EXHIBIT 4.2(b)
AMENDMENT NO. 2 dated as of August 3, 2004 (this
"Amendment") to the LOAN AND SECURITY Agreement dated as of
July 15, 2003, as amended by Amendment No. 1 dated as of
March 16, 2004 (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").
INTRODUCTORY STATEMENT
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.
On or about the date hereof the Borrower intends to make a capital
contribution and/or a loan to Belair Real Estate Corporation, a Delaware
corporation and a subsidiary of the Borrower ("BRC"), which such capital
contribution and/or loan proceeds will be used by BRC to make a capital
contribution and/or a loan to Elkhorn Property Trust, a real estate investment
trust organized under the laws of the State of Maryland (the "JV") in which BRC
owns 100% of the outstanding Class A common shares (representing 80% of the
total outstanding common shares) and ProLogis ("ProLogis") owns 100% of the
outstanding Class B common shares (representing 20% of the total outstanding
common shares), which such capital contribution and/or loan proceeds will be
used by the JV to make a capital contribution and/or a loan to ProLogis Six
Rivers Limited Partnership, a Delaware limited partnership ("Six Rivers"), which
such capital contribution and/or loan proceeds will be used by Six Rivers to
acquire certain commercial real estate from Keystone Property Trust.
In order to make the necessary funds available for such capital
contributions and/or loans the Borrower has requested that the Lenders
temporarily increase the amount available under the revolving credit facility by
$13,000,000 to an aggregate principal amount of $113,000,000.
The Borrower has also 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.
Accordingly, in consideration of the premises and of the mutual agreements
herein contained, the parties hereto agree as follows:
SECTION 1. Defined Terms. Capitalized terms used herein and not otherwise
defined herein shall have the meanings given them in the Credit Agreement.
SECTION 2. Amendments. Subject to the satisfaction of the conditions
precedent set forth in Section 4 hereof, the Credit Agreement is hereby amended
as of the Effective Date (as defined in Section 4 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:
"'Interest Rate' shall mean a rate per annum of LIBOR, reset for each
Interest Period, plus the Applicable Margin."
"'Maximum Loan Amount' shall mean $113,000,000; provided, however, that as
of the earlier to occur of (i) the prepayment of the Loans pursuant to
Section 2.7(b) or (ii) October 29, 2004, the "Maximum Loan Amount" shall
mean $100,000,000."
(B) Article 1 of the Credit Agreement is hereby amended by adding the
following definitions in their proper alphabetical order to read as follows:
"'Applicable Margin' shall mean 0.38%; provided, however, that with respect
to that portion, if any, of the outstanding principal amount of all Loans
hereunder which exceeds $100,000,000, the term "Applicable Margin" shall
mean 0.90%."
"'JV' shall mean Elkhorn Property Trust, a real estate investment trust
organized under the laws of the State of Maryland."
"'Keystone Debt Financing' shall have the meaning set forth in Section 7.17
hereof."
"'Six Rivers' shall mean ProLogis Six Rivers Limited Partnership, a
Delaware limited partnership."
(C) Section 2.7 of the Credit Agreement is hereby amended in its entirety
to read as follows:
"2.7 Repayment and Termination.(a) The Borrower shall repay the outstanding
principal amount of all Loans on the Maturity Date.
(b) Upon the earlier to occur of (i) the Keystone Debt Financing or (ii)
October 29, 2004 the Borrower shall immediately prepay the outstanding principal
amount of the Loans in excess of $100,000,000, so that, after giving effect to
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such prepayment, the aggregate principal amount of the Loans outstanding will be
equal to or less than $100,000,000."
(D) Article 7 of the Credit Agreement is hereby amended by adding a new
Section 7.17 at the end thereof to read as follows:
"7.17 Keystone Debt Financing. The Borrower shall use its best efforts to
cause the JV or Six Rivers to obtain and effectuate debt financing which
complies with the requirements of Section 8.1(vi) with net proceeds in an amount
equal to or greater than $13,000,000 (the "Keystone Debt Financing") prior to
October 1, 2004. Upon the occurrence of the Keystone Debt Financing, all or a
portion of the proceeds of the Keystone Debt Financing shall be used by the
Borrower to prepay the Loans in accordance with Section 2.7(b). In the event the
Borrower is unable to obtain and effectuate the Keystone Debt Financing (and
make the corresponding prepayment required by Section 2.7(b)) by October 1,
2004, the Borrower shall provide the Agent with written notice thereof prior to
October 1, 2004 and shall continue to use its best efforts to obtain and
effectuate the Keystone Debt Financing by October 29, 2004."
(E) The introductory sentence in Article 8 of the Credit Agreement is
hereby amended in its entirety to read as follows:
"Until this Agreement has terminated and all Obligations have been
indefeasibly paid in full, the Borrower will not and it will not allow its
subsidiaries (including, without limitation, BRC), and, at anytime prior to
the prepayment of the Loans by the Borrower in accordance with Section
2.7(b), the JV or Six Rivers, to:"
(F) Section 8.1 of the Credit Agreement is hereby amended by deleting the
period which appears at the end of the first sentence thereof and adding the
following in lieu thereof:
", (vi) Indebtedness of the JV or Six Rivers which will be used to prepay
the outstanding principal amount of the Loans in excess of $100,000,000
immediately upon the incurrence of such Indebtedness, provided that such
Indebtedness is without recourse to the Borrower and BRC except to the
extent of a so-called "-bad boy" guaranty by the Borrower or BRC on terms
and conditions consistent with the past practice of the Borrower and
similar entities advised by the Investment Advisor or an Affiliate thereof
and (vii) Indebtedness of BRC to the Borrower and the JV to BRC which will
be used by BRC and the JV to make a capital contribution and/or a loan to
the JV and Six Rivers, respectively."
(G) Section 8.2 of the Credit Agreement is hereby amended by (1) deleting
the "and" which immediately precedes the reference to "(vii)" and inserting a
comma in lieu thereof and (2) deleting the period which appears at the end
thereof and adding the following in lieu thereof:
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"and (viii) Liens on assets of the JV or Six Rivers in respect of
Indebtedness permitted under Section 8.1(vi)."
(H) Section 8.9 of the Credit Agreement is hereby amended in its entirety
to read as follows:
"8.9 Limitation on Restriction on Subsidiary Dividends and Other
Distributions, ect. Create or otherwise cause or suffer to exist or become
effective any consensual encumbrance or restriction on the ability of (1)
BRC to (a) pay dividends or make any other interest or participation in its
profits owned by the Borrower other than such restrictions as are set forth
in BRC's certificates of incorporation or BRC's Certificate of Designation
of Class A preferred stock, or pay any indebtedness owed to the Borrower,
(b) make loans or advances to the Borrower, or (c) transfer any of its
properties or assets to the Borrower and (2) at any time prior to the
prepayment of the Loans by the Borrower in accordance with Section 2.7(b),
the JV or Six Rivers to pay dividends, or pay any indebtedness owed to the
JV by Six Rivers or to BRC by the JV."
(I) Schedule 1.1 to the Credit Agreement is hereby amended by deleting the
figure "$100,000,000" and inserting the figure "$113,000,000" in lieu thereof;
provided, however, that as of the earlier to occur of (i) the prepayment of the
Loans pursuant to Section 2.7(b) or (ii) October 29, 2004, the figure
"113,000,000" shall be replaced with the figure "$100,000,000."
SECTION 3. 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 4. 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 4 (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 a new Note (the "Replacement Note") duly
executed on behalf of the Borrower in an aggregate principal amount of
$113,000,000 to be exchanged for and replace the prior Note (the "Original
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Note") delivered by the Borrower in an aggregate principal amount of
$100,000,000;
(C) the Borrower shall have received from the Agent the Original Note for
cancellation;
(D) 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;
(E) the Agent shall have received such other documents as the Agent may
reasonably request; and
(F) all legal matters incident to this Amendment shall be satisfactory to
counsel to the Agent.
SECTION 5. Expenses. Notwithstanding anything to the contrary contained in
the Credit Agreement, the Borrower agrees to pay eighty (80%) of all reasonable
expenses incurred by the Agent and the Lenders in connection with, or growing
out of, the negotiation, preparation, execution and delivery of this Amendment
and any other documentation contemplated hereby, including, but not limited to,
the reasonable fees and disbursements of any counsel for the Agent and the
Lenders.
SECTION 6. Miscellaneous.
(A) Except as expressly amended hereby, the Credit Agreement shall remain
in full force and effect in accordance with the original terms thereof.
(B) 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.
(C) 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.
(D) This Amendment shall constitute a Fundamental Document.
(E) 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/ William R. Cross
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Name: William R. Cross
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/ Richard Zaleski
-------------------------------
Name: Richard Zaleski
Address: 4 World Financial Center
12th Floor
New York, New York 10080
Telephone No.: (212) 449-8169
Telecopier No.: (212) 449-6993