quarterly at the end of each calendar quarter, of not less
than the amount set forth in the following table for the applicable period set
forth opposite thereto:
Applicable Period
Minimum Amount
For Borrowers' fiscal quarter ending in December 2009
$
2,800,000
For Borrowers' fiscal quarter ending in March 2010
$
2,700,000
"
3.
CONDITIONS PRECEDENT TO THIS SIXTH
AMENDMENT.
THE SATISFACTION OF EACH OF THE FOLLOWING SHALL CONSTITUTE
CONDITIONS PRECEDENT TO THE EFFECTIVENESS OF THIS SIXTH 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 SIXTH 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)
NO DEFAULT OR EVENT OF DEFAULT SHALL HAVE
OCCURRED AND BE CONTINUING ON THE DATE HEREOF OR AS OF THE SIXTH 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;
(D)
BORROWERS HAVE PAID TO PRIVATE EQUITY
MANAGEMENT GROUP, INC. ("PEMG"), IN IMMEDIATELY AVAILABLE FUNDS, AN AMOUNT EQUAL
TO $100,000 AS REQUIRED BY SECTION 4 OF THIS SIXTH AMENDMENT; AND
(E)
NO MATERIAL ADVERSE CHANGE SHALL HAVE
OCCURRED.
4.
ADVISORY FEE.
FOR PEMG'S ADVICE IN
CONNECTION WITH THIS SIXTH AMENDMENT THE BORROWERS SHALL PAY TO PEMG, IN
IMMEDIATELY AVAILABLE FUNDS, (I) AN AMOUNT EQUAL TO $100,000 ON THE SIXTH
AMENDMENT EFFECTIVE DATE AND (II) AN AMOUNT EQUAL TO $100,000 ON THE EARLIER OF
(X) MARCH 31, 2010; OR (Y) THE REPAYMENT IN FULL OF THE OBLIGATIONS.
THE
FOREGOING PAYMENTS REPRESENT AN ADVISORY FEE WHICH IS FULLY EARNED AS OF THE
SIXTH AMENDMENT
4
EFFECTIVE DATE AND NO PORTION OF SUCH ADVISORY FEE SHALL BE REFUNDABLE FOR ANY
REASON, OR APPLIED TO THE OUTSTANDING BALANCE OF THE TERM LOANS OR ANY OTHER
AMOUNTS OWING UNDER THE CREDIT AGREEMENT.
5.
CONSTRUCTION.
THIS SIXTH 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.
6.
ENTIRE AMENDMENT; EFFECT OF SIXTH
AMENDMENT.
THIS SIXTH 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 PRIOR OR CONTEMPORANEOUS AMENDMENTS
RELATING TO THE SUBJECT MATTER HEREOF.
EXCEPT AS EXPRESSLY SET FORTH IN THIS
SIXTH AMENDMENT, THE CREDIT AGREEMENT AND OTHER LOAN DOCUMENTS SHALL REMAIN
UNCHANGED AND IN FULL FORCE AND EFFECT.
TO THE EXTENT ANY TERMS OR PROVISIONS
OF THIS SIXTH AMENDMENT CONFLICT WITH THOSE OF THE CREDIT AGREEMENT OR OTHER
LOAN DOCUMENTS, THE TERMS AND PROVISIONS OF THIS SIXTH AMENDMENT SHALL CONTROL.
THIS SIXTH AMENDMENT IS A LOAN DOCUMENT.
7.
COUNTERPARTS;