each period of two consecutive fiscal
quarters (on a rolling basis) ending on or after September 30, 2009; provided,
further, for each period of two consecutive fiscal quarters (on a rolling basis)
ending on or after September 30, 2008, for purposes of determining compliance
with this Section 6.8(b), Net Income shall be calculated so that, to the extent
in calculating Net Income for such period Net Income was decreased by noncash
expenses consisting of (i) amortization for customer relationships and
non-compete agreements, (ii) original issue discount on the Senior Secured
Notes, (iii) deferred financing costs, and (iv) reduction in value of intangible
assets, the amounts which were deducted in calculating Net Income for such
period for the items described in clauses (i) through (iv) above shall be added
back to Net Income as calculated in accordance with GAAP.
3.
CONDITION OF EFFECTIVENESS.
THIS
AMENDMENT SHALL BECOME EFFECTIVE UPON SATISFACTION OF THE FOLLOWING CONDITIONS
PRECEDENT:
(A)
AGENT SHALL HAVE RECEIVED FOUR (4) COPIES
OF THIS AMENDMENT EXECUTED BY BORROWER, VERRAZANO, AGENT AND LENDERS.
(B)
AGENT SHALL HAVE RECEIVED AN ADMINISTRATIVE
FEE EQUAL TO $10,000 WHICH SHALL BE CHARGED BY AGENT TO BORROWER'S ACCOUNT AND
SHALL BE SHARED PRO RATA BY LENDERS BASED UPON THEIR RESPECTIVE COMMITMENT
PERCENTAGES.
(C)
ALL REASONABLE OUT-OF-POCKET COSTS AND
EXPENSES INCURRED BY AGENT IN CONNECTION WITH THIS AMENDMENT OR WITH THE
FINANCING AGREEMENT, INCLUDING WITHOUT LIMITATION ATTORNEYS FEES AND
DISBURSEMENTS, SHALL HAVE BEEN PAID BY BORROWER.
4.
REPRESENTATIONS AND WARRANTIES.
BORROWER AND VERRAZANO EACH HEREBY REPRESENTS AND WARRANTS AS FOLLOWS:
(A)
THIS AMENDMENT AND THE FINANCING AGREEMENT,
AS AMENDED HEREBY, CONSTITUTE ITS LEGAL, VALID AND BINDING OBLIGATIONS AND ARE
ENFORCEABLE AGAINST IT IN ACCORDANCE WITH THEIR RESPECTIVE TERMS.
(B)
UPON THE EFFECTIVENESS OF THIS AMENDMENT, IT
HEREBY REAFFIRMS, IN ALL MATERIAL RESPECTS, ALL REPRESENTATIONS, WARRANTIES AND
COVENANTS MADE IN THE FINANCING AGREEMENT ON AND AS OF THE DATE HEREOF EXCEPT:
(I) TO THE EXTENT SUCH REPRESENTATION, WARRANTIES OR COVENANTS ARE LIMITED BY
THEIR TERMS TO A SPECIFIC DATE IN WHICH CASE THEY SHALL BE TRUE AND CORRECT IN
ALL MATERIAL RESPECTS AS OF SUCH DATE OR (II) FOR CHANGES IN THE NATURE OF ITS
BUSINESS OR
2
OPERATIONS THAT MAY OCCUR AFTER THE CLOSING DATE IN THE ORDINARY COURSE OF
BUSINESS SO LONG AS AGENT HAS CONSENTED TO SUCH CHANGES OR SUCH CHANGES ARE NOT
IN VIOLATION OF ANY PROVISION OF THE FINANCING AGREEMENT OR ANY OTHER DOCUMENT.
(C)
NO EVENT OF DEFAULT OR DEFAULT HAS OCCURRED
AND IS CONTINUING OR WOULD EXIST AFTER GIVING EFFECT TO THIS AMENDMENT.
(D)
IT DOES NOT HAVE ANY DEFENSE, COUNTERCLAIM
OR OFFSET WITH RESPECT TO THE FINANCING AGREEMENT.
5.
EFFECT ON THE FINANCING AGREEMENT.
(A)
UPON THE EFFECTIVENESS OF SECTION 2 HEREOF,
EACH REFERENCE IN THE FINANCING AGREEMENT TO "THIS AGREEMENT," "HEREUNDER,"
"HEREOF," "HEREIN" OR WORDS OF LIKE IMPORT SHALL MEAN AND BE A REFERENCE TO THE
FINANCING AGREEMENT AS AMENDED HEREBY.
(B)
EXCEPT AS SPECIFICALLY AMENDED HEREIN, THE
FINANCING AGREEMENT, AND ALL OTHER DOCUMENTS, INSTRUMENTS AND AGREEMENTS
EXECUTED