Execution Copy Exhibit 10.23
FIRST AMENDMENT TO CREDIT AGREEMENT
This FIRST AMENDMENT TO CREDIT AGREEMENT, dated as of August 3, 1999
(this "First Amendment"), among AMBAC FINANCIAL GROUP, INC. ("AMBAC Financial"),
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AMBAC ASSURANCE CORPORATION ("AMBAC Assurance"; together with AMBAC Financial,
the "Borrowers"), the various commercial lending institutions as are or may
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become parties thereto (collectively, the "Lenders"), CITIBANK, N.A.
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("Citibank"), as documentation agent (the "Documentation Agent"), THE FIRST
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NATIONAL BANK OF CHICAGO ("FNBC"), as co-agent (the "Co-Agent"), and THE BANK OF
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NOVA SCOTIA ("BNS"), acting through its New York Agency, as arranger and
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administrative agent (the "Administrative Agent") for the Lenders.
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W I T N E S S E T H:
WHEREAS, the Borrowers, the Lenders and the Agents are parties to that
certain Credit Agreement, dated as of August 3, 1998 (as amended, supplemented
or otherwise modified prior to the date hereof, the "Existing Credit
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Agreement");
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WHEREAS, the parties to the Existing Credit Agreement wish to amend
certain provisions of the Existing Credit Agreement in certain respects as set
forth below; and
WHEREAS, the Lenders have agreed, subject to the terms and conditions
hereinafter set forth, to amend such provisions of the Existing Credit Agreement
in certain respects as provided below (the Existing Credit Agreement, as so
amended by this First Amendment, being referred to as the "Credit Agreement");
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NOW, THEREFORE, in consideration of the agreements herein contained, the
parties hereto agree as follows:
PART I
DEFINITIONS
SUBPART I.1. Certain Definitions. The following terms (whether or not
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underscored) when used in this Amendment shall have the following meanings (such
meanings to be equally applicable to the singular and plural form thereof):
"Borrowers" is defined in the preamble.
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"Credit Agreement" is defined in the third recital.
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"Existing Credit Agreement" is defined in the first recital.
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"First Amendment" is defined in the preamble.
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"First Amendment Effective Date" is defined in Section 3.1.
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"Lenders" is defined in the preamble.
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SUBPART 1.2 Other Definitions. Terms for which meanings are provided in
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the Existing Credit Agreement are, unless otherwise defined herein or the
context otherwise requires, used in this First Amendment with such meanings.
PART II
AMENDMENTS TO THE
EXISTING CREDIT AGREEMENT
Effective on (and subject to the occurrence of) the First Amendment
Effective Date, the Existing Credit Agreement is hereby amended in accordance
with the terms of this Part II; except as so amended, the Existing Credit
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Agreement and all Exhibits and Schedules shall continue in full force and effect
and are in all respects hereby ratified and confirmed.
SUBPART II.1. (a) Section 1.1 of the Existing Credit Agreement is hereby
amended by inserting the following definitions in such Section in the
appropriate alphabetical sequence:
"First Amendment Effective Date" means August 3, 1999.
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"Utilization Fee" is defined in Section 3.3.3.
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"Utilization Fee Determination Date" is defined in Section 3.3.3.
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(b) The definition of "Loan Documents" in Section 1.1 of the Existing
Credit Agreement is hereby amended in its entirety to read as follows:
"Loan Documents" means this Agreement, the Notes, any other
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agreement designated as a "Loan Document" by the Borrowers and
the Required Lenders, and any amendments, waivers or supplements
from time to time to any of the foregoing.
(c) The definition of "Scheduled Commitment Termination Date" in Section
1.1 of the Existing Credit Agreement is hereby amended in its entirety to read
as follows:
""Scheduled Commitment Termination Date" means with respect to
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any Lender, (a) August 3, 2000, or (b) as it may be extended from
time to time in accordance with Section 2.7 with respect to such
Lender, the applicable Extension Date."
SUBPART 2.3. A new Section 3.3.3 shall be inserted at the end of Section
3.3.2 of the Existing Credit Agreement, which new Section shall read as follows:
"SECTION 3.3.3. Utilization Fee.
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The Borrowers agree to pay to the Administrative Agent for the
account of each Lender a non-refundable utilization fee (a "Utilization
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Fee") equal to a pro rata portion (based on the ratio of the aggregate
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principal amount of such Lender's outstanding Loans on the applicable
dates to the aggregate principal amount of outstanding Loans on the
applicable dates) of the sum of (a) .125% per annum on the aggregate
principal amount of outstanding Loans, for each day on which the
aggregate principal amount of outstanding Loans exceeds 25% of the
Commitment Amount and (b) if on any day the aggregate principal amount
of the outstanding Loans exceeds 75% of the Commitment Amount, .125% per
annum on the aggregate principal amount of outstanding Loans, for each
such day. The Utilization Fee due to each Lender shall be payable in
arrears on each Quarterly Payment Date, commencing with the initial
Quarterly Payment Date following the First Amendment Effective Date, and
on the later of the Scheduled Maturity Date and the date on which all
Loans are no longer outstanding (each such Quarterly Payment Date and
such later date being a "Utilization Fee Determination Date") if a
Utilization Fee is payable pursuant to the provisions of the immediately
preceding sentence for any day during the period from (i) the First
Amendment Effective Date (in the case of the initial Utilization Fee
Determination Date) or, thereafter, the Quarterly Payment Date next
preceding the relevant Utilization Fee Determination Date to (ii) such
relevant Utilization Fee Determination Date.
PART III
CONDITIONS TO EFFECTIVENESS
SUBPART III.1. First Amendment Effective Date. This First Amendment (and
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the amendments contained herein) shall become effective on August 3, 1999 (the
"First Amendment Effective Date"), provided that all of the conditions set forth
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in this Subpart 3.1 have been satisfied.
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SUBPART III.1.1. Execution of Counterparts. On or prior to the First
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Amendment Effective Date, the Administrative Agent shall have received
counterparts of this First
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Amendment, duly executed and delivered on behalf of the Borrowers all the
Lenders and the Agents.
SUBPART III.1.2. Delivery of Officer's Certificate. The Administrative
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Agent shall have received from each Borrower, on the First Amendment Effective
Date, a certificate, substantially in the form of Exhibit A hereof and dated as
of the Amendment Effective Date, of an Authorized Officer of such Borrower
certifying that both before and after giving effect to this First Amendment: (i)
the representations and warranties set forth in Article VI of the Existing
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Credit Agreement shall be true and correct as if then made (unless stated to
relate solely to an earlier date, in which case such representations and
warranties shall be true and correct as of such earlier date) and (ii) no
Default shall have then occurred and be continuing.
SUBPART III.1.3. Legal Details, etc. All documents executed or submitted
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pursuant hereto shall be satisfactory in form and substance to the
Administrative Agent and its counsel. The Administrative Agent and its counsel
shall have received all information and such counterpart originals or such
certified or other copies or such materials, as the Administrative Agent or its
counsel may reasonably request, and all legal matters incident to the
transactions contemplated by this First Amendment shall be satisfactory to the
Administrative Agent and its counsel.
PART IV
MISCELLANEOUS
SUBPART IV.1. Cross-References. References in this First Amendment to
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any Part or Subpart are, unless otherwise specified or otherwise required by the
context, to such Part or Subpart of this First Amendment.
SUBPART IV.2. Loan Document Pursuant to Existing Credit Agreement.
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This First Amendment is a Loan Document executed pursuant to the Existing Credit
Agreement and shall be construed, administered and applied in accordance with
all of the terms and provisions of the Existing Credit Agreement.
SUBPART IV.3. Representations and Warranties. The Borrower hereby
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represents and warrants that both before and after giving effect to this First
Amendment, the statements contained in Article VI of the Existing Credit
Agreement are true and correct.
SUBPART IV.4. Successors and Assigns. This First Amendment shall be
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binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
SUBPART IV.5. Counterparts. This First Amendment may be executed by
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the parties hereto in several counterparts, each of which when executed and
delivered shall be deemed to be an original and all of which shall constitute
together but one and the same agreement.
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SUBPART IV.6. Governing Law. THIS FIRST AMENDMENT SHALL BE GOVERNED BY
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AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to
be executed by their respective officers as of the day and year first above
written.
AMBAC FINANCIAL GROUP, INC.
By:________________________________
Name:
Title:
AMBAC ASSURANCE CORPORATION
By:________________________________
Name:
Title:
THE BANK OF NOVA SCOTIA, acting
through its New York Agency, as
Arranger and Administrative Agent
By:________________________________
Name:
Title:
CITIBANK, N.A., as Documentation
Agent
By:________________________________
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO
as Co-Agent
By:________________________________
Name:
Title:
THE BANK OF NOVA SCOTIA
By:________________________________
Name:
Title:
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CITIBANK, N.A.
By:________________________________
Name:
Title:
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THE FIRST NATIONAL BANK OF CHICAGO
By:________________________________
Name:
Title:
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EXHIBIT A to
First Amendment to
Credit Agreement
OFFICER'S CERTIFICATE
OF
[AMBAC FINANCIAL GROUP, INC.]
[AMBAC ASSURANCE CORPORATION]
This Officer's Certificate is delivered pursuant to Subpart 3.1.2 of
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that certain First Amendment to Credit Agreement, dated as of August 3,1999 (the
"First Amendment"), amending that certain Credit Agreement dated as of August 3,
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1998 (together with all amendments and other modifications, if any, from time to
time made thereto, the "Credit Agreement"), among AMBAC FINANCIAL GROUP, INC.,
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AMBAC ASSURANCE CORPORATION, the various commercial lending institutions as are
or may become parties thereto, CITIBANK, N.A. ("Citibank"), as Documentation
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Agent, FIRST NATIONAL BANK OF CHICAGO ("FNBC"), as co-agent and THE BANK OF NOVA
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SCOTIA, acting through its New York Agency, as arranger and Administrative
Agent. Unless otherwise defined herein, terms used herein have the meanings
provided therefor in , or as designated pursuant to, the First Amendment.
The Undersigned hereby certifies, represents and warrants on behalf of
[AMBAC Financial Group, Inc.] [AMBAC Assurance Corporation] (the "Borrower) as
follows:
Both before and after giving effect to the First Amendment, the
representations and warranties of the Borrower in the Existing Credit
Agreement are true and correct (unless stated to relate solely to an
earlier date, in which case such representations and warranties shall be
true and correct as of such earlier date) and no Default has occurred
and is continuing.
IN WITNESS WHEREOF, I have signed my name as of the 3rd day of August,
1999.
By: ___________________________
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