Exhibit 4.1
AGREEMENT OF AMENDMENT
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Dated as of March 12, 2003
Reference is made to that certain Revolving Credit and Security Agreement
dated as of March 14, 2001 (as from time to time amended prior to the date
hereof, the "Credit Agreement") among Belport Capital Fund LLC (the "Borrower"),
Corporate Asset Funding Company, Inc. (the "Lender"), Citibank, N.A. (together
with its successors and assigns, the "Secondary Lender") and Citicorp North
America, Inc., as agent for the Lender and the Secondary Lender (the "Agent").
Capitalized terms used and not defined herein shall have the meanings assigned
to such terms in the Credit Agreement.
The parties hereto agree that, effective as of the Amendment Effective
Date, the definition "Lender Termination Date" set forth in Section 1.01 of the
Credit Agreement is hereby amended by replacing the date "March 12, 2003" set
forth therein, with the date "April 12, 2003".
The parties hereto agree that, effective as of the Amendment Effective
Date, the definition "Secondary Lender Stated Expiration Date" set forth in
Section 1.01 of the Credit Agreement is hereby amended by replacing the date
"March 12, 2003" set forth therein, with the date "April 12, 2003".
As used herein, the term "Amendment Effective Date" means the later to
occur of (i) the date on which the Agent shall have executed and delivered one
or more counterparts of this Agreement of Amendment and shall have received one
or more counterparts of this Agreement of Amendment executed by each of the
parties hereto, and (ii) the date on which the Agent shall have received
certificates of a Secretary or Assistant Secretary of each of the Borrower,
Eaton Vance Management and Boston Management and Research certifying as to (a)
the resolutions of its Board of Directors or Board of Trustees, as applicable,
approving this Agreement of Amendment, (b) that its representations and
warranties set forth in the Program Documents will be true and correct on the
Amendment Effective Date, and (c) immediately after the Amendment Effective Date
no Default or Event of Default is continuing or will result therefrom.
The Borrower represents and warrants to the Agent, the Lenders and the
Secondary Lender that immediately after giving effect to this Amendment, the
representations and warranties of the Borrower set forth in the Credit Agreement
are true and correct in all material respects.
This Agreement of Amendment may be executed in any number of counterparts,
each of which when so executed shall be deemed to be an original and all of
which when taken together shall constitute one and the same agreement.
THIS AGREEMENT OF AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this agreement to be
executed and delivered by their duly authorized officers as of the date first
above written.
CITICORP NORTH AMERICA, INC., CITIBANK, N.A.,
as Agent as Secondary Lender
By: /s/ Kimberly A. Conyngham By: /s/ Kimberly A. Conyngham
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Name: Kimberly A. Conyngham Name: Kimberly A. Conyngham
Title: Vice President Title:
CORPORATE ASSET FUNDING COMPANY, INC., BELPORT CAPITAL FUND LLC,
as Lender as Borrower
By: Citicorp North America, Inc., By: Eaton Vance Management,
as Attorney-in-Fact its Manager
By: /s/ Kimberly A. Conyngham By: /s/ M. Katherine Kreider
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Name: Kimberly A. Conyngham Name: M. Katherine Kreider
Title: Vice President Title: Vice President
AGREEMENT OF AMENDMENT
Dated as of April 11, 2003
Reference is made to that certain Revolving Credit and Security Agreement
dated as of March 14, 2001 (as from time to time amended prior to the date
hereof, the "Credit Agreement") among Belport Capital Fund LLC (the "Borrower"),
Corporate Asset Funding Company, Inc. (the "Lender"), Citibank, N.A. (together
with its successors and assigns, the "Secondary Lender") and Citicorp North
America, Inc., as agent for the Lender and the Secondary Lender (the "Agent").
Capitalized terms used and not defined herein shall have the meanings assigned
to such terms in the Credit Agreement.
The parties hereto agree that, effective as of the date hereof, Section
1.01 of the Credit Agreement shall be amended to add the following definition in
proper alphabetical order:
""Accounting Based Consolidation Event" means the consolidation, for
financial and/or regulatory accounting purposes, of all or any portion
of the assets and liabilities of CAFCO that are the subject of this
Agreement or any other Program Document with all or any portion of the
assets and liabilities of Citibank or the Agent or any of their
affiliates as the result of the existence of, or occurrence of any
change in, accounting standards or the issuance of any pronouncement,
interpretation or release, including, without limitation, the
Financial Accounting Standards Board Interpretation No. 46, by any
accounting body or any other body charged with the promulgation or
administration of accounting standards, including, without limitation,
the Financial Accounting Standards Board, the International Accounting
Standards Board, the American Institute of Certified Public
Accountants, the Federal Reserve Board of Governors and the Securities
and Exchange Commission, and shall occur as of the date that such
consolidation (i) shall have occurred with respect to the financial
statements of Citibank or the Agent or any of their affiliates or (ii)
shall have been required to have occurred, regardless of whether such
financial statements were prepared as of such date."
The parties hereto agree that, effective as of the date hereof, clause (b)
of Section 2.07 of the Credit Agreement shall be amended to replace the language
set forth therein in its entirety with the following:
"(b) If an Affected Person determines that compliance with any
Applicable Law or request from any central bank or other Authority
charged with the interpretation or administration thereof (whether or
not having the force of law) or the occurrence of any Accounting Based
Consolidation Event (regardless of whether the date of such Accounting
Based Consolidation Event is before or after the Closing Date) (i)
affects or would affect the amount of capital required or reasonably
expected to be maintained by such Affected Person and that the amount
of such capital is increased by or based upon the existence of such
Affected Person's commitment under the Program Documents or upon such
Affected Person's making, funding or maintaining Advances, (ii)
increases the cost of making or maintaining such commitment under the
Program Documents or making, funding or maintaining such Advances to
any Affected Person or (iii) reduces the return of an Affected Person
in connection with the Program Documents, then, upon written demand of
such Affected Person (with a copy of such demand to the Agent), the
Borrower shall immediately pay to the Agent for the account of such
Affected Person, from time to time as specified by such Affected
Person, additional amounts sufficient to compensate such Affected
Person for such increased cost and/or reduced return in light of such
circumstances. A certificate setting forth in reasonable detail such
amounts and the circumstances giving rise thereto submitted to the
Borrower by such Affected Person shall be conclusive and binding for
all purposes, absent manifest error."
The parties hereto agree that, effective as of the Amendment Effective
Date, the definition "Lender Termination Date" set forth in Section 1.01 of the
Credit Agreement is hereby amended by replacing the date "April 12, 2003" set
forth therein, with the date "April 9, 2004".
The parties hereto agree that, effective as of the Amendment Effective
Date, the definition "Secondary Lender Stated Expiration Date" set forth in
Section 1.01 of the Credit Agreement is hereby amended by replacing the date
"April 12, 2003" set forth therein, with the date "April 9, 2004".
The parties hereto agree that, effective as of the date hereof, Section
9.09 of the Credit Agreement shall be amended to add the following clause (c) at
the end thereof:
"(c) Notwithstanding anything in this Section 9.09 to the contrary,
the Borrower (and each employee, representative or other agent of the
Borrower) may disclose to any and all Persons, without limitation of
any kind, the U.S. tax treatment and/or U.S. tax structure of the
Facility and all materials of any kind (including opinions or other
tax analyses) that are provided to it, relating to such U.S. tax
treatment and/or U.S. tax structure of the Facility."
As used herein, the term "Amendment Effective Date" means the later to
occur of (i) the date on which the Agent shall have executed and delivered one
or more counterparts of this Agreement of Amendment and shall have received one
or more counterparts of this Agreement of Amendment executed by each of the
parties hereto, and (ii) the date on which the Agent shall have received
certificates of a Secretary or Assistant Secretary of each of the Borrower,
Eaton Vance Management and Boston Management and Research certifying as to (a)
the resolutions of its Board of Directors or Board of Trustees, as applicable,
approving this Agreement of Amendment, (b) that its representations and
warranties set forth in the Program Documents will be true and correct on the
Amendment Effective Date, and (c) immediately after the Amendment Effective Date
no Default or Event of Default is continuing or will result therefrom.
The Borrower represents and warrants to the Agent, the Lenders and the
Secondary Lender that immediately after giving effect to this Amendment, the
representations and warranties of the Borrower set forth in the Credit Agreement
are true and correct in all material respects.
This Agreement of Amendment may be executed in any number of counterparts,
each of which when so executed shall be deemed to be an original and all of
which when taken together shall constitute one and the same agreement.
THIS AGREEMENT OF AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this agreement to be
executed and delivered by their duly authorized officers as of the date first
above written.
CITICORP NORTH AMERICA, INC., CITIBANK, N.A.,
as Agent as Secondary Lender
By: /s/ Kimberly A. Conyngham By: /s/ Kimberly A. Conyngham
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Name: Kimberly A. Conynham Name: Kimberly A. Conyngham
Title: Vice President Title: Vice President
CORPORATE ASSET FUNDING COMPANY, INC., BELPORT CAPITAL FUND LLC,
as Lender as Borrower
By: Citicorp North America, Inc., By: Eaton Vance Management,
as Attorney-in-Fact its Manager
By: /s/ Kimberly A. Conynham By: /s/ Maureen A. Gemma
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Name: Kimberly A. Conynham Name: Maureen A. Gemma
Title: Vice President Title: Vice President