FIRST AMENDMENT to THIRDAMENDED AND RESTATED CREDIT AGREEMENT among

EX-10.04 3 dex1004.htm FIRST AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT First Amendment to Third Amended and Restated Credit Agreement

EXHIBIT 10.04

[EXECUTION COPY]

FIRST AMENDMENT

THIRD AMENDED AND RESTATED CREDIT AGREEMENT

among

MBIA INSURANCE CORPORATION,

THE BANKS SIGNATORY HERETO,

COÖPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.

“RABOBANK NEDERLAND”,

New York Branch,

as Administrative Agent

and

DEUTSCHE BANK AG,

New York Branch,

as Documentation Agent

Dated as of October 31, 2003

FIRST AMENDMENT

THIS FIRST AMENDMENT, dated as of October 31, 2003 (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), COÖPERATIEVE 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”) and individually as a Bank;

WHEREAS, the parties hereto are parties to the Third Amended and Restated Credit Agreement, dated as of October 31, 2002 (the “Credit Agreement”); and

WHEREAS, the parties hereto desire, upon the terms and subject to the conditions hereinafter set forth, to amend the Tranche A Expiration Date definition and to otherwise modify the Credit Agreement in certain respects.

NOW, THEREFORE, in consideration of the mutual promises contained herein and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows:

ARTICLE 1

MODIFICATIONS TO LOAN DOCUMENTS

Section 1.1. Defined Terms. Except as otherwise specified herein, terms used in this Amendment and defined in Exhibit A of the Credit Agreement shall have the meanings provided in such Exhibit A.

Section 1.2. Amendment.

(a) The definition of the term “Tranche A Expiration Date” contained in Exhibit A to the Credit Agreement is hereby amended and restated to read in its entirety as follows:

“‘Tranche A Expiration Date’ shall mean October 31, 2010 or, if such day is not a Business Day, on the next preceding Business Day.”

(b) The following sentence shall be inserted prior to the sentence beginning “The provisions of this Article 8…” in Section 8.1:

“Specifically, the Documentation Agent shall have no right, power, obligation, liability, responsibility or duty under any Loan Document other than those applicable to it as a Bank.”

Section 1.3. Commitments. The aggregate Commitments of the Banks are hereby amended so that, from and after October 31, 2003 until the termination or further modification thereof as provided in the Credit Agreement, such Commitments shall be as set forth on Schedule 1 to this Amendment.

Section 1.4. Additional Bank. By its execution and delivery of this Amendment, KeyBank National Association (the “Additional Bank”), hereby agrees to be bound, and shall have the rights under the Credit Agreement and the Loan Documents as a Bank having a Commitment equal to the amount specified in Schedule 1 to this Amendment, and the Agents and MBIA each hereby consent to the Additional Bank becoming a Bank. The Additional Bank acknowledges and agrees that the Agents (i) make no representation or warranty and assume 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; and (ii) make no representation or warranty and assume no responsibility with respect to the financial condition of or the performance or observance by MBIA of any of their obligations under the Credit Agreement, any of the Loan Documents or any other instrument or document furnished pursuant thereto. The Additional Bank further (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 the Credit Agreement; (ii) agrees that it will, independently and without reliance upon the Agents 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 to the provisions of Article 8 of the Credit Agreement and appoints and authorizes the Agents on its behalf to exercise such powers under the Credit Agreement and the other Loan Documents, as are delegated to the Agents 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.

Section 1.5. Terminating Banks. The parties acknowledge that pursuant to separate instruments, JPMorgan Chase Bank, Bank of America, N.A. and HSH Nordbank (the “Terminating Banks”), respectively, and each of MBIA and the Agents have agreed that concurrently with the effectiveness of this Amendment, each Terminating Bank’s entire Commitment and role as a Bank under the Credit Agreement is terminated and that each Terminating Bank shall have no further liabilities, obligations or rights under the Credit Agreement, except for those liabilities, obligations and rights which survive the termination of the Commitment of a Bank under the Credit Agreement.

ARTICLE 2

CONDITIONS PRECEDENT

Section 2.1. Conditions Precedent to Amendment Effective Date. The provisions of Article 1 hereof shall become effective as of October 31, 2003 when this Amendment shall have been executed and delivered by MBIA, each Agent and each Bank and when the following conditions have been fulfilled to the reasonable satisfaction of the Agents.

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(a) There shall exist no Default or Event of Default, and all representations and warranties made by MBIA herein or in any of the Loan Documents shall be true and correct with the same effect as though such representations and warranties had been made at and as of such time.

(b) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:

(i) a certificate of any two of the President, Vice Chairman, Managing Director, any Vice President or the Treasurer of MBIA to the effect that the conditions set forth in Section 2.1(a) hereof have been satisfied and that no governmental filings, 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 December 23, 2002, there has been no amendment, modification or revocation of the articles of incorporation or by-laws of MBIA;

(iii) opinions of the General Counsel or any Assistant General Counsel of MBIA and Kutak Rock, MBIA’s counsel, each dated October 31, 2003, which are substantially to the effect set forth in the forms attached hereto as, respectively, Exhibits A and B; and

(iv) such other documents, instruments, approvals (and, if reasonably requested by the Administrative Agent or the Majority Banks, duplicates or executed copies thereof certified by an appropriate governmental official or an authorized officer of MBIA) or opinions as the Administrative Agent or the Majority Banks may reasonably request.

(c) The Administrative Agent shall have received reasonably satisfactory evidence that long-term obligations insured by MBIA are publicly assigned a rating of Aaa by Moody’s and AAA by S&P by reason of such insurance.

(d) Each Bank which is becoming a party to the Credit Agreement or which is increasing its Commitment shall have received a Note or an additional Note dated as of October 31, 2003, in a principal amount equal to the amount of its Commitment or of the increase in its Commitment, as applicable.

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(e) 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.

(f) 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 Administrative Agent 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 Administrative Agent hereunder, the Administrative Agent 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, 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.

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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.

(a) MBIA has heretofore furnished to the Agents (i) the audited consolidated and unaudited consolidating balance sheets of MBIA Inc. and its subsidiaries at December 31, 2002, 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, 2002, and (ii) the unaudited consolidated and consolidating balance sheets of MBIA Inc. and its subsidiaries as of March 31 and June 30, 2003, and the related consolidated statements of income, changes in stockholders’ equity and cash flows for the three months ended March 31, 2003 and the six months ended June 30, 2003. 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, 2003.

(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, 2002 and its quarterly statements and financial statements as filed with the Department for the periods ended March 31, 2003 and June 30, 2003. 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, quarterly and financial 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, 2002, the quarterly reports on Form 10-Q of MBIA Inc. for each of the quarters ended March 31, 2003 and June 30, 2003 and each current report on Form 8-K filed by MBIA Inc. on or after January 1, 2003, each as filed with the Securities and Exchange Commission. Such annual, quarterly and current reports were prepared in accordance with the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.

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Section 3.5. Covered Portfolio. Substantially all of the Insured Obligations in the Covered Portfolio are insured by MBIA under Insurance Contracts in the form or forms heretofore supplied to the Agents in accordance with MBIA’s underwriting criteria as heretofore disclosed to the Agents, and in MBIA’s reasonable judgment such Insured Obligations represent an overall risk of loss (based on all factors including without limitation investment quality and geographical and market diversification) which is not materially greater than the risk of loss represented by all of MBIA’s Insured Obligations as of the date hereof.

Section 3.6. Confirmation of Representations and Warranties. MBIA hereby confirms that its representations and warranties set forth in the Credit Agreement are true and correct as of the date hereof.

Section 3.7. Disclosure. There is no fact known to MBIA which materially adversely affects the business, assets, operations or financial condition of MBIA or the ability of MBIA to perform its obligations under any Amendment Document or any Loan Document as amended 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 Tranche A Expiration Date and shall continue in full force and effect so long as principal of or interest on any Loan, Note or Fronting Bank Note remains outstanding or unpaid, any other amount payable by MBIA under the Credit Agreement as amended hereby, any Note, Fronting Bank Note or any other Loan Document remains unpaid or any other obligation of MBIA to perform any other act hereunder or under the Credit Agreement as amended hereby, any Note, Fronting Bank Note or any other Loan Document remains unsatisfied or the Banks have any obligation to make a Loan or any other advance of moneys to MBIA under the Credit Agreement as amended hereby.

Section 4.3. Severability. Any provision of this Amendment which is prohibited, unenforceable or not authorized in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition, unenforceability or nonauthorization without invalidating the remaining provisions hereof or affecting the validity, enforceability or legality of such provision in any other jurisdiction.

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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.

[Remainder of Page Intentionally Left Blank.]

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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/ Karen M. Wagner
		Name: Karen M. Wagner
		Title: Vice President