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FIRST SUPPLEMENTAL INDENTURE
between
PXRE CORPORATION, as Issuer,
and
FIRST UNION NATIONAL BANK, as Trustee
Dated as of January 29, 1997
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS..............................................................2
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES...........................4
ARTICLE III
REDEMPTION OF THE DEBENTURES.............................................9
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD....................................13
ARTICLE V
EXPENSES AND GUARANTEE..................................................14
ARTICLE VI
FORM OF DEBENTURE.......................................................15
ARTICLE VII
MISCELLANEOUS...........................................................25
i
FIRST SUPPLEMENTAL INDENTURE, dated as of January 29, 1997 (the
"First Supplemental Indenture"), between PXRE Corporation, a Delaware
corporation (the "Company") and First Union National Bank, as trustee (the
"Trustee"), under the Indenture dated as of January 29, 1997 between the Company
and the Trustee (as supplemented hereby and as may be supplemented from time to
time, the "Indenture").
WHEREAS, the Company executed and delivered the Indenture to the
Trustee to provide for the issuance of the Company's unsecured junior
subordinated debt securities to be issued from time to time in one or more
series as might be determined by the Company under the Indenture, in an
unlimited aggregate principal amount which may be authenticated and delivered as
provided in the Indenture;
WHEREAS, pursuant to the terms of the Indenture, the Company
desires to provide for the establishment of a series of its Debt Securities to
be known as 8.85% Junior Subordinated Deferrable Interest Debentures due 2027
(the "Initial Debentures"), and to provide for, if and when issued in exchange
for the Initial Debentures pursuant to the Indenture and the Registration
Agreement (as defined herein), a series of its Debt Securities to be known as
8.85% Junior Subordinated Deferrable Interest Debentures due 2027 (the "Exchange
Debentures" and together with the Initial Debentures, the "Debentures"), the
form and substance of each such series of Debentures and the terms, provisions
and conditions thereof to be set forth as provided in the Indenture and this
First Supplemental Indenture;
WHEREAS, PXRE Capital Trust I, a Delaware statutory business
trust (the "Trust"), has offered for sale pursuant to an exemption from the
registration requirements of the Securities Act of 1933, $100,000,000 aggregate
liquidation amount of 8.85% Capital Trust Pass-through Securities (the "Initial
Capital Securities"), representing undivided beneficial interests in the assets
of the Trust and proposes to invest the proceeds from such offering, together
with the proceeds of the issuance and sale by the Trust to the Company of its
common securities, in $103,093,000 aggregate principal amount of the Debentures;
WHEREAS, pursuant to the Registration Agreement, the Trust may
offer and issue 8.85% Capital Trust Pass-through Securities (the "Exchange
Capital Securities" and together with the Initial Capital Securities, the
"Capital Securities") in exchange for the Initial Capital Securities; and
WHEREAS, the Company has requested that the Trustee execute and
deliver this First Supplemental Indenture; all requirements necessary to make
this First Supplemental Indenture a valid instrument in accordance with its
terms, and to make the Debentures, when executed by the Company and
authenticated and delivered by the Trustee, the valid obligations of the
Company, have been performed; and the execution and delivery of this First
Supplemental Indenture has been duly authorized in all respects;
NOW THEREFORE, in consideration of the purchase and acceptance of
the Initial Debentures by the holders thereof, and for the purpose of setting
forth, as provided in the Indenture, the form and substance of each series of
Debentures and the terms, provisions and conditions thereof, the Company
covenants and agrees with the Trustee as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1
Unless the context otherwise requires:
(a) a term defined in the Indenture has the same meaning when
used in this First Supplemental Indenture;
(b) a term defined anywhere in this First Supplemental Indenture
has the same meaning throughout;
(c) the singular includes the plural and vice versa;
(d) a reference to a Section or Article is to a Section or
Article of this First Supplemental Indenture;
(e) headings are for convenience of reference only and do not
affect interpretation;
(f) the following terms have the meanings given to them in the
Declaration: (i) Business Day; (ii) Capital Security Certificate; (iii) Clearing
Agency; (iv) Delaware Trustee; (v) Depositary; (vi) Distribution; (vii)
Institutional Trustee; (viii) Purchase Agreement; (ix) Redemption Tax Opinion;
(x) Redemption Investment Company Opinion; (xi) Administrators; (xii)
Securities; (xiii) Tax Event; and (xiv) Investment Company Event;
(g) the following terms have the meanings given to them in this
Section 1.1(g):
"Additional Interest" shall have the meaning set forth in Section
2.5(c).
"Adjusted Treasury Rate" shall have the meaning set forth in
Section 3.1(b).
"Call Price" shall have the meaning set forth in Section 3.2.
"Comparable Treasury Issue" shall have the meaning set forth in
Section 3.1(b).
"Comparable Treasury Price" shall have the meaning set forth in
Section 3.1(b).
"Compounded Interest" shall have the meaning set forth in Section
4.1.
"Declaration" means the Amended and Restated Declaration of Trust
of the Trust, dated as of January 29, 1997.
"Deferred Interest" shall have the meaning set forth in Section
4.1.
2
"Dissolution Event" means that the Trust is to be dissolved in
accordance with the Declaration, and the Debentures held by the Institutional
Trustee are to be distributed to the holders of the Trust Securities issued by
the Trust pro rata in accordance with the Declaration.
"Extension Period" shall have the meaning set forth in Section
4.1.
"Global Debenture" shall have the meaning set forth in Section
2.4(a)(i).
"interest" shall include all interest payable on a series of
Debentures including any Additional Interest, Compounded Interest and Special
Payments, if applicable.
"Make-Whole Amount" shall have the meaning set forth in Section
3.1(b).
"Maturity Date" means February 1, 2027.
"Non-Book-Entry Capital Securities" shall have the meaning set
forth in Section 2.4(a)(ii).
"Quotation Agent" shall have the meaning set forth in Section
3.1(b).
"Record Date" shall have the meaning set forth in the Debentures.
"Registration Agreement" means the Registration Rights Agreement,
dated January 29, 1997, relating to the Debentures and the other securities
described therein among the Company, the Trust and the initial purchasers named
therein.
"Reference Treasury Dealer" shall have the meaning set forth in
Section 3.1(b).
"Reference Treasury Dealer Quotations" shall have the meaning set
forth in Section 3.1(b).
"Registered Exchange Offer" has the meaning set forth in the
Registration Agreement.
"Shelf Registration Event" has the meaning set forth in Section
2.5(e)(ii).
"Special Payment" has the meaning set forth in Section
2.5(e)(iii).
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"Tax Contingency" means that the Company shall determine in good
faith that there is a reasonable likelihood that, or a material uncertainty as
to whether, consummation of the Registered Exchange Offer would result in an
adverse tax consequence to the Company.
"Treasury Rate" shall have the meaning set forth in Section
3.1(b).
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
SECTION 2.1
The Initial Debentures and the Exchange Debentures are hereby
authorized as two series of Debt Securities. The aggregate principal amount of
Debentures outstanding at any time shall not exceed $103,093,000 (except as set
forth in Section 2.03 of the Indenture). Upon receipt of a written order of the
Company for the authentication and delivery of a series of Debentures and
satisfaction of the requirements of Section 2.04 of the Indenture, the Trustee
shall authenticate (a) Initial Debentures for original issuance in an aggregate
principal amount not to exceed $103,093,000 (except as set forth in Section
2.03(2) of the Indenture) or (b) Exchange Debentures for issuance pursuant to a
Registered Exchange Offer for Initial Debentures in a principal amount equal to
the principal amount of Initial Debentures exchanged in such Registered Exchange
Offer.
The Initial Debentures shall be issued pursuant to an exemption
from registration under the Securities Act and the Restricted Securities Legend
shall appear thereon, unless otherwise determined by the Company in accordance
with applicable law. The Initial Debentures may not be transferred except in
compliance with the Restricted Securities Legend set forth in Section 2.07 of
the Indenture, unless otherwise determined by the Company in accordance with
applicable law. The Initial Debentures shall be issued in minimum denominations
of $100,000 and any integral multiples of $1,000 in excess thereof, and the
Exchange Debentures shall be issuable in minimum denominations of $1,000 and any
integral multiples of $1,000 in excess thereof.
SECTION 2.2
At the Maturity Date, the Debentures shall mature and the
principal thereof shall be due and payable together with all accrued and unpaid
interest thereon including Compounded Interest, Additional Interest and Special
Payments, if any.
SECTION 2.3
Except as provided in Section 2.4, Debentures of a series shall
be issued in fully registered certificated form without interest coupons.
Principal and interest on Debentures of a series issued in certificated form
will be payable, the transfer of such Debentures will be registrable and such
Debentures will be exchangeable for Debentures of such series bearing identical
terms and provisions at the office or agency of the Company in the Borough of
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Manhattan, The City of New York, or Newark, New Jersey, which office or agency
shall initially be the corporate trust office of the Trustee; provided, however,
that payment of interest may be made at the option of the Company by check
mailed to the holder of any Debenture at such address as shall appear in the
Debt Security Register for such series of Debentures or by wire transfer to an
account appropriately designated by such holder. Notwithstanding the foregoing,
so long as the holder of any Debentures of a series is the Institutional
Trustee, the payment of the principal of (and premium, if any) and interest
(including Compounded Interest, Additional Interest and Special Payments, if
any) on the Debentures held by the Institutional Trustee will be made at such
place and to such account as may be designated by the Institutional Trustee in
writing by notice to the Company.
SECTION 2.4
(a) In connection with a Dissolution Event,
(i) except as provided in clause (ii) of this sentence,
Debentures of a series in certificated form may be presented to the
Trustee by the Institutional Trustee in exchange for a Global Security
for such series in an aggregate principal amount equal to the aggregate
principal amount of all outstanding Debentures of such series (a "Global
Debenture"), to be registered in the name of The Depository Trust
Company, New York, New York, or its nominee (hereby designated to be the
Depositary for Debentures of such series), and delivered by the Trustee
to the Depositary or its custodian for crediting to the accounts of the
Depositary's participants pursuant to the instructions of the
Administrators of the Trust, which instructions shall be provided in
accordance with the terms of the Declaration; the Company upon any such
presentation shall execute a Global Debenture for such series in such
aggregate principal amount and deliver the same to the Trustee for
authentication and delivery in accordance with the Indenture and this
First Supplemental Indenture; payments on the Debentures of a series
issued as a Global Debenture will be made to the Depositary;
(ii) if any Capital Securities of a series are not held by
the Clearing Agency or its nominee ("Non-Book-Entry Capital
Securities"), the Debentures in certificated form of the series held by
the Institutional Trustee corresponding to such Capital Securities of
such series may be presented to the Trustee by the Institutional Trustee
and any Capital Security Certificate which represents such
Non-Book-Entry Capital Securities will be deemed to represent beneficial
interests in Debentures so presented to the Trustee by the Institutional
Trustee having an aggregate principal amount equal to the aggregate
liquidation amount of such Non-Book-Entry Capital Securities until such
Capital Security Certificates are presented to the Debt Security
registrar for transfer or reissuance at which time such Capital Security
Certificates will be canceled and a Debenture of the series previously
held by the Trust registered in the name of the holder of the Capital
Security Certificate or the transferee of the holder of such Capital
Security Certificate, as the case may be, with an aggregate principal
amount equal to the aggregate liquidation amount of the Capital Security
Certificate canceled, will be executed by the Company and delivered to
the Trustee for authentication and delivery in
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accordance with the Indenture and this First Supplemental Indenture;
upon issue of such Debentures of such series, Debentures of such series
with an equivalent aggregate principal amount that were presented by the
Institutional Trustee to the Trustee will be deemed to have been
canceled; and
(iii) prior to the distribution of Debentures of a series
held by the Institutional Trustee to the holders of Securities of the
Trust, the Company and the Trustee shall enter into a supplemental
indenture pursuant to Article IX of the Indenture to provide for
transfer procedures and restrictions with respect to such Debentures of
such series substantially similar to those contained in the Declaration
with respect to Capital Securities of the corresponding series to the
extent applicable in the circumstances existing at the time of
distribution of Debentures of such series in connection with a
Dissolution Event for purposes of assuring that no registration of
Debentures of such series is required under the Securities Act.
(b) A Global Debenture may be transferred, in whole but not in
part, only by the Depositary to a nominee of the Depositary or by a nominee of
the Depositary to the Depositary or another nominee of the Depositary, or to a
successor Depositary selected or approved by the Company or to a nominee of such
successor Depositary.
(c) If at any time the Depositary notifies the Company that it is
unwilling or unable to continue as Depositary or if at any time the Depositary
shall no longer be registered or in good standing under the Exchange Act or
other applicable statute or regulation, and a successor Depositary is not
appointed by the Company within 90 days after the Company receives such notice
or becomes aware of such condition, as the case may be, the Company will
execute, and, subject to Article II of the Indenture, the Trustee, upon written
notice from the Company, will authenticate and make available for delivery,
Debentures of each series in definitive registered form without coupons, in
authorized denominations, and in an aggregate principal amount equal to the
principal amount of the Global Debenture of such series in exchange for such
Global Debenture. In addition, the Company may at any time determine that the
Debentures of a series shall no longer be represented by a Global Debenture. In
such event the Company will execute, and subject to Section 2.07 of the
Indenture, the Trustee, upon receipt of an Officers' Certificate evidencing such
determination by the Company, will authenticate and deliver Debentures of such
series in definitive registered form without coupons, in authorized
denominations, and in an aggregate principal amount equal to the principal
amount of the Global Debenture of such series in exchange for such Global
Debenture. A Global Debenture shall also be exchangeable for Debentures in
definitive form upon the occurrence of an Event of Default. Upon the exchange of
a Global Debenture for Debentures in definitive registered form without coupons,
in authorized denominations, such Global Debenture shall be canceled by the
Trustee. Such Debentures in definitive registered form issued in exchange for
such Global Debenture shall be registered in such names and in such authorized
denominations as the Depositary, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee. The Trustee
shall deliver such Debentures to the Depositary for delivery to the Persons in
whose names such Debentures are so registered.
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SECTION 2.5
(a) The amount of interest payable for any period will be
computed on the basis of a 360-day year of twelve 30-day months. Except as
provided in the following sentence, the amount of interest payable for any
period shorter than a full semiannual period for which interest is computed,
will be computed on the basis of the actual number of days elapsed in such a
period (assuming each full month elapsed in such period consists of 30 days). In
the event that any date on which interest is payable on the Debentures of a
series is not a Business Day, then payment of interest payable on such date will
be made on the next succeeding day which is a Business Day (and without any
interest or other payment in respect of any such delay), except that if such
Business Day is in the next succeeding calendar year, such payment shall be made
on the immediately preceding Business Day, in each case with the same force and
effect as if made on such date.
(b) The indebtedness evidenced by all Debentures of a series is
subordinate and junior in right of payment to the prior payment in full of all
present and future Senior Indebtedness and pari passu in right of payment with
all Debentures of each other series.
(c) If, at any time while the holder of any Debentures of a
series is the Institutional Trustee, the Trust is required to pay any taxes,
duties, assessments or governmental charges of whatever nature (other than
withholding taxes) imposed by the United States, or any other taxing authority,
then, in any such case, the Company shall pay as additional interest
("Additional Interest") on the Debentures held by the Institutional Trustee,
such additional amounts as shall be required so that the net amounts received
and retained by the Trust after paying such taxes, duties, assessments or other
governmental charges will be equal to the amounts the Trust and the
Institutional Trustee would have received had no such taxes, duties, assessments
or other governmental charges been imposed.
(d) If an Initial Debenture is exchanged in a Registered Exchange
Offer prior to the Record Date for the first Interest Payment Date following
such exchange, accrued and unpaid interest, if any, on such Initial Debenture,
up to but not including the date of issuance of the Exchange Debenture or
Exchange Debentures issued in exchange for such Initial Debenture, shall be paid
on the first Interest Payment Date for such Exchange Debenture or Exchange
Debentures to the Securityholder or Securityholders of such Exchange Debenture
or Exchange Debentures on the first Record Date with respect to such Exchange
Debenture or Exchange Debentures. If an Initial Debenture is exchanged in a
Registered Exchange Offer subsequent to the Record Date for the first Interest
Payment Date following such exchange but on or prior to such Interest Payment
Date, then any such accrued and unpaid interest with respect to such Initial
Debenture and any accrued and unpaid interest on the Exchange Debenture or
Exchange Debentures issued in exchange for such Initial Debenture, through the
day before such Interest Payment Date, shall be paid on such Interest Payment
Date to the Securityholder of such Initial Debenture on such Record Date.
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(e) The following terms relate to Special Payments:
(i) Except as described in paragraph (ii), in the event
that either (A) the Exchange Offer Registration Statement (as such term
is defined in the Registration Agreement) is not filed with the
Securities and Exchange Commission (the "Commission") on or prior to the
120th day following the Closing Date (as such term is defined in the
Registration Agreement), (B) the Exchange Offer Registration Statement
is not declared effective by the Commission on or prior to the 180th day
following the Closing Date or (C) the Registered Exchange Offer is not
consummated or a Shelf Registration Statement (as such term is defined
in the Registration Agreement) is not declared effective by the
Commission on or prior to the 210th day following the Closing Date,
interest shall accrue on the Initial Debentures (in addition to the
stated interest on Initial Debentures) from and including the next day
following each of (1) such 120-day period in the case of clause (A)
above, (2) such 180-day period in the case of clause (B) above and (3)
such 210-day period in the case of clause (C) above. In each case, such
additional interest shall accrue at a rate per annum equal to 0.25% of
the principal amount of the Initial Debentures (determined daily). The
aggregate amount of additional interest payable pursuant to the above
provisions will in no event exceed 0.50% per annum of the principal
amount of the Initial Debentures (determined daily). Upon (X) the filing
of the Exchange Offer Registration Statement or the occurrence of a
Shelf Registration Event if applicable, after the 120-day period
described in clause (A) above, (Y) the effectiveness of the Exchange
Offer Registration Statement (or the filing of a Shelf Registration
Statement in the Event of a Shelf Registration Event, if applicable)
after the 180-day period described in clause (B) above or (Z) the
consummation of the Exchange Offer or the effectiveness of a Shelf
Registration Statement, as the case may be, after the 210-day period
described in clause (C) above (or the effectiveness of a Shelf
Registration Statement after the 240-day period specified below, in the
event of a Shelf Registration Event, if applicable), the additional
interest payable on the Initial Debentures, with respect to such clause
(A), (B) or (C), as the case may be, from the date of such filing,
effectiveness or consummation, as the case may be, shall cease to
accrue, and all accrued and unpaid Special Payments as of the occurrence
of (x), (y) and (z) shall be paid to the Holders of Initial Debentures
on the next Interest Payment Date.
(ii) In the event that on or before the 120th day
following the Closing Date, applicable law or applicable interpretations
of the staff of the Commission do not permit the Company and the Trust
to effect the Registered Exchange Offer, or if a Tax Contingency exists
(each, a "Shelf Registration Event"), then clauses (A) and (1) of
paragraph (i) shall not apply. To the extent that such a Shelf
Registration Event exists and the Company has filed a Shelf Registration
Statement covering resales of the Initial Debentures by the 180th day
following the Closing Date, then clauses (B) and (2) of paragraph (i)
shall not apply, and to the extent a Shelf Registration Event exists on
the 210th day following the Closing Date, the period specified in
clauses (C) and (3) of paragraph (i) will be 240 days.
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(iii) In the event that a Shelf Registration Statement is
declared effective pursuant to the terms of the Registration Agreement,
if the Company or the Trust fails to keep such Shelf Registration
Statement continuously effective for the period required by the
Registration Agreement, then from the next day following such time as
the Shelf Registration Statement is no longer effective until the
earlier of (A) the date that the Shelf Registration Statement is again
deemed effective, (B) the date that is the third anniversary of the
effective date (or, in the case of a Shelf Registration Statement filed
at the request of an Initial Purchaser (as such term is defined in the
Registration Agreement), the first anniversary of the effective date) or
(C) the date as of which all of the Initial Debentures are sold pursuant
to the Shelf Registration Statement or may be sold without registration
pursuant to Rule 144 under the Securities Act, interest shall accrue on
the Initial Debentures (in addition to the stated interest on the
Initial Debentures) at a rate per annum equal to 0.25% of the principal
amount of the Initial Debentures (determined daily).
(iv) Any additional interest that accrues with respect to
the Initial Debentures as provided in this paragraph is referred to as a
"Special Payment." For all purposes of the Indenture, this Supplemental
Indenture and the Initial Debentures, a Special Payment shall be treated
as interest and shall be payable in arrears on the same Interest Payment
Dates and to the Securityholders of record on the same record dates as
would be the case for stated interest.
SECTION 2.6
If at any time the holder of all Debentures of a series ceases to
be the Institutional Trustee and, at such time, the Capital Securities issued
by the Trust are rated by at least one nationally recognized statistical rating
agency, then the Company shall use its best efforts to obtain from at least one
nationally recognized statistical rating agency a rating for the Debentures of
such series.
ARTICLE III
REDEMPTION OF THE DEBENTURES
SECTION 3.1
(a) If, at any time, a Tax Event should occur and be continuing,
the Company shall have the right to advance the stated maturity of the
Debentures to the minimum extent required, but no earlier than August 1, 2016,
such that in the opinion of a nationally recognized independent tax counsel to
the Company experienced in such matters, after advancing the maturity date,
interest payable by the Company on the Debentures will be deductible for United
States federal income tax purposes (the action referred to above being referred
to herein as a "Tax Event Maturity Advancement"). If, at any time a Tax Event
should occur and be continuing, and the Company receives an opinion (a
"Redemption Tax Opinion") of a nationally recognized independent tax counsel to
the Company experienced in such matters, that, as a result
9
of such Tax Event, there is more than an insubstantial risk that the Company
would be precluded from deducting the interest on the Debentures for United
States federal income tax purposes, even if a Tax Event Maturity Advancement
were effected, the Company shall have the right at any time, within 90 days
following the occurrence of such Tax Event, upon not less than 30 days' nor more
than 60 days' notice, to redeem the Debentures held by the Institutional
Trustee, in whole or in part, for cash so long as such Tax Event is continuing,
at par plus any accrued and unpaid interest thereon to the date of redemption
(the "Tax Event Redemption Price"), provided that (i) if at the time there is
available to the Company or the Trust the opportunity to eliminate, within the
90 Day Period and before any such notice is given, the adverse effects of such
Tax Event by taking some ministerial action, such as filing a form or making an
election, or pursuing some other similar reasonable measure which has no adverse
effect on the Company, the Trust or the holders of the Securities and (ii) such
notice has not been given, the Company or the Trust shall pursue such
ministerial action in lieu of redemption. If Debentures are only partly redeemed
pursuant to this Section 3.1(a), Debentures shall be redeemed pro rata or by lot
or by any other method utilized by the Trustee. The Tax Event Redemption Price
shall be paid prior to 3:00 p.m., New York City time, on the date of such
redemption or such earlier time as the Company determines, provided that the
Company shall deposit with the Trustee an amount sufficient to pay the Tax Event
Redemption Price by 10:00 a.m., New York City time, on the date the Tax Event
Redemption Price is to be paid.
(b) Upon the occurrence of an Investment Company Event, the
Company shall have the right within 90 days following the occurrence of such
Investment Company Event, upon not less than 30 days' nor more than 60 days'
notice to redeem the Debentures, in whole or in part, for cash at (i) the
Make-Whole Amount, in the case of a redemption upon the occurrence of an
Investment Company Event prior to February 1, 2007 or (ii) the Call Price, in
the case of a redemption upon the occurrence of an Investment Company Event on
or after February 1, 2007, in each case together with accrued and unpaid
interest thereon to the date of redemption (the "Investment Company Event
Redemption Price"). If Debentures are only partly redeemed pursuant to this
Section 3.1(b), Debentures shall be redeemed pro rata or by lot or by any other
method utilized by the Trustee. The Investment Company Event Redemption Price
shall be paid prior to 3:00 p.m., New York City time, on the date of such
redemption or such earlier time as the Company determines, provided that the
Company shall deposit with the Trustee an amount sufficient to pay the
Investment Company Event Redemption Price by 10:00 a.m., New York City time, on
the date the Investment Company Event Redemption price is to be paid.
The "Make-Whole Amount" will be equal to the greater of (i) 100% of the
principal amount of the Debentures to be redeemed or (ii) as determined by the
Quotation Agent (as defined herein), (a) the sum of the present values of the
principal amount and premium payable as part of the Call Price of such
Debentures on February 1, 2007, together with the present values of scheduled
payments of interest on such Debentures from the redemption date to February 1,
2007 (the "Remaining Life"), in each case discounted to the redemption date on a
semiannual basis (assuming a 360-day year consisting of 30 day months) at the
Adjusted Treasury Rate less (b) accrued and unpaid interest on such Debentures
to the date of redemption.
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"Adjusted Treasury Rate" means, with respect to any redemption date, the
Treasury Rate plus 150 basis points if such redemption date occurs before
February 1, 1998 or (ii) 100 basis points if such redemption date occurs on or
after February 1, 1998.
"Treasury Rate" means (i) the yield, under the heading which represents the
average for the week immediately prior to the calculation date, appearing in the
most recently published statistical release designated "H.15(519)" or any
successor publication which is published weekly by the Federal Reserve and which
establishes yields on actively traded United States Treasury securities adjusted
to constant maturity under the caption "Treasury Constant Maturities," for the
maturity corresponding to the Remaining Life (if no maturity is within three
months before or after the Remaining Life, yields for the two published
maturities most closely corresponding to the Remaining Life shall be determined
and the Treasury Rate shall be interpolated or extrapolated from such yields on
a straight-line basis, rounding to the nearest month) or (ii) if such release
(or any successor release) is not published during the week preceding the
calculation date or does not contain such yields, the rate per annum equal to
the semi-annual equivalent yield to maturity of the Comparable Treasury Issue,
calculated using a price for the Comparable Treasury Issue (expressed as a
percentage of its principal amount) equal to the Comparable Treasury Price for
such redemption date. The Treasury Rate shall be calculated on the third
Business Day preceding the redemption date.
"Comparable Treasury Issue" means with respect to any redemption date the
United States Treasury security selected by the Quotation Agent as having a
maturity comparable to the Remaining Life that would be utilized, at the time of
selection and in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the Remaining
Life. If no United States Treasury security has a maturity which is within a
period from three months before to three months after February 1, 2007, the two
most closely corresponding United States Treasury securities shall be used as
the Comparable Treasury Issue, and the Treasury Rate shall be interpolated or
extrapolated on a straight-line basis, rounding to the nearest month using such
securities.
"Quotation Agent" means Salomon Brothers Inc and its successors; provided,
however, that if the foregoing shall cease to be a primary U.S. Government
securities dealer in New York City (a "Primary Treasury Dealer"), the Company
shall substitute therefor another Primary Treasury Dealer.
"Reference Treasury Dealer" means (i) the Quotation Agent and (ii) any other
Primary Treasury Dealer selected by the Debt Trustee after consultation with the
Company.
"Comparable Treasury Price" means (A) the average of five Reference Treasury
Dealer Quotations for such Redemption Date, after excluding the highest and
lowest such Reference Treasury Dealer Quotations, or (B) if the Debt Trustee
obtains fewer than five such Reference Treasury Dealer Quotations, the average
of all such Quotations.
11
"Reference Treasury Dealer Quotations" means, with respect to each Reference
Treasury Dealer and any Redemption Date, the average, as determined by the Debt
Trustee, of the bid and ask prices for the Comparable Treasury Issue (expressed
in each case as a percentage of its principal amount) quoted in writing to the
Debt Trustee by such Reference Treasury Dealer at 5:00 p.m., New York City time,
on the third Business Day preceding such redemption date.
SECTION 3.2
Subject to the provisions of Article XIV of the Indenture, and in
addition to the rights set forth in Section 3.1 of this First Supplemental
Indenture, except as otherwise may be specified in this First Supplemental
Indenture, the Company shall have the right to redeem the Debentures, in whole
or in part, from time to time, on or after February 1, 2007, at the call prices
(expressed as a percentage of principal amount per Debenture being redeemed)
specified below:
If redeemed during the 12-month period:
Beginning February 1, Call Price
--------------------- ----------
2007 104.180%
2008 103.762
2009 103.344
2010 102.926
2011 102.508
2012 102.090
2013 101.672
2014 101.254
2015 100.836
2016 100.418
and thereafter at 100% of the principal amount (each, a "Call Price"), plus in
each case accrued and unpaid interest thereon to the date of redemption.
Any redemption pursuant to the preceding paragraph will be made
upon not less than 30 days' nor more than 60 days' notice to the holder of the
relevant Debentures, at the Call Price plus any accrued and unpaid interest to
the date of such redemption. If Debentures are only partially redeemed pursuant
to this Section 3.2, Debentures shall be redeemed pro rata or by lot or by any
other method utilized by the Trustee. The Call Price (plus accrued and unpaid
interest, if any) shall be paid prior to 3:00 p.m., New York City time, on the
date of such redemption or at such earlier time as the Company determines,
provided that the Company shall deposit with the Trustee an amount sufficient to
pay the Call Price (plus accrued and unpaid interest, if any) by 10:00 a.m., New
York City time, on the date such Call Price is to be paid.
The Debentures are not entitled to the benefit of any sinking
fund.
12
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1
The Company shall have the right, at any time and from time to
time during the term of the Debentures, to defer payments of interest by
extending the interest payment period of the Debentures of a series for a period
not exceeding 10 consecutive semiannual periods (the "Extension Period"), during
which Extension Period no interest shall be due and payable; provided that (i)
no Extension Period may extend beyond the Maturity Date and (ii) no Extension
Period may commence or be extended so long as the Company is in default in the
payment of any interest upon any Debentures of such series or has not paid all
Deferred Interest from a prior completed Extension Period. To the extent
permitted by applicable law, interest on the Debentures of a series, the payment
of which has been deferred because of the extension of the interest payment
period pursuant to this Section 4.1, will bear interest thereon at a rate equal
to the original interest rate borne by the principal of the Debentures (without
regard to any increase or increases from time to time in respect of Additional
Interest or Special Payments, if any), compounded semiannually for each
semiannual period of the Extension Period ("Compounded Interest"). At the
termination of an Extension Period for the Debentures of a series or, if not an
Interest Payment Date, on the Interest Payment Date immediately following
termination of such Extension Period for the Debentures of such series, the
Company shall pay all interest accrued and unpaid on the Debentures, including
any Additional Interest and Compounded Interest (together, "Deferred Interest"),
which Deferred Interest shall be payable to the holders of the Debentures of
such series in whose names the Debentures are registered in the Debt Security
Register on the record date for the payment of interest on such Interest Payment
Date. Before the termination of Company may further extend such period, provided
that such period together with all such previous and further consecutive
extensions thereof shall not exceed 10 consecutive semiannual periods, or extend
beyond the Maturity Date. Upon the termination of any Extension Period and upon
the payment of all Deferred Interest then due, the Company may commence a new
Extension Period, subject to the foregoing requirements.
SECTION 4.2
(a) If the Institutional Trustee is the only registered holder of
the Debentures of a series at the time the Company initiates an Extension
Period, the Company shall give written notice to the Administrators, the
Institutional Trustee and the Trustee of its initiation of such Extension Period
one Business Day before the earlier of (i) the date on which distributions on
the Capital Securities of the corresponding series are payable, or (ii) the date
the Administrators are required to give notice to holders of the Capital
Securities of the corresponding series (or any national securities exchange or
other organization on which such Capital Securities are listed, if any) of the
record date or the distribution payment date, in each case with respect to
distributions on the Securities the payment of which is being deferred.
13
(b) If the Institutional Trustee is not the only registered
holder of the Debentures of a series at the time the Company initiates an
Extension Period, the Company shall give the holders of the Debentures of such
series and the Trustee written notice of its initiation of such Extension Period
at least ten Business Days before the earlier of (i) the next succeeding
Interest Payment Date, or (ii) the date the Company is required to give notice
to holders of the Debentures of such series (or any national securities exchange
or other organization on which the Capital Securities of the corresponding
series are listed, if any) of the record or payment date of such interest, in
each case with respect to interest payments the payment of which is being
deferred.
ARTICLE V
EXPENSES AND GUARANTEE
SECTION 5.1
In connection with the offering, sale and issuance of the
Debentures of a series and in connection with the sale of any Securities by the
Trust, the Company, in its capacity as borrower with respect to the Debentures
of such series, shall:
(a) pay all costs and expenses relating to the offering, sale and
issuance of Debentures of such series, including commissions to the underwriters
payable pursuant to the Purchase Agreement and compensation of the Trustee (and
its agents, attorneys or counsel) under the Indenture in accordance with the
provisions of Section 6.06 of the Indenture;
(b) pay all debts and other obligations (other than with respect
to the Securities) and costs and expenses of the Trust (including, without
limitation, costs and expenses relating to the organization of the Trust, the
offering, sale and issuance of the Securities (including commissions to the
underwriters in connection therewith), the fees and expenses of the
Institutional Trustee (and its agents, attorneys or counsel), the Delaware
Trustee and each Administrator, the costs and expenses relating to the operation
of the Trust, including, without limitation, reasonable costs and expenses of
accountants, attorneys, statistical or bookkeeping services, expenses for
printing and engraving and computing or accounting equipment, paying agent(s),
registrar(s), transfer agent(s), duplicating, travel and telephone and other
telecommunications expenses and costs and expenses incurred in connection with
the acquisition, financing, and disposition of Trust assets of the Trust);
(c) be primarily and fully liable for any indemnification
obligations arising with respect to the Declaration or the Purchase Agreement or
the Registration Agreement; and
(d) pay any and all taxes, duties, assessments or governmental
charges of whatever nature and all liabilities, costs and expenses with respect
thereto (other than United States withholding taxes attributable to the Trust or
assets of the Trust) to which the Trust may become subject.
14
SECTION 5.2
Upon termination of the Declaration or the removal or resignation
of the Delaware Trustee or the Institutional Trustee, as the case may be,
pursuant to Section 5.7 of the Declaration, the Company shall pay to the
Delaware Trustee or the Institutional Trustee, as the case may be, all amounts
owing to the Delaware Trustee or the Institutional Trustee, as the case may be,
under Sections 10.4 and 10.6 of the Declaration accrued to the date of such
termination, removal or resignation.
ARTICLE VI
FORM OF DEBENTURE
The Debentures and the Trustee's certificate of authentication to
be endorsed thereon are to be substantially in the following forms and are
expressly made a part of this First Supplemental Indenture:
(FACE OF DEBENTURE)
[IF THE DEBENTURE IS TO BE A GLOBAL DEBENTURE, INSERT: This
Debenture is a Global Debenture within the meaning of the Indenture hereinafter
referred to and is registered in the name of a Depositary or a nominee of a
Depositary. This Debenture is exchangeable for Debentures of this series
registered in the name of a person other than the Depositary or its nominee only
in the limited circumstances described in the Indenture, and no transfer of this
Debenture (other than a transfer of this Debenture as a whole by the Depositary
to a nominee of the Depositary or by a nominee of the Depositary to the
Depositary or another nominee of the Depositary or to a successor Depositary or
its nominee) may be registered except in limited circumstances.
Unless this Debenture is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York, New
York) to the issuer or its agent for registration of transfer, exchange or
payment, and any Debenture of this series issued is registered in the name of
Cede & Co. or such other name as requested by an authorized representative of
The Depository Trust Company and any payment hereon is made to Cede & Co., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS
WRONGFUL since the registered owner hereof, Cede & Co., has an interest herein.]
[IF THIS DEBENTURE IS ONE OF A SERIES ORIGINALLY ISSUED PURSUANT
TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT, AS SPECIFIED
PURSUANT TO SECTION 2.03 OF THE INDENTURE, INSERT THE FOLLOWING UNLESS OTHERWISE
DETERMINED BY THE COMPANY -- THIS DEBENTURE HAS NOT BEEN REGISTERED UNDER THE
U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS. NEITHER THIS DEBENTURE NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY
15
BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT. THE HOLDER OF THIS DEBENTURE BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL
OR OTHERWISE TRANSFER SUCH DEBENTURE PRIOR TO THE DATE WHICH IS THREE YEARS
AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH
PXRE CORPORATION (THE "COMPANY") OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER
OF THIS DEBENTURE (OR ANY PREDECESSOR OF THIS DEBENTURE) (THE "RESALE
RESTRICTIONS TERMINATION DATE") ONLY (A) TO THE COMPANY, (B) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (C) FOR SO LONG AS
THE DEBENTURES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT
OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN
THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (a) (1),
(2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THE
DEBENTURE FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL
"ACCREDITED INVESTOR," FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR
FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF
THE SECURITIES ACT, OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S RIGHT
PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D) OR (E)
TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO IT IN ACCORDANCE WITH THE INDENTURE, A COPY OF WHICH
MAY BE OBTAINED FROM THE COMPANY. THE HOLDER OF THIS DEBENTURE AGREES THAT IT
WILL COMPLY WITH THE FOREGOING RESTRICTIONS. DEBENTURES OWNED BY A PURCHASER
THAT IS NOT A QUALIFIED INSTITUTIONAL BUYER MAY NOT BE HELD IN
BOOK-ENTRY FORM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF A HOLDER
AFTER THE RESALE RESTRICTIONS TERMINATION DATE. DEBENTURES WILL BE ISSUED AND
MAY BE TRANSFERRED ONLY IN BLOCKS HAVING AN AGGREGATE PRINCIPAL AMOUNT OF NOT
LESS THAN $100,000 (AND INTEGRAL MULTIPLES OF $1,000 IN EXCESS THEREOF). ANY
SUCH TRANSFER OF DEBENTURES IN A BLOCK HAVING AN AGGREGATE PRINCIPAL AMOUNT OF
LESS THAN $100,000 SHALL BE DEEMED TO BE VOID AND OF NO LEGAL EFFECT WHATSOEVER.
ANY SUCH TRANSFEREE SHALL BE DEEMED NOT TO BE THE HOLDER OF SUCH DEBENTURES FOR
ANY PURPOSE, INCLUDING BUT NOT LIMITED TO THE RECEIPT OF PAYMENTS ON SUCH
DEBENTURES, AND SUCH
16
TRANSFEREE SHALL BE DEEMED TO HAVE NO INTEREST WHATSOEVER IN SUCH DEBENTURES.]
No. _________________
PXRE CORPORATION
8.85% JUNIOR SUBORDINATED DEFERRABLE
INTEREST DEBENTURE DUE 2027
PXRE CORPORATION, a Delaware corporation (the "Company", which
term includes any successor corporation under the Indenture hereinafter referred
to and all capitalized terms which are not defined herein are used herein as
defined in the Indenture), for value received, hereby promises to pay to
____________ or registered assigns, the principal sum of ________________
Dollars ($_________ ) on February 1, 2027, and to pay interest on said principal
sum from January 29, 1997, or from the most recent interest payment date (each
such date, an "Interest Payment Date") to which interest has been paid or duly
provided for, semiannually (subject to deferral as set forth herein) in arrears
on February 1 and August 1 of each year commencing August 1, 1997, at the rate
of 8.85% per annum until the principal hereof shall have become due and payable,
and on any overdue principal and premium, if any, and (without duplication and
to the extent that payment of such interest is enforceable under applicable law)
on any overdue installment of interest at the same rate per annum compounded
semiannually. The amount of interest payable on any Interest Payment Date shall
be computed on the basis of a 360-day year of twelve 30-day months. In the event
that any date on which interest is payable on this Debenture is not a Business
Day, then payment of interest payable on such date will be made on the next
succeeding day that is a Business Day (and without any interest or other payment
in respect of any such delay), except that, if such Business Day is in the next
succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on such date. The interest installment so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in the Indenture,
be paid to the Person in whose name this Debenture (or one or more Predecessor
Securities) is registered at the close of business on the Record Date for such
interest installment, [which shall be the close of business on the Business Day
next preceding such Interest Payment Date]. [IF PURSUANT TO THE PROVISIONS OF
THE INDENTURE THE DEBENTURES OF THIS SERIES ARE NO LONGER REPRESENTED SOLELY BY
A GLOBAL DEBENTURE, SUBSTITUTE THE FOLLOWING FOR THE FOREGOING BRACKETED TEXT --
which shall be the close of business on the 15th Business Day next preceding
such Interest Payment Date.] Any such interest installment not punctually paid
or duly provided for shall forthwith cease to be payable to the registered
holders on such Record Date and may be paid to the Person in whose name this
Debenture (or one or more Predecessor Securities) is registered at the close of
business on a special record date to be fixed by the Trustee for the payment of
such defaulted interest, notice whereof shall be given to the registered holders
of this series of Debentures not less than 10 days prior to such special record
date, or may be paid at any time in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Debentures of this
series may be listed, and upon such notice as may be required by such exchange,
all as more fully provided in the Indenture. In the event the
17
Debentures of this series are issued in non-book entry form, the principal of
(and premium, if any) and the interest on this Debenture shall be payable at the
office or agency of the Trustee (or other paying agent appointed by the Company)
maintained for that purpose in any coin or currency of the United States of
America that at the time of payment is legal tender for payment of public and
private debts; provided, however, that payment of interest may be made at the
option of the Company by check mailed to the registered holder at such address
as shall appear in the Debt Security Register or by wire transfer to an account
appropriately designated by the holder hereof. Notwithstanding the foregoing, so
long as the holder of this Debenture is the Institutional Trustee, the payment
of the principal of (and premium, if any) and interest on this Debenture will be
made at such place and to such account as may be designated by the Institutional
Trustee.
The indebtedness evidenced by this Debenture is, to the extent
provided in the Indenture, subordinate and junior in right of payment to the
prior payment in full of all Senior Indebtedness and subject to certain
limitations on the ability to pursue remedies upon default, and this Debenture
is issued subject to the provisions of the Indenture with respect thereto. Each
holder of this Debenture, by accepting the same, (a) agrees to and shall be
bound by such provisions, (b) authorizes and directs the Trustee on his, its or
her behalf to take such action as may be necessary or appropriate to acknowledge
or effectuate the subordination so provided and (c) appoints the Trustee his or
her attorney-in-fact for any and all such purposes. Each holder hereof, by his
or her acceptance hereof, hereby waives all notice of the acceptance of the
subordination provisions contained herein and in the Indenture by each holder of
Senior Indebtedness, whether now outstanding or hereafter incurred, and waives
reliance by each such holder upon said provisions.
If this Debenture is exchanged in a Registered Exchange Offer
prior to the Record Date for the first Interest Payment Date following such
exchange, accrued and unpaid interest, if any, on this Debenture, up to but not
including the date of issuance of the Exchange Debenture or Exchange Debentures
issued in exchange for this Debenture, shall be paid on the first Interest
Payment Date for such Exchange Debenture or Exchange Debentures to the
Securityholder or Securityholders of such Exchange Debenture or Exchange
Debentures on the first Record Date with respect to such Exchange Debenture or
Exchange Debentures. If this Debenture is exchanged in a Registered Exchange
Offer subsequent to the Record Date for the first Interest Payment Date
following such exchange but on or prior to such Interest Payment Date, then any
such accrued and unpaid interest with respect to this Debenture and any accrued
and unpaid interest on the Exchange Debenture or Exchange Debentures issued in
exchange for this Debenture, through the day before such Interest Payment Date,
shall be paid on such Interest Payment Date to the Securityholder of this
Debenture on such Record Date.
If any time the Trust shall be required to pay any taxes, duties,
assessments or governmental charges of whatever nature (other than withholding
taxes) imposed by the United States or any other taxing authority, then, in any
such case, the Company shall pay as additional interest on the Debentures held
by the Institutional Trustee such additional amounts as shall be required so
that the net amounts received and retained by the Trust after paying any such
taxes, duties, assessments or other governmental charges will equal the amounts
the Trust and the
18
Institutional Trustee would have received had no such taxes, duties, assessments
or other governmental charges been imposed. [IF THIS DEBENTURE IS AN INITIAL
DEBENTURE INSERT -- In addition, the interest rate payable on the Debentures of
this series is subject to increase as provided in the Indenture if, pursuant to
the Registration Agreement, except as provided in the following paragraph,
either (A) the Exchange Offer Registration Statement (as such term is defined in
the Registration Agreement) is not filed with the Securities and Exchange
Commission (the "Commission") on or prior to the 120th day following the Closing
Date (as such term is defined in the Registration Agreement), (B) the Exchange
Offer Registration Statement is not declared effective by the Commission on or
prior to the 180th day following the Closing Date or (C) the Registered Exchange
Offer (as such term is defined in the Registration Agreement) is not consummated
or a Shelf Registration Statement (as such term is defined in the Registration
Agreement) is not declared effective by the Commission on or prior to the 210th
day following the Closing Date.
If a Shelf Registration Event shall exist on or before the 120th
day following the date of original issuance of the Debentures, the Company and
the Trust may, at the Company's option and cost, in lieu of the commencement of
the Exchange Offer, file and use their best efforts to cause to be declared
effective a Shelf Registration Statement covering resales of the Initial
Debentures and use their best efforts to keep effective the Shelf Registration
Statement until three years after its effective date. To the extent that such a
Shelf Registration Event exists on the 120th day following the Closing Date,
then clause (A) of the preceding paragraph shall not apply. To the extent that
such a Shelf Registration Event exists and the Company has filed a Shelf
Registration Statement covering resales of the Initial Debentures by the 180th
day following the Closing Date, then clause (B) of the preceding paragraph shall
not apply, and to the extent a Shelf Registration Event exists on the 210th day
following the Closing Date, the period specified in clause (C) of the preceding
paragraph will be 240 days. The interest rate payable on the Debentures of this
series is also subject to adjustment in certain circumstances if a Shelf
Registration Statement filed pursuant to the Registration Agreement is not kept
continuously effective for a specified period, as provided in the Indenture.]
This Debenture shall not be entitled to any benefit under the
Indenture hereinafter referred to, be valid or become obligatory for any purpose
until the certificate of authentication hereon shall have been signed by or on
behalf of the Trustee.
The provisions of this Debenture are continued on the reverse
side hereof and such continued provisions shall for all purposes have the same
effect as though fully set forth at this place.
19
IN WITNESS WHEREOF, the Company has caused this instrument to be
executed.
PXRE CORPORATION
By:______________________________
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Debt Securities of the series designated
therein referred to in the within-mentioned Indenture.
Dated ________________
FIRST UNION NATIONAL BANK, as Trustee
By_____________________________________
Authorized Officer
20
(REVERSE OF DEBENTURE)
This Debenture is one of a duly authorized series of Debt
Securities of the Company, all issued or to be issued in one or more series
under and pursuant to an Indenture dated as of January 29, 1997, duly executed
and delivered between the Company and First Union National Bank, as Trustee (the
"Trustee"), as supplemented by the First Supplemental Indenture dated as of
January 29, 1997, between the Company and the Trustee (the Indenture as so
supplemented and as may be supplemented from time to time, the "Indenture"), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a description of the rights, limitations of rights, obligations, duties and
immunities thereunder of the Trustee, the Company and the holders of this series
of Debt Securities (referred to herein as the "Debentures") of which this
Debenture is a part. The summary of the terms of this Debenture contained herein
does not purport to be complete and is qualified by reference to the Indenture.
By the terms of the Indenture, the Debt Securities are issuable in series that
may vary as to amount, date of maturity, rate of interest and in other respects
as provided in the Indenture. This series of Debentures is limited in aggregate
principal amount as specified in said First Supplemental Indenture.
Upon the occurrence and continuation of a Tax Event or an
Investment Company Event, in certain circumstances, this Debenture may become
due and payable, in whole, or in part, a) in the case of a Tax Event, at a
redemption price equal to 100% of the principal amount being redeemed and b) in
the case of an Investment Company Event (i) at the Make-Whole Amount in the case
of redemption upon the occurrence of an Investment Company Event prior to
February 1, 2007 or (ii) the Call Price, in the case of a redemption upon the
occurrence of an Investment Company Event on or after February 1, 2007, together
with any accrued and unpaid interest thereon, which shall be paid prior to 3:00
p.m., New York City time, on the date of such redemption or at such earlier time
as the Company determines. The Company shall also have the right to redeem this
Debenture at the option of the Company, in whole or in part, at any time or from
time to time on or after February 1, 2007 (an "Optional Redemption"), at the
call price (expressed as a percentage of the principal amount being redeemed)
specified below:
If redeemed during the 12-month period:
Beginning February 1, Call Price
--------------------- ----------
2007 104.180%
2008 103.762
2009 103.344
2010 102.926
2011 102.508
2012 102.090
2013 101.672
2014 101.254
2015 100.836
2016 100.418
21
and thereafter at 100% of the principal amount (each, a "Call Price"), plus in
each case accrued and unpaid interest thereon to the date of redemption.
Any redemption pursuant to the preceding paragraph will be made
upon not less than 30 days' nor more than 60 days' notice, at the Call Price,
plus any accrued and unpaid interest to the date of such redemption. If the
Debentures are only partially redeemed by the Company, the Debentures will be
redeemed pro rata or by lot or by any other method utilized by the Trustee;
provided that if, at the time of redemption, the Debentures are registered as a
Global Debenture, the Depositary shall determine the principal amount of such
Debentures held by each of its direct participants to be redeemed in accordance
with its procedures.
In the event of redemption of this Debenture in part only, a new
Debenture or Debentures of this series for the unredeemed portion hereof will be
issued in the name of the holder hereof upon the cancellation hereof.
In case an Event of Default shall have occurred and be
continuing, the principal of all of the Debentures may be declared (and upon
such declaration shall become) due and payable, in the manner, with the effect
and subject to the conditions provided in the Indenture, including the
subordination provisions thereof.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the holders of not less than a majority in
aggregate principal amount of the Debt Securities of any series at the time
outstanding affected thereby, as specified in the Indenture, to execute
supplemental indentures for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of the Indenture or of any
supplemental indenture or of modifying in any manner the rights of the holders
of the Debt Securities; provided, however, that no such supplemental indenture
shall among other things, without the consent of the holders of each Debt
Security then outstanding and affected thereby (i) extend the fixed maturity of
any Debt Securities of any series, or reduce the principal amount thereof or any
redemption premium thereon, or reduce the rate or extend the time of payment of
interest thereon, or make the principal of, or interest or premium on, the Debt
Securities payable in any coin or currency other than that provided in the Debt
Securities, or impair or affect the right of any holder of Debt Securities to
institute suit for the payment thereof, or (ii) reduce the aforesaid percentage
of Debt Securities, the holders of which are required to consent to any such
supplemental indenture; provided, further, that if the Debt Securities of such
series are held by a PXRE Trust or a trustee of such trust, such supplemental
indenture shall not be effective until the holders of a majority in liquidation
preference of Trust Securities of the applicable Trust shall have consented to
such supplemental indenture; provided further, that if the consent of the
Securityholder of each outstanding Debt Security is required, such supplemental
indenture shall not be effective until each holder of the Trust Securities of
the applicable PXRE Trust shall have consented to such supplemental indenture.
The Indenture also contains provisions permitting the holders of a majority in
aggregate principal amount of the Debt Securities of a series at the time
outstanding affected thereby as provided in the Indenture, on behalf of all of
the holders of the Debt
22
Securities of such series, to waive any past default in the performance of any
of the covenants contained in the Indenture, or established pursuant to the
Indenture with respect to such series, and its consequences, except a default in
the payment of the principal of or premium, if any, or interest on any of the
Debt Securities of such series. Any such consent or waiver by the registered
holder of this Debenture (unless revoked as provided in the Indenture) shall be
conclusive and binding upon such holder and upon all future holders and owners
of this Debenture and of any Debenture issued in exchange herefor or in place
hereof (whether by registration of transfer or otherwise), irrespective of
whether or not any notation of such consent or waiver is made upon this
Debenture.
No reference herein to the Indenture and no provision of this
Debenture or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
premium, if any, and interest on this Debenture at the time and place and at the
rate and in the money herein prescribed.
The Company shall have the right, subject to certain conditions,
at any time during the term of the Debentures and from time to time to extend
the interest payment period of the Debentures for up to 10 consecutive
semiannual periods (each, an "Extension Period") as provided in the Indenture.
Notwithstanding the foregoing, no Extension Period may extend beyond the
maturity date of the Debentures. In the event that the Company exercises its
right to extend an interest payment period, then during any Extension Period,
subject to certain exceptions as provided in the Indenture, (i) the Company
shall not declare or pay any dividends on, make any distribution 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 (other than payments on the Capital Securities Guarantee or
the Common Securities Guarantee for the Trust) with respect to the foregoing and
(ii) the Company 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 the Company that rank pari passu with or junior to the Debentures. Upon the
termination of any Extension Period and the payment of all amounts then due, the
Company may commence a new Extension Period, subject to the requirements
contained in the Indenture.
As provided in the Indenture and subject to certain limitations
herein and therein set forth, this Debenture is transferable by the registered
holder hereof on the Debt Security Register of the Company, upon surrender of
this Debenture for registration of transfer at the office or agency of the
Trustee in the City and State of New York or in Newark, New Jersey accompanied
by a written instrument or instruments of transfer in form satisfactory to the
Company or the Trustee duly executed by the registered holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Debentures of
authorized denominations and for the same aggregate principal amount and series
will be issued to the designated transferee or transferees. No service charge
will be made for any such transfer, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in relation
thereto.
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Prior to due presentment for registration of transfer of this
Debenture, the Company, the Trustee, any Authenticating Agent, any paying agent,
any transfer agent and the Debt Security registrar may deem and treat the
registered holder hereof as the absolute owner hereof (whether or not this
Debenture shall be overdue and notwithstanding any notice of ownership or
writing hereon) for the purpose of receiving payment of or on account of the
principal hereof and premium, if any, and interest due hereon and for all other
purposes, and neither the Company nor the Trustee nor any Authenticating Agent
nor any paying agent nor any transfer agent nor any Debt Security registrar
shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of, the
premium, if any, on or the interest on this Debenture, or for any claim based
hereon, or otherwise in respect hereof, or based on or in respect of the
Indenture, against any incorporator, stockholder, officer or director, past,
present or future, as such, of the Company or of any predecessor or successor
corporation, whether by virtue of any constitution, statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise, all such liability
being, by the acceptance hereof and as part of the consideration for the
issuance hereof, expressly waived and released.
The Debentures of this series are issuable only in registered
form without coupons. A Global Debenture is exchangeable for Debentures in
definitive form only under certain limited circumstances set forth in the
Indenture. As provided in the Indenture and subject to certain limitations
herein and therein set forth, Debentures of this series are exchangeable for a
like aggregate principal amount of Debentures of this series of a different
authorized denomination, as requested by the holder surrendering the same.
[IF THIS DEBENTURE IS AN INITIAL DEBENTURE INSERT -- The
Debentures of this series are issuable only in minimum denominations of $100,000
and any integral multiple of $1,000 in excess thereof. The Debentures of this
series may be transferred only in blocks having an aggregate principal amount of
not less than $100,000. Any transfer of Debentures of this series in a block
having an aggregate principal amount of less than $100,000 shall be deemed to be
void and of no legal effect whatsoever. Any transferee of Debentures of this
series having an aggregate principal amount of less than $100,000 shall be
deemed not to be the holder of such Debentures for any purpose, including, but
not limited to, the receipt of payments on such Debentures, and such transferee
shall be deemed to have no interest whatsoever in such Debentures.]
All terms used in this Debenture that are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
THE INDENTURE AND THE DEBENTURES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO CONFLICT OF LAWS PRINCIPLES THEREOF.
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ARTICLE VII
MISCELLANEOUS
SECTION 7.1
The Indenture, as supplemented by this First Supplemental
Indenture, is in all respects ratified and confirmed, and this First
Supplemental Indenture shall be deemed part of the Indenture in the manner and
to the extent herein and therein provided.
SECTION 7.2
The recitals herein contained are made by the Company and not by
the Trustee, and the Trustee assumes no responsibility for the correctness
thereof. The Trustee makes no representation as to the validity or sufficiency
of this First Supplemental Indenture.
SECTION 7.3
This First Supplemental Indenture and each Debenture shall be
deemed to be a contract made under the laws of the State of New York, and for
all purposes shall be governed by and construed in accordance with the laws of
said State, without regard to conflict of laws principles thereof.
SECTION 7.4
In case any one or more of the provisions contained in this First
Supplemental Indenture or in a series of Debentures shall for any reason be held
to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provisions of this
First Supplemental Indenture or of such series of the Debentures, but this First
Supplemental Indenture and such series of the Debentures shall be construed as
if such invalid or illegal or unenforceable provision had never been contained
herein or therein.
This First Supplemental Indenture may be executed in any number
of counterparts each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument, and all signatures need not
appear on any one counterpart.
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IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed, as of the day and year first above
written.
PXRE CORPORATION
By: /s/ Gerald L. Radke
-------------------------------
Name: Gerald L. Radke
Title: President
FIRST UNION NATIONAL BANK, as Trustee
By: /s/ Rick Barnes
-------------------------------
Name: Rick Barnes
Title: Assistant Vice President
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