AMENDMENT No. 1 TO LOAN AND
SECURITY AGREEMENT
THIS AMENDMENT
No. 1 TO LOAN AND SECURITY AGREEMENT (this “ Amendment
”), dated as of February 22, 2007, is entered into among the
Lenders party hereto, the Borrowers party hereto, and Bank of
America, N.A., in its capacity as Agent (the “ Agent
”), under that certain Loan and Security Agreement, dated as
of September 19, 2005, among the Agent, the Lenders party thereto
from time to time, and the Borrowers (as amended, restated,
supplemented, or otherwise modified from time to time, the “
Loan Agreement ”). Capitalized terms used
in this Amendment and not otherwise specifically defined herein
have the meanings assigned to them in the Loan
Agreement.
WHEREAS,
pursuant to the Loan Agreement and subject to the terms and
conditions set forth therein, the Lenders have agreed to make the
Loans and other financial accommodations to the
Borrowers;
WHEREAS, subsection 8.2.2 of the Loan Agreement
provides, among other things, that the Borrowers shall not, unless
otherwise consented to by Majority Lenders in writing in accordance
with subsection 12.2.1 of the Loan Agreement, create, incur,
assume, or suffer to exist any Indebtedness, except as permitted by
subsection 8.2.2;
WHEREAS, Borrower Representative has informed
Agent that it believes that clause (x) of subsection 8.2.2 contains
a drafting error and that the Loan Agreement should be amended to
accurately reflect the agreement of the parties to the Loan
Agreement; and
WHEREAS,
the Lenders are willing to amend the Loan Agreement on the terms
and subject to the conditions set forth herein;
NOW,
THEREFORE, on the terms and subject to the conditions set forth
herein, the Lenders, the Borrowers, and the Agent hereby agree as
follows:
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Clause (x) of
subsection 8.2.2 of the Loan Agreement is hereby deleted and
replaced in its entirety as follows:
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“Indebtedness to the extent not included
in clauses (i) through (ix) above, which is permitted
“Debt” under Section 4.06 of the Indenture as in effect
on the date of this Agreement; and”
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This Amendment
shall be effective as of the date hereof (the “ Effective
Date ”), but only upon the satisfaction of the following
conditions precedent:
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Agent shall
have received a duly executed copy of this Amendment from each of
the Borrowers and the Majority Lenders.
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The
representations and warranties of the Borrowers and Guarantors set
forth in each of the Loan Documents shall be true and correct in
all material respects on and as of the Effective Date with the same
effect as though made on and as of such date (except to the extent
such representations and warranties by their terms expressly relate
to an earlier date, in which case such representations and
warranties shall have been true and correct, in all material
respects, as of such earlier date).
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No Default or
Event of Default shall have occurred and be continuing as of the
Effective Date.
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The Borrowers
shall have paid the costs, fees and expenses referred to in
Section 3 hereof.
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The Borrowers
jointly and severally agree to reimburse the Agent upon demand for
all reasonable and documented costs, fees and expenses (including
the reasonable fees and expenses of counsel to the Agent) incurred
in connection with the preparation, execution and delivery of this
Amendment.
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The amendments
set forth herein are effective solely for the purposes set forth
herein and shall be limited precisely as written, and shall not be
deemed to (i) be a consent to, or acknowledgment of, any amendment,
waiver or modification of any other term or condition of the Loan
Agreement or of any other instrument or agreement referred to
herein or therein or (ii) prejudice any right or remedy which the
Agen
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