Common use of Modification of Recitals Clause in Contracts

Modification of Recitals. (Section 1(a) of Waiver and First Amendment). 1. Paragraph 3 of Section 1(a) (Recitals) of the Waiver and First Amendment is hereby amended and restated to read as follows: 3. As a result of the Restatements, the Loan Parties: (1) could not finalize and deliver their Annual Financial Statements for their fiscal year ending December 31, 2003 (the “2003 Annual Statements”), and expect that they will not be able to finalize their Annual Financial Statements for their fiscal year ending December 31, 2004 (the “2004 Annual Statements”), by the due dates therefor under Section 7.3.2 of the Credit Agreement and (2) could not finalize and deliver their Quarterly Financial Statements for their fiscal quarters ending March 31, 2004 (the “March 31, 2004 Quarterly Statements”), June 30, 2004 (the “June 30, 2004 Quarterly Statements”), September 30, 2004 (the “September 30, 2004 Quarterly Statements”), March 31, 2005 (the “March 31, 2005 Quarterly Statements”), and expect that they will not be able to finalize and deliver their Quarterly Financial Statements for their fiscal quarters ending June 30, 2005 (the “June 30, 2005 Quarterly Statements”) and September 30, 2005 (the “September 30, 2005 Quarterly Statements”) by the due dates therefor under Section 7.3.1 of the Credit Agreement.” 2. Paragraphs 5 and 6 of Section 1(a) (Recitals) of the Waiver and First Amendment are hereby amended and restated to read as follows: 5. As a result of the Restatements, the Borrower was not able to file its Annual Reports on Form 10-K for 2003 (the “2003 Form 10-K”) or its Annual Report on Form 10-K (the “2004 Form 10-K”) or its Quarterly Reports on Form 10-Q for the fiscal quarters ended March 31, 2004 (the “March 2004 10-Q”), June 30, 2004 (the “June 2004 10-Q”), September 30, 2004 (the “September 2004 10-Q”) and March 31, 2005 (the “March 2005 10-Q”), and is unlikely to file its Quarterly Reports on Form 10-Q for the fiscal quarters ended June 30, 2005 (the “June 2005 10-Q”) and September 30, 2005 (the “September 2005 10-Q”), in a timely manner. That failure might be deemed a violation of Law as contemplated by Sections 5.1.19 and 7.1.9 of the Credit Agreement.

Modification of Recitals. (Section 1(a) of Waiver and First Amendment). 1. Paragraph 3 of Section 1(a) (Recitals) of the Waiver and First Amendment is hereby amended and restated to read as follows: 3. As a result of the Restatements, the Loan Parties: (1) could not finalize and deliver their Annual Financial Statements for their fiscal year ending December 31, 2003 (the “2003 Annual Statements”), and expect that they will not be able to finalize their Annual Financial Statements for their fiscal year ending December 31, 2004 (the “2004 Annual Statements”), by the due dates therefor under Section 7.3.2 of the Credit Agreement and (2) could not finalize and deliver their Quarterly Financial Statements for their fiscal quarters ending March 31, 2004 (the “March 31, 2004 Quarterly Statements”), June 30, 2004 (the “June 30, 2004 Quarterly Statements”), ) or September 30, 2004 (the “September 30, 2004 Quarterly Statements”), March 31, 2005 (the “March 31, 2005 Quarterly Statements”), and expect that they will not be able to finalize and deliver their Quarterly Financial Statements for their fiscal quarters ending March 31, 2005 (the “March 31, 2005 Quarterly Statements”), and June 30, 2005 (the “June 30, 2005 Quarterly Statements”) and September 30, 2005 (the “September 30, 2005 Quarterly Statements”) by the due dates therefor under Section 7.3.1 of the Credit Agreement.” 2. Paragraphs 5 and 6 of Section 1(a) (Recitals) of the Waiver and First Amendment are hereby amended and restated to read as follows: 5. As a result of the Restatements, the Borrower was not able to file its Annual Reports on Form 10-K for 2003 (the “2003 Form 10-K”) or its Annual Report on Form 10-K (the “2004 Form 10-K”) or its Quarterly Reports on Form 10-Q for the fiscal quarters ended March 31, 2004 (the “March 2004 10-Q”), June 30, 2004 (the “June 2004 10-Q”), ) and September 30, 2004 (the “September 2004 10-Q”) ), and is unlikely to file its Annual Report on Form 10-K (the “2004 Form 10-K”), or its Quarterly Reports on Form 10-Q for the fiscal quarters ended March 31, 2005 (the “March 2005 10-Q”), ) and is unlikely to file its Quarterly Reports on Form 10-Q for the fiscal quarters ended June 30, 2005 (the “June 2005 10-Q”) and September 30, 2005 (the “September 2005 10-Q”), in a timely manner. That failure might be deemed a violation of Law as contemplated by Sections 5.1.19 and 7.1.9 of the Credit Agreement.