<PAGE>
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------
FORM 10-Q
[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
------------------
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 Number 1-15259
PXRE GROUP LTD.*
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
Bermuda Applied For
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
99 Front Street Suite 231
Hamilton HM 12 12 Church Street
Bermuda Hamilton HM 11
Bermuda
(Address, including zip code, of principal executive offices) (Mailing address)
(441) 296-5858
</TABLE>
(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___
As of November 10, 1999, 11,750,929 common shares, $1.00 par value per
share, of the Registrant were outstanding.*
*PXRE Group Ltd. ("PXRE Group") is the parent corporation of PXRE
Corporation ("PXRE Delaware") (Commission File No. 001-12595; I.R.S. Employer
Identification No. 06-1183996) which became an indirect wholly owned subsidiary
of PXRE Group at the close of business on October 5, 1999 in connection with the
reorganization of PXRE Delaware. Simultaneously therewith, holders of PXRE
Delaware common stock, $.01 par value per share; automatically became holders of
the same number of PXRE Group common shares, $1.00 par value per share which
shares continue to trade under the same New York Stock Exchange ticker symbol
PXT. In connection with the reorganization, PXRE Group has become subject to the
reporting requirements of the Securities Exchange Act of 1934 and has filed all
reports required to be filed thereafter.
- -------------------------------------------------------------------------------
<PAGE>
PXRE GROUP LTD.
INDEX
<TABLE>
<S> <C>
PART I. FINANCIAL INFORMATION
A) PXRE CORPORATION
Consolidated Balance Sheets at September 30, 1999
and December 31, 1998 3
Consolidated Statements of Operations for the three and nine months
ended September 30, 1999 and 1998 4
Consolidated Statements of Stockholders' Equity for the three and nine
months ended September 30, 1999 and 1998 5
Consolidated Statements of Cash Flow for the three and nine months
ended September 30, 1999 and 1998 6
Notes to Consolidated Interim Financial Statements 7
Management's Discussion and Analysis of Financial Condition
and Results of Operations 11
B) PXRE GROUP LTD. (PARENT COMPANY ONLY)
Balance Sheet at September 30, 1999 31
Statement of Operations from Date of Inception June 1, 1999 to
September 30, 1999 32
Statement of Changes in Stockholders' Equity from Date of
Inception June 1, 1999 to September 30, 1999 33
Statement of Changes in Cash Flow from Date of Inception
June 1, 1999 to September 30, 1999 34
Notes to Interim Financial Statements 35
PART II. OTHER INFORMATION 36
</TABLE>
2
<PAGE>
PXRE CONSOLIDATED BALANCE SHEETS
CORPORATION (Unaudited)
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
September 30, December 31,
1999 1998
---- ----
<S> <C> <C> <C>
Assets Investments:
Fixed maturities, available-for-sale, at fair value (amortized
cost $323,879,000 and $308,658,000, respectively) $ 317,889,236 $ 309,477,075
Equity securities, at fair value (cost $30,468,000 and $41,146,000) 26,435,122 40,974,283
Short-term investments 51,495,057 58,861,983
Other invested assets, at equity (cost $57,894,000 and $66,588,000) 65,081,863 65,163,581
---------------- ----------------
Total investments 460,901,278 474,476,922
Cash 7,637,525 16,117,473
Accrued investment income 4,804,523 5,330,419
Receivables:
Unreported premiums 30,015,397 18,440,954
Balances due from intermediaries and brokers 23,950,556 14,631,140
Other receivables 36,110,208 21,293,256
Reinsurance recoverable 49,239,415 41,260,657
Ceded unearned premiums 23,653,073 8,231,130
Deferred acquisition costs 8,071,647 4,122,603
Income tax recoverable 11,274,354 19,569,364
Other assets 10,842,907 9,217,218
================ ================
Total assets $ 666,500,883 $ 632,691,136
================ ================
Liabilities Losses and loss expenses $ 130,962,113 $ 102,592,394
Unearned premiums 50,540,100 20,541,326
Debt payable 50,000,000 50,000,000
Other liabilities 32,250,942 25,664,972
---------------- ----------------
Total liabilities 263,753,155 198,798,692
---------------- ----------------
Minority interest in consolidated subsidiary:
Company-obligated mandatorily redeemable capital trust
pass-through securities of subsidiary trust holding solely a
company-guaranteed related subordinated debt 99,520,021 99,516,938
Stockholders' Serial preferred stock, $.01 par value -- 500,000 shares authorized;
Equity 0 shares issued and outstanding 0 0
Common stock, $.01 par value -- 40,000,000 shares authorized;
15,170,527 and 14,938,262 shares issued, respectively 151,705 149,382
Additional paid-in capital 263,599,528 259,147,554
Accumulated other comprehensive income:
Net unrealized (depreciation) appreciation on investments, net of
deferred income tax (benefit) expense of $(3,505,000) and $3,400 (6,742,247) 6,253
Retained earnings 129,639,541 139,842,939
Treasury stock at cost ( 3,426,201 and 2,614,498 shares) (77,678,209) (61,420,025)
Restricted stock at cost (362,635 and 167,832 shares) (5,742,611) (3,350,597)
---------------- ----------------
Total stockholders' equity 303,227,707 334,375,506
---------------- ----------------
Total liabilities and stockholders' equity $ 666,500,883 $ 632,691,136
================ ================
</TABLE>
The accompanying notes are an integral part of these statements.
3
<PAGE>
PXRE CONSOLIDATED STATEMENTS OF OPERATIONS
CORPORATION (Unaudited)
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
September 30, September 30,
1999 1998 1999 1998
---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Revenues Net premiums earned $ 32,458,734 $ 27,644,965 $ 84,984,167 $ 68,737,319
Net investment income (loss) 9,466,325 (851,792) 27,589,037 11,145,988
Net realized investment (losses) gains (2,194,302) 1,328,034 (3,576,814) 2,980,132
Management fees 528,151 (33,227) 1,828,466 1,471,401
--------------- -------------- ---------------- ----------------
40,258,908 28,087,980 110,824,856 84,334,840
--------------- -------------- ---------------- ----------------
Losses and Losses and loss expenses incurred 29,327,207 32,936,993 66,195,129 39,459,454
Expenses Commissions and brokerage 7,871,366 7,376,058 20,417,117 15,656,171
Other operating expenses 6,713,948 5,414,708 20,031,661 13,365,429
Interest expense 885,254 248,641 2,559,239 1,394,811
Minority interest in consolidated subsidiary 2,220,046 2,232,051 6,546,815 6,695,858
--------------- -------------- ---------------- ----------------
47,017,821 48,208,451 115,749,961 76,571,723
--------------- -------------- ---------------- ----------------
(Loss) income before income taxes and
extraordinary item (6,758,913) (20,120,471) (4,925,105) 7,763,117
Income tax (benefit) provision (1,196,130) (7,484,000) (1,646,130) 1,224,000
--------------- -------------- ---------------- ----------------
(Loss) income before extraordinary loss (5,562,783) (12,636,471) (3,278,975) 6,539,117
Extraordinary loss on debt redemption,
net of $454,000 income tax benefit 0 843,000 0 843,000
--------------- -------------- ---------------- ----------------
Net (loss) income $ (5,562,783) $ (13,479,471) $ (3,278,975) $ 5,696,117
=============== ============== ================ ================
Comprehensive Other comprehensive (loss) income, net of tax:
Income Net unrealized depreciation on investments (244,161) (9,135,867) (6,748,500) (11,748,032)
--------------- -------------- ---------------- ----------------
Comprehensive (loss) income $ (5,806,944) $ (22,615,338) $(10,027,475) $ (6,051,915)
=============== ============== ================ ================
Per Share Basic:
(Loss) income before extraordinary item $ (0.49) $ (0.93) $ (0.28) $ 0.48
Extraordinary loss 0.00 0.06 0.00 0.06
--------------- -------------- ---------------- ----------------
Net (loss) income $ (0.49) $ (0.99) $ (0.28) $ 0.42
=============== ============== ================ ================
Average shares outstanding 11,441,979 13,596,222 11,611,408 13,599,922
=============== ============== ================ ================
Diluted:
(Loss) income before extraordinary item $ (0.49) $ (0.93) $ (0.28) $ 0.48
Extraordinary loss 0.00 0.06 0.00 0.06
--------------- -------------- ---------------- ----------------
Net (loss) income $ (0.49) $ (0.99) $ (0.28) $ 0.42
=============== ============== ================ ================
Average shares outstanding 11,441,979 13,596,222 11,611,408 13,706,155
=============== ============== ================ ================
</TABLE>
The accompanying notes are an integral part of these statements.
4
<PAGE>
PXRE CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
CORPORATION (Unaudited)
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
September 30, September 30,
1999 1998 1999 1998
---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Common Stock: Balance at beginning of period $ 151,628 $ 149,345 $ 149,382 $ 148,063
Issuance of shares 77 18 2,323 1,300
============== ============== =============== ===============
Balance at end of period $ 151,705 $ 149,363 $ 151,705 $ 149,363
============== ============== =============== ===============
Additional Balance at beginning of period $263,494,315 $259,062,191 $ 259,147,554 $ 255,060,792
Paid-in Capital: Issuance of common shares 123,158 44,593 4,627,331 4,029,170
Other (17,945) 0 (175,357) 16,822
============== ============== =============== ===============
Balance at end of period $263,599,528 $259,106,784 $ 263,599,528 $ 259,106,784
============== ============== =============== ===============
Unrealized
Appreciation Balance at beginning of period $ (6,498,086) $ 560,841 $ 6,253 $ 3,173,006
(Depreciation) Change in fair value for the period (244,161) (9,135,867) (6,748,500) (11,748,032)
============== ============== =============== ===============
on Investments: Balance at end of period $ (6,742,247) $ (8,575,026) $ (6,742,247) $ (8,575,026)
============== ============== =============== ===============
Retained Balance at beginning of period $135,908,176 $163,056,187 $ 139,842,939 $ 150,749,451
Earnings: Net (loss) income (5,562,783) (13,479,471) (3,278,975) 5,696,117
Dividends paid to common stockholders (705,853) (3,391,497) (6,924,424) (10,260,349)
============== ============== =============== ===============
Balance at end of period $129,639,541 $146,185,219 $ 129,639,541 $ 146,185,219
============== ============== =============== ===============
Treasury Stock: Balance at beginning of period $(77,662,302) $(26,003,590) $ (61,420,025) $ (21,660,108)
Repurchase of common stock 0 (12,078,148) (16,195,677) (16,390,277)
Other (15,907) 0 (62,507) (31,353)
============== ============== =============== ===============
Balance at end of period $(77,678,209) $(38,081,738) $ (77,678,209) $ (38,081,738)
============== ============== =============== ===============
Restricted Stock: Balance at beginning of period $ (6,390,996) $ (4,159,471) $ (3,350,597) $ (782,808)
Issuance of restricted stock 0 0 (4,224,844) (3,838,227)
Amortization of restricted stock 632,478 404,437 1,770,323 834,648
Other 15,907 0 62,507 31,353
============== ============== =============== ===============
Balance at end of period $ (5,742,611) $ (3,755,034) $ (5,742,611) $ (3,755,034)
============== ============== =============== ===============
Total Balance at beginning of period $309,002,735 $392,665,503 $ 334,375,506 $ 386,688,396
Stockholders' Issuance of common shares 123,235 44,611 4,629,654 4,030,470
Equity: Repurchase of common stock 0 (12,078,148) (16,195,677) (16,390,277)
Restricted stock, net 632,478 404,437 (2,454,521) (3,003,579)
Unrealized (depreciation) appreciation on
investments net of deferred income tax (244,161) (9,135,867) (6,748,500) (11,748,032)
Net (loss) income (5,562,783) (13,479,471) (3,278,975) 5,696,117
Dividends (705,853) (3,391,497) (6,924,424) (10,260,349)
Other (17,945) 0 (175,357) 16,822
-------------- -------------- --------------- ---------------
Balance at end of period $303,227,707 $355,029,568 $ 303,227,707 $ 355,029,568
============== ============== =============== ===============
</TABLE>
The accompanying notes are an integral part of these statements.
5
<PAGE>
PXRE CONSOLIDATED STATEMENTS OF CASH FLOW
CORPORATION (Unaudited)
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
September 30, September 30,
1999 1998 1999 1998
---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Cash Flow Net (loss) income $ (5,562,783) $ (13,479,471) $ (3,278,975) $ 5,696,117
from Operating Adjustments to reconcile net income to net cash
Activities provided by operating activities:
Losses and loss expenses 29,321,744 49,725,415 28,369,719 38,945,450
Unearned premiums (499,050) (3,049,148) 14,576,831 (367,155)
Deferred acquisition costs 78 (429,939) (3,949,044) (1,135,288)
Receivables (22,361,290) (15,160,219) (33,633,129) (27,159,209)
Reinsurance balances payable 8,731,895 3,363,007 7,416,332 10,490,639
Reinsurance recoverable (11,565,246) (23,156,450) (7,978,758) (23,343,759)
Income tax recoverable 2,695,096 (7,318,944) 13,171,474 (6,124,404)
Other (3,727,173) 2,680,368 (13,997,908) 815,297
-------------- -------------- ------------- ------------
Net cash (used) provided by operating activities (2,966,729) (6,825,381) 696,542 (2,182,312)
-------------- -------------- ------------- ------------
Cash Flow Cost of fixed maturity investments (19,974,505) (2,735,569) 102,585,750) (96,848,837)
from Investing Fixed maturity investments matured/disposed 29,441,960 53,126,927 82,245,774 186,572,930
Activities Payable for securities (10,161,726) (2,893,162) 59,264 1,326,425
Cost of equity securities (1,621,089) (1,885,732) (8,571,487) (8,097,692)
Equity securities disposed 930,535 1,293,245 23,230,225 1,478,073
Net change in short-term investments (3,995,737) (2,098,106) 10,450,067 (4,209,808)
Other invested assets purchased (4,176,805) (687,351) (18,460,747) (28,855,884)
Other invested assets disposed 15,991,107 0 27,236,819 0
-------------- -------------- ------------- ------------
Net cash provided by investing activities 6,433,741 44,120,252 13,604,166 51,365,207
-------------- -------------- ------------- ------------
Cash Flow Proceeds from issuance of common stock 123,236 44,611 339,446 192,246
from Financing Cash dividends paid to common stockholders (705,853) (3,391,497) (6,924,425) (10,260,349)
Activities Repurchase of debt 0 (21,487,690) 0 (22,527,860)
Cost of treasury stock 0 (12,078,148) (16,195,677) (16,390,277)
-------------- -------------- ------------- ------------
Net cash used by financing activities (582,617) (36,912,724) (22,780,656) (48,986,240)
-------------- -------------- ------------- ------------
Net change in cash 2,884,395 382,147 (8,479,948) 196,655
Cash, beginning of period 4,753,130 6,092,384 16,117,473 6,277,876
-------------- ------------- ------------ ------------
Cash, end of period $ 7,637,525 $ 6,474,531 $ 7,637,525 $ 6,474,531
============== ============== ============= ============
</TABLE>
The accompanying notes are an integral part of these statements.
6
<PAGE>
PXRE NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
CORPORATION
- --------------------------------------------------------------------------------
1. SIGNIFICANT ACCOUNTING POLICIES
BASIS OF PRESENTATION AND CONSOLIDATION
The accompanying consolidated financial statements have been prepared in
conformity with generally accepted accounting principles ("GAAP") in the United
States. These statements reflect the consolidated operations of PXRE Corporation
and its subsidiaries (collectively referred to as "PXRE"), including PXRE
Reinsurance Company ("PXRE Reinsurance"), Transnational Insurance Company
("Transnational Insurance"), PXRE Solutions Inc., PXRE Trading Corporation, Cat
Fund L.P., PXRE Capital Trust I, PXRE Ltd., PXRE Managing Agency Limited, PXRE
Direct Underwriting Managers, Inc. and PXRE Underwriting Managers, Inc. The U.K.
operations of PXRE Ltd. and PXRE Managing Agency Limited are included in the
consolidated results on a one quarter lag period. All material transactions
between the consolidated companies have been eliminated in preparing these
consolidated financial statements.
Generally accepted accounting principles require management to make
estimates and assumptions that affect the reported amount of assets and
liabilities at the date of the financial statements and the reported amounts of
revenues and expenses during the reporting period. Actual results could differ
from those estimates.
The interim consolidated financial statements are unaudited; however, in
the opinion of management, the foregoing consolidated financial statements
include all adjustments, consisting only of normal recurring adjustments,
necessary for a fair statement of the results for the interim periods. These
interim statements should be read in conjunction with the 1998 audited
consolidated financial statements and related notes. The preparation of interim
consolidated financial statements relies significantly upon estimates. Use of
such estimates, and the seasonal nature of a portion of the reinsurance
business, necessitates caution in drawing specific conclusions from interim
results.
Certain amounts in 1998 were reclassified to be consistent with the 1999
presentation.
7
<PAGE>
PXRE NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
CORPORATION
- --------------------------------------------------------------------------------
2. REINSURANCE
PXRE purchases catastrophe retrocessional coverage for its own
protection, depending on market conditions. In the event that retrocessionaires
are unable to meet their contractual obligations, PXRE would be liable for such
defaulted amounts. The effects of reinsurance on premiums written and earned are
as follows:
<TABLE>
<CAPTION>
Premiums Written
(000's)
Three Months Ended Nine Months Ended
September 30, September 30,
1999 1998 1999 1998
---- ---- ---- ----
<S> <C> <C> <C> <C>
Direct $ 530 $ 553 $ 1,664 $ 1,077
Assumed 60,109 43,055 160,427 107,794
Ceded (28,679) (19,607) (62,530) (41,145)
-------- --------- -------- ---------
Net $31,960 $24,001 $ 99,561 $ 67,726
======== ========= ======== =========
</TABLE>
<TABLE>
<CAPTION>
Premiums Earned
(000's)
Three Months Ended Nine Months Ended
September 30, September 30,
1999 1998 1999 1998
---- ---- ---- ----
<S> <C> <C> <C> <C>
Direct $ 552 $ 61 $ 1,258 $ 119
Assumed 53,180 41,074 130,786 98,599
Ceded (21,273) (13,490) (47,060) (29,981)
-------- --------- -------- ---------
Net $32,459 $27,645 $84,984 $68,737
======== ========= ======== =========
</TABLE>
8
<PAGE>
PXRE NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
CORPORATION
- --------------------------------------------------------------------------------
3. EARNINGS PER SHARE
The table below presents the computation of basic and diluted earnings
per share:
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
September 30, September 30,
1999 1998 1999 1998
---- ---- ---- ----
<S> <C> <C> <C> <C>
Net (loss) income available to common
stockholders: $(5,562,783) $(13,479,471) $(3,278,975) $5,696,117
Weighted average shares of common
stock outstanding:
Weighted average common shares
outstanding (basic) 11,441,979 13,596,222 11,611,408 13,599,922
Equivalent shares of stock options 20,497 60,440 25,670 74,776
Equivalent shares of restricted stock 133,230 81,819 119,212 31,457
----------- ----------- ----------- -----------
Weighted average common equivalent
shares (diluted) 11,595,706 13,738,481 11,756,290 13,706,155
=========== =========== =========== ===========
Weighted average common equivalent
shares when anti-dilutive 11,441,979 13,596,222 11,611,408 13,706,155
=========== =========== =========== ===========
Per Share amounts:
Basic net (loss) income $ (0.49) $ (0.99) $ (0.28) $ 0.42
Diluted net (loss)income $ (0.49) $ (0.99) $ (0.28) $ 0.42
</TABLE>
4. INCOME TAXES
The income tax (benefit) provision for each of the periods differs from
the amounts determined by applying the applicable U.S. statutory federal
income tax rate to pre-tax income or loss due to the amount of net income or
loss, tax exempt income, and negative goodwill. In addition, the tax benefit
in the three months ended September 30, 1999 includes a one-time income tax
charge of approximately $1.8 million in connection with the reorganization
related to the cancellation of shares of PXRE Corporation held by its
subsidiary.
5. CREDIT FACILITY
Under the $75 million bank credit facility, PXRE continued its borrowing
of $50 million through March 31, 2000 at a rate of interest of 6.94%.
Against this amount, PXRE has an interest rate SWAP that fixes the rate at
6.3%.
On October 6, 1999, PXRE drew down the remaining $25 million of the
credit facility at a rate of 7.12% maturing on January 6, 2000 for liquidity
purposes.
9
<PAGE>
PXRE NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
CORPORATION
- --------------------------------------------------------------------------------
6. SUBSEQUENT EVENT
On October 5, 1999 PXRE completed a reorganization that resulted in the
formation of a Bermuda based holding company, PXRE Group Ltd. ("PXRE Group")
which became the ultimate parent holding company of PXRE. Holders of PXRE
common stock automatically became holders of the same number of PXRE Group
common shares. The reorganization also involved the establishment of a
Bermuda based reinsurance subsidiary, PXRE Reinsurance Ltd., and operations
in Barbados through PXRE (Barbados) Ltd.
10
<PAGE>
PXRE MANAGEMENT'S DISCUSSION AND ANALYSIS OF
CORPORATION FINANCIAL CONDITION AND RESULTS OF OPERATIONS
- -------------------------------------------------------------------------------
General
PXRE Corporation ("PXRE") is a Delaware holding company, with national and
international underwriting and service operations, which conducts its business
primarily through its principal operating subsidiaries, PXRE Reinsurance Company
("PXRE Reinsurance"), PXRE Solutions Inc. ("PXRE Solutions"), PXRE Managing
Agency Limited ("PXRE Managing Agency"), PXRE Limited, the sole member of PG
Butler Syndicate 1224 ("PXRE Lloyd's Syndicate") and Transnational Insurance
Company ("Transnational Insurance"). The term "PXRE" as used herein, refers to
one or more of PXRE Reinsurance, PXRE Managing Agency, PXRE Lloyd's Syndicate
and Transnational Insurance in discussions of these entities' businesses and
refers to PXRE Corporation in all other circumstances.
The property and casualty reinsurance industry has been experiencing an
extended period of soft market conditions characterized by inadequate pricing.
The industry is also consolidating through mergers and other acquisitions. PXRE
competes with numerous companies, many of which have substantially greater
financial, marketing and management resources.
Since its formation more than a decade ago, PXRE has specialized in
property reinsurance, including a strong focus on catastrophe-related products.
Coverage terms for these products have been deteriorating in recent years, and
PXRE has reduced commitments on marginally priced business.
Meanwhile, PXRE has adopted an ambitious, diversification strategy
involving:
the establishment of a direct presence in the Lloyds's of London
("Lloyd's") market;
the addition of a reinsurance platform offering primarily casualty
products directly to customers:
the addition of an international broker market reinsurance platform for
property and casualty risks;
the start-up of an excess and surplus lines insurance company;
an acceleration of business offerings to one of its managed business
participants;and
the formation of a finite reinsurance unit.
These steps are expected over time to reduce the financial statement volatility
associated with PXRE's catastrophe coverages which are expected to fall below
50% of gross premiums written in 1999.
At September 30, 1999, PXRE was a party to retrocessional arrangements with
a number of insurers and reinsurers. Under these arrangements, PXRE cedes some
of its underwritten risks to the participants, subject to maximum aggregate
liabilities per reinsurance program. PXRE receives a management fee or
commission, initially based on premium
11
<PAGE>
PXRE MANAGEMENT'S DISCUSSION AND ANALYSIS OF
CORPORATION FINANCIAL CONDITION AND RESULTS OF OPERATIONS
- -------------------------------------------------------------------------------
volume, adjusted in some cases through contingent profit commissions related to
underwriting results measured over a period of years. Future management fee
income is dependent upon the amount of business ceded to the participants and
the profitability of that business. Another arrangement with Select Reinsurance
Ltd. ("Select Re"), a Bermuda reinsurer, formerly Investors Reinsurance Ltd.,
was renegotiated in 1998, and involves a five-year (commencing 1998) fee based
undertaking to produce and underwrite business with Select Re. The Board of
Directors of Select Re includes PXRE's Chief Executive Officer.
PXRE also purchases catastrophe retrocessional coverage for its own
protection, depending on market conditions. PXRE has significantly increased its
purchases of such coverage in 1998 and 1999 in light of the continued general
deterioration in catastrophe reinsurance pricing and the opportunity to buy
protection at more favorable terms than in recent years.
Reorganization
On October 5, 1999 PXRE completed a reorganization that resulted in the
formation of a Bermuda based holding company, PXRE Group Ltd. ("PXRE Group")
which became the ultimate parent holding company of PXRE. Holders of PXRE
common stock automatically became holders of the same number of PXRE Group
common shares, which continue to be traded on the New York Stock Exchange
under the symbol PXT. The reorganization also involved the establishment of a
Bermuda based reinsurance company, PXRE Reinsurance Ltd., and operations in
Barbados through PXRE ( Barbados) Ltd.
Certain Risks and Uncertainties
As a reinsurer of property catastrophe-related coverages in both the
national and international markets, PXRE's operating results in any given period
depend to a large extent on the number and magnitude of natural and man-made
catastrophes such as hurricanes, windstorms, floods, earthquakes, spells of
severely cold weather, fires and explosions. While PXRE may, depending on market
conditions, purchase catastrophe retrocessional coverage for its own protection,
the occurrence of one or more major catastrophes in any given period could
nevertheless have a material adverse impact on PXRE's results of operations and
financial condition and result in substantial liquidation of investments and
outflows of cash as losses are paid.
The estimation of losses for catastrophe reinsurers is inherently less
reliable than for reinsurers of risks which have an established historical
pattern of losses. In addition, insured events which occur near the end of a
reporting period, as well as with respect to PXRE's retrocessional book of
business, the significant delay in losses being reported to insurance carriers,
reinsurers and finally retrocessionaires require PXRE to make estimates of
losses based on limited information from ceding companies and based on its own
underwriting data.
12
<PAGE>
PXRE MANAGEMENT'S DISCUSSION AND ANALYSIS OF
CORPORATION FINANCIAL CONDITION AND RESULTS OF OPERATIONS
- -------------------------------------------------------------------------------
Because of the uncertainty in the process of estimating its losses from insured
events, there is a risk that PXRE's liabilities for losses and loss expenses
could prove to be inadequate, with a consequent adverse impact on future
earnings and stockholders' equity. Additionally, as a consequence of its
emphasis on property reinsurance, PXRE may forgo potential investment income
because property losses are typically settled within a shorter period of time
than casualty losses.
In addition, the potential for uncertainty for the 1999 underwriting year
is greater than in past years because of the increased casualty exposures
assumed by PXRE. Unlike property losses that tend to be reported more promptly
and usually are settled within a shorter time period, casualty losses are
frequently slower to be reported and may be determined only through the lengthy,
unpredictable process of litigation. Moreover, given its recent expansion of
casualty business, PXRE does not have an established historical loss pattern
that can be used to establish casualty loss liabilities. PXRE must therefore
rely on the inherently less reliable historical loss patterns reported by ceding
companies and industry loss standards in calculating its liabilities.
As PXRE underwrites risks from a large number of insurers based on
information generally supplied by reinsurance brokers, there is a risk of
developing a concentration of exposure to loss in certain geographic areas prone
to specific types of catastrophes. PXRE has developed systems and software tools
to monitor and manage the accumulation of its exposure to such losses.
Management has established guidelines for maximum tolerable losses from a single
or multiple catastrophic events based on historical data; however, no assurance
can be given that these maximums will not be exceeded in some future
catastrophe.
Premiums on reinsurance business assumed are recorded as earned on a pro
rata basis over the contract period based upon estimated subject premiums.
Management must estimate the subject premiums associated with the treaties in
order to determine the level of earned premiums for a reporting period. Such
estimates are based on information from brokers, which can be subject to change
as new information becomes available. Because of the inherent uncertainty in
this process, there is the risk that premiums and related receivable balances
may turn out to be higher or lower than reported.
PXRE's invested assets consist primarily of fixed maturities and short-term
investments, but also include equities and investments in limited partnerships,
real estate investment trusts ("REITS"), emerging market debt and other high
yield bonds. PXRE's investments are subject to market-wide risks and
fluctuations, as well as to risk inherent in particular securities.
Additionally, the estimated fair value of PXRE's investments does not
necessarily represent the amount which could be realized upon future sale
particularly if PXRE were required to liquidate a substantial portion of its
portfolio to fund catastrophic losses.
13
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PXRE MANAGEMENT'S DISCUSSION AND ANALYSIS OF
CORPORATION FINANCIAL CONDITION AND RESULTS OF OPERATIONS
- -------------------------------------------------------------------------------
PXRE's investment guidelines stress conservation of principal, diversification
of risk and liquidity.
Premium receivables and loss reserves include business denominated in
currencies other than U.S. dollars. PXRE is exposed to the possibility of
significant claims in currencies other than U.S. dollars. While PXRE holds
positions denominated in foreign currencies to mitigate, in part, the effects of
currency fluctuations on its results of operations, it currently does not hedge
its currency exposures before a catastrophic event which may produce a claim.
PXRE relies primarily on cash dividends and net tax allocation payments
from its subsidiaries PXRE Reinsurance and Transnational Insurance to pay its
operating expenses, to meet its debt service obligations and to pay dividends.
The payment of dividends by PXRE Reinsurance to PXRE, and by Transnational
Insurance to PXRE Reinsurance, is subject to limits imposed under the insurance
laws and regulations of Connecticut, the state of incorporation and domicile of
PXRE Reinsurance and Transnational Insurance, as well as certain restrictions
arising in connection with PXRE's outstanding indebtedness.
In the event the amount of dividends available, together with other sources
of funds, are not sufficient to permit PXRE to meet its debt service, its other
obligations and to pay cash dividends, it would be necessary to obtain the
approval of the Connecticut Insurance Commissioner prior to the payment of
additional dividends by PXRE Reinsurance (or Transnational Insurance). If such
approval were not obtained, PXRE would have to adopt one or more alternatives,
such as refinancing or restructuring its indebtedness or seeking additional
equity. There can be no assurance that any of these strategies could be effected
on satisfactory terms, if at all.
The reinsurance business is increasingly competitive and is undergoing a
variety of challenging developments. The industry has in recent years moved
toward greater consolidation as ceding companies have placed increased
importance on size and financial strength in the selection of reinsurers.
Additionally, reinsurers are tapping new markets and complementing their range
of traditional reinsurance products with innovative new products which bring
together capital markets and reinsurance experience. PXRE competes with numerous
major national and international reinsurance and insurance companies, many of
which have substantially greater financial, marketing and management resources
than PXRE.
14
<PAGE>
PXRE MANAGEMENT'S DISCUSSION AND ANALYSIS OF
CORPORATION FINANCIAL CONDITION AND RESULTS OF OPERATIONS
- -------------------------------------------------------------------------------
Comparison of Third Quarter Results for
1999 with 1998
<TABLE>
<CAPTION>
Three Months Ended September 30,
--------------------------------
Increase
1999 1998 (Decrease)
---- ---- ----------
(000's) %
<S> <C> <C> <C> <C>
Gross premiums written $ 60,639 $ 43,608 39.1
Ceded premiums written:
Managed business participants 8,785 8,192 7.2
Catastrophe coverage and other reinsurance 19,894 11,415 74.3
--------- ---------
Total reinsurance premiums ceded 28,679 19,607 46.3
--------- ---------
Net premiums written $ 31,960 $ 24,001 33.2
========= =========
</TABLE>
Gross premiums written for the three months ended September 30, 1999,
increased 39.1% to $60,639,000 from $43,608,000 for the corresponding period of
1998. Net premiums written for the third quarter of 1999 increased 33.2% to
$31,960,000 from $24,001,000 for the corresponding period of 1998. Net premiums
earned for the third quarter of 1999 increased 17.4% to $32,459,000 from
$27,645,000 for the comparable period of 1998. Gross written, net written and
net earned premiums for the three months ended September 30, 1999 increased from
prior-year levels reflecting new international, casualty and direct writing
business written by PXRE's new teams of underwriters and by PXRE Lloyd's
Syndicate. Underwriting results related to PXRE Lloyd's Syndicate are included
in the consolidated results on a one quarter lag basis.
Premiums ceded by PXRE to its managed business participants increased 7.2%
to $8,785,000 for the third quarter of 1999 compared with $8,192,000 for the
corresponding period of 1998. The increase in premiums ceded to these programs
was due primarily to the increase in gross premiums written.
Catastrophe coverage and other reinsurance increased as PXRE fronted
certain business on behalf of other reinsurers.
Management fee income from all sources for the three months ended September
30, 1999 increased to $528,000 from $(33,000) for the corresponding period of
1998, primarily due to fee income directly related to premium growth.
The underwriting results of a property and casualty insurer are discussed
frequently by reference to its loss ratio, underwriting expense ratio and
combined ratio. The loss ratio is the result of dividing losses and loss
expenses incurred by net premiums earned. The underwriting
15
<PAGE>
PXRE MANAGEMENT'S DISCUSSION AND ANALYSIS OF
CORPORATION FINANCIAL CONDITION AND RESULTS OF OPERATIONS
- -------------------------------------------------------------------------------
expense ratio is the result of dividing underwriting expenses (reduced by
management fees, if any) by net premiums written for purposes of statutory
accounting practices ("SAP") and net premiums earned for purposes of GAAP. The
combined ratio is the sum of the loss ratio and the underwriting expense ratio.
A combined ratio under 100% indicates underwriting profits and a combined ratio
exceeding 100% indicates underwriting losses. The combined ratio does not
reflect the effect of investment income on operating results. The ratios
discussed below have been calculated on a GAAP basis.
The loss ratio was 90.4% for the third quarter of 1999 compared with 119.1%
for the comparable period of 1998, primarily due to third quarter 1999 loss
events and the impact of new business units, including PXRE Lloyd's Syndicate,
established in connection with PXRE's recent diversification efforts
(approximately $15.0 million), all of which was less than the effect of third
quarter 1998 events on the third quarter 1998 loss ratio. The loss ratio for the
third quarter of 1999 reflected incurred catastrophe losses of $25,165,000 gross
and $10,187,000 net for 1999 and prior accident years. As previously noted,
results including catastrophe losses for PXRE Lloyd's Syndicate are included in
the consolidated results on a one quarter lag basis. In comparison, the loss
ratio for the third quarter of 1998 reflected incurred catastrophe losses of
$43,333,000 gross and $22,286,000 net for 1998 and prior accident years.
The provision for losses and loss expenses and the loss ratio includes the
effect of foreign exchange movements on PXRE's liability for losses and loss
expenses, resulting in a foreign currency exchange loss of $292,000 for the
three months ended September 30, 1999 compared to a loss of $399,000 for the
corresponding period of 1998.
During the third quarter of 1999, PXRE experienced adverse development of
$3,370,000 net for prior-year loss and loss expenses primarily due to medical
and facultative reserve strengthening in PXRE's Lloyd's Syndicate and various
satellite losses compared to adverse development of $104,000 net in the third
quarter of 1998 for prior-year losses and loss expenses.
The underwriting expense ratio was 43.3% for the third quarter of 1999
compared with 46.4% for the comparable period of 1998. The decrease in
underwriting expense ratio was substantially due to higher commission rates and
overhead associated with the newer operations, more than offset by the effect of
the increase in premiums earned and profit commissions.
As a result of the above, the combined ratio was 133.7% for the third
quarter of 1999 compared with 165.5% for the corresponding period of 1998.
Other operating expenses increased to $6,714,000 for the three months ended
September 30, 1999 from $5,415,000 in the comparable period of 1998. The
increase was mainly due to expenses associated with salary and benefits for new
operations. Included in other operating
16
<PAGE>
PXRE MANAGEMENT'S DISCUSSION AND ANALYSIS OF
CORPORATION FINANCIAL CONDITION AND RESULTS OF OPERATIONS
- -------------------------------------------------------------------------------
expenses were foreign currency exchange gains of $238,000 for the three
months ended September 30, 1999 compared to gains of $301,000 for the
corresponding period of 1998.
During the third quarter of 1999, interest expense increased to $885,000 as
compared to $249,000 in the corresponding period of 1998. Interest for the three
months ended September 30, 1999 reflected the drawdown of $50 million principal
balance at a rate of 6.3%. This is part of PXRE's Credit Agreement with a
syndicate of lenders (as described under "Liquidity and Capital Resources").
Interest in the three months ended September 30, 1998, reflected $20.4 million
of PXRE's 9.75% Senior Debt which was retired in August, 1998. In addition, in
the third quarter of 1999 and 1998, PXRE incurred minority interest expense
amounting to $2,220,000 and $2,232,000 respectively related to the $100 million
of 8.85% Capital Trust Pass-through Securities `sm' (TRUPS `sm') (as described
below under "Liquidity and Capital Resources").
In the third quarter of 1998, PXRE recorded an extraordinary loss of
$843,000, net of tax, in connection with the redemption of the remaining $20.4
million of PXRE's 9.75% Senior Notes and the associated write-off of the pro
rata share of the unamortized debt issuance costs.
Net investment income for the three months ended September 30, 1999
increased substantially to $9,466,000 from $(852,000) for the comparable period
of 1998. The increase in net investment income was caused primarily by strong
limited partnership investment returns amounting to $3.9 million (which are
carried on the equity method) compared to a loss of $6,787,000 on these
investments in the prior comparable period. PXRE's pre-tax annualized investment
yield was 8.4% for the third quarter of 1999 compared with (0.7)% for the
corresponding period in 1998, both calculated using amortized cost and
investment income before investment expenses. During the third quarter of 1999
PXRE reduced its emerging market bond portfolio by $10.2 million. As a result of
these planned dispositions, net realized investment losses for the third quarter
of 1999 were $2,195,000 compared to gains of $1,328,000 for the corresponding
period of 1998.
The net effects of foreign currency exchange fluctuations were losses of
$54,000 in the third quarter of 1999 and losses of $98,000 for the comparable
quarter of 1998. See "Liquidity and Capital Resources."
The tax benefit for the third quarter includes a one time income tax charge
in connection with the reorganization of approximately $1.8 million related to
the cancellation of shares of PXRE Corporation held by its subsidiary.
For the reasons discussed above, net loss was $5,563,000 or $.49 per
diluted share for the three months ended September 30, 1999 compared to a net
loss of $13,479,000 or $0.99 per diluted share (and $0.93 before extraordinary
loss) for the comparable period of 1998. The diluted average shares outstanding
were approximately 11,442,000 in 1999 and 13,596,000 in the corresponding period
of 1998.
17
<PAGE>
PXRE MANAGEMENT'S DISCUSSION AND ANALYSIS OF
CORPORATION FINANCIAL CONDITION AND RESULTS OF OPERATIONS
- -------------------------------------------------------------------------------
Comparison of Year-to-Date Results for
1999 with 1998
<TABLE>
<CAPTION>
Three Months Ended September 30,
--------------------------------
Increase
1999 1998 (Decrease)
---- ---- ----------
(000's) %
<S> <C> <C> <C> <C>
Gross premiums written $162,091 $ 108,871 48.9
Ceded premiums written:
Managed business participants 21,436 18,162 18.0
Catastrophe coverage and other
reinsurance 41,094 22,983 78.8
------- --------
Total reinsurance premiums ceded 62,530 41,145 52.0
------- --------
Net premiums written $99,561 $ 67,726 47.0
======= ========
</TABLE>
Gross premiums written for the first nine months of 1999 increased 48.9% to
$162,091,000 from $108,871,000 for the comparable period of 1998. Net premiums
written for the nine months ended September 30, 1999 increased 47.0% to
$99,561,000 from $67,726,000 for the corresponding period of 1998. Net premiums
earned for the first nine months of 1999 increased 23.6% to $84,984,000 from
$68,737,000 in the corresponding period of 1998. Gross written, net written and
net earned premiums for the nine months ended September 30,1999 increased from
prior-year levels reflecting new international, casualty and direct writing
business written by PXRE's new teams of underwriters and by PXRE Lloyd's
Syndicate. Underwriting results related to PXRE Lloyd's Syndicate are included
in the consolidated results on a one-quarter lag basis.
Catastrophe ceded premiums written increased in part due to additional
coverage associated with new operations and in part due to opportunistic
purchases of catastrophe protection. PXRE's property business is protected by a
series of retrocessional agreements which currently provide protection
principally against unusual severity of loss and are not designed to protect
PXRE's exposure to smaller more frequent loss occurrences.
Other reinsurance increased as PXRE fronted certain business on behalf of
other reinsurers.
Premiums ceded by PXRE to its managed business participants increased 18.0%
to $21,436,000 for the first nine months of 1999 compared with $18,162,000 for
the corresponding period of 1998. The increase in premiums ceded to these
programs was due primarily to increased amounts of premiums written by PXRE.
18
<PAGE>
PXRE MANAGEMENT'S DISCUSSION AND ANALYSIS OF
CORPORATION FINANCIAL CONDITION AND RESULTS OF OPERATIONS
- -------------------------------------------------------------------------------
Management fee income from all sources for the nine months ended September
30, 1999 increased to $1,828,000 from $1,471,000 for the corresponding period of
1998 reflecting both increased fees in 1999 directly associated with premium
growth, and in 1998 reflecting the impact of Hurricane Georges on profit
commissions.
The loss ratio was 77.9% for the nine months ended September 30, 1999
compared with 57.4% for the corresponding period of 1998 primarily due to the
impact of new business units, including PXRE Lloyd's Syndicate (approximately
$32.2 million), continued loss development related to Hurricane Georges, Mitch
and other 1998 events developing in 1999 as well as third quarter 1999 events
discussed above. The loss ratio for the first nine months of 1999 reflected
incurred catastrophe losses of $48,951,000 gross and $23,615,000 net for 1999
and prior accident years. In comparison, the loss ratio for the first nine
months of 1998 reflected incurred catastrophe losses of $43,253,000 gross and
$21,040,000 net for 1998 and prior accident years.
The provision for losses and loss expenses and the loss ratio includes the
effect of foreign exchange movements on PXRE's liability for losses and loss
expenses, resulting in a foreign currency exchange gain of $239,000 for the
first nine months of 1999 compared to a loss of $766,000 for the corresponding
period of 1998.
During 1999, PXRE experienced adverse development of $17,475,000 net for
prior-year loss and loss expenses primarily related to the Hurricane Georges,
Hurricane Mitch and other 1998 events. The loss ratio for the comparable period
of 1998 experienced savings of $1,592,000 net for prior-year loss and loss
expenses primarily related to the triggering of a recovery on a 1994 aviation
loss offset in part by adverse development in the first quarter of 1998 due to
German, Poland and Czech floods.
The underwriting expense ratio was 45.4% for the nine months ended
September 30, 1999 compared with 40.1% for the comparable period of 1998. The
increase in underwriting expense ratio was substantially due to an increase in
salary and benefits incurred in building the diversified business. The combined
ratio was 123.3% for the first nine months of 1999 compared with 97.5% for the
corresponding period of 1998.
Other operating expenses increased to $20,032,000 for the nine months ended
September 30, 1999 from $13,365,000 in the comparable period of 1998. The
increase was mainly due to expenses associated with salary and benefits from new
operations. Included in other operating expenses were foreign currency exchange
losses of $394,000 for the first nine months of 1999 compared to gains of
$254,000 for the corresponding period of 1998.
During the first nine months of 1999, interest expense increased to
$2,559,000 as compared to $1,395,000 in the corresponding period in 1998. The
increase in interest expense relates to a drawdown of $50 million principal
balance at a rate of 6.3%. This is part of PXRE's
19
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PXRE MANAGEMENT'S DISCUSSION AND ANALYSIS OF
CORPORATION FINANCIAL CONDITION AND RESULTS OF OPERATIONS
- -------------------------------------------------------------------------------
Credit Agreement with a syndicate of lenders (as described under "Liquidity
and Capital Resources"). Interest in the first nine months of 1998 reflected
$21.4 million of PXRE's 9.75% Senior Debt which was retired in August, 1998. In
addition in the first nine months of 1999, PXRE incurred minority interest
expense amounting to $6,547,000 related to the $100 million of 8.85% Capital
Trust Pass-through Securities `sm' (TRUPS `sm') (as described below under
"Liquidity and Capital Resources") compared to $6,696,000 in the similar period
of 1998.
Net investment income for the nine months ended September 30, 1999
increased 147.5% to $27,589,000 from $11,146,000 for the same period of 1998.
The increase in net investment income was caused primarily by strong limited
partnership investment returns amounting to $11.7 million (which are carried on
the equity method) offset in part by a $3.1 million decrease in investment
income on fixed income securities due to a reduction in average assets invested
in such assets during the period. PXRE's pre-tax annualized investment yield was
8.3% for the nine months ended September 30, 1999 compared with 3.2% for the
corresponding period in 1998, both calculated using amortized cost and
investment income before investment expenses. Net realized investment losses for
the nine months ended September 30, 1999 were $3,577,000 compared to gains of
$2,980,000 for the corresponding period of 1998 reflecting losses from trading
of weather contracts in the first quarter of 1999 and losses from the planned
disposition of volatile emerging market bonds offset, in part, by net gains from
sale of securities.
The net effects of foreign currency exchange fluctuations were losses of
$155,000 in the nine months ended September 30, 1999, as compared to losses of
$512,000 for the comparable period of 1998.
For the reasons discussed above, the net loss was $3,279,000 for the nine
months ended September 30, 1999 compared to net income of $5,696,000 for the
corresponding period of 1998. Diluted net income per common share before
extraordinary loss was a loss of $0.28 for the first nine months of 1999
compared to income of $0.48 for the prior comparable period. Diluted net income
per common share was a loss of $0.28 for the nine months ended September 30,
1999 compared to income of $0.42 for the corresponding period of 1998 based on
diluted average shares outstanding of approximately 11,611,000 in the first nine
months of 1999 and 13,706,000 in the comparable period of 1998.
Liquidity and Capital Resources
PXRE relies primarily on cash dividends and net tax allocation payments
from its subsidiaries PXRE Reinsurance and Transnational Insurance to pay its
operating expenses and income taxes, to meet its debt service obligations and to
pay dividends. The payment of dividends by PXRE Reinsurance to PXRE and by
Transnational Insurance to PXRE Reinsurance is subject to limits imposed under
the insurance laws and regulations of Connecticut, the state of incorporation
and domicile of PXRE Reinsurance and Transnational Insurance, as well as certain
restrictions arising in connection with PXRE indebtedness
20
<PAGE>
PXRE MANAGEMENT'S DISCUSSION AND ANALYSIS OF
CORPORATION FINANCIAL CONDITION AND RESULTS OF OPERATIONS
- -------------------------------------------------------------------------------
discussed below. Under the Connecticut insurance law, the maximum amount of
dividends or other distributions that PXRE Reinsurance may declare or pay to
PXRE, and that Transnational Insurance may declare or pay to PXRE Reinsurance,
within any twelve-month period, without regulatory approval, is limited to the
lesser of (a) earned surplus or (b) the greater of 10% of policyholders' surplus
at December 31 of the preceding year or 100% of net income for the twelve-month
period ending December 31 of the preceding year, all determined in accordance
with SAP. Accordingly, the Connecticut insurance laws could limit the amount of
dividends available for distribution by PXRE Reinsurance or Transnational
Insurance without prior regulatory approval, depending upon a variety of factors
outside the control of PXRE, including the frequency and severity of catastrophe
and other loss events and changes in the reinsurance market, in the insurance
regulatory environment and in general economic conditions. The maximum amount of
dividends or distributions that PXRE Reinsurance may declare and pay during
1999, without regulatory approval, is $44,722,900 The maximum amount of
dividends or distributions that Transnational Insurance may declare and pay to
PXRE Reinsurance in 1999, without regulatory approval, is $2,901,000. During the
first nine months of 1999, $21,962,000 in dividends were paid by PXRE
Reinsurance to PXRE and authorization was obtained from the Connecticut
Insurance Department to pay a dividend of $10,000,000 by Transnational Insurance
to PXRE Reinsurance which was paid in the first quarter of 1999.
In the event the amount of dividends available, together with other sources
of funds, are not sufficient to permit PXRE to meet its debt service and other
obligations and to pay cash dividends, it would be necessary to obtain the
approval of the Connecticut Insurance Commissioner prior to the payment of
additional dividends by PXRE Reinsurance (or Transnational Insurance). If such
approval were not obtained, PXRE would have to adopt one or more alternatives,
such as refinancing or restructuring its indebtedness or seeking additional
equity. There can be no assurance that any of these strategies could be effected
on satisfactory terms, if at all. In the event that PXRE were unable to generate
sufficient cash flow and were otherwise unable to obtain funds necessary to meet
required payments of principal and interest on its indebtedness, PXRE could be
in default under the terms of the agreements governing such indebtedness. In the
event of such default, the holders of such indebtedness could elect to declare
all of the funds borrowed thereunder to be due and payable together with accrued
and unpaid interest.
In December 1998 PXRE entered into a Credit Agreement dated as of December
30, 1998 (the "Credit Agreement") with First Union National Bank ("First Union")
as Agent and as a Lender, pursuant to which First Union agreed to make available
to PXRE a $75,000,000 revolving credit facility. On May 18, 1999, pursuant to
various Joinder Agreements and Assignment and Acceptance Agreements, First Union
syndicated the revolving credit facility, joining Fleet National Bank, Credit
Lyonnais New York Branch and The First National Bank of Chicago as additional
lenders (collectively with First Union, the "Lenders"). As at September 30,
1999, PXRE had outstanding borrowings under the Credit Agreement of $50,000,000,
the net
21
<PAGE>
PXRE MANAGEMENT'S DISCUSSION AND ANALYSIS OF
CORPORATION FINANCIAL CONDITION AND RESULTS OF OPERATIONS
- -------------------------------------------------------------------------------
proceeds of which were contributed to the capital of PXRE Reinsurance.
Subsequent to September 30, 1999, the remaining $25,000,000 was borrowed.
The terms of the Credit Agreement have been amended three times pursuant to
a First Amendment and Waiver to Credit Agreement, dated May 18, 1999, and a
second Amendment and Waiver to Credit Agreement, dated June 25, 1999 and the
First Amended and Restated Credit Agreement dated August 31, 1999. The First
Amendment increased the applicable margin percentage for LIBOR loans under the
Credit Agreement by 1/8% and changed the governing law from North Carolina to
New York law. The Second Amendment modified various convenants related to the
investments that PXRE and its subsidiaries are permitted to make under the
Credit Agreement. The First Amended and Restated Credit Agreement was undertaken
to address the reorganization and to provide for PXRE Group Ltd. and PXRE
(Barbados) Ltd. as guarantors of the loan obligation.
As amended, loans under the Credit Agreement bear interest at an annual
rate equal to First Union's base rate, as in effect from time to time, for base
rate loans or at a margin (1.00% as of September 30, 1999) over First Union's
Eurodollar rate for periods of 30, 60, 90 or 180 days for LIBOR loans. In
connection with the Credit Agreement, PXRE and First Union entered into an
interest rate swap which, effective December 31,1998, has the intended effect of
converting the initial $50,000,000 borrowings by PXRE into a fixed rate
borrowing at an annual interest of 6.34%. Commitments under the Credit Agreement
terminate on March 31, 2005 and are subject to annual reductions of $10,000,000
commencing March 31, 2000 and $25,000,000 on March 31, 2005, and, unless due or
paid sooner, the aggregate principal of the loans are due and payable in full on
March 31, 2005.
The Credit Agreement contains covenants which, among other things, limit
the ability of PXRE and its subsidiaries and affiliates: (a) to incur additional
Indebtedness (other than certain permitted Indebtedness); (b) to create Liens
upon their properties or assets (other than Permitted Liens); (c) to sell,
transfer or otherwise dispose of their assets, business or properties (other
than certain permitted dispositions); (d) to make additional Investments (other
than certain permitted Investments, including Permitted Acquisitions and other
Investments in compliance with, among other things, applicable law and the
limitations set forth in the companies' investment policies and not exceeding
specified limits); (e) to pay dividends or repurchase stock if after giving
effect thereto a Default or Event of Default exists or the Fixed Charge Coverage
Ratio would be less than 1.5 to 1.0 as defined in the Credit Agreement; (f) to
enter into certain transactions with Affiliates; (g) to engage in any business
other than (1) the businesses engaged in on the date of the Credit Agreement and
businesses and activities reasonably related thereto or (2) in the case of any
Insurance Subsidiary, the sale of any property and casualty insurance or
reinsurance products; (h) to enter into or remain a party to certain ceded
reinsurance agreements (1) with certain reinsurers that are neither rated "A-"
or better by A.M. Best Company ("A.M. Best") nor have financial strength ratings
of "A-" or better by Standard & Poor's Corporation ("S&P") or Moody's Investors
Services Inc. ("Moody's") unless such reinsurers are Lloyd's syndicates and
Lloyd's maintains a rating of "A-" or better by A.M. Best or S&P or such
reinsurers have
22
<PAGE>
PXRE MANAGEMENT'S DISCUSSION AND ANALYSIS OF
CORPORATION FINANCIAL CONDITION AND RESULTS OF OPERATIONS
- -------------------------------------------------------------------------------
provided appropriate collateral in respect of their obligations, or (2) which
constitute Surplus Relief Agreements and which increase Combined Statutory
Capital and Surplus by more than 5% as of the most recent fiscal year end; or
(i) to consolidate, merge or otherwise combine (or agree to do any of the
foregoing) unless, among other things, (1) PXRE Group Ltd. is the surviving
entity in such merger or consolidation, (2) such merger or consolidation
constitutes a Permitted Acquisition and the conditions and requirements of the
Credit Agreement are complied with and (3) immediately thereafter no Default or
Event of Default exists. The Credit Agreement also requires compliance with
Leverage Ratio, Fixed Charge Coverage Ratio, Risk-Based Capital Ratio and
Combined Statutory Surplus requirements. As at September 30, 1999, there was no
default under the Credit Agreement.
The Credit Agreement enumerates various Events of Default, including but
not limited to, if: (1) any Person or group becomes the "beneficial owner" of
securities of PXRE Group Ltd. representing 20% or more of the combined voting
power of the then outstanding securities of PXRE Group Ltd. ordinarily having
the right to vote in the election of directors; or (2) the Board of Directors of
PXRE Group Ltd. ceases to consist of a majority of the individuals who
constituted the Board as of the date of the Credit Agreement or who subsequently
become members after having been nominated, or otherwise approved in writing, by
at least a majority of individuals who constituted the Board as of the date of
the Credit Agreement (or their approved replacements). A copy of the Credit
Agreement is filed as Exhibit 4.8 to PXRE's 1998 10-K and is incorporated herein
by reference. Copies of the Joinder Agreements, dated May 18, 1999, Assignment
and Acceptance Agreements, dated May 18, 1999, the First Amendment and Waiver to
Credit Agreement, dated May 18, 1999, and the Second Amendment and Waiver to
Credit Agreement, dated September 30, 1999, are filed as Exhibit 4.9 to PXRE's
June 30, 1999 10Q and are incorporated herein by reference. A copy of the First
Amended and Restated Credit Agreement dated August 31, 1999 is filed as Exhibit
4.5 herein.
On January 29, 1997, PXRE Capital Trust I, a Delaware statutory business
trust and a wholly-owned subsidiary of PXRE ("PXRE Capital Trust") issued
$100,000,000 principal amount of its 8.85% TRUPS `sm' due February 1, 2027 in an
institutional private placement. Proceeds from the sale of these securities were
used to purchase PXRE's 8.85% Junior Subordinated Deferrable Interest Debentures
due February 1, 2027 (the "Subordinated Debt Securities"). On April 23, 1997,
PXRE and PXRE Capital Trust completed the registration with the Securities and
Exchange Commission of an exchange offer for these securities and the securities
were exchanged for substantially similar securities (the "Capital Securities").
Distributions on the Capital Securities (and interest on the related
Subordinated Debt Securities) are payable semi-annually, in arrears, on February
1 and August 1 of each year, commencing August 1, 1997. Minority interest
expense, including amortization of debt offering costs, for the nine months
ended September 30, 1999 in respect of the Capital Securities (and related
Subordinated Debt Securities) amounted to $6,547,000. On or after February 1,
2007, PXRE has the right to redeem the Subordinated Debt Securities, in whole at
23
<PAGE>
PXRE MANAGEMENT'S DISCUSSION AND ANALYSIS OF
CORPORATION FINANCIAL CONDITION AND RESULTS OF OPERATIONS
- -------------------------------------------------------------------------------
any time or in part from time to time, subject to certain conditions, at call
prices of 104.180% at February 1, 2007, declining to 100.418% at February 1,
2016, and 100% thereafter. PXRE has the right, at any time, subject to certain
conditions, to defer payments of interest on the Subordinated Debt Securities
for Extension Periods (as defined in the applicable indenture), each not
exceeding 10 consecutive semi-annual periods; provided that no Extension Period
may extend beyond the maturity date of the Subordinated Debt Securities. As a
consequence of PXRE's extension of the interest payment period on the
Subordinated Debt Securities, distributions on the Capital Securities would be
deferred (though such distributions would continue to accrue interest at a rate
of 8.85% per annum compounded semi-annually). In the event that PXRE exercises
its right to extend an interest payment period, then during any Extension
Period, subject to certain exceptions, (i) PXRE shall not declare or pay any
dividend on, make any distributions with respect to, or redeem, purchase,
acquire or make a liquidation payment with respect to, any of its capital stock
or rights to acquire such capital stock or make any guarantee payments (subject
to specified exceptions) with respect to the foregoing, and (ii) PXRE shall not
make any payment of interest on, or principal of (or premium, if any, on), or
repay, repurchase or redeem, any debt securities issued by PXRE which rank pari
passu with or junior to the Subordinated Debt Securities. Upon the termination
of any Extension Period and the payment of all amounts then due, PXRE may
commence a new Extension Period, subject to certain requirements.
PXRE has used the net proceeds from the sale of the Capital Securities for
general corporate purposes, including the redemption and the purchase of
outstanding indebtedness and common stock of PXRE.
PXRE files federal income tax returns for itself and all of its direct or
indirect subsidiaries that satisfy the stock ownership requirements for
consolidation for federal income tax purposes (collectively, the
"Subsidiaries"). PXRE is party to an Agreement Concerning Filing of Consolidated
Federal Income Tax Returns (the "Tax Allocation Agreement") pursuant to which
each domestic Subsidiary makes tax payments to PXRE in an amount equal to the
federal income tax payment that would have been payable by such Subsidiary for
such year if it had filed a separate income tax return for such year. PXRE is
required to provide for payment of the consolidated federal income tax liability
for the entire group. If the aggregate amount of tax payments made in any tax
year by a domestic Subsidiary is less than (or greater than) the annual tax
liability for such Subsidiary on a stand-alone basis for such year, such
Subsidiary will be required to make up such deficiency to PXRE (or will be
entitled to receive a credit if payments exceed the separate return tax
liability) of the Subsidiary.
The primary sources of liquidity for PXRE's principal operating
subsidiaries are net cash flow from operating activities (including interest
income from investments), the maturity or sale of investments, borrowings,
capital contributions and advances from PXRE or PXRE Reinsurance and in the case
of PXRE Reinsurance, dividends from Transnational Insurance. Funds are applied
primarily to the payment of claims, operating expenses and, income taxes
24
<PAGE>
PXRE MANAGEMENT'S DISCUSSION AND ANALYSIS OF
CORPORATION FINANCIAL CONDITION AND RESULTS OF OPERATIONS
- -------------------------------------------------------------------------------
and to the purchase of investments. Premiums are typically received in
advance of related claim payments.
Net cash flow used by operations was $2,967,000 during the third quarter of
1999 compared with $6,825,000 during the corresponding period of 1998, due to
the effects of timing of collection of receivables and reinsurance recoverables
and payments of losses.
PXRE's management has established general procedures and guidelines for its
investment portfolio and oversees investment management carried out by Phoenix
Investment Partners, Limited, a public majority-owned subsidiary of Phoenix Home
Life Mutual Insurance Company, and by selected other investment managers. PXRE's
invested assets consist primarily of fixed maturities and short-term
investments, but also include equities and investments in limited partnerships,
REITS, emerging market debt and other high yield bonds. PXRE investments are
subject to market-wide risks and fluctuations, as well as to risk inherent in
particular securities. As at September 30, 1999, 80.1% of PXRE's investment
portfolio, at fair value, consisted of fixed maturities and short-term
investments, while the balance was in other invested assets primarily in the
form of investments in various mutual funds, limited partnerships and equity
securities. The investment policies and all investments of PXRE are approved by
its Board of Directors.
Of PXRE's fixed maturities portfolio at September 30, 1999, 85.7% of the
fair value was in obligations rated "A3" or "A-" or better by Moody's or S&P,
respectively. Mortgage and asset-backed securities accounted for 27.2% of fixed
maturities based on fair value at September 30, 1999. At September 30, 1999 PXRE
had no investments in real estate or commercial mortgage loans; however, PXRE
has invested in common and preferred shares of publicly traded REITS. The
average market yield to maturity of PXRE's fixed maturities portfolio at
September 30, 1999 and 1998, was 6.5% in each period.
Fixed maturity and equity investments are reported at fair value, with the
net unrealized gain or loss, net of tax, reported as a separate component of
stockholders' equity. PXRE recorded directly to stockholders' equity a
$6,742,000 after-tax unrealized loss in the value of its investment portfolio
($0.57 book value per share) at September 30,1999 primarily due to the
realization of certain gains (which at December 31, 1998 were unrealized).
Short-term investments are carried at amortized cost, which approximates
fair value. PXRE's short-term investments, principally high-grade commercial
paper, U.S. Treasury bills and investments in limited partnerships which invest
primarily in U.S. Treasury bills, were $51,495,000 at September 30, 1999
compared to $58,862,000 at December 31, 1998. Other invested assets amounting to
$65,082,000 at September 30, 1999, which were comprised of limited partnerships,
were accounted for under the equity method. The amount of equity income included
in short-term investments and other invested assets as of September 30, 1999
amounted to $11,713,000.
25
<PAGE>
PXRE MANAGEMENT'S DISCUSSION AND ANALYSIS OF
CORPORATION FINANCIAL CONDITION AND RESULTS OF OPERATIONS
- -------------------------------------------------------------------------------
Dividends incurred in the nine months ended September 30, 1999 were
$6,924,000 compared to $10,260,000 in the corresponding period of 1998, as a
result of the decrease in the per share quarterly dividend from $.26 to $.06 in
the third quarter of 1999 in anticipation of the reorganization. The expected
annual dividend based on shares outstanding at September 30, 1999 is
approximately $2,818,638.
Book value per common share was $25.82 at September 30, 1999.
During the first nine months of 1999, PXRE acquired 799,700 shares of
common stock under its stock repurchase program. Subsequent to April, 1999, PXRE
did not purchase any additional shares of common stock. PXRE had approximately
11,744,300 common shares outstanding as of September 30, 1999.
PXRE may be subject to gains and losses resulting from currency
fluctuations because substantially all of its investments are denominated in
U.S. dollars, while some of its net liability exposure is in currencies other
than U.S. dollars. PXRE holds, and expects to continue to hold, currency
positions and has made, and expects to continue to make, investments denominated
in foreign currencies to mitigate, in part, the effects of currency fluctuations
on its results of operations. Currency holdings and investments denominated in
foreign currencies do not constitute a material portion of PXRE's investment
portfolio and, in the opinion of PXRE's management, are sufficiently liquid for
its needs.
In connection with the capitalization of PXRE Lloyd's Syndicate, PXRE has
placed on deposit $46,287,000 par value of U.S. government securities and
municipal bonds as collateral for Lloyd's. In addition, PXRE issued a letter of
credit for the benefit of Lloyd's in the amount of $15,355,000, which is
collateralized by municipal bonds for approximately $17,835,000. In addition,
PXRE has provided a 'L'5,000,000 ($8,236,500 at September 30, 1999 exchange
rates) line of credit to PXRE Managing Agency for liquidity purposes. There has
been no drawdown of these amounts through September 30, 1999. Additionally, PXRE
has made loans to PXRE Managing Agency, PXRE Ltd. and PXRE Lloyd's Syndicate in
the amount of approximately $11,252,000 to provide liquidity for those
operations.
In September 1997, PXRE and Phoenix Home Life completed the formation of a
joint venture, Cat Bond Investors L.L.C., with initial committed capital of $20
million. The joint venture specializes in investing in instruments, the returns
on which are determined, in whole or in part, by the nature, magnitude and/or
effects of certain catastrophic events or meteorological conditions.
All amounts classified as reinsurance recoverable at September 30, 1999 are
considered by management of PXRE to be collectible in all material respects.
26
<PAGE>
PXRE MANAGEMENT'S DISCUSSION AND ANALYSIS OF
CORPORATION FINANCIAL CONDITION AND RESULTS OF OPERATIONS
- -------------------------------------------------------------------------------
Market Risk
PXRE reviewed the change in its exposure to market risks since December 31,
1998. The components of PXRE's holdings in derivatives and other financial
instruments have not materially changed. PXRE's risk management strategy and
objectives have not materially changed. PXRE believes that the potential for
loss in each market risk sector described at year-end has not materially
changed.
Income Taxes
PXRE recognized a tax benefit of $1,196,000 for the three-month period
ending September 30, 1999 compared to a tax benefit of $7,484,000 in the
corresponding period of 1998. The tax benefit in the three months ended
September 30, 1999 includes a one-time income tax charge in connection with the
reorganization of approximately $1.8 million related to the cancellation of
shares of PXRE Corporation held by its subsidiary.
For the nine-month period ended September 30, 1999, the company recognized
a tax benefit of $1,646,000 compared to a tax expense of $1,224,000 for the
comparable period in 1998. The tax benefit reported by PXRE in 1999 is
attributable primarily to the amount of net income or loss, tax-exempt income
and amortization of negative goodwill.
27
<PAGE>
PXRE MANAGEMENT'S DISCUSSION AND ANALYSIS OF
CORPORATION FINANCIAL CONDITION AND RESULTS OF OPERATIONS
- -------------------------------------------------------------------------------
Year 2000 Update
PXRE's Year 2000 Project is proceeding on schedule. The Project is
addressing the potential vulnerability that PXRE may have to computer chips and
programs inside or outside PXRE that may fail to properly process dates
associated with the coming millennial year change. PXRE believes that the impact
of Year 2000 issues on its internal computer systems will not be material.
All of PXRE's internal computer servers operate in Oracle database and Sun
Microsystems' computing environments that have been certified as Year 2000
compliant. The critical application software packages running on these database
servers were all developed in-house with the exception of PXRE's general
ledger/accounts payable system. This latter system was identified as not being
Year 2000 compliant and was replaced with a new compliant system in December
1998 to attain various business objectives, including Year 2000 compliance.
All personal computers and related desktop and network equipment and
software have been inventoried and their Year 2000 compliance status reviewed.
Remediation of these non-compliant smaller devices was begun in January 1999 and
by September 30, 1999, was 99% complete. The task of replacing and upgrading the
remaining non-compliant equipment is not expected to be difficult, nor is the
cost expected to be material. PXRE budgeted $100,000 for 1999 for Year 2000
compliance expenditures.
PXRE has been in contact with its other material business partners to
determine their state of readiness with regard to the Year 2000 issue and the
potential impact on PXRE. PXRE has identified the following categories of
business partners as material to PXRE's ability to conduct its operations: banks
and investment advisors, reinsurance intermediaries, major reinsurance clients,
reinsurance providers, telecommunications providers, utilities and office space
providers.
In connection with reinsurance intermediaries and reinsurance clients, PXRE
has the ability to verify their calculations of reinsurance transactions so that
material errors brought on by a failure of their systems are capable of being
detected.
Where PXRE has determined that the relationship with a business partner is
material to its ability to conduct normal operations, PXRE has sent letters to
that partner requesting a statement of its Year 2000 initiative. Where deemed
necessary, PXRE is following up with the business partner to obtain additional
information. Based on these assurances and PXRE's internal reviews of the
information provided, PXRE has not currently identified a material business
partner that will not be compliant. However, there can be no assurance that all
business partners will supply accurate or up-to-date information regarding their
preparedness for the Year 2000, and, in general, there can be no assurance that
all material business partners will be compliant. Such non-compliance could have
a material effect on PXRE's financial position and results of operations.
28
<PAGE>
PXRE MANAGEMENT'S DISCUSSION AND ANALYSIS OF
CORPORATION FINANCIAL CONDITION AND RESULTS OF OPERATIONS
- -------------------------------------------------------------------------------
PXRE has made the decision to evaluate the potential Year 2000 exposures
emanating from its reinsurance business by conducting an analysis of each
individual customer's risk exposures. Where appropriate, PXRE requires that an
exclusion be added to the reinsurance contract or letter of intent be received.
PXRE began adding exclusions to reinsurance contracts in early 1998.
Additionally, it is PXRE's position, in common with others in the industry that
Year 2000 exposures in and of themselves are not fortuitous losses and thus are
not covered under reinsurance contracts even without specific exclusions. For
these reasons, PXRE believes that its exposures to Year 2000 claims will not be
material. However, as was the case with environmental exposures, changing social
and legal trends may create unintended coverage for exposures by causing courts
to reinterpret reinsurance contracts and related exclusions. It is impossible to
predict what, if any, exposure reinsurance companies may ultimately have for
Year 2000 claims whether coverage for the issue is specifically excluded or
included.
PXRE is reviewing its disaster recovery procedures and testing its ability
to redeploy its computer and staff operations to a remote hot site location in
the event of failure on the part of public utilities to provide electrical power
or communication links following a Year 2000 problem. Additional formal
contingency plans will not be formulated until PXRE has identified specific
areas where there is a substantial risk of Year 2000 problems occurring, and no
such other areas have been identified as of this date.
Readers are cautioned that forward-looking statements contained in this
Year 2000 Update should be read in conjunction with the Company's disclosures
under the heading: "CAUTIONARY STATEMENT REGARDING FORWARD LOOKING STATEMENTS."
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
This report contains various forward-looking statements and includes
assumptions concerning PXRE's operations, future results and prospects.
Statements included herein, as well as statements made by or on behalf of PXRE
in press releases, written statements or other documents filed with the
Securities and Exchange Commission, or in its communications and discussions
with investors and analysts in the normal course of business through meetings,
phone calls and conference calls, which are not historical in nature are
intended to be, and are hereby identified as, "forward-looking statements" for
purposes of the safe harbor provided by Section 21E of the Securities Exchange
Act of 1934 as amended. These forward-looking statements, identified by words
such as "intend", "believe", or "expects" or variations of such words or similar
expressions are based on current expectations and are subject to risk and
uncertainties. PXRE cautions investors and analysts that actual results or
events could differ materially from those set forth or implied by the
forward-looking statements and related assumptions, depending on the outcome of
certain important factors including, but not limited to, the following: (i) the
frequency and severity of catastrophic events; (ii) changes in the level of
competition in the reinsurance or primary insurance markets that impact the
volume or profitability of the property-casualty reinsurance business (these
changes include, but are not limited to, the intensity of price competition, the
entry of new competitors, existing
29
<PAGE>
PXRE MANAGEMENT'S DISCUSSION AND ANALYSIS OF
CORPORATION FINANCIAL CONDITION AND RESULTS OF OPERATIONS
- -------------------------------------------------------------------------------
competitors exiting the market and the development of new products by new
and existing competitors); (iii) changes in the demand for reinsurance,
including changes in the amount of ceding companies' retentions and changes in
the demand for excess and surplus lines insurance coverages; (iv) the ability of
PXRE to execute its diversification initiatives in markets in which PXRE has not
had a significant presence; (v) adverse development on loss reserves related to
business written in prior years; (vi) lower than estimated retrocessional
recoveries on unpaid losses, including the effects of losses due to a decline in
the creditworthiness of PXRE's retrocessionaires; (vii) increases in interest
rates, which cause a reduction in the market value of PXRE's interest rate
sensitive investments, including its fixed income investment portfolio; (viii)
decreases in interest rates causing a reduction of income earned on new cash
flow from operations and the reinvestment of the proceeds from sales, calls or
maturities of existing investments; (ix) market fluctuations in equity
securities and securities underlying limited partnership investments; (x)
changes in the composition of PXRE's investment portfolio;(xi) changes in tax
laws and (xii) changes in management's evaluation of the impact of the Year 2000
problem on its operations.
In addition to the factors outlined above that are directly related to
PXRE's business, PXRE is also subject to general business risks, including, but
not limited to, adverse state, federal or foreign legislation and regulation,
adverse publicity or news coverage, changes in general economic factors and the
loss of key employees.
30
<PAGE>
PXRE BALANCE SHEET (PARENT COMPANY ONLY)
GROUP LTD. (Unaudited)
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
September 30,
1999
----
<S> <C> <C>
Assets
Cash $144,885
Prepaid expenses 56,302
-------------
Total assets $201,187
=============
Liabilities Total liabilities $0
Stockholders' Preferred shares, $1.00 par value, 10,000,000 authorized; 0 issued and outstanding
Equity Common shares, $1.00 par value, 50,000,000 authorized, 12,000 issued and outstanding 12,000
Additional paid in capital 865,000
Accumulated deficit (675,813)
-------------
Total stockholders' equity 201,187
-------------
Total liabilities and stockholders' equity $201,187
=============
</TABLE>
The accompanying notes are an integral part of these statements.
31
<PAGE>
PXRE STATEMENTS OF OPERATION (PARENT COMPANY ONLY)
GROUP LTD. (Unaudited)
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
For the period
from inception
June 1, 1999 to
September 30,
1999
----
<S> <C> <C>
Revenues Net investment income $1,231
Expenses Other operating expenses 677,044
-----------------
Net loss ($675,813)
=================
</TABLE>
The accompanying notes are an integral part of these statements.
32
<PAGE>
PXRE STATEMENTS OF STOCKHOLDERS' EQUITY (PARENT COMPANY ONLY)
GROUP LTD. (Unaudited)
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Nine Months Ended
September 30,
1999
----
<S> <C> <C>
Common Shares: Balance at beginning of period $ 0
Issuance of shares 12,000
===============
Balance at end of period $ 12,000
===============
Additional Paid In Balance at beginning of period $ 0
Capital: Capital contribution 865,000
===============
Balance at end of period $ 865,000
===============
Retained Balance at beginning of period $ 0
Earnings: Net loss (675,813)
===============
Balance at end of period $ (675,813)
===============
Total Balance at beginning of period $ 0
Stockholders' Issuance of common shares 12,000
Equity Capital contribution 865,000
Net loss (675,813)
---------------
Balance at end of period $ 201,187
===============
</TABLE>
The accompanying notes are an integral part of these statements.
33
<PAGE>
PXRE STATEMENTS OF CASH FLOW (PARENT COMPANY ONLY)
GROUP LTD. (Unaudited)
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Period from
inception June 1,
1999
to September 30,
1999
----
<S> <C> <C>
Cash Flow Net loss $ (675,813)
from Operating Adjustments to reconcile net income to net cash
Activities provided by operating activities:
Increase in other assets (56,302)
---------------- -
Net cash used by operating activities (732,115)
---------------- -
Cash Flow
from Investing
Activities Net cash provided by investing activities 0
-
-
Cash Flow Proceeds from issuance of common stock 12,000
from Financing Proceeds from capital contribution 865,000
----------------
Activities Net cash provided by financing activities 877,000
Net change in cash 144,885
Cash, beginning of period 0
----------------
Cash, end of period $144,885
================
</TABLE>
The accompanying notes are an integral part of these statements.
34
<PAGE>
PXRE
GROUP LTD. (PARENT COMPANY ONLY)
- --------------------------------------------------------------------------------
NOTES TO FINANCIAL STATEMENTS
SEPTEMBER 30, 1999
1. ORGANIZATION AND PROPOSED REORGANIZATION
PXRE Group Ltd. (the "Company") was incorporated on June 1, 1999 as a
Bermuda holding company and a wholly owned subsidiary of PXRE Purpose Trust,
a purpose trust established under the laws of Bermuda.
On October 5, 1999 PXRE Corporation, a publicly held Delaware holding
company ("PXRE Delaware") completed a reorganization pursuant to which the
Company became the ultimate parent holding company of PXRE Delaware. PXRE
Delaware and its subsidiaries provide property and casualty reinsurance and
insurance products to a national and international market place.
In connection with the reorganization, the Company repurchased for
$1.00 per share 100% of the common shares owned by PXRE Purpose Trust, and each
outstanding share of PXRE Delaware common stock (other than shares held by
PXRE Delaware and its subsidiaries) was converted into one common share of
the Company.
After the consummation of the reorganization, the Company commenced
carrying on the holding company functions previously conducted by PXRE Delaware.
The Company also intends to commence underwriting and service operations in
Bermuda and Barbados through PXRE Reinsurance Ltd., a Bermuda domiciled
company and PXRE (Barbados) Ltd., a Barbados domiciled company, both of which
are wholly-owned subsidiaries of the Company.
On August 9, 1999, the Company's Board of Directors unanimously approved
a resolution to increase the number of authorized shares from 12,000 to
60,000,000 consisting of 50,000,000 common shares and 10,000,000 preferred
shares.
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
a) All amounts are reported in US dollars.
b) Organizational and start up costs in connection with the reorganization
are being expensed as incurred in accordance with the American Institute
of Certified Public Accountants Statement of Position 98-5 which is
effective for 1999.
3. COMMON STOCK RESTRICTION
The Company's bye-laws restrict the ownership and voting rights of any
shareholder who directly or indirectly would own more than 9.9% of the
outstanding common shares of the Company. The restriction requires the prompt
disposition of any shares held in violation of the provision and limits the
voting power of a shareholder with more than 9.9% of the outstanding shares to
the voting power of a shareholder with 9.9% or less of the outstanding common
shares.
35
<PAGE>
PART II. OTHER INFORMATION
Item 4. Submission of Matters to a Vote of Security Holders
At a special meeting of the stockholders of PXRE Corporation on
October 5, 1999, the holders of Common Stock approved the following:
(1) The approval and adoption of the Agreement and Plan of Merger,
dated July 7, 1999 (the "Merger Agreement") among PXRE
Corporation, PXRE Group Ltd. and PXRE Merger Corp.:
<TABLE>
<CAPTION>
Votes For Votes Against Abstentions
--------- ------------- -----------
<S> <C> <C> <C>
Approval of the
Merger Agreement 6,989,981 2,065,714 18,941
</TABLE>
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibit 4.5
First Amended and Restated Credit Agreement dated August 31, 1999
(attached hereto as Exhibit 4.5)
(a) Reports on Form 8-K
8-K Report dated October 5, 1999
8-K Report dated October 6, 1999
36
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report or amendment thereto to be signed on its
behalf by the undersigned thereunto duly authorized.
PXRE GROUP LTD.
November 12, 1999 By: /s/ James F. Dore
--------------------------
James F. Dore
Executive Vice President &
Chief Financial Officer
37
STATEMENT OF DIFFERENCES
The section symbol shall be expressed as...................................'SS'
The service mark symbol shall be expressed as............................. 'sm'
The British pound sterling sign shall be expressed as..................... 'L'
<PAGE>
EXECUTION COPY
- -------------------------------------------------------------------------------
FIRST AMENDED AND RESTATED
CREDIT AGREEMENT
among
PXRE CORPORATION,
as Borrower,
PXRE GROUP LTD.
and
PXRE (BARBADOS) LTD.,
as Guarantors,
THE LENDERS NAMED HEREIN,
and
FIRST UNION NATIONAL BANK,
as Agent
$75,000,000 Senior Credit Facility
Lead Arranger and Sole Book-Runner:
FIRST UNION CAPITAL MARKETS CORP.
Dated as of August 31, 1999
- -------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
RECITALS..................................................................................... 1
</TABLE>
ARTICLE I
DEFINITIONS
<TABLE>
<S> <C>
1.1 Defined Terms....................................................................... 2
1.2 Accounting Terms....................................................................23
1.3 Other Terms; Construction...........................................................24
</TABLE>
ARTICLE II
AMOUNT AND TERMS OF THE LOANS
<TABLE>
<S> <C>
2.1 Commitments.........................................................................24
2.2 Borrowings..........................................................................24
2.3 Disbursements; Funding Reliance; Domicile of Loans..................................25
2.4 Notes...............................................................................26
2.5 Termination and Reduction of Commitments............................................26
2.6 Mandatory Payments and Prepayments..................................................27
2.7 Voluntary Prepayments...............................................................28
2.8 Interest............................................................................29
2.9 Fees................................................................................31
2.10 Interest Periods....................................................................31
2.11 Conversions and Continuations.......................................................32
2.12 Method of Payments; Computations....................................................33
2.13 Recovery of Payments................................................................34
2.14 Use of Proceeds.....................................................................34
2.15 Pro Rata Treatment..................................................................34
2.16 Increased Costs; Change in Circumstances; Illegality; etc...........................35
2.17 Taxes...............................................................................37
2.18 Compensation........................................................................39
</TABLE>
ARTICLE III
CONDITIONS OF BORROWING
<TABLE>
<S> <C>
3.1 [Intentionally left blank]..........................................................39
3.2 [Intentionally left blank]..........................................................39
3.3 Conditions of All Borrowings........................................................40
3.4 Conditions of effectiveness of this Agreement and conditions of Borrowings after
the Reorganization..................................................................40
</TABLE>
i
<PAGE>
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
<TABLE>
<S> <C>
4.1 Corporate Organization and Power....................................................42
4.2 Authorization; Enforceability.......................................................43
4.3 No Violation........................................................................43
4.4 Governmental and Third-Party Authorization; Permits.................................43
4.5 Litigation..........................................................................44
4.6 Taxes...............................................................................44
4.7 Subsidiaries........................................................................45
4.8 Full Disclosure.....................................................................45
4.9 Margin Regulations..................................................................45
4.10 No Material Adverse Change..........................................................45
4.11 Financial Matters...................................................................45
4.12 Ownership of Properties.............................................................47
4.13 ERISA...............................................................................47
4.14 Environmental Matters...............................................................48
4.15 Compliance With Laws................................................................49
4.16 Regulated Industries................................................................49
4.17 Insurance...........................................................................49
4.18 Material Contracts..................................................................49
4.19 Reinsurance Agreements..............................................................50
4.20 Labor Relations.....................................................................51
4.21 Year 2000 Compatibility.............................................................51
4.22 Compliance with Old Credit Agreement................................................51
</TABLE>
ARTICLE V
AFFIRMATIVE COVENANTS
<TABLE>
<S> <C>
5.1 Financial Statements................................................................51
5.2 Statutory Financial Statements......................................................53
5.3 Other Business and Financial Information............................................53
5.4 Corporate Existence; Franchises; Maintenance of Properties..........................56
5.5 Compliance with Laws................................................................57
5.6 Payment of Obligations..............................................................57
5.7 Insurance...........................................................................57
5.8 Maintenance of Books and Records; Inspection........................................57
5.9 Permitted Acquisitions..............................................................58
5.10 Year 2000 Compatibility.............................................................59
5.11 Further Assurances..................................................................59
</TABLE>
ii
<PAGE>
ARTICLE VI
FINANCIAL COVENANTS
<TABLE>
<S> <C>
6.1 Leverage Ratio......................................................................59
6.2 Fixed Charge Coverage Ratio.........................................................59
6.3 Risk-Based Capital Ratio............................................................59
6.4 Combined Statutory Surplus..........................................................59
</TABLE>
ARTICLE VII
NEGATIVE COVENANTS
<TABLE>
<S> <C>
7.1 Merger; Consolidation...............................................................60
7.2 Indebtedness........................................................................60
7.3 Liens...............................................................................62
7.4 Disposition of Assets...............................................................64
7.5 Investments.........................................................................65
7.6 Restricted Payments.................................................................67
7.7 Transactions with Affiliates........................................................68
7.8 Lines of Business...................................................................70
7.9 Certain Amendments..................................................................70
7.10 Limitation on Certain Restrictions..................................................70
7.11 No Other Negative Pledges...........................................................70
7.12 Accounting Changes..................................................................71
7.13 Ratings.............................................................................71
7.14 Reinsurance Agreements..............................................................71
</TABLE>
ARTICLE VIII
EVENTS OF DEFAULT
<TABLE>
<S> <C>
8.1 Events of Default...................................................................73
8.2 Remedies: Termination of Commitments, Acceleration, etc.............................75
8.3 Remedies: Set-Off...................................................................76
ARTICLE IX
GUARANTY
9.1 Guaranty............................................................................76
9.2 Right of Set-Off....................................................................77
9.3 No Subrogation......................................................................77
9.4 Amendments, etc. with respect to the Obligations; Waiver of Rights..................78
9.5 Guaranty Absolute and Unconditional.................................................78
9.6 Reinstatement.......................................................................79
</TABLE>
iii
<PAGE>
<TABLE>
<S> <C>
9.7 Payments............................................................................79
</TABLE>
ARTICLE X
THE AGENT
<TABLE>
<S> <C>
10.1 Appointment.........................................................................80
10.2 Nature of Duties....................................................................80
10.3 Exculpatory Provisions..............................................................80
10.4 Reliance by Agent...................................................................81
10.5 Non-Reliance on Agent and Other Lenders.............................................81
10.6 Notice of Default...................................................................82
10.7 Indemnification.....................................................................82
10.8 The Agent in its Individual Capacity................................................82
10.9 Successor Agent.....................................................................83
</TABLE>
ARTICLE XI
MISCELLANEOUS
<TABLE>
<S> <C>
11.1 Fees and Expenses...................................................................83
11.2 Indemnification.....................................................................84
11.3 Governing Law; Consent to Jurisdiction..............................................85
11.4 Waiver of Jury Trial................................................................86
11.5 Notices.............................................................................86
11.6 Amendments, Waivers, etc............................................................87
11.7 Assignments, Participations.........................................................88
11.8 No Waiver...........................................................................90
11.9 Successors and Assigns..............................................................90
11.10 Survival............................................................................91
11.11 Severability........................................................................91
11.12 Construction........................................................................91
11.13 Confidentiality.....................................................................91
11.14 Counterparts; Effectiveness.........................................................91
11.15 Disclosure of Information...........................................................92
11.16 Entire Agreement....................................................................92
</TABLE>
iv
<PAGE>
EXHIBITS
<TABLE>
<S> <C>
Exhibit A Form of Note
Exhibit B-1 Form of Notice of Borrowing
Exhibit B-2 Form of Notice of Conversion/Continuation
Exhibit C-1 Form of GAAP Compliance Certificate
Exhibit C-2 Form of SAP Compliance Certificate
Exhibit D Form of Assignment and Acceptance
Exhibit E-1 Form of Opinion of Morgan, Lewis & Bockius LLP
Exhibit E-2 Form of Opinion of Conyers Dill & Pearman, Bermuda Counsel
Exhibit E-3 Form of Opinion of Chancery Chambers, Barbados Counsel
Exhibit F Form of Financial Condition Certificate
</TABLE>
SCHEDULES
<TABLE>
<S> <C>
Schedule 1.1 Commitments and Addresses of Lenders
Schedule 4.4 Consents and Approvals
Schedule 4.7 Subsidiaries
Schedule 4.18 Material Contracts
Schedule 4.19 Reinsurance Agreements
Schedule 7.2 Indebtedness
Schedule 7.3 Liens
Schedule 7.5(a) Existing Investments
Schedule 7.5(b) PXRE Reinsurance's Investment Policy
Schedule 7.5(c) PXRE Bermuda's Investment Policy
Schedule 7.7 Transactions with Affiliates
</TABLE>
v
<PAGE>
FIRST AMENDED AND RESTATED
CREDIT AGREEMENT
THIS FIRST AMENDED AND RESTATED CREDIT AGREEMENT, dated as of the ____
day of August, 1999 (this "Agreement"), is made among PXRE CORPORATION, a
Delaware corporation with its principal offices in Edison, New Jersey (the
"Borrower"), PXRE GROUP LTD., a Bermuda corporation ("PXRE Group"), PXRE
(BARBADOS) LTD., a Barbados corporation ("PXRE Barbados," and collectively with
PXRE Group, the "Guarantors"), the banks and financial institutions listed on
Schedule 1.1 or that become parties hereto after the date hereof (collectively,
the "Lenders"), and FIRST UNION NATIONAL BANK ("First Union"), as agent for the
Lenders (in such capacity, the "Agent").
RECITALS
A. Pursuant to a Reorganization (as defined herein), PXRE Group intends
to become the indirect parent holding company of the Borrower. The
Reorganization will be effected by the merger of PXRE Merger Corp., a newly
formed wholly-owned Delaware subsidiary of PXRE (Barbados) Ltd., a newly formed
wholly-owned subsidiary of PXRE Group, into the Borrower, with the Borrower
being the surviving entity.
B. The Lenders are willing to approve the Reorganization and continue
to make available to the Borrower the credit facilities described herein subject
to and on the terms and conditions set forth in this Agreement.
C. This Agreement amends and restates the Credit Agreement, dated as of
the 30th day of December, 1998, among the Borrower, the Lenders and the Agent
(as amended through the Second Amendment dated June 25, 1999 and execution of
Joinder Agreements dated May 18, 1999, the "Old Credit Agreement"). The Old
Credit Agreement evidenced the commitment of First Union to make available to
the Borrower $50,000,000 of the credit facility described therein, which was
subsequently increased to $75,000,000 through the addition of new Lenders by
execution of Joinder Agreements on May 18, 1999.
D. This Agreement (other than Sections 11.1 and 11.2) shall not become
effective until the consummation of the Reorganization and the satisfaction of
the terms and conditions set forth in Section 3.4, at which time the Old Credit
Agreement shall be amended hereby and, to the extent inconsistent herewith, of
no further effect; provided that until such time, the Old Credit Agreement shall
remain in full force and effect; provided, further, that, subject to the terms
and conditions set forth in this Agreement, the Required Lenders hereby consent
to the formation of PXRE Group, PXRE Barbados, PXRE Bermuda, and PXRE Merger
Corp. as described in the Reorganization Documents.
<PAGE>
AGREEMENT
NOW, THEREFORE, in consideration of the mutual provisions, covenants
and agreements herein contained, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1 Defined Terms. For purposes of this Agreement, in addition to the
terms defined elsewhere herein, the following terms shall have the meanings set
forth below (such meanings to be equally applicable to the singular and plural
forms thereof):
"Account Designation Letter" shall mean a letter from the Borrower to
the Agent, duly completed and signed by an Authorized Officer and in form and
substance satisfactory to the Agent, listing any one or more accounts to which
the Borrower may from time to time request the Agent to forward the proceeds of
any Loans made hereunder.
"Acquisition" shall mean any transaction or series of related
transactions (other than the Reorganization), consummated on or after the date
hereof, by which PXRE Group directly, or indirectly through one or more
Subsidiaries, (i) acquires any going business, or all or substantially all of
the assets, of any Person or any line of business, block of business or division
of any Person, whether through purchase of assets, merger or otherwise, or (ii)
acquires securities or other ownership interests of any Person having at least a
majority of combined voting power of the then outstanding securities or other
ownership interests of such Person.
"Acquisition Amount" shall mean, with respect to any Acquisition, the
sum (without duplication) of (i) the amount of cash paid by PXRE Group and its
Subsidiaries in connection with such Acquisition, (ii) the Fair Market Value of
all Capital Stock of PXRE Group issued or given in connection with such
Acquisition, (iii) the amount (determined by using the face amount or the amount
payable at maturity, whichever is greater) of all Indebtedness incurred, assumed
or acquired by PXRE Group and its Subsidiaries in connection with such
Acquisition, (iv) all additional purchase price amounts in connection with such
Acquisition in the form of earnouts and other contingent obligations that should
be recorded as a liability on the balance sheet of PXRE Group and its
Subsidiaries or expensed, in either event in accordance with GAAP, Regulation
S-X under the Securities Act of 1933, as amended, or any other rule or
regulation of the Securities and Exchange Commission, (v) all amounts paid in
respect of covenants not to compete, consulting agreements and other affiliated
contracts in connection with such Acquisition, (vi) the amount of all
transaction fees and expenses (including, without limitation, legal, accounting
and finders' fees and expenses) incurred by PXRE Group and its Subsidiaries in
connection with such Acquisition and (vii) the aggregate fair market value of
all other consideration given by PXRE Group and its Subsidiaries in connection
with such Acquisition.
2
<PAGE>
"Adjusted Base Rate" shall mean, at any time with respect to any Base
Rate Loan, a rate per annum equal to the Base Rate as in effect at such time
plus the Applicable Margin Percentage for Base Rate Loans as in effect at such
time.
"Adjusted LIBOR Rate" shall mean, at any time with respect to any LIBOR
Loan, a rate per annum equal to the LIBOR Rate as in effect at such time plus
the Applicable Margin Percentage for LIBOR Loans as in effect at such time.
"Affiliate" shall mean, as to any Person, each other Person that
directly, or indirectly through one or more intermediaries, owns or controls, is
controlled by or under common control with, such Person or is a director or
officer of such Person. For purposes of this definition, with respect to any
Person "control" shall mean (i) the possession, direct or indirect, of the power
to direct or cause the direction of the management and policies of such Person,
whether through the ownership of voting securities, by contract or otherwise, or
(ii) the beneficial ownership of securities or other ownership interests of such
Person having 10% or more of the combined voting power of the then outstanding
securities or other ownership interests of such Person ordinarily (and apart
from rights accruing under special circumstances) having the right to vote in
the election of directors or other governing body of such Person.
"Agent" shall mean First Union, in its capacity as Agent appointed
under Article X, and its successors and permitted assigns in such capacity.
"Agreement" shall mean this Credit Agreement, as amended, modified or
supplemented from time to time.
"Amendment Fee Letter" shall mean the letter from First Union to
Borrower, dated August 3, 1999, relating to certain fees payable by the Borrower
in respect of the Reorganization.
"Annual Statement" shall mean, with respect to any Insurance Subsidiary
for any fiscal year, the annual financial statements of such Insurance
Subsidiary as required to be filed with the Insurance Regulatory Authority of
its jurisdiction of domicile and in accordance with the laws of such
jurisdiction, together with all exhibits, schedules, certificates and actuarial
opinions required to be filed or delivered therewith.
"Applicable Margin Percentage" shall mean, at any time from and after
the Closing Date, the applicable percentage (a) to be added to the Base Rate
pursuant to Section 2.8 for purposes of determining the Adjusted Base Rate, (b)
to be added to the LIBOR Rate pursuant to Section 2.8 for purposes of
determining the Adjusted LIBOR Rate, and (c) to be used in calculating the
commitment fee payable pursuant to Section 2.9(b), in each case as determined
under the following matrix with reference to the Borrower's senior unsecured
debt rating by Moody's or Standard & Poor's (in each case based upon the higher
of the two ratings), when available, or, if not available, then with reference
to an implied senior or unsecured debt rating, if available (provided that, for
purposes of this Agreement, the rating that is two levels higher than the rating
of the Borrower's Trust Preferred Securities by Standard & Poor's and Moody's
shall be deemed
3
<PAGE>
to be an implied senior or unsecured debt rating by Standard & Poor's and
Moody's, respectively):
<TABLE>
<CAPTION>
Applicable Applicable Margin
Moody's/ Margin Applicable Margin Percentage for
Standard & Percentage for Percentage for Unutilized
Level Poor's Rating Base Rate Loans LIBOR Loans Commitments Fee
- ----- ------------- --------------- ----------- ---------------
<S> <C> <C> <C> <C>
I A3 / A- or above 0.0% 0.750% 0.175%
II Baa1 / BBB+ 0.0% 0.875% 0.200%
III Baa2 / BBB 0.0% 1.000% 0.250%
IV Baa3 / BBB- 0.0% 1.125% 0.300%
V Less than Baa3 / BBB- 0.5% 1.625% 0.500%
</TABLE>
Notwithstanding anything set forth herein to the contrary, if at any time the
difference between the senior unsecured debt ratings by Moody's and Standard &
Poor's is more than one rating grade, then for purposes of determining the
applicable level set forth above, the higher of the two ratings shall be reduced
to the rating that is the median between the higher rating and the lower rating
(or its equivalent); or, if the median is not determinable, then the higher of
such two ratings shall be reduced to one rating grade lower.
On each Adjustment Date (as hereinafter defined), the Applicable Margin
Percentage for all Loans and the commitment fee payable pursuant to Section
2.9(b) shall be adjusted effective as of such date in accordance with the above
matrix; provided, however, that, notwithstanding the foregoing or anything else
herein to the contrary, if at any time an Event of Default described in Section
8.1(a) shall have occurred and be continuing, then at the election of the
Required Lenders, at all times from and including the date on which such Event
of Default occurred to the date on which such Event of Default shall have been
cured or waived, each Applicable Margin Percentage shall be determined in
accordance with Level V of the above matrix (notwithstanding the actual level).
For purposes of this definition, "Adjustment Date" shall mean, with respect to
any fiscal period of the Borrower beginning with the fiscal quarter ending
December 31, 1998, the tenth (10th) Business Day after the announcement by
either Moody's or Standard & Poor's of any change in its rating with respect to
the Borrower's senior unsecured debt. Until the first Adjustment Date, each
Applicable Margin Percentage shall be determined in accordance with Level III of
the above matrix.
"Asset Disposition" shall mean any sale, assignment, transfer or other
disposition by the Borrower or any of its Subsidiaries to any other Person
(other than to the Borrower or to a Wholly Owned Subsidiary of Borrower),
whether in one transaction or in a series of related
4
<PAGE>
transactions, of any of its assets, business units or other properties
(including any interests in property, whether tangible or intangible, and
including Capital Stock of Subsidiaries), excluding (i) sales of investment
assets in the ordinary course of business, (ii) sales and licenses of inventory
and other assets in the ordinary course of business, (iii) the sale or exchange
of used or obsolete equipment to the extent the proceeds of such sale are
applied towards, or such equipment is exchanged for, similar replacement
equipment, and (iv) any other disposition expressly permitted under Sections
7.4, 7.6 or 7.7.
"Assignee" shall have the meaning given to such term in Section 11.7(a).
"Assignment and Acceptance" shall mean an Assignment and Acceptance
entered into between a Lender and an Assignee and accepted by the Agent and the
Borrower, in substantially the form of Exhibit D.
"Authorized Officer" shall mean, with respect to any action specified
herein, any officer of the Borrower or either Guarantor duly authorized by
resolution of the board of directors of the Borrower or such Guarantor, as the
case may be, to take such action on its behalf, and whose signature and
incumbency shall have been certified to the Agent by the secretary or an
assistant secretary of the Borrower or such Guarantor, as the case may be.
"Available Dividend Amount" shall mean, with respect to any Insurance
Subsidiary (other than PXRE Bermuda) for any period of four consecutive fiscal
quarters, the aggregate maximum amount of dividends that is or, if such period
were a fiscal year, would be permitted by the Insurance Regulatory Authority of
its jurisdiction of domicile, under applicable Requirements of Law (without the
necessity of any consent, approval or other action of such Insurance Regulatory
Authority involving the granting of permission or the exercise of discretion by
such Insurance Regulatory Authority), to be paid by such Insurance Subsidiary to
the Borrower or another Subsidiary of the Borrower in respect of such
four-quarter period as if such period were a fiscal year (whether or not any
such dividends are actually paid).
"Average Combined Invested Assets" shall mean, with respect to the
Borrower's Insurance Subsidiaries for the four consecutive fiscal quarters most
recently ending prior to the date referred to in the context in which the term
is used, the average of the aggregate (without duplication) Invested Assets of
such Subsidiaries, determined by dividing the sum of the aggregate Invested
Assets as of the end of all four quarters by four.
"Bankruptcy Code" shall mean 11 U.S.C. 'SS''SS'101 et seq., as amended
from time to time, and any successor statute.
"Base Rate" shall mean the higher of (i) the per annum interest rate
publicly announced from time to time by First Union in Charlotte, North
Carolina, to be its prime rate (which may not necessarily be its best lending
rate), as adjusted to conform to changes as of the opening of business on the
date of any such change in such prime rate, and (ii) the Federal Funds Rate plus
0.5% per annum, as adjusted to conform to changes as of the opening of business
on the date of any such change in the Federal Funds Rate.
5
<PAGE>
"Base Rate Loan" shall mean, at any time, any Loan that bears interest
at such time at the Adjusted Base Rate.
"Bermuda Reinsurance Agreements" shall mean the quota share reinsurance
and stop-loss reinsurance agreements between PXRE Reinsurance and PXRE Bermuda
on terms and conditions substantially consistent with those set forth in the
summary of financial terms previously delivered to the Lenders, as the same may
be amended from time to time.
"Borrowing" shall mean the incurrence by the Borrower (including as a
result of conversions and continuations of outstanding Loans pursuant to Section
2.11) on a single date of a group of Loans of a single Type and, in the case of
LIBOR Loans, as to which a single Interest Period is in effect.
"Borrowing Date" shall mean, with respect to any Borrowing, the date
upon which such Borrowing is made.
"Business Day" shall mean (i) any day other than a Saturday or Sunday,
a legal holiday or a day on which commercial banks in Charlotte, North Carolina
are required by law to be closed and (ii) in respect of any determination
relevant to a LIBOR Loan, any such day that is also a day on which tradings are
conducted in the London interbank Eurodollar market.
"Capital Stock" shall mean (i) with respect to any Person that is a
corporation, any and all shares, interests or equivalents in capital stock
(whether voting or nonvoting, and whether common or preferred) of such
corporation, and (ii) with respect to any Person that is not a corporation, any
and all partnership, membership, limited liability company or other equity
interests of such Person; and in each case, any and all warrants, rights or
options to purchase any of the foregoing.
"Cash Equivalents" shall mean (i) securities issued or unconditionally
guaranteed by the United States of America or any agency or instrumentality
thereof, backed by the full faith and credit of the United States of America and
maturing within 90 days from the date of acquisition, (ii) commercial paper
issued by any Person organized under the laws of the United States of America,
maturing within 90 days from the date of acquisition and, at the time of
acquisition, having a rating of at least "A-1" or the equivalent thereof by
Standard & Poor's or at least "P-1" or the equivalent thereof by Moody's, (iii)
time deposits and certificates of deposit maturing within 90 days from the date
of issuance and issued by a bank or trust company organized under the laws of
the United States of America or any state thereof that has combined capital and
surplus of at least $500,000,000 and that has (or is a subsidiary of a bank
holding company that has) a long-term unsecured debt rating of at least A or the
equivalent thereof by Standard & Poor's or at least A2 or the equivalent thereof
by Moody's, (iv) repurchase obligations with a term not exceeding seven (7) days
with respect to underlying securities of the types described in clause (i) above
entered into with any bank or trust company meeting the qualifications specified
in clause (iii) above, and (v) money market funds at least 95% of the assets of
which are continuously invested in securities of the type described in clause
(i) through (iv) above.
6
<PAGE>
"Closing Date" shall mean December 30, 1998.
"CMOs" shall mean any security or certificate representing any interest
or participation in a pool of Mortgage Backed Securities (it being understood
that Mortgage Backed Securities themselves are not CMOs).
"Combined Net Cash Flow" shall mean, for any period and without
duplication, the aggregate Net Cash Flow of the Borrower's non-Insurance
Subsidiaries for such period. For purposes of this definition, "non-Insurance
Subsidiaries" shall not include any Subsidiary of an Insurance Subsidiary.
"Combined Statutory Capital and Surplus" shall mean, at any time, the
aggregate (without duplication) of Statutory Capital and Surplus of each of the
Borrower's Insurance Subsidiaries at such time, after eliminating the effect
thereupon of any transactions among such Insurance Subsidiaries.
"Commitment" shall mean, with respect to any Lender at any time, as
applicable, (i) the amount set forth opposite such Lender's name on Schedule
1.1; or (ii) if such Lender has entered into one or more Assignment and
Acceptances, the amount set forth for such Lender at such time in the Register
maintained by the Agent pursuant to Section 11.7(b) as such Lender's
"Commitment," in each case as such amount may be reduced at or prior to such
time pursuant to the terms hereof.
"Compliance Certificate" shall mean a fully completed and duly executed
certificate in the form of Exhibit C-1 or Exhibit C-2, together with a Covenant
Compliance Worksheet.
"Consolidated Indebtedness" shall mean, as of the last day of any
fiscal quarter, the aggregate (without duplication) of all Indebtedness (whether
or not reflected on PXRE Group's or any Subsidiary's balance sheet) of PXRE
Group and its Subsidiaries as of such date, determined on a consolidated basis
in accordance with GAAP, excluding reimbursement obligations with respect to
letters of credit issued on behalf of or deposits placed by any Insurance
Subsidiary for the benefit of Lloyd's to satisfy capital requirements imposed by
Lloyd's to support such Insurance Subsidiary's business in the Lloyd's insurance
Market and reimbursement obligations in respect of letters of credit issued for
the benefit of any Insurance Subsidiary or PXRE Group in the ordinary course of
its business to support the payment of obligations arising under insurance and
reinsurance contracts and weather and similar swap agreements, but only in each
case to the extent such letters of credit (i) are not drawn upon and (ii) are
collateralized by cash or Cash Equivalents.
"Consolidated Interest Expense" shall mean, for any period, the sum
(without duplication) of (i) total interest expense of PXRE Group and its
Subsidiaries for such period in respect of Consolidated Indebtedness of PXRE
Group and its Subsidiaries (including, without limitation, all such interest
expense accrued or capitalized during such period, whether or not actually paid
during such period), determined on a consolidated basis in accordance with GAAP,
7
<PAGE>
(ii) all net amounts payable under or in respect of Hedge Agreements, to the
extent paid or accrued by PXRE Group and its Subsidiaries during such period,
and (iii) all commitment fees and other ongoing fees in respect of Consolidated
Indebtedness (including the fees provided for under Section 2.9) paid, accrued
or capitalized by PXRE Group and its Subsidiaries during such period.
"Consolidated Net Income" shall mean, for any period, net income (or
loss) for PXRE Group and its Subsidiaries for such period, determined on a
consolidated basis in accordance with GAAP.
"Consolidated Net Worth" shall mean, as of any date of determination
with respect to any Person, the net worth of such Person and its Subsidiaries as
of such date, determined on a consolidated basis in accordance with GAAP but (i)
excluding any Disqualified Capital Stock and (ii) without regard to the
requirements of FAS 115. When used without reference to a particular Person, the
term "Consolidated Net Worth" shall be deemed to refer to PXRE Group.
"Contingent Obligation" shall mean, with respect to any Person, any
direct or indirect liability of such Person with respect to any Indebtedness,
liability or other obligation (the "primary obligation") of another Person (the
"primary obligor"), whether or not contingent, (a) to purchase, repurchase or
otherwise acquire such primary obligation or any property constituting direct or
indirect security therefor, (b) to advance or provide funds (i) for the payment
or discharge of any such primary obligation or (ii) to maintain working capital
or equity capital of the primary obligor or otherwise to maintain the net worth
or solvency or any balance sheet item, level of income or financial condition of
the primary obligor, (c) to purchase property, securities or services primarily
for the purpose of assuring the owner of any such primary obligation of the
ability of the primary obligor in respect thereof to make payment of such
primary obligation or (d) otherwise to assure or hold harmless the owner of any
such primary obligation against loss or failure or inability to perform in
respect thereof; provided, however, that, with respect to PXRE Group and its
Subsidiaries, the term Contingent Obligation shall not include (y) endorsements
for collection or deposit in the ordinary course of business or (z) obligations
entered into by an Insurance Subsidiary or by PXRE Group in the ordinary course
of its business under insurance policies or contracts, reinsurance agreements
and weather and similar swap agreements issued by it or to which it is a party
(and security posted in the ordinary course of its business to secure
obligations thereunder).
"Covenant Compliance Worksheet" shall mean a fully completed worksheet
in the form of Attachment A to Exhibit C-1 or Exhibit C-2.
"Credit Documents" shall mean this Agreement, the Notes, the Fee
Letter, the Amendment Fee Letter, and all other agreements, instruments,
documents and certificates now or hereafter executed and delivered to the Agent
or any Lender by or on behalf of the Borrower or any of its Subsidiaries with
respect to this Agreement and the transactions contemplated hereby, in each case
as amended, modified, supplemented or restated from time to time.
"Credit Party" shall mean each of the Borrower and the Guarantors.
8
<PAGE>
"Debt Issuance" shall mean the issuance or sale by PXRE Group or any of
its Subsidiaries of any debt securities, whether in a public offering of such
securities or otherwise.
"Debt Service" shall mean, for any period, the aggregate (without
duplication) of all principal and Consolidated Interest Expense paid or accrued
by PXRE Group and its Subsidiaries during such period in respect of Indebtedness
(including, without limitation, the Loans).
"Default" shall mean any event or condition that, with the passage of
time or giving of notice, or both, would constitute an Event of Default.
"Disqualified Capital Stock" shall mean, with respect to any Person,
any Capital Stock of such Person that, by its terms (or by the terms of any
security into which it is convertible or for which it is exchangeable), or upon
the happening of any event or otherwise, (i) matures or is mandatorily
redeemable or subject to any mandatory repurchase requirement, pursuant to a
sinking fund obligation or otherwise, (ii) is redeemable or subject to any
mandatory repurchase requirement at the sole option of the holder thereof, or
(iii) is convertible into or exchangeable for (whether at the option of the
issuer or the holder thereof) (a) debt securities or (b) any Capital Stock
referred to in (i) or (ii) above, in each case under (i), (ii) or (iii) above at
any time on or prior to the first anniversary of the Maturity Date; provided,
however, that only the portion of Capital Stock that so matures or is
mandatorily redeemable, is so redeemable at the option of the holder thereof, or
is so convertible or exchangeable on or prior to such date shall be deemed to be
Disqualified Capital Stock.
"Dollar Roll Agreements" shall mean, as to any Person, an agreement
pursuant to which such Person sells securities to another Person and agrees to
repurchase "substantially the same" securities (as determined by the Public
Securities Association and GAAP) at a described or specified date and price.
"Dollars" or "$" shall mean dollars of the United States of America.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended from time to time, and any successor statute, and all rules and
regulations from time to time promulgated thereunder.
"ERISA Affiliate" shall mean any Person (including any trade or
business, whether or not incorporated) that would be deemed to be under "common
control" with, or a member of the same "controlled group" as, the Borrower, the
Guarantors or any of the Subsidiaries, within the meaning of Sections 414(b),
(c), (m) or (o) of the Internal Revenue Code or Section 4001 of ERISA.
"ERISA Event" shall mean any of the following with respect to a Plan or
Multiemployer Plan, as applicable: (i) a Reportable Event with respect to a Plan
or a Multiemployer Plan, (ii) a complete or partial withdrawal by PXRE Group
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or any ERISA Affiliate from a Multiemployer Plan that results in liability under
Section 4201 or 4204 of ERISA, or the receipt by PXRE Group or any ERISA
Affiliate of notice from a Multiemployer Plan that it is in reorganization or
insolvency pursuant to Section 4241 or 4245 of ERISA or that it intends to
terminate or has terminated under Section 4041A of ERISA, (iii) the distribution
by PXRE Group or any ERISA Affiliate under Section 4041 or 4041A of ERISA of a
notice of intent to terminate any Plan or the taking of any action to terminate
any Plan, (iv) the commencement of proceedings by the PBGC under Section 4042 of
ERISA for the termination of, or the appointment of a trustee to administer, any
Plan, or the receipt by PXRE Group or any ERISA Affiliate of a notice from any
Multiemployer Plan that such action has been taken by the PBGC with respect to
such Multiemployer Plan, (v) the institution of a proceeding by any fiduciary of
any Multiemployer Plan against PXRE Group or any ERISA Affiliate to enforce
Section 515 of ERISA, which is not dismissed within thirty (30) days, (vi) the
imposition upon PXRE Group or any ERISA Affiliate of any liability under Title
IV of ERISA, other than for PBGC premiums due but not delinquent under Section
4007 of ERISA, or the imposition or threatened imposition of any Lien upon any
assets of PXRE Group or any ERISA Affiliate as a result of any alleged failure
to comply with the Internal Revenue Code or ERISA in respect of any Plan, (vii)
the engaging in or otherwise becoming liable for a nonexempt Prohibited
Transaction by PXRE Group or any ERISA Affiliate, (viii) a violation of the
applicable requirements of Section 404 or 405 of ERISA or the exclusive benefit
rule under Section 401(a) of the Internal Revenue Code by any fiduciary of any
Plan for which PXRE Group or any of its ERISA Affiliates may be directly or
indirectly liable or (ix) the adoption of an amendment to any Plan that,
pursuant to Section 401(a)(29) of the Internal Revenue Code or Section 307 of
ERISA, would result in the loss of tax-exempt status of the trust of which such
Plan is a part if PXRE Group or an ERISA Affiliate fails to timely provide
security to such Plan in accordance with the provisions of such sections.
"Eligible Assignee" shall mean (i) a commercial bank organized under
the laws of the United States or any state thereof and having total assets in
excess of $1,000,000,000, (ii) a commercial bank organized under the laws of any
other country that is a member of the Organization for Economic Cooperation and
Development or any successor thereto (the "OECD") or a political subdivision of
any such country and having total assets in excess of $1,000,000,000, provided
that such bank or other financial institution is acting through a branch or
agency located in the United States, in the country under the laws of which it
is organized or in another country that is also a member of the OECD, (iii) the
central bank of any country that is a member of the OECD, (iv) a finance
company, insurance company or other financial institution or fund that is
engaged in making, purchasing or otherwise investing in loans in the ordinary
course of its business and having total assets in excess of $500,000,000, (v)
any Affiliate of an existing Lender or (vi) any other Person approved by the
Required Lenders, which approval shall not be unreasonably withheld.
"Environmental Claims" shall mean any and all administrative,
regulatory or judicial actions, suits, demands, demand letters, claims, liens,
accusations, allegations, notices of noncompliance or violation, investigations
(other than internal reports prepared by any Person in the ordinary course of
its business and not in response to any third party action or request of any
kind) or proceedings relating in any way to any actual or alleged violation of
or liability under any Environmental Law or relating to any permit issued, or
any approval given, under any such Environmental Law (collectively, "Claims"),
including, without limitation, (i) any and all Claims
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by Governmental Authorities for enforcement, cleanup, removal, response,
remedial or other actions or damages pursuant to any applicable Environmental
Law and (ii) any and all Claims by any third party seeking damages,
contribution, indemnification, cost recovery, compensation or injunctive relief
resulting from Hazardous Substances or arising from alleged injury or threat of
injury to human health or the environment.
"Environmental Laws" shall mean any and all federal, state and local
laws, statutes, ordinances, rules, regulations, permits, licenses, approvals,
rules of common law and orders of courts or Governmental Authorities, relating
to the protection of human health or occupational safety or the environment, now
or hereafter in effect and in each case as amended from time to time, including,
without limitation, requirements pertaining to the manufacture, processing,
distribution, use, treatment, storage, disposal, transportation, handling,
reporting, licensing, permitting, investigation or remediation of Hazardous
Substances.
"Event of Default" shall have the meaning given to such term in
Section 8.1.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time, and any successor statute, and all rules and
regulations from time to time promulgated thereunder.
"FAS 115" shall mean Statement of Financial Accounting Standards No.
115 issued by the Financial Accounting Standards Board of the American Institute
of Certified Public Accountants.
"Fair Market Value" shall mean, with respect to any Capital Stock of
PXRE Group given in connection with an Acquisition, the value given to such
Capital Stock for purposes of such Acquisition by the parties thereto, as
determined in good faith pursuant to the relevant acquisition agreement or
otherwise in connection with such Acquisition.
"Federal Funds Rate" shall mean, for any period, a fluctuating per
annum interest rate (rounded upwards, if necessary, to the nearest 1/100 of one
percentage point) 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 that 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.
"Federal Reserve Board" shall mean the Board of Governors of the
Federal Reserve System or any successor thereto.
"Fee Letter" shall mean the letter dated December 2, 1998 from First
Union to the Borrower relating to certain fees payable by the Borrower in
respect of the transactions contemplated by the Old Credit Agreement, as
amended, modified or supplemented from time to time.
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"Financial Condition Certificate" shall mean a fully completed and duly
executed certificate, substantially in the form of Exhibit F, together with the
attachments thereto.
"Financial Officer" shall mean the chief financial officer, vice
president - finance, principal accounting officer or treasurer of the Borrower
or any Guarantor.
"Fixed Charge Coverage Ratio" shall mean, as of the last day of any
period of four consecutive fiscal quarters (the "Measurement Period"), the ratio
of:
(i) the sum (without duplication) of (t) the Available
Dividend Amount for the Measurement Period for the Borrower's Insurance
Subsidiaries, other than each Insurance Subsidiary that is a Subsidiary
of another Insurance Subsidiary, plus (u) the Net Tax Sharing Payments
with respect to the Measurement Period, plus (v) the Combined Net Cash
Flow (whether positive or negative) of the Borrower's non-Insurance
Subsidiaries for the Measurement Period, plus (w) other Net Cash Flow
to the Borrower or PXRE Group (whether positive or negative) during the
Measurement Period, minus (x) Holding Company Expenses accrued during
such Measurement Period, (y) minus stock repurchases by PXRE Group
during such Measurement Period, other than stock repurchases effected
between January 1, 1998 and the day immediately preceding the Closing
Date, minus (z) dividends reasonably estimated by PXRE Group (based
upon the most recent quarterly dividend rate as set forth in the
relevant Covenant Compliance Worksheet) to be paid by PXRE Group during
the period of four consecutive fiscal quarters immediately following
the Measurement Period (the "Pro Forma Period"), to
(ii) the Debt Service with respect to the Loans and all other
Consolidated Indebtedness reasonably determined by PXRE Group (and as
set forth in the relevant Covenant Compliance Worksheet) to be required
to be paid or accrued by PXRE Group and its Subsidiaries during the Pro
Forma Period, based on the amount of the Loans and other Consolidated
Indebtedness outstanding at the beginning of such period and assuming
that the rates in effect at the beginning of such period, taking into
account the benefit and costs of any Hedge Agreement with respect to
the Loans, will remain in effect throughout such period;
provided that the stock repurchases referred to in subclause (y) of clause (i)
above shall not include the $16,195,677 of such repurchases occurring between
the Closing Date and June 30, 1999; and provided further that, for any portion
of the Measurement Period prior to the Reorganization Date, this definition and
the definitions of the capitalized terms used in this definition shall read as
if "Borrower" were substituted for "PXRE Group."
"GAAP" shall mean generally accepted accounting principles, as set
forth in the statements, opinions and pronouncements of the Accounting
Principles Board, the American Institute of Certified Public Accountants and the
Financial Accounting Standards Board, consistently applied and maintained, as in
effect from time to time (subject to the provisions of Section 1.2).
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"Governmental Authority" shall mean any nation or government, any state
or other political subdivision thereof and any central bank thereof, any
municipal, local, city or county government, and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government, and any corporation or other entity owned or
controlled, through stock or capital ownership or otherwise, by any of the
foregoing.
"Gross Written Premiums" shall mean, with respect to any of the
Borrower's Insurance Subsidiaries at any time, the amount of premiums written
(after adding premiums on business assumed from others) as shown on line 32,
page 9, Part 2B, sum of columns 1, 2a and 2b, of the Annual Statement of such
Insurance Subsidiary, or the amount determined in a consistent manner for any
date other than a date as of which an Annual Statement of such Insurance
Subsidiary is prepared.
"Guarantor Margin Stock" shall mean shares of capital stock of PXRE
Group that are held by PXRE Group or any of its Subsidiaries and that constitute
Margin Stock.
"Hazardous Substances" shall mean any substances or materials (i) that
are or become defined as hazardous wastes, hazardous substances, pollutants,
contaminants or toxic substances under any Environmental Law, (ii) that are
defined by any Environmental Law as toxic, explosive, corrosive, ignitable,
infectious, radioactive, mutagenic or otherwise hazardous, (iii) the presence of
which require investigation or response under any Environmental Law, (iv) that
constitute a nuisance, trespass or health or safety hazard to Persons or
neighboring properties, (v) that consist of underground or aboveground storage
tanks, whether empty, filled or partially filled with any substance, or (vi)
that contain, without limitation, asbestos, polychlorinated biphenyls, urea
formaldehyde foam insulation, petroleum hydrocarbons, petroleum derived
substances or wastes, crude oil, nuclear fuel, natural gas or synthetic gas.
"Hedge Agreement" shall mean any interest or foreign currency rate
swap, cap, collar, option, hedge, forward rate or other similar agreement or
arrangement designed to protect against fluctuations in interest rates or
currency exchange rates.
"Holding Company Expenses" shall mean, for any period, the aggregate of
all operating costs and expenses incurred or paid by the Borrower and the
Guarantors during such period, including without limitation rent, utilities,
professional fees, taxes (without duplication for taxes included in the
determination of Net Tax Sharing Payments) and payroll expenses.
"Hybrid Securities Issuance" shall mean the issuance, sale or other
disposition by PXRE Group or any of its Subsidiaries of any security that
creates an obligation of PXRE Group or such Subsidiary to pay money or issue (or
cause an Affiliate to issue) Disqualified Capital Stock to the holder thereof,
whether or not such security is classified or presented on PXRE Group's or such
Subsidiary's balance sheet as long-term debt.
"Indebtedness" shall mean, with respect to any Person (without
duplication), (i) all indebtedness and obligations of such Person for borrowed
money or in respect of loans or
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advances of any kind, (ii) all obligations of such Person evidenced by notes,
bonds, debentures or similar instruments, (iii) all reimbursement obligations of
such Person with respect to surety bonds, letters of credit and bankers'
acceptances (in each case, whether or not drawn or matured and in the stated
amount thereof), (iv) all obligations of such Person to pay the deferred
purchase price of property or services, (v) all indebtedness created or arising
under any conditional sale or other title retention agreement with respect to
property acquired by such Person, (vi) all obligations of such Person as lessee
under leases that are or are required to be, in accordance with GAAP, recorded
as capital leases, to the extent such obligations are required to be so
recorded, (vii) all Disqualified Capital Stock issued by such Person, with the
amount of Indebtedness represented by such Disqualified Capital Stock being
equal to its involuntary liquidation preference, but excluding accrued
dividends, if any, (viii) the net termination obligations of such Person under
any Hedge Agreement that, as of any date of calculation hereunder, the
counterparty thereto has the right to terminate, (ix) all indebtedness of such
Person in respect of Dollar Roll Agreements and Reverse Repurchase Agreements,
other than Dollar Roll Agreements and Reverse Repurchase Agreements of an
Insurance Subsidiary entered into in the ordinary course of such Insurance
Subsidiary's business, (x) all Contingent Obligations of such Person and (xi)
all indebtedness referred to in clauses (i) through (x) above secured by any
Lien on any property or asset owned or held by such Person regardless of whether
the indebtedness secured thereby shall have been assumed by such Person or is
nonrecourse to the credit of such Person.
"Insurance Regulatory Authority" shall mean, with respect to any
Insurance Subsidiary, the insurance department or similar Governmental Authority
charged with regulating insurance companies or insurance holding companies, in
its jurisdiction of domicile and, to the extent that it has regulatory authority
over such Insurance Subsidiary, in each other jurisdiction in which such
Insurance Subsidiary conducts business or is licensed to conduct business.
"Insurance Subsidiary" shall mean any direct or indirect Subsidiary of
PXRE Group the ability of which to pay dividends is regulated by an Insurance
Regulatory Authority or that is otherwise required to be regulated thereby in
accordance with the applicable Requirements of Law of its jurisdiction of
domicile, and shall mean and include, without limitation, each of PXRE
Reinsurance, Transnational Insurance, PXRE Ltd. and PXRE Bermuda.
"Interest Period" shall have the meaning given to such term
in Section 2.10.
"Internal Revenue Code" shall mean the Internal Revenue Code of 1986,
as amended from time to time, and any successor statute, and all rules and
regulations from time to time promulgated thereunder.
"Invested Assets" shall mean, as to any Insurance Subsidiary, as of any
date, the total amount shown on page 2, column 4, line 9 of the Annual Statement
of the Insurance Subsidiary, or an amount determined in a consistent manner for
any date other than one as of which an Annual Statement is prepared.
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<PAGE>
"Investment Policy" shall mean, with respect to PXRE Reinsurance and
PXRE Bermuda, such company's Investment Policy as of the date hereof, as set
forth in Schedules 7.5(b) and 7.5(c).
"LIBOR Loan" shall mean, at any time, any Loan that bears interest at
such time at the Adjusted LIBOR Rate.
"LIBOR Rate" shall mean, with respect to each LIBOR Loan comprising
part of the same Borrowing for any Interest Period, an interest rate per annum
obtained by dividing (i) (y) the rate of interest appearing on Dow Jones
Telerate Page 3750 (or any successor page) or (z) if no such rate is available,
the rate of interest determined by the Agent to be the rate or the arithmetic
mean of rates (rounded upward, if necessary, to the nearest 1/16 of one
percentage point) at which Dollar deposits in immediately available funds are
offered by First Union to first-tier banks in the London interbank Eurodollar
market, in each case under (y) and (z) above at approximately 11:00 a.m., London
time, two (2) Business Days prior to the first day of such Interest Period for a
period substantially equal to such Interest Period and in an amount
substantially equal to the amount of First Union's LIBOR Loan comprising part of
such Borrowing, by (ii) the amount equal to 1.00 minus the Reserve Requirement
(expressed as a decimal) for such Interest Period.
"Lender" shall mean each financial institution signatory hereto and
each other financial institution that becomes a "Lender" hereunder pursuant to
Section 11.7, and their respective successors and assigns.
"Lending Office" shall mean, with respect to any Lender, the office of
such Lender designated as its "Lending Office" on Schedule 1.1 hereto or in an
Assignment and Acceptance, or such other office as may be otherwise designated
in writing from time to time by such Lender to the Borrower and the Agent. A
Lender may designate separate Lending Offices as provided in the foregoing
sentence for the purposes of making or maintaining different Types of Loans,
and, with respect to LIBOR Loans, such office may be a domestic or foreign
branch or Affiliate of such Lender.
"Leverage Ratio" shall mean, as of any date of determination, the ratio
of (i) Consolidated Indebtedness as of such date, provided that, whether or not
any Trust Preferred Securities issued by the Borrower or any Subsidiary are
included in Consolidated Indebtedness, the aggregate redemption value of all
such securities shall be included in or added to, as the case may be, this
clause (i) but only to the extent such aggregate redemption value as of such
date exceeds fifteen percent (15%) of clause (ii) below, to (ii) the sum of
Consolidated Indebtedness and Consolidated Net Worth, each as of such date,
which sum shall include (without duplication) the aggregate redemption value of
Trust Preferred Securities issued by the Borrower or any Subsidiary; provided
that for any date of determination occurring prior to the Reorganization Date,
the definitions of the capitalized terms used in this definition shall read as
if "the Borrower" were substituted for "PXRE Group."
"Lien" shall mean any mortgage, pledge, hypothecation, assignment,
security interest, lien (statutory or otherwise), preference, priority, charge
or other encumbrance of any nature,
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whether voluntary or involuntary, including, without limitation, the interest of
any vendor or lessor under any conditional sale agreement, title retention
agreement, capital lease or any other lease or arrangement having substantially
the same effect as any of the foregoing.
"Lloyd's" shall mean the Society of Lloyd's of London, the Council of
Lloyd's of London, or any other Person similarly associated with Lloyd's of
London.
"Loans" shall have the meaning given to such term in Section 2.1.
"Margin Stock" shall have the meaning given to such term in
Regulation U.
"Material Adverse Change" shall mean a material adverse change in the
condition (financial or otherwise), operations, business, properties or assets
of PXRE Group and its Subsidiaries, taken as a whole; it being understood,
however, that the events occurring during the third fiscal quarter of 1998
described in the Borrower's Form 10-Q filed on November 12, 1998 do not
constitute, either individually or in the aggregate, a Material Adverse Change.
"Material Adverse Effect" shall mean a material adverse effect upon (i)
the condition (financial or otherwise), operations, business, properties or
assets of PXRE Group and its Subsidiaries, taken as a whole, (ii) the ability of
the Borrower, the Guarantors or any Subsidiary to perform its obligations under
this Agreement or any of the other Credit Documents to which it is a party or
(iii) the legality, validity or enforceability of this Agreement or any of the
other Credit Documents or the rights and remedies of the Agent and the Lenders
hereunder and thereunder.
"Material Contract" shall have the meaning given to such term in
Section 4.18.
"Material Insurance Subsidiary" shall mean any Insurance Subsidiary
that is a Material Subsidiary.
"Material Subsidiary" shall mean each of (i) PXRE Reinsurance, (ii)
Transnational Insurance, (iii) PXRE Bermuda, (iv) PXRE Barbados, (v) at the
relevant time of determination, any Subsidiary having (after the elimination of
intercompany accounts) (y) in the case of a non-Insurance Subsidiary, (A) assets
constituting at least ten percent (10%) of the total assets of PXRE Group and
its Subsidiaries on a consolidated basis, (B) revenues for the four quarters
most recently ended constituting at least ten percent (10%) of the total
revenues of PXRE Group and its Subsidiaries on a consolidated basis, or (C) Net
Income for the four quarters most recently ended constituting at least ten
percent (10%) of the Consolidated Net Income of PXRE Group and its Subsidiaries,
in each case determined in accordance with GAAP as of the date of the GAAP
financial statements of PXRE Group and all its Subsidiaries most recently
delivered under Section 5.1 prior to such time (or, with regard to
determinations at any time prior to the initial delivery of financial statements
under Section 5.1, as of the date of the most recent financial statements
referred to in Section 4.11(a)), or (z) in the case of an Insurance Subsidiary,
(A) assets constituting at least ten percent (10%) of the aggregate assets of
all the Borrower's Insurance Subsidiaries, or (B) Gross Written Premiums for the
four quarters most recently ended
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<PAGE>
constituting at least ten percent (10%) of the aggregate Gross Written Premiums
(without duplication) of all the Borrower's Insurance Subsidiaries, in each case
determined in accordance with SAP as of the date of the statutory financial
statements most recently delivered under Section 5.2 prior to such time (or,
with regard to determinations at any time prior to the initial delivery of
financial statements under Section 5.2, as of the date of the most recent
financial statements referred to in Section 4.11(e)) and (vi) any Subsidiary
that has one of the foregoing as a Subsidiary.
"Maturity Date" shall mean March 31, 2005.
"Moody's" shall mean Moody's Investors Service, Inc., its successors
and assigns.
"Mortgage Backed Securities" shall mean investment securities
representing any undivided interest or participation in, or which are secured
by, a pool of loans secured by mortgages or deeds of trust.
"Multiemployer Plan" shall mean any "multiemployer plan" within the
meaning of Section 4001(a)(3) of ERISA to which the Borrower or any ERISA
Affiliate makes, is making or is obligated to make contributions or has made or
been obligated to make contributions.
"NAIC" shall mean the National Association of Insurance Commissioners
and any successor thereto.
"Net Amount Recoverable from Reinsurers" shall mean, as to any
Insurance Subsidiary, as of any time, the amount as shown on Schedule F - Part
3, column 13 of the Annual Statement of such Insurance Subsidiary, or an amount
determined in a consistent manner as of any date other than one as of which an
Annual Statement is prepared.
"Net Cash Flow" shall mean, for any Person for any period, (i) the
aggregate Net Income of such Person for such period, plus (ii) the sum of
depreciation expense, amortization (whether positive or negative) of intangible
assets and other non-cash expenses, losses and charges reducing income, in each
case to the extent taken into account in the calculation of such Net Income for
such period, minus (iii) the sum of capital expenditures and all non-cash gains
and other non-cash items taken into account in determining such Net Income for
such period, plus (iv) any increase during such period in deferred taxes, minus
(v) any decrease during such period in deferred taxes; provided that with
respect to PXRE Group, Net Cash Flow shall not include the Net Income of any
Subsidiary except to the extent of cash dividends actually paid to PXRE Group
during such period.
"Net Cash Proceeds" shall mean, in the case of any Asset Disposition,
Hybrid Securities Issuance or Debt Issuance, the aggregate cash payments
received by PXRE Group and its Subsidiaries less reasonable and customary fees
and expenses (including underwriting discounts and commissions) incurred by PXRE
Group and its Subsidiaries in connection therewith.
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"Net Income" shall mean, with respect to any Person for any period, the
net income (or loss), after extraordinary items, taxes and all other items of
expense and income of such person for such period, determined in accordance with
GAAP.
"Net Tax Sharing Payments" shall mean, for any period, (i) the
aggregate (without duplication) of all payments made or to be made to the
Borrower by its Subsidiaries pursuant to tax sharing or tax allocation
agreements or arrangements or otherwise in respect of taxable income realized
during such period, minus (ii) the aggregate (without duplication) of all
foreign, federal, state or local income, franchise and other tax payments made
or to be made by the Borrower in respect of taxable income realized during such
period and any payments made or to be made by the Borrower during such period
pursuant to such tax sharing or tax allocation agreement or arrangement. For
purposes of the Fixed Charge Coverage Ratio, if the amount in clause (ii)
exceeds the amount in clause (i) hereof, the result shall be expressed as a
negative amount.
"Notes" shall mean the promissory notes of the Borrower in
substantially the form of Exhibit A, together with any amendments, modifications
and supplements thereto, substitutions therefor and restatements thereof.
"Notice of Borrowing" shall have the meaning given to such term
in Section 2.2(b).
"Notice of Conversion/Continuation" shall have the meaning given
to such term in Section 2.11(b).
"Obligations" shall mean all principal of and interest (including, to
the greatest extent permitted by law, post-petition interest) on the Loans and
all fees, expenses, indemnities and other obligations owing, due or payable at
any time by the Borrower to the Agent, any Lender or any other Person entitled
thereto, under this Agreement or any of the other Credit Documents.
"Old Credit Agreement" shall have the meaning given to such term in the
Recitals to this Agreement.
"PAC I" shall mean a planned amortization class bond which is a tranche
or class of CMO or REMIC that is retired according to a predetermined
amortization schedule independent of the prepayment rate on the underlying
collateral and which has the highest level of protection within the pool against
prepayment or extension.
"PBGC" shall mean the Pension Benefit Guaranty Corporation and any
successor thereto.
"PXRE Bermuda" shall mean PXRE Reinsurance Ltd., a corporation
organized under the laws of Bermuda and a Wholly-Owned Subsidiary of PXRE Group
as of the date hereof.
"PXRE Barbados" shall mean PXRE (Barbados) Ltd., a corporation
organized under the laws of Barbados and a Wholly-Owned Subsidiary of PXRE Group
as of the date hereof.
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"PXRE Group" shall mean PXRE Group Ltd., a corporation organized under
the laws of Bermuda and the indirect parent holding company of the Borrower.
"PXRE Ltd." shall mean PXRE Limited, a corporation organized under the
laws of the United Kingdom and a Wholly Owned Subsidiary of PXRE Reinsurance as
of the date hereof.
"PXRE Reinsurance" shall mean PXRE Reinsurance Company, a Connecticut
insurance company and a Wholly Owned Subsidiary of the Borrower as of the date
hereof.
"PXRE Syndicate" shall mean any syndicate operating in the Lloyd's
insurance Market in which PXRE Ltd. participates or is a member, including, as
of the date hereof and without limitation, PG Butler Non-Marine Syndicate 1224.
"Participant" shall have the meaning given to such term in
Section 11.7(d).
"Permitted Acquisition" shall mean (a) any Acquisition with respect to
which all of the following conditions are satisfied: (i) each business acquired
shall be within the permitted lines of business described in Section 7.8, (ii)
any Capital Stock given as consideration in connection therewith shall be
Capital Stock of PXRE Group, (iii) in the case of an Acquisition involving the
acquisition of control of Capital Stock of any Person, immediately after giving
effect to such Acquisition such Person (or the surviving Person, if the
Acquisition is effected through a merger or consolidation) shall be PXRE Group
or a Wholly Owned Subsidiary, and (iv) all of the conditions and requirements of
Sections 5.9 applicable to such Acquisition are satisfied; or (b) any other
Acquisition to which the Required Lenders (or the Agent on their behalf) shall
have given their prior written consent (which consent may be in their sole
discretion and may be given subject to such additional terms and conditions as
the Required Lenders shall establish) and with respect to which all of the
conditions and requirements set forth in this definition and in Section 5.9, and
in or pursuant to any such consent, have been satisfied or waived in writing by
the Required Lenders (or the Agent on their behalf).
"Permitted CMOs and Mortgage Backed Securities" shall mean (i) mortgage
participation certificates issued by the Federal Home Loan Mortgage Corporation,
(ii) mortgage backed securities issued by the Federal National Mortgage
Association, (iii) securities guaranteed by the Government National Mortgage
Association, and (iv) other securities and certificates representing
participations in any CMO or REMIC which are PAC I's or which have comparable
priority in respect of the repayment thereof.
"Permitted Liens" shall have the meaning given to such term in
Section 7.3.
"Person" shall mean any corporation, association, joint venture,
partnership, limited liability company, organization, business, individual,
trust, government or agency or political subdivision thereof or any other legal
entity.
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"Plan" shall mean any "employee pension benefit plan" within the
meaning of Section 3(2) of ERISA that is subject to the provisions of Title IV
of ERISA (other than a Multiemployer Plan) and to which PXRE Group or any ERISA
Affiliate may have any liability.
"Pro Forma Balance Sheets" shall have the meaning given to such term in
Section 4.11(b).
"Prohibited Transaction" shall mean any transaction described in (i)
Section 406 of ERISA that is not exempt by reason of Section 408 of ERISA or by
reason of a Department of Labor prohibited transaction individual or class
exemption or (ii) Section 4975(c) of the Internal Revenue Code that is not
exempt by reason of Section 4975(c)(2) or 4975(d) of the Internal Revenue Code.
"Projections" shall have the meaning given to such term in
Section 4.11(c).
"Quarterly Statement" shall mean, with respect to any Insurance
Subsidiary for any fiscal quarter, the quarterly financial statements of such
Insurance Subsidiary as required to be filed with the Insurance Regulatory
Authority of its jurisdiction of domicile, together with all exhibits,
schedules, certificates and actuarial opinions required to be filed or delivered
therewith.
"REMIC" shall mean a real estate mortgage investment conduit.
"Register" shall have the meaning given to such term in
Section 11.7(b).
"Regulations D, T, U and X" shall mean Regulations D, T, U and X,
respectively, of the Federal Reserve Board, and any successor regulations.
"Reinsurance Agreement" shall mean any agreement, contract, treaty,
certificate or other arrangement whereby any Insurance Subsidiary agrees to
transfer, cede or retrocede to another insurer or reinsurer all or part of the
liability assumed or assets held by such Insurance Subsidiary under a policy or
policies of insurance issued by such Insurance Subsidiary or under a reinsurance
agreement assumed by such Insurance Subsidiary.
"Reinsurance Premiums Ceded" shall mean, for any Insurance Subsidiary,
for any period, the amount as shown on Schedule F -Part 3, column 1 of the
Annual Statement of such Insurance Subsidiary, or an amount determined in a
manner consistent for any period other than one for which an Annual Statement is
prepared.
"Reorganization" shall mean the merger of PXRE Merger Corp. into the
Borrower as contemplated by the Reorganization Documents.
"Reorganization Date" shall mean the date upon which the Reorganization
is consummated and all the conditions set forth in Section 3.4 have been
satisfied or waived in accordance herewith.
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"Reorganization Documents" shall mean, collectively, the Form S-4
registration statement of PXRE Group, including the joint proxy statement,
prospectus forming a part thereof, the merger agreement annexed thereto and all
other agreements, instruments, certificates and documents executed and delivered
in connection with the foregoing.
"Reportable Event" shall mean (i) any "reportable event" within the
meaning of Section 4043(c) of ERISA for which the 30-day notice under Section
4043(a) of ERISA has not been waived by the PBGC (including any failure to meet
the minimum funding standard of, or timely make any required installment under,
Section 412 of the Internal Revenue Code or Section 302 of ERISA, regardless of
the issuance of any waivers in accordance with Section 412(d) of the Internal
Revenue Code), (ii) any such "reportable event" subject to advance notice to the
PBGC under Section 4043(b)(3) of ERISA, (iii) any application for a funding
waiver or an extension of any amortization period pursuant to Section 412 of the
Internal Revenue Code, and (iv) a cessation of operations described in Section
4062(e) of ERISA.
"Required Lenders" shall mean the Lenders holding outstanding Loans and
Unutilized Commitments (or, after the termination of the Commitments,
outstanding Loans) representing more than fifty-one percent (51%) of the
aggregate at such time of all outstanding Loans and Unutilized Commitments (or,
after the termination of the Commitments, the aggregate at such time of all
outstanding Loans).
"Requirement of Law" shall mean, with respect to any Person, the
charter, articles or certificate of organization or incorporation and bylaws or
other organizational or governing documents of such Person, and any statute,
law, treaty, rule, regulation, order, decree, writ, injunction or determination
of any arbitrator or court or other Governmental Authority, in each case
applicable to or binding upon such Person or any of its property or to which
such Person or any of its property is subject or otherwise pertaining to any or
all of the transactions contemplated by this Agreement and the other Credit
Documents.
"Reserve Requirement" shall mean, with respect to any Interest Period,
the reserve percentage (expressed as a decimal) in effect from time to time
during such Interest Period, as provided by the Federal Reserve Board, applied
for determining the maximum reserve requirements (including, without limitation,
basic, supplemental, marginal and emergency reserves) applicable to First Union
under Regulation D with respect to "Eurocurrency liabilities" within the meaning
of Regulation D, or under any similar or successor regulation with respect to
Eurocurrency liabilities or Eurocurrency funding.
"Responsible Officer" shall mean the president, chief executive
officer, chief financial officer, or any other Financial Officer of the Borrower
and the Guarantors, and any executive officer, other officer or similar official
thereof responsible for the administration of the obligations of the Borrower
and the Guarantors in respect of this Agreement.
"Reverse Repurchase Agreement" shall mean, as to any Person, an
agreement pursuant to which such Person sells securities to another Person (the
"Counterparty") and agrees to repurchase such securities at a described or
specified date and price, provided, however, that
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<PAGE>
"Reverse Repurchase Agreements" shall not include any agreement pursuant to
which such Person lends securities pursuant to a securities lending arrangement
to a Counterparty who collateralizes such borrowing with cash, Cash Equivalents,
letters of credit or other collateral acceptable to the Required Lenders, and
agrees to return such securities to such Person at a described or specified
date.
"SAP" shall mean, with respect to any Insurance Subsidiary, the
statutory accounting practices prescribed or permitted by the relevant Insurance
Regulatory Authority of its state of domicile, consistently applied and
maintained and in conformity with those used in the preparation of the most
recent statutory financial statements described in Section 4.11(e) (except where
changes are required by the relevant Insurance Regulatory Authority).
"Securities Act" shall mean the Securities Act of 1933, as amended from
time to time, and any successor statute, and all rules and regulations from time
to time promulgated thereunder.
"Standard & Poor's" shall mean Standard & Poor's Rating Services, a
division of McGraw-Hill Companies, and its successors and assigns.
"Statutory Capital and Surplus" shall mean, as to any Insurance
Subsidiary, as of any date, the sum (without duplication) of the total amounts
shown (i) with respect to an Insurance Subsidiary not legally domiciled in the
United States, the shareholders' equity of such Insurance Subsidiary as
determined in accordance with GAAP (without regard to the requirements of FAS
115), and (ii) with respect to any other Insurance Subsidiary, on line 25,
column 1, page 3 of the Annual Statement of such Insurance Subsidiary, or the
sum of amounts determined in a consistent manner for any date other than one as
of which an Annual Statement is prepared.
"Subordinated Indebtedness" shall have the meaning given to such
term in Section 7.2.
"Subsidiary" shall mean, with respect to any Person, any corporation or
other Person of which more than fifty percent (50%) of the outstanding Capital
Stock having ordinary voting power to elect a majority of the board of
directors, board of managers or other governing body of such Person, is at the
time, directly or indirectly, owned or controlled by such Person and one or more
of its other Subsidiaries or a combination thereof (irrespective of whether, at
the time, securities of any other class or classes of any such corporation or
other Person shall or might have voting power by reason of the happening of any
contingency). When used without reference to a parent entity, the term
"Subsidiary" shall be deemed to refer to a Subsidiary of PXRE Group.
"Surplus Relief Reinsurance Agreement" shall mean any agreement or
other arrangement whereby any Insurance Subsidiary cedes business under a
reinsurance agreement that would not be considered a transaction that
indemnifies an insurer against loss or liability relating to insurance risk, as
determined in accordance with Statement of Financial Accounting Standards No.
113 ("FAS 113") issued by the Financial Accounting Standards Board (without
regard to the effective date of FAS 113).
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"Termination Date" shall mean the Maturity Date or such earlier date of
termination of the Commitments pursuant to Section 2.5 or Section 8.2.
"Transnational Insurance" shall mean Transnational Insurance Company, a
Connecticut corporation and a Wholly Owned Subsidiary of PXRE Reinsurance as of
the date hereof.
"Trust Preferred Securities" shall mean the preferred securities issued
by PXRE Capital Trust I and any other preferred securities offered by a Delaware
statutory business trust of which the Borrower or any of its Subsidiaries is the
grantor, the proceeds of which securities are or have been used principally to
purchase debentures issued by the Borrower or an Affiliate of the Borrower or
such Subsidiary.
"Type" shall have the meaning given to such term in Section 2.2(a).
"Unfunded Pension Liability" shall mean, with respect to any Plan or
Multiemployer Plan, the excess of its benefit liabilities under Section
4001(a)(16) of ERISA over the current value of its assets, determined in
accordance with the applicable assumptions used for funding under Section 412 of
the Code for the applicable plan year.
"Unutilized Commitment" shall mean, with respect to any Lender at any
time, such Lender's Commitment at such time less the aggregate principal amount
of all Loans made by such Lender that are outstanding at such time.
"Wholly Owned" shall mean, with respect to any Subsidiary of any
Person, that 100% of the outstanding Capital Stock of such Subsidiary is owned,
directly or indirectly, by such Person.
1.2 Accounting Terms. Except as specifically provided otherwise in this
Agreement, all accounting terms used herein that are not specifically defined
shall have the meanings customarily given them in accordance with GAAP (or, to
the extent that such terms apply solely to any Insurance Subsidiary or if
otherwise expressly required, SAP). All accounting determinations and
computations under this Agreement that refer to PXRE Group or to PXRE Group and
its Subsidiaries shall, with respect to any dates or periods occurring prior to
the Reorganization Date, be deemed to mean the Borrower or the Borrower and its
Subsidiaries, as the case may be. Notwithstanding anything to the contrary in
this Agreement, for purposes of calculation of the financial covenants set forth
in Article VI, all accounting determinations and computations hereunder shall be
made in accordance with GAAP or SAP, as applicable, as in effect as of the date
of the Old Credit Agreement applied on a basis consistent with the application
used in preparing the most recent financial statements of PXRE Group (or, if
none, the Borrower) referred to in Sections 4.11(a) and 4.11(e). In the event
that any changes in GAAP or SAP after such date are required to be applied to
PXRE Group or the Borrower and would affect the computation of the financial
covenants contained in Article VI, such changes shall be followed only from and
after the date this Agreement shall have been amended to take into account any
such changes. References to amounts on particular exhibits, schedules, lines,
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pages and columns of any Annual Statement or Quarterly Statement are based on
the format promulgated by the NAIC for the 1997 Annual Statements and Quarterly
Statements. In the event such format is changed in future years so that
different information is contained in such items or they no longer exist, or if
the Annual Statement or Quarterly Statement is replaced by the NAIC or by any
Insurance Regulatory Authority after the date hereof such that different forms
of financial statements are required to be furnished by the Insurance
Subsidiaries in lieu thereof, such references shall be to information consistent
with that reported in the referenced item in the 1997 Annual Statements or
Quarterly Statements, as the case may be.
1.3 Other Terms; Construction. Unless otherwise specified or unless the
context otherwise requires, all references herein to sections, annexes,
schedules and exhibits are references to sections, annexes, schedules and
exhibits in and to this Agreement, and all terms defined in this Agreement shall
have the defined meanings when used in any other Credit Document or any
certificate or other document made or delivered pursuant hereto.
ARTICLE II
AMOUNT AND TERMS OF THE LOANS
2.1 Commitments. Each Lender severally agrees, subject to and on the
terms and conditions of this Agreement, to make loans (each, a "Loan," and
collectively, the "Loans") to the Borrower, from time to time on any Business
Day during the period from and including the Closing Date to but not including
the Termination Date, in an aggregate principal amount at any time outstanding
not greater than its Commitment at such time, provided that no Borrowing of
Loans shall be made if, immediately after giving effect thereto, the aggregate
principal amount of Loans outstanding at such time would exceed the aggregate
Commitments at such time. Subject to and on the terms and conditions of this
Agreement, the Borrower may borrow, repay and reborrow Loans.
2.2 Borrowings. (a) The Loans shall, at the option of the Borrower and
subject to the terms and conditions of this Agreement, be either Base Rate Loans
or LIBOR Loans (each, a "Type" of Loan), provided that all Loans comprising the
same Borrowing shall, unless otherwise specifically provided herein, be of the
same Type.
(b) In order to make a Borrowing (other than Borrowings involving
continuations or conversions of outstanding Loans, which shall be made pursuant
to Section 2.11), the Borrower will give the Agent written notice of the
proposed Borrowing not later than 11:00 a.m., Charlotte time, three (3) Business
Days prior to each Borrowing to be comprised of LIBOR Loans and one (1) Business
Day prior to each Borrowing to be comprised of Base Rate Loans; provided,
however, that requests for the Borrowing of any Loans to be made on the Closing
Date may, at the discretion of the Agent, be given later than the times
specified hereinabove. Each such notice (each, a "Notice of Borrowing") shall be
irrevocable, shall be given in the form of Exhibit B-1 and shall specify (1) the
aggregate principal amount and initial Type of the Loans to be made pursuant to
such Borrowing, (2) in the case of a Borrowing of LIBOR Loans, the initial
Interest
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Period to be applicable thereto, and (3) the requested date of such
Borrowing (the "Borrowing Date"), which shall be a Business Day. Upon its
receipt of a Notice of Borrowing, the Agent will promptly notify each Lender of
the proposed Borrowing. Notwithstanding anything to the contrary contained
herein:
(i) the aggregate principal amount of each Borrowing
comprised of Base Rate Loans shall not be less than $1,000,000 or, if
greater, an integral multiple of $500,000 in excess thereof (or, if
less, in the amount of the aggregate Unutilized Commitments), and the
aggregate principal amount of each Borrowing comprised of LIBOR Loans
shall not be less than $3,000,000 or, if greater, an integral multiple
of $1,000,000 in excess thereof;
(ii) if the Borrower shall have failed to designate the Type
of Loans comprising a Borrowing, the Borrower shall be deemed to have
requested a Borrowing comprised of Base Rate Loans; and
(iii) if the Borrower shall have failed to select the duration
of the Interest Period to be applicable to any Borrowing of LIBOR
Loans, then the Borrower shall be deemed to have selected an Interest
Period with a duration of one month.
(c) Not later than 1:00 p.m., Charlotte time, on the requested
Borrowing Date, each Lender will make available to the Agent at its office
referred to in Section 11.5 (or at such other location as the Agent may
designate) an amount, in Dollars and in immediately available funds, equal to
the amount of the Loan to be made by such Lender. To the extent the Lenders have
made such amounts available to the Agent as provided hereinabove, the Agent will
make the aggregate of such amounts available to the Borrower in accordance with
Section 2.3(a) and in like funds as received by the Agent.
2.3 Disbursements; Funding Reliance; Domicile of Loans. (a) The
Borrower hereby authorizes the Agent to disburse the proceeds of each Borrowing
in accordance with the terms of any written instructions from any of the
Authorized Officers, provided that the Agent shall not be obligated under any
circumstances to forward amounts to any account not listed in an Account
Designation Letter. The Borrower may at any time deliver to the Agent an Account
Designation Letter listing any additional accounts or deleting any accounts
listed in a previous Account Designation Letter.
(b) Unless the Agent has received, prior to 1:00 p.m., Charlotte time,
on the relevant Borrowing Date, written notice from a Lender that such Lender
will not make available to the Agent such Lender's ratable portion of the
relevant Borrowing, the Agent may assume that such Lender has made such portion
available to the Agent in immediately available funds on such Borrowing Date in
accordance with the applicable provisions of Section 2.2, and the Agent may, in
reliance upon such assumption, but shall not be obligated to, make a
corresponding amount available to the Borrower on such Borrowing Date. If and to
the extent that such Lender shall not have made such portion available to the
Agent, and the Agent shall have made such corresponding amount available to the
Borrower, such Lender, on the one hand, and the Borrower, on the other,
severally agree to pay to the Agent forthwith on demand such
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<PAGE>
corresponding amount, together with interest thereon for each day from the date
such amount is made available to the Borrower until the date such amount is
repaid to the Agent, (i) in the case of such Lender, at the Federal Funds Rate,
and (ii) in the case of the Borrower, at the rate of interest applicable at such
time to the Type of Loans comprising such Borrowing, as determined under the
provisions of Section 2.8. If such Lender shall repay to the Agent such
corresponding amount, such amount shall constitute such Lender's Loan as part of
such Borrowing for purposes of this Agreement. The failure of any Lender to make
any Loan required to be made by it as part of any Borrowing shall not relieve
any other Lender of its obligation, if any, hereunder to make its Loan as part
of such Borrowing, but no Lender shall be responsible for the failure of any
other Lender to make the Loan to be made by such other Lender as part of any
Borrowing.
(c) Each Lender may, at its option, make and maintain any Loan at, to
or for the account of any of its Lending Offices, provided that any exercise of
such option shall not affect the obligation of the Borrower to repay such Loan
to or for the account of such Lender in accordance with the terms of this
Agreement.
2.4 Notes. (a) The Loans made by each Lender shall be evidenced by a
Note appropriately completed in substantially the form of Exhibit A.
(b) Each Note issued to a Lender shall (i) be executed by the Borrower,
(ii) be payable to the order of such Lender, (iii) be dated as of the Closing
Date (or, in the case of a Note issued after the Closing Date, dated the
effective date of such Lender's becoming a party to the Old Credit Agreement or
this Agreement, as the case may be, (iv) be in a stated principal amount equal
to such Lender's Commitment, (v) bear interest in accordance with the provisions
of Section 2.8, as the same may be applicable from time to time to the Loans
made by such Lender, and (vi) be entitled to all of the benefits of this
Agreement and the other Credit Documents and subject to the provisions hereof
and thereof.
(c) Each Lender will record on its internal records the amount and Type
of each Loan made by it and each payment received by it in respect thereof and
will, in the event of any transfer of any of its Notes, either endorse on the
reverse side thereof or on a schedule attached thereto (or any continuation
thereof) the outstanding principal amount and Type of the Loans evidenced
thereby as of the date of transfer or provide such information on a schedule to
the Assignment and Acceptance relating to such transfer; provided, however, that
the failure of any Lender to make any such recordation or provide any such
information, or any error therein, shall not affect the Borrower's obligations
under this Agreement or the Notes.
2.5 Termination and Reduction of Commitments. (a) The Commitments
shall be automatically and permanently terminated on the Termination Date.
(b) On each date set forth below, the aggregate Commitments shall be
automatically and permanently reduced by the amounts set forth below opposite
such date:
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<PAGE>
<TABLE>
<CAPTION>
Date Amount
---- ------
<S> <C>
March 31, 2000 $10,000,000
March 31, 2001 $10,000,000
March 31, 2002 $10,000,000
March 31, 2003 $10,000,000
March 31, 2004 $10,000,000
March 31, 2005 $25,000,000
</TABLE>
or, if less, the remaining balance of the aggregate Commitments.
(c) The Commitments shall, on the day two (2) Business Days after the
receipt of Net Cash Proceeds therefor, be automatically and permanently reduced
by the amount of the Net Cash Proceeds with respect to any Asset Disposition,
Hybrid Securities Issuance or Debt Issuance. Promptly upon (and in any event not
later than two (2) Business Days after) its receipt of such Net Cash Proceeds,
PXRE Group will deliver to the Agent a certificate signed by a Financial Officer
of PXRE Group in form and substance satisfactory to the Agent and setting forth
the calculation of such Net Cash Proceeds. Notwithstanding the foregoing,
nothing in this subsection shall be deemed to permit any Asset Disposition not
expressly permitted under Section 7.4.
(d) At any time and from time to time after the date hereof, upon not
less than five (5) Business Days' prior written notice to the Agent, the
Borrower may terminate in whole or reduce in part the aggregate Unutilized
Commitments, provided that any such partial reduction shall be in an aggregate
amount of not less than $1,000,000 or, if greater, an integral multiple thereof.
The amount of any termination or reduction made under this subsection (d) may
not thereafter be reinstated.
(e) Each reduction of the Commitments pursuant to this Section shall be
applied ratably among the Lenders according to their respective Commitments.
Each reduction of the Commitments pursuant to subsections (c) or (d) shall be
applied to reduce the scheduled reductions of the Commitments set forth in
subsection (b) pro rata among the remaining scheduled reductions.
2.6 Mandatory Payments and Prepayments. (a) Except to the extent due or
paid sooner pursuant to the provisions of this Agreement, the aggregate
outstanding principal of the Loans shall be due and payable in full on the
Maturity Date.
(b) In the event that, at any time (including, without limitation, in
the event of a mandatory reduction of the Commitments pursuant to Section
2.5(c)), the aggregate principal amount of Loans outstanding at such time shall
exceed the aggregate Commitments at such time (after giving effect to any
concurrent termination or reduction thereof), the Borrower will immediately
prepay the outstanding principal amount of the Loans in the amount of such
excess.
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(c) Each prepayment of the Loans made pursuant to Section 2.6(b) above
shall be applied first to prepay all Base Rate Loans before any LIBOR Loans are
prepaid. Each payment or prepayment pursuant to the provisions of this Section
2.6 shall be applied ratably among the Lenders holding the Loans being prepaid,
in proportion to the principal amount held by each.
(d) Each payment or prepayment of a LIBOR Loan made pursuant to the
provisions of this Section on a day other than the last day of the Interest
Period applicable thereto shall be made together with all amounts required under
Section 2.18 to be paid as a consequence thereof; provided, however, at the
request of the Borrower, any amount of any such prepayment of a LIBOR Loan
required by Section 2.6(b) as a result of the application of Section 2.5(c)
shall be deposited in a Prepayment Account (as defined below). The Agent shall
apply any cash deposited in the Prepayment Account to prepay LIBOR Loans on the
day interest on such LIBOR Loans would be due and payable under Section 2.8(c)
(or, at the direction of the Borrower, on any earlier date) until all
outstanding Loans have been prepaid or until all the allocable cash on deposit
in the Prepayment Account has been exhausted. Until the cash deposited in the
Prepayment Account is so applied, the applicable LIBOR Loan shall be deemed not
to have been repaid and shall continue to accrue interest pursuant to Section
2.8. For purposes of this Agreement, the term "Prepayment Account" shall mean an
account established by the Borrower with the Agent and over which the Agent
shall have exclusive dominion and control, including the exclusive right of
withdrawal for application in accordance with this paragraph. The Agent will, at
the request of the Borrower, invest amounts on deposit in the Prepayment Account
in Cash Equivalents that mature prior to the last day of the applicable Interest
Periods of the LIBOR Loans to be prepaid; provided, however, that (i) the Agent
shall not be required to make any investment that, in its sole judgment, would
require or cause the Agent to be in, or would result in any, violation of any
law, statute, rule or regulation, (ii) such Cash Equivalents shall be subjected
to a first priority perfected security interest in favor of the Agent and (iii)
if an Event of Default shall have occurred and be continuing, the selection of
such investments shall be in the sole discretion of the Agent. The Borrower
shall indemnify the Agent for any losses relating to the investments so that the
amount available to prepay LIBOR Loans on the last day of the applicable
Interest Period is not less than the amount that would have been available had
no investments been made pursuant thereto. Other than any interest or profits
earned on such investments, the Prepayment Accounts shall not bear interest.
Interest or profits, if any, on the investments in any Prepayment Account shall
accumulate in such Prepayment Account and shall be applied on the day when
prepayment is made (x) first, to pay interest due and payable under Section
2.8(c), (y) second, as a further prepayment of the applicable LIBOR Loan, and
(z) to the extent of any excess, at the direction of the Borrower. If the
maturity of the Loans has been accelerated pursuant to Section 8.2, the Agent
may, in its sole discretion, apply all amounts on deposit in the Prepayment
Account to satisfy any of the Obligations. The Borrower hereby pledges and
assigns to the Agent, for its benefit and the benefit of the Lenders, each
Prepayment Account established hereunder to secure the Obligations.
2.7 Voluntary Prepayments. (a) At any time and from time to time, the
Borrower shall have the right to prepay the Loans, in whole or in part, without
premium or penalty (except as provided in clause (iii) below), upon written
notice given to the Agent not later than 11:00 a.m., Charlotte time, three (3)
Business Days prior to each intended prepayment of LIBOR Loans
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and one (1) Business Day prior to each intended prepayment of Base Rate Loans,
provided that (i) each partial prepayment shall be in an aggregate principal
amount of not less than $1,000,000 or, if greater, an integral multiple of
$500,000 in excess thereof, (ii) no partial prepayment of LIBOR Loans made
pursuant to any single Borrowing shall reduce the aggregate outstanding
principal amount of the remaining LIBOR Loans under such Borrowing to less than
$3,000,000 or to any greater amount not an integral multiple of $1,000,000 in
excess thereof, and (iii) unless made together with all amounts required under
Section 2.18 to be paid as a consequence of such prepayment, a prepayment of a
LIBOR Loan may be made only on the last day of the Interest Period applicable
thereto. Each such notice shall specify the proposed date of such prepayment and
the aggregate principal amount and Type of the Loans to be prepaid (and, in the
case of LIBOR Loans, the Interest Period of the Borrowing pursuant to which
made), and shall be irrevocable and shall bind the Borrower to make such
prepayment on the terms specified therein. Loans prepaid pursuant to this
subsection (a) may be reborrowed, subject to the terms and conditions of this
Agreement.
(b) Each prepayment of the Loans made pursuant to subsection (a) above
shall be applied ratably among the Lenders holding the Loans being prepaid, in
proportion to the principal amount held by each.
2.8 Interest. (a) The Borrower will pay interest in respect of the
unpaid principal amount of each Loan, from the date of Borrowing thereof until
such principal amount shall be paid in full, (i) at the Adjusted Base Rate, as
in effect from time to time during such periods as such Loan is a Base Rate
Loan, and (ii) at the Adjusted LIBOR Rate, as in effect from time to time during
such periods as such Loan is a LIBOR Loan.
(b) Upon the occurrence and during the continuance of an Event of
Default as the result of failure by the Borrower to pay any principal of or
interest on any Loan, any fees or other amount hereunder when due (whether at
maturity, pursuant to acceleration or otherwise), and (at the election of the
Required Lenders) upon the occurrence and during the continuance of any other
Event of Default, all outstanding principal amounts of the Loans and, to the
greatest extent permitted by law, all interest accrued on the Loans and all
other accrued and outstanding fees and other amounts hereunder, shall bear
interest at a rate per annum equal to the interest rate applicable from time to
time thereafter to such Loans (whether the Adjusted Base Rate or the Adjusted
LIBOR Rate) plus 2% (or, in the case of fees and other amounts, at the Adjusted
Base Rate plus 2%), and, in each case, such default interest shall be payable on
demand. To the greatest extent permitted by law, interest shall continue to
accrue after the filing by or against the Borrower of any petition seeking any
relief in bankruptcy or under any law pertaining to insolvency or debtor relief.
(c) Accrued (and theretofore unpaid) interest shall be payable as
follows:
(i) in respect of each Base Rate Loan (including any Base
Rate Loan or portion thereof paid or prepaid pursuant to the provisions
of Section 2.6, except as provided hereinbelow), in arrears on the last
Business Day of each calendar quarter, beginning with the first such
day to occur after the Closing Date; provided, that in the
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<PAGE>
event the Loans are repaid or prepaid in full and the Commitments have
been terminated, then accrued interest in respect of all Base Rate
Loans shall be payable together with such repayment or prepayment on
the date thereof;
(ii) in respect of each LIBOR Loan (including any LIBOR Loan
or portion thereof paid or prepaid pursuant to the provisions of
Section 2.6, except as provided hereinbelow), in arrears (y) on the
last Business Day of the Interest Period applicable thereto (subject to
the provisions of clause (iv) in Section 2.10) and (z) in addition, in
the case of a LIBOR Loan with an Interest Period having a duration of
six months or longer, on each date on which interest would have been
payable under clause (y) above had successive Interest Period of three
months' duration been applicable to such LIBOR Loan; provided that in
the event all LIBOR Loans made pursuant to a single Borrowing are
repaid or prepaid in full, then accrued interest in respect of such
LIBOR Loans shall be payable together with such repayment or prepayment
on the date thereof; and
(iii) in respect of any Loan, at maturity (whether pursuant to
acceleration or otherwise) and, after maturity, on demand.
(d) Nothing contained in this Agreement or in any other Credit Document
shall be deemed to establish or require the payment of interest to any Lender at
a rate in excess of the maximum rate permitted by applicable law. If the amount
of interest payable for the account of any Lender on any interest payment date
would exceed the maximum amount permitted by applicable law to be charged by
such Lender, the amount of interest payable for its account on such interest
payment date shall be automatically reduced to such maximum permissible amount.
In the event of any such reduction affecting any Lender, if from time to time
thereafter the amount of interest payable for the account of such Lender on any
interest payment date would be less than the maximum amount permitted by
applicable law to be charged by such Lender, then the amount of interest payable
for its account on such subsequent interest payment date shall be automatically
increased to such maximum permissible amount, provided that at no time shall the
aggregate amount by which interest paid for the account of any Lender has been
increased pursuant to this sentence exceed the aggregate amount by which
interest paid for its account has theretofore been reduced pursuant to the
previous sentence.
(e) The Agent shall promptly notify the Borrower and the Lenders upon
determining the interest rate for each Borrowing of LIBOR Loans after its
receipt of the relevant Notice of Borrowing or Notice of
Conversion/Continuation, and upon each change in the Base Rate; provided,
however, that the failure of the Agent to provide the Borrower or the Lenders
with any such notice shall neither affect any obligations of the Borrower or the
Lenders hereunder nor result in any liability on the part of the Agent to the
Borrower or any Lender. Each such determination (including each determination of
the Reserve Requirement) shall, absent manifest error, be conclusive and binding
on all parties hereto.
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2.9 Fees. The Borrower agrees to pay:
(a) To the Agent, for the account of the Lenders, an amendment fee of
0.15% of their respective Commitments, due and payable on the date of execution
of this Agreement by the Required Lenders.
(b) To the Agent, for the account of each Lender, a commitment fee for
each calendar quarter (or portion thereof) for the period from the date of this
Agreement to the Termination Date, at a per annum rate equal to the Applicable
Margin Percentage in effect for such fee from time to time during such quarter,
on such Lender's ratable share (based on the proportion that its Commitment
bears to the aggregate Commitments) of the average daily aggregate Unutilized
Commitments, payable in arrears (i) on the last Business Day of each calendar
quarter, beginning with the first such day to occur after the Closing Date, and
(ii) on the Termination Date; and
(c) To the Agent, for its own account, the annual administrative fee
described in paragraph (3) of the Fee Letter and, to First Union Capital Markets
Corp., the fee described in the Amendment Fee Letter, on the terms, in the
amounts and at the times set forth therein.
2.10 Interest Periods. Concurrently with the giving of a Notice of
Borrowing or Notice of Conversion/Continuation in respect of any Borrowing
comprised of Base Rate Loans to be converted into, or LIBOR Loans to be
continued as, LIBOR Loans, the Borrower shall have the right to elect, pursuant
to such notice, the interest period (each, an "Interest Period") to be
applicable to such LIBOR Loans, which Interest Period shall, at the option of
the Borrower, be a one, two, three or six-month period; provided, however, that:
(i) all LIBOR Loans comprising a single Borrowing shall at
all times have the same Interest Period;
(ii) the initial Interest Period for any LIBOR Loan shall
commence on the date of the Borrowing of such LIBOR Loan (including the
date of any continuation of, or conversion into, such LIBOR Loan), and
each successive Interest Period applicable to such LIBOR Loan shall
commence on the day on which the next preceding Interest Period
applicable thereto expires;
(iii) LIBOR Loans may not be outstanding under more than seven
(7) separate Interest Periods at any one time (for which purpose
Interest Periods shall be deemed to be separate even if they are
coterminous);
(iv) if any Interest Period otherwise would expire on a day
that is not a Business Day, such Interest Period shall expire on the
next succeeding Business Day unless such next succeeding Business Day
falls in another calendar month, in which case such Interest Period
shall expire on the next preceding Business Day;
(v) the Borrower may not select any Interest Period that
expires after the Maturity Date;
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(vi) no Interest Period may be selected that would end after a
scheduled date for repayment of principal of the Loans occurring on or
after the first day of such Interest Period unless, immediately after
giving effect to such selection, the aggregate principal amount of
Loans that are Base Rate Loans or that have Interest Periods expiring
on or before such principal repayment date equals or exceeds the
principal amount required to be paid on such principal repayment date;
and
(vii) if any Interest Period begins on a day for which there is
no numerically corresponding day in the calendar month during which
such Interest Period would otherwise expire, such Interest Period shall
expire on the last Business Day of such calendar month.
2.11 Conversions and Continuations. (a) The Borrower shall have the
right, on any Business Day occurring on or after the Closing Date, to elect (i)
to convert all or a portion of the outstanding principal amount of any Base Rate
Loans into LIBOR Loans, or to convert any LIBOR Loans the Interest Periods for
which end on the same day into Base Rate Loans, or (ii) to continue all or a
portion of the outstanding principal amount of any LIBOR Loans the Interest
Periods for which end on the same day for an additional Interest Period,
provided that (x) any such conversion of LIBOR Loans into Base Rate Loans shall
involve an aggregate principal amount of not less than $1,000,000 or, if
greater, an integral multiple of $500,000 in excess thereof; any such conversion
of Base Rate Loans into, or continuation of, LIBOR Loans shall involve an
aggregate principal amount of not less than $3,000,000 or, if greater, an
integral multiple of $1,000,000 in excess thereof; and no partial conversion of
LIBOR Loans made pursuant to a single Borrowing shall reduce the outstanding
principal amount of such LIBOR Loans to less than $3,000,000 or to any greater
amount not an integral multiple of $1,000,000 in excess thereof, (y) except as
otherwise provided in Section 2.16(d), LIBOR Loans may be converted into Base
Rate Loans only on the last day of the Interest Period applicable thereto (and,
in any event, if a LIBOR Loan is converted into a Base Rate Loan on any day
other than the last day of the Interest Period applicable thereto, the Borrower
will pay, upon such conversion, all amounts required under Section 2.18 to be
paid as a consequence thereof), and (z) no conversion of Base Rate Loans into
LIBOR Loans or continuation of LIBOR Loans shall be permitted during the
continuance of a Default or Event of Default.
(b) The Borrower shall make each such election by giving the Agent
written notice not later than 11:00 a.m., Charlotte time, three (3) Business
Days prior to the intended effective date of any conversion of Base Rate Loans
into, or continuation of, LIBOR Loans and one (1) Business Day prior to the
intended effective date of any conversion of LIBOR Loans into Base Rate Loans.
Each such notice (each, a "Notice of Conversion/Continuation") shall be
irrevocable, shall be given in the form of Exhibit B-2 and shall specify (x) the
date of such conversion or continuation (which shall be a Business Day), (y) in
the case of a conversion into, or a continuation of, LIBOR Loans, the Interest
Period to be applicable thereto, and (z) the aggregate amount and Type of the
Loans being converted or continued. Upon the receipt of a Notice of
Conversion/Continuation, the Agent will promptly notify each Lender of the
proposed conversion or continuation. In the event that the Borrower shall fail
to deliver a Notice of
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Conversion/Continuation as provided herein with respect to any outstanding LIBOR
Loans, such LIBOR Loans shall automatically be converted to Base Rate Loans upon
the expiration of the then current Interest Period applicable thereto (unless
repaid pursuant to the terms hereof). In the event the Borrower shall have
failed to select in a Notice of Conversion/Continuation the duration of the
Interest Period to be applicable to any conversion into, or continuation of,
LIBOR Loans, then the Borrower shall be deemed to have selected an Interest
Period with a duration of one month.
2.12 Method of Payments; Computations. (a) All payments by the Borrower
hereunder shall be made without setoff, counterclaim or other defense, in
Dollars and in immediately available funds to the Agent, for the account of the
Lenders entitled to such payment (except as otherwise expressly provided herein
as to payments required to be made directly to the Issuing Lender and the
Lenders) at its office referred to in Section 11.5, prior to 12:00 noon,
Charlotte time, on the date payment is due. Any payment made as required
hereinabove, but after 12:00 noon, Charlotte time, shall be deemed to have been
made on the next succeeding Business Day. If any payment falls due on a day that
is not a Business Day, then such due date shall be extended to the next
succeeding Business Day (except that in the case of LIBOR Loans to which the
provisions of clause (iv) in Section 2.10 are applicable, such due date shall be
the next preceding Business Day), and such extension of time shall then be
included in the computation of payment of interest, fees or other applicable
amounts.
(b) The Agent will distribute to the Lenders like amounts relating to
payments made to the Agent for the account of the Lenders as follows: (i) if the
payment is received by 12:00 noon, Charlotte time, in immediately available
funds, the Agent will make available to each relevant Lender on the same date,
by wire transfer of immediately available funds, such Lender's ratable share of
such payment (based on the percentage that the amount of the relevant payment
owing to such Lender bears to the total amount of such payment owing to all of
the relevant Lenders), and (ii) if such payment is received after 12:00 noon,
Charlotte time, or in other than immediately available funds, the Agent will
make available to each such Lender its ratable share of such payment by wire
transfer of immediately available funds on the next succeeding Business Day (or
in the case of uncollected funds, as soon as practicable after collected). If
the Agent shall not have made a required distribution to the appropriate Lenders
as required hereinabove after receiving a payment for the account of such
Lenders, the Agent will pay to each such Lender, on demand, its ratable share of
such payment with interest thereon at the Federal Funds Rate for each day from
the date such amount was required to be disbursed by the Agent until the date
repaid to such Lender.
(c) Unless the Agent shall have received written notice from the
Borrower prior to the date on which any payment is due to any Lender hereunder
that such payment will not be made in full, the Agent may assume that the
Borrower has made such payment in full to the Agent on such date, and the Agent
may, in reliance on such assumption, but shall not be obligated to, cause to be
distributed to such Lender on such due date an amount equal to the amount then
due to such Lender. If and to the extent the Borrower shall not have so made
such payment in full to the Agent, and without limiting the obligation of the
Borrower to make such payment in accordance with the terms hereof, such Lender
shall repay to the Agent forthwith on demand such amount so
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distributed to such Lender, together with interest thereon for each day from the
date such amount is so distributed to such Lender until the date repaid to the
Agent, at the Federal Funds Rate.
(d) All computations of interest and fees hereunder (including
computations of the Reserve Requirement) shall be made on the basis of a year
consisting of 365 or 366 days, as the case may be (in the case of interest on
Base Rate Loans), or 360 days (in all other instances), and the actual number of
days (including the first day, but excluding the last day) elapsed.
2.13 Recovery of Payments. (a) The Borrower agrees that to the extent
the Borrower makes a payment or payments to or for the account of the Agent or
any Lender, which payment or payments or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside or required to
be repaid to a trustee, receiver or any other party under any bankruptcy,
insolvency or similar state or federal law, common law or equitable cause, then,
to the extent of such payment or repayment, the Obligation intended to be
satisfied shall be revived and continued in full force and effect as if such
payment had not been received.
(b) If any amounts distributed by the Agent to any Lender are
subsequently returned or repaid by the Agent to the Borrower or its
representative or successor in interest, whether by court order or by settlement
approved by the Lender in question, such Lender will, promptly upon receipt of
notice thereof from the Agent, pay the Agent such amount. If any such amounts
are recovered by the Agent from the Borrower or its representative or successor
in interest, the Agent will redistribute such amounts to the Lenders on the same
basis as such amounts were originally distributed.
2.14 Use of Proceeds. The proceeds of the Loans shall be used to
finance Permitted Acquisitions and stock repurchases, to provide capital to the
Insurance Subsidiaries and for working capital and general corporate purposes
including, without limitation, financing the operations of PXRE Group, PXRE
Bermuda, and PXRE Barbados pursuant to the limitations set forth herein, and in
accordance with the terms and provisions of this Agreement (provided that
Permitted Acquisitions may only be effected in accordance with the terms and
provisions of this Agreement, including without limitation the provisions set
forth in Section 5.9).
2.15 Pro Rata Treatment. (a) All fundings, continuations and
conversions of Loans shall be made by the Lenders pro rata on the basis of their
respective Commitments (in the case of the initial funding of Loans pursuant to
Section 2.2) or on the basis of their respective outstanding Loans (in the case
of continuations and conversions of Loans pursuant to Section 2.11, and
additionally in all cases in the event the Commitments have expired or have been
terminated), as the case may be from time to time. All payments on account of
principal of or interest on any Loans, fees or any other Obligations owing to or
for the account of any one or more Lenders shall be apportioned ratably among
such Lenders in proportion to the amounts of such principal, interest, fees or
other Obligations owed to them respectively.
(b) Each Lender agrees that if it shall receive any amount hereunder
(whether by voluntary payment, realization upon security, exercise of the right
of setoff or banker's lien, counterclaim or cross action, or otherwise, other
than pursuant to Section 11.7) applicable to the
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payment of any of the Obligations that exceeds its ratable share (according to
the proportion of (i) the amount of such Obligations due and payable to such
Lender at such time to (ii) the aggregate amount of such Obligations due and
payable to all Lenders at such time) of payments on account of such Obligations
then or therewith obtained by all the Lenders to which such payments are
required to have been made, such Lender shall forthwith purchase from the other
Lenders such participations in such Obligations as shall be necessary to cause
such purchasing Lender to share the excess payment or other recovery ratably
with each of them; provided, however, that if all or any portion of such excess
payment is thereafter recovered from such purchasing Lender, such purchase from
each such other Lender shall be rescinded and each such other Lender shall repay
to the purchasing Lender the purchase price to the extent of such recovery,
together with an amount equal to such other Lender's ratable share (according to
the proportion of (i) the amount of such other Lender's required repayment to
(ii) the total amount so recovered from the purchasing Lender) of any interest
or other amount paid or payable by the purchasing Lender in respect of the total
amount so recovered. The Borrower agrees that any Lender so purchasing a
participation from another Lender pursuant to the provisions of this subsection
may, to the fullest extent permitted by law, exercise any and all rights of
payment (including, without limitation, setoff, banker's lien or counterclaim)
with respect to such participation as fully as if such participant were a direct
creditor of the Borrower in the amount of such participation. If under any
applicable bankruptcy, insolvency or similar law, any Lender receives a secured
claim in lieu of a setoff to which this subsection applies, such Lender shall,
to the extent practicable, exercise its rights in respect of such secured claim
in a manner consistent with the rights of the Lenders entitled under this
subsection to share in the benefits of any recovery on such secured claim.
2.16 Increased Costs; Change in Circumstances; Illegality; etc. (a) If,
at any time after the date hereof and from time to time, the introduction of or
any change in any applicable law, rule or regulation or in the interpretation or
administration thereof by any Governmental Authority charged with the
interpretation or administration thereof, or compliance by any Lender with any
guideline or request from any such Governmental Authority (whether or not having
the force of law), shall (i) subject such Lender to any tax or other charge, or
change the basis of taxation of payments to such Lender, in respect of any of
its LIBOR Loans or any other amounts payable hereunder or its obligation to
make, fund or maintain any LIBOR Loans (other than any change in the rate or
basis of tax on the overall net income, or a franchise tax imposed in lieu of a
tax on the overall net income, of such Lender or its applicable Lending Office),
(ii) impose, modify or deem applicable any reserve, special deposit or similar
requirement (other than as a result of any change in the Reserve Requirement)
against assets of, deposits with or for the account of, or credit extended by,
such Lender or its applicable Lending Office, or (iii) impose on such Lender or
its applicable Lending Office any other condition, and the result of any of the
foregoing shall be to increase the cost to such Lender of making or maintaining
any LIBOR Loans or to reduce the amount of any sum received or receivable by
such Lender hereunder, the Borrower will, promptly upon demand therefor by such
Lender, pay to such Lender such additional amounts as shall compensate such
Lender for such increase in costs or reduction in return.
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(b) If, at any time after the date hereof and from time to time, any
Lender shall have reasonably determined that the introduction of or any change
in any applicable law, rule or regulation regarding capital adequacy or in the
interpretation or administration thereof by any Governmental Authority charged
with the interpretation or administration thereof, or compliance by such Lender
with any guideline or request from any such Governmental Authority (whether or
not having the force of law), has or would have the effect, as a consequence of
such Lender's Commitment or Loans hereunder, of reducing the rate of return on
the capital of such Lender or any Person controlling such Lender to a level
below that which such Lender or controlling Person could have achieved but for
such introduction, change or compliance (taking into account such Lender's or
controlling Person's policies with respect to capital adequacy), the Borrower
will, promptly upon demand therefor by such Lender therefor, pay to such Lender
such additional amounts as will compensate such Lender or controlling Person for
such reduction in return.
(c) If, on or prior to the first day of any Interest Period, (y) the
Agent shall have determined that adequate and reasonable means do not exist for
ascertaining the applicable LIBOR Rate for such Interest Period or (z) the Agent
shall have received written notice from the Required Lenders of their
determination that the rate of interest referred to in the definition of "LIBOR
Rate" upon the basis of which the Adjusted LIBOR Rate for LIBOR Loans for such
Interest Period is to be determined will not adequately and fairly reflect the
cost to such Lenders of making or maintaining LIBOR Loans during such Interest
Period, the Agent will forthwith so notify the Borrower and the Lenders. Upon
such notice, (i) all then outstanding LIBOR Loans shall automatically, on the
expiration date of the respective Interest Periods applicable thereto (unless
then repaid in full), be converted into Base Rate Loans, (ii) the obligation of
the Lenders to make, to convert Base Rate Loans into, or to continue, LIBOR
Loans shall be suspended (including pursuant to the Borrowing to which such
Interest Period applies), and (iii) any Notice of Borrowing or Notice of
Conversion/Continuation given at any time thereafter with respect to LIBOR Loans
shall be deemed to be a request for Base Rate Loans, in each case until the
Agent or the Required Lenders, as the case may be, shall have determined that
the circumstances giving rise to such suspension no longer exist (and the
Required Lenders, if making such determination, shall have so notified the
Agent), and the Agent shall have so notified the Borrower and the Lenders.
(d) Notwithstanding any other provision in this Agreement, if, at any
time after the date hereof and from time to time, any Lender shall have
determined in good faith that the introduction of or any change in any
applicable law, rule or regulation or in the interpretation or administration
thereof by any Governmental Authority charged with the interpretation or
administration thereof, or compliance with any guideline or request from any
such Governmental Authority (whether or not having the force of law), has or
would have the effect of making it unlawful for such Lender to make or to
continue to make or maintain LIBOR Loans, such Lender will forthwith so notify
the Agent and the Borrower. Upon such notice, (i) each of such Lender's then
outstanding LIBOR Loans shall automatically, on the expiration date of the
respective Interest Period applicable thereto (or, to the extent any such LIBOR
Loan may not lawfully be maintained as a LIBOR Loan until such expiration date,
upon such notice), be converted into a Base Rate Loan, (ii) the obligation of
such Lender to make, to convert Base Rate Loans into, or
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to continue, LIBOR Loans shall be suspended (including pursuant to any Borrowing
for which the Agent has received a Notice of Borrowing but for which the
Borrowing Date has not arrived), and (iii) any Notice of Borrowing or Notice of
Conversion/Continuation given at any time thereafter with respect to LIBOR Loans
shall, as to such Lender, be deemed to be a request for a Base Rate Loan, in
each case until such Lender shall have determined that the circumstances giving
rise to such suspension no longer exist and shall have so notified the Agent,
and the Agent shall have so notified the Borrower.
(e) Determinations by the Agent or any Lender for purposes of this
Section of any increased costs, reduction in return, market contingencies,
illegality or any other matter shall, absent manifest error, be conclusive,
provided that such determinations are made in good faith. No failure by the
Agent or any Lender at any time to demand payment of any amounts payable under
this Section shall constitute a waiver of its right to demand payment of any
additional amounts arising at any subsequent time. Nothing in this Section shall
require or be construed to require the Borrower to pay any interest, fees, costs
or other amounts in excess of that permitted by applicable law.
2.17 Taxes. (a) Any and all payments by the Borrower hereunder or under
any Note shall be made, in accordance with the terms hereof and thereof, free
and clear of and without deduction for any and all present or future taxes,
levies, imposts, deductions, charges or withholdings, and all liabilities with
respect thereto, other than net income and franchise taxes imposed on the Agent
or any Lender by the United States or by the jurisdiction under the laws of
which the Agent or such Lender, as the case may be, is organized or in which its
principal office or any country in which it receives payments hereunder or (in
the case of a Lender) its applicable Lending Office is located, or by any
political subdivision or taxing authority thereof, or by any other jurisdiction
as a result of a connection of the Lender or Agent to such jurisdiction other
than a connection resulting from entering into or enforcing this Agreement (all
such nonexcluded taxes, levies, imposts, deductions, charges, withholdings and
liabilities being hereinafter referred to as "Taxes"). If the Borrower shall be
required by law to deduct any Taxes from or in respect of any sum payable
hereunder or under any Note to the Agent or any Lender, (i) the sum payable
shall be increased as may be necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section), the Agent or such Lender, as the case may be, receives an amount
equal to the sum it would have received had no such deductions been made, (ii)
the Borrower will make such deductions, (iii) the Borrower will pay the full
amount deducted to the relevant taxation authority or other authority in
accordance with applicable law and (iv) the Borrower will deliver to the Agent
or such Lender, as the case may be, evidence of such payment.
(b) The Borrower will indemnify the Agent and each Lender for the full
amount of Taxes (including, without limitation, any Taxes imposed by any
jurisdiction on amounts payable under this Section) paid by the Agent or such
Lender, as the case may be, and any liability (including penalties, interest and
expenses) arising therefrom or with respect thereto, whether or not such Taxes
were correctly or legally asserted. This indemnification shall be made within 30
days from the date the Agent or such Lender, as the case may be, makes written
demand therefor.
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(c) Each of the Agent and the Lenders agrees that if it subsequently
recovers, or receives a permanent net tax benefit (as opposed to a mere timing
difference benefit) with respect to, any amount of Taxes (i) previously paid by
it and as to which it has been indemnified by or on behalf of the Borrower or
(ii) previously deducted by the Borrower (including, without limitation, any
Taxes deducted from any additional sums payable under clause (i) of subsection
(a) above), the Agent or such Lender, as the case may be, shall reimburse the
Borrower to the extent of the amount of any such recovery or permanent net tax
benefit (but only to the extent of indemnity payments made, or additional
amounts paid, by or on behalf of the Borrower under this Section with respect to
the Taxes giving rise to such recovery or tax benefit); provided, however, that
the Borrower, upon the request of the Agent or such Lender, agrees to repay to
the Agent or such Lender, as the case may be, the amount paid over to the
Borrower (together with any penalties, interest or other charges), in the event
the Agent or such Lender is required to repay such amount to the relevant taxing
authority or other Governmental Authority. The determination by the Agent or any
Lender of the amount of any such recovery or permanent net tax benefit shall, in
the absence of manifest error, be conclusive and binding.
(d) If any Lender is incorporated or organized under the laws of a
jurisdiction other than the United States of America or any state thereof (a
"Non-U.S. Lender"), such Non-U.S. Lender will deliver to each of the Agent and
the Borrower, on or prior to the Closing Date (or, in the case of a Non-U.S.
Lender that becomes a party to this Agreement as a result of an assignment or
execution of a Joinder Agreement after the Closing Date, on the effective date
of such assignment or execution), (i) in the case of a Non-U.S. Lender that is a
"bank" for purposes of Section 881(c)(3)(A) of the Internal Revenue Code, a
properly completed Internal Revenue Service Form 4224 or 1001, as applicable (or
successor forms), certifying that such Non-U.S. Lender is entitled to an
exemption from United States federal income taxes in connection with payments
under this Agreement or any of the Notes, together with a properly completed
Internal Revenue Service Form W-8 or W-9, as applicable (or successor forms),
and (ii) in the case of a Non-U.S. Lender that is not a "bank" for purposes of
Section 881(c)(3)(A) of the Internal Revenue Code, a certificate in form and
substance reasonably satisfactory to the Agent and the Borrower and to the
effect that (x) such Non-U.S. Lender is not a "bank" for purposes of Section
881(c)(3)(A) of the Internal Revenue Code, is not subject to regulatory or other
legal requirements as a bank in any jurisdiction, and has not been treated as a
bank for purposes of any tax, securities law or other filing or submission made
to any governmental authority, any application made to a rating agency or
qualification for any exemption from any tax, securities law or other legal
requirements, (y) is not a 10-percent shareholder for purposes of Section
881(c)(3)(B) of the Internal Revenue Code and (z) is not a controlled foreign
corporation receiving interest from a related person for purposes of Section
881(c)(3)(C) of the Internal Revenue Code, together with a properly completed
Internal Revenue Service Form W-8 (or a successor form). Each such Non-U.S.
Lender further agrees to deliver to each of the Agent and the Borrower an
additional copy of each such relevant form on or before the date that such form
expires or becomes obsolete or after the occurrence of any event (including a
change in its applicable Lending Office) requiring a change in the most recent
forms so delivered by it, in each case certifying that such Non-U.S. Lender is
entitled to an exemption from withholding or deduction for or on account of
United States federal income taxes in connection with payments under this
Agreement or any of the Notes, unless an event (including, without limitation,
any
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change in treaty, law or regulation) has occurred prior to the date on which
any such delivery would otherwise be required, which event renders all such
forms inapplicable or the exemption to which such forms relate unavailable and
such Non-U.S. Lender notifies the Agent and the Borrower that it is not entitled
to receive payments without deduction or withholding of United States federal
income taxes. Each such Non-U.S. Lender will promptly notify the Agent and the
Borrower of any changes in circumstances that would modify or render invalid any
claimed exemption or reduction.
(e) If any of the forms or other documentation required under
subsection (d) above are not delivered to the Borrower and the Agent as therein
required, then the Borrower and the Agent may withhold from any interest payment
owed to such Lender not providing such forms or other documentation an amount
equivalent to the applicable withholding tax, and the Borrower shall not be
required to indemnify or make an increased payment to the Agent or Lender
pursuant to subsection (a) or (b) hereunder.
2.18 Compensation. The Borrower will compensate each Lender upon demand
for all 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 Lender to fund or maintain LIBOR
Loans) that such Lender may incur or sustain (i) if for any reason (other than a
default by such Lender) a Borrowing or continuation of, or conversion into, a
LIBOR Loan does not occur on a date specified therefor in a Notice of Borrowing
or Notice of Conversion/Continuation, (ii) if any repayment, prepayment or
conversion of any LIBOR Loan occurs on a date other than the last day of an
Interest Period applicable thereto (including as a consequence of acceleration
of the maturity of the Loans pursuant to Section 8.2), (iii) if any prepayment
of any LIBOR Loan is not made on any date specified in a notice of prepayment
given by the Borrower or (iv) as a consequence of any other failure by the
Borrower to make any payments with respect to any LIBOR Loan when due hereunder.
Calculation of all amounts payable to a Lender under this Section shall be made
as though such Lender had actually funded its relevant LIBOR Loan through the
purchase of a Eurodollar deposit bearing interest at the LIBOR Rate in an amount
equal to the amount of such LIBOR Loan, having a maturity comparable to the
relevant Interest Period; provided, however, that each Lender may fund its LIBOR
Loans in any manner it sees fit and the foregoing assumption shall be utilized
only for the calculation of amounts payable under this Section. Determinations
by any Lender for purposes of this Section of any such losses, expenses or
liabilities shall, absent manifest error, be conclusive, provided that such
determinations are made in good faith.
ARTICLE III
CONDITIONS OF BORROWING
3.1 [Intentionally left blank]
3.2 [Intentionally left blank]
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3.3 Conditions of All Borrowings. The obligation of any Lender to make
any Loans hereunder is subject to the satisfaction of the following conditions
precedent on the relevant Borrowing Date:
(a) The Agent shall have received a Notice of Borrowing in accordance
with Section 2.2(b);
(b) Each of the representations and warranties contained in Article IV
and in the other Credit Documents shall be true and correct on and as of such
Borrowing Date with the same effect as if made on and as of such date, both
immediately before and after giving effect to the Loans to be made on such date
(except to the extent any such representation or warranty is expressly stated to
have been made as of a specific date, in which case such representation or
warranty shall be true and correct in all material respects as of such date);
and
(c) No Default or Event of Default shall have occurred and be
continuing on such date, both immediately before and after giving effect to the
Loans to be made on such date.
Each giving of a Notice of Borrowing, and the consummation of each
Borrowing, shall be deemed to constitute a representation by the Borrower that
the statements contained in subsections (b) and (c) above are true, both as of
the date of such notice and as of the relevant Borrowing Date.
3.4 Conditions of effectiveness of this Agreement and conditions of
Borrowings after the Reorganization. The effectiveness of this Agreement, the
amendment of the Old Credit Agreement hereby, the approval of the Reorganization
by the Required Lenders, and the obligation of each Lender to make Loans after
the consummation of the Reorganization are subject to the satisfaction, or
waiver in accordance with Section 11.6 hereof, of the conditions precedent of
Section 3.3 and the following conditions precedent:
(a) The Agent shall have received a certificate, signed by the
president, the chief executive officer or the chief financial officer of each
Credit Party, in form and substance satisfactory to the Agent, certifying that
(i) all representations and warranties of such Credit Party contained in this
Agreement and the other Credit Documents are true and correct as of the
Reorganization Date, immediately after giving effect to the consummation of the
Reorganization (except to the extent any such representation or warranty is
expressly stated to have been made as of a specific date, in which case such
representation or warranty shall be true and correct in all material respects as
of such date), (ii) all representations and warranties of the Borrower contained
in the Old Credit Agreement and the other Credit Documents are true and correct
as of the Reorganization Date, immediately before giving effect to the
consummation of the Reorganization (except to the extent any such representation
or warranty is expressly stated to have been made as of a specific date, in
which case such representation or warranty shall be true and correct in all
material respects as of such date), (iii) before giving effect to the
Reorganization, no Default or Event of Default has occurred and is continuing
under the Old Credit Agreement, (iv) after giving effect to the Reorganization,
no Default or Event of Default has occurred and is continuing under this
Agreement, (v) no Material Adverse Change has
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occurred since December 31, 1998, and there exists no event, condition or state
of facts that could reasonably be expected to result in a Material Adverse
Change, and (vi) all conditions to the extensions of credit hereunder set forth
in this Section and Section 3.3 have been satisfied or waived as required
hereunder.
(b) The Agent shall have received certificates of the secretary, clerk
or director, as applicable, or an assistant secretary, clerk or director, as
applicable, of each Credit Party, in form and substance satisfactory to the
Agent and dated no earlier than thirty (30) days prior to the Reorganization
Date, certifying (i) that attached thereto is a true and complete copy of the
articles or certificate of incorporation and all amendments thereto of such
Credit Party, as the case may be, certified, to the extent applicable, as of a
recent date by the Secretary of State (or comparable Governmental Authority) of
its jurisdiction or organization, and that the same has not been amended since
the date of such certification, (ii) that attached thereto is a true and
complete copy of the bylaws, operating agreement or memorandum and articles of
association, as applicable, of such Credit Party, as the case may be, as then in
effect and as in effect at all times from the date on which the resolutions
referred to in clause (iii) below were adopted to and including the date of such
certificate, (iii) that attached thereto is a true and complete copy of
resolutions adopted by the board of directors (or duly authorized committee
thereof) of such Credit Party authorizing the execution, delivery and
performance of this Agreement, the other Credit Documents to which it is a
party, and the Reorganization Documents to which it is a party, and (iv) as to
the incumbency and genuineness of the signature of each officer of such Credit
Party executing this Agreement or any of the other Credit Documents.
(c) The Credit Parties shall have duly complied with and performed all
of their agreements and conditions set forth in the Reorganization Documents
required to be complied with or performed by it on or prior to the
Reorganization Date thereunder and the Agent shall have received evidence
satisfactory to it that the Reorganization shall have been consummated in
compliance with all applicable Requirements of Law.
(d) The Agent shall have received a Covenant Compliance Worksheet, duly
completed and certified by the chief financial officer or treasurer of PXRE
Group and the Borrower and in form and substance satisfactory to the Agent,
demonstrating PXRE Group's and Borrower's compliance with the financial
covenants set forth in Sections 6.1 through 6.4, determined on a pro forma basis
as of June 30, 1999, after giving effect to the consummation of the
Reorganization.
(e) The Reorganization Documents shall not have been amended, modified
and supplemented, nor any condition or provision thereof waived, other than as
approved by the Agent and the Required Lenders and shall be in full force and
effect.
(f) The Lenders shall have received, on or prior to the Reorganization
Date, a certificate as of a recent date of the good standing or existence of
each of the Credit Parties under the law of their respective state or country of
organization.
(g) All approvals, permits and consents of any Governmental Authorities
or other Person required in connection with the execution and delivery of this
Agreement, the other
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Credit Documents and the consummation of the Reorganization shall have been
obtained (without the imposition of conditions that are not reasonably
acceptable to the Agent and the Required Lenders), and all related filings, if
any, shall have been made, and all such approvals, permits, consents and filings
shall be in full force and effect and the Agent shall have received such copies
thereof as it shall have requested; all applicable waiting periods shall have
expired without any adverse action being taken by any Governmental Authority
having jurisdiction; and no action, proceeding, investigation, regulation or
legislation shall have been instituted, threatened or proposed before, and no
order, injunction or decree shall have been entered by, any court or other
Governmental Authority, in each case to enjoin, restrain or prohibit, to obtain
substantial damages in respect of, or that is otherwise related to or arises out
of, this Agreement, any of the other Credit Documents or the consummation of the
Reorganization, or that, in the opinion of the Agent and the Required Lenders,
would otherwise be reasonably likely to have a Material Adverse Effect.
(h) The Agent shall have received the favorable opinions of (i) Morgan,
Lewis & Bockius LLP, special counsel to the Borrower and the Guarantors, (ii)
Conyers Dill & Pearman, Bermuda counsel to PXRE Group and (iii) Chancery
Chambers, Barbados counsel to PXRE Barbados, in the form of Exhibits E-1, E-2
and E-3, dated as of the Reorganization Date.
(i) The Agent shall have received a Financial Condition Certificate,
together with the Pro Forma Balance Sheets and the Projections as described in
Sections 4.11(b) and 4.11(c), all of which shall be in form and substance
satisfactory to the Agent.
(j) The Borrower shall have paid the fees due and payable under
Sections 2.9(a) and (c).
(k) PXRE Bermuda shall have approved its investment policy in the form
of Schedule 7.5(b) and such investment policy as set forth in Schedule 7.5(b)
shall not have been materially amended, modified and supplemented, other than as
approved by the Agent and the Lenders.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
To induce the Agent and the Lenders to enter into this Agreement and to
induce the Lenders to extend the credit contemplated hereby, the Borrower and
the Guarantors each represent and warrant as set forth below (PXRE Group making
such representations and warranties as to itself and as to its Subsidiaries, the
Borrower as to itself and its Subsidiaries and PXRE Barbados making such
representations and warranties as to itself):
4.1 Corporate Organization and Power. Each of the Guarantors, the
Borrower and the Material Subsidiaries (i) is a corporation duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation, (ii) has the full corporate power and
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authority to execute, deliver and perform the Credit Documents and the
Reorganization Documents to which it is or will be a party, to own and hold its
property and to engage in its business as presently conducted, and (iii) is duly
qualified, licensed, admitted or approved to do business as a foreign
corporation and is in good standing in each jurisdiction where the nature of its
business or the ownership of its properties requires it to be so qualified,
except where the failure to be so qualified, licensed, admitted or approved
would not, individually or in the aggregate, be reasonably likely to have a
Material Adverse Effect.
4.2 Authorization; Enforceability. Each of the Borrower and the
Guarantors has taken, or on the date hereof will have taken, all necessary
corporate action to execute, deliver and perform each of the Credit Documents
and Reorganization Documents to which it is or will be a party, and has, or on
the date hereof (or any later date of execution and delivery) will have, validly
executed and delivered each of the Credit Documents to which it is or will be a
party. This Agreement constitutes, and each of the other Credit Documents upon
execution and delivery will constitute, the legal, valid and binding obligation
of the Borrower and the Guarantors enforceable against each of them in
accordance with their respective terms, except as enforceability may be limited
by bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally, by general equitable principles or by
principles of good faith and fair dealing.
4.3 No Violation. The execution, delivery and performance by each of
the Borrower and the Guarantors of this Agreement, the other Credit Documents
and the Reorganization Documents, and compliance by it with the terms hereof and
thereof, do not and will not (i) violate any provision of its certificate of
incorporation or bylaws or contravene any other material Requirement of Law
applicable to it, (ii) conflict with, result in a breach of or constitute (with
notice, lapse of time or both) a default under any indenture, agreement or other
instrument to which it is a party, by which it or any of its properties is bound
or to which it is subject, or (iii) result in or require the creation or
imposition of any Lien upon any of its properties or assets. No Subsidiary is a
party to any agreement or instrument or otherwise subject to any restriction or
encumbrance that restricts or limits its ability to make dividend payments or
other distributions in respect of its Capital Stock, to repay Indebtedness owed
to the Borrower, the Guarantors or any other Subsidiary, to make loans or
advances to the Borrower, the Guarantors or any other Subsidiary, or to transfer
any of its assets or properties to the Borrower, the Guarantors or any other
Subsidiary, in each case other than such restrictions or encumbrances existing
under or by reason of the Credit Documents or applicable Requirements of Law.
4.4 Governmental and Third-Party Authorization; Permits. (a) No
consent, approval, authorization or other action by, notice to, or registration
or filing with, any Governmental Authority or other Person is or will be
required as a condition to or otherwise in connection with the due execution,
delivery and performance by the Borrower and the Guarantors of this Agreement or
any of the other Credit Documents or Reorganization Documents or the legality,
validity or enforceability hereof or thereof, other than (i) consents,
authorizations and filings that have been (or on or prior to the Reorganization
Date will have been) made or obtained and that are (or on the Reorganization
Date will be) in full force and effect, which consents, authorizations and
filings are listed on Schedule 4.4, (ii) filings pursuant to the Exchange Act,
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which will be made as soon as practicable after the Reorganization Date, and
(iii) consents and filings the failure to obtain or make which would not,
individually or in the aggregate, have a Material Adverse Effect.
(b) Each of the Borrower, the Guarantors and their Subsidiaries has,
and is in good standing with respect to, all governmental approvals, licenses,
permits and authorizations necessary to conduct its business as presently
conducted and to own or lease and operate its properties, except for those the
failure to obtain which would not be reasonably likely, individually or in the
aggregate, to have a Material Adverse Effect.
(c) To the knowledge of the Borrower and the Guarantors, (i) no
license, permit or authorization to transact insurance and reinsurance business
is the subject of a proceeding for suspension, revocation or limitation or any
similar proceedings; (ii) there is no sustainable basis for such a suspension,
revocation or limitation; and (iii) no such suspension, revocation or limitation
is threatened by any relevant Insurance Regulatory Authority. No Material
Insurance Subsidiary transacts any insurance business, directly or indirectly,
in any jurisdiction other than those listed on Schedule 4.4, where such business
requires any license, permit or other authorization of an Insurance Regulatory
Authority of such jurisdiction.
4.5 Litigation. There are no actions, investigations, suits or
proceedings pending or, to the knowledge of the Borrower and the Guarantors,
threatened, at law, in equity or in arbitration, before any court, other
Governmental Authority or other Person, (i) against the Borrower or the
Guarantors or any of the Subsidiaries or against or affecting any of their
respective properties that would, if adversely determined, be reasonably likely
to have a Material Adverse Effect, other than actions, investigations, suits or
proceedings arising in the ordinary course of business of the Insurance
Subsidiaries for which reserves have been prudently estimated and set aside in
accordance with sound and standard industry practices; or (ii) with respect to
this Agreement, any of the other Credit Documents or the Reorganization.
4.6 Taxes. Each of the Borrower, the Guarantors and the Subsidiaries
has timely filed all federal, state and local tax returns and reports required
to be filed by it except where the failure to timely file would not,
individually or in the aggregate, have a Material Adverse Effect, and has paid
all taxes, assessments, fees and other charges levied upon it or upon its
properties that are shown thereon as due and payable, other than those that are
being contested in good faith and by proper proceedings and for which adequate
reserves have been established in accordance with GAAP. Such returns accurately
reflect in all material respects all liability for taxes of the Borrower, the
Guarantors and the Subsidiaries for the periods covered thereby. There is no
ongoing audit or examination or, to the knowledge of the Borrower and the
Guarantors, other investigation by any Governmental Authority of the tax
liability of the Borrower, the Guarantors, or any of their Subsidiaries, and
there is no unresolved claim by any Governmental Authority concerning the tax
liability of the Borrower, the Guarantors, or any of their Subsidiaries for any
period for which tax returns have been or were required to have been filed,
other than claims for which adequate reserves have been established in
accordance with GAAP. Neither the Borrower, the Guarantors nor any of the
Subsidiaries has waived or extended or has been requested to waive or extend the
statute of limitations relating to the payment of any taxes.
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4.7 Subsidiaries. Schedule 4.7 sets forth a list, as of the date
hereof, of all of the Subsidiaries of PXRE Group and, as to each such
Subsidiary, the percentage ownership (direct and indirect) of PXRE Group and, as
applicable, the Borrower, in each class of its capital stock and each direct
owner thereof and indicates in each case whether such Subsidiary is a Material
Subsidiary. Except for the shares of capital stock expressly indicated on
Schedule 4.7, there are no shares of capital stock, warrants, rights, options or
other equity securities, or other Capital Stock of any Subsidiary of PXRE Group
outstanding or reserved for any purpose. All outstanding shares of capital stock
of each Subsidiary of PXRE Group are duly and validly issued, fully paid and
nonassessable.
4.8 Full Disclosure. All factual information heretofore or
contemporaneously furnished to the Agent or any Lender in writing by or on
behalf of the Borrower, the Guarantors or any of the Subsidiaries for purposes
of or in connection with this Agreement, the Reorganization and the transactions
contemplated hereby is, and all other such factual information hereafter
furnished to the Agent or any Lender in writing by or on behalf of the Borrower,
the Guarantors or any of the Subsidiaries will be, true and accurate in all
material respects on the date as of which such information is dated or certified
(or, if such information has been amended or supplemented, on the date as of
which any such amendment or supplement is dated or certified) and, when all such
information is taken together, not made incomplete by omitting to state a
material fact necessary to make the statements contained therein, in light of
the circumstances under which such information was provided, not materially
misleading.
4.9 Margin Regulations. Neither the Borrower, the Guarantors nor any of
the Subsidiaries is engaged principally, or as one of its important activities,
in the business of extending credit for the purpose of purchasing or carrying
Margin Stock. No proceeds of the Loans will be used, directly or indirectly, to
purchase or carry any Margin Stock (except as expressly permitted under Section
7.6(a)(i)), to extend credit for such purpose or for any other purpose that
would violate Regulations T, U or X or any provision of the Exchange Act.
4.10 No Material Adverse Change. There has been no Material Adverse
Change since December 31, 1997, and there exists no event, condition or state of
facts that could reasonably be expected to result in a Material Adverse Change.
4.11 Financial Matters. (a) The Borrower has heretofore furnished to
the Agent copies of (i) the audited consolidated balance sheets of the Borrower
and its Subsidiaries as of December 31, 1998, 1997, and 1996, and the related
statements of income, cash flows and stockholders' equity for the fiscal years
then ended, together with the opinion of PriceWaterhouseCoopers LLP thereon, and
(ii) the unaudited consolidated balance sheets of the Borrower and its
Subsidiaries as of March 31, 1999 and June 30, 1999, and the related statements
of income, cash flows and stockholders' equity for the three- and six-month
periods then ended. Such financial statements have been prepared in accordance
with GAAP (subject, with respect to the unaudited financial statements, to the
absence of notes required by GAAP and to normal year-end adjustments) and
present fairly the financial condition of the Borrower and its Subsidiaries on a
consolidated basis as of the respective dates thereof and the consolidated
results
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of operations of the Borrower and its Subsidiaries for the respective periods
then ended. Except as fully reflected in (x) the most recent financial
statements referred to above and the notes thereto, (y) the financial statements
previously delivered pursuant to Section 5.1 of the Old Credit Agreement or this
Agreement, or (z) any Form 8-K filed by the Borrower with the Securities and
Exchange Commission and previously delivered by the Borrower to the Lenders,
there were, as of the date of the most recent financial statements described in
the immediately foregoing clause (x) or (y) or, if later, the date of the most
recently delivered Form 8-K, no material liabilities or obligations with respect
to the Borrower or any of its Subsidiaries of any nature whatsoever (whether
absolute, contingent or otherwise and whether or not due) that, individually or
in the aggregate, could reasonably be expected to have a Material Adverse
Effect, and since the date thereof neither the Borrower nor any Subsidiary has
incurred any liabilities or obligations that, individually or in the aggregate,
could reasonably be expected to have a Material Adverse Effect.
(b) Each of the unaudited pro forma balance sheets of the Borrower and
PXRE Group as of June 30, 1999, a copy of which has heretofore been delivered to
the Lenders, gives pro forma effect to the consummation of the Reorganization,
the Bermuda Reinsurance Agreements, and the payment of transaction fees and
expenses related to the foregoing, all as if such events had occurred on such
date (the "Pro Forma Balance Sheets"). Each Pro Forma Balance Sheet has been
prepared in accordance with GAAP (subject to the absence of footnotes required
by GAAP and subject to normal year-end adjustments) and, subject to stated
assumptions made in good faith and having a reasonable basis set forth therein,
presents fairly the financial condition of the Borrower and PXRE Group,
respectively, on an unaudited pro forma basis as of the date set forth therein
after giving effect to the consummation of the transactions described above.
(c) The Borrower has prepared, and has heretofore furnished to the
Lenders a copy of, annual projected balance sheets and statements of income and
cash flows of each of the Borrower and PXRE Group giving effect to the
Reorganization, the Bermuda Reinsurance Agreements, and the payment of
transaction fees and expenses related to the foregoing (the "Projections") for
the period beginning with the year ended December 31, 1999 and continuing
through December 31, 2005. In the opinion of management of PXRE Group and the
Borrower, the assumptions used in the preparation of the Projections were fair,
complete and reasonable when made and continue to be fair, complete and
reasonable as of the date hereof. The Projections have been prepared in good
faith by the executive and financial personnel of PXRE Group and the Borrower,
are complete and represent a reasonable estimate of the future performance and
financial condition of PXRE Group and the Borrower, respectively, subject to the
uncertainties and approximations inherent in any projections and the business of
PXRE Group and Borrowers.
(d) Each of PXRE Group and its Subsidiaries, after giving effect to the
consummation of the transactions contemplated hereby, (i) has capital sufficient
to carry on its businesses as conducted and as proposed to be conducted, (ii)
has assets with a fair saleable value, determined on a going concern basis, (y)
not less than the amount required to pay the probable liability on its existing
debts as they become absolute and matured and (z) greater than the total amount
of its liabilities (including identified contingent liabilities, valued at the
amount that can reasonably be
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expected to become absolute and matured), and (iii) does not intend to, and does
not believe that it will, incur debts or liabilities beyond its ability to pay
such debts and liabilities as they mature.
(e) The Borrower has heretofore furnished to the Agent copies of (i)
the Annual Statements of each of its Insurance Subsidiaries (other than PXRE
Ltd.) as of December 31, 1998, 1997 and 1996, and for the fiscal years then
ended, (ii) the Quarterly Statements of each of its Insurance Subsidiaries
(other than PXRE Ltd.) as of the end of the first two fiscal quarters of 1999,
and for the end of the fiscal quarters then ended, each as filed with the
relevant Insurance Regulatory Authority, and (iii) the annual report with
respect to PXRE Ltd. filed with Lloyd's (collectively, the "Historical Statutory
Statements"). The Historical Statutory Statements (including, without
limitation, the provisions made therein for investments and the valuation
thereof, reserves, policy and contract claims and statutory liabilities) have
been prepared in accordance with SAP where required (except as may be reflected
in the notes thereto and subject, with respect to the Quarterly Statements, to
the absence of notes required by SAP and to normal year-end adjustments), were
in compliance with applicable Requirements of Law when filed and present fairly
the financial condition of the respective Insurance Subsidiaries covered thereby
as of the respective dates thereof and the results of operations, changes in
capital and surplus and cash flow of the respective Insurance Subsidiaries
covered thereby for the respective periods then ended. Except for liabilities
and obligations disclosed or provided for in the Historical Statutory Statements
(including, without limitation, reserves, policy and contract claims and
statutory liabilities), no Insurance Subsidiary had, as of the date of its
respective Historical Statutory Statements, any material liabilities or
obligations of any nature whatsoever (whether absolute, contingent or otherwise
and whether or not due) that, in accordance with SAP (or, with respect to PXRE
Ltd., the requirements of Lloyd's), would have been required to have been
disclosed or provided for in such Historical Statutory Statements. All books of
account of each Insurance Subsidiary fully and fairly disclose all of its
material transactions, properties, assets, investments, liabilities and
obligations, are in its possession and are true, correct and complete in all
material respects.
4.12 Ownership of Properties. Each of the Borrower, the Guarantors and
the Subsidiaries (i) has good and marketable title to all real property owned by
it, (ii) holds interests as lessee under valid leases in full force and effect
with respect to all material leased real and personal property used in
connection with its business, (iii) possesses or has rights to use licenses,
patents, copyrights, trademarks, service marks, trade names and other assets
sufficient to enable it to continue to conduct its business substantially as
heretofore conducted and without any material conflict with the rights of
others, and (iv) has good title to all of its other properties and assets
reflected in the most recent financial statements referred to in Section 4.11(a)
(except as sold or otherwise disposed of since the date thereof in the ordinary
course of business), in each case under (i), (ii), (iii) and (iv) above free and
clear of all Liens other than Permitted Liens.
4.13 ERISA. (a) Each of the Borrower, the Guarantors and their
respective ERISA Affiliates is in compliance in all material respects with the
applicable provisions of ERISA, and each Plan is and has been administered in
compliance in all material respects with all applicable Requirements of Law,
including, without limitation, the applicable provisions of ERISA and the
Internal Revenue Code. No ERISA Event (i) has occurred within the five-year
period prior to the
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Reorganization Date, (ii) has occurred and is continuing, or (iii) to the
knowledge of the Borrower and the Guarantors, is reasonably expected to occur
with respect to any Plan, except in each case where such occurrence would not be
reasonably likely to have a Material Adverse Effect. No Plan has any Unfunded
Pension Liability as of the most recent annual valuation date applicable
thereto, and neither the Borrower, the Guarantors nor any ERISA Affiliate has
engaged in a transaction that could be subject to Section 4069 or 4212(c) of
ERISA, except where such Unfunded Pension Liability or transaction would not be
reasonably likely to have a Material Adverse Effect.
(b) Neither the Borrower, the Guarantors nor any ERISA Affiliate has
had a complete or partial withdrawal from any Multiemployer Plan, and neither
the Borrower, the Guarantors nor any ERISA Affiliate would become subject to any
liability under ERISA if the Borrower or the Guarantors or any ERISA Affiliate
were to withdraw completely from all Multiemployer Plans as of the most recent
valuation date. No Multiemployer Plan is in "reorganization" or is "insolvent"
within the meaning of such terms under ERISA.
4.14 Environmental Matters. (a) No Hazardous Substances are or have
been generated, used, located, released, treated, disposed of or stored by the
Borrower, the Guarantors or any of the Subsidiaries or, to the knowledge of the
Borrower or the Guarantors, by any other Person (including any predecessor in
interest) or otherwise, in, on or under any portion of any real property, leased
or owned, of the Borrower or the Guarantors or any of the Subsidiaries, except
in material compliance with all applicable Environmental Laws, and no portion of
any such real property or, to the knowledge of the Borrower and the Guarantors,
any other real property at any time leased, owned or operated by the Borrower or
the Guarantors or any of the Subsidiaries, has been contaminated by any
Hazardous Substance; and no portion of any real property, leased or owned, of
the Borrower or the Guarantors or any of the Subsidiaries has been or is
presently the subject of an environmental audit, assessment or remedial action.
(b) No portion of any real property, leased or owned, of the Borrower
or the Guarantors or any of the Subsidiaries has been used by the Borrower or
the Guarantors or any of the Subsidiaries or, to the knowledge of the Borrower
and the Guarantors, by any other Person, as or for a mine, a landfill, a dump or
other disposal facility, a gasoline service station, or (other than for
petroleum substances stored in the ordinary course of business) a petroleum
products storage facility; no portion of such real property or any other real
property at any time leased, owned or operated by the Borrower or the Guarantors
or any of the Subsidiaries has, pursuant to any Environmental Law, been placed
on the "National Priorities List" or "CERCLIS List" (or any similar federal,
state or local list) of sites subject to possible environmental problems; and
there are not and have never been any underground storage tanks situated on any
real property, leased or owned, of the Borrower or the Guarantors or any of the
Subsidiaries.
(c) All activities and operations of the Borrower, the Guarantors and
the Subsidiaries are in compliance with the requirements of all applicable
Environmental Laws, except to the extent the failure so to comply, individually
or in the aggregate, would not be reasonably likely to have a Material Adverse
Effect. Each of the Borrower, the Guarantors and the Subsidiaries (i) has
obtained all licenses and permits under Environmental Laws necessary to its
respective
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operations, (ii) all such licenses and permits are being maintained in good
standing, and (iii) each of the Borrower, the Guarantors and the Subsidiaries is
in compliance with all terms and conditions of such licenses and permits, except
for such licenses and permits the failure to obtain, maintain or comply with
which would not be reasonably likely, individually or in the aggregate, to have
a Material Adverse Effect. Other than normal claims in the ordinary course of
business pursuant to insurance policies written or reinsured by an Insurance
Subsidiary, the loss reserves for which are adequately and properly reflected in
such Insurance Subsidiary's most recent Annual or Quarterly Statements, neither
the Borrower, the Guarantors nor any of the Subsidiaries is involved in any
suit, action or proceeding, or has received any notice, complaint or other
request for information from any Governmental Authority or other Person, with
respect to any actual or alleged Environmental Claims that, if adversely
determined, would be reasonably likely, individually or in the aggregate, to
have a Material Adverse Effect; and, to the knowledge of the Borrower and the
Guarantors, there are no threatened actions, suits, proceedings or
investigations with respect to any such Environmental Claims.
4.15 Compliance With Laws. Each of the Borrower, the Guarantors and the
Subsidiaries has timely filed all material reports, documents and other
materials required to be filed by it under all applicable Requirements of Law
with any Governmental Authority, has retained all material records and documents
required to be retained by it under all applicable Requirements of Law, and is
otherwise in compliance with all applicable Requirements of Law in respect of
the conduct of its business and the ownership and operation of its properties,
except for such Requirements of Law the failure to comply with which,
individually or in the aggregate, would not be reasonably likely to have a
Material Adverse Effect.
4.16 Regulated Industries. Neither the Borrower, the Guarantors nor any
of the Subsidiaries is (i) an "investment company," a company "controlled" by an
"investment company," or an "investment advisor," within the meaning of the
Investment Company Act of 1940, as amended, or (ii) a "holding company," 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.
4.17 Insurance. The assets, properties and business of the Borrower,
the Guarantors and the Subsidiaries are insured against such hazards and
liabilities, under such coverages and in such amounts, as are customarily
maintained by prudent companies similarly situated and under policies issued by
insurers of recognized responsibility.
4.18 Material Contracts. Schedule 4.18 lists, as of the date hereof,
each "material contract" (within the meaning of Item 601(b)(10) of Regulation
S-K under the Exchange Act) (other than insurance policies and contracts,
reinsurance agreements and weather and similar swap agreements and directly
related documentation) to which the Borrower, the Guarantors or any of the
Subsidiaries is a party, by which any of them or their respective properties is
bound or to which any of them is subject (collectively, "Material Contracts"),
other than contracts disclosed in any filing by the Borrower or PXRE Group with
the Securities Exchange Commission pursuant to the Exchange Act or the
Securities Act, and also indicates the parties, subject matter and term thereof.
As of the date hereof, (i) each Material Contract is in full force
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and effect and is enforceable by the Borrower, the Guarantors or the Subsidiary
that is a party thereto in accordance with its terms, and (ii) neither the
Borrower, the Guarantors nor any of the Subsidiaries (nor, to the knowledge of
the Borrower and the Guarantors, any other party thereto) is in breach of or
default under any Material Contract in any material respect or has given notice
of termination or cancellation of any Material Contract.
4.19 Reinsurance Agreements. (a) Except as set forth on Schedule F to
the Annual Statements for the Insurance Subsidiaries or, with respect to PXRE
Ltd., as set forth in the annual report filed with Lloyd's, for the fiscal year
ending December 31, 1998, and except as set forth on Schedule 4.19, there were
no material liabilities outstanding as of June 30, 1999 under any Reinsurance
Agreement and since June 30, 1999, except as previously disclosed in writing by
PXRE Group to the Lenders pursuant to this Agreement, no Insurance Subsidiary
has incurred any material liabilities under any Reinsurance Agreement that,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect. Each such Reinsurance Agreement (except any Reinsurance
Agreement that has expired by its terms in the ordinary course) is in full force
and effect; none of the Insurance Subsidiaries or, to the knowledge of the
Borrower or the Guarantors, any other party thereto, is in breach of or default
under any such contract; and the Borrower has no reason to believe that the
financial condition of any other party to any such contract is impaired such
that a default thereunder by such party could reasonably be anticipated. Each
such Reinsurance Agreement (except any Reinsurance Agreement that has expired by
its terms in the ordinary course) is qualified under all applicable Requirements
of Law to receive the statutory credit assigned to such Reinsurance Agreement in
the relevant Annual Statement or Quarterly Statement at the time prepared. Each
Person to whom any of the Insurance Subsidiaries has ceded any material
liability pursuant to any Reinsurance Agreement on the date hereof, other than
Select Re, either (i) has a rating of "A-" or better by A.M. Best & Company,
(ii) has a financial strength rating of "A-" or better by Standard & Poor's or
Moody's, (iii) is a syndicate that is operating as part of the Lloyd's insurance
Market, and the Lloyd's insurance Market is rated "A-" or better by A.M. Best &
Company or "A-" or better by Standard & Poors, (iv) has provided collateral in
favor of the applicable Insurance Subsidiary of the type described in Schedule
4.19, or (v) has an aggregate amount of Net Amount Recoverable from Reinsurers
for the Insurance Subsidiaries attributable to it (collectively with all other
such Persons not described in clauses (i) through (iv) above) that is less than
$5,000,000 as of the end of the most recent fiscal year, and an aggregate amount
of Reinsurance Premiums Ceded by the Insurance Subsidiaries for the current
fiscal year (or portion thereof) to it (collectively with all other such Persons
not described in clauses (i) through (iv) above) that is less than $10,000,000,
or (vi) is a pooling arrangement composed solely of Persons who meet one of the
requirements described in clauses (i) through (iv) above; and with respect to
Select Re, (y) no more than $15,000,000 in Reinsurance Premiums Ceded is ceded
to it by the Insurance Subsidiaries as of the date hereof and (z) the Borrower
has submitted to the Agent recent financial statements of Select Re showing, to
the satisfaction of the Agent, that there has been no Material Adverse Change in
the financial condition of Select Re.
(b) As of the date hereof, no Insurance Subsidiary is a ceding party to
any Surplus Relief Reinsurance Agreement.
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4.20 Labor Relations. Neither the Borrower, the Guarantors nor any of
the Subsidiaries is engaged in any unfair labor practice within the meaning of
the National Labor Relations Act of 1947, as amended. There is (i) no unfair
labor practice complaint before the National Labor Relations Board, or grievance
or arbitration proceeding arising out of or under any collective bargaining
agreement, pending or, to the knowledge of the Borrower and the Guarantors,
threatened, against the Borrower or the Guarantors or any of the Subsidiaries,
(ii) no strike, lock-out, slowdown, stoppage, walkout or other labor dispute
pending or, to the knowledge of the Borrower and the Guarantors, threatened,
against the Borrower or the Guarantors or any of the Subsidiaries, and (iii) to
the knowledge of the Borrower and the Guarantors, no petition for certification
or union election or union organizing activities taking place with respect to
the Borrower or any of its Subsidiaries.
4.21 Year 2000 Compatibility. Any reprogramming required to permit the
proper functioning, before, on and after January 1, 2000, of (i) PXRE Group's
and its Subsidiaries' material computer-based systems and (ii) equipment
containing material embedded microchips, and the testing of all such systems and
equipment, as so reprogrammed, has been completed, except for such reprogramming
the absence of which would not be expected to have a Material Adverse Effect.
The cost to PXRE Group and its Subsidiaries of such reprogramming and testing
and of the reasonably foreseeable consequences of the year 2000 to the Borrower,
the Guarantors and the Subsidiaries (including, without limitation,
reprogramming errors and the failure of others' systems or equipment) are not
expected to result in a Default or Material Adverse Effect. Except for such of
the reprogramming referred to in the preceding sentence as may be necessary, the
computer and management information systems of the Borrower, the Guarantors and
the Subsidiaries are and, with ordinary course upgrading and maintenance will
continue for the term of this Agreement to be, sufficient to permit the
Borrower, the Guarantors and the Subsidiaries to conduct their respective
businesses without a Material Adverse Effect.
4.22 Compliance with Old Credit Agreement. Immediately before giving
effect to the Reorganization, each of the representations and warranties
contained in Article IV of the Old Credit Agreement are true and correct as of
the date hereof and No Default or Event of Default has occurred and is
continuing under the Old Credit Agreement.
ARTICLE V
AFFIRMATIVE COVENANTS
Each of the Borrower and the Guarantors covenants and agrees that,
until the termination of the Commitments and the payment in full of all
principal and interest with respect to the Loans, together with all other
amounts then due and owing hereunder:
5.1 Financial Statements. PXRE Group will deliver to each Lender:
(a) As soon as available and in any event within the earlier of fifteen
(15) days after filing with the Securities Exchange Commission and sixty (60)
days after the end of each of the first three fiscal quarters of each fiscal
year, beginning with the fiscal quarter ending June 30,
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1999, unaudited consolidated and consolidating balance sheets of PXRE Group and
its Subsidiaries as of the end of such fiscal quarter and unaudited consolidated
and consolidating statements of income, cash flows and stockholders' equity for
PXRE Group and its Subsidiaries for the fiscal quarter then ended and for that
portion of the fiscal year then ended (except that, for fiscal quarters ending
prior to the Reorganization Date, the Borrower shall deliver such financial
statements only for the Borrower and its Subsidiaries), in each case setting
forth comparative consolidated figures as of the end of and for the
corresponding period in the preceding fiscal year, all in reasonable detail and
prepared in accordance with GAAP (subject to the absence of notes required by
GAAP and subject to normal year-end adjustments) applied on a basis consistent
with that of the preceding quarter or containing disclosure of the effect on the
financial condition or results of operations of any change in the application of
accounting principles and practices during such quarter; and
(b) As soon as available and in any event within the earlier of fifteen
(15) days after filing with the Securities Exchange Commission and one hundred
five (105) days after the end of each fiscal year, beginning with the fiscal
year ending December 31, 1999, an audited consolidated balance sheet and an
unaudited consolidating balance sheet of PXRE Group and its Subsidiaries as of
the end of such fiscal year and audited consolidated and unaudited consolidating
statements of income, cash flows and stockholders' equity for PXRE Group and its
Subsidiaries for the fiscal year then ended, including the notes thereto, in
each case setting forth comparative figures as of the end of and for the
preceding fiscal year, all in reasonable detail and certified by the independent
certified public accounting firm regularly retained by PXRE Group or another
independent certified public accounting firm of recognized national standing
reasonably acceptable to the Required Lenders, together with (y) a report
thereon by such accountants that is not qualified as to going concern or scope
of audit and to the effect that such financial statements present fairly the
consolidated financial condition and results of operations of PXRE Group and its
Subsidiaries as of the dates and for the periods indicated in accordance with
GAAP applied on a basis consistent with that of the preceding year or containing
disclosure of the effect on the financial condition or results of operations of
any change in the application of accounting principles and practices during such
year, and (z) a report by such accountants to the effect that, based on and in
connection with their examination of the financial statements of the Borrower
and its Subsidiaries, they obtained no knowledge of the occurrence or existence
of any Default or Event of Default relating to accounting or financial reporting
matters, or a statement specifying the nature and period of existence of any
such Default or Event of Default disclosed by their audit; provided, however,
that such accountants shall not be liable by reason of the failure to obtain
knowledge of any Default or Event of Default that would not be disclosed or
revealed in the course of their audit examination.
(c) As soon as possible and within the time periods set forth in
Section 5.1(a) and 5.1(b) for quarterly and annual financial statements
respectively, Borrower shall deliver unaudited quarterly financial statements
and audited annual financial statements for Borrower and its Subsidiaries to the
Agent if Borrower is required to delivery any such financial statements to the
holders of the Trust Preferred Securities or any other third party.
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5.2 Statutory Financial Statements. PXRE Group will deliver to each
Lender:
(a) As soon as available and in any event within sixty (60) days after
the end of each of the first three fiscal quarters of each fiscal year (or, in
the case of PXRE Bermuda, five (5) days following the filing date required for
such statements under any Bermuda Insurance Regulatory Authority, if later),
beginning with the fiscal quarter ending September 30, 1999, a Quarterly
Statement of each Insurance Subsidiary as of the end of such fiscal quarter and
for that portion of the fiscal year then ended, in the form filed with the
relevant Insurance Regulatory Authority, prepared in accordance with SAP (or,
for any non-U.S. domiciled Insurance Subsidiaries, the approximate equivalent
under such Subsidiary's Insurance Regulatory Authority);
(b) As soon as available and in any event within seventy-five (75) days
after the end of each fiscal year (or, in the case of PXRE Bermuda, five (5)
days following the filing date required for such statements under any Bermuda
Insurance Regulatory Authority, if later), beginning with the fiscal year ended
December 31, 1999, an Annual Statement of each Insurance Subsidiary as of the
end of such fiscal year and for the fiscal year then ended, in the form filed
with the relevant Insurance Regulatory Authority, prepared in accordance with
SAP (or, for any non-U.S. domiciled Insurance Subsidiaries, the approximate
equivalent under such Subsidiary's Insurance Regulatory Authority); and
(c) As soon as available and in any event within one hundred
thirty-five (135) days after the end of each fiscal year, beginning with the
fiscal year ended December 31, 1999, the combined Annual Statement of the
Borrower's Insurance Subsidiaries as of the end of such fiscal year and for the
fiscal year then ended, in the form filed with the relevant Insurance Regulatory
Authority, prepared in accordance with SAP.
5.3 Other Business and Financial Information. PXRE Group will deliver
to each Lender:
(a) Concurrently with each delivery of the financial statements
described in Sections 5.1 and 5.2, a Compliance Certificate in the form of
Exhibit C-1 (in the case of the financial statements described in Section 5.1)
or Exhibit C-2 (in the case of the financial statements described in Section
5.2) with respect to the period covered by the financial statements then being
delivered, executed by a Financial Officer of PXRE Group and the Borrower,
together in each case with a Covenant Compliance Worksheet reflecting the
computation of the respective financial covenants set forth in the Worksheets as
of the last day of the period covered by such financial statements;
(b) As soon as available and in any event prior to the end of each
fiscal year, beginning with the fiscal year ending December 31, 1999, a complete
set of projections for PXRE Group and its Subsidiaries for each of the
succeeding fiscal years remaining through the Maturity Date, consisting of (i)
consolidated projections prepared based on GAAP principles, (ii) consolidated
projections prepared based on SAP principles, (iii) individual projections for
each Material Subsidiary prepared based on GAAP principles, and (iv) individual
projections for
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each Material Insurance Subsidiary prepared based on SAP principles or in
accordance with the requirements imposed by Lloyd's, as applicable, together
with a certificate of a Financial Officer of the Borrower to the effect that
such projections have been prepared in good faith and are reasonable estimates
of the financial position and results of operations of the Borrower and its
Subsidiaries for the period covered thereby; and as soon as available from time
to time thereafter, any modifications or revisions to or restatements of such
projections;
(c) Promptly upon filing with the relevant Insurance Regulatory
Authority and in any event within ninety (90) days after the end of each fiscal
year, beginning with the fiscal year ended December 31, 1999, a copy of each
Insurance Subsidiary's "Statement of Actuarial Opinion" (or equivalent
information should the relevant Insurance Regulatory Authority not require such
a statement) as to the adequacy of such Insurance Subsidiary's loss reserves for
such fiscal year, together with a copy of its management discussion and analysis
in connection therewith, each in the format prescribed by the applicable
insurance laws of such Insurance Subsidiary's jurisdiction of domicile;
(d) Promptly upon receipt thereof, copies of any "management letter"
submitted to PXRE Group any of its Subsidiaries by its certified public
accountants in connection with an annual, interim or special audit, and promptly
upon completion thereof, any response reports from PXRE Group or any such
Subsidiary in respect thereof;
(e) Promptly upon the sending, filing or receipt thereof, copies of (i)
all financial statements, reports, notices and proxy statements that PXRE Group
or any of its Subsidiaries shall send or make available generally to its
shareholders, (ii) all regular, periodic and special reports, registration
statements and prospectuses (other than on Form S-8) that PXRE Group or any of
its Subsidiaries shall render to or file with the Securities and Exchange
Commission, the National Association of Securities Dealers, Inc. or any national
securities exchange, and (iii) all press releases and other statements made
available generally by PXRE Group or any of its Subsidiaries to the public
concerning material developments in the business of PXRE Group or any of its
Subsidiaries; (iv) all significant reports on examination or other similar
significant reports, financial examination reports or market conduct examination
reports by the NAIC or any Insurance Regulatory Authority or other Governmental
Authority with respect to any Insurance Subsidiary's insurance business; (v) all
significant filings made under applicable state insurance holding company acts
by PXRE Group or any of its Subsidiaries, including, without limitation, filings
seeking approval of material transactions with Affiliates; and (vi) all material
information sent to rating agencies, including without limitation Moody's,
Standard & Poor's, A.M. Best & Company and Duff & Phelps Rating Co.
(f) Promptly upon (and in any event within five (5) Business Days
after) any Responsible Officer of PXRE Group or the Borrower obtaining knowledge
thereof, written notice of any of the following:
(i) the occurrence of any Default or Event of Default,
together with a written statement of a Responsible Officer of the
Borrower specifying the nature of such Default
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or Event of Default, the period of existence thereof and the action
that PXRE Group or the Borrower has taken and proposes to take with
respect thereto;
(ii) the institution or threatened institution of any action,
suit, investigation or proceeding against or affecting the Borrower or
the Guarantors or any of the Subsidiaries, including any such
investigation or proceeding by any Governmental Authority (other than
routine periodic inquiries, investigations or reviews), that would, if
adversely determined, be reasonably likely, individually or in the
aggregate, to have a Material Adverse Effect, and any material
development in any litigation or other proceeding previously reported
pursuant to Section 4.5 or this subsection;
(iii) the receipt by the Borrower or the Guarantors or any of
the Subsidiaries from any Governmental Authority of (y) any notice
asserting any failure by the Borrower or the Guarantors or any of the
Subsidiaries to be in compliance with applicable Requirements of Law,
which failure is reasonable likely to have a Material Adverse Effect,
or that threatens the taking of any action against the Borrower or such
Subsidiary, in each case that, if taken or adversely determined, would
be reasonably likely to have a Material Adverse Effect; or (z) any
notice of any actual or threatened suspension, limitation or revocation
of, failure to renew, or imposition of any restraining order, escrow or
impoundment of funds in connection with, any license, permit,
accreditation or authorization of the Borrower or the Guarantors or any
of the Subsidiaries, where in each case such action would be reasonably
likely to have a Material Adverse Effect;
(iv) the occurrence of any ERISA Event, together with (x) a
written statement of a Responsible Officer of PXRE Group specifying the
details of such ERISA Event and the action that PXRE Group has taken
and proposes to take with respect thereto, (y) a copy of any notice
with respect to such ERISA Event that may be required to be filed with
the PBGC and (z) a copy of any notice delivered by the PBGC to PXRE
Group or such ERISA Affiliate with respect to such ERISA Event;
(v) the occurrence of any material default under, or any
proposed or threatened termination or cancellation (other than upon
expiration) of, any Material Contract or other material contract or
agreement to which the Borrower or the Guarantors or any of the
Subsidiaries is a party (other than insurance policies and contracts
and reinsurance agreements pursuant to which an Insurance Subsidiary is
the assuming party and weather and similar swap agreements, but
specifically including the Bermuda Reinsurance Agreements), the
termination or cancellation of which would be reasonably likely to have
a Material Adverse Effect;
(vi) the occurrence of any of the following: (x) the assertion
of any Environmental Claim against or affecting the Borrower, the
Guarantors, any of the Subsidiaries or any of their respective real
property, leased or owned; (y) the receipt by the Borrower, the
Guarantors or any of the Subsidiaries of notice of any alleged
violation of or noncompliance with any Environmental Laws; or (z) the
taking of any remedial action by the Borrower, any Guarantor, any of
the Subsidiaries or any other Person in
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response to the actual or alleged generation, storage, release,
disposal or discharge of any Hazardous Substances on, to, upon or from
any real property leased or owned by the Borrower or the Guarantors or
any of the Subsidiaries; but in each case under clauses (x), (y) and
(z) above, only to the extent the same would be reasonably likely to
have a Material Adverse Effect;
(vii) the occurrence of any actual changes in any insurance
statute or regulation governing the investment or dividend practices of
any Material Insurance Subsidiary that would be reasonably likely to
have a Material Adverse Effect; and
(viii) any other matter or event pertaining directly to the
Borrower, the Guarantors or any Insurance Subsidiary that has, or would
be reasonably likely to have, a Material Adverse Effect, together with
a written statement of a Responsible Officer of the Borrower setting
forth the nature and period of existence thereof and the action that
the Borrower has taken and proposes to take with respect thereto;
(g) Promptly, notice of (i) the occurrence of any material amendment or
modification (other than expiration) to any Reinsurance Agreement (whether
entered into before or after the Closing Date), including any such agreements
that are in a runoff mode on the date hereof, which amendment or modification
would be reasonably likely to have a Material Adverse Effect, or (ii) the
receipt by the Borrower or the Guarantors or any of its Subsidiaries of any
written notice of any denial of coverage or claim, litigation or arbitration
with respect to any Reinsurance Agreement to which it is a ceding party which
would be reasonably likely to have a Material Adverse Effect;
(h) As promptly as reasonably possible, such other information about
the business, condition (financial or otherwise), operations or properties of
the Borrower or the Guarantors or any of the Subsidiaries (including any Plan
and any information required to be filed under ERISA) as the Agent or any Lender
may from time to time reasonably request.
(i) If prepared or upon the request of the Agent at the direction of
the Required Lenders, deliver to each Lender, within the earlier of (y) sixty
(60) days of such request or (z) ten (10) days of receipt by the Borrower, PXRE
Group or any Insurance Subsidiary, an actuarial review of the liabilities and
other items of each Insurance Subsidiary prepared at the Borrower's expense, by
an actuary or a firm of actuaries reasonably acceptable to the Agent, such
actuarial review to be in form and substance reasonably acceptable to the
Required Lenders.
5.4 Corporate Existence; Franchises; Maintenance of Properties. The
Borrower and the Guarantors will, and PXRE Group will cause each of its Material
Subsidiaries to, (i) maintain and preserve in full force and effect its
corporate existence, except as expressly permitted otherwise by Section 7.1,
(ii) obtain, maintain and preserve in full force and effect all other rights,
franchises, licenses, permits, certifications, approvals and authorizations
required by Governmental Authorities and necessary to the ownership, occupation
or use of its properties or the conduct of its business, except to the extent
the failure to do so would not be reasonably likely to have a Material Adverse
Effect, and (iii) keep all material properties in good working
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order and condition (normal wear and tear excepted) and from time to time make
all necessary repairs to and renewals and replacements of such properties,
except to the extent that any of such properties are obsolete or are being
replaced.
5.5 Compliance with Laws. The Borrower and the Guarantors will, and
PXRE Group will cause each of its Subsidiaries to, comply in all respects with
all Requirements of Law applicable in respect of the conduct of its business and
the ownership and operation of its properties, except to the extent the failure
so to comply would not be reasonably likely to have a Material Adverse Effect.
5.6 Payment of Obligations. The Borrower and the Guarantors will, and
PXRE Group will cause each of its Subsidiaries to, (i) pay all liabilities and
obligations as and when due (subject to any applicable subordination
provisions), except to the extent failure to do so would not be reasonably
likely to have a Material Adverse Effect, and (ii) pay and discharge all taxes,
assessments and governmental charges or levies imposed upon it, upon its income
or profits or upon any of its properties, prior to the date on which penalties
would attach thereto, and all lawful claims that, if unpaid, might become a Lien
upon any of the properties of the Borrower or the Guarantors or any of the
Subsidiaries; provided, however, that neither the Borrower, the Guarantors nor
any of the Subsidiaries shall be required to pay any such tax, assessment,
charge, levy or claim that is being contested in good faith and by proper
proceedings and as to which the Borrower or such Guarantor or such Subsidiary is
maintaining adequate reserves with respect thereto in accordance with GAAP.
5.7 Insurance. The Borrower and the Guarantors will, and PXRE Group
will cause each of its Material Subsidiaries to, maintain with financially sound
and reputable insurance companies insurance with respect to its assets,
properties and business, against such hazards and liabilities, of such types and
in such amounts, as is customarily maintained by companies in the same or
similar businesses similarly situated.
5.8 Maintenance of Books and Records; Inspection. The Borrower and the
Guarantors will, and PXRE Group will cause each of its Subsidiaries to, (i)
maintain adequate books, accounts and records, in which full, true and correct
entries shall be made of all financial transactions in relation to its business
and properties, and prepare all financial statements required under this
Agreement, in each case in accordance with GAAP and in compliance with the
requirements of any Governmental Authority having jurisdiction over it, and (ii)
permit employees or agents of the Agent or any Lender to inspect its properties
and examine or audit its books, records, working papers and accounts and make
copies and memoranda of them, and to discuss its affairs, finances and accounts
with its officers and employees and, upon notice to the Borrower or PXRE Group,
the independent public accountants and actuarial firms of the Borrower or PXRE
Group and the Subsidiaries (and by this provision the Borrower and PXRE Group
authorize such accountants and actuarial firms (if any) to discuss the finances
and affairs of the Borrower, the Guarantors and the Subsidiaries), all at such
times and from time to time, upon reasonable notice and during business hours,
as may be reasonably requested.
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5.9 Permitted Acquisitions. (a) Subject to the provisions of subsection
(b) below and the requirements contained in the definition of Permitted
Acquisition, and subject to the other terms and conditions of this Agreement,
PXRE Group or its Subsidiaries may from time to time on or after the date hereof
effect Permitted Acquisitions, provided that, with respect to each Permitted
Acquisition:
(i) no Default or Event of Default shall have occurred and be
continuing at the time of the consummation of such Permitted
Acquisition or would exist immediately after giving effect thereto; and
(ii) the Acquisition Amount with respect thereto (regardless
of the form of consideration) (y) shall not exceed $35,000,000, and (z)
together with the aggregate of the Acquisition Amounts (regardless of
the form of consideration) for all other Permitted Acquisitions
consummated during the same fiscal quarter, or the period of three
consecutive fiscal quarters immediately prior thereto, shall not exceed
$50,000,000.
(b) Not less than ten (10) Business Days prior to the consummation of
any Permitted Acquisition with respect to which the Acquisition Amount exceeds
$10,000,000, PXRE Group shall have delivered to the Agent and each Lender the
following:
(i) a reasonably detailed description of the material terms
of such Permitted Acquisition (including, without limitation, the
purchase price and method and structure of payment) and of each Person
or business that is the subject of such Permitted Acquisition (each, a
"Target"); and
(ii) historical financial statements of the Target (or, if
there are two or more Targets that are the subject of such Permitted
Acquisition and that are part of the same consolidated group,
consolidated historical financial statements for all such Targets) for
the two (2) most recent fiscal years available and, if available, for
any interim periods since the most recent fiscal year-end.
(c) As soon as reasonably practicable after the consummation of any
Permitted Acquisition, PXRE Group will deliver to the Agent and each Lender a
copy of the fully executed acquisition agreement (including schedules and
exhibits thereto) and other material documents and closing papers delivered in
connection therewith.
(d) The consummation of each Permitted Acquisition shall be deemed to
be a representation and warranty by the Borrower and the Guarantors that (except
as shall have been approved in writing by the Required Lenders) all conditions
thereto set forth in this Section and in the description furnished under clause
(i) of subsection (b) above have been satisfied and that the same is permitted
in accordance with the terms of this Agreement, which representation and
warranty shall be deemed to be a representation and warranty as of the date
thereof for all purposes hereunder, including, without limitation, for purposes
of Sections 3.3 and 8.1.
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5.10 Year 2000 Compatibility. The Borrower and the Guarantors will, and
PXRE Group will cause each of its Material Subsidiaries to, take all action
necessary to ensure that its material computer-based systems are able to operate
and effectively process data including dates on and after January 1, 2000. At
the request of the Agent or the Required Lenders, the Borrower and the
Guarantors will provide reasonable assurance of their Year 2000 compatibility.
5.11 Further Assurances. The Borrower and the Guarantors will, and PXRE
Group will cause each of its Subsidiaries to, make, execute, endorse,
acknowledge and deliver any amendments, modifications or supplements hereto and
restatements hereof and any other agreements, instruments or documents, and take
any and all such other actions, as may from time to time be reasonably requested
by the Agent or the Required Lenders to effect, confirm or protect and preserve
the interests, rights and remedies of the Agent and the Lenders under this
Agreement and the other Credit Documents.
ARTICLE VI
FINANCIAL COVENANTS
Each of the Borrower and the Guarantors covenants and agrees that,
until the termination of the Commitments and the payment in full of all
principal and interest with respect to the Loans, together with all other
amounts then due and owing hereunder:
6.1 Leverage Ratio. The Leverage Ratio shall not exceed 0.3 to 1.0 at
any time.
6.2 Fixed Charge Coverage Ratio. The Fixed Charge Coverage Ratio, as of
the last day of any fiscal quarter beginning with the fiscal quarter ending
December 31, 1998, shall not be less than 1.5 to 1.0.
6.3 Risk-Based Capital Ratio. The "total adjusted capital" (within the
meaning of the Risk-Based Capital for Insurers Model Act as promulgated by the
NAIC as of the date hereof (the "Model Act")), as of the last day of any fiscal
year beginning with the fiscal year ending December 31, 1998, of any Material
Insurance Subsidiary other than PXRE Bermuda shall not be less than 250% of the
applicable "Company Action Level RBC" (within the meaning of the Model Act) as
of such date.
6.4 Combined Statutory Surplus. The Combined Statutory Capital and
Surplus of the Insurance Subsidiaries, as of the last day of any fiscal quarter
beginning with the fiscal quarter ending March 31, 1999, shall not be less than
$335,422,000 plus 50% of the aggregate increases in the stated capital and
additional paid-in capital accounts of the Insurance Subsidiaries (without
duplication) occurring after December 31, 1998, as determined in each case in
accordance with SAP.
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ARTICLE VII
NEGATIVE COVENANTS
The Borrower and the Guarantors covenant and agree that, until the
termination of the Commitments and the payment in full of all principal and
interest with respect to the Loans, together with all other amounts then due and
owing hereunder:
7.1 Merger; Consolidation. (a) The Borrower and the Guarantors will
not, and PXRE Group will not permit or cause any of its Material Subsidiaries
to, liquidate, wind up or dissolve, or enter into any consolidation, merger or
other combination, or agree to do any of the foregoing; provided, however, that:
(i) PXRE Group or the Borrower may merge or consolidate with
another Person so long as (x) either PXRE Group or the Borrower is the
surviving entity, (y) unless such other Person is a Wholly Owned
Subsidiary immediately prior to giving effect thereto, such merger or
consolidation shall constitute a Permitted Acquisition and the
applicable conditions and requirements of Section 5.9 shall be
satisfied, and (z) immediately after giving effect thereto, no Default
or Event of Default would exist;
(ii) any Material Subsidiary (other than the Borrower) may
merge or consolidate with another Person so long as (x) the surviving
entity is PXRE Group or a Wholly Owned Subsidiary, (y) unless such
other Person is a Wholly Owned Subsidiary immediately prior to giving
effect thereto, such merger or consolidation shall constitute a
Permitted Acquisition and the applicable conditions and requirements of
Section 5.9 shall be satisfied, and (z) immediately after giving effect
thereto, no Default or Event of Default would exist; and
(iii) Subject to satisfaction of the conditions set forth in
Section 3.4 (or the waiver thereof in accordance with Section 11.6),
PXRE Group, PXRE Barbados, and the Borrower may consummate the
Reorganization in accordance with the Reorganization Documents,
notwithstanding any other provision of this Article VII to the
contrary.
(b) PXRE Group and the Borrower will not permit or cause any of its
non-Material Subsidiaries to undertake any transaction or series of related
transactions that would not be permitted under Section 7.1(a) to be undertaken
by a Material Subsidiary if, immediately after the consummation of such
transaction or series of related transactions, the non-Material Subsidiary would
be a Material Subsidiary.
7.2 Indebtedness. The Borrower and the Guarantors will not, and PXRE
Group will not permit or cause any of its Subsidiaries to, create, incur, assume
or suffer to exist any Indebtedness other than:
(i) Indebtedness incurred under this Agreement and the Notes;
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(ii) Indebtedness existing on the date hereof and described in
Schedule 7.2;
(iii) accrued expenses (including salaries, accrued vacation
and other compensation), current trade or other accounts payable and
other current liabilities arising in the ordinary course of business
and not incurred through the borrowing of money, provided that the same
shall be paid when due except to the extent being contested in good
faith and by appropriate proceedings;
(iv) subject to Section 7.7(b), loans and advances by PXRE
Group or any Subsidiary to any other Subsidiary or by any Subsidiary to
PXRE Group, provided that, except for loans permitted under Section
7.7(b)(iv), any such loan or advance by any Subsidiary to either
Guarantor or to the Borrower is subordinated in right and time of
payment to the Obligations, except that PXRE Reinsurance may, during
the 1999 and 2000 fiscal years, make and maintain a short-term loan to
the Borrower that, so long as no Event of Default has occurred and is
continuing, is not subordinated in time of payment to the Obligations,
and provided further that the sole use of such short-term loan shall be
to repurchase shares of the Borrower's Capital Stock and the principal
amount thereof shall not exceed $17,000,000;
(v) unsecured Indebtedness of the Borrower or PXRE Group that
is expressly subordinated and made junior in right and time of payment
to the Obligations (including, in the case of indebtedness of PXRE
Group, PXRE Group's guaranty of such Obligations as set for forth in
Article IX) and that is evidenced by one or more written agreements or
instruments having terms, conditions and provisions (including, without
limitation, provisions relating to principal amount, maturity,
covenants, defaults, interest, and subordination) satisfactory in form
and substance to the Required Lenders in their sole discretion and
which shall provide, at a minimum and without limitation, that such
Indebtedness (a) shall mature by its terms no earlier than the first
anniversary of the Maturity Date, (b) shall not require any scheduled
payment of principal prior to the first anniversary of the Maturity
Date, and (c) shall have covenants and undertakings that, taken as a
whole, are materially less restrictive than those contained herein (the
Indebtedness described hereinabove, "Subordinated Indebtedness");
provided that, as further conditions to the issuance of any
Subordinated Indebtedness, (1) immediately after giving effect to the
issuance of such Subordinated Indebtedness, no Default or Event of
Default shall exist, (2) all agreements and instruments evidencing or
governing such Subordinated Indebtedness shall have been approved in
writing by the Required Lenders (or the Agent on their behalf), and (3)
prior to or concurrently with the issuance of such Subordinated
Indebtedness, the Borrower shall have delivered to each Lender a
certificate, signed by a Financial Officer of the Borrower or PXRE
Group, as the case may be, satisfactory in form and substance to the
Required Lenders and to the effect that, after giving effect to the
incurrence of such Subordinated Indebtedness, PXRE Group is in
compliance with the financial covenants set forth in Sections 6.1 and
6.2, such compliance being determined with regard to calculations made
on a pro forma basis in accordance with GAAP as of the last day of the
fiscal quarter then most recently ended and as if such Subordinated
Indebtedness had been incurred on the first day of the period
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applicable to such covenants (such calculations to be attached to such
certificate); and provided further that the Net Cash Proceeds from the
issuance of such Subordinated Indebtedness shall be applied to reduce
the Commitments in accordance with, and to the extent required under,
the provisions of Section 2.5(c);
(vi) purchase money Indebtedness of the Borrower and its
Subsidiaries incurred solely to finance the payment of all or part of
the purchase price of any equipment, real property or other fixed
assets acquired in the ordinary course of business, including
Indebtedness in respect of capital lease obligations, and any renewals,
refinancings or replacements thereof (subject to the limitations on the
principal amount thereof set forth in this clause (vi)), which
Indebtedness shall not exceed $10,000,000 in aggregate principal amount
outstanding at any time;
(vii) Indebtedness in respect of outstanding letters of credit,
in the aggregate not to exceed twenty-five percent (25%) of the
Statutory Capital and Surplus of PXRE Reinsurance at any time, issued
on behalf of any Insurance Subsidiary for the benefit of Lloyd's to
satisfy capital requirements imposed by Lloyd's to support such
Insurance Subsidiary's business in the Lloyd's insurance Market, and
Indebtedness in respect of reimbursement obligations in respect of
letters of credit issued for the benefit of any Insurance Subsidiary or
the Borrower in the ordinary course of its business to support the
payment of obligations arising under insurance and reinsurance
contracts and weather and similar swap agreements; and
(viii) other unsecured Indebtedness not exceeding $20,000,000 in
aggregate principal amount outstanding at any time.
7.3 Liens. The Borrower and the Guarantors will not, and PXRE Group
will not permit or cause any of its Subsidiaries to, directly or indirectly,
make, create, incur, assume or suffer to exist, any Lien upon or with respect to
any part of its property or assets, whether now owned or hereafter acquired, or
file or permit the filing of, or permit to remain in effect, any financing
statement or other similar notice of any Lien with respect to any such property,
asset, income or profits under the Uniform Commercial Code of any state or under
any similar recording or notice statute, or agree to do any of the foregoing,
other than the following (collectively, "Permitted Liens"):
(i) Liens in existence on the date hereof and set forth on
Schedule 7.3;
(ii) Liens imposed by law, such as Liens of carriers,
warehousemen, mechanics, materialmen and landlords, and other similar
Liens incurred in the ordinary course of business for sums not
constituting borrowed money that are not overdue for a period of more
than thirty (30) days or that are being contested in good faith by
appropriate proceedings and for which adequate reserves have been
established in accordance with GAAP (if so required);
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(iii) Liens (other than any Lien imposed by ERISA, the creation
or incurrence of which would result in an Event of Default under
Section 8.1(i)) incurred in the ordinary course of business in
connection with worker's compensation, unemployment insurance or other
forms of governmental insurance or benefits, or to secure the
performance of letters of credit, bids, tenders, statutory obligations
(including statutory obligations of Insurance Subsidiaries), surety and
appeal bonds, leases, government contracts and other similar
obligations (other than obligations for borrowed money) entered into in
the ordinary course of business;
(iv) Liens for taxes, assessments or other governmental
charges or statutory obligations that are not delinquent or remain
payable without any penalty or that are being contested in good faith
by appropriate proceedings and for which adequate reserves have been
established in accordance with GAAP (if so required);
(v) Liens securing the purchase money Indebtedness permitted
under clause (vi) of Section 7.2, provided that any such Lien (a) shall
attach to such property concurrently with or within ten (10) days after
the acquisition thereof by the Borrower or such Guarantor or
Subsidiary, (b) shall not exceed the lesser of (y) the fair market
value of such property or (z) the cost thereof to the Borrower or such
Guarantor or Subsidiary and (c) shall not encumber any other property
of the Borrower or any Guarantor or any of the Subsidiaries;
(vi) any attachment or judgment Lien not constituting an Event
of Default under Section 8.1(h) that is being contested in good faith
by appropriate proceedings and for which adequate reserves have been
established in accordance with GAAP (if so required);
(vii) Liens arising from the filing, for notice purposes only,
of financing statements in respect of true leases;
(viii) Liens on Borrower Margin Stock, to the extent the fair
market value thereof exceeds 25% of the fair market value of the assets
of the Borrower and its Subsidiaries (including Borrower Margin Stock);
(ix) with respect to any real property occupied by the
Borrower or the Guarantors or any of the Subsidiaries, all easements,
rights of way, licenses and similar encumbrances on title that do not
materially impair the use of such property for its intended purposes;
(x) Liens on assets, not to exceed thirty percent (30%) of
the Statutory Capital and Surplus of PXRE Reinsurance at any time, (y)
pledged to secure letters of credit described in Section 7.2(vii) or
(z) held in trust for the benefit of Lloyd's to satisfy capital
requirements imposed by Lloyd's to support an Insurance Subsidiary's
business in the Lloyd's insurance Market; and
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(xi) other Liens securing obligations of PXRE Group and its
Subsidiaries not exceeding $5,000,000 in aggregate amount outstanding
at any time.
7.4 Disposition of Assets. The Borrower and the Guarantors will not,
and PXRE Group will not permit or cause any of its Subsidiaries to, sell,
assign, lease, convey, transfer or otherwise dispose of (whether in one or a
series of transactions) all or any portion of its assets, business or properties
(including, without limitation, any Capital Stock of any Subsidiary, but
excluding any payments of losses or other liabilities incurred by an Insurance
Subsidiary, the Borrower or PXRE Group pursuant to insurance policies and
contracts, reinsurance agreements, weather and similar swap agreements and other
commitments entered into by such Insurance Subsidiary, the Borrower or PXRE
Group in the ordinary course of business), or enter into any arrangement with
any Person providing for the lease by the Borrower or the Guarantors or any
Subsidiary as lessee of any material asset that has been sold or transferred by
the Borrower or such Guarantor or Subsidiary to such Person, or agree to do any
of the foregoing, except for:
(i) sales of inventory and licenses or leases of intellectual
property and other assets, in each case in the ordinary course of
business;
(ii) the sale or exchange of used or obsolete equipment to the
extent (y) the proceeds of such sale are applied towards, or such
equipment is exchanged for, replacement equipment or (z) such equipment
is no longer necessary for the operations of the Borrower or its
applicable Subsidiary in the ordinary course of business;
(iii) the sale or other disposition by PXRE Group and its
Subsidiaries of any Guarantor Margin Stock to the extent the fair
market value thereof exceeds 25% of the fair market value of the assets
of PXRE Group and its Subsidiaries (including Guarantor Margin Stock),
provided that fair value is received in exchange therefor;
(iv) the sale, lease or other disposition of assets by a
Subsidiary of the Borrower to the Borrower or its Subsidiary if,
immediately after giving effect thereto, no Default or Event of Default
would exist;
(v) sales of investment assets in the ordinary course of
business;
(vi) the sale by PXRE Group and its Subsidiaries of (x) the
capital stock or all or any portion of the assets, business or
properties of a Subsidiary that is not a Material Subsidiary; (y) any
asset or group of assets of an Insurance Subsidiary constituting less
than (A) in any single transaction or series of related transactions,
ten percent (10%) of Combined Statutory Capital and Surplus as of the
last day of the fiscal quarter ending on or immediately prior to the
date of such sale, and (B) during the term of this Agreement, in the
aggregate with all such other sales pursuant to this clause (vi),
thirty percent (30%) of Combined Statutory Capital and Surplus as of
the end of the immediately preceding fiscal quarter; and (z) any asset
or group of assets of a non-Insurance Subsidiary constituting less than
(A) in any single transaction or series of related transactions, ten
percent (10%) of the total assets of the Borrower and its Subsidiaries
on a consolidated
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basis, determined in accordance with GAAP as of the last day of the
fiscal quarter ending on or immediately prior to the date of such sale,
and (B) during the term of this Agreement, in the aggregate with all
such other sales pursuant to this clause (vi), thirty percent (30%) of
the total assets of the Borrower and its Subsidiaries on a consolidated
basis, determined in accordance with GAAP as of the end of the
immediately preceding fiscal quarter; provided in the case of any sale
pursuant to this clause (vi) that immediately after giving effect
thereto, no Default or Event of Default would exist; and
(vii) transactions permitted under Section 7.7.
7.5 Investments. The Borrower and the Guarantors will not, and PXRE
Group will not permit or cause any of its Subsidiaries to, directly or
indirectly, purchase, own, invest in or otherwise acquire any Capital Stock,
evidence of indebtedness or other obligation or security or any interest
whatsoever in any other Person, or make or permit to exist any loans, advances
or extensions of credit to, or any investment in cash or by delivery of property
in, any other Person, or purchase or otherwise acquire (whether in one or a
series of related transactions) any portion of the assets, business or
properties of another Person (including pursuant to an Acquisition), or create
or acquire any Subsidiary, or become a partner or joint venturer in any
partnership or joint venture (collectively, "Investments"), or make a commitment
or otherwise agree to do any of the foregoing, other than:
(i) Cash Equivalents;
(ii) Investments consisting of purchases and acquisitions of
inventory, supplies, materials and equipment or licenses or leases of
intellectual property and other assets, in each case in the ordinary
course of business;
(iii) Investments consisting of loans and advances to
employees for reasonable travel, relocation and business expenses in
the ordinary course of business, extensions of trade credit in the
ordinary course of business, and prepaid expenses incurred in the
ordinary course of business;
(iv) without duplication, Investments consisting of
intercompany Indebtedness permitted under clause (iv) of Section 7.2;
(v) Investments existing on June 30, 1999 and set forth in
Schedule 7.5(a);
(vi) Investments consisting of the making of capital
contributions or the ownership or purchase of Capital Stock (a) by PXRE
Group or any Subsidiary in any other Wholly Owned Subsidiary and (b) by
any Subsidiary in the Borrower or PXRE Group;
(vii) Permitted Acquisitions;
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(viii) other Investments by the Borrower and its Subsidiaries
to the extent permitted under applicable Requirements of Law and in
compliance with the following restrictions:
(a) all investments shall be in compliance at all
times with (i) the Insurance Code, if applicable, (ii) the
requirements of the Lloyd's insurance Market, if applicable,
(iii) all applicable insurance laws and regulations of any
other relevant jurisdictions relating to investments by an
Insurance Subsidiary, and (iv) the limitations set forth in
the Investment Policy;
(b) the amount equal to forty percent (40%) of the
carrying value of the aggregate admitted assets of the
Borrower's Insurance Subsidiaries (determined in accordance
with SAP) and the aggregate investment assets of the Borrower
and its non-Insurance Subsidiaries (determined in accordance
with GAAP) that comprise the "Excess Capital and Surplus
Portfolio," as defined in the Investment Policy, shall be less
than one-third of the Combined Statutory Capital and Surplus
of the Borrower's Insurance Subsidiaries at any time;
(c) with respect to the Insurance Subsidiaries'
Investments, other than those issued or unconditionally
guaranteed by the United States Government, the aggregate
Investments of such Insurance Subsidiaries in the securities
of any single issuer shall not constitute on any date during
the term of this Agreement more than five percent (5%) of the
Average Combined Invested Assets of such Insurance
Subsidiaries, it being understood that any securities held on
the last day of a fiscal quarter shall, for purposes of this
clause (c), be measured against the Average Combined Invested
Assets for the four quarters ending prior to such quarter;
provided that, the failure of the Borrower to comply with this
clause (c) shall not constitute a Default under this Agreement
if each failure to comply during any fiscal quarter shall have
been cured within forty-five (45) days following the end of
such fiscal quarter (or, with respect to cure by the Borrower
through disposition of a limited partnership interest
requiring disposition in accordance with such limited
partnership's partnership agreement or other organizational
documents, definitive instruction to sell such partnership
interest has been given as soon as practicable (but in no
event later than five (5) Business Days) after the Borrower
obtains knowledge of noncompliance hereunder and such interest
is sold at the earliest possible date in accordance with such
partnership agreement and organizational documents); and
(d) with respect to the Investments of the Borrower
and its non-Insurance Subsidiaries (other than (A) Borrower's
Investments of cash and Cash Equivalents and (B) Borrower's
Investments of up to $10,000,000 equity in Cat Bond Investors,
L.L.C.), (i) the aggregate of such Investments shall not
exceed six and one-half percent (6-1/2%) of Borrower's
Consolidated Net Worth, and (ii) the aggregate of such
Investments in the securities of any single issuer shall
constitute
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at all times no more than one and one-half percent (1-1/2%) of
the Borrower's Consolidated Net Worth;
(ix) the Borrower's Investment in Cat Bond Investors, L.L.C.
up to $10,000,000;
(x) Investments of PXRE Group and its non-Insurance
Subsidiaries (other than Investments of cash and Cash Equivalents),
provided that (i) the aggregate of such Investments shall not exceed
six and one-half percent (6-1/2%) of PXRE Group's Consolidated Net
Worth, and (ii) the aggregate of such Investments in the securities of
any single issuer shall constitute at all times no more than one and
one-half percent (1-1/2%) of PXRE Group's Consolidated Net Worth; and
(xi) Investments by PXRE Bermuda to the extent permitted under
applicable Requirements of Law and in compliance with PXRE Bermuda's
Investment Policy.
7.6 Restricted Payments. (a) The Borrower and the Guarantors will not,
and PXRE Group will not permit or cause any of its Subsidiaries to, directly or
indirectly, declare or make any dividend payment, or make any other distribution
of cash, property or assets, in respect of any of its Capital Stock or any
warrants, rights or options to acquire its Capital Stock, or purchase, redeem,
retire or otherwise acquire for value any shares of its Capital Stock or any
warrants, rights or options to acquire its Capital Stock, or set aside funds for
any of the foregoing, except that:
(i) PXRE Group may (v) declare and make dividend payments or
other distributions to holders of PXRE Group's Capital Stock
(including, without limitation, its common stock), in cash or in shares
of such Capital Stock, (w) cause the Borrower to make payments to any
Subsidiary pursuant to Indebtedness related to any Trust Preferred
Securities, and (x) purchase, redeem, retire or otherwise acquire
shares of its Capital Stock, in cash or in-kind, and the Subsidiary of
the Borrower that has issued Trust Preferred Securities may declare and
make dividend payments or other distributions to holders of such Trust
Preferred Securities and purchase, redeem, retire or otherwise acquire
such Trust Preferred Securities, in cash or in-kind, in each case
provided that, immediately after giving effect thereto, (y) no Default
or Event of Default would exist, and (z) the Fixed Charge Coverage
Ratio would be at least 1.5 to 1.0, such ratio to be determined for
purposes of this clause (i) as of the last day of the most recently
ended fiscal quarter as if such dividend, distribution, payment or
acquisition had been effected as of such date; and
(ii) each Wholly Owned Subsidiary of PXRE Group may declare
and make dividend payments or other distributions to PXRE Group or
another Wholly Owned Subsidiary of PXRE Group, to the extent not
prohibited under applicable Requirements of Law.
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(b) The Borrower and the Guarantors will not, and PXRE Group will not
permit or cause any of its Subsidiaries to, make (or give any notice in respect
of) any voluntary or optional payment or prepayment of principal on any
Subordinated Indebtedness, or directly or indirectly make any redemption
(including pursuant to any change of control provision), retirement, defeasance
or other acquisition for value of any Subordinated Indebtedness, or make any
deposit or otherwise set aside funds for any of the foregoing purposes.
7.7 Transactions with Affiliates. (a) The Borrower and the Guarantors
will not, and PXRE Group will not permit or cause any of its Subsidiaries to,
enter into any transaction (including, without limitation, any purchase, sale,
lease or exchange of property or the rendering of any service) with any officer,
director, stockholder or other Affiliate of the Borrower or any Subsidiary,
except in the ordinary course of its business and upon fair and reasonable terms
that are no less favorable to it than would obtain in a comparable arm's length
transaction with a Person other than an Affiliate of the Borrower or such
Subsidiary; provided, however, that nothing contained in this Section shall
prohibit:
(i) transactions described in the Borrower's or PXRE Group's
filings under the Exchange Act or the Securities Act or on Schedule 7.7
or otherwise expressly permitted under this Agreement;
(ii) the payment by PXRE Group or any Subsidiary of reasonable
and customary fees to members of its board of directors; and
(iii) the payment by the Borrower to the Guarantors of
reasonable and customary annual guaranty fees not to exceed one percent
(1%) of the aggregate Commitment of the Lenders.
(b) In addition to the requirements of Section 7.7(a), and
notwithstanding any provision of this Agreement to the contrary, the Borrower
will not, and PXRE Group and the Borrower will not permit or cause any of the
Borrower's Subsidiaries to, enter into any transaction with PXRE Group or any of
its Subsidiaries (other than Borrower and its Subsidiaries) other than:
(i) the following reinsurance agreements and the transactions
incident thereto (herein "Permitted Intercompany Reinsurance
Agreements"):
(A) the Bermuda Reinsurance Agreement constituting a
quota share agreement (the "Initial Quota Share Agreement"),
provided such agreement shall initially have a one year term
and be on a basis of reinsurance not exceeding thirty percent
(30%) quota share and any amendments or modifications thereto
shall be subject to Section 7.7(b)(i)(B);
(B) any other reinsurance agreement pursuant to which
any of Borrower's Insurance Subsidiaries cedes business to any
of PXRE Group's Insurance Subsidiaries (other than Borrower's
Subsidiaries) and any
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amendments, modifications or replacements of the Initial Quota
Share Agreement (in each case, a "New Cession Agreement") if
(1) no Default has occurred or is continuing immediately after
giving effect to such New Cession Agreement, and (2) in the
event such New Cession Agreement would alter the accounting
treatment or underlying economic or financial terms of the
prior agreement, the Borrower shall have provided, at least
thirty (30) days prior to the effectiveness of such New
Cession Agreement, the Agent and the Lenders projections,
based on reasonable assumptions and prepared in a manner
consistent with the projections required under Section 5.3(b),
showing that such New Cession Agreement (after taking into
account all other Permitted Reinsurance Agreements) will not
create or result in a Default during the period such New
Cession Agreement shall be in effect;
(C) the Bermuda Reinsurance Agreement constituting a
stop loss agreement (the "Initial Stop Loss Agreement"),
provided its initial term does not exceed one year, PXRE
Reinsurance's maximum loss amount thereunder shall not exceed
$30,000,000, and any amendments or modifications thereto shall
be subject to Section 7.7(b)(i)(D);
(D) any other reinsurance agreement pursuant to which
any of Borrower's Insurance Subsidiaries assume or undertake
the risks or liabilities of any of PXRE Group's Insurance
Subsidiaries (other than Borrower's Subsidiaries) and any
amendments, modifications or replacements of the Initial
Assuming Agreement (in each case, a "New Assuming Agreement"
and, collectively with the Initial Stop Loss Agreement,
"Permitted Assuming Agreements") if (1) no Default has
occurred or is continuing immediately after giving effect to
such New Assuming Agreement, and (2) the aggregate of the
Borrower's Insurance Subsidiaries' maximum loss amount
thereunder and under all other Permitted Assuming Agreements
then in effect shall then and at all times thereafter be less
than the difference between the actual Combined Statutory
Capital and Surplus and the minimum Combined Statutory Capital
and Surplus required under Section 6.4;
(ii) the Reorganization in accordance with the Reorganization
Documents;
(iii) dividends and distributions by the Borrower to PXRE
Barbados otherwise permitted under Section 7.6;
(iv) loans from Borrower or any of its Subsidiaries to either
Guarantor (A) up to an aggregate outstanding principal amount of
$35,000,000 for the sole purpose of providing capital for PXRE Bermuda
and (B) up to an aggregate outstanding principal amount of $1,500,000
for general corporate purposes, which loans shall not be required to be
subordinated in time of payment to the Obligations so long as no Event
of Default has occurred and is continuing; and
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(v) agreements for the provision of intermediary, investment,
administrative, personnel, technology or similar services by the
Borrower or any of its Subsidiaries for or on behalf of PXRE Group or
any of its Subsidiaries.
7.8 Lines of Business. The Borrower and the Guarantors will not, and
PXRE Group will not permit or cause any of its Subsidiaries to, engage in any
business other than (i) the businesses engaged in by it on the date hereof and
businesses and activities reasonably related thereto (including without
limitation insurance management, agency and brokerage business undertaken
through a Subsidiary other than a Material Subsidiary) or (ii) in the case of an
Insurance Subsidiary, the offering and sale of any property and casualty
insurance or reinsurance products or, in the case of PXRE Bermuda, life
reinsurance products.
7.9 Certain Amendments. The Borrower and the Guarantors will not, and
PXRE Group will not permit or cause any of its Subsidiaries to, (i) amend,
modify or waive, or permit the amendment, modification or waiver of, any
provision of any agreement or instrument evidencing or governing any
Subordinated Indebtedness, the effect of which would be to (a) increase the
principal amount due thereunder, (b) shorten or accelerate the time of payment
of any amount due thereunder, (c) increase the applicable interest rate or
amount of any fees or costs due thereunder, (d) amend any of the subordination
provisions thereunder (including any of the definitions relating thereto), (e)
make any covenant therein more restrictive or add any new covenant, or (f)
otherwise materially and adversely affect the Lenders, or breach or otherwise
violate any of the subordination provisions applicable thereto, including,
without limitation, restrictions against payment of principal and interest
thereon, or (ii) amend, modify or change any provision of its articles or
certificate of incorporation or bylaws, or the terms of any class or series of
its Capital Stock or the provisions of the Reorganization Documents, other than
in a manner that could not reasonably be expected to adversely affect the
Lenders.
7.10 Limitation on Certain Restrictions. The Borrower and the
Guarantors will not, and PXRE Group will not permit or cause any of its
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any restriction or encumbrance on (i) the ability of
the Borrower, the Guarantors and the Subsidiaries to perform and comply with
their respective obligations under the Credit Documents or (ii) the ability of
any Subsidiary to make any dividend payments or other distributions in respect
of its Capital Stock, to repay Indebtedness owed to the Borrower, the Guarantors
or any other Subsidiary, to make loans or advances to the Borrower, the
Guarantors or any other Subsidiary, or to transfer any of its assets or
properties to the Borrower, the Guarantors or any other Subsidiary, in each case
other than such restrictions or encumbrances existing under or by reason of the
Credit Documents or applicable Requirements of Law.
7.11 No Other Negative Pledges. The Borrower and the Guarantors will
not, and PXRE Group will not permit or cause any of its Subsidiaries to,
directly or indirectly, enter into or suffer to exist any agreement or
restriction that prohibits or conditions the creation, incurrence or assumption
of any Lien upon or with respect to any part of its property or assets, whether
now owned or hereafter acquired, or agree to do any of the foregoing, other than
as set forth in (i) this
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Agreement, (ii) any agreement or instrument creating a Permitted Lien (but only
to the extent such agreement or restriction applies to the assets subject to
such Permitted Lien), and (iii) operating leases of real or personal property
entered into by the Borrower or any of its Subsidiaries as lessee in the
ordinary course of business.
7.12 Accounting Changes. The Borrower and the Guarantors will not, and
PXRE Group will not permit or cause any of its Subsidiaries (other than PXRE
Ltd.) to, make or permit any material change in its accounting policies or
reporting practices, except as may be required by GAAP or SAP.
7.13 Ratings. The Borrower and the Guarantors will not permit or cause
(i) the rating and financial strength rating of any Material Insurance
Subsidiary (other than PXRE Ltd.) by A.M. Best & Company and Standard & Poor's,
respectively, to be lower than "A-" at any time, (ii) the rating of each PXRE
Syndicate by Standard & Poor's to be lower than "A-" at any time (in each case
to the extent such ratings are provided), or (iii) the "group rating" of
Standard & Poor's applicable to PXRE Bermuda to be lower than "A-" at any time.
7.14 Reinsurance Agreements. The Borrower and the Guarantors will not,
and PXRE Group will not permit or cause any of its Insurance Subsidiaries to do
any of the following:
(i) enter into any Reinsurance Agreement, or remain a party
to any Reinsurance Agreement (whether in effect as of the Closing Date
or at any time thereafter) for any period longer than the period
legally required under the terms of such Reinsurance Agreement (after
taking into account all rights not to renew such Reinsurance Agreement
or to withdraw from or terminate it without material penalty or
financial detriment to PXRE Group, the Borrower or any of its Material
Subsidiaries) with any reinsurer that is neither rated "A-" or better
by A.M. Best & Company nor has a financial strength or group rating of
"A-" or better by Standard & Poor's or Moody's (any such reinsurer, a
"Rating Deficient Reinsurer") unless such Rating Deficient Reinsurer
either
(u) is a syndicate that is operating as part of the
Lloyd's insurance Market during any period that the Lloyd's
insurance Market maintains a rating of "A-" or better by A.M.
Best & Company or "A-" or better by Standard & Poor's;
(v) is Select Re, provided that without the consent
of the Agent (which shall not be unreasonably withheld), the
amount of gross premium ceded to Select Re by the Insurance
Subsidiaries during any calendar year shall not materially
exceed that amount of gross premium determined by multiplying
Select Re's capital and surplus as at December 31 of the prior
year by a fraction the numerator of which is the aggregate
amount of gross premiums written by the Insurance Subsidiaries
and retained for their own account during such prior year and
the denominator of which is the Combined Statutory Capital and
Surplus of the Insurance Subsidiaries as at December 31 of
such prior year (all determined in accordance with SAP), and
provided further that the obligations of Select Re to
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the Insurance Subsidiaries shall be secured by one or more
trust accounts, one or more clean, irrevocable and
unconditional letters of credit, or other security
arrangements or combination of the foregoing, all as more
fully described in retrocessional agreements substantially in
the form of the existing retrocessional agreements between
Select Re and the Insurance Subsidiaries.
(w) is a pooling arrangement composed solely of
Persons that are not, on an individual basis, Rating Deficient
Reinsurers;
(x) has provided a letter of credit, issued by a
"qualified" bank (as defined in the Requirements of Law of
Connecticut) having a long term senior debt rating of "A" or
better by Standard & Poor's and Moody's, in favor of the
applicable Insurance Subsidiary in an amount equal to or
greater than the obligations transferred pursuant to such
Reinsurance Agreement;
(y) has placed assets in a trust with a fiduciary and
under terms, including investment restrictions consistent with
this Agreement, such that the ceding Insurance Subsidiary
shall be entitled to receive credit as admitted reinsurance,
under the requirements of the applicable Insurance Regulatory
Authority, for the reinsurer's share of the obligations
transferred pursuant to such Reinsurance Agreement;
(z) has otherwise provided collateral in favor of the
applicable Insurance Subsidiary in form and amount
satisfactory to the Required Lenders;
provided, however, that any Insurance Subsidiary may remain a party to
a Reinsurance Agreement with a Rating Deficient Reinsurer that does not
meet the description of clause (u), clause (v) or clause (w) above and
has not provided the collateral of the type described in clauses (x),
(y) and (z) above (all such Ratings Deficient Reinsurers, collectively,
the "Non-Approved Reinsurers") provided that for each fiscal year (or
portion thereof) ending with each fiscal quarter thereof, the aggregate
amount of Reinsurance Premiums Ceded by the Insurance Subsidiaries
during such fiscal year (or portion thereof) to all Non-Approved
Reinsurers as of each such quarter ended is not greater than
$15,000,000;
(ii) enter into any Reinsurance Agreements or, except to the
extent required by an applicable Requirement of Law, make any amendment
or modification to or waiver of any Reinsurance Agreements, that would,
individually or in the aggregate, be reasonably likely to have a
Material Adverse Effect; or
(iii) be or become a party to any Surplus Relief Reinsurance
Agreement if the increase in Combined Statutory Capital and Surplus as
a result of or arising from such Surplus Relief Reinsurance Agreement,
when added to the increase in Combined Statutory Capital and Surplus as
a result of or arising from all other Surplus Relief Reinsurance
Agreements theretofore entered into by any Insurance Subsidiary, net of
any
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surplus relief recaptured in respect of such Surplus Relief Reinsurance
Agreements, exceeds five percent (5%) of Combined Statutory Capital and Surplus
as of the most recent fiscal year end.
ARTICLE VIII
EVENTS OF DEFAULT
8.1 Events of Default. The occurrence of any one or more of the
following events shall constitute an "Event of Default":
(a) The Borrower shall fail to pay any principal of any Loan when due
or shall fail to pay any interest on any Loan or any fee or any other Obligation
within three (3) Business Days of the date due;
(b) The Borrower or Guarantors shall fail to observe, perform or comply
with any condition, covenant or agreement contained in any of Sections 2.14,
5.1, 5.2, 5.3(f), 5.8, 5.9, 5.10 or in Article VI or Article VII;
(c) The Borrower or Guarantors or any of the Subsidiaries shall fail to
observe, perform or comply with any condition, covenant or agreement contained
in this Agreement or any of the other Credit Documents other than those
enumerated in subsections (a) and (b) above, and such failure (i) is deemed by
the terms of the relevant Credit Document to constitute an Event of Default or
(ii) shall continue unremedied for any grace period specifically applicable
thereto or, if no such grace period is applicable, for a period of thirty (30)
days after the earlier of (y) the date on which a Responsible Officer of the
Borrower or any Guarantor acquires knowledge thereof and (z) the date on which
written notice thereof is delivered by the Agent or any Lender to the Borrower;
(d) Any representation or warranty made or deemed made by or on behalf
of the Borrower or Guarantors or any of the Subsidiaries in this Agreement, any
of the other Credit Documents or in any certificate, instrument, report or other
document furnished in connection herewith or therewith or in connection with the
transactions contemplated hereby or thereby shall prove to have been false or
misleading in any material respect as of the time made, deemed made or
furnished;
(e) The Borrower, any Guarantor or Subsidiary shall (i) fail to pay
when due (whether by scheduled maturity, acceleration or otherwise and after
giving effect to any applicable grace period) (y) any principal of or interest
on any Indebtedness (other than the Indebtedness incurred pursuant to this
Agreement) having an aggregate principal amount of at least $5,000,000 or (z)
any termination or other payment under any Hedge Agreement covering a notional
amount of Indebtedness of at least $25,000,000 or (ii) fail to observe, perform
or comply with any condition, covenant or agreement contained in any agreement
or instrument evidencing or relating to any such Indebtedness, or any other
event shall occur or condition exist in respect
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thereof, and the effect of such failure, event or condition is to cause such
Indebtedness to become due, or to be required to be prepaid, redeemed, purchased
or defeased, prior to its stated maturity;
(f) The Borrower, any Guarantor or Subsidiary shall (i) file a
voluntary petition or commence a voluntary case seeking liquidation, winding-up,
reorganization, dissolution, arrangement, readjustment of debts or any other
relief under the Bankruptcy Code or under any other applicable bankruptcy,
insolvency or similar law now or hereafter in effect, (ii) consent to the
institution of, or fail to controvert in a timely and appropriate manner, any
petition or case of the type described in subsection (g) below, (iii) apply for
or consent to the appointment of or taking possession by a custodian, trustee,
receiver or similar official for or of itself or all or a substantial part of
its properties or assets, (iv) fail generally, or admit in writing its
inability, to pay its debts generally as they become due, (v) make a general
assignment for the benefit of creditors or (vi) take any corporate action to
authorize or approve any of the foregoing;
(g) Any involuntary petition or case shall be filed or commenced
against the Borrower, any Guarantor or Subsidiary seeking liquidation,
winding-up, reorganization, dissolution, arrangement, readjustment of debts, the
appointment of a custodian, trustee, receiver or similar official for it or all
or a substantial part of its properties or any other relief under the Bankruptcy
Code or under any other applicable bankruptcy, insolvency or similar law now or
hereafter in effect, and such petition or case shall continue undismissed and
unstayed for a period of sixty (60) days; or an order, judgment or decree
approving or ordering any of the foregoing shall be entered in any such
proceeding;
(h) Any one or more money judgments, writs or warrants of attachment,
executions or similar processes involving an aggregate amount (exclusive of
amounts fully bonded or covered by insurance as to which the surety or insurer,
as the case may be, has acknowledged its liability in writing) in excess of
$3,000,000 shall be entered or filed against the Borrowers, any Guarantor or
Subsidiary or any of their respective properties and the same shall not be
dismissed, stayed or discharged for a period of thirty (30) days or in any event
later than five days prior to the date of any proposed sale thereunder;
(i) Any ERISA Event or any other event or condition shall occur or
exist with respect to any Plan or Multiemployer Plan and, as a result thereof,
together with all other ERISA Events and other events or conditions then
existing, PXRE Group and its ERISA Affiliates have incurred or would be
reasonably likely to incur liability to any one or more Plans or Multiemployer
Plans or to the PBGC (or to any combination thereof) that has or would be
reasonably likely to have a Material Adverse Effect;
(j) Any one or more licenses, permits, accreditations or authorizations
of the Borrower, any Guarantor or any of the Subsidiaries shall be suspended,
limited or terminated or shall not be renewed, or any other action shall be
taken, by any Governmental Authority in response to any alleged failure by the
Borrower, any Guarantor or any of the Subsidiaries to be in compliance with
applicable Requirements of Law, and such action, individually or in the
aggregate, has or would be reasonably likely to have a Material Adverse Effect;
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(k) Any one or more Environmental Claims shall have been asserted
against the Borrower, any Guarantor or any of the Subsidiaries (or a reasonable
basis shall exist therefor); the Borrower ,the Guarantors and the Subsidiaries
have incurred or would be reasonably likely to incur liability as a result
thereof; and such liability, individually or in the aggregate, has or would be
reasonably likely to have a Material Adverse Effect;
(l) Any of the following shall occur: (i) any Person or group of
Persons acting in concert as a partnership or other group shall, as a result of
a tender or exchange offer, open market purchases, privately negotiated
purchases or otherwise, have become, after the date hereof, the "beneficial
owner" (within the meaning of such term under Rule 13d-3 under the Exchange Act)
of securities of the Borrower or any Guarantor representing 20% or more of the
combined voting power of the then outstanding securities of the Borrower or such
Guarantor ordinarily (and apart from rights accruing under special
circumstances) having the right to vote in the election of directors; or (ii)
the Board of Directors of the Borrower shall cease to consist of a majority of
the individuals who constituted the Board of Directors as of the date hereof or
who shall have become a member thereof subsequent to the date hereof after
having been nominated, or otherwise approved in writing, by at least a majority
of individuals who constituted the Board of Directors of the Borrower as of the
date hereof (or their replacements approved as herein required).
8.2 Remedies: Termination of Commitments, Acceleration, etc. Upon and
at any time after the occurrence and during the continuance of any Event of
Default, the Agent shall at the direction, or may with the consent, of the
Required Lenders, take any or all of the following actions at the same or
different times:
(a) Declare the Commitments to be terminated, whereupon the same shall
terminate (provided that, upon the occurrence of an Event of Default pursuant to
Section 8.1(f) or Section 8.1(g), the Commitments shall automatically be
terminated);
(b) Declare all or any part of the outstanding principal amount of the
Loans to be immediately due and payable, whereupon the principal amount so
declared to be immediately due and payable, together with all interest accrued
thereon and all other amounts payable under this Agreement, the Notes and the
other Credit Documents, shall become immediately due and payable without
presentment, demand, protest, notice of intent to accelerate or other notice or
legal process of any kind, all of which are hereby knowingly and expressly
waived by the Borrower (provided that, upon the occurrence of an Event of
Default pursuant to Section 8.1(f) or Section 8.1(g), all of the outstanding
principal amount of the Loans and all other amounts described in this subsection
(b) shall automatically become immediately due and payable without presentment,
demand, protest, notice of intent to accelerate or other notice or legal process
of any kind, all of which are hereby knowingly and expressly waived by the
Borrower and Guarantors);
(c) Obtain, at the Borrower's and Guarantors' expense and as soon as
reasonably possible, with respect to each Insurance Subsidiary, a current
actuarial review and valuation statement of, and opinion as to the adequacy of,
such Insurance Subsidiary's loss and loss adjustment expense reserve positions
with respect to the insurance business then in force, and
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covering such other subjects as are customary in actuarial reviews and as may be
requested by the Required Lenders, prepared by an independent actuarial firm
acceptable to the Required Lenders in accordance with reasonable actuarial
assumptions and procedures (the Borrower hereby agreeing to cooperate in
connection therewith); and
(d) Exercise all rights and remedies available to it under this
Agreement, the other Credit Documents and applicable law.
8.3 Remedies: Set-Off. In addition to all other rights and remedies
available under the Credit Documents or applicable law or otherwise, upon and at
any time after the occurrence and during the continuance of any Event of
Default, each Lender may, and each is hereby authorized by the Borrower and
Guarantors, at any such time and from time to time, to the fullest extent
permitted by applicable law, without presentment, demand, protest or other
notice of any kind, all of which are hereby knowingly and expressly waived by
the Borrower and Guarantors, to set off and to apply any and all deposits
(general or special, time or demand, provisional or final) and any other
property at any time held (including at any branches or agencies, wherever
located), and any other indebtedness at any time owing, by such Lender to or for
the credit or the account of the Borrower or either Guarantor against any or all
of the Obligations to such Lender now or hereafter existing, whether or not such
Obligations may be contingent or unmatured, the Borrower and Guarantors hereby
granting to each Lender a continuing security interest in and Lien upon all such
deposits and other property as security for such Obligations. Each Lender agrees
promptly to notify the Borrower and the Agent after any such set-off and
application; provided, however, that the failure to give such notice shall not
affect the validity of such set-off and application.
ARTICLE IX
GUARANTY
9.1 Guaranty.
(a) In consideration for the Lenders' willingness to permit the
Reorganization and the amendments to the Old Credit Agreement reflected in this
Agreement, the Guarantors hereby unconditionally, irrevocably and jointly and
severally guarantee to the Agent and the Lenders, for the ratable benefit of the
Agent and the Lenders and their respective successors, indorsees, transferees
and assigns, the prompt and complete payment and performance by the Borrower
when due (whether at the stated maturity, by acceleration or otherwise) of the
Obligations.
(b) The Guarantors further agree to pay any and all expenses
(including, without limitation, all reasonable fees and expenses of counsel
actually incurred) that may be paid or incurred by the Agent or any Lender in
enforcing, or obtaining advice of counsel in respect of, any rights with respect
to, or collecting, any or all of the Obligations and/or enforcing any rights
with respect to, or collecting against, the Guarantors under this Article IX.
This Article IX shall remain in full force and effect until the Obligations are
paid in full and the Commitments have
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been terminated, notwithstanding that from time to time prior thereto the
Borrower may be free from any Obligations.
(c) No payment or payments made by the Borrower or any other Person or
received or collected by the Agent or any Lender from the Borrower or any other
Person by virtue of any action or proceeding or any set-off or appropriation or
application, at any time or from time to time, in reduction of or in payment of
the Obligations shall be deemed to modify, reduce, release or otherwise affect
the liability of the Guarantors hereunder, and the Guarantors shall,
notwithstanding any such payment or payments, remain liable hereunder for the
Obligations until the Obligations are paid in full and the Commitments have been
terminated.
(d) The Guarantors agree that whenever, at any time, or from time to
time, they shall make any payment to the Agent or any Lender on account of their
liability under this Article IX, they will notify the Agent and such Lender in
writing that such payment is made under this Article IX for such purpose.
9.2 Right of Set-Off. The Agent and each Lender is hereby irrevocably
authorized at any time and from time to time without notice to the Guarantors,
any such notice being expressly waived by the Guarantors, to set off and
appropriate and apply any and all deposits (general or special, time or demand,
provisional or final), in any currency, and any other credits, indebtedness or
claims, in any currency, in each case whether direct or indirect, absolute or
contingent, matured or unmatured, at any time held or owing by the Agent or such
Lender to or for the credit or the account of either Guarantor, or any part
thereof in such amounts as the Agent or such Lender may elect, against or on
account of the obligations and liabilities of the Guarantors to the Agent or
such Lender hereunder which are then due and payable and claims of every nature
and description of the Agent or such Lender against the Guarantors, in any
currency, whether arising hereunder, under any other Credit Document or
otherwise in connection therewith, as the Agent or such Lender may elect,
whether or not the Agent or such Lender has made any demand for payment. The
Agent or such Lender shall notify the Guarantors promptly of any such set-off
and the application made by the Agent or such Lender, as the case may be, of the
proceeds thereof; provided that the failure to give such notice shall not affect
the validity of such set-off and application. The rights of the Agent and each
Lender under this Section are in addition to other rights and remedies
(including, without limitation, other rights of set-off) that the Agent or such
Lender may have.
9.3 No Subrogation. Notwithstanding any payment or payments made by the
Guarantors hereunder, or any set-off or application of funds of the Guarantors
by the Agent or any Lender, the Guarantors shall not be entitled to be
subrogated to any of the rights of the Agent or any Lender against the Borrower
or against any collateral or other security or guarantee or right of offset held
by the Agent or any Lender for the payment of the Obligations, nor shall the
Guarantors seek or be entitled to seek any contribution or reimbursement from
the Borrower in respect of payments made by the Guarantors hereunder, until all
amounts owing to the Agent and the Lenders by the Borrower on account of the
Obligations are paid in full and the Commitments have been terminated. If any
amount shall be paid to the Guarantors on account of such subrogation rights at
any time when all of the Obligations shall not have been paid in full, such
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amount shall be held by the Guarantors in trust for the Agent and the Lenders,
segregated from other funds of the Guarantors, and shall, forthwith upon receipt
by the Guarantors, be turned over to the Agent in the exact form received by the
Guarantors (duly endorsed by the Guarantors to the Agent, if required), to be
applied against the Obligations, whether matured or unmatured, in such order as
Agent may determine. The provisions of this Section shall survive the
termination of this Agreement and the payment in full of the Obligations and the
termination of the Commitments.
9.4 Amendments, etc. with respect to the Obligations; Waiver of Rights.
The Guarantors shall remain obligated hereunder notwithstanding that, without
any reservation of rights against the Guarantors, and without notice to or
further assent by the Guarantors, any demand for payment of any of the
Obligations made by the Agent or any Lender may be rescinded by the Agent or
such Lender, and any of the Obligations continued, and the Obligations, or the
liability of any other party upon or for any part thereof, or any collateral or
other security or guarantee therefor or right of offset with respect thereto,
may, from time to time, in whole or in part, be renewed, extended, amended,
modified, accelerated, compromised, waived, surrendered or released by the Agent
or any Lender, and any Credit Documents and any other documents executed and
delivered in connection therewith may be amended, modified, supplemented or
terminated, in whole or in part, in accordance with the provisions thereof as
the Agent (or the requisite Lenders, as the case may be) may deem advisable from
time to time, and any collateral or other security, guarantee or right of offset
at any time held by the Agent or any Lender for the payment of the Obligations
may be sold, exchanged, waived, surrendered or released. None of the Agent or
any Lender shall have any obligation to protect, secure, perfect or insure any
Lien at any time held by it as security for the Obligations or for this
Agreement or any property subject thereto. When making any demand hereunder
against either Guarantor the Agent or any Lender may, but shall be under no
obligation to, make a similar demand on the Borrower or the other Guarantor or
any other guarantor, and any failure by the Agent or any Lender to make any such
demand or to collect any payments from the Borrower, the other Guarantor, or any
such other guarantor or any release of the Borrower, the other Guarantor or such
other guarantor shall not relieve either Guarantor of its obligations or
liabilities hereunder, and shall not impair or affect the rights and remedies,
express or implied, or as a matter of law, of the Agent or any Lender against
either Guarantor. For the purposes hereof "demand" shall include the
commencement and continuance of any legal proceedings.
9.5 Guaranty Absolute and Unconditional. The Guarantors waive any and
all notice of the creation, renewal, extension or accrual of any of the
Obligations and notice of or proof of reliance by the Agent or any Lender upon
this Agreement or acceptance of this Agreement; the Obligations, and any of
them, shall conclusively be deemed to have been created, contracted or incurred,
or renewed, extended, amended or waived, in reliance upon this Agreement; and
all dealings between the Guarantors, on the one hand, and the Agent and the
Lenders, on the other, shall likewise be conclusively presumed to have been had
or consummated in reliance upon this Agreement. The Guarantors waive diligence,
presentment, protest, demand for payment and notice of default or nonpayment to
or upon the Guarantors and the Borrower with respect to the Obligations, and
without limitation of the foregoing, specifically waive the benefits of Sections
26-7 through 26-9, inclusive, of the General Statutes of North Carolina, as
amended
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from time to time, and any similar statute or law of any other jurisdiction, as
the same may be amended from time to time. This Article IX shall be construed as
a continuing, absolute and unconditional guaranty of payment and not of
collection and the Guarantors hereby waive any defenses that they may now have
or in the future may have, or are deemed to have, without regard to (a) the
validity, regularity or enforceability of this Agreement, any other Credit
Document, any of the Obligations or any other Collateral or other security
therefor or guarantee or right of offset with respect thereto at any time or
from time to time held by the Agent or any Lender, (b) any defense, set-off or
counterclaim (other than a defense of payment or performance) that may at any
time be available to or be asserted by the Borrower against the Agent or any
Lender, (c) any discharge, modification, settlement, compromise or other action
in respect of any Obligations or any guaranty or other liability in respect
thereof, including any acceptance or refusal of any offer or performance with
respect to the same or the subordination of the same to the payment of any other
obligations, or (d) any other circumstance whatsoever (with or without notice to
or knowledge of the Guarantors or the Borrower) that constitutes, or might be
construed to constitute, an equitable or legal discharge of the Borrower for the
Obligations, or of the Guarantors under this Article IX, in bankruptcy or in any
other instance. When pursuing its rights and remedies hereunder against the
Guarantors, the Agent and any Lender may, but shall be under no obligation to,
pursue such rights and remedies as it may have against the Borrower or any other
Person or against any collateral or other security or guarantee for the
Obligations or any right of offset with respect thereto, and any failure by the
Agent or any Lender to pursue such other rights or remedies or to collect any
payments from the Borrower or any such other Person or to realize upon any such
collateral or other security or guarantee or to exercise any such right of
offset, or any release of any of the Borrower or any such other Person or of any
such Collateral or other security, guarantee or right of offset, shall not
relieve the Guarantors of any liability hereunder, and shall not impair or
affect the rights and remedies, whether express, implied or available as a
matter of law, of the Agent or any Lender against the Guarantors. This Article
IX shall remain in full force and effect and be binding in accordance with and
to the extent of its terms upon the Guarantors and their respective successors
and assigns, and shall inure to the benefit of the Agent and the Lenders, and
their respective successors, indorsees, transferees and assigns, until all the
Obligations and the obligations of the Guarantors under this Agreement shall
have been satisfied by payment in full and the Commitments shall have been
terminated, notwithstanding that from time to time during the term of this
Agreement the Borrower may be free from any Obligations.
9.6 Reinstatement. This Article IX shall continue to be effective, or
be reinstated, as the case may be, if at any time payment, or any part thereof,
of any of the Obligations is rescinded or must otherwise be restored or returned
by the Agent or any Lender upon the insolvency, bankruptcy, dissolution,
liquidation or reorganization of the Borrower or upon or as a result of the
appointment of a receiver, intervenor or conservator of, or trustee or similar
officer for, the Borrower or any substantial part of its property, or otherwise,
all as though such payments had not been made.
9.7 Payments. The Guarantors hereby agree that all payments required to
be made by them hereunder will be made to the Agent without set-off or
counterclaim in accordance with the terms of the Obligations, including, without
limitation, in the currency in which payment is due.
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ARTICLE X
THE AGENT
10.1 Appointment. Each Lender hereby irrevocably appoints and
authorizes First Union to act as Agent hereunder and under the other Credit
Documents and to take such actions as agent on its behalf hereunder and under
the other Credit Documents, and to exercise such powers and to perform such
duties, as are specifically delegated to the Agent by the terms hereof or
thereof, together with such other powers and duties as are reasonably incidental
thereto.
10.2 Nature of Duties. The Agent shall have no duties or
responsibilities other than those expressly set forth in this Agreement and the
other Credit Documents. The Agent shall not have, by reason of this Agreement or
any other Credit Document, a fiduciary relationship in respect of any Lender;
and nothing in this Agreement or any other Credit Document, express or implied,
is intended to or shall be so construed as to impose upon the Agent any
obligations or liabilities in respect of this Agreement or any other Credit
Document except as expressly set forth herein or therein. The Agent may execute
any of its duties under this Agreement or any other Credit Document by or
through agents or attorneys-in-fact and shall not be responsible for the
negligence or misconduct of any agents or attorneys-in-fact that it selects with
reasonable care. The Agent shall be entitled to consult with legal counsel,
independent public accountants and other experts selected by it with respect to
all matters pertaining to this Agreement and the other Credit Documents and its
duties hereunder and thereunder and shall not be liable for any action taken or
omitted to be taken in good faith by it in accordance with the advice of such
counsel, accountants or experts. The Lenders hereby acknowledge that the Agent
shall not be under any duty to take any discretionary action permitted to be
taken by it pursuant to the provisions of this Agreement or any other Credit
Document unless it shall be requested in writing to do so by the Required
Lenders (or, where a higher percentage of the Lenders is expressly required
hereunder, such Lenders).
10.3 Exculpatory Provisions. Neither the Agent nor any of its officers,
directors, employees, agents, attorneys-in-fact or Affiliates shall be (i)
liable for any action taken or omitted to be taken by it or such Person under or
in connection with the Credit Documents, except for its or such Person's own
gross negligence or willful misconduct, (ii) responsible in any manner to any
Lender for any recitals, statements, information, representations or warranties
herein or in any other Credit Document or in any document, instrument,
certificate, report or other writing delivered in connection herewith or
therewith, for the execution, effectiveness, genuineness, validity,
enforceability or sufficiency of this Agreement or any other Credit Document, or
for the financial condition of each Credit Party, their respective Subsidiaries
or any other Person, or (iii) required to ascertain or make any inquiry
concerning the performance or observance of any of the terms, provisions or
conditions of this Agreement or any other Credit Document or the existence or
possible existence of any Default or Event of Default, or to inspect the
properties, books or records of any Credit Party or any of their respective
Subsidiaries.
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10.4 Reliance by Agent. The Agent shall be entitled to rely, and shall
be fully protected in relying, upon any notice, statement, consent or other
communication (including, without limitation, any thereof by telephone,
telecopy, telex, telegram or cable) believed by it in good faith to be genuine
and correct and to have been signed, sent or made by the proper Person or
Persons. The Agent may deem and treat each Lender as the owner of its interest
hereunder for all purposes hereof unless and until a written notice of the
assignment, negotiation or transfer thereof shall have been given to the Agent
in accordance with the provisions of this Agreement. The Agent shall be entitled
to refrain from taking or omitting to take any action in connection with this
Agreement or any other Credit Document (i) if such action or omission would, in
the reasonable opinion of the Agent, violate any applicable law or any provision
of this Agreement or any other Credit Document or (ii) unless and until it shall
have received such advice or concurrence of the Required Lenders (or, where a
higher percentage of the Lenders is expressly required hereunder, such Lenders)
as it deems appropriate or it shall first have been indemnified to its
satisfaction by the Lenders against any and all liability and expense (other
than liability and expense arising from its own gross negligence or willful
misconduct) that may be incurred by it by reason of taking, continuing to take
or omitting to take any such action. Without limiting the foregoing, no Lender
shall have any right of action whatsoever against the Agent as a result of the
Agent's acting or refraining from acting hereunder or under any other Credit
Document in accordance with the instructions of the Required Lenders (or, where
a higher percentage of the Lenders is expressly required hereunder, such
Lenders), and such instructions and any action taken or failure to act pursuant
thereto shall be binding upon all of the Lenders (including all subsequent
Lenders).
10.5 Non-Reliance on Agent and Other Lenders. Each Lender expressly
acknowledges that neither the Agent nor any of its officers, directors,
employees, agents, attorneys-in-fact or Affiliates has made any representation
or warranty to it and that no act by the Agent or any such Person hereinafter
taken, including any review of the affairs of the Credit Parties and their
Subsidiaries, shall be deemed to constitute any representation or warranty by
the Agent to any Lender. Each Lender represents to the Agent that (i) it has,
independently and without reliance upon the Agent or any other Lender and based
on such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, prospects, operations,
properties, financial and other condition and creditworthiness of the Borrower,
the Guarantors and the Subsidiaries and made its own decision to enter into this
Agreement and extend credit to the Borrower hereunder, and (ii) it will,
independently and without reliance upon the Agent or any other Lender and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in taking or
not taking action hereunder and under the other Credit Documents and to make
such investigation as it deems necessary to inform itself as to the business,
prospects, operations, properties, financial and other condition and
creditworthiness of the Credit Parties and their respective Subsidiaries. Except
as expressly provided in this Agreement and the other Credit Documents, the
Agent shall have no duty or responsibility, either initially or on a continuing
basis, to provide any Lender with any credit or other information concerning the
business, prospects, operations, properties, financial or other condition or
creditworthiness of the Credit Parties, their respective Subsidiaries or any
other Person that may at any time come into the
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possession of the Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or Affiliates.
10.6 Notice of Default. The Agent shall not be deemed to have knowledge
or notice of the occurrence of any Default or Event of Default unless the Agent
shall have received written notice from the Borrower or a Lender referring to
this Agreement, describing such Default or Event of Default and stating that
such notice is a "notice of default." In the event that the Agent receives such
a notice, the Agent will give notice thereof to the Lenders as soon as
reasonably practicable; provided, however, that if any such notice has also been
furnished to the Lenders, the Agent shall have no obligation to notify the
Lenders with respect thereto. The Agent shall (subject to Sections 10.4 and
11.6) take such action with respect to such Default or Event of Default as shall
reasonably be directed by the Required Lenders; provided that, unless and until
the Agent shall have received such directions, the Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default or Event of Default as it shall deem advisable in the best
interests of the Lenders except to the extent that this Agreement expressly
requires that such action be taken, or not be taken, only with the consent or
upon the authorization of the Required Lenders or all of the Lenders.
10.7 Indemnification. To the extent the Agent is not reimbursed by or
on behalf of the Borrower, and without limiting the obligation of the Borrower
to do so, the Lenders agree (i) to indemnify the Agent and its officers,
directors, employees, agents, attorneys-in-fact and Affiliates, ratably in
proportion to their respective percentages as used in determining the Required
Lenders as of the date of determination, from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses (including, without limitation, attorneys' fees and expenses) or
disbursements of any kind or nature whatsoever that may at any time (including,
without limitation, at any time following the repayment in full of the Loans and
the termination of the Commitments) be imposed on, incurred by or asserted
against the Agent in any way relating to or arising out of this Agreement or any
other Credit Document or any documents contemplated by or referred to herein or
the transactions contemplated hereby or thereby or any action taken or omitted
by the Agent under or in connection with any of the foregoing, and (ii) to
reimburse the Agent upon demand, ratably in proportion to their respective
percentages as used in determining the Required Lenders as of the date of
determination, for any expenses incurred by the Agent in connection with the
preparation, negotiation, execution, delivery, administration, amendment,
modification, waiver or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement or any of the other Credit Documents
(including, without limitation, reasonable attorneys' fees and expenses and
compensation of agents and employees paid for services rendered on behalf of the
Lenders); provided, however, that no Lender shall be liable for any portion of
such liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements to the extent resulting from the gross
negligence or willful misconduct of the party to be indemnified.
10.8 The Agent in its Individual Capacity. With respect to its
Commitment, the Loans made by it and the Note or Notes issued to it, the Agent
in its individual capacity and not as Agent shall have the same rights and
powers under the Credit Documents as any other Lender
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and may exercise the same as though it were not performing the agency duties
specified herein; and the terms "Lenders," "Required Lenders," "holders of
Notes" and any similar terms shall, unless the context clearly otherwise
indicates, include the Agent in its individual capacity. The Agent and its
Affiliates may accept deposits from, lend money to, make investments in, and
generally engage in any kind of banking, trust, financial advisory or other
business with the Credit Parties, any of their respective Subsidiaries or any of
their respective Affiliates as if the Agent were not performing the agency
duties specified herein, and may accept fees and other consideration from any of
them for services in connection with this Agreement and otherwise without having
to account for the same to the Lenders.
10.9 Successor Agent. The Agent may resign at any time by giving ten
(10) days' prior written notice to the Borrower and the Lenders. Upon any such
notice of resignation, the Required Lenders will, with the prior written consent
of the Borrower (which consent shall not be unreasonably withheld), appoint from
among the Lenders a successor to the Agent (provided that the Borrower's consent
shall not be required in the event a Default or Event of Default shall have
occurred and be continuing). If no successor to the Agent shall have been so
appointed by the Required Lenders and shall have accepted such appointment
within such ten-day period, then the retiring Agent may, on behalf of the
Lenders and after consulting with the Lenders and the Borrower, appoint a
successor Agent from among the Lenders. Upon the acceptance of any appointment
as Agent by a successor Agent, such successor Agent shall thereupon succeed to
and become vested with all the rights, powers, privileges and duties of the
retiring Agent, and the retiring Agent shall be discharged from its duties and
obligations hereunder and under the other Credit Documents. After any retiring
Agent's resignation as Agent, the provisions of this Article shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was Agent.
If no successor to the Agent has accepted appointment as Agent by the thirtieth
(30th) day following a retiring Agent's notice of resignation, the retiring
Agent's resignation shall nevertheless thereupon become effective, and the
Lenders shall thereafter perform all of the duties of the Agent hereunder and
under the other Credit Documents until such time, if any, as the Required
Lenders appoint a successor Agent as provided for hereinabove.
ARTICLE XI
MISCELLANEOUS
11.1 Fees and Expenses. The Borrower and the Guarantors agree effective
upon the execution of this Agreement (i) whether or not the transactions
contemplated by this Agreement shall be consummated, to pay upon demand all
reasonable out-of-pocket costs and expenses of the Agent (including, without
limitation, the reasonable fees and expenses of counsel to the Agent) in
connection with the Agent's due diligence investigation in connection with, and
the preparation, negotiation, execution, delivery and syndication of, this
Agreement and the other Credit Documents, and any amendment, modification or
waiver hereof or thereof or consent with respect hereto or thereto, (ii) to pay
upon demand all reasonable out-of-pocket costs and expenses of the Agent and
each Lender (including, without limitation, reasonable attorneys' fees and
expenses) in connection with (y) any refinancing or restructuring of the credit
arrangement
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provided under this Agreement, whether in the nature of a "work-out," in any
insolvency or bankruptcy proceeding or otherwise and whether or not consummated,
and (z) the enforcement, attempted enforcement or preservation of any rights or
remedies under this Agreement or any of the other Credit Documents, whether in
any action, suit or proceeding (including any bankruptcy or insolvency
proceeding) or otherwise, and (iii) to pay and hold the Agent and each Lender
harmless from and against all liability for any intangibles, documentary, stamp
or other similar taxes, fees and excises, if any, including any interest and
penalties, and any finder's or brokerage fees, commissions and expenses (other
than any fees, commissions or expenses of finders or brokers engaged by the
Agent or any Lender), that may be payable in connection with the transactions
contemplated by this Agreement and the other Credit Documents. The Borrower's
obligations under this Section 11.1 shall survive the repayment of the Loans.
11.2 Indemnification. (a) The Borrower and the Guarantors agree,
effective upon the execution of this Agreement and whether or not the
transactions contemplated by this Agreement shall be consummated, to indemnify
and hold the Agent and each Lender and each of their respective directors,
officers, employees, agents and Affiliates (each, an "Indemnified Person")
harmless from and against any and all claims, losses, damages, obligations,
liabilities, penalties, costs and expenses (including, without limitation,
reasonable attorneys' fees and expenses) of any kind or nature whatsoever,
whether direct, indirect or consequential (collectively, "Indemnified Costs"),
that may at any time be imposed on, incurred by or asserted against any such
Indemnified Person as a result of, arising from or in any way relating to the
preparation, execution, performance or enforcement of this Agreement or any of
the other Credit Documents, any of the transactions contemplated herein or
therein or any transaction financed or to be financed in whole or in part,
directly or indirectly, with the proceeds of any Loans (including, without
limitation, in connection with the actual or alleged generation, presence,
discharge or release of any Hazardous Substances on, into or from, or the
transportation of Hazardous Substances to or from, any real property at any time
owned or leased by the Borrower or any of its Subsidiaries, any other
Environmental Claims or any violation of or liability under any Environmental
Law), or any action, suit or proceeding (including any inquiry or investigation)
by any Person, whether threatened or initiated, related to any of the foregoing,
and in any case whether or not such Indemnified Person is a party to any such
action, proceeding or suit or a subject of any such inquiry or investigation;
provided, however, that no Indemnified Person shall have the right to be
indemnified hereunder for any Indemnified Costs to the extent resulting from the
gross negligence or willful misconduct of such Indemnified Person. Subject only
to paragraph (b) below, all of the foregoing Indemnified Costs of any
Indemnified Person shall be paid or reimbursed by the Borrower, as and when
incurred and upon demand. The obligations of the Borrower under this Section
11.2 shall survive the repayment of the Loans.
(b) Any Indemnified Person shall give prompt written notice to the
Borrower after the receipt by such Indemnified party of any written notice, or
after such Indemnified Person becomes aware, of the commencement of any action,
suit, claim or proceeding for which such Indemnified Person seeks
indemnification hereunder. Upon such notice, the Borrower shall be entitled to
defend such action, suit, claim or proceeding at its own expense and by its own
counsel, provided that (i) such counsel is reasonably satisfactory to the
Indemnified Person, (ii) the Indemnified Person is kept reasonably informed of
developments, and (iii) such counsel
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proceeds with diligence and in good faith with respect thereto. The Indemnified
Person shall have the right to participate in the defense and investigation of
such action, suit, claim or proceeding with its own counsel and at its own
expense, except that the Borrower shall bear the reasonable expense of such
separate counsel if (x) in the reasonable judgment of the Indemnified Person,
based upon written advice of its counsel, a conflict of interest may exist
between such Indemnified Person and the Borrower with respect to the matter, in
which case if the Indemnified Person notifies the Borrower in writing that such
Indemnified Person elects to employ separate counsel at the Borrower's expense,
the Borrower shall not have the right to assume the defense of such action,
suit, claim or proceeding on behalf of such Indemnified Person, or (y) the
Borrower shall have failed to assume the defense of such claim in the manner
provided above within a reasonable time after notice thereof is given to the
Borrower; provided, however, that the Borrower shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
reasonable fees and expense of more than one separate firm for all Indemnified
Persons unless, in the reasonable judgment of any Indemnified Person, based upon
written advice of its counsel, a conflict of interest may exist between or among
the Indemnified Persons. No Indemnified Person seeking indemnification hereunder
will, without the Borrower's prior written consent, settle, compromise, consent
to the entry of any judgment in or otherwise seek to terminate any action, suit,
claim or proceeding referred to above.
11.3 Governing Law; Consent to Jurisdiction. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS (EXCLUDING NEW YORK GENERAL
OBLIGATIONS LAW 'SS'5-1401). THE PARTIES HERETO HEREBY DECLARE THAT IT IS THEIR
INTENTION THAT THIS AGREEMENT SHALL BE REGARDED AS MADE UNDER THE LAWS OF THE
STATE OF NEW YORK AND THAT THE LAWS OF SAID STATE SHALL BE APPLIED IN
INTERPRETING ITS PROVISIONS IN ALL CASES WHERE LEGAL INTERPRETATION SHALL BE
REQUIRED. EACH OF THE PARTIES HERETO AGREES (A) THAT THIS AGREEMENT INVOLVES AT
LEAST $250,000; AND (B) THAT THIS AGREEMENT HAS BEEN ENTERED INTO BY THE PARTIES
HERETO IN EXPRESS RELIANCE UPON NEW YORK GENERAL OBLIGATIONS LAW 'SS'5-1401.
NOTWITHSTANDING THE FOREGOING CHOICE OF LAW, THE BORROWER AND GUARANTORS HEREBY
CONSENT TO THE NONEXCLUSIVE JURISDICTION OF ANY STATE COURT WITHIN MECKLENBURG
COUNTY, NORTH CAROLINA OR ANY FEDERAL COURT LOCATED WITHIN THE WESTERN DISTRICT
OF THE STATE OF NORTH CAROLINA OR THE SOUTHERN DISTRICT OF THE STATE OF NEW YORK
FOR ANY PROCEEDING INSTITUTED HEREUNDER OR UNDER ANY OF THE OTHER CREDIT
DOCUMENTS, OR ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE
OTHER CREDIT DOCUMENTS, OR ANY PROCEEDING TO WHICH THE AGENT OR ANY LENDER OR
THE BORROWER OR ANY GUARANTOR IS A PARTY, INCLUDING ANY ACTIONS BASED UPON,
ARISING OUT OF, OR IN CONNECTION WITH ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENT (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE AGENT OR ANY LENDER OR THE
BORROWER OR ANY GUARANTOR. THE BORROWER
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AND EACH GUARANTOR IRREVOCABLY AGREE TO BE BOUND (SUBJECT TO ANY AVAILABLE RIGHT
OF APPEAL) BY ANY JUDGMENT RENDERED OR RELIEF GRANTED THEREBY AND FURTHER WAIVES
ANY OBJECTION THAT IT MAY HAVE BASED ON LACK OF JURISDICTION OR IMPROPER VENUE
OR FORUM NON CONVENIENS TO THE CONDUCT OF ANY SUCH PROCEEDING. THE BORROWER AND
EACH GUARANTOR CONSENT THAT ALL SERVICE OF PROCESS BE MADE BY REGISTERED OR
CERTIFIED MAIL DIRECTED TO IT AT ITS ADDRESS SET FORTH HEREINBELOW, AND SERVICE
SO MADE SHALL BE DEEMED TO BE COMPLETED UPON THE EARLIER OF ACTUAL RECEIPT
THEREOF OR THREE (3) DAYS AFTER DEPOSIT IN THE UNITED STATES MAILS, PROPER
POSTAGE PREPAID AND PROPERLY ADDRESSED. NOTHING IN THIS SECTION SHALL AFFECT THE
RIGHT TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR AFFECT THE
RIGHT OF THE AGENT OR ANY LENDER TO BRING ANY ACTION OR PROCEEDING AGAINST THE
BORROWER OR ANY GUARANTOR IN THE COURTS OF ANY OTHER JURISDICTION.
11.4 Waiver of Jury Trial. TO THE FULLEST EXTENT PERMITTED UNDER
APPLICABLE LAW, EACH OF THE BORROWER, THE GUARANTORS, THE LENDERS AND THE AGENT
HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATED TO THIS AGREEMENT
AND THE OTHER CREDIT DOCUMENTS OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY.
11.5 Notices. All notices and other communications provided for
hereunder shall be in writing (including telegraphic, telex, facsimile
transmission or cable communication) and mailed, telegraphed, telexed,
telecopied, cabled or delivered to the party to be notified at the following
addresses:
(a) if to the Borrower, to 399 Thornall Street, Edison, New Jersey
08837, Attention: Mr. James F. Dore, Executive Vice President and Chief
Financial Officer, or Mr. Sanford M. Kimmel, Senior Vice President and
Treasurer, Telecopy No. (732) 906-9157, with a copy to Morgan, Lewis & Bockius
LLP, 101 Park Avenue, New York, New York 10178, Attention: F. Sedgwick Browne,
Telecopy No. (212) 309-6273;
(b) if to PXRE Group, to Clarendon House, 2 Church Street, P.O. Box
HM666, Hamilton HM CX Bermuda, Attention: David J. Doyle, Telecopy No.
( ) , with a copy to ;
(c) if to PXRE Barbados, to Chancery Chambers, High Street, Bridgetown,
Barbados West Indies, Attention: Trevor A. Carmichael, Telecopy No.
( ) , with a copy to ;
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(d) if to the Agent, to First Union National Bank, One First Union
Center, DC-4, 301 South College Street, Charlotte, North Carolina 28288-0680,
Attention: Syndication Agency Services, Telecopy No. (704) 383-0288; and
(e) if to any Lender, to it at the address set forth on Schedule 1.1
(or if to any Lender not a party hereto as of the date hereof, at the address
set forth in its Assignment and Acceptance);
or in each case, to such other address as any party may designate for itself by
like notice to all other parties hereto. All such notices and communications
shall be deemed to have been given (i) if mailed as provided above by any method
other than overnight delivery service, on the third Business Day after deposit
in the mails, (ii) if mailed by overnight delivery service, telegraphed,
telexed, telecopied or cabled, when delivered for overnight delivery, delivered
to the telegraph company, confirmed by telex answerback, transmitted by
telecopier or delivered to the cable company, respectively, or (iii) if
delivered by hand, upon delivery; provided that notices and communications to
the Agent shall not be effective until received by the Agent.
11.6 Amendments, Waivers, etc. No amendment, modification, waiver or
discharge or termination of, or consent to any departure by the Borrower or
either Guarantor from, any provision of this Agreement or any other Credit
Document, shall be effective unless in a writing signed by the Required Lenders
(or by the Agent at the direction or with the consent of the Required Lenders),
and then the same shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that no such amendment,
modification, waiver, discharge, termination or consent shall:
(a) unless agreed to by each Lender directly affected thereby, (i)
reduce or forgive the principal amount of any Loan, reduce the rate of or
forgive any interest thereon, or reduce or forgive any fees or other Obligations
(other than fees payable to the Agent for its own account), or (ii) extend the
Maturity Date or any other date (including any scheduled date for the mandatory
reduction or termination of any Commitments) fixed for the payment of any
principal of or interest on any Loan (other than additional interest payable
under Section 2.8(b) at the election of the Required Lenders, as provided
therein), any fees (other than fees payable to the Agent for its own account) or
any other Obligations;
(b) unless agreed to by all of the Lenders, (i) increase or extend any
Commitment of any Lender (it being understood that a waiver of any Event of
Default, if agreed to by the requisite Lenders hereunder, shall not constitute
such an increase), (ii) change the percentage of the aggregate Commitments or of
the aggregate unpaid principal amount of the Loans, or the number or percentage
of Lenders, that shall be required for the Lenders or any of them to take or
approve, or direct the Agent to take, any action hereunder (including as set
forth in the definition of "Required Lenders"), (iii) release any Guarantor from
its obligations under Article IX, or (iv) change any provision of Section 2.15
or this Section; and
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(c) unless agreed to by the Agent in addition to the Lenders required
as provided hereinabove to take such action, affect the respective rights or
obligations of the Agent, hereunder or under any of the other Credit Documents;
and provided further that the Fee Letter may be amended or modified, and any
rights thereunder waived, in a writing signed by the parties thereto.
11.7 Assignments, Participations. (a) Each Lender may assign to one or
more other Eligible Assignees (each, an "Assignee") all or a portion of its
rights and obligations under this Agreement (including, without limitation, all
or a portion of its Commitment, the outstanding Loans made by it, and the Note
or Notes held by it); provided, however, that (i) any such assignment (other
than an assignment to a Lender or an Affiliate of a Lender) shall not be made
without the prior written consent of the Agent and the Borrower (to be evidenced
by its counterexecution of the relevant Assignment and Acceptance), which
consent shall not be unreasonably withheld (provided that the Borrower's consent
shall not be required in the event a Default or Event of Default shall have
occurred and be continuing), (ii) each such assignment shall be of a uniform,
and not varying, percentage of all of the assigning Lender's rights and
obligations under this Agreement, (iii) except in the case of an assignment to a
Lender or an Affiliate of a Lender, no such assignment shall be in an aggregate
principal amount (determined as of the date of the Assignment and Acceptance
with respect to such assignment) less than $5,000,000 determined by combining
the amount of the assigning Lender's outstanding Loans and Unutilized Commitment
being assigned pursuant to such assignment, and (iv) the parties to each such
assignment will execute and deliver to the Agent, for its acceptance and
recording in the Register, an Assignment and Acceptance, together with any Note
or Notes subject to such assignment, and will pay a nonrefundable processing fee
of $3,000 to the Agent for its own account. Upon such execution, delivery,
acceptance and recording of the Assignment and Acceptance, from and after the
effective date specified therein, which effective date shall be at least five
(5) Business Days after the execution thereof (unless the Agent shall otherwise
agree), (A) the Assignee thereunder shall be a party hereto and, to the extent
that rights and obligations hereunder have been assigned to it pursuant to such
Assignment and Acceptance, shall have the rights and obligations of the
assigning Lender hereunder with respect thereto and (B) the assigning Lender
shall, to the extent that rights and obligations hereunder have been assigned by
it pursuant to such Assignment and Acceptance, relinquish its rights (other than
rights under the provisions of this Agreement and the other Credit Documents
relating to indemnification or payment of fees, costs and expenses, to the
extent such rights relate to the time prior to the effective date of such
Assignment and Acceptance) and be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance covering all or the
remaining portion of such assigning Lender's rights and obligations under this
Agreement, such Lender shall cease to be a party hereto). The terms and
provisions of each Assignment and Acceptance shall, upon the effectiveness
thereof, be incorporated into and made a part of this Agreement, and the
covenants, agreements and obligations of each Lender set forth therein shall be
deemed made to and for the benefit of the Agent and the other parties hereto as
if set forth at length herein.
(b) The Agent will maintain at its address for notices referred to
herein a copy of each Assignment and Acceptance delivered to and accepted by it
and a register for the recordation of
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<PAGE>
the names and addresses of the Lenders and the Commitments of, and principal
amount of the Loans owing to, each Lender from time to time (the "Register").
The entries in the Register shall be conclusive and binding for all purposes,
absent manifest error, and the Borrower, the Agent and the Lenders may treat
each Person whose name is recorded in the Register as a Lender hereunder for all
purposes of this Agreement. The Register shall be available for inspection by
the Borrower and each Lender at any reasonable time and from time to time upon
reasonable prior notice.
(c) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an Assignee and, if required,
counterexecuted by the Borrower, together with the Note or Notes subject to such
assignment and the processing fee referred to in subsection (a) above, the Agent
will (i) accept such Assignment and Acceptance, (ii) on the effective date
thereof, record the information contained therein in the Register and (iii) give
notice thereof to the Borrower and the Lenders. Within five (5) Business Days
after its receipt of such notice, the Borrower, at its own expense, will execute
and deliver to the Agent, in exchange for the surrendered Note or Notes, a new
Note or Notes to the order of the Assignee (and, if the assigning Lender has
retained any portion of its rights and obligations hereunder, to the order of
the assigning Lender), prepared in accordance with the provisions of Section 2.4
as necessary to reflect, after giving effect to the assignment, the Commitments
of the Assignee and (to the extent of any retained interests) the assigning
Lender, dated the date of the replaced Note or Notes and otherwise in
substantially the form of Exhibit A. The Agent will return canceled Notes to the
Borrower.
(d) Each Lender may, without the consent of the Borrower, the Agent or
any other Lender, sell to one or more other Persons (each, a "Participant")
participations in any portion comprising less than all of its rights and
obligations under this Agreement (including, without limitation, a portion of
its Commitment, the outstanding Loans made by it and the Note or Notes held by
it); provided, however, that (i) except in the case of a participation sold to a
Lender or an Affiliate of a Lender, no such participation shall be in an
aggregate principal amount less than $3,000,000, (ii) such Lender's obligations
under this Agreement shall remain unchanged and such Lender shall remain solely
responsible for the performance of such obligations, (iii) no Lender shall sell
any participation that, when taken together with all other participations, if
any, sold by such Lender, covers all of such Lender's rights and obligations
under this Agreement, (iv) the Borrower, the Agent and the other Lenders shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement, and no Lender shall permit
any Participant to have any voting rights or any right to control the vote of
such Lender with respect to any amendment, modification, waiver, consent or
other action hereunder or under any other Credit Document (except as to actions
that would (x) reduce or forgive the principal amount of any Loan, reduce the
rate of or forgive any interest thereon, or reduce or forgive any fees or other
Obligations, (y) extend the Maturity Date or any other date fixed for the
payment of any principal of or interest on any Loan, any fees or any other
Obligations, or (z) increase or extend any Commitment of any Lender), and (v) no
Participant shall have any rights under this Agreement or any of the other
Credit Documents, each Participant's rights against the granting Lender in
respect of any participation to be those set forth in the participation
agreement, and all amounts payable by the Borrower hereunder shall be
89
<PAGE>
determined as if such Lender had not granted such participation. Notwithstanding
the foregoing, each Participant shall have the rights of a Lender for purposes
of Sections 2.16(a), 2.16(b), 2.17, 2.18 and 8.3 and the obligations of a Lender
under Section 2.17, and shall be entitled to the benefits thereto, to the extent
that the Lender granting such participation would be entitled to such benefits
if the participation had not been made, provided that no Participant shall be
entitled to receive any greater amount pursuant to any of such Sections than the
Lender granting such participation would have been entitled to receive in
respect of the amount of the participation made by such Lender to such
Participant had such participation not been made.
(e) Nothing in this Agreement shall be construed to prohibit any Lender
from pledging or assigning all or any portion of its rights and interest
hereunder or under any Note to any Federal Reserve Bank as security for
borrowings therefrom; provided, however, that no such pledge or assignment shall
release a Lender from any of its obligations hereunder.
(f) Any Lender or participant may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section,
disclose to the Assignee or Participant or proposed Assignee or Participant any
information relating to the Borrower and its Subsidiaries furnished to it by or
on behalf of any other party hereto, provided that such Assignee or Participant
or proposed Assignee or Participant agrees in writing to keep such information
confidential to the same extent required of the Lenders under Section 11.13.
11.8 No Waiver. The rights and remedies of the Agent and the Lenders
expressly set forth in this Agreement and the other Credit Documents are
cumulative and in addition to, and not exclusive of, all other rights and
remedies available at law, in equity or otherwise. No failure or delay on the
part of the Agent or any Lender in exercising any right, power or privilege
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right, power or privilege preclude other or further exercise thereof or
the exercise of any other right, power or privilege or be construed to be a
waiver of any Default or Event of Default. No course of dealing between any of
the Borrower, Guarantors, Agent or Lenders or their agents or employees shall be
effective to amend, modify or discharge any provision of this Agreement or any
other Credit Document or to constitute a waiver of any Default or Event of
Default. No notice to or demand upon the Borrower or any Guarantor in any case
shall entitle the Borrower or any Guarantor to any other or further notice or
demand in similar or other circumstances or constitute a waiver of the right of
the Agent or any Lender to exercise any right or remedy or take any other or
further action in any circumstances without notice or demand.
11.9 Successors and Assigns. This Agreement shall be binding upon,
inure to the benefit of and be enforceable by the respective successors and
assigns of the parties hereto, and all references herein to any party shall be
deemed to include its successors and assigns; provided, however, that (i)
neither the Borrower nor either Guarantor shall sell, assign or transfer any of
its rights, interests, duties or obligations under this Agreement without the
prior written consent of all of the Lenders and (ii) any Assignees and
Participants shall have such rights and obligations with respect to this
Agreement and the other Credit Documents as are provided for under and pursuant
to the provisions of Section 11.7.
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<PAGE>
11.10 Survival. All representations, warranties and agreements made by
or on behalf of the Guarantors, the Borrower or any of their Subsidiaries in
this Agreement and in the other Credit Documents shall survive the execution and
delivery hereof or thereof, the Reorganization and the making and repayment of
the Loans. In addition, notwithstanding anything herein or under applicable law
to the contrary, the provisions of this Agreement and the other Credit Documents
relating to indemnification or payment of fees, costs and expenses, including,
without limitation, the provisions of Sections 2.16(a), 2.16(b), 2.17, 2.18,
9.7, 11.1 and 11.2, shall survive the payment in full of all Loans, the
termination of the Commitments, and any termination of this Agreement or any of
the other Credit Documents.
11.11 Severability. To the extent any provision of this Agreement is
prohibited by or invalid under the applicable law of any jurisdiction, such
provision shall be ineffective only to the extent of such prohibition or
invalidity and only in such jurisdiction, without prohibiting or invalidating
such provision in any other jurisdiction or the remaining provisions of this
Agreement in any jurisdiction.
11.12 Construction. The headings of the various articles, sections and
subsections of this Agreement have been inserted for convenience only and shall
not in any way affect the meaning or construction of any of the provisions
hereof. Except as otherwise expressly provided herein and in the other Credit
Documents, in the event of any inconsistency or conflict between any provision
of this Agreement and any provision of any of the other Credit Documents, the
provision of this Agreement shall control.
11.13 Confidentiality. Each Lender agrees to keep confidential,
pursuant to its customary procedures for handling confidential information of a
similar nature and in accordance with safe and sound banking practices, all
nonpublic information provided to it by or on behalf of any Guarantor, the
Borrower or any of their Subsidiaries in connection with this Agreement or any
other Credit Document; provided, however, that any Lender may disclose such
information (i) to its directors, employees and agents and to its auditors,
counsel and other professional advisors, (ii) at the demand or request of any
bank regulatory authority, court or other Governmental Authority having or
asserting jurisdiction over such Lender, as may be required pursuant to subpoena
or other legal process, or otherwise in order to comply with any applicable
Requirement of Law, (iii) in connection with any proceeding to enforce its
rights hereunder or under any other Credit Document or any other litigation or
proceeding related hereto or to which it is a party, (iv) to the Agent or any
other Lender, (v) to the extent the same has become publicly available other
than as a result of a breach of this Agreement and (vi) pursuant to and in
accordance with the provisions of Section 11.7(f).
11.14 Counterparts; Effectiveness. This Agreement may be executed in
any number of counterparts and by 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. This
Agreement shall become effective upon the execution of a counterpart hereof by
each of the parties hereto and receipt by the Agent and the Borrower of written
or telephonic notification of such execution and authorization of delivery
thereof.
91
<PAGE>
11.15 Disclosure of Information. The Borrower and Guarantor agree and
consent to the Agent's disclosure of information relating to this transaction to
Gold Sheets and other similar bank trade publications. Such information will
consist of deal terms and other information customarily found in such
publications.
11.16 Entire Agreement. THIS AGREEMENT AND THE OTHER DOCUMENTS AND
INSTRUMENTS EXECUTED AND DELIVERED IN CONNECTION HEREWITH (A) EMBODY THE ENTIRE
AGREEMENT AND UNDERSTANDING BETWEEN THE PARTIES HERETO AND THERETO RELATING TO
THE SUBJECT MATTER HEREOF AND THEREOF, (B) UPON COMPLIANCE WITH THE CONDITIONS
SET FORTH IN SECTION 3.4 HEREOF AND CONSUMMATION OF THE REORGANIZATION,
SUPERSEDE ANY AND ALL PRIOR AGREEMENTS AND UNDERSTANDINGS OF SUCH PERSONS, ORAL
OR WRITTEN, RELATING TO THE SUBJECT MATTER HEREOF AND THEREOF, INCLUDING,
WITHOUT LIMITATION, THE COMMITMENT LETTER FROM FIRST UNION TO THE BORROWER DATED
DECEMBER 2, 1998 (EXCEPT FOR PROVISIONS THE SURVIVAL OF WHICH IS EXPLICITLY SET
FORTH THEREIN) BUT SPECIFICALLY EXCLUDING THE OLD CREDIT AGREEMENT, EXCEPT TO
THE EXTENT AMENDED HEREBY, THE FEE LETTER AND THE AMENDMENT FEE LETTER, AND (C)
MAY NOT BE AMENDED, SUPPLEMENTED, CONTRADICTED OR OTHERWISE MODIFIED BY EVIDENCE
OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
92
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers as of the date first above written.
PXRE CORPORATION
By: JAMES F. DORE
--------------------------------------
Name: James F. Dore
--------------------------------------
Title: Executive Vice President and Chief
Financial Officer
--------------------------------------
PXRE GROUP LTD.
By: GERALD L. RADKE
--------------------------------------
J. MACDONALD Name: Gerald L. Radke
---------------------------- --------------------------------------
Witness
Title: Chairman
--------------------------------------
PXRE (BARBADOS) LTD.
By: GERALD L. RADKE
--------------------------------------
J. MACDONALD Name: Gerald L. Radke
---------------------------- --------------------------------------
Witness
Title:
--------------------------------------
(signatures continued)
S-1
<PAGE>
FIRST UNION NATIONAL BANK, as Agent
and as a Lender
By: GAIL M. GOLIGHTLY
--------------------------------------
Name: Gail M. Golightly
--------------------------------------
Title: Senior Vice President
--------------------------------------
THE FIRST NATIONAL BANK OF CHICAGO
By: TIMOTHY J. STAMBAUGH
--------------------------------------
Name: Timothy J. Stambaugh
--------------------------------------
Title: Senior Vice President
--------------------------------------
FLEET NATIONAL BANK
By: MARK VICKERY
--------------------------------------
Name: Mark Vickery
--------------------------------------
Title: Assistant Vice President
--------------------------------------
CREDIT LYONNAIS NEW YORK BRANCH
By: SANDRA E. HORWITZ
--------------------------------------
Name: Sandra E. Horwitz
--------------------------------------
Title: Senior Vice President
--------------------------------------
S-2
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<PERIOD-START> JAN-01-1999
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<DEBT-HELD-FOR-SALE> 323,879,000
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