EXHIBIT 10.2
AMENDMENT TO THE
AMENDED AND RESTATED
FACULTATIVE OBLIGATORY QUOTA
SHARE RETROCESSIONAL AGREEMENT
This AMENDMENT TO THE AMENDED AND RESTATED FACULTATIVE OBLIGATORY QUOTA
SHARE RETROCESSIONAL AGREEMENT, effective as of January 1, 2003 (the
"Amendment"), is made in respect of the Amended and Restated Facultative
Obligatory Quota Share Retrocessional Agreement, dated as of October 1, 1997
(and as heretofore and as amended hereby, the "Quota Share Agreement"), between
SELECT REINSURANCE LTD., a Bermuda company (the "Reinsurer"), and PXRE
REINSURANCE COMPANY, a Connecticut company (the "Company"), and beginning
January 1, 2003, PXRE Reinsurance Ltd., a Bermuda Company, which, effective on
such date, shall be included in the definition of "Company" as hereinafter
provided and referred to separately in this Amendment as "PXRE Ltd." while PXRE
Reinsurance Company shall be referred to in this Amendment separately as "PXRE
Co." and "Cedent" shall be used to refer to either. Capitalized and other
specialized terms used herein but not otherwise defined shall have the meanings
given to such terms in the Quota Share Agreement.
RECITALS
WHEREAS, the parties desire to amend the term of the Quota Share
Agreement to reflect the participation of PXRE Ltd.;
NOW THEREFORE, for good and valuable consideration, receipt of which is
hereby acknowledged, it is hereby mutually agreed by the parties as follows:
1. For the calendar year 2003, certain of the reinsurance
programs or parts thereof will be ceded to the Reinsurer by
PXRE Ltd. and such cessions shall be subject to the terms of
the Quota Share Agreement and may be ceded by it to the
Reinsurer in subsequent years the Quota Share Agreement is in
effect and in such event are intended to be subject to its
terms. Except as provided in this Amendment, all references to
the Company shall refer to that Cedent which has ceded the
reinsurance program or part thereof to Reinsurer.
2. When the Quota Share Agreement grants a right to the Company,
the parties agree it shall be exercisable by PXRE Ltd. on
behalf of either itself, PXRE Co. or both, as the case may be,
except as otherwise set forth in this Amendment. Without the
written consent of the Reinsurer, the right of Company to
terminate the Quota Share Agreement may only be exercised as
to its entirely and not for only one Cedent.
3. When the Reinsurer has a right to terminate the Quota Share
Agreement as to only one Cedent under the terms of the Quota
Share Agreement, it may terminate as to that Cedent or the
entire Quota Share Agreement and if the former is elected,
termination shall be effective only for the reinsurance
programs or parts thereof ceded by that Cedent. If the
non-terminated Cedent would be adversely affected with respect
to risk exposure in a material way by the continuation of its
obligations under the Quota Share Agreement due solely to the
termination as to the other Cedent, it may terminate the Quota
Share Agreement between itself and the Reinsurer.
4. To the extent the Quota Share Agreement provides for Reinsurer
to place any amount in a Trust Account for the benefit of
Company, if it is for the benefit of PXRE Co., it shall be
placed in the Trust Account currently bearing the number
P311699-2with JP Morgan Chase Bank, and if for the benefit of
PXRE Ltd., in the The Patriot 2002 Trust with Capital G Trust
Limited (the latter, hereinafter the "Bermuda Trust"). The
rights and obligations of a Cedent and Reinsurer with respect
to a Trust Account shall be governed by the trust agreement
applicable to such Trust Account and the applicable provisions
of the Quota Share Agreement, with the terms of the trust
agreement to govern in the event of a conflict; provided that
the parties hereby agree that the definition of "Obligations"
in Article XII A of the Quota Share Agreement shall be
substituted for such definition in Section 1.13 of the Trust
Agreement governing the Bermuda Trust when applying that
definition to the terms of the Bermuda Trust for transactions
under the Quota Share Agreement; and provided further that,
for the avoidance of doubt, the Obligations to be secured
shall be the net amount due from the Reinsurer to the Cedent
after application of all permissible offsets.
5. The first paragraph of Article XXIV (Miscellaneous) of the
Quota Share Agreement is hereby deleted and replaced in its
entirety as follows:
"Both the Reinsurer and each Cedent shall have, and
may exercise at any time, the right to offset any
amounts due from one party to the other or, to the
extent permitted by applicable law, such other's
successor, including a successor by operation of law.
Such offset may only include amounts due under this
Agreement and any other reinsurance agreements
heretofore or hereafter entered into between the
Reinsurer and such Cedent, regardless of whether such
amounts are in respect of premiums, or losses or
otherwise, and regardless of the capacity of any
party, whether as reinsurer or reinsured, under the
various agreements involved; provided that:
(a) upon the occurrence of an Event of
Insolvency with respect to PXRE Co., the
Reinsurer shall, except where prohibited by
applicable law, have the right to offset any
balance due to Reinsurer from PXRE Co.
against any amounts due from the Reinsurer
to PXRE Ltd. and, if applicable, such offset
shall reduce the Obligations to be secured
for the benefit of PXRE Ltd. pursuant to
Article XII (Funding & Deposits) of the
Quota Share Agreement;
(b) An "Event of Insolvency" shall mean an
event whereby one of the parties hereto
becomes subject to insolvency, liquidation,
rehabilitation proceedings, administrative
supervision or governmental action related
to the impaired financial position of such
party."
6. Whether any Federal Excise Tax is payable to the United States
in connection with reinsurance ceded to Reinsurer by PXRE Ltd.
shall be jointly determined by them.
7. To the extent arbitration is sought by any party under Article
XIX of the Quota Share Agreement, both PXRE Ltd. and PXRE Co.
shall choose one arbitrator to represent them jointly if both
are parties to the arbitration and if they cannot agree, as
designated by PXRE Ltd.
8. Any party not subject to the jurisdiction of the courts of
competent jurisdiction in the City and State of New York
hereby agrees, at the request of any other party, to submit to
such jurisdiction for the purposes provided for in Article XX
of the Quota Share Agreement or for the purpose of any claim
by Reinsurer to enforce an arbitration award or necessary to
aid such arbitration. PXRE Ltd. agrees that the terms of said
Article XX, to the extent applicable to Reinsurer, shall also
apply to it, and PXRE Ltd. and PXRE Co. appoint Nancy Corbett
of Sidley Austin Brown & Wood, 787 Seventh Avenue, New York,
New York 10019 as agent for service of process in any
proceeding provided for in Article XX and all parties agree
service on a designated agent provided for in Article XX shall
be good service for the court in which such proceeding is
commenced if such court is an authorized one under Article XX.
The address of Alan S. Kramer P.C. for service is currently
780 Third Avenue, 16th Floor, New York, NY 10017.
9. The current addresses, fax numbers and e-mail designations for
notice as provided for in Article XXIII of the Quota Share
Agreement are:
For PXRE Co.
PXRE Reinsurance Company
399 Thornall Street
Edison, NJ 08837
Attn: Chief Financial Officer
Fax: (732) 906-9157
Email: John_Modin@pxre.com
For PXRE Ltd.
PXRE Reinsurance Ltd.
Swan Building
26 Victoria Street
Hamilton HM 12 Bermuda
Attn: Chief Financial Officer
Fax: (441) 296-6162
Email: bob_myron@pxre.com
For Reinsurer
STREET ADDRESS
Select Reinsurance Ltd.
Victoria Hall
11 Victoria Street, 3rd Floor
Hamilton HM11
Bermuda
Attention: Brant L. Kizer
Facsimile: 441-296-8459
MAILING ADDRESS
Select Reinsurance Ltd.
Suite #794
48 Par-la-ville Road
Hamilton HM11
Bermuda
10. Any reference in the Quota Share Agreement to "either party"
shall be read as "any party" and any reference indicating that
there are two parties to the agreement shall be read as
indicating that there are three whenever the Quota Share
Agreement is applicable to a cession from PXRE Ltd. to
Reinsurer.
11. Except as otherwise provided for in this Amendment, the terms
of the Quota Share Agreement as in effect prior to this
Amendment, shall remain in full force and effect.
12. This Amendment may not be modified or amended or any term or
provision hereof waived or discharged except in writing signed
by the party against whom such amendment, modification, waiver
or discharge is sought to be enforced.
13. This Amendment may be executed in any number of counterparts,
each such counterpart being deemed to be an original
instrument, and all such counterparts shall together
constitute the same Amendment.
14. This Amendment shall be construed and enforced in accordance
with, and governed by, the laws of the State of New York
(other than any mandatory conflict of law rule which might
result in the application of the law of any other
jurisdiction); provided that in the event of an insolvency
proceeding of a party, the law of Bermuda relating to
insolvency shall govern, except if the insolvent entity is
PXRE Co., the law of Connecticut relating to insolvency shall
govern, in each case as to proceedings in such jurisdictions
insolvency proceeding.
In witness whereof, the parties hereto have executed this Amendment at
their principal places of business, effective as of January 1, 2003.
PXRE Reinsurance Company
By: /s/ Michael Bleisnick
------------------------
(Name and Title)____Michael Bleisnick, Executive Vice President
PXRE Reinsurance Ltd.
By: /s/ Robert P. Myron
------------------------
(Name and Title______Robert P. Myron, CFO
Select Reinsurance Ltd.
By: /s/ Brant L. Kizer
-----------------------
(Name and Title)___Brant L. Kizer, Vice President