1
Exhibit 10.04
THIRD AMENDMENT
To
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
among
MBIA INSURANCE CORPORATION
(MBIA)
THE BANKS SIGNATORY HERETO
RABOBANK NEDERLAND
New York Branch
as Administrative Agent
and
DEUTSCHE BANK AG
New York Branch
as Documentation Agent
Dated as of October 27, 2000
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THIRD AMENDMENT
THIS THIRD AMENDMENT, dated as of October 27, 2000 (this "Amendment"),
between MBIA INSURANCE CORPORATION, a New York stock insurance corporation
("MBIA" the financial institutions which have executed this Amendment below as
Banks (as defined below), COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEEN BANK B.A.
"RABOBANK NEDERLAND", New York Branch ("Rabobank"), as Administrative Agent for
the Banks (in such capacity, the "Administrative Agent") and individually as a
Bank, and DEUTSCHE BANK AG, New York Branch, as Documentation Agent for the
Banks (in such capacity, together with the Administrative Agent, the "Agents")
and individually as a Bank;
WHEREAS, the parties hereto are parties to the Second Amended and
Restated Credit Agreement, dated as of October 1, 1997, as amended by the First
Amendment thereto dated as of October 1, 1998, the Second Amendment thereto
dated as of October 29, 1999 and as further modified by certain Assignment and
Assumption Agreements (as defined therein) (as so amended and modified, the
"Credit Agreement"); and
WHEREAS, the parties hereto desire, upon the terms and subject to the
conditions hereinafter set forth, to extend the Expiration Date (as defined
below) and to otherwise modify the Credit Agreement in certain respects;
NOW, THEREFORE, in consideration of the mutual promises contained
herein and other valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto, intending to be legally bound
hereby, agree as follows:
ARTICLE 1.
MODIFICATIONS TO LOAN DOCUMENTS
Section 1.1. Defined Terms. Except as otherwise specified herein, terms used in
this Amendment and defined in Exhibit A of the Credit Agreement shall have the
meanings provided in such Exhibit A.
Section 1.2. Amendment (a) The definition of the term "Expiration Date"
contained in Exhibit A to the Credit Agreement is hereby amended and restated to
read in its entirety as follows:
"'Expiration Date' shall mean the date on which the night to obtain Loans
terminates, initially October 31, 2007, as such date may be extended pursuant to
Section 3.3."
(b) The definition of the term "Loan Commencement Event" contained in Exhibit A
to the Credit Agreement is hereby amended and restated to read in its entirety
as follows:
"Loan Commencement Event" shall mean the time at which Cumulative Losses for the
current Commitment Period first exceed the aggregate Pledged Recoveries received
by MBIA during the current Commitment Period by
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an amount equal to the greater of (a) the highest Maximum Commitment at any time
during the such Commitment Period and (b) five and six-tenths percent (5.6%) of
Average Annual Debt Service on the Covered Portfolio."
Section 1.3. Commitments. The aggregate Commitments of the Banks are hereby
amended so that, from and after October 27, 2000 until the termination or
further modification thereof as provided in the Credit Agreement, such
Commitments shall be as set forth on Schedule 1 to this Amendment.
Section 1.4. Amendment to Security Agreement. Each Bank and the Administrative
Agent hereby consent to an amendment to the Security Agreement which will
provide that the definition of the term "Special Event of Default" contained
therein be amended and restated to read in its entirety as follows:
"Special Event of Default" means any of (i) any Event of Default described in
clause (i) of paragraph (a) of Section 7.1 of the Credit Agreement in respect of
principal of or interest on the Loans or the Notes, (ii) any MBIA Event of
insolvency, or (iii) If MBIA shall have incurred Cumulative Losses during the
current Commitment Period of more than the greater of (A) 50% of the highest
Maximum Commitment at any time during, the current Commitment Period (or, if the
last Commitment Period has expired, at any time during such Commitment Period),
and (B) 2.8% of Average Annual Debt Service on the Covered Portfolio, any
failure of MBIA to perform or observe the covenant contained in Section 6.8 of
the Credit Agreement."
ARTICLE 2.
CONDITIONS PRECEDENT
Section 2. 1. Conditions Precedent to Amendment Effective Date. The provisions
of Article 1 hereof shall become effective as of October 27, 2000 when this
Amendment shall have been executed and delivered by MBIA, each Agent and
consented to by each Bank and when the following conditions have been fulfilled
to the reasonable satisfaction of the Agents. If such conditions shall not have
been satisfied on or prior to November 17, 2000, the provisions of Article 1
shall not be given effect unless otherwise consented to by the Agents and the
Majority Banks, but otherwise this Amendment shall remain in full force and
effect.
(a) There shall exist no Default or Event of Default, and all representations
and warranties made by MBIA herein or in any of the Loan Documents shall be true
and correct with the same effect as though such representations and warranties
had been made at and as of such time.
(b) The Administrative Agent shall have received each of the following, in form
and substance satisfactory to the Administrative Agent:
(i) a certificate of any two of the President, Vice Chairman, Managing Director,
any Vice President or the Treasurer of MBIA to the effect that the conditions
set forth in Section 2.1(a) hereof have been satisfied and that no governmental
filings,
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consents and approvals are necessary to be secured by MBIA in order to permit
the borrowing under the Credit Agreement, as modified hereby, the grant of the
Lien under the Security Agreement and the execution, delivery and performance in
accordance with their respective terms of this Amendment and the other Loan
Documents and the consummation of the transactions contemplated hereby and
thereby, each of which shall be in full force and effect;
(ii) copies of the duly adopted resolutions of the Board of Directors of MBIA,
or an authorized committee thereof, authorizing the execution, delivery and
performance in accordance with their respective terms of this Amendment and the
other documents to be executed and delivered by MBIA described herein
(collectively, the "Amendment Documents"), accompanied by a certificate of the
Secretary or an Assistant Secretary of MBIA stating as to (A) the effect that
such resolutions are in full force and effect, (B) the incumbency and signatures
of the officers signing the Amendment Documents on behalf of MBIA, and (C) the
effect that, from and after October 29, 1999, there has been no amendment,
modification or revocation of the articles of incorporation or by-laws of MBIA;
(iii) opinions of the General Counsel of MBIA and Xxxxx Xxxx, MBIA's counsel,
each dated October 27, 2000, which are substantially to the effect set forth in
the forms attached hereto as, respectively, Exhibits A and B; and
(iv) such other documents, instruments, approvals (and, if reasonably requested
by the Administrative Agent or the Majority Banks, duplicates or executed copies
thereof certified by an appropriate governmental official or an authorized
officer of MBIA) or opinions as the Administrative Agent or the Majority Banks
may reasonably request.
(c) The Administrative Agent shall have received reasonably satisfactory
evidence that long-term obligations insured by MBIA are publicly assigned a
rating of Aaa by Moody's and AAA, by S&P by reason of such insurance.
(d) Each Bank which is becoming a party to the Credit Agreement or which is
increasing its Commitment shall have received a Note or an additional Note dated
as of October 27, 2000, in a principal amount equal to the amount of its
Commitment or of the increase in its Commitment, as applicable.
(e) The Security Agreement shall have been amended as contemplated by Section
1.4 hereof.
(f) The currently effective Fronting Bank Supplements and related Fronting Bank
Notes and fee letters shall have been modified in a manner satisfactory to MBIA,
the Administrative Agent and each Fronting Bank affected by such modifications.
(g) All corporate and legal proceedings and all instruments in connection with
the transactions contemplated by this Amendment and the Loan Documents shall be
satisfactory in form and substance to the Administrative Agent and its counsel.
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Section 2.2. Certificate as to Effective Date. A certificate of the
Agents delivered to MBIA stating that the provisions of Article 1 shall have
become effective shall be conclusive evidence thereof and shall be binding on
MBIA, each Agent and each Bank. In delivering such certificate, and without
limiting the general application of Section 8.8 or other provisions of Article 8
of the Credit Agreement to the actions of the Agents hereunder, the Agents shall
be entitled to rely conclusively on the certificate of officers of MBIA
delivered pursuant to Section 2. 1(b)(i) as to the satisfaction of the
conditions set forth in Section 2.1(a).
ARTICLE 3.
REPRESENTATIONS AND WARRANTIES
In order to induce the Agents and the Banks to enter into this Amendment and
proceed with the transaction contemplated hereby, MBIA makes the following
representations and warranties to the Agents and the Banks, which shall survive
the execution and delivery of this Amendment and the making of any Loans:
Section 3.1. Due Authorization. Etc. The execution, delivery and performance by
MBIA of the Amendment Documents and the Loan Documents as amended thereby are
within its corporate powers, have been duly authorized by all necessary
corporate action and do not and will not (i) violate any provision of any law,
rule, regulation (including, without limitation, the New York Insurance Law, the
Investment Company Act of 1940, as amended, or Regulations T, U or X of the
Board of Governors of the Federal Reserve System), order, writ, judgment,
injunction, decree, determination or award presently in effect having
applicability to MBIA or of corporate charter or by-laws of MBIA, (ii) result in
a breach of or constitute a default under any indenture or loan or credit
agreement or any other agreement, lease or instrument to which MBIA is a party
or by which it or its properties may be bound or affected, or (iii) result in,
or require, the creation or imposition of any Lien upon or with respect to any
of the properties now owned or hereafter acquired by MBIA (other than as
contemplated by the Loan Documents), other than, in the case of clauses (ii) and
(iii), breaches, defaults or Liens which could not materially and adversely
affect the business, assets, operations or financial condition of MBIA or the
ability of MBIA to perform its obligations under any Loan Document.
Section 3.2. Approvals. No consent, approval or other action by, or any notice
to or filing with any court or administrative or governmental body is or will be
necessary for the valid execution, delivery or performance by MBIA of the
Amendment Documents or the Loan Documents as amended thereby.
Section 3.3. Enforceability. Each Amendment Document and each Loan Document as
amended thereby constitutes a legal, valid and binding obligation of MBIA,
enforceable against MBIA in accordance with their respective terms, except as
such enforceability may be limited by bankruptcy, insolvency, moratorium or
other similar laws affecting the enforcement of creditors' rights generally and
the availability of equitable remedies, whether such matter is heard in a right
court of law or a court of equity.
Section 3.4. Financial Statements. etc. (a) MBIA has heretofore furnished to the
Agents (i) the audited consolidated and unaudited consolidating balance sheets
of MBIA Inc. and its subsidiaries at December 31, 1999, the related audited
consolidated statements of income,
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changes in stockholders' equity and financial position or cash flows, as the
case may be, and unaudited consolidating statements of income for the year ended
December 31, 1999, and (ii) the unaudited consolidated and consolidating
balance sheets of MBIA Inc. and its subsidiaries as of March 31 and June 30,
2000, and the related consolidated statements of income, changes in
stockholders' equity and cash flows for the three months ended March 31, 2000,
the six months ended June 30, 2000. Such financial statements were prepared in
accordance with generally accepted accounting principles consistently applied
and present fairly the consolidated financial position and consolidated results
of operations and cash flows of MBIA Inc. and its subsidiaries and the financial
position and results of operations and cash flows of MBIA at the dates and for
the periods indicated therein. There has been no material adverse change in the
consolidated financial position or consolidated results of operations or cash
flows of MBIA Inc. and its subsidiaries taken as a whole or of MBIA since June
30, 2000.
(b) MBIA has heretofore furnished to the Agents its annual statements
and its financial statements as filed with the Department for the year ended
December 31, 1999 and its quarterly statements and financial statements as
filed with the Department for the periods ended March 31, 2000 and June 30,
2000. Such annual and quarterly statements and financial statements were
prepared in accordance with the statutory accounting principles set forth in the
New York Insurance Law, all of the assets described therein were the absolute
property of MBIA at the dates set forth therein, free and clear of any liens or
claims thereon, except as therein stated, and each such Annual Statement is a
full and true statement of all the assets and liabilities and of the condition
and affairs of MBIA as of such dates and of its income and deductions therefrom
for the year or quarter ended on such dates.
c) MBIA has heretofore furnished to the Agents a copy of the annual report on
Form 10-K of MBIA Inc. for the fiscal year ended December 31, 1999, its
quarterly reports on Form 10-Q of MBIA Inc. for each of the quarters ended March
31, 2000 and June 30, 2000 and each current report on Form 8-K filed by MBIA
Inc. on or after January 1, 2000, each as filed with the Securities and Exchange
Commission. Such annual quarterly and current reports were prepared in
accordance with the Securities Exchange Act of 1934, as amended, and the rules
and regulations promulgated thereunder.
Section 3.5. Covered Portfolio. Substantially all of the Insured Obligations in
the Covered Portfolio are insured by MBIA under Insurance Contracts in the form
or forms heretofore supplied to the Agents in accordance with MBIA's
underwriting criteria as heretofore disclosed to the Agents, and in MBIA's
reasonable judgment such Insured Obligations represent an overall risk of loss
(based on all factors including without limitation investment quality and
geographical and market diversification) which is not materially greater than
the risk of loss represented by all of MBIA's Insured Obligations as of the date
hereof.
Section 3.6. Confirmation of Representations and Warranties. MBIA hereby
confirms that its representations and warranties set forth in the Credit
Agreement are true and correct as of the date hereof.
Section 3.7. Disclosure. There is no fact known to MBIA which materially
adversely affects the business, assets, operations or financial condition of
MBIA or the ability of MBIA to perform its obligations under any Amendment
Document or any Loan Document as amended.
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thereby which has not been set forth in this Amendment, in the financial
statements or reports required to be delivered pursuant to Section 3.4 hereof.
ARTICLE 4.
MISCELLANEOUS
Section 4.1. Credit Agreement. Except as expressly modified as contemplated
hereby, the Credit Agreement and the other Loan Documents are hereby confirmed
to be in full force and effect in accordance with their respective terms. This
Amendment is intended by the parties to constitute an amendment and modification
to, and otherwise to constitute a continuation of the Credit Agreement and the
Loan Documents, and is not intended by any party and shall not be construed to
constitute a novation thereof or of any Debt of MBIA hereunder.
Section 4.2. Survival. All covenants, agreements, representations and warranties
made herein or in any Loan Document or in any certificate, document or
instrument delivered pursuant hereto or thereto shall survive the effective date
hereof, the making of any Loan and the occurrence of the Expiration Date and
shall continue in full force and effect so long as principal of or interest on
any Loan, Note or Fronting Bank Note remains outstanding or unpaid, any other
amount payable by MBIA under the Credit Agreement as amended hereby, any Note,
Fronting Bank Note or any other Loan Document remains unpaid or any other
obligation of MBIA to perform any other act hereunder or under the Credit
Agreement as amended hereby, any Note, Fronting Bank Note or any other Loan
Document remains unsatisfied or the Banks have any obligation to make a Loan or
any other advance of moneys to MBIA under the Credit Agreement as amended
hereby.
Section 4.3. Severability. Any provision of this Amendment which is prohibited,
unenforceable or not authorized in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition, unenforceability
or nonauthorization without invalidating, the remaining provisions hereof or
affecting the validity, enforceability or legality of such provision in any
other jurisdiction.
Section 4.4. Successors and Assigns. This Amendment is a continuing obligation
and binds, and the benefits hereof shall inure to, the parties hereto and their
respective successors and assigns; provided that MBIA may not transfer or assign
any or all of its rights or obligations hereunder except as permitted by Section
10.8 of the Credit Agreement.
Section 4.5. Amendments. No provision of this Amendment shall be waived, amended
or supplemented except as provided in Section 10.12 of the Credit Agreement.
Section 4.6. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
Section 4.7. Headings. Section headings in this Amendment are included herein
for convenience or reference only and shall not constitute a part of this
Amendment for any other purpose.
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Section 4.8. Counterparts. This Amendment may be executed in several
counterparts each of which shall be regarded as the original and all of which
shall constitute one and the same Amendment.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed and delivered by their respective officers thereunto duly authorized as
of the date first above written.
MBIA INSURANCE CORPORATION
By /s/ Xxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Treasurer
COOPERATIEVE CENTRALE RAIFFEISEN
BOERENILEENBANK B.A. "RABOBANK
NEDERLAND", New York Branch, as
Administrative Agent and as a Bank
By /s/ Xxx Xxxxx
--------------------------------------
Name: Xxx Xxxxx
Title: Senior Credit Officer
By /s/ Xxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
DEUTSCHE BANK AG, New York Branch,
as Documentation Agent and as a Bank
By /s/ Xxxx X. XxXxxx
--------------------------------------
Name: Xxxx X. XxXxxx
Title: Director
By /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Director
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SCHEDULE 1
TO THIRD AMENDMENT
BANKS, ADDRESSES AND COMMITMENTS
Name and Notice Address of Bank Commitment
Banco Santander Central Hispano S.A., $ 18,596,491
New York Branch
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxxx Xxxxxx
The Bank of America, N.A. $ 50,000,000
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxx 00000
Attn: Xxxx X'Xxxxx
The Bank of New York $ 37,192,982
Insurance Division
0 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxx
The Bank of Nova Scotia $ 23,245,614
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxxxxxxx
Bayerische Landesbank Girozentrale, $ 50,000,000
New York Branch
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxx
Commonwealth Bank of Australia, $ 23,245,615
New York Branch
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxx
10
Name and Notice Address of Bank Commitment
Credit Suisse First Boston, $ 75,000,000
Xxx Xxxx Xxxxxx
Xxxxxx Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attn: Xxxxx Xxx
The Xxxxx Manhattan Bank $ 23,245,614
000 Xxxx Xxxxxx, 000x Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxxx Xxxxxx
Dexia Public Finance Bank, New York Branch $ 9,298,246
f/k/a Credit Local de France, New York Branch
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxx
Deutsche Bank AG, New York Branch $ 75,000,000
Deutsche Bank Securities Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx XxXxxx
DGZ DekaBank Deutsche Kommunalbank $ 35,000,000
International Finance Department
Xxxxxxxxxxxx 00
X-00000 Xxxxxxxxx xx Xxxx
XXXXXXX
Attn: Xxxxxxx Xxxxxx
Fleet National Bank $ 25,000,000
000 Xxxx Xxxxxx, XX-XX 0250
Xxxxxxxx, XX 00000
Attn: Jan-Gee XxXxxxxx
Bayerische Hypo-und Vereinsbank AG, $ 46,491,228
New York Branch
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attn: Xxxxx Xxxxxxxxx
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Name and Notice Address of Bank Commitment
KBC Bank N.V. $ 18,596,491
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxx
Landesbank Hessen-Thuringen Girozentrale, $ 50,000,000
New York Branch
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxx
Landesbank Baden Wurttemberg $100,000,000
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X'Xxxxx
Lloyds TSB Bank Plc $ 46,491,228
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxxx Xxxxx
Norddeutsche Landesbank Girozentrale, $ 18,596,491
New York Branch
1114 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxxxx Xxxxxx
Westdeutsche Landesbank Girozentrale $ 50,000,000
New York Branch
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxx Xxx, XX
Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A. $125,000,000
"Rabobank Nederland", New York Branch
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx
TOTAL $900,000,000
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EXHIBIT A
TO THIRD AMENDMENT
Form of Opinion of General Counsel of MBIA
[date]
Each of the Banks which are
parties to the Credit Agreement
referred to herein
c/o Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A.
("Rabobank Nederland"), New York Branch
as Administrative Agent
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A.
("Rabobank Nederland"), New York Branch,
as Administrative Agent
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Deutsche Bank AG, New York Branch,
as Documentation Agent
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Re: Third Amendment, dated as of October 27, 2000, to Second Amended and
Restated Credit Agreement dated as of October 1, 1997, with MBIA
Insurance Corporation
Ladies and Gentlemen:
I am General Counsel of MBIA Insurance Corporation, a New York stock insurance
corporation ("MBIA"). This opinion is being given in connection with Third
Amendment, dated as of October 27, 2000 (the "Amendment"), to the Second Amended
and Restated Credit Agreement dated as of October 1, 1997, as heretofore amended
(as amended by the Amendment, the "Credit Agreement") among MBIA, Cooperatieve
Centrale Raiffeisen-Boerenleenbank B.A. (Rabobank Nederland), New York Branch,
as a Bank and as Administrative Agent, Deutsche Bank AG, New York Branch, as a
Bank and as Documentation Agent, and the other Banks signatory thereto. All
capitalized terms used herein and not otherwise defined shall have the
respective meanings assigned thereto in the Credit Agreement.
As General Counsel to MBIA, I am familiar with its Restated Charter and its
By-Laws, as amended to date, and I have responsibility for supervision of MBIA's
insurance regulatory compliance. I have examined such certificates of public
officials, such certificates of officers of
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MBIA and copies certified to my satisfaction of such corporate documents and
records of MBIA and of such other papers as I have deemed relevant and necessary
for the opinions set forth below. In all such examinations, I have assumed the
genuineness of all signatures, the authority to sign and the authenticity of all
documents submitted to me as originals. I have also assumed the conformity with
the originals of all documents submitted to me as copies. I have relied upon
certificates of public officials and of officers of MBIA with respect to the
accuracy of factual matters contained therein which were not independently
established.
Based upon the foregoing, it is my opinion that:
1. MBIA is a stock insurance corporation duly incorporated and validly existing
in good standing under the laws of the State of New York and has the corporate
power and all requisite licenses and franchises required to carry on its
insurance and other business, as now being conducted in the State of New York
and in each other jurisdiction where the nature of the business transacted by it
makes such qualification necessary, except any jurisdiction other than the State
of New York where failure to so qualify would not have a material adverse effect
on the business, assets, operations or financial condition of MBIA or the
ability of MBIA to perform its obligations under the Amendment, the Credit
Agreement and the additional Notes dated October 27, 2000 being issued to
certain parties (the "Transaction Documents").
2. The execution, delivery and performance of the Transaction Documents are
within the corporate powers of MBIA, have been duly authorized by all necessary
corporate powers of MBIA, have been duly authorized by all necessary corporate
action and do not (i) violate any provision of the Restated Charter of By-Laws
of MBIA, (ii) violate any provision of law, rule, regulation (including without
limitation, the New York insurance Law, the Investment Company Act of 1940, as
amended, or Regulations T, U or X of the Board of Governors of the Federal
Reserve System), order, writ, judgment, injunction, decree, determination or
award presently in effect having applicability to MBIA the violation of which
would affect the validity or enforceability of any of the Transaction Documents
or the ability of MBIA to perform its obligations under the Transaction
Documents, (iii) result in a breach of or constitute a default under any
indenture or loan or credit agreement or any other agreement, lease or
instrument to which MBIA is a party or by which it or its properties may be
bound or affected or (iv) result in, or require, the creation or imposition of
any Lien upon or with respect to any of the properties now owned or hereafter
acquired by MBIA (other than as contemplated by the Loan Documents), other than,
in the case of clauses (iii) and (iv), breaches, defaults or Liens which could
not materially and adversely affect the business, assets, operations or
financial condition of MBIA or the ability of MBIA to perform its obligations
under the Transaction Documents.
3. To the best of my knowledge, no consent, approval or other action by, or any
notice to or filing with, any court or administrative or governmental body is
required in connection with the execution, delivery or performance by MBIA of
the Transaction Documents.
4. To the best of my knowledge, there is no action, suit, proceeding or
investigation before or by any court, arbitrator or administrative or
governmental body pending or threatened against MBIA, wherein an adverse
decision, ruling or finding would materially and adversely affect (i) the
business, assets, operations or financial condition of MBIA, (ii) the
transactions contemplated by the Credit Agreement or (iii) the validity or
enforceability of the Transaction Documents.
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5. To the best of my knowledge, MBIA is not in violation of any provision of any
law, rule, regulation, order, writ, judgment, injunction, decree, determination
or award presently in effect having applicability to MBIA or of the Restated
Charter or By-Laws of MBIA, or in default under any material indenture,
agreement, lease or instrument to which it is a party or by which it or any of
its properties may be subject or bound, where such violation or default may
result in a material adverse effect on the business, assets, operations or
financial condition of MBIA or on its ability to perform its obligations under
the Transaction Documents.
6. To the best of my knowledge, MBIA is in compliance with the New York
Insurance Law and the regulations of the Department thereunder and with all
other applicable federal, state and other laws, rules and regulations relating
to its insurance and other business, except with respect to failures, if any, to
comply which singly or in the aggregate do not have a material adverse effect on
the business, assets, operations or financial condition of MBIA or the ability
of MBIA to perform its obligations under any of the Transaction Documents.
7. All of the issued and outstanding capital stock of MBIA is owned beneficially
and of record by MBIA Inc., subject to no Liens. There are no options or similar
rights of any Person to acquire any such capital stock or any other capital
stock of MBIA.
This opinion is being furnished to you and your participants in connection with
the execution of the Credit Agreement, and it is not to be used, circulated,
quoted or otherwise referred to for any purpose without my express written
consent.
Very truly yours,
[General Counsel]
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EXHIBIT B
TO THIRD AMENDMENT
Form of Opinion of Xxxxx Xxxx
[date]
Each of the Banks which are
parties to the Credit Agreement
referred to herein
c/o Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A.
("Rabobank Nederland"), New York Branch
as Administrative Agent
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A.
("Rabobank Nederland"), New York Branch,
as Administrative Agent
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Deutsche Bank AG, New York Branch,
as Documentation Agent
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Re: Third Amendment, dated as of October 27, 2000, to Second Amended and
Restated Credit Agreement dated as of October 1, 1997, with MBIA
Insurance Corporation
Ladies and Gentlemen:
This opinion is furnished to you in connection with the Third
Amendment, dated as of October 27, 2000 (the "Amendment"), to the Second Amended
and Restated Credit Agreement dated as of October 1, 1997, as heretofore amended
(as amended by the Amendment, the "Credit Agreement") among MBIA, Cooperatieve
Centrale Raiffeisen-Boerenleenbank B.A. (Rabobank Nederland), New York Branch,
as a Bank and as Administrative Agent, Deutsche Bank AG, New York Branch, as a
Bank and as Documentation Agent, and the other Banks signatory thereto. All
capitalized terms used herein and not otherwise defined have the meanings
assigned thereto in the Credit Agreement. As used herein, "Transaction
Documents" means the Amendment, the Credit Agreement and the additional Notes
dated October 27, 2000 being issued to certain parties.
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We have acted as special counsel to MBIA in connection with the
execution and delivery of the Transaction Documents. In this connection, we have
examined the Transaction Documents and such certificates of public officials,
such certificates of officers of MBIA, and copies certified to our satisfaction
of such corporate documents and records of MBIA, and such other documents as we
have deemed necessary or appropriate for the opinions set forth below. We have
relied upon such certificates of public officials and of officers of MBIA with
respect to the accuracy of factual matters contained therein which were not
independently established.
We have also assumed (i) the due execution and delivery, pursuant to
due authorization, of each document referred to in the immediately preceding
paragraph by all parties other than MBIA to such document, (ii) the authenticity
of all such documents submitted to us as originals, (iii) the genuineness of all
signatures and (iv) the conformity to the originals of all such documents
submitted to us as copies.
Based upon the foregoing and upon such investigation as we have deemed
necessary, we are of the opinion that:
1. MBIA is a stock insurance corporation, duly incorporated and validly existing
under the laws of the State of New York, and is licensed and authorized to carry
on its business under the laws of the State of New York.
2. Each Transaction Document has been duly executed and is a valid and binding
obligation of MBIA enforceable in accordance with its terms, except that such
enforceability may be limited by laws relating to bankruptcy, insolvency,
reorganization, moratorium, receivership and other similar laws affecting
creditors' rights generally and by general principles of equity and the
enforceability as to rights to indemnity thereunder as may be subject to
limitations of public policy.
3. The execution, delivery and performance of the Transaction Documents do not
(a) violate any provision of the Restated Charter or Bylaws of MBIA or (b)
violate any provision of law (including without limitation the New York
Insurance Law or the Investment Company Act of 1940, as amended) or, to the best
of our knowledge, any rule or regulation (including without limitation
Regulation T, U or X of the Board of Governors of the Federal Reserve System)
presently in effect having applicability to MBIA the violation of which would
(i) affect the validity or enforceability of any Transaction Document or the
ability of MBIA to perform its obligations thereunder, (ii) adversely affect the
Banks or their rights under any Transaction Document or (iii) materially
adversely affect the business, assets, operations or financial condition of
MBIA.
4. To the best of our knowledge, no consent, approval or other action by or any
notice to or filing with any court or administrative or governmental body is
required in connection with the execution, delivery or performance by MBIA of
the Transaction Documents. No consent, approval or other action by or any notice
to or filing with the Department is required in connection with the execution,
delivery or performance by MBIA of the Transaction Documents.
5. Except with respect to MBIA's obligations to pay the principal of and
interest on the Loans, the obligations of MBIA under the Transaction Documents
will rank, under the New York Insurance Law, at least pari passu in priority of
payment with all other unsecured.
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obligations of MBIA, including without limitation MBIA's obligation to pay
claims under Insurance Contracts under the New York Insurance Law, subject,
however, to statutory priorities granted to certain claims under Sections 7426
and 7435 of the New York Insurance Law.
6. The effectiveness of the Transaction Documents does not adversely affect the
opinions set forth in paragraphs 6 and 7 of our opinion dated October 1, 1997,
delivered in connection with the Second Amended and Restated Credit Agreement,
dated as of such date, with respect to the Security Interest (as defined in such
opinion) and the collateral assignment of Collateral referred to therein. No
filings under the UCC are required to perfect or to continue the perfection of
the Security Interest (except for the financing statements described in our
October 1, 1997 opinion and subject to the matters described in the paragraph
following paragraph 7 of such opinion) in favor of the Collateral Agent for the
benefit of the Banks in all of MBIA's right, title and interest in and to the
Collateral, to the extent that the Security Interest can be perfected by the
filing of financing statements under the UCC.
In rendering the opinions expressed herein, we express no opinion as to
the laws of any jurisdiction other than the State of New York and the federal
laws of the United States of America.
This opinion is being furnished to you and your participants solely in
connection with the execution of the Amendment, and it is not to be used,
circulated, quoted or otherwise referred to for any purpose without our express
written consent.
Very truly yours,
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