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EXHIBIT 10.24
$800,000,000
AMENDMENT AND RESTATEMENT
TO AND OF
AMENDED AND RESTATED CREDIT AGREEMENT
by and among
AMBAC ASSURANCE CORPORATION,
as Borrower,
VARIOUS BANKS,
BANK OF AMERICA, N.A.,
and
DEUTSCHE BANK, AG,
NEW YORK BRANCH
As Co-Syndication Agents
and
THE BANK OF NEW YORK,
As Administrative Agent
----------------------
Dated as of June 30, 2001
----------------------
BNY CAPITAL MARKETS, INC.,
as Lead Arranger and Sole Book Manager
================================================================================
AMENDMENT AND RESTATEMENT
TO AND OF
AMENDED AND RESTATED CREDIT AGREEMENT
-------------------------------------
AMENDMENT AND RESTATEMENT (this "Restatement"), dated as of June 30,
2001, to and of the Existing Credit Agreement (as defined in the Recitals),
among AMBAC ASSURANCE CORPORATION (the "Borrower"), a Wisconsin stock insurance
corporation, the Banks (as defined in the Recitals), and THE BANK OF NEW YORK,
as Administrative Agent (in such capacity, the "Administrative Agent").
RECITALS
--------
WHEREAS:
A. Reference is made to the Amended and Restated Credit Agreement
dated as of December 2, 2000 (the "Existing Credit Agreement") among the
Borrower, the Banks party thereto (the "Existing Banks"), each financial
institution acting as a Syndication Agent thereunder, and The Bank of New York,
in its capacity as Administrative Agent.
B. Simultaneously with the execution and delivery hereof: (i)
certain of the Existing Banks (each, a "Withdrawing Bank" and collectively, the
"Withdrawing Banks") are terminating their Commitment and/or their Contingent
Commitment under the Existing Credit Agreement and shall no longer be deemed
party thereto; (ii) each of the financial institutions listed on Schedule II
annexed hereto (each, a "New Bank" and collectively, the "New Banks"; the
Existing Banks that are not Withdrawing Banks together with the New Banks are
hereinafter referred to collectively as the "Banks") has agreed to become a
"Bank" under the Existing Credit Agreement as amended and restated hereby and to
extend to the Borrower a Commitment and/or a Contingent Commitment in the amount
set forth opposite its name on Part A of Schedule I annexed hereto and the
Borrower desires to accept such Commitments and/or Contingent Commitments of the
New Banks and to cause each New Bank to be added as a "Bank" to the Existing
Credit Agreement as amended and restated hereby; and (iii) certain of the
Existing Banks that are not Withdrawing Banks desire to change their respective
Commitments and/or their Contingent Commitments to the amount set forth opposite
their respective names on Schedule I hereto and the Borrower desires to accept
such changed Commitments and/or Contingent Commitments.
C. The parties hereto desire to amend and restate the Existing
Credit Agreement upon the terms, and subject to the conditions, contained
herein.
D. Capitalized terms used herein that are defined in the Existing
Credit Agreement and are not otherwise defined herein shall have the respective
meanings ascribed thereto in the Existing Credit Agreement.
Accordingly, in consideration of the Recitals and the covenants,
conditions and agreements hereinafter set forth, and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties hereto agree as follows:
Article 1. Amendments to and Restatement of the Existing Credit
Agreement.
---------
Section 1.01 The parties hereto agree that:
(a) The Existing Credit Agreement is hereby restated in its entirety,
except as specifically amended by this Restatement; and
(b) The Existing Credit Agreement and the other Credit Documents are
each deemed amended, supplemented and restated hereby to the extent necessary to
give effect to the provisions of this Restatement.
Section 1.02 The parties hereto further agree that from and after the
Restatement Effective Date:
(a) Section 3.04(a) of the Existing Credit Agreement is hereby
amended by (i) deleting the date "December 2, 2007" in the second line thereof
and substituting therefor the date "June 30, 2008", (ii) deleting the words "the
Effective Date" on the third and fourth lines thereof and substituting therefor
the date "June 30, 2001", and (iii) deleting the date "December 2" on the 16th
line thereof and substituting therefor the date "June 30";
(b) Schedule I to the Existing Credit Agreement is hereby amended by
deleting the text thereof in its entirety and substituting therefor Schedule I
annexed to this Restatement, and notwithstanding any of the procedures set forth
in Section 12.04 of the Existing Credit Agreement, the Commitment and/or
Contingent Commitment of each Bank shall be the amount set forth opposite such
Bank's name on such Schedule I, as the same may be reduced or increased pursuant
to the terms of the Existing Credit Agreement as amended and restated hereby,
and, with respect to each Existing Bank that is not a Withdrawing Bank, such
amount shall supersede and be deemed to amend the amount of its respective
Commitment and/or Contingent Commitment as set forth opposite its name on
Schedule I to the Existing Credit Agreement;
(c) The Commitment and/or the Contingent Commitment of each
Withdrawing Bank under the Existing Credit Agreement has been terminated and
each Withdrawing Bank shall have no further duties or obligations under the
Existing Credit Agreement after the Restatement Effective Date;
(d) (i) Each New Bank will abide by the terms of the Existing Credit
Agreement as amended and restated hereby, (ii) the Existing Credit Agreement as
amended and restated hereby shall be binding upon, inure to the benefit of, and
be enforceable by and against each New Bank, and (ii) each New Bank shall be
deemed to be a "Bank" under, and as such term is defined in, the Existing Credit
Agreement as amended and restated hereby, and shall have the rights and
obligations of a "Bank" thereunder and under the other Credit Documents.
Article 2. Extension of Commitment Period.
------------------------------
The Administrative Agent and each of the Banks hereby consent to the
amendment of the Expiry Date effected pursuant to Section 1.02(a) of this
Restatement, notwithstanding the procedures set forth in Section 3.04 of the
Existing Credit Agreement.
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Article 3. Conditions to Effectiveness of this Restatement.
-----------------------------------------------
This Restatement shall become effective as of the date hereof (the
"Restatement Effective Date") upon the fulfillment (to the satisfaction of the
Administrative Agent) of the following conditions precedent:
Section 3.01 Restatement; Notes.
------------------
The Borrower and each Bank shall have signed a copy hereof (whether the
same or different copies) and shall have delivered such copy to the
Administrative Agent at its Notice Office and there shall have been delivered to
each New Bank and to each Existing Bank whose Commitment and/or Contingent
Commitment has changed, a Note or Notes executed by the Borrower in the amount,
maturity and as otherwise provided in the Existing Credit Agreement, as amended
and restated by this Restatement.
Section 3.02 No Default; Representations and Warranties.
------------------------------------------
There shall exist no Default or Event of Default and all
representations and warranties contained in the Existing Credit Agreement, as
amended and restated by this Restatement and in the other Credit Documents 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 Restatement
Effective Date (other than representations and warranties made as of a specific
date).
Section 3.03 Opinions of Counsel to the New Banks.
------------------------------------
Moody's, S&P and the Borrower shall have received an opinion addressed
to each of them and dated the Restatement Effective Date from counsel to each of
the New Banks covering the matters set forth in the appropriate form or forms
attached as Exhibits E-1, E-2, and E-3 to the Existing Credit Agreement, with
appropriate modifications to reflect this Restatement.
Section 3.04 Covered Portfolio, Etc.
----------------------
The Administrative Agent shall have received a certificate, dated the
Restatement Effective Date, signed by the President or any Vice President of the
Borrower, setting forth in reasonable detail as of March 31, 2001 (a) each
Insured Municipal Obligation in the Covered Municipal Portfolio, each Insured
Structured Obligation in the Covered Structured Portfolio and each reinsurance
agreement or similar arrangement which covers any material amount of such
Insured Municipal Obligations or such Insured Structured Obligations, (b) each
default by the issuer of any such Insured Municipal Obligation or Insured
Structured Obligation or other obligor with respect thereto which has formed or
could form the basis of a claim under an Insurance Contract, (c) each default by
any party to any such reinsurance agreement or similar arrangement, (d) each
claim paid by the Borrower under any Insurance Contract with respect to such
Insured Municipal Obligations or Insured Structured Obligations, (e) the
Borrower's reasonable estimate as of March 31, 2001 of the Average Annual Debt
Service on the Covered Municipal Portfolio and the Net Remaining Par on the
Covered Structured Portfolio, (f) the Borrower's Cumulative Municipal Losses and
Cumulative Structured Losses (stating separately any Permitted Municipal
Reserves or Permitted Structured Reserves, as the case may be,
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included therein) for the period from December 2, 2000 through March 31, 2001,
and (g) the Borrower's reasonable estimate as of March 31, 2001 of Municipal
Installment Premiums payable with respect to the Covered Municipal Portfolio and
Structured Installment Premiums payable with respect to the Covered Structured
Portfolio.
Section 3.05 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 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 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 Restatement Effective Date, the Borrower's Rating assigned
by Moody's and S&P shall be Aaa and AAA, respectively.
Section 3.06 Litigation.
----------
No litigation by any entity (private or governmental) shall be pending
or threatened with respect to this Agreement or any documentation executed in
connection herewith or the transactions contemplated hereby, 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 3.07 Fees, Etc.
---------
(a) All of the certificates, legal opinions and other documents and
papers referred to in this Section 3, unless otherwise specified, shall have
been delivered to the Administrative Agent at its Notice Office.
(b) The Borrower shall have paid to each Credit Party, for its own
account, fees and other amounts payable in the amounts and at the times
separately agreed upon between the Borrower and such Credit Party.
(c) The Administrative Agent shall have received a certificate of the
Secretary or Assistant Secretary of the Borrower (i) attaching a true and
complete copy of the resolutions
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of its Board of Directors and of all documents evidencing all necessary
corporate action (in form and substance reasonably satisfactory to the
Administrative Agent) taken by it to authorize this Restatement, (ii) certifying
that its Restated Articles of Incorporation and Restated Corporate By-Laws have
not been amended since December 21, 1999, or, if so, setting forth the same, and
(iii) setting forth the incumbency of its officer or officers who may sign this
Restatement, including therein a signature specimen of such officer or officers.
(d) The Administrative Agent shall have received such other documents
as it shall reasonably request.
Article 4. Representations and Warranties.
------------------------------
Section 4.01 Representations and Warranties of the Borrower.
----------------------------------------------
As of the Restatement Effective Date, and after giving effect to this
Restatement, the Borrower hereby (i) reaffirms, ratifies and confirms and admits
the validity and enforceability of the Existing Credit Agreement and the other
Credit Documents and all of its obligations thereunder, (ii) represents and
warrants that there exists no Default or Event of Default immediately after
giving effect to this Restatement, and (iii) represents and warrants that the
representations and warranties contained in the Credit Documents, including the
Existing Credit Agreement as amended and restated by this Restatement (other
than the representations and warranties made as of a specific date), are true
and correct in all material respects on and as of the date hereof.
Section 4.02 Representations and Warranties of the New Banks.
-----------------------------------------------
Each New Bank (i) confirms that it has received a copy of the Existing
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 this Restatement; (ii) agrees that it will, independently
and without reliance upon the Administrative 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 Existing Credit Agreement as amended and restated hereby; (iii) confirms
that it is an Eligible Transferee under Section 12.04(b) of the Existing Credit
Agreement as amended and restated hereby; and (iv) agrees that it will perform
in accordance with their terms all of the obligations which by the terms of the
Existing Credit Agreement as amended and restated hereby are required to be
performed by it as a "Bank" thereunder including, without limitation, if such
New Bank is not a United States person (as such term is defined in Section
7701(a)(30) of the Code) for U.S. Federal income tax purposes, complying with
the provisions of Section 4.04(b) thereof.
Article 5. Miscellaneous.
-------------
Section 5.01 Counterparts.
------------
This Restatement may be executed in any number of counterparts, each of
which shall be an original and all of which shall constitute one agreement. It
shall not be necessary in
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making proof of this Restatement to produce or account for more than one
counterpart signed by the party against which enforcement is sought.
Section 5.02 Return of Replaced Notes.
------------------------
Each Existing Bank that receives a new Note or Notes pursuant to
Section 3.01 hereof shall, promptly after the execution and delivery by the
Borrower of its new Note or Notes, mark the Note or Notes delivered to it in
connection with the Existing Credit Agreement "Replaced by substituted Note" and
return such Note or Notes to the Borrower.
Section 5.03 References in Credit Documents.
------------------------------
All references in and to the Existing Credit Agreement and in the other
Credit Documents to (i) the "Credit Agreement", and also, in the case of the
Existing Credit Agreement to "this Agreement", shall be deemed to refer to the
Existing Credit Agreement as amended and restated hereby, (ii) "Note" and/or
"Notes", shall be deemed to include all Notes executed hereunder, (iii) the
"Credit Documents", shall be deemed to include this Restatement and the Notes
executed hereunder, and (iv) the "Banks", shall be deemed to include the New
Banks.
Section 5.04 Ratification and Confirmation.
-----------------------------
Except as amended and restated hereby, the Existing Credit Agreement
and the other Credit Documents are hereby ratified and confirmed in all respects
and shall remain in full force and effect in accordance with their respective
terms.
Section 5.05 Governing Law; Jurisdiction and Venue.
-------------------------------------
(a) This Restatement and the rights and obligations of the parties
hereunder shall be construed in accordance with and be governed by the law of
the State of New York. Any legal action or proceeding against the Borrower with
respect to this Restatement may be brought in the courts of the State of New
York or of the United States for the Southern District of New York, and, by
execution and delivery of this Restatement, the Borrower hereby irrevocably
accepts for itself and in respect of its property, generally and
unconditionally, the jurisdiction of the aforesaid courts. The Borrower
irrevocably consents to the service of process out of any of the aforementioned
courts in any such action or proceeding by the mailing of copies thereof by
registered or certified mail, postage prepaid, to the Borrower at its address
set forth opposite its signature below, such service to become effective 30 days
after such mailing. Except as otherwise provided in Section 4.05 of the Existing
Credit Agreement, nothing herein shall affect the right of any Agent or any Bank
under the Agreement or this Restatement to serve process in any other manner
permitted by law or to commence legal proceedings or otherwise proceed against
the Borrower in any other jurisdiction.
(b) The Borrower hereby irrevocably waives any objection which it may
now or hereafter have to the laying of venue of any of the aforesaid actions or
proceedings arising out of or in connection with this Restatement brought in the
courts referred to in clause (a) above and hereby further irrevocably waives and
agrees not to plead or claim in any such court that any such action or
proceeding brought in any such court has been brought in an inconvenient forum.
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Section 5.06 Waiver of Trial by Jury.
-----------------------
Each of the parties hereto hereby irrevocably waives all right to trial
by jury in any action, proceeding or counterclaim (whether based on contract,
tort or otherwise) arising out of or relating to any of the Credit Documents or
the actions of any of the parties hereto in the negotiation, administration,
performance or enforcement thereof.
[Signature Pages to Follow]
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AMENDMENT AND RESTATEMENT
TO AND OF
AMENDED AND RESTATED CREDIT AGREEMENT
-------------------------------------
AS EVIDENCE of the agreement by the parties hereto to the terms and
conditions herein contained, each such party has caused this Restatement to be
executed on its behalf.
Address: AMBAC ASSURANCE CORPORATION
One State Street Plaza By /s/ ROBERT W. STARR
New York, New York 10004 --------------------------------------
Attn: Robert W. Starr Name: Robert W. Starr
Telecopy: (212) 208-3108 Title: Managing Director and Treasurer
With a copy to:
Kevin Doyle, Managing Director
and General Counsel
Telecopy: (212) 208-3550
THE BANK OF NEW YORK,
Address: as Administrative Agent and as Lender
One Wall Street By ______________________________________
New York, New York 10286 Name:_________________________________
Attn: Evan R. Glass Title:________________________________
Telecopy: (212) 809-9520
BANK OF AMERICA, N.A.,
Address: as Lender
231 South LaSalle Street By ______________________________________
Chicago, Illinois 60697 Name:_________________________________
Attn: Mehul Mehta Title:________________________________
Telecopy: 312-828-7448
DEUTSCHE BANK AG, NEW YORK BRANCH,
Address: as Lender
31 West 52nd Street By ______________________________________
New York, New York 10019 Name:_________________________________
Attn: John McGill Title:________________________________
Telecopy: (212) 469-8366
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AMENDMENT AND RESTATEMENT
TO AND OF
AMENDED AND RESTATED CREDIT AGREEMENT
-------------------------------------
LANDESBANK BADEN - WURTTEMBERG,
Address: as Lender
535 Madison Avenue By ______________________________________
New York, NY 10022-4212 Name:_________________________________
Attn: Robert O'Brien Title:________________________________
Telecopy: (212) 584-1709
By ______________________________________
Name:_________________________________
Title:________________________________
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK
NEDERLAND", NEW YORK BRANCH,
Address: as Lender
245 Park Avenue By ______________________________________
New York, NY 10167-0062 Name:_________________________________
Attn: Angela R. Reilly Title:________________________________
Telecopy: (212) 309-5139
BAYERISCHE LANDESBANK GIROZENTRALE,
Address: as Lender
560 Lexington Avenue By ______________________________________
New York, NY 10022 Name:_________________________________
Attn: Scott M. Allison Title:________________________________
Telecopy: (212) 310-9993
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AMENDMENT AND RESTATEMENT
TO AND OF
AMENDED AND RESTATED CREDIT AGREEMENT
-------------------------------------
WESTDEUTSCHE LANDESBANK GIROZENTRALE,
Address: as Lender
1211 Avenue of the Americas By ______________________________________
New York, NY 10036 Name:_________________________________
Attn: Lilian Tung Lum Title:________________________________
Telecopy: (212) 852-6156
By ______________________________________
Name:_________________________________
Title:________________________________
NORDDEUTSCHE LANDESBANK GIROZENTRALE,
Address: as Lender
1114 Avenue of the Americas By ______________________________________
New York, NY 10036 Name:_________________________________
Attn: Georg L. Peters Title:________________________________
Telecopy: (212) 812-6860
KBC BANK NV,
Address: as Lender
New York Branch By ______________________________________
125 West 55th Street Name:_________________________________
New York, NY 10019 Title:________________________________
Attn: Patrick J. Owens
Telecopy: (212) 956-5580
LANDESBANK HESSEN-THURINGEN GIROZENTRALE,
Address: as Lender
New York Branch By ______________________________________
420 Fifth Avenue Name:_________________________________
New York, NY 10018-2729 Title:________________________________
Attn: John A. Sarno
Telecopy: (212) 703-5256
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AMENDMENT AND RESTATEMENT
TO AND OF
AMENDED AND RESTATED CREDIT AGREEMENT
-------------------------------------
LLOYDS TSB,
Address: as Lender
575 Fifth Avenue By ______________________________________
17th Floor Name:_________________________________
New York, NY 10017 Title:________________________________
Attn: Thea Watkins
Telecopy: (212) 930-5098
By ______________________________________
Name:_________________________________
Title:________________________________
THE CHASE MANHATTAN BANK,
Address: as Lender
270 Park Avenue, 20th Floor By ______________________________________
New York, NY 10017 Name:_________________________________
Attn: Marybeth Mullen Title:________________________________
Telecopy: (212) 270-0670
BARCLAYS BANK PLC,
Address: as Lender
222 Broadway By ______________________________________
New York, NY 10038 Name:_________________________________
Attn: Richard H. Herder Title:________________________________
Telecopy: (212) 412-5610
CAJA MADRID,
Address: as Lender
Torre Caja Madrid By ______________________________________
Paseo de la Castellana, 189 Name:_________________________________
28046 Madrid, Spain Title:________________________________
Attn: Paul Barrabes
Telecopy: (3491) 423-95-93
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AMENDMENT AND RESTATEMENT
TO AND OF
AMENDED AND RESTATED CREDIT AGREEMENT
-------------------------------------
DGZ - DEKA BANK DEUTSCHE KOMMUNALBANK,
Address: as Lender
International Finance By _____________________________________
Taunusanlage 10 Name:_________________________________
Title:________________________________
60325 Frankfurt am Main
Germany
Attn: Stephan Wagner
Telecopy: (4969) 7147-2171
SWISS RE FINANCIAL PRODUCTS CORPORATION
Address: as Lender
55 East 52nd Street By ______________________________________
New York, New York 10055 Name:_________________________________
Attn: David Colarossi Title:________________________________
Telecopy: (212) 317-5050
By ______________________________________
Name:_________________________________
Title:________________________________
BANCO SANTANDER CENTRAL
HISPANO, S.A. NEW YORK BRANCH
Address: as Lender
45 East 53rd Street By ______________________________________
New York, New York 10022 Name:_________________________________
Attn: Victoria Moreno Title:________________________________
Telecopy: (212) 350-3690
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AMENDMENT AND RESTATEMENT
TO AND OF
AMENDED AND RESTATED CREDIT AGREEMENT
-------------------------------------
SCHEDULE I
PART A
Commitments
-----------
Municipal Structured
Tranche Tranche
Name Commitment Commitment
- ---- ------------ ------------
Landesbank Baden - Wurttemberg $ 75,000,000 -
The Bank of New York 20,000,000 $ 50,000,000
Cooperatieve Centrale Raiffeisen - 55,000,000 25,000,000
Boerenleenbank B.A., "Rabobank Nederland",
New York Branch
Bayerische Landesbank Girozentrale 45,000,000 30,000,000
Westdeutsche Landesbank Girozentrale 50,000,000 25,000,000
Deutsche Bank AG, New York Branch 75,000,000 -
Norddeutsche Landesbank Girozentrale 35,000,000 15,000,000
Bank of America, N.A 35,000,000 15,000,000
KBC Bank NV 34,000,000 -
Landesbank Hessen - Thueringen Girozentrale 35,000,000 -
Lloyds TSB 20,000,000 15,000,000
The Chase Manhattan Bank 26,000,000 -
Barclays Bank Plc 50,000,000 -
Caja Madrid 25,000,000 -
DGZ - Deka Bank Deutsche Kommunalbank 25,000,000 -
Banco Santander Central Hispano, S.A 15,000,000 5,000,000
New York Branch
------------ ------------
Total $620,000,000 $180,000,000
PART B
Part B Banks
------------
The Bank of New York
Westdeutsche Landesbank Girozentrale
Deutsche Bank AG, New York Branch
Norddeutsche Landesbank Girozentrale
Bank of America, N.A.
KBC Bank NV
Lloyds TSB
The Chase Manhattan Bank
Barclays Bank Plc
Caja Madrid
DGZ - Deka Bank Deutsche Konmunalbank
Banco Santander Central Hispano, S.A.
New York Branch
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