EXHIBIT 4.2(c)
WAIVER AND AMENDMENT NO. 3 dated as of September 8, 2004
(this "Waiver and 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 and Amendment No. 2 dated
as of August 3, 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 August 3, 2004, the Lenders increased the amount available under the
revolving credit facility by $13,000,000 to an aggregate principal amount of
$113,000,000.
The Borrower has requested that the Lenders increase the amount available
under the revolving credit facility by $10,000,000 to an aggregate principal
amount of $123,000,000.
The Borrower has advised the Lenders that as of the date hereof, certain
defaults have occurred under the Credit Agreement, all as described on Schedule
1 hereto (the "Specified Defaults").
The Borrower has also requested and the Required Lenders have agreed,
subject to the terms and conditions of this Waiver and Amendment to (i) waive
the Specified Defaults, and waive all Defaults and Events of Default caused by
such Specified Defaults and (ii) 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 Required Lenders hereby waive the Specified Defaults and
waive all Defaults and Events of Default caused by the Specified Defaults, and
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 definition of "Maximum Loan Amount" in its entirety to read as
follows:
"'Maximum Loan Amount' shall mean $123,000,000; 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) Section 7.17 of the Credit Agreement is hereby amended in its entirety
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 $23,000,000 (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."
(C) Schedule 1.1 to the Credit Agreement is hereby amended by deleting the
figure "$113,000,000" and inserting the figure "$123,000,000" 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
"123,000,000" 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 Waiver and 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
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(B) after giving effect to this Waiver and 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 Waiver and
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 Waiver and
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
$123,000,000 to be exchanged for and replace the prior Note (the "Original
Note") delivered by the Borrower in an aggregate principal amount of
$113,000,000;
(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 Waiver and 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 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 Waiver and 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 waivers and 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.
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(C) This Waiver and 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 Waiver and Amendment shall constitute a Fundamental Document.
(E) This Waiver and 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 Waiver
and 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
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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
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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
SCHEDULE 1
SPECIFIED DEFAULTS
1. Default of Section 2.1(a)(ii) as the result of the aggregate outstanding
principal amount of all Loans and L/C Exposure exceeding the Maximum Loan Amount
from August 3, 2004 to September 8, 2004.
2. Default of Section 10.1(a)(iii) as the result of the default described in
paragraph 1 above continuing unremedied for 30 days.
3. Default of Sections 2.3(a) and 10.1(c) as the result of the Borrower making a
material misrepresentation in (a) the Borrowing Notice dated August 3, 2004 when
it certified that after giving effect to the Proposed Loan (as defined in such
Borrowing Notice), the total of all Loans outstanding and L/C Exposure would not
exceed the Commitment and (b) the Compliance Certificate dated August 3, 2004
when it certified that no Event of Default or Default under the Loan Agreement
had occurred and was continuing.
4. Default of Section 10.1(n) as the result of the occurrence of an Event of
Default (as defined in the Term Loan Agreement) under the Term Loan Agreement,
resulting from the defaults described in paragraphs 2 and 3 above.
5. Default of Section 3(B) of Amendment No. 2 dated as of August 3, 2004, to the
Loan and Security Agreement dated as of July 15, 2003 (as amended), by and among
the Borrower, the Lenders, the Agent and the Swap Provider, as the result of the
Borrower misrepresenting that no Event of Default or Default will have occurred
and be continuing on and as of the date thereof.