Exhibit 10.57
SECOND AMENDMENT
to
FIRST RESTATED CREDIT AGREEMENT
among
MBIA INSURANCE CORPORATION,
THE BANKS SIGNATORY HERETO,
CREDIT SUISSE
New York Branch
as Administrative Agent
and
DEUTSCHE BANK AG
New York Branch
as Documentation Agent
Dated as of January l, 1936
SECOND AMENDMENT
THIS AMENDMENT, dated as of January 1, 1996, between MBIA INSURANCE
CORPORATION, a New York stock insurance corporation formerly known as Municipal
Bond Investors Assurance Corporation ("MBIA"), and CREDIT SUISSE, a banking
corporation organized under the laws of Switzerland, acting through its New
York Branch ("Credit Suisse"), as Agent for the Banks referred to herein (in
such capacity, the "Agent");
WHEREAS, MBIA, the Agent and the Banks identified therein are parties
to the First Restated Credit Agreement, dated as of October 1, 1993, as amended
by the First Amendment thereto dated as of September 23, 1994 and as
supplemented by various Assignment and Assumption Agreements and Joinder
Agreements, including the Assignment and Assumption Agreement dated as of the
date hereof between Credit Suisse and Deutsche Bank (as so amended and
supplemented, the "Credit Agreement"); and
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WHEREAS, MBIA, the Agent and the Banks desire, upon the terms and
subject to the conditions hereinafter set forth, to further amend 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 I
MODIFICATIONS TO CREDIT AGREEMENT
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Section 1.1. Defined Terms. Except as otherwise specified herein,
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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. Amendments Relating to Agents.
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(a) The preamble to the Credit Agreement is hereby amended and
restated to read in its entirety as follows:
THIS AGREEMENT, dated as of October 1, 1993, among MBIA INSURANCE
CORPORATION, a New York stock insurance corporation formerly known as
Municipal Bond
Investors Assurance Corporation ("MBIA"), the financial institutions from
time to time parties hereto as Banks (collectively, the "Banks"), CREDIT
SUISSE, New York Branch, as Administrative Agent for the Banks (in such
capacity, the "Administrative Agent "), and DEUTSCHE BANK AG, New York
Branch, (in such capacity, the "Documentation Agent");
(b) Each reference in the Credit Agreement to the "Agent" is hereby
amended to be a reference to the "Administrative Agent", except as such term
appears in Article 8 or as otherwise provided in this Amendment.
(c) Each reference in Article 8 of the Credit Agreement, other than
in the first sentence of Section 8.1 thereof or in Section 8.3(e) or Section 8.7
thereof, to the "Agent" is hereby amended to be a reference to each of the
"Administrative Agent" and the "Documentation Agent", with the same effect as
though each such provision of Article 8 applied separately to each of the
Administrative Agent and the Documentation Agent.
(d) The first sentence of Section 8.1 of the Credit Agreement is
hereby amended and restated to read in its entirety as follows:
Each Bank hereby irrevocably designates and appoints (a) Credit Suisse, New
York Branch, as its agent to act as the Administrative Agent as specified
herein and in the other Loan Documents, and (b) Deutsche Bank AG, New York
Branch, as its agent to act as the Documentation Agent as specified herein
and in the other Loan Documents; and each Bank hereby irrevocably
authorizes the Administrative Agent or the Documentation Agent, as the case
may be, to take such action on behalf of such Bank under the provisions of
this Agreement and the other Loan Documents and to give such consents,
approvals or directions and to exercise such other powers and perform such
duties as are expressly delegated to the Administrative Agent or the
Documentation Agent by the terms of this Agreement and the other Loan
Documents, together with such other powers as are reasonably incidental
thereto.
(e) The reference in Section 8.3(e) of the Credit Agreement to the
"Agent" is hereby amended to be a reference to the "Administrative Agent", and
the reference in the preamble to the Security Agreement to Credit Suisse as the
"Agent" shall be deemed to constitute a reference to Credit Suisse in its
capacity as the Administrative Agent.
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(f) Section 8.7 of the Credit Agreement is hereby amended and
restated to read in its entirety as follows:
Section 8.7 Successor. The Administrative Agent and the Documentation
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Agent each may resign as such at any time upon at least 30 days' prior
notice to MBIA and all Banks, such resignation not to be effective until a
successor Administrative Agent or Documentation Agent, as the case may be,
is in place. If the Administrative Agent or the Documentation Agent at any
time shall resign, the Majority Banks may appoint another Bank reasonably
acceptable to MBIA as a successor Administrative Agent or the Documentation
Agent, as the case may be, which shall thereupon become the Administrative
Agent or the Documentation Agent hereunder. If no such successor shall have
been so appointed by the Majority Banks, and shall have accepted such
appointment, within 30 days after the retiring agent has given notice of
resignation, then the retiring agent may, on behalf of the Banks, appoint a
successor Administrative Agent or the Documentation Agent, as the case may
be, which shall be one of the Banks and which shall, at the time of such
appointment, have the Required Ratings. Notwithstanding the resignation of
the Administrative Agent or the Documentation Agent hereunder, the
provisions of Sections 8.2 through 8.5 shall continue to inure to the
benefit such agent in respect of any action taken or omitted to be taken by
it in its capacity as such while it was the Administrative Agent or the
Documentation Agent under this Agreement or any Loan Document.
(g) Section 10.7 of the Credit -Agreement is hereby amended and
restated to read in its entirety as follows:
Section 10.7 Notices and Addresses for Notice. All notices and
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other communications provided for hereunder shall be in writing and, (a) if
to MBIA, mailed or delivered to it, addressed to it at 000 Xxxx Xxxxxx,
Xxxxxx, Xxx Xxxx 00000, Attention: Xxxxxxxxx X. Xxxxxxx, Senior Vice
President and Chief Financial Officer; (b) if to the Administrative Agent,
mailed or delivered to it, addressed to it at 00 Xxxx 00xx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Public Finance Department; (c) if to the
Documentation Agent, mailed or delivered to it, addressed to it at 00 Xxxx
00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxx;
and,(d) if to a Bank, mailed or delivered to it at its address as shown on
Schedule 1 hereto; or as to any party as such party may direct in a written
notice to all other parties. All
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such notices and other communications shall, when mailed, be effective
three days after the date of deposit in the mails, addressed as aforesaid.
In lieu of notice by mail or delivery, written notice may be given over
telecopier at the appropriate numbers set forth below, such notice over
telecopier to be effective when transmitted.
If to the Admin-
istrative Agent: Telecopier No.:
000-000-0000
If to the Documen-
tation Agent: Telecopier No.:
000-000-0000
If to MBIA: Telecopier No.:
000-000-0000
If to a Bank: To it at its telecopier
number as set forth on Schedule 1
hereto.
(h) Section 10.8(a) of the Credit Agreement is hereby amended and
restated to read in its entirety as follows:
(a) This Agreement is a continuing obligation and binds, and the
benefits hereof shall inure to, MBIA, the Administrative Agent, the
Documentation Agent and the Banks and their respective successors and
assigns; provided that, except as specifically provided herein, MBIA may
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not transfer or assign any or all of its rights or obligations hereunder
without the prior written consent of the Administrative Agent and the
Majority Banks.
(i) Clause (c) of the second sentence of Section 10.12 of the Credit
Agreement is hereby amended and restated to read in its entirety as follows:
(c) without the prior consent of the Administrative Agent, if it is
adversely affected thereby, and the Documentation Agent, if it is adversely
affected thereby, no such amendment or waiver shall alter the rights of the
Administrative Agent or the Documentation Agent under Article 8.
Section 1.3. Amendment to Section 3.1(d). Section 3.1(d) of the Credit
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Agreement is hereby amended and restated to read in its entirety as follows:
(d) MBIA hereby agrees to pay to the Administrative Agent for
its own account or for the account of the Documentation Agent, as the may
be, the fees set forth in the fee letter between MBIA and the
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Administrative Agent which refers to this Section 3.1(d) (the"A-tent Fee
Letter").
Section 1.4. Amendments to Definitions.
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(a) The definition of "Covered Portfolio" contained in Exhibit A to
the Credit Agreement is hereby amended and restated to read in its entirety as
follows:
"Covered Portfolio" shall mean and include each Insured
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Obligation outstanding on the Effective Date and each Insured Obligation
issued thereafter and prior to the date of the first Loan (or such later
date to which the Agent and the Majority Banks may consent in writing),
other than (a) Insured Obligations listed on Exhibit E hereto, (b)
additional Insured Obligations which MBIA hereafter elects in writing to
exclude from the Covered Portfolio with the prior written consent of the
Agent and the Majority Banks (which writing and consent shall be deemed to
constitute an amendment supplementing Exhibit E hereto and shall not be
unreasonably withheld); provided that no additional Insured Obligations
shall become part of the Covered Portfolio from and after the date on which
any Bank has given a notice to MBIA pursuant to Section 7.2(b) hereof as a
result of the occurrence of an Event of Default, and (c) any Insured
Obligation which any Bank or any Participant is obligated to purchase under
the terms of a line of credit, standby bond purchase agreement, letter of
credit, liquidity agreement or similar agreement or arrangement; provided
that at no time shall the Covered Portfolio contain industrial development
bonds having an aggregate Average Annual Debt Service exceeding one percent
(11) of the Average Annual Debt Service on the entire Covered Portfolio.
(b) The definition of "Insured Obligation" contained in Exhibit
A to the Credit Agreement is hereby amended and restated to read in its
entirety as follows:
"Insured Obligation" shall mean (a) municipal obligation bonds,
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special revenue bonds and industrial development bonds hereof issued by the
United States of America, a state thereof or the District of Columbia, a
municipality or governmental unit or other political subdivision of the
foregoing or any public agency or instrumentality thereof, and (b) other
obligations which the Majority Banks have approved in writing, in each case to
the extent that the payment of principal thereof, together with interest
thereon, is insured, reinsured or
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otherwise guaranteed by MBIA under an Insurance Contract in compliance with the
applicable provisions of the New York Insurance Law.
Section 1.5. Consent of Banks. The Agent hereby confirms to MBIA that
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it has received the consent of all Banks (to the extent required under the
Restated Credit Agreement) to the modifications to the Restated Credit Agreement
set forth in this Amendment.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
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In order to induce the Agent to enter into this Amendment and the
Banks to consent hereto and proceed with the transactions contemplated hereby,
MBIA makes the following representations and warranties to the Agent and the
Banks, which shall survive the execution and delivery of this Amendment and
the making of any Loans:
Section 2.1. Due Authorization, Etc. The execution, delivery and
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performance by MBIA of the this Amendment and the Loan Documents as amended
hereby 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 G.
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 the 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 2.2. Approvals. No consent, approval or other action by, or
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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 this Amendment or the Loan Documents as amended thereby.
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Document as amended hereby, constitutes a legal, valid and binding obligation of
MBIA, enforceable against MBIA in Section 2.3. Enforceability. This Amendment
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and each Loan 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 court
of law or a court of equity.
Section 2.4. Financial Statements etc. (a) MBIA has heretofore
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furnished to the Agent (i) the audited consolidated and unaudited consolidating
balance sheets of MBIA Inc. and its subsidiaries at December 31, 1994, the
related audited consolidated statements of income, 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, 1994, and
(ii) the unaudited consolidated and consolidating balance sheets of MBIA Inc.
and its subsidiaries as of March 31, June 30, and September 30, 1995, and the
related consolidated statements of income, changes in stockholders' equity and
cash flows for the three months ended March 31, 1995, the six months ended June
30, 1995 and the nine months ended September 30, 1995. 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 September 30, 1995.
(b) MBIA has heretofore furnished to the Agent its annual statements
and its financial statements as filed with the Department for the year ended
December 31, 1994 and its quarterly statements and financial statements as filed
with the Department for the periods ended March 31, 1995, June 30, 1995 and
September 30, 1995. 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.
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(c) MBIA has heretofore furnished to the Agent a copy of the annual report on
Form 10-K of MBIA Inc. for the fiscal year ended December 31, 1994 as filed with
the Securities and Exchange Commission and the quarterly reports on Form 10-Q of
MBIA Inc. for each of the quarters ended March 31, 1995, June 30, 1995 and
September 30, 1995 as filed with the Securities and Exchange Commission. Such
annual and quarterly reports were prepared in accordance with the Securities
Exchange Act of 1934, as amended, and the rules and regulations promulgated
thereunder.
Section 2.5. Covered Portfolio. Substantially all of the Insured
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Obligations in the Covered Portfolio are insured by MBIA under Insurance
Contracts in the form or forms heretofore supplied to the Agent in accordance
with MBIA's underwriting criteria as heretofore disclosed to the Agent, 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 2.6. Confirmation of Representations and Warranties. MBIA
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hereby confirms that its representations and warranties set forth in the
Restated Credit Agreement (including without limitation those set forth in
Article 5 of the Restated Credit Agreement) are true and correct as of the
date hereof, and represents and warrants that no Default or Event of Default has
occurred and is continuing.
Section 2.7. Disclosure. There is no fact known to MBIA which
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materially adversely affects the business, assets, operations or financial
condition of MBIA or the ability of MBIA to perform its obligations under any
this Amendment or any Loan Document as amended hereby which has not been set
forth in this Amendment, in the financial statements or reports required to be
delivered pursuant to Section 2.4 hereof.
ARTICLE III
MISCELLANEOUS
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Section 3.1. Restated-Credit Agreement. Except as expressly modified
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as contemplated hereby, the Restated Credit Agreement and the other Loan
Documents are hereby confirmed to be in full force and effect in accordance with
their respective terms.
Section 3.2. Effectiveness. This Amendment shall be effective when
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executed and delivered by MBIA and the Agent.
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Section 3.3. Survival. All covenants, agreements, representations and
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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 or Note remains outstanding or unpaid, any other amount payable by
MBIA under the Restated Credit Agreement as amended hereby, any Note or any
other Loan Document remains unpaid or any other obligation of MBIA to perform
any other act hereunder or under the Restated Credit Agreement as amended
hereby, any 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 Restated Credit Agreement as amended hereby.
Section 3.4. Severability. Any provision of this Amendment which is
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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 3.5. Successors and Assigns. This Amendment is a continuing
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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 Restated Credit Agreement.
Section 3.6. Amendments. No provision of this Amendment shall be
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waived, amended or supplemented except as provided in Section 10.12 of the
Restated Credit Agreement.
Section 3.7. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND
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CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
Section 3.8. Headings. Section headings in this Amendment are
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included herein for convenience or reference only and shall not constitute a
part of this Amendment for any other purpose.
Section 3.9. Counterparts. This Amendment may be executed in several
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counterparts, each of which shall be regarded as the original and all of which
shall constitute one and the same Amendment.
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IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to be
duly executed and delivered by their respective officers "hereunto duly
authorized as of the date first above written.
MBIA INSURANCE CORPORATION
By
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Senior Vice President and Treasurer
CREDIT SUISSE, New York Branch,
as Agent and as a Bank
By
Name:
Title:
Name:
Title:
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PROMISSORY NOTE
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US$237, 500, 000 New York, New York as of January 1, 1996
FOR VALUE RECEIVED, the undersigned, MBIA INSURANCE CORPORATION, a New
York stock insurance corporation formerly known as Municipal Bond Investors
Assurance Corporation ("MBIA"), hereby promises to pay to the order of CREDIT
SUISSE (the "Bank"), New York Branch, at its offices at 00 Xxxx 00xx Xxxxxx, Xxx
Xxxx, Xxx Xxxx, 00000, in lawful money of the United States of America in
immediately available funds, the principal sum of Two Hundred Thirty Seven
Million Five Hundred Thousand Dollars (US$237,500, 000) or, if less, the
aggregate unpaid PRINCIPAL AMOUNT of the Loans (as defined in the hereinafter
referred to Credit Agreement) outstanding and payable to the Bank by MBIA under
the First Restated Credit Agreement, dated as of October 1, 1993, as heretofore
amended and as further amended from time to time (the "Credit Agreement") in the
amounts and on the dates set out in the Credit Agreement. MBIA also promises to
pay interest on the unpaid principal amount of such Loans from the date on which
such Loans are made until the Loans are repaid in full at such interest rates
and payable on such dates as are determined pursuant to the Credit Agreement.
If any payment on this Note shall be specified to be made upon a day
which is not a Business Day (as defined in the Credit Agreement), it shall be
made on the next succeeding Business Day, and such extension of time shall in
such case be included in computing interest, if any, in connection with such
payment.
The Bank is authorized to record the date and amount of each Loan and
each payment, prepayment and conversion with respect thereto on the grid
attached hereto or on a continuation thereof which shall be attached hereto and
made a part hereof, and any such notation shall constitute prima facie
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evidence of the accuracy of the information so recorded; Provided that the
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failure to make any such notations shall not affect the validity of MBIA's
obligations hereunder.
Presentment, demand, protest and notice of dishonor are hereby waived
by the undersigned.
This Note evidences the Bank's Loans under, and is entitled to the
benefits and subject to the provisions of, and is
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secured by, the Credit Agreement and the other Loan Documents (as defined
therein). The Credit Agreement, among other things, contains provisions with
respect to the acceleration of the maturity of this Note upon the happening of
certain stated events, and for mandatory and optional prepayments of the
principal of this Note prior to maturity, all upon the terms and conditions
specified therein.
This Note represents a replacement for MBIA's notes, dated December
31, 1993 and September 23, 1994, heretofore issued to the Bank.
The payment obligations of MBIA under this Note are limited as
provided in Section 2.7 of the Credit Agreement.
This Note shall be construed in accordance with and governed by the
laws of the State of New York.
MBIA INSURANCE CORPORATION
By:
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Senior Vice President and
Treasurer
GRID
Unpaid
Principal Principal
Amount of Paid or Amount of Notation
Date Loan Prepaid Note Made by
---- ---- ------- ---- -------
ASSIGNMENT AND ASSUMPTION AGREEMENT
dated as of January 1, 1996
Reference is made to the Credit Agreement described in Item 1 of Annex
I annexed hereto (as such agreement may hereafter be amended, modified or
supplemented from time to time, the "Credit Agreement"). Unless defined in Annex
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I attached hereto, terms defined in or defined for purposes of the Credit
Agreement are used herein as so defined. Credit Suisse, New York Branch, as
Agent under the Credit Agreement (in such capacity, the "Agent"), and as a Bank
(in such capacity, the "Assignor") and Deutsche Bank AG, New York Branch (the
"Assignee"), hereby agree as follows:
(a) The Assignor hereby sells and assigns to the Assignee without
recourse and without representation or warranty (other than as expressly
provided herein), and the Assignee hereby purchases and assumes from the
Assignor, that interest in and to that portion of the Assignor's Commitment and
other rights, duties and obligations under the Credit Agreement, in and to that
portion of the Assignor's Loans (if any) as of the date hereof which represents
the percentage interest specified in Item 2 of Annex I hereto (the "Assigned
Share").
(b) Following the execution of this Agreement by the Agent, the
Assignor and the Assignee, the consent hereto by MBIA and payment by the
Assignee to the Assignor of the purchase price for the Assigned Share as agreed
upon by the Assignor and the Assignee, this Agreement shall become effective as
of the Settlement Date specified in Item 3 of Annex I hereto (the "Settlement
Date"). As of the Settlement Date, (i) the Assignee's Commitment set forth on
Schedule I to the Credit Agreement shall be increased by the amount set forth in
Item 2(d) of Annex I hereto and (ii) the Assignor 's Commitment set forth on
said Schedule shall be decreased by the same amount.
(c) The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim; (ii) makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties and representations made in or in connection with the Credit
Agreement or any of the Loan Documents or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Credit Agreement or any
of the Loan Documents or any other instrument or document furnished pursuant
thereto; (iii) makes no representation or warranty and assumes no responsibility
with respect to the
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financial condition of or the performance or observance by MBIA of any of its
obligations under the Credit Agreement, any of the Loan Documents or any other
instrument or document furnished pursuant thereto; and (iv) requests that the
Agent request that MBIA exchange the Note held by the Assignor evidencing any
Loans made by the Assignor under the Credit Agreement for a new Note payable to
the Assignor (if the Assignor has retained any interest in the Commitment as of
the Settlement Date and a new Note payable to the Assignee in the full amount of
its increased Commitment as of the Settlement Date.
(d) The Assignee (i) confirms that it has received a copy of the
Credit Agreement, together with copies of the financial statements and SEC
Reports referred to therein, and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Agreement; (ii) agrees that it will, independently and without reliance
upon the Assignor or the Agent and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Credit Agreement; (iii) confirms its
agreement with the provisions of Article 9 of the Credit Agreement and appoints
and authorizes the Agent on its behalf to exercise such powers under the Credit
Agreement and the other Loan Documents, as are delegated to the Agent by the
terms thereof and hereof, together with such powers as are reasonably incidental
thereto; and (iv) agrees that it will be bound by all of the terms and
conditions of the Credit Agreement and the other Loan Documents and will perform
in accordance with their terms all of the obligations which by the terms of the
Credit Agreement and the other Loan Documents are required to be performed by it
as a Bank.
(e) Notwithstanding any provision to the contrary contained in the
Credit Agreement, (i) the Assignee's pro rata share of commitment fees, interest
payments and other periodic payments will be appropriately adjusted to reflect
the period of time during which this Agreement has been in effect, and (ii) to
the extent that the Assignee receives any such interest or other amount pursuant
to the Credit Agreement in respect of any period of time during which this
Agreement was not in effect, or that the Assignor receives any such interest or
other amount pursuant to the Credit Agreement in respect of any period of time
prior to the time during which this Agreement was in effect, the Assignor or the
Assignee, as the case may be, will forthwith pay to the other its pro rata share
thereof, appropriately adjusted as provided in clause (iii) above.
(f) Any amendment to, waiver of any provision of or consent pursuant
to this Agreement, shall be effective with and only upon the prior concurrence
of the Agent, MBIA, the Assignor
and the Assignee, unless otherwise provided in the Credit Agreement.
(g) The address of Assignor and Assignee for purposes of all notices
or other communications hereunder or under the Credit Agreement are as set forth
on Schedule I to the Credit Agreement, or to such other address as shall be
designated by such party pursuant to Section 10.7 of the Credit Agreement.
(h) All payments to be made to the Assignor or the Assignee hereunder
or under the Credit Agreement shall be made by federal wire in accordance with
the Credit Agreement, or as otherwise directed by the Assignor or the Assignee,
as the case may be, by notice to the other and to the Agent and as may be
acceptable to the Agent.
(i) This Agreement shall be binding upon, and inure to the benefit of
the parties hereto-and their respective successors and assigns; provided that
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the Assignee may not assign any of its rights or obligations hereunder except as
permitted by Section 10.8 (b) or 10.8(c) of the Credit Agreement.
(j) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Assumption Agreement to be executed by their respective officers "hereunto duly
authorized, as of the date first above written, such execution also being made
on Annex I hereto.
CREDIT SUISSE, NEW YORK BRANCH, as Agent
By:
Name:
Title:
By:
Name:
Title:
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CREDIT SUISSE, NEW YORK BRANCH, as Assignor
By:
Name:
Title:
By:
Name:
Title:
DEUTSCHE BANK AG, NEW YORK BRANCH as Assignee
By:
Name:
Title:
By:
Name:
Title:
ACCEPTED AND AGREED TO:
MBIA INSURANCE CORPORATION
By /s/Xxxxxxxxxxx X. Xxxxxx
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Senior Vice President and Treasurer
ANNEX FOR ASSIGNMENT AND ASSUMPTION AGREEMENT
ANNEX I
1. Name and Date of Credit Agreement:
First Restated Credit Agreement, dated as of October l, 1993, as amended through
the First Amendment thereto, dated as of September 23, 1994, among MBIA
Insurance Corporation, a New York stock insurance corporation formerly known as
Municipal Bond Investors Assurance Corporation, Credit Suisse, a banking
corporation organized under the laws of Switzerland, acting through its New York
Branch, as Agent, and the Banks signatory thereto. The parties acknowledge that,
immediately after giving effect to this Assignment Assumption Agreement, said
First Restated Credit Agreement will be further amended by the Second Amendment
thereto, dated as of the date hereof.
2. Amounts (as of date of Assignment and Assumption Agreement):
(a) Aggregate Amount of Assignor's
Commitment $375,000,000
(b) Aggregate Amount of Assignor's
Loans Currently Outstanding) $ 0
(c) Percentage of Assignor's
Commitment and Loans Assigned 36.6666667%
(d) Assigned Amount of Commitment $137,500,000
(e) Amount of Assigned Share of Loans
Currently Outstanding N/A
3. Settlement Date: January 2, 1996, effective January 1, 1996
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ACCEPTED AND AGREED:
CREDIT SUISSE, DEUTSCHE BANK AG
New York Branch, as Assignor New York Branch, as
Assignee
By: By:
Name: Name:
Title: Title:
By: By:
Name: Name:
Title: Title:
CREDIT SUISSE,
New York Branch, as Agent
By:
Name:
Title:
By:
Name:
Title:
Annex I for Assignment and Assumption Agreement
THIRD AMENDMENT
to
FIRST RESTATED CREDIT AGREEMENT
among
MBIA INSURANCE CORPORATION,
THE BANKS SIGNATORY HERETO,
CREDIT SUISSE
New York Branch
as Administrative Agent
and
DEUTSCHE BANK AG
New York Branch
as Documentation Agent
Dated as of October 1, 1996
THIRD AMENDMENT
THIS AMENDMENT, dated as of October 1, 1996, among MBIA INSURANCE CORPORATION, a
New York stock insurance corporation (MBIA"), the financial institutions from
time to time parties hereto as Banks (collectively, the "Banks"), CREDIT SUISSE,
New York Branch, as Administrative Agent for the Banks (in such capacity, the
"Administrative Agent"), and DEUTSCHE BANK AG, New York Branch, (in such
capacity, collectively with the Administrative Agent, the "Agents");
WHEREAS, MBIA, the Agents and the Banks identified therein are parties to the
First Restated Credit Agreement, dated as of October 1, 1993, as amended by the
First Amendment thereto dated as of September 23, 1994 and the Second Amendment
thereto dated as of January 1, 1996 and as supplemented by various Assignment
and-Assumption Agreements and Joinder Agreements (as so amended and
supplemented, the "Credit Agreement");
WHEREAS, Sudwestdeutsche Landesbank, one of the Banks, desires to terminate its
Commitment (as defined in the Credit Agreement) and MBIA, the Agents and certain
other Banks have agreed to modifications of
WHEREAS, MBIA, the Agent and the Banks have agreed pursuant to Section 3.3 of
the Credit Agreement to an extension of the Expiration Date (as defined therein)
from September 30, 2002 to September 30, 2003;
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 CREDIT AGREEMENT
---------------------------------
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. Changes of Commitments. (a) As of October 1, 1996, the
Commitment of Sudwestdeutsche Landesbank is hereby terminated, and such Bank
shall cease to be a party to the Credit Agreement; provided that (i) such Bank
shall remain entitled to the benefits of provisions of the Credit Agreement
which by the terms thereof survive the termination of the Credit Agreement as to
a Bank and the repayment of all Loans made by such Bank and (ii) such Bank shall
remain obligated for its pro rata share (determined in accordance with the
Credit Agreement) of amounts payable by Banks pursuant to Section 8.4 of the
Credit Agreement (titled "Indemnity") to the extent such amounts relate to or
arise out of any period prior to October 1, 1996.
(b) As of October 1, 1996, the respective Commitments of the
remaining Banks shall be as follows:
Bank Commitment
---- ----------
Credit Suisse, New York $235,000,000
Branch
Deutsche Bank AG, New York $235,000,000
Branch
Cooperatieve Centrale $125,000,000
Raiffeisen-Boerenleenbank
B.A. (Rabobank Nederland)
Caisse des Depots et $ 50,000,000
Consignations
Landesbank Hessen- $ 50,000,000
Thoringen Girozentrale
Bayerische Landesbank $ 30,000,000
Girozentrale, New York
Branch
The parties acknowledge that, giving effect to such changes, the Maximum
Commitment shall be $725,000,000.
Section 1.3. Expiration Date. The parties hereby agree that the
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Expiration Date, as heretofore extended, is hereby further extended to September
30, 2003 pursuant to the provisions of Section 3.3 of the Credit Agreement.
ARTICLE 2
CONDITIONS PRECEDENT
Section 2.1. Conditions Precedent to Third Amendment Effective Date.
------------ --------------
The provisions of Article 1 of this Agreement
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shall become effective as of October 1, 1996 when each of the following
conditions has been fulfilled to the reasonable satisfaction of the Agents. If
such conditions have not been satisfied on or prior to October 1, 1996, then at
the written election of the Agents delivered to MBIA, this Third Amendment shall
terminate and be of no further force or effect.
(i) 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.
(ii) The following Banks shall have received replacement or additional Notes
meeting the requirements of Section 2.3 of the Credit Agreement in the
respective principal amounts set forth below (the "Additional Notes"):
Bank Principal Type of
------------------------------------------------------
Amount Note
-------------------------------------------------
Credit Suisse, New $235,000,000 Replacement
York Branch
Deutsche Bank AG, New $235,000,000 Replacement
York Branch
Cooperatieve Centrale $ 75,000,000 Additional
Raiffeisen
Boerenleenbank B.A.
Rabobank Nederland)
Landesbank Hessen- $ 25,000,000 Additional
Thoringen
Girozentrale
(iii) The Agent shall have received each of the following, in form and substance
satisfactory to the Agent:
(A) a certificate of any two of the President, 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,
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;
(B) 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
Additional Notes (collectively, the "Third 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 Third Amendment Documents
on behalf of MBIA, and (C) the effect that, from and after January 1, 1996,
there has been no amendment, modification or revocation of the articles of
incorporation or by-laws of MBIA;
(C) opinions of the General Counsel of MBIA and Xxxxx Xxxx, MBIA's counsel, each
dated as of October 1, 1996, which are substantially to the effect set forth in
the forms attached hereto as, respectively, Exhibits A and B; and (D) such other
documents, instruments, approvals (and, if reasonably requested by the Agents 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 Agents or the Majority Banks may reasonably request.
(iv) The Agents 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.
(v) Effective as of October 1, 1996, the Bank Fee Letter shall have been
modified in a manner satisfactory to MBIA and the Agents and consented to by all
of the Banks.
(vi) Effective as of October 1, 1996, the Agent Fee Letter shall have been
modified in a manner satisfactory to MBIA and the Administrative Agent.
(vii) 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 Agents.
A certificate of the Agents delivered to MBIA stating that this Amendment has
become effective shall be conclusive evidence thereof.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
------------------------------
In order to induce the Agents and the Banks to enter into this Amendment, MBIA
makes the following representations and warranties to the Agent 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
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performance by MBIA of the Third 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
G. 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 the corporate charter or by-laws of MBIA,
(ii) result in a breach of or constitute a default under any indenture or loan
or credit agree-
ment 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
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any notice to or filing with any court or adminis-
trative or governmental body is or will be necessary for the valid execution,
delivery or performance by MBIA of the Third Amendment Documents or the Loan
Documents as amended thereby.
Section 3.3. Enforceability. Each Third Amendment Document and each
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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 court Of law or a court of equity.
Section 3.4. Financial Statements, etc. (a) MBIA has heretofore
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furnished to the Agents (i) the audited consolidated and unaudited consolidating
balance sheets of MBIA Inc. and its subsidiaries at December 31, 1995, the
related audited consolidated statements of income, 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, 1995, and
(ii) the unaudited consolidated and consolidating balance sheets of MBIA Inc.
and its subsidiaries as of March 31 and June 30, 1996, and the related
consolidated statements of income, changes in stockholders' equity and cash
flows for the three months ended March 31, 1996 and the six months ended June
30, 1996. 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, 1996.
(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, 1995 and its quarterly statements and financial statements as filed
with the Department for the periods ended March 31, 1996 and June 30, 1996.
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, 1995 as
filed with the Securities and Exchange Commission and the quarterly reports on
Form 10-Q of MBIA Inc. for each of the quarters ended March 31, 1996 and June
30, 1996 as filed with the Securities and Exchange Commission. Such annual and
quarterly 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
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Obligations in the Covered Portfolio are insured by MBIA under Insurance
Contracts in the form or forms heretofore supplied to the Administrative Agent
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 (including without limitation those set forth in Article 5 of the
Credit Agreement) are true and correct as of the date hereof, and represents and
warrants that no Default or Event of Default has occurred and is continuing.
Section 3.7. Disclosure. There is no fact known to MBIA which
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materially adversely affects the business, assets, operations or financial
condition of MBIA or the ability of MBIA to perform its obligations under any
the Third Amendment Documents or any Loan Document as amended thereby which has
not been set forth in this Amendment or 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
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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.
Section 4.2. Effectiveness. This Amendment shall be effective as
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provided in and subject to Article 2 above when executed and delivered by MBIA,
each Agent and each Bank.
Section 4.3. Survival. All covenants, agreements, representations and
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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 or Note remains outstanding or unpaid, any other amount payable by
MBIA under the Credit Agreement as amended hereby, any 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 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 4.4. Severability. Any provision of this Amendment which is
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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 4.5. Successors and Assigns. This Amendment is a continuing
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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 4.6. Amendments. No provision of this Amendment shall be
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waived, amended or supplemented except as provided in Section 10.12 of the
Credit Agreement.
Section 4.7. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND
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CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
Section 4.8. Headings. Section headings in this Amendment are included
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herein for convenience or reference only and shall not constitute a part of this
Amendment for any other purpose.
Section 4.9. Counterparts. This Amendment may be executed in several
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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 "hereunto duly
authorized as of the date first above written.
MBIA INSURANCE CORPORATION
By/s/ Xxxxxxxxx Xxxxxxx
Name:
Title:
CREDIT SUISSE, New York Branch,
as Administrative Agent and as
a Bank
By
Name:
Title:
By
Name:
Title:
DEUTSCHE BANK AG, New York
Branch, as Documentation Agent
and as a Bank
By
Name:
Title:
By
Name:
Title:
COOPERATIVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A.
(RABOBANK NEDERLAND)
NEW YORK BRANCH
By
Name:
Title:
By
Name:
Title:
CAISSE DES DEPOTS
ET CONSIGNATIONS
By
Name:
Title:
By
Name:
Title:
BAYERISCHE LANDESBANK GIROZENTRALE
By
Name:
Title:
By
Name:
Title:
LANDESBANK HESSEN-THORINGEN GIROZENTRALE
By
Name:
Title:
By
Name:
Title:
[Terminating Bank]
SUDWESTDEUTSCHE LANDESBANK
By
Name:
Title:
By
Name:
Title:
EXHIBIT A
TO THIRD AMENDMENT
Form of Opinion of General Counsel of MBIA,
October 1, 1996
The Parties Listed on
Schedule I hereto
Re: Third Amendment to First Restated Credit Agreement Dated as of October 1,
1993, among MBIA Insurance Corporation, Credit Suisse, New York Branch, as
Administrative Agent and as a Bank, Deutsche Bank AG, as Documentation
Agent and as a Bank, and the other Banks signatory thereto
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 the Third
Amendment, dated as of October 1, 1996 (the "Third Amendment"), to the First
Restated Credit Agreement dated as of October 1, 1993 (the "First Restated
Credit Agreement") among MBIA, Credit Suisse, New York Branch, as Administrative
Agent and as a Bank, Deutsche Bank AG, as Documentation Agent and as a Bank, and
the other Banks signatory thereto. The First Restated Credit Agreement, as
amended by the Third Amendment, is referred to herein as the "Credit Agreement."
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 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:
(a) 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 Third Amendment, the Credit
Agreement, and the Additional Notes (as defined in the Third Amendment) (the
"Transaction Documents").
(b) The execution, delivery and performance of the Transaction Documents are
within the 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 G. 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, the Permitted Liens
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.
(c) 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.
(d) 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
A-2
transactions contemplated by the Credit Agreement or (iii) the validity or
enforceability of the Transaction Documents.
(e) 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.
(f) 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.
(g) 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 Third Amendment, 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
A-3
SCHEDULE I
Credit Suisse, New York Branch
as a Bank and as Administrative Agent
00 Xxxx- 00 Xxxxxx
Xxx Xxxx, XX 00000
Deutsche Bank AG, New York Branch
as a Bank and as Documentation Agent
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Cooperative Centrale Raiffeisen
Boerenleenbank B.A. (Rabobank Nederland)
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Caisse des Depots and Consignations
c/o CDC Capital, Inc.
0 Xxxx 00 Xxxxxx -- 00xx Xxxxx
Xxx Xxxx, XX 00000
Bayerische Landesbank Girozentrale,
New York Branch
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Landesbank Hessen-Thuringen Girozentrale
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
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EXHIBIT B
TO THIRD AMENDMENT
Form of Opinion of Kutak. Rock
------------------------------
October 1, 1996
To the Parties Listed on Schedule I hereto
Re: Third Amendment to First Restated Credit Agreement Dated as of October 1,
1993 among MBIA Insurance Corporation, Credit Suisse, New York Branch, as
Administrative Agent and as a Bank, Deutsche Bank AG, New York Branch, as
Documentation Agent and as a Bank, and the Other Banks Signatory Thereto
Ladies and Gentlemen:
This opinion is furnished to you in connection with the Third Amendment,
dated as of October 1, 1996 (the "Third Amendment") to the First Restated Credit
Agreement dated as of October 1, 1993 (the "First Restated Credit Agreement"),
among MBIA Insurance Corporation ("MBIA"), Credit Suisse, acting through its 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. The First Restated Credit Agreement, as amended by the Third Amendment,
is referred to herein as the "Credit Agreement." 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 Third
Amendment, the Credit Agreement and the Additional Note (as defined in the
Third Amendment).
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 (A) each document referred to in the immediately preceding
paragraph by all parties other than MBIA to such document, and (B) the consent
to the Third Amendment of each Bank, (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:
(a) 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.
(b) 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 maybe 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.
(c) 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 G. 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.
(d) 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.
(e) 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 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.
B-2
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 Third 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,
B-3
SCHEDULE I
Credit Suisse, New York Branch as a Bank
as Administrative Agent
00 Xxxx 00 Xxxxxx
Xxx Xxxx, XX 00000
Deutsche Bank AG, New York Branch
as a Bank and as Documentation Agent
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Cooperative Centrale Raiffeisen
Boerenleenbank B.A. (Rabobank Nederland)
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Caisse des Depots and Consignations
c/o CDC Capital, Inc.
0 Xxxx 00 Xxxxxx -- 00xx Xxxxx
Xxx Xxxx, XX 00000
Bayerische Landesbank Girozentrale,
New York Branch
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxx.sbank Hessen-Thuringen Girozentrale
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
B-4
