EXHIBIT 4.1(b)
AMENDMENT NO. 2 dated as of February 17, 2005 (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 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, on March 16, 2004, the Borrower and the Lender entered into
Amendment No. 1 to the Credit Agreement pursuant to which the Lender increased
the amount of the term loan by $21,000,000, so that, after giving effect to all
prior prepayments in an aggregate principal amount of $68,000,000, an aggregate
principal amount of $468,000,000 was outstanding under the term loan;
WHEREAS, subsequent to March 16, 2004 the Borrower has additionally repaid
to the Lender an aggregate of $63,000,000 of the outstanding principal amount of
the term loan, so that, after giving effect to such prepayment, the aggregate
principal amount of $405,000,000 was outstanding under the term loan;
WHEREAS, the Borrower has requested the Lender to further increase the
amount of the term loan by $45,000,000, so that, as of the date hereof after
giving effect to this Amendment and all prior prepayments, the aggregate
principal amount of $450,000,000 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) 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 (w) a Loan to the Borrower on the Closing Date in an
aggregate principal amount of $515,000,000, (x) a Loan to the Borrower on
March 16, 2004 in an aggregate principal amount of $21,000,000 and (y) a
Loan to the Borrower on February 17, 2005 in an aggregate principal amount
of $45,000,000 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."
(B) Section 2.2(b) of the Credit Agreement is hereby amended by deleting
the figure "$468,000,000" and inserting the figure "$450,000,000" in lieu
thereof.
(C) 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)(w) hereof), March 16,
2004 (with respect to the loan made pursuant to Section 2.1(i)(x) hereof),
February 17, 2005 (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."
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 (the "Replacement Note") duly
executed on behalf of the Borrower in an aggregate principal amount of
$450,000,000 to be exchanged for and replace the prior Note (the "Original
Note") delivered by the Borrower in an aggregate principal amount of
$468,000,000;
(C) the Borrower shall have received from the Lender the Original Note 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 $45,000,000 available to the Borrower on
February 17, 2005 by causing an amount of same day funds in Dollars equal to
$45,000,000 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/ John Kinzel
------------------------
Name: John Kinzel
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