Exhibit 10.13
LOAN MODIFICATION AGREEMENT NO. 4
Preamble:
This Loan Modification Agreement (this "Agreement"), dated as of
March 13, 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
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.
EARLY TERMINATION FEE.
SECTION 3.3.4(A) OF THE CREDIT AGREEMENT
SHALL BE DEEMED TO BE AMENDED TO READ AS FOLLOWS:
(A)
UPON ANY CANCELLATION OF THE COMMITMENTS BY THE BORROWERS
SUBSEQUENT TO THE CLOSING DATE PURSUANT TO SECTION 3.3.6, THE BORROWERS SHALL
PAY TO THE LENDERS PRIOR TO OR CONCURRENTLY WITH SUCH TERMINATION A TERMINATION
FEE IN AN AMOUNT EQUAL TO THE AMOUNT OF THE WORKING CAPITAL FACILITY COMMITMENT
AT THE TIME OF SUCH EARLY TERMINATION TIMES ONE PERCENT (1%).
NOTWITHSTANDING
THE FOREGOING, IF THE COMMITMENTS ARE CANCELLED IN CONNECTION WITH BORROWERS'
PREPAYMENT IN FULL OF THE OBLIGATIONS FROM THE PROCEEDS OF A REPLACEMENT
FINANCING PROVIDED TO BORROWERS BY THE WELLS FARGO BUSINESS CREDIT OPERATING
DIVISION OF WELLS FARGO BANK, NATIONAL ASSOCIATION ("WFBC"), OR BY A GROUP OF
LENDERS FOR WHOM WFBC ACTS AS AGENT, THE PORTION OF THE TERMINATION FEE THAT
WOULD OTHERWISE BE PAYABLE TO ANY LENDER WHICH PARTICIPATES IN SUCH REPLACEMENT
FINANCING WILL NOT BE PAYABLE, IT BEING UNDERSTOOD, HOWEVER, THAT EACH LENDER
WHICH IS NOT PARTICIPATING IN SUCH REPLACEMENT FINANCING WILL BE ENTITLED TO
RECEIVE THE PORTION OF THE TERMINATION FEE PAYABLE TO SUCH LENDER IN SUCH EVENT.
3.
FIELD AUDITS.
WITH REFERENCE TO THE LAST SENTENCE OF SECTION
6.1.7 OF THE CREDIT AGREEMENT, EACH BORROWER AGREES THAT COMMENCING ON THE
AMENDMENT DATE AND CONTINUING THEREAFTER, THE BORROWERS SHALL BE OBLIGED TO
REIMBURSE THE AGENT ON DEMAND (IN THE AMOUNTS SPECIFIED IN SUCH SENTENCE) FOR
FIELD AUDITS CONDUCTED ON A NINETY (90) DAY AUDIT CYCLE (RATHER THAN A ONE
HUNDRED TWENTY (120) DAY AUDIT CYCLE AS PROVIDED THEREIN), WHICH NINETY (90) DAY
AUDIT CYCLE SHALL COMMENCE UPON THE COMPLETION OF THE FIELD AUDIT THAT SHALL BE