EXHIBIT 10.5
 


 


AMENDED AND RESTATED CREDIT AGREEMENT


among


FINANCIAL SECURITY ASSURANCE INC.,


THE ADDITIONAL BORROWERS FROM TIME TO TIME PARTY HERETO,


VARIOUS BANKS,


and


THE BANK OF NEW YORK, AS AGENT


_____________


Dated as of April 21, 2006


_____________


BNY CAPITAL MARKETS,
INC. and J.P. MORGAN SECURITIES, INC.,

AS JOINT LEAD ARRANGERS


 



   
 














 


 


TABLE OF
CONTENTS


	
  SECTION 1. DEFINITIONS
  AND PRINCIPLES OF CONSTRUCTION

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  1.01 Defined
  Terms

  	
   

  	
   

  
	
  1.02
  Principles of Construction

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 2.
  AMOUNT AND TERMS OF CREDIT

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  2.01 The Loans

  	
   

  	
   

  
	
  2.02 Minimum
  Amount of Each Borrowing

  	
   

  	
   

  
	
  2.03 Notice of
  Borrowing

  	
   

  	
   

  
	
  2.04
  Disbursement of Funds

  	
   

  	
   

  
	
  2.05 Notes

  	
   

  	
   

  
	
  2.06
  Conversions

  	
   

  	
   

  
	
  2.07 Pro Rata
  Borrowings

  	
   

  	
   

  
	
  2.08 Interest

  	
   

  	
   

  
	
  2.09 Interest
  Periods

  	
   

  	
   

  
	
  2.10 Increased
  Costs, Illegality, etc.

  	
   

  	
   

  
	
  2.11
  Compensation

  	
   

  	
   

  
	
  2.12 Change of
  Applicable Lending Office

  	
   

  	
   

  
	
  2.13 Addition
  of New Borrowers

  	
   

  	
   

  
	
  2.14 Removal
  of Borrowers

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 3.
  COMMISSIONS; FEES; REDUCTIONS OF COMMITMENT

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  3.01 Fees

  	
   

  	
   

  
	
  3.02 Voluntary
  Termination of Unutilized Total Commitment

  	
   

  	
   

  
	
  3.03 Mandatory
  Termination of Commitment

  	
   

  	
   

  
	
  3.04 Expiry Date

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 4.
  PREPAYMENTS; PAYMENTS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  4.01 Voluntary
  Prepayments

  	
   

  	
   

  
	
  4.02 Mandatory
  Prepayments

  	
   

  	
   

  
	
  4.03 Method
  and Place of Payment

  	
   

  	
   

  
	
  4.04 Net
  Payments

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 5.
  CONDITIONS PRECEDENT TO EFFECTIVENESS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  5.01 Execution
  of Agreement

  	
   

  	
   

  
	
  5.02 No
  Default; Representations and Warranties

  	
   

  	
   

  
	
  5.03 Opinions
  of Counsel

  	
   

  	
   

  
	
  5.04 Corporate
  Documents; Proceedings

  	
   

  	
   

  
	
  5.05 Adverse
  Change, Rating, etc.

  	
   

  	
   

  
	
  5.06
  Litigation

  	
   

  	
   

  
	
  5.07 Fees,
  etc.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 6.
  CONDITIONS PRECEDENT TO ALL CREDIT EVENTS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  6.01
  Effectiveness; No Default

  	
   

  	
   

  
	
  6.02 Notice of
  Borrowing

  	
   

  	
   

  
	
  6.03 Notes

  	
   

  	
   

  
	
  6.04 Insurance
  Policy

  	
   

  	
   

  



 



 i
 






 



 


	
  

  	
   

  	
   

  
	
  SECTION 7.
  REPRESENTATIONS, WARRANTIES AND AGREEMENTS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  7.01 Corporate
  Status

  	
   

  	
   

  
	
  7.02 Corporate
  Power and Authority

  	
   

  	
   

  
	
  7.03 No
  Violation

  	
   

  	
   

  
	
  7.04
  Governmental Approvals

  	
   

  	
   

  
	
  7.05 Financial
  Statements; Financial Condition; Undisclosed Liabilities; etc.

  	
   

  	
   

  
	
  7.06
  Litigation

  	
   

  	
   

  
	
  7.07 True and
  Complete Disclosure

  	
   

  	
   

  
	
  7.08 Use of
  Proceeds; Margin Regulations

  	
   

  	
   

  
	
  7.09 Tax
  Returns and Payments

  	
   

  	
   

  
	
  7.10
  Compliance with ERISA

  	
   

  	
   

  
	
  7.11
  Capitalization

  	
   

  	
   

  
	
  7.12
  Compliance with Statutes, etc.

  	
   

  	
   

  
	
  7.13
  Investment Company Act

  	
   

  	
   

  
	
  7.14 Public
  Utility Holding Company Act

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 8. AFFIRMATIVE COVENANTS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  8.01
  Information Covenants

  	
   

  	
   

  
	
  8.02 Books,
  Records and Inspections

  	
   

  	
   

  
	
  8.03 Corporate
  Franchises

  	
   

  	
   

  
	
  8.04
  Compliance with Statutes, etc.

  	
   

  	
   

  
	
  8.05 ERISA

  	
   

  	
   

  
	
  8.06 End of
  Fiscal Years; Fiscal Quarters

  	
   

  	
   

  
	
  8.07
  Performance of Obligations

  	
   

  	
   

  
	
  8.08 Payment
  of Taxes

  	
   

  	
   

  
	
  8.09 Business

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 9.
  NEGATIVE COVENANTS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  9.01
  Consolidation, Merger, Sale of Assets, etc.

  	
   

  	
   

  
	
  9.02 Dividends

  	
   

  	
   

  
	
  9.03 Interest
  Coverage Ratio

  	
   

  	
   

  
	
  9.04 Debt to
  Total Capitalization Ratio

  	
   

  	
   

  
	
  9.05 Liens

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 10.
  EVENTS OF DEFAULT

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  10.01 Payments

  	
   

  	
   

  
	
  10.02
  Representations, etc.

  	
   

  	
   

  
	
  10.03
  Covenants

  	
   

  	
   

  
	
  10.04
  Bankruptcy, etc.

  	
   

  	
   

  
	
  10.05 ERISA

  	
   

  	
   

  
	
  10.06
  Judgments

  	
   

  	
   

  
	
  10.07 Change
  of Control

  	
   

  	
   

  
	
  10.08 Default
  Under Other Agreements

  	
   

  	
   

  
	
  10.09 Rating

  	
   

  	
   

  
	
  10.10 Rating

  	
   

  	
   

  



 



 ii
 






 



 


	
  

  	
   

  	
   

  
	
  SECTION 11. THE AGENT

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  11.01
  Appointment

  	
   

  	
   

  
	
  11.02 Nature
  of Duties

  	
   

  	
   

  
	
  11.03 Lack of
  Reliance on the Agent

  	
   

  	
   

  
	
  11.04 Certain
  Rights of the Agent

  	
   

  	
   

  
	
  11.05 Reliance

  	
   

  	
   

  
	
  11.06
  Indemnification

  	
   

  	
   

  
	
  11.07 The
  Agent in Its Individual Capacity

  	
   

  	
   

  
	
  11.08 Holders

  	
   

  	
   

  
	
  11.09
  Resignation by the Agent

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 12.
  MISCELLANEOUS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  12.01 Payment
  of Expenses, etc.

  	
   

  	
   

  
	
  12.02 Right of
  Setoff

  	
   

  	
   

  
	
  12.03 Notices

  	
   

  	
   

  
	
  12.04 Benefit
  of Agreement

  	
   

  	
   

  
	
  12.05 No
  Waiver; Remedies Cumulative

  	
   

  	
   

  
	
  12.06 Calculations;
  Computations

  	
   

  	
   

  
	
  12.07
  Governing Law; Submission to Jurisdiction; Venue

  	
   

  	
   

  
	
  12.08 Obligation
  to Make Payments in Dollars

  	
   

  	
   

  
	
  12.09
  Counterparts

  	
   

  	
   

  
	
  12.10
  Effectiveness

  	
   

  	
   

  
	
  12.11 Table of
  Contents and Headings Descriptive

  	
   

  	
   

  
	
  12.12
  Amendment or Waiver

  	
   

  	
   

  
	
  12.13 Survival

  	
   

  	
   

  
	
  12.14
  Confidentiality

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SCHEDULE I

  	
  Borrowers

  	 

	
  SCHEDULE II

  	
  Commitments

  	 

	
  SCHEDULE III

  	
  Lending Offices

  	 

	
   

  	
   

  	 

	
  EXHIBIT A

  	
  Notice of Borrowing

  	 

	
  EXHIBIT B

  	
  Form of Revolving
  Note

  	 

	
  EXHIBIT C

  	
  Form of Opinion of
  Counsel to the Borrowers

  	 

	
  EXHIBIT D

  	
  Form of Officers’
  Certificate

  	 

	
  EXHIBIT E

  	
  Assignment and
  Assumption Agreement

  	 

	
  EXHIBIT F

  	
  Form of Insurance Policy

  	 




 


 



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AMENDED
AND RESTATED CREDIT AGREEMENT, dated as of April 21, 2006, among FINANCIAL
SECURITY ASSURANCE INC., a New York corporation (“FSA”), each of the insurance
company Affiliates of FSA listed on Schedule I attached hereto (each such
Affiliate and FSA, a “Borrower” and, collectively, the “Borrowers”), the Banks
party hereto from time to time and THE BANK OF NEW YORK, acting in the manner
and to the extent described in Section 11 (in such capacity, the “Agent”).


W I T N E S S E T H:


WHEREAS,
the Borrowers, certain of the Banks and the Agent are parties to a Credit
Agreement, dated as of August 31, 1998 (as amended to date, the “Original
Credit Agreement”); and


WHEREAS,
the parties hereto desire to amend and restate in its entirety the Original
Credit Agreement; and


WHEREAS,
as of the open of business on April 21, 2006, each of KBC Bank N.V. and
Norddeutsche Landesbank Girozentrale, New York and/or Cayman Islands Branch
(each, an “Exiting Bank”), shall cease to be a Bank under the Original Credit
Agreement and no Exiting Bank shall have any further obligation under the
Original Credit Agreement; each Exiting Bank shall, however, be entitled to
receive its Commitment Commission to, but excluding, April 21, 2006, and
any other amounts, if any, owing to it under the Original Credit Agreement,
including, without limitation, any indemnities to which it may be entitled
pursuant to Section 12.01 thereof, now or at any time in the future; and


WHEREAS,
subject to and upon the terms and conditions herein set forth, the Banks are
willing to make available to the Borrowers the credit facilities provided for
herein;


NOW,
THEREFORE, in consideration of the foregoing, the parties hereto hereby amend
and restate the Original Credit Agreement in its entirety as follows:


SECTION 1.           DEFINITIONS
AND PRINCIPLES OF CONSTRUCTION.


1.01         Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular
and plural forms of the terms defined):


“Additional
Borrower” shall have the meaning provided in Section 2.13.


“Additional
Borrower Request” shall have the meaning provided in Section 2.13.


“Affiliate”
shall mean, with respect to any Person, any other Person (other than an
individual) directly or indirectly controlling, controlled by, or under direct
or indirect common control with, such Person. A Person shall be deemed to
control another Person if such Person possesses, directly or indirectly, the
power to direct or cause the direction of the management and policies of such
other Person, whether through the ownership of voting securities, by contract
or otherwise.









 



“Agent”
shall have the meaning provided in the first paragraph of this Agreement and
shall include any successor to the Agent appointed pursuant to Section 11.09.


“Agreement”
shall mean this Amended and Restated Credit Agreement, as modified,
supplemented or amended from time to time.


“Applicable
Lending Office” shall mean, with respect to each Bank, (i) such Bank’s
Base Rate Lending Office in the case of a Base Rate Loan and (ii) such
Bank’s Eurodollar Lending Office in the case of a Eurodollar Rate Loan.


“Applicable
Margin” shall mean, from and after the first day of any Applicable Margin
Period to and including the last day of such Applicable Margin Period, a
percentage determined by reference to the following grid:




	
  

  	
  FSA Rating Level

  	
   

  	
  Applicable Margin

  	
   

  
	
   

  	
  1

  	
   

  	
  0.30%

  	
   

  
	
   

  	
  2

  	
   

  	
  0.35%

  	
   

  
	
   

  	
  3

  	
   

  	
  0.40%

  	
   

  
	
   

  	
  4

  	
   

  	
  0.50%

  	
   

  






 


“Applicable
Margin Period” shall mean each period which shall commence on the day that a
change in FSA Rating Level occurs to and including the day immediately prior to
the day on which the next change in FSA Rating Level occurs, provided that the
initial Applicable Margin Period shall commence on the Effective Date.


“Assignment
and Assumption Agreement” shall mean any Assignment and Assumption Agreement
substantially in the form of Exhibit E attached hereto entered into
pursuant to the terms hereof.


“Bank”
shall mean each financial institution listed on the signature pages hereto
and any institution which becomes a Bank hereunder pursuant to Section 12.04(b).


“Bankruptcy
Code” shall have the meaning provided in Section 10.04.


“Base
Rate” shall mean the higher of (i) 1/4 of 1% in excess of the Federal
Funds Rate and (ii) the Prime Lending Rate.


“Base
Rate Lending Office” shall mean, with respect to each Bank, the office of such
Bank specified as its “Base Rate Lending Office” opposite its name on Schedule
III attached hereto or such other office, Subsidiary or Affiliate of such Bank
as such Bank may from time to time specify as such to FSA and the Agent.


“Base
Rate Loan” shall mean any Loan designated or deemed designated as such by the
relevant Borrower at the time of the incurrence thereof or conversion thereto.


“Borrower”
shall have the meaning provided in the first paragraph of this Agreement.



 2
 






 



“Borrowing”
shall mean the borrowing of Loans of one Type from all the Banks on a given
date (or the conversion of a Loan or Loans of a Bank or Banks on a given date).


“Business
Day” shall mean (i) for all purposes other than as covered by clause (ii) below,
any day except Saturday, Sunday and any day which shall be in New York City a
legal holiday or a day on which banking institutions are authorized or required
by law or other government action to close and (ii) with respect to all
notices and determinations in connection with, and payments of principal and
interest on, Eurodollar Rate Loans, any day which is a Business Day described
in clause (i) above and which is also a day for trading by and between
banks in the London interbank Eurodollar market.


“Capital
Expenditures” shall mean, with respect to any Person, all expenditures by such
Person which should be capitalized in accordance with generally accepted
accounting principles, including all such expenditures with respect to fixed or
capital assets (including, without limitation, expenditures for maintenance and
repairs which should be capitalized in accordance with generally accepted
accounting principles) and the amount of Capitalized Lease Obligations incurred
by such Person.


“Capitalized
Lease Obligations” of any Person shall mean all rental obligations which, under
generally accepted accounting principles, are or will be required to be
capitalized on the books of such Person, in each case taken at the amount
thereof accounted for as indebtedness in accordance with such principles.


“Change
of Control” shall mean and include the occurrence of any of the following
events:  (i) any Person, entity or “group”
(within the meaning of Sections 13(d) or 14(d) of the Securities
Exchange Act of 1934) other than Dexia S.A. or Dexia Credit Local S.A.,
individually or taken as a whole, (a) shall have acquired beneficial
ownership of 50% or more of any outstanding class of capital stock of FSA
having ordinary voting power in the election of directors or (b) shall
have obtained the power (whether or not exercised) to elect the majority of the
Board of Directors of FSA or (ii) the Board of Directors of FSA shall not
consist of the majority of Continuing Directors.


“Code”
shall mean the Internal Revenue Code of 1986, as amended from time to time, and
the regulations promulgated and rulings issued thereunder. Section references
to the Code are to the Code, as in effect at the date of this Agreement and any
subsequent provisions of the Code, amendatory thereof, supplemental thereto or
substituted therefor.


“Commitment”
shall mean, for each Bank, the amount set forth opposite such Bank’s name in
Schedule II attached hereto directly below the column entitled “Commitment”, as
the same may be (i) reduced from time to time pursuant to
Sections 3.02, 3.03 and/or 10, and (ii) adjusted from time to time as
a result of assignment to or from such Bank pursuant to Section 12.04.


“Commitment
Commission” shall have the meaning provided in Section 3.01(a).


“Commitment
Commission Percentage” shall have the meaning provided in Section 3.01(a).



 3
 






 



“Consolidated
Long Term Debt” shall mean the total Indebtedness of FSA and its Consolidated
Subsidiaries having a maturity of one year or more from the date of its
creation, and shown or reflected as “long-term indebtedness” on the
consolidated balance sheet of FSA as of the most recent fiscal quarter end
immediately preceding the date of determination for which consolidated financial
statements of FSA have been issued, and determined in accordance with generally
accepted accounting principles, plus, without duplication, the total principal
amount of the Loans outstanding as of such fiscal quarter end (regardless of
the date of maturity thereof).


“Consolidated
Net Interest Expense” shall mean, for any period, the total consolidated
interest expense of FSA and its Consolidated Subsidiaries for such period
(determined in accordance with generally accepted accounting principles and shown
or reflected on FSA’s consolidated financial statements prepared with respect
to such period) including, without duplication, that portion of Capitalized
Lease Obligations of FSA and its Consolidated Subsidiaries representing the
interest factor for such period.


“Consolidated
Net Worth” shall mean the total consolidated stockholders’ equity of FSA and
its Consolidated Subsidiaries plus amounts classified as “Preferred Stock of
Subsidiary,” or minority interest, as shown or reflected on the consolidated
balance sheet of FSA as of the most recent fiscal quarter end immediately
preceding the date of determination for which consolidated financial statements
of FSA have been issued, and determined in accordance with generally accepted
accounting principles.


“Consolidated
Pretax Income” shall mean, for any period, the consolidated income of FSA and
its Consolidated Subsidiaries before provision for income taxes, as shown on
the consolidated financial statements of FSA and determined in accordance with
generally accepted accounting principles.


“Consolidated
Subsidiaries” shall mean, as to any Person, all Subsidiaries of such Person
which are consolidated with such Person for financial reporting purposes in
accordance with generally accepted accounting principles in the United States.


“Contingent
Obligation” shall mean, as to any Person, any payment obligation of such Person
guaranteeing or intended to guarantee any Indebtedness, leases or other
obligations (“primary obligations”) of any other Person other than a
Consolidated Subsidiary (the “primary obligor”) in any manner, whether directly
or indirectly, including, without limitation and without duplication, any
obligation of such Person, whether or not contingent, (i) to purchase any
such primary obligation or any property constituting direct or indirect
security therefor, (ii) to advance or supply funds (a) for the
purchase or payment of any such primary obligation or (b) to maintain
working capital or equity capital of the primary obligor or otherwise to maintain
the net worth or solvency of the primary obligor, (iii) to purchase
property, securities or services primarily for the purpose of assuring the
holder of any such primary obligation of the ability of the primary obligor to
make payment of such primary obligation or (iv) otherwise to assure or
hold harmless the holder of such primary obligation against loss in respect
thereof; provided, however, that the term Contingent Obligation shall not
include (1) endorsements of instruments for deposit or collection in the
ordinary course of business or (2) obligations under or created by or in
connection with insurance contracts entered into in the ordinary course of
business by a Person which is an insurance company. The amount of any
Contingent Obligation shall be deemed to 



 4
 






 



be an amount equal to the stated or determinable
amount of the primary obligation in respect of which such Contingent Obligation
is made or, if not stated or determinable, the maximum reasonably anticipated
liability in respect thereof (assuming such Person is required to perform
thereunder) as determined by such Person in good faith.


“Continuing
Directors” shall mean the directors of a Person on the Effective Date and each
other director, if such other director’s nomination for election to the Board
of Directors of such Person is supported by a majority of the then Continuing
Directors.


“Credit
Documents” shall mean the Credit Agreement, each Note and each Insurance
Policy.


“Credit
Event” shall mean the making of any Loan.


“Default”
shall mean any event, act or condition which with notice or lapse of time, or
both, would constitute an Event of Default.


“Designee”
shall mean a Person, other than FSA or an insurance company Affiliate of FSA,
designated in a Notice of Borrowing with respect to any Loan to be the borrower
with respect thereto, which Person shall be, and shall be stated in such notice
to be, an obligor under, or trustee, custodian or collateral agent in respect
of, obligations for which FSA or another Borrower has issued an insurance policy.


“Dollars”
and the sign “$” shall each mean freely transferable lawful money of the United
States.


“Effective
Date” shall mean April 21, 2006.


“Eligible
Transferee” shall mean and include a commercial bank, financial institution or
other “accredited investor” (as defined in Regulation D of the Securities Act
of 1933, as amended, and the rules and regulations promulgated
thereunder).


“ERISA”
shall mean the Employee Retirement Income Security Act of 1974, as amended from
time to time, and the regulations promulgated and rulings issued thereunder.
Section references to ERISA are to ERISA, as in effect at the date of this
Agreement, and to any subsequent provisions of ERISA, amendatory thereof,
supplemental thereto or substituted therefor.


“ERISA
Affiliate” shall mean any person (as defined in Section 3(9) of
ERISA) which together with FSA or any of its Subsidiaries would be deemed to be
a “single employer” within the meaning of Section 414(b), (c), (m) or
(o) of the Code.


“Eurodollar
Lending Office” shall mean, with respect to each Bank, the office of such Bank
specified as its “Eurodollar Lending Office” opposite its name on Schedule III
or such other office, Subsidiary or Affiliate of such Bank as such Bank may
from time to time specify as such to FSA and the Agent.



 5
 






 



“Eurodollar
Rate” shall mean, with respect to each Interest Period for a Eurodollar Rate
Loan, (i) the rate of interest per annum determined by the Agent as the
rate of interest at which Dollar deposits for such Interest Period are quoted
on Telerate Page 3750 as of 11:00 A.M. (London time) on the date
which is two Business Days prior to the commencement of such Interest Period,
divided (and rounded upward to the next whole multiple of 1/16 of 1%) by the
Eurodollar Reserve Percentage or (ii) if Telerate Page 3750 is for
any reason not available, the average of the offered quotation to first-class
banks in the London interbank Eurodollar market by each of the Reference Banks
for Dollar deposits of amounts comparable to the outstanding principal amount
of the Eurodollar Rate Loan of such Reference Bank for which an interest rate
is then being determined with maturities comparable to such Interest Period,
determined as of 11:00 A.M. (London time) on the date which is two
Business Days prior to the commencement of such Interest Period, divided (and
rounded upward to the next whole multiple of 1/16 of 1%) by the Eurodollar
Reserve Percentage.


“Eurodollar
Rate Loan” shall mean any Loan designated or deemed designated as such by a
Borrower at the time of the incurrence thereof or conversion thereto.


“Eurodollar
Reserve Percentage” shall mean a percentage equal to 100% minus the then stated
maximum rate of all reserve requirements (including, without limitation, any
marginal, emergency, supplemental, special or other reserves) applicable to any
member bank of the Federal Reserve System in respect of Eurocurrency
liabilities as defined in Regulation D.


“Event
of Default” shall have the meaning provided in Section 10.


“Exiting
Bank” shall have the meaning provided in the third recital of this Agreement.


“Expiry
Date” shall mean the Revolving Loan Expiry Date.


“Extension
Request” shall have the meaning set forth in Section 3.04.


“Federal
Funds Rate” shall mean, for any period, a fluctuating interest rate equal for
each day during such period to the weighted average of the rates on overnight
Federal Funds transactions with members of the Federal Reserve System arranged
by Federal Funds brokers, as published for such day (or, if such day is not a
Business Day, for the next preceding Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations for such day on such transactions
received by the Agent from three Federal Funds brokers of recognized standing
selected by the Agent.


“Fees”
shall mean all amounts payable pursuant to or referred to in Section 3.01.


“FSA”
shall have the meaning provided in the first paragraph of this Agreement.


“FSA
Rating Level” shall be determined by reference to the Rating given to FSA at
the time of any determination thereof by Moody’s and S&P, provided,
however, if such Ratings are different by one Rating level, the FSA Rating
Level will be determined by reference to the higher Rating, and if such Ratings
are different by more than one Rating level, the FSA Rating Level will be
determined by reference to one Rating level below the higher Rating.



 6
 






 



“FSA
Rating Level 1” shall mean that, as of the date of any determination thereof,
the Rating of FSA is Aaa by Moody’s and AAA by S&P.


“FSA
Rating Level 2” shall mean that, as of the date of any determination thereof,
the Rating of FSA is Aa1 by Moody’s and AA+ by S&P.


“FSA
Rating Level 3” shall mean that, as of the date of any determination thereof, the
Rating of FSA is Aa2 by Moody’s and AA by S&P.


“FSA
Rating Level 4” shall mean that, as of the date of any determination thereof,
the Rating of FSA is below Aa2 by Moody’s and below AA by S&P.


“Hedging
Agreement” shall mean any financial futures contracts, agreement to purchase
and sell (or write) exchange listed or over-the-counter put and call options on
securities, fixed income indices, foreign exchange contracts, currency swap
agreements, mortgage swap agreements, agreements to purchase securities on a
when issued or delayed delivery basis, short sales of U.S. governmental
securities and financial futures contracts reasonably established by a Person
to have been entered into for hedging, duration management and/or risk
management purposes.


“Indebtedness”
shall mean, as to any Person, without duplication, (i) all indebtedness
(including principal, interest, fees and charges) of such Person for borrowed
money or for the deferred purchase price of property or services, (ii) the
amount available to be drawn under all letters of credit issued for the account
of such Person and all drafts drawn and unreimbursed thereunder, (iii) all
indebtedness secured by any Lien on any property owned by such Person, whether
or not such indebtedness has been assumed by such Person, (iv) the
aggregate amount required to be capitalized under leases under which such
Person is the lessee and (v) all Contingent Obligations of such Person,
provided that, the term Indebtedness shall not include (a) any
indebtedness arising from investment activities in the ordinary course of
business that is not required to be classified as indebtedness on such Person’s
balance sheet in accordance with generally accepted accounting principles, (b) intercompany
indebtedness and (c) indebtedness constituting the purchase price of goods
used in the ordinary course of business.


“Initial
Borrowing Date” shall mean the date on which the initial Borrowing with respect
to a particular Borrower or Designee occurs.


“Insurance
Policy” shall mean a policy of insurance issued by FSA (or, with the prior
written consent of the Required Banks, another Borrower) to the Agent on behalf
of the Banks insuring the Loans made to a particular Designee substantially in
the form of Exhibit F attached hereto.


“Interest
Determination Date” shall mean, with respect to any Eurodollar Rate Loan, the
second Business Day prior to the commencement of any Interest Period relating
to such Eurodollar Rate Loan.


“Interest
Period” shall have the meaning provided in Section 2.09.



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“Lien”
shall mean any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), preference, priority or
other security agreement of any kind or nature whatsoever (including, without
limitation, any conditional sale or other title retention agreement, any
financing or similar statement or notice filed under the Uniform Commercial
Code of any jurisdiction or any other similar recording or notice statute, and
any lease having substantially the same effect as any of the foregoing), but
shall expressly exclude any Hedging Agreement or Repurchase Agreement.


“Loan”
shall mean any Revolving Loan.


“Margin
Stock” shall have the meaning provided in Regulations T, U and X of the Board
of Governors of the Federal Reserve System.


“Moody’s”
shall mean Moody’s Investors Service, Inc.


“Note”
shall mean any Revolving Note.


“Notice
of Borrowing” shall have the meaning provided in Section 2.03.


“Notice
of Conversion” shall have the meaning provided in Section 2.06.


“Notice
Office” shall mean the office of the Agent located at 1 Wall Street, New York,
New York 10286, Attention:  Ms. Susan
Baratta and Mr. Geoffrey Brooks, or such other office as the Agent may
hereafter designate in writing as such to the other parties hereto.


“Obligations”
shall mean all amounts owing to the Agent or any Bank pursuant to the terms of
this Agreement or any other Credit Document.


“Original
Credit Agreement” shall have the meaning provided in the first recital of this
Agreement.


“Payment
Office” shall mean the office of the Agent located at 1 Wall Street, New York,
New York 10286, or such other office as the Agent may hereafter designate in
writing as such to the other parties hereto.


“PBGC”
shall mean the Pension Benefit Guaranty Corporation established pursuant to Section 4002
of ERISA or any successor thereto.


“Person”
shall mean any individual, partnership, joint venture, firm, corporation,
limited liability company, association, trust or other enterprise or any
government or political subdivision or any agency, department or
instrumentality thereof.


“Plan”
shall mean any multiemployer plan or single-employer plan as defined in Section 4001
of ERISA, which is maintained or contributed to by (or to which there is an
obligation to contribute of), or at any time during the five calendar years
preceding the date of this Agreement was maintained or contributed to by (or to
which there was an obligation to contribute of), FSA, a Subsidiary of FSA or an
ERISA Affiliate.



 8
 






 



“Prime
Lending Rate” shall mean the rate which The Bank of New York announces from
time to time as its prime lending rate, the Prime Lending Rate to change when
and as such prime lending rate changes. The Prime Lending Rate is a reference
rate and does not necessarily represent the lowest or best rate actually
charged to any customer. The Bank of New York may make commercial loans or
other loans at rates of interest at, above or below the Prime Lending Rate.


“Rating”
shall mean a Person’s claims-paying ability, insured financial strength or
insurer financial strength rating.


“Reference
Banks” shall mean The Bank of New York, KeyBank National Association and
JPMorgan Chase Bank, N.A.


“Regulation
D” shall mean Regulation D of the Board of Governors of the Federal Reserve
System as from time to time in effect and any successor to all or a portion
thereof establishing reserve requirements.


“Reportable
Event” shall mean an event described in Section 4043(c) of ERISA with
respect to a Plan as to which the 30-day notice requirement has not been
waived by the PBGC.


“Repurchase
Agreement” shall mean any agreement to purchase an asset presently and to sell
such asset to a third party in the future or any agreement to sell an asset
presently and to repurchase such asset from a third party in the future.


“Required
Banks” shall mean, at any time, the Banks owed greater than 50% of the then
aggregate unpaid principal amount of the Loans outstanding at such time or, if
no Loans are then outstanding, Banks holding greater than 50% of the Total
Commitment.


“Revolving
Loans” shall have the meaning set forth in Section 2.01.


“Revolving
Loan Expiry Date” shall have the meaning set forth in Section 3.04.


“Revolving
Note” shall have the meaning provided in Section 2.05(a).


“SEC”
shall have the meaning provided in Section 8.01(f).


“Subsidiary”
shall mean, as to any Person, (i) any corporation more than 50% of whose
stock of any class or classes having by the terms thereof ordinary voting power
to elect a majority of the directors of such corporation (irrespective of
whether or not at the time stock of any class or classes of such corporation
shall have or might have voting power by reason of the happening of any
contingency) is at the time owned by such Person and/or one or more
Subsidiaries of such Person and (ii) any partnership, association, joint
venture or other entity in which such Person and/or one or more Subsidiaries of
such Person has more than a 50% equity interest and the ability to direct such
partnership, association, joint venture or other entity at the time; provided, however,
that for purposes of this Agreement, “Subsidiaries of FSA” shall only include
insurance company Subsidiaries of FSA.


“S&P”
shall mean Standard & Poor’s Ratings Services.



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“Taxes”
shall have the meaning provided in Section 4.04(a).


“Telerate
Page 3750” shall mean the display designated as “Page 3750” on the
Telerate Service (or other page as may replace Page 3750 on that
service or such other service as may be nominated by the British Bankers’
Association as the information vendor for the purpose of displaying British
Bankers’ Association Interest Settlement Rates for U.S. Dollar deposits).


“Total
Capitalization” means Consolidated Net Worth plus Consolidated Long Term Debt.


“Total
Commitment” shall mean, at any time, the sum of the Commitments of each of the
Banks.


“Type”
shall mean any type of Loan determined with respect to the interest option
applicable thereto, i.e., a Base Rate Loan or a Eurodollar Rate Loan.


“Unfunded
Current Liability” of any Plan means the amount, if any, by which the present value
of the accrued benefits under the Plan as of the close of its most recent plan
year, determined in accordance with Statement of Financial Accounting Standards
No. 35, based upon the actuarial assumptions used by the Plan’s actuary in
the most recent annual valuation of the Plan, exceeds the fair market value of
the assets allocable thereto, determined in accordance with Section 412 of
the Code.


“United
States” and “U.S.” shall each mean the United States of America.


“Unutilized
Commitment” shall mean, for any Bank, at any time, the Commitment of such Bank
at such time less the aggregate principal amount of all Loans made by such Bank
and then outstanding.


“Unutilized
Total Commitment” shall mean the sum of the Unutilized Commitments of each of
the Banks.


“Utilization
Commission” shall have the meaning provided in Section 3.01(b).


“Wholly-Owned
Subsidiary” shall mean, as to any Person, (i) any corporation 100% of
whose capital stock is at the time owned by such Person and/or one or more
Wholly-Owned Subsidiaries of such Person and (ii) any partnership,
association, joint venture or other entity in which such Person and/or one or
more Wholly-Owned Subsidiaries of such Person has a 100% equity interest and
the ability to direct such partnership, association, joint venture or other
entity at such time.


1.02         Principles of Construction. (a) All
references to sections, schedules and exhibits are to sections, schedules and
exhibits in or to this Agreement unless otherwise specified. The
words “hereof,” “herein” and “hereunder” and words of similar import when used
in this Agreement shall refer to this Agreement as a whole and not to any
particular provision of this Agreement.


 



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(b)           All accounting terms
not specifically defined herein shall be construed in accordance with generally
accepted accounting principles in the United States in conformity with those
used in the preparation of the financial statements referred to in Section 7.05(a).


SECTION 2.           AMOUNT
AND TERMS OF CREDIT.


2.01         The Loans. Subject to and upon the terms and
conditions set forth herein, each Bank severally agrees, at any time and from
time to time prior to, but excluding, the Revolving
Loan Expiry Date, to, upon request of a Borrower (provided such Borrower is FSA
or a Subsidiary of FSA at the time), make loans (any such loan made by any Bank
a “Revolving Loan” and such loans made by any Bank or by all the Banks, as the
context requires, the “Revolving Loans”) to such Borrower or its Designee,
which Loans (i) shall, at the option of such Borrower, be Base Rate Loans
or Eurodollar Rate Loans, provided that, except as otherwise specifically
provided in Section 2.10(b), all Loans comprising the same Borrowing shall
at all times be of the same Type and (ii) may be prepaid and reborrowed in
accordance with the provisions hereof; provided, however, that the aggregate
principal amount of Loans outstanding from any Bank shall at no time exceed the
Commitment of such Bank at such time. More than one Borrowing may occur on the
same date, but Eurodollar Rate Loans comprising more than three Borrowings to
any one Borrower shall not be outstanding under this Agreement at any time,
provided that Eurodollar Rate Loans resulting from a conversion pursuant to Section 2.10(b) shall
not be deemed to be a Borrowing for this purpose.


2.02         Minimum Amount of Each Borrowing. The
aggregate principal amount of each Borrowing hereunder shall be not less than
$1,000,000, except as required by Section 2.10(b).


2.03         Notice of Borrowing. Whenever a Borrower
desires to make or arrange for a Borrowing of Revolving Loans hereunder, it
shall give the Agent at its Notice
Office at least one Business Day’s prior notice of each Base Rate Loan and at
least three Business Days’ prior notice of each Eurodollar Rate Loan to be made
hereunder, provided that any such notice shall be deemed to have been given on
a certain day only if given before 11:00 A.M. (New York time) on such day.
Each such notice (each a “Notice of Borrowing”) shall be in the form of Exhibit A
attached hereto, appropriately completed to specify the aggregate principal
amount of the Loans to be made pursuant to such Borrowing, the date of such
Borrowing (which shall be a Business Day), whether the Revolving Loans being
made pursuant to such Borrowing are to be maintained initially as Base Rate
Loans or Eurodollar Rate Loans, if Eurodollar Rate Loans, the initial Interest
Period to be applicable thereto and, if such Loan is to be made to a Designee,
the name and address of such Designee and the relationship of such Designee to
FSA. The Agent shall promptly give each Bank notice of such proposed Borrowing,
of such Bank’s proportionate share thereof and of the other matters required by
the immediately preceding sentence to be specified in the Notice of Borrowing.


2.04         Disbursement of Funds. Except as otherwise
specifically provided in the immediately succeeding sentence, no later than
12:00 Noon (New York time) on the
date specified in each Notice of Borrowing, each Bank will make available,
through such Bank’s Applicable Lending Office, its pro  rata
portion of each Borrowing requested to be made on such date, in Dollars and in
immediately available funds at the Payment Office of the Agent, and the Agent
will make available to the relevant Borrower or Designee at its Payment Office
the 



 11
 






 



 


aggregate of the amounts so made available by the
Banks. Unless the Agent shall have been notified by any Bank prior to the date
of Borrowing that such Bank does not intend to make available to the Agent such
Bank’s portion of any Borrowing to be made on such date, the Agent may assume
that such Bank has made such amount available to the Agent on such date of
Borrowing and the Agent may, in reliance upon such assumption, make available
to the relevant Borrower or Designee a corresponding amount. If such
corresponding amount is not in fact made available to the Agent by such Bank,
the Agent shall be entitled to recover such corresponding amount from such Bank
on demand. If such Bank does not pay such corresponding amount forthwith upon
the Agent’s demand therefor, the Agent shall promptly notify the relevant
Borrower or Designee and such Borrower or Designee shall immediately pay such
corresponding amount to the Agent. The Agent shall also be entitled to recover
on demand from such Bank or such Borrower or Designee, as the case may be,
interest on such corresponding amount in respect of each day from the date such
corresponding amount was made available by the Agent to such Borrower until the
date such corresponding amount is recovered by the Agent, at a rate per annum
equal to (i) if recovered from such Bank, the cost to the Agent of
acquiring overnight Federal funds and (ii) if recovered from such
Borrower, the then applicable rate for Base Rate Loans or Eurodollar Rate
Loans, as the case may be. Nothing in this Section 2.04 shall be deemed to
relieve any Bank from its obligation to make Loans hereunder or to prejudice
any rights which any Borrower may have against any Bank as a result of any
failure by such Bank to make Loans hereunder.


2.05         Notes. (a)  Each Borrower’s or Designee’s
obligation to pay the principal of, and interest on, the Loans made by each
Bank shall be evidenced by a promissory
note duly executed and delivered by such Borrower or its Designee,
substantially in the form of Exhibit B attached hereto, with blanks
appropriately completed in conformity herewith (each, a “Revolving Note” and,
collectively, the “Revolving Notes”).


(b)           The Revolving Notes
issued to each Bank shall (i) be executed by the relevant Borrower or its
Designee, (ii) be payable to the order of the relevant Bank and be dated
the relevant Initial Borrowing Date, (iii) be in a stated principal amount
equal to the Commitment of the relevant Bank and be payable in the principal
amount of the Revolving Loans evidenced thereby, (iv) mature on the
Revolving Loan Expiry Date, (v) bear interest as provided in the
appropriate clause of Section 2.08 in respect of the Base Rate Loans and
Eurodollar Rate Loans, as the case may be, evidenced thereby, (vi) be
subject to mandatory repayment as provided in Section 4.02 and (vii) be
entitled to the benefits of this Agreement and the other Credit Documents.


(c)           Each Bank will note
on its internal records the amount of each Loan made by it and each payment in
respect thereof and will prior to any transfer of any of its Notes endorse on
the reverse side thereof the outstanding principal amount of Loans evidenced
thereby. Failure to make any such notation shall not affect any Borrower’s or
Designee’s obligations in respect of such Loans.


2.06         Conversions. Each Borrower shall have the
option to convert on any Business Day all or a portion equal to $1,000,000 of
the outstanding principal amount
of the Loans made to it or its Designee pursuant to one or more Borrowings of
one or more Types of Loan into a Borrowing of another Type of Loan, provided
that (i) except as otherwise provided in 



 12
 






 



 


Section 2.10(b), Eurodollar Rate Loans may be
converted into Loans of another Type only on the last day of an Interest Period
applicable to the Loans being converted and no such partial conversion of
Eurodollar Rate Loans shall reduce the outstanding principal amount of
Eurodollar Rate Loans made pursuant to a single Borrowing to less than
$1,000,000, (ii) Base Rate Loans may only be converted into Eurodollar
Rate Loans if no Default or Event of Default is in existence on the date of the
conversion and (iii) no conversion pursuant to this Section 2.06
shall result in a greater number of Borrowings than is permitted under Section 2.01.
Each such conversion shall be effected by the relevant Borrower giving the
Agent at its Notice Office prior to 11:00 A.M. (New York time) at least
three Business Days’ prior notice (each a “Notice of Conversion”) specifying
the Loans to be so converted and, if to be converted into Eurodollar Rate
Loans, the Interest Period to be initially applicable thereto. The Agent shall
give each Bank prompt notice of any such proposed conversion affecting any of
its Loans. Upon any such conversion the proceeds thereof will be applied
directly on the day of such conversion to prepay the outstanding principal
amount of the Loans being converted.


2.07         Pro Rata Borrowings. All Borrowings of Loans
under this Agreement shall be incurred from the Banks pro rata on the basis of
their Commitments. It is understood
that no Bank shall be responsible for any default by any other Bank of its
obligation to make Loans hereunder and that each Bank shall be obligated to
make the Loans provided to be made by it hereunder regardless of the failure of
any other Bank to make its Loans hereunder.


2.08         Interest. (a)  Each Borrower agrees to
pay (or, with respect to Loans made to its Designee, insure the payment of)
interest in respect of the unpaid principal amount of each
Base Rate Loan of such Borrower or Designee from the date the proceeds thereof
are made available to such Borrower or Designee until the maturity thereof
(whether by acceleration or otherwise) at a rate per annum which shall be the
Base Rate in effect from time to time.


(b)           Each Borrower agrees
to pay (or, with respect to Loans made to its Designee, insure the payment of)
interest in respect of the unpaid principal amount of each Eurodollar Rate Loan
of such Borrower or Designee from the date the proceeds thereof are made
available to such Borrower or Designee until the maturity thereof (whether by
acceleration or otherwise) at a rate per annum which shall be the Eurodollar
Rate (adjusted for maximum reserves) as determined by the Agent for the
respective Interest Period plus the Applicable Margin.


(c)           Overdue principal
and, to the extent permitted by law, overdue interest in respect of each Loan
of a Borrower or a Designee and any other overdue amount payable by such
Borrower or Designee hereunder shall bear interest at a rate per annum equal to
2% per annum in excess of the Base Rate in effect from time to time; provided,
however, that, to the extent permitted by law, no Loan shall bear interest
after maturity at a rate per annum less than 2% in excess of the rate of
interest applicable thereto at maturity.


(d)           Accrued (and
theretofore unpaid) interest shall be payable (i) in respect of each Base
Rate Loan, quarterly in arrears on the last Business Day of each March, June, September and
December, (ii) in respect of each Eurodollar Loan, on the last day of each
Interest Period applicable thereto, in the case of an Interest Period in excess
of three months, on each date occurring at three-month intervals after the
first day of such Interest Period, and on the date of 



 13
 






 



 


any prepayment
thereof (on the amount prepaid) and (iii) in respect of each Loan, at
maturity (whether by acceleration or otherwise) and, after such maturity, on
demand.


(e)           On each Interest
Determination Date, the Agent shall determine the interest rate for the
Eurodollar Rate Loans for which such determination is being made and shall
promptly notify the relevant Borrower and the Banks thereof. Each such
determination shall, absent manifest error, be final and conclusive and binding
on all parties hereto.


2.09         Interest Periods. At the time it gives any
Notice of Borrowing or Notice of Conversion in respect of the making of, or
conversion into, any Eurodollar Rate Loan (in the case of
the initial Interest Period applicable thereto) or on the third Business Day
prior to the expiration of an Interest Period applicable to such Eurodollar
Rate Loan (in the case of any subsequent Interest Period), each relevant
Borrower shall have the right to elect, by giving the Agent notice thereof, the
interest period (each an “Interest Period”) applicable to such Eurodollar Rate
Loan, which Interest Period shall, at the option of such Borrower, be a one,
three or six month period, provided that: 
(i) all Eurodollar Rate Loans comprising a Borrowing shall at all
times have the same Interest Period except as otherwise required by Section 2.10(b);
(ii) the initial Interest Period for any Eurodollar Rate Loan shall
commence on the date of Borrowing of such Loan (including the date of any conversion
thereof into a Loan of a different Type) and each Interest Period occurring
thereafter in respect of such Loan shall commence on the day on which the next
preceding Interest Period applicable thereto expires; (iii) if any
Interest Period relating to a Eurodollar Rate Loan begins on a day for which
there is no numerically corresponding day in the calendar month at the end of
such Interest Period, such Interest Period shall end on the last Business Day
of such calendar month; (iv) if any Interest Period would otherwise expire
on a day which is not a Business Day, such Interest Period shall expire on the
next succeeding Business Day, provided that if any Interest Period for a
Eurodollar Rate Loan would otherwise expire on a day which is not a Business Day
but is a day of the month after which no further Business Day occurs in such
month, such Interest Period shall expire on the next preceding Business Day; (v) no
Interest Period shall extend beyond the Expiry Date; and (vi) no Interest
Period in respect of the Revolving Loans comprising a Borrowing shall extend
beyond any date upon which a mandatory reduction of the Total Commitment will
be required to be made under Section 3.03 if the aggregate principal
amount of Loans which have Interest Periods which will expire after such date
will be in excess of the Total Commitment after giving effect to such reduction.
If upon the expiration of any Interest Period applicable to a Eurodollar Rate
Loan, the relevant Borrower has failed to elect a new Interest Period to be
applicable to such Eurodollar Rate Loan as provided in this Section 2.09,
such Borrower shall be deemed to have elected to convert such Loan into a Base
Rate Loan effective as of the expiration date of such current Interest Period.


2.10         Increased Costs, Illegality, etc. (a)  In
the event that any Bank shall have determined (which determination shall,
absent manifest error, be final and conclusive and binding upon
all parties hereto but, with respect to clause (i) below, may be made only
by the Agent):


(i)            on any Interest Determination Date
that, by reason of any changes arising after the date of this Agreement
affecting the interbank Eurodollar market, adequate and 



 14
 






 



 


fair means do
not exist for ascertaining the applicable interest rate on the basis provided
for in the definition of Eurodollar Rate; or


(ii)           at any time, that such Bank shall
incur increased costs or reductions in the amounts received or receivable
hereunder with respect to any Eurodollar Rate Loan because of (x) any
change since the date of this Agreement in any applicable law or governmental
rule, regulation, order or request (whether or not having the force of law) (or
in the interpretation or administration thereof and including the introduction
of any new law or governmental rule, regulation, order or request), such as,
for example, but not limited to, (A) a change in the basis of taxation of
payments to any Bank or its Applicable Lending Office of the principal of or
interest on the Notes or any other amounts payable hereunder (except for
changes in the rate of tax on, or determined by reference to, the net income or
profits of such Bank or its Applicable Lending Office imposed by the
jurisdiction in which its principal office or Applicable Lending Office is
located) or (B) a change in official reserve requirements, but, in all
events, excluding reserves required under Regulation D to the extent included
in the computation of the Eurodollar Rate, and/or (y) other circumstances
affecting such Bank or the interbank Eurodollar market, as the case may be, or
the position of such Bank in such market; or


(iii)          at any time, that the making or
continuance of any Eurodollar Rate Loan has been made (x) unlawful by any
law or governmental rule, regulation or order, (y) impossible by
compliance by such Bank with any governmental request (whether or not having
force of law) or (z) impracticable as a result of a contingency occurring
after the date of this Agreement which materially and adversely affects the
interbank Eurodollar market;


then,
and in any such event, such Bank (or the Agent, in the case of clause (i) above)
shall promptly give notice (by telephone confirmed in writing) to each Borrower
and, except in the case of clause (i) above, to the Agent of such
determination (which notice the Agent shall promptly transmit to each of the
other Banks). Thereafter (x) in the case of clause (i) above,
Eurodollar Rate Loans shall no longer be available until such time as the Agent
notifies FSA and the Banks that the circumstances giving rise to such notice by
the Agent no longer exist, and any Notice of Borrowing or Notice of Conversion
given by a Borrower with respect to Eurodollar Rate Loans which have not yet
been incurred (including by way of conversion) shall be deemed rescinded by
such Borrower, (y) in the case of clause (ii) above, the relevant
Borrowers shall pay to such Bank, upon written demand therefor, such additional
amounts (in the form of an increased rate of, or a different method of
calculating, interest or otherwise as such Bank in its sole discretion shall
determine) as shall be required to compensate such Bank for such increased
costs or reductions in amounts received or receivable hereunder (a written
notice as to the additional amounts owed to such Bank, showing the basis for
the calculation thereof, submitted to each relevant Borrower by such Bank
shall, absent manifest error, be final and conclusive and binding on all the
parties hereto) and (z) in the case of clause (iii) above, take one
of the actions specified in Section 2.10(b) as promptly as possible
and, in any event, within the time period required by law.


(b)           At any time that any
Eurodollar Rate Loan is affected by the circumstances described in Section 2.10(a)(ii) or
2.10(a)(iii), the relevant Borrower may (and in the case of a 



 15
 






 



 


Eurodollar
Rate Loan affected by the circumstances described in Section 2.10(a)(iii) shall)
either (i) if the affected Eurodollar Rate Loan is then being made
initially or pursuant to a conversion, cancel such Borrowing by giving the
Agent notice by telephone (confirmed in writing) of the cancellation on the
same date that the relevant Borrower was notified by the Bank or the Agent
pursuant to Section 2.10(a)(ii) or 2.10(a)(iii) or (ii) if
the affected Eurodollar Rate Loan is then outstanding, upon at least three
Business Days’ written notice to the Agent, require the affected Bank to
convert such Eurodollar Rate Loan into a Base Rate Loan, provided that, if more
than one Bank is affected at any time, then all affected Banks must be treated
the same pursuant to this Section 2.10(b).


(c)           If any Bank
determines at any time that any change in applicable law or governmental rule,
regulation, order or request (whether or not having the force of law)
concerning capital adequacy, or any change in interpretation or administration
thereof by any governmental authority, central bank or comparable agency, will
have the effect of increasing the amount of capital required or expected to be
maintained by such Bank based on the existence of such Bank’s Commitment hereunder
or its obligations hereunder, then each relevant Borrower shall pay to such
Bank, upon its written demand therefor, such additional amounts to the extent
the Bank has not otherwise been reimbursed pursuant to Section 2.10 as a
result of the occurrence of any event specified in Section 2.10(a)(ii) as
shall be required to compensate such Bank for the increased cost to such Bank
as a result of such increase of capital. In determining such additional
amounts, each Bank will act reasonably and in good faith and will use averaging
and attribution methods which are reasonable, provided that such Bank’s
determination of compensation owing under this Section 2.10(c) shall,
absent manifest error, be final and conclusive and binding on all the parties
hereto. Each Bank, upon determining that any additional amounts will be payable
pursuant to this Section 2.10(c), will give prompt written notice thereof
to each relevant Borrower, which notice shall show the basis for calculation of
such additional amounts, although the failure to give any such notice shall not
release or diminish the obligations of any Borrower to pay additional amounts
pursuant to this Section 2.10(c).


2.11         Compensation. Each Borrower shall compensate
each Bank, upon its written request (which request shall set forth the basis
for requesting such compensation
and shall, absent manifest error, be final and conclusive and binding on all
the parties hereto), for all reasonable losses, expenses and liabilities
(including, without limitation, any loss, expense or liability incurred by
reason of the liquidation or reemployment of deposits or other funds required
by such Bank to fund its Eurodollar Rate Loans) which such Bank may
sustain:  (i) if for any reason
(other than a default by such Bank or the Agent) a Borrowing of, or conversion
from or into, Eurodollar Rate Loans does not occur on a date specified therefor
in a Notice of Borrowing or Notice of Conversion from such Borrower (whether or
not withdrawn by such Borrower or deemed rescinded pursuant to Section 2.10(a));
(ii) if any repayment (including any prepayment made pursuant to Section 4)
or conversion of any of its Eurodollar Rate Loans by such Borrower occurs on a
date which is not the last day of an Interest Period with respect thereto; (iii) if
any prepayment of any of its Eurodollar Rate Loans is not made on any date
specified in a notice of prepayment given by such Borrower; or (iv) as a
consequence of (a) any other default by such Borrower to repay its Loans
when required by the terms of this Agreement or the Note of such Bank or (b) any
action taken pursuant to Section 2.10(b).



 16
 






 



 


2.12         Change of Applicable Lending Office. Each Bank
agrees that, upon the occurrence of any event giving rise to the operation of Section 2.10(a)(ii),
2.10(a)(iii), 2.10(c) or
4.04 with respect to such Bank, it will, if requested by any Borrower, use
reasonable efforts (subject to overall policy considerations of such Bank) to
designate another Applicable Lending Office for any Loans affected by such
event, provided that such designation is made on such terms that such Bank and
its Applicable Lending Office will suffer no economic, legal or regulatory
disadvantage, with the object of avoiding the consequence of the event giving
rise to the operation of any such Section. Nothing in this Section 2.12
shall affect or postpone any of the obligations of any Borrower or Designee or
the right of any Bank provided in Section 2.10 or 4.04.


2.13         Addition of New Borrowers. FSA may, from time
to time prior to the Revolving Loan Expiry Date, request in writing (each such
request, an “Additional Borrower
Request”) that any Affiliate of FSA be included in this Agreement as an
additional borrower hereunder subject to the terms and conditions hereof (any
such Affiliate, an “Additional Borrower”). Such Additional Borrower Request
shall be delivered to each of the Banks and the Agent and shall include (i) a
certification by a senior officer of such Additional Borrower that such
Additional Borrower makes (with respect to itself) each of the representations,
warranties and agreements contained in Section 7 as of the date of such
certification and as of the date such Additional Borrower becomes a Borrower, (ii) a
certification by a senior officer of FSA that no Default or Event of Default
has occurred and is continuing or will occur as a result of such Additional
Borrower becoming a Borrower and (iii) true and correct copies of the most
recently prepared audited and unaudited financial statements of such Additional
Borrower. Upon receipt of an Additional Borrower Request, each Bank in its sole
discretion shall determine whether it shall consent to such request, any such
consent to be in writing and delivered to the Agent. Failure by any Bank to
deliver such a consent within 30 days of such request shall be deemed a refusal
to consent by such Bank. To the extent the Agent receives written consents from
all Banks with respect to a particular Additional Borrower Request, the Agent
shall notify FSA, the relevant Additional Borrower and the Banks thereof, and
such Additional Borrower shall become a Borrower under this Agreement upon
receipt by the Agent of (a) a written acknowledgement from such Additional
Borrower consenting to its becoming a Borrower and (b) such other
certificates, opinions and instruments (including those comparable to the items
delivered by or on behalf of all Borrowers pursuant to Sections 5.03 and
5.04) as the Agent may reasonably request.


2.14         Removal of Borrowers. FSA may, from time to
time upon written notice to the Agent, remove any Borrower hereunder provided
that at such time neither such
Borrower or any of its Designees has any obligations outstanding under this
Agreement.


SECTION 3.           COMMISSIONS;
FEES; REDUCTIONS OF COMMITMENT.


3.01         Fees. (a)  FSA agrees to pay to the Agent for
distribution to each Bank a daily commitment commission (the “Commitment
Commission”) for the period from
(and including) the Effective Date to (but excluding) the Expiry Date (or such
earlier date as the Total Commitment shall have been terminated) equal to the
Commitment Commission Percentage for the relevant day multiplied by the
Unutilized Commitment of such Bank for such day, divided by 360. Any Commitment
Commission shall be due and payable quarterly in arrears on the last 



 17
 






 



 


Business Day of each March, June, September and December of
each year and on the Expiry Date or upon such earlier date as the Total
Commitment shall be terminated. For purposes of the preceding sentence, the “Commitment
Commission Percentage” shall mean, from and after the first day of any
Applicable Margin Period to and including the last day of such Applicable
Margin Period, a rate per annum determined by reference to the relevant FSA
Rating Level, as follows:




	
  FSA Rating Level

  	
   

  	
  Commitment Commission

  Percentage

  
	
  1

  	
   

  	
  0.070%

  
	
  2

  	
   

  	
  0.080%

  
	
  3

  	
   

  	
  0.090%

  
	
  4

  	
   

  	
  0.125%

  






 


(b)           FSA agrees to pay to
the Agent for distribution to each Bank a utilization commission (the “Utilization
Commission”) during any period when the aggregate principal amount of Loans
outstanding is greater than 50% of the Total Commitment at such time, computed
at a rate of 0.10% per annum on the daily average of such outstanding amounts. Any
Utilization Commission shall be due and payable quarterly in arrears on the
last Business Day of each March, June, September and December of each
year and on the Expiry Date.


(c)           FSA agrees to pay to
each Bank, on the Effective Date, a fee equal to 0.02% of such Bank’s
Commitment as of the Effective Date.


(d)           FSA shall pay to the
Agent, for its own account, such fees as may be agreed to from time to time
between FSA and the Agent.


3.02         Voluntary Termination of Unutilized Total
Commitment. Upon at least five Business Days’ prior notice to the Agent at
its Notice Office (which notice the Agent shall promptly
transmit to each of the Banks), FSA shall have the right, without premium or
penalty, to terminate the Unutilized Total Commitment in whole or in part, in
integral multiples of $1,000,000, provided that any such termination shall
apply proportionately to reduce the Commitment of each Bank.


3.03         Mandatory Termination of Commitment. (a) 
The Commitment of any Bank which does not agree to extend the Revolving Loan
Expiry Date shall terminate
in its entirety on such Revolving Loan Expiry Date then in effect.


(b)           In addition to any
other mandatory Commitment reductions pursuant to this Section 3.03, the
Commitment of each Bank to make a Revolving Loan shall terminate in its
entirety on the Revolving Loan Expiry Date.


3.04         Expiry Date. The expiration
of the Commitments of the Banks to make Revolving Loans shall be April 21,
2011 (the “Revolving Loan Expiry Date”); provided, however, that
before (but not earlier than 60 days nor later than 30 days before) the
Revolving Loan Expiring Date then in effect, FSA may make a written request (an
“Extension Request”) to the Agent at its Notice Office and to each of the Banks
that the Revolving Loan Expiry Date be extended to the date set forth therein. Such
Extension Request shall include a certification by a 



 18
 






 



 


senior officer of FSA
that no Default or Event of Default has occurred and is continuing and all
representations and warranties contained herein and the other Credit Documents
are true and correct in all material respects on and as of the date of the Extension
Request (it being understood and agreed that any representation or warranty
which expressly refers by its terms to a specified date shall be required to be
true only as of such date). If, by the date occurring 15 days next succeeding
the Agent’s receipt of such Extension Request, any Bank agrees thereto in
writing by so indicating on counterparts of the Extension Request and
delivering such counterpart to FSA, “Revolving Loan Expiry Date” as to such
Bank shall mean the date so designated in the relevant Extension Request,
provided that (i) any failure by the Agent or a Bank to so notify FSA
shall be deemed to be a disapproval by such Bank of the Extension Request; and (ii) the
portion of the Commitment representing the Commitment of any Bank not so agreeing
shall terminate on the Revolving Loan Expiry Date as then in effect. The
Commitment of any Bank to make Revolving Loans which does not so agree shall
terminate upon the Revolving Loan Expiry Date then in effect. No Bank shall be
obligated to grant any extension pursuant to this Section 3.04 and any
such extension shall be in the sole discretion of each Bank. Each Borrower
shall pay to each Bank which does not so agree all amounts owing under its
Revolving Note and this Agreement on the effective date of the termination of
such Bank’s Commitment. In the event of any extension pursuant to this Section 3.04,
each Borrower shall be deemed to have represented and warranted on and as of
the effective date of such extension that no Default or Event of Default has
occurred and is continuing and all representations and warranties contained
herein and the other Credit Documents with respect to such Borrower are true
and correct in all material respects on and as of the date of such extension
(it being understood and agreed that any representation or warranty which
expressly refers by its terms to a specified date shall be required to be true
only as of such date).


SECTION 4.           PREPAYMENTS;
PAYMENTS.


4.01         Voluntary Prepayments. Each Borrower and
Designee shall have the right to prepay the Loans made to it, without premium
or penalty, in whole or in part from time to time on the
following terms and conditions:  (i) the
relevant Borrower or Designee shall give the Agent at its Notice Office at
least three Business Days’ prior notice of its intent to prepay the Loans, the
amount of such prepayment and the Types of Loans to be prepaid and, in the case
of Eurodollar Rate Loans, the specific Borrowing or Borrowings pursuant to
which made, which notice the Agent shall promptly transmit to each of the
Banks; (ii) each partial prepayment shall be in an aggregate principal
amount of at least $1,000,000, provided that no partial prepayment of
Eurodollar Rate Loans made pursuant to any Borrowing shall reduce the
outstanding Loans made pursuant to such Borrowing to an amount less than
$1,000,000; (iii) prepayments of Eurodollar Rate Loans made pursuant to
this Section 4.01 may only be made on the last day of an Interest
Period applicable thereto; and (iv) each prepayment in respect of any
Loans made pursuant to a Borrowing shall be applied pro  rata
among such Loans.


4.02         Mandatory Prepayments. On any day on which the
aggregate outstanding principal amount of the Loans exceeds the Total
Commitment as then in effect
(other than a reduction in the Total Commitment pursuant to Section 10),
each Borrower and Designee which has one or more Revolving Loans then
outstanding shall prepay principal of such Loans proportionately so that an
aggregate principal amount equal to such excess is prepaid.



 19
 






 



 


4.03         Method and Place of Payment. (a)  Except
as otherwise specifically provided herein, all payments under this Agreement or
any Note shall be made to the Agent
for the account of the Bank or Banks entitled thereto not later than 12:00 Noon
(New York time) on the date when due and shall be made in Dollars in
immediately available funds at the Payment Office of the Agent. Except as
otherwise provided in Section 2.09(iv), whenever any payment to be made
hereunder or under any Note shall be stated to be due on a day which is not a
Business Day, the due date thereof shall be extended to the next succeeding
Business Day and, with respect to payments of principal, interest shall be
payable at the applicable rate during such extension.


4.04         Net Payments. All payments made by any
Borrower or Designee hereunder or under any Note will be made without setoff,
counterclaim or other defense.
Except as provided in Section 4.04(b), all such payments will be made free
and clear of, and without deduction or withholding for, any present or future
taxes, levies, imposts, duties, fees, assessments or other charges of whatever
nature now or hereafter imposed by any jurisdiction or by any political
subdivision or taxing authority thereof or therein (but excluding, except as
provided below, any tax imposed on or measured by the net income of a Bank
pursuant to the laws of the jurisdiction (or any political subdivision or
taxing authority thereof or therein) in which the principal office or
Applicable Lending Office of such Bank is located) and all interest, penalties
or similar liabilities with respect thereto (collectively, “Taxes”). If any
Taxes are so levied or imposed, each Borrower agrees to pay (on a pro rata
basis) the full amount of such Taxes and such additional amounts as may be
necessary so that every payment of all amounts due hereunder or under any Note,
after withholding or deduction for or on account of any Taxes, will not be less
than the amount provided for herein or in such Note. Each Borrower will furnish
to the applicable Bank within 45 days after the date the payment of any Taxes
is due pursuant to applicable law certified copies of tax receipts evidencing
such payment by such Borrower. Each Borrower (on a pro rata basis) will
indemnify and hold harmless each Bank, and reimburse each Bank upon its written
request, for the amount of any Taxes so levied or imposed and paid by such
Bank.


(b)           Each Bank which 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 agrees (i) in the case
of any such Bank that is a “bank” within the meaning of Section 881(c)(3)(A) of
the Code and which constitutes a Bank hereunder on the Effective Date, to
provide to FSA and the Agent on or prior to the Effective Date two original
signed copies of Service Form 4224 or Form 1001 certifying to such
Bank’s entitlement to an exemption from United States withholding tax with
respect to payments to be made under this Agreement and under any Note, (ii) in
the case of any such Bank that is a “bank” within the meaning of Section 881(c)(3)(A) of
the Code, that, to the extent legally entitled to do so, (A) with respect
to a Bank that is an assignee or transferee of an interest under this Agreement
pursuant to Section 12.04(b) (unless the respective Bank was already
a Bank hereunder immediately prior to such assignment or transfer), upon the
date of such assignment or transfer to such Bank, and (B) with respect to
any such Bank, from time to time upon the reasonable written request of FSA
after the Effective Date, such Bank will provide to FSA two original signed
copies of Internal Revenue Service Form 4224 or Form 1001 (or any
successor forms) certifying to such Bank’s entitlement to an exemption from, or
reduction in, United States withholding tax with respect to payments to be made
under this Agreement and under any Note, (iii) in the case of a Bank other
than a Bank described in clause (i) or (ii) above, 



 20
 






 



 


to provide to FSA on or prior to the Effective Date, two accurate and
complete original signed copies of Internal Revenue Service Form W-8,
certifying to such Bank’s entitlement at the date of such certificate, to an
exemption from U.S. withholding tax under the provisions of Section 881(c) of
the Code with respect to payments to be made under this Agreement and under any
Note and (iv) in the case of any such Bank (other than a Bank described in
clause (i) or (ii) above), to the extent legally entitled to do so (A) with
respect to a Bank that is an assignee or transferee of an interest under this
Agreement pursuant to Section 12.04(b) (unless the respective Bank
was already a Bank hereunder immediately prior to such assignment or transfer),
upon the date of such assignment or transfer to such Bank, and (B) with
respect to any such Bank, from time to time upon the reasonable written request
of FSA after the Effective Date, to provide to FSA such other forms as may be
required in order to establish the entitlement of such Bank to an exemption
from withholding with respect to payments under this Agreement and under any
Note. Notwithstanding anything to the contrary contained in Section 4.04(a),
but subject to the immediately succeeding sentence, any Borrower shall be
entitled, to the extent it is required to do so by law, to deduct or withhold
Taxes imposed by the United States (or any political subdivision or taxing
authority thereof or therein) from interest, fees or other amounts payable
hereunder (without any obligation to pay the respective Bank additional amounts
with respect thereto) for the account of any Bank which 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 and which has not provided to the relevant
Borrower such forms required to be provided to such Borrower pursuant to the
first sentence of this Section 4.04(b) (or to the extent such forms
do not establish a complete exemption from such withholding). Notwithstanding
anything to the contrary contained in the preceding sentence and except as set
forth in Section 12.04(b), each Borrower agrees to indemnify each Bank in
the manner set forth in Section 4.04(a) in respect of any amounts
deducted or withheld by it as described in the immediately preceding sentence
as a result of any changes after the Effective Date in any applicable law,
treaty, governmental rule, regulation, guideline or order, or in the
interpretation thereof, relating to the deducting or withholding of Taxes.


SECTION 5.           CONDITIONS
PRECEDENT TO EFFECTIVENESS.


This
Agreement shall become effective subject to the satisfaction (or waiver by the
Agent and the Required Banks) of the following conditions:


5.01         Execution of Agreement. Each Borrower and each
Bank shall have signed a copy of this Agreement (whether the same or different
copies) and shall have
delivered the same to the Agent at its Notice Office.


5.02         No Default; Representations and Warranties. There
shall exist no Default or Event of Default and all representations and
warranties contained herein 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 Effective Date.


5.03         Opinions of Counsel. (a)  The Agent shall
have received an opinion addressed to it and the Banks and dated the Effective
Date from an attorney in the FSA
legal department, substantially in the form attached hereto as Exhibit C.



 21














 


(b)           The Banks shall have
received an opinion addressed to each of them and dated the Effective Date from
White & Case LLP, special counsel to the Agent and the Banks, in form
and substance satisfactory to each of them.


5.04         Corporate Documents; Proceedings. (a) 
The Agent shall have received a separate certificate from each Borrower, dated
the Effective Date, signed by an authorized officer of such
Borrower, and attested to by the Secretary or any Assistant Secretary of such
Borrower, in the form of Exhibit D attached hereto with appropriate
insertions, together with copies of the charter documents and resolutions of
such Borrower referred to in such certificate.


(b)           All corporate and
legal proceedings and all instruments and agreements in connection with the
transactions contemplated in this Agreement and the other Credit Documents
shall be satisfactory in form and substance to the Agent, and it shall have
received all information and copies of all documents and papers, including
records of corporate proceedings and governmental approvals, if any, which the
Agent reasonably may have requested in connection therewith, such documents and
papers where appropriate to be certified by proper corporate or governmental
authorities.


5.05         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 any
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, condition (financial or otherwise)
or prospects of any Borrower.


(b)           All necessary
governmental (domestic and foreign) and third party approvals and/or consents
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 transactions contemplated by the Credit Documents.


(c)           On the Effective
Date, the Rating of FSA and each other Borrower assigned by Moody’s and S&P
shall be Aaa and AAA, respectively.


5.06         Litigation. No litigation by any entity
(private or governmental) shall be pending or threatened with respect to any
Credit Document or any documentation
executed in connection herewith or the transactions contemplated hereby, or
with respect to any material Indebtedness of any Borrower or which any Bank
shall determine could reasonably be expected to have a materially adverse
effect on the business, operations, property, assets, liabilities, condition
(financial or otherwise) or prospects of any Borrower.



 22
 






 



 


5.07         Fees, etc. The Borrowers shall have paid to
the Agent and to the Banks all costs, fees and expenses (including, without
limitation, legal fees and expenses)
payable to the Agent and/or the Banks to the extent then due.


All the certificates, legal opinions and other
documents and papers referred to in this Section 5, unless otherwise
specified, shall be delivered to the Agent at the Agent’s Notice Office.


SECTION 6.           CONDITIONS PRECEDENT TO ALL CREDIT
EVENTS.


The obligation of any Bank to make any Loan is
subject, at the time of each such Credit Event (except as hereinafter
indicated), to the satisfaction of the following conditions:


6.01         Effectiveness; No Default. At the time of each
such Credit Event and also after giving effect thereto (i) the Effective
Date shall have occurred and (ii) no Default or Event of Default
under Section 10.01, 10.04, 10.08 or 10.09 shall have occurred and be
continuing.


6.02         Notice of Borrowing. Prior to the making of
each Revolving Loan, the Agent shall have received a Notice of Borrowing
meeting the requirements of Section 2.03.


6.03         Notes. Prior to the making of the initial
Revolving Loan to any Borrower or Designee, there shall have been delivered to
each Bank a separate Revolving Note executed by such Borrower
or Designee in the amount, maturity and as otherwise provided herein.


6.04         Insurance Policy. Prior to the making of any
Loan to any Designee, the Agent shall have received a fully executed and
enforceable Insurance Policy with respect to such Loan, together
with an opinion from an attorney in the FSA legal department confirming the
enforceability of such Insurance Policy in accordance with its terms.


The acceptance of the proceeds of each Credit Event
shall constitute a representation and warranty by FSA and the relevant Borrower
to each Bank that the conditions specified in this Section 6 have been
satisfied.


SECTION 7.           REPRESENTATIONS,
WARRANTIES AND AGREEMENTS.


In
order to induce the Banks to enter into this Agreement and to make the Loans,
each Borrower makes the following representations, warranties and agreements as
to itself, and FSA makes such representations, warranties and agreements as to
itself and as to each Borrower, all as of the Effective Date and all of which
shall survive the execution and delivery of this Agreement, the Notes and the
Insurance Policies and the making of the Loans:


7.01         Corporate Status. Such Borrower (i) is a
duly organized and validly existing corporation under the laws of the
jurisdiction of its incorporation, (ii) has the power and authority to own
its property and assets and to transact the business in which it is engaged and
(iii) is duly qualified as a foreign corporation and in each jurisdiction
where the ownership, leasing or operation of property or the conduct of its
business requires such qualification, except where the failure to qualify would
not have a material adverse effect on the business, operations, property,
assets, condition (financial or otherwise) or prospects of such Borrower and
its Subsidiaries taken as a whole.



 23
 






 



 


7.02         Corporate Power and Authority. Such Borrower
has the corporate power to execute, deliver and perform the terms and
provisions of each of the Credit Documents to which it is
party and has taken all necessary corporate action to authorize the execution,
delivery and performance by it of each of such Credit Documents. Such Borrower
has, or in the case of the Credit Documents other than this Agreement, by the
Effective Date will have, duly executed and delivered each of the Credit Documents
to which it is party, and each of such Credit Document constitutes or, in the
case of each such other Credit Document when executed and delivered, will
constitute, its legal, valid and binding obligation enforceable in accordance
with its terms.


7.03         No Violation. Neither the execution, delivery
or performance by such Borrower of the Credit Documents to which it is a party,
nor compliance by it with the
terms and provisions thereof, nor the use of the proceeds of the Loans (i) will
contravene any provision of any law, statute, rule or regulation or any
order, writ, injunction or decree of any court or governmental instrumentality,
(ii) will conflict or be inconsistent with or result in any breach of any
of the terms, covenants, conditions or provisions of, or constitute a default
under, or result in the creation or imposition of (or the obligation to create
or impose) any Lien upon any of the property or assets of such Borrower or any
of its Subsidiaries pursuant to the terms of any indenture, mortgage, deed of
trust, credit agreement, loan agreement or any other agreement, contract or
instrument to which such Borrower or any of its Subsidiaries is a party or by
which it or any of its property or assets is bound or to which it may be
subject or (iii) will violate any provision of the charter documents of
such Borrower or any of its Subsidiaries.


7.04         Governmental Approvals. No order, consent,
approval, license, authorization or validation of, or filing, recording or
registration with (except as have been obtained or made prior
to the Effective Date), or exemption by, any governmental or public body or
authority, or any subdivision thereof, is required to authorize, or is required
in connection with, (i) the execution, delivery and performance of any
Credit Document to which such Borrower is a party or (ii) the legality,
validity, binding effect or enforceability of any such Credit Document.


7.05         Financial Statements; Financial Condition;
Undisclosed Liabilities; etc. (a)  The consolidated balance sheet of
such Borrower and its Consolidated Subsidiaries at December 31,
2005, and the related consolidated and consolidating statements of income,
changes in shareholders’ equity and cash flows of such Borrower and its
Consolidated Subsidiaries for the fiscal year ended on such date, all
heretofore furnished to the Banks, present fairly the consolidated financial
condition of such Borrower and its consolidated Subsidiaries at the date of
such balance sheet and the consolidated results of the operations of such Borrower
and its consolidated Subsidiaries for such fiscal year. All such financial
statements have been prepared in accordance with generally accepted accounting
principles and practices consistently applied. Since December 31, 2005,
there has been no material adverse change in the business, operations,
property, assets, condition (financial or otherwise) or prospects of such
Borrower and its Subsidiaries taken as a whole.


(b)           Except as fully
reflected in the financial statements delivered pursuant to Section 7.05(a),
and except for liabilities or obligations relating to insurance policies, there
were as of the Effective Date no liabilities or obligations with respect to
such Borrower or any of its Subsidiaries of any nature whatsoever (whether
absolute, accrued, contingent or otherwise and whether or not due) which,
either individually or in aggregate, would be material to such



 24
 






 



Borrower or to
such Borrower and its Subsidiaries taken as a whole. As of the Effective Date,
such Borrower does not know of any basis for the assertion against such
Borrower or any of its Subsidiaries of any liability or obligation of any
nature whatsoever that is not fully reflected in the financial statements
delivered pursuant to Section 7.05(a) which, either individually or
in the aggregate, could reasonably be expected to be material to such Borrower
and its Subsidiaries taken as a whole.


7.06         Litigation. There are no actions, suits or
proceedings pending or, to the best knowledge of such Borrower, threatened (i) with
respect to any Credit Document
or (ii) that are reasonably likely to materially and adversely affect the
business, operations, property, assets or condition (financial or otherwise) of
such Borrower and its Subsidiaries taken as a whole.


7.07         True and Complete Disclosure. All factual
information (taken as a whole) heretofore or contemporaneously furnished by or
on behalf of such Borrower to
the Agent or any Bank (including without limitation all information contained
in the Credit Documents) for purposes of or in connection with this Agreement
or any transaction contemplated herein is, and all other such factual
information (taken as a whole) hereafter furnished by or on behalf of such
Borrower to the Agent or any Bank will be, true and accurate in all material
respects on the date as of which such information is dated or certified and not
incomplete by omitting to state any fact necessary to make such information
(taken as a whole) not misleading at such time in light of the circumstances
under which such information was provided.


7.08         Use of Proceeds; Margin Regulations. All
proceeds of each Loan shall be used by such Borrower or its Designee only for
general corporate purposes (including
payment of insurance claims and expenses and payments made to avoid or defer
obligations to make such payments) and no part of the proceeds of any Loan will
be used by such Borrower to purchase or carry any Margin Stock or to extend
credit to others for the purpose of purchasing or carrying any Margin Stock. Neither
the making of any Loan nor the use of the proceeds thereof will violate or be
inconsistent with the provisions of Regulations T, U or X of the Board of
Governors of the Federal Reserve System.


7.09         Tax Returns and Payments. Such Borrower and
each of its Subsidiaries has filed all tax returns required to be filed by it
and has paid all income taxes payable
by it which have become due pursuant to such tax returns and all other taxes
and assessments payable by it which have become due, other than those not yet
delinquent and except for those contested or which will be contested in good
faith and for which adequate reserves (in the good faith judgment of the
management of such Borrower) have been established. Such Borrower and each of
its Subsidiaries has paid, or has provided adequate reserves (in the good faith
judgment of the management of such Borrower) for the payment of, all federal
and state income taxes applicable for all prior fiscal years and for the
current fiscal year to the date hereof.


7.10         Compliance with ERISA. Each Plan of such
Borrower is in substantial compliance with applicable provisions of ERISA and
the Code; no Reportable Event
has occurred with respect to any such Plan; no such Plan is insolvent or in
reorganization; no such Plan has an Unfunded Current Liability, and no such
Plan has an accumulated or waived funding deficiency, has permitted decreases
in its funding standard account or has applied for an extension of any
amortization period within the meaning of Section 412 of the Code; neither



 25
 






 



such Borrower nor any Subsidiary or ERISA Affiliate
has incurred any material liability to or on account of a Plan pursuant to Section 409,
502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201 or 4204 of ERISA which
expects to incur any liability under any of the foregoing sections with respect
to any such Plan; no proceedings have been instituted to terminate any such
Plan; no condition exists which presents a material risk to such Borrower or
any of its Subsidiaries or any ERISA Affiliate of incurring a liability to or
on account of a Plan pursuant to the foregoing provisions of ERISA and the
Code; using actuarial assumptions and computation methods consistent with
subpart 1 of subtitle E of Title IV of ERISA, the aggregate liabilities of such
Borrower and its Subsidiaries and its ERISA Affiliates to all Plans which are
multiemployer plans (as defined in Section 4001(a)(3) of ERISA) in
the event of a complete withdrawal therefrom, as of the close of the most
recent fiscal year of each such Plan ended prior to the date of this Agreement,
would not exceed $50,000; and no Lien imposed under the Code or ERISA on the
assets of such Borrower or any of its Subsidiaries or any ERISA Affiliate
exists or is likely to arise on account of any Plan.


7.11         Capitalization. On the Effective Date, the
authorized capital stock of FSA consists of 400 common shares, par value
$37,500 per share, of which 400 shares are issued and
outstanding. All such outstanding shares have been duly and validly issued, are
fully paid and non-assessable. FSA does not have outstanding any securities
convertible into or exchangeable for its capital stock or outstanding any
rights to subscribe for or to purchase, or any options for the purchase of, or
any agreements providing for the issuance (contingent or otherwise) of, or any
calls, commitments or claims of any character relating to, its capital stock
except as otherwise disclosed in its financial statements or reports filed with
the SEC by Financial Security Assurance Holdings Ltd.


7.12         Compliance with Statutes, etc. Such Borrower
and each of its Subsidiaries are in compliance with all applicable statutes,
regulations and orders of, and all applicable restrictions
imposed by, all governmental bodies, domestic or foreign, in respect of the
conduct of its respective business and the ownership of its respective property
(including applicable statutes, regulations, orders and restrictions relating
to environmental standards and controls), except such noncompliances as would
not reasonably be expected to have, in the aggregate, a material adverse effect
on the business, operations, property, assets, condition (financial or
otherwise) or prospects of such Borrower and its Subsidiaries taken as a whole.


7.13         Investment Company Act. Neither such Borrower
nor any of its Designees or insurance company Subsidiaries is an “investment
company” within the meaning
of the Investment Company Act of 1940, as amended.


7.14         Public Utility Holding Company Act. Neither
such Borrower nor any of its Designees or insurance company Subsidiaries is a “holding
company”, or a “subsidiary
company” of a “holding company”, or an “affiliate” of a “holding company” or of
a “subsidiary company” of a “holding company” within the meaning of the Public
Utility Holding Company Act of 1935, as amended.



 26
 






 



 


SECTION 8.           AFFIRMATIVE
COVENANTS.


8.01         Information Covenants. FSA will furnish (or
caused to be furnished) to the Agent, in sufficient copies for each Bank to be
able to receive a copy:


(a)           Quarterly Financial Statements. Within 60
days after the close of the first three quarterly accounting periods in each
fiscal year of FSA, the consolidated balance sheet of FSA and its Consolidated
Subsidiaries as at the end of such quarterly accounting period and the related
consolidated statements of income, changes in shareholders’ equity and cash
flows for such quarterly accounting period and for the elapsed portion of the
fiscal year ended with the last day of such quarterly accounting period, in
each case setting forth comparative figures for the related periods in the prior
fiscal year, all of which shall be in the form contained in the Quarterly
Report on Form 10-Q filed by FSA’s parent with the SEC and shall be
certified by the Treasurer, Chief Financial Officer or Chief Accounting Officer
of FSA, subject to normal year-end audit adjustments.


(b)           Annual Financial Statements. Within 115 days
after the close of each fiscal year of FSA, (i) the consolidated balance
sheet of FSA and its Consolidated Subsidiaries as at the end of such fiscal
year and the related consolidated statements of income, changes in shareholders’
equity cash flows for such fiscal year in each case in the form contained in
the Annual Report on Form 10-K filed by FSA’s parent with the SEC
and setting forth comparative figures for the preceding fiscal year and
certified by PricewaterhouseCoopers LLP or such other independent certified
public accountants of recognized national standing reasonably acceptable to the
Agent, together with a report of such accounting firm stating that in the
course of its regular audit of the financial statements of FSA and its
Consolidated Subsidiaries, which audit was conducted in accordance with
generally accepted auditing standards, such accounting firm obtained no
knowledge of any Default or Event of Default which has occurred and is
continuing or, if in the opinion of such accounting firm such a Default or
Event of Default has occurred and is continuing, a statement as to the nature
thereof and (ii) management’s discussion and analysis of consolidated
(including FSA’s parent) financial condition and results of operations for such
fiscal year.


(c)           Management Letters. Promptly after the
receipt thereof by FSA or any of its Subsidiaries, a copy of any “management
letter” received by FSA or such Subsidiary from its certified public
accountants and the management’s responses thereto.


(d)           Officer’s Certificates. At the time of the
delivery of the financial statements provided for in Section 8.01(a) and
8.01(b), a certificate of the Chief Financial Officer, the Chief Accounting
Officer or the Treasurer of FSA to the effect that, to the best of such officer’s
knowledge, no Default or Event of Default has occurred and is continuing or, if
any Default or Event of Default has occurred and is continuing, specifying the
nature and extent thereof, which certificate shall, in the case of any such
financial statements delivered in respect of a period ending on the last day of
a fiscal quarter or year of FSA, set forth the calculations required to
establish whether FSA was in compliance with the provisions of
Sections 9.02, 9.03 and 9.04.



 27
 






 



(e)           Notice of Default or Litigation. Promptly,
and in any event within two Business Days after an executive officer of FSA
obtains knowledge thereof, notice of (i) the occurrence of any event which
constitutes a Default or Event of Default and (ii) any litigation or
governmental investigation or proceeding pending (A) against any Borrower
which could reasonably be expected to materially and adversely affect the
business, operations, property, assets, liabilities, condition (financial or
otherwise) or prospects of such Borrower and its Subsidiaries taken as a whole,
(B) with respect to any material Indebtedness of any Borrower or (C) with
respect to any Credit Document.


(f)            Other Reports and Filings. Promptly upon request,
copies of all financial information, proxy materials and other information and
reports, if any, which FSA or any of its Subsidiaries shall file with the
Securities and Exchange Commission or any successor thereto (the “SEC”) or
deliver to holders of its Indebtedness pursuant to the terms of the
documentation governing such Indebtedness (or any trustee, agent or other
representative therefor).


(g)           Borrower Financial Statements. Within 90
days after the close of each fiscal year of each Borrower other than FSA, the
consolidated balance sheet of such Borrower and its Consolidated Subsidiaries
as at the end of such fiscal year certified by independent certified public
accountants (if such certification has been otherwise obtained) or an
appropriate financial officer of such Borrower.


(h)           Other Information. From time to time, and
subject to applicable confidentiality restrictions, such other information or
documents (financial or otherwise) not available on the FSA website
(www.fsa.com) as any Bank may reasonably request.


8.02         Books, Records and Inspections. Each Borrower
will, and will cause each of its Subsidiaries to, keep proper books of record
and account in which full, true
and correct entries in conformity with generally accepted accounting principles
and all requirements of law shall be made of all dealings and transactions in
relation to its business and activities. Each Borrower will, and will cause
each of its Subsidiaries to, permit officers and designated representatives of
the Agent or any Bank to visit and inspect, during regular business hours and
under guidance of officers of such Borrower or such Subsidiary, any of the
properties of such Borrower or such Subsidiary, and to examine the books of
account of such Borrower or such Subsidiary and discuss the affairs, finances
and accounts of such Borrower or such Subsidiary with, and be advised as to the
same by, its and their officers and independent accountants, all at such
reasonable times and intervals and to such reasonable extent as the Agent or
such Bank may request.


8.03         Corporate Franchises. Each Borrower will do or
cause to be done, all things necessary to preserve and keep in full force and
effect its existence and its material
rights, franchises, licenses and patents; provided, however, that nothing in
this Section 8.03 shall prevent the withdrawal by any Borrower of its
qualification as a foreign corporation in any jurisdiction where such
withdrawal could not reasonably be expected to have a material adverse effect
on the business, operations, property, assets, liabilities or condition
(financial or otherwise) of such Borrower and its Subsidiaries taken as a
whole.



 28
 






 



 


8.04         Compliance with Statutes, etc. Each Borrower
will, and will cause each of its Subsidiaries to, comply with all applicable
statutes, regulations and orders of, and all applicable
restrictions imposed by, all governmental bodies, domestic or foreign, in
respect of the conduct of its business and the ownership of its property
(including applicable statutes, regulations, orders and restrictions relating
to environmental standards and controls), except such noncompliances as could
not, individually or in the aggregate, reasonably be expected to have a
material adverse effect on the business, operations, property, assets, liabilities,
condition (financial or otherwise) or prospects of such Borrower and its
Subsidiaries taken as a whole.


8.05         ERISA. As soon as possible and, in any event,
within 20 days after any Borrower or any of its Subsidiaries or any ERISA
Affiliate knows or has reason to
know of the occurrence of any of the following, such Borrower will deliver to
each of the Banks a certificate of an appropriate officer of such Borrower
setting forth details as to such occurrence and the action, if any, that such
Borrower, such Subsidiary or such ERISA Affiliate is required or proposes to
take, together with any notices required or proposed to be given to or filed
with or by such Borrower, such Subsidiary, such ERISA Affiliate, the PBGC or a
Plan participant or the Plan administrator with respect thereto:  that a Reportable Event with respect to a
Plan has occurred; that a contributing sponsor (as defined in Section 4001(a)(13)
of ERISA) of a Plan is subject to the advance reporting requirement of PBGC
Regulation Section 4043.61 (without regard to subparagraph (b)(1) thereof),
and an event described in subsection .62, .63, .64, .65, .66, .67 or .68 of
PBGC Regulation Section 4043 is reasonably expected to occur with respect
to such Plan within the following 30 days; that an accumulated funding
deficiency has been incurred or an application may be or has been made to the
Secretary of the Treasury for a waiver or modification of the minimum funding
standard (including any required installment payments) or an extension of any
amortization period under Section 412 of the Code with respect to a Plan;
that a material contribution required to be made to a Plan has not been timely
made; that a Plan has been or may be terminated, reorganized, partitioned or
declared insolvent under Title IV of ERISA; that a Plan has an Unfunded Current
Liability giving rise to a lien under ERISA or the Code; that proceedings may
be or have been instituted to terminate or appoint a trustee to administer a
Plan, that a proceeding has been instituted pursuant to Section 515 of
ERISA to collect a delinquent contribution to a Plan; that any Borrower, any of
its Subsidiaries or any ERISA Affiliate will or may incur any material
liability (including any contingent or secondary liability) to or on account of
the termination of or withdrawal from a Plan under Section 4062, 4063,
4064, 4069, 4201, 4204 or 4212 of ERISA or with respect to such a Plan under Section 401(a)(29),
4971 or 4975 of the Code or Section 409 or 502(i) or 502(l) of
ERISA or with respect to a group health plan (as defined in Section 607(1) of
ERISA, Section 4980B(g)(2) of the Code or 45 Code of Federal
Regulations Section 160.103) under Section 4980B of the Code and/or
the Health Insurance Portability and Accountability Act of 1996; or that any
Borrower or any Subsidiary may incur any material liability other than in the
ordinary course of business pursuant to any employee welfare benefit plan (as
defined in Section 3(1) of ERISA) that provides benefits to retired
employees or other former employees (other than as required by Section 601
of ERISA) or any employee pension benefit plan (as defined in Section 3(2) of
ERISA). Each Borrower will deliver to each of the Banks upon request a complete
copy of the annual report (Form 5500) of each Plan of such Borrower
required to be filed with the Internal Revenue Service. In addition to any
certificates or notices delivered to the Banks pursuant to the first sentence
hereof, copies of annual reports and any material notices received by any
Borrower or any of its Subsidiaries or any ERISA Affiliate with respect to any
Plan shall be delivered upon



 29
 






 



request to the Banks no later than 20 days after the
date such report has been filed with the Internal Revenue Service or such
notice has been received by such Borrower, the Subsidiary or the ERISA
Affiliate, as applicable.


8.06         End of Fiscal Years; Fiscal Quarters. FSA
shall cause its fiscal year to end on December 31 and its fiscal
quarters to end on the last day of March, June, September and
December.


8.07         Performance of Obligations. Each Borrower
will, and will cause each of its Subsidiaries to, perform all of its
obligations under the terms of each mortgage, indenture, security
agreement and other debt instrument by which it is bound, except such
non-performances as could not, individually or in the aggregate, reasonably be
expected to have a material adverse effect on the business, operations,
property, assets, liabilities, condition (financial or otherwise) or prospects
of such Borrower and its Subsidiaries taken as a whole.


8.08         Payment of Taxes. Each Borrower will pay and
discharge or cause to be paid and discharged, and will cause each of its
Subsidiaries to pay and discharge,
all material taxes, assessments and governmental charges or levies imposed upon
it or upon its income or profits, or upon any material properties belonging to
it, in each case on a timely basis, and all lawful claims which, if unpaid,
might become a lien or charge upon any properties of such Borrower or any of
its Subsidiaries; provided that no Borrower or any Subsidiary of any Borrower
shall be required to pay any such tax, assessment, charge, levy or claim which
is being or which will be contested in good faith and by proper proceedings if
it has maintained adequate reserves (in the good faith judgment of the
management of such Borrower) with respect thereto in accordance with generally
accepted accounting principles.


8.09         Business. FSA will continue to be primarily
engaged in the financial guaranty insurance business.


SECTION 9.           NEGATIVE
COVENANTS.


9.01         Consolidation, Merger, Sale of Assets, etc. FSA
will not wind up, liquidate or dissolve its affairs or enter into any
transaction of merger or consolidation (other than with one of its
Subsidiaries), or convey, sell, lease or otherwise dispose of (or agree to do
any of the foregoing at any future time) all or substantially all of its
property or assets.


9.02         Dividends. FSA will not, nor will it permit
any of its Subsidiaries to, declare or pay any dividends, or make any payments
constituting a return of capital under generally accepted
accounting principles, to its stockholders, or authorize or make any other
distribution, payment or delivery of property or cash to its stockholders as
such generally (which distributions, payments or delivery would constitute a
dividend or distribution under the laws of the jurisdiction of organization of
FSA or such Subsidiary, as the case may be) or redeem, retire, purchase or
otherwise acquire, directly or indirectly, for consideration, any shares of any
class of its capital stock now or hereafter outstanding (or any options or
warrants issued by FSA or such Subsidiary with respect to its capital stock,
other than options or warrants issued under an employee or director option or
restricted stock plan approved by the Board of Directors of FSA), or set aside
any funds for any of the foregoing purposes, except that (i) dividends or
distributions



 30
 






 



in shares of capital stock of FSA or its Subsidiaries
is permitted, (ii) any Subsidiary may pay dividends to, or purchase
capital stock from, FSA or any Wholly-Owned Subsidiary of FSA and (iii) so
long as no Event of Default under Section 10.10 is then in existence and
is uncured or not waived (and would not be in existence as a result of the
payment of such dividends or other action), FSA or any Subsidiary may pay
dividends or take any other action otherwise restricted or prohibited by this Section 9.02
at any time if at the time of such action Consolidated Net Interest Expense for
FSA’s most recent fiscal quarter immediately preceding the date of
determination for which its consolidated financial statements have been issued
is less than or equal to 3-1/3% of FSA’s surplus as regards policyholders
(determined in accordance with applicable statutory accounting principles) as
of the most recent fiscal quarter end immediately preceding the date of
determination for which FSA’s statutory financial statements have been filed
with the New York Insurance Superintendent.


9.03         Interest Coverage Ratio. FSA will not permit
the ratio of (i) Consolidated Pretax Income plus Consolidated Net Interest
Expense to (ii) Consolidated Net Interest Expense, for the
twelve month period ended on the last day of the fiscal quarter immediately
preceding the date of determination for which FSA’s consolidated financial
statements have been issued, to be less than 2.5 to 1.0.


9.04         Debt to Total Capitalization Ratio. FSA will
not permit the ratio of Consolidated Long Term Debt to Total Capitalization at
any fiscal quarter end of FSA to
be greater than 0.3 to 1.0.


9.05         Liens. FSA will not, and will not permit any
Borrower to, create, incur, assume or suffer to exist any Lien upon or with
respect to any property or assets (real or personal, tangible
or intangible) of FSA or any Borrower, whether now owned or hereafter acquired,
provided that the provisions of this Section 9.05 shall not prevent the
creation, incurrence, assumption or existence of:


(a)           Liens
for taxes not yet due, or Liens for taxes being contested in good faith and by
appropriate proceedings for which adequate reserves have been established;


(b)           Liens
in respect of property or assets of FSA or any Borrower imposed by law, which
were incurred in the ordinary course of business, such as carriers’,
warehousemen’s and mechanics’ Liens, Liens on insurance license security
deposits and other similar Liens rising in the ordinary course of business and (i) which
do not in the aggregate materially detract from the value of such property or
assets or materially impair the use thereof or (ii) which are being
contested in good faith by appropriate proceedings, which proceedings have the
effect of preventing the forfeiture or sale of the property or assets subject
to any such Lien;


(c)           Liens
existing prior to the time of acquisition upon any property acquired by FSA or
any Borrower or placed upon property at the time of acquisition by FSA or any
Borrower to secure all or a portion of the purchase price thereof, provided
that any such Liens shall not encumber any other property of FSA or any
Borrower.


(d)           Liens
securing other credit facilities entered into by FSA or any Borrower



 31
 






 



from time to
time in order solely to provide support for a specified transaction or
transactions in which obligations are insured by FSA or any Borrower under an
insurance policy, provided that such Liens in respect of each such transaction
are limited to the interests of FSA or such Borrower in connection with such
transaction;


(e)           pledges
or deposits in connection with workers’ compensation, unemployment insurance
and other social security legislation;


(f)            Liens
under the First Amended and Restated Credit Agreement dated as of April 30,
1997 (as amended from time to time) among FSA, the additional borrowers and the
banks which are parties thereto, and Bayerische Landesbank Girozentrale, New
York Branch, individually and as Agent, or any similar facility from time to
time in effect;


(g)           Liens
renewing, extending or refunding any Lien permitted by Sections 9.05(c),
9.05(d) and 9.05(e), provided that the amount secured is not increased and
such Liens are not extended to any other property; and


(h)           other
Liens in respect of the property or assets of FSA or any Borrower, provided
that the aggregate amount of Indebtedness and other obligations secured thereby
shall not exceed $20,000,000 in the aggregate.


SECTION 10.         EVENTS
OF DEFAULT.


Upon
the occurrence of any of the following specified events (each an “Event of
Default”):


10.01       Payments. Any Borrower or Designee shall (i) default
in the payment when due of any principal of any Loan or any Note or (ii) default,
and such default shall
continue unremedied for two or more Business Days, in the payment when due of
any interest on any Loan or any Note or any Fees or any other amounts owing
hereunder or under any Note; or


10.02       Representations, etc. Any representation,
warranty or statement made by or on behalf of any Borrower herein or in any
other Credit Document or in any certificate delivered
pursuant hereto or thereto shall prove to be untrue in any material respect on
the date as of which made or deemed made; or


10.03       Covenants. Any Borrower shall (i) default
in the due performance or observance by it of any term, covenant or agreement
contained in Section 9 or (ii) default in the
due performance or observance by it of any term, covenant or agreement (other
than those referred to in Sections 10.01 and 10.02 and clause (i) of
this Section 10.03) contained in this Agreement and such default shall
continue unremedied for a period of 15 Business Days after the earlier of the
date on which a Borrower gives notice of such default as required hereunder or
the date on which the Agent or any Bank gives written notice to FSA and such
Borrower of such default; or


10.04       Bankruptcy, etc. Any Borrower or any Subsidiary
of FSA shall commence a voluntary case concerning itself under Title 11 of the
United States Code entitled
“Bankruptcy,” as now or hereafter in effect, or any successor thereto (the “Bankruptcy
Code”); or an involuntary case is commenced against any Borrower or any
Subsidiary of FSA, and the petition



 32
 






 



is not controverted within 10 days, or is not
dismissed within 60 days, after commencement of the case; or a custodian (as
defined in the Bankruptcy Code) is appointed for, or takes charge of, all or
substantially all of the property of any Borrower or any Subsidiary of FSA, or
FSA or any Subsidiary of FSA commences any other proceeding under any
reorganization, arrangement, adjustment of debt, relief of debtors,
dissolution, insolvency or liquidation or similar law of any jurisdiction
whether now or hereafter in effect relating to FSA or any Subsidiary of FSA, or
there is commenced against FSA or any Subsidiary of FSA any such proceeding
which remains undismissed or unstayed for a period of 60 days, or FSA or any
Subsidiary of FSA is adjudicated insolvent or bankrupt; or any order of relief
or other order approving any such case or proceeding is entered; or FSA or any
Subsidiary of FSA suffers any appointment of any custodian or the like for it
or any substantial part of its property to continue undischarged or unstayed
for a period of 60 days; or FSA or any Subsidiary of FSA makes a general
assignment for the benefit of creditors; or any corporate action is taken by
FSA or any of Subsidiary of FSA for the purpose of effecting any of the
foregoing; or


10.05       ERISA. Any Plan shall fail to maintain the
minimum funding standard required for any plan year or part thereof or a waiver
of such standard or extension of
any amortization period is sought or granted under Section 412 of the
Code; a Reportable Event shall have occurred; a contributing sponsor (as
defined in Section 4001(a)(13) of ERISA) of a Plan is subject to the
advance reporting requirement of PBGC Regulation Section 4043.61 (without
regard to subparagraph (b)(1) thereof), and an event described in subsection
..62, .63, .64, .65, .66, .67 or .68 of PBGC Regulation Section 4043 is
reasonably expected to occur with respect to such Plan within the following 30
days; any Plan shall have had or is likely to have a trustee appointed to
administer such Plan; any Plan is, shall have been or is likely to be
terminated or the subject of termination proceeding under ERISA; any Plan shall
have a material Unfunded Current Liability; or any Borrower or any of its
Subsidiaries or ERISA Affiliates has incurred or is likely to incur a material
liability to or on account of a Plan under Section 409, 502(i), 502(l),
515, 4062, 4063, 4064, 4069, 4201 or 4204 of ERISA or Section 4971 or 4975
of the Code, or on account of a group health plan (as defined in Section 607(1) of
ERISA, Section 4980B(g)(2) of the Code or 45 Code of Federal
Regulations Section 160.103) under Section 4980B of the Code and/or
the Health Insurance Portability and Accountability Act of 1996, or any
Borrower or any of its Subsidiaries or any ERISA Affiliate has incurred or is
likely to incur material liabilities pursuant to one or more employee welfare
benefit plans (as defined in Section 3(1) of ERISA) which provide
benefits to retired employees (other than as required by Section 601 of
ERISA); and there shall result from any such event or events the imposition of
a Lien upon the assets of any Borrower or any of its Subsidiaries, the granting
of a security interest, or a liability or a material risk of incurring a
liability, which Lien, security interest or liability, in the opinion of the
Banks, will have a material adverse effect upon the business, operations,
property, assets, condition (financial or otherwise) or prospects of any
Borrower and its Subsidiaries taken as a whole; or


10.06       Judgments. One or more judgments or decrees
shall be entered against any Borrower or any Subsidiary of FSA involving in the
aggregate for the Borrowers
and the Subsidiaries of FSA a liability (not paid or fully covered by
insurance) of $5,000,000 or more, and all such judgments or decrees shall not
have been vacated, discharged or stayed or bonded pending appeal within 30 days
after the entry thereof; or



 33














 


 


10.07       Change of Control. A Change of Control shall
occur; or


10.08       Default Under Other Agreements. Any Borrower or
any Subsidiary of FSA shall (i) default in any payment with respect to any
Indebtedness equal to or in excess of $5,000,000 (other than the Obligations) beyond the
period of grace, if any, provided in the instrument or agreement under which
such Indebtedness was created or (ii) default in the observance or
performance of any agreement or condition relating to any such Indebtedness or
contained in any instrument or agreement evidencing, securing or relating
thereto, or any other event shall occur or condition exist, the effect of which
default or other event or condition is to cause, or to permit the holder or
holders of such Indebtedness (or a trustee or agent on behalf of such holder or
holders) to cause any such Indebtedness to become due prior to its stated
maturity; or (b) any such Indebtedness (other than the Obligations) of any
Borrower or any Subsidiary of FSA shall be declared to be due and payable, or
shall be required to be prepaid other than by a regularly scheduled required
prepayment or as a mandatory prepayment (unless such required prepayment or
mandatory prepayment results from a default thereunder or an event of the type
that constitutes an Event of Default), prior to the stated maturity thereof; or


10.09       Rating. The Rating of FSA or any other Borrower
assigned by Moody’s and S&P shall be less than Baa3 and BBB-, respectively;
or


10.10       Rating. The Rating of FSA or any other Borrower
assigned by Moody’s and S&P shall be less than Aa3 and AA-, respectively.


then,
and in any such event, and at any time thereafter, if any Event of Default
shall then be continuing, the Agent, upon the written request of the Required
Banks, shall by written notice to the Borrowers, take any or all of the
following actions, without prejudice to the rights of the Agent, any Bank or
the holder of any Note to enforce its claims against any Borrower (provided,
that, if an Event of Default specified in Section 10.04 shall occur with
respect to FSA or any other Borrower, the result which would occur upon the
giving of written notice by the Agent to the Borrowers as specified in clauses (i) and
(ii) below shall occur automatically without the giving of any such notice):  (i) declare the Total Commitment
terminated, whereupon the Commitment of each Bank shall forthwith terminate
immediately and any Commitment Commission shall forthwith become due and
payable without any other notice of any kind; and (ii) in the case of an
Event of Default specified in Section 10.01, 10.04, 10.08 or 10.09,
declare the principal of and any accrued interest in respect of all Loans and
the Notes and all obligations owing hereunder and thereunder to be, whereupon
the same shall become, forthwith due and payable without presentment, demand,
protest or other notice of any kind, all of which are hereby waived by each
Borrower.


SECTION 11.         THE
AGENT.


11.01       Appointment. The Banks hereby designate The Bank
of New York, as Agent to act as specified herein and in the other Credit
Documents. Each Bank hereby irrevocably authorizes, and each holder of any Note by the
acceptance of such Note shall be deemed irrevocably to authorize, the Agent to
take such action on its behalf under the provisions of this Agreement, the
other Credit Documents and any other instruments and agreements referred to
herein or therein and to exercise such powers and to perform such duties
hereunder and



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thereunder as are specifically delegated to or
required of the Agent by the terms hereof and thereof and such other powers as
are reasonably incidental thereto. The Agent may perform any of its duties
hereunder by or through its officers, directors, agents or employees.


11.02       Nature of Duties. The Agent shall not have any
duties or responsibilities except those expressly set forth in this Agreement. Neither
the Agent nor any of its officers, directors, agents or employees shall be liable
for any action taken or omitted by it or them hereunder or under any other
Credit Document or in connection herewith or therewith, unless caused by its or
their gross negligence or willful misconduct. The duties of the Agent shall be
mechanical and administrative in nature; the Agent shall not have by reason of
this Agreement or any other Credit Document a fiduciary relationship in respect
of any Bank or the holder of any Note; and nothing in this Agreement or any
other Credit Document, expressed or implied, is intended to or shall be so
construed as to impose upon the Agent any obligations in respect of this
Agreement or any other Credit Document except as expressly set forth herein or
therein.


11.03       Lack of Reliance on the Agent. Independently and
without reliance upon the Agent, each Bank and the holder of each Note, to the
extent it deems appropriate, has made and shall continue to make (i) its own
independent investigation of the financial condition and affairs of the
Borrowers in connection with the making and the continuance of the Loans and
the taking or not taking of any action in connection herewith and (ii) its
own appraisal of the creditworthiness of the Borrowers and, except as expressly
provided in this Agreement, the Agent shall not have any duty or
responsibility, either initially or on a continuing basis, to provide any Bank
or the holder of any Note with any credit or other information with respect
thereto, whether coming into its possession before the making of the Loans or
at any time or times thereafter. The Agent shall not be responsible to any Bank
or the holder of any Note for any recitals, statements, information,
representations or warranties herein or in any document, certificate or other
writing delivered in connection herewith or for the execution, effectiveness,
genuineness, validity, enforceability, perfection, collectibility, priority or
sufficiency of this Agreement or any other Credit Document or the financial
condition of any Borrower or be required to make any inquiry concerning either
the performance or observance of any of the terms, provisions or conditions of
this Agreement or any other Credit Document, or the financial condition of any
Borrower or the existence or possible existence of any Default or Event of
Default.


11.04       Certain Rights of the Agent. If the Agent shall
request instructions from the Banks with respect to any act or action
(including failure to act) in connection with this Agreement or any other Credit Document, the Agent
shall be entitled to refrain from such act or taking such action unless and
until the Agent shall have received instructions from the Required Banks; and
the Agent shall not incur liability to any Person by reason of so refraining. Without
limiting the foregoing, no Bank or the holder of any Note shall have any right
of action whatsoever against the Agent as a result of the Agent acting or
refraining from acting hereunder or under any other Credit Document in
accordance with the instructions of the Required Banks.


11.05       Reliance. The Agent shall be entitled to rely,
and shall be fully protected in relying, upon any note, writing, resolution,
notice, statement, certificate, telex, teletype or telecopier message, cablegram, radiogram, order
or other document or telephone message signed, sent or made by any Person that
the Agent believed to be the proper Person, and, with



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respect to all legal matters pertaining to this
Agreement and any other Credit Document and its duties hereunder and
thereunder, upon advice of counsel selected by the Agent.


11.06       Indemnification. To the extent the Agent is not
reimbursed and indemnified by the Borrowers, each Bank will reimburse and
indemnify the Agent for and against any and all liabilities, obligations, losses,
damages, penalties, claims, actions, judgments, costs, expenses or
disbursements of whatsoever kind or nature which may be imposed on, asserted
against or incurred by the Agent in performing its duties hereunder or under
any other Credit Document, in any way relating to or arising out of this
Agreement or any other Credit Document; provided that no Bank shall be liable
for any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting from the
Agent’s gross negligence or willful misconduct.


11.07       The Agent in Its Individual Capacity. With
respect to its obligation to make Loans under this Agreement, the Agent shall
have the rights and powers specified herein for a “Bank” and may exercise the same rights
and powers as though it was not performing the duties specified herein; and the
term “Banks”, “holders of Notes” or any similar terms shall, unless the context
clearly otherwise indicates, include the Agent in its individual capacity. The
Agent may accept deposits from, lend money to and generally engage in any kind
of banking, trust or other business with any Borrower or any Affiliate of any
Borrower as if it were not performing the duties specified herein, and may
accept fees and other consideration from any Borrower for services in
connection with this Agreement and otherwise without having to account for the
same to the Banks.


11.08       Holders. The Agent may deem and treat the payee
of any Note as the owner thereof for all purposes hereof unless and until a
written notice of the assignment, transfer or endorsement thereof, as the case may
be, shall have been filed with the Agent. Any request, authority or consent of
any Person who, at the time of making such request or giving such authority or
consent, is the holder of any Note shall be conclusive and binding on any
subsequent holder, transferee, assignee or indorsee, as the case may be, of
such Note or of any Note or Notes issued in exchange therefor.


11.09       Resignation by the Agent. (a)  The Agent
may resign from the performance of all its functions and duties hereunder
and/or under the other Credit Documents at any time by giving 15 Business Days’ prior
written notice to FSA and the Banks. In the case of the resignation by the
Agent, such resignation shall take effect upon the appointment of a successor
Agent pursuant to Section 11.09(b) or 11.09(c) or as otherwise
provided herein.


(b)           Upon any such notice
of resignation by the Agent, the Banks shall appoint a successor Agent
hereunder or thereunder who shall be a commercial bank or trust company
reasonably acceptable to FSA (it being understood and agreed that any Bank is
deemed to be acceptable to FSA).


(c)           If a successor Agent
shall not have been so appointed within such 15 Business Day period, the Agent,
with the consent of FSA, shall then appoint a successor Agent who shall serve
as Agent hereunder or thereunder until such time, if any, as the Banks appoint
a successor Agent as provided herein.



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(d)           If no successor
Agent has been appointed pursuant to Section 11.09(b) or 11.09(c) by
the 20th Business Day after the date such notice of resignation was given by
the Agent, the Agent’s resignation shall become effective and the Banks shall
thereafter perform all the duties of the Agent hereunder and/or under any other
Credit Document until such time, if any, as the Banks appoint a successor Agent
as provided herein.


SECTION 12.         MISCELLANEOUS.


12.01       Payment of Expenses, etc. Each Borrower
shall:  (i) whether or not the
transactions herein contemplated are consummated, pay all reasonable
out-of-pocket costs and expenses (a) of the Agent (including, without
limitation, the reasonable fees and disbursements of White & Case LLP,
counsel for the Agent) in connection with the preparation, execution and
delivery of this Agreement and the other Credit Documents and the documents and
instruments referred to herein and therein and any amendment, waiver or consent
relating hereto or thereto and (b) of the Agent and the Banks in
connection with the enforcement of this Agreement and the other Credit
Documents and the documents and instruments referred to herein and therein
(including, without limitation, the reasonable fees and disbursements of
counsel for the Agent and the Banks); (ii) pay and hold each Bank harmless
from and against any and all present and future stamp and other similar taxes
with respect to the foregoing matters and save such Bank harmless from and
against any and all liabilities with respect to or resulting from any delay or
omission (other than to the extent attributable to such Bank) to pay such
taxes; and (iii) indemnify each Bank, its officers, directors, employees,
representatives and agents from and hold each of them harmless against any and
all liabilities, obligations, losses, damages, penalties, claims, actions,
judgments, suits, and reasonable costs, expenses and disbursements incurred by
any of them as a result of, or arising out of, or in any way related to, or by
reason of, any investigation, litigation or other proceeding (whether or not
such Bank is a party thereto) related to the entering into and/or performance
of this Agreement or any other Credit Document or the use of the proceeds of
any Loans hereunder or the consummation of any transactions contemplated herein
or in any other Credit Document, including, without limitation, the reasonable
fees and disbursements of counsel incurred in connection with any such
investigation, litigation or other proceeding (but excluding any such
liabilities, obligations, losses, etc., to the extent incurred by reason
of the gross negligence or willful misconduct of the Person to be indemnified).


12.02       Right of Setoff. In addition to any rights now
or hereafter granted under applicable law or otherwise, and not by way of
limitation of any such rights, upon the occurrence of an Event of Default, each Bank is
hereby authorized at any time or from time to time, without presentment,
demand, protest or other notice of any kind to any Borrower or any of its
Subsidiaries or to any other Person, any such notice being hereby expressly
waived, to set off and to appropriate and apply any and all deposits (general
or special) and any other Indebtedness at any time held or owing by such Bank
(including, without limitation, by branches and agencies of such Bank wherever
located) to or for the credit or the account of any Borrower or any of its
Subsidiaries against and on account of the Obligations and liabilities of such
Borrower or any of its Subsidiaries to such Bank under this Agreement or under
any of the other Credit Documents, including, without limitation, all interests
in Obligations of such Borrower or any of its Subsidiaries purchased by such
Bank pursuant to Section 12.06(b), and all other claims of any nature or
description arising out of or connected with this Agreement or any other Credit



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Document, irrespective of whether or not such Bank
shall have made any demand hereunder and although such Obligations, liabilities
or claims, or any of them, shall be contingent or unmatured.


12.03       Notices. Except as otherwise expressly provided
herein, all notices and other communications provided for hereunder shall be in
writing (including telegraphic, telex, facsimile or cable communication) and mailed,
telegraphed, telexed, telecopied (with telephonic confirmation in the case of
any notice to the Agent), cabled or delivered: 
if to any Borrower or any Bank, at its address listed opposite its name
on the signature page hereto; and if to the Agent at its Notice Office; or
at such other address as shall be designated by such party in a written notice
to the other parties hereto. All such notices and communications shall when
mailed, telegraphed, telexed, telecopied, cabled or sent by overnight courier,
be effective upon receipt.


12.04       Benefit of Agreement. (a)  This Agreement
shall be binding upon and inure to the benefit of and be enforceable by the
respective successors and assigns of the parties hereto; provided, however, that (i) except
as provided herein, no Borrower may assign or transfer any of its rights or
obligations hereunder without the prior written consent of the Banks, (ii) although
any Bank may transfer, assign or grant participations in its rights hereunder
and under the Notes pursuant to this Section 12.04(a) with the
consent of FSA (such consent not to be unreasonably withheld, and such consent
not required in the case of an assignment to an Affiliate of the Bank with the
same ratings as the Bank), such Bank shall remain a “Bank” for all purposes
hereunder (and may not transfer or assign its Commitment hereunder except as
provided in Section 12.04(b)), and the transferee, assignee or
participant, as the case may be, shall not constitute a “Bank” hereunder and (iii) no
Bank shall transfer, grant or assign any participation under which the
participant shall have rights to approve any amendment to or waiver of this
Agreement or any of the other Credit Documents except to the extent such
amendment or waiver (A) extends the final maturity of any Loan or Note, or
reduces the rate or extends the time of payment of interest or Fees thereon, or
reduces the principal amount thereof, or increases the Commitment of any Bank
over the amount thereof then in effect (it being understood that a waiver of
any Default or Event of Default shall not constitute a change in the terms of
any Commitment of any Bank), (B) consents to the assignment or transfer by
any Borrower of any of its rights and obligations under any Credit Document or (C) amends,
modifies or waives any provision of this Section 12.04. In the case of any
such participation, the participant shall not constitute a “Bank” hereunder and
shall not have any rights under this Agreement or any of the other Credit
Documents (the participant’s rights against any Bank in respect of such
participation to be those set forth in the agreement executed by such Bank in
favor of the participant relating thereto) and all amounts payable by any
Borrower hereunder shall be determined as if such Bank had not sold such
participation, except that the participant shall be entitled to the benefits of
Sections 2.10, 2.11 and 4.04 of this Agreement to the extent that such
Bank would be entitled to such benefits if the participation had not been
transferred, granted or assigned.


(b)           Notwithstanding the
provisions of Section 2.04(a), any Bank (or any Bank together with one or
more other Banks) may assign all or a portion of its Commitment and related
outstanding rights and obligations hereunder to one or more Eligible
Transferees, each of which assignees shall become a party to this Agreement as
a Bank by execution of an Assignment and Assumption Agreement and delivery of
such Assignment and Assumption Agreement to FSA and the Agent, provided that (i) new
Notes will be issued to such new Bank in the stated amount of its assumed
Commitment and to the assigning Bank in the stated amount



 38
 






 



 


of the
Commitment, if any, retained by it upon the request of such new Bank or assigning
Bank and the surrender of the Notes previously issued to the assigning Bank (or
the execution and delivery to each relevant Borrower of an indemnity
satisfactory to such Borrower), such new Notes to be in conformity with the
requirements of Section 2.05 to the extent needed to reflect the revised
Commitments, and (ii) except in the case of an assignment to a Bank or an
Affiliate of a Bank with the same ratings as the Bank, the Agent and FSA must
give their prior written consent to such assignment (such consent not to be
unreasonably withheld). To the extent of any assignment pursuant to this Section 12.04(b),
the assigning Bank shall be relieved of its obligations hereunder with respect
to its assigned Commitment. At the time of each assignment pursuant to this Section 12.04(b) to
a Person which is not already a Bank hereunder and which is not a United States
person (as such term is defined in Section 7701(a)(30) of the Code) for
Federal income tax purposes, the respective assignee Bank shall, to the extent
legally entitled to do so, provide to FSA the forms described in Section 4.04(b)(ii) or
4.04(b)(iv) in the case of a Bank described in Section 4.04(b)(ii) or
4.04(b)(iv), respectively.


(c)           Upon the execution
and delivery of an Assignment and Assumption Agreement in accordance with, and
subject to the restrictions of, Section 12.04(b), and payment of a $3,500
assignment fee to the Agent by the relevant assignor or assignee, the assignee
thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder and under the other Credit Documents have been assigned
to it pursuant to such Assignment and Assumption Agreement, have the rights and
obligations of a “Bank” hereunder and thereunder.


(d)           Any Bank claiming
any amounts payable pursuant to Section 4.04 shall use reasonable efforts
(consistent with legal and regulatory restrictions and subject to overall
policy considerations of such Bank) to designate another lending office for its
Commitment or Loans or take such other action to minimize such amounts, as may
be reasonably requested by FSA, provided that such designation is made or such
other action is taken on such terms that such Bank and its lending office
suffer no economic, legal or regulatory disadvantage.


(e)           Nothing in this Agreement
shall prevent or prohibit any Bank from pledging its Loans and Notes to a
Federal Reserve Bank in support of borrowings made by such Bank from such
Federal Reserve Bank.


12.05       No Waiver; Remedies Cumulative. No failure or
delay on the part of any Bank or the holder of any Note in exercising any
right, power or privilege hereunder or under any other Credit Document and no course of
dealing between any Borrower and any Bank or the holder of any Note shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, power or privilege hereunder or under any other Credit Document preclude
any other or further exercise thereof or the exercise of any other right, power
or privilege hereunder or thereunder. Except as otherwise expressly provided
herein or in any other Credit Document, the rights, powers and remedies herein
or in any other Credit Document expressly provided are cumulative and not
exclusive of any rights, powers or remedies which any Bank would otherwise have.
No notice to or demand on any Borrower in any case shall entitle such Borrower
or any other Borrower to any other or further notice or demand in similar or
other circumstances or constitute a waiver of the rights of any Bank or the
holder of any Note to any other or further action in any circumstances without
notice or demand.



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12.06       Calculations; Computations. (a)  The
financial statements to be furnished to the Banks pursuant to Section 8.01(a) and
8.01(b) shall be made and prepared in accordance with generally accepted accounting
principles in the United States, in each case consistently applied throughout
the periods involved (except as set forth in the notes thereto or as otherwise
disclosed in writing by FSA to the Banks).


(b)           All computations of
interest, Commitment Commission and Fees hereunder shall be made on the basis
of a year of 360 days for the actual number of days (including the first day
but excluding the last day) occurring in the period for which such interest,
Commitment Commission or Fees are payable.


12.07       Governing Law; Submission to Jurisdiction; Venue.
(a)  This Agreement and the other Credit Documents and the rights and
obligations of the parties hereunder and thereunder shall be construed in accordance
with and be governed by the law of the State of New York. Any legal action or
proceeding against any Borrower with respect to this Agreement or any other
Credit Document 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 Agreement, each Borrower hereby irrevocably accepts for itself
and in respect of its property, generally and unconditionally, the jurisdiction
of such courts. Each 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
such Borrower at its address set forth opposite its signature below, such
service to become effective 10 days after such mailing. Nothing herein shall
affect the right of the Agent or any Bank under this Agreement to serve process
in any other manner permitted by law or to commence legal proceedings or
otherwise proceed against any Borrower in any other jurisdiction.


(b)           Each Borrower hereby
irrevocably waives any objection which it may now or hereafter have to the
laying of venue of any action or proceeding arising out of or in connection
with this Agreement or any other Credit Document brought in the courts referred
to in Section 12.07(a) 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.


12.08       Obligation to Make Payments in Dollars. The
obligation of each Borrower to make payment in Dollars of the principal of and
interest on the Notes and any other amounts due hereunder or under any other Credit
Document to the Payment Office of the Agent as provided in Section 4.03
shall not be discharged or satisfied by any tender, or any recovery pursuant to
any judgment, which is expressed in or converted into any currency other than
Dollars, except to the extent such tender or recovery shall result in the
actual receipt by the Agent at its Payment Office of the full amount of Dollars
expressed to be payable in respect of the principal of and interest on the
Notes and all other amounts due hereunder or under any other Credit Document. The
obligation of each Borrower to make payments in Dollars shall be enforceable as
an alternative or additional cause of action for the purpose of recovery in
Dollars of the amount, if any, by which such actual receipt shall fall short of
the full amount of Dollars expressed to be payable in respect of the principal
of and interest on the Notes and any other amounts due under any other Credit
Document, and shall not be affected by judgment being obtained for any other
sums due under this Agreement or under any other Credit Document.



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12.09       Counterparts. This Agreement may be executed in
any number of counterparts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an original, but
all of which shall together constitute one and the same instrument. A set of
counterparts executed by all the parties hereto shall be lodged with FSA and
the Agent.


12.10       Effectiveness. This Agreement shall become
effective on the Effective Date.


12.11       Table of Contents and Headings Descriptive. The
table of contents and the headings of the several sections and subsections of
this Agreement are inserted for convenience only and shall not in any way affect the
meaning or construction of any provision of this Agreement.


12.12       Amendment or Waiver. Neither this Agreement nor
any other Credit Document nor any terms hereof or thereof may be changed,
waived, discharged or terminated unless such change, waiver, discharge or termination is
in writing signed by FSA, the Required Banks and the Agent; provided, however,
that no such change, waiver, discharge or termination shall, without the
consent of each Bank, (i) extend the maturity of any Loan or Note other
than in accordance with Section 3.04 or reduce the rate or extend the time
of payment of interest or Fees thereon, or reduce the principal amount thereof,
or increase the Commitment of any Bank without the consent of such Bank (it
being understood that a waiver of any Default or Event of Default shall not
constitute a change in the terms of any Commitment of any Bank), (ii) reduce
the percentage specified in the definition of Required Banks, (iii) consent
to the assignment or transfer by any Borrower or Designee of any of its rights
or obligations under any Credit Document or (iv) result in any
termination, release or material amendment of any Insurance Policy.


12.13       Survival. All indemnities set forth herein
including, without limitation, in Sections 2.10, 2.11, 4.04 and 12.01
shall survive the execution and delivery of this Agreement and the Notes and
the making and repayment
of the Loans.


12.14       Confidentiality. Each of the Agent and each Bank
severally agrees to keep information delivered or made available by or on
behalf of the Borrowers pursuant to this Agreement confidential from anyone other than its
employees, directors, legal counsel, independent auditors, other advisors and
prospective assignees and participants (all of whom shall agree to similar
restrictions), provided, however, that nothing herein shall prevent the Agent
or any Bank from disclosing such information (a) to any other Bank or the
Agent, (b) in response to a subpoena or other order of a court or
administrative agency provided that the Agent or Bank, as applicable, shall (to
the extent legally permitted) promptly notify FSA of such subpoena or other order,
(c) to the extent necessary in connection with the exercise of any remedy
hereunder, (d) if such information is or becomes generally available to
the public other than as a result of a disclosure by the Agent or a Bank
prohibited by this Agreement or (e) if such information is or becomes
available to the Agent or Bank, as applicable, from a source (other than a
Borrower) that is not bound by an obligation of confidentiality to the
Borrowers.



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IN
WITNESS WHEREOF, the parties hereto have caused their duly authorized officers
to execute and deliver this Agreement as of the date first above written.


	
  Address

  	
   

  	
  FINANCIAL SECURITY ASSURANCE INC.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  31 West 52nd Street

  	
   

  	
   

  	
   

  
	
  New York, New
  York 10019

  	
   

  	
  By

  	
  /s/ Bruce E. Stern

  	
   

  
	
  Attention:
  Treasurer

  	
   

  	
   

  	
  Name: Bruce E. Stern

  	
   

  
	
   

  	
   

  	
   

  	
  Title: General Counsel & Managing Director

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  with a copy to:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  31 West 52nd Street

  	
   

  	
   

  	
   

  
	
  New York, New
  York 10019

  	
   

  	
   

  	
   

  
	
  Attention:
  General Counsel

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  FSA INSURANCE COMPANY

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
  /s/ Bruce E. Stern

  	
   

  
	
   

  	
   

  	
   

  	
  Name: Bruce E. Stern

  	
   

  
	
   

  	
   

  	
   

  	
  Title: General Counsel & Managing Director

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  FINANCIAL SECURITY ASSURANCE (U.K.) LIMITED

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
  /s/ Bruce E. Stern

  	
   

  
	
   

  	
   

  	
   

  	
  Name: Bruce E. Stern

  	
   

  
	
   

  	
   

  	
   

  	
  Title: General Counsel

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  THE BANK OF NEW YORK,

  	
   

  
	
   

  	
   

  	
   

  	
  Individually and as Agent

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
  /s/ Sreecaran Ganesan

  	
   

  
	
   

  	
   

  	
   

  	
  Name: Sreecaran Ganesan

  	
   

  
	
   

  	
   

  	
   

  	
  Title: Vice President

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  JPMORGAN CHASE BANK, N.A.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
  /s/ Lawrence Palumbo, Jr.

  	
   

  
	
   

  	
   

  	
   

  	
  Name: Lawrence Palumbo, Jr.

  	
   

  
	
   

  	
   

  	
   

  	
  Title: Vice President

  	
   

  




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  HARRIS NESBITT FINANCING, INC.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
  /s/ Stephen Maenhout

  	
   

  
	
   

  	
   

  	
   

  	
  Name: Stephen Maenhout

  	
   

  
	
   

  	
   

  	
   

  	
  Title: Vice President

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  KEYBANK NATIONAL ASSOCIATION

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
  /s/ Mary K. Young

  	
   

  
	
   

  	
   

  	
   

  	
  Name: Mary K. Young

  	
   

  
	
   

  	
   

  	
   

  	
  Title: Sr. Vice President

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  US BANK, NA

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
  /s/ Patrick H. McGraw, Jr.

  	
   

  
	
   

  	
   

  	
   

  	
  Name: Patrick H. McGraw, Jr.

  	
   

  
	
   

  	
   

  	
   

  	
  Title: Vice President, U.S. Bank N.A.

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  CAJA DE AHORROS Y MONTE DE PIEDAD

  	
   

  
	
   

  	
   

  	
   

  	
  DE MADRID MIAMI AGENCY

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
  /s/ Pablo Hernandez

  	
   

  
	
   

  	
   

  	
   

  	
  Name: Pablo Hernandez

  	
   

  
	
   

  	
   

  	
   

  	
  Title: Head of IFIS

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
  /s/ Ricardo Benede

  	
   

  
	
   

  	
   

  	
   

  	
  Name: Ricardo Benede

  	
   

  
	
   

  	
   

  	
   

  	
  Title: Corporate Banking

  	
   

  



 



 43














 


SCHEDULE I


BORROWERS


FSA
Insurance Company, an Oklahoma corporation


Financial
Security Assurance (U.K.) Limited, a U.K. insurance company









 



 


SCHEDULE II


SCHEDULE OF
COMMITMENTS




	
  

  	
  Name of Bank

  	
   

  	
   

  	
  Commitment

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  The Bank of New
  York

  	
   

  	
  $

  	
  28,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  JPMorgan Chase
  Bank, N.A.

  	
   

  	
  28,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Harris Nesbitt
  Financing, Inc.

  	
   

  	
  28,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  KeyBank National
  Association

  	
   

  	
  28,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  US Bank, N.A.

  	
   

  	
  28,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Caja de Ahorros y Monte de
  Piedad

  	
   

  	
   

  	
   

  
	
  de Madrid Miami Agency

  	
   

  	
  10,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Total

  	
   

  	
  $

  	
  150,000,000

  	
   

  






 









 



 


SCHEDULE III


Lending
Offices


	
  Bank

  	
   

  	
   

  	
   

  	
  Bank Rate Office

  	
   

  	
  Eurodollar Lending Office

  
	
  The Bank of New York

  	
   

  	
  1 Wall Street

  New York, NY 10286

  	
   

  	
  1 Wall Street

  New York, NY 10286

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  JPMorgan Chase Bank,
  N.A.

  	
   

  	
  270 Park Avenue

  15th Floor

  New York, NY 10017

  	
   

  	
  270 Park Avenue

  15th Floor

  New York, NY 10017

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Harris Nesbitt
  Financing, Inc.

  	
   

  	
  115 South LaSalle
  Street

  12 Floor West

  Chicago, IL 60603

  	
   

  	
  115 South LaSalle
  Street

  12 Floor West

  Chicago, IL 60603

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  KeyBank National

  	
   

  	
  127 Public Square

  	
   

  	
  127 Public Square

  
	
  Association

  	
   

  	
  Cleveland, OH 44114

  	
   

  	
  Cleveland, OH 44114

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  US Bank, N.A.

  	
   

  	
  US Bank Tower

  425 Walnut Street, 8th Floor

  Cincinnati, OH 45202

  	
   

  	
  US Bank Tower

  425 Walnut Street, 8th Floor

  Cincinnati, OH 45202

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Caja de Ahorros y Monte
  de

  	
   

  	
  701 Brickell Avenue

  	
   

  	
  701 Brickell Avenue

  
	
  Piedad de Madrid Miami 

  	
   

  	
  Suite 2000

  	
   

  	
  Suite 2000

  
	
  Agency

  	
   

  	
  Miami, FL 33131

  	
   

  	
  Miami, FL 33131