Common use of Limited Waiver Clause in Contracts

Limited Waiver. (a) The Loan Parties acknowledge that the Pending Defaults will result from the Borrower’s failure to be able to comply with (i) the financial covenant contained in Section 8.11 of the Existing Credit Agreement for the fiscal quarters ending nearest September 30, 2007 and December 31, 2007, respectively, and (ii) the requirement in Section 7.01(a) of the Existing Credit Agreement that the Borrower’s annual financial statements be accompanied by the opinion of its certified public accountants not subject to a going concern qualification, for the fiscal year ending March 31, 2007. Effective on (and subject to the occurrence of) the Fifth Amendment Effective Date, the Lenders hereby waive the Pending Defaults for the period from September 30, 2007 through and including February 15, 2008 (the “Waiver Period”) for all purposes of the Existing Credit Agreement (including, without limitation, Section 5.02(b) thereof). This limited waiver shall not modify or affect (i) the Borrower’s obligation to comply with the terms of Section 8.11 of the Amended Credit Agreement as measured for the fiscal quarters ending nearest September 30, 2007 and December 31, 2007, respectively, (ii) the Borrower’s obligation to comply with the terms of Section 8.11 of the Amended Credit Agreement as measured at the end of any fiscal quarter other than the ones ending nearest September 30, 2007 and December 31, 2007, (iii) the Borrower’s obligation to comply with the terms of Section 7.01(a) of the Amended Credit Agreement for the fiscal year ending nearest March 31, 2007, (iv) the Borrower’s obligation to comply with the terms of Section 7.01(a) of the Amended Credit Agreement for any fiscal year other than the one ending nearest March 31, 2007, or (iv) the Loan Parties’ obligation to comply fully with any other duty, term, condition, obligation or covenant contained in the Amended Credit Agreement or the other Loan Documents.

Limited Waiver. (a) The Loan Parties acknowledge that Effective as of the Pending Defaults will result Effective Date, Standard Chartered hereby waives any Event of Default pursuant to (i) Section 8(d) of the Letter of Credit Agreement resulting from (A) the Borrower’s failure Borrowers having permitted (x) Consolidated EBIDA for the Reference Period ended on September 30, 2003 to be able less than $6,551,000 and (y) Consolidated EBIDA for the Reference Period ended on October 31, 2003 to be less than $8,680,000, in breach of Section 7(p) of the Letter of Credit Agreement, (B) the Borrowers having permitted (x) the ratio of Consolidated EBIDA to Consolidated Total Interest Expense for the Reference Period ended on September 30, 2003 to be less than 0.62:1.00 and (y) the ratio of Consolidated EBIDA to Consolidated Total Interest Expense for the Reference Period ended on October 31, 2003 to be less than 0.79:1.00, in breach of Section 7(r) of the Letter of Credit Agreement, and (C) the Credit Parties' failure to comply with (i) the financial covenant contained in Section 8.11 of the Existing Credit Agreement for the fiscal quarters ending nearest September 30, 2007 and December 31, 2007, respectively, and (ii) the requirement in Section 7.01(a7(a) of the Existing Credit Agreement that the Borrower’s annual financial statements be accompanied by the opinion Letter of its certified public accountants not subject to a going concern qualification, for the fiscal year ending March 31, 2007. Effective on (and subject to the occurrence of) the Fifth Amendment Effective Date, the Lenders hereby waive the Pending Defaults for the period from September 30, 2007 through and including February 15, 2008 (the “Waiver Period”) for all purposes of the Existing Credit Agreement (including, without limitation, Section 5.02(b) thereof). This limited waiver shall not modify or affect (i) the Borrower’s obligation to comply with the terms of Section 8.11 of the Amended Credit Agreement as measured for the fiscal quarters ending nearest September 30, 2007 and December 31, 2007, respectivelya result of balancing or make-up obligations owed to third parties due to downward adjustments in estimates of crude oil inventory owned by such third parties, (ii) the Borrower’s obligation to comply with the terms of Section 8.11 8(n) of the Amended Letter of Credit Agreement resulting from Link OLP's breaches of the Crude Oil Purchase Agreement and Receivables Purchase Agreement as measured at the end of any fiscal quarter other than the ones ending nearest September 30, 2007 and December 31, 2007set forth in Section 1(b) hereto, (iii) the Borrower’s obligation to comply with the terms of Section 7.01(a8(h) of the Amended Letter of Credit Agreement for resulting from the fiscal year ending nearest March 31, 2007, occurrence of "Events of Default" (under and as defined in the Lehman Credit Agreement) and (iv) the Borrower’s obligation to comply with the terms of Section 7.01(a8(c) of the Amended Letter of Crxxxx Xgreement resulting from the occurrence of any "default" or "event of default" under any Credit Agreement for Document resulting from any fiscal year other than the one ending nearest March 31, 2007, "Event of Default" or "Event of Seller Default" (ivx) the Loan Parties’ obligation to comply fully with any other duty, term, condition, obligation or covenant contained under and as defined in the Amended Letter of Credit Agreement, the Crude Oil Purchase Agreement or the other Receivables Purchase Agreement waived pursuant to this Section 1(a) and (b) or (y) under the Lehman Credit Agreement waived pursuant to the Term Loan DocumentsWaiver.

Limited Waiver. (a) The Loan ACG Parties acknowledge that the Pending Defaults will result from the BorrowerACG Finance’s and ACG’s failure to be able to comply with (i) the financial covenant contained in Section 8.11 5.3 of the Existing Credit Servicing Agreement for the fiscal quarters ending nearest September 30, 2007 and December 31, 2007, respectively, and (ii) the requirement in Section 7.01(a5.01(a) of the Existing Credit Agreement, Section 3.2(a) of the Existing Servicing Agreement and Section 5.1(j)(i) of the Existing Contribution Agreement that the BorrowerACG’s annual financial statements be accompanied by the opinion of its certified public accountants not subject to a going concern qualification, for the fiscal year ending March 31, 2007. Effective on (and subject to the occurrence of) the Fifth Amendment Effective Date, the Lenders hereby waive the Pending Defaults for the period from September 30, 2007 through and including February 15, 2008 (the “Waiver Period”) for all purposes of the Existing Credit Agreement (including, without limitation, Section 5.02(b4.03(b) thereof), the Existing Servicing Agreement and the other Loan Documents. This limited waiver shall not modify or affect (i) the BorrowerACG’s obligation to comply with the terms of Section 8.11 5.3 of the Amended Credit Servicing Agreement as measured for the fiscal quarters ending nearest September 30, 2007 and December 31, 2007, respectively, (ii) the BorrowerACG’s obligation to comply with the terms of Section 8.11 5.3 of the Amended Credit Servicing Agreement as measured at the end of any fiscal quarter other than the ones ending nearest September 30, 2007 and December 31, 2007, (iii) the Borrower’s ACG Parties’ obligation to comply with the terms of Section 7.01(a5.01(a) of the Amended Existing Credit Agreement, Section 3.2(a) of the Existing Servicing Agreement and Section 5.1(j)(i) of the Existing Contribution Agreement for the fiscal year ending nearest March 31, 2007, (iv) the Borrower’s ACG Parties’ obligation to comply with the terms of Section 7.01(a5.01(a) of the Amended Existing Credit Agreement, Section 3.2(a) of the Existing Servicing Agreement and Section 5.1(j)(i) of the Existing Contribution Agreement for any fiscal year other than the one ending nearest March 31, 2007, or (iv) the Loan ACG Parties’ obligation to comply fully with any other duty, term, condition, obligation or covenant contained in the Amended Credit Agreement, the Amended Servicing Agreement or the other Loan Documents.

Limited Waiver. (a) The Loan ACG Parties acknowledge that (A) the Pending Existing Defaults will result from the Borrower’s ACG Parties’ failure to be able to comply with (i) the financial covenant contained in Section 8.11 5.3 of the Existing Credit Servicing Agreement for the fiscal quarters ending nearest September 30, 2007 and December 31, 2007, respectively, and (ii) the requirement in Section 7.01(a5.01(a) of the Existing Credit Agreement, Section 3.2(a) of the Existing Servicing Agreement and Section 5.1(j)(i) of the Existing Contribution Agreement that the BorrowerACG’s annual financial statements be accompanied by the opinion of its certified public accountants not subject to a going concern qualification, for the fiscal year ending March 31, 2007, and (B) the Prospective Defaults will result from the ACG Parties inability to comply with (i) Section 5.01(a) of the Existing Credit Agreement, Section 3.2(a) of the Existing Servicing Agreement and Section 5.1(j)(i) of the Existing Contribution Agreement, with respect to delivery of an opinion by its certified public accountants not subject to a going concern qualification for the fiscal year ending March 31, 2008 and (ii) Section 5.3 of the Existing Servicing Agreement, with respect to the fiscal quarter ending March 31, 2008. Effective on (and subject to the occurrence of) the Fifth Third Amendment Effective Date, the Lenders hereby waive the Pending Continuing Defaults for the period from September 30, 2007 through and including February 15, 2008 the Fxxxx Waiver Termination Date (such period from the Third Amendment Effective Date through and including the Fxxxx Waiver Termination Date being referred to as the “Waiver Period”) for all purposes of the Existing Credit Agreement (including, without limitation, Section 5.02(b4.03(b) thereof), the Existing Servicing Agreement and the other Loan Documents. This limited waiver shall not modify or affect (i) the BorrowerACG’s obligation to comply with the terms of Section 8.11 5.3 of the Amended Credit Existing Servicing Agreement as measured for the fiscal quarters ending nearest September 30, 2007 and 2007, December 31, 2007, and March 31, 2008, respectively, (ii) the BorrowerACG’s obligation to comply with the terms of Section 8.11 5.3 of the Amended Credit Existing Servicing Agreement as measured at the end of any fiscal quarter other than the ones ending nearest September 30, 2007 and 2007, December 31, 2007, and Mxxxx 00, 0000, (iiixxx) the Borrower’s ACG Parties’ obligation to comply with the terms of Section 7.01(a5.01(a) of the Amended Existing Credit Agreement, Section 3.2(a) of the Existing Servicing Agreement and Section 5.1(j)(i) of the Existing Contribution Agreement for the fiscal year years ending nearest March 31, 20072007 and March 31, 2008, respectively, (iv) the Borrower’s ACG Parties’ obligation to comply with the terms of Section 7.01(a5.01(a) of the Amended Existing Credit Agreement, Section 3.2(a) of the Existing Servicing Agreement and Section 5.1(j)(i) of the Existing Contribution Agreement for any fiscal year other than the one ones ending nearest March 31, 20072007 and March 31, 2008, or (iv) the Loan ACG Parties’ obligation to comply fully with any other duty, term, condition, obligation or covenant contained in the Amended Existing Credit Agreement or the other Loan Documents.

Limited Waiver. (a) The Loan Parties acknowledge that the Pending Defaults will result from the Borrower’s failure to be able to comply with (i) the financial covenant contained in Section 8.11 Effective as of the Existing Credit Agreement for the fiscal quarters ending nearest September 30, 2007 and December 31, 2007, respectively, and (ii) the requirement in Section 7.01(a) of the Existing Credit Agreement that the Borrower’s annual financial statements be accompanied by the opinion of its certified public accountants not subject to a going concern qualification, for the fiscal year ending March 31, 2007. Effective on (and subject to the occurrence of) the Fifth Amendment Effective Date, the Term Lenders and the Term Lender Agent hereby waive any Event of Default pursuant to (i) Section 11(d) of the Pending Defaults Lehman Credit Agreement resulting from (A) the Borrowers having pexxxxxxd (x) Consolidated EBIDA for the period from Reference Period ended on September 30, 2007 through 2003 to be less than $6,551,000 and including February 15(y) Consolidated EBIDA for the Reference Period ended on October 31, 2008 (the “Waiver Period”2003 to be less than $8,680,000, in breach of Section 10(o) for all purposes of the Existing Lehman Credit Agreement Agreement, (including, without limitation, Section 5.02(b) thereof). This limited waiver shall not modify or affect (iB) the Borrower’s obligation Borrowers having permitted (x) thx xxxxo of Consolidated EBIDA to comply with Consolidated Total Interest Expense for the terms Reference Period ended on September 30, 2003 to be less than 0.62:1.00 and (y) the ratio of Consolidated EBIDA to Consolidated Total Interest Expense for the Reference Period ended on October 31, 2003 to be less than 0.79:1.00, in breach of Section 8.11 10(q) of the Amended Lehman Credit Agreement, and (C) the Credit Parties' failure to xxxxxy with Section 10(a) of the Lehman Credit Agreement as measured for the fiscal quarters ending nearest September 30, 2007 and December 31, 2007, respectivelya result of [balancing or make-up obligxxxxxx owed to third parties due to downward adjustments in estimates of crude oil inventory owned by such third parties], (ii) the Borrower’s obligation to comply with the terms of Section 8.11 11(n) of the Amended Lehman Credit Agreement resulting from Link OLP's breaches of the Xxxxx Oil Purchase Agreement and Receivables Purchase Agreement as measured at waived by Section 1 of the end of any fiscal quarter other than the ones ending nearest September 30, 2007 and December 31, 2007Loan Waiver, (iii) the Borrower’s obligation to comply with the terms of Section 7.01(a11(h) of the Amended Lehman Credit Agreement for resulting from the fiscal year ending nearest March 31, 2007, occurrence of "Events ox Xxxxult" (under and as defined in the Letter of Credit Agreement) waived by Section 1 of the Loan Waiver and (iv) the Borrower’s obligation to comply with the terms of Section 7.01(a11(c) of the Amended Lehman Credit Agreement for resulting from the occurrence of any fiscal year other than "defaxxx" xr "event of default" under any Credit Document resulting from any Event of Default or Event of Seller Default (x) under the one ending nearest March 31, 2007, Lehman Credit Agreement waived hereby or (ivy) under the Loan Parties’ obligation to comply fully with any other dutyLetter of Cxxxxx Agreement, term, condition, obligation or covenant contained in the Amended Credit Crude Oil Purchase Agreement or the other Receivables Purchase Agreement waived pursuant to Section 1 of the Loan DocumentsWaiver.

Limited Waiver. 3.01 Borrower has informed Lender that Borrower has violated the following covenants contained in the Loan Agreement and has requested that Lender waive such violations: (i) DXP and its Subsidiaries failed to maintain, for the twelve calendar month period ending on June 30, 1999, a Fixed Charge Ratio of not less than the relevant ratio provided for in Section 9.3(A) of the Loan Agreement; (ii) DXP and its Subsidiaries failed to achieve, for the twelve calendar month period ending on June 30, 1999, a Senior Interest Coverage Ratio at least equal to the ratio set forth in Section 9.3(B) of the Loan Agreement; (iii) DXP and its Subsidiaries failed to maintain, as of June 30, 1999, the ratio of (a) The Loan Parties acknowledge that the Pending Defaults will result from the Borrower’s failure Senior Debt of DXP and its Subsidiaries on such date to be able (b) an amount equal to comply with (ix) the financial covenant contained EBITDA of DXP and its Subsidiaries for the twelve calendar month period ending on such date, minus (y) Capital Expenditures made by DXP and its Subsidiaries during such period, of not greater than the ratio set forth in Section 8.11 of the Existing Credit Agreement for the fiscal quarters ending nearest September 30, 2007 and December 31, 2007, respectively, and (ii) the requirement in Section 7.01(a9.3(C) of the Existing Credit Agreement that the Borrower’s annual financial statements be accompanied by the opinion Loan Agreement; and (iv) DXP and its Subsidiaries failed to maintain as of its certified public accountants not subject to a going concern qualification, for the fiscal year ending March 31, 2007. Effective on (and subject to the occurrence of) the Fifth Amendment Effective Date, the Lenders hereby waive the Pending Defaults for the period from September 30, 2007 through and including February 15, 2008 (the “Waiver Period”) for all purposes of the Existing Credit Agreement (including, without limitation, Section 5.02(b) thereof). This limited waiver shall not modify or affect (i) the Borrower’s obligation to comply with the terms of Section 8.11 of the Amended Credit Agreement as measured for the fiscal quarters ending nearest September 30, 2007 and December 31, 2007, respectively, (ii) the Borrower’s obligation to comply with the terms of Section 8.11 of the Amended Credit Agreement as measured at the end of any the fiscal quarter other month ending April 30, 1999, the fiscal month ending May 31, 1999, and the fiscal month ending June 30, 1999, a Fixed Charge Ratio of not less than the ones ending nearest September 30, 2007 and December 31, 2007, (iii) the Borrower’s obligation to comply with the terms of relevant ratio set forth in Section 7.01(a9.3(D) of the Amended Credit Agreement for Loan Agreement. Subject to the fiscal year ending nearest March 31, 2007, (iv) the Borrower’s obligation to comply with the terms of Section 7.01(a) satisfaction of the Amended Credit Agreement for any fiscal year conditions precedent set forth in Section 4.01 of this Amendment and to the other than terms, conditions and provisions of this Amendment, Lender hereby waives each of the one ending nearest March 31, 2007, or (iv) above-described violations of the above-described Sections of the Loan Parties’ obligation Agreement; provided, however, that the waiver described in this Section 3.01 of this Amendment is strictly limited to comply fully with the Sections of the Loan Agreement described above and to the specific occurrences described above. Except as otherwise specifically provided for in this Amendment, nothing contained herein shall be construed as a waiver by Lender of any covenant or provision of the Loan Agreement, the Other Agreements, this Amendment or of any other dutycontract or instrument between Borrower and Lender, termand the failure of Lender at any time or times hereafter to require strict performance by Borrower of any provision thereof shall not waive, conditionaffect or diminish any right of Lender to thereafter demand strict compliance therewith. Lender hereby reserves all rights granted under the Loan Agreement, obligation the Other Agreements, this Amendment and any other contract or covenant contained in the Amended Credit Agreement or the other Loan Documentsinstrument between Borrower and Lender.

Limited Waiver. (a) The Loan Parties acknowledge that the Pending Defaults will result from the Borrower’s failure to be able to comply with (i) the financial covenant contained in Section 8.11 Effective as of the Existing Credit Agreement for the fiscal quarters ending nearest September 30, 2007 and December 31, 2007, respectively, and (ii) the requirement in Section 7.01(a) of the Existing Credit Agreement that the Borrower’s annual financial statements be accompanied by the opinion of its certified public accountants not subject to a going concern qualification, for the fiscal year ending March 31, 2007. Effective on (and subject to the occurrence of) the Fifth Amendment Effective Date, the Term Lenders and the Term Lender Agent hereby waive any Event of Default pursuant to (i) Section 11(d) of the Pending Defaults Term Loan Agreement resulting from (A) the Borrowers having permitted (x) Consolidated EBIDA for the period from Reference Period ended on September 30, 2007 through 2003 to be less than $6,551,000 and including February 15(y) Consolidated EBIDA for the Reference Period ended on October 31, 2008 (the “Waiver Period”2003 to be less than $8,680,000, in breach of Section 10(o) for all purposes of the Existing Credit Agreement Term Loan Agreement, (including, without limitation, Section 5.02(b) thereof). This limited waiver shall not modify or affect (iB) the Borrower’s obligation Borrowers having permitted (x) the ratio of Consolidated EBIDA to Consolidated Total Interest Expense for the Reference Period ended on September 30, 2003 to be less than 0.62:1.00 and (y) the ratio of Consolidated EBIDA to Consolidated Total Interest Expense for the Reference Period ended on October 31, 2003 to be less than 0.79:1.00, in breach of Section 10(q) of the Term Loan Agreement, and (C) the Credit Parties' failure to comply with the terms of Section 8.11 10(a) of the Amended Credit Term Loan Agreement as measured for the fiscal quarters ending nearest September 30, 2007 and December 31, 2007, respectivelya result of balancing or make-up obligations owed to third parties due to downward adjustments in estimates of crude oil inventory owned by such third parties, (ii) the Borrower’s obligation to comply with the terms of Section 8.11 11(n) of the Amended Credit Term Loan Agreement as measured at resulting from Link OLP's breaches of the end Purchase Agreements that are concurrently herewith being waived by Section 1 of any fiscal quarter other than the ones ending nearest September 30, 2007 and December 31, 2007Standard Chartered Waiver, (iii) the Borrower’s obligation to comply with the terms of Section 7.01(a11(h) of the Amended Term Loan Agreement resulting from the occurrence of "Events of Default" (under and as defined in the Letter of Credit Agreement for Agreement) waived by Section 1 of the fiscal year ending nearest March 31, 2007, Standard Chartered Waiver and (iv) the Borrower’s obligation to comply with the terms of Section 7.01(a11(c) of the Amended Term Loan Agreement resulting from the occurrence of any "default" or "event of default" under any Credit Document resulting from any Event of Default or Event of Seller Default (x) under the Term Loan Agreement for any fiscal year other than the one ending nearest March 31, 2007, waived hereby or (ivy) under the Loan Parties’ obligation Letter of Credit Agreement, the Purchase Agreements waived pursuant to comply fully with any other duty, term, condition, obligation or covenant contained in Section 1 of the Amended Credit Agreement or the other Loan DocumentsStandard Chartered Waiver.