as set forth in the CTA Agreement to create and perfect a first lien in all such
rights in favor of the Trustee, for the benefit of the Secured Parties;
WHEREAS, the Borrower has requested that the Lender and/or Bank Investors make
Loans to the Borrower, from time to time, which will be secured by the
Collateral described above and evidenced by a Variable Funding Note, the
proceeds of which will be used to purchase the Accounts;
WHEREAS, it is the intent of the parties hereto that the execution and delivery
of this Loan Agreement, made for the purposes described in these Preliminary
Statements, not effectuate a novation of Borrower's obligations outstanding
under the Existing Loan Agreement, but rather a substitution of certain of the
terms governing the payment and performance of such indebtedness;
WHEREAS, Wachovia Bank, National Association served as custodian and collateral
agent pursuant to the Custodian/Collateral Agent Agreement, dated February 4,
2005; and
WHEREAS, subject to the terms and conditions set forth herein, the Bank
Investors are willing to make the Loans to the Borrower;
NOW, THEREFORE, in consideration of the mutual benefits to be derived and the
representations and warranties, conditions and promises herein contained, and
intending to be legally bound hereby, the parties hereto hereby agree that the
Existing Loan Agreement is hereby amended and restated in its entirety as
follows:
ARTICLE 1
GENERAL
SECTION 1.1.
CERTAIN DEFINED TERMS.
CAPITALIZED TERMS USED IN THIS
LOAN AGREEMENT SHALL HAVE THE MEANINGS GIVEN SUCH TERMS IN ANNEX A HERETO,
UNLESS OTHERWISE DEFINED HEREIN.
SECTION 1.2.
OTHER TERMS.
ALL TERMS DEFINED DIRECTLY OR BY
INCORPORATION HEREIN SHALL HAVE THE DEFINED MEANINGS WHEN USED IN ANY
CERTIFICATE OR OTHER DOCUMENT DELIVERED PURSUANT THERETO UNLESS OTHERWISE
DEFINED THEREIN.
FOR PURPOSES OF THIS LOAN AGREEMENT AND ALL SUCH CERTIFICATES
AND OTHER DOCUMENTS, UNLESS THE CONTEXT OTHERWISE REQUIRES:
(A) ACCOUNTING
TERMS NOT OTHERWISE DEFINED HEREIN, AND ACCOUNTING TERMS PARTLY DEFINED HEREIN
TO THE EXTENT NOT DEFINED, SHALL HAVE THE RESPECTIVE MEANINGS GIVEN TO THEM
UNDER, AND SHALL BE CONSTRUED IN ACCORDANCE WITH, GAAP; (B) TERMS USED IN
ARTICLE 9 OF THE UCC IN THE STATE OF NEW YORK, AND NOT SPECIFICALLY DEFINED
HEREIN, ARE USED HEREIN AS DEFINED IN SUCH ARTICLE 9; (C) REFERENCES TO ANY
AMOUNT AS ON DEPOSIT OR OUTSTANDING ON ANY PARTICULAR DATE MEANS SUCH AMOUNT AT
THE CLOSE OF BUSINESS ON SUCH DAY; (D) THE WORDS "HEREOF", "HEREIN" AND
"HEREUNDER" AND WORDS OF SIMILAR IMPORT REFER TO THIS LOAN AGREEMENT (OR OTHER
DOCUMENT IN WHICH THEY ARE USED) AS A WHOLE AND NOT TO ANY PARTICULAR PROVISION
OF THIS LOAN AGREEMENT (OR SUCH CERTIFICATE OR DOCUMENT); (E) REFERENCES TO ANY
SECTION, SCHEDULE, ANNEX OR EXHIBIT ARE REFERENCES TO SECTIONS, SCHEDULES,
ANNEXES AND EXHIBITS IN OR TO THIS LOAN AGREEMENT (OR THE CERTIFICATE OR OTHER
DOCUMENT IN WHICH THE REFERENCE IS MADE) AND REFERENCES TO ANY PARAGRAPH,
SUBSECTION, CLAUSE OR OTHER SUBDIVISION WITHIN ANY SECTION OR DEFINITION REFER
TO SUCH PARAGRAPH, SUBSECTION, CLAUSE OR OTHER
2
SUBDIVISION OF