AMENDMENT NO. 6 dated as of July 28,
1999 to the Loan and Security Agreement
dated as of February 5, 1998 (as heretofore
amended, the "Loan Agreement"), by and among
MERRILL LYNCH INTERNATIONAL BANK LIMITED
(the "Lender"), MERRILL LYNCH CAPITAL
SERVICES INC. ("MLCS") and BELAIR CAPITAL
FUND LLC (the "Borrower").
INTRODUCTORY STATEMENT
All capitalized terms not otherwise defined in this Amendment are as
defined in the Loan Agreement.
The Borrower has requested (and the Lender has agreed to) an increase in
the Commitment to $655,000,000.
Accordingly, the parties hereto hereby agree as follows:
SECTION 1. AMENDMENTS TO LOAN AGREEMENT. The Loan Agreement is hereby
amended as of the Effective Date (subject to the terms and conditions set forth
in Section 2 hereof) as follows:
(A) The definition of Commitment appearing in Article 1 of the Loan
Agreement is hereby amended in its entirety to read as follows:
""COMMITMENT" shall mean six hundred fifty-five million dollars
($655,000,000) or such lesser amount if reduced pursuant to Section 2.10."
SECTION 2. CONDITIONS TO EFFECTIVENESS. This Amendment is subject to the
satisfaction in full of the following conditions (the first date on which all
such conditions have been satisfied being herein called the "Effective Date"):
(A) the Lender shall have received counterparts of this Amendment which,
when taken together, bear the signatures of all parties hereto;
(B) the Lender shall have received an Acknowledgment (in form and substance
satisfactory to the Lender) executed by the Borrower and the Custodian
confirming that the Securities Account Agreement remains in full force and
effect;
(C) the Lender shall have received a promissory note in the form of Exhibit
A to the Loan Agreement in the amount of $655,000,000 (a "New Note") which New
Note shall replace the Note currently held by the Lender and shall be deemed the
Note for purposes of the Loan Agreement and the Lender shall return the existing
Note to the Borrower;
(D) the Lender shall have received a favorable written opinion of Counsel
to the Borrower, dated the Effective Date, addressed to the Lender, to the
effect that this Amendment and the New Note have been duly executed and
delivered by the Borrower and, together with the Loan Agreement as hereby
amended, constitute the legal, valid and binding obligations of the Borrower,
enforceable in accordance with their respective terms and no consent or approval
of any governmental authority or regulatory body to the execution, delivery and
performance of this Amendment or the New Note or to the borrowings thereunder is
required by law, or if any such consent or approval is necessary it has been
obtained, which opinion shall be satisfactory to Morgan, Lewis & Bockius LLP,
counsel for the Lender;
(E) the Lender shall have received (i) a certificate of the Manager of the
Borrower, dated the Effective Date and certifying that (1) the provisions of the
Operating Agreement authorize the Manager to authorize the execution, delivery
and performance in accordance with their terms of this Amendment, the New Note
and the other documents and transactions contemplated by this Amendment and the
borrowings under the Note and that the Manager has so authorized and such
authorization is in full force and effect and (2) neither the certificate of
organization nor the Operating Agreement of the Borrower have been amended since
February 5, 1998 (other than the Amended and Restated Operating Agreement as
amended by the First Amendment thereto dated November 24, 1998) and (ii) such
other documents as the Lender or Morgan, Lewis & Bockius LLP, counsel for the
Lender, may reasonably request; and
(F) all legal matters in connection with this Amendment shall be
satisfactory to Morgan, Lewis & Bockius LLP, counsel for the Lender.
SECTION 3. REPRESENTATIONS AND WARRANTIES. The Borrower hereby represents
and warrants that:
(A) the representations and warranties contained in the Loan Agreement are
true and correct in all material respects on and as of the date hereof as if
such representations and warranties had been made on and as of the date hereof;
and
(B) the Borrower is in compliance with all the terms and provisions set
forth in the Loan Agreement and, after giving effect hereto, no Default or Event
of Default has occurred and is continuing.
SECTION 4. FULL FORCE AND EFFECT. Except as expressly amended hereby, the
Loan Agreement shall continue in full force and effect in accordance with the
provisions thereof on the date hereof. As used in the Loan Agreement, the terms
"Agreement", "this Agreement" "herein", "hereafter", "hereto", "hereof", and
words of similar import, shall, unless the context otherwise requires, mean the
Loan Agreement as amended by this Amendment.
2
SECTION 5. APPLICABLE LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. COUNTERPARTS. This Amendment may be executed in counterparts,
each of which shall constitute an original, but all of which when taken together
shall constitute but one instrument.
SECTION 7. EXPENSES. The Borrower agrees to pay all reasonable
out-of-pocket expenses incurred by the Lender in connection with the
preparation, execution and delivery of this Amendment, including, but not
limited to, the reasonable fees and disbursements of Morgan, Lewis & Bockius
LLP, counsel for the Lender.
SECTION 8. HEADINGS. The headings of this Amendment are for the purposes of
reference only and shall not affect the construction of or be taken into
consideration in interpreting this Amendment.
IN WITNESS WHEREOF, the undersigned have caused this Amendment to be duly
executed as of the date first written above.
BELAIR CAPITAL FUND, L.L.C.
BY: EATON VANCE MANAGEMENT,
as Manager
BY: /S/ THOMAS E. FAUST, JR.
------------------------
Name: Thomas E. Faust, Jr.
Title: Vice President
Address: The Eaton Vance Building
255 State Street
Boston, MA 02109
Telephone No.: 617-482-8260
Telecopier No.: 617-482-3836
3
MERRILL LYNCH CAPITAL SERVICES, INC.
BY: /s/ Roger Baum
------------------------
Name: Roger Baum
Title:
Address: Merrill Lynch World Headquarters,
World Financial Center
North Tower, 22nd Floor
250 Vessey Street
New York, New York 10281-1322
Telephone No.: 212-449-0291
Telecopier No.: 212-449-1788
The Lender is a member of The Securities and Futures Authority Limited and
operates a Client Complaints Procedure. If for any reason the Borrower should
have cause for concern or complaint, the Borrower should contact the Manager,
PBG Operations, at the Lender's address indicated below.
MERRILL LYNCH INTERNATIONAL
BANK LIMITED
BY: /S/ JENNIFER A. BERESKA
--------------------------------
Executed in London, Name: Jennifer A. Bereska
England on ________, 1999 Title: Associate Director
Address: 123 Buckingham Palace Road
5th Floor
London SW1 W9TD
England
Telephone No.:
Telecopier No.:
AGREED TO:
MERRILL LYNCH INTERNATIONAL
PRIVATE FINANCE LIMITED
By: /s/ Fred Reinhardt
--------------------------------
Name: Fred Reinhards
Title:
4
AMENDMENT NO. 5 dated as of March
17, 2000 to the Loan and Security Agreement
dated as of February 5, 1998 (as heretofore
amended, the "Loan Agreement"), by and among
MERRILL LYNCH INTERNATIONAL BANK LIMITED
(the "Lender"), MERRILL LYNCH CAPITAL
SERVICES INC. ("MLCS") and BELAIR CAPITAL
FUND LLC (the "Borrower").
INTRODUCTORY STATEMENT
All capitalized terms not otherwise defined in this Amendment are as
defined in the Loan Agreement.
The Borrower has requested (and the Lender has agreed to) an increase in
the Commitment to $765,000,000.
Accordingly, the parties hereto hereby agree as follows:
SECTION 1. AMENDMENTS TO LOAN AGREEMENT. The Loan Agreement is hereby
amended as of the Effective Date (subject to the terms and conditions set forth
in Section 2 hereof) as follows:
(A) The definition of Commitment appearing in Article 1 of the Loan
Agreement is hereby amended in its entirety to read as follows:
""COMMITMENT" shall mean seven hundred sixty-five million dollars
($765,000,000) or such lesser amount if reduced pursuant to Section 2.10."
SECTION 2. CONDITIONS TO EFFECTIVENESS. This Amendment is subject to the
satisfaction in full of the following conditions (the first date on which all
such conditions have been satisfied being herein called the "Effective Date"):
(A) the Lender shall have received counterparts of this Amendment which,
when taken together, bear the signatures of all parties hereto;
(B) the Lender shall have received an Acknowledgment (in form and substance
satisfactory to the Lender) executed by the Borrower and the Custodian
confirming that the Securities Account Agreement remains in full force and
effect;
(C) the Lender shall have received a promissory note in the form of Exhibit
A to the Loan Agreement in the amount of $765,000,000 (a "New Note") which New
Note shall replace the Note currently held by the Lender and shall be deemed the
Note for purposes of the Loan Agreement and the Lender shall return the existing
Note to the Borrower;
(D) the Lender shall have received a favorable written opinion of Counsel
to the Borrower, dated the Effective Date, addressed to the Lender, to the
effect that this Amendment and the New Note have been duly executed and
delivered by the Borrower and, together with the Loan Agreement as hereby
amended, constitute the legal, valid and binding obligations of the Borrower,
enforceable in accordance with their respective terms and no consent or approval
of any governmental authority or regulatory body to the execution, delivery and
performance of this Amendment or the New Note or to the borrowings thereunder is
required by law, or if any such consent or approval is necessary it has been
obtained, which opinion shall be satisfactory to Morgan, Lewis & Bockius LLP,
counsel for the Lender;
(E) the Lender shall have received (i) a certificate of the Manager of the
Borrower, dated the Effective Date and certifying that (1) the provisions of the
Operating Agreement authorize the Manager to authorize the execution, delivery
and performance in accordance with their terms of this Amendment, the New Note
and the other documents and transactions contemplated by this Amendment and the
borrowings under the Note and that the Manager has so authorized and such
authorization is in full force and effect and (2) neither the certificate of
organization nor the Operating Agreement of the Borrower have been amended since
February 5, 1998 (other than the Amended and Restated Operating Agreement as
amended by the First Amendment thereto dated November 24, 1998) and (ii) such
other documents as the Lender or Morgan, Lewis & Bockius LLP, counsel for the
Lender, may reasonably request; and
(F) all legal matters in connection with this Amendment shall be
satisfactory to Morgan, Lewis & Bockius LLP, counsel for the Lender.
SECTION 3. REPRESENTATIONS AND WARRANTIES. The Borrower hereby represents
and warrants that:
(A) the representations and warranties contained in the Loan Agreement are
true and correct in all material respects on and as of the date hereof as if
such representations and warranties had been made on and as of the date hereof;
and
(B) the Borrower is in compliance with all the terms and provisions set
forth in the Loan Agreement and, after giving effect hereto, no Default or Event
of Default has occurred and is continuing.
SECTION 4. FULL FORCE AND EFFECT. Except as expressly amended hereby, the
Loan Agreement shall continue in full force and effect in accordance with the
provisions thereof on the date hereof. As used in the Loan Agreement, the terms
"Agreement", "this Agreement" "herein", "hereafter", "hereto", "hereof", and
words of similar import, shall, unless the context otherwise requires, mean the
Loan Agreement as amended by this Amendment.
2
SECTION 5. APPLICABLE LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. COUNTERPARTS. This Amendment may be executed in counterparts,
each of which shall constitute an original, but all of which when taken together
shall constitute but one instrument.
SECTION 7. EXPENSES. The Borrower agrees to pay all reasonable
out-of-pocket expenses incurred by the Lender in connection with the
preparation, execution and delivery of this Amendment, including, but not
limited to, the reasonable fees and disbursements of Morgan, Lewis & Bockius
LLP, counsel for the Lender.
SECTION 8. HEADINGS. The headings of this Amendment are for the purposes of
reference only -------- and shall not affect the construction of or be taken
into consideration in interpreting this Amendment.
IN WITNESS WHEREOF, the undersigned have caused this Amendment to be duly
executed as of the date first written above.
BELAIR CAPITAL FUND, L.L.C.
BY: EATON VANCE MANAGEMENT,
as Manager
BY: /S/ THOMAS E. FAUST, JR.
------------------------
Name: Thomas E. Faust, Jr.
Title: Vice President
Address: The Eaton Vance Building
255 State Street
Boston, MA 02109
Telephone No.: 617-482-8260
Telecopier No.: 617-482-3836
3
MERRILL LYNCH CAPITAL SERVICES, INC.
BY: /s/ Roger Baum
----------------------------
Name: Roger Baum
Title:
Address: Merrill Lynch World Headquarters,
World Financial Center
North Tower, 22nd Floor
250 Vessey Street
New York, New York 10281-1322
Telephone No.: 212-449-0291
Telecopier No.: 212-449-1788
The Lender is a member of The Securities and Futures Authority Limited and
operates a Client Complaints Procedure. If for any reason the Borrower should
have cause for concern or complaint, the Borrower should contact the Manager,
PBG Operations, at the Lender's address indicated below.
MERRILL LYNCH INTERNATIONAL
BANK LIMITED
BY: /S/ JENNIFER A. BERESKA
------------------------------
Executed in London, Name: Jennifer A. Bereska
England on ________, 1999 Title: Associate Director
Address: 123 Buckingham Palace Road
5th Floor
London SW1 W9TD
England
Telephone No.:
Telecopier No.:
AGREED TO:
MERRILL LYNCH INTERNATIONAL
PRIVATE FINANCE LIMITED
By: /s/ Stephanie Villalva
------------------------------
Name: Stephanie Villalva
Title:
4