Exhibit 10.4
LOAN MODIFICATION AGREEMENT NO. 6
Preamble:
This Loan Modification Agreement No. 6 (this "Agreement"), dated as
of July 3, 2007 (the "Amendment Date"), is made by and among Wells Fargo Bank,
National Association, acting through its Wells Fargo Business Credit operating
division, as Agent; each Person identified as a "Lender" on the signature page
hereof, as lenders; and each Person identified as a "Borrower" on the signature
page hereof, as borrowers (each, a "Borrower", and, collectively, the
"Borrowers"), for the purpose of amending or otherwise modifying the terms of
that certain Credit Agreement dated as of August 12, 2005 (which, as it has
been, or hereafter may be, modified or amended, the "Credit Agreement"), among
the Borrowers, the various lenders from time to time party thereto (the
"Lenders") and Wells Fargo Bank, National Association, acting through its Wells
Fargo Business Credit operating division, as a Lender and as agent for the
Lenders (in such capacity, the "Agent").
Now, therefore, in consideration of
the mutual promises contained herein and in the Credit Agreement, the receipt
and sufficiency of which are hereby acknowledged, the Agent, the Lenders and the
Borrowers, each intending to be legally bound, agree as follows:
1.
DEFINITIONS.
CAPITALIZED TERMS USED HEREIN, BUT NOT EXPRESSLY DEFINED
THEMSELVES HEREIN, SHALL HAVE THE MEANINGS GIVEN TO SUCH TERMS IN THE CREDIT
AGREEMENT.
2.
INCREASE IN LETTER OF CREDIT SUB-FACILITY AMOUNT.
THE LETTER OF
CREDIT SUB-FACILITY LIMIT SHALL BE INCREASED FROM SIX MILLION DOLLARS
($6,000,000) TO SEVEN MILLION FIVE HUNDRED THOUSAND DOLLARS ($7,500,000).
IN
FURTHERANCE OF THE FOREGOING, THE DEFINITION OF "LETTER OF CREDIT SUB-FACILITY
AMOUNT" SET FORTH IN SECTION 1.1 OF THE CREDIT AGREEMENT SHALL BE DEEMED TO BE
AMENDED TO READ AS FOLLOWS:
"Letter of Credit Sub-Facility Amount" means Seven Million Five Hundred Thousand
Dollars ($7,500,000).
3.
AMENDMENT FEE.
TO INDUCE THE AGENT TO ENTER INTO THIS AGREEMENT, EACH
BORROWER HEREBY JOINTLY AND SEVERALLY AGREES TO PAY TO THE AGENT (A) ON THE
AMENDMENT DATE, A FULLY-EARNED AND NON-REFUNDABLE AMENDMENT FEE IN THE AMOUNT OF
$5,000, AND (B) WITHOUT LIMITING THE OBLIGATION OF THE BORROWERS TO REIMBURSE
THE AGENT FOR COSTS AND EXPENSES INCURRED IN CONNECTION WITH THE LOAN DOCUMENTS,
ON DEMAND BY THE AGENT, ALL FEES, COSTS AND EXPENSES INCURRED BY THE AGENT IN
CONNECTION WITH THIS AGREEMENT, INCLUDING THE REASONABLE FEES AND OUT-OF-POCKET
EXPENSES OF COUNSEL TO THE AGENT.
4.
INDUCING REPRESENTATIONS.
TO INDUCE THE AGENT AND THE LENDERS TO
ENTER INTO THIS AGREEMENT, EACH BORROWER HEREBY REPRESENTS AND WARRANTS THAT:
(A) SUCH BORROWER IS DULY AUTHORIZED TO ENTER INTO THIS AGREEMENT, AND THIS
AGREEMENT, UPON ITS EXECUTION BY SUCH BORROWER, THE AGENT AND EACH LENDER, WILL
CONSTITUTE SUCH BORROWER'S LEGAL, VALID AND BINDING OBLIGATIONS ENFORCEABLE IN
ACCORDANCE WITH ITS TERMS AGAINST SUCH BORROWER; (B) AFTER GIVING EFFECT TO THIS
AGREEMENT, NO DEFAULT OR EVENT OF DEFAULT EXISTS; (C) NO PRESENT RIGHT OF
SETOFF, COUNTERCLAIM, RECOUPMENT CLAIM OR DEFENSE EXISTS IN SUCH BORROWER'S
FAVOR IN RESPECT OF ITS PAYMENT OR PERFORMANCE OF ANY OBLIGATIONS; AND (D)