Exhibit 4.11
JANUARY 1998 AMENDMENT TO THE CREDIT AGREEMENT
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JANUARY 1998 AMENDMENT TO THE CREDIT AGREEMENT (this "Amendment"), dated as of
January 27, 1998, among Capital Reinsurance Company (the "Borrower"), various
banks (the "Banks") and Deutsche Bank AG, New York Branch, as agent (the
"Agent"). All capitalized terms defined in the hereinafter defined Credit
Agreement shall have the same meaning when used herein unless otherwise defined
herein.
W I T N E S S E T H:
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WHEREAS, the Borrower, the Banks and the Agent entered into a Credit
Agreement, dated as of January 27, 1994 (as amended to date, the "Credit
Agreement");
WHEREAS, the parties hereto wish to amend the Credit Agreement as herein
provided;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties hereto hereby agree as follows:
1. Amendments to the Credit Agreement. (a) The definition of "Loss Threshold
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Incurrence Date" in Section 1.01 of the Credit Agreement is hereby amended in
its entirety to the following:
"Loss Threshold Incurrence Date" shall mean the date on which the Borrower has
Cumulative Losses during the relevant Commitment Period equal to the greater
of (i) $210 million and (ii) 4.75% of the Average Annual Debt Service on the
Covered Portfolio as of such date.
(b) Section 1.01 of the Credit Agreement is hereby amended by addition of the
following terms in proper alphabetical order:
"Average Annual Debt Service" as of a specified date with respect to an
Insured Obligation shall mean the applicable Retained Percentage times the sum
of (i) the aggregate outstanding principal amount of such Insured Obligation
and (ii) the aggregate amount of interest thereafter required to be paid on
such Insured Obligation (giving effect to all mandatory sinking fund
payments or other regularly scheduled required redemptions, prepayments or
other retirement of principal), divided by the number of whole and fractional
years from the date of determination to the latest maturity date of such
Insured Obligation, and as of a specified date with respect to the Covered
Portfolio shall mean the sum of the Annual Average Debt Service as of such date
of all Insured Obligations contained in the Covered Portfolio. In the event
that an Insured Obligation bears interest at a variable rate, the interest
thereon for purposes of the determination of Average Annual Debt Service shall
be calculated at the rate employed by the Borrower to compute average annual
debt service with respect to such Insured Obligation in accordance with its
customary business practices.
"Retained Percentage" of an Insured Obligation shall mean the percentage of
risk assumed by the Borrower under Insurance Contracts with respect thereto
minus the percentage of aggregate risk with respect to such Insurance Contracts
that has been ceded by the Borrower to other Persons pursuant to a reinsurance
agreement (whether facultative or treaty) or a similar arrangement.
(c) The first sentence of Section 3.04 of the Credit Agreement is hereby
amended in its entirety to read as follows:
The expiration of the Commitments of the Banks shall be January 27, 2005 (the
"Expiry Date"); provided, however, that before (but not earlier than 120 days
nor later than 45 days before) each anniversary of the Effective Date, the
Borrower may make a written request (an "Extension Request") to the Agent at
its Notice Office and each of the Banks that the Expiry Date be extended by one
calendar year.
(d) The third sentence of Section 3.04 of the Credit Agreement is hereby
amended in its entirety to read as follows:
If, after the Agent's receipt of the Extension Request but prior to the
anniversary of the Effective Date next occurring thereafter, any Bank agrees to
the extension of the Expiry Date requested thereby in writing by so indicating
on counterparts of the Extension Request and delivering such counterparts to
the Agent and the Borrower, "Expiry Date" as to such Bank shall mean the
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January 27 occurring in the calendar year next succeeding the Expiry Date then
in effect, provided that (i) any failure by the Agent or a Bank to so notify
the Borrower shall be deemed to be a disapproval by such Bank of the Borrower's
Extension Request and (ii) the portion of the Commitment representing the
Commitment of any Bank not so agreeing shall terminate on the Expiry Date as
then in effect.
2. Representations and Warranties. In order to induce the Banks and the
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Agent to enter into this Amendment, the Borrower hereby represents and warrants
that:
(a) no Default or Event of Default exists or will exist as of the date hereof
and after giving effect to this Amendment; and
(b) as of the date hereof, after giving effect to this Amendment, all
representations, warranties and agreements of the Borrower contained in the
Credit Agreement will be true and correct in all material respects.
3. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
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PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE
LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CHOICE OF LAW PROVISIONS
THEREOF.
4. Agreement Not Otherwise Amended. This Amendment is limited precisely as
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written and shall not be deemed to be an amendment, consent, waiver or
modification of any other term or condition of the Credit Agreement or any of
the instruments or agreements referred to therein, or prejudice any right or
rights which the Banks, the Agent or any of them now have or may have in the
future under or in connection with the Credit Agreement or any of the
instruments or agreements referred to therein. Except as expressly modified
hereby, the terms and provisions of the Credit Agreement shall continue in full
force and effect. Whenever the Credit Agreement is referred to in the Credit
Agreement or any of the instruments, agreements or other documents or papers
executed and delivered in connection therewith, it shall be deemed to be a
reference to the Credit Agreement as modified hereby.
5. Counterparts. This Amendment may be executed in two or more counterparts,
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each of which shall be deemed an
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original, but all of which together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed and delivered by their respective duly authorized officers as of the
date first above written.
CAPITAL REINSURANCE COMPANY
By
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Title:
DEUTSCHE BANK AG, NEW YORK
BRANCH, Individually and as
Agent
By
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Title:
By
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Title:
Each of the participants named
below hereby acknowledges
and consents to the execution,
delivery and effectiveness
of this Amendment.
THE CHASE MANHATTAN BANK
By
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Title:
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KREDIETBANK, N.V.
By
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Title:
By
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Title:
WESTDEUTSCHE LANDESBANK GIROZENTRALE,
NEW YORK BRANCH
By
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Title:
By
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Title:
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