Common use of Contingent Payments Clause in Contracts

Contingent Payments. (a) Following the Closing and as additional consideration for the Securities, Buyer shall make, or cause the Acquired Entities to make, to Sellers (subject to the terms and conditions set forth in this Section 1.4) additional cash payments based on the performance of the Acquired Entities during each of the twelve month periods ending (i) December 31, 2006, (ii) December 31, 2007, (iii) December 31, 2008 and (iv) December 31, 2009 (each, a “Contingent Payment Period”). With respect to each Contingent Payment Period, Buyer shall make, or cause the Acquired Entities to make, to Sellers cash payments in an aggregate amount equal to the amount, if any, by which EBITDA during such Contingent Payment Period exceeds $8,000,000 (each such excess, if and to the extent earned for any such Contingent Payment Period, a “Contingent Payment”). The Contingent Payment, if any, for each Contingent Payment Period shall be paid by Buyer or (at Buyer’s direction) the Acquired Entities as follows: (A) Buyer or (at Buyer’s direction) the Acquired Entities shall pay to each Seller an amount equal to 50% of such Seller’s Pro Rata Share of such Contingent Payment in accordance with Section 1.4(b) below and (B) Buyer or (at Buyer’s direction) the Acquired Entities shall pay to each Seller an amount equal to 50% of such Seller’s Pro Rata Share of such Contingent Payment on April ___, 2012.

Contingent Payments. For a period of five (5) years from the Closing Date, Buyer shall pay to Seller a contingent payment of $1.00 for each Paid Registration in excess of 100,000 Paid Registrations during each twelve (12) month period (or such lesser period described below) ending June 30th (the “Contingent Payments”); provided, however, that (a) Following for the period commencing on the Closing Date and as additional consideration for ending on June 30, 2006, the Securities, Buyer number of Paid Registrations which must be exceeded before a Contingent Payment is payable shall make, or cause the Acquired Entities to make, to Sellers (subject to the terms and conditions set forth in this Section 1.4) additional cash payments be prorated based on the performance number of days in such period, (b) for the period commencing on July 1, 2010 and ending on the fifth anniversary of the Acquired Entities during each Closing Date, the number of Paid Registrations which must be exceeded before a Contingent Payment is payable shall be prorated based on the number of days in such period, and (c) no Contingent Payments shall be payable with respect to Paid Registrations arising after the fifth anniversary of the twelve month periods ending Closing Date (iother than for Paid Registrations relating to scans made prior to such date and for which payment is received by Buyer with ninety (90) December 31, 2006, (ii) December 31, 2007, (iii) December 31, 2008 and (iv) December 31, 2009 (each, a “Contingent Payment Period”days of such date). With respect to each Contingent Payment Period, Buyer shall make, or cause the Acquired Entities to make, to Sellers cash payments in an aggregate amount equal to the amount, if any, by which EBITDA during such Contingent Payment Period exceeds $8,000,000 (each such excess, if and to the extent earned for any such Contingent Payment Period, a “Contingent Payment”). The Contingent PaymentPayments, if any, for each Contingent Payment Period any period shall be paid by Buyer within ninety (90) days of the end of such period or if the threshold for making a Contingent Payment has been satisfied during such twelve (12) month period, within forty-five (45) days after the end of each quarter during such period, commencing with the quarter in which such threshold is satisfied. Buyer shall furnish to Seller, within ninety (90) days of the end of each twelve (12) month period (or such lesser period) as described above, or such earlier date upon which a Contingent Payment is made, a written Paid Registration and Contingent Payments report setting forth information relating to the determination of the amount of the Contingent Payments for the period. The report shall be certified by the Director of Finance or Chief Financial Officer of the Buyer. During the five (5) year period in which Contingent Payments apply and for a period of two (2) years thereafter, Buyer shall keep accurate and complete records in sufficient detail to enable the Contingent Payments payable under this Agreement to be determined. During such five (5) years and for a period of two (2) years thereafter, Seller may, upon reasonable notice and subject to the execution of a confidentiality agreement in form satisfactory to Buyer, appoint, at its expense, a member or other employee of a national accounting firm to audit Buyer’s directionbooks and records, not more than one time during any twelve (12) month period, relative to Paid Registrations and Contingent Payments reasonably necessary to determine the Acquired Entities Contingent Payments payable under this Agreement. If as follows: (A) Buyer or (at Buyer’s direction) the Acquired Entities shall pay to each Seller an amount equal to 50% a result of such audit. Seller disputes the amount of Contingent Payments made by Buyer for the applicable period, Seller shall, within thirty (30) days of the completion of such audit, notify Buyer in writing of each disputed item, specifying the amount thereof in dispute and setting forth, in reasonable detail, the basis for such dispute, and providing Buyer with a copy of the complete audit report prepared by such accounting firm. In the event of such a dispute, Buyer and Seller shall attempt to resolve in good faith any disputed items and reach a written agreement with respect thereto. If Buyer and Seller are unable to reach a resolution within thirty (30) days after receipt by Buyer of Seller’s Pro Rata Share written notice of such dispute, Buyer and Seller shall submit the items remaining in dispute for final binding resolution to the New York office of an independent national accounting firm as may be mutually acceptable to Buyer and Seller (the “Arbitrating Accountants”), the cost and expenses of which shall be shared equally by Buyer and Seller (or the Shareholders based on their respective Indemnity Percentages). If the disputed items are referred to the Arbitrating Accountants, the Contingent Payment Payments under dispute shall be determined by the Arbitrating Accountants. Such determination shall be (i) in writing, (ii) furnished to Buyer and Seller as soon as practicable, but in no event later than sixty (60) days from the date of submission to the Arbitrating Accountants, (iii)made in accordance with Section 1.4(b) below this Agreement, and (Biv) nonappealable by the Shareholders, Seller and Buyer or any of their respective Affiliates and successors and not to be subject to collateral attack for any reason other than manifest error or fraud. In the event that the parties agree, or the Arbitrating Accountants, determine, that a shortfall in the payment of Contingent Payments for any twelve (at Buyer’s direction12) month period (or such lesser period described above) of the Acquired Entities Contingent Payment due for such period occurred, Buyer shall pay such shortfall within fourteen (14) days of demand to each Seller. In addition, should the shortfall be greater than five percent (5%) of the Contingent Payment Buyer shall pay Seller an amount equal the reasonable costs of the audit undertaken with respect to 50% the determination of such Seller’s Pro Rata Share of such Contingent Payment on April ___, 2012shortfall.

Contingent Payments. (a) Following In addition to all other payments owed by the Closing Companies under this Note, commencing with October 15, 2008, and as additional consideration for the Securities, Buyer shall make, or cause the Acquired Entities to make, to Sellers (subject to the terms and conditions set forth in this Section 1.4) additional cash payments based on the performance fifteenth (15th) day of each calendar month thereafter (each a “Contingent Payment Date”), through and including October 15, 2018 (the Acquired Entities during each of the twelve month periods ending (i) December 31, 2006, (ii) December 31, 2007, (iii) December 31, 2008 and (iv) December 31, 2009 (each, a “Contingent Payment Period”). With respect , the Companies agree to each Contingent Payment Periodpay the Holder, Buyer shall makein the aggregate, or cause the Acquired Entities to make, to Sellers cash payments in an aggregate amount of interest equal to 1.5% of the amountgross revenues generated by the Companies during the immediately preceding month on a consolidated basis less any amounts, if anyas paid by the Companies to third parties that are accounted for by the Companies as cost of goods sold or commissions, in each case as approved by which EBITDA during the Holder in writing and supported by such Contingent Payment Period exceeds $8,000,000 documentation as reasonably requested by the Holder (each such excess, if and to the extent earned for any such Contingent Payment Period, a “Contingent Payment”). The Contingent Payment, if any, for each Contingent Payment Period shall be paid by Buyer or (at Buyer’s direction) the Acquired Entities as follows: (A) Buyer or (at Buyer’s direction) the Acquired Entities shall pay to each Seller an amount equal to 50% of such Seller’s Pro Rata Share of such Contingent Payment in accordance with Section 1.4(bthe wire instructions set forth on Exhibit B hereto. Notwithstanding the foregoing, absent the occurrence and continuance of an Event of Default, the Companies may, at their option, pay up to twenty percent (20%) below and (B) Buyer or (at Buyer’s direction) the Acquired Entities shall pay to each Seller an amount equal to 50% of such Seller’s Pro Rata Share of such Contingent Payment on April ___each Contingent Payment Date in common shares of Parent in an amount equal in the aggregate to the remainder of (a) an amount up to twenty percent (20%) of the Contingent Payment due on such Contingent Payment Date, 2012divided by, (b) the average closing price of the common shares of Parent for the twenty (20) consecutive trading days immediately preceding such Contingent Payment Date as quoted on the applicable Principal Market for the common shares of Parent (the “Parent Share Amount”), so long as the Parent Share Amount is equal to less than twenty-five percent (25%) of the average number of common shares of Parent traded per day for the twenty (20) consecutive trading days immediately preceding such Contingent Payment Date, provided, however, that notwithstanding the fact the Parent Share Amount is greater than or equal to twenty-five percent (25%) of the average number of common shares of Parent traded per day for the twenty (20) consecutive trading days immediately preceding such Contingent Payment Date, the Companies may, at their option pay up to ten percent (10%) of such Contingent Payment on each such Contingent Payment Date in accordance with the preceding calculation (absent the occurrence and continuance of an Event of Default). In the event that the Companies elect to pay the Contingent Payment in common shares of Parent (as more specifically set forth above), the Companies shall deliver written notice to the Holder not less than ten (10) Business Days prior to the proposed Contingent Payment Date informing the Holder of such election.

Contingent Payments. (a) Following Subject to Article IX, the Closing and as additional consideration for the Securities, Buyer Purchaser shall make, or cause the Acquired Entities to make, to Sellers (subject pay to the terms and conditions set forth in Selling Holders any payment that may become due to the Selling Holders pursuant to the provisions of this Section 1.4) additional cash payments based on the performance of the Acquired Entities during each of the twelve month periods ending (i) December 31, 2006, (ii) December 31, 2007, (iii) December 31, 2008 and (iv) December 31, 2009 (each, a “Contingent Payment Period”). With respect to each Contingent Payment Period, Buyer shall make, or cause the Acquired Entities to make, to Sellers cash payments in an aggregate amount equal to the amount, if any, by which EBITDA during such Contingent Payment Period exceeds $8,000,000 1.6 (each such excess, if and to the extent earned for any such Contingent Payment Period, a “Contingent Payment” and collectively the “Contingent Payments”), less any amount that the Purchaser shall be entitled to retain and set off pursuant to Section 9.4(a), within fifteen (15) Business Days following the date of receipt by the Purchaser of the Selling Holder Contingent Payment Instructions (as defined below) with respect to the applicable Contingent Payment; provided, that in the case of any payment due under Section 1.6(f) or Section 1.6(g), such payment shall be due and paid contemporaneously with the Net Sales report required to be delivered pursuant to Section 1.8 for the fourth calendar quarter of the calendar year in which the described event occurs, subject to receipt by the Purchaser of the Selling Holder Contingent Payment Instructions with respect to the applicable Contingent Payment(s) at least ten (10) Business Days prior to the date on which such payment is payable. The Purchaser shall notify the Selling Holder Representative within ten (10) Business Days of the Business Day on which a Contingent Payment becomes due under Section 1.6(a) through Section 1.6(e), including notification of any amount that the Purchaser shall be entitled to retain and set off pursuant to Section 9.4(a). No later than five (5) Business Days following the date of receipt of such notice, and at least ten (10) Business Days prior to any payment due under Section 1.6(f) or (g), the Selling Holder Representative shall provide Purchaser with a certificate, executed by the Selling Holder Representative, certifying to and setting forth the allocation of such Contingent Payment, less any amount that the Purchaser shall be entitled to retain and set off pursuant to Section 9.4(a), among the Selling Holders determined in the manner provided in Exhibit 1.4B and Section 10.1(h) (any such instructions, the “Selling Holder Contingent Payment Instructions”). The Contingent Payment, if any, for Each Selling Holder shall receive that portion of each Contingent Payment Period specified in the Selling Holder Contingent Payment Instructions. Any such payment made to a Selling Holder pursuant to this Section 1.6 shall be made to such Selling Holder in immediately available funds to the account of such Selling Holder listed on Exhibit 1.4C. The Purchaser shall be entitled to rely in all respects on any Selling Holder Contingent Payment Instructions and shall not be liable to, or be obligated to make any payments to, any Selling Holder except as set forth in any Selling Holder Contingent Payment Instructions. Subject to the final paragraph of this Section 1.6, all payments to the Selling Holders under this Section 1.6 are one-time payments, and once a payment is triggered under a subsection of this Section 1.6, no further or other payment shall be triggered or paid under such subsection, regardless of the number of times [****] = Certain confidential information contained in this document, marked by Buyer brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. the described event occurs. Notwithstanding anything to the contrary contained herein, the Purchaser’s obligation to make any payments to the Selling Holders pursuant to Section 1.6 shall terminate on the ten (10) year anniversary of the Closing Date; provided, however, that in the event that the payments pursuant to clauses (a) through (c) and either (d) or (at Buyere) of this Section 1.6 become payable on or prior to such date, the Purchaser’s directionobligation to make any payments to the Selling Holders pursuant to clauses (f) the Acquired Entities as follows: (A) Buyer or (at Buyer’s direction) the Acquired Entities shall pay to each Seller an amount equal to 50% of such Seller’s Pro Rata Share of such Contingent Payment in accordance with Section 1.4(b) below and (Bg) Buyer or of this Section 1.6 shall terminate on the fifteen (at Buyer’s direction15) year anniversary of the Acquired Entities Closing Date. The obligation of the Purchaser to make Contingent Payments shall pay to each Seller an amount equal to 50% of such Seller’s Pro Rata Share of such Contingent Payment on April ___, 2012.occur upon the following events:

Contingent Payments. (a) Following Subject to Buyer’s right to off-set the Closing and Earnout Payments as additional consideration for the Securities, Buyer shall make, or cause the Acquired Entities to make, to Sellers (subject to the terms and conditions set forth in this Section 1.4) additional cash payments based on Agreement, during the performance of the Acquired Entities during each of the twelve month periods ending (i) December 31, 2006, (ii) December 31, 2007, (iii) December 31, 2008 and (iv) December 31, 2009 (each, a “Contingent Payment Period”). With respect to each Contingent Payment Period, Buyer shall makewill pay to Seller an amount equal to eight percent of the Annual Sales for each Measuring Year (the “Contingent Payments”). In the case of Contingent Payments to be made with respect to the first three Measuring Years during the Contingent Payment Period, Buyer will make such payments on a quarterly basis (equal to the greater of (i) eight percent of Net Sales during the applicable fiscal quarter or cause (ii) $1,675,000) to Seller, by wire transfer of immediately available funds to such account as directed by Seller, within 30 days following the Acquired Entities end of each fiscal quarter during the applicable Measuring Year. Notwithstanding the foregoing, with respect to makethe first Measuring Year, the minimum Contingent Payment will be pro rated based on a fraction, the numerator of which equals the number of days elapsed between the Closing Date through and including June 30, 2017 and the denominator of which equals 365, and, to Sellers cash payments the extent such pro ration results in Seller receiving less than the minimum Contingent Payment for such first Measuring Year, Buyer will pay Seller an aggregate amount equal to the amount, if any, by which EBITDA during such difference between what the Seller received and the minimum Contingent Payment Period exceeds $8,000,000 for such first Measuring Year within 30 days following the end of the second fiscal quarter of the fourth Measuring Year (each such excesspayment, if and to the extent earned for any such Contingent Payment Period, a “Catch-up Contingent Payment”). The Notwithstanding the foregoing, if the Contingent Payment in any of the first three Measuring Years would be less than $6,700,000 (as pro rated for the first Measuring Year) based upon the calculation of Net Sales set forth above, then the Contingent Payment for the applicable Measuring Year will be deemed to be $6,700,000 (as pro rated for the first Measuring Year) (each such Contingent Payment during the first three Measuring Years, and the Catch-up Contingent Payment, if anyeach a “Guaranteed Payment”); provided, for each however, that Buyer will have the right to off-set the difference between $6,700,000 and the amount that would have otherwise been payable in the absence of this minimum threshold against any future Earnout Payments that are not Guaranteed Payments. In no event will the sum of all Contingent Payment Period shall be paid by Buyer or (at Buyer’s direction) the Acquired Entities as follows: (A) Buyer or (at Buyer’s direction) the Acquired Entities shall pay to each Seller an amount equal to 50% of such Seller’s Pro Rata Share of such Contingent Payment in accordance with Section 1.4(b) below and (B) Buyer or (at Buyer’s direction) the Acquired Entities shall pay to each Seller an amount equal to 50% of such Seller’s Pro Rata Share of such Contingent Payment on April ___, 2012Payments made hereunder exceed $160,000,000.

Contingent Payments. Jazz Casino Company, L.L.C., a Louisiana limited liability company (athe "Company"), promises to pay Contingent Payments, if any are due and payable pursuant to and in accordance with the terms of this Security and the Indenture, at the places, on the dates and in the manner provided in this Security and the Indenture. The first Contingent Payment Date shall be May 15, 1999 and the final Contingent Payment Date shall be _________ ___, 2009. Contingent Payments, if any, paid or accrued in respect of this Security shall be comprised of, in part, a payment of Principal and, in part, a payment of Interest thereon at 16% per annum from the Issue Date (with semi-annual compounding) Following in accordance with Section 5.1 of the Closing Indenture. Contingent Payments on this Security, if any are due and as additional consideration for payable pursuant to and in accordance with the Securitiesterms of this Security and the Indenture, Buyer shall makewill be payable semiannually on May 15 and November 15, or cause the Acquired Entities to makecommencing May 15, 1999, to Sellers (subject to the terms and conditions set forth person in whose name this Section 1.4) additional cash payments based Security is registered at the close of business on the performance of the Acquired Entities during each of the twelve month periods ending (i) December 31May 1 or November 1, 2006, (ii) December 31, 2007, (iii) December 31, 2008 and (iv) December 31, 2009 preceding such Contingent Payment Date (each, a “Contingent Payment Period”"Record Date"). With respect to The Company will pay on each Contingent Payment PeriodDate to the Holder of this Security at the close of business on the immediately preceding Record Date such Holder's pro rata share of the aggregate Contingent Payments paid on such Contingent Payment Date. Each Holder's pro rata share of the aggregate Contingent Payments will be determined by dividing (i) the aggregate Notational Amount of the Securities owned by such Holder on the immediately preceding Record Date by (ii) the aggregate Notational Amount of all of the Securities outstanding on such Record Date. For purposes of determining accrued Contingent Payments due and payable with respect to a First Semiannual Period or a Second Semiannual Period prior to the completion of such period, Buyer such Contingent Payments due and payable shall make, or cause the Acquired Entities to make, to Sellers cash payments in an aggregate amount be equal to the amountPartial Period Contingent Payments. To the extent it is lawful, if any, by which EBITDA during such the Company promises to pay interest on any Contingent Payment Period exceeds $8,000,000 (each such excess, if and to the extent earned for any such Contingent Payment Period, due but unpaid at a “Contingent Payment”). The Contingent Payment, if any, for each Contingent Payment Period shall be paid by Buyer or (at Buyer’s direction) the Acquired Entities as follows: (A) Buyer or (at Buyer’s direction) the Acquired Entities shall pay to each Seller an amount equal to 50rate of 8% of such Seller’s Pro Rata Share of such Contingent Payment in accordance with Section 1.4(b) below and (B) Buyer or (at Buyer’s direction) the Acquired Entities shall pay to each Seller an amount equal to 50% of such Seller’s Pro Rata Share of such Contingent Payment on April ___, 2012per annum compounded semi-annually.

Contingent Payments. (a) Following If the Closing and as additional consideration for Company receives any Contingent Payment after the Securities, Buyer shall make, or cause the Acquired Entities to make, entire Contingent Payment Escrow Account has been paid to Sellers and Former Option Holders (subject or a Contingent Payment at the same time as or in connection with a payment that requires the release of the remaining portions of the Contingent Payment Escrow Account that may be released in connection with receipt of Contingent Payments), the Company (a) shall, within a reasonable period of time, notify the Seller Representative of such payment and (b) shall pay to the terms Sellers and conditions set forth Former Option Holders in this Section 1.4accordance with their respective Allocable Portion within seven (7) additional cash payments based on days after the performance of applicable Contingent Payment has been paid to the Acquired Entities during each of the twelve month periods ending Company (i) December 31, 2006, 50% of such new Contingent Payment (or 50% of the Contingent Payment that is greater than the remaining portions of the Contingent Payment Escrow Account that may be released in connection with receipt of Contingent Payments) minus (ii) December 31without duplication of fees described in the definition of Contingent Payment, 2007any contingent or success fees paid to counsel for the Company in connection with the termination claim related to the CATSA contract. If the Company receives any Contingent Payment(s) after any amounts remaining in the Contingent Payment Escrow Account are released to the Purchaser pursuant to the Escrow Agreement (such amounts released, (iii) December 31, 2008 and (iv) December 31, 2009 (each, a the “Contingent Payment PeriodReleased Amount”). With respect , the Company (x) shall, within a reasonable period of time, notify the Seller Representative of such payment and (y) shall pay to each the Sellers and Former Option Holders in accordance with their respective Allocable Portion within seven (7) days after the applicable Contingent Payment Period, Buyer shall make, or cause has been paid to the Acquired Entities to make, to Sellers cash payments in Company (i) (A) an aggregate amount equal to the amount, if any, by which EBITDA during each such Contingent Payment Period exceeds $8,000,000 until the aggregate amount paid to the Sellers and the Former Option Holders pursuant to this clause (each such excessi) (A) is equal to the Contingent Payment Released Amount (and, in the case of any Contingent Payment that, if and paid to the extent earned for any Sellers and Former Option Holders pursuant to this clause (i) (A), would cause the Sellers and Former Option Holders to receive an amount in excess of the Contingent Payment Released Amount, then a portion of such Contingent Payment Period, a “Contingent Payment”). The Contingent Payment, if any, for each equal to the Contingent Payment Period shall be paid by Buyer or Released Amount), and, thereafter, (at Buyer’s directionB) the Acquired Entities as follows: (A) Buyer or (at Buyer’s direction) the Acquired Entities shall pay to each Seller an amount equal to 50% of any such Seller’s Pro Rata Share Contingent Payment, in each case minus (ii) without duplication of fees described in the definition of Contingent Payment, any contingent or success fees paid to counsel for the Company in connection with the termination claim related to the CATSA contract. The amounts payable to Sellers shall constitute Purchase Price and the amounts payable to the Former Option Holders shall constitute additional Option Termination Payments which shall be subject to applicable withholdings as set forth in each Option Termination Agreement. The Company shall (A) keep the Seller Representative reasonably informed with respect to its collection of the Contingent Payments after the Closing, (B) use commercially reasonable efforts to pursue the collection of the Contingent Payments, but shall not be obligated to use more efforts than the Parent uses to collect its own receivables and shall have no obligation to engage a collection agency, and (C) notify Seller Representative of any material changes in the efforts to collect the Contingent Payments and the status of such Contingent Payment collection efforts. If the Company determines at any time after the Closing that it no longer intends to pursue the termination claim related to the CATSA contract, it shall, within five (5) business days after such determination, assign such claim to the Seller Representative to pursue such Claim on behalf of the Company, the Sellers and Former Option Holders. Any amounts collected after any such assignment shall be paid to the Company, the Sellers and Former Option Holders in accordance with Section 1.4(b) below and (B) Buyer the formula set forth above; provided that if any amounts are collected after such assignment, the Seller Representative shall first, before making any other payments or (at Buyer’s direction) the Acquired Entities shall pay to each Seller an amount equal to 50% distributions of such Seller’s Pro Rata Share amounts, reimburse the Parent and the Company for all then unreimbursed costs of collection in connection with such claim, including without limitation court costs and reasonable attorneys’, accountants’ and experts’ fees and expenses. If, thereafter, the Company or Seller Representative actually receives payment of any Contingent Payments, such amounts shall be paid to the Sellers, Former Option Holders and the Company as provided in the Escrow Agreement and this Section 2.7, provided that costs of collection after assignment shall be reimbursed by the Person(s) advancing or incurring such expenses. Whether or not the Company assigns such claim to the Seller Representative, the Parent shall use commercially reasonable efforts to ensure that Xxxxxxxxxxx Xxxxxxxxxxx and other employees of the Company with direct knowledge of the factual background of such Contingent Payment on April ___claim (so long as they are employees of the Parent or one or its Affiliates) are available to assist the Company and the Seller Representative in connection with such claim (e.g., 2012available to meet with counsel for the Company and the Seller Representative, attend depositions and testify).

Contingent Payments. Jazz Casino Company, L.L.C., a Louisiana limited liability company (athe "Company"), promises to pay Contingent Payments, if any are due and payable pursuant to and in accordance with the terms of this Security and the Indenture, at the places, on the dates and in the manner provided in this Security and the Indenture. The first Contingent Payment Date shall be May 15, 1999 and the final Contingent Payment Date shall be November 15, 2009. Contingent Payments, if any, paid or accrued in respect of this Security shall be comprised of, in part, a payment of Principal and, in part, a payment of Interest thereon at 16% per annum from the Issue Date (with semi-annual compounding) Following in accordance with Section 5.1 of the Closing Indenture. Contingent Payments on this Security, if any are due and as additional consideration for payable pursuant to and in accordance with the Securitiesterms of this Security and the Indenture, Buyer shall makewill be payable semiannually on May 15 and November 15, or cause the Acquired Entities to makecommencing May 15, 1999, to Sellers (subject to the terms and conditions set forth person in whose name this Section 1.4) additional cash payments based Security is registered at the close of business on the performance of the Acquired Entities during each of the twelve month periods ending (i) December 31May 1 or November 1, 2006, (ii) December 31, 2007, (iii) December 31, 2008 and (iv) December 31, 2009 preceding such Contingent Payment Date (each, a “Contingent Payment Period”"Record Date"). With respect to The Company will pay on each Contingent Payment PeriodDate to the Holder of this Security at the close of business on the immediately preceding Record Date such Holder's pro rata share of the aggregate Contingent Payments paid on such Contingent Payment Date. Each Holder's pro rata share of the aggregate Contingent Payments will be determined by dividing (i) the aggregate Notational Amount of the Securities held by such Holder on the corresponding Record Date by (ii) the aggregate Notational Amount of all of the Securities outstanding on such Record Date. For purposes of determining accrued Contingent Payments due and payable with respect to a First Semiannual Period or a Second Semiannual Period prior to the completion of such period, Buyer such Contingent Payments due and payable shall make, or cause the Acquired Entities to make, to Sellers cash payments in an aggregate amount be equal to the amountPartial Period Contingent Payments. To the extent it is lawful, if any, by which EBITDA during such the Company promises to pay interest on any Contingent Payment Period exceeds $8,000,000 (each such excess, if and to the extent earned for any such Contingent Payment Period, due but unpaid at a “Contingent Payment”). The Contingent Payment, if any, for each Contingent Payment Period shall be paid by Buyer or (at Buyer’s direction) the Acquired Entities as follows: (A) Buyer or (at Buyer’s direction) the Acquired Entities shall pay to each Seller an amount equal to 50rate of 8% of such Seller’s Pro Rata Share of such Contingent Payment in accordance with Section 1.4(b) below and (B) Buyer or (at Buyer’s direction) the Acquired Entities shall pay to each Seller an amount equal to 50% of such Seller’s Pro Rata Share of such Contingent Payment on April ___, 2012per annum compounded semi-annually.

Contingent Payments. (a) Following the Closing and as additional consideration for the Securities, Buyer shall make, or cause the Acquired Entities to make, to Sellers (subject to the terms and conditions set forth in this Section 1.4) additional cash payments based on the performance of the Acquired Entities during each of the twelve month periods ending (i) December 31, 2006, (ii) December 31, 2007, (iii) December 31, 2008 and (iv) December 31, 2009 (each, a “Contingent Payment Period”). With respect to each Contingent Payment Period, Buyer shall make, or cause the Acquired Entities to make, to Sellers cash payments in an aggregate amount equal to the amount, if any, by which EBITDA during such Contingent Payment Period exceeds $8,000,000 (each such excess, if and to the extent earned for any such Contingent Payment Period, a “Contingent Payment”). The Contingent Payment, if any, for each Contingent Payment Period shall be paid by Buyer or (at Buyer’s direction) the Acquired Entities as follows: (A) Buyer or (at Buyer’s direction) the Acquired Entities shall pay to each Seller an amount equal to 50% of such Seller’s Pro Rata Share of such Contingent Payment in accordance with Section 1.4(b) below and (B) Buyer or (at Buyer’s direction) the Acquired Entities shall pay to each Seller an amount equal to 50% of such Seller’s Pro Rata Share of such Contingent Payment on April ___, 2012.. (b) Within five (5) Business Days following Buyer’s receipt of its audited consolidated financial statements for a particular Contingent Payment Period, but in any event within 95 days following the last day of each Contingent Payment Period, Buyer’s board of directors (the “Board”) shall deliver to each Seller (i) a copy of such financial statements, if such financial statements have been delivered to Buyer as of such date, (ii) a statement (a “Calculation Notice”) setting forth in reasonable detail Buyer’s calculation of the Contingent Payment (if any) for such Contingent Payment Period and

Contingent Payments. (a) Following If (and only if) NSAP, on a consolidated basis, and NSI achieve certain yearly cumulative EBITDA targets for any of the Closing four fiscal years ended December 31, 1998, 1999, 2000 and as additional consideration for 2001 (the Securities"Contingent Payment Years"), Buyer measured annually, NSAP shall makepay to the Stockholders, by April 1, or cause as soon thereafter as practicable, in the Acquired Entities to makefollowing year (the "Contingent Payment Date"), to Sellers an additional contingent payment amount (subject to the terms and conditions "Contingent Payment") determined as provided in Section 2.04(d) below which shall not exceed the maximum Contingent Payment amount (the "Maximum Cumulative Contingent Payment Amount") for each such year as set forth in this the table in Section 1.42.04(c) additional cash payments based on below. Contingent Payments will be payable to the performance of the Acquired Entities during each of the twelve month periods ending Stockholders with respect to any particular Contingent Payment Year only if (i) December 31, 2006the actual cumulative EBITDA of NSAP (the "Actual NSAP Cumulative EBITDA") during such Contingent Payment Year meets or exceeds the minimum target cumulative EBITDA of NSAP (the "Minimum Target NSAP Cumulative EBITDA") for such year as set forth in the table in Section 2.04(b) below, (ii) December 31, 2007, the actual cumulative EBITDA of NSI (iiithe "Actual NSI Cumulative EBITDA") December 31, 2008 and (iv) December 31, 2009 (each, a “Contingent Payment Period”). With respect to each Contingent Payment Period, Buyer shall make, or cause the Acquired Entities to make, to Sellers cash payments in an aggregate amount equal to the amount, if any, by which EBITDA during such Contingent Payment Period Year meets or exceeds $8,000,000 the minimum target cumulative target EBITDA for NSI (each the "Minimum Target NSI Cumulative EBITDA") for such excess, if and to year as set forth in the extent earned for any such Contingent Payment Period, a “Contingent Payment”). The Contingent Payment, if any, for each Contingent Payment Period shall be paid by Buyer or (at Buyer’s direction) the Acquired Entities as follows: (A) Buyer or (at Buyer’s direction) the Acquired Entities shall pay to each Seller an amount equal to 50% of such Seller’s Pro Rata Share of such Contingent Payment table in accordance with Section 1.4(b2.04(b) below and (Biii) Buyer NSI or NSAP have actual current or accumulated earnings and profits for tax purposes as defined in Section 316 of the Code in such year (at Buyer’s direction) but in no event shall the Acquired Entities shall pay Contingent Payment payable to each Seller an the Stockholders with respect to any Contingent Payment Year exceed the amount equal to 50% of such Seller’s Pro Rata Share earnings and profits). Notwithstanding the foregoing, in no event shall the aggregate amount of such all Contingent Payments payable over the four Contingent Payment on April ___, 2012Years exceed $100,000,000.