EXHIBIT 10.23
FIRST AMENDMENT
to
AMENDED AND RESTATED CREDIT AGREEMENT
among
AMBAC ASSURANCE CORPORATION,
VARIOUS BANKS,
BANK OF AMERICA, NA,
as Syndication Agent,
THE BANK OF NEW YORK,
as Documentation Agent
and
DEUTSCHE BANK AG, NEW YORK BRANCH,
as Agent
__________________________________
Dated as of December 2, 1999
__________________________________
FIRST AMENDMENT
THIS FIRST AMENDMENT, dated as of December 2, 1999 (this "Amendment"),
---------
among AMBAC ASSURANCE CORPORATION, a Wisconsin stock insurance corporation (the
"Borrower"), the financial institutions which have executed this Amendment below
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as Banks (as defined below), BANK OF AMERICA, NA, acting in its capacity as
Syndication Agent pursuant to Section 11 of the Original Credit Agreement (as
defined below), as amended hereby (in such capacity, the "Syndication Agent"),
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THE BANK OF NEW YORK, acting in its capacity as Documentation Agent pursuant to
Section 11 of the Original Credit Agreement, as amended hereby (in such
capacity, the "Documentation Agent"), and DEUTSCHE BANK AG, NEW YORK BRANCH,
-------------------
acting in its capacity as Agent pursuant to Section 11 of the Original Credit
Agreement, as amended hereby (in such capacity, the "Agent").
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W I T N E S S E T H:
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WHEREAS, the Borrower, certain of the Banks and the Agent are parties
to the Amended and Restated Credit Agreement, dated as of December 2, 1998, as
supplemented as of May 3, 1999 (the "Original Credit Agreement" and, as amended
-------------------------
by this Agreement and from time to time hereafter amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"); and
----------------
WHEREAS, at the request of the Borrower, the parties hereto have
agreed, upon the terms and subject to the conditions hereinafter set forth, to
extend the Expiry Date (as defined in the Credit Agreement), to increase the
aggregate Commitments of the Banks from $575,000,000 to $750,000,000 and modify
the Commitments (as defined in the Credit Agreement) of certain Banks, to
provide for the appointment of the Syndication Agent and the Documentation Agent
and otherwise to modify the Original Credit Agreement in certain respects;
NOW, THEREFORE, IT IS AGREED:
ARTICLE I
MODIFICATIONS TO CREDIT AGREEMENT
Section 1.01. Defined Terms. Except as otherwise specified herein,
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terms used in this Amendment and defined in the Credit Agreement shall have the
meanings provided therein.
Section 1.02. Extension of Expiry Date. Section 3.04 of the Original
------------------------
Credit Agreement is hereby amended to replace the date "December 2, 2005"
appearing therein with the date "December 2, 2006."
Section 1.03. Increase of Commitments.
-----------------------
(a) The aggregate Commitments of the Banks are hereby increased
from $575,000,000 to $750,000,000, and the Commitments of the respective
Banks and
the other information set forth in Schedule 1 to the Credit Agreement are
hereby amended and restated to read as set forth on Schedule 1 to this
Amendment.
(b) Each Bank which is a party hereto and is not a party to the
Original Credit Agreement hereby (i) confirms that it has received a copy
of the Original Credit Agreement and the other Credit Documents, together
with copies of the financial statements 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 the Credit Agreement; (ii)
agrees that it will, independently and without reliance upon the Agent, the
Syndication Agent, the Documentation Agent or any other Bank 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) agrees that it will perform in accordance
with their terms all of the obligations which by the terms of the Credit
Agreement are required to be performed by it as a Bank; and (iv) to the
extent legally entitled to do so, agrees to provide to the Borrower on or
before the Amendment Effective Date (as defined in Section 4.05 below) the
forms described in the penultimate sentence of Section 12.04(b) of the
Credit Agreement. The initial address for each such Bank for purposes of
Section 12.03 of the Credit Agreement shall be as set forth opposite such
Bank's signature to this Amendment.
Section 1.04. Section 10.03. Section 10.03 of the Credit Agreement
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is hereby amended and restated to read in its entirety as follows:
"Section 10.03. Covenants. The Borrower or any of its
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Subsidiaries shall (i) default in the due performance or observance by it
of any term, covenant or agreement contained in Section 8.01(e), 8.08,
8.09, 8.10, 8.11, 8.12 or 9 hereof and such default shall continue
unremedied for a period of 15 Business Days after written notice to the
Borrower by the Agent or Bank, or (ii) default in the due performance or
observance by it of any term, covenant or agreement (other than those
referred to in Sections 10.01 and 10.02 and clause (i) of this Section
10.03) contained in this Agreement and such default shall continue
unremedied for a period of 30 days after written notice to the Borrower by
the Agent or any Bank; or".
Section 1.05. Agents. Section 11.01 of the Original Credit Agreement
------
is hereby amended to add the following two paragraphs at the end thereof.
"The Banks hereby designate Bank of America, NA as Syndication
Agent to act as specified in the Credit Documents. Each Bank hereby
irrevocably authorizes, and each holder of any Note by the acceptance of
such Note shall be deemed irrevocably to authorize, the Syndication Agent
to take such action on its behalf under the provisions of the Credit
Documents and any other instruments and agreements referred to herein or
therein and to exercise such powers and to perform such duties hereunder
and thereunder as are specifically delegated to or required of the
Syndication Agent by the terms hereof and thereof and such other powers as
are reasonably incidental thereto. The Syndication Agent may perform any of
its duties hereunder by or through its officers, directors, agents or
employees. For purposes of Sections 11.02 through 11.08 hereof, the term
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"Agent" shall also include Bank of America, NA in its capacity as
Syndication Agent.
"The Banks hereby designate The Bank of New York as Documentation
Agent to act as specified in the Credit Documents. Each Bank hereby
irrevocably authorizes, and each holder of any Note by the acceptance of
such Note shall be deemed irrevocably to authorize, the Documentation Agent
to take such action on its behalf under the provisions of the Credit
Documents and any other instruments and agreements referred to herein or
therein and to exercise such powers and to perform such duties hereunder
and thereunder as are specifically delegated to or required of the
Documentation Agent by the terms hereof and thereof and such other powers
as are reasonably incidental thereto. The Documentation Agent may perform
any of its duties hereunder by or through its officers, directors, agents
or employees. For purposes of Sections 11.02 through 11.08 hereof, the term
"Agent" shall also include The Bank of New York in its capacity as
Documentation Agent."
ARTICLE II
CONDITIONS PRECEDENT TO EFFECTIVENESS
This Amendment shall become effective as of the Amendment Effective
Date, subject to the satisfaction (or waiver by the Banks) of the following
conditions:
Section 2.01. No Default; Representations and Warranties. There
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shall exist no Default or Event of Default, and all representations and
warranties set forth herein shall be true and correct in all material respects
with the same effect as though such representations and warranties had been made
on and as of the Amendment Effective Date (or, in the case of any such
representation or warranty which expressly refers by its terms to a specified
date, as of such specified date).
Section 2.02. Execution of Amendment; Notes, etc.
-----------------------------------
(a) The Borrower, each Bank, the Agent, the Syndication Agent
and the Documentation Agent shall have signed a copy hereof (whether the
same or different copies) and shall have delivered the same to the Agent at
its Notice Office.
(b) There shall have been delivered to each Bank having a new or
modified Commitment pursuant to this Amendment a Note executed by the
Borrower in the amount, maturity and as otherwise provided in the Credit
Agreement.
(c) The Borrower, each Bank and the Agent shall have signed a
copy of an amendment and restatement, dated as of the date of this
Amendment, of the letter agreement, dated as of December 10, 1998, which
was entered into pursuant to Section 3.01(a) of the Original Credit
Agreement and sets forth the basis for the calculation of the Commitment
Fees (such amendment and restatement, together with this Amendment and the
additional Notes described in Section 2.02(b), the "Amendment Documents").
-------------------
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Section 2.03. Opinions of Counsel.
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(a) The Agent shall have received an opinion addressed to it and
the Banks and dated the Amendment Effective Date (i) from Xxxxxxx X. Xxxxx,
Esq., Senior Vice-President and General Counsel of the Borrower covering
the matters set forth in Exhibit A-1, (ii) from Shearman & Sterling,
special New York counsel to the Borrower covering the matters set forth in
Exhibit A-2, (iii) from XxXxxx Xxxx & Xxxxxxx SC, special Wisconsin counsel
to the Borrower covering the matters set forth in Exhibit A-3 [and (iv)
from Xxxxxxxx & Worcester LLP, counsel to the Agent, in form and substance
satisfactory to it].
(b) The Borrower shall have received an opinion addressed to
each of the Borrower, Xxxxx'x and S&P and dated the Amendment Effective
Date from counsel to each Bank having a new or modified Commitment pursuant
to this Amendment, in form and substance satisfactory to each of them.
Section 2.04. Corporate Documents; Proceedings.
--------------------------------
(a) The Agent shall have received a certificate, dated the
Amendment Effective Date, signed by the President or any Vice President of
the Borrower, and attested to by the Secretary or any Assistant Secretary
of the Borrower, in the form of Exhibit B with appropriate insertions,
together with copies of the resolutions of the Borrower referred to in such
certificate.
(b) All corporate and legal proceedings and all instruments and
agreements in connection with the transactions contemplated in this
Amendment and the other Credit Documents shall be satisfactory in form and
substance to the Agent, and it shall have received all information and
copies of all documents and papers, including records of corporate
proceedings and governmental approvals, if any, which the Agent reasonably
may have requested in connection therewith, such documents and papers where
appropriate to be certified by proper corporate or governmental
authorities.
Section 2.05. Adverse Change, Rating, etc.
---------------------------
(a) Nothing shall have occurred (and no Bank shall have become
aware of any facts or conditions not previously known) which such Bank
shall reasonably determine has, or could reasonably be expected to have, a
material adverse effect on the rights or remedies of such Bank, or on the
ability of the Borrower to perform its obligations to such Bank or which
has, or could reasonably be expected to have, a materially adverse effect
on the business, operations, property, assets, liabilities or condition
(financial or otherwise) of the Borrower.
(b) All necessary governmental (domestic and foreign) and third
party approvals in connection with the transactions contemplated by this
Amendment and the Credit Documents and otherwise referred to herein or
therein shall have been obtained and remain in effect, and all applicable
waiting periods shall have expired without any action being taken by any
competent authority which restrains, prevents or imposes materially adverse
conditions upon the consummation of the transactions contemplated
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hereby or by the Credit Documents and otherwise referred to herein or
therein. Additionally, there shall not exist any judgment, order,
injunction or other restraint issued or filed or a hearing seeking
injunctive relief or other restraint pending or notified prohibiting or
imposing materially adverse conditions upon the making of the Loans.
(c) On the Amendment Effective Date, the Borrower's Rating
assigned by Xxxxx'x and S&P shall be Aaa and AAA, respectively.
Section 2.06. Litigation. No litigation by any entity (private or
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governmental) shall be pending or threatened with respect to this Amendment or
any Credit Document or any documentation executed in connection herewith or
therewith or the transactions contemplated hereby or thereby, or with respect to
any material Indebtedness of the Borrower or which any Bank shall determine
could reasonably be expected to have a materially adverse effect on the
business, operations, property, assets, liabilities or condition (financial or
otherwise) of the Borrower.
Section 2.07. Fees, etc. The Borrower shall have paid to the Agent
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and to the Banks all costs, fees and expenses (including, without limitation,
legal fees and expenses) payable to the Agent and/or the Banks to the extent
then due.
All of the certificates, legal opinions and other documents and papers referred
to in this Section 2, unless otherwise specified, shall have been delivered to
the Agent at its Notice Office.
ARTICLE III
REPRESENTATIONS, WARRANTIES AND AGREEMENTS
In order to induce the Agent, the Syndication Agent, the Documentation
Agent and the Banks to enter into this Amendment, the Borrower makes the
following representations, warranties and agreements as of the Amendment
Effective Date, which shall survive the execution and delivery of this Amendment
and the making of any Loans (it being understood and agreed that any
representation or warranty which expressly refers by its terms to a specified
date shall be required to be true and correct in all material respects only as
of such date):
Section 3.01. Corporate Power and Authority. The Borrower has the
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corporate power to execute, deliver and perform the terms and provisions of the
Amendment Documents to which it is party and has taken all necessary corporate
action to authorize the execution, delivery and performance by it of each of
such Amendment Documents. The Borrower has, or in the case of the Amendment
Documents (other than this Amendment), by the Amendment Effective Date will
have, duly executed and delivered each of the Amendment Documents to which it is
party, and this Amendment constitutes and, when executed and delivered, each
other Amendment Document will constitute, its legal, valid and binding
obligation enforceable in accordance with its terms.
Section 3.02. No Violation. Neither the execution, delivery or
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performance by the Borrower of the Amendment Documents to which it is a party,
nor compliance by it with the terms and provisions thereof, (i) will contravene
any provision of any law, statute, rule or
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regulation or any order, writ, injunction or decree of any court or governmental
instrumentality, (ii) will conflict or be inconsistent with or result in any
breach of any of the terms, covenants, conditions or provisions of, or
constitute a default under, or result in the creation or imposition of (or the
obligation to create or impose) any Lien (except pursuant to the Security
Agreement) upon any of the property or assets of the Borrower or any of its
Subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust,
credit agreement, loan agreement or any other agreement, contract or instrument
to which the Borrower or any of its Subsidiaries is a party or by which it or
any of its property or assets is bound or to which it may be subject or (iii)
will violate any provision of the Certificate of Incorporation or By-Laws of the
Borrower or any of its Subsidiaries.
Section 3.03. Governmental Approvals. No order, consent, approval,
----------------------
license, authorization or validation of, or filing, recording or registration
with (except as have been obtained or made prior to the Amendment Effective
Date), or exemption by, any governmental or public body or authority, or any
subdivision thereof, is required to authorize, or is required in connection
with, (i) the execution, delivery and performance of any Amendment Document to
which the Borrower is a party or (ii) the legality, validity, binding effect or
enforceability of any such Amendment Document.
Section 3.04. Financial Statements; Financial Condition.
-----------------------------------------
(a) The consolidated balance sheets of the Parent and its
Subsidiaries at December 31, 1998 and March 31, 1999, June 30, 1999 and
September 30, 1999 and the related consolidated statements, of operations
and cash flows of the Parent and its Subsidiaries for the fiscal year or
period, as the case may be, ended on such date and heretofore furnished to
the Agent present fairly, subject, in the case of such balance sheets as at
March 31, 1999, June 30, 1999 and September 30, 1999 and such statements of
operations and cash flows for the three, six and nine months then ended,
respectively, to year-end audit adjustments, the consolidated financial
condition of the Parent and its Subsidiaries at such dates and the
consolidated results of operations of the Parent and its Subsidiaries for
the periods ended on such dates. All such financial statements have been
prepared in accordance with generally accepted accounting principles and
practices consistently applied, subject, in the case of such balance sheets
as at March 31, 1999, June 30, 1999 and September 30, 1999 and such
statements of operations and cash flows for the three, six and nine months
then ended, respectively, to year-end audit adjustments. Since September
30, 1999, there has been no material adverse change in the business,
operations, property, assets or condition (financial or otherwise) of the
Parent or of the Borrower and its Subsidiaries taken as a whole.
(b) The Borrower's annual statements and its financial
statements as filed with the Department for the year ended December 31,
1998 and its quarterly statements and financial statements as filed with
the Department for the periods ended March 31, 1999, June 30, 1999 and
September 30, 1999 heretofore furnished to the Agent present fairly,
subject, in the case of such financial statements as at March 31, 1999,
June 30, 1999 and September 30, 1999 and for the three, six and nine months
then ended, respectively, to year-end audit adjustments, the financial
condition of the Borrower as of the respective dates of such statements.
Such annual and quarterly statements and
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financial statements were prepared in accordance with the statutory
accounting principles set forth in the Wisconsin Insurance Law, all of the
assets described therein were the absolute property of the Borrower 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 the Borrower as of December 31 of the year covered thereby and
of its income and deductions therefrom for the year ended on such date.
Since September 30, 1999, there has been no material adverse change in the
business, operations, property, assets or condition (financial or
otherwise) of the Borrower or the Borrower and its Subsidiaries taken as a
whole.
Section 3.05. Covered Portfolio. Substantially all of the Insured
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Obligations in the Covered Portfolio on the Amendment Effective Date were
insured by the Borrower under Insurance Contracts in the form or forms
heretofore supplied to the Agent in accordance with the Borrower's underwriting
criteria. The Borrower has no reason to believe that its rights included among
the Collateral are not valid and binding against the obligors thereunder in
accordance with their respective terms, except insofar as 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, except for such Collateral which, in the aggregate, could not
reasonably be expected to have a material adverse effect on the right and
ability of the Collateral Agent, in accordance with the Security Agreement, to
realize upon the Collateral as a whole.
Section 3.06. Confirmation of Representations and Warranties. The
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Borrower hereby confirms that its representations and warranties set forth in
the Credit Documents to which it is a party are true and correct in all material
respects as of the date hereof (or, in the case of any representation or
warranty set forth in any Credit Document which expressly refers by its terms to
a specified date, as of such specified date).
ARTICLE IV
MISCELLANEOUS
Section 4.01. Credit Agreement. Except as expressly modified as
----------------
contemplated hereby, the Credit Agreement and the other Credit 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 Credit Documents, and is not intended by any party
and shall not be construed to constitute a novation thereof or of any
Indebtedness of the Borrower thereunder. For purposes of the Credit Agreement
and the other Credit Documents, the term "Banks" shall include each party which
has executed this Amendment below as a Bank, and the term "Credit Documents"
shall include this Amendment.
Section 4.02. Survival. All covenants, agreements, representations
---------
and warranties made herein or in any Credit 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 Expiry
Date and shall continue in full force and effect so long as
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principal of or interest on any Loan or Note remains outstanding or unpaid, any
other amount payable by the Borrower under the Credit Agreement, any Note or any
other Credit Document remains unpaid or any other obligation of the Borrower to
perform any other act hereunder or under the Credit Agreement, any Note or any
other Credit Document remains unsatisfied or the Banks have any obligation to
make a Loan or any other advance of moneys to the Borrower under the Credit
Agreement.
Section 4.03. Governing Law. This Amendment and the rights and
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obligations of the parties hereunder shall be construed in accordance with and
be governed by the law of the State of New York.
Section 4.04. Counterparts. This Amendment may be executed in any
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number of counterparts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an original,
but all of which shall together constitute one and the same instrument. A set of
counterparts executed by all the parties hereto shall be lodged with the
Borrower and the Agent.
Section 4.05. Effectiveness. This Amendment shall become effective
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as of December 2, 1999 (the "Amendment Effective Date") when the Borrower, the
------------------------
Banks, the Agent, the Syndication Agent and the Documentation Agent shall have
signed a copy hereof (whether the same or different copies) and shall have
delivered the same to the Agent at its Notice Office and the conditions set
forth in Section 2 shall have been satisfied or waived by the Banks, as
evidenced by a written notice by the Agent to the Borrower confirming that the
Agreement has become effective and setting forth the Amendment Effective Date.
In the event that such written notice shall not have been delivered on or before
December 10, 1999, the provisions of this Amendment shall become and be null and
void.
Section 4.06. Headings Descriptive. The headings of the several
--------------------
sections and subsections of this Amendment are inserted for convenience only and
shall not in any way affect the meaning or construction of any provision of this
Amendment.
Section 4.07. Amendment or Waiver. Neither this Amendment nor any
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terms hereof may be changed, waived, discharged or terminated except as provided
in Section 12.12 of the Credit Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Agreement as of the date first
above written.
AMBAC ASSURANCE CORPORATION
By /s/ Xxxxxx X. Xxxxx
--------------------
Name:
Title: FVP & Treasurer
LANDESBANK HESSEN-THURINGEN
GIROZENTRALE
By /s/ Xxxx X. Xxxx
-----------------
Name:
Title: Senior Vice President, Manager
By /s/ Xxxx X. Xxxxx
------------------
Name:
Title: Vice President, Portfolio Manager
COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK
B.A., "RABOBANK NEDERLAND",
NEW YORK BRANCH
By /s/ W. Xxxxxx X. Xxxxx
-----------------------
Name:
Title: Senior Vice President
By /s/ Xxxxxx X. Xxxxxx
---------------------
Name:
Title: Vice President
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XXXXXXXXXX XXXXXXXXXX
XXXXXXXXXXXX
By /s/ Xxxxx X. Xxxxxxx
---------------------
Name:
Title: First Vice President
By /s/ Xxxxxxxxx Xxxxxxx
----------------------
Name:
Title: First Vice President
WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK
BRANCH
By /s/ Xxxxxxx X. Xxx
-------------------
Name:
Title: Director
By /s/ Xxxx X. XxXxxxx
--------------------
Name:
Title: Vice President
000 Xxxxxxx Xxxxxx LANDESBANK BADEN-
New York, New York 10022 WURTTEMBERG, NEW YORK
Attention: Xxxxx Xxxx BRANCH
Telecopy: (000) 000-0000
By______________________________
Name:
Title:
By /s/ Xxxx Xxxxxx
----------------
Name:
Title: Vice President
FIRST UNION NATIONAL BANK
OF NORTH CAROLINA
By /s/ Xxxxxx X. Xxxxxxxxxxx
--------------------------
Name:
Title: Senior Vice President
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KBC BANK N.V.
By /s/ Xxxxxxx X. Xxxxx
---------------------
Name:
Title: Vice President
By /s/ Xxxxxx Xxxxxxxx
--------------------
Name:
Title: First Vice President
LLOYDS TSB BANK PLC (formerly
known as Lloyds Bank PLC)
By /s/ Xxxxxx Xxxxxx
------------------
Name:
Title: Assistant VP, Structured Finance
THE CHASE MANHATTAN BANK
By /s/ Xxxxxx X. Xxxxxx
---------------------
Name:
Title: Vice President
000 Xxxxxxxx XXXXXXXX XXXX XXX
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx
By /s/ Xxxxxxx Xxxxxx
-------------------
Name:
Title: Director
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BANK OF AMERICA, NA (formerly,
known as Nationsbank, N.A.), individually
and as Syndication Agent
By /s/ Xxxx X. X'Xxxxx
--------------------
Name:
Title: Principal
Insurance Division THE BANK OF NEW YORK,
One Xxxx Xxxxxx, 00/xx/ Xxxxx Individually and as Documentation Agent
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxx
Telecopy: (000) 000-0000 By /s/ Xxxxxx X. Xxxxxxx
----------------------
Name:
Title: Vice President
DEUTSCHE BANK AG,
NEW YORK BRANCH,
Individually and as Agent
By /s/ Xxxxxx-Xxx Xxxxx
---------------------
Name:
Title: Managing Director
By /s/ Xxxx X. XxXxxx
-------------------
Name:
Title: Director
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SCHEDULE 1
TO FIRST AMENDMENT
COMMITMENTS
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PART A
Commitments
-----------
Name Commitment
---- ----------
Landesbank Hessen-Thuringen Girozentrale $110,000,000.00
Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A., 80,000,000.00
"Rabobank Nederland", New York Branch
The Bank of New York 75,000,000.00
Bayerische Landesbank Girozentrale 75,000,000.00
Westdeutsche Landesbank Girozentrale, New York Branch 75,000,000.00
Deutsche Bank AG, New York Branch 70,000,000.00
Landesbank Baden-Wurttemburg, New York Branch 50,000,000.00
Bank of America, NA 45,000,000.00
First Union National Bank of North Carolina 40,000,000.00
KBC Bank N.V. 40,000,000.00
Lloyds TSB Bank PLC 35,000,000.00
The Chase Manhattan Bank 30,000,000.00
Barclays Bank PLC 25,000,000.00
---------------
Total $750,000,000.00
PART B
Part B Banks
------------
Name
----
Bank of America, NA
The Bank of New York
Barclays Bank PLC
The Chase Manhattan Bank
Deutsche Bank AG, New York Branch
First Union National Bank of North
Carolina
KBC Bank N.V.
Lloyds TSB Bank PLC
Westdeutsche Landesbank Girozentrale,
New York Branch
(ii)
PART C
Part C Banks/Contingent Commitments
-----------------------------------
Name Commitment
---- ----------
Bayerische Landesbank Girozentrale $100,000,000.00
Cooperatieve Centrale Raiffeisen- 66,500,000.00
Boerenleenbank B.A., "Rabobank -------------
Nederland", New York Branch
Total $166,500,000.00
(iii)
EXHIBIT A-1
TO FIRST AMENDMENT
Form of Opinion of Senior General Counsel of the Borrower
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EXHIBIT A-2
TO FIRST AMENDMENT
Form of Opinion of Shearman & Sterling
--------------------------------------
EXHIBIT A-3
TO FIRST AMENDMENT
Form of Opinion of XxXxxx Xxxx & Xxxxxxx SC
-------------------------------------------
EXHIBIT B
TO FIRST AMENDMENT
AMBAC ASSURANCE CORPORATION
Officers' Certificate
I, the undersigned, Executive Vice President and Chief Financial
Officer of Ambac Assurance Corporation, a Wisconsin stock insurance corporation
(the "Borrower"), DO HEREBY CERTIFY that:
1. This Certificate is furnished pursuant to Section 2.04(a) of the
First Amendment, dated December 2, 1999 (the "First Amendment"), to the Amended
and Restated Credit Agreement, dated as of December 2, 1998, among the Borrower,
various Banks, Bank of America, NA, as Syndication Agent, The Bank of New York,
as Documentation Agent, and Deutsche Bank AG, New York Branch, as Agent (such
Credit Agreement, as in effect on the date of this Certificate, being herein
called the "Credit Agreement"). Unless otherwise defined herein capitalized
terms used in this Certificate have the meanings assigned to those terms in the
Credit Agreement.
2. The persons named below have been duly elected, have duly
qualified as and at all times since ____________, 1999 (to and including the
date hereof) have been officers of the Borrower, holding the respective offices
below set opposite their names, and the signatures below set opposite their
names are their genuine signatures.
Name Office Signature
---------- ------------- -------------
Xxxxx X. Xxxxxx Executive Vice President and Chief
Financial Officer ____________________
Xxxxxxx X. Xxxxx Senior Vice President, General
Counsel and Secretary ____________________
Xxxxxx X. Xxxxx First Vice President and Treasurer ____________________
3. There have been no amendments adopted to the Borrower's Restated
Articles of Incorporation or By-laws since December 2, 1998, and the copies
thereof attached to the certificate, dated December 2, 1998 and delivered to the
Agent pursuant to Section 5.04(a) of the Credit Agreement, remain true and
correct copies thereof.
4. Attached hereto as Annex A is a true and correct copy of
resolutions duly adopted by the Board of Directors of the Borrower at a meeting
on October 27, 1999, at which a quorum was present and acting throughout, which
resolutions have not been revoked, modified, amended or rescinded and are still
in full force and effect. Except as attached hereto as Annex A, no resolutions
have been adopted by the Board of Directors of the Borrower which deal with
the execution, delivery or performance of any of the Credit Documents, other
than as may have been superseded or replaced by the resolutions attached hereto.
5. On the date hereof, the representations and warranties contained
in Article 3 of the First Amendment are true and correct.
6. On the date hereof, no Default or Event of Default has occurred
and is continuing.
7. I know of no proceeding for the dissolution or liquidation of the
Borrower or threatening its existence.
IN WITNESS WHEREOF, I have hereunto set my hand this _____ day of
December, 1999.
AMBAC ASSURANCE CORPORATION
_________________________________________
Name: Xxxxx X. Xxxxxx
Executive Vice President and Chief
Financial Officer
B-2
I, the undersigned, Secretary of the Borrower, DO HEREBY CERTIFY that:
1. Xxxxx X. Xxxxxx is the duly elected and qualified Executive Vice
President and Chief Financial Officer of the Borrower and the signature above is
his genuine signature.
2. The certifications made by Xxxxx X. Xxxxxx in items 2, 3 and 4
above are true and correct.
3. I know of no proceeding for the dissolution or liquidation of the
Borrower or threatening its existence.
IN WITNESS WHEREOF, I have hereunto set my hand this _____ day of
December, 1999.
AMBAC ASSURANCE CORPORATION
______________________________________
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President, General
Counsel and Secretary
B-3
