<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the Quarterly Period Ended September 30, 1999
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from ____________ to ____________
Commission File Number 333-34829
DELPHI INTERNATIONAL LTD.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Bermuda (441) 295-3688 N/A
(State or other Jurisdiction of (Registrant's telephone number, (I.R.S. Employer Identification
incorporation or organization) including area code) Number)
</TABLE>
Chevron House, 11 Church Street, Hamilton, Bermuda HM 11
(Address of principal executive offices) (Zip Code)
Indicate by check mark whether 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 filing requirements
for the past 90 days:
Yes X No
As of November 8, 1999, the Registrant had 4,079,014 Common Shares outstanding.
<PAGE> 2
DELPHI INTERNATIONAL LTD.
FORM 10-Q
INDEX
<TABLE>
<CAPTION>
PART I. FINANCIAL INFORMATION Page
----
<S> <C>
Consolidated Statements of Income (Loss) and Comprehensive
Income (Loss) for the Three Months Ended September 30, 1999 and
1998, the Nine Months Ended September 30, 1999, and the Period
from January 27, 1998 to September 30, 1998 3
Consolidated Balance Sheets at September 30, 1999
and December 31, 1998 4
Consolidated Statements of Cash Flows for the
Nine Months Ended September 30, 1999 and for the
Period from January 27, 1998 to September 30, 1998 5
Notes to Consolidated Financial Statements 6
Management's Discussion and Analysis of Financial
Condition and Results of Operations 8
PART II. OTHER INFORMATION 12
</TABLE>
2
<PAGE> 3
PART I. FINANCIAL INFORMATION
DELPHI INTERNATIONAL LTD. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF INCOME (LOSS) AND COMPREHENSIVE INCOME (LOSS)
(EXPRESSED IN US DOLLARS)
(UNAUDITED)
<TABLE>
<CAPTION>
Period from
Three Months Three Months Nine Months January 27, 1998
Ended Ended Ended To
Sept. 30, 1999 Sept. 30, 1998 Sept. 30, 1999 Sept. 30, 1998
-------------- -------------- -------------- ----------------
<S> <C> <C> <C> <C>
REVENUES:
Premiums written $ 2,304,352 $ 12,011,000 $ 6,358,634 $ 132,844,950
Premiums ceded - (15,000) - (15,000)
------------- ------------- ------------- -------------
Premiums earned 2,304,352 11,996,000 6,358,634 132,829,950
Net investment income (loss) 3,933,532 (16,054,905) 16,658,719 (9,863,882)
------------- ------------- ------------- -------------
Total revenues 6,237,884 (4,058,905) 23,017,353 122,966,068
------------- ------------- ------------- -------------
LOSSES AND EXPENSES:
Losses and loss expenses incurred 3,197,481 13,462,778 9,609,868 126,029,954
Underwriting and acquisition expenses 916,935 (10,777) 5,716,815 7,661,450
Interest expense 711,173 756,986 2,103,337 1,940,548
General and administrative expenses 418,054 470,994 1,441,972 1,145,151
Incorporation costs -- 17,447 -- 1,338,035
------------- ------------- ------------- -------------
Total losses and expenses 5,243,643 14,697,428 18,871,992 138,115,138
------------- ------------- ------------- -------------
Net income (loss) 994,241 (18,756,333) 4,145,361 (15,149,070)
Dividends on Preferred Shares (237,500) - (712,500) -
------------- ------------- ------------- -------------
Net income (loss) attributable to Common Shares $ 756,741 $ (18,756,333) $ 3,432,861 $ (15,149,070)
============= ============= ============= =============
Basic and diluted net income (loss) per Common
Share $ 0.19 $ (4.60) $ 0.84 $ (3.71)
Comprehensive income (loss):
Net income (loss) $ 994,241 $ (18,756,333) $ 4,145,361 $ (15,149,070)
Other comprehensive (loss) income:
Change in unrealized (losses) gains on fixed
maturity securities, net of reclassification
adjustments (225,800) 592,237 (1,606,159) 968,339
------------- ------------- ------------- -------------
Comprehensive income (loss) $ 768,441 $ (18,164,096) $ 2,539,202 $ (14,180,731)
============= ============= ============= =============
</TABLE>
See notes to consolidated financial statements
3
<PAGE> 4
DELPHI INTERNATIONAL LTD. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(EXPRESSED IN US DOLLARS)
(UNAUDITED)
<TABLE>
<CAPTION>
September 30, 1999 December 31, 1998
------------------ -----------------
<S> <C> <C>
ASSETS:
Investments:
Fixed maturity securities, available for sale $ 86,598,933 $ 18,306,720
Balances with independent investment managers 27,358,286 77,197,580
Equity securities 7,515,900 -
------------- -------------
121,473,119 95,504,300
Cash and cash equivalents 19,793,121 26,152,550
Funds withheld by ceding reinsurer 18,056,673 16,000,000
Due from independent investment managers 3,557,045 28,106,350
Deferred acquisition costs 1,102,610 1,147,923
Other assets 2,899,513 185,005
Assets held for participating shareholder:
Cash and cash equivalents 68,357 2,875,000
Fixed maturity securities 2,581,537 -
------------- -------------
Total assets $ 169,531,975 $ 169,971,128
============= =============
LIABILITIES:
Reserves for losses and loss expenses $ 116,959,925 $ 125,191,823
Subordinated notes 31,350,000 30,000,000
Other liabilities 8,022,260 3,893,611
Liabilities relating to participating shareholder 2,649,894 2,875,000
------------- -------------
Total liabilities 158,982,079 161,960,434
------------- -------------
SHAREHOLDERS' EQUITY:
Preferred Shares, $0.01 par value; 5,000,000 shares authorized,
100,000 shares issued and outstanding 1,000 1,000
Participating Preferred Shares, $0.01 par value; 1,000 shares issued
and outstanding 10 10
Common Shares, $0.01 par value; 10,000,000 shares authorized
4,079,014 shares issued and outstanding 40,790 40,790
Additional paid-in capital 30,864,147 30,864,147
Provision for dividends on Preferred Shares 712,500 -
Accumulated other comprehensive (loss) income (1,246,373) 359,786
Retained deficit (19,822,178) (23,255,039)
------------- -------------
Total shareholders' equity 10,549,896 8,010,694
------------- -------------
Total liabilities and shareholders' equity $ 169,531,975 $ 169,971,128
============= =============
</TABLE>
See notes to consolidated financial statements
4
<PAGE> 5
DELPHI INTERNATIONAL LTD. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(EXPRESSED IN US DOLLARS)
(UNAUDITED)
<TABLE>
<CAPTION>
Period From
Nine Months January 27, 1998
Ended To
September 30, 1999 September 30, 1998
------------------ ------------------
<S> <C> <C>
Cash flows from operating activities:
Net income (loss) $ 4,145,361 $ (15,149,070)
Adjustments to reconcile net income (loss) to net cash (used)
provided by operating activities:
Investment (income) loss related to balances
with independent investment managers (12,071,848) 10,951,469
Realized gains on sales of fixed maturity securities - (12,060)
Amortization on fixed maturity securities (67,114) (13,958)
Changes in assets and liabilities:
Funds withheld by ceding reinsurer (2,056,673) (15,225,651)
Reinsurance premium receivable - (11,481,000)
Deferred acquisition costs 45,313 -
Incorporation costs - 1,338,035
Other assets (2,714,511) (361,567)
Reserves for losses and loss expenses (8,231,897) 121,236,194
Provision for annuity reinsurance payments - 10,500,000
Other liabilities 5,478,652 4,091,256
Assets held for participating shareholder (225,106) -
Liabilities relating to participating shareholder 225,106 -
------------- -------------
Net cash (used) provided by operating activities (15,472,717) 105,873,648
------------- -------------
Cash flows from investing activities:
Proceeds from sales of fixed maturity securities 314,748 1,794,130
Withdrawals from balances with independent investment managers 107,542,946 4,376,820
Purchases of fixed maturity and equity securities (77,661,906) (19,451,165)
Purchases of investments with independent investment managers (21,082,500) (141,121,629)
Incorporation costs - (1,338,035)
------------- -------------
Net cash provided (used) by investing activities 9,113,288 (155,739,879)
------------- -------------
Cash flows from financing activities:
Proceeds from issuance of subordinated notes - 40,000,000
Proceeds from issuance of common shares - 20,254,947
------------- -------------
Net cash provided by financing activities - 60,254,947
------------- -------------
(Decrease) increase in cash and cash equivalents (6,359,429) 10,388,716
Cash and cash equivalents at beginning of period 26,152,550 -
------------- -------------
Cash and cash equivalents at the end of period $ 19,793,121 $ 10,388,716
============= =============
</TABLE>
5
<PAGE> 6
DELPHI INTERNATIONAL LTD. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
NOTE A - SIGNIFICANT ACCOUNTING POLICIES
The financial statements included herein were prepared in conformity with
generally accepted accounting principles for interim financial information and
with the instructions to Form 10-Q and Article 10 of Regulation S-X.
Accordingly, they do not include all of the information and footnotes required
by generally accepted accounting principles for complete financial statements.
Such principles were applied on a basis consistent with those reflected in the
Company's report on Form 10-K for the year ended December 31, 1998. The
information furnished includes all adjustments and accruals of a normal
recurring nature which are, in the opinion of management, necessary for a fair
presentation of results for the interim periods. Operating results for the nine
months ended September 30, 1999 are not necessarily indicative of the results
that may be expected for the year ended December 31, 1999. Certain
reclassifications have been made in the 1998 financial statements to conform to
the 1999 presentation. For further information refer to the consolidated
financial statements and footnotes thereto included in the Company's report on
Form 10-K for the year ended December 31, 1998. Capitalized terms used herein
without definition have the meanings ascribed to them in the Company's report on
Form 10-K for the year ended December 31, 1998.
NOTE B - PREFERRED SHARES
The Company's Series A Preferred Shares (the "Preferred Shares") are entitled to
a cumulative dividend of 9.5% per annum on the issue price of the shares. The
dividend is payable solely in additional Preferred Shares issued and redeemable
at $100 per share. No dividend has been declared at September 30, 1999, but a
provision for the cumulative dividend at September 30, 1999 has been recorded as
an appropriation of retained deficit.
NOTE C - INVESTMENTS
At September 30, 1999, the Company had fixed maturity securities available for
sale with a carrying value of $86,598,933 and an amortized cost of $87,845,306
and balances with independent investment managers with a carrying value and a
fair value of $27,358,286. At December 31, 1998, the Company had fixed maturity
securities available for sale with a carrying value of $18,306,720 and an
amortized cost of $17,946,934 and balances with independent investment managers
with a carrying value and a fair value of $77,197,580. The amounts invested with
independent investment managers are, with certain limited exceptions,
withdrawable at least annually, subject to applicable notice requirements.
During the third quarter of 1999, the Company liquidated a substantial portion
of its investments in vehicles of independent investment managers and reinvested
$75,159,000 of the proceeds in preferred and common securities of a special
purpose limited liability company (the "LLC"), the assets of which are invested
in similar vehicles. Ninety percent of the Company's investment in the LLC
consists of redeemable preferred securities carrying a cumulative fixed dividend
of 15.5% per annum. At September 30, 1999, the initial investment in the
preferred securities has been included in the carrying value of fixed maturity
securities.
6
<PAGE> 7
DELPHI INTERNATIONAL LTD. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
NOTE D - STATEMENTS OF CASH FLOWS - NON-CASH FINANCING ACTIVITIES
Pursuant to the terms of the Subordinated Notes, interest of $1,350,000 due on
such notes has been paid by the issuance of additional Subordinated Notes in
lieu of cash payments.
NOTE E - COMPUTATION OF NET INCOME (LOSS) PER COMMON SHARE
The following table sets forth the numerators and denominators used to calculate
basic and diluted results per share:
<TABLE>
<CAPTION>
Three Three Nine Period From
Months Months Months January 27,
Ended Ended Ended 1998 to
September 30, September 30, September 30, September 30,
1999 1998 1999 1998
------------ ------------ ------------ ------------
<S> <C> <C> <C> <C>
Numerator:
Net income (loss) $ 994,241 $(18,756,333) $ 4,145,361 $(15,149,070)
Dividends on Preferred Shares (237,500) - (712,500) -
------------ ------------ ------------ ------------
Net income (loss) attributable to common shareholders $ 756,741 $(18,756,333) $ 3,432,861 $(15,149,070)
============ ============ ============ ============
Denominator:
Weighted average common shares outstanding 4,079,014 4,079,014 4,079,014 4,079,014
Effect of dilutive securities 7,559 - 3,354 -
------------ ------------ ------------ ------------
Weighted average common shares outstanding,
assuming dilution 4,086,573 4,079,014 4,082,368 4,079,014
============ ============ ============ ============
</TABLE>
7
<PAGE> 8
DELPHI INTERNATIONAL LTD.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
GENERAL
The following is an analysis of the results of operations and financial
condition of Delphi International Ltd. (the "Company," which term includes the
Company and its consolidated subsidiaries unless the context indicates
otherwise). This analysis should be read in conjunction with the Consolidated
Financial Statements and related notes included in this document, as well as the
Company's report on Form 10-K for the year ended December 31, 1998. Capitalized
terms used herein without definition have the meanings ascribed to them in the
Company's report on Form 10-K for the year ended December 31, 1998.
RESULTS OF OPERATIONS
Nine Months Ended September 30, 1999 Compared to
Period From January 27, 1998 to September 30, 1998
Underwriting Income. Premiums for the nine months ended September 30, 1999 were
$6.4 million as compared to $132.8 million for the period ended September 30,
1998. Premiums in the first nine months of 1999 were derived from a workers'
compensation quota share reinsurance agreement with Safety National Casualty
Corporation ("Safety National"). Premiums in the period ended September 30, 1998
were derived primarily from workers' compensation aggregate excess of loss
reinsurance assumed from Safety National in the amount of $82.1 million, from
the group long-term disability quota share reinsurance assumed from Reliance
Standard Life Insurance Company ("RSL") in the amount of $39.8 million and from
professional liability aggregate excess reinsurance assumed in the amount of
$10.9 million.
Investment Income (Loss). Investment income for the nine months ended September
30, 1999 was $16.7 million as compared to an investment loss of $9.9 million for
the period ended September 30, 1998. The Company's investment results during
these periods have primarily been derived from the performance of investment
vehicles of independent investment managers. Investment income for the 1999
period primarily resulted from a recovery in numerous sectors of the global
financial markets, which impacted positively upon the performance of the
investment portfolios of the independent investment managers. Losses in the 1998
period were primarily caused by declines in numerous sectors of the financial
markets during the second and third quarters of 1998.
During the third quarter of 1999, the Company liquidated a substantial portion
of its investments in vehicles of independent investment managers and reinvested
the proceeds in certain preferred and common securities. See Note C to the
Consolidated Financial Statements.
Underwriting and Other Expenses. Losses and loss expenses for the nine months
ended September 30, 1999 were $9.6 million as compared to $126.0 million for the
period ended September 30, 1998. Losses and loss expenses in the first nine
months of 1999 primarily reflect the provision for losses assumed under the
workers' compensation quota share reinsurance agreement with Safety National and
the accretion of the discounted values of existing reserves. Losses and loss
expenses incurred for the period ended September 30, 1998 include the discounted
value of the loss portfolios assumed under the reinsurance agreements with
Safety National and RSL.
8
<PAGE> 9
DELPHI INTERNATIONAL LTD.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
Underwriting and acquisition expenses totaled $5.7 million for the nine months
ended September 30, 1999 as compared to $7.7 million in the period ended
September 30, 1998. Underwriting and acquisition expenses in the 1999 period
reflect $5.3 million of profit sharing commissions payable under the Safety
National and RSL reinsurance agreements for the period from inception through
September 30, 1999. Underwriting and acquisition expenses of $7.7 million in the
1998 period include ceding commissions of $4.8 million, profit sharing
commissions and other underwriting expenses of $1.6 million and federal excise
taxes of $1.3 million related to the reinsurance agreements with Safety National
and RSL.
Interest expense and other operating expenses for the nine months ended
September 30, 1999 totaled $3.5 million as compared to $3.1 million in the
period ended September 30, 1998. This increase primarily reflects a full nine
month period of operations in 1999.
Three Months Ended September 30, 1999 Compared to
Three Months Ended September 30, 1998
Underwriting Income. Premiums for the third quarter of 1999 of $2.3 million were
derived from a workers' compensation quota share reinsurance agreement with
Safety National. Premiums for the quarter ended September 30, 1998 of $12.0
million were derived from professional liability aggregate excess reinsurance
and excess workers' compensation reinsurance.
Investment Income (Loss). Investment income for the third quarter of 1999 was
$3.9 million as compared with an investment loss of $16.1 million in the third
quarter of 1998. The Company's investment results for the third quarter of 1999
are derived primarily from accumulated dividends on certain preferred
securities. See Note C to the Consolidated Financial Statements. Losses in the
third quarter of 1998 were derived primarily from the performance of investment
vehicles of independent investment managers and were caused by significant
declines in numerous sectors of the financial markets during the quarter.
Underwriting and Other Expenses. Losses and loss expenses of $3.2 million in the
third quarter of 1999 primarily reflect the provision for losses assumed under
the workers' compensation quota share reinsurance agreement with Safety National
and the accretion of the discounted values of existing reserves. Losses and loss
expenses of $13.5 million in the third quarter of 1998 reflect a loss reserve
provision for the professional liability aggregate excess reinsurance referred
to above as well as the accretion of the discounted values of existing reserves.
Underwriting and acquisition expenses totaled $0.9 million in the third quarter
of 1999 and reflects $0.8 million of profit sharing commissions payable under
the Safety National and RSL reinsurance agreements.
9
<PAGE> 10
DELPHI INTERNATIONAL LTD.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
LIQUIDITY AND CAPITAL RESOURCES
The Company's current liquidity needs at the holding company level include
funding operating expenses, interest payments on the Subordinated Notes and the
repayment of incorporation expenses paid by Delphi Financial Group, Inc. At the
Company's option, the Company may pay interest on the Subordinated Notes in
additional Subordinated Notes in lieu of cash payments during any five-year
period. In the nine-month period to September 30, 1999, $1.4 million of interest
due on the Subordinated Notes was paid by the issuance of additional
Subordinated Notes with an aggregate principal amount of $1.4 million. As of
September 30, 1999, the Company had $14.2 million in financial assets at the
holding company level. The Company's other source of liquidity at the holding
company level consists of dividends from its insurance subsidiary, Oracle Re.
Dividend payments by Oracle Re to the Company are subject to certain Bermuda
regulatory restrictions as well as contractual restrictions. Under the LOC
Agreement, dividends by Oracle Re in any fiscal year may generally not exceed
the greater of (a) 50% of Oracle Re's statutory net income for the preceding
fiscal year and (b) the lesser of (i) $3,000,000 and (ii) Oracle Re's statutory
net income for the preceding fiscal year. Such restriction does not permit the
payment of dividends by Oracle Re in 1999.
The principal liquidity requirement of Oracle Re, in addition to funding
operating expenses, is the fulfillment of the obligations under its reinsurance
agreements. The primary source of funding for these obligations, in addition to
operating earnings, is the net cash flow from the investments included in Oracle
Re's investment portfolio. Each of Oracle Re's reinsurance agreements written in
the period to December 31, 1998 involved a one-time payment to Oracle Re at
inception and does not provide for ongoing reinsurance premiums. In May 1999,
Oracle Re and RSL agreed to the partial recapture of approximately 35% of the
group long term disability liabilities ceded to Oracle Re under its quota share
reinsurance agreement with RSL. In connection with the partial recapture by RSL
of these liabilities, $10 million in cash, the amount of the reserves
recaptured, was transferred to RSL.
In addition to Oracle Re's current liquidity requirements, Oracle Re is required
to provide collateral security with respect to letters of credit outstanding
under the LOC Agreement and otherwise. Under the LOC Agreement, the collateral
maintenance requirement is equal to up to 140% of the amount of the outstanding
letters of credit which percentage is scheduled to increase to 145% in January
2000. In the event that sufficient collateral cannot be maintained relative to
these requirements, Oracle Re may be required to negotiate with its reinsureds
to reduce the size of the reinsurance transactions, thereby decreasing the
amounts of letters of credit and related collateral requirements under the LOC
Agreement. Moreover, if Oracle Re were unable to furnish sufficient collateral
or otherwise were to fail to satisfy any covenant or requirement under the LOC
Agreement, it may be required to liquidate all or a substantial portion of its
investment portfolio or otherwise secure its obligations under its reinsurance
agreements, which would likely have a material adverse effect on the business
and operations of the Company.
The Company believes that the sources of funding available at the holding
company and insurance subsidiary levels, respectively, will be adequate to
satisfy on both a short-term and long-term basis the companies' applicable
liquidity requirements.
IMPACT OF YEAR 2000
All of the Company's computer related systems are furnished by its third party
administrative services provider, a substantial and reputable firm which
provides similar services to other Bermuda based insurance companies. This firm
10
<PAGE> 11
DELPHI INTERNATIONAL LTD.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
has provided the Company with an assurance that it has completed its Year 2000
assessment, and that its computer related systems are currently Year 2000
compliant, although such systems are, in this regard, subject to any further
modifications which may be advised by its computer related systems suppliers.
The Company's third party administrative services provider plans to continue to
monitor and test its critical systems for Year 2000 compliance throughout the
remainder of 1999. The Company has also requested assurances of Year 2000
compliance from its other significant business partners and vendors in an effort
to resolve any potential problems with the products and services they provide.
In most cases, alternative vendors could be utilized in the event Year 2000
compliance problems are encountered. If the computer systems of the Company's
administrative services provider failed due to the Year 2000 issue, the Company
plans to return to manual operations on an interim basis until the problem is
resolved. The costs of the Company's activities relating to the Year 2000 issue
have not been and are not expected to be material to the Company's financial
condition or results of operations. The Company does not believe that the Year
2000 issue will have a material effect on its operations; however, no assurance
can be given in this regard.
MARKET RISK
There have been no material changes in the Company's exposure to market risk or
its management of such risk since December 31, 1998.
CAUTIONARY STATEMENT REGARDING FORWARD LOOKING INFORMATION
In connection with and because it desires to take advantage of the "safe harbor"
provisions of the Private Securities Litigation Reform Act of 1995, the Company
cautions its readers regarding certain forward-looking statements in the
foregoing discussions and elsewhere in the Form 10-Q and in any other statement
made by, or on behalf of, the Company, whether or not in future filings with the
Securities and Exchange Commission. Forward-looking statements are statements
not based on historical information and which relate to future operations,
strategies, financial results or other developments. Some forward-looking
statements may be identified by the use of terms such as "expects," "believes,"
"anticipates," "intends," or "judgment." Forward-looking statements are
necessarily based upon estimates and assumptions that are inherently subject to
significant business, economic and competitive uncertainties and contingencies,
many of which are beyond the Company's control and many of which, with respect
to future business decisions, are subject to change. Examples of such
uncertainties and contingencies include changes in global economic and financial
conditions and markets, the Company's investment strategy and implementation
thereof, the performance of the Company's investment portfolio, the ability of
the Company to generate new business opportunities and submissions, changes in
insurance or other laws and regulations or governmental interpretations thereof,
and the ability of the Company's or significant third parties' computer systems
to process correctly dates in and after the year 2000. These uncertainties can
affect actual results and could cause actual results to differ materially from
those expressed in any forward-looking statements made by, or on behalf of, the
Company. The Company disclaims any obligation to update forward-looking
information.
11
<PAGE> 12
PART II. OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits
10.1 - First Amendment to Letter of Credit Agreement,
dated as of July 1, 1999, among Oracle Reinsurance
Company, Ltd., Bank of America National Trust and
Savings Association, as Agent and L/C Administrator,
The Bank of New York, as co-agent, Deutsche Bank AG,
as co-agent, Dresdner Bank A.G., New York Branch, as
co-agent and Fleet National Bank, as co-agent, and
the other financial institutions party thereto.
11 - Computation of Net Income (Loss) per Share of
Common Stock (incorporated by reference to Note E to
the Consolidated Financial Statements included
elsewhere herein)
27 - Financial Data Schedule
(b) Reports on Form 8-K
None
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.
DELPHI INTERNATIONAL LTD. (Registrant)
/s/ C. O'CONNOR
----------------
C. O'Connor
President and Chief Executive Officer
(Principal Executive Officer)
/s/ D. EZEKIEL
--------------
D. Ezekiel
Vice President and Director
(Principal Accounting and Financial Officer)
Date: November 12, 1999
12
<PAGE> 1
Exhibit 10.1
FIRST AMENDMENT TO LETTER OF CREDIT AGREEMENT
THIS FIRST AMENDMENT TO LETTER OF CREDIT AGREEMENT, dated as of July 1,
1999 (the "Amendment"), amends the Letter of Credit Agreement, dated as of
January 27, 1998 (the "Credit Agreement"), among Oracle Reinsurance Company,
Ltd., a Bermuda insurance company (the "Company"), the various financial
institutions parties thereto (collectively, the "Banks") and Bank of America
National Trust and Savings Association, as letter of credit administrator and as
agent (the "Agent"), The Bank of New York, as co-agent, Deutsche Bank AG, as
co-agent, Dresdner Bank A.G., New York Branch as co-agent and Fleet National
Bank, as co-agent. Terms defined in the Credit Agreement are, unless otherwise
defined herein or the context otherwise requires, used herein as defined
therein.
WHEREAS, the parties hereto have entered into the Credit Agreement,
which provides for the Bank to extend certain credit facilities to the Company
from time to time; and
WHEREAS, the parties hereto desire to amend the Credit Agreement in
certain respects as hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration (the receipt and sufficiency of which are hereby
acknowledged), the parties hereto agree as follows:
SECTION 1 AMENDMENTS. Effective as of July 1, 1999, the Credit
Agreement shall be amended in accordance with Sections 1.1 through 1.14 below.
1.1 Adjusted Asset Value. The definition of "Adjusted Asset Value" in
Section 1.1 of the Credit Agreement is amended to state in its entirety as
follows:
"Adjusted Asset Value means, without duplication, on any date,
an amount equal to the result of the sum of (i) 1.00 times the
Fair Market Value of all Fund Investments Pledged by the
Company or the Parent, plus (ii) 0.90 times the Fair Market
Value of all Fund Investments Pledged by the Subsidiary
Pledgor, plus (iii) 1.00 times the Fair Market Value of all
Structured Notes and all Investment Subsidiaries, the stock of
which is Pledged by the Company plus (iv) 1.50 (or the
Borrowing Base Factor then applicable, if less) times the Fair
Market Value of all Cash and Cash Equivalents Pledged by
either the Company or the Parent, plus (v) 1.45 (or .967 times
the Borrowing Base Factor then applicable, if such product is
less) times the Fair Market Value of all securities issued or
directly and fully guaranteed or insured by the United States
of America or any agency or instrumentality thereof (provided
that the full faith and credit of the United States of America
is pledged in support thereof) which are
<PAGE> 2
Pledged by either the Company or the Parent, plus (vi) 1.40
(or .933 times the Borrowing Base Factor then applicable, if
such product is less) times the Fair Market Value of all bonds
rated at least "AA" by S&P or "Aa2" by Moody's Pledged by the
Company or the Parent, plus (vii) 1.00 times the Fair Market
Value of all bonds rated at least "BBB-" (but not higher than
"AA-") by S&P or "Baa3" (but not higher than "Aa3") by Moody's
Pledged by either the Company or the Parent, plus (viii) 1.00
times the Fair Market Value of the Managed Accounts Pledged by
the Company or the Parent plus (ix) 1.35 (or .90 times the
Borrowing Base Factor then applicable, if such product is
less) times the Fair Market Value of all Cash and Cash
Equivalents Pledged by the Subsidiary Pledgor, plus (x) 1.305
(or .8703 times the Borrowing Base Factor then applicable, if
such product is less) times the Fair Market Value of all
securities issued or directly and fully guaranteed or insured
by the United States of America or any agency or
instrumentality thereof (provided that the full faith and
credit of the United States of America is pledged in support
thereof) which are Pledged by the Subsidiary Pledgor, plus
(xi) 1.26 (or .8397 times the Borrowing Base Factor then
applicable, if such product is less) times the Fair Market
Value of all bonds rated at least "AA" by S&P or "Aa2" by
Moody's Pledged by the Subsidiary Pledgor, plus (xii) .90
times the Fair Market Value of all bonds rated at least "BBB-"
(but not higher than "AA-") by S&P or "Baa3" (but not higher
than "Aa3") by Moody's Pledged by the Subsidiary Pledgor, plus
(xiii) .90 times the Fair Market Value of the Managed Accounts
Pledged by the Subsidiary Pledgor."
1.2 Change of Control. The definition of "Change of Control" in Section
1.1 of the Credit Agreement is amended to state in its entirety as follows:
"(a) with respect to the Company, the failure by the Parent to
own, beneficially and of record, 100% of each class of common stock of
the Company;
(b) with respect to the Subsidiary Pledgor, the failure by the
Company and a Related Party to own, beneficially and of record, 100% of
each class of membership interests of the Subsidiary Pledgor;
(c) Robert Rosenkranz or any other Standby Purchaser shall
sell, transfer or otherwise dispose of any shares of common stock of
the Parent, if upon such disposition the value of the stock held by
Robert Rosenkranz and the other Standby Purchasers in the aggregate
shall be less than $5,000,000; or
(d) any Person shall own greater voting power in the Parent
than Robert Rosenkranz and members of management of the Parent."
1.3 Collateral Documents. The definition of "Collateral Documents" in
Section 1.1 of the Credit Agreement is amended to state in its entirety as
follows:
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<PAGE> 3
"Collateral Document means the Security Agreement, the Parent
Security Agreement, the Parent Guaranty, the Subsidiary
Pledgor Security Agreement and any other document pursuant to
which collateral securing the liabilities of the Company and
the Parent under any Loan Document is granted to the Agent for
the benefit of the Agent and the Banks."
1.4 Investment Subsidiary. The definition of "Investment Subsidiary" in
Section 1.1 of the Credit Agreement is amended to state in its entirety as
follows:
"Investment Subsidiary means a Subsidiary of the Company,
which holds Managed Accounts and shall do no other business
and make no other Investments other than in Cash and Cash
Equivalents. For the purpose of Sections 5.1, 5.5, 5.6, 5.10,
5.12, 5.14-5.16, 5.18, 5.21, 6.5-6.8, 6.10-6.11, 6.15,
7.1-7.5, 7.10, 7.14, 7.15, 7.16, 7.24, 8.1(e)-(g), and
8.1(i)-(j) of this Agreement, the term "Investment Subsidiary"
shall also include the Subsidiary Pledgor."
1.5 Pledged. The definition of "Pledged" in Section 1.1 of the Credit
Agreement is hereby amended to state in its entirety as follows:
"Pledged means pledged by the Company, the Parent or the
Subsidiary Pledgor to the Agent for the benefit of the Banks
pursuant to the Security Agreement, Parent Security Agreement
or the Subsidiary Pledgor Agreement, respectively."
1.6 Material Adverse Effect. The definition of "Material Adverse
Effect" in Section 1.1 of the Credit Agreement is amended to state in its
entirety as follows:
"Material Adverse Effect means (a) a material adverse change
in, or a material adverse effect upon, the operations,
business, properties or condition (financial or otherwise) of
the Company or the Parent; (b) a material impairment of the
ability of the Company, the Subsidiary Pledgor or the Parent
to perform under any Loan Document; or (c) a material adverse
effect upon the legality, validity, binding effect or
enforceability against the Company, the Subsidiary Pledgor or
the Parent of any Loan Document."
1.7 Additional Definitions. The following definitions are added to
Section 1.1 of the Credit Agreement in proper alphabetical order:
"Subsidiary Pledgor means Inman Partners LLC, a limited
liability company organized under the laws of the Isle of Man.
Subsidiary Pledgor Security Agreement means a deed of pledge
of the Subsidiary Pledgor in the form attached as Exhibit L."
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<PAGE> 4
1.8 Representations. Sections 5.1 through 5.6, 5.10, 5.12, 5.14, 5.16,
5.18 and 5.20 of the Credit Agreement are hereby amended to state in their
entirety as follows:
"5.1. Corporate Existence and Power. Each of the Company, the
Parent, and each Investment Subsidiary:
(a) is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its
organization;
(b) has the power and authority and all governmental
licenses, authorizations, consents and approvals (i)
to own its assets and to carry on its business, and
(ii) to execute, deliver and perform its obligations
under the Transaction Documents to which it is a
party;
(c) is duly qualified and is licensed and in good
standing under the laws of each jurisdiction where
its ownership, lease or operation of property or the
conduct of its business requires such qualification
or license; and
(d) is in compliance with all Requirements of Law;
except, in each case referred to in clause (b)(i), (c) or (d),
to the extent that the failure to do so could not reasonably
be expected to have a Material Adverse Effect.
5.2 Corporate Authorization; No Contravention. The execution
and delivery by the Company of this Agreement and each other
Transaction Document to which it is a party, the Letter of Credit
Issuances and the L/C Advances hereunder, the execution and delivery by
the Parent of each Transaction Document to which it is a party, the
execution by the Subsidiary Pledgor of each Transaction Document to
which it is a party, and the performance by each of the Company, the
Parent and the Subsidiary Pledgor of its obligations under each
Transaction Document to which it is a party (i) are within the powers
of the Company, the Parent, and the Subsidiary Pledgor, as applicable,
(ii) have been duly authorized by all necessary action on the part of
the Company, the Parent and the Subsidiary Pledgor (including any
necessary shareholder or member action), and (iii) do not and will not:
(a) contravene the terms of any of the Organization
Documents of the Company, Parent or the Subsidiary Pledgor;
(b) conflict with or result in a breach or
contravention of, or the creation of any Lien under, any
document evidencing any Contractual Obligation to which the
Company, the Parent or the Subsidiary Pledgor is a party, or
any order, injunction, writ or decree of any Governmental
Authority to which the Company, the Parent, the Subsidiary
Pledgor or any of their respective properties are subject; or
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<PAGE> 5
(c) violate any Requirement of Law.
5.3 Governmental Authorization. No approval, consent,
exemption, authorization, or other action by, or notice to, or filing
with, any Governmental Authority which has not been obtained, taken or
made, is necessary or required in connection with the execution,
delivery or performance by, or enforcement against (i) the Company of
this Agreement or any other Transaction Document to which it is a party
or (ii) the Parent or the Subsidiary Pledgor of any Transaction
Document to which it is a party.
5.4 Binding Effect. This Agreement and each other Transaction
Document to which the Company is a party constitute the legal, valid
and binding obligations of the Company, enforceable against the Company
in accordance with their respective terms, except as enforceability may
be limited by applicable bankruptcy, insolvency, or similar laws
affecting the enforcement of creditors' rights generally or by
equitable principles relating to enforceability. Each Transaction
Document to which the Parent or the Subsidiary Pledgor is a party
constitutes the legal, valid and binding obligations of the Parent or
the Subsidiary Pledgor, as applicable, enforceable against the Parent
or Subsidiary Pledgor, as applicable, in accordance with their
respective terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, or similar laws affecting the enforcement of
creditors' rights generally or by equitable principles relating to
enforceability.
5.5 Litigation. Except as specifically disclosed in Schedule
5.5, there are no actions, suits, proceedings, claims or disputes
pending, or to the best knowledge of the Company, threatened or
contemplated, at law, in equity, in arbitration or before any
Governmental Authority, against the Company, the Parent, any Investment
Subsidiary or any of their respective properties which: (a) purport to
affect or pertain to this Agreement or any other Loan Document, or any
of the transactions contemplated hereby or thereby; or (b) would
reasonably be expected to have a Material Adverse Effect. No
injunction, writ, temporary restraining order or other order of any
nature has been issued by any court or other Governmental Authority
purporting to enjoin or restrain the execution, delivery or performance
of this Agreement or any other Transaction Document, or directing that
the transactions provided for herein or therein not be consummated as
herein or therein provided.
5.6 No Default. No Event of Default or Unmatured Event of
Default exists or would result from the incurring of any Obligations by
the Company. Neither the Company, the Parent nor any Investment
Subsidiary is in default under or with respect to any Contractual
Obligation in any respect which, individually or together with all such
defaults, could reasonably be expected to have a Material Adverse
Effect or create an Event of Default under subsection 8.1(e).
5.10 Taxes. The Company, the Parent and each Investment
Subsidiary have filed all Federal, State, foreign and other material
tax returns and reports required to be filed, and have
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<PAGE> 6
paid all Federal, State, foreign and other material taxes, assessments,
fees and other governmental charges levied or imposed upon them or
their properties, income or assets otherwise due and payable, except
those which are being contested in good faith by appropriate
proceedings and for which adequate reserves have been provided in
accordance with GAAP and SAP. There is no proposed tax assessment
against the Company, the Parent or any Investment Subsidiary that
would, if made, have a Material Adverse Effect.
5.12 Environmental Matters. Except as specifically disclosed
in Schedule 5.12, neither any non-compliance with any Environmental
Laws nor any liability under any Environmental Laws, nor all
Environmental Claims, in each case as in effect on or prior to the
Closing Date, on or with respect to the business, operations and
properties of the Company, the Parent or any Investment Subsidiary
could, individually or in the aggregate, reasonably be expected to have
a Material Adverse Effect.
5.14 No Burdensome Restrictions. Neither the Company, the
Parent nor any Investment Subsidiary is a party to or bound by any
Contractual Obligation, or subject to any restriction in any
Organization Document, or any Requirement of Law, which could
reasonably be expected to have a Material Adverse Effect.
5.16 Insurance. The properties of the Company, the Parent and
each Investment Subsidiary are insured with financially sound and
reputable insurance companies not Related Parties of the Company, in
such amounts, with such deductibles and covering such risks as are
customarily carried by companies engaged in similar businesses and
owning similar properties in localities where the Company, the Parent
or any Investment Subsidiary operates.
5.18 Full Disclosure. None of the representations or
warranties made by the Company, the Parent or any Investment Subsidiary
in the Loan Documents as of the date such representations and
warranties are made or deemed made, and none of the written statements
contained in any exhibit, report, statement or certificate furnished by
or on behalf of the Company, the Parent or any Investment Subsidiary in
connection with the Transaction Documents (including, without
limitation, the Form S-1 and the other offering and disclosure
materials delivered by or on behalf of the Company to the Banks prior
to the Closing Date), contains any untrue statement of a material fact
or omits any material fact required to be stated therein or necessary
to make such representation, warranty or written statement, in light of
the circumstances under which it is made, not misleading as of the time
when made or delivered.
5.20 First Priority Security Interest. The Agent, for the
benefit of the Banks, has a first priority perfected security interest
(i) in the Collateral pledged by the Company pursuant to the Security
Agreement, (ii) in the Collateral pledged by the Parent pursuant to the
Parent Security Agreement, and (iii) in the Collateral pledged by the
Subsidiary Pledgor pursuant to the Subsidiary Pledgor Security
Agreement."
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<PAGE> 7
1.9 Year 2000. Article V of the Credit Agreement is hereby amended by
the addition of the following at the end:
"5.21 Year 2000. (a) The Parent uses the services of a third
party administrative services provider which has conducted a Year 2000
assessment on behalf of Parent and various subsidiaries of Parent,
including the Company. Such administrator conducts similar services for
other Bermuda based insurance companies. The administrator has provided
the Company and the Parent with an assurance that all of their computer
related systems are Year 2000 compliant.
(b) The Parent has also requested assurances of Year 2000
compliance from its key vendors and customers (and those of the
Company). In most cases, alternative vendors could be used should Year
2000 problems be encountered. Additionally, the Parent is currently
developing appropriate contingency plans in the event any of the
computer systems of its administrative services provider, business
partners or vendors are not Year 2000 compliant.
(c) The Company and the Parent believe they are taking
commercially reasonable steps to address Year 2000 compliance."
1.10 Reports. Sections 6.1(b)(ii), 6.1(c) and 6.1(d) of the Credit
Agreement are amended to state in their entirety as follows:
"(b)(ii) within 52 days after the end of each of the fiscal
quarters of the Company, commencing with the fiscal quarter ending
December 31, 1998, a calculation of the standard deviation of the
monthly rate of return on the Company's, the Parent's and the
Subsidiary Pledgor's Fund Investments and a comparison of such standard
deviation to that of the S&P 500 and the Salomon Bond Index (or their
equivalents).
(c) Other Reports. Within 52 days after the end of each of the
fiscal quarters of the Company, commencing with the fiscal quarter
ending March 31, 1998, a calculation of the value and the quarterly
rate of return of each of the Company's, the Parent's and the
Subsidiary Pledgor's Fund Investments by Strategy.
(d) Monthly Report and Borrowing Base Certificate. As soon as
available, but in any event within 30 days after the end of each
calendar month of each fiscal year, (i) a report (A) valuing each of
the Company's, the Parent's and the Subsidiary Pledgor's Fund
Investments and each of the Company's, the Parent's and the Subsidiary
Pledgor's Publicly Traded Securities, Structured Notes and Investment
Subsidiaries, and (B) listing each of the Company's, the Parent's and
the Subsidiary Pledgor's Cash and Cash Equivalents and (ii) a Borrowing
Base Certificate executed by a Responsible Officer of each of the
Company and the Parent. For purposes of such report and of completing
the Borrowing Base Certificate, each Fund Investment, Publicly Traded
Security, Structured Note and Investment Subsidiary shall be
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<PAGE> 8
valued based on its Fair Market Value as at the last Business Day of
the calendar month for which such report or Borrowing Base Certificate
is being delivered."
1.11 Further Assurances. Section 6.13 of the Credit Agreement is hereby
amended to state in its entirety as follows:
"6.13 Further Assurances. Promptly upon the request of the Agent, or
the Required Banks, the Company shall execute, acknowledge, deliver,
record, re-record, file, re-file, register and re-register, any and all
such further acts, deeds, conveyances, security agreements, pledge
agreements, guaranties, mortgages, assignments, estoppel certificates,
financing statements and continuations thereof, termination statements,
notices of assignment, transfers, certificates, assurances and other
instruments the Agent or the Required Banks as the case may be, may
reasonably request from time to time in order (a) to ensure that the
obligations of the Company hereunder and under the other Loan Documents
are secured by a first priority perfected security interest in the
assets of the Company, the Parent and the Subsidiary Pledgor stated to
be Pledged pursuant to the Collateral Documents, (b) to perfect and
maintain the validity, effectiveness and priority of any of the
Collateral Documents and the Liens intended to be created thereby; and
(c) to better assure, convey, grant, assign, transfer, preserve,
protect and confirm to the Agent and the Banks the rights granted or
now or hereafter intended to be granted to the Agent and the Banks
under any Loan Documents or under any other document executed in
connection therewith. Contemporaneously with the execution and delivery
of any document referred to above, the Company shall deliver all
resolutions, opinions and corporate documents as the Agent or the
Required Banks may reasonably request to confirm the enforceability of
such document and the perfection of the security interest created
thereby, if applicable."
1.12 Investments Available for Withdrawal. Section 7.13 of the Credit
Agreement is amended to state in its entirety as follows:
"7.13 Investments Available for Withdrawal. The Company shall
not permit the aggregate Fair Market Value of all Investments Pledged
by the Company, the Parent and the Subsidiary Pledgor and Investments
made by a Pledged Investment Subsidiary on any day which are available
for withdrawal, sale or use by the Parent, the Company, the Subsidiary
Pledgor or the Pledged Investment Subsidiary, as the case may be, (i)
on at least a quarterly basis to be less than 60% of the aggregate Fair
Market Value of all Investments Pledged by the Company, the Parent and
the Subsidiary Pledgor or owned by a Pledged Investment Subsidiary on
such day, and (ii) on an immediate basis to be less than 4% of the
aggregate Fair Market Value of all Investments Pledged by the Company,
the Parent and the Subsidiary Pledgor and Investments owned by a
Pledged Investment Subsidiary on such day; provided, however, that if
said Investments are less than said 60% limit solely because of
appreciation, the Company shall not be in violation of this Section
7.13 if (i) all Investments thereafter Pledged by the Company, the
Parent or the Subsidiary Pledgor to the Agent or made by a
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Pledged Investment Subsidiary are subject to withdrawal on at least a
quarterly basis until the Company, the Parent, the Subsidiary Pledgor
and the Pledged Investment Subsidiary shall be in compliance with such
limit, (ii) no Investments so Pledged subject to such quarterly or more
frequent withdrawal are withdrawn or have been withdrawn during the
quarter in which the limit was exceeded until the Company, Parent, the
Subsidiary Pledgor and Investment Subsidiary are in compliance and
(iii) the Company, the Parent and the Subsidiary Pledgor shall be in
compliance with such limit at the end of each fiscal year. For the
purpose of this covenant, all Investments held by issuers of Structured
Notes shall be treated as if held by the Company."
1.13 Defaults. Sections 8.1(b), (d) and (l) of the Credit Agreement are
hereby amended to state in their entirety as follows:
"(b) Representation or Warranty. Any representation or
warranty by the Company or the Parent or the Subsidiary Pledgor made or
deemed made herein or in any other Loan Document, or which is contained
in any certificate, document or financial or other statement by the
Company, the Parent or the Subsidiary Pledgor or any Responsible
Officer of the Company, the Parent or the Subsidiary Pledgor furnished
at any time under this Agreement or any other Loan Document, is
incorrect in any material respect on or as of the date made or deemed
made.
(d) Other Defaults. The Company, the Parent or the Subsidiary
Pledgor fails to perform or observe any other term or covenant
contained in this Agreement or any other Loan Document, and such
default shall continue unremedied for a period of 30 days after the
earlier of (i) the date upon which a Responsible Officer of the Company
knew of such failure or (ii) the date upon which written notice thereof
is given to the Company by the Agent or any Bank
(l) Collateral Documents, etc. Any Collateral Document shall
cease to be in full force and effect with respect to the Company, the
Parent or the Subsidiary Pledgor (other than as expressly permitted
hereunder); the Company, the Parent or the Subsidiary Pledgor shall
fail (subject to any applicable grace period) to comply with or to
perform any applicable provision of any Collateral Document; the
Company, the Parent or the Subsidiary Pledgor (or any Person by,
through or on behalf of the Company, the Parent or the Subsidiary
Pledgor) shall contest in any manner the validity, binding nature or
enforceability of any Collateral Document; or the Company or the
Subsidiary Pledgor shall grant a Lien on any of its assets other than
pursuant to the Security Agreement or the Subsidiary Pledgor Security
Agreement and Permitted Liens on assets other than Collateral."
1.14 Subsidiary Pledgor. Section 8.1 of the Credit Agreement is hereby
amended by the addition of the following at the end:
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"(m) Subsidiary Pledgor. Sections 1.09, 2.04 or 9.01(b) of the
limited liability company operating agreement of the Subsidiary Pledgor
is breached or is amended or modified without the prior written consent
of the Required Banks."
SECTION 2 CONDITIONS PRECEDENT. This Amendment shall become effective
when each of the conditions precedent set forth in this Section 2 shall have
been satisfied, and notice thereof shall have been given by the Agent to the
Company and the Bank.
2.1 Receipt of Documents. The Agent shall have received all of the
following documents duly executed, dated the date hereof or such other date as
shall be acceptable to the Agent, and in form and substance satisfactory to the
Agent:
(a) Amendment. This Amendment, duly executed by the Company,
the Agent and the Required Banks.
(b) Secretary's Certificate. A certificate of the Secretary or
an Assistant Secretary of the Company, as to (i) resolutions of the
executive committee of the Company then in full force and effect
authorizing the execution, delivery and performance of this Amendment
and each other document described herein, and (ii) the incumbency and
signatures of those officers of the Company authorized to act with
respect to this Amendment and each other document described herein.
(c) Subsidiary Pledgor Security Agreement. The Subsidiary
Pledgor Security Agreement, duly executed by the Subsidiary Pledgor and
duly filed with and all other documents, including, for all assets
which are to be included in the Borrowing Base: (i) Fund
acknowledgments or (ii) a control agreement with any depository bank,
required by the Agent with respect thereto.
(d) Secretary's Certificate - Subsidiary Pledgor. A
Certificate of the Secretary or Assistant Secretary of the managing
member of the Subsidiary Pledgor, as to (i) resolutions of the members
of the Subsidiary Pledgor then in full force and effect authorizing the
execution, delivery and performance of the Subsidiary Pledgor Security
Agreement, and (ii) the incumbency and signature of those members of
the Subsidiary Pledgor authorized to act with respect to the Subsidiary
Pledgor Security Agreement and each other document described therein.
(e) Opinion of Counsel. An opinion, addressed to the Agent and
the Banks, from Lord, Bissell & Brook and/or Conyers Dill & Pearman,
counsel to the Company in form satisfactory to the Agent.
(f) Opinion of Counsel to Subsidiary Pledgor. An opinion,
addressed to the Agent and all Banks, from Cains, counsel to the
Subsidiary Pledgor in form satisfactory to the Agent.
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(g) Consent. A consent of the Parent in the form attached
hereto.
(h) Agreement with Minority Member. An agreement with the
minority member of the Subsidiary Pledgor in form satisfactory to the
Agent.
(i) Borrowing Base Certificate. A pro forma Borrowing Base
Certificate as of the July 1, 1999 (but based on May 31, 1999 values)
giving effect to the purchases and sales of Investments intended by the
Company, the Parent and the Subsidiary Pledgor.
2.2 Compliance with Warranties, No Default, etc. Both before and after
giving effect to the effectiveness of this Amendment, the following statements
by the Company shall be true and correct (and the Company, by its execution of
this Amendment, hereby represents and warrants to the Agent and each Bank that
such statements are true and correct as at such times):
(a) the representations and warranties set forth in Article V
of the Credit Agreement, as hereby amended, shall be true and correct
with the same effect as if then made (unless stated to relate solely to
an earlier date, in which case such representations and warranties
shall be true and correct as of such earlier date); and
(b) no Event of Default or Unmatured Event of Default shall
have then occurred and be continuing.
2.3 Satisfactory Legal Form. All documents executed or submitted
pursuant hereto by or on behalf of the Company or the Subsidiary Pledgor shall
be satisfactory in form and substance to the Agent and its counsel; and the
Agent and its counsel shall have received all information, approvals, opinions,
documents or instruments as the Agent or its counsel may reasonably request.
SECTION 3 REPRESENTATIONS AND WARRANTIES. To induce the Banks and the
Agent to enter into this Amendment, the Company hereby represents and warrants
to the Agent and each Bank as follows:
3.1 Due Authorization, Non-Contravention, etc. The execution, delivery
and performance by the Borrower of this Amendment and each other Loan Document
executed or to be executed by it or the Subsidiary Pledgor in connection with
this Amendment are within the Company's or the Subsidiary Pledgor's powers, as
applicable, have been duly authorized by all necessary action, and do not
(a) contravene the Company's or the Subsidiary Pledgor's
Organization Documents;
(b) contravene any contractual restriction, law or
governmental regulation or court decree or order binding on or
affecting the Company or the Subsidiary Pledgor; or
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(c) result in, or require the creation or imposition of, any
Lien on any of the Company's or the Subsidiary Pledgor's properties
except for the benefit of the Agent and the Banks.
3.2 Government Approval, Regulation, etc. No authorization or approval
or other action by, and no notice to or filing with, any governmental authority
or regulatory body or other Person is required for the due execution, delivery
or performance by the Company of this Amendment or by the Company or the
Subsidiary Pledgor of any other Loan Document to be executed by the Company or
the Subsidiary Pledgor in connection with this Amendment.
3.3 Validity, etc. This Amendment constitutes, and each other Loan
Document executed by the Borrower or the Subsidiary Pledgor in connection with
this Amendment will, on the due execution and delivery thereof, constitute, the
legal, valid and binding obligations of the Company or the Subsidiary Pledgor,
as applicable, enforceable in accordance with their respective terms.
SECTION 4 MISCELLANEOUS.
4.1 Continuing Effectiveness, etc. This Amendment shall be deemed to be
an amendment to the Credit Agreement, and the Credit Agreement, as amended
hereby, shall remain in full force and effect and is hereby ratified, approved
and confirmed in each and every respect. After the effectiveness of this
Amendment in accordance with its terms, all references to the Credit Agreement
in the Loan Documents or in any other document, instrument, agreement or writing
shall be deemed to refer to the Credit Agreement as amended hereby.
4.2 Payment of Costs and Expenses. The Company agrees to pay on demand
all reasonable expenses of the Agent (including the reasonable fees and
out-of-pocket expenses of counsel to the Agent) in connection with the
negotiation, preparation, execution and delivery of this Amendment.
4.3 Severability. Any provision of this Amendment which is prohibited
or unenforceable in any jurisdiction shall, as to such provision and such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of this Amendment
or affecting the validity or enforceability of such provision in any other
jurisdiction.
4.4 Headings. The various headings of this Amendment are inserted for
convenience only and shall not affect the meaning or interpretation of this
Amendment or any provisions hereof.
4.5 Execution in Counterparts. This Amendment may be executed by the
parties hereto in several counterparts, each of which shall be deemed to be an
original and all of which shall constitute together but one and the same
agreement.
4.6 Governing Law. THIS AMENDMENT SHALL BE DEEMED TO BE A CONTRACT MADE
UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF ILLINOIS.
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4.7 Successors and Assigns. This Amendment shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors
and assigns.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
ORACLE REINSURANCE COMPANY, LTD.
By:____________________________________
Title:_________________________________
<PAGE> 15
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Agent
By:____________________________________
Title:_________________________________
<PAGE> 16
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as L/C Administrator and Fronting Bank
By:____________________________________
Title:_________________________________
<PAGE> 17
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as a Bank
By:____________________________________
Title:_________________________________
<PAGE> 18
THE BANK OF NEW YORK,
as Co-Agent and as a Bank
By:____________________________________
Title:_________________________________
<PAGE> 19
DEUTSCHE BANK AG, New York and/or
Cayman Islands Branches, as Co-Agent
and as a Bank
By:____________________________________
Title:_________________________________
By:____________________________________
Title:_________________________________
<PAGE> 20
DRESDNER BANK A.G.,
New York Branch and Grand Cayman
Branch, as Co-Agent and as a Bank
By:____________________________________
Title:_________________________________
By:____________________________________
Title:_________________________________
<PAGE> 21
FLEET NATIONAL BANK,
as Co-Agent and as a Bank
By:____________________________________
Title:_________________________________
<PAGE> 22
NATIONSBANK OF TEXAS, N.A.,
as a Bank
By:____________________________________
Title:_________________________________
<PAGE> 23
THE BANK OF BERMUDA LTD.,
as a Bank
By:____________________________________
Title:_________________________________
<PAGE> 24
AGREEMENT AND CONSENT
The undersigned hereby agrees and consents to the terms and provisions
of the foregoing First Amendment to Credit Agreement, and agrees that the Loan
Documents executed by the undersigned shall remain in full force and effect
notwithstanding the provisions of the foregoing First Amendment to Credit
Agreement.
Dated: _______________, 1999
DELPHI INTERNATIONAL LTD.
By_____________________________________
Title:_______________________________
<PAGE> 25
Exhibit L
Subsidiary Pledgor Security Agreement
<TABLE> <S> <C>
<ARTICLE> 7
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THIS
CONSOLIDATED BALANCE SHEET AS OF SEPTEMBER 30, 1999 (UNAUDITED) AND THE
CONSOLIDATED STATEMENT OF INCOME FOR THE PERIOD FROM JANUARY 1, 1999 TO
SEPTEMBER 30, 1999 (UNAUDITED) AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO
SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> JAN-01-1999
<PERIOD-END> SEP-30-1999
<DEBT-HELD-FOR-SALE> 86,598,933
<DEBT-CARRYING-VALUE> 0
<DEBT-MARKET-VALUE> 0
<EQUITIES> 7,515,900
<MORTGAGE> 0
<REAL-ESTATE> 0
<TOTAL-INVEST> 121,473,119
<CASH> 19,793,121
<RECOVER-REINSURE> 18,056,673
<DEFERRED-ACQUISITION> 1,102,610
<TOTAL-ASSETS> 169,531,975
<POLICY-LOSSES> 116,959,925
<UNEARNED-PREMIUMS> 0
<POLICY-OTHER> 0
<POLICY-HOLDER-FUNDS> 0
<NOTES-PAYABLE> 31,350,000
0
1,010
<COMMON> 40,790
<OTHER-SE> 10,508,096
<TOTAL-LIABILITY-AND-EQUITY> 169,531,975
6,358,634
<INVESTMENT-INCOME> 16,658,719
<INVESTMENT-GAINS> 0
<OTHER-INCOME> 0
<BENEFITS> 9,609,868
<UNDERWRITING-AMORTIZATION> 0
<UNDERWRITING-OTHER> 5,716,815
<INCOME-PRETAX> 4,145,361
<INCOME-TAX> 0
<INCOME-CONTINUING> 4,145,361
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 4,145,361
<EPS-BASIC> 0.84
<EPS-DILUTED> 0.84
<RESERVE-OPEN> 0
<PROVISION-CURRENT> 0
<PROVISION-PRIOR> 0
<PAYMENTS-CURRENT> 0
<PAYMENTS-PRIOR> 0
<RESERVE-CLOSE> 0
<CUMULATIVE-DEFICIENCY> 0
</TABLE>
