EXHIBIT 4.2(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 among BELAIR
CAPITAL FUND LLC, a Massachusetts limited liability company
(the "Borrower"), the Lenders referred to therein, Merrill
Lynch Mortgage Capital, Inc., a Delaware corporation, as
agent (the "Agent"), and Merrill Lynch Capital Services,
Inc., a Delaware corporation (the "Swap Provider").
WHEREAS, on July 15, 2003, the Borrower, the Lenders, the Agent and the
Swap Provider entered into the Credit Agreement pursuant to which the Lenders
made available to the Borrower a revolving credit facility in the aggregate
principal amount of $100,000,000;
WHEREAS, the Borrower has requested and the Required Lenders have 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:
Article 1 of the Credit Agreement is hereby amended by amending and
restating the following definition in its entirety to read as follows:
"`TERM LOAN AGREEMENT' shall mean the Loan and Security Agreement dated as
of July 15, 2003 by and between the Term Lender and the Borrower, as amended
from time to time in accordance with the terms thereof."
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 Agent shall have received executed counterparts of this Amendment
which, when taken together, bear the signatures of the Required Lenders and the
Borrower;
(B) the Agent shall have received the written opinion of counsel to the
Borrower, dated the date hereof and addressed to the Agent, in form and
substance satisfactory to counsel to the Agent;
(C) the Agent shall have received such other documents as the Agent may
reasonably request; and
(D) all legal matters incident to this Amendment shall be satisfactory to
counsel to the Agent.
SECTION 4. 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
Lenders:
MERRILL LYNCH MORTGAGE CAPITAL,
INC., individually and as Agent
By: /s/ Joshua A. Green
--------------------------------
Name: Joshua A. Green
Title: Vice President
Address: 4 World Financial Center
10th Floor
New York, New York 10080
Telephone No.: (212) 449-7330
Telecopier No.: (212) 449-6673
Swap Provider:
MERRILL LYNCH CAPITAL SERVICES,
INC., as Swap Provider
By: /s/ Thomas Finley
--------------------------------
Name: Thomas Finley
Title: Managing Director
Address: 4 World Financial Center
12th Floor
New York, New York 10080
Telephone No.: (212) 449-8169
Telecopier No.: (212) 449-6993