EXHIBIT 4.1(a)
AMENDMENT NO. 1 dated as of March 16, 2004 (this
"Amendment") to the LOAN AND SECURITY Agreement dated as of
July 15, 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 BELAIR
CAPITAL FUND LLC, a Massachusetts limited liability company
(the "Borrower") and DrKW Holdings, Inc., a Delaware
corporation, as lender (the "Lender").
WHEREAS, on July 15, 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 $515,000,000;
WHEREAS, in accordance with Section 2.8 of the Credit Agreement, as of the
date hereof, the Borrower has repaid to the Lender an aggregate of $68,000,000
of the outstanding principal amount of the term loan;
WHEREAS, the Borrower has requested the Lender to increase the amount of
the term loan by $21,000,000, so that, as of the date hereof after giving effect
to this Amendment and all prior prepayments, the aggregate principal amount of
$468,000,000 will be outstanding under the term loan;
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 July 15, 2003 by and among the Overflow Agent, the Lenders referred
to therein, the Swap Provider and the Borrower, as amended from time to
time in accordance with the terms thereof."
(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 $515,000,000 and (y) a Loan to the Borrower
on March 16, 2004 in an aggregate principal amount of $21,000,000 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 "$515,000,000" and inserting the figure "$468,000,000" 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), March 16,
2004 (with respect to the loan made pursuant to Section 2.1(i)(y) hereof)
or the date that a Loan is made pursuant to Section 2.1(ii) (with respect
to such loan made pursuant to Section 2.1(ii)), 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, in addition to any
amounts that the Borrower may prepay in accordance with the immediately
preceding proviso, the Borrower may prepay $21,000,000 in aggregate
principal amount pursuant to this Section 2.8(i) (without reference to the
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immediately preceding proviso), and (ii) at any time after the first
anniversary of the Closing Date, 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 $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."
(F) Section 12.1 of the Credit Agreement is hereby amended in its entirety
to read as follows:
"12.1 EXPENSES. Whether or not the transactions hereby contemplated
shall be consummated, Merrill Lynch Group agrees to pay all reasonable
expenses incurred by the Borrower and the Lender in connection with, or
growing out of, the negotiation, preparation, execution and delivery of
this Agreement (including any waiver or modification hereof or any
amendment hereto) and any other documentation contemplated hereby, the Note
and the Collateral (including the Pledged Securities), including, but not
limited to, the reasonable fees and disbursements of any counsel for the
Lender. The Borrower agrees to pay all reasonable expenses incurred by the
Lender in connection with, or growing out of, the enforcement and
administration of this Agreement and any other documentation contemplated
hereby, the Note and the Collateral (including the Pledged Securities),
including, but not limited to, the reasonable fees and disbursements of any
counsel for the Borrower and the Lender."
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;
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(B) the Lender shall have received a new Note executed by the Borrower in
an aggregate principal amount of $468,000,000 to be exchanged for and replace
the prior Note delivered by the Borrower in an aggregate principal amount of
$515,000,000;
(C) the Borrower shall have received from the Lender the prior Note in an
aggregate principal amount of $515,000,000 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 $21,000,000 available to the Borrower on
March 16, 2004 by causing an amount of same day funds in Dollars equal to
$21,000,000 to be disbursed via Federal Funds wire transfer to the Borrower's
account at the Custodian, ABA No. 011-001-438, Account No. 5821-5013 Control
Wire Re: Belair Capital Fund LLC - 4922, 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.
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IN WITNESS WHEREOF, the undersigned have caused this Amendment to be duly
executed as of the date first written above.
Borrower:
BELAIR CAPITAL FUND LLC, as Borrower
By: EATON VANCE MANAGEMENT, as
Manager
By: /s/ M. Katherine Kreider
--------------------------------
Name: M. Katherine Kreider
Title: 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 D. Winward
--------------------------------
Name: Neil D. 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, NATIONAL
ASSOCIATION, successor-by-merger to
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