OF ANY OTHER TERM, CONDITION, REPRESENTATION OR COVENANT
APPLICABLE TO THE BORROWERS UNDER THE CREDIT AGREEMENT (INCLUDING BUT NOT
LIMITED TO ANY FUTURE OCCURRENCE SIMILAR TO THE EXISTING DEFAULTS) OR ANY OF THE
OTHER AGREEMENTS, DOCUMENTS OR INSTRUMENTS EXECUTED AND DELIVERED IN CONNECTION
THEREWITH, OR OF THE COVENANTS DESCRIBED THEREIN.
THE WAIVERS SET FORTH HEREIN
SHALL NOT CONSTITUTE A WAIVER BY ANY LENDER OF ANY OTHER DEFAULT OR EVENT OF
DEFAULT, IF ANY, UNDER THE CREDIT AGREEMENT, AND SHALL NOT BE, AND SHALL NOT BE
DEEMED TO BE, A COURSE OF ACTION WITH RESPECT THERETO UPON WHICH ANY BORROWER
MAY RELY IN THE FUTURE, AND EACH BORROWER HEREBY EXPRESSLY WAIVES ANY CLAIM TO
SUCH EFFECT.
(C)
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE CREDIT AGREEMENT, THE
COMPLIANCE CERTIFICATE FOR THE FISCAL QUARTER ENDING MAY 31, 2008 SHALL BE
PROVIDED TO LENDERS NO LATER THAN JUNE 29, 2008.
SECTION 5.
REPRESENTATIONS, WARRANTIES, AUTHORITY, NO ADVERSE CLAIM.
5.1
REASSERTION OF REPRESENTATIONS AND WARRANTIES, NO DEFAULT.
EACH BORROWER
HEREBY REPRESENTS THAT ON AND AS OF THE DATE HEREOF AND AFTER GIVING EFFECT TO
THIS AMENDMENT (A) ALL OF THE REPRESENTATIONS AND WARRANTIES CONTAINED IN THE
CREDIT AGREEMENT ARE TRUE, CORRECT AND COMPLETE IN ALL RESPECTS AS OF THE DATE
HEREOF AS THOUGH MADE ON AND AS OF SUCH DATE, EXCEPT FOR CHANGES PERMITTED BY
THE TERMS OF THE CREDIT AGREEMENT, AND (B) THERE WILL EXIST NO DEFAULT OR EVENT
OF DEFAULT UNDER THE CREDIT AGREEMENT AS AMENDED BY THIS AMENDMENT ON SUCH DATE
WHICH HAS NOT BEEN WAIVED BY THE LENDERS.
5.2
AUTHORITY, NO CONFLICT, NO CONSENT REQUIRED. EACH