Exhibit 10.4
THIRD AMENDMENT TO CREDIT
AGREEMENT
This THIRD Amendment to Credit
Agreement (the “Amendment”) is made and entered into as
of October 29, 2008, by and between BANK OF THE WEST (the
“Bank”) and DIEDRICH COFFEE, INC. (the
“Borrower”) with respect to the following:
This Amendment shall be deemed to be
a part of and subject to that certain Credit Agreement dated as of
November 4 , 2005, as it may be amended from time to
time, and any and all addenda and riders thereto (collectively the
“Agreement”). Unless otherwise defined herein, all
terms used in this Amendment shall have the same meanings as in the
Agreement. To the extent that any of the terms or provisions of
this Amendment conflict with those contained in the Agreement, the
terms and provisions contained herein shall control.
WHEREAS, the Borrower and the Bank
mutually desire to extend and/or modify the Agreement.
NOW THEREFORE, for value received
and hereby acknowledged, the Borrower and the Bank agree as
follows:
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1.
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Extension of
Expiration Date. The
Expiration Date provided for in Section 1.1.8 of the Agreement
shall be extended to October 15, 2009.
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2.
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Representations and Warranties.
The Borrower hereby reaffirms the
representations and warranties contained in the Agreement and
represents that no event, which with notice or lapse of time, could
become an Event of Default, has occurred or is
continuing.
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3.
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Confirmation
of Other Terms and Conditions of the Agreement.
Except as specifically provided in
this Amendment, all other terms, conditions and covenants of the
Agreement unaffected by this Amendment shall remain unchanged and
shall continue in full force and effect and the Borrower hereby
covenants and agrees to perform and observe all terms, covenants
and agreements provided for in the Agreemen
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