Contract
Exhibit 4.1(e)
AMENDMENT NO. 5 dated as of February 14, 2008 (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 further amended by Amendment No. 2 dated as of February 17, 2005, as further amended by Amendment No. 3 dated as of December 15, 2005 and as further amended by Amendment No. 4 dated as of October 10, 2007 (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 DRESDNER KLEINWORT HOLDINGS I, INC. (formerly known as 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, immediately prior to the Effective Date (as defined herein) of this Amendment and after giving effect to all prior amendments to the Credit Agreement and all prior prepayments, an aggregate principal amount of $301,000,000 was outstanding under the term loan;
WHEREAS, the Borrower has requested that the Lender decrease the amount of the term loan by $14,000,000 to an aggregate principal amount of $287,000,000;
WHEREAS, the Borrower and the Lender have mutually 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 2.2(b) of the Credit Agreement is hereby amended by deleting the figure “$301,000,000” and inserting the figure “$287,000,000” in lieu thereof.
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 executed by the Borrower in an aggregate principal amount of $287,000,000 to be exchanged for and replace the prior Note delivered by the Borrower in an aggregate principal amount of $301,000,000;
(C) the Borrower shall have received from the Lender the prior Note in an aggregate principal amount of $301,000,000 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. 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
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By: |
XXXXX XXXXX MANAGEMENT,
as |
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By: |
/s/ Xxxxxx Xxxxxxxx |
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Name: |
Xxxxxx Xxxxxxxx |
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Title: |
Vice President |
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Address: |
The Xxxxx Xxxxx Building |
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000 Xxxxx Xxxxxx |
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Xxxxxx, Xxxxxxxxxxxxx 00000 |
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Telephone No.: (000) 000-0000 |
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Telecopier No.: (000) 000 0000 |
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Lender:
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DRESDNER KLEINWORT
HOLDINGS I, INC., |
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By: |
/s/ Xxxxxxx Xxxxxxx |
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Name: |
Xxxxxxx Xxxxxxx |
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Title: |
President |
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Address: |
0000 Xxxxxx xx xxx Xxxxxxxx |
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Xxx Xxxx, Xxx Xxxx 00000 |
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Telephone No.: (000) 000-0000 |
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Telecopier No.: (000) 000-0000 |
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ACKNOWLEDGED AND ACCEPTED
Investment Manager:
XXXXX FARGO BANK,
NATIONAL
ASSOCIATION,successor-by-merger to Xxxxx
Fargo Bank Minnesota, National Association, as
Investment Manager
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By: |
/s/ Xxxxxxx X. Puttin |
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Name: |
Xxxxxxx X. Puttin |
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Title: |
Corporate Trust Officer |
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Address: |
Sixth Street and Marquette Avenue |
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MAC X0000-000 |
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Xxxxxxxxxxx, XX 00000 |
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Attention: Corporate Trust |
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Services/Asset- |
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Backed Administration |
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Telephone No.: (000) 000-0000 |
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Telecopier No.: (000) 000-0000 |
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