EXHIBIT 10.43
THIRD AMENDMENT
to
REVOLVING CREDIT AGREEMENT
among
MBIA INC.,
THE LENDERS SIGNATORY HERETO,
and
CREDIT SUISSE,
New York Branch,
as Agent
Dated as of May 23, 1996
THIRD AMENDMENT TO
REVOLVING CREDIT AGREEMENT
THIS AMENDMENT, dated as of May 23, 1996, between MBIA INC., a
Connecticut corporation ("MBIA"), CREDIT SUISSE, a banking corporation organized
under the laws of Switzerland, acting through its New York Branch ("Credit
Suisse"), and GREENWICH FUNDING CORPORATION, a Delaware corporation ( "GFC"),
as Lenders, and Credit Suisse, as Agent for the Lenders (in such capacity, the
"Agent");
WHEREAS, MBIA and Credit Suisse are parties to the Revolving Credit
Agreement, dated as of February 15, 1991, as amended by the First Amendment
thereto dated as of September 20, 1992 and the Second Amendment thereto dated as
of September 30, 1994 (as so amended, the "Credit Agreement");
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WHEREAS, MBIA and Credit Suisse have agreed to certain modifications
to the Credit Agreement; MBIA has requested that GFC join, and GFC has agreed to
join, the Credit Agreement as a Lender of Term Loans thereunder, and Credit
Suisse and GFC, in their capacities as Lenders, desire that Credit Suisse act,
and Credit Suisse has agreed to act, as Agent for the Lenders under the Credit
Agreement; and
WHEREAS, the parties accordingly desire, upon the terms and subject to
the conditions hereinafter set forth, to further amend the Credit Agreement in
certain respects;
NOW, THEREFORE, in consideration of the mutual promises contained
herein and other valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto, intending to be legally bound
hereby, agree as follows:
ARTICLE I
MODIFICATIONS TO CREDIT AGREEMENT
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SECTION 1.1. Defined Terms.
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(a) Except as otherwise specified herein, terms used in this
Amendment and defined in Exhibit A of the Credit Agreement, as modified by this
Amendment, shall have the meanings provided in such Exhibit A, as so modified.
(b) The preamble to the Credit Agreement is hereby amended and
restated to read in its entirety as follows:
THIS AGREEMENT, originally dated as of February 15, 1991, among MBIA
INC., a Connecticut corporation
("IMBIA"), GREENWICH FUNDING CORPORATION, a Delaware corporation ("GFC"), CREDIT
SUISSE, New York Branch ("Credit Suisse"), and each other financial institution
from time to time parties hereto as Lenders (GFC, Credit Suisse and each such
other institution, collectively, the "Lenders"), and CREDIT SUISSE, New York
Branch, as Agent for the Lenders (in such capacity, the "Agent");
SECTION 1.2. Amendments Relating to Revolving Credit and Term Loans.
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Article 2 of the Credit Agreement is hereby amended and restated to read in its
entirety as follows:
ARTICLE 2
LOANS
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Section 2.1. Available Commitment: GFC Option.
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(a) MBIA may from time to time prior to the Expiration Date request
that each Lender make Loans to MBIA hereunder, upon the terms and conditions set
forth in this Agreement.
(b) In the event that MBIA HAS REQUESTED THAT a Revolving Loan be
made under this Agreement prior to the Expiration Date in an amount not
exceeding the aggregate Available Commitment of the Lenders at the time of such
Revolving Loan, each Lender (other than GFC) severally and not jointly agrees,
upon the terms and subject to the conditions of this Agreement, to lend to MBIA
its pro rata share of such Revolving Loan or, if less, an amount equal to the
Available Commitment of such Lender at such time.
(c) In the event that MBIA HAS REQUESTED THAT a Term Loan be made
under this Agreement as a GFC Funding Rate Loan prior to the Expiration Date in
an amount not exceeding the aggregate Available Commitment of the LENDERS AT THE
TIME of such Term Loan, GFC may, at its option by notice to the Agent on or
prior to the date on which such Term Loan is to be made hereunder, lend to MBIA
all or any portion of such Term Loan upon the terms and conditions set forth in
this Agreement. In the event that on the date on which such Term Loan is to be
made hereunder, GFC has not made the entire Term Loan, each other Lender agrees,
severally and not jointly, upon the terms and subject to the conditions of this
Agreement, to lend to MBIA on such date its pro rata share of such Term Loan or
of the remaining portion thereof, as the case may be, or, if less, an amount
equal to the Available Commitment of such Lender at such time.
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(d) In the event that MBIA has requested that a Term Loan be made
under this Agreement as A QUOTED RATE LOAN, a Federal Funds Rate Loan or a Base
Rate Loan prior to the Expiration Date in an amount not exceeding the aggregate
Available Commitment of the Lenders at the time of such Term Loan, each
Lender (other than GFC) agrees, severally and not jointly, upon the terms and
subject to the conditions of this Agreement, to lend to MBIA on such date its
pro rata share of such Term Loan or, if less, an amount equal to the Available
Commitment of such Lender at such time.
(e) For purposes of this Section 2.1, the pro rata share of each
Lender (other than GFC) of a Loan or portion thereof shall equal its Commitment
as a percentage of the aggregate Commitments of all Lenders other than GFC.
Section 2.2. Manner of Borrowing and Disbursement.
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(a) Not later than 11:00 a.m., New York City time, on the day on
which a Federal Funds Rate Loan or Base Rate Loan is to be made hereunder, not
later than 10:00 a.m., New York City time, on the date on which a GFC Funding
Rate Loan is to be made hereunder, and not later than three (3) Business Days
prior to the date on which a Quoted Rate Loan is to be made hereunder, MBIA
shall give the Agent a notice (which notice shall be irrevocable) specifying (i)
the date on which such Loan is to be made, which shall be a Business Day, (ii)
the amount of the proposed borrowing, (iii) the purpose of the proposed
borrowing, (iv) whether such Loan is to be made as a Term Loan or a Revolving
Loan and, if such Loan is a Term Loan, the Designated Maturity Date thereof, (v)
whether such Loan is to be made as a Base Rate Loan, a Federal Funds Rate Loan
or a Quoted Rate Loan or, in the case of a Term Loan, a GFC Funding Rate Loan,
and (vi) if such Loan is to be a Quoted RATE LOAN, THE INTEREST PERIOD WITH
RESPECT THERETO, WHICH notice shall be substantially in the form of, and contain
the certificates contained in, Exhibit B hereto.
(b) Each Loan shall be in the amount of at least $10,000 and, in the
case of GFC Funding Rate Loans, shall be in integral multiples of $100,000;
provided that no Lender shall be required to make its share of a Loan hereunder
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if the amount of such Loan would exceed the aggregate Available Commitments of
the Lenders on the date of such Loan or if, after giving effect to such Loan,
the aggregate outstanding principal amount of Loans owed to all Lenders would be
less than $1,000,000; and provided further, that the parties acknowledge that
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MBIA shall not request a GFC Funding Rate Loan unless, after giving effect to
such Loan, the aggregate
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OUTSTANDING PRINCIPAL amount of all GFC Funding Rate Loans would be less than
$1,000,000.
(c) Upon receipt of each notice described in paragraph (a), the Agent
shall promptly (and not later than thirty (30) minutes after the notice of
borrowing from MBIA is received by the Agent in the event that the borrowing is
to be made on the same day as such notice) notify each Lender of the contents
thereof, and of the amount of such Lender's share of such Loan hereunder or, in
the case of a TERM LOAN WHICH IS requested to be made as a GFC Funding Rate
Loan, the maximum amount of such Lender's share thereof in the event that GFC
does not elect to lend any portion of such Term Loan. Upon receipt by the Agent
GFC's election to make or not to make a Term Loan pursuant to SECTION 2.1(C),
THE AGENT SHALL GIVE prompt notice of such election to each Lender and to MBIA.
In the case of a Revolving Loan or of a Term Loan (or portion thereof) which GFC
has not elected or is not entitled to elect to make, each Lender shall, not
later than 1:00 p.m. (New York City time) on the date specified in such notice,
make available to the Agent at the Agent's Office, for such account as the Agent
shall designate, the amount of its share of such Revolving Loan or such Term
Loan (or portion thereof) in immediately available funds. In the event that GFC
has elected to make a Term Loan or a portion thereof but has failed to make the
amount of such Term Loan or of such portion available to the Agent as provided
above in this Section prior to 1:00 p.m. (New York City time) on the date on
which such Term Loan is to be made, the Agent shall, not later than 1:30 p.m.
(New York City time) on SUCH DATE, NOTIFY EACH OTHER Lender of such failure, and
each other Lender shall, not later than 3:00 p.m. (New York City time) on such
date make available to the Agent at the Agent's Office, for such account as the
Agent shall designate, the amount of its share of such Term Loan of such portion
thereof in immediately available funds.
(d) On the date specified in THE NOTICE DESCRIBED in paragraph (a)
above, the Agent shall, subject to the satisfaction of the conditions set forth
in Article 4, disburse the amounts made available to the Agent by the Lenders in
like funds by transferring such amount to an account of MBIA maintained at the
Agent or by wire transfer to an account in New York City pursuant to MBIA's
instructions.
Section 2.3. Notes
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(a) Each Lender's share of Revolving Loans shall be evidenced by, and
be repayable with interest in accordance with the terms of, a single Revolving
Loan Note payable to the
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order of such Lender, substantially in the form of Exhibit C-1 to this
Agreement. Each Revolving Loan Note shall be dated the Effective Date (or such
later date on which such Note is issued) and shall be duly executed and
delivered by MBIA. Each portion of a Term Loan made by a Lender shall be
evidenced by, and be repayable with interest in accordance with the terms of, a
Term Loan Note payable to the order of such Lender, substantially in the form of
Exhibit C-2 to this Agreement. Each Term Loan Note shall be dated the date of
the related Term Loan and shall be duly executed and delivered by MBIA.
(b) Each LENDER IS IRREVOCABLY AUTHORIZED from time to time to record
the date and amount of each Loan, whether such Loan is a Base Rate Loan, a
Federal Funds Rate Loan, a Quoted Rate Loan or a GFC Funding Rate Loan and each
payment and prepayment with respect to each Loan on the grid attached to the
related Note or on a continuation thereof which may be attached thereto by such
Lender and made a part thereof, and any such notation shall, absent manifest
error, constitute crime facie evidence of the accuracy of the information so
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recorded; provided, that the failure to make any such notation shall not affect
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the validity of MBIA's obligations hereunder or under such Note.
Section 2.4. Interest Rates and Payment Dates.
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(a) Each Loan or portion thereof owed to any Lender other than GFC
hereunder shall be a Base Rate Loan, a Federal Funds Rate Loan or a Quoted Rate
Loan, as designated by MBIA pursuant to Section 2.2(a), 2.4(h) or 2.4(i);
provided that no more than five (5) Quoted Rate Loans may be outstanding at
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any one time. Any Term Loan (or portion thereof) shall be a GFC Funding Rate
Loan for each day during which such Term Loan (or such portion) is owed to GFC.
(b) MBIA agrees to pay interest in respect of the unpaid principal
amount of each Base Rate Loan for each day from and including the day such Base
Rate Loan was made to but excluding the day the principal on such Base Rate Loan
is due (whether at maturity, by acceleration or otherwise) or, if earlier, the
date on which such Loan ceases to be a Base Rate Loan, at a rate per annum equal
to the Base Rate Margin plus the Base Rate, which interest rate shall change as
and when the Base Rat e shall change. Such interest shall be payable on each
successive Payment Date commencing with the first such date after the making of
such Base Rate Loan and when the principal amount of such Base Rate Loan is due
(whether at maturity, by acceleration or otherwise) or such Loan ceases to be a
Base Rate Loan.
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(c) MBIA agrees to pay interest in respect of the unpaid principal
amount of each Quoted Rate Loan for each day from and including the day such
Quoted Rate Loan was made to but excluding the day the principal on such Quoted
Rate Loan is due (whether at maturity, by acceleration or otherwise), at a rate
per annum equal for each Interest Period applicable thereto to the Quoted Rate
Margin plus the applicable Quoted Rate for such Interest Period. Such interest
shall be payable on the last day of each Interest Period and when the principal
amount of such Quoted Rate Loan is due (whether at maturity, by acceleration or
otherwise) or such Loan ceases to be a Quoted Rate Loan.
(d) MBIA agrees to pay interest in respect of the unpaid principal
amount of each Federal Funds Rate Loan for each day from and including the day
such Federal Funds Rate Loan was made to but excluding the day the principal on
such Federal Funds Rate Loan is due (whether at maturity, by acceleration or
otherwise) or, if earlier, the date on which such Loan ceases to be a Federal
Funds Rate Loan, at a rate PER ANNUM equal to the Federal Funds Margin plus the
Federal Funds Rate, which interest rate shall change as and when the Federal
Funds Rate s hall change. Such interest shall be payable on each successive
Payment Date commencing with the first such date after the making of such
Federal Funds Rate Loan and when the principal amount of such Federal Funds Rate
Loan is due (whether at maturity, by acceleration or otherwise) or such Loan
ceases to be a Federal Funds Rate Loan.
(e) MBIA agrees to pay interest in respect of the unpaid principal
amount of each GFC Funding Rate Loan for each day from and including the day
such GFC Funding Rate Loan was made to but excluding the day the principal on
such GFC Funding Rate Loan is due (whether at maturity, by acceleration or
otherwise) or, if earlier, the date on which such Loan ceases to be a GFC
Funding Rate Loan, AT A RATE PER ANNUM equal to the GFC Funding Rate Margin plus
the GFC Funding Rate, which interest rate shall change as and when the GFC
Funding Rate shall change. Such interest shall be payable on each successive
Payment Date commencing with the first such date after the making of such GFC
Funding Rate Loan and when the principal amount of such GFC Funding Loan is due
(whether at maturity, by acceleration or otherwise) or such Loan ceases to be a
GFC Funding Rate Loan.
(f) Any overdue principal of any Loan and, to the extent permitted by
law, overdue interest thereon shall bear interest (after as well as before
judgment), payable on demand, for each day from and including the date payment
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thereof was due to but excluding the date of actual payment, at a rate per annum
equal to (i) in the case of Quoted Rate Loans, until the end of the then current
Interest Period, the sum of 2% plus the interest rate otherwise applicable to
such Loan, (ii) in the case of Federal Funds Rate Loans and GFC Funding Rate
Loans, the sum of 2% plus the interest rate otherwise applicable to such Loan
and (iii) otherwise, the sum of 2% plus the Base Rate Margin plus the Base Rate
from time TO TIME IN EFFECT, WHICH INTEREST RATE SHALL change as and when the
Base Rate shall change.
(g) The Agent shall DETERMINE EACH INTEREST RATE applicable to the
Loans hereunder. The Agent shall give prompt notice to MBIA and each Lender by
telex or cable of each rate of interest so determined, and its determination
thereof shall be conclusive, absent manifest error.
(h) Subject to the provisions of this Section 2.4(h) and Section 2.5,
MBIA shall have the option (i) to convert all or any part of its outstanding
Base Rate Loans to Federal Funds Rate Loans or Quoted Rate Loans at any time,
(ii) TO CONVERT ALL OR any part OF ITS OUTSTANDING Federal Funds Rate Loans to
Base Rate Loans or Quoted Rate Loans at any time, (iii) to convert all or any
part of its outstanding Quoted Rate Loans to Federal Funds Rate Loans or Base
Rate Loans upon the expiration of the Interest Period applicable to such Quoted
Rate Loans, or (iv) to continue all or any part of any Quoted Rate Loans as a
Quoted Rate Loan upon the expiration of the Interest Period applicable thereto
with either the same or a different Interest Period; provided that, in the case
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of clause (iv) above or of any conversion of a Loan into a Quoted Rate Loan,
there does not exist a Default or an Event of Default at such time. Any part of
a Loan converted to or continued as a Quoted Rate Loan pursuant to this Section
2.4(h) shall be in an amount equal to at least $10,000. If MBIA elects to
convert a Federal Funds Rate Loan or a Base Rate Loan into a Quoted Rate Loan or
a Quoted Rate Loan into a Federal Funds Rate Loan or a Base Rate Loan, or to
continue a Quoted Rate Loan but change the Interest Period with respect thereto
pursuant to this Section 2.4(h), it shall give the Agent at least three (3)
Business Days' prior written notice of such conversion or change. Such notice
shall, in the case of a conversion into or continuation of a Quoted Rate Loan,
specify the Interest Period applicable to such Loan. In the absence of such
notice, MBIA shall be deemed to have elected at the end of each Interest Period
for a Quoted Rate Loan to continue (subject to Section 2.5) such Quoted Rate
Loan as a Quoted Rate Loan having the same Interest Period.
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(i) On the date a Term Loan (or portion thereof) ceases to be a GFC
Funding Rate Loan, such Term Loan (or such portion) shall automatically convert
into a Federal Funds Rate Loan on such date, unless MBIA shall have given the
Agent written notice (i) of its election to convert such Loan into a Quoted
Rate Loan at least three (3) Business Days' prior to such date or (ii) of its
election to convert such Loan into a Base Rate Loan not later than 11:00 a.m.,
New York City time, on the date on such conversion. Any such notice with respect
to a Quoted Rate Loan shall specify the initial Interest Period applicable to
such Quoted Rate Loan.
SECTION 2.5. SUSPENSION OF CERTAIN RATES of borrowing
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(a) If
(i) ON ANY DATE on which a Quoted Rate would otherwise be set, the Agent shall
have in good faith determined (which determination shall be conclusive)
that adequate and reasonable means do not exist for ascertaining such
Quoted Rate, or
(ii) at any time the Agent shall have determined in good faith (which
determination shall be conclusive) that the maintenance or funding of the
Loans bearing interest at the Quoted Rate has been made impracticable or
unlawful by (A) THE OCCURRENCE of a contingency which materially and
adversely affects the interbank eurodollar market, or (B) compliance by
Lenders (other than GFC) in good faith with any applicable law or
governmental RULE, REGULATION, GUIDELINE OR ORDER OR ANY interpretation
thereof and including the ENACTMENT OF ANY NEW law or governmental rule,
regulation, guideline or order;
then, and in either such event, the Agent shall on such date give notice (by
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telephone confirmed in writing) to MBIA and each Lender of such determination,
which determination shall commence a Suspension Period. In the event that the
Agent shall later determine in good faith (which determination shall be
conclusive) that the circumstances giving rise to a Suspension Period no longer
exist, it shall give MBIA and each Lender notice (by telephone confirmed in
writing) on the day such determination is made, which date shall end such
Suspension Period.
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(b) Upon the commencement and during the continuation of any
Suspension Period, all Loans which would otherwise be made or continued as
Quoted Rate Loans shall be made or continued instead as Federal Funds Rate Loans
or Base Rate Loans, as MBIA may have elected by notice received by the Agent
prior to 11:00 a.m., New York City time, on the date on which such Loan is to be
made or, in the absence of such notice from MBIA, as Federal Funds Rate Loans.
(c) If the Agent notifies MBIA of a determination under subsection
(a)(ii) of this Section 2.5, MBIA shall, on the date specified in such notice,
either (x) prepay all Quoted Rate Loans in accordance with Section 2.7 hereof or
(y) elect by notice received by the Agent (which shall promptly furnish copy
thereof to the affected Lender) prior to such date to convert such Loans into
Federal Funds Rate Loans or Base Rate Loans. Absent notice from MBIA of its
choice of (x) or (y), all Quoted Rate Loans shall automatically be converted
into Federal Funds Rate Loans upon such specified date.
Section 2.6. Repavment of Loans.
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(a) All Revolving Loans shall mature and the aggregate unpaid
principal amount thereof shall be due and payable on the Expiration Date.
(b) Each Term Loan shall mature and the unpaid principal amount
thereof shall be due and payable on the Designated Maturity Date of such Term
Loan.
Section 2.7. Prepayments.
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(a) MBIA shall have the right at any time, and from time to time, upon
notice to the Agent to prepay Loans, in whole or in part. Any such notice shall
be given no later than 10:00 a.m., New York City time, on the date of prepayment
in the case of a prepayment of Federal Funds Rate Loans or Base Rate Loans,
not later than 5:00 p.m., New York City time, on the Business Day preceding the
date of prepayment in the case of a prepayment of GFC Funding Rate Loans, and no
later than three (3) Business Days prior a prepayment of Quoted Rate Loans. Any
such notice shall specify (i) the amount of the Loans to be prepaid, (ii)
whether such prepayment is to be applied to Revolving Loans or Term Loans, or
both, (iii) whether such prepayment is to be applied to Federal Funds Rate
Loans, Base Rate Loans, Quoted Rate Loans or GFC Funding Rate Loans, or any one
or more of the foregoing, (iv) if applicable, what portion of the prepayment is
to be applied
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to each Loan, (v) if applicable, which Quoted Rate Loans and which Term Loans
are to be prepaid, and (vi) the date of prepayment (which shall be a Business
Day). In the absence of such direction from MBIA, partial principal prepayments
of Loans shall be applied (1) first to Base Rate Loans which are Revolving
Loans, (2) then to Federal Funds Rate Loans which are Revolving Loans, (3) then
to then to other Revolving Loans in chronological order of the expiration of the
current Interest Periods for such Loans, (4) then to Base Rate Loans which are
term loans in chronological order of maturity, (5) then to Federal Funds Rate
Loans which ARE TERM LOANS in chronological order or maturity, (6) then to Term
Loans which ARE QUOTED RATE LOANS IN CHRONOLOGICAL ORDER OF the expiration of
the current Interest Periods for such Loans, and (7) then to Term Loans which
are GFC Funding Rate Loans
(b) Amounts to be prepaid pursuant to this Section 2.7 shall
irrevocably be due and payable on the date specified in the applicable notice of
prepayment. Interest on the amounts prepaid, accrued to the prepayment date,
shall be paid on such date and, in the case of (i) a Quoted Rate Loan, if the
date of prepayment is other than the expiration date of the Interest Period for
such Loan,or (ii) a GFC Funding Rate Loan, if the date of prepayment is other
than the maturity date of such Loan, such prepayment shall be accompained by the
payment required by Section 3.4.
(c) Each prepayment of Loans other than GFC Funding Rate Loans shall
be in an amount of at least $10,000, and no partial prepayment of Loans shall be
permitted if, after giving effect thereto, the aggregate outstanding principal
balance of all Loans would be less than $1,000,000. Each prepayment of GFC
Funding Rate Loans SHALL BE IN AN INTEGRAL multiple of $100,000, and no partial
prepayment of GFC Funding Rate Loans shall be permitted if, after giving effect
thereto, the aggregate outstanding principal balance of the GFC Funding Rate
Loans would be less than $1,000,000.
(d) Amounts prepaid or repaid in respect of Loans may be borrowed and
reborrowed from time to time prior to the Expiration Date subject to the terms
and conditions of this Agreement.
Section 2.8. Pro Rata Payments. Unless otherwise expressly provided
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herein, each payment and prepayment of Revolving Loans shall be made to the
Lenders pro rata on the basis of the respective unpaid principal amounts of
Revolving Loans owed to the Lenders immediately prior to such payment or
prepayment, and each payment and prepayment of a Term Loan shall be made to the
Lenders to which repayment of such Term
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Commitments by giving the Agent at least three (3) Business Days notice thereof.
Any such reduction shall be in an integral multiple of $100,000 and a reduction
not CONSTITUTING A TERMINATION SHALL not be PERMITTED IF, AFTER giving effect
thereto, the aggregate Commitments would be less than $1,000,000. Any notice of
reduction or termination pursuant to this Section 3.2(a) shall be irrevocable.
Any such reduction shall be applied to the Commitment of each Lender (other than
GFC) pro rata based upon its respective Commitment as in effect immediately
prior to SUCH REDUCTION, and any such termination shall terminate the
Commitments of all Lenders.
(b) The Commitments of the Lenders hereunder shall automatically be
reduced to zero, and the obligations of the Lenders to make additional Loans
shall automatically terminate, on the Expiration Date.
(b) Clause (iv) of Section 3.4 of the Credit Agreement is hereby
amended to add the following at the end thereof:
or any PREPAYMENT OR PAYMENT OF ANY GFC FUNDING RATE LOAN (including without
limitation pursuant to Section 2.7) on a date which is not the Designated
Maturity Date of such Loan.
(c) The provisions of Section 3.5(d) of the Loan Agreement shall be
inapplicable to GFC, insofar as such provisions may require GFC to make monetary
payments to MBIA, but shall apply to any of GFC's Participants in accordance
with its terms. If (i) MBIA would be required to make an additional payment (the
"Subject Payment") to GFC pursuant to Section 3.5(b) of the Loan Agreement, and
(ii) except for the operation of this Section 1.3(c), MBIA
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would have been entitled to receive a return of or reimbursement for all or a
portion of such payment under Section 3.5(d) of the Loan Agreement, then MBIA
shall not be required to make the Subject Payment (or such portion thereof) to
GFC, unless GFC agrees with MBIA to make any payments under Section 3.5(d) of
the Loan Agreement relating to the Subject Payment (or such portion thereof) or
has made provisions reasonably satisfactory to MBIA for the making of any such
related payments.
(d) Section 4.2 is hereby amended to add the following clause (i)
following clause (h) THEREOF:
(i) In the case of a Term Loan, each Lender making such Term Loan
shall have a received a Term Loan Note in respect thereof payable to such Lender
in the amount of its share of such Term Loan and stating the Designated Maturity
Date of such Term Loan. Any Lender may waive the condition of prior delivery of
a Term Loan Note in respect of its share of a Term Loan (and shall be deemed to
have done so in the event it makes its pro rata share of such Term Loan prior to
such delivery); provided that in the event of any such waiver, MBIA agrees to
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deliver to such Lender a Term Loan Note as provided in this clause (i) and
Section 2.3(a) not later than five (5) Business Days after the date of such Term
Loan; and Provided further that the failure of MBIA to deliver a Term Loan Note
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to a Lender shall not affect the validity of any of MBIA's obligations
hereunder, including without limitation its obligation to repay such Term Loan
together with interest thereon as provided herein.
(e) Section 9.9 of the Credit Agreement is hereby amended to add the
following at the end thereof:
Notwithstanding the foregoing, GFC or any other Lender shall have the right to
assign, sell or otherwise transfer in whole or in part its rights and/or
OBLIGATIONS UNDER THIS AGREEMENT, the Loan Documents and any Loan or any portion
thereof to Credit Suisse or to any other Person consented to in writing by MBIA,
in which case such assignee shall have the full rights and obligations of a
"Lender", and the assignor shall be relieved and released of its obligations,
under this Agreement, the Loan Documents and the Loans to the extent of such
assignment. Any such assignee which prior to such assignment was not a Lender
shall promptly deliver to MBIA the forms and documents applicable to it
contemplated by Section 3.5(c) and shall, by its acceptance of such assignment,
be bound by the provisions set forth in the second sentence of Section 3.5(d).
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For purposes of the Credit Agreement, a "Participant" (as otherwise defined in
Section 9.9 of the Credit Agreement) shall also include any bank, insurance
company or other financial institution providing liquidity, credit enhancement
or back-up acquisition support or facilities to GFC in respect of any GFC
Funding Rate Loans, and the rights of a Participant under the Credit Agreement
shall apply to any such institution in respect of commitments and obligations
to, and its funding of advances to, GFC in respect of GFC Funding Rate Loans.
SECTION 1.4. Amendments Relating TO LENDERS AND AGENT.
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(a) Article 9 of the Credit Agreement is hereby amended by adding the
following two new Sections thereto following Section 9.13 hereof:
Section 9.14. Nonpetition Agreement. Notwithstanding any prior
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termination of this Agreement, MBIA hereby agrees that it shall not institute
against, or join any other person in instituting against, GFC any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceeding under any federal or state bankruptcy or similar law, for one year
and a day after the latest maturing commercial paper note, medium term note or
other debt security issued by GFC is paid. This Section 9.14 shall survive the
termination of this Agreement.
Section 9.15. Agent. (a) Each Lender hereby irrevocably appoints and
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authorizes the Agent to act as its agent hereunder with such powers as are
specifically delegated to the Agent by the terms of this Agreement, TOGETHER
WITH SUCH other powers as are reasonably incidental thereto. The Agent (which
term as used in this Section and in Section 9.15(d) and the first sentence of
Section 9.15(e) shall include reference to its affiliates and its own and its
affiliates' officers, directors, employees and agents: (i) shall have no duties
or responsibilities except those expressly set forth in this Agreement, and
shall not by reason of this Agreement be a trustee for any Lender; (ii) shall
not be responsible to any Lender for any recitals, statements, representations
or warranties contained in this Agreement, or in any certificate or other
document referred to or provided for in, or received by any of them under, this
Agreement or any Note or other Loan Document or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other document referred to or provided for herein or therein or for any
failure by the Company to perform any of its obligations hereunder or
thereunder; (iii) shall not be required to initiate or conduct any litigation or
collection proceedings
-13-
hereunder or under any Note; and (iv) shall not be responsible for any action
taken or omitted to be taken by it hereunder or under any other document or
instrument referred to or provided for herein or therein or in connection
herewith or therewith, except for its own gross negligence or willful
misconduct. The Agent may employ agents and attorneys-in-fact and shall not be
responsible for the negligence or misconduct of any such agents or attorneys-
infact selected by it in good faith.
(b) The Agent shall be entitled to rely upon any certification, notice
or other communication (including any thereof by telephone, telecopy, telex,
telegram or cable) believed by it to be genuine and correct and to have been
signed or sent by or on behalf of the proper Person or Persons, and upon advice
and statements of legal counsel, independent accountants and other experts
selected by the Agent. As to any other matters not expressly provided for by
this Agreement, the Agent shall in all cases be fully protected in acting, or
in refraining from acting, hereunder or under any Note in accordance with
instructions of the Majority Lenders, and such instructions of the Majority
Lenders and any action taken or failure to act pursuant thereto shall be binding
on each Lender.
(c) The Agent, if it is a Lender hereunder, shall have the same rights
and powers hereunder as any other Lender and may exercise the same as though it
were not acting as the Agent, and in such event the term "Lender" or "Majority
Lenders" shall, unless the context otherwise indicates, include the Agent in
its individual capacity.
(d) Each Lender (other than GFC) agrees to indemnify the Agent (to the
extent not reimbursed under Section 9.1, but without limiting the obligations of
MBIA under said Section 9.1) for any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind and nature whatsoever which may be imposed on, incurred by or
asserted against the Agent in any way relating to or arising out of this
Agreement, any Note or any other documents contemplated by or referred to
herein or therein or the transactions contemplated hereby (excluding normal
administrative costs and expenses incident to the performance of its agency
duties hereunder) or the enforcement of any of the terms hereof or of any such
other documents, Provided that no Lender shall be liable for any of the
--------
foregoing to the extent they arise from the gross negligence or willful
misconduct of the party to be indemnified. Each Lender's proportionate share of
any obligations under this Section
-14-
9.15(d) shall equal such Lender's Commitment as a percentage of the Commitments
of all Lenders (other than GFC) or, if no Lender has a Commitment, the aggregate
outstanding principal amount of Loans owed to such Lender as a percentage of the
aggregate outstanding principal amount of Loans owed to all Lenders other than
GFC. This Section 9.15(d) shall survive the termination of this Agreement.
(e) Each Lender agrees that it has, independently and without reliance
on the Agent or any other Lender, and based on such documents and information as
it has deemed appropriate, made its own credit analysis of and the decision to
enter into this Agreement or acquire its share of the Loans and that it will,
independently and without reliance upon the Agent or any other Lender, and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own analysis and decisions in taking or not taking action
under this Agreement or its Notes. The Agent shall not be required to keep
itself informed as to the performance or observance by MBIA of this Agreement or
any Note or OTHER LOAN DOCUMENTS.
(f) Except for actions expressly required of the Agent hereunder, the
Agent shall in all cases be fully justified in failing or refusing to act
hereunder or under any Note unless it shall receive further assurances to its
satisfaction from each Lender (other than GFC) of its indemnification
obligations under Section 9.15(d) against any and all liability and expense
which may be incurred by it by reason of taking or continuing TO TAKE ANY SUCH
ACTION.
(g) The Agent may resign as Agent upon 10 days' notice to each Lender
and MBIA with such resignation becoming effective upon a successor agent
succeeding to the rights, powers and duties of the Agent pursuant to this
Section 9.15(g). If the Agent shall RESIGN AS AGENT UNDER THIS Agreement, then
the Majority Lenders shall appoint a successor agent, subject to consent by
MBIA, which consent shall not be unreasonably withheld. The successor agent
shall succeed to the rights, powers and duties of the Agent, and the term
"Agent" shall mean such successor agent effective upon its appointment, and the
former Agent's rights, powers and duties as Agent shall be terminated, without
any other or further act or deed on the part of such former Agent or any of the
parties to this Agreement. After any rettiring Agent's resignation as Agent, the
provisions of this Section shall inure to its benefit as to any actions TAKEN OR
OMITTED TO BE TAKEN BY IT WHILE IT WAS AGENT UNDER THIS AGREEMENT.
-15-
(b) In addition to the modifications contained in provisions of the
Credit Agreement referred to above in this Amendment, references in the Credit
Agreement to the "Bank" are hereby amended to constitute references to each of
the Lenders, except as follows:
(i) For purposes notices to be provided by MBIA to the "Bank"
(including without limitation notices of borrowing), such references shall mean
the Agent;
(ii) For purposes of Section 3.1, such references shall mean each
Lender other than GFC;
(iii) For purposes of Section 7.2(a), such references shall mean the
Agent acting at the direction of the Majority Lenders;
(iv) The Agent, in its capacity as such, shall be entitled to the
benefits of Section 9.1 of the Credit Agreement.
(v) For purposes of any consents or waiver which under the Agreement
may be given by the "Bank", including without limitation Section 9.13, such
references shall mean the "Majority Lenders" (which may act through the Agent);
Provided that any consent or waiver which (A) affects the amount of the
--------
Commitment of any Lender, (B) alters the amount or the timing of any payment
hereunder or under any Note, the provisions of Section 3.4 or the requirement
pursuant to Section 2.8 of the pro rata application of all amounts received by
the Agent in respect of the Loans, (C) permits any subordination of the
principal of or interest on any Loan, (D) alters the amount of any fee to be
paid to any Lender, or (E) changes the percentage of the Lenders required to
constitute the Majority Lenders or otherwise modifies voting rights of Lenders,
each shall required the prior written consent of each adversely affected Lender;
provided further that any consent or waiver -which enlarges the obligations of
-------- -------
GFC hereunder shall require the prior written consent of GFC; and provided
--------
further that any consent or waiver which alters the rights or obligations of the
-------
Agent shall, in addition, require the prior written consent of the Agent.
(c) For purposes of Section 9.8 of the Credit Agreement, the initial
address of the Agent shall be ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: Public Finance Department, Telecopier No. ▇▇▇-▇▇▇-▇▇▇▇, and the
initial respective addresses of the Lenders shall be as set forth on the
signature pages to this Amendment.
-16-
SECTION 1.5. Amendments to Definitions.
----------- -------------------------
(a) The definition of "Available Commitment" contained in Exhibit A to the
Credit Agreement is hereby amended and restated to read in its entirety as
follows:
"Available Commitment" shall mean, as of any day with respect to a Lender
--------------------
other than GFC, such Lender's Commitment, minus the sum of (a) the outstanding
principal amount of Loans owed to such Lender on such day, plus (a) a share of
the outstanding principal amount of Loans owned to GFC on such day times a
fraction, the numerator of which equals the Commitment of such Lender and the
denominator of which equals the aggregate Commitments of all Lenders (other than
GFC).
(b) The definition of "Business Day" contained in Exhibit A of the Credit
Agreement is hereby amended and restated to read in its entirety as follows:
"Business Day" shall mean any day excluding (i) Saturday and Sunday and
------------
(ii) any day on which banks in New York City are authorized by law or other
governmental action to close. In the case of matters relating to the making,
conversion, continuation, payment or prepayment of Quoted Rate Loans or the
determination of the Quoted Rate, a "Business Day" shall be such a day which is
------------
also a day for trading by and between banks in U.S. Dollar deposits in the
London interbank eurodollar market.
(c) The definition of "Commitment" contained in Exhibit A of the Credit
Agreement is hereby amended and restated to read in its entirety as follows:
"Commitment" shall mean, with respect to any Lender, the amount set forth
----------
opposite its name on the signature pages to this Agreement or any amendment,
joinder or related agreement by which such Lender became a party hereto or by
which such Lender modified its Commitment hereunder, as such amount may be
reduced from time to time pursuant to Section 3.2 or Section 7.2.
(d) Clause (d) of the definition of "Interest Period" contained in Exhibit
A of the Credit Agreement is hereby amended and restated to read in its entirety
as follows:
(d) no Interest Period in respect of a Revolving Loan shall extend beyond the
Expiration Date in effect on the first day of such Interest Period, and no
Interest Period in respect of
a Term Loan shall extend beyond the Designated Maturity Date for such Term Loan.
(e) The definition of "Note" contained in Exhibit A of the Credit
Agreement is hereby amended and restated to read in its entirety as follows:
"Note" shall mean each Term Note and each Revolving Loan Note and, unless.
the context otherwise requires, shall mean all Term Notes and all Revolving Loan
Notes collectively.
(f) The following additional definitions and crossreferences are
hereby added to Exhibit A of the Credit Agreement in their respective
appropriate alphabetical order:
"Agent" - Preamble.
-----
"CP Disruption Event" means, at any time for any reason whatsoever, GFC
-------------------
shall be unable to raise, or shall be precluded or prohibited from raising funds
through the issuance of commercial paper notes in the commercial paper market of
the United States including, without limitation (i) by virtue of insufficient
availability under any liquidity or credit support agreement entered into by GFC
with respect to the GFC Funding Rate Loans or (ii) the downgrading of one or
more institutions providing commitments to GFC under such support agreements.
"Credit Suisse" - Preamble.
-------------
"Designated Maturity Date" shall mean, with respect to a Term Loan, the
------------------------
earlier to occur of (a) the date designated by MBIA as the maturity date of such
Term Loan in its related notice of borrowing delivered pursuant to Section
2.2(a), which shall not be fewer than thirty (30) days after the date on which
such Term Loan is to be made hereunder unless each affected Lender otherwise
consents in writing, or (b) the fifth anniversary of the date on which such Term
Loan is made.
"GFC" - Preamble.
---
"GFC Funding Rate" shall mean, for any day, the sum of (i) the weighted
----------------
average of the per annum rates (or, if such rates are expressed as discount
rates, the weighted average of the per annum rates resulting from converting
such discount rates to an interest bearing equivalent) of GFC's commercial
paper notes allocated by GFC to the funding or maintenance of the GFC Funding
Rate Loans on such day plus
(ii) 0.05% in respect of dealer fees; Provided that if a
--------
-18-
Disruption Event shall have occurred and be continuing, the GFC Funding Rate for
a GFC Funding Rate Loan SHALL EQUAL A QUOTED Rate for overnight periods (as
determined by the Agent) from the date of the occurrence of such event to but
excluding the next Payment Date and thereafter a Quoted Rate for a one month
period (as determined by the Agent) for each period commencing on a Payment Date
to but excluding the next following Payment Date (or, if earlier, the Designated
MATURITY DATE OF such GFC Funding Rate Loan).
"GFC FUNDING RATE LOAN" shall mean a Loan or a portion thereof, the
---------------------
interest on which computed at the rate SPECIFIED in Section 2.4(e).
"GFC Funding Rate Margin" shall mean two-tenths of one percent (.20%) plus
-----------------------
the Applicable Margin.
"Lenders" - Preamble.
-------
"Majority Lenders" shall mean Lenders holding, in the aggregate, Available
----------------
Commitments and unpaid principal amounts of Loans representing more than 50% of
the aggregate of the Available Commitments of all Lenders and the aggregate
unpaid principal amounts of all Loans.
"Revolving Loan" shall mean a Loan designated by MBIA as a Revolving Loan
--------------
in its related notice of borrowing delivered pursuant to Section 2.2(a).
"Revolving Loan Note" shall mean each promissory note of MBIA issued to a
-------------------
Lender pursuant to Section 2.3 evidencing the Revolving Loans and any other note
issued by MBIA and accepted by a Lender or a transferee in exchange,
substitution or replacement therefor, as each may be amended from time to time.
"Term Loan" shall mean a Loan designated by MBIA as a Term Loan in its
---------
related notice of borrowing delivered pursuant to Section 2.2(a).
"Term Note" shall mean each promissory note of MBIA issued to a Lender
--------
pursuant to Section 2.3 evidencing the Term Loans and any other note issued by
MBIA and accepted by a Lender or a transferee in exchange, substitution or
replacement therefor, as each may be amended from time to time.
SECTION 1.6. Amendments to Exhibits. Exhibits B and C of the Credit
----------- ----------------------
Agreement are hereby amended and restated as set forth as Exhibits B. C-1 and C-
2, respectively, to this Amendment.
-19-
ARTICLE II
REPRESENTATIONS AND
WARRANTIES
In order to induce the Agent and the Lenders to enter into this Amendment
and to induce the Lenders to make Loans under the Credit Agreement as amended
hereby, MBIA makes the following representations and warranties to the Agent and
the Lenders, which shall survive the execution and delivery of this Amendment
and the making of any Loans:
SECTION 2.1. Due Authorization, Etc. The execution, delivery and
----------- ----------------------
performance by MBIA of this Amendment and the Loan Documents as amended
hereby are within its corporate powers, have been duly authorized by all
necessary corporate action and do not and will not (i) violate any provision of
any law, rule, regulation (including, without limitation, the Investment Company
Act of 1940, as amended, or Regulations G. T. U or X of the Board of Governors
of the Federal Reserve System), order, writ, judgment, injunction, decree,
determination or award presently in effect having applicability to MBIA or of
the corporate charter or by-laws of MBIA, (ii) result in a breach of or
constitute a default under any indenture or loan or credit agreement or any
other agreement, lease or instrument to which MBIA is a party or by which it or
its properties may be bound or affected, or (iii) result in, or require, the
creation or imposition of any Lien upon or with respect to any of the properties
now owned or hereafter acquired by MBIA, other than, 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 and its
subsidiaries considered as a whole or of the New York Insurance Subsidiary or
the ability of MBIA to perform its obligations under any Loan Document.
SECTION 2.2. Approvals. No consent, approval or other action by, or any
----------- ---------
notice to or filing with any court or administrative or governmental body is or
will be necessary for the valid execution, delivery or performance by MBIA of
this Amendment or the Loan Documents as amended thereby.
SECTION 2.3. Enforceability. This Amendment and each Loan Document as
----------- --------------
amended hereby, 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.
-20-
SECTION 2.4. Financial STATEMENTS, ETC. (A) MBIA HAS heretofore furnished
----------- -------------------------
to the Agent (i) its audited consolidated and unaudited consolidating balance
sheets of at December 31, 1995, the related audited consolidated statements of
income, changes in stockholders' equity and financial position or cash flows,
as the case may be, and unaudited consolidating statements of income for the
year ended December 31, 1995, and (ii) its unaudited consolidated and
consolidating balance sheets as of March 31, 1996, and the related consolidated
statements of income, changes in stockholders' equity and cash flows for the
three months ended March 31, 1996. Such financial statements were prepared in
accordance with generally accepted accounting principles consistently applied
and present fairly the consolidated financial position and consolidated results
of operations and cash flows of MBIA and its subsidiaries 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 and its subsidiaries taken as a whole or of the New York Insurance
Subsidiary since March 31, 1996.
(b) MBIA has heretofore furnished to the Agent the annual statements and
financial statements of the New York Insurance Subsidiary as filed with the New
York Department of Insurance for the year ended December 31, 1995 and the
quarterly statements and financial statements of the New York Insurance
Subsidiary as filed with such Department for the period ended March 31, 1996.
Such annual and quarterly statements and financial statements were prepared in
accordance with the statutory accounting principles set forth in the New York
Insurance Law, all of the assets described therein were the absolute property
of the New York Insurance Subsidiary 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 New York Insurance Subsidiary 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 Agent a copy of its annual report
on Form 10-K for the fiscal year ended December 31, 1995 as filed with the
Securities and Exchange Commission and its quarterly report on Form 10-Q of for
the quarter ended March 31, 1996 as filed with the Securities and Exchange
Commission. Such annual and quarterly reports were prepared in accordance with
the Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder.
SECTION 2.5. Confirmation of Representations and Warranties. MBIA hereby
----------- ----------------------------------------------
confirms that its representations and
-21-
warranties set forth in the Credit Agreement (including without limitation those
set forth in Article 5 of the Credit Agreement) are true and correct as of the
date hereof, and represents and warrants that no Default or Event of Default has
occurred and is continuing.
SECTION 2.6. 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 this Amendment
or any Loan Document as amended hereby which has not been set forth in this
Amendment, in the financial STATEMENTS or reports required to be delivered
pursuant to SECTION 2.4 HEREOF.
ARTICLE III
MISCELLANEOUS
-------------
SECTION 3.1. 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.
SECTION 3.2. Effectiveness. This Amendment shall be effective when executed
----------- -------------
and delivered by MBIA, GFC, Credit Suisse and the Agent.
SECTION 3.3. 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 on any
Loan or Note remains outstanding or unpaid, any other amount payable by MBIA
under the Credit Agreement as amended hereby, any Note or any other Loan
Document remains unpaid or any other obligation of MBIA to perform any other act
hereunder or under the Credit Agreement as amended hereby, any Note or any other
Loan Document remains unsatisfied or the Lenders have any obligation to make a
Loan or any other advance of moneys to MBIA under the Credit Agreement as
amended hereby.
SECTION 3.4. 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.
-22-
SECTION 3.5. 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 9.9 of the Credit Agreement.
SECTION 3.6. Amendments. No provision of this Amendment shall be waived,
----------- ----------
amended or supplemented except as provided in Section 9.13 of the Credit
Agreement.
SECTION 3.7. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND
----------- -------------
CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
SECTION 3.8. 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 3.9. 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 "hereunto duly
authorized as of the date first above written.
MBIA, INC.
By - - .1 - -
NAME: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
TITLE:SENIOR VICE PRESIDENT AND
TREASURER
CREDIT SUISSE, NEW YORK BRANCH, as Agent
By
Name: Title:
By Name: Title:
Commitment: $50,000,000 CREDIT SUISSE, NEW YORK
BRANCH
Address: ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Public Finance By
Department Name:
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇ Title:
By
Name: Title:
Address: ▇/▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ Branch
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ By: Credit Suisse, ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Branch, as its Attorney
Attn: Asset Finance in-Fact
Department
Telecopy: 212-238-5332
By
Name:
Title:
By
Name:
Title:
-24
EXHIBIT B TO REVOLVING CREDIT AGREEMENT
FORM OF NOTICE OF
-----------------
BORROWING
---------
[date]
CREDIT SUISSE New York Branch as Agent ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Public Finance Department
Re: Borrowing under Revolving Credit Agreement, dated as of February 15, 1991,
between MBIA Inc., Credit Suisse, New York Branch, as Agent, and the
-----------------
Lenders party thereto
---------------------
Dear Sirs:
MBIA Inc., a Connecticut corporation ("MBIA"), hereby requests that [a
Loan/Loans] be made to MBIA by the Bank under the Revolving Credit Agreement
referred to above (as amended, the "Revolving Credit Agreement") as follows (all
----------------
capitalized terms herein having the meanings ascribed thereto in the Revolving
Credit Agreement) :
1. The aggregate amount of the Loan[s] (the "Subject Loan[s]")
requested hereby IS $ , WHICH AMOUNT DOES NOT exceed the Available Commitment.
2. The Subject Loan[s] are as follows:
(a) Amount of Revolving Loans: $
Interest Period
Amount (in
increments (applicable to
Type of Loan of $1,000,000) Quoted Rate Loans)
---------------
(b) Amount of Term Loan: $__
Designated Maturity Date (not in
excess of five (5) years)
Interest Period
Amount (in increments (applicable to
Type of Loan of $1,000,000) QUOTED RATE LOANS)
3. The date on which the Subject Loan[s] is/are requested to be made
(the "Loan Date") is, 19_, which is a Business Day.
4. Each of the conditions set forth in the Revolving Credit
Agreement to the Lenders' obligations to make the Subject Loan[s], including
without limitation Article 4 thereof, has been satisfied.
5. The proceeds of the Subject Loan[s] will be applied as provided
in Section 6.1 of the Revolving Credit Agreement and more particularly as
follows:
6. The statements set forth above shall be true and correct on and
as of the Loan Date.
7. The Subject Loan[s] is to be disbursed to the following account:
8. The undersigned is duly authorized and empowered in the name and
on behalf of MBIA to present this Notice of Borrowing and to request and obtain
the Subject Loan[s] upon and in
B-2
accordance with, and subject to, the terms and conditions set forth in the
Revolving Credit Agreement and the Loan Documents.
IN WITNESS WHEREOF, MBIA has executed and delivered this
Notice of Borrowing this _ day of , 19 _ .
MBIA INC.
By
Name:
Title:
EXHIBIT C-1 TO
REVOLVING
CREDIT AGREEMENT
FORM OF REVOLVING LOAN
NOTE
MBIA INC.
US $[amount of Lender's New York, New York
Commitment] , 199_
FOR VALUE RECEIVED, the undersigned, MBIA INC., a Connecticut
corporation ("MBIA"), hereby promises to pay to the order of [name of Lender]
(the "Lender") at the office of its [address of payment office], in lawful money
of the United States of America in immediately available funds, the principal
sum of [amount of Lender's Commitment] (US $ ) or, if less, the aggregate unpaid
principal amount of the Revolving Loans (as defined in the hereinafter referred
to Revolving Credit Agreement) outstanding and payable to the Lender by MBIA
under the Revolving Credit Agreement dated as of February 15, 1991 among MBIA,
Credit Suisse, New York Branch, as Agent, and the Lenders party thereto (as
amended from time to time, the "Revolving Credit Agreement") in the amounts and
on the dates set out in the Revolving Credit Agreement. MBIA also promises to
pay interest on the unpaid principal amount of each Revolving Loan payable to
the Lender from the date on which such Revolving Loan is made until such
Revolving Loan is repaid in full at such interest rates and payable on such
dates as are determined pursuant to the Revolving Credit Agreement.
If any payment on this Revolving Loan Note shall be specified to be
made upon a day which is not a Business Day (as defined in the Revolving Credit
Agreement), it shall be made on the next succeeding Business Day (or, if
earlier, on the Expiration Date as defined in the Agreement), and such extension
of time shall in such case be included in computing interest, if any, in
connection with such payment; provided, however, that, IN THE EVENT that the
--------
day on which any such payment relating to the principal of Revolving Loans
bearing interest by reference to the Quoted Rate is due is not a Business Day
but is a day of the month after which no further Business Day occurs in such
month, then the due date thereof shall be the next preceding Business Day.
The Lender is authorized to record the date and amount of each advance
of and each payment, prepayment and conversion with respect the Revolving Loans
payable to such Lender on the grid attached hereto or on a continuation thereof
which shall be attached hereto and made a part hereof, and any such notation
shall constitute prima facie evidence of the accuracy of the information so
-----------
recorded; provided that the failure to make any such notations shall not affect
the validity of MBIA's obligations hereunder.
Presentment, demand, protest and notice of dishonor are hereby waived
by the undersigned.
This Revolving Loan Note evidences Revolving Loans under, and is
entitled to the benefits and subject to the provisions of, the Revolving Credit
Agreement and the other Loan Documents (as defined therein). The Revolving
Credit Agreement, among other things, contains provisions with respect to the
acceleration of the MATURITY OF THIS Revolving Loan Note upon the happening of
certain stated events, and for mandatory and optional prepayments of the
principal of this Revolving Loan Note prior to maturity, all upon the terms and
conditions specified therein.
This Revolving Loan Note shall be construed in accordance with and
governed by the laws of the State of New York.
MBIA INC.
By
Name: Title:
GRID
Unpaid
Principal Principal
Amount Type of Paid or Amount of Notation
Date of Loan Loan Prepaid Note Made by
------------
EXHIBIT C-2 TO
REVOLVING
CREDIT AGREEMENT
FORM OF TERM LOAN
-----------------
NOTE
----
MBIA INC.
US $[amount of Lender's New York, New York
share of Term Loan] ,199
Due [Designated Maturity Date]
FOR VALUE RECEIVED, the undersigned, MBIA INC., a Connecticut
corporation ("MBIA"), hereby promises to pay to the order of [name of Lender]
(the "Lender") AT THE OFFICE OF ITS [ADDRESS OF payment office], on [Designated
Maturity Date] IN LAWFUL MONEY of the United States of AMERICA IN IMMEDIATELY
AVAILABLE FUNDS, the principal sum of [amount of Lender's share of Term Loan]
(US $ ) or, if less, the aggregate unpaid principal balance of this Term Note.
MBIA also promises to pay interest on the unpaid principal amount of the Term
Loan evidenced hereby from THE DATE ON which such Term Loan is made until such
Term Loan is repaid in full at such interest rates and payable on such dates as
are determined pursuant to the Revolving Credit Agreement dated as of February
15, 1991 among MBIA, Credit Suisse, New York Branch, as Agent, and the Lenders
party thereto (as amended from time to time, the "Revolving Credit Agreement").
If any payment on this Term Loan Note shall be specified to be made
upon a day which is not a Business Day (as defined in the Revolving Credit
Agreement), it shall be made on the next succeeding Business Day (or, if
earlier, on the Expiration Date as defined in the Agreement), and such
extension of time SHALL IN such case be included in computing interest, if any,
IN CONNECTION with such payment; provided, however, that, in the event that the
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day on which any such payment relating to the principal of Term Loans bearing
interest by reference to the Quoted Rate is due is not a Business Day but is a
day of the month after which no further Business Day occurs in such month, then
the due date thereof shall be the next preceding Business Day.
The Lender is authorized to record the date and amount of each advance
of and each payment, prepayment and conversion with respect the Term Loans
payable to such Lender on the grid attached hereto or on a continuation thereof
which shall be attached hereto and made a part hereof, and any such notation
shall constitute prima facie evidence of the accuracy of the information so
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recorded; provided that the failure to make any such notations shall not affect
the validity of MBIA's obligations hereunder .
Presentment, demand, protest and notice of dishonor are hereby waived
by the undersigned.
This Term Loan Note evidences a Term Loan under, and is entitled to
the benefits and subject to the provisions of, the Revolving Credit Agreement
and the other Loan Documents (as defined therein). The Revolving Credit
Agreement, among other things, contains provisions with respect to the
acceleration of the maturity of this Term Loan Note upon the happening of
certain stated events, and for mandatory and optional prepayments of the
principal of this Term Loan Note prior to maturity, all upon the terms and
conditions specified therein.
This Term Loan Note shall be construed in accordance with and governed
by the laws of the State of New York.
MBIA INC.
By
-
Name:
Title:
C-2-2
GRID
Unpaid
Principal Principal
Amount Type of Paid or Amount of Notation
Date of Loan Loan Prepaid Note Made by
------------