EXHIBIT 4.1
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EXECUTION COPY
FIRST AMENDMENT TO THE NOTE PURCHASE AGREEMENT
FIRST AMENDMENT, dated as of July 1, 2003 (the "First
Amendment"), to the Note Purchase Agreement, dated as of August 10, 2001 (the
"Note Purchase Agreement"), by and among Cascade Investment LLC, a Washington
limited liability company ("Buyer"), Gabelli Asset Management Inc., a New York
corporation ("Seller"), Mario J. Gabelli ("Gabelli"), Gabelli Group Capital
Partners, Inc., a New York corporation ("Gabelli Group") and Rye Holdings, Inc.,
a New York corporation ("Rye Holdings") and Rye Capital Partners, Inc.
(collectively with Gabelli, the Gabelli Group and Rye Holdings, the "Gabelli
Stockholders" ). All capitalized terms used but not defined herein which are
defined in the Note Purchase Agreement (or in the Note, as defined therein)
shall have the meanings assigned to such terms in such agreement.
RECITALS
A. The parties hereto desire to amend the Note Purchase
Agreement and the Note in the manner set forth below.
B. Except as amended below, the Note Purchase Agreement,
Registration Rights Agreement and the Note (collectively, the "Transaction
Documents") shall remain in full force and effect as they were prior to this
First Amendment.
NOW, THEREFORE, in consideration of the mutual promises
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by each party, the parties hereto
agree as follows:
1. Amendment of the Note. The parties hereto hereby amend the
Note so that from and after August 14, 2003 until Maturity, (i) the interest
rate shall be 5.00% per annum, (ii) the Conversion Price will decrease by $1.00
from what it was immediately prior to the execution and delivery of this First
Amendment and (iii) the Exercise Date shall become August 14, 2004
(collectively, the "Note Amendments"). Concurrently with the execution and
delivery of this First Amendment, the Seller is delivering to Buyer, in exchange
for the duly executed original Note, a duly executed amended Note in the form of
Exhibit A here, which is identical to the original Note in all respects except
that it gives effect to the Note Amendments. The parties agree that the amended
Note is a replacement of the original Note and evidences the same debt, and is
entitled to the same benefits as, the original Note except to the extent
otherwise provided by the Note Amendments. The parties also agree that neither
this First Amendment nor the amended Note shall affect any rights or obligations
under the Note Purchase Agreement or Note with respect to any periods, acts,
omissions or circumstances which occurred prior to the date of this First
Amendment. From and after the execution and delivery of this First Amendment,
all references in the Transaction Documents to the Note shall be deemed to be
references to the Note as amended by the Note Amendments.
2. Letter of Credit. Concurrently with the execution and
delivery of this First Amendment, the Seller is delivering to Buyer an amendment
to the Letter of Credit duly executed by the Letter of Credit Issuer which (i)
extends the expiration date of the Letter of Credit until August 22, 2004 and
(ii) decreases the Letter of Credit amount so that the aggregate amount
available thereunder shall not exceed $102,500,000.00 (the "Letter of Credit
Amendments"). From and after the execution and delivery of this First Amendment,
all references in the Transaction Documents to the Letter of Credit shall be
deemed to be references to the Letter of Credit as amended by the Letter of
Credit Amendments.
3. References to Agreement. From and after the execution and
delivery of this First Amendment, all references in the Transaction Documents to
the Agreement shall be deemed to be references to the Agreement as amended by
this First Amendment.
4. Amendment to Registration Rights Agreement. To the extent
provided herein, this First Amendment shall be an amendment of the Registration
Rights Agreement.
5. Miscellaneous. Sections 2.1.1, 2.1.4, 2.1.5, and 6 of the
Note Purchase Agreement are incorporated herein by reference, MUTANDIS MUTANDI,
with all references therein to any of the Transaction Documents being changed to
refer solely to this First Amendment.
(THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK)
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SIGNATURE PAGE - FIRST AMENDMENT TO NOTE PURCHASE AGREEMENT
NOTICE: ORAL AGREEMENTS OR ORAL COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR TO
FORBEAR FROM ENFORCING REPAYMENT OF A DEBT ARE NOT ENFORCEABLE UNDER WASHINGTON
LAW.
IN WITNESS WHEREOF, the parties hereto have executed this First
Amendment as of the date first mentioned above.
SELLER: BUYER:
GABELLI ASSET MANAGEMENT INC. CASCADE INVESTMENT LLC
BY: BY:
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GABELLI STOCKHOLDERS:
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MARIO J. GABELLI
GABELLI GROUP CAPITAL PARTNERS, INC.
BY:
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RYE HOLDINGS, INC.
BY:
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RYE CAPITAL PARTNERS, INC.
BY:
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EXHIBIT A
FORM OF CONVERTIBLE PROMISSORY NOTE
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