EXECUTION COPY
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FIRST 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
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Dated as of October 1, 1998
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FIRST AMENDMENT
THIS FIRST AMENDMENT, dated as of October 1, 1998 (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-BOERENLEENBANK 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");
WHEREAS, the parties hereto are parties to the Second Amended and Restated
Credit Agreement, dated as of October 1, 1997 (the "Credit Agreement");
WHEREAS, Credit Suisse First Boston, New York Branch, desires to resign as
Administrative Agent for the Banks; the Majority Banks, with the consent of
MBIA, desire to appoint Rabobank as successor Administrative Agent pursuant to
the terms of the Credit Agreement, and Rabobank is willing to accept such
appointment; 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. Amendments.
(a) Section 3.3 of the Credit Agreement is hereby amended and restated in
its entirety to read as follows:
"Section 3.3 Extension of Commitments. The Expiration Date may be
extended from time to time with the consent of the Administrative Agent and
all Banks (other than Nonextending Banks whose Commitments have been
terminated), each in their sole discretion, as provided in this Section
3.3. Not later than August 1, 1999, and not later than each August 1
thereafter in respect of succeeding one-year extension periods provided
for below, or such later date to which the Administrative Agent and the
Majority Banks may consent in writing, MBIA may notify the Administrative
Agent if MBIA desires to have the Expiration Date extended for a period of
one year from the date on which it is then scheduled to occur. The
Administrative Agent shall promptly give the Banks notice of its receipt of
any such request and shall request each Bank to consent to such extension,
unless the Administrative Agent has determined to withhold its consent to
such extension. Such notice and request from the Administrative Agent to
the Banks may be given by the Administrative Agent subject to a reservation
by the Administrative Agent of its right to withhold consent to such
extension at a later date. Each Bank which elects to give its consent to
such extension shall deliver such consent to the Administrative Agent and
MBIA prior to the later to occur of (a) 90 days following the date of
MBIA'S request and (b) the August 1 of the year which is six years prior to
then scheduled Expiration Date (or in each case such later date to which
the Administrative Agent and MBIA have consented). Any Bank which has not
given its consent within such period shall be deemed to be a "Nonextending
Bank", and MBIA shall have the right at any time thereafter to elect to
terminate the Commitment of such Nonextending Bank by not less than five
Business Days' prior notice to such Nonextending Bank and the
Administrative Agent unless, prior to the effectiveness of such
termination, (i) any Loan has been made or (ii) any Default or Event of
Default has occurred and is continuing. Any such termination shall be
effective on the date specified in such notice."
(b) The following definitions contained in Exhibit A to the Credit
Agreement are hereby amended and restated to read in its entireties as
follows:
"'Base Rate' shall mean the higher of (i) the rate of interest
announced by Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A.
"Rabobank Nederland", New York Branch, in New York City from time to
time as its base rate, each change in such fluctuating interest rate
to take effect simultaneously with the corresponding change in such
base rate, but in no event in excess of the maximum interest rate
permitted by applicable law and (ii) 1/2 of 1% per annum above the
Bank's Federal Funds Rate (as defined below) for overnight funds. For
such purpose, the 'Federal Funds Rate' shall mean, for any day, the
fluctuating interest rate per annum at which said branch, as a branch
of a foreign bank, in its sole discretion, can acquire federal funds
in the New York City interbank term (or overnight, as the case may be)
federal funds market or other funding sources available to said
branch, through brokers of recognized standing, for a period and in an
amount comparable to the period and amount requested by MBIA."
"'Commitment Period' shall mean initially the period commencing
on October 1, 1998 and ending on October 31, 2005 (or, if such day is
not a Business Day, on the next preceding Business Day) and, from and
after the date of any extension of the Expiration Date pursuant to
Section 3.3 to a date later than October 31, 2005), shall mean the
period commencing on the first day of November which immediately
follows the 31st day of October which is seven years prior to the
Expiration Date, and ending on the Expiration Date (or, if such day is
not a Business Day, on the next preceding Business Day)."
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"'Expiration Date' shall mean the date on which the right to
obtain Loans terminates, initially October 31, 2005, as such date may
be extended pursuant to Section 3.3."
Section 1.3 Commitments.
(a) The respective Commitments of the Banks are hereby amended so that,
from and after October 7, 1998 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.
(b) The parties acknowledge that, after giving effect to certain notices of
changes of address delivered on or prior to the date hereof, the respective
addresses of the Banks for purposes of Section 10.7 of the Credit Agreement are
as set forth on Schedule 1 to this Amendment.
Section 1.4. Succession of Administrative Agent
(a) Credit Suisse First Boston, New York Branch, hereby confirms that it
has resigned as Administrative Agent, effective as of October 7, 1998. The Banks
hereby waive notice of such resignation and hereby appoint Rabobank as successor
Administrative Agent effective as of October 7, 1998, and MBIA hereby waives
notice of such resignation and consents to such appointment, in each case
pursuant to Section 8.7 of the Credit Agreement. The parties acknowledge that
Rabobank, in its capacity as successor Administrative Agent, automatically and
without further action of the parties becomes the successor Collateral Agent
under the Security Agreement. The parties further acknowledge and hereby confirm
that, as provided in Section 8.7 of the Credit Agreement, the provisions of
Sections 8.2 through 8.5 of the Credit Agreement shall continue to inure to the
benefit Credit Suisse First Boston, New York Branch, and its successors and
assigns, in respect of any action taken or omitted to be taken by it in its
capacity as Agent while it was an Agent under the Credit Agreement or any Loan
Document, notwithstanding its resignation as an Agent thereunder.
(b) From and after October 7, 1998,
(i) the address of the Administrative Agent and the Collateral
Agent for purposes of the Credit Agreement and Security Agreement
shall be:
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx Xxxxxx
Telecopy: (000) 000-0000
or as the Administrative Agent may direct by written notice to all
other parties to the Credit Agreement;
(ii) the Payment Office of the Administrative Agent shall be 000
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, or such other office as
the Administrative Agent may from time to time designate by notice to
MBIA; and
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(iii) each Note and Fronting Bank Note shall be payable at the
office of the Administrative Agent at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000-0000, or such other office as the Administrative Agent may
from time to time designate by notice to MBIA and the holder of such
Note.
(c) From and after October 7, 1998, each reference in the Credit Agreement
(including in the exhibits thereto), the Notes, the Security Agreement, each
Fronting Bank Supplement and the other Loan Documents to the name or address of
the Administrative Agent shall be deemed to be (and, to the extent required, is
hereby amended to be) a reference to the name or address, as the case may be, of
Rabobank as set forth herein.
(d) Each Bank hereby agrees to attach a copy of this Amendment to each Note
and Fronting Bank Note held by it prior to any assignment or other transfer
thereof or of any interest therein by such Bank, unless such Note or Fronting
Bank Note has been issued or reissued by MBIA on or after the date of this
Amendment and specifies the place of payment described in Section 1.4(b)(iii)
above.
(e) MBIA and Credit Suisse First Boston, New York Branch, hereby agree that
the Agent Fee Letter, dated October 7, 1997, between them is hereby terminated
effective as of appointment of Rabobank as successor Administrative Agent
hereunder.
(f) MBIA hereby agrees to deliver to the Rabobank, as Administrative Agent,
promptly after the effectiveness of its appointment as Administrative Agent
hereunder, a true and complete copy of Exhibit E to the Credit Agreement (list
of insured obligations excluded from the Covered Portfolio), as most recently
updated pursuant to the definition of "Covered Portfolio" contained in Exhibit A
to the Credit Agreement.
ARTICLE 2
CONDITIONS PRECEDENT
Section 2. 1. Conditions Precedent to Amendment Effective Date. The
provisions of Article I hereof shall become effective as of October 7, 1998 when
this Amendment shall have been executed and delivered by MBIA, Rabobank, Credit
Suisse First Boston, New York Branch, Deutsche Bank AG, New York Branch, as
Documentation Agent, and each Bank and, except in the case of the provisions of
Section 1.4, 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 October 13, 1998, this provisions of Article 1 (other than Section
1.4 thereof) 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.
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(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, 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;
(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 7, 1997, 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 7, 1998, 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) 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.
(e) MBIA shall have entered into a replacement Agent Fee Letter with
Rabobank, as Administrative Agent, in form and substance satisfactory to
Rabobank.
(f) 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 7, 1998, in a principal amount equal to the amount of its
Commitment or of the increase in its Commitment, as applicable.
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(g) 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.
(h) Credit Suisse First Boston, New York Branch, as resigning Collateral
Agent, shall have executed and delivered to Rabobank, as Collateral Agent,
assignments of each effective financing statement with respect to the Security
Agreement.
(i) Termination letters shall be executed by each of the Banks terminating
its Commitment.
(j) 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.
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 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,
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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 court
of law or a court of equity.
Section 3.4. Financial Statements, etc. (i) 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, 1997, 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, 1997, and
(ii) the unaudited consolidated and consolidating balance sheets of MBIA Inc.
and its subsidiaries as of March 31 and June 30, 1998, and the related
consolidated statements of income, changes in stockholders' equity and cash
flows for the three months ended March 31, 1998, the six months ended June 30,
1998. 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, 1998.
(ii) 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, 1997 and its quarterly statements and financial statements as filed
with the Department for the periods ended March 31, 1998 and June 30, 1998. 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.
(iii) 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, 1997,
its quarterly reports on Form 10-Q of MBIA Inc. for each of the quarters ended
March 31, 1998 and June 30, 1998 and each current report on Form 8-K filed by
MBIA Inc. on or after January 1, 1998, each as filed with the Securities and
Exchange Commission. Such annual, quarterly and current reports were prepared in
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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 MBIA has heretofore supplied to Rabobank copies of each such form which
was earlier supplied to Credit Suisse First Boston, New York Branch, as
Administrative Agent, or to the Documentation Agent and has heretofore disclosed
to Rabobank the underwriting criteria which was earlier disclosed to Credit
Suisse First Boston, New York Branch, as Administrative Agent, or to the
Documentation Agent.
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
Restated 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 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
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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. Severabilily. 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.
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/ Xxxxxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxxxxx X. Xxxxxxx
Title: Executive Vice President
CFO & Treasurer
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COOPERATIEVE CENTRALE RAIFFEISEN
BOERENLEENBANK B.A. "RABOBANK
NEDERLAND", New York Branch, as successor
Administrative Agent and as a Bank
By /s/ [ILLEGIBLE]
----------------------------------------
Name:
[INITIALED] Title:
By /s/ Xxxx X. Xxxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President
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XXXXXXXX XXXX, XX, Xxx Xxxx Branch,
as Documentation Agent and as a Bank
By /s/ Xxxx X. XxXxxx
----------------------------------------
Name: Xxxx X. XxXxxx
Title: Vice President
By /s/ Gayma Z. Shivriarain
----------------------------------------
Name: Gayma Z. Shivriarain
Title: Vice President
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CREDIT SUISSE FIRST BOSTON,
New York Branch, as resigning
Administrative Agent and as a Bank
By /s/ Xxx Xxxxx
----------------------------------------
Name: Xxx Xxxxx
Title: Director
By /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
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CAISSE DES DEPOTS ET CONSIGNATIONS,
as a credit facility provider
By /s/ X.X. Xxxxxx
----------------------------------------
Name: X.X. Xxxxxx
Title: Authorized Signer
By /s/ [ILLEGIBLE]
----------------------------------------
Name: [ILLEGIBLE]
Title: Authorized Signer
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XXXXXXXXXX XXXXXXXXXX
XXXXXXXXXXXX, Xxx Xxxx Branch,
as a Bank
By /s/ Xxxxx Xxxxxxx
----------------------------------------
Name: Xxxxx Xxxxxxx
Title: First Vice President
By /s/ Xxxxxxxxx Xxxxxxx
----------------------------------------
Name: Xxxxxxxxx Xxxxxxx
Title: Vice President
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XXXXXXXXXX XXXXXX-XXXXXXXXX
XXXXXXXXXXXX, Xxx Xxxx Branch, as a Bank
By /s/ Xxxx X. Xxxx
----------------------------------------
Name: Xxxx X. Xxxx
Title: Senior Vice President
Manager
By /s/ Xxxx X. Xxxxx
----------------------------------------
Name: Xxxx X. Xxxxx
Title: President & Portfolio Manager
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LLOYDS BANK PLC
By /s/ Xxx Xxxxxxxxxx
----------------------------------------
Name: XXX XXXXXXXXXX
Title: VICE PRESIDENT
STRUCTURED FINANCE
V024
By /s/ Xxxxxx Xxxxxx
----------------------------------------
Name: Xxxxxx Xxxxxx
Title: Assistant Vice President
Structured Finance
X000
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XXXXXXXXXXXX XXXXXXXXXX
GIROZENTRALE, New York Branch, as a Bank
By /s/ Xxxxxxx Xxxx Xxx
----------------------------------------
Name: Xxxxxxx Xxxx Xxx
Title: Vice President
By /s/ Xxxx X. XxXxxxx
----------------------------------------
Name: Xxxx X. XxXxxxx
Title: Associate
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FLEET NATIONAL BANK, as a Bank
By /s/ X.X. Xxxxxxx
----------------------------------------
Name: X.X. Xxxxxxx
Title: Vice President
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XXX XXXXX XXXXXXXXX BANK,
as a Bank
By /s/ Xxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
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DEUTSCHE GIROZENTRALE
DEUTSCHE KOMMUNALBANK, as a Bank
By /s/ Xx. X. Xxxxxxxxxx
----------------------------------------
Name: Xx. X. Xxxxxxxxxx
Title: Senior Vice President
By /s/ St. Xxxxxx
----------------------------------------
Name: St. Xxxxxx
Title: Vice President
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BANCO SANTANDER, S.A., New York Branch,
as a Bank
By /s/ Xxxxxx X. O'Loghien
----------------------------------------
Name: Xxxxxx X. O'Loghien
Title: Vice President
Asset Backed Finance Group
By /s/ Xxxx Xxxxxxxx
----------------------------------------
Name: XXXX XXXXXXXX
Title: MANAGER
ASSET BACKED FINANCE GROUP
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KBC BANK, N.V., as a Bank
By /s/ Xxxxxx Xxxxxxxx
----------------------------------------
Name: XXXXXX XXXXXXXX
Title: FIRST VICE PRESIDENT
By /s/ Xxxxxx Xxxxx
----------------------------------------
Name: XXXXXX XXXXX
Title: DEPUTY GENERAL MANAGER
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XXXXXXXXXXXX XXXXXXXXXX
XXXXXXXXXXXX, Xxx Xxxx Branch, as a Bank
By /s/ Xxxxxxxxx Xxxxxx
----------------------------------------
Name: Xxxxxxxxx Xxxxxx
Title: VP
By /s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: SVP
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XXXXXX XXXXX XX XXXXXX, Xxx Xxxx
Agency, as a Bank
By /s/ Xxxxx Xxxxxxxxx
----------------------------------------
Name: XXXXX XXXXXXXXX
Title: VICE PRESIDENT
By /s/ Xxxxx X. Xxxxxx
----------------------------------------
Name: XXXXX X. XXXXXX
Title: GENERAL MANAGER
CLF NY AGENCY
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THE FIRST NATIONAL BANK OF CHICAGO,
as a Bank
By /s/ Xxxxx XxXxxxxx
----------------------------------------
Name: XXXXX XXXXXXXX
Title: VICE PRESIDENT
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EXHIBIT A
TO FIRST 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
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Re: First Amendment, dated as of October 1, 1998, 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 First
Amendment, dated as of October 1, 1998 (the "Amendment"), to the Second Amended
and Restated Credit Agreement dated as of October 1, 1997 (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 MBIA and copies
A-1
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 Amendment, the Credit Agreement, the
additional Notes dated October 7, 1998 being issued to certain parties, the
amended and restated Bank Fee Letter dated as of October 7, 1998 and the
replacement Agent Fee Letter dated as of October 7, 1998 (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 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.
(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
transactions contemplated by the Credit Agreement or (iii) the validity or
enforceability of the Transaction Documents.
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(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 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]
A-3
EXHIBIT B
TO FIRST AMENDMENT
Form of Opinion of Kutak, Rack
[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
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 100 1 9
Re: First Amendment, dated as of October 1, 1998, 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 First Amendment,
dated as of October 1, 1998 (the "Amendment"), to the Second Amended and
Restated Credit Agreement dated as of October 1, 1997 (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, the additional Notes dated October 7, 1998
being issued to certain parties, the amended and restated Bank Fee Letter dated
as of October 7, 1998 and the replacement Agent Fee Letter dated as of October
7, 1998.
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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 obligations of MBIA, including without
limitation MBIA's obligation to pay claims under Insurance Contracts
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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 November 30,
1993, delivered in connection with the first restatement of the 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 (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. We note that the filing of
an assignment of filed financing statements by the predecessor Collateral Agent
to the successor Collateral Agent pursuant to Section 9-405 of the UCC may be
required for the successor Collateral Agent to exercise certain rights of a
secured party of record with respect to such financing statements.
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 famished 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,
B-3
SCHEDULE 1
TO FIRST AMENDMENT
BANKS ADDRESSES AND COMMITMENTS
Rabo Deutsche order of comm./alpha
Name and Notice Address of Bank Commitment
------------------------------- ----------
Cooperative Centrale Raiffeisen- $100,000,000
Boerenleenbank B.A. "Rabobank Nederland",
New York Branch
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx
Deutsche Bank AG, New York Branch $165,000,000
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx, Director
Caisse des Depots et Consignations $100,000,000
CDC North America, Inc.
0 Xxxx 00xx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxxxx, Senior Vice President
Credit Suisse First Boston, $100,000,000
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attn: Xxxxx Xxx
Bayerische Landesbank Girozentrale, $50,000,000
New York Branch
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxx
Landesbank Hessen-Thuringen Girozentrale, $50,000,000
New York Branch
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxx
Lloyds Bank Plc, $50,000,000
New York Branch
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxx
Westdeutsche Landesbank Girozentrale, $50,000,000
New York Branch
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxx Xxx
Fleet National Bank $30,000,000
000 Xxxx Xxxxxx, XX-XX 0250
Xxxxxxxx, XX 00000
Attn: Xxxxxxxxx Xxxxxxx
The Xxxxx Manhattan Bank $25,000,000
000 Xxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxx
Deutsche Girozentrale Deutsche $25,000,000
Kommunalbank
Taunusanlage 10
Postfach 11 0542
D-60040 Xxxxxxxxx Xx Xxxx 00
XXXXXXX
Attn: Xxxxxxx Xxxxxx
Banco Santander, S.A., $20,000,000
New York Branch
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxxxxx
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KBC Bank, N.V. $20,000,000
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 1001 9
Attn: Xxxx XxXxxxxx
Xxxx Xxxxxx
Norddeutsche Landesbank Girozentrale, $20,000,000
New York Branch
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxxxx
Credit Local de France, $10,000,000
New York Agency
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxx Xxxxxxxxx
The First National Bank of Chicago $10,000,000
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxxx
TOTAL: $825,000,000
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