SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
(Mark One)
|X| QUARTERLY REPORT UNDER SECTION 13 OR 15 (d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended September 30, 1998
OR
|_| TRANSITION REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from __________ to __________
Commission File No. 1-12644
Financial Security Assurance Holdings Ltd.
(Exact name of registrant as specified in its charter)
New York 13-3261323
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
350 Park Avenue
New York, New York 10022
(Address of principal executive offices)
(212) 826-0100
(Registrant's telephone number,
including area code)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes |X| No |_|
At November 6, 1998, there were outstanding 31,533,781 shares of Common Stock,
par value $0.01 per share, of the registrant (includes 1,626,678 shares of
Common Stock owned by a trust on behalf of the registrant and excludes 742,520
shares of Common Stock actually held in treasury).
<PAGE>
INDEX
PAGE
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PART I FINANCIAL INFORMATION
Item 1. Financial Statements
Financial Security Assurance Holdings Ltd. and Subsidiaries
Consolidated Balance Sheets - September 30, 1998 and
December 31, 1997 3
Consolidated Statements of Income - Three and nine months
ended September 30, 1998 and 1997 4
Consolidated Statement of Changes in Shareholders' Equity
- Nine months ended September 30, 1998 5
Consolidated Statements of Cash Flows
- Nine months ended September 30, 1998 and 1997 6
Notes to Consolidated Financial Statements 7
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations 9
PART II OTHER INFORMATION, AS APPLICABLE
Item 5. Other Information 14
Item 6. Exhibits and Reports on Form 8-K 14
SIGNATURES 15
2
<PAGE>
FINANCIAL SECURITY ASSURANCE HOLDINGS LTD.
AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(Dollars in thousands, except per share data)
<TABLE>
<CAPTION>
September 30, December 31,
ASSETS 1998 1997
---- ----
<S> <C> <C>
Bonds at market value (amortized cost of $1,415,814 and
$1,230,479) $ 1,481,100 $ 1,268,158
Equity investments at market value (cost of $35,969 and
$29,430) 36,886 30,539
Short-term investments 85,413 132,931
----------- -----------
Total investments 1,603,399 1,431,628
Cash 5,985 12,475
Deferred acquisition costs 186,700 171,098
Prepaid reinsurance premiums 202,139 173,123
Reinsurance recoverable on unpaid losses 1,872 30,618
Receivable for securities sold 17,390 20,623
Other assets 75,265 61,079
----------- -----------
TOTAL ASSETS $ 2,092,750 $ 1,900,644
=========== ===========
LIABILITIES AND SHAREHOLDERS' EQUITY
Deferred premium revenue $ 682,228 $ 595,196
Losses and loss adjustment expenses 61,323 75,417
Deferred federal income taxes 59,571 56,872
Ceded reinsurance balances payable 24,370 11,199
Payable for securities purchased 84,441 72,979
Notes payable 130,000 130,000
Accrued expenses and other liabilities 85,376 76,621
----------- -----------
TOTAL LIABILITIES 1,127,309 1,018,284
----------- -----------
Preferred stock (3,000,000 shares authorized; 2,000,000
issued and outstanding; par value of $.01 per share) 20 20
Common stock (50,000,000 shares authorized; 32,276,301
issued; par value of $.01 per share) 323 323
Additional paid-in capital - preferred 680 680
Additional paid-in capital - common 693,845 693,851
Accumulated other comprehensive income (net of deferred
income tax provision of $23,123 and $13,575) 42,942 25,212
Accumulated earnings 307,220 231,124
Deferred equity compensation 33,358 26,181
Less treasury stock at cost (3,868,202 and 3,521,847 shares
held) (112,947) (95,031)
----------- -----------
TOTAL SHAREHOLDERS' EQUITY 965,441 882,360
----------- -----------
TOTAL LIABILITIES AND SHAREHOLDERS' EQUITY $ 2,092,750 $ 1,900,644
=========== ===========
</TABLE>
See notes to condensed consolidated financial statements.
3
<PAGE>
FINANCIAL SECURITY ASSURANCE HOLDINGS LTD.
AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF INCOME
(Dollars in thousands, except per share data)
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
September 30, September 30,
------------- -------------
1998 1997 1998 1997
---- ---- ---- ----
<S> <C> <C> <C> <C>
Revenues:
Net premiums written (net of premiums ceded
of $22,562, $13,559, $66,074 and $50,986) $ 54,462 $ 28,911 $ 154,530 $ 123,590
Increase in deferred premium revenue (21,844) (1,707) (57,539) (44,051)
--------- --------- --------- ---------
Premiums earned (net of premiums ceded of
$11,796, $9,525, $37,497 and $28,791) 32,618 27,204 96,991 79,539
Net investment income 19,710 17,920 57,648 51,402
Net realized gains 8,907 5,315 15,579 6,648
Other income 44 5,765 400 9,022
--------- --------- --------- ---------
TOTAL REVENUES 61,279 56,204 170,618 146,611
--------- --------- --------- ---------
Expenses:
Losses and loss adjustment expenses (net of
reinsurance recoveries of $88, $443, $(6,780)
and $2,881) 1,046 2,426 3,140 6,867
Interest expense 2,408 1,834 7,250 2,917
Policy acquisition costs 8,397 7,365 25,311 20,714
Other operating expenses 6,978 6,683 18,170 15,893
--------- --------- --------- ---------
TOTAL EXPENSES 18,829 18,308 53,871 46,391
--------- --------- --------- ---------
INCOME BEFORE INCOME TAXES 42,450 37,896 116,747 100,220
Provision for income taxes 11,462 10,671 31,264 27,512
--------- --------- --------- ---------
NET INCOME 30,988 27,225 85,483 72,708
Other comprehensive income, net of tax:
Unrealized gains on securities:
Unrealized holding gains arising during period 21,069 12,791 27,856 17,275
Less: reclassification adjustment for gains
included in net income (5,789) (3,455) (10,126) (4,321)
--------- --------- --------- ---------
Other comprehensive income 15,280 9,336 17,730 12,954
--------- --------- --------- ---------
COMPREHENSIVE INCOME $ 46,268 $ 36,561 $ 103,213 $ 85,662
========= ========= ========= =========
As based upon net income:
Basic earnings per common share $ 1.08 $ 0.91 $ 2.95 $ 2.42
========= ========= ========= =========
Diluted earnings per common share $ 1.03 $ 0.88 $ 2.83 $ 2.36
========= ========= ========= =========
</TABLE>
See notes to condensed consolidated financial statements.
4
<PAGE>
FINANCIAL SECURITY ASSURANCE HOLDINGS LTD.
AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF CHANGES IN SHAREHOLDERS' EQUITY
(Dollars in thousands)
<TABLE>
<CAPTION>
Additional Additional Accumulated Deferred
Paid-In Paid-In Other Comp- Equity
Preferred Common Capital - Capital - rehensive Accumulated Compen- Treasury
Stock Stock Preferred Common Income Earnings sation Stock Total
----- ----- --------- ------ ------ -------- ------ ----- -----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
BALANCE, December 31, 1997 $20 $323 $680 $693,851 $25,212 $231,124 $26,181 $(95,031) $882,360
Net income 85,483 85,483
Net unrealized gain on
investments 17,730 17,730
Dividends paid on common stock
($0.3275 per share) (9,387) (9,387)
Deferred equity compensation 11,101 11,101
Deferred equity payout 492 (3,857) 204 (3,161)
Purchase of 359,650 shares of
common stock (18,455) (18,455)
Issuance of 13,295 shares of
treasury stock for options
exercised (16) (67) 335 252
Forward share transactions-
settlements with employees
and directors (482) (482)
--- ---- ---- -------- ------- -------- ------- --------- --------
BALANCE, September 30, 1998 $20 $323 $680 $693,845 $42,942 $307,220 $33,358 $(112,947) $965,441
=== ==== ==== ======== ======= ======== ======= ========= ========
</TABLE>
See notes to condensed consolidated financial statements.
5
<PAGE>
FINANCIAL SECURITY ASSURANCE HOLDINGS LTD.
AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Dollars in thousands)
<TABLE>
<CAPTION>
Nine Months Ended September 30,
-------------------------------
1998 1997
---- ----
<S> <C> <C>
Cash flows from operating activities:
Premiums received, net $ 173,581 $ 119,152
Policy acquisition and other operating expenses
paid, net (46,928) (33,278)
Loss and LAE recovered (paid), net 10,928 (7,131)
Net investment income received 56,368 49,136
Recoverable advances received (paid) 1,884 (6,242)
Federal income taxes paid (41,804) (13,479)
Interest paid (7,217) (2,442)
Other, net (1,235) 653
------------ ------------
Net cash provided by operating activities 145,577 106,369
------------ ------------
Cash flows from investing activities:
Proceeds from sales of bonds 1,401,419 789,671
Purchases of bonds (1,562,778) (853,566)
Other, net (14,208) 7,986
Purchases of property and equipment (898) (2,547)
Net decrease (increase) in short-term securities 51,708 (131,920)
------------ ------------
Net cash used for investing activities (124,757) (190,376)
------------ ------------
Cash flows from financing activities:
Issuance of long-term debt, net 125,905
Repayment of debt (30,000)
Dividends paid (9,387) (8,879)
Treasury stock (18,252) (2,215)
Other 329 (540)
------------ ------------
Net cash provided by (used for) financing
activities (27,310) 84,271
------------ ------------
Net increase (decrease) in cash (6,490) 264
Cash at beginning of period 12,475 8,146
------------ ------------
Cash at end of period $ 5,985 $ 8,410
============ ============
</TABLE>
See notes to condensed consolidated financial statements.
6
<PAGE>
FINANCIAL SECURITY ASSURANCE HOLDINGS LTD.
AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
For the Nine Months Ended September 30, 1998 and 1997
1. ORGANIZATION AND OWNERSHIP
Financial Security Assurance Holdings Ltd. (the Company) is an insurance
holding company domiciled in the State of New York. The Company is primarily
engaged (through its insurance subsidiaries, collectively known as FSA) in the
business of providing financial guaranty insurance on asset-backed and municipal
obligations. At September 30, 1998, the Company was owned 42.6% by MediaOne
Capital Corporation (MediaOne), formerly U S WEST Capital Corporation, 12.2% by
Fund American Enterprises Holdings, Inc. (Fund American) and its subsidiaries,
6.8% by The Tokio Marine and Fire Insurance Co., Ltd. (Tokio Marine) and 38.4%
by the public and employees. These percentages are calculated based upon
outstanding shares, which are reduced by treasury shares as presented in these
financial statements.
2. BASIS OF PRESENTATION
The accompanying consolidated financial statements have been prepared in
accordance with instructions to Form 10-Q and, accordingly, do not include all
of the information and disclosures required by generally accepted accounting
principles. These statements should be read in conjunction with the consolidated
financial statements and notes thereto included in the Company's 1997 Annual
Report to Shareholders. The accompanying financial statements have not been
audited by independent accountants in accordance with generally accepted
auditing standards but, in the opinion of management, all adjustments, which
include only normal recurring adjustments, necessary to present fairly the
financial position, results of operations and cash flows at September 30, 1998
and for all periods presented have been made. The December 31, 1997 condensed
balance sheet data was derived from audited financial statements, but does not
include all disclosures required by generally accepted accounting principles.
The results of operations for the periods ended September 30, 1998 and 1997 are
not necessarily indicative of the operating results for the full year.
3. COMPREHENSIVE INCOME
The Company adopted Statement of Financial Accounting Standards (SFAS) No.
130, Reporting Comprehensive Income, which requires that all components of other
comprehensive income be classified by their nature in a financial statement and
accumulated balances of other comprehensive income be displayed separately from
retained earnings and additional paid-in capital in the equity section of a
balance sheet. The Company is disclosing this information in its statements of
income. Comprehensive income is defined as the change in shareholders' equity
during a period from transactions and other events and circumstances from
non-owner sources and includes net income and all changes in shareholders'
equity except those from investments by owners and distributions to owners. This
statement did not change the current accounting treatment for components of
comprehensive income such as changes in unrealized gains or losses on securities
available for sale.
4. RECENTLY ISSUED ACCOUNTING STANDARD
In June 1998, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 133, Accounting for Derivative Instruments
and Hedging Activities (FAS No. 133). FAS No. 133 establishes accounting and
reporting standards for derivative instruments, including certain derivative
instruments embedded in other contracts, and hedging activities. It requires
that an entity recognize all derivatives as either assets or liabilities in the
statement of financial position and measure those instruments at fair value. FAS
No. 133 is effective for all fiscal quarters of fiscal years beginning after
June 15, 1999. The impact of FAS No. 133 on the Company has not yet been
determined.
7
<PAGE>
5. SUBSEQUENT EVENTS
On November 3, 1998, the Company and EXEL Limited closed a transaction to
create two new Bermuda-based financial guaranty insurance companies. Each of the
new companies has been initially capitalized with approximately $100,000,000.
One company, Financial Security Assurance International Ltd., is an indirect
subsidiary of FSA and the other company, X.L. Financial Assurance Ltd., is a
subsidiary of EXEL Limited. The Company has a minority interest in the EXEL
company, and EXEL has a minority interest in the FSA company. In conjunction
with forming the new companies, the Company and EXEL Limited swapped $80,000,000
of their respective common shares, with the Company delivering to EXEL Limited
1,632,653 common shares out of treasury. The Company then sold $60,000,000 of
the EXEL shares to an unrelated third party in order to fund, in part, its
investment in Financial Security Assurance International Ltd.
On November 6, 1998, the Company entered into an agreement to sell,
subject to customary closing conditions, $100,000,000 of 6.95% Senior Quarterly
Income Debt Securities due 2098 and callable without premium or penalty
commencing November, 2003 or at any time following certain tax events. The
proceeds from the sale of the securities will be used to augment the capital of
the Company's insurance company subsidiaries and for general corporate purposes.
8
<PAGE>
FINANCIAL SECURITY ASSURANCE HOLDINGS LTD.
AND SUBSIDIARIES
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS
Results of Operations
1998 and 1997 Third Quarter Results
The Company's 1998 third quarter net income was $31.0 million, compared with
$27.2 million for the same period in 1997, an increase of 13.8%. Core net income
(operating net income less the after-tax effect of refundings and prepayments)
was $27.3 million, compared with $22.5 million for the same period in 1997, an
increase of 21.5%. Total core revenues in the third quarter of 1998 increased
$8.1 million, from $43.3 million in 1997 to $51.4 million in 1998, while total
core expenses increased $1.9 million. Operating net income (net income less the
after-tax effect of net realized capital gains or losses and the cost of the
performance share program and other non-operating items) was $27.8 million for
the third quarter of 1998 versus $23.5 million for the comparable period in
1997, an increase of $4.3 million or 18.5%.
There are two measures of gross premiums originated for a given period. Gross
premiums written captures premiums collected in the period, whether collected
up-front for business originated in the period, or in installments for business
originated in prior periods. An alternative measure, the gross present value of
premiums written (gross PV premiums written) reflects future installment
premiums discounted to a present value, as well as up-front premiums, but only
for business originated in the period. At the beginning of 1998, the Company
revised the discount rate used to estimate gross PV premiums written in order to
more accurately reflect current interest rates. The new discount rate of 6.3%
represents the average pre-tax yield on the Company's investment portfolio for
the previous three years. The Company intends to revise the discount rate in
future years according to the same formula. For business written prior to 1998,
the discount rate remains 9.5% in all years. The change to the new discount rate
has no effect on current or future earned premiums. The Company considers gross
PV premiums written to be the better indicator of a given period's origination
activity because a substantial part of the Company's premiums are collected in
installments, a practice typical of the asset-backed business. Regardless of the
measure used, quarter to quarter comparisons are of limited significance because
originations fluctuate from quarter to quarter but historically have not
exhibited a seasonal pattern.
Gross premiums written increased 81.4%, to $77.0 million for the third quarter
of 1998 from $42.5 million for the third quarter of 1997. Gross PV premiums
written increased 102.5%, to $89.9 million in 1998 from $44.4 million in the
third quarter of 1997. The increase in gross PV premiums written was the result
of higher volume in both the municipal sector and the asset-backed sector. In
the third quarter of 1998, asset-backed gross PV premiums written were $40.0
million, as compared with $18.1 million in 1997, an increase of 121.2%. For the
municipal business, gross PV premiums written in the third quarter increased
from $26.3 million in 1997 to $49.9 million in 1998, an increase of 89.7%.
In the third quarter of 1998, the Company insured par value of bonds totaling
$13.4 billion, an 85.6% increase over the same period in 1997. FSA's third
quarter asset-backed component rose 28.7% to $4.9 billion while its municipal
sector rose 148.7% to $8.5 billion.
Net premiums written were $54.5 million for the third quarter of 1998, an
increase of 88.4% when compared with 1997. Net premiums earned for the third
quarter of 1998 were $32.6 million, compared with $27.2 million in the third
quarter of 1997, an increase of 19.9%. Premiums earned from refundings and
prepayments were $1.0 million for the third quarter of 1998 and $2.2 million for
the same period of 1997, contributing $0.5 million and $1.0 million,
respectively, to after-tax earnings. Net premiums earned for the quarter grew
26.4% relative to the same period in 1997 when the effects of refundings and
prepayments are eliminated.
9
<PAGE>
Net investment income was $19.7 million for the third quarter of 1998 and $17.9
million for the comparable period in 1997, an increase of 10.0%. The Company's
effective tax rate on investment income was 20.1% for the third quarter of 1997
compared with 17.2% for the same period in 1998. In the third quarter of 1998,
the Company realized $8.9 million in net capital gains as compared with net
capital gains of $5.3 million for the same period in 1997. Capital gains and
losses are a by-product of the normal investment management process and will
vary substantially from period to period.
During the third quarter of 1997, the Company realized a $5.4 million net gain
from the sale of a subsidiary. The subsidiary was sold because its insurance
licenses were no longer required.
The provision for losses and loss adjustment expenses during the third quarter
of 1998 was $1.0 million compared with $2.4 million in 1997, representing
additions to the Company's general loss reserve. The additions to the general
loss reserve represent management's estimate of the amount required to
adequately cover the net cost of claims. The Company will, on an ongoing basis,
monitor these reserves and may periodically adjust such reserves based on the
Company's actual loss experience, its future mix of business, and future
economic conditions. At September 30, 1998, the unallocated balance in the
Company's general loss reserve was $55.3 million.
Total policy acquisition and other operating expenses (excluding the cost of the
performance share program of $4.0 million for the third quarter of 1998 compared
with $3.9 million for the same period of 1997) were $11.4 million for the third
quarter of 1998 compared with $10.1 million for the same period in 1997, an
increase of 12.5%. Excluding the effects of refundings, total policy acquisition
and other operating expenses were $11.1 million for the third quarter of 1998
compared with $9.4 million for the same period in 1997, an increase of 18.0%.
The increase was the result of higher DAC amortization due to a higher level of
premiums earned, personnel costs and bank facility fees.
Income before income taxes for the third quarter of 1998 was $42.5 million, up
from $37.9 million, or 12.0%, for the same period in 1997.
The Company's effective tax rate for the third quarter of 1998 was 27.0%
compared with 28.2% for the same period in 1997.
The weighted average number of diluted shares of common stock outstanding
decreased to 30,012,000 for the quarter ended September 30, 1998, from
31,069,000 during the third quarter of 1997. This decrease was due to shares the
Company repurchased to fund obligations under employee benefit plans and to
close out a portion of its forward share purchase arrangement, as discussed in
previous filings, partially offset by an increase in the dilutive effect of its
convertible preferred stock and shares issuable under its performance share
program. Diluted earnings per share increased to $1.03 for the third quarter of
1998 from $0.88 for the same period in 1997.
The Company has assessed its internal operating systems and software for Year
2000 compliance. Management does not expect that the arrival of the Year 2000
will require any material upgrade to its internal systems or software. The
Company is conducting a survey of Year 2000 readiness of trustees, servicers,
issuers and other parties in FSA-insured transactions. While such other parties
have not informed the Company of any material issues regarding Year 2000
readiness, there can be no assurance that each such party will be Year 2000
compliant. Failure by an issuer or servicer in an FSA-insured transaction to be
Year 2000 compliant may result in unanticipated claims upon FSA. While FSA
generally would be entitled to reimbursement for any such claims paid, the
liquidity exposure to FSA from such claims could be material. Failure by a
trustee in an FSA-insured transaction to make payments to insured
securityholders due to failure by the trustee to be Year 2000 compliant
generally would not entitle the trustee to make claims upon FSA.
1998 and 1997 First Nine Months Results
The Company's 1998 first nine months net income was $85.5 million, compared with
$72.7 million for the same period in 1997, an increase of 17.6%. Core net income
was $78.3 million, compared with $65.1 million for the same period in 1997, an
increase of 20.3%. Total core revenues in the first nine months of 1998
increased $21.7 million, from $124.2 million in 1997 to $145.9 million in 1998,
while total core expenses increased $4.5 million. Operating net income was $82.6
million for the first nine months of 1998 versus $68.6 million for the
comparable period in 1997, an increase of $14.0 million or 20.3%.
10
<PAGE>
Gross premiums written increased 26.4%, to $220.6 million for the first nine
months of 1998 from $174.6 million for the same period in 1997. Also, gross PV
premiums written increased 42.4%, to $247.9 million in 1998 from $174.1 million
for the comparable period in 1997. In the first nine months of 1998,
asset-backed gross PV premiums written were $91.9 million, as compared with
$78.3 million in the same period during 1997, an increase of 17.4% due to higher
levels of consumer and structured finance transactions partially offset by lower
international business. For the municipal business, gross PV premiums written in
the first nine months increased to $156.0 million in 1998 from $95.8 million in
1997, an increase of 62.8%.
In the first nine months of 1998, the Company insured par value of bonds
totaling $39.6 billion, a 68.5% increase over the same period in 1997. For the
first nine months, FSA's asset-backed sector rose 14.1% to $14.4 billion while
its municipal sector rose 132.1% to $25.2 billion.
Net premiums written were $154.5 million for the first nine months of 1998, an
increase of $30.9 million, or 25.0%, when compared with the same period during
1997. Net premiums earned for the first nine months of 1998 were $97.0 million,
compared with $79.5 million in the same period of 1997, an increase of 21.9%.
Premiums earned from refundings and prepayments were $9.2 million for the first
nine months of 1998 and $7.8 million for the same period of 1997, contributing
$4.3 million and $3.6 million, respectively, to after-tax earnings. Net premiums
earned for the first nine months grew 22.3% relative to the same period in 1997
when the effects of refundings and prepayments are eliminated.
Net investment income was $57.6 million for the first nine months of 1998 and
$51.4 million for the comparable period in 1997, an increase of 12.1%. The
Company's effective tax rate on investment income was 19.7% for the first nine
months of 1997 compared with 17.8% for the same period in 1998. In the first
nine months of 1998, the Company realized $15.6 million in net capital gains as
compared with $6.6 million for the same period in 1997. Capital gains and losses
are a by-product of the normal investment management process and will vary
substantially from period to period. The Company also realized in the first nine
months of 1997 a net gain of $7.0 million on the sale of non-essential
subsidiaries.
The provision for losses and loss adjustment expenses during the first nine
months of 1998 was $3.1 million compared with $6.9 million for the same period
in 1997, representing additions to the Company's general loss reserve.
Total policy acquisition and other operating expenses (excluding the cost of the
performance share program of $11.1 million for the first nine months of 1998
compared with $7.4 million for the same period of 1997) were $32.4 million for
the first nine months of 1998 compared with $29.2 million for the same period in
1997, an increase of 10.9%. Excluding the effects of refundings, total policy
acquisition and other operating expenses were $29.8 million for the first nine
months of 1998 compared with $26.9 million for the same period in 1997, an
increase of 10.7%.
Income before income taxes for the first nine months of 1998 was $116.7 million,
up from $100.2 million, or 16.5%, for the same period in 1997.
The Company's effective tax rate for the first nine months of 1998 was 26.8%
compared with 27.5% for the same period in 1997.
The weighted average number of diluted shares of common stock outstanding
decreased from 30,910,000 during the first nine months of 1997 to 30,252,000,
for the nine months ended September 30, 1998. Diluted earnings per share
increased to $2.83 for the first nine months of 1998 from $2.36 for the same
period in 1997.
Liquidity and Capital Resources
The Company's consolidated invested assets and cash equivalents at September 30,
1998, net of unsettled security transactions, was $1,536.3 million, compared
with the December 31, 1997 balance of $1,379.3 million. These balances include
the change in the market value of the investment portfolio, which had an
unrealized gain position of $66.2 million at September 30, 1998 and $38.8
million at December 31, 1997.
11
<PAGE>
At September 30, 1998, the Company had, at the holding company level, an
investment portfolio of $56.2 million available to fund the liquidity needs of
its activities outside of its insurance operations. Because the majority of the
Company's operations are conducted through FSA, the long-term ability of the
Company to service its debt and to declare and pay dividends will largely depend
upon the receipt of dividends from and payments on surplus notes by FSA and upon
external financings.
FSA's ability to pay dividends is dependent upon FSA's financial condition,
results of operations, cash requirements, rating agency approval and other
related factors and is also subject to restrictions contained in the insurance
laws and related regulations of New York and other states. Under New York State
insurance law, FSA may pay dividends out of earned surplus, provided that,
together with all dividends declared or distributed by FSA during the preceding
12 months, the dividends do not exceed the lesser of (i) 10% of policyholders'
surplus as of its last statement filed with the New York Superintendent of
Insurance or (ii) adjusted net investment income during this period. FSA paid no
dividends in 1997. Based upon FSA's statutory statements for the quarter ended
September 30, 1998, and considering dividends that can be paid by its
subsidiary, the maximum amount available for payment of dividends by FSA without
regulatory approval over the following 12 months is approximately $50.4 million.
In addition, the Company holds a $50 million surplus note of FSA. Payments of
principal or interest on such note may be made with the approval of the New York
Insurance Department. The New York Superintendent has approved the repurchase by
FSA of up to $75.0 million of its shares from its parent, all of which have been
repurchased by June 30, 1998.
Dividends paid by the Company to its shareholders increased to $9.4 million in
the first nine months of 1998 from $8.9 million in the comparable period of 1997
and to $0.3275 per common share in the first nine months of 1998 from $0.2975 in
the first nine months of 1997. In addition to paying dividends, the Company uses
funds to make debt service payments and to fund employee benefit plans.
The Company has outstanding $130.0 million of 7-3/8% Senior Quarterly Income
Debt Securities due September 30, 2097 and callable without premium or penalty
on or after September 18, 2002.
In May 1996, the Company repurchased 1,000,000 shares of its common stock from
MediaOne for a purchase price of $26.50 per share. At the same time, the Company
also entered into forward agreements with two banks (the Counterparties) in
respect of 1,750,000 shares (the Forward Shares) of the Company's common stock.
Under the forward agreements, the Company has the obligation either (i) to
purchase the Forward Shares from the Counterparties for a price equal to $26.50
per share plus carrying costs or (ii) to direct the Counterparties to sell the
Forward Shares, with the Company receiving any excess or making up any shortfall
between the sale proceeds and $26.50 per share plus carrying costs in cash or
additional shares, at its option. The Company made the economic benefit and risk
of 750,000 of these shares available for subscription by certain of the
Company's employees and directors. When an individual participant exercises
Forward Shares under the subscription program, the Company settles with the
participant but does not necessarily close out the corresponding Forward Share
position with the Counterparties. The cost of these settlements during 1997 was
$2.1 million and was charged to additional paid-in capital. By the fourth
quarter of 1997, such exercises by participants had increased the number of
shares allocated to the Company from 1,000,000 shares to 1,187,800 shares.
During the fourth quarter of 1997, the Company exercised rights under the
forward agreements, purchasing 1,187,800 Forward Shares for a total cost of
$33.9 million. At September 30, 1998, as a result of the Company's exercise, the
repurchased shares were held as treasury stock, and 562,200 shares remained in
the program. As a result of the repurchase of Forward Shares from employees and
directors, 31,078 shares are held for the benefit of the Company and 531,122
shares continue to be held for the benefit of the employees and directors.
FSA's primary uses of funds are to pay operating expenses, to pay dividends to
its parent and to repurchase stock from its parent. FSA's funds are also
required to satisfy future claims, if any, under insurance policies in the event
of default by an issuer of an insured obligation and the unavailability or
exhaustion of other liquidity sources in the transaction, such as the cash flow
or collateral underlying the obligations. FSA seeks to structure asset-backed
transactions to address liquidity risks through inclusion of such other
liquidity sources in transactions. The insurance policies issued by FSA provide,
in general, that payments of principal, interest and other amounts insured by
FSA may not be accelerated by the holder of the obligation but are paid by FSA
in accordance with the obligation's original payment schedule or, at FSA's
option, on an accelerated basis. These policy provisions prohibiting
acceleration of certain claims are mandatory under Article 69 of the New York
Insurance Law and serve to reduce FSA's liquidity requirements.
12
<PAGE>
The Company believes that FSA's expected operating liquidity needs, both on a
short- and long-term basis, can be funded from its operating cash flow. In
addition, FSA has a number of sources of liquidity that are available to pay
claims on a short- and long-term basis: cash flow from written premiums, FSA's
investment portfolio and earnings thereon, reinsurance arrangements with
third-party reinsurers, liquidity lines of credit with banks, and capital market
transactions.
A group of international Aaa/AAA-rated banks make available to FSA a standby
irrevocable limited recourse line of credit, which was increased from $125.0
million to $240.0 million during 1997. This credit facility provides liquidity
and credit support to FSA in the event losses from municipal obligations in
FSA's insured portfolio exceed specified limits. Repayment of amounts drawn
under the line will be limited primarily to recoveries of losses related to such
municipal obligations. The facility expires on April 30, 2005 unless extended.
FSA has a credit arrangement aggregating $150.0 million at September 30, 1998,
which is provided by commercial banks and intended for general corporate
purposes, including application to transactions insured by FSA. At September 30,
1998, there were no borrowings under this arrangement. The banks' commitments to
lend under the arrangement expire August 30, 1999, unless extended. In addition,
there are credit arrangements assigned to specific insured transactions. In
August 1994, FSA entered into a facility agreement with Canadian Global Funding
Corporation. Under the agreement, FSA can arrange financing for transactions
subject to certain conditions. The amount of this facility was $186.9 million,
of which $45.3 million was unutilized at September 30, 1998.
The Company has no plans for material capital expenditures within the next
twelve months.
Subsequent Events
On November 3, 1998, the Company and EXEL Limited closed a transaction to create
two new Bermuda-based financial guaranty insurance companies. Each of the new
companies has been initially capitalized with approximately $100,000,000. One
company, Financial Security Assurance International Ltd., is an indirect
subsidiary of FSA and the other company, X.L. Financial Assurance Ltd., is a
subsidiary of EXEL Limited. The Company has a minority interest in the EXEL
company, and EXEL has a minority interest in the FSA company. In conjunction
with forming the new companies, the Company and EXEL Limited swapped $80,000,000
of their respective common shares, with the Company delivering to EXEL Limited
1,632,653 common shares out of treasury. The Company then sold $60,000,000 of
the EXEL shares to an unrelated third party in order to fund, in part, its
investment in Financial Security Assurance International Ltd.
On November 6, 1998, the Company entered into an agreement to sell, subject to
customary closing conditions, $100,000,000 of 6.95% Senior Quarterly Income Debt
Securities due 2098 and callable without premium or penalty commencing November,
2003 or at any time following certain tax events. The proceeds from the sale of
the securities will be used to augment the capital of the Company's insurance
company subsidiaries and for general corporate purposes.
Forward-Looking Statements
This quarterly report contains forward-looking statements regarding, among other
things, the Company's plans and prospects. Important factors, including general
market conditions and the competitive environment, could cause actual results to
differ materially from those described in such forward-looking statements.
Certain of these factors are described in more detail under the heading
"Forward-Looking Statements" in Item 1 of the Company's Annual Report on Form
10-K for the year ended December 31, 1997. Forward-looking statements in this
report are expressly qualified by all such factors. The Company undertakes no
obligation to revise or update any forward-looking statements to reflect changes
in events or expectations or otherwise.
13
<PAGE>
PART II
OTHER INFORMATION
Item 5. Other Information
On November 3, 1998, the Company and EXEL Limited closed a transaction to
create two new Bermuda-based financial guaranty insurance companies. Each
of the new companies has been initially capitalized with approximately
$100,000,000. One company, Financial Security Assurance International
Ltd., is an indirect subsidiary of FSA and the other company, X.L.
Financial Assurance Ltd., is a subsidiary of EXEL Limited. The Company has
a minority interest in the EXEL Limited company, and EXEL Limited has a
minority interest in the FSA company. In conjunction with forming the new
companies, the Company and EXEL Limited swapped $80,000,000 of their
respective common shares, based upon the closing price for such shares on
the New York Stock Exchange on October 29, 1998, with the Company
delivering to EXEL Limited 1,632,653 unregistered shares of common stock,
$0.01 par value, out of treasury and with EXEL Limited delivering to the
Company 1,066,667 class A ordinary shares. The Company issued its common
shares to EXEL Limited in reliance upon an exemption from registration
under the Securities Act of 1933 (the "Act") pursuant to Section 4(2) of
the Act. EXEL Limited represented that it took such shares as an
investment and without a view to distribute such shares. In connection
with such transaction, the Company entered into a registration rights
agreement with EXEL Limited pursuant to which EXEL Limited is entitled to
cause the Company to register such shares under the Act upon the terms set
forth in such agreement. The Company then sold 800,000 of the EXEL Limited
shares to an unrelated third party for $60,000,000 in cash in order to
fund, in part, its investment in Financial Security Assurance
International Ltd.
On November 6, 1998, the Company entered into an agreement to sell,
subject to customary closing conditions, $100,000,000 of 6.95% Senior
Quarterly Income Debt Securities due 2098 and callable without premium or
penalty commencing November 2003 or at any time following certain tax
events. The proceeds from the sale of the securities will be used to
augment the capital of the Company's insurance company subsidiaries and
for general corporate purposes.
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits
(10) Credit Agreement dated as of August 31, 1998 among Financial
Security Assurance Inc., each of its insurance company
affiliates listed on Schedule I attached thereto, the Banks
party thereto from time to time and Deutsche Bank AG, New York
Branch, as Agent
(27) Financial data schedules
(99) Financial statements of Financial Security Assurance Inc. for
the quarterly period ended September 30, 1998
(b) Reports on Form 8-K
None
14
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
FINANCIAL SECURITY ASSURANCE HOLDINGS LTD.
By /s/ Jeffrey S. Joseph
-------------------------------------------------------
November 10, 1998 Jeffrey S. Joseph
Managing Director & Controller (Chief Accounting Officer)
15
<PAGE>
Exhibit Index
Exhibit No. Exhibit
- ----------- -------
(10) Credit Agreement dated as of August 31, 1998 among Financial
Security Assurance Inc., each of its insurance company
affiliates listed on Schedule I attached thereto, the Banks
party thereto from time to time and Deutsche Bank AG, New York
Branch, as Agent
(27) Financial data schedules
(99) Financial statements of Financial Security Assurance Inc. for the
quarterly period ended September 30, 1998
- --------------------------------------------------------------------------------
CREDIT AGREEMENT
among
FINANCIAL SECURITY ASSURANCE INC.,
THE ADDITIONAL BORROWERS FROM TIME TO TIME PARTY HERETO,
VARIOUS BANKS,
and
DEUTSCHE BANK AG, NEW YORK BRANCH,
as AGENT
Dated as of August 31, 1998
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
Page
----
SECTION 1. DEFINITIONS AND PRINCIPLES OF CONSTRUCTION.........................1
1.01 Defined Terms......................................................1
1.02 Principles of Construction........................................10
SECTION 2. AMOUNT AND TERMS OF CREDIT........................................10
2.01 The Loans.........................................................10
2.02 Minimum Amount of Each Borrowing..................................11
2.03 Notice of Borrowing...............................................11
2.04 Disbursement of Funds.............................................11
2.05 Notes.............................................................12
2.06 Conversions.......................................................13
2.07 Pro Rata Borrowings...............................................13
2.08 Interest..........................................................13
2.09 Interest Periods..................................................14
2.10 Increased Costs, Illegality, etc..................................15
2.11 Compensation......................................................16
2.12 Change of Applicable Lending Office...............................17
2.13 Addition of New Borrowers.........................................17
2.14 Removal of Borrowers..............................................17
(i)
<PAGE>
Page
----
SECTION 3. COMMITMENT COMMISSION; FEES; REDUCTIONS OF COMMITMENT.............18
3.01 Fees..............................................................18
3.02 Voluntary Termination of Unutilized Total Commitment..............18
3.03 Mandatory Termination of Commitment...............................18
3.04 Expiry Date.......................................................18
SECTION 4. PREPAYMENTS; PAYMENTS.............................................19
4.01 Voluntary Prepayments.............................................19
4.02 Mandatory Prepayments.............................................19
4.03 Method and Place of Payment.......................................20
4.04 Net Payments......................................................20
SECTION 5. CONDITIONS PRECEDENT TO EFFECTIVENESS.............................21
5.01 Execution of Agreement............................................21
5.02 No Default; Representations and Warranties........................21
5.03 Opinions of Counsel...............................................21
5.04 Corporate Documents; Proceedings..................................22
5.05 Adverse Change, Rating, etc.......................................22
5.06 Litigation........................................................22
5.07 Fees, etc.........................................................23
SECTION 6. CONDITIONS PRECEDENT TO ALL CREDIT EVENTS.........................23
6.01 Effectiveness; No Default.........................................23
(ii)
<PAGE>
Page
----
6.02 Notice of Borrowing; Term Loan Conversion Notice..................23
6.03 Notes.............................................................23
6.04 Insurance Policy..................................................23
SECTION 7. REPRESENTATIONS, WARRANTIES AND AGREEMENTS........................23
7.01 Corporate Status..................................................23
7.02 Corporate Power and Authority.....................................24
7.03 No Violation......................................................24
7.04 Governmental Approvals............................................24
7.05 Financial Statements; Financial Condition; Undisclosed
Liabilities; etc. ................................................24
7.06 Litigation........................................................25
7.07 True and Complete Disclosure......................................25
7.08 Use of Proceeds; Margin Regulations...............................25
7.09 Tax Returns and Payments..........................................25
7.10 Compliance with ERISA.............................................26
7.11 Capitalization....................................................26
7.12 Compliance with Statutes, etc.....................................26
7.13 Investment Company Act............................................26
7.14 Public Utility Holding Company Act................................27
7.15 Year 2000 Compliance..............................................27
SECTION 8. AFFIRMATIVE COVENANTS.............................................27
8.01 Information Covenants.............................................27
(iii)
<PAGE>
Page
----
8.02 Books, Records and Inspections....................................29
8.03 Corporate Franchises..............................................29
8.04 Compliance with Statutes, etc.....................................29
8.05 ERISA.............................................................29
8.06 End of Fiscal Years; Fiscal Quarters..............................30
8.07 Performance of Obligations........................................30
8.08 Payment of Taxes..................................................30
8.09 Business..........................................................31
8.10 Year 2000 Compliance..............................................31
SECTION 9. NEGATIVE COVENANTS................................................31
9.01 Consolidation, Merger, Sale of Assets, etc........................31
9.02 Dividends.........................................................31
9.03 Interest Coverage Ratio...........................................31
(iv)
<PAGE>
Page
----
9.04 Debt to Total Capitalization Ratio................................32
9.05 Liens.............................................................32
SECTION 10. EVENTS OF DEFAULT................................................33
10.01 Payments.........................................................33
10.02 Representations, etc.............................................33
10.03 Covenants........................................................33
10.04 Bankruptcy, etc..................................................33
10.05 ERISA............................................................34
10.06 Judgments........................................................34
10.07 Change of Control................................................34
10.08 Default Under Other Agreements...................................34
10.09 Rating...........................................................34
10.10 Rating...........................................................34
SECTION 11 THE AGENT........................................................35
11.01 Appointment......................................................35
11.02 Nature of Duties.................................................35
11.03 Lack of Reliance on the Agent....................................35
11.04 Certain Rights of the Agent......................................36
11.05 Reliance.........................................................36
11.06 Indemnification..................................................36
11.07 The Agent in Its Individual Capacity.............................36
11.08 Holders..........................................................37
(v)
<PAGE>
Page
----
11.09 Resignation by the Agent.........................................37
SECTION 12. MISCELLANEOUS....................................................37
12.01 Payment of Expenses, etc.........................................37
12.02 Right of Setoff..................................................38
12.03 Notices..........................................................38
12.04 Benefit of Agreement.............................................38
12.05 No Waiver; Remedies Cumulative...................................40
12.06 Calculations; Computations.......................................40
12.07 Governing Law; Submission to Jurisdiction; Venue.................40
12.08 Obligation to Make Payments in Dollars...........................41
12.09 Counterparts.....................................................41
12.10 Effectiveness....................................................41
12.11 Table of Contents and Headings Descriptive.......................41
12.12 Amendment or Waiver..............................................42
12.13 Survival.........................................................42
(vi)
<PAGE>
SCHEDULE I Borrowers
SCHEDULE II Commitments
SCHEDULE III Lending Offices
EXHIBIT A Notice of Borrowing
EXHIBIT B Form of Term Note
EXHIBIT C Form of Revolving Note
EXHIBIT D Form of Opinion of Counsel to the Borrowers
EXHIBIT E Form of Officers' Certificate
EXHIBIT F Assignment and Assumption Agreement
EXHIBIT G Form of Insurance Policy
(vii)
<PAGE>
CREDIT AGREEMENT, dated as of August 31, 1998, 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 DEUTSCHE BANK AG, NEW YORK BRANCH, 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, 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, IT IS AGREED:
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 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 a percentage per annum equal to 0.50%.
"Assignment and Assumption Agreement" shall mean any Assignment and
Assumption Agreement substantially in the form of Exhibit F attached hereto
entered into pursuant to the
<PAGE>
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.
"Base Rate Loans" shall have the meaning provided in Section 2.01(a).
"Borrower" shall have the meaning provided in the first paragraph of this
Agreement.
"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
-2-
<PAGE>
Securities Exchange Act of 1934), other than (directly or indirectly) Fund
American Enterprise Holdings, Inc., 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).
"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.
-3-
<PAGE>
"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 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.
"Conversion Date" shall have the meaning set forth in Section 2.01(b).
"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
-4-
<PAGE>
States.
"Effective Date" shall have the meaning provided in Section 12.10.
"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.
"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.
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"Expiry Date" shall mean the date occurring on the later of the Revolving
Loan Expiry Date and the Term Loan Expiry Date.
"Extension Request" shall have the meaning set forth in Section 3.04(a).
"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.
"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 G attached hereto.
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"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.
"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 or Term Loan.
"Margin Stock" shall have the meaning provided in Regulations G, 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 Term Note or 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 31 West 52nd
Street, New York, New York 10019, Attention: Ms. Tykie Tobin, 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.
"Payment Office" shall mean the office of the Agent located at 31 West
52nd Street, New York, New York 10019, 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
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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.
"Prime Lending Rate" shall mean the rate which Deutsche Bank AG, New York
Branch, 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. Deutsche Bank AG, New York Branch, 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 Deutsche Bank AG, Bayerische Landesbank
Girozentrale and Westdeutsche Landesbank Girozentrale.
"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(b) 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(a).
"Revolving Loan Expiry Date" shall have the meaning set forth in Section
3.04(a).
"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
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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.
"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).
"Term Loan Conversion Notice" shall have the meaning set forth in Section
2.01(b).
"Term Loans" shall have the meaning set forth in Section 2.01(b).
"Term Loan Expiry Date" shall have the meaning set forth in Section
3.04(b).
"Term Note" shall have the meaning provided in Section 2.05(a).
"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.
"Wholly-Owned Subsidiary" shall mean, as to any Person, (i) any
corporation 100% of
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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.
(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. (a) 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
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.
(b) Subject to and upon the terms and conditions set forth herein, and
provided that no Default or Event of Default under Section 10.01, 10.04, 10.08
or 10.09 has occurred and is continuing, any Borrower may, by giving written
notice (each such notice, a "Term Loan Conversion Notice") to the Agent and each
Bank on any Business Day (each such date, a "Conversion Date") prior to the
Revolving Loan Expiry Date, elect to convert the aggregate principal amount of
Revolving Loans owing by such Borrower or its Designee to such Bank and
outstanding at such time, in whole or in part, into Term Loans owing to such
Bank hereunder. Each Term Loan Conversion Notice shall (i) specify the Revolving
Loans to be so converted into Term Loans, and shall be continued initially as
Base Rate Loans or Eurodollar Rate Loans to the extent the Revolving Loans to be
converted on the applicable Conversion Date are Base Rate Loans or Eurodollar
Rate Loans, as the case may be, and (ii) shall include a certification by a
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senior officer of FSA that no Default or Event of Default under Section 10.01,
10.04, 10.08 or 10.09 has occurred and is continuing. The Term Loans of any Bank
into which Revolving Loans of such Bank are so converted (A) shall, at the
option of the relevant Borrower, be Base Rate Loans or Eurodollar Rate Loans,
provided that all Term Loans comprising the same Borrowing shall, unless
otherwise specifically provided herein, be of the same Type, it being understood
that any Revolving Loans that constitute Eurodollar Rate Loans at the time of
the conversion thereof into Term Loans shall continue as Eurodollar Rate Loans
for the respective Interest Periods then applicable to them, and (B) shall not
exceed in initial principal amount for such Bank an amount which equals the
aggregate amount of Revolving Loans owed to such Bank and outstanding at the
time of such conversion. Once repaid, Term Loans may not be reborrowed.
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
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
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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
(i) if Term Loans, by a promissory note duly executed and delivered by such
Borrower substantially in the form of Exhibit B attached hereto with blanks
appropriately completed in conformity herewith (each, a "Term Note" and,
collectively, the "Term Notes") and (ii) if Revolving Loans, by a promissory
note duly executed and delivered by such Borrower or its Designee, substantially
in the form of Exhibit C attached hereto, with blanks appropriately completed in
conformity herewith (each, a "Revolving Note" and, collectively, the "Revolving
Notes").
(b) The Term 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 Conversion Date, (iii) be in a stated principal
amount equal to the Commitment of the relevant Bank and be payable in the
principal amount of Term Loans evidenced thereby, (iv) mature on the Term 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) 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.
(d) 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.
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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 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.
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(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 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
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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 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
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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 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
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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).
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
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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. COMMITMENT COMMISSION; FEES; REDUCTIONS OF COMMITMENT.
3.01 Fees. (a) FSA agrees to pay to the Agent for distribution to each
Bank a commitment commission (the "Commitment Commission") for the period from
the Effective Date until the Expiry Date (or such earlier date as the Total
Commitment shall have been terminated) computed at a rate equal to 0.125% per
annum on the daily average Unutilized Commitment of such Bank. Commitment
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 or upon such earlier date as the Total Commitment shall be terminated.
(b) 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.
(c) In addition to any other mandatory Commitment reductions pursuant to
this Section 3.03, the Commitment of each Bank to make a Term Loan shall
terminate in its entirety on the Revolving Loan Expiry Date.
3.04 Expiry Date. (a) The expiration of the Commitments of the Banks to
make Revolving Loans shall be August 30, 1999 (the "Revolving Loan Expiry
Date"); provided, however, that before (but not earlier than 60 days nor later
than 30 days before) each anniversary of the Effective Date, FSA may make a
written request (an "Extension Request") to the Agent at its Notice Office and
each of the Banks that the Revolving Loan Expiry Date be extended by 364 days.
Such Extension Request shall include a certification by a 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
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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 day occurring 364 days subsequent to the Revolving Loan Expiry
Date then in effect, 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).
(b) Each Term Loan shall mature on the third anniversary of the Conversion
Date related to such Term Loan (the "Term Loan Expiry 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 (a) 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.
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(b) In addition to any other prepayments pursuant to this Section 4.02,
each Borrower and Designee shall be required to repay 50% of the original amount
of each Term Loan made to it on or prior to the date occurring 30 months
following the Conversion Date for such Term Loan.
4.03 Method and Place of Payment. 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. (a) 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
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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, 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
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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
D.
(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 E 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
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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.
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.
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; Term Loan Conversion Notice. Prior to the making
of each Revolving Loan, the Agent shall have received a Notice of Borrowing
meeting the requirements of Section 2.03. Prior to the making of each Term Loan,
the Agent shall have received a Term Loan Conversion Notice meeting the
requirements of Section 2.01(b).
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. Prior to the conversion of any Revolving Loan to a
Term Loan on behalf of any Borrower or Designee, there shall have been delivered
to each Bank a separate Term Loan 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.
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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.
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.
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7.05 Financial Statements; Financial Condition; Undisclosed Liabilities;
etc. (a) The consolidated balance sheet of such Borrower and its Consolidated
Subsidiaries at December 31, 1997, 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, 1997, 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 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
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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 G, 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 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 500 common shares, par value $30,000 per share, of which 500
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.
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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.
7.15 Year 2000 Compliance. Such Borrower has (i) initiated a review and
assessment of all areas within its and each of its Subsidiaries' business and
operations (including those affected by suppliers, vendors and customers) that
could be adversely affected by the risk that computer applications used by such
Borrower or any of its Subsidiaries (or any supplier, vendor or customer) may be
unable to recognize and perform properly date-sensitive functions involving
certain dates prior to and any date after December 31, 1999 (such risk, the
"Year 2000 Problem"), (ii) developed a plan and timeline for addressing the Year
2000 Problem on a timely basis and (iii) to date, implemented such plan in
accordance with such timetable. Based on the foregoing, such Borrower believes
that all computer applications used by such Borrower that are material to its or
any of its Subsidiaries' business and operations are reasonably expected on a
timely basis to be able to perform properly date-sensitive functions for all
dates before and after January 1, 2000 except to the extent that a failure to do
so 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 or of such Borrower and
its Subsidiaries taken as a whole.
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
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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.
(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
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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.
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
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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 of such Borrower has occurred; 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 of such Borrower; that a material contribution required to be made to
a Plan of such Borrower has not been timely made; that a Plan of such Borrower
has been or may be terminated, reorganized, partitioned or declared insolvent
under Title IV of ERISA; that a Plan of such Borrower 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
of such Borrower, that a proceeding has been instituted pursuant to Section 515
of ERISA to collect a delinquent contribution to a Plan of such Borrower; that
such 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 of such Borrower
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 that such 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 of such Borrower 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) of such
Borrower. 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 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
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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.
8.10 Year 2000 Compliance. FSA will promptly notify the Agent in the event
it discovers or determines that any computer application (including those of any
supplier, vendor or customer) that is material to any Borrower's or any
Borrower's Subsidiary's business and operations will not be able to perform
properly data-sensitive functions for all dates before and after January 1,
2000, except to the extent that such failure could not reasonably be expected to
have, in the aggregate, a material adverse effect on the business, operations,
property, assets, conditions (financial or otherwise) or prospects of such
Borrower and its Subsidiaries taken as a whole.
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 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
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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 arising 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 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 worker's 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;
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(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 $10,000,000 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 on
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 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
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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; 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 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 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
10.07 Change of Control. A Change of Control shall occur; or
10.08 Default Under Other Agreements. (a) 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
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<PAGE>
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 Deutsche Bank AG, New York
Branch, 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
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
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<PAGE>
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 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
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<PAGE>
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.
(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
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<PAGE>
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 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, 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
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<PAGE>
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 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), 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
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<PAGE>
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.
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
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<PAGE>
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.
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 date
(the "Effective Date") on which each Borrower, each Bank and the Agent shall
have signed a copy hereof (whether the same or different copies) and shall have
delivered the same to the Agent at its Notice Office and the conditions set
forth in Section 5 shall have been satisfied or waived by the Banks.
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 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), (iii) reduce the percentage specified in the
definition of Required Banks, (iv) consent to the assignment or transfer by any
Borrower or Designee of any of its rights or obligations under any Credit
Document or (v) 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.
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.
350 Park Avenue
New York, New York 10022 By /s/ BRUCE STERN
Attention: Treasurer -------------------------
Managing Director and General Counsel
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<PAGE>
with a copy to:
350 Park Avenue
New York, New York 10022
Attention: General Counsel
FSA INSURANCE COMPANY
By /s/ BRUCE STERN
-------------------------
Managing Director and General Counsel
FINANCIAL SECURITY ASSURANCE
OF OKLAHOMA, INC.
By /s/ BRUCE STERN
-------------------------
Managing Director and General Counsel
FINANCIAL SECURITY ASSURANCE
(U.K.) LIMITED
By /s/ BRUCE STERN
-------------------------
Managing Director and General Counsel
DEUTSCHE BANK AG, NEW YORK AND
CAYMAN ISLAND BRANCHES
By /s/ PETER J. BASSLER
-------------------------
Vice President
By /s/ ECKHARD OSENBERG
-------------------------
Vice President
BAYERISCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH
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<PAGE>
By /s/ PETER OBERMANN
-------------------------
Senior Vice President
By /s/ ALEXANDER KOHNERT
-------------------------
Vice President
COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK, B.A.,
"RABOBANK NEDERLAND",
NEW YORK BRANCH
By /s/ IAN REECE
-------------------------
Senior Credit Officer
By /s/ ANGELA R. REILLY
-------------------------
Vice President
KBC BANK N.V.
By /s/ PATRICK J. OWENS
-------------------------
Vice President
By /s/ ROBERT SNAUFFER
-------------------------
Vice President
WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH
By /s/ LILLIAN TUNG LUM
-------------------------
Vice President
By /s/ ANNE T. McKENNA
-------------------------
Associate
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<PAGE>
DEUTSCHE BANK AG, NEW YORK
BRANCH, as Agent
By /s/ PETER J. BASSLER
-------------------------
Vice President
By /s/ ECKHARD OSENBERG
-------------------------
Vice President
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<PAGE>
Schedule I
BORROWERS
FSA Insurance Company, an Oklahoma corporation
Financial Security Assurance of Oklahoma, Inc., an Oklahoma corporation
Financial Security Assurance (U.K.) Limited, a U.K. insurance company
<PAGE>
Schedule II
Page 46
SCHEDULE OF COMMITMENTS
Name of Bank Commitment
------------ ----------
Deutsche Bank AG, New York and Cayman
Islands Branches $ 30,000,000
Bayerische Landesbank Girozentrale 30,000,000
Cooperatieve Centrale
Raiffeisen-Boerenleenbank, B.A.,
"Rabobank Nederland", New York Branch 30,000,000
KBC Bank N.V. 30,000,000
Westdeutsche Landesbank Girozentrale,
New York Branch 30,000,000
------------
TOTAL $150,000,000
============
<PAGE>
Schedule III
Page 47
Lending Offices
Name of Bank Base Rate Office Eurodollar Lending Office
- ------------ ---------------- -------------------------
Deutsche Bank AG, 31 West 52nd Street Cayman Islands Branch
New York Branch New York, NY 10019 c/o New York Branch
31 West 52nd Street
New York, NY 10019
Bayerische Landesbank 560 Lexington Avenue 560 Lexington Avenue
Girozentrale New York, NY 10022 New York, NY 10022
Cooperatieve Centrale 245 Park Avenue 245 Park Avenue
Raiffeisen-Boerenleenbank, New York, NY 10167 New York, NY 10167
B.A.,
"Rabobank Nederland",
New York Branch
KBC Bank N.V. 125 West 55th Street 125 West 55th Street
New York, NY 10019 New York, NY 10019
Westdeutsche Landesbank 1211 Avenue of the 1211 Avenue of the
Girozentrale, New York Americas Americas
Branch New York, NY 10036 New York, NY 10036
<TABLE> <S> <C>
<ARTICLE> 7
<LEGEND>
This schedule contains summary financial information extracted from Financial
Security Assurance Holdings Ltd. and is qualified in its entirety by reference
to such financial statements.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-START> JAN-01-1998
<PERIOD-END> SEP-30-1998
<DEBT-HELD-FOR-SALE> 1,566,513
<DEBT-CARRYING-VALUE> 0
<DEBT-MARKET-VALUE> 0
<EQUITIES> 36,886
<MORTGAGE> 0
<REAL-ESTATE> 0
<TOTAL-INVEST> 1,603,399
<CASH> 5,985
<RECOVER-REINSURE> 1,872
<DEFERRED-ACQUISITION> 186,700
<TOTAL-ASSETS> 2,092,750
<POLICY-LOSSES> 61,323
<UNEARNED-PREMIUMS> 682,228
<POLICY-OTHER> 0
<POLICY-HOLDER-FUNDS> 0
<NOTES-PAYABLE> 130,000
0
700
<COMMON> 694,168
<OTHER-SE> 270,573
<TOTAL-LIABILITY-AND-EQUITY> 2,092,750
96,991
<INVESTMENT-INCOME> 57,648
<INVESTMENT-GAINS> 15,579
<OTHER-INCOME> 400
<BENEFITS> 3,140
<UNDERWRITING-AMORTIZATION> 25,311
<UNDERWRITING-OTHER> 25,420
<INCOME-PRETAX> 116,747
<INCOME-TAX> 31,264
<INCOME-CONTINUING> 85,483
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 85,483
<EPS-PRIMARY> 2.95
<EPS-DILUTED> 2.83
<RESERVE-OPEN> 75,417
<PROVISION-CURRENT> 3,140
<PROVISION-PRIOR> (17,234)
<PAYMENTS-CURRENT> 0
<PAYMENTS-PRIOR> 0
<RESERVE-CLOSE> 61,323
<CUMULATIVE-DEFICIENCY> 0
</TABLE>
EXHIBIT 99
FINANCIAL SECURITY ASSURANCE INC.
AND SUBSIDIARIES
Condensed Consolidated Financial Statements
September 30, 1998
<PAGE>
FINANCIAL SECURITY ASSURANCE INC.
AND SUBSIDIARIES
CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
Nine Months Ended September 30, 1998 and 1997
INDEX
FINANCIAL STATEMENTS:
Condensed Consolidated Balance Sheets 1
Condensed Consolidated Statements of Income 2
Condensed Consolidated Statements of Cash Flows 3
Notes to Condensed Consolidated Financial Statements 4
The New York State Insurance Department recognizes only statutory accounting
practices for determining and reporting the financial condition and results of
operations of an insurance company, for determining its solvency under the New
York Insurance Law, and for determining where its financial condition warrants
the payment of a dividend to its stockholders. No consideration is given by the
New York State Insurance Department to financial statements prepared in
accordance with generally accepted accounting principles in making such
determinations.
<PAGE>
FINANCIAL SECURITY ASSURANCE INC.
AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEETS
(Dollars in thousands, except per share data)
<TABLE>
<CAPTION>
September 30, December 31,
ASSETS 1998 1997
---- ----
<S> <C> <C>
Bonds at market value (amortized cost of $1,379,557 and
$1,192,771) $1,444,329 $1,235,441
Equity investments at market value (cost of $26,692 and
$20,405) 26,555 20,762
Short-term investments 73,943 103,926
---------- ----------
Total investments 1,544,827 1,360,129
Cash 4,971 11,235
Deferred acquisition costs 186,700 171,098
Prepaid reinsurance premiums 202,139 173,123
Reinsurance recoverable on unpaid losses 1,872 30,618
Receivable for securities sold 16,747 20,535
Other assets 98,764 72,901
---------- ----------
TOTAL ASSETS $2,056,020 $1,839,639
========== ==========
LIABILITIES AND SHAREHOLDER'S EQUITY
Deferred premium revenue $ 682,228 $ 595,196
Losses and loss adjustment expenses 61,323 75,417
Deferred federal income taxes 61,113 59,867
Ceded reinsurance balances payable 24,370 11,199
Payable for securities purchased 84,356 72,979
Long-term debt 50,000 50,000
Accrued expenses and other liabilities 94,775 77,121
---------- ----------
TOTAL LIABILITIES 1,058,165 941,779
---------- ----------
Common stock (500 and 528 shares authorized, issued and
outstanding; par value of $30,000 and $28,391 per share) 15,000 15,000
Additional paid-in capital 614,787 617,870
Accumulated other comprehensive income (net of deferred
income tax provision of $22,574 and $15,059) 41,923 27,968
Accumulated earnings 326,145 237,022
---------- ----------
TOTAL SHAREHOLDER'S EQUITY 997,855 897,860
---------- ----------
TOTAL LIABILITIES AND SHAREHOLDER'S EQUITY $2,056,020 $1,839,639
========== ==========
</TABLE>
See notes to condensed consolidated financial statements.
1
<PAGE>
FINANCIAL SECURITY ASSURANCE INC.
AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF INCOME
(Dollars in thousands)
<TABLE>
<CAPTION>
Nine Months Ended September 30,
-------------------------------
1998 1997
---- ----
<S> <C> <C>
REVENUES:
Net premiums written (net of premiums ceded of
$66,074 and $50,986) $154,530 $123,590
Increase in deferred premium revenue (57,539) (44,051)
-------- --------
Premiums earned (net of premiums ceded of
$37,497 and $28,791) 96,991 79,539
Net investment income 55,268 50,226
Net realized gains 16,808 6,329
Other income 295 10,490
-------- --------
TOTAL REVENUES 169,362 146,584
-------- --------
EXPENSES:
Losses and loss adjustment expenses (net of
reinsurance recoveries of $(6,780) and $2,881) 3,140 6,687
Policy acquisition costs 25,311 20,714
Other operating expenses 18,566 14,843
-------- --------
TOTAL EXPENSES 47,017 42,424
-------- --------
INCOME BEFORE INCOME TAXES 122,345 104,160
Provision for income taxes 33,223 28,890
-------- --------
NET INCOME 89,122 75,270
-------- --------
Other comprehensive income, net of tax:
Unrealized gains on securities:
Unrealized holding gains arising during period 24,880 15,823
Less: reclassification adjustment for gains included
in net income (10,925) (4,114)
-------- --------
Other comprehensive income 13,955 11,709
-------- --------
COMPREHENSIVE INCOME $103,077 $86,979
======== ========
</TABLE>
See notes to condensed consolidated financial statements.
2
<PAGE>
FINANCIAL SECURITY ASSURANCE INC.
AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(Dollars in thousands)
<TABLE>
<CAPTION>
Nine Months Ended September 30,
-------------------------------
1998 1997
---- ----
<S> <C> <C>
Cash flows from operating activities:
Premiums received, net $ 173,581 $ 119,152
Policy acquisition and other operating expenses
paid, net (68,510) (36,373)
Recoverable advances received (paid) 1,884 (6,242)
Loss and LAE recovered (paid), net 10,928 (7,131)
Net investment income received 52,042 46,738
Federal income taxes paid (41,190) (20,683)
Other, net 1,701 2,601
----------- -----------
Net cash provided by operating activities 130,436 98,062
----------- -----------
Cash flows from investing activities:
Proceeds from sales of bonds 1,316,212 787,914
Purchases of bonds (1,476,892) (845,072)
Other 9,486
Purchases of property and equipment (822) (2,469)
Net decrease (increase) in short-term securities 33,302 (87,101)
----------- -----------
Net cash used for investing activities (128,200) (137,242)
----------- -----------
Cash flows from financing activities:
Surplus notes 50,000
Stock repurchase (8,500) (10,750)
----------- -----------
Net cash provided by (used for) financing
activities (8,500) 39,250
----------- -----------
Net increase (decrease) in cash (6,264) 70
Cash at beginning of period 11,235 7,517
----------- -----------
Cash at end of period $ 4,971 $ 7,587
=========== ===========
</TABLE>
See notes to condensed consolidated financial statements.
3
<PAGE>
FINANCIAL SECURITY ASSURANCE INC.
AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
FOR THE NINE MONTHS ENDED SEPTEMBER 30, 1998 AND 1997
1. ORGANIZATION AND OWNERSHIP
Financial Security Assurance Inc. (the Company), a wholly owned subsidiary
of Financial Security Assurance Holdings Ltd. (the Parent), is an insurance
company domiciled in the State of New York. The Company is primarily engaged in
the business of providing financial guaranty insurance on asset-backed and
municipal obligations.
2. BASIS OF PRESENTATION
The accompanying condensed consolidated financial statements have been
prepared by the Company and are unaudited. In the opinion of management, all
adjustments, which include only normal recurring adjustments, necessary to
present fairly the financial position, results of operations and cash flows at
September 30, 1998 and for all periods presented, have been made.
Certain information and footnote disclosures normally included in
financial statements prepared in accordance with generally accepted accounting
principles have been condensed or omitted. These statements should be read in
conjunction with the Company's December 31, 1997 consolidated financial
statements and notes thereto. The year-end condensed balance sheet was derived
from audited financial statements, but does not include all disclosures required
by generally accepted accounting principles. The results of operations for the
periods ended September 30, 1998 and 1997 are not necessarily indicative of the
operating results for the full year.
3. COMPREHENSIVE INCOME
The Company adopted Statement of Financial Accounting Standards No. 130,
Reporting Comprehensive Income, which requires that all components of other
comprehensive income be classified by their nature in a financial statement and
accumulated balances of other comprehensive income be displayed separately from
retained earnings and additional paid-in capital in the equity section of a
balance sheet. The Company is disclosing this information in its statements of
income. Comprehensive income is defined as the change in shareholders' equity
during a period from transactions and other events and circumstances from
non-owner sources and includes net income and all changes in shareholders'
equity except those from investments by owners and distributions to owners. This
statement did not change the current accounting treatment for components of
comprehensive income such as changes in unrealized gains or losses on securities
available for sale.
4. RECENTLY ISSUED ACCOUNTING STANDARD
In June 1998, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 133, Accounting for Derivative Instruments
and Hedging Activities (FAS No. 133). FAS No. 133 establishes accounting and
reporting standards for derivative instruments, including certain derivative
instruments embedded in other contracts, and hedging activities. It requires
that an entity recognize all derivatives as either assets or liabilities in the
statement of financial position and measure those instruments at fair value. FAS
No. 133 is effective for all fiscal quarters of fiscal years beginning after
June 15, 1999. The impact of FAS No. 133 on the Company has not yet been
determined.
4
<PAGE>
5. SUBSEQUENT EVENT
On November 3, 1998, the Parent and EXEL Limited closed a transaction to
create two new Bermuda-based financial guaranty insurance companies. Each of the
new companies has been initially capitalized with approximately $100,000,000.
One company, Financial Security Assurance International Ltd. (International), is
an indirect subsidiary of the Company and the other company, X.L. Financial
Assurance Ltd., is a subsidiary of EXEL Limited. The Parent has a minority
interest in the EXEL company, and EXEL has a minority interest in International.
In connection with the transaction, the Parent purchased an $80,000,000
convertible surplus note from the Company, and the Company used the proceeds of
such note to fund the capitalization of International.
5
