Bonus and (z) the conditions specified in clauses (D) and (J) of
Section 11.4(c)(vi) shall have been satisfied:
12 Month Period
Ending
Maximum
October 1, 2007 through September 30, 2008
75% of Adjusted EBITDA
for such 12 month period
October 1, 2008 through June 30, 2009
100% of Adjusted EBITDA
for such 12 month period
July 1, 2009 through September 30, 2009
75% of Adjusted EBITDA
for such 12 month period
October 1, 2009 through December 31, 2009
100% of Adjusted EBITDA
for such 12 month period
4
January 1, 2010 through June 30, 2010
75% of Adjusted EBITDA
for such 12 month period
July 1, 2010 through September 30, 2010 and thereafter
50% of Adjusted EBITDA
for such 12 month period
(N)
THE CREDIT AGREEMENT SHALL BE FURTHER AMENDED BY DELETING
EXHIBIT B THEREOF AND REPLACING IT WITH THE EXHIBIT B ATTACHED HERETO AS
ANNEX I.
3.
WAIVER.
(A)
FOR PURPOSES OF THIS WAIVER, THE "EXISTING DEFAULTS" SHALL MEAN
ANY EVENT OF DEFAULT OR UNMATURED EVENT OF DEFAULT EXISTING AS OF THE EFFECTIVE
DATE PURSUANT TO (I) SECTION 13.1.5 OF THE CREDIT AGREEMENT BY VIRTUE OF ANY
BREACH AS OF SEPTEMBER 30, 2009 IN RESPECT OF SECTION 11.12.2 OF THE CREDIT
AGREEMENT, AND (II) SECTION 13.1.5 OF THE CREDIT AGREEMENT BY VIRTUE OF ANY
BREACH OF SECTION 11.13 OF THE CREDIT AGREEMENT IN RESPECT OF THE 12 MONTH
PERIOD ENDED SEPTEMBER 30, 2009.
(B)
SUBJECT TO AND UPON THE TERMS AND CONDITIONS HEREOF AND WITH
EFFECT ON THE EFFECTIVE DATE, THE LENDERS HEREBY WAIVE THE EXISTING DEFAULTS.
(C)
NOTHING CONTAINED HEREIN SHALL BE DEEMED A WAIVER OF (OR OTHERWISE
AFFECT THE LENDERS' ABILITY TO ENFORCE) ANY OTHER DEFAULT OR EVENT OF DEFAULT
UNDER THE CREDIT AGREEMENT, INCLUDING (I) ANY DEFAULT OR EVENT OF DEFAULT AS MAY
NOW OR HEREAFTER EXIST AND ARISE FROM OR OTHERWISE BE RELATED TO (BUT NOT
OTHERWISE CONSTITUTING) THE EXISTING DEFAULTS (INCLUDING WITHOUT LIMITATION ANY
CROSS-DEFAULT ARISING UNDER THE CREDIT AGREEMENT BY VIRTUE OF ANY MATTERS
RESULTING FROM THE EXISTING DEFAULTS), AND (II) ANY DEFAULT OR EVENT OF DEFAULT
ARISING AT ANY TIME AFTER THE EFFECTIVE DATE AND WHICH IS THE SAME AS OR SIMILAR
TO THE EXISTING DEFAULTS.
4.
EFFECTIVENESS.
(A)
THIS AMENDMENT (INCLUDING THE WAIVER AT
SECTION 3) SHALL BECOME EFFECTIVE UPON THE SATISFACTION OF EACH OF THE FOLLOWING
CONDITIONS PRECEDENT (SUCH DATE, THE "EFFECTIVE DATE"):
(I)
THE ADMINISTRATIVE AGENT SHALL HAVE RECEIVED DULY-EXECUTED
COUNTERPART ORIGINALS (OR, IF AGREED BY ADMINISTRATIVE AGENT, FAX OR PDF COPIES)
OF THIS AMENDMENT FROM THE COMPANY AND THE REQUIRED LENDERS.
(II)
THE ADMINISTRATIVE AGENT SHALL HAVE RECEIVED FROM THE COMPANY A
CERTIFICATE SIGNED BY THE SECRETARY, ASSISTANT SECRETARY OR CHIEF FINANCIAL
OFFICER OF THE LOAN PARTIES, DATED THE EFFECTIVE DATE, IN FORM AND SUBSTANCE
SATISFACTORY TO THE ADMINISTRATIVE AGENT, AND CERTIFYING EVIDENCE OF THE
AUTHORIZATION OF THE EXECUTION, DELIVERY AND PERFORMANCE BY THE LOAN PARTIES OF
THIS AMENDMENT AND THE OTHER DOCUMENTS AND AGREEMENTS DELIVERED IN CONNECTION
HEREWITH (TOGETHER, THE "AMENDMENT DOCUMENTS").
5
(III)
THE