quarter ending in June 2010
$
4,200,000
For Borrowers' fiscal quarter ending in September 2010
$
5,500,000
For Borrowers' fiscal quarter ending in December 2010
$
3,800,000
(E)
CAPITAL EXPENDITURES. THE AGGREGATE OF ALL
CAPITAL EXPENDITURES (FOR BORROWERS AND THEIR SUBSIDIARIES) SHALL NOT BE MORE
THAN THE AMOUNT SET FORTH IN THE FOLLOWING TABLE FOR THE APPLICABLE PERIOD SET
FORTH OPPOSITE THERETO:
Applicable Period
Maximum Amount
For Borrowers' fiscal year ending in December 31, 2009
$
600,000
For Borrowers' fiscal year ending in December 31, 2010
$
1,800,000
(f)
Unfinanced Capital Expenditures. The
amount of Unfinanced Capital Expenditures (for Borrowers and their subsidiaries)
in any fiscal quarter shall not be in excess of $62,500; provided, however, that
if in any fiscal quarter the amount of Unfinanced Capital Expenditures (for
Borrowers and their subsidiaries) is less than $62,500, then the difference
between such amount and $62,500 (the "Additional Unfinanced Capital Expenditures
Amount"), may be used by Borrowers to increase the maximum Unfinanced Capital
Expenditures (for Borrowers and their subsidiaries) to an amount equal to
$62,500 plus the Additional Unfinanced Capital Expenditures Amount in any future
quarter and provided, further, that such Additional Unfinanced Capital
Expenditures Amount may not be applied to any quarter more than six (6) months
following the end of the quarter as to which such Additional Unfinanced Capital
Expenditures Amount was created.
5
4.
CONDITIONS PRECEDENT TO THIS FOURTH
AMENDMENT.
THE SATISFACTION OF EACH OF THE FOLLOWING SHALL CONSTITUTE
CONDITIONS PRECEDENT TO THE EFFECTIVENESS OF THIS FOURTH AMENDMENT AND EACH AND
EVERY PROVISION HEREOF:
(A)
THE REPRESENTATIONS AND WARRANTIES IN
THE CREDIT AGREEMENT AND THE OTHER LOAN DOCUMENTS SHALL BE TRUE AND CORRECT IN
ALL MATERIAL RESPECTS ON AND AS OF THE FOURTH AMENDMENT EFFECTIVE DATE, AS
THOUGH MADE ON SUCH DATE (EXCEPT TO THE EXTENT THAT SUCH REPRESENTATIONS AND
WARRANTIES RELATE SOLELY TO AN EARLIER DATE);
(B)
EXCEPT FOR THE SPECIFIED DEFAULTS, NO
DEFAULT OR EVENT OF DEFAULT SHALL HAVE OCCURRED AND BE CONTINUING ON THE DATE
HEREOF OR AS OF THE FOURTH AMENDMENT EFFECTIVE DATE;
(C)
NO INJUNCTION, WRIT, RESTRAINING ORDER,
OR OTHER ORDER OF ANY NATURE PROHIBITING, DIRECTLY OR INDIRECTLY, THE
CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREIN SHALL HAVE BEEN ISSUED AND
REMAIN IN FORCE BY ANY GOVERNMENTAL AUTHORITY AGAINST ANY BORROWER, AGENT, ANY
LENDER OR ANY OF THEIR AFFILIATES; AND
(D)
NO MATERIAL ADVERSE CHANGE SHALL HAVE
OCCURRED.
5.
COMPLIANCE WITH SECTION 7 OF THE THIRD
AMENDMENT.
BORROWERS AND AGENT ACKNOWLEDGE THAT, EFFECTIVE UPON THE OCCURRENCE
OF THE FOURTH AMENDMENT EFFECTIVE DATE, THE PROVISIONS OF SECTION 7 OF THE
CREDIT AGREEMENT HAVE BEEN COMPLIED WITH.
6.
CONSTRUCTION.
THIS FOURTH AMENDMENT
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
CALIFORNIA APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED IN THE STATE OF
CALIFORNIA.
7.
ENTIRE AMENDMENT; EFFECT OF FOURTH
AMENDMENT.
THIS FOURTH AMENDMENT, AND THE TERMS AND PROVISIONS HEREOF,
CONSTITUTES THE ENTIRE AGREEMENT AMONG THE PARTIES PERTAINING TO THE SUBJECT
MATTER HEREOF AND SUPERSEDES ANY AND ALL