EX-4.1(A) 2 belairex41a.txt LOAN & SECURITY AGT. AMEND. BTW BELAIR & DRKW EXHIBIT 4.1(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 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, in accordance with Section 2.8 of the Credit Agreement, as of the date hereof, the Borrower has repaid to the Lender an aggregate of $68,000,000 of the outstanding principal amount of the term loan; WHEREAS, the Borrower has requested the Lender to increase the amount of the term loan by $21,000,000, so that, as of the date hereof after giving effect to this Amendment and all prior prepayments, the aggregate principal amount of $468,000,000 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) Article 1 of the Credit Agreement is hereby amended by amending and restating the following definitions in their entirety to read as follows: "'LOAN' shall mean collectively, the loans made by the Lender to the Borrower under this Agreement pursuant to Section 2.1(i) and any loans made by the Lender to the Borrower under this Agreement pursuant to Section 2.1(ii). `OVERFLOW AGREEMENT' shall mean the Loan and Security Agreement dated as of July 15, 2003 by and among the Overflow Agent, the Lenders referred to therein, the Swap Provider and the Borrower, as amended from time to time in accordance with the terms thereof." (B) 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 (x) a Loan to the Borrower on the Closing Date in an aggregate principal amount of $515,000,000 and (y) a Loan to the Borrower on March 16, 2004 in an aggregate principal amount of $21,000,000 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." (C) Section 2.2(b) of the Credit Agreement is hereby amended by deleting the figure "$515,000,000" and inserting the figure "$468,000,000" in lieu thereof. (D) 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)(x) hereof), March 16, 2004 (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." (E) Section 2.8 of the Credit Agreement is hereby amended in its entirety to read as follows: "2.8 OPTIONAL PREPAYMENTS. Subject to Section 12.3, the Borrower may at any time and from time to time (i) from the Closing Date until the date that is the first anniversary thereof; provided that, except as set forth below in this Section 2.8, after giving effect to any prepayment made pursuant to this Section 2.8(i) all of the conditions set forth on Schedule 2.8 hereto would be satisfied; provided, further that, in addition to any amounts that the Borrower may prepay in accordance with the immediately preceding proviso, the Borrower may prepay $21,000,000 in aggregate principal amount pursuant to this Section 2.8(i) (without reference to the 2 immediately preceding proviso), and (ii) at any time after the first anniversary of the Closing Date, upon five Business Days' prior written notice to the Lender, pay the outstanding principal amount of the Loan, in whole or in part, without prepayment penalty, together with accrued interest to the date of such prepayment on the principal amount prepaid, provided that each partial principal repayment shall be in a minimum aggregate amount of $1,000,000 or any integral multiple of $100,000 in excess thereof. Each notice of prepayment shall specify the prepayment date and the principal amount of the Loan to be prepaid, shall be irrevocable and shall commit the Borrower to prepay the Loan in the amount and in the date stated therein." (F) Section 12.1 of the Credit Agreement is hereby amended in its entirety to read as follows: "12.1 EXPENSES. Whether or not the transactions hereby contemplated shall be consummated, Merrill Lynch Group agrees to pay all reasonable expenses incurred by the Borrower and the Lender in connection with, or growing out of, the negotiation, preparation, execution and delivery of this Agreement (including any waiver or modification hereof or any amendment hereto) and any other documentation contemplated hereby, the Note and the Collateral (including the Pledged Securities), including, but not limited to, the reasonable fees and disbursements of any counsel for the Lender. The Borrower agrees to pay all reasonable expenses incurred by the Lender in connection with, or growing out of, the enforcement and administration of this Agreement and any other documentation contemplated hereby, the Note and the Collateral (including the Pledged Securities), including, but not limited to, the reasonable fees and disbursements of any counsel for the Borrower and the Lender." 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; 3 (B) the Lender shall have received a new Note executed by the Borrower in an aggregate principal amount of $468,000,000 to be exchanged for and replace the prior Note delivered by the Borrower in an aggregate principal amount of $515,000,000; (C) the Borrower shall have received from the Lender the prior Note in an aggregate principal amount of $515,000,000 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 $21,000,000 available to the Borrower on March 16, 2004 by causing an amount of same day funds in Dollars equal to $21,000,000 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. 4 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/ Melissa Philibert -------------------------------- Name: Melissa Philibert 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