Exhibit 4(2)
AMENDMENT NO. 7 dated as of June 29, 2000 to
the Loan and Security Agreement dated as of February
5, 1998 (as heretofore amended, the "Loan
Agreement"), by and among XXXXXXX XXXXX INTERNATIONAL
BANK LIMITED (the "Lender"), XXXXXXX XXXXX CAPITAL
SERVICES INC. ("MLCS") and BELAIR CAPITAL FUND LLC
(the "Borrower").
INTRODUCTORY STATEMENT
All capitalized terms not otherwise defined in this Amendment are as
defined in the Loan Agreement.
The Borrower has requested and the Lender hereby consents to and
acknowledges: (i) an increase in the Commitment to $790,000,000; and (ii) the
execution of the Belair Guaranty.
Accordingly, the parties hereto hereby agree as follows:
SECTION 1. Amendments to Loan Agreement. The Loan Agreement is hereby
amended as of the Effective Date (subject to the terms and conditions set forth
in Section 2 hereof) as follows:
(A) The definition of Commitment appearing in Article 1 of the Loan
Agreement is hereby amended in its entirety to read as follows:
"`Commitment' shall mean seven hundred ninety million dollars
($790,000,000) or such lesser amount if reduced pursuant to Section 2.10."
(B) Article 1 of the Loan Agreement is hereby amended to insert the
following definitions in their proper alphabetical location:
"Belair Guaranty" shall mean the Exceptions to the Non-Recourse Guaranty
between Capri Capital Dus, LLC and the Borrower, to be dated as of June 29,
2000.
"Bel-Res" shall mean Bel-Res, L.L.C., a Delaware limited liability company.
"Bel-EQR Credit Agreement" shall mean the Amended & Restated Master Credit
Facility Agreement by and between Bel-EQR II Limited Partnership and Capri
Capital Dus, LLC, dated as of June 29, 2000.
"Bel Trust" shall mean Bel Residential Properties Trust, a Maryland real
estate investment trust.
(C) Section 7.5 of the Loan Agreement is hereby amended to replace the
words "and its consolidated subsidiary's" with "and its consolidated
subsidiaries'."
(D) Section 7.8 of the Loan Agreement is hereby amended to replace the
words "neither the Borrower nor BREC" with "neither the Borrower nor any of its
subsidiaries."
(E) Section 7.9 of the Loan Agreement is hereby amended to replace the
words "the Borrower's or BREC's financial condition" with "the Borrower's or any
of its subsidiaries' financial condition."
(F) Section 7.10 of the Loan Agreement is hereby amended to replace the
words "the Borrower and its consolidated subsidiary" with "the Borrower and its
consolidated subsidiaries."
(G) Section 7.15 of the Loan Agreement is hereby amended to replace the
words "consolidated subsidiary" with "consolidated subsidiaries" and the words
"consolidated subsidiary's" with "consolidated subsidiaries'" in each place they
appear.
(H) Section 7.15(a) of the Loan Agreement is hereby amended in its entirety
to read as follows:
(a) The market value of the total assets of the Borrower, and its
consolidated subsidiaries (less the market value of its assets pledged to
another party), at an amount equal to or in excess of 250% of the sum of the
Required Amount plus the outstanding principal balance of the Loans plus accrued
and unpaid interest on the Loans; provided, however, that for purposes of
computing such market value, (i) neither the membership interests in Bel-Res
which are owned by BREC, nor the stock in Bel Trust which is owned by BREC, nor
the assets which are owned by Bel-Res, Bel Trust or any of their respective
subsidiaries, nor the assets or stock or other membership interest in any other
direct or indirect subsidiary of the Borrower which is hereafter formed or
acquired shall be included; and (ii) the principal amount of the debt guaranteed
by the Borrower pursuant to the Belair Guaranty shall be subtracted from such
market value.
(I) The following Affirmative Covenant is hereby added to the Loan
Agreement as Section 7.16:
7.16 Formation of Additional Subsidiaries. Promptly following the creation
or acquisition thereof, notify the Secured Parties of any additional
subsidiary and the purpose for which it is being created.
(J) Section 8.l of the Loan Agreement is hereby amended to (i) delete the
word "and" after Private Placement Memorandum and insert a semi-colon and (ii)
insert the following at the end of the first sentence:
";(v) Indebtedness of the Borrower under the Belair Guaranty."
(K) Section 8.2(i) of the Loan Agreement is hereby amended in its entirety
to read as follows:
"(i) Liens on assets of the Borrower (but not BREC) in respect of
Indebtedness permitted under Section 8.1 (i)- (iv)."
(L) Section 10.1 of the Loan Agreement is hereby amended to insert the
following clause:
"(m) any event occurs under the Bel EQR Credit Agreement which would
entitle the lender under the Bel EQR Credit Agreement to demand payment
from the Borrower pursuant to the terms of Belair Guaranty."
SECTION 2. Conditions to Effectiveness. This Amendment is subject to the
satisfaction in full of the following conditions (the first date on which all
such conditions have been satisfied being herein called the "Effective Date"):
(A) the Lender shall have received counterparts of this Amendment which,
when taken together, bear the signatures of all parties hereto;
(B) the Lender shall have received an Acknowledgment (in form and substance
satisfactory to the Lender) executed by the Borrower and the Custodian
confirming that the Securities Account Agreement remains in full force and
effect;
(C) the Lender shall have received a promissory note in the form of Exhibit
A to the Loan Agreement in the amount of $790,000,000 (a "New Note") which New
Note shall replace the Note currently held by the Lender and shall be deemed the
Note for purposes of the Loan Agreement and the Lender shall return the existing
Note to the Borrower;
(D) the Lender shall have received a favorable written opinion of Counsel
to the Borrower, dated the Effective Date, addressed to the Lender, to the
effect that this Amendment and the New Note have been duly executed and
delivered by the Borrower and, together with the Loan Agreement as hereby
amended, constitute the legal, valid and binding obligations of the Borrower,
enforceable in accordance with their respective terms and no consent or approval
of any governmental authority or regulatory body to the execution, delivery and
performance of this Amendment or the New Note or to the borrowings thereunder is
required by law, or if any such consent or approval is necessary it has been
obtained, which opinion shall be satisfactory to Xxxxxx, Xxxxx & Xxxxxxx LLP,
counsel for the Lender;
(E) the Lender shall have received (i) a certificate of the Manager of the
Borrower, dated the Effective Date and certifying that (1) the provisions of the
Operating Agreement authorize the Manager to authorize the execution, delivery
and performance in accordance with their terms of this Amendment, the New Note
and the other documents and transactions contemplated by this Amendment and the
borrowings under the Note and that the Manager has so authorized and such
authorization is in full force and effect and (2) neither the certificate of
organization nor the Operating Agreement of the Borrower have been amended since
February 5, 1998 (other than the Amended and Restated Operating Agreement as
amended by the First Amendment thereto dated November 24, 1998) and (ii) such
other documents as the Lender or Xxxxxx, Xxxxx & Bockius LLP, counsel for the
Lender, may reasonably request; and
(F) all legal matters in connection with this Amendment shall be
satisfactory to Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel for the Lender.
SECTION 3. Representations and Warranties. The Borrower hereby represents
and warrants that:
(A) the representations and warranties contained in the Loan 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;
and
(B) the Borrower is in compliance with all the terms and provisions set
forth in the Loan Agreement and, after giving effect hereto, no Default or Event
of Default has occurred and is continuing.
SECTION 4. Full Force and Effect. Except as expressly amended hereby, the
Loan Agreement shall continue in full force and effect in accordance with the
provisions thereof on the date hereof. As used in the Loan Agreement, the terms
"Agreement", "this Agreement" "herein", "hereafter", "hereto", "hereof", and
words of similar import, shall, unless the context otherwise requires, mean the
Loan Agreement as amended by this Amendment.
SECTION 5. APPLICABLE LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. Counterparts. This Amendment may be executed in counterparts,
each of which shall constitute an original, but all of which when taken together
shall constitute but one instrument.
SECTION 7. Expenses. The Borrower agrees to pay all reasonable
out-of-pocket expenses incurred by the Lender in connection with the
preparation, execution and delivery of this Amendment, including, but not
limited to, the reasonable fees and disbursements of Xxxxxx, Xxxxx & Bockius
LLP, counsel for the Lender.
SECTION 8. Headings. The headings of this Amendment are for the purposes of
reference only and shall not affect the construction of or be taken into
consideration in interpreting this Amendment.
IN WITNESS WHEREOF, the undersigned have caused this Amendment to be duly
executed as of the date first written above.
BELAIR CAPITAL FUND, L.L.C.
BY: XXXXX XXXXX MANAGEMENT,
as Manager
BY: /s/ Xxxxxx X. Xxxxx, Xx.
--------------------------
Name: Xxxxxx X. Xxxxx, Xx.
Title: Executive Vice President
Address: Xxxxx Xxxxx
The Xxxxx Xxxxx Building
000 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Telephone No.: 000-000-0000
Telecopier No.: 000-000-0000
XXXXXXX XXXXX CAPITAL SERVICES, INC.
BY: /s/ Xxxxx X. Xxxx
--------------------------
Name: Xxxxx X. Xxxx
Title: Designated Signatory
Address: Xxxxxxx Xxxxx World
Headquarters,
World Financial Center
North Tower, 22nd Floor
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telephone No.: 000-000-0000
Telecopier No.: 000-000-0000
The Lender is a member of The Securities and Futures Authority Limited and
operates a Client Complaints Procedure. If for any reason the Borrower should
have cause for concern or complaint, the Borrower should contact the Manager,
PBG Operations, at the Lender's address indicated below.
XXXXXXX XXXXX INTERNATIONAL BANK LIMITED
BY: /s/ Xxxxxxxx X. Xxxxxxx
-----------------------------
Executd in London, Name: Xxxxxxxx X. Xxxxxxx
England on __________,2000 Title: Associate Director
Address: 000 Xxxxxxxxxx Xxxxxx Xxxx
0xx Xxxxx
Xxxxxx XX0 X0XX
Xxxxxxx
Telephone No.:
AGREED TO: Telecopier No.:
XXXXXXX XXXXX PRIVATE FINANCE INC.
(f/k/a Xxxxxxx Xxxxx International Private
Finance Limited)
By: /s/ G. Xxxxxxxxx Xxxxxxxxx
-------------------------------
Name: G. Xxxxxxxxx Xxxxxxxxx
Title: Vice President
AMENDMENT NO. 8 dated as of November
27, 2000 to the Loan and Security Agreement
dated as of February 5, 1998 (as heretofore
amended, the "Loan Agreement"), by and among
XXXXXXX XXXXX INTERNATIONAL BANK LIMITED
(the "Lender"), XXXXXXX XXXXX CAPITAL
SERVICES INC. ("MLCS") and BELAIR CAPITAL
FUND LLC (the "Borrower").
INTRODUCTORY STATEMENT
All capitalized terms not otherwise defined in this Amendment are as
defined in the Loan Agreement.
The Borrower has requested and the Lender hereby consents to and
acknowledges the addition of the following provisions to the Loan Agreement.
Accordingly, the parties hereto hereby agree as follows:
SECTION 1. Amendments to Loan Agreement. The Loan Agreement is hereby
amended as of the Effective Date (subject to the terms and conditions set forth
in Section 2 hereof) as follows:
(A) The definition of Obligations in Article 1 of the Loan Agreement is
hereby amended to insert the following after the words "on the Loans";
", any reimbursement obligations in respect of Letters of Credit,"
(B) Article 1 of the Loan Agreement is hereby amended to insert the
following definitions in their proper alphabetical location:
"Cash Equivalents" shall mean (i) marketable securities issued, or directly
and fully guaranteed or insured, by the United States of America or any
agency or instrumentality thereof (provided that the full faith and credit
of the United States of America is pledged in support thereof) having
maturities of not more than twelve months from the date of acquisition,
(ii) time deposits, demand deposits, certificates of deposit, acceptances
or prime commercial paper or repurchase obligations for underlying
securities of the types described in clause (i) entered into with, any
Lender or any commercial bank having a short-term deposit rating of at
least A-2 or the equivalent thereof by Standard & Poor's Corporation or at
least P-2 or the equivalent thereof by Xxxxx'x Investors Service, Inc.,
(iii) commercial paper with a rating of A-1 or A-2 or the equivalent
thereof by Standard & Poor's Corporation or P-1 or P-2 or the equivalent
thereof by Xxxxx'x Investors Service, Inc. and in each case maturing within
twelve months after the date of acquisition or (iv) any mutual fund or
other pooled investment vehicle which invests principally in the foregoing
obligations.
"L/C Exposure" shall mean, at any time, the amount expressed in Dollars of
the aggregate face amount of all drafts which may then or thereafter be
presented by beneficiaries under all Letters of Credit then outstanding
plus (without duplication), the face amount of all drafts which have been
presented or accepted under all Letters of Credit but have not yet been
paid or have been paid but not reimbursed, whether directly or from the
proceeds of a Loan hereunder.
"Letter of Credit" shall mean a letter of credit issued by the Lender
pursuant to Section 2.12 hereof.
(C) Section 2.1 of the Loan Agreement is hereby amended to insert the
following clause after the words "outstanding Loans" in the 4th line thereof:
"plus the then current L/C Exposure;"
(D) Section 2.4 of the Loan Agreement is hereby amended to insert the
following clause after the words "interest rate on the Loans" in the second to
last sentence:
"or with respect to any drawing under a Letter of Credit"
(E) Section 2.9 of the Loan Agreement is hereby amended to insert the
following clause after the words "Loans outstanding" in the last line of the
first sentence:
"plus the then current L/C Exposure"
(F) Section 2.10 of the Loan Agreement is hereby amended to insert the
following clause after the words "Section 2.7)":
"plus the then current L/C Exposure,"
(G) Article 2 of the Loan Agreement is hereby amended to insert the
following section:
"2.12 Letter of Credit. (a)(i) Upon the terms and subject to the conditions
hereof and of Applicable Law, the Lender agrees, upon extend Letters of
Credit previously issued hereunder) payable in Dollars from time to time
after the Effective Date and prior to the Commitment Termination Date,
provided, however, that (A) the Borrower shall not request, and the Lender
shall not issue, any Letter of Credit if, after giving effect thereto, the
sum of the then current L/C Exposure, plus the aggregate principal amount
of all Loans then outstanding would exceed the Commitment then in effect
and (B) the Borrower shall not request, and the Lender shall not issue (or
extend), any Letter of Credit having an expiration date (x) later than the
tenth day prior to the Commitment Termination Date or (y) more than one
year after its date of issuance.
(ii) Each Letter of Credit may, at the option of the Lender, provide that
the Lender may (but shall not be required to) pay all or any part of the
maximum amount which may at any time be available for drawing thereunder to
the beneficiary thereof upon the occurrence or continuation of an Event of
Default and the acceleration of the maturity of the Loans, provided that,
if payment is not then due to the beneficiary, the Lender shall deposit the
funds in question in a segregated account with the Lender to secure payment
to the beneficiary and any funds so deposited shall be paid to the
beneficiary of the Letter of Credit if conditions to such payment are
satisfied or returned to the Lender (or, if all Obligations shall have been
paid in full in cash, to the Borrower) if no payment to the beneficiary has
been made and the final date available for drawings under the Letter of
Credit has passed. Each payment or deposit of funds by the Lender as
provided in this paragraph shall be treated for all purposes of this Loan
Agreement as a drawing duly honored by the Lender under the related Letter
of Credit.
(b) Whenever the Borrower desires the issuance of a Letter of Credit, it
shall deliver to the Lender a written notice no later than 2:00 p.m. (New York
City time) at least three (3) Business Days prior to the proposed date of
issuance. That notice shall specify (i) the proposed date of issuance (which
shall be a Business Day), (ii) the face amount of the Letter of Credit, (iii)
the expiration date of the Letter of Credit and (iv) the name and address of the
beneficiary. Such notice shall be accompanied by a brief description of the
underlying transaction and upon request of the Lender, the Borrower shall
provide additional details regarding the underlying transaction. Concurrently
with the giving of written notice of a request for the issuance of a Letter of
Credit, the Borrower shall provide a precise description of the documents and
the verbatim text of any certificate to be presented by the beneficiary of such
Letter of Credit which, if presented by such beneficiary prior to the expiration
date of the Letter of Credit, would require the Lender to make payment under the
Letter of Credit; provided, however, that the Lender, in its reasonable
discretion, may require customary changes in any such documents and certificates
to be presented by the beneficiary.
(c) The acceptance and payment of drafts under any Letter of Credit shall
be made in accordance with the terms of such Letter of Credit and the
Uniform Customs and Practice for Documentary Credits, International Chamber of
Commerce Publication No. 500, as adopted or amended from time to time. The
Lender shall be entitled to honor any drafts and accept any documents presented
to it by the beneficiary of such Letter of Credit in accordance with the terms
of such Letter of Credit and believed by the Lender in good faith to be genuine.
The Lender shall not have any duty to inquire as to the accuracy or authenticity
of any draft or other drawing documents which may be presented to it, but shall
be responsible only to determine in accordance with customary commercial
practices that the documents which are required to be presented before payment
or acceptance of a draft under any Letter of Credit have been delivered and that
they comply on their face with the requirements of that Letter of Credit.
(d) The Borrower is absolutely, unconditionally and irrevocably obligated
to reimburse all amounts drawn under each Letter of Credit. If any draft is
presented under a Letter of Credit, the payment of which is required to be made
at any time on or before the Commitment Termination Date, then payment by the
Lender of such draft shall constitute a Loan hereunder with an initial Interest
Period of one month and interest shall accrue from the date the Lender makes
payment on such draft under such Letter of Credit. If any draft is presented
under a Letter of Credit, the payment of which is required to be made after the
Commitment Termination Date or at a time when an Event of Default or Default
shall have occurred and then be continuing, then the Borrower shall immediately
pay to the Lender, in immediately available funds, the full amount of such draft
together with interest thereon at a rate per annum of 2% in excess of the Base
Rate from the date on which the Lender makes such payment of such draft until
the date it receives full reimbursement for such payment from the Borrower. The
Borrower further agrees that the Lender may reimburse itself for such drawing
from the balance in any other account of the Borrowers maintained with the
Lender or any of its Affiliates.
(e) The Borrower agrees to pay the following amounts to the Lender with
respect to Letters of Credit issued by it hereunder:
(i) with respect to the issuance, confirmation, amendment or transfer
of each Letter of Credit and each drawing made thereunder, documentary
and processing charges in accordance with the Lender's standard
schedule for such charges in effect at the time of such issuance,
confirmation, amendment, transfer or drawing, as the case may be,
together with any additional chargers imposed any confirming or
advising bank; and
(ii) a commission payable quarterly in advance (commencing on the date
of issuance of any Letter of Credit and continuing so long as such
Letter of Credit or any draft drawn thereunder remains outstanding)
computed at a rate per annum of 0.45% of the face amount of such
Letter of Credit; and
(f) If by reason of (i) any change in applicable law after the Effective
Date, or in the interpretation or administration thereof (including, without
limitation, any request, guideline or policy not having the force of law) by any
Governmental Authority charged with the administration or interpretation
thereof, or (ii) compliance by the Lender with any direction, request or
requirement (whether or not having the force of law) issued after the Effective
Date by any Governmental Authority or monetary authority, including, without
limitation, any change whether or not proposed or published prior to the
Effective Date and any modifications to Regulation D occurring after the
Effective Date:
(A) the Lender shall be subject to any tax, levy, impost, duty, fee,
charge, deduction or withholding of any nature with respect to any Letter of
Credit (other than withholding tax imposed by the United States of America or
any other tax, levy, impost, duty, fee, charge, deduction or withholding (1)
that is measured with respect to the overall net income of the Lender , and that
is imposed by the United States of America, or by the jurisdiction in which the
Lender is incorporated, or the Lender has its principal office or a presence
which is not otherwise connected with, or required by, this transaction (or any
political subdivision or taxing authority thereof or therein) or (2) that is
imposed solely by reason of the Lender failing to make a declaration of, or
otherwise to establish, non-residence or to make any other claim for exemption,
or otherwise to comply with any certification, identification, information,
documentation or reporting requirements prescribed under the laws of the
relevant jurisdiction, in those cases where the Lender may properly make the
declaration or claim or so establish non-residence or otherwise comply), or to
any variation thereof or to any penalty with respect to the maintenance or
fulfillment of its obligations under this Section 2.12, whether directly or by
such being imposed on or suffered by the Lender;
(B) the basis of taxation of any fee or amount payable hereunder with
respect to any Letter of Credit or any participation therein shall be changed;
(C) any reserve, deposit or similar requirement is or shall be applicable,
imposed or modified in respect of any Letter of Credit issued by the Lender; or
(D) there shall be imposed on the Lender any other condition regarding this
Section 2.12, any Letter of Credit or any participation therein;
and the result of the foregoing is to directly or indirectly increase the
cost to the Lender of issuing, making or maintaining any Letter of Credit or of
purchasing or maintaining any participation therein, or to reduce the amount
receivable in respect thereof by the Lender, then and in any such case the
Lender may, at any time, notify the Borrower, and the Borrower shall promptly
pay the Lender upon its demand such amounts as the Lender may specify to be
necessary to compensate it for such additional cost or reduced receipt. The
determination by the Lender of any amount due pursuant to this Section 2.12 as
set forth in a certificate setting forth the calculation thereof in reasonable
detail shall, in the absence of manifest error, be final, conclusive and binding
on all of the parties hereto.
(g) If at any time when an Event of Default shall have occurred and be
continuing, any Letters of Credit shall remain outstanding, then the Lender may
require the Borrower to deliver to it Cash Equivalents in an amount equal to the
full amount of the L/C Exposure or to furnish other security acceptable to the
Lender. Any amounts so delivered pursuant to the preceding sentence shall be
applied to reimburse the Lender for the amount of any drawings honored under
Letters of Credit; provided, however, that if prior to the Maturity Date, (i) no
Default or Event of Default is then continuing, then the Lender shall return all
of such collateral relating to such deposit to the Borrower if requested by it
or (ii) Letters of Credit shall expire or be returned by the beneficiary so that
the amount of the Cash Equivalents delivered to the Lender hereunder shall
exceed the then current L/C Exposure, then such excess shall first be applied to
pay any Obligations then due under this Loan Agreement and the remainder shall
be returned to the Borrower.
(h) Notwithstanding the termination of the Commitments and the payment of
the Loans, the obligations of the Borrower under this Section 2.12 shall remain
in full force and effect until the Lender shall have been irrevocably released
from its obligations with regard to any and all Letters of Credit."
(H) The last sentence in Section 4.1 to the Loan Agreement shall be amended
to insert the following after the word "Obligations":
"and the L/C Exposure has been reduced to zero,"
(I) The lead in to Section 7 of the Loan Agreement is hereby amended to
insert the following after the words "has terminated":
"and the L/C Exposure has been reduced to zero,"
(J) Section 7.15(a) of the Loan Agreement is hereby amended to insert the
following after the words "interest on the Loans"
"plus the then current L/C Exposure;"
(K) The lead in to Section 8 of the Loan Agreement is hereby amended to
insert the following after the words "has terminated":
"and the L/C Exposure has been reduced to zero,"
(L) The lead in to Section 9.2 is hereby amended in its entirety to read as
follows:
"It shall be a condition precedent to all Loans (including the initial Loan
hereunder) and to the issuance of each Letter of Credit that on the date of
such Loan or issuance of a Letter of Credit the following statements shall
be true (and each request for a Loan or issuance of a Letter of Credit
shall constitute a representation and warranty by the Borrower that on the
date of such Loan or such issuance of Letter of Credit that such statements
are true)."
(M) Section 9.2(a) is hereby amended in its entirety to read as follows:
"After giving effect to such Loan and any such L/C Exposure, the total of
all Loans outstanding plus any L/C Exposure will not exceed the
Commitment;"
(N) Section 9.2(b) and (c) are hereby amended to insert the following after
the words "such Loan":
"or issuance of such Letter of Credit"
(O) The last paragraph in Section 9.2 is hereby amended in its entirety to
read as follows:
"In addition, it shall be a condition precedent to all Loans (including the
initial Loan) and all issuances of Letters of Credit that after giving
effect to such Loan or such issuance of a Letter of Credit, the aggregate
market value of the Collateral shall be equal to or exceed 250% of the sum
of the Required Amount plus the principal amount of the Loans outstanding
plus any L/C Exposure together with accrued and unpaid interest thereon
plus any other amounts due and owing under this Agreement (in each case, as
determined on the most recent date for which the Borrower calculates its
aggregate Net Asset Value (but in no event earlier than ten (10) Business
Days prior to the making of such Loan or issuance of such Letter of Credit)
and as calculated in accordance with the determination of such Net Asset
Value)."
(P) Section 10.1(b) of the Loan Agreement is hereby amended to insert the
following after the words "interest thereon":
"plus the then current L/C Exposure"
(Q) Section 10.2(a) is hereby amended to insert the following after the
words "Lender may" in the last sentence:
"demand Cash Equivalents in an amount equal to the full amount of the L/C
Exposure or to furnish other securities therefor acceptable to the Lender,
and may"
(R) Section 11.3(iv) of the Credit Agreement is hereby amended to insert
the following after the words "any Loan hereunder":
"or the issuance of any Letter of Credit"
(S) Section 11.10(a) of the Loan Agreement is hereby amended to insert the
following clause at the end of such section:
"EACH LETTER OF CREDIT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE LAWS OR RULES DESIGNATED IN SUCH LETTER OF
CREDIT, OR IF NO SUCH LAWS OR RULES ARE DESIGNATED, THE UNIFORM CUSTOMS AND
PRACTICE FOR DOCUMENTARY CREDITS, INTERNATIONAL CHAMBER OF COMMERCE PUBLICATION
NO. 500 AS ADOPTED OR AMENDED FROM TIME TO TIME (THE "UNIFORM CUSTOMS") AND, AS
TO MATTERS NOT GOVERNED BY THE UNIFORM CUSTOMS, THE LAWS OF THE STATE OF NEW
YORK."
(T) Section 11.19 of the Loan Agreement is hereby amended to insert the
following after the words "the commitment terminated" in the second sentence:
", the L/C Exposure has been reduced to zero,"
SECTION 2. Conditions to Effectiveness. This Amendment is subject to the
satisfaction in full of the following conditions (the first date on which all
such conditions have been satisfied being herein called the "Effective Date"):
(A) the Lender shall have received counterparts of this Amendment which,
when taken together, bear the signatures of all parties hereto;
(B) all legal matters in connection with this Amendment shall be
satisfactory to Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel for the Lender.
SECTION 3. Representations and Warranties. The Borrower hereby represents
and warrants that:
(A) the representations and warranties contained in the Loan 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;
and
(B) the Borrower is in compliance with all the terms and provisions set
forth in the Loan Agreement and, after giving effect hereto, no Default or Event
of Default has occurred and is continuing.
SECTION 4. Full Force and Effect. Except as expressly amended hereby, the
Loan Agreement shall continue in full force and effect in accordance with the
provisions thereof on the date hereof. As used in the Loan Agreement, the terms
"Agreement", "this Agreement" "herein", "hereafter", "hereto", "hereof", and
words of similar import, shall, unless the context otherwise requires, mean the
Loan Agreement as amended by this Amendment.
SECTION 5. APPLICABLE LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. Counterparts. This Amendment may be executed in counterparts,
each of which shall constitute an original, but all of which when taken together
shall constitute but one instrument.
SECTION 7. Expenses. The Borrower agrees to pay all reasonable
out-of-pocket expenses incurred by the Lender in connection with the
preparation, execution and delivery of this Amendment, including, but not
limited to, the reasonable fees and disbursements of Xxxxxx, Xxxxx & Bockius
LLP, counsel for the Lender.
SECTION 8. Headings. The headings of this Amendment are for the purposes of
reference only and shall not affect the construction of or be taken into
consideration in interpreting this Amendment.
IN WITNESS WHEREOF, the undersigned have caused this Amendment No. 8 to be
duly executed as of the date first written above.
BELAIR CAPITAL FUND, L.L.C.
BY: XXXXX XXXXX MANAGEMENT,
as Manager
BY: /s/ Xxxxxx X. Xxxxx, Xx.
--------------------------
Name: Xxxxxx X. Xxxxx, Xx.
Title: Executive Vice President
Address: Xxxxx Xxxxx
The Xxxxx Xxxxx Building
000 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Telephone No.: 000-000-0000
Telecopier No.: 000-000-0000
XXXXXXX XXXXX CAPITAL SERVICES, INC.
BY: /s/ Xxxxx X. Xxxx
--------------------------
Name: Xxxxx X. Xxxx
Title: Designated Signatory
Address: Xxxxxxx Xxxxx World
Headquarters,
World Financial Center
North Tower, 22nd Floor
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telephone No.: 000-000-0000
Telecopier No.: 000-000-0000
The Lender is a member of The Securities and Futures Authority Limited and
operates a Client Complaints Procedure. If for any reason the Borrower should
have cause for concern or complaint, the Borrower should contact the Manager,
PBG Operations, at the Lender's address indicated below.
XXXXXXX XXXXX INTERNATIONAL BANK LIMITED
BY: /s/ Xxxxxxxx X. Xxxxxxx
-----------------------------
Executed in London, Name: Xxxxxxxx X. Xxxxxxx
England on November 29, 2000 Title: Associate Director
Address: 000 Xxxxxxxxxx Xxxxxx Xxxx
0xx Xxxxx
Xxxxxx XX0 X0XX
Xxxxxxx
Telephone No.:
AGREED TO: Telecopier No.:
XXXXXXX XXXXX PRIVATE FINANCE INC.
(f/k/a Xxxxxxx Xxxxx International Private
Finance Limited)
By: /s/ G. Xxxxxxxxx Xxxxxxxxx
-------------------------------
Name: G. Xxxxxxxxx Xxxxxxxxx
Title: Vice President
