EXHIBIT 4.1(a)
AMENDMENT NO. 1 dated as of September 29,
2003 (this "Amendment") to the LOAN AND
SECURITY Agreement dated as of June 30,
2003 (as the same may be further amended,
supplemented or otherwise modified, renewed or
replaced from time to time, the "Credit
Agreement"), by and between BELPORT
CAPITAL FUND LLC, a Delaware limited liability
company (the "Borrower") and DRKW
HOLDINGS, INC., a Delaware corporation, as
lender (the "Lender").
WHEREAS, on June 30, 2003, the Borrower and the Lender entered into the
Credit Agreement pursuant to which the Lender made available to the Borrower a
term loan in the aggregate principal amount of $221,000,000;
WHEREAS, the Borrower has requested the Lender to increase the amount of
the term loan by $9,500,000 to an aggregate principal amount of $230,500,000;
WHEREAS, the Borrower has requested and the Lender has agreed, subject to
the terms and conditions of this Amendment, to amend certain provisions of the
Credit Agreement, as set forth herein;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
SECTION 1. Amendments. Subject to the satisfaction of the conditions
precedent set forth in Section 3 hereof, the Credit Agreement is hereby amended
as of the Effective Date (as defined in Section 3 hereof) as follows:
(A) Article 1 of the Credit Agreement is hereby amended by amending and
restating the following definitions in their entirety to read as follows:
"`Loan' shall mean collectively, the loans made by the Lender to the
Borrower under this Agreement pursuant to Section 2.1(i) and any loans made
by the Lender to the Borrower under this Agreement pursuant to Section
2.1(ii).
`Overflow Agreement' shall mean the Loan and Security Agreement dated
as of June 30, 2003 by and among the Overflow Agent, the Lenders referred
to therein, the Swap Provider and the Borrower, as amended by Amendment No.
1 dated as of September 29, 2003."
(B) Section 2.1 of the Credit Agreement is hereby amended in its entirety
to read as follows:
"2.1 Loan. The Lender agrees, on the terms and conditions set forth
herein, (i) to make (x) a Loan to the Borrower on the Closing Date in an
aggregate principal amount of $221,000,000 and (y) a Loan to the Borrower
on September 29, 2003 in an aggregate principal amount of $9,500,000 and
(ii) concurrently with any prepayment made by a Designated Fund under a
loan facility provided by the Lender to such Designated Fund in connection
with a transfer of assets from such Designated Fund to the Borrower, to
make an additional Loan to the Borrower in an aggregate principal amount
equal to the amount of such prepayment."
(C) Section 2.2(b) of the Credit Agreement is hereby amended by deleting
the figure "$221,000,000" and inserting the figure "$230,500,000" in lieu
thereof.
(D) Section 2.4 of the Credit Agreement is hereby amended in its entirety
to read as follows:
"2.4 Interest. Interest shall accrue on the unpaid principal amount of
the Loan at the Interest Rate from and including the Closing Date (with
respect to the loan made pursuant to Section 2.1(i)(x) hereof) or September
29, 2003 (with respect to the loan made pursuant to Section 2.1(i)(y)
hereof), and in each case, to but excluding the date of any principal
payment whether upon acceleration or otherwise. Interest accrued on the
Loan shall be payable on each applicable Interest Payment Date and on any
day on which the Loan is repaid whether due to acceleration or otherwise.
Notwithstanding anything in this Agreement to the contrary, the interest
rate on the Loan shall in no event be in excess of the maximum interest
rate permitted by Applicable Law. All interest shall accrue daily and shall
be calculated on the basis of a 360-day year and the actual number of days
elapsed."
(E) Section 2.8 of the Credit Agreement is hereby amended in its entirety
to read as follows:
"2.8 Optional Prepayments. Subject to Section 12.3, the Borrower may
at any time and from time to time (i) from the Closing Date until the date
that is the first anniversary thereof; provided that, except as set forth
below in this Section 2.8, after giving effect to any prepayment made
pursuant to this Section 2.8(i) all of the conditions set forth on Schedule
2.8 hereto would be satisfied; provided, further that the conditions set
forth in Schedule 2.8 hereto shall not apply to the first $9,500,000 in
aggregate principal amount prepaid pursuant to this Section 2.8, and (ii)
at any time thereafter, upon five Business Days' prior written notice to
the Lender, pay the outstanding principal amount of the Loan, in whole or
in part, without prepayment penalty, together with accrued interest to the
date of such prepayment on the principal amount prepaid, provided that each
partial principal repayment shall be in a minimum aggregate amount of
2
$1,000,000 or any integral multiple of $100,000 in excess thereof. Each
notice of prepayment shall specify the prepayment date and the principal
amount of the Loan to be prepaid, shall be irrevocable and shall commit the
Borrower to prepay the Loan in the amount and in the date stated therein."
SECTION 2. Representations and Warranties. The Borrower hereby represents
and warrants that:
(A) after giving effect to this Amendment, the representations and
warranties contained in the Credit 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 (except to the extent that
any such representations and warranties specifically relate to an earlier date);
and
(B) after giving effect to this Amendment, no Event of Default or Default
will have occurred and be continuing on and as of the date hereof.
SECTION 3. Conditions Precedent. The effectiveness of this Amendment is
subject to the satisfaction in full of each of the conditions precedent set
forth in this Section 3 (the date on which all such conditions have been
satisfied being herein called the "Effective Date"):
(A) the Lender shall have received executed counterparts of this Amendment
which, when taken together, bear the signatures of the Borrower and the Lender;
(B) the Lender shall have received a new Note executed by the Borrower in
an aggregate principal amount of $230,500,000 to be exchanged for and replace
the prior Note delivered by the Borrower in an aggregate principal amount of
$221,000,000;
(C) the Borrower shall have received from the Lender the prior Note in an
aggregate principal amount of $221,000,000 for cancellation;
(D) the Lender shall have received the written opinion of counsel to the
Borrower, dated the date hereof and addressed to the Lender, in form and
substance satisfactory to counsel to the Lender;
(E) the Lender shall have received such other documents as the Lender may
reasonably request; and
(F) all legal matters incident to this Amendment shall be satisfactory to
counsel to the Lender.
SECTION 4. Loan. Upon satisfaction of the conditions precedent set forth in
Section 3 hereof, the Lender shall make $9,500,000 available to the Borrower on
September 29, 2003 by causing an amount of same day funds in Dollars equal to
$9,500,000 to be disbursed via Federal Funds wire transfer to the Borrower's
3
account at the Custodian, ABA No. 011-001-438, Account No. 5821-5013 Control
Wire Re: Belport Capital Fund LLC - 4970, or to such other account as to which
the Borrower shall instruct the Lender in writing.
SECTION 5. Miscellaneous.
(A) Capitalized terms used herein and not otherwise defined herein shall
have the meanings as defined in the Credit Agreement.
(B) Except as expressly amended hereby, the Credit Agreement shall remain
in full force and effect in accordance with the original terms thereof.
(C) The amendments herein contained are limited specifically to the matters
set forth above and do not constitute directly or by implication an amendment or
waiver of any other provision of the Credit Agreement or any default which may
occur or may have occurred under the Credit Agreement.
(D) This Amendment may be executed in any number of counterparts, each of
which shall constitute an original, but all of which when taken together shall
constitute one and the same instrument.
(E) This Amendment shall constitute a Fundamental Document.
(F) This Amendment shall be governed by, and construed in accordance with,
the laws of the State of New York.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
4
IN WITNESS WHEREOF, the undersigned have caused this Amendment to be duly
executed as of the date first written above.
Borrower:
BELPORT CAPITAL FUND LLC, as Borrower
By: EATON VANCE MANAGEMENT, as Manager
By: /s/ Thomas E. Faust Jr.
-----------------------------------
Name: Thomas E. Faust Jr.
Title: Executive Vice President
Address: The Eaton Vance Building
255 State Street
Boston, Massachusetts 02109
Telephone No.: (617) 482-8260
Telecopier No.: (617) 482 3836
Lender:
DRKW HOLDINGS, INC., as Lender
By: /s/ Neil Winward
-----------------------------------
Name: Neil Winward
Title: President
Address: 1301 Avenue of the Americas
New York, New York 10019
Telephone No.: (212) 969-7909
Telecopier No.: (212) 969-7850
ACKNOWLEDGED AND ACCEPTED
Investment Manager:
WELLS FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, as Investment Manager
By: /s/ Melissa Philibert
-----------------------------------
Name: Melissa Philibert
Title: Corporate Trust Officer
Address: Sixth Street and Marquette Avenue
MAC N9311-161
Minneapolis, MN 55479
Attention: Corporate Trust
Services/Asset- Backed Administration
Telephone No.: (612) 667-8058
Telecopier No.: (617) 667-3539