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

 

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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

 

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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.

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“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:

 

“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.

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“Borrow