UNITED STATES
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, 2021
___ Transition Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Commission file number 1-15731
EVEREST RE GROUP, LTD.
(Exact name of registrant as specified in its charter)
Bermuda |
|
98-0365432 |
(State or other jurisdiction of incorporation or organization)
|
|
(I.R.S. Employer Identification No.) |
Seon Place – 4th Floor
141 Front Street
PO Box HM 845
HamiltonHM 19, Bermuda
441-295-0006
(Address, including zip code, and telephone number, including area code,
of registrant’s principal executive office)
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 |
|
Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T during the preceding 12 months (or for such shorter period that the registrant was required to submit such files).
Yes |
X |
|
No |
|
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large Accelerated Filer |
X |
|
Accelerated filer |
|
Non-accelerated filer |
|
|
Smaller reporting company |
|
|
Emerging growth company |
|
Indicate by check mark if the registrant is an emerging growth company and has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange act.
YES |
|
|
NO |
X |
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).
YES |
|
|
NO |
X |
Securities registered pursuant to Section 12(b) of the Act:
Class |
Trading Symbol |
Name of Exchange where Registered |
Number of Shares Outstanding At November 1, 2021 |
Common Shares, $0.01 par value |
RE |
New York Stock Exchange |
39,369,026 |
EVEREST RE GROUP, LTD
Table of Contents
Form 10-Q
Page
PART I
FINANCIAL INFORMATION
PART II
OTHER INFORMATION
Item 1. |
54 |
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Item 1A. |
54 |
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Item 2. |
54 |
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Item 3. |
54 |
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Item 4. |
54 |
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Item 5. |
55 |
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Item 6. |
55 |
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EVEREST RE GROUP, LTD.
CONSOLIDATED BALANCE SHEETS
|
September 30, |
|
December 31, |
||
(Dollars and share amounts in thousands, except par value per share) |
2021 |
|
2020 |
||
|
(unaudited) |
|
|
|
|
ASSETS: |
|
|
|
|
|
Fixed maturities - available for sale, at market value |
$ |
21,623,119 |
|
$ |
20,040,173 |
(amortized cost: 2021, $21,182,756; 2020, $19,225,067, credit allowances: 2021, $(31,980); 2020, $(1,745)) |
|
|
|
|
|
Equity securities, at fair value |
|
1,523,595 |
|
|
1,472,236 |
Short-term investments (cost: 2021, $713,144; 2020, $1,135,088) |
|
713,144 |
|
|
1,134,950 |
Other invested assets |
|
2,855,372 |
|
|
2,012,581 |
Cash |
|
1,068,441 |
|
|
801,651 |
Total investments and cash |
|
27,783,671 |
|
|
25,461,591 |
Accrued investment income |
|
170,364 |
|
|
141,304 |
Premiums receivable |
|
3,408,338 |
|
|
2,680,562 |
Reinsurance recoverables |
|
2,215,380 |
|
|
1,994,555 |
Funds held by reinsureds |
|
811,269 |
|
|
716,655 |
Deferred acquisition costs |
|
797,735 |
|
|
622,053 |
Prepaid reinsurance premiums |
|
552,468 |
|
|
412,015 |
Income taxes net recoverable |
|
- |
|
|
17,253 |
Other assets |
|
866,872 |
|
|
742,369 |
TOTAL ASSETS |
$ |
36,606,097 |
|
$ |
32,788,357 |
|
|
|
|
|
|
LIABILITIES: |
|
|
|
|
|
Reserve for losses and loss adjustment expenses |
$ |
18,956,953 |
|
$ |
16,398,997 |
Future policy benefit reserve |
|
36,533 |
|
|
37,723 |
Unearned premium reserve |
|
4,421,098 |
|
|
3,501,359 |
Funds held under reinsurance treaties |
|
18,279 |
|
|
15,807 |
Other net payable to reinsurers |
|
485,682 |
|
|
294,347 |
Losses in course of payment |
|
150,784 |
|
|
127,971 |
Senior notes due 6/1/2044 |
|
397,284 |
|
|
397,194 |
Senior notes due 10/15/2050 |
|
979,915 |
|
|
979,524 |
Long term notes due 5/1/2067 |
|
223,749 |
|
|
223,674 |
Borrowings from FHLB |
|
310,000 |
|
|
310,000 |
Accrued interest on debt and borrowings |
|
23,267 |
|
|
10,460 |
Unsettled securities payable |
|
83,626 |
|
|
206,693 |
Income taxes net payable |
|
4,074 |
|
|
- |
Other liabilities |
|
536,218 |
|
|
558,432 |
Total liabilities |
|
26,627,462 |
|
|
23,062,181 |
|
|
|
|
|
|
Commitments and contingencies (Note 7) |
|
(nil) |
|
|
(nil) |
|
|
|
|
|
|
SHAREHOLDERS' EQUITY: |
|
|
|
|
|
Preferred shares, par value: $0.01; 50,000 shares authorized; |
|
|
|
|
|
no shares issued and outstanding |
|
- |
|
|
- |
Common shares, par value: $0.01; 200,000 shares authorized; (2021) 69,806 |
|
|
|
|
|
and (2020) 69,620 outstanding before treasury shares |
|
698 |
|
|
696 |
Additional paid-in capital |
|
2,266,342 |
|
|
2,245,301 |
Accumulated other comprehensive income (loss), net of deferred income |
|
|
|
|
|
tax expense (benefit) of $44,338 at 2021 and $80,451 at 2020 |
|
203,733 |
|
|
534,899 |
Treasury shares, at cost; 30,427 shares (2021) and 29,636 shares (2020) |
|
(3,822,235) |
|
|
(3,622,172) |
Retained earnings |
|
11,330,097 |
|
|
10,567,452 |
Total shareholders' equity |
|
9,978,635 |
|
|
9,726,176 |
TOTAL LIABILITIES AND SHAREHOLDERS' EQUITY |
$ |
36,606,097 |
|
$ |
32,788,357 |
|
|
|
|
|
|
The accompanying notes are an integral part of the consolidated financial statements. |
1
EVEREST RE GROUP, LTD.
CONSOLIDATED STATEMENTS OF OPERATIONS
AND COMPREHENSIVE INCOME (LOSS)
|
Three Months Ended |
|
Nine Months Ended |
||||||||
|
September 30, |
|
September 30, |
||||||||
(Dollars in thousands, except per share amounts) |
2021 |
|
2020 |
|
2021 |
|
2020 |
||||
|
(unaudited) |
|
(unaudited) |
||||||||
REVENUES: |
|
|
|
|
|
|
|
|
|
|
|
Premiums earned |
$ |
2,656,403 |
|
$ |
2,205,811 |
|
$ |
7,602,640 |
|
$ |
6,285,030 |
Net investment income |
|
292,759 |
|
|
234,233 |
|
|
960,267 |
|
|
420,116 |
Net realized capital gains (losses): |
|
|
|
|
|
|
|
|
|
|
|
Credit allowances on fixed maturity securities |
|
(7,329) |
|
|
6,196 |
|
|
(30,234) |
|
|
(19,641) |
Other net realized capital gains (losses) |
|
3,107 |
|
|
104,007 |
|
|
169,023 |
|
|
103,904 |
Total net realized capital gains (losses) |
|
(4,222) |
|
|
110,203 |
|
|
138,789 |
|
|
84,263 |
Other income (expense) |
|
(19,517) |
|
|
59,937 |
|
|
44,190 |
|
|
47,306 |
Total revenues |
|
2,925,423 |
|
|
2,610,184 |
|
|
8,745,886 |
|
|
6,836,715 |
|
|
|
|
|
|
|
|
|
|
|
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CLAIMS AND EXPENSES: |
|
|
|
|
|
|
|
|
|
|
|
Incurred losses and loss adjustment expenses |
|
2,274,301 |
|
|
1,736,210 |
|
|
5,571,861 |
|
|
4,574,066 |
Commission, brokerage, taxes and fees |
|
564,335 |
|
|
445,332 |
|
|
1,611,095 |
|
|
1,360,170 |
Other underwriting expenses |
|
141,150 |
|
|
138,875 |
|
|
424,225 |
|
|
385,865 |
Corporate expenses |
|
17,817 |
|
|
10,618 |
|
|
46,363 |
|
|
29,184 |
Interest, fees and bond issue cost amortization expense |
|
15,539 |
|
|
6,641 |
|
|
46,785 |
|
|
21,477 |
Total claims and expenses |
|
3,013,142 |
|
|
2,337,676 |
|
|
7,700,329 |
|
|
6,370,762 |
|
|
|
|
|
|
|
|
|
|
|
|
INCOME (LOSS) BEFORE TAXES |
|
(87,719) |
|
|
272,508 |
|
|
1,045,557 |
|
|
465,953 |
Income tax expense (benefit) |
|
(14,251) |
|
|
29,451 |
|
|
97,181 |
|
|
15,404 |
|
|
|
|
|
|
|
|
|
|
|
|
NET INCOME (LOSS) |
$ |
(73,468) |
|
$ |
243,057 |
|
$ |
948,376 |
|
$ |
450,549 |
|
|
|
|
|
|
|
|
|
|
|
|
Other comprehensive income (loss), net of tax: |
|
|
|
|
|
|
|
|
|
|
|
Unrealized appreciation (depreciation) ("URA(D)") on securities arising during the period |
|
(100,021) |
|
|
63,480 |
|
|
(304,465) |
|
|
335,835 |
Reclassification adjustment for realized losses (gains) included in net income (loss) |
|
(1,388) |
|
|
(11,453) |
|
|
(3,464) |
|
|
12,689 |
Total URA(D) on securities arising during the period |
|
(101,409) |
|
|
52,027 |
|
|
(307,929) |
|
|
348,524 |
|
|
|
|
|
|
|
|
|
|
|
|
Foreign currency translation adjustments |
|
(53,599) |
|
|
60,628 |
|
|
(28,886) |
|
|
30,390 |
|
|
|
|
|
|
|
|
|
|
|
|
Reclassification adjustment for amortization of net (gain) loss included in net income (loss) |
|
1,563 |
|
|
1,806 |
|
|
5,649 |
|
|
4,532 |
Total benefit plan net gain (loss) for the period |
|
1,563 |
|
|
1,806 |
|
|
5,649 |
|
|
4,532 |
Total other comprehensive income (loss), net of tax |
|
(153,445) |
|
|
114,461 |
|
|
(331,166) |
|
|
383,446 |
|
|
|
|
|
|
|
|
|
|
|
|
COMPREHENSIVE INCOME (LOSS) |
$ |
(226,913) |
|
$ |
357,518 |
|
$ |
617,210 |
|
$ |
833,995 |
|
|
|
|
|
|
|
|
|
|
|
|
EARNINGS PER COMMON SHARE: |
|
|
|
|
|
|
|
|
|
|
|
Basic |
$ |
(1.88) |
|
$ |
6.08 |
|
$ |
23.74 |
|
$ |
11.20 |
Diluted |
|
(1.88) |
|
|
6.07 |
|
|
23.72 |
|
|
11.18 |
|
|
|
|
|
|
|
|
|
|
|
|
The accompanying notes are an integral part of the consolidated financial statements. |
2
EVEREST RE GROUP, LTD.
CONSOLIDATED STATEMENTS OF
CHANGES IN SHAREHOLDERS’ EQUITY
3
EVEREST RE GROUP, LTD.
CONSOLIDATED STATEMENTS OF CASH FLOWS
|
Nine Months Ended |
||||
|
September 30, |
||||
(Dollars in thousands) |
2021 |
|
2020 |
||
|
(unaudited) |
||||
CASH FLOWS FROM OPERATING ACTIVITIES: |
|
|
|
|
|
Net income (loss) |
$ |
948,376 |
|
$ |
450,549 |
Adjustments to reconcile net income to net cash provided by operating activities: |
|
|
|
|
|
Decrease (increase) in premiums receivable |
|
(736,614) |
|
|
(357,162) |
Decrease (increase) in funds held by reinsureds, net |
|
(92,512) |
|
|
(53,878) |
Decrease (increase) in reinsurance recoverables |
|
(230,593) |
|
|
(172,454) |
Decrease (increase) in income taxes |
|
57,270 |
|
|
184,311 |
Decrease (increase) in prepaid reinsurance premiums |
|
(146,639) |
|
|
(7,963) |
Increase (decrease) in reserve for losses and loss adjustment expenses |
|
2,576,049 |
|
|
1,665,982 |
Increase (decrease) in future policy benefit reserve |
|
(1,189) |
|
|
(2,218) |
Increase (decrease) in unearned premiums |
|
927,524 |
|
|
392,904 |
Increase (decrease) in other net payable to reinsurers |
|
198,954 |
|
|
68,784 |
Increase (decrease) in losses in course of payment |
|
23,661 |
|
|
132,208 |
Change in equity adjustments in limited partnerships |
|
(543,401) |
|
|
(12,475) |
Distribution of limited partnership income |
|
105,571 |
|
|
55,576 |
Change in other assets and liabilities, net |
|
(247,615) |
|
|
(131,224) |
Non-cash compensation expense |
|
33,199 |
|
|
29,337 |
Amortization of bond premium (accrual of bond discount) |
|
57,289 |
|
|
32,594 |
Net realized capital (gains) losses |
|
(138,789) |
|
|
(84,263) |
Net cash provided by (used in) operating activities |
|
2,790,541 |
|
|
2,190,608 |
|
|
|
|
|
|
CASH FLOWS FROM INVESTING ACTIVITIES: |
|
|
|
|
|
Proceeds from fixed maturities matured/called - available for sale, at market value |
|
2,756,963 |
|
|
1,781,821 |
Proceeds from fixed maturities sold - available for sale, at market value |
|
883,149 |
|
|
1,390,747 |
Proceeds from fixed maturities sold - available for sale, at fair value |
|
- |
|
|
2,054 |
Proceeds from equity securities sold, at fair value |
|
578,894 |
|
|
329,750 |
Distributions from other invested assets |
|
216,573 |
|
|
210,527 |
Cost of fixed maturities acquired - available for sale, at market value |
|
(5,670,636) |
|
|
(3,874,890) |
Cost of equity securities acquired, at fair value |
|
(507,862) |
|
|
(460,953) |
Cost of other invested assets acquired |
|
(604,180) |
|
|
(392,650) |
Net change in short-term investments |
|
422,643 |
|
|
(804,744) |
Net change in unsettled securities transactions |
|
(177,259) |
|
|
89,064 |
Net cash provided by (used in) investing activities |
|
(2,101,715) |
|
|
(1,729,274) |
|
|
|
|
|
|
CASH FLOWS FROM FINANCING ACTIVITIES: |
|
|
|
|
|
Common shares issued during the period for share-based compensation, net of expense |
|
(12,156) |
|
|
(13,617) |
Purchase of treasury shares |
|
(200,064) |
|
|
(200,020) |
Dividends paid to shareholders |
|
(185,731) |
|
|
(187,110) |
Cost of debt repurchase |
|
- |
|
|
(10,647) |
FHLB borrowings (repayments) |
|
- |
|
|
90,000 |
Cost of shares withheld on settlements of share-based compensation awards |
|
(15,133) |
|
|
(15,298) |
Net cash provided by (used in) financing activities |
|
(413,084) |
|
|
(336,691) |
|
|
|
|
|
|
EFFECT OF EXCHANGE RATE CHANGES ON CASH |
|
(8,952) |
|
|
6,203 |
|
|
|
|
|
|
Net increase (decrease) in cash |
|
266,790 |
|
|
130,845 |
Cash, beginning of period |
|
801,651 |
|
|
808,036 |
Cash, end of period |
$ |
1,068,441 |
|
$ |
938,881 |
|
|
|
|
|
|
SUPPLEMENTAL CASH FLOW INFORMATION: |
|
|
|
|
|
Income taxes paid (recovered) |
$ |
39,767 |
|
$ |
(169,149) |
Interest paid |
|
33,422 |
|
|
16,731 |
|
|
|
|
|
|
The accompanying notes are an integral part of the consolidated financial statements. |
|
|
|
|
|
4
NOTES TO CONSOLIDATED INTERIM FINANCIAL STATEMENTS (UNAUDITED)
For the Three and Nine Months Ended September 30, 2021 and 2020
1. GENERAL
Everest Re Group, Ltd. (“Group”), a Bermuda company, through its subsidiaries, principally provides reinsurance and insurance in the U.S., Bermuda and international markets. As used in this document, “Company” means Group and its subsidiaries.
2. BASIS OF PRESENTATION
The unaudited consolidated financial statements of the Company as of September 30, 2021 and December 31, 2020 and for the three and nine months ended September 30, 2021 and 2020 include all adjustments, consisting of normal recurring accruals, which, in the opinion of management, are necessary for a fair statement of the results on an interim basis. Certain financial information, which is normally included in annual financial statements prepared in accordance with accounting principles generally accepted in the United States of America (“GAAP”), has been omitted since it is not required for interim reporting purposes. The December 31, 2020 consolidated balance sheet data was derived from audited financial statements but does not include all disclosures required by GAAP. The results for the three and nine months ended September 30, 2021 and 2020 are not necessarily indicative of the results for a full year. These financial statements should be read in conjunction with the audited consolidated financial statements and notes thereto for the years ended December 31, 2020, 2019 and 2018, included in the Company’s most recent Form 10-K filing.
The Company consolidates the results of operations and financial position of all voting interest entities ("VOE") in which the Company has a controlling financial interest and all variable interest entities ("VIE") in which the Company is considered to be the primary beneficiary. The consolidation assessment, including the determination as to whether an entity qualifies as a VIE or VOE, depends on the facts and circumstances surrounding each entity.
The preparation of financial statements in conformity with GAAP requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities (and disclosure of contingent assets and liabilities) at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. Ultimate actual results could differ, possibly materially, from those estimates. This is particularly true given the fluid and continuing nature of the COVID-19 Pandemic. This is an ongoing event and so is the Company’s evaluation and analysis. While the Company’s analysis considers all aspects of its operations, it does not take into account legal, regulatory or legislative intervention that could retroactively mandate or expand coverage provisions. Given the uncertainties in the current public health and economic environment, there could be an adverse impact on results for the Property & Casualty industry and the Company for the remainder of the year. The impact is dependent on the shape and length of the economic recovery.
All intercompany accounts and transactions have been eliminated.
Certain reclassifications and format changes have been made to prior years’ amounts to conform to the 2021 presentation.
Application of Recently Issued Accounting Standard Changes.
Reference Rate Reform - LIBOR. In March 2020, the Financial Accounting Standards Board (“FASB”) issued ASU 2020-04 (and subsequently issued ASU 2021-01 in January 2021), which outlines the issues surrounding the cessation of LIBOR as a reference rate for contractual debt agreements. The guidance also details the potential alternative expedients and sources available for use in determination of rates and terms for such debt agreements in order to apply appropriate accounting policy. The guidance is effective for annual reporting
5
periods beginning after December 15, 2021. The Company is currently evaluating the impact of the adoption of ASU 2020-04 and 2021-01 on its financial statements.
Accounting for Income Taxes. In December 2019, The FASB issued ASU 2019-12, which provides simplification of existing guidance for income taxes, including the removal of certain exceptions related to recognition of deferred tax liabilities on foreign subsidiaries. The guidance is effective for annual reporting periods beginning after December 15, 2020 and interim periods within that annual reporting period. The Company adopted the guidance as of January 1, 2021. The adoption of ASU 2019-12 did not have a material impact on the Company’s financial statements.
Accounting for Long Duration Contracts. In August 2018, FASB issued ASU 2018-12, which discusses changes to the recognition, measurement and presentation of long duration contracts. The main provisions of this guidance address the following: 1) In determining liability for future policy benefits, companies must review cash flow assumptions at least annually and the discount rate assumption at each reporting period date 2) Amortization of deferred acquisition costs has been simplified to be in constant level proportion to either premiums, gross profits or gross margins 3) Disaggregated roll forwards of beginning and ending liabilities for future policy benefits are required. The guidance was originally effective for annual reporting periods beginning after December 15, 2020 and interim periods within that annual reporting period. However, FASB issued ASU 2019-09 in November 2019 and then ASU 2020-11 in November 2021, which ultimately defers the effective date of ASU 2018-12 until annual reporting periods beginning after December 15, 2022. The Company is currently evaluating the impact of the adoption of ASU 2018-12 on its financial statements.
Any issued guidance and pronouncements, other than those directly referenced above, are deemed by the Company to be either not applicable or immaterial to its financial statements.
3. INVESTMENTS
The following tables show amortized cost, allowance for credit losses, gross unrealized appreciation, gross unrealized depreciation and market value of available for sale, fixed maturity securities as of the dates indicated:
|
|
At September 30, 2021 |
|||||||||||||
|
|
Amortized |
|
Allowance for |
|
Unrealized |
|
Unrealized |
|
Market |
|||||
(Dollars in thousands) |
Cost |
|
Credit Losses |
|
Appreciation |
|
Depreciation |
|
Value |
||||||
Fixed maturity securities |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
U.S. Treasury securities and obligations of |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
U.S. government agencies and corporations |
$ |
1,344,813 |
|
$ |
- |
|
$ |
28,332 |
|
$ |
(10,323) |
|
$ |
1,362,822 |
|
Obligations of U.S. states and political subdivisions |
|
578,289 |
|
|
(151) |
|
|
31,295 |
|
|
(1,058) |
|
|
608,375 |
|
Corporate securities |
|
7,315,144 |
|
|
(22,890) |
|
|
254,723 |
|
|
(52,736) |
|
|
7,494,241 |
|
Asset-backed securities |
|
3,284,025 |
|
|
(7,679) |
|
|
32,405 |
|
|
(3,499) |
|
|
3,305,252 |
|
Mortgage-backed securities |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Commercial |
|
1,042,504 |
|
|
- |
|
|
49,729 |
|
|
(4,363) |
|
|
1,087,870 |
|
Agency residential |
|
2,208,540 |
|
|
- |
|
|
45,876 |
|
|
(8,415) |
|
|
2,246,001 |
|
Non-agency residential |
|
7,316 |
|
|
- |
|
|
11 |
|
|
(21) |
|
|
7,306 |
|
Foreign government securities |
|
1,428,105 |
|
|
- |
|
|
54,778 |
|
|
(27,738) |
|
|
1,455,145 |
|
Foreign corporate securities |
|
3,974,020 |
|
|
(1,260) |
|
|
129,296 |
|
|
(45,949) |
|
|
4,056,107 |
Total fixed maturity securities |
$ |
21,182,756 |
|
$ |
(31,980) |
|
$ |
626,445 |
|
$ |
(154,102) |
|
$ |
21,623,119 |
6
|
|
At December 31, 2020 |
|||||||||||||
|
|
Amortized |
|
Allowance for |
|
Unrealized |
|
Unrealized |
|
Market |
|||||
(Dollars in thousands) |
Cost |
|
Credit Losses |
|
Appreciation |
|
Depreciation |
|
Value |
||||||
Fixed maturity securities |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
U.S. Treasury securities and obligations of |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
U.S. government agencies and corporations |
$ |
1,325,156 |
|
$ |
- |
|
$ |
49,084 |
|
$ |
(7,134) |
|
$ |
1,367,106 |
|
Obligations of U.S. states and political subdivisions |
|
543,895 |
|
|
- |
|
|
34,654 |
|
|
(1,254) |
|
|
577,295 |
|
Corporate securities |
|
6,824,800 |
|
|
(1,220) |
|
|
380,677 |
|
|
(55,231) |
|
|
7,149,026 |
|
Asset-backed securities |
|
2,540,809 |
|
|
- |
|
|
30,691 |
|
|
(5,698) |
|
|
2,565,802 |
|
Mortgage-backed securities |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Commercial |
|
915,923 |
|
|
- |
|
|
75,275 |
|
|
(895) |
|
|
990,303 |
|
Agency residential |
|
2,206,139 |
|
|
- |
|
|
64,663 |
|
|
(3,063) |
|
|
2,267,739 |
|
Non-agency residential |
|
5,187 |
|
|
- |
|
|
9 |
|
|
(2) |
|
|
5,194 |
|
Foreign government securities |
|
1,565,260 |
|
|
(22) |
|
|
102,587 |
|
|
(22,450) |
|
|
1,645,375 |
|
Foreign corporate securities |
|
3,297,898 |
|
|
(503) |
|
|
204,023 |
|
|
(29,085) |
|
|
3,472,333 |
Total fixed maturity securities |
$ |
19,225,067 |
|
$ |
(1,745) |
|
$ |
941,663 |
|
$ |
(124,812) |
|
$ |
20,040,173 |
The amortized cost and market value of fixed maturity securities are shown in the following table by contractual maturity. Mortgage-backed securities are generally more likely to be prepaid than other fixed maturity securities. As the stated maturity of such securities may not be indicative of actual maturities, the totals for mortgage-backed and asset-backed securities are shown separately.
|
At September 30, 2021 |
|
At December 31, 2020 |
||||||||
|
Amortized |
|
Market |
|
Amortized |
|
Market |
||||
(Dollars in thousands) |
Cost |
|
Value |
|
Cost |
|
Value |
||||
Fixed maturity securities – available for sale: |
|
|
|
|
|
|
|
|
|
|
|
Due in one year or less |
$ |
1,621,263 |
|
$ |
1,621,541 |
|
$ |
1,365,793 |
|
$ |
1,374,674 |
Due after one year through five years |
|
6,675,763 |
|
|
6,826,936 |
|
|
6,529,189 |
|
|
6,774,785 |
Due after five years through ten years |
|
4,918,975 |
|
|
5,069,884 |
|
|
4,414,211 |
|
|
4,751,903 |
Due after ten years |
|
1,424,370 |
|
|
1,458,329 |
|
|
1,247,816 |
|
|
1,309,773 |
Asset-backed securities |
|
3,284,025 |
|
|
3,305,252 |
|
|
2,540,809 |
|
|
2,565,802 |
Mortgage-backed securities: |
|
|
|
|
|
|
|
|
|
|
|
Commercial |
|
1,042,504 |
|
|
1,087,870 |
|
|
915,923 |
|
|
990,303 |
Agency residential |
|
2,208,540 |
|
|
2,246,001 |
|
|
2,206,139 |
|
|
2,267,739 |
Non-agency residential |
|
7,316 |
|
|
7,306 |
|
|
5,187 |
|
|
5,194 |
Total fixed maturity securities |
$ |
21,182,756 |
|
$ |
21,623,119 |
|
$ |
19,225,067 |
|
$ |
20,040,173 |
The changes in net unrealized appreciation (depreciation) for the Company’s investments are derived from the following sources for the periods indicated:
|
Three Months Ended |
|
Nine Months Ended |
||||||||
|
September 30, |
|
September 30, |
||||||||
(Dollars in thousands) |
2021 |
|
2020 |
|
2021 |
|
2020 |
||||
Increase (decrease) during the period between the market value and cost |
|
|
|
|
|
|
|
|
|
|
|
of investments carried at market value, and deferred taxes thereon: |
|
|
|
|
|
|
|
|
|
|
|
Fixed maturity securities and short-term investments |
$ |
(108,789) |
|
$ |
55,587 |
|
$ |
(344,370) |
|
$ |
392,640 |
Change in unrealized appreciation (depreciation), pre-tax |
|
(108,789) |
|
|
55,587 |
|
|
(344,370) |
|
|
392,640 |
Deferred tax benefit (expense) |
|
7,380 |
|
|
(3,560) |
|
|
36,441 |
|
|
(44,116) |
Change in unrealized appreciation (depreciation), |
|
|
|
|
|
|
|
|
|
|
|
net of deferred taxes, included in shareholders’ equity |
$ |
(101,409) |
|
$ |
52,027 |
|
$ |
(307,929) |
|
$ |
348,524 |
The Company reviews all of its fixed maturity, available for sale securities whose fair value has fallen below their amortized cost at the time of review. The Company then assesses whether the decline in value is due to non-credit related or credit related factors. In making its assessment, the Company evaluates the current market and interest rate environment as well as specific issuer information. Generally, a change in a security’s value caused by a change in the market, interest rate or foreign exchange environment does not constitute a credit impairment, but rather a non-credit related decline in market value. Non-credit related declines in market value are recorded as unrealized losses in accumulated other comprehensive income (loss). If the Company intends to
7
sell the security or is more likely than not to sell the security, the Company records the entire fair value adjustment in net realized capital gains (losses) in the Company’s consolidated statements of operations and comprehensive income (loss). If the Company determines that the decline is credit related and the Company does not have the intent to sell the security; and it is more likely than not that the Company will not have to sell the security before recovery of its cost basis, the Company establishes a credit allowance equal to the estimated credit loss and is recorded in net realized capital gains (losses) in the Company’s consolidated statements of operations and comprehensive income (loss). The amount of the allowance for a given security will generally be the difference between a discounted cash flow model and the Company’s carrying value. The fair value adjustment that is non-credit related is recorded as a component of other comprehensive income (loss), net of tax, and is included in accumulated other comprehensive income (loss) in the Company’s consolidated balance sheets. The Company will adjust the credit allowance account for future changes in credit loss estimates for a security and record this adjustment through net realized capital gains (losses) in the Company’s consolidated statements of operations and comprehensive income (loss).
The Company does not create an allowance for uncollectible interest. If interest is not received when due, the interest receivable is immediately reversed and no additional interest is accrued. If future interest is received that has not been accrued, it is recorded as income at that time.
The Company’s assessments are based on the issuers’ current and expected future financial position, timeliness with respect to interest and/or principal payments, speed of repayments and any applicable credit enhancements or breakeven constant default rates on mortgage-backed and asset-backed securities, as well as relevant information provided by rating agencies, investment advisors and analysts.
Retrospective adjustments are employed to recalculate the values of asset-backed securities. All of the Company’s asset-backed and mortgage-backed securities have a pass-through structure. Each acquisition lot is reviewed to recalculate the effective yield. The recalculated effective yield is used to derive a book value as if the new yield were applied at the time of acquisition. Outstanding principal factors from the time of acquisition to the adjustment date are used to calculate the prepayment history for all applicable securities. Conditional prepayment rates, computed with life to date factor histories and weighted average maturities, are used in the calculation of projected prepayments for pass-through security types.
The tables below display the aggregate market value and gross unrealized depreciation of fixed maturity securities, by security type and contractual maturity, in each case subdivided according to length of time that individual securities had been in a continuous unrealized loss position for the periods indicated:
|
|
Duration of Unrealized Loss at September 30, 2021 By Security Type |
|||||||||||||||
|
Less than 12 months |
|
Greater than 12 months |
|
Total |
||||||||||||
|
|
|
|
Gross |
|
|
|
|
Gross |
|
|
|
|
Gross |
|||
|
|
|
|
Unrealized |
|
|
|
|
Unrealized |
|
|
|
|
Unrealized |
|||
(Dollars in thousands) |
Market Value |
|
Depreciation |
|
Market Value |
|
Depreciation |
|
Market Value |
|
Depreciation |
||||||
Fixed maturity securities - available for sale |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
U.S. Treasury securities and obligations of |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
U.S. government agencies and corporations |
$ |
381,357 |
|
$ |
(6,369) |
|
$ |
57,084 |
|
$ |
(3,954) |
|
$ |
438,441 |
|
$ |
(10,323) |
Obligations of U.S. states and political subdivisions |
|
61,687 |
|
|
(937) |
|
|
3,569 |
|
|
(121) |
|
|
65,256 |
|
|
(1,058) |
Corporate securities |
|
1,559,623 |
|
|
(32,541) |
|
|
399,617 |
|
|
(20,195) |
|
|
1,959,240 |
|
|
(52,736) |
Asset-backed securities |
|
610,425 |
|
|
(3,131) |
|
|
23,396 |
|
|
(368) |
|
|
633,821 |
|
|
(3,499) |
Mortgage-backed securities |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Commercial |
|
108,367 |
|
|
(3,138) |
|
|
26,144 |
|
|
(1,225) |
|
|
134,511 |
|
|
(4,363) |
Agency residential |
|
814,318 |
|
|
(5,631) |
|
|
134,746 |
|
|
(2,784) |
|
|
949,064 |
|
|
(8,415) |
Non-agency residential |
|
2,742 |
|
|
(19) |
|
|
156 |
|
|
(2) |
|
|
2,898 |
|
|
(21) |
Foreign government securities |
|
382,570 |
|
|
(22,491) |
|
|
58,238 |
|
|
(5,247) |
|
|
440,808 |
|
|
(27,738) |
Foreign corporate securities |
|
1,221,503 |
|
|
(34,080) |
|
|
183,579 |
|
|
(11,869) |
|
|
1,405,082 |
|
|
(45,949) |
Total fixed maturity securities |
$ |
5,142,592 |
|
$ |
(108,337) |
|
$ |
886,529 |
|
$ |
(45,765) |
|
$ |
6,029,121 |
|
$ |
(154,102) |
8
|
|
Duration of Unrealized Loss at September 30, 2021 By Maturity |
|||||||||||||||
|
Less than 12 months |
|
Greater than 12 months |
|
Total |
||||||||||||
|
|
|
|
Gross |
|
|
|
|
Gross |
|
|
|
|
Gross |
|||
|
|
|
|
Unrealized |
|
|
|
|
Unrealized |
|
|
|
|
Unrealized |
|||
(Dollars in thousands) |
Market Value |
|
Depreciation |
|
Market Value |
|
Depreciation |
|
Market Value |
|
Depreciation |
||||||
Fixed maturity securities |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Due in one year or less |
$ |
178,193 |
|
$ |
(6,982) |
|
$ |
150,934 |
|
$ |
(11,210) |
|
$ |
329,127 |
|
$ |
(18,192) |
Due in one year through five years |
|
1,494,463 |
|
|
(33,475) |
|
|
381,773 |
|
|
(17,997) |
|
|
1,876,236 |
|
|
(51,472) |
Due in five years through ten years |
|
1,466,402 |
|
|
(45,526) |
|
|
123,239 |
|
|
(9,696) |
|
|
1,589,641 |
|
|
(55,222) |
Due after ten years |
|
467,682 |
|
|
(10,435) |
|
|
46,141 |
|
|
(2,483) |
|
|
513,823 |
|
|
(12,918) |
Asset-backed securities |
|
610,425 |
|
|
(3,131) |
|
|
23,396 |
|
|
(368) |
|
|
633,821 |
|
|
(3,499) |
Mortgage-backed securities |
|
925,427 |
|
|
(8,788) |
|
|
161,046 |
|
|
(4,011) |
|
|
1,086,473 |
|
|
(12,799) |
Total fixed maturity securities |
$ |
5,142,592 |
|
$ |
(108,337) |
|
$ |
886,529 |
|
$ |
(45,765) |
|
$ |
6,029,121 |
|
$ |
(154,102) |
The aggregate market value and gross unrealized losses related to investments in an unrealized loss position at September 30, 2021 were $6,029.1 million and $154.1 million, respectively. The market value of securities for the single issuer (the United States government) whose securities comprised the largest unrealized loss position at September 30, 2021, did not exceed 1.7% of the overall market value of the Company’s fixed maturity securities. The market value of the securities for the issuer with the second largest unrealized loss position at September 30, 2021, comprised less than 0.6% of the Company’s fixed maturity securities. In addition, as indicated on the above table, there was no significant concentration of unrealized losses in any one market sector. The $108.3 million of unrealized losses related to fixed maturity securities that have been in an unrealized loss position for less than one year were generally comprised of domestic and foreign corporate securities, foreign government securities, U.S. Treasury and government securities and agency residential mortgage-backed securities. Of these unrealized losses, $101.6 million were related to securities that were rated investment grade by at least one nationally recognized rating agency. The $45.8 million of unrealized losses related to fixed maturity securities in an unrealized loss position for more than one year related primarily to foreign and domestic corporate securities and foreign government securities. Of these unrealized losses, $43.4 million were related to securities that were rated investment grade by at least one nationally recognized rating agency. There was no gross unrealized depreciation for mortgage-backed securities related to sub-prime and alt-A loans. In all instances, there were no projected cash flow shortfalls to recover the full book value of the investments and the related interest obligations. The mortgage-backed securities still have excess credit coverage and are current on interest and principal payments.
The Company, given the size of its investment portfolio and capital position, does not have the intent to sell these securities; and it is more likely than not that the Company will not have to sell the security before recovery of its cost basis. In addition, all securities currently in an unrealized loss position are current with respect to principal and interest payments.
|
|
Duration of Unrealized Loss at December 31, 2020 By Security Type |
|||||||||||||||
|
Less than 12 months |
|
Greater than 12 months |
|
Total |
||||||||||||
|
|
|
|
Gross |
|
|
|
|
Gross |
|
|
|
|
Gross |
|||
|
|
|
|
Unrealized |
|
|
|
|
Unrealized |
|
|
|
|
Unrealized |
|||
(Dollars in thousands) |
Market Value |
|
Depreciation |
|
Market Value |
|
Depreciation |
|
Market Value |
|
Depreciation |
||||||
Fixed maturity securities - available for sale |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
U.S. Treasury securities and obligations of |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
U.S. government agencies and corporations |
$ |
135,190 |
|
$ |
(7,134) |
|
$ |
- |
|
$ |
- |
|
$ |
135,190 |
|
$ |
(7,134) |
Obligations of U.S. states and political subdivisions |
|
19,524 |
|
|
(999) |
|
|
4,059 |
|
|
(255) |
|
|
23,583 |
|
|
(1,254) |
Corporate securities |
|
669,755 |
|
|
(26,159) |
|
|
247,962 |
|
|
(29,072) |
|
|
917,717 |
|
|
(55,231) |
Asset-backed securities |
|
235,566 |
|
|
(4,768) |
|
|
85,595 |
|
|
(930) |
|
|
321,161 |
|
|
(5,698) |
Mortgage-backed securities |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Commercial |
|
53,511 |
|
|
(578) |
|
|
6,592 |
|
|
(317) |
|
|
60,103 |
|
|
(895) |
Agency residential |
|
434,447 |
|
|
(2,016) |
|
|
50,353 |
|
|
(1,047) |
|
|
484,800 |
|
|
(3,063) |
Non-agency residential |
|
185 |
|
|
(2) |
|
|
- |
|
|
- |
|
|
185 |
|
|
(2) |
Foreign government securities |
|
114,755 |
|
|
(8,813) |
|
|
150,812 |
|
|
(13,637) |
|
|
265,567 |
|
|
(22,450) |
Foreign corporate securities |
|
354,548 |
|
|
(17,489) |
|
|
115,595 |
|
|
(11,596) |
|
|
470,143 |
|
|
(29,085) |
Total fixed maturity securities |
$ |
2,017,481 |
|
$ |
(67,958) |
|
$ |
660,968 |
|
$ |
(56,854) |
|
$ |
2,678,449 |
|
$ |
(124,812) |
9
|
|
Duration of Unrealized Loss at December 31, 2020 By Maturity |
|||||||||||||||
|
Less than 12 months |
|
Greater than 12 months |
|
Total |
||||||||||||
|
|
|
|
Gross |
|
|
|
|
Gross |
|
|
|
|
Gross |
|||
|
|
|
|
Unrealized |
|
|
|
|
Unrealized |
|
|
|
|
Unrealized |
|||
(Dollars in thousands) |
Market Value |
|
Depreciation |
|
Market Value |
|
Depreciation |
|
Market Value |
|
Depreciation |
||||||
Fixed maturity securities |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Due in one year or less |
$ |
96,144 |
|
$ |
(4,942) |
|
$ |
112,419 |
|
$ |
(12,071) |
|
$ |
208,563 |
|
$ |
(17,013) |
Due in one year through five years |
|
653,816 |
|
|
(32,469) |
|
|
283,866 |
|
|
(21,319) |
|
|
937,682 |
|
|
(53,788) |
Due in five years through ten years |
|
422,517 |
|
|
(19,392) |
|
|
49,749 |
|
|
(2,034) |
|
|
472,266 |
|
|
(21,426) |
Due after ten years |
|
121,295 |
|
|
(3,791) |
|
|
72,394 |
|
|
(19,136) |
|
|
193,689 |
|
|
(22,927) |
Asset-backed securities |
|
235,566 |
|
|
(4,768) |
|
|
85,595 |
|
|
(930) |
|
|
321,161 |
|
|
(5,698) |
Mortgage-backed securities |
|
488,143 |
|
|
(2,596) |
|
|
56,945 |
|
|
(1,364) |
|
|
545,088 |
|
|
(3,960) |
Total fixed maturity securities |
$ |
2,017,481 |
|
$ |
(67,958) |
|
$ |
660,968 |
|
$ |
(56,854) |
|
$ |
2,678,449 |
|
$ |
(124,812) |
The aggregate market value and gross unrealized losses related to investments in an unrealized loss position at December 31, 2020 were $2,678.4 million and $124.8 million, respectively. The market value of securities for the single issuer whose securities comprised the largest unrealized loss position at December 31, 2020, did not exceed 0.7% of the overall market value of the Company’s fixed maturity securities. The market value of the securities for the issuer with the second largest unrealized loss comprised less than 0.1% of the Company’s fixed maturity securities. In addition, as indicated on the above table, there was no significant concentration of unrealized losses in any one market sector. The $68.0 million of unrealized losses related to fixed maturity securities that have been in an unrealized loss position for less than one year were generally comprised of domestic and foreign corporate securities and foreign government securities. Of these unrealized losses, $63.4 million were related to securities that were rated investment grade by at least one nationally recognized rating agency. The $56.9 million of unrealized losses related to fixed maturity securities in an unrealized loss position for more than one year related primarily to domestic and foreign corporate securities, foreign government securities and agency residential mortgage-backed securities. Of these unrealized losses, $33.5 million were related to securities that were rated investment grade by at least one nationally recognized rating agency. There was no gross unrealized depreciation for mortgage-backed securities related to sub-prime and alt-A loans. In all instances, there were no projected cash flow shortfalls to recover the full book value of the investments and the related interest obligations. The mortgage-backed securities still have excess credit coverage and are current on interest and principal payments.
The components of net investment income are presented in the table below for the periods indicated:
|
Three Months Ended |
|
Nine Months Ended |
||||||||
|
September 30, |
|
September 30, |
||||||||
(Dollars in thousands) |
2021 |
|
2020 |
|
2021 |
|
2020 |
||||
Fixed maturities |
$ |
134,157 |
|
$ |
136,104 |
|
$ |
423,335 |
|
$ |
407,946 |
Equity securities |
|
3,774 |
|
|
4,402 |
|
|
12,105 |
|
|
11,585 |
Short-term investments and cash |
|
82 |
|
|
494 |
|
|
1,035 |
|
|
4,356 |
Other invested assets: |
|
|
|
|
|
|
|
|
|
|
|
Limited partnerships |
|
138,718 |
|
|
88,778 |
|
|
493,017 |
|
|
22,092 |
Other |
|
30,954 |
|
|
14,742 |
|
|
62,828 |
|
|
(1,291) |
Gross investment income before adjustments |
|
307,685 |
|
|
244,520 |
|
|
992,320 |
|
|
444,688 |
Funds held interest income (expense) |
|
1,196 |
|
|
684 |
|
|
12,449 |
|
|
10,921 |
Future policy benefit reserve income (expense) |
|
(272) |
|
|
(291) |
|
|
(733) |
|
|
(805) |
Gross investment income |
|
308,609 |
|
|
244,913 |
|
|
1,004,036 |
|
|
454,804 |
Investment expenses |
|
(15,850) |
|
|
(10,680) |
|
|
(43,769) |
|
|
(34,688) |
Net investment income |
$ |
292,759 |
|
$ |
234,233 |
|
$ |
960,267 |
|
$ |
420,116 |
The Company records results from limited partnership investments on the equity method of accounting with changes in value reported through net investment income. The net investment income from limited partnerships is dependent upon the Company’s share of the net asset values of interests underlying each limited partnership. Due to the timing of receiving financial information from these partnerships, the results are generally reported on a one month or quarter lag. If the Company determines there has been a significant
10
decline in value of a limited partnership during this lag period, a loss will be recorded in the period in which the Company identifies the decline.
The Company had contractual commitments to invest up to an additional $2,648.1 million in limited partnerships and private placement loan securities at September 30, 2021. These commitments will be funded when called in accordance with the partnership and loan agreements, which have investment periods that expire, unless extended, through 2026.
The Company participates in a private placement liquidity sweep facility (“the facility”). The primary purpose of the facility is to enhance the Company’s return on its short-term investments and cash positions. The facility invests in high quality, short-duration securities and permits daily liquidity. The Company consolidates its participation in the facility. As of September 30, 2021, the market value of investments in the facility consolidated within the Company’s balance sheets was $429.7 million.
The components of net realized capital gains (losses) are presented in the tables below for the periods indicated:
|
Three Months Ended |
|
Nine Months Ended |
||||||||
|
September 30, |
|
September 30, |
||||||||
(Dollars in thousands) |
2021 |
|
|
2020 |
|
2021 |
|
|
2020 |
||
Fixed maturity securities, market value: |
|
|
|
|
|
|
|
|
|
|
|
Allowance for credit losses |
$ |
(7,329) |
|
$ |
6,196 |
|
$ |
(30,234) |
|
$ |
(19,641) |
Gains (losses) from sales |
|
6,219 |
|
|
5,398 |
|
|
25,453 |
|
|
941 |
Fixed maturity securities, fair value: |
|
|
|
|
|
|
|
|
|
|
|
Gains (losses) from sales |
|
- |
|
|
(1,968) |
|
|
- |
|
|
(1,968) |
Gains (losses) from fair value adjustments |
|
- |
|
|
3,339 |
|
|
- |
|
|
1,944 |
Equity securities, fair value: |
|
|
|
|
|
|
|
|
|
|
|
Gains (losses) from sales |
|
(489) |
|
|
(1,317) |
|
|
9,504 |
|
|
(12,642) |
Gains (losses) from fair value adjustments |
|
(4,542) |
|
|
96,673 |
|
|
128,039 |
|
|
114,364 |
Other invested assets |
|
1,920 |
|
|
1,084 |
|
|
6,014 |
|
|
50 |
Short-term investments gain (loss) |
|
- |
|
|
798 |
|
|
13 |
|
|
1,215 |
Total net realized capital gains (losses) |
$ |
(4,222) |
|
$ |
110,203 |
|
$ |
138,789 |
|
$ |
84,263 |
|
|
|
|
|
|
|
|
|
|
|
|
(Some amounts may not reconcile due to rounding.) |
|
|
|
|
|
|
|
|
|
|
|
|
|
Roll Forward of Allowance for Credit Losses |
||||||||||||||||||||||||||||||||||
|
|
Three Months Ended September 30, 2021 |
|
Nine Months Ended September 30, 2021 |
||||||||||||||||||||||||||||||||
|
|
|
|
|
|
Obligations of |
|
|
|
|
|
|
|
|
|
|
|
Obligations of |
|
|
|
|
|
|
||||||||||||
|
|
|
|
|
|
U.S. States |
|
Foreign |
|
Foreign |
|
|
|
|
|
|
|
U.S. States |
|
Foreign |
|
Foreign |
|
|
||||||||||||
|
|
Corporate |
|
Asset-Backed |
|
and Political |
|
Government |
|
Corporate |
|
|
|
Corporate |
|
Asset-Backed |
|
and Political |
|
Government |
|
Corporate |
|
|
||||||||||||
|
|
Securities |
|
Securities |
|
Subdivisions |
|
Securities |
|
Securities |
|
Total |
|
Securities |
|
Securities |
|
Subdivisions |
|
Securities |
|
Securities |
|
Total |
||||||||||||
(Dollars in thousands) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Beginning Balance |
|
$ |
(18,475) |
|
$ |
(4,915) |
|
$ |
- |
|
$ |
- |
|
$ |
(1,260) |
|
$ |
(24,650) |
|
$ |
(1,220) |
|
$ |
- |
|
$ |
- |
|
$ |
(22) |
|
$ |
(503) |
|
$ |
(1,745) |
Credit losses on securities where credit |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
losses were not previously recorded |
|
|
(5,257) |
|
|
|
|
|
(151) |
|
|
- |
|
|
- |
|
|
(5,408) |
|
|
(21,177) |
|
|
(4,915) |
|
|
(151) |
|
|
- |
|
|
(1,055) |
|
|
(27,298) |
Increases in allowance on previously |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
impaired securities |
|
|
(620) |
|
|
(2,764) |
|
|
- |
|
|
- |
|
|
- |
|
|
(3,384) |
|
|
(2,088) |
|
|
(2,764) |
|
|
- |
|
|
- |
|
|
- |
|
|
(4,852) |
Decreases in allowance on previously |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
impaired securities |
|
|
- |
|
|
- |
|
|
- |
|
|
- |
|
|
- |
|
|
- |
|
|
- |
|
|
- |
|
|
- |
|
|
- |
|
|
- |
|
|
- |
Reduction in allowance due to disposals |
|
|
1,462 |
|
|
- |
|
|
- |
|
|
- |
|
|
- |
|
|
1,462 |
|
|
1,595 |
|
|
- |
|
|
- |
|
|
22 |
|
|
298 |
|
|
1,915 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance as of September 30, 2021 |
|
$ |
(22,890) |
|
$ |
(7,679) |
|
$ |
(151) |
|
$ |
- |
|
$ |
(1,260) |
|
$ |
(31,980) |
|
$ |
(22,890) |
|
$ |
(7,679) |
|
$ |
(151) |
|
$ |
- |
|
$ |
(1,260) |
|
$ |
(31,980) |
11
|
Roll Forward of Allowance for Credit Losses |
||||||||||||||||||||||
|
Three Months Ended September 30, 2020 |
|
Nine Months Ended September 30, 2020 |
||||||||||||||||||||
|
|
|
|
Foreign |
|
Foreign |
|
|
|
|
|
|
|
Foreign |
|
Foreign |
|
|
|
||||
|
Corporate |
|
Government |
|
Corporate |
|
|
|
|
Corporate |
|
Government |
|
Corporate |
|
|
|
||||||
|
Securities |
|
Securities |
|
Securities |
|
Total |
|
Securities |
|
Securities |
|
Securities |
|
Total |
||||||||
(Dollars in thousands) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Beginning Balance |
$ |
(22,253) |
|
$ |
(92) |
|
$ |
(3,492) |
|
$ |
(25,837) |
|
$ |
- |
|
$ |
- |
|
$ |
- |
|
$ |
- |
Credit losses on securities where credit |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
losses were not previously recorded |
|
(6) |
|
|
- |
|
|
(144) |
|
|
(150) |
|
|
(27,666) |
|
|
(519) |
|
|
(4,699) |
|
|
(32,884) |
Increases in allowance on previously |
|
|
|
|
|
|
|
|
|
|
- |
|
|
|
|
|
|
|
|
|
|
|
|
impaired securities |
|
(5,354) |
|
|
(27) |
|
|
(181) |
|
|
(5,562) |
|
|
(6,136) |
|
|
(27) |
|
|
(481) |
|
|
(6,644) |
Decreases in allowance on previously |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
impaired securities |
|
159 |
|
|
- |
|
|
151 |
|
|
310 |
|
|
3,590 |
|
|
212 |
|
|
844 |
|
|
4,646 |
Reduction in allowance due to disposals |
|
9,980 |
|
|
- |
|
|
1,618 |
|
|
11,598 |
|
|
12,738 |
|
|
215 |
|
|
2,288 |
|
|
15,241 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance as of September 30, 2020 |
$ |
(17,474) |
|
$ |
(119) |
|
$ |
(2,048) |
|
$ |
(19,641) |
|
$ |
(17,474) |
|
$ |
(119) |
|
$ |
(2,048) |
|
$ |
(19,641) |
The Company recorded as net realized capital gains (losses) in the consolidated statements of operations and comprehensive income (loss) fair value re-measurements, allowances for credit losses per ASU 2016-13 and write-downs in the value of securities deemed to be impaired on an other-than-temporary basis in prior years as displayed in the table above.
The proceeds and split between gross gains and losses, from sales of fixed maturity and equity securities, are presented in the table below for the periods indicated:
|
Three Months Ended |
|
Nine Months Ended |
||||||||
|
September 30, |
|
September 30, |
||||||||
(Dollars in thousands) |
2021 |
|
2020 |
|
2021 |
|
2020 |
||||
Proceeds from sales of fixed maturity securities |
$ |
283,412 |
|
$ |
402,528 |
|
$ |
883,149 |
|
$ |
1,392,801 |
Gross gains from sales |
|
17,004 |
|
|
18,721 |
|
|
51,738 |
|
|
54,077 |
Gross losses from sales |
|
(10,785) |
|
|
(15,291) |
|
|
(26,285) |
|
|
(55,104) |
|
|
|
|
|
|
|
|
|
|
|
|
Proceeds from sales of equity securities |
$ |
104,231 |
|
$ |
116,565 |
|
$ |
578,894 |
|
$ |
329,750 |
Gross gains from sales |
|
2,768 |
|
|
9,512 |
|
|
20,875 |
|
|
30,268 |
Gross losses from sales |
|
(3,257) |
|
|
(10,829) |
|
|
(11,371) |
|
|
(42,910) |
12
4. RESERVE FOR LOSSES, LAE AND FUTURE POLICY BENEFIT RESERVE
Activity in the reserve for losses and LAE is summarized for the periods indicated:
|
Nine Months Ended |
||||
|
September 30, |
||||
(Dollars in thousands) |
2021 |
|
2020 |
||
Gross reserves beginning of period |
$ |
16,398,997 |
|
$ |
13,611,313 |
Less reinsurance recoverables on unpaid losses |
|
(1,843,691) |
|
|
(1,640,712) |
Net reserves beginning of period |
|
14,555,306 |
|
|
11,970,601 |
|
|
|
|
|
|
Incurred related to: |
|
|
|
|
|
Current year |
|
5,577,911 |
|
|
4,572,640 |
Prior years |
|
(6,050) |
|
|
1,426 |
Total incurred losses and LAE |
|
5,571,861 |
|
|
4,574,066 |
|
|
|
|
|
|
Paid related to: |
|
|
|
|
|
Current year |
|
1,375,665 |
|
|
1,015,538 |
Prior years |
|
1,786,393 |
|
|
2,042,712 |
Total paid losses and LAE |
|
3,162,058 |
|
|
3,058,250 |
|
|
|
|
|
|
Foreign exchange/translation adjustment |
|
(41,000) |
|
|
(28,024) |
|
|
|
|
|
|
Net reserves end of period |
|
16,924,109 |
|
|
13,458,393 |
Plus reinsurance recoverables on unpaid losses |
|
2,032,844 |
|
|
1,774,732 |
Gross reserves end of period |
$ |
18,956,953 |
|
$ |
15,233,125 |
|
|
|
|
|
|
(Some amounts may not reconcile due to rounding.) |
Current year incurred losses were $5,577.9 million and $4,572.6 million for the nine months ended September 30, 2021 and 2020, respectively. Gross and net reserves increased for the nine months ended September 30, 2021, reflecting an increase in underlying exposure due to premium growth and catastrophe losses of $1,010.0 million and $355.0 million for the nine months ended September 30, 2021 and 2020, respectively. In addition, current year incurred losses for the nine months ended September 30, 2020 included $434.9 million of losses associated with the COVID-19 Pandemic which did not recur in 2021.
5. FAIR VALUE
GAAP guidance regarding fair value measurements address how companies should measure fair value when they are required to use fair value measures for recognition or disclosure purposes under GAAP and provides a common definition of fair value to be used throughout GAAP. It defines fair value as the price that would be received to sell an asset or paid to transfer a liability in an orderly fashion between market participants at the measurement date. In addition, it establishes a three-level valuation hierarchy for the disclosure of fair value measurements. The valuation hierarchy is based on the transparency of inputs to the valuation of an asset or liability. The level in the hierarchy within which a given fair value measurement falls is determined based on the lowest level input that is significant to the measurement, with Level 1 being the highest priority and Level 3 being the lowest priority.
13
The levels in the hierarchy are defined as follows:
Level 1:Inputs to the valuation methodology are observable inputs that reflect unadjusted quoted prices for identical assets or liabilities in an active market;
Level 2:Inputs to the valuation methodology include quoted prices for similar assets and liabilities in active markets, and inputs that are observable for the asset or liability, either directly or indirectly, for substantially the full term of the financial instrument;
Level 3:Inputs to the valuation methodology are unobservable and significant to the fair value measurement.
The Company’s fixed maturity and equity securities are primarily managed by third party investment asset managers. The investment asset managers managing publicly traded securities obtain prices from nationally recognized pricing services. These services seek to utilize market data and observations in their evaluation process. They use pricing applications that vary by asset class and incorporate available market information and when fixed maturity securities do not trade on a daily basis the services will apply available information through processes such as benchmark curves, benchmarking of like securities, sector groupings and matrix pricing. In addition, they use model processes, such as the Option Adjusted Spread model to develop prepayment and interest rate scenarios for securities that have prepayment features.
The investment asset managers do not make any changes to prices received from either the pricing services or the investment brokers. In addition, the investment asset managers have procedures in place to review the reasonableness of the prices from the service providers and may request verification of the prices. In addition, the Company continually performs analytical reviews of price changes and tests the prices on a random basis to an independent pricing source. No material variances were noted during these price validation procedures. In limited situations, where financial markets are inactive or illiquid, the Company may use its own assumptions about future cash flows and risk-adjusted discount rates to determine fair value. At September 30, 2021, $1,803.0 million of fixed maturities, market value were fair valued using unobservable inputs. The majority of these fixed maturities were valued by investment managers’ valuation committees and many of these fair values were substantiated by valuations from independent third parties. The Company has procedures in place to evaluate these independent third party valuations. At December 31, 2020, $1,330.2 million of fixed maturities, market value were fair valued using unobservable inputs.
The Company internally manages a public equity portfolio which had a fair value at September 30, 2021 and December 31, 2020 of $1,253.9 million and $784.7 million, respectively, and all prices were obtained from publicly published sources.
Equity securities denominated in U.S. currency with quoted prices in active markets for identical assets are categorized as Level 1 since the quoted prices are directly observable. Equity securities traded on foreign exchanges are categorized as Level 2 due to the added input of a foreign exchange conversion rate to determine fair or market value. The Company uses foreign currency exchange rates published by nationally recognized sources.
All categories of fixed maturity securities listed in the tables below are generally categorized as Level 2, since a particular security may not have traded but the pricing services are able to use valuation models with observable market inputs such as interest rate yield curves and prices for similar fixed maturity securities in terms of issuer, maturity and seniority. For foreign government securities and foreign corporate securities, the fair values provided by the third party pricing services in local currencies, and where applicable, are converted to U.S. dollars using currency exchange rates from nationally recognized sources.
In addition to the valuations from investment managers, some of the fixed maturities with fair values categorized as Level 3 result when prices are not available from the nationally recognized pricing services. The asset managers may obtain non-binding price quotes for the securities from brokers. The single broker quotes
14
are provided by market makers or broker-dealers who are recognized as market participants in the markets in which they are providing the quotes. The prices received from brokers are reviewed for reasonableness by the third party asset managers and the Company. If the broker quotes are for foreign denominated securities, the quotes are converted to U.S. dollars using currency exchange rates from nationally recognized sources. In limited circumstances when broker prices are not available for private placements, the Company will value the securities using comparable market information or receive fair values from investment managers.
The composition and valuation inputs for the presented fixed maturities categories Level 1 and Level 2 are as follows:
• U.S. Treasury securities and obligations of U.S. government agencies and corporations are primarily comprised of U.S. Treasury bonds and the fair value is based on observable market inputs such as quoted prices, reported trades, quoted prices for similar issuances or benchmark yields;
• Obligations of U.S. states and political subdivisions are comprised of state and municipal bond issuances and the fair values are based on observable market inputs such as quoted market prices, quoted prices for similar securities, benchmark yields and credit spreads;
• Corporate securities are primarily comprised of U.S. corporate and public utility bond issuances and the fair values are based on observable market inputs such as quoted market prices, quoted prices for similar securities, benchmark yields and credit spreads;
• Asset-backed and mortgage-backed securities fair values are based on observable inputs such as quoted prices, reported trades, quoted prices for similar issuances or benchmark yields and cash flow models using observable inputs such as prepayment speeds, collateral performance and default spreads;
• Foreign government securities are comprised of global non-U.S. sovereign bond issuances and the fair values are based on observable market inputs such as quoted market prices, quoted prices for similar securities and models with observable inputs such as benchmark yields and credit spreads and then, where applicable, converted to U.S. dollars using an exchange rate from a nationally recognized source;
• Foreign corporate securities are comprised of global non-U.S. corporate bond issuances and the fair values are based on observable market inputs such as quoted market prices, quoted prices for similar securities and models with observable inputs such as benchmark yields and credit spreads and then, where applicable, converted to U.S. dollars using an exchange rate from a nationally recognized source.
15
The following table presents the fair value measurement levels for all assets and liabilities, which the Company has recorded at fair value (fair and market value) as of the periods indicated:
|
|
|
|
|
Fair Value Measurement Using: |
|||||||
|
|
|
|
|
Quoted Prices |
|
|
|
|
|
|
|
|
|
|
|
|
in Active |
|
Significant |
|
|
|
||
|
|
|
|
|
Markets for |
|
Other |
|
Significant |
|||
|
|
|
|
|
Identical |
|
Observable |
|
Unobservable |
|||
|
|
|
|
|
Assets |
|
Inputs |
|
Inputs |
|||
(Dollars in thousands) |
|
September 30, 2021 |
|
(Level 1) |
|
(Level 2) |
|
(Level 3) |
||||
Assets: |
|
|
|
|
|
|
|
|
|
|
|
|
Fixed maturities, market value |
|
|
|
|
|
|
|
|
|
|
|
|
U.S. Treasury securities and obligations of |
|
|
|
|
|
|
|
|
|
|
|
|
U.S. government agencies and corporations |
|
$ |
1,362,822 |
|
$ |
- |
|
$ |
1,362,822 |
|
$ |
- |
Obligations of U.S. States and political subdivisions |
|
|
608,375 |
|
|
- |
|
|
608,375 |
|
|
- |
Corporate securities |
|
|
7,494,241 |
|
|
- |
|
|
6,700,200 |
|
|
794,041 |
Asset-backed securities |
|
|
3,305,252 |
|
|
- |
|
|
2,301,183 |
|
|
1,004,069 |
Mortgage-backed securities |
|
|
|
|
|
|
|
|
|
|
|
|
Commercial |
|
|
1,087,870 |
|
|
- |
|
|
1,087,870 |
|
|
- |
Agency residential |
|
|
2,246,001 |
|
|
- |
|
|
2,246,001 |
|
|
- |
Non-agency residential |
|
|
7,306 |
|
|
- |
|
|
7,306 |
|
|
- |
Foreign government securities |
|
|
1,455,145 |
|
|
- |
|
|
1,455,145 |
|
|
- |
Foreign corporate securities |
|
|
4,056,107 |
|
|
- |
|
|
4,051,232 |
|
|
4,875 |
Total fixed maturities, market value |
|
|
21,623,119 |
|
|
- |
|
|
19,820,134 |
|
|
1,802,985 |
|
|
|
|
|
|
|
|
|
|
|
|
|
Equity securities, fair value |
|
|
1,523,595 |
|
|
1,451,271 |
|
|
72,324 |
|
|
- |
|
|
|
|
|
|
Fair Value Measurement Using: |
||||||
|
|
|
|
|
Quoted Prices |
|
|
|
|
|
|
|
|
|
|
|
|
in Active |
|
Significant |
|
|
|
||
|
|
|
|
|
Markets for |
|
Other |
|
Significant |
|||
|
|
|
|
|
Identical |
|
Observable |
|
Unobservable |
|||
|
|
|
|
|
Assets |
|
Inputs |
|
Inputs |
|||
(Dollars in thousands) |
|
December 31, 2020 |
|
(Level 1) |
|
(Level 2) |
|
(Level 3) |
||||
Assets: |
|
|
|
|
|
|
|
|
|
|
|
|
Fixed maturities, market value |
|
|
|
|
|
|
|
|
|
|
|
|
U.S. Treasury securities and obligations of |
|
|
|
|
|
|
|
|
|
|
|
|
U.S. government agencies and corporations |
|
$ |
1,367,106 |
|
$ |
- |
|
$ |
1,367,106 |
|
$ |
- |
Obligations of U.S. States and political subdivisions |
|
|
577,295 |
|
|
- |
|
|
577,295 |
|
|
- |
Corporate securities |
|
|
7,149,026 |
|
|
- |
|
|
6,447,534 |
|
|
701,492 |
Asset-backed securities |
|
|
2,565,802 |
|
|
- |
|
|
1,942,769 |
|
|
623,033 |
Mortgage-backed securities |
|
|
|
|
|
|
|
|
|
|
|
|
Commercial |
|
|
990,303 |
|
|
- |
|
|
990,303 |
|
|
- |
Agency residential |
|
|
2,267,739 |
|
|
- |
|
|
2,267,739 |
|
|
- |
Non-agency residential |
|
|
5,194 |
|
|
- |
|
|
5,194 |
|
|
- |
Foreign government securities |
|
|
1,645,375 |
|
|
- |
|
|
1,645,375 |
|
|
- |
Foreign corporate securities |
|
|
3,472,333 |
|
|
- |
|
|
3,466,634 |
|
|
5,699 |
Total fixed maturities, market value |
|
|
20,040,173 |
|
|
- |
|
|
18,709,949 |
|
|
1,330,224 |
|
|
|
|
|
|
|
|
|
|
|
|
|
Equity securities, fair value |
|
|
1,472,236 |
|
|
1,368,704 |
|
|
103,532 |
|
|
- |
|
|
|
|
|
|
|
|
|
|
|
|
|
In addition, $266.3 million and $224.7 million of investments within other invested assets on the consolidated balance sheets as of September 30, 2021 and December 31, 2020, respectively, are not included within the fair value hierarchy tables as the assets are measured at NAV as a practical expedient to determine fair value.
16
The following tables present the activity under Level 3, fair value measurements using significant unobservable inputs for fixed maturities, for the periods indicated:
17
There were no net transfers to/(from) level 3, fair value measurements using significant unobservable inputs for fixed maturities, market value for the three and nine months ended September 30, 2021, respectively. The net transfers to/(from) level 3, fair value measurements using significant unobservable inputs for fixed maturities, market value were $3.3 million and ($0.5) million for the three and nine months ended September 30, 2020, respectively. The net transfers of $3.3 million during the three months ended September 30, 2020 were previously priced by a recognized pricing service and were subsequently priced using investment managers as of September 30, 2020. The net transfers of ($0.5) million during the nine months ended September 30, 2020 were related to securities that were previously priced using investment managers and were subsequently priced by a recognized pricing service as of September 30, 2020.
The following table presents the activity under Level 3, fair value measurements using significant unobservable inputs for equity securities, for the periods indicated:
The net transfers to/(from) level 3, fair value measurements using significant unobservable inputs for equity securities, fair value were ($9.9) million for both the three and nine months ended September 30, 2020. The transfers of ($9.9) million during both the three and nine months ended September 30, 2020, were related to preferred stock in a private entity purchased during the second quarter of 2020 which was priced at cost as of June 30, 2020 and was subsequently priced based upon the book value of the underlying private entity as of September 30, 2020.
18
6. EARNINGS PER COMMON SHARE
Basic earnings per share are calculated by dividing net income by the weighted average number of common shares outstanding. Diluted earnings per share reflect the potential dilution that would occur if options granted under various share-based compensation plans were exercised resulting in the issuance of common shares that would participate in the earnings of the entity.
Net income (loss) per common share has been computed as per below, based upon weighted average common basic and dilutive shares outstanding.
There were no anti-diluted options outstanding for the three and nine months ended September 30, 2021 and 2020.
All outstanding options granted under share-based compensation plans expire on or between February 22, 2022 and September 19, 2022.
7. COMMITMENTS AND CONTINGENCIES
In the ordinary course of business, the Company is involved in lawsuits, arbitrations and other formal and informal dispute resolution procedures, the outcomes of which will determine the Company’s rights and obligations under insurance and reinsurance agreements. In some disputes, the Company seeks to enforce its rights under an agreement or to collect funds owing to it. In other matters, the Company is resisting attempts by others to collect funds or enforce alleged rights. These disputes arise from time to time and are ultimately resolved through both informal and formal means, including negotiated resolution, arbitration and litigation. In all such matters, the Company believes that its positions are legally and commercially reasonable. The Company considers the statuses of these proceedings when determining its reserves for unpaid loss and loss adjustment expenses.
19
Aside from litigation and arbitrations related to these insurance and reinsurance agreements, the Company is not a party to any other material litigation or arbitration.
The Company had one equity index put option contract at September 30, 2021, based on the Standard & Poor’s 500 (“S&P 500”) index. Based on historical index volatilities and trends and the September 30, 2021 S&P 500 index value, the Company estimates the probability that the equity index put option contract of the S&P 500 index falling below the strike price on the exercise date to be less than 0.1%. The theoretical maximum payout under this equity index put option contract would occur if on the exercise date the S&P 500 index value was zero. At September 30, 2021, the present value of the theoretical maximum payout using a 3% discount factor was $151.2 million. Conversely, if the contract had expired on September 30, 2021, with the S&P index at 4,307.54, there would have been no settlement amount.
The Company has entered into separate annuity agreements with The Prudential Insurance of America (“The Prudential”) and an additional unaffiliated life insurance company in which the Company has either purchased annuity contracts or become the assignee of annuity proceeds that are meant to settle claim payment obligations in the future. In both instances, the Company would become contingently liable if either The Prudential or the unaffiliated life insurance company were unable to make payments related to the respective annuity contract.
The table below presents the estimated cost to replace all such annuities for which the Company was contingently liable for the periods indicated:
|
At September 30, |
|
At December 31, |
||
(Dollars in thousands) |
2021 |
|
2020 |
||
The Prudential |
$ |
138,869 |
|
$ |
140,773 |
Unaffiliated life insurance company |
|
34,163 |
|
|
35,128 |
8. OTHER COMPREHENSIVE INCOME (LOSS)
The following table presents the components of comprehensive income (loss) in the consolidated statements of operations for the periods indicated:
|
Three Months Ended September 30, 2021 |
|
Nine Months Ended September 30, 2021 |
||||||||||||||
(Dollars in thousands) |
Before Tax |
|
Tax Effect |
|
Net of Tax |
|
Before Tax |
|
Tax Effect |
|
Net of Tax |
||||||
Unrealized appreciation (depreciation) ("URA(D)") on securities - non-credit related |
$ |
(107,980) |
|
$ |
7,959 |
|
$ |
(100,021) |
|
$ |
(343,137) |
|
$ |
38,672 |
|
$ |
(304,465) |
Reclassification of net realized losses (gains) included in net income (loss) |
|
(809) |
|
|
(579) |
|
|
(1,388) |
|
|
(1,233) |
|
|
(2,231) |
|
|
(3,464) |
Foreign currency translation adjustments |
|
(59,094) |
|
|
5,495 |
|
|
(53,599) |
|
|
(30,060) |
|
|
1,174 |
|
|
(28,886) |
Reclassification of benefit plan liability amortization included in net income (loss) |
|
1,979 |
|
|
(416) |
|
|
1,563 |
|
|
7,151 |
|
|
(1,502) |
|
|
5,649 |
Total other comprehensive income (loss) |
$ |
(165,904) |
|
$ |
12,459 |
|
$ |
(153,445) |
|
$ |
(367,279) |
|
$ |
36,113 |
|
$ |
(331,166) |
|
Three Months Ended September 30, 2020 |
|
Nine Months Ended September 30, 2020 |
||||||||||||||
(Dollars in thousands) |
Before Tax |
|
Tax Effect |
|
Net of Tax |
|
Before Tax |
|
Tax Effect |
|
Net of Tax |
||||||
Unrealized appreciation (depreciation) ("URA(D)") on securities - non-credit related |
$ |
68,264 |
|
$ |
(4,784) |
|
$ |
63,480 |
|
$ |
373,990 |
|
$ |
(38,155) |
|
$ |
335,835 |
Reclassification of net realized losses (gains) included in net income (loss) |
|
(12,678) |
|
|
1,225 |
|
|
(11,453) |
|
|
18,650 |
|
|
(5,961) |
|
|
12,689 |
Foreign currency translation adjustments |
|
64,453 |
|
|
(3,825) |
|
|
60,628 |
|
|
28,555 |
|
|
1,835 |
|
|
30,390 |
Reclassification of benefit plan liability amortization included in net income (loss) |
|
2,285 |
|
|
(479) |
|
|
1,806 |
|
|
5,736 |
|
|
(1,204) |
|
|
4,532 |
Total other comprehensive income (loss) |
$ |
122,324 |
|
$ |
(7,863) |
|
$ |
114,461 |
|
$ |
426,931 |
|
$ |
(43,485) |
|
$ |
383,446 |
20
The following table presents details of the amounts reclassified from AOCI for the periods indicated:
|
|
Three Months Ended |
|
Nine Months Ended |
|
|
||||||||
|
|
September 30, |
|
September 30, |
|
Affected line item within the statements of |
||||||||
AOCI component |
|
2021 |
|
2020 |
|
2021 |
|
2020 |
|
operations and comprehensive income (loss) |
||||
(Dollars in thousands) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
URA(D) on securities |
|
$ |
(809) |
|
$ |
(12,678) |
|
$ |
(1,233) |
|
$ |
18,650 |
|
Other net realized capital gains (losses) |
|
|
|
(579) |
|
|
1,225 |
|
|
(2,231) |
|
|
(5,961) |
|
Income tax expense (benefit) |
|
|
$ |
(1,388) |
|
$ |
(11,453) |
|
$ |
(3,464) |
|
$ |
12,689 |
|
Net income (loss) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Benefit plan net gain (loss) |
|
$ |
1,979 |
|
$ |
2,285 |
|
$ |
7,151 |
|
$ |
5,736 |
|
Other underwriting expenses |
|
|
|
(416) |
|
|
(479) |
|
|
(1,502) |
|
|
(1,204) |
|
Income tax expense (benefit) |
|
|
$ |
1,563 |
|
$ |
1,806 |
|
$ |
5,649 |
|
$ |
4,532 |
|
Net income (loss) |
The following table presents the components of accumulated other comprehensive income (loss), net of tax, in the consolidated balance sheets for the periods indicated:
9. CREDIT FACILITIES
The Company has multiple active credit facilities for a total commitment of up to $1,530.0 million and an additional credit facility for a total commitment of up to £52.2 million, providing for the issuance of letters of credit and/or unsecured revolving credit lines. The Company also has additional uncommitted credit facilities of up to $140.0 million which may be accessible via written request and corresponding authorization from the applicable lender. The following table presents the interest and fees incurred in connection with these committed credit facilities for the periods indicated:
|
Three Months Ended |
|
Nine Months Ended |
||||||||
|
September 30, |
|
September 30, |
||||||||
(Dollars in thousands) |
2021 |
|
2020 |
|
2021 |
|
2020 |
||||
Credit facility interest and fees incurred |
$ |
- |
|
$ |
105 |
|
$ |
175 |
|
$ |
560 |
Loan interest and fees incurred - Federal Home Loan Bank |
|
281 |
|
|
27 |
|
|
827 |
|
|
27 |
Total interest and fees incurred |
$ |
281 |
|
$ |
132 |
|
$ |
1,002 |
|
$ |
587 |
The terms and outstanding amounts for each facility are discussed below:
Group Credit Facility
Effective May 26, 2016, Group, Everest Reinsurance (Bermuda), Ltd. (“Bermuda Re”) and Everest International Reinsurance, Ltd. (“Everest International”), both direct subsidiaries of Group, entered into a five year, $800.0 million senior credit facility with a syndicate of lenders, which amended and restated in its entirety the June 22,
21
2012, four year, $800.0 million senior credit facility. Both the May 26, 2016 and June 22, 2012 senior credit facilities, which have similar terms, are referred to as the “2016 Group Credit Facility”. Wells Fargo Corporation (“Wells Fargo Bank”) is the administrative agent for the 2016 Group Credit Facility, which consists of two tranches. Tranche one provides up to $200.0 million of unsecured revolving credit for liquidity and general corporate purposes, and for the issuance of unsecured standby letters of credit. Tranche two exclusively provides up to $600.0 million for the issuance of standby letters of credit on a collateralized basis.
Effective May 26, 2021, the term of the 2016 Group Credit Facility expired. The Company elected not to renew this facility to allow for the replacement by new credit facilities, including the 2021 Bermuda Re Wells Fargo Letter of Credit Facility, detailed below. As a result, Tranche One of the Group Credit Facility (unsecured revolving credit in the amount of $200.0 million) is no longer effective or available for use. The $600.0 million of credit availability in Tranche two will be in run-off and able to support standby letters of credit currently in force through December 31, 2021. As of December 31, 2021, the entirety of the 2016 Group Credit Facility will have expired and will no longer be effective. This collateralized letter of credit capacity will be replaced with additional bilateral collateralized letters of credit.
The Group Credit Facility requires Group to maintain a debt to capital ratio of not greater than 0.35 to 1 and to maintain a minimum net worth. Minimum net worth is an amount equal to the sum of $5,371.0 million plus 25% of consolidated net income for each of Group’s fiscal quarters, for which statements are available ending on or after March 31, 2016 and for which consolidated net income is positive, plus 25% of any increase in consolidated net worth during such period attributable to the issuance of ordinary and preferred shares, which at September 30, 2021, was $6,651.8 million. As of September 30, 2021, the Company was in compliance with all Group Credit Facility covenants.
The following table summarizes the outstanding letters of credit and/or borrowings for the periods indicated:
(Dollars in thousands) |
|
|
|
|
At September 30, 2021 |
|
|
At December 31, 2020 |
||||||||||
Bank |
|
|
|
Commitment |
|
In Use |
|
Date of Expiry |
|
Commitment |
|
In Use |
|
Date of Expiry |
||||
Wells Fargo Bank Group Credit Facility |
|
Tranche One |
|
$ |
- |
|
$ |
- |
|
|
|
$ |
200,000 |
|
$ |
164,242 |
|
12/31/2021 |
|
|
Tranche Two |
|
|
600,000 |
|
|
402,284 |
|
12/31/2021 |
|
|
600,000 |
|
|
589,690 |
|
12/31/2021 |
Total Wells Fargo Bank Group Credit Facility |
|
|
|
$ |
600,000 |
|
$ |
402,284 |
|
|
|
$ |
800,000 |
|
$ |
753,932 |
|
|
Bermuda Re Wells Fargo Letter of Credit Facility
Effective February 23, 2021, Bermuda Re entered into a letter of credit issuance facility with Wells Fargo referred to as the “2021 Bermuda Re Wells Fargo Letter of Credit Facility.” The Bermuda Re Wells Fargo Letter of Credit Facility originally provided for the issuance of up to $50.0 million of secured letters of credit. Effective May 5, 2021, the agreement was amended to provide for the issuance of up to $500.0 million of secured letters of credit.
The following table summarizes the outstanding letters of credit for the periods indicated:
(Dollars in thousands) |
|
At September 30, 2021 |
||||||
Bank |
|
Commitment |
|
In Use |
|
Date of Expiry |
||
Wells Fargo Bank Bilateral LOC Agreement |
|
$ |
500,000 |
|
$ |
404,157 |
|
12/31/2021 |
|
|
$ |
500,000 |
|
$ |
404,157 |
|
|
Bermuda Re Citibank Letter of Credit Facility
Effective August 9, 2021, Bermuda Re entered into a new letter of credit issuance facility with Citibank N.A. which superseded the previous letter of credit issuance facility with Citibank N.A. that was effective December 31, 2020. Both of these agreements are referred to as the “Bermuda Re Citibank Letter of Credit Facility”. The current Bermuda Re Citibank Letter of Credit Facility provides for the committed issuance of up to $230.0 million of secured letters of credit. In addition, the facility provided for the uncommitted issuance of up the $140.0
22
million, which may be accessible via written request by the Company and corresponding authorization from Citibank N.A.
The following table summarizes the outstanding letters of credit for the periods indicated:
(Dollars in thousands) |
|
At September 30, 2021 |
|
At December 31, 2020 |
||||||||||||
Bank |
|
Commitment |
|
In Use |
|
Date of Expiry |
|
Commitment |
|
In Use |
|
Date of Expiry |
||||
Citibank Bilateral Letter of Credit Agreement |
|
$ |
230,000 |
|
$ |
1,264 |
|
11/24/2021 |
|
$ |
200,000 |
|
$ |
4,425 |
|
02/28/2021 |
|
|
|
|
|
|
429 |
|
12/16/2021 |
|
|
|
|
|
3,672 |
|
11/24/2021 |
|
|
|
|
|
|
139,887 |
|
12/31/2021 |
|
|
|
|
|
448 |
|
12/16/2021 |
|
|
|
|
|
|
4,425 |
|
02/28/2022 |
|
|
|
|
|
115 |
|
12/20/2021 |
|
|
|
|
|
|
838 |
|
03/01/2022 |
|
|
|
|
|
136,383 |
|
12/31/2021 |
|
|
|
|
|
|
148 |
|
12/20/2022 |
|
|
|
|
|
39,619 |
|
12/30/2024 |
|
|
|
|
|
|
28,498 |
|
12/31/2022 |
|
|
|
|
|
821 |
|
08/15/2022 |
|
|
|
|
|
|
999 |
|
08/15/2023 |
|
|
|
|
|
- |
|
|
|
|
|
|
|
|
1,252 |
|
09/23/2023 |
|
|
|
|
|
- |
|
|
|
|
|
|
|
|
22,964 |
|
09/30/2025 |
|
|
|
|
|
- |
|
|
Total Citibank Bilateral Agreement |
|
$ |
230,000 |
|
$ |
200,704 |
|
|
|
$ |
200,000 |
|
$ |
185,483 |
|
|
Everest International Credit Facility
Effective May 12, 2020, Everest International amended its credit facility with Lloyds Bank plc (“Everest International Credit Facility”). The current amendment of the Everest International Credit Facility provides up to £52.2 million for the issuance of standby letters of credit on a collateralized basis.
The Everest International Credit Facility requires Group to maintain a debt to capital ratio of not greater than 0.35 to 1 and to maintain a minimum net worth. Minimum net worth is an amount equal to the sum of $6,393.0 million (70% of consolidated net worth as of December 31, 2019), plus 25% of consolidated net income for each of Group’s fiscal quarters, for which statements are available ending on or after January 1, 2020 and for which net income is positive, plus 25% of any increase in consolidated net worth of Group during such period attributable to the issuance of ordinary and preferred shares, which at September 30, 2021, was $6,788.7 million. As of September 30, 2021, the Company was in compliance with all Everest International Credit Facility requirements.
The following table summarizes the outstanding letters of credit for the periods indicated:
(Dollars in thousands) |
|
At September 30, 2021 |
|
At December 31, 2020 |
||||||||||||
Bank |
|
Commitment |
|
In Use |
|
Date of Expiry |
|
Commitment |
|
In Use |
|
Date of Expiry |
||||
Lloyd's Bank plc |
|
£ |
52,175 |
|
£ |
52,175 |
|
12/31/2024 |
|
£ |
52,175 |
|
£ |
52,175 |
|
12/31/2023 |
Total Lloyd's Bank Credit Facility |
|
£ |
52,175 |
|
£ |
52,175 |
|
|
|
£ |
52,175 |
|
£ |
52,175 |
|
|
Bermuda Re Bayerische Landesbank Credit Facility
Effective August 9, 2021 Bermuda Re entered into a letter of credit issuance facility with Bayerische Landesbank, an agreement referred to as the “Bermuda Re Bayerische Landesbank Credit Facility”. The Bermuda Re Bayerische Landesbank Credit Facility provides for the committed issuance of up to $200.0 million of secured letters of credit.
23
(Dollars in thousands) |
|
At September 30, 2021 |
||||||
Bank |
|
Commitment |
|
In Use |
|
Date of Expiry |
||
Bayerische Landesbank Bilateral Letter of Credit Agreement |
|
$ |
200,000 |
|
$ |
- |
|
|
Total Bayerische Landesbank Bilateral Agreement |
|
$ |
200,000 |
|
$ |
- |
|
|
Federal Home Loan Bank Membership
Everest Reinsurance Company (“Everest Re”) is a member of the Federal Home Loan Bank of New York (“FHLBNY”), which allows Everest Re to borrow up to 10% of its statutory admitted assets. As of September 30, 2021, Everest Re had admitted assets of approximately $18,874.0 million which provides borrowing capacity of up to approximately $1,887.4 million. During 2020, Everest Re borrowed $400.0 million under its FHLBNY capacity. The borrowings have interest payable at an interest rate of 0.35%. As of September 30, 2021, $310.0 million of these borrowings remain outstanding, with maturities in November and December 2021. The FHLBNY membership agreement requires that 4.5% of borrowed funds be used to acquire additional membership stock.
10. COLLATERALIZED REINSURANCE AND TRUST AGREEMENTS
Certain subsidiaries of Group have established trust agreements, which effectively use the Company’s investments as collateral, as security for assumed losses payable to certain non-affiliated ceding companies. At September 30, 2021, the total amount on deposit in trust accounts was $1,526.1 million.
The Company reinsures some of its catastrophe exposures with the segregated accounts of Mt. Logan Re. Mt. Logan Re is a Collateralized insurer registered in Bermuda and 100% of the voting common shares are owned by Group. Each segregated account invests predominantly in a diversified set of catastrophe exposures, diversified by risk/peril and across different geographic regions globally.
The following table summarizes the premiums and losses that are ceded by the Company to Mt. Logan Re segregated accounts and assumed by the Company from Mt. Logan Re segregated accounts.
|
|
|
Three Months Ended |
|
|
Nine Months Ended |
||||||
|
|
|
September 30, |
|
|
September 30, |
||||||
Mt. Logan Re Segregated Accounts |
|
|
2021 |
|
|
2020 |
|
|
2021 |
|
|
2020 |
(Dollars in thousands) |
|
|
|
|
|
|
|
|
|
|
|
|
Ceded written premiums |
|
$ |
114,694 |
|
$ |
86,712 |
|
$ |
269,987 |
|
$ |
245,422 |
Ceded earned premiums |
|
|
100,133 |
|
|
71,396 |
|
|
249,662 |
|
|
233,089 |
Ceded losses and LAE |
|
|
169,998 |
|
|
87,917 |
|
|
281,893 |
|
|
173,968 |
|
|
|
|
|
|
|
|
|
|
|
|
|
Assumed written premiums |
|
|
4,273 |
|
|
8,894 |
|
|
9,490 |
|
|
14,448 |
Assumed earned premiums |
|
|
4,273 |
|
|
8,894 |
|
|
9,490 |
|
|
14,448 |
Assumed losses and LAE |
|
|
- |
|
|
- |
|
|
- |
|
|
- |
Each segregated account is permitted to assume net risk exposures equal to the amount of its available posted collateral, which in the aggregate was $847.3 million and $806.6 million at September 30, 2021 and December 31, 2020, respectively. Of this amount, Group had investments recorded at $61.6 million and $67.6 million at September 30, 2021 and December 31, 2020, respectively, in the segregated accounts.
Effective April 1, 2018, the Company entered into a retroactive reinsurance transaction with one of the Mt. Logan Re segregated accounts to retrocede $269.2 million of casualty reserves held by Bermuda Re related to accident years 2002 through 2015. As consideration for entering the agreement, the Company transferred cash of $252.0 million to the Mt. Logan Re segregated account. The maximum liability to be retroceded under the agreement will be $319.0 million. The Company will retain liability for any amounts exceeding the maximum liability. As of September 30, 2021 and December 31, 2020, the Company has a reinsurance recoverable of $217.5 million and $254.9 million, respectively. In addition, the Company has a deferred gain liability of $34.4
24
million and $38.8 million as of September 30, 2021 and December 31, 2020, respectively, reported in other liabilities.
The Company entered into various collateralized reinsurance agreements with Kilimanjaro Re Limited (“Kilimanjaro”), a Bermuda based special purpose reinsurer, to provide the Company with catastrophe reinsurance coverage. These agreements are multi-year reinsurance contracts which cover named storm and earthquake events. The table below summarizes the various agreements.
(Dollars in thousands) |
|
|
|
|
|
|
|
|
|
|
|
Class |
|
Description |
|
Effective Date |
|
Expiration Date |
|
Limit |
|
Coverage Basis |
|
Series 2017-1 Class A-2 |
|
US, Canada, Puerto Rico – Named Storm and Earthquake Events |
|
4/13/2017 |
|
4/13/2022 |
|
|
50,000 |
|
Aggregate |
Series 2017-1 Class B-2 |
|
US, Canada, Puerto Rico – Named Storm and Earthquake Events |
|
4/13/2017 |
|
4/13/2022 |
|
|
75,000 |
|
Aggregate |
Series 2017-1 Class C-2 |
|
US, Canada, Puerto Rico – Named Storm and Earthquake Events |
|
4/13/2017 |
|
4/13/2022 |
|
|
175,000 |
|
Aggregate |
Series 2018-1 Class A-1 |
|
US, Canada, Puerto Rico – Named Storm and Earthquake Events |
|
4/30/2018 |
|
5/6/2022 |
|
|
62,500 |
|
Aggregate |
Series 2018-1 Class B-1 |
|
US, Canada, Puerto Rico – Named Storm and Earthquake Events |
|
4/30/2018 |
|
5/6/2022 |
|
|
200,000 |
|
Aggregate |
Series 2018-1 Class A-2 |
|
US, Canada, Puerto Rico – Named Storm and Earthquake Events |
|
4/30/2018 |
|
5/5/2023 |
|
|
62,500 |
|
Aggregate |
Series 2018-1 Class B-2 |
|
US, Canada, Puerto Rico – Named Storm and Earthquake Events |
|
4/30/2018 |
|
5/5/2023 |
|
|
200,000 |
|
Aggregate |
Series 2019-1 Class A-1 |
|
US, Canada, Puerto Rico – Named Storm and Earthquake Events |
|
12/12/2019 |
|
12/19/2023 |
|
|
150,000 |
|
Occurrence |
Series 2019-1 Class B-1 |
|
US, Canada, Puerto Rico – Named Storm and Earthquake Events |
|
12/12/2019 |
|
12/19/2023 |
|
|
275,000 |
|
Aggregate |
Series 2019-1 Class A-2 |
|
US, Canada, Puerto Rico – Named Storm and Earthquake Events |
|
12/12/2019 |
|
12/19/2024 |
|
|
150,000 |
|
Occurrence |
Series 2019-1 Class B-2 |
|
US, Canada, Puerto Rico – Named Storm and Earthquake Events |
|
12/12/2019 |
|
12/19/2024 |
|
|
275,000 |
|
Aggregate |
Series 2021-1 Class A-1 |
|
US, Canada, Puerto Rico – Named Storm and Earthquake Events |
|
4/8/2021 |
|
4/21/2025 |
|
|
150,000 |
|
Occurrence |
Series 2021-1 Class B-1 |
|
US, Canada, Puerto Rico – Named Storm and Earthquake Events |
|
4/8/2021 |
|
4/21/2025 |
|
|
85,000 |
|
Aggregate |
Series 2021-1 Class C-1 |
|
US, Canada, Puerto Rico – Named Storm and Earthquake Events |
|
4/8/2021 |
|
4/21/2025 |
|
|
85,000 |
|
Aggregate |
Series 2021-1 Class A-2 |
|
US, Canada, Puerto Rico – Named Storm and Earthquake Events |
|
4/8/2021 |
|
4/20/2026 |
|
|
150,000 |
|
Occurrence |
Series 2021-1 Class B-2 |
|
US, Canada, Puerto Rico – Named Storm and Earthquake Events |
|
4/8/2021 |
|
4/20/2026 |
|
|
90,000 |
|
Aggregate |
Series 2021-1 Class C-2 |
|
US, Canada, Puerto Rico – Named Storm and Earthquake Events |
|
4/8/2021 |
|
4/20/2026 |
|
|
90,000 |
|
Aggregate |
|
|
Total available limit as of September 30, 2021 |
|
|
|
|
|
$ |
2,325,000 |
|
|
Recoveries under these collateralized reinsurance agreements with Kilimanjaro are primarily dependent on estimated industry level insured losses from covered events, as well as, the geographic location of the events. The estimated industry level of insured losses is obtained from published estimates by an independent recognized authority on insured property losses. Currently, none of the published insured loss estimates for catastrophe events during the applicable covered periods of the various agreements have exceeded the single event retentions or aggregate retentions under the terms of the agreements that would result in a recovery.
25
Kilimanjaro has financed the various property catastrophe reinsurance coverages by issuing catastrophe bonds to unrelated, external investors. The proceeds from the issuance of the Notes listed below are held in reinsurance trusts throughout the duration of the applicable reinsurance agreements and invested solely in U.S. government money market funds with a rating of at least “AAAm” by Standard & Poor’s.
(Dollars in thousands) |
|
|
|
|
|
|
|
Note Series |
|
Issue Date |
|
Maturity Date |
|
Amount |
|
Series 2017-1 Class A-2 |
|
4/13/2017 |
|
4/13/2022 |
|
$ |
50,000 |
Series 2017-1 Class B-2 |
|
4/13/2017 |
|
4/13/2022 |
|
|
75,000 |
Series 2017-1 Class C-2 |
|
4/13/2017 |
|
4/13/2022 |
|
|
175,000 |
Series 2018-1 Class A-1 |
|
4/30/2018 |
|
5/6/2022 |
|
|
62,500 |
Series 2018-1 Class B-1 |
|
4/30/2018 |
|
5/6/2022 |
|
|
200,000 |
Series 2018-1 Class A-2 |
|
4/30/2018 |
|
5/5/2023 |
|
|
62,500 |
Series 2018-1 Class B-2 |
|
4/30/2018 |
|
5/5/2023 |
|
|
200,000 |
Series 2019-1 Class A-1 |
|
12/12/2019 |
|
12/19/2023 |
|
|
150,000 |
Series 2019-1 Class B-1 |
|
12/12/2019 |
|
12/19/2023 |
|
|
275,000 |
Series 2019-1 Class A-2 |
|
12/12/2019 |
|
12/19/2024 |
|
|
150,000 |
Series 2019-1 Class B-2 |
|
12/12/2019 |
|
12/19/2024 |
|
|
275,000 |
Series 2021-1 Class A-1 |
|
4/8/2021 |
|
4/21/2025 |
|
|
150,000 |
Series 2021-1 Class B-1 |
|
4/8/2021 |
|
4/21/2025 |
|
|
85,000 |
Series 2021-1 Class C-1 |
|
4/8/2021 |
|
4/21/2025 |
|
|
85,000 |
Series 2021-1 Class A-2 |
|
4/8/2021 |
|
4/20/2026 |
|
|
150,000 |
Series 2021-1 Class B-2 |
|
4/8/2021 |
|
4/20/2026 |
|
|
90,000 |
Series 2021-1 Class C-2 |
|
4/8/2021 |
|
4/20/2026 |
|
|
90,000 |
11. SENIOR NOTES
The table below displays Everest Reinsurance Holdings’ (“Holdings”) outstanding senior notes. Market value is based on quoted market prices, but due to limited trading activity, these senior notes are considered Level 2 in the fair value hierarchy.
|
|
|
|
|
|
|
September 30, 2021 |
|
December 31, 2020 |
||||||||
|
|
|
|
|
|
|
Consolidated Balance |
|
|
|
|
Consolidated Balance |
|
|
|
||
(Dollars in thousands) |
Date Issued |
|
Date Due |
|
Principal Amounts |
|
Sheet Amount |
|
Market Value |
|
Sheet Amount |
|
Market Value |
||||
4.868% Senior notes |
6/5/2014 |
|
6/1/2044 |
|
400,000 |
|
$ |
397,284 |
|
$ |
506,828 |
|
$ |
397,194 |
|
$ |
528,000 |
3.5% Senior notes |
10/07/2020 |
|
10/15/2050 |
|
1,000,000 |
|
|
979,915 |
|
|
1,065,400 |
|
|
979,524 |
|
|
1,138,100 |
On June 5, 2014, Holdings issued $400.0 million of 30 year senior notes with an interest coupon rate of 4.868%, which will mature on June 1, 2044. Interest is paid semi-annually on June 1 and December 1 of each year.
On October 7, 2020, Holdings issued $1,000.0 million of 30 year senior notes with an interest coupon rate of 3.50%, which will mature on October 15, 2050. Interest is paid semi-annually on April 15 and October 15 of each year.
On October 4, 2021, Holdings issued $1,000.0 million of 31 year senior notes with an interest coupon rate of 3.125%, which will mature on October 15, 2052. Interest is paid semi-annually on April 15 and October 15 of each year.
26
Interest expense incurred in connection with these senior notes is as follows for the periods indicated:
|
Three Months Ended |
|
Nine Months Ended |
||||||||
|
September 30, |
|
September 30, |
||||||||
(Dollars In thousands |
2021 |
|
2020 |
|
2021 |
|
2020 |
||||
Interest expense incurred 4.868% Senior notes |
$ |
4,868 |
|
$ |
4,868 |
|
$ |
14,604 |
|
$ |
14,604 |
Interest expense incurred 3.5% Senior notes |
|
8,805 |
|
|
- |
|
|
26,415 |
|
|
- |
12. LONG TERM SUBORDINATED NOTES
The table below displays Holdings’ outstanding fixed to floating rate long term subordinated notes. Market value is based on quoted market prices, but due to limited trading activity, these subordinated notes are considered Level 2 in the fair value hierarchy.
|
|
|
|
|
|
Maturity Date |
|
September 30, 2021 |
|
December 31, 2020 |
||||||||||
|
|
|
Original |
|
|
|
|
|
Consolidated Balance |
|
Market |
|
Consolidated Balance |
|
Market |
|||||
(Dollars in thousands) |
Date Issued |
|
Principal Amount |
|
Scheduled |
|
Final |
|
Sheet Amount |
|
Value |
|
Sheet Amount |
|
Value |
|||||
Long term subordinated notes |
4/26/2007 |
|
$ |
400,000 |
|
5/15/2037 |
|
5/1/2067 |
|
$ |
223,749 |
|
$ |
216,043 |
|
$ |
223,674 |
|
$ |
206,447 |
During the fixed rate interest period from May 3, 2007 through May 14, 2017, interest was at the annual rate of 6.6%, payable semi-annually in arrears on November 15 and May 15 of each year, commencing on November 15, 2007. During the floating rate interest period from May 15, 2017 through maturity, interest will be based on the 3 month LIBOR plus 238.5 basis points, reset quarterly, payable quarterly in arrears on February 15, May 15, August 15 and November 15 of each year, subject to Holdings’ right to defer interest on one or more occasions for up to ten consecutive years. Deferred interest will accumulate interest at the applicable rate compounded quarterly for periods from and including May 15, 2017. The reset quarterly interest rate for August 16, 2021 to November 14, 2021 is 2.51%.
Holdings may redeem the long term subordinated notes on or after May 15, 2017, in whole or in part at 100% of the principal amount plus accrued and unpaid interest; however, redemption on or after the scheduled maturity date and prior to May 1, 2047 is subject to a replacement capital covenant. This covenant is for the benefit of certain senior note holders and it mandates that Holdings receive proceeds from the sale of another subordinated debt issue, of at least similar size, before it may redeem the subordinated notes. Effective upon the maturity of the Company’s 5.40% senior notes on October 15, 2014, the Company’s 4.868% senior notes, due on June 1, 2044, have become the Company’s long term indebtedness that ranks senior to the long term subordinated notes.
The Company repurchased and retired $0 million and $13.2 million of its outstanding long term subordinated notes during the three and nine months ended September 30, 2020, respectively. The Company realized a gain of $0 million and $2.5 million from the repurchase of the long term subordinated notes for the three and nine months ended September 30, 2020, respectively. No repurchases of debt were made during the three and nine months ended September 30, 2021.
On March 19, 2009, Group announced the commencement of a cash tender offer for any and all of the 6.60% fixed to floating rate long term subordinated notes. Upon expiration of the tender offer, the Company had reduced its outstanding debt by $161.4 million. In addition, during 2020, the Company repurchased and retired $13.2 million of the notes.
Interest expense incurred in connection with these long term subordinated notes is as follows for the periods indicated:
|
Three Months Ended |
|
Nine Months Ended |
||||||||
|
September 30, |
|
September 30, |
||||||||
(Dollars in thousands) |
2021 |
|
2020 |
|
2021 |
|
2020 |
||||
Interest expense incurred |
$ |
1,456 |
|
$ |
1,587 |
|
$ |
4,378 |
|
$ |
6,126 |
27
13. SEGMENT REPORTING
The Reinsurance operation writes worldwide property and casualty reinsurance and specialty lines of business, on both a treaty and facultative basis, through reinsurance brokers, as well as directly with ceding companies. Business is written in the U.S., Bermuda, and Ireland offices, as well as, through branches in Canada, Singapore, the United Kingdom and Switzerland. The Insurance operation writes property and casualty insurance directly and through brokers, surplus lines brokers and general agents within the U.S., Bermuda, Canada and Europe through its offices in the U.S., Canada, United Kingdom, Ireland and a branch in the Netherlands.
These segments are managed independently, but conform with corporate guidelines with respect to pricing, risk management, control of aggregate catastrophe exposures, capital, investments and support operations. Management generally monitors and evaluates the financial performance of these operating segments based upon their underwriting results.
Underwriting results include earned premium less losses and loss adjustment expenses (“LAE”) incurred, commission and brokerage expenses and other underwriting expenses. The Company measures its underwriting results using ratios, in particular loss, commission and brokerage and other underwriting expense ratios, which, respectively, divide incurred losses, commissions and brokerage and other underwriting expenses by premiums earned.
The Company does not maintain separate balance sheet data for its operating segments. Accordingly, the Company does not review and evaluate the financial results of its operating segments based upon balance sheet data.
The following tables present the underwriting results for the operating segments for the periods indicated:
|
Three Months Ended |
|
Nine Months Ended |
||||||||
Reinsurance |
September 30, |
|
September 30, |
||||||||
(Dollars in thousands) |
2021 |
|
2020 |
|
2021 |
|
2020 |
||||
Gross written premiums |
$ |
2,488,344 |
|
$ |
2,086,961 |
|
$ |
6,695,594 |
|
$ |
5,403,080 |
Net written premiums |
|
2,292,957 |
|
|
1,936,851 |
|
|
6,265,825 |
|
|
4,974,034 |
|
|
|
|
|
|
|
|
|
|
|
|
Premiums earned |
$ |
1,976,454 |
|
$ |
1,669,257 |
|
$ |
5,674,707 |
|
$ |
4,656,733 |
Incurred losses and LAE |
|
1,766,197 |
|
|
1,335,048 |
|
|
4,206,243 |
|
|
3,361,367 |
Commission and brokerage |
|
471,079 |
|
|
373,251 |
|
|
1,353,062 |
|
|
1,130,946 |
Other underwriting expenses |
|
45,347 |
|
|
51,333 |
|
|
144,408 |
|
|
135,170 |
Underwriting gain (loss) |
$ |
(306,170) |
|
$ |
(90,375) |
|
$ |
(29,006) |
|
$ |
29,250 |
|
Three Months Ended |
|
Nine Months Ended |
||||||||
Insurance |
September 30, |
|
September 30, |
||||||||
(Dollars in thousands) |
2021 |
|
2020 |
|
2021 |
|
2020 |
||||
Gross written premiums |
$ |
1,009,264 |
|
$ |
704,643 |
|
$ |
2,923,587 |
|
$ |
2,328,733 |
Net written premiums |
|
732,832 |
|
|
511,829 |
|
|
2,123,311 |
|
|
1,693,603 |
|
|
|
|
|
|
|
|
|
|
|
|
Premiums earned |
$ |
679,949 |
|
$ |
536,554 |
|
$ |
1,927,933 |
|
$ |
1,628,297 |
Incurred losses and LAE |
|
508,103 |
|
|
401,162 |
|
|
1,365,619 |
|
|
1,212,699 |
Commission and brokerage |
|
93,256 |
|
|
72,081 |
|
|
258,033 |
|
|
229,224 |
Other underwriting expenses |
|
95,802 |
|
|
87,542 |
|
|
279,817 |
|
|
250,695 |
Underwriting gain (loss) |
$ |
(17,213) |
|
$ |
(24,231) |
|
$ |
24,465 |
|
$ |
(64,321) |
28
The following table reconciles the underwriting results for the operating segments to income before taxes as reported in the consolidated statements of operations and comprehensive income (loss) for the periods indicated:
|
Three Months Ended |
|
Nine Months Ended |
||||||||
|
September 30, |
|
September 30, |
||||||||
(Dollars in thousands) |
2021 |
|
2020 |
|
2021 |
|
2020 |
||||
Underwriting gain (loss) |
$ |
(323,383) |
|
$ |
(114,606) |
|
$ |
(4,541) |
|
$ |
(35,071) |
Net investment income |
|
292,759 |
|
|
234,233 |
|
|
960,267 |
|
|
420,116 |
Net realized capital gains (losses) |
|
(4,222) |
|
|
110,203 |
|
|
138,789 |
|
|
84,263 |
Corporate expenses |
|
(17,817) |
|
|
(10,618) |
|
|
(46,363) |
|
|
(29,184) |
Interest, fee and bond issue cost amortization expense |
|
(15,539) |
|
|
(6,641) |
|
|
(46,785) |
|
|
(21,477) |
Other income (expense) |
|
(19,517) |
|
|
59,937 |
|
|
44,190 |
|
|
47,306 |
Income (loss) before taxes |
$ |
(87,719) |
|
$ |
272,508 |
|
$ |
1,045,557 |
|
$ |
465,953 |
The Company produces business in the U.S., Bermuda and internationally. The net income deriving from and assets residing in the individual foreign countries in which the Company writes business are not identifiable in the Company’s financial records. Based on gross written premium, the table below presents the largest country, other than the U.S., in which the Company writes business, for the periods indicated:
|
Three Months Ended |
|
Nine Months Ended |
||||||||
|
September 30, |
|
September 30, |
||||||||
(Dollars in thousands) |
2021 |
|
2020 |
|
2021 |
|
2020 |
||||
United Kingdom gross written premium |
$ |
281,645 |
|
$ |
314,502 |
|
$ |
897,107 |
|
$ |
857,310 |
No other country represented more than 5% of the Company’s revenues.
14. SHARE-BASED COMPENSATION PLANS
For the three months ended September 30, 2021, a total of 2,090 restricted stock awards were granted: 2,090 restricted share awards were granted on September 9, 2021 with a fair value of $263.63 per share.
For the nine months ended September 30, 2021, a total of 209,631 restricted stock awards were granted: 194,610, 10,656, 2,275 and 2,090 restricted share awards were granted on February 23, 2021, February 24, 2021, May 12, 2021 and September 9, 2021, with a fair value of $242.24 per share, $244.445 per share, $264.845 per share and $263.63 per share, respectively. Additionally, 22,205 performance share unit awards were granted on February 23, 2021, with a fair value of $242.24 per unit.
15. INCOME TAXES
The Company is domiciled in Bermuda and has significant subsidiaries and/or branches in Canada, Ireland, the Netherlands, Singapore, Switzerland, the United Kingdom, and the United States. The Company’s Bermuda domiciled subsidiaries are exempt from income taxation under Bermuda law until 2035. The Company’s non-Bermudian subsidiaries and branches are subject to income taxation at varying rates in their respective domiciles.
The Company generally applies the estimated Annualized Effective Tax Rate (“AETR”) approach for calculating its tax provision for interim periods as prescribed by ASC 740-270, Interim Reporting. Under the AETR approach, the estimated annualized effective tax rate is applied to the interim year-to-date pre-tax income/(loss) to determine the income tax expense or benefit for the year-to-date period. The tax expense or benefit for the quarter represents the difference between the year-to-date tax expense or benefit for the current year-to-date period less such amount for the immediately preceding year-to-date period. Management considers the impact of all known events in its estimation of the Company’s annual pre-tax income/(loss) and annualized effective tax rate.
29
16. SUBSEQUENT EVENTS
The Company has evaluated known recognized and non-recognized subsequent events. Other than the debt issuance on October 4, 2021 described in Note 11, the Company does not have any subsequent events to report.
30
ITEM 2.MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATION
Industry Conditions.
The worldwide reinsurance and insurance businesses are highly competitive, as well as cyclical by product and market. As such, financial results tend to fluctuate with periods of constrained availability, higher rates and stronger profits followed by periods of abundant capacity, lower rates and constrained profitability. Competition in the types of reinsurance and insurance business that we underwrite is based on many factors, including the perceived overall financial strength of the reinsurer or insurer, ratings of the reinsurer or insurer by A.M. Best and/or Standard & Poor’s, underwriting expertise, the jurisdictions where the reinsurer or insurer is licensed or otherwise authorized, capacity and coverages offered, premiums charged, other terms and conditions of the reinsurance and insurance business offered, services offered, speed of claims payment and reputation and experience in lines written. Furthermore, the market impact from these competitive factors related to reinsurance and insurance is generally not consistent across lines of business, domestic and international geographical areas and distribution channels.
We compete in the U.S., Bermuda and international reinsurance and insurance markets with numerous global competitors. Our competitors include independent reinsurance and insurance companies, subsidiaries or affiliates of established worldwide insurance companies, reinsurance departments of certain insurance companies, domestic and international underwriting operations, including underwriting syndicates at Lloyd’s of London and certain government sponsored risk transfer vehicles. Some of these competitors have greater financial resources than we do and have established long term and continuing business relationships, which can be a significant competitive advantage. In addition, the lack of strong barriers to entry into the reinsurance business and recently, the securitization of reinsurance and insurance risks through capital markets provide additional sources of potential reinsurance and insurance capacity and competition.
Worldwide insurance and reinsurance market conditions historically have been competitive. Generally, there was ample insurance and reinsurance capacity relative to demand, as well as, additional capital from the capital markets through insurance linked financial instruments. These financial instruments such as side cars, catastrophe bonds and collateralized reinsurance funds, provided capital markets with access to insurance and reinsurance risk exposure. The capital markets demand for these products was being primarily driven by a low interest environment and the desire to achieve greater risk diversification and potentially higher returns on their investments. This increased competition was generally having a negative impact on rates, terms and conditions; however, the impact varies widely by market and coverage.
The industry continues to deal with the impacts of a global pandemic, COVID-19 and its subsequent variants. Globally, many countries mandated that their citizens remain at home and many non-essential businesses have continued to be physically closed. We activated our operational resiliency plan across our global footprint and all of our critical operations are functioning effectively from remote locations. We continue to service and meet the needs of our clients while ensuring the safety and health of our employees and customers.
There continues to be a negative impact on industry underwriting results from the pandemic. These impacts vary significantly from country to country depending on the rate of infections and the corresponding mandated business restrictions.
Prior to the pandemic, there was a growing industry consensus that there was some firming of (re)insurance rates for the areas impacted by the recent catastrophes. The increased frequency of catastrophe losses in 2020 and 2021 appears to be further pressuring the increase of rates. As business activity continues to regain strength, rates also appear to be firming in most lines of business, particularly in the casualty lines that had seen significant losses such as excess casualty and directors’ and officers’ liability. Other casualty lines are experiencing modest rate increase, while some lines such as workers’ compensation were experiencing softer market conditions. It is too early to tell what will be the impact on pricing conditions but it is likely to change depending on the line of business and geography.
31
While we are unable to predict the full impact the pandemic will have on the insurance industry as it continues to have a negative impact on the global economy, we are well positioned to continue to service our clients. Our capital position remains a source of strength, with high quality invested assets, significant liquidity and a low operating expense ratio. Our diversified global platform with its broad mix of products, distribution and geography is resilient.
Financial Summary.
We monitor and evaluate our overall performance based upon financial results. The following table displays a summary of the consolidated net income (loss), ratios and shareholders’ equity for the periods indicated.
|
Three Months Ended |
|
Percentage |
|
Nine Months Ended |
|
Percentage |
||||||||||||||
|
September 30, |
|
Increase/ |
|
September 30, |
|
Increase/ |
||||||||||||||
(Dollars in millions) |
2021 |
|
2020 |
|
(Decrease) |
|
2021 |
|
2020 |
|
(Decrease) |
||||||||||
Gross written premiums |
$ |
3,497.6 |
|
|
$ |
2,791.6 |
|
|
25.3 |
% |
|
$ |
9,619.2 |
|
|
$ |
7,731.8 |
|
|
24.4 |
% |
Net written premiums |
|
3,025.8 |
|
|
|
2,448.7 |
|
|
23.6 |
% |
|
|
8,389.1 |
|
|
|
6,667.6 |
|
|
25.8 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
REVENUES: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Premiums earned |
$ |
2,656.4 |
|
|
$ |
2,205.8 |
|
|
20.4 |
% |
|
$ |
7,602.6 |
|
|
$ |
6,285.0 |
|
|
21.0 |
% |
Net investment income |
|
292.8 |
|
|
|
234.2 |
|
|
25.0 |
|
|
|
960.3 |
|
|
|
420.1 |
|
|
128.6 |
|
Net realized capital gains (losses) |
|
(4.2) |
|
|
|
110.2 |
|
|
-103.8 |
% |
|
|
138.8 |
|
|
|
84.3 |
|
|
64.7 |
|
Other income (expense) |
|
(19.5) |
|
|
|
59.9 |
|
|
-132.6 |
% |
|
|
44.2 |
|
|
|
47.3 |
|
|
-6.5 |
|
Total revenues |
|
2,925.4 |
|
|
|
2,610.2 |
|
|
12.1 |
% |
|
|
8,745.9 |
|
|
|
6,836.7 |
|
|
27.4 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
CLAIMS AND EXPENSES: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Incurred losses and loss adjustment expenses |
|
2,274.3 |
|
|
|
1,736.2 |
|
|
31.0 |
% |
|
|
5,571.9 |
|
|
|
4,574.1 |
|
|
21.8 |
% |
Commission, brokerage, taxes and fees |
|
564.3 |
|
|
|
445.3 |
|
|
26.7 |
% |
|
|
1,611.1 |
|
|
|
1,360.2 |
|
|
18.4 |
% |
Other underwriting expenses |
|
141.2 |
|
|
|
138.9 |
|
|
1.6 |
% |
|
|
424.2 |
|
|
|
385.9 |
|
|
9.9 |
% |
Corporate expenses |
|
17.8 |
|
|
|
10.6 |
|
|
67.8 |
% |
|
|
46.4 |
|
|
|
29.2 |
|
|
58.9 |
% |
Interest, fees and bond issue cost amortization expense |
|
15.5 |
|
|
|
6.6 |
|
|
134.0 |
% |
|
|
46.8 |
|
|
|
21.5 |
|
|
117.8 |
% |
Total claims and expenses |
|
3,013.1 |
|
|
|
2,337.7 |
|
|
28.9 |
% |
|
|
7,700.3 |
|
|
|
6,370.8 |
|
|
20.9 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
INCOME (LOSS) BEFORE TAXES |
|
(87.7) |
|
|
|
272.5 |
|
|
-132.2 |
% |
|
|
1,045.6 |
|
|
|
466.0 |
|
|
124.4 |
|
Income tax expense (benefit) |
|
(14.3) |
|
|
|
29.5 |
|
|
-148.4 |
% |
|
|
97.2 |
|
|
|
15.4 |
|
|
NM |
% |
NET INCOME (LOSS) |
$ |
(73.5) |
|
|
$ |
243.1 |
|
|
-130.2 |
|
|
$ |
948.4 |
|
|
$ |
450.5 |
|
|
110.5 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
RATIOS: |
|
|
|
|
|
|
|
|
Point Change |
|
|
|
|
|
|
|
|
|
Point Change |
||
Loss ratio |
|
85.6 |
% |
|
|
78.7 |
% |
|
6.9 |
|
|
|
73.3 |
% |
|
|
72.8 |
% |
|
0.5 |
|
Commission and brokerage ratio |
|
21.2 |
% |
|
|
20.2 |
% |
|
1.0 |
|
|
|
21.2 |
% |
|
|
21.7 |
% |
|
(0.5) |
|
Other underwriting expense ratio |
|
5.3 |
% |
|
|
6.3 |
% |
|
(1.0) |
|
|
|
5.6 |
% |
|
|
6.1 |
% |
|
(0.5) |
|
Combined ratio |
|
112.2 |
% |
|
|
105.2 |
% |
|
7.0 |
|
|
|
100.1 |
% |
|
|
100.6 |
% |
|
(0.5) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
At |
|
At |
|
Percentage |
|||||
|
|
|
|
|
|
|
|
|
|
|
|
September 30, |
|
December 31, |
|
Increase/ |
|||||
(Dollars in millions, except per share amounts) |
|
|
|
|
|
|
|
|
|
|
|
2021 |
|
2020 |
|
(Decrease) |
|||||
Balance sheet data: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total investments and cash |
|
|
|
|
|
|
|
|
|
|
|
$ |
27,783.7 |
|
|
$ |
25,461.6 |
|
|
9.1 |
% |
Total assets |
|
|
|
|
|
|
|
|
|
|
|
|
36,606.1 |
|
|
|
32,788.4 |
|
|
11.6 |
% |
Loss and loss adjustment expense reserves |
|
|
|
|
|
|
|
|
|
|
|
|
18,957.0 |
|
|
|
16,399.0 |
|
|
15.6 |
% |
Total debt |
|
|
|
|
|
|
|
|
|
|
|
|
1,910.9 |
|
|
|
1,910.4 |
|
|
- |
% |
Total liabilities |
|
|
|
|
|
|
|
|
|
|
|
|
26,627.5 |
|
|
|
23,062.2 |
|
|
15.5 |
% |
Shareholders' equity |
|
|
|
|
|
|
|
|
|
|
|
|
9,978.6 |
|
|
|
9,726.2 |
|
|
2.6 |
% |
Book value per share |
|
|
|
|
|
|
|
|
|
|
|
|
253.40 |
|
|
|
243.25 |
|
|
4.2 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(NM, not meaningful) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Some amounts may not reconcile due to rounding.) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
32
Revenues.
Premiums. Gross written premiums increased by 25.3% to $3,497.6 million for the three months ended September 30, 2021, compared to $2,791.6 million for the three months ended September 30, 2020, reflecting a $401.3 million, or 19.2%, increase in our reinsurance business and a $304.6 million, or 43.2%, increase in our insurance business. The increase in reinsurance premiums was due to increases in most lines of business, notably casualty pro rata business, casualty excess of loss and property catastrophe excess of loss business, as well as $24.0 million positive impact from the movement of foreign exchange rates. The rise in insurance premiums was primarily due to increases in specialty casualty business, professional liability business and short-tail business, including property. Gross written premiums increased by 24.4% to $9,619.2 million for the nine months ended September 30, 2021, compared to $7,731.8 million for the nine months ended September 30, 2020, reflecting a $1,292.5 million, or 23.9%, increase in our reinsurance business and a $594.9 million, or 25.5%, increase in our insurance business. The increase in reinsurance premiums was due to increases in most lines of business, notably property pro rata business, casualty pro rata business and casualty excess of loss, as well as $94.2 million positive impact from the movement of foreign exchange rates. The rise in insurance premiums was primarily due to increases in specialty casualty business, professional liability business and short-tail business, including property, partially offset by a decline in workers’ compensation business.
Net written premiums increased by 23.6% to $3,025.8 million for the three months ended September 30, 2021, compared to $2,448.7 million for the three months ended September 30, 2020. Net written premiums increased by 25.8% to $8,389.1 million for the nine months ended September 30, 2021, compared to $6,667.6 million for the nine months ended September 30, 2020. These increases are consistent with the changes in gross written premiums. Premiums earned increased by 20.4% to $2,656.4 million for the three months ended September 30, 2021, compared to $2,205.8 million for the three months ended September 30, 2020. Premiums earned increased by 21.0% to $7,602.6 million for the nine months ended September 30, 2021, compared to $6,285.0 million for the nine months ended September 30, 2020. The changes in premiums earned relative to net written premiums are the result of timing; premiums are earned ratably over the coverage period whereas written premiums are recorded at the initiation of the coverage period.
Net Investment Income. Net investment income increased to $292.8 million for the three months ended September 30, 2021, compared with investment income of $234.2 million for the three months ended September 30, 2020 and increased to $960.3 million for the nine months ended September 30, 2021, compared to $420.1 million for the nine months ended September 30, 2020. Net pre-tax investment income, as a percentage of average invested assets, was 4.4% for the three months ended September 30, 2021 and 2020. Net pre-tax investment income, as a percentage of average invested assets, was 5.0% for the nine months ended September 30, 2021 compared to 2.7% for the nine months ended September 30, 2020. The increases in both income and yield were primarily the result of a significant increase in limited partnership income and higher income from other alternative investments. The limited partnership income primarily reflects increases in their reported net asset values. As such, until these asset values are monetized and the resultant income is distributed, they are subject to future increases or decreases in the asset value, and the results may be volatile.
Net Realized Capital Gains (Losses). Net realized capital losses were $4.2 million and net realized capital gains were $110.2 million for the three months ended September 30, 2021 and 2020, respectively. The net realized capital losses of $4.2 million for the three months ended September 30, 2021 were comprised of $4.6 million of net losses from fair value re-measurements and $7.3 million of allowances for credit losses, partially offset by $7.7 million of net realized capital gains from sales of investments. The net realized capital gains of $110.2 million for the three months ended September 30, 2020 were comprised of $100.0 million of net gains from fair value re-measurements, resulting primarily from increases in equity security valuations which rebounded from declines in the first quarter of 2020, $6.2 million from a decline in net allowances for credit losses and $4.0 million of net realized capital gains from sales of investments.
Net realized capital gains were $138.8 million and $84.3 million for the nine months ended September 30, 2021 and 2020, respectively. The net realized capital gains of $138.8 million for the nine months ended September 30, 2021 were comprised of $128.0 million of net gains from fair value re-measurements and $41.0 million of net
33
realized capital gains from sales of investments, partially offset by $30.2 million of allowances for credit losses. The net realized capital gains of $84.3 million for the nine months ended September 30, 2020 were comprised of $116.3 million of net gains from fair value re-measurements, partially offset by $19.6 million of net allowances for credit losses and $12.4 million of net realized capital losses from sales of investments.
Other Income (Expense). We recorded other expense of $19.5 million and other income of $59.9 million for the three months ended September 30, 2021 and 2020, respectively. We recorded other income of $44.2 million and $47.3 million for the nine months ended September 30, 2021 and 2020, respectively. The changes were primarily the result of fluctuations in foreign currency exchange rates. We recognized foreign currency exchange expense of $16.6 million and foreign currency exchange income of $61.4 million for the three months ended September 30, 2021 and 2020, respectively. We recognized foreign currency exchange income of $44.0 million and $37.9 million for the nine months ended September 30, 2021 and 2020, respectively.
Claims and Expenses.
Incurred Losses and Loss Adjustment Expenses. The following tables present our incurred losses and loss adjustment expenses (“LAE”) for the periods indicated.
|
Three Months Ended September 30, |
||||||||||||||||
|
Current |
|
Ratio %/ |
|
Prior |
|
Ratio %/ |
|
Total |
|
Ratio %/ |
||||||
(Dollar in millions) |
Year |
|
Pt Change |
|
Years |
|
Pt Change |
|
Incurred |
|
Pt Change |
||||||
2021 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Attritional |
$ |
1,580.9 |
|
59.5 |
% |
|
$ |
(1.6) |
|
-0.1 |
% |
|
$ |
1,579.3 |
|
59.4 |
% |
Catastrophes |
|
695.0 |
|
26.2 |
% |
|
|
- |
|
- |
% |
|
|
695.0 |
|
26.2 |
% |
Total |
$ |
2,275.9 |
|
85.7 |
% |
|
$ |
(1.6) |
|
-0.1 |
% |
|
$ |
2,274.3 |
|
85.6 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2020 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Attritional |
$ |
1,427.5 |
|
64.8 |
% |
|
$ |
(1.3) |
|
-0.1 |
% |
|
$ |
1,426.2 |
|
64.7 |
% |
Catastrophes |
|
310.0 |
|
14.0 |
% |
|
|
- |
|
- |
% |
|
|
310.0 |
|
14.0 |
% |
Total |
$ |
1,737.5 |
|
78.8 |
% |
|
$ |
(1.3) |
|
-0.1 |
% |
|
$ |
1,736.2 |
|
78.7 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Variance 2021/2020 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Attritional |
$ |
153.4 |
|
(5.3) |
pts |
|
$ |
(0.3) |
|
- |
pts |
|
$ |
153.1 |
|
(5.3) |
pts |
Catastrophes |
|
385.0 |
|
12.2 |
pts |
|
|
- |
|
- |
pts |
|
|
385.0 |
|
12.2 |
pts |
Total |
$ |
538.4 |
|
6.9 |
pts |
|
$ |
(0.3) |
|
- |
pts |
|
$ |
538.1 |
|
6.9 |
pts |
|
Nine Months Ended September 30, |
||||||||||||||||
|
Current |
|
Ratio %/ |
|
Prior |
|
Ratio %/ |
|
Total |
|
Ratio %/ |
||||||
(Dollar in millions) |
Year |
|
Pt Change |
|
Years |
|
Pt Change |
|
Incurred |
|
Pt Change |
||||||
2021 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Attritional |
$ |
4,567.9 |
|
60.1 |
% |
|
$ |
(6.1) |
|
-0.1 |
% |
|
|
4,561.9 |
|
60.0 |
% |
Catastrophes |
|
1,010.0 |
|
13.3 |
% |
|
|
- |
|
- |
% |
|
|
1,010.0 |
|
13.3 |
% |
Total |
$ |
5,577.9 |
|
73.4 |
% |
|
$ |
(6.1) |
|
-0.1 |
% |
|
$ |
5,571.9 |
|
73.3 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2020 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Attritional |
$ |
4,217.6 |
|
67.1 |
% |
|
$ |
1.4 |
|
0.1 |
% |
|
$ |
4,219.1 |
|
67.2 |
% |
Catastrophes |
|
355.0 |
|
5.6 |
% |
|
|
- |
|
- |
% |
|
|
355.0 |
|
5.6 |
% |
Total |
$ |
4,572.6 |
|
72.7 |
% |
|
$ |
1.4 |
|
0.1 |
% |
|
$ |
4,574.1 |
|
72.8 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Variance 2021/2020 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Attritional |
$ |
350.3 |
|
(7.0) |
pts |
|
$ |
(7.5) |
|
(0.2) |
pts |
|
$ |
342.8 |
|
(7.2) |
pts |
Catastrophes |
|
655.0 |
|
7.7 |
pts |
|
|
- |
|
- |
pts |
|
|
655.0 |
|
7.7 |
pts |
Total |
$ |
1,005.3 |
|
0.7 |
pts |
|
$ |
(7.5) |
|
(0.2) |
pts |
|
$ |
997.8 |
|
0.5 |
pts |
Incurred losses and LAE increased by 31.0% to $2,274.3 million for the three months ended September 30, 2021, compared to $1,736.2 million for the three months ended September 30, 2020, primarily due to an increase of $385.0 million in current year catastrophe losses and a rise of $153.4 million in current year attritional losses, mainly due to the impact of the increase in premiums earned. The increase in attritional losses was partially offset by $124.9 million of COVID-19 Pandemic losses incurred in 2020 which did not recur in 2021. The current year catastrophe losses of $695.0 million for the three months ended September 30, 2021 mainly related to Hurricane Ida ($463.0 million) and the European floods ($232.0 million). The $310.0 million of current year catastrophe losses for the three months ended September 30, 2020 related to Hurricane Laura ($131.0 million), the Northern California wildfires ($52.0 million), the California Glass wildfire ($30.0 million), Hurricane Sally
34
($26.0 million), the Oregon wildfires ($21.0 million), Hurricane Isaias ($19.9 million), the Derecho storms ($15.1 million) and the Calgary storms in Canada ($15.0 million).
Incurred losses and LAE increased by 21.8% to $5,571.9 million for the nine months ended September 30, 2021, compared to $4,574.1 million for the nine months ended September 30, 2020, primarily due to an increase of $655.0 million in current year catastrophe losses and a rise of $350.3 million in current year attritional losses, mainly due to the impact of the increase in premiums earned. The increase in attritional losses was partially offset by $434.9 million of COVID-19 Pandemic losses incurred in 2020 which did not recur in 2021. The current year catastrophe losses of $1,010.0 million for the nine months ended September 30, 2021 related primarily to Hurricane Ida ($463.0 million), the Texas winter storms ($285.0 million) and the European floods ($242.0 million) with the rest of the losses emanating from the 2021 Australia floods and Victoria Australia flooding. The $355.0 million of current year catastrophe losses for the nine months ended September 30, 2020 related to Hurricane Laura ($131.0 million), the Northern California wildfires ($52.0 million), the California Glass wildfire ($30.0 million), Hurricane Sally ($26.0 million), the Oregon wildfires ($21.0 million), Hurricane Isaias ($19.9 million), the 2020 U.S. civil unrest ($17.4 million), Nashville tornadoes ($15.2 million), the Derecho storms ($15.1 million) the Calgary storms in Canada ($15.0 million), Australia East Coast Storm ($6.8 million) and the 2020 Australia fires ($5.6 million).
Commission, Brokerage, Taxes and Fees. Commission, brokerage, taxes and fees increased by 26.7% to $564.3 million for the three months ended September 30, 2021, compared to $445.3 million for the three months ended September 30, 2020. Commission, brokerage, taxes and fees increased by 18.4% to $1,611.1 million for the nine months ended September 30, 2021, compared to $1,360.2 million for the nine months ended September 30, 2020. The increases were primarily due to the impact of the increases in premiums earned and changes in the mix of business.
Other Underwriting Expenses. Other underwriting expenses were $141.2 million and $138.9 million for the three months ended September 30, 2021 and 2020, respectively. Other underwriting expenses were $424.2 million and $385.9 million for the nine months ended September 30, 2021 and 2020, respectively. The increases in other underwriting expenses were mainly due to the continued build out of our insurance operations and the impact of the increases in premiums earned.
Corporate Expenses. Corporate expenses, which are general operating expenses that are not allocated to segments, were $17.8 million and $10.6 million for the three months ended September 30, 2021 and 2020, respectively, and $46.4 million and $29.2 million for the nine months ended September 30, 2021 and 2020, respectively. These increases were mainly due to higher compensation expenses from an increased staff count.
Interest, Fees and Bond Issue Cost Amortization Expense. Interest, fees and other bond amortization expense was $15.5 million and $6.6 million for the three months ended September 30, 2021 and 2020, respectively. Interest, fees and other bond amortization expense was $46.8 million and $21.5 million for the nine months ended September 30, 2021 and 2020, respectively. These increases were primarily due to interest expense on the $1,000.0 million senior note issuance in October 2020, partially offset by a decrease due to the movement in the floating interest rate related to the long term subordinated notes, which is reset quarterly per the note agreement. The floating rate was 2.51% as of September 30, 2021.
Income Tax Expense (Benefit). We had an income tax benefit of $14.3 million and an income tax expense of $29.5 million for the three months ended September 30, 2021 and 2020, respectively. We had an income tax expense of $97.2 million and $15.4 million for the nine months ended September 30, 2021 and 2020, respectively. Income tax benefit or expense is primarily a function of the geographic location of the Company’s pre-tax income and the statutory tax rates in those jurisdictions. The annualized effective tax rate (“AETR”) is primarily affected by tax-exempt investment income, qualifying dividends and foreign tax credits. Variations in the AETR generally result from changes in the relative levels of pre-tax income, including the impact of catastrophe losses and net capital gains (losses), among jurisdictions with different tax rates. The changes in income tax expense (benefit) for the three and nine months ended September 30, 2021 as compared to the
35
three and nine months ended September 30, 2020 results primarily from higher investment income from limited partnerships and higher realized investment capital, partially offset by an increase in catastrophe losses.
The CARES Act was passed by Congress and signed into law by the President on March 27, 2020 in response to the COVID-19 Pandemic. Among the provisions of the CARES Act was a special tax provision which allowed companies to elect to carryback five years net operating losses incurred in the 2018, 2019 and/or 2020 tax years. The Tax Cuts and Jobs Act of 2017 had eliminated net operating loss carrybacks for most companies. The Company determined that the special five year loss carryback tax provision provided a tax benefit of $31.0 million which it recorded in the quarter ended March 31, 2020.
Net Income (Loss).
Our net loss was $73.5 million and our net income was $243.1 million for the three months ended September 30, 2021 and 2020, respectively. Our net income was $948.4 million and $450.5 million for the nine months ended September 30, 2021 and 2020, respectively. These changes were primarily driven by the financial component fluctuations explained above.
Ratios.
Our combined ratio increased by 7.0 points to 112.2% for the three months ended September 30, 2021, compared to 105.2% for the three months ended September 30, 2020, and decreased by 0.5 points to 100.1% for the nine months ended September 30, 2021, compared to 100.6% for the nine months ended September 30, 2020. The loss ratio component increased 6.9 points and 0.5 points for the three and nine months ended September 30, 2021 over the same period last year mainly due to increase catastrophe losses, partially offset by COVID-19 Pandemic attritional losses incurred in the three and nine months ended September 30, 2020 which did not re-cur in 2021. The commission and brokerage ratio components increased to 21.2% for the three months ended September 30, 2021 compared to 20.2% for the three months ended September 30, 2020 and decreased to 21.2% for the nine months ended September 30, 2021 compared to 21.7% for the nine months ended September 30, 2020. These changes were mainly due to changes in the mix of business. The other underwriting expense ratios decreased to 5.3% for the three months ended September 30, 2021 compared to 6.3% for the three months ended September 30, 2020 and decreased to 5.6% for the nine months ended September 30, 2021 compared to 6.1% for the nine months ended September 30, 2020. These decreases were mainly due to changes in the mix of business.
Shareholders’ Equity.
Shareholders’ equity increased by $252.5 million to $9,978.6 million at September 30, 2021 from $9,726.2 million at December 31, 2020, principally as a result of $948.4 million of net income, $21.0 million of share-based compensation transactions and $5.6 million of net benefit plan obligation adjustments, net of tax, partially offset by $307.9 million of unrealized depreciation on investments net of tax, the repurchase of 790,920 common shares for $200.1 million, $185.7 million of shareholder dividends and $28.9 million of net foreign currency translation adjustments.
Consolidated Investment Results
Net Investment Income.
Net investment income increased to $292.8 million for the three months ended September 30, 2021, compared with investment income of $234.2 million for the three months ended September 30, 2020. Net investment income increased to $960.3 million for the nine months ended September 30, 2021, compared with investment income of $420.1 million for the nine months ended September 30, 2020. These increases were primarily the result of a significant increase in limited partnership income and higher income from other alternative investments. The limited partnership income primarily reflects increases in their reported net asset values. As such, until these asset values are monetized and the resultant income is distributed, they are subject to future increases or decreases in the asset value, and the results may be volatile.
36
The following table shows the components of net investment income for the periods indicated.
|
Three Months Ended |
|
Nine Months Ended |
||||||||
|
September 30, |
|
September 30, |
||||||||
|
2021 |
|
2020 |
|
2021 |
|
2020 |
||||
Annualized pre-tax yield on average cash and invested assets |
4.4 |
% |
|
4.4 |
% |
|
5.0 |
% |
|
2.7 |
% |
Annualized after-tax yield on average cash and invested assets |
3.8 |
% |
|
3.8 |
% |
|
4.4 |
% |
|
2.3 |
% |
37
Net Realized Capital Gains (Losses).
The following table presents the composition of our net realized capital gains (losses) for the periods indicated.
|
Three Months Ended September 30, |
|
Nine Months Ended September 30, |
||||||||||||||
(Dollars in millions) |
2021 |
|
2020 |
|
Variance |
|
|
2021 |
|
|
2020 |
|
Variance |
||||
Gains (losses) from sales: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fixed maturity securities, market value: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gains |
$ |
17.0 |
|
$ |
18.7 |
|
$ |
(1.7) |
|
$ |
51.7 |
|
$ |
54.1 |
|
$ |
(2.4) |
Losses |
|
(10.8) |
|
|
(13.3) |
|
|
2.5 |
|
|
(26.3) |
|
|
(53.1) |
|
|
26.8 |
Total |
|
6.3 |
|
|
5.4 |
|
|
0.9 |
|
|
25.5 |
|
|
0.9 |
|
|
24.5 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fixed maturity securities, fair value: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gains |
|
- |
|
|
- |
|
|
- |
|
|
- |
|
|
- |
|
|
- |
Losses |
|
- |
|
|
(2.0) |
|
|
2.0 |
|
|
- |
|
|
(2.0) |
|
|
2.0 |
Total |
|
- |
|
|
(2.0) |
|
|
2.0 |
|
|
- |
|
|
(2.0) |
|
|
2.0 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Equity securities, fair value: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gains |
|
2.8 |
|
|
9.5 |
|
|
(6.7) |
|
|
20.9 |
|
|
30.3 |
|
|
(9.4) |
Losses |
|
(3.3) |
|
|
(10.8) |
|
|
7.5 |
|
|
(11.4) |
|
|
(42.9) |
|
|
31.5 |
Total |
|
(0.5) |
|
|
(1.3) |
|
|
0.8 |
|
|
9.5 |
|
|
(12.6) |
|
|
22.1 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Other Invested Assets: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gains |
|
2.4 |
|
|
1.4 |
|
|
1.0 |
|
|
8.0 |
|
|
6.0 |
|
|
2.0 |
Losses |
|
(0.5) |
|
|
(0.3) |
|
|
(0.2) |
|
|
(2.0) |
|
|
(5.9) |
|
|
3.9 |
Total |
|
1.9 |
|
|
1.1 |
|
|
0.8 |
|
|
6.0 |
|
|
0.1 |
|
|
5.9 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Short Term Investments: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gains |
|
- |
|
|
0.8 |
|
|
(0.8) |
|
|
- |
|
|
1.2 |
|
|
(1.2) |
Losses |
|
- |
|
|
- |
|
|
- |
|
|
- |
|
|
- |
|
|
- |
Total |
|
- |
|
|
0.8 |
|
|
(0.8) |
|
|
- |
|
|
1.2 |
|
|
(1.2) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total net realized gains (losses) from sales: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gains |
|
22.2 |
|
|
30.4 |
|
|
(8.2) |
|
|
80.6 |
|
|
91.5 |
|
|
(10.9) |
Losses |
|
(14.6) |
|
|
(26.4) |
|
|
11.8 |
|
|
(39.7) |
|
|
(103.9) |
|
|
64.2 |
Total |
|
7.7 |
|
|
4.0 |
|
|
3.7 |
|
|
41.0 |
|
|
(12.4) |
|
|
53.4 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Allowance for credit losses: |
|
(7.3) |
|
|
6.2 |
|
|
(13.5) |
|
|
(30.2) |
|
|
(19.6) |
|
|
(10.6) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gains (losses) from fair value adjustments: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fixed maturities, fair value |
|
- |
|
|
3.3 |
|
|
(3.3) |
|
|
- |
|
|
1.9 |
|
|
(1.9) |
Equity securities, fair value |
|
(4.6) |
|
|
96.7 |
|
|
(101.3) |
|
|
128.0 |
|
|
114.4 |
|
|
13.6 |
Total |
|
(4.6) |
|
|
100.0 |
|
|
(104.6) |
|
|
128.0 |
|
|
116.3 |
|
|
11.7 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total net realized capital gains (losses) |
$ |
(4.2) |
|
$ |
110.2 |
|
$ |
(114.4) |
|
$ |
138.8 |
|
$ |
84.3 |
|
$ |
54.5 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Some amounts may not reconcile due to rounding.) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net realized capital losses were $4.2 million and net realized capital gains were $110.2 million for the three months ended September 30, 2021 and 2020, respectively. For the three months ended September 30, 2021, we recorded $4.6 million of net losses from fair value re-measurements and $7.3 million of allowances for credit losses, partially offset by $7.7 million of net realized capital gains from sales of investments. For the three months ended September 30, 2020, we recorded $100.0 million of net gains from fair value re-measurements, resulting primarily from increases in equity security valuations which rebounded from declines in the first quarter of 2020, $6.2 million from a decline in net allowances for credit losses and $4.0 million of net realized capital gains from sales of investments. The fixed maturity and equity sales for the three months ended September 30, 2021 and 2020 related primarily to adjusting the portfolios for overall market changes and individual credit shifts.
38
Net realized capital gains were $138.8 million and $84.3 million for the nine months ended September 30, 2021 and 2020, respectively. For the nine months ended September 30, 2021 we recorded $128.0 million of net gains from fair value re-measurements and $41.0 million of net realized capital gains from sales of investments, partially offset by $30.2 million of allowances for credit losses. For the nine months ended September 30, 2020 we recorded $116.3 million of net gains from fair value re-measurements, partially offset by $19.6 million of net allowances for credit losses and $12.4 million of net realized capital losses from sales of investments.
Segment Results.
The Reinsurance operation writes worldwide property and casualty reinsurance and specialty lines of business, on both a treaty and facultative basis, through reinsurance brokers, as well as directly with ceding companies. Business is written in the U.S., Bermuda, and Ireland offices, as well as through branches in Canada, Singapore, the United Kingdom and Switzerland. The Insurance operation writes property and casualty insurance directly and through brokers, surplus lines brokers and general agents within the U.S., Bermuda, Canada and Europe through its offices in the U.S., Canada, United Kingdom, Ireland and a branch in the Netherlands.
These segments are managed independently, but conform with corporate guidelines with respect to pricing, risk management, control of aggregate catastrophe exposures, capital, investments and support operations. Management generally monitors and evaluates the financial performance of these operating segments based upon their underwriting results.
Underwriting results include earned premium less losses and loss adjustment expenses (“LAE”) incurred, commission and brokerage expenses and other underwriting expenses. We measure our underwriting results using ratios, in particular loss, commission and brokerage and other underwriting expense ratios, which, respectively, divide incurred losses, commissions and brokerage and other underwriting expenses by premiums earned.
The Company does not maintain separate balance sheet data for its operating segments. Accordingly, the Company does not review and evaluate the financial results of its operating segments based upon balance sheet data.
Our loss and LAE reserves are management’s best estimate of our ultimate liability for unpaid claims. We re-evaluate our estimates on an ongoing basis, including all prior period reserves, taking into consideration all available information, and in particular, recently reported loss claim experience and trends related to prior periods. Such re-evaluations are recorded in incurred losses in the period in which re-evaluation is made.
The following discusses the underwriting results for each of our segments for the periods indicated.
39
Reinsurance.
The following table presents the underwriting results and ratios for the Reinsurance segment for the periods indicated.
|
Three Months Ended September 30, |
|
Nine Months Ended September 30, |
||||||||||||||||||||||||
(Dollars in millions) |
2021 |
|
2020 |
|
Variance |
|
% Change |
|
2021 |
|
2020 |
|
Variance |
|
% Change |
||||||||||||
Gross written premiums |
$ |
2,488.3 |
|
|
$ |
2,087.0 |
|
|
$ |
401.3 |
|
19.2 |
% |
|
$ |
6,695.6 |
|
|
$ |
5,403.1 |
|
|
$ |
1,292.5 |
|
23.9 |
% |
Net written premiums |
|
2,293.0 |
|
|
|
1,936.9 |
|
|
|
356.1 |
|
18.4 |
% |
|
|
6,265.8 |
|
|
|
4,974.0 |
|
|
|
1,291.8 |
|
26.0 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Premiums earned |
$ |
1,976.5 |
|
|
$ |
1,669.3 |
|
|
$ |
307.2 |
|
18.4 |
% |
|
$ |
5,674.7 |
|
|
$ |
4,656.7 |
|
|
$ |
1,018.0 |
|
21.9 |
% |
Incurred losses and LAE |
|
1,766.2 |
|
|
|
1,335.0 |
|
|
|
431.2 |
|
32.3 |
% |
|
|
4,206.2 |
|
|
|
3,361.4 |
|
|
|
844.8 |
|
25.1 |
% |
Commission and brokerage |
|
471.1 |
|
|
|
373.3 |
|
|
|
97.8 |
|
26.2 |
% |
|
|
1,353.1 |
|
|
|
1,130.9 |
|
|
|
222.2 |
|
19.6 |
% |
Other underwriting expenses |
|
45.3 |
|
|
|
51.3 |
|
|
|
(6.0) |
|
-11.7 |
% |
|
|
144.4 |
|
|
|
135.2 |
|
|
|
9.2 |
|
6.8 |
% |
Underwriting gain (loss) |
$ |
(306.2) |
|
|
$ |
(90.4) |
|
|
$ |
(215.8) |
|
-238.8 |
% |
|
$ |
(29.0) |
|
|
$ |
29.3 |
|
|
$ |
(58.3) |
|
-199.2 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Point Chg |
|
|
|
|
|
|
|
|
|
|
|
|
Point Chg |
||
Loss ratio |
|
89.4 |
% |
|
|
80.0 |
% |
|
|
|
|
9.4 |
|
|
|
74.1 |
% |
|
|
72.2 |
% |
|
|
|
|
1.9 |
|
Commission and brokerage ratio |
|
23.8 |
% |
|
|
22.3 |
% |
|
|
|
|
1.5 |
|
|
|
23.8 |
% |
|
|
24.3 |
% |
|
|
|
|
(0.4) |
|
Other underwriting expense ratio |
|
2.3 |
% |
|
|
3.1 |
% |
|
|
|
|
(0.8) |
|
|
|
2.5 |
% |
|
|
2.9 |
% |
|
|
|
|
(0.4) |
|
Combined ratio |
|
115.5 |
% |
|
|
105.4 |
% |
|
|
|
|
10.1 |
|
|
|
100.5 |
% |
|
|
99.4 |
% |
|
|
|
|
1.1 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(NM, Not Meaningful) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Some amounts may not reconcile due to rounding.) |
Premiums. Gross written premiums increased by 19.2% to $2,488.3 million for the three months ended September 30, 2021 from $2,087.0 million for the three months ended September 30, 2020, due to increases in most lines of business, notably casualty pro rata business, casualty excess of loss business and property catastrophe excess of loss business, as well as a $24.0 million positive impact from the movement of foreign exchange rates. Net written premiums increased by 18.4% to $2,293.0 million for the three months ended September 30, 2021 compared to $1,936.9 million for the three months ended September 30, 2020, which is consistent with the change in gross written premiums. Premiums earned increased by 18.4% to $1,976.5 million for the three months ended September 30, 2021, compared to $1,669.3 million for the three months ended September 30, 2020. The change in premiums earned relative to net written premiums is primarily the result of timing; premiums are earned ratably over the coverage period whereas written premiums are recorded at the initiation of the coverage period.
Gross written premiums increased by 23.9% to $6,695.6 million for the nine months ended September 30, 2021 from $5,403.1 million for the nine months ended September 30, 2020, due to increases in most lines of business, notably property pro rata business, casualty pro rata business and casualty excess of loss, as well as a $94.2 million positive impact from the movement of foreign exchange rates. Net written premiums increased by 26.0% to $6,265.8 million for the nine months ended September 30, 2021 compared to $4,974.0 million for the nine months ended September 30, 2020. The difference between the change in gross written premiums compared to the change in net written premiums was primarily due to varying utilization of reinsurance. Premiums earned increased by 21.9% to $5,674.7 million for the nine months ended September 30, 2021, compared to $4,656.7 million for the nine months ended September 30, 2020. The change in premiums earned relative to net written premiums is primarily the result of timing; premiums are earned ratably over the coverage period whereas written premiums are recorded at the initiation of the coverage period.
40
Incurred Losses and LAE. The following table presents the incurred losses and LAE for the Reinsurance segment for the periods indicated.
|
Three Months Ended September 30, |
||||||||||||||||
|
Current |
|
Ratio %/ |
|
Prior |
|
Ratio %/ |
|
Total |
|
Ratio %/ |
||||||
(Dollars in millions) |
Year |
|
Pt Change |
|
Years |
|
Pt Change |
|
Incurred |
|
Pt Change |
||||||
2021 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Attritional |
$ |
1,152.8 |
|
58.3 |
% |
|
$ |
(1.6) |
|
-0.1 |
% |
|
|
1,151.2 |
|
58.2 |
% |
Catastrophes |
|
615.0 |
|
31.1 |
% |
|
|
- |
|
- |
% |
|
|
615.0 |
|
31.1 |
% |
Total Segment |
$ |
1,767.8 |
|
89.4 |
% |
|
$ |
(1.6) |
|
-0.1 |
% |
|
$ |
1,766.2 |
|
89.4 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2020 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Attritional |
$ |
1,063.8 |
|
63.8 |
% |
|
$ |
(1.3) |
|
-0.1 |
% |
|
$ |
1,062.5 |
|
63.7 |
% |
Catastrophes |
|
272.5 |
|
16.3 |
% |
|
|
- |
|
- |
% |
|
|
272.5 |
|
16.3 |
% |
Total Segment |
$ |
1,336.3 |
|
80.1 |
% |
|
$ |
(1.3) |
|
-0.1 |
% |
|
$ |
1,335.0 |
|
80.0 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Variance 2021/2020 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Attritional |
$ |
89.0 |
|
(5.5) |
pts |
|
$ |
(0.3) |
|
- |
pts |
|
$ |
88.7 |
|
(5.5) |
pts |
Catastrophes |
|
342.5 |
|
14.8 |
pts |
|
|
- |
|
- |
pts |
|
|
342.5 |
|
14.8 |
pts |
Total Segment |
$ |
431.5 |
|
9.3 |
pts |
|
$ |
(0.3) |
|
- |
pts |
|
$ |
431.2 |
|
9.4 |
pts |
|
Nine Months Ended September 30, |
||||||||||||||||
|
Current |
|
Ratio %/ |
|
Prior |
|
Ratio %/ |
|
Total |
|
Ratio %/ |
||||||
(Dollars in millions) |
Year |
|
Pt Change |
|
Years |
|
Pt Change |
|
Incurred |
|
Pt Change |
||||||
2021 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Attritional |
$ |
3,338.6 |
|
58.8 |
% |
|
$ |
(4.9) |
|
-0.1 |
% |
|
|
3,333.7 |
|
58.7 |
% |
Catastrophes |
|
872.5 |
|
15.4 |
% |
|
|
- |
|
- |
% |
|
|
872.5 |
|
15.4 |
% |
Total Segment |
$ |
4,211.1 |
|
74.2 |
% |
|
$ |
(4.9) |
|
-0.1 |
% |
|
$ |
4,206.2 |
|
74.1 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2020 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Attritional |
$ |
3,067.5 |
|
65.9 |
% |
|
$ |
(3.1) |
|
-0.1 |
% |
|
$ |
3,064.4 |
|
65.8 |
% |
Catastrophes |
|
297.0 |
|
6.4 |
% |
|
|
- |
|
- |
% |
|
|
297.0 |
|
6.4 |
% |
Total Segment |
$ |
3,364.5 |
|
72.3 |
% |
|
$ |
(3.1) |
|
-0.1 |
% |
|
$ |
3,361.4 |
|
72.2 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Variance 2021/2020 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Attritional |
$ |
271.1 |
|
(7.1) |
pts |
|
$ |
(1.8) |
|
- |
pts |
|
$ |
269.3 |
|
(7.1) |
pts |
Catastrophes |
|
575.5 |
|
9.0 |
pts |
|
|
- |
|
- |
pts |
|
|
575.5 |
|
9.0 |
pts |
Total Segment |
$ |
846.6 |
|
1.9 |
pts |
|
$ |
(1.8) |
|
- |
pts |
|
$ |
844.8 |
|
1.9 |
pts |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Incurred losses increased by 32.3% to $1,766.2 million for the three months ended September 30, 2021, compared to $1,335.0 million for the three months ended September 30, 2020. The increase was primarily due to an increase of $342.5 million in current year catastrophe losses, as well as an increase of $89.0 million in current year attritional losses, mainly related to the impact of the increase in premiums earned, and partially offset by $109.9 million of COVID-19 Pandemic losses incurred in 2020 which did not recur in 2021. The current year catastrophe losses of $615.0 million for the three months ended September 30, 2021 related primarily to Hurricane Ida ($383.0 million) and the European floods ($232.0 million). The $272.5 million of current year catastrophe losses for the three months ended September 30, 2020 related primarily to Hurricane Laura ($116.0 million), the Northern California wildfires ($52.0 million), the California Glass wildfire ($30.0 million), the Oregon wildfires ($21.0 million), Hurricane Isaias ($17.9 million), the Derecho storms ($13.1 million), the Calgary storms in Canada ($12.5 million) and Hurricane Sally ($10.0 million).
Incurred losses increased by 25.1% to $4,206.2 million for the nine months ended September 30, 2021, compared to $3,361.4 million for the nine months ended September 30, 2020. The increase was primarily due to an increase of $575.5 million in current year catastrophe losses and an increase of $271.1 million in current year attritional losses, mainly related to the impact of the increase in premiums earned. The increase in attritional losses was partially offset by $351.0 million of COVID-19 Pandemic losses incurred in 2020 which did not re-cur in 2021. The current year catastrophe losses of $872.5 million for the nine months ended September 30, 2021 related primarily to Hurricane Ida ($383.0 million), the European floods ($242.0 million) and the Texas winter storms ($227.5 million) with the rest of the losses emanating from the 2021 Australia floods and the Victoria Australia flooding. The $297.0 million of current year catastrophe losses for the nine months ended September
41
30, 2020 related primarily to Hurricane Laura ($116.0 million), the Northern California wildfires ($52.0 million), the California Glass wildfire ($30.0 million), the Oregon wildfires ($21.0 million), Hurricane Isaias ($17.9 million), the Derecho storms ($13.1 million), the Calgary storms in Canada ($12.5 million), Hurricane Sally ($10.0 million), the Nashville tornadoes ($9.7 million), the Australia East Coast storm ($6.8 million), the Australia fires ($5.6 million) and the 2020 U.S. Civil Unrest ($2.4 million).
Segment Expenses. Commission and brokerage expenses increased by 26.2% to $471.1 million for the three months ended September 30, 2021 compared to $373.3 million for the three months ended September 30, 2020. Commission and brokerage expenses increased by 19.6% to $1,353.1 million for the nine months ended September 30, 2021 compared to $1,130.9 million for the nine months ended September 30, 2020. These increases were mainly due to the impact of the increases in premiums earned and changes in the mix of business.
Segment other underwriting expenses decreased to $45.3 million for the three months ended September 30, 2021 from $51.3 million for the three months ended September 30, 2020. The quarter over quarter decline was mainly due to changes in the mix of business. Segment other underwriting expenses increased to $144.4 million for the nine months ended September 30, 2021 from $135.2 million for the nine months ended September 30, 2020. The year over year increase was mainly due to the impact of the changes in premiums earned.
Insurance.
The following table presents the underwriting results and ratios for the Insurance segment for the periods indicated.
|
Three Months Ended September 30, |
|
Nine Months Ended September 30, |
||||||||||||||||||||||||
(Dollars in millions) |
2021 |
|
2020 |
|
Variance |
|
% Change |
|
2021 |
|
2020 |
|
Variance |
|
% Change |
||||||||||||
Gross written premiums |
$ |
1,009.3 |
|
|
$ |
704.6 |
|
|
$ |
304.7 |
|
43.2 |
% |
|
$ |
2,923.6 |
|
|
$ |
2,328.7 |
|
|
$ |
594.9 |
|
25.5 |
% |
Net written premiums |
|
732.8 |
|
|
|
511.8 |
|
|
|
221.0 |
|
43.2 |
% |
|
|
2,123.3 |
|
|
|
1,693.6 |
|
|
|
429.7 |
|
25.4 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Premiums earned |
$ |
679.9 |
|
|
$ |
536.6 |
|
|
$ |
143.3 |
|
26.7 |
% |
|
$ |
1,927.9 |
|
|
$ |
1,628.3 |
|
|
$ |
299.6 |
|
18.4 |
% |
Incurred losses and LAE |
|
508.1 |
|
|
|
401.2 |
|
|
|
106.9 |
|
26.7 |
% |
|
|
1,365.6 |
|
|
|
1,212.7 |
|
|
|
152.9 |
|
12.6 |
% |
Commission and brokerage |
|
93.3 |
|
|
|
72.1 |
|
|
|
21.2 |
|
29.4 |
% |
|
|
258.0 |
|
|
|
229.2 |
|
|
|
28.8 |
|
12.6 |
% |
Other underwriting expenses |
|
95.8 |
|
|
|
87.5 |
|
|
|
8.3 |
|
9.4 |
% |
|
|
279.8 |
|
|
|
250.7 |
|
|
|
29.1 |
|
11.6 |
% |
Underwriting gain (loss) |
$ |
(17.2) |
|
|
$ |
(24.2) |
|
|
$ |
6.9 |
|
29.0 |
% |
|
$ |
24.5 |
|
|
$ |
(64.3) |
|
|
$ |
88.8 |
|
138.0 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Point Chg |
|
|
|
|
|
|
|
|
|
|
|
|
Point Chg |
||
Loss ratio |
|
74.7 |
% |
|
|
74.8 |
% |
|
|
|
|
- |
|
|
|
70.8 |
% |
|
|
74.6 |
% |
|
|
|
|
-3.8 |
|
Commission and brokerage ratio |
|
13.7 |
% |
|
|
13.4 |
% |
|
|
|
|
0.3 |
|
|
|
13.4 |
% |
|
|
14.0 |
% |
|
|
|
|
-0.6 |
|
Other underwriting expense ratio |
|
14.1 |
% |
|
|
16.3 |
% |
|
|
|
|
-2.2 |
|
|
|
14.5 |
% |
|
|
15.4 |
% |
|
|
|
|
-0.9 |
|
Combined ratio |
|
102.5 |
% |
|
|
104.5 |
% |
|
|
|
|
-2.0 |
|
|
|
98.7 |
% |
|
|
104.0 |
% |
|
|
|
|
-5.3 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(NM not meaningful) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Some amounts may not reconcile due to rounding.) |
Premiums. Gross written premiums increased by 43.2% to $1,009.3 million for the three months ended September 30, 2021 compared to $704.6 million for the three months ended September 30, 2020. This rise was primarily related to increases in specialty casualty business, professional liability business and short-tail business, including property. Net written premiums increased by 43.2% to $732.8 million for the three months ended September 30, 2021 compared to $511.8 million for the three months ended September 30, 2020, which is consistent with the change in gross written premiums. Premiums earned increased 26.7% to $679.9 million for the three months ended September 30, 2021 compared to $536.6 million for the three months ended September 30, 2020. The change in premiums earned relative to net written premiums is the result of timing; premiums are earned ratably over the coverage period whereas written premiums are recorded at the initiation of the coverage period.
42
Gross written premiums increased by 25.5% to $2,923.6 million for the nine months ended September 30, 2021 compared to $2,328.7 million for the nine months ended September 30, 2020. This rise was related to increases in specialty casualty business, professional liability business and short-tail business, including property, partially offset by a decline in workers’ compensation business. Net written premiums increased by 25.4% to $2,123.3 million for the nine months ended September 30, 2021 compared to $1,693.6 million for the nine months ended September 30, 2020, which is consistent with the change in gross written premiums. Premiums earned increased by 18.4% to $1,927.9 million for the nine months ended September 30, 2021 compared to $1,628.3 million for the nine months ended September 30, 2020. The change in premiums earned relative to net written premiums is the result of timing; premiums are earned ratably over the coverage period whereas written premiums are recorded at the initiation of the coverage period.
Incurred Losses and LAE. The following table presents the incurred losses and LAE for the Insurance segment for the periods indicated.
|
Three Months Ended September 30, |
||||||||||||||||
|
Current |
|
Ratio %/ |
|
Prior |
|
Ratio %/ |
|
Total |
|
Ratio %/ |
||||||
(Dollars in millions) |
Year |
|
Pt Change |
|
Years |
|
Pt Change |
|
Incurred |
|
Pt Change |
||||||
2021 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Attritional |
$ |
428.1 |
|
63.0 |
% |
|
$ |
- |
|
- |
% |
|
|
428.1 |
|
63.0 |
% |
Catastrophes |
|
80.0 |
|
11.8 |
% |
|
|
- |
|
- |
% |
|
|
80.0 |
|
11.8 |
% |
Total Segment |
$ |
508.1 |
|
74.7 |
% |
|
$ |
- |
|
- |
% |
|
$ |
508.1 |
|
74.7 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2020 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Attritional |
$ |
363.7 |
|
67.8 |
% |
|
$ |
- |
|
- |
% |
|
$ |
363.7 |
|
67.8 |
% |
Catastrophes |
|
37.5 |
|
7.0 |
% |
|
|
- |
|
- |
% |
|
|
37.5 |
|
7.0 |
% |
Total Segment |
$ |
401.2 |
|
74.8 |
% |
|
$ |
- |
|
- |
% |
|
$ |
401.2 |
|
74.8 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Variance 2021/2020 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Attritional |
$ |
64.4 |
|
(4.8) |
pts |
|
$ |
- |
|
- |
pts |
|
$ |
64.4 |
|
(4.8) |
pts |
Catastrophes |
|
42.5 |
|
4.8 |
pts |
|
|
- |
|
- |
pts |
|
|
42.5 |
|
4.8 |
pts |
Total Segment |
$ |
106.9 |
|
- |
pts |
|
$ |
- |
|
- |
pts |
|
$ |
106.9 |
|
- |
pts |
|
Nine Months Ended September 30, |
||||||||||||||||
|
Current |
|
Ratio %/ |
|
Prior |
|
Ratio %/ |
|
Total |
|
Ratio %/ |
||||||
(Dollars in millions) |
Year |
|
Pt Change |
|
Years |
|
Pt Change |
|
Incurred |
|
Pt Change |
||||||
2021 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Attritional |
$ |
1,229.3 |
|
63.8 |
% |
|
$ |
(1.2) |
|
-0.1 |
% |
|
|
1,228.1 |
|
63.7 |
% |
Catastrophes |
|
137.5 |
|
7.1 |
% |
|
|
- |
|
- |
% |
|
|
137.5 |
|
7.1 |
% |
Total Segment |
$ |
1,366.8 |
|
70.9 |
% |
|
$ |
(1.2) |
|
-0.1 |
% |
|
$ |
1,365.6 |
|
70.8 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2020 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Attritional |
$ |
1,150.1 |
|
70.7 |
% |
|
$ |
4.6 |
|
0.3 |
% |
|
$ |
1,154.7 |
|
71.0 |
% |
Catastrophes |
|
58.0 |
|
3.6 |
% |
|
|
- |
|
- |
% |
|
|
58.0 |
|
3.6 |
% |
Total Segment |
$ |
1,208.1 |
|
74.3 |
% |
|
$ |
4.6 |
|
0.3 |
% |
|
$ |
1,212.7 |
|
74.6 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Variance 2021/2020 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Attritional |
$ |
79.2 |
|
(6.9) |
pts |
|
$ |
(5.8) |
|
(0.4) |
pts |
|
$ |
73.4 |
|
(7.3) |
pts |
Catastrophes |
|
79.5 |
|
3.5 |
pts |
|
|
- |
|
- |
pts |
|
|
79.5 |
|
3.5 |
pts |
Total Segment |
$ |
158.7 |
|
(3.4) |
pts |
|
$ |
(5.8) |
|
(0.4) |
pts |
|
$ |
152.9 |
|
(3.8) |
pts |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Some amounts may not reconcile due to rounding.) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Incurred losses and LAE increased by 26.7% to $508.1 million for the three months ended September 30, 2021 compared to $401.2 million for the three months ended September 30, 2020. The increase was mainly due to an increase in current year attritional losses of $64.4 million primarily related to the impact of the increase in premiums earned, as well as an increase of $42.5 million in current year catastrophe losses. The increase in attritional losses was partially offset by $15.0 million of COVID-19 Pandemic losses incurred in 2020 which did not recur in 2021. The current year catastrophe losses of $80.0 million for the three months ended September 30, 2021 related to Hurricane Ida. The $37.5 million of current year catastrophe losses for the three months ended September 30, 2020 related to Hurricane Sally ($16.0 million), Hurricane Laura ($15.0 million), the Calgary storms in Canada ($2.5 million), the Derecho storms ($2.0 million) and Hurricane Isaias ($2.0 million).
43
Incurred losses and LAE increased by 12.6% to $1,365.6 million for the nine months ended September 30, 2021 compared to $1,212.7 million for the nine months ended September 30, 2020. The increase was mainly due to an increase in current year catastrophe losses of $79.5 million and an increase of $79.2 million in current year attritional losses primarily related to the impact of the increase in premiums earned. The increase in attritional losses was partially offset by $84.0 million of COVID-19 Pandemic losses incurred in 2020 which did not recur in 2021. The current year catastrophe losses of $137.5 million for the nine months ended September 30, 2021 related to Hurricane Ida ($80.0 million) and the Texas winter storms ($57.5 million). The $58.0 million of current year catastrophe losses for the nine months ended September 30, 2020 related to Hurricane Sally ($16.0 million), Hurricane Laura ($15.0 million), the 2020 U.S. Civil Unrest ($15.0 million), the Nashville tornadoes ($5.5 million), the Calgary storms in Canada ($2.5 million), the Derecho storms ($2.0 million) and Hurricane Isaias ($2.0 million).
Segment Expenses. Commission and brokerage increased by 29.4% to $93.3 million for the three months ended September 30, 2021 compared to $72.1 million for the three months ended September 30, 2020. Commission and brokerage increased by 12.6% to $258.0 million for the nine months ended September 30, 2021 compared to $229.2 million for the nine months ended September 30, 2020. The increases were mainly due to the impact of the increases in premiums earned.
Segment other underwriting expenses increased to $95.8 million for the three months ended September 30, 2021 compared to $87.5 million for the three months ended September 30, 2020. Segment other underwriting expenses increased to $279.8 million for the nine months ended September 30, 2021 compared to $250.7 million for the nine months ended September 30, 2020. The increases were mainly due to the impact of the increases in premiums earned and increased expenses related to the continued build out of the insurance business.
FINANCIAL CONDITION
Cash and Invested Assets. Aggregate invested assets, including cash and short-term investments, were $27,783.7 million at September 30, 2021, an increase of $2,322.1 million compared to $25,461.6 million at December 31, 2020. This increase was primarily the result of $2,790.5 million of cash flows from operations, $543.4 million in equity adjustments of our limited partnership investments, and $13.7 million in fair value re-measurements, partially offset by $344.5 million of pre-tax unrealized depreciation, the repurchases of 790,920 common shares for $200.1 million, $185.7 million paid out in dividends to shareholders, $177.3 million decrease in unsettled securities, $57.1 million of amortization bond premium and $53.3 million due to fluctuations in foreign currencies.
Our principal investment objectives are to ensure funds are available to meet our insurance and reinsurance obligations and to maximize after-tax investment income while maintaining a high quality diversified investment portfolio. Considering these objectives, we view our investment portfolio as having two components: 1) the investments needed to satisfy outstanding liabilities (our core fixed maturities portfolio) and 2) investments funded by our shareholders’ equity.
For the portion needed to satisfy global outstanding liabilities, we generally invest in fixed maturities with an average credit quality of A1. This global fixed maturity securities portfolio is externally managed by independent, professional investment managers using portfolio guidelines approved by internal management.
Over the past several years, we have expanded the allocation of our investments funded by shareholders’ equity to include: 1) a greater percentage of publicly traded equity securities, 2) emerging market fixed maturities through mutual fund structures, as well as individual holdings, 3) high yield fixed maturities, 4) bank and private loan securities and 5) private equity limited partnership investments. The objective of this portfolio diversification is to enhance the risk-adjusted total return of the investment portfolio by allocating a prudent portion of the portfolio to higher return asset classes. We limit our allocation to these asset classes because of
44
1) the potential for volatility in their values and 2) the impact of these investments on regulatory and rating agency capital adequacy models. We use investment managers experienced in these markets and adjust our allocation to these investments based upon market conditions. At September 30, 2021, the market value of investments in these investment market sectors, carried at both market and fair value, approximated 95.6% of shareholders’ equity.
The Company’s limited partnership investments are comprised of limited partnerships that invest in private equities. Generally, the limited partnerships are reported on a quarter lag. We receive annual audited financial statements for all of the limited partnerships which are prepared using fair value accounting in accordance with FASB guidance. For the quarterly reports, the Company reviews the financial reports for any unusual changes in carrying value. If the Company becomes aware of a significant decline in value during the lag reporting period, the loss will be recorded in the period in which the Company identifies the decline.
The tables below summarize the composition and characteristics of our investment portfolio as of the dates indicated.
(Dollars in millions) |
At September 30, 2021 |
|
At December 31, 2020 |
||||||||
Fixed maturities, market value |
$ |
21,623.1 |
|
77.8 |
% |
|
$ |
20,040.2 |
|
78.7 |
% |
Equity securities, fair value |
|
1,523.6 |
|
5.5 |
% |
|
|
1,472.2 |
|
5.8 |
% |
Short-term investments |
|
713.1 |
|
2.6 |
% |
|
|
1,135.0 |
|
4.5 |
% |
Other invested assets |
|
2,855.4 |
|
10.3 |
% |
|
|
2,012.6 |
|
7.9 |
% |
Cash |
|
1,068.4 |
|
3.8 |
% |
|
|
801.7 |
|
3.1 |
% |
Total investments and cash |
$ |
27,783.7 |
|
100.0 |
% |
|
$ |
25,461.6 |
|
100.0 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
(Some amounts may not reconcile due to rounding.) |
|
|
|
|
|
|
|
|
|
|
|
|
At |
|
At |
||
|
September 30, 2021 |
|
December 31, 2020 |
||
Fixed income portfolio duration (years) |
3.3 |
|
|
3.6 |
|
Fixed income composite credit quality |
A1 |
|
|
Aa3 |
|
The following table provides a comparison of our total return by asset class relative to broadly accepted industry benchmarks for the periods indicated:
|
Nine Months Ended |
|
Twelve Months Ended |
||
|
September 30, 2021 |
|
December 31, 2020 |
||
Fixed income portfolio total return |
0.5 |
% |
|
6.3 |
% |
Barclay's Capital - U.S. aggregate index |
(1.6) |
% |
|
7.5 |
% |
|
|
|
|
|
|
Common equity portfolio total return |
11.6 |
% |
|
26.7 |
% |
S&P 500 index |
15.9 |
% |
|
18.4 |
% |
|
|
|
|
|
|
Other invested asset portfolio total return |
33.8 |
% |
|
8.3 |
% |
The pre-tax equivalent total return for the bond portfolio was approximately (0.5)% and 5.3%, respectively, for the nine months ended September 30, 2021 and the twelve months ended December 31, 2020. The pre-tax equivalent return adjusts the yield on tax-exempt bonds to the fully taxable equivalent.
Our fixed income and equity portfolios have different compositions than the benchmark indexes. Our fixed income portfolios have a shorter duration because we align our investment portfolio with our liabilities. We also hold foreign securities to match our foreign liabilities while the index is comprised of only U.S. securities. Our equity portfolios reflect an emphasis on dividend yield and growth equities, while the index is comprised of the largest 500 equities by market capitalization.
45
Reinsurance Recoverables.
Reinsurance recoverables for both paid and unpaid losses totaled $2,215.4 million and $1,994.6 million at September 30, 2021 and December 31, 2020, respectively. At September 30, 2021, $778.7 million, or 35.1%, was receivable from Mt. Logan Re collateralized segregated accounts; $205.6 million, or 9.3%, was receivable from Munich Reinsurance America, Inc. (“Munich Re”) and $110.9 million or 5.0% was receivable from Endurance Specialty Holdings, Ltd. (“Endurance”). No other retrocessionaire accounted for more than 5% of our recoverables.
Loss and LAE Reserves. Gross loss and LAE reserves totaled $18,957.0 million and $16,399.0 million at September 30, 2021 and December 31, 2020, respectively.
The following tables summarize gross outstanding loss and LAE reserves by segment, classified by case reserves and IBNR reserves, for the periods indicated.
|
At September 30, 2021 |
||||||||||
|
Case |
|
IBNR |
|
Total |
|
% of |
||||
(Dollars in millions) |
Reserves |
|
Reserves |
|
Reserves |
|
Total |
||||
Reinsurance |
$ |
5,497.6 |
|
$ |
8,304.1 |
|
$ |
13,801.7 |
|
72.8 |
% |
Insurance |
|
1,354.5 |
|
|
3,619.8 |
|
|
4,974.3 |
|
26.2 |
% |
Total excluding A&E |
|
6,852.1 |
|
|
11,923.9 |
|
|
18,776.0 |
|
99.0 |
% |
A&E |
|
167.8 |
|
|
13.1 |
|
|
180.9 |
|
1.0 |
% |
Total including A&E |
$ |
7,019.9 |
|
$ |
11,937.0 |
|
$ |
18,957.0 |
|
100.0 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
(Some amounts may not reconcile due to rounding.) |
|
|
|
|
|
|
|
|
|
|
|
|
At December 31, 2020 |
||||||||||
|
Case |
|
IBNR |
|
Total |
|
% of |
||||
(Dollars in millions) |
Reserves |
|
Reserves |
|
Reserves |
|
Total |
||||
Reinsurance |
$ |
5,092.7 |
|
$ |
6,723.8 |
|
$ |
11,816.5 |
|
72.1 |
% |
Insurance |
|
1,282.1 |
|
|
3,082.6 |
|
|
4,364.8 |
|
26.6 |
% |
Total excluding A&E |
|
6,374.8 |
|
|
9,806.4 |
|
|
16,181.3 |
|
98.7 |
% |
A&E |
|
184.0 |
|
|
33.8 |
|
|
217.7 |
|
1.3 |
% |
Total including A&E |
$ |
6,558.8 |
|
$ |
9,840.2 |
|
$ |
16,399.0 |
|
100.0 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
(Some amounts may not reconcile due to rounding.) |
|
|
|
|
|
|
|
|
|
|
|
Changes in premiums earned and business mix, reserve re-estimations, catastrophe losses and changes in catastrophe loss reserves and claim settlement activity all impact loss and LAE reserves by segment and in total.
Our loss and LAE reserves represent management’s best estimate of our ultimate liability for unpaid claims. We continuously re-evaluate our reserves, including re-estimates of prior period reserves, taking into consideration all available information and, in particular, newly reported loss and claim experience. Changes in reserves resulting from such re-evaluations are reflected in incurred losses in the period when the re-evaluation is made. Our analytical methods and processes operate at multiple levels including individual contracts, groupings of like contracts, classes and lines of business, internal business units, segments, legal entities, and in the aggregate. In order to set appropriate reserves, we make qualitative and quantitative analyses and judgments at these various levels. Additionally, the attribution of reserves, changes in reserves and incurred losses among accident years requires qualitative and quantitative adjustments and allocations at these various levels. We utilize actuarial science, business expertise and management judgment in a manner intended to ensure the accuracy and consistency of our reserving practices. Nevertheless, our reserves are estimates, which are subject to variation, which may be significant.
There can be no assurance that reserves for, and losses from, claim obligations will not increase in the future, possibly by a material amount. However, we believe that our existing reserves and reserving methodologies lessen the probability that any such increase would have a material adverse effect on our financial condition, results of operations or cash flows.
46
Asbestos and Environmental Exposures. A&E exposures represent a separate exposure group for monitoring and evaluating reserve adequacy. The following table summarizes the outstanding loss reserves with respect to A&E reserves on both a gross and net of retrocessions basis for the periods indicated.
With respect to asbestos only, at September 30, 2021, we had net asbestos loss reserves of $167.7 million, or 99.3%, of total net A&E reserves, all of which was for assumed business.
In 2015, we sold Mt. McKinley Insurance Company (“Mt. McKinley”) to Clearwater Insurance Company (“Clearwater”). Concurrently with the closing, we entered into a retrocession treaty with an affiliate of Clearwater. Per the retrocession treaty, we retroceded 100% of the liabilities associated with certain Mt. McKinley policies, which had been reinsured by Bermuda Re. As consideration for entering into the retrocession treaty, Bermuda Re transferred cash of $140.3 million, an amount equal to the net loss reserves as of the closing date. Of the $140.3 million of net loss reserves retroceded, $100.5 million were related to A&E business. The maximum liability retroceded under the retrocession treaty will be $440.3 million, equal to the retrocession payment plus $300.0 million.
On December 20, 2019, the retrocession treaty was amended and included a partial commutation. As a result of this amendment and partial commutation, gross A&E reserves and correspondingly ceded reserves were reduced by $43.4 million. In addition, the maximum liability permitted to be retroceded increased to $450.3 million. We will retain liability for any amounts exceeding the maximum liability retroceded under the retrocession treaty.
Ultimate loss projections for A&E liabilities cannot be accomplished using standard actuarial techniques. We believe that our A&E reserves represent management’s best estimate of the ultimate liability; however, there can be no assurance that ultimate loss payments will not exceed such reserves, perhaps by a significant amount.
Industry analysts use the “survival ratio” to compare the A&E reserves among companies with such liabilities. The survival ratio is typically calculated by dividing a company’s current net reserves by the three year average of annual paid losses. Hence, the survival ratio equals the number of years that it would take to exhaust the current reserves if future loss payments were to continue at historical levels. Using this measurement, our net three year asbestos survival ratio was 5.5 years at September 30, 2021. These metrics can be skewed by individual large settlements occurring in the prior three years and therefore, may not be indicative of the timing of future payments.
Shareholders’ Equity. Our shareholders’ equity increased to $9,978.6 million as of September 30, 2021 from $9,726.2 million as of December 31, 2020. This increase was the result of $948.4 million of net income, $21.0 million of share-based compensation transactions and $5.6 million of net benefit plan obligation adjustments, net of tax, partially offset by $307.9 million of unrealized depreciation on investments net of tax, the repurchase of 790,920 common shares for $200.1 million, $185.7 million of shareholder dividends and $28.9 million of net foreign currency translation adjustments.
LIQUIDITY AND CAPITAL RESOURCES
Capital. Shareholders’ equity at September 30, 2021 and December 31, 2020 was $9,978.6 million and $9,726.2 million, respectively. Management’s objective in managing capital is to ensure its overall capital level, as well as
47
the capital levels of its operating subsidiaries, exceed the amounts required by regulators, the amount needed to support our current financial strength ratings from rating agencies and our own economic capital models. The Company’s capital has historically exceeded these benchmark levels.
Our two main operating companies Bermuda Re and Everest Re are regulated by the Bermuda Monetary Authority (“BMA”) and the State of Delaware, Department of Insurance, respectively. Both regulatory bodies have their own capital adequacy models based on statutory capital as opposed to GAAP basis equity. Failure to meet the required statutory capital levels could result in various regulatory restrictions, including business activity and the payment of dividends to their parent companies.
The regulatory targeted capital and the actual statutory capital for Bermuda Re and Everest Re were as follows:
|
Bermuda Re (1) |
|
Everest Re (2) |
||||||||
|
At December 31, |
|
At December 31, |
||||||||
(Dollars in millions) |
2020 |
|
2019 |
|
2020 |
|
2019 |
||||
Regulatory targeted capital |
$ |
1,923.2 |
|
$ |
2,061.1 |
|
$ |
2,489.8 |
|
$ |
2,001.2 |
Actual capital |
$ |
2,930.3 |
|
$ |
3,197.4 |
|
$ |
5,276.0 |
|
$ |
3,739.1 |
(1) Regulatory targeted capital represents the target capital level from the applicable year's BSCR calculation.
(2) Regulatory targeted capital represents 200% of the RBC authorized control level calculation for the applicable year.
Our financial strength ratings as determined by A.M. Best, Standard & Poor’s and Moody’s are important as they provide our customers and investors with an independent assessment of our financial strength using a rating scale that provides for relative comparisons. We continue to possess significant financial flexibility and access to debt and equity markets as a result of our financial strength, as evidenced by the financial strength ratings as assigned by independent rating agencies.
We maintain our own economic capital models to monitor and project our overall capital, as well as, the capital at our operating subsidiaries. A key input to the economic models is projected income and this input is continually compared to actual results, which may require a change in the capital strategy.
On October 7, 2020, we issued $1,000.0 million of 30 year senior notes at a rate of 3.5%. These senior notes will mature on October 15, 2050 and will pay interest semi-annually.
On October 4, 2021, we issued an additional $1,000.0 million of 31 year senior notes at a rate of 3.125%. These senior notes will mature on October 15, 2052 and will pay interest semi-annually.
During the first three quarters of 2021, we repurchased 790,920 shares for $200.1 million in the open market and paid $185.7 million in dividends to adjust our capital position and enhance long term expected returns to our shareholders. In 2020, we repurchased 970,892 shares for $200.0 million in the open market and paid $249.1 million in dividends to adjust our capital position and enhance long term expected returns to our shareholders. We may at times enter into a Rule 10b5-1 repurchase plan agreement to facilitate the repurchase of shares. On May 22, 2020, our existing Board authorization to purchase up to 30 million of our shares was amended to authorize the purchase of up to 32 million shares. As of September 30, 2021, we had repurchased 30.4 million shares under this authorization.
We also repurchased $13.2 million of our long-term subordinated notes in 2020. We recognized a realized gain of $2.5 million on the repurchase. We may continue, from time to time, to seek to retire portions of our outstanding debt securities through cash repurchases, in open-market purchases, privately negotiated transactions or otherwise. Such repurchases, if any, will be subject to and depend on prevailing market conditions, our liquidity requirements, contractual restrictions and other factors. The amounts involved in any such transactions, individually or in the aggregate, may be material.
48
Liquidity. Our liquidity requirements are generally met from positive cash flow from operations. Positive cash flow results from reinsurance and insurance premiums being collected prior to disbursements for claims, which disbursements generally take place over an extended period after the collection of premiums, sometimes a period of many years. Collected premiums are generally invested, prior to their use in such disbursements, and investment income provides additional funding for loss payments. Our net cash flows from operating activities were $2,790.5 million and $2,190.6 million for the nine months ended September 30, 2021 and 2020, respectively. Additionally, these cash flows reflected net catastrophe loss payments of $525.9 million and $505.9 million for the nine months ended September 30, 2021 and 2020, respectively and net tax payments of $39.8 million and net tax recoveries of $169.1 million for the nine months ended September 30, 2021 and 2020, respectively.
If disbursements for claims and benefits, policy acquisition costs and other operating expenses were to exceed premium inflows, cash flow from reinsurance and insurance operations would be negative. The effect on cash flow from insurance operations would be partially offset by cash flow from investment income. Additionally, cash inflows from investment maturities and dispositions, both short-term investments and longer term maturities are available to supplement other operating cash flows.
As the timing of payments for claims and benefits cannot be predicted with certainty, we maintain portfolios of long term invested assets with varying maturities, along with short-term investments that provide additional liquidity for payment of claims. At September 30, 2021 and December 31, 2020, we held cash and short-term investments of $1,781.6 million and $1,936.6 million, respectively. Our short-term investments are generally readily marketable and can be converted to cash. In addition to these cash and short-term investments, at September 30, 2021, we had $1,621.5 million of available for sale fixed maturity securities maturing within one year or less, $6,826.9 million maturing within one to five years and $6, 528.2 million maturing after five years. Our $1,523.6 million of equity securities are comprised primarily of publicly traded securities that can be easily liquidated. We believe that these fixed maturity and equity securities, in conjunction with the short-term investments and positive cash flow from operations, provide ample sources of liquidity for the expected payment of losses in the near future. We do not anticipate selling a significant amount of securities to pay losses and LAE but have the ability to do so. Sales of securities might result in realized capital gains or losses. At September 30, 2021 we had $472.3 million of net pre-tax unrealized appreciation related to fixed maturity securities, comprised of $626.4 million of pre-tax unrealized appreciation and $154.1 million of pre-tax unrealized depreciation.
Management generally expects annual positive cash flow from operations, which reflects the strength of overall pricing. However, given the recent set of catastrophic events, cash flow from operations may decline and could become negative in the near term as significant claim payments are made related to the catastrophes. However, as indicated above, the Company has ample liquidity to settle its catastrophe claims.
In addition to our cash flows from operations and liquid investments, we also have multiple credit facilities that provide commitment of up to $1,530.0 million and £52.2 million of collateralized standby letters of credit to support business written by our Bermuda operating subsidiaries. In addition, the Company has the ability to request access to an additional $140.0 million of uncommitted credit facilities, which would require approval from the applicable lender.
Effective May 26, 2016, Group, Bermuda Re and Everest International entered into a five year, $800.0 million senior credit facility with a syndicate of lenders, which amended and restated in its entirety the June 22, 2012, four year, $800.0 million senior credit facility. Both the May 26, 2016 and June 22, 2012 senior credit facilities, which have similar terms, are referred to as the “2016 Group Credit Facility”. Wells Fargo Corporation (“Wells Fargo Bank”) is the administrative agent for the 2016 Group Credit Facility, which consists of two tranches. Tranche one provides up to $200.0 million of unsecured revolving credit for liquidity and general corporate purposes, and for the issuance of unsecured standby letters of credit. Tranche two exclusively provides up to $600.0 million for the issuance of standby letters of credit on a collateralized basis.
49
Effective May 26, 2021, the term of the 2016 Group Credit Facility expired. The Company elected not to renew this facility to allow for the replacement by new credit facilities, including the 2021 Bermuda Re Wells Fargo Letter of Credit Facility. As a result, Tranche One of the Group Credit Facility (unsecured revolving credit in the amount of $200.0 million) is no longer effective or available for use. The $600 million of credit availability in Tranche two will be in run-off and able to support standby letters of credit currently in force through December 31, 2021. As of December 31, 2021, the entirety of the 2016 Group Credit Facility will have expired and will no longer be effective.
The Group Credit Facility requires Group to maintain a debt to capital ratio of not greater than 0.35 to 1 and to maintain a minimum net worth. Minimum net worth is an amount equal to the sum of $5,371.0 million plus 25% of consolidated net income for each of Group’s fiscal quarters, for which statements are available ending on or after March 31, 2016 and for which consolidated net income is positive, plus 25% of any increase in consolidated net worth during such period attributable to the issuance of ordinary and preferred shares, which at September 30, 2021, was $6,651.8 million. As of September 30, 2021, the Company was in compliance with all Group Credit Facility covenants.
At September 30, 2021 and December 31, 2020, the Company had no outstanding short-term borrowings from the Group Credit Facility revolving credit line. At September 30, 2021, the Group Credit Facility had $402.3 million outstanding letters of credit under tranche two. At December 31, 2020, the Group Credit Facility had $164.2 million outstanding letters of credit under tranche one and $589.7 million outstanding letters of credit under tranche two.
Effective August 9, 2021 Bermuda Re entered into a new letter of credit issuance facility with Citibank N.A. which superseded the previous letter of credit issuance facility with Citibank N.A. that was effective December 31, 2020. Both of these agreements are referred to as the “Bermuda Re Citibank Letter of Credit Facility”. The current Bermuda Re Letter of Credit Facility provides for the committed issuance of up to $230.0 million of secured letters of credit. In addition, the facility provides for the uncommitted issuance of up to $140.0 million, which may be accessible via written request by the Company and corresponding authorization from Citibank N.A.
At September 30, 2021 and December 31, 2020, the Bermuda Re Citibank Letter of Credit Facility had $200.7 million and $185.5 million of outstanding letters of credit, respectively.
Effective February 23, 2021, Bermuda Re entered into a letter of credit issuance facility with Wells Fargo referred to as the “Bermuda Re Wells Fargo Letter of Credit Facility.” The Bermuda Re Wells Fargo Letter of Credit Facility originally provided for the issuance of up to $50.0 million of secured letters of credit. Effective May 5, 2021, the agreement was amended to provide for the issuance of up to $500.0 million of secured letters of credit.
At September 30, 2021, the Bermuda Re Wells Fargo Letter of Credit Facility had $404.2 million of outstanding letters of credit.
Effective August 9, 2021 Bermuda Re entered into a letter of credit issuance facility with Bayerische Landesbank, an agreement referred to as the “Bermuda Re Bayerische Landesbank Credit Facility”. The Bermuda Re Bayerische Landesbank Credit Facility provides for the committed issuance of up to $200.0 million of secured letters of credit.
At September 30, 2021, the Bermuda Re Bayerische Landesbank Credit Facility had no outstanding letters of credit.
Effective May 12, 2020, Everest International amended its credit facility with Lloyds Bank plc (“Everest International Credit Facility”). The current amendment of the Everest International Credit Facility provides up to £52.2 million for the issuance of standby letters of credit on a collateralized basis.
50
The Everest International Credit Facility requires Group to maintain a debt to capital ratio of not greater than 0.35 to 1 and to maintain a minimum net worth. Minimum net worth is an amount equal to the sum of $6,393.0, million (70% of consolidated net worth as of December 31, 2019), plus 25% of consolidated net income for each of Group’s fiscal quarters, for which statements are available ending on or after January 1, 2019 and for which net income is positive, plus 25% of any increase in consolidated net worth of Group during such period attributable to the issuance of ordinary and preferred shares, which at September 30, 2021, was $6,788.7 million. As of September 30, 2021, the Company was in compliance with all Everest International Credit Facility requirements.
At September 30, 2021 and December 31, 2020, Everest International Credit Facility had £52.2 million of outstanding letters of credit.
Costs incurred in connection with the Group Credit Facility and Everest International Credit Facility were $0 million and $0.1 million for the three months ended September 30, 2021 and 2020, respectively. Costs incurred in connection with the Group Credit Facility and Everest International Credit Facility were $0.2 million and $0.6 million for the nine months ended September 30, 2021 and 2020, respectively.
Everest Re is a member of the Federal Home Loan Banks (“FHLB”) organization, which allows Everest Re to borrow up to 10% of its statutory admitted assets. As of September 30, 2021, Everest Re had admitted assets of approximately $18,874.0 million which provides borrowing capacity of up to approximately $1,887.4 million. As of September 30, 2021, Everest Re had $310.0 million of outstanding borrowings through its FHLB borrowing capacity. The $310.0 million of collateralized borrowings have interest payable at a rate of 0.35%.
Market Sensitive Instruments.
The SEC’s Financial Reporting Release #48 requires registrants to clarify and expand upon the existing financial statement disclosure requirements for derivative financial instruments, derivative commodity instruments and other financial instruments (collectively, “market sensitive instruments”). We do not generally enter into market sensitive instruments for trading purposes.
Our current investment strategy seeks to maximize after-tax income through a high quality, diversified, fixed maturity portfolio, while maintaining an adequate level of liquidity. Our mix of investments is adjusted periodically, consistent with our current and projected operating results and market conditions. The fixed maturity securities in the investment portfolio are comprised of non-trading available for sale securities. Additionally, we have invested in equity securities.
The overall investment strategy considers the scope of present and anticipated Company operations. In particular, estimates of the financial impact resulting from non-investment asset and liability transactions, together with our capital structure and other factors, are used to develop a net liability analysis. This analysis includes estimated payout characteristics for which our investments provide liquidity. This analysis is considered in the development of specific investment strategies for asset allocation, duration and credit quality. The change in overall market sensitive risk exposure principally reflects the asset changes that took place during the period.
Interest Rate Risk. Our $27.8 billion investment portfolio, at September 30, 2021, is principally comprised of fixed maturity securities, which are generally subject to interest rate risk and some foreign currency exchange rate risk, and some equity securities, which are subject to price fluctuations and some foreign exchange rate risk. The overall economic impact of the foreign exchange risks on the investment portfolio is partially mitigated by changes in the dollar value of foreign currency denominated liabilities and their associated income statement impact.
Interest rate risk is the potential change in value of the fixed maturity securities portfolio, including short-term investments, from a change in market interest rates. In a declining interest rate environment, it includes prepayment risk on the $3,341.2 million of mortgage-backed securities in the $21,623.1 million fixed maturity
51
portfolio. Prepayment risk results from potential accelerated principal payments that shorten the average life and thus the expected yield of the security.
The table below displays the potential impact of market value fluctuations and after-tax unrealized appreciation on our fixed maturity portfolio (including $713.1 million of short-term investments) for the period indicated based on upward and downward parallel and immediate 100 and 200 basis point shifts in interest rates. For legal entities with a U.S. dollar functional currency, this modeling was performed on each security individually. To generate appropriate price estimates on mortgage-backed securities, changes in prepayment expectations under different interest rate environments were taken into account. For legal entities with a non-U.S. dollar functional currency, the effective duration of the involved portfolio of securities was used as a proxy for the market value change under the various interest rate change scenarios.
|
Impact of Interest Rate Shift in Basis Points |
||||||||||||||||||
|
At September 30, 2021 |
||||||||||||||||||
|
-200 |
|
|
-100 |
|
0 |
|
|
100 |
|
200 |
||||||||
(Dollars in millions) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Market/Fair Value |
$ |
23,888.3 |
|
|
$ |
23,112.3 |
|
|
$ |
22,336.3 |
|
|
$ |
21,560.2 |
|
|
$ |
20,784.2 |
|
Market/Fair Value Change from Base (%) |
|
6.9 |
% |
|
|
3.5 |
% |
|
|
0.0 |
% |
|
|
(3.5) |
% |
|
|
(6.9) |
% |
Change in Unrealized Appreciation |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
After-tax from Base ($) |
$ |
1,339.0 |
|
|
$ |
669.5 |
|
|
$ |
- |
|
|
$ |
(669.5) |
|
|
$ |
(1,339.0) |
|
We had $18,957.0 million and $16,399.0 million of gross reserves for losses and LAE as of September 30, 2021 and December 31, 2020, respectively. These amounts are recorded at their nominal value, as opposed to present value, which would reflect a discount adjustment to reflect the time value of money. Since losses are paid out over a period of time, the present value of the reserves is less than the nominal value. As interest rates rise, the present value of the reserves decreases and, conversely, as interest rates decline, the present value increases. These movements are the opposite of the interest rate impacts on the fair value of investments. While the difference between present value and nominal value is not reflected in our financial statements, our financial results will include investment income over time from the investment portfolio until the claims are paid. Our loss and loss reserve obligations have an expected duration of approximately 3.8 years, which is reasonably consistent with our fixed income portfolio. If we were to discount our loss and LAE reserves, net of ceded reserves, the discount would be approximately $0.8 billion resulting in a discounted reserve balance of approximately $16.1 billion, representing approximately 72.0% of the value of the fixed maturity investment portfolio funds.
Equity Risk. Equity risk is the potential change in fair and/or market value of the common stock, preferred stock and mutual fund portfolios arising from changing prices. Our equity investments consist of a diversified portfolio of individual securities and mutual funds, which invest principally in high quality common and preferred stocks that are traded on the major exchanges, and mutual fund investments in emerging market debt. The primary objective of the equity portfolio is to obtain greater total return relative to our core bonds over time through market appreciation and income.
The table below displays the impact on fair/market value and after-tax change in fair/market value of a 10% and 20% change in equity prices up and down for the period indicated.
|
Impact of Percentage Change in Equity Fair/Market Values |
|||||||||||||
|
At September 30, 2021 |
|||||||||||||
(Dollars in millions) |
-20% |
|
-10% |
|
0% |
|
10% |
|
20% |
|||||
Fair/Market Value of the Equity Portfolio |
$ |
1,218.9 |
|
$ |
1,371.2 |
|
$ |
1,523.6 |
|
$ |
1,676.0 |
|
$ |
1,828.3 |
After-tax Change in Fair/Market Value |
$ |
(241.2) |
|
$ |
(120.6) |
|
$ |
- |
|
$ |
120.6 |
|
$ |
241.2 |
Foreign Currency Risk. Foreign currency risk is the potential change in value, income and cash flow arising from adverse changes in foreign currency exchange rates. Each of our non-U.S./Bermuda (“foreign”) operations maintains capital in the currency of the country of its geographic location consistent with local regulatory
52
guidelines. Each foreign operation may conduct business in its local currency, as well as the currency of other countries in which it operates. The primary foreign currency exposures for these foreign operations are the Canadian Dollar, the Singapore Dollar, the British Pound Sterling and the Euro. We mitigate foreign exchange exposure by generally matching the currency and duration of our assets to our corresponding operating liabilities. In accordance with FASB guidance, the impact on the market value of available for sale fixed maturities due to changes in foreign currency exchange rates, in relation to functional currency, is reflected as part of other comprehensive income. Conversely, the impact of changes in foreign currency exchange rates, in relation to functional currency, on other assets and liabilities is reflected through net income as a component of other income (expense). In addition, we translate the assets, liabilities and income of non-U.S. dollar functional currency legal entities to the U.S. dollar. This translation amount is reported as a component of other comprehensive income.
Safe Harbor Disclosure.
This report contains forward-looking statements within the meaning of the U.S. federal securities laws. We intend these forward-looking statements to be covered by the safe harbor provisions for forward-looking statements in the federal securities laws. In some cases, these statements can be identified by the use of forward-looking words such as “may”, “will”, “should”, “could”, “anticipate”, “estimate”, “expect”, “plan”, “believe”, “predict”, “potential” and “intend”. Forward-looking statements contained in this report include information regarding our reserves for losses and LAE, the CARES Act, the impact of the Tax Cut and Jobs Act, the adequacy of capital in relation to regulatory required capital, the adequacy of our provision for uncollectible balances, estimates of our catastrophe exposure, the effects of catastrophic and pandemic events on our financial statements, the ability of Everest Re, Holdings, Holdings Ireland, Dublin Holdings, Bermuda Re and Everest International to pay dividends and the settlement costs of our specialized equity index put option contracts. Forward-looking statements only reflect our expectations and are not guarantees of performance. These statements involve risks, uncertainties and assumptions. Actual events or results may differ materially from our expectations. Important factors that could cause our actual events or results to be materially different from our expectations include those discussed under the caption ITEM 1A, “Risk Factors” in the Company’s most recent 10-K filing. We undertake no obligation to update or revise publicly any forward-looking statements, whether as a result of new information, future events or otherwise.
ITEM 3.QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
Market Risk Instruments. See “Liquidity and Capital Resources - Market Sensitive Instruments” in PART I – ITEM 2.
ITEM 4.CONTROLS AND PROCEDURES
As of the end of the period covered by this report, our management carried out an evaluation, with the participation of the Chief Executive Officer and Chief Financial Officer, of the effectiveness of our disclosure controls and procedures (as defined in Rule 13a-15(e) under the Securities Exchange Act of 1934 (the “Exchange Act”)). Based on their evaluation, the Chief Executive Officer and Chief Financial Officer concluded that our disclosure controls and procedures are effective to ensure that information required to be disclosed by us in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in Securities and Exchange Commission’s rules and forms. Our management, with the participation of the Chief Executive Officer and Chief Financial Officer, also conducted an evaluation of our internal control over financial reporting to determine whether any changes occurred during the quarter covered by this report that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting. Based on that evaluation, there has been no such change during the quarter covered by this report.
53
PART II
ITEM 1. LEGAL PROCEEDINGS
In the ordinary course of business, the Company is involved in lawsuits, arbitrations and other formal and informal dispute resolution procedures, the outcomes of which will determine the Company’s rights and obligations under insurance and reinsurance agreements. In some disputes, the Company seeks to enforce its rights under an agreement or to collect funds owing to it. In other matters, the Company is resisting attempts by others to collect funds or enforce alleged rights. These disputes arise from time to time and are ultimately resolved through both informal and formal means, including negotiated resolution, arbitration and litigation. In all such matters, the Company believes that its positions are legally and commercially reasonable. The Company considers the statuses of these proceedings when determining its reserves for unpaid loss and loss adjustment expenses.
Aside from litigation and arbitrations related to these insurance and reinsurance agreements, the Company is not a party to any other material litigation or arbitration.
ITEM 1A. RISK FACTORS
No material changes.
ITEM 2.UNREGISTERED SALES OF EQUITY SECURITIES AND USE OF PROCEEDS
Issuer Purchases of Equity Securities.
Issuer Purchases of Equity Securities |
|||||
|
(a) |
(b) |
(c) |
(d) |
|
|
|
|
|
|
Maximum Number (or |
|
|
|
|
Total Number of |
Approximate Dollar |
|
|
|
|
Shares (or Units) |
Value) of Shares (or |
|
|
|
|
Purchased as Part |
Units) that May Yet |
|
Total Number of |
|
|
of Publicly |
Be Purchased Under |
|
Shares (or Units) |
Average Price Paid |
Announced Plans or |
the Plans or |
|
Period |
Purchased |
per Share (or Unit) |
Programs |
Programs (1) |
|
July 1 - 31, 2021 |
133,949 |
$ |
248.8612 |
133,949 |
2,058,292 |
August 1 - 31, 2021 |
191,560 |
$ |
257.2113 |
191,560 |
1,866,732 |
September 1 - 30, 2021 |
305,222 |
$ |
257.1626 |
299,849 |
1,566,883 |
Total |
630,731 |
$ |
- |
625,358 |
1,566,883 |
(1)On May 22, 2020, the Company’s executive committee of the Board of Directors approved an amendment to the share repurchase program authorizing the Company and/or its subsidiary Holdings, to purchase up to a current aggregate of 32.0 million of the Company’s shares (recognizing that the number of shares authorized for repurchase has been reduced by those shares that have already been purchased) in open market transactions, privately negotiated transactions or both. Currently, the Company and/or its subsidiary Holdings have repurchased 30.4 million of the Company’s shares.
ITEM 3.DEFAULTS UPON SENIOR SECURITIES
None.
ITEM 4.MINE SAFETY DISCLOSURES
Not applicable.
54
ITEM 5.OTHER INFORMATION
None.
ITEM 6.EXHIBITS
Exhibit Index
|
|
Exhibit No. |
Description |
|
|
10.1 |
|
|
|
10.2 |
|
|
|
31.1 |
|
|
|
31.2 |
|
|
|
32.1 |
Section 906 Certification of Juan C. Andrade and Mark Kociancic |
|
|
101.INS |
XBRL Instance Document |
|
|
101.SCH |
XBRL Taxonomy Extension Schema |
|
|
101.CAL |
XBRL Taxonomy Extension Calculation Linkbase |
|
|
101.DEF |
XBRL Taxonomy Extension Definition Linkbase |
|
|
101.LAB |
XBRL Taxonomy Extension Labels Linkbase |
|
|
101.PRE |
XBRL Taxonomy Extension Presentation Linkbase |
|
|
104 |
Cover Page Interactive Data File (embedded within the Inline XBRL document) |
|
|
|
|
|
|
55
Everest Re Group, Ltd.
Signatures
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
Everest Re Group, Ltd. |
|
|
(Registrant) |
|
|
|
|
|
|
|
|
/S/ MARK KOCIANCIC |
|
|
Mark Kociancic |
|
|
Executive Vice President and |
|
|
Chief Financial Officer |
|
|
|
|
|
(Duly Authorized Officer and Principal Financial Officer) |
Dated: November 4, 2021
56
|
Niall Tuckey |
Citibank Europe plc |
|
Director |
1 North Wall Quay |
|
ILOC Product |
Dublin 1, Ireland |
|
|
|
|
|
Tel +353 (1) 622 7430 |
|
|
Fax +353 (1) 622 2741 Niall.Tuckey@Citi.com |
|
|
|
|
|
|
FROM: Citibank Europe plc (the “Bank”)
TO: Everest Reinsurance
(Bermuda) Limited (“Everest Re”)
2nd Floor, Wessex House
45 Reid Street
Hamilton HM DX
Bermuda
Everest
Reinsurance (Bermuda) Limited, UK Branch (“Everest UK”)
40 Lime Street
London EC3M 5BS
United Kingdom
(each and a “Company” and together the “Companies”)
DATE: 9 August 2021
Committed letter of credit facility
1. Amendment and restatement of the Existing Facility Letter
1.1 The Companies and the Bank have entered into a committed letter of credit facility letter dated 31 December 2014, as amended by letters of amendment dated 30 November 2015, 30 December 2016 and 29 December 2017 and by deeds of amendment dated 10 December 2018, 20 December 2019 and 9 December 2020 (the “Existing Facility Letter”).
1.2 With effect on and from 9 August 2021 (the “Effective Date”):
(a) the Existing Facility Letter shall be amended and restated in the form of this letter (this “Committed Facility Letter”) and the facility provided under the Existing Facility Letter shall continue on the terms of this Committed Facility Letter and the uncommitted letter of credit facility letter entered into between the Companies and the Bank on or around the date of this Committed Facility Letter (the “Uncommitted Facility Letter”);
(b) each Existing Standard LC and each Existing FAL LC shall continue to be a Credit for the purposes of the Facility Documents;
(c) each Existing Standard LC shall be subject to the terms of this Committed Facility Letter as if it was originally established under the Committed Facility pursuant to the terms of this Committed Facility Letter; and
(d) each Existing FAL LC shall be subject to the terms of the Uncommitted Facility Letter as if it was originally established under the Uncommitted Facility pursuant to the terms of the Uncommitted Facility Letter.
1.3 The Companies confirm that, on and from the Effective Date:
(a) each Facility Document shall remain in full force and effect; and
(e) the security interests created by or pursuant to each Pledge Agreement shall continue in full force and effect and extend to the obligations of the relevant Company under the Facility Documents.
1.4 Until the Effective Date, the Existing Facility Letter shall remain in full force and effect and each Existing Standard LC and each Existing FAL LC shall continue to be subject to the terms of the Existing Facility Letter.
2. Committed letter of credit facility
3.1 The Committed Facility shall be in a maximum aggregate amount of USD 230,000,000.00 (the “Committed Facility Limit”). The Committed Facility shall be made available jointly to the Companies provided that, for the avoidance of doubt, all or any part of the Committed Facility shall be available to either Company save that a utilisation by one Company shall reduce the remaining availability for itself and the other Company. The aggregate of all utilisations made by the Companies under the Committed Facility shall not exceed the Committed Facility Limit.
3.2 The Committed Facility may be utilised in respect of the establishment of Credits with a maximum tenor of 24 months (inclusive of any notice period to the beneficiaries), provided that the Committed Facility may not be utilised in respect of the establishment of FAL LCs.
3.3 No Credit will be issued under the Committed Facility after 31 December 2023 (the “Availability End Date”) and no Credit will be issued under the Committed Facility unless it is expressed to expire no later than 31 December 2025.
4. Facility Documents
4.1 The Companies have entered into the following documents in relation to facilities offered by the Bank in connection with the Master Agreements:
(f) this Committed Facility Letter;
(g) the Uncommitted Facility Letter;
(h) the Insurance Letters of Credit – Master Agreement (Form 3/CIFS) dated 7 April 2005 and entered into by Everest Re in favour of the Bank (under its previous name of Citibank Ireland Financial Services plc) and Citibank N.A. (the “Everest Re Master Agreement”);
{L0045468; 1}
(i) the Insurance Letters of Credit – Master Agreement (Form 3/CIFS) dated 29 December 2005 and entered into by Everest UK in favour of the Bank (under its previous name of Citibank Ireland Financial Services plc) and Citibank N.A. (the “Everest UK Master Agreement” and together with the Everest Re Master Agreement, the “Master Agreements”);
(j) the fee letter dated on or about the date of this Committed Facility Letter and entered into between the Bank and the Companies in respect of the fees payable by the Companies to the Bank in relation to the Committed Facility and the Uncommitted Facility (the “Fee Letter”);
(k) the Pledge Agreement dated 7 April 2005 and entered into by Everest Re in favour of the Bank (under its previous name of Citibank Ireland Financial Services plc), as amended by amendment agreements dated 10 March 2011 and 14 November 2014 (the “Everest Re Pledge Agreement”);
(l) the Pledge Agreement dated 7 April 2005 and entered into by Everest UK in favour of the Bank (under its previous name of Citibank Ireland Financial Services plc), as amended by amendment agreements dated 15 March 2006 and 14 November 2014 (the “Everest UK Pledge Agreement”, and together with the Everest Re Pledge Agreement the “Pledge Agreements”);
(m) the Collateral Account Control Agreement dated 7 April 2005 and entered into by Everest Re, the Bank (under its previous name of Citibank Ireland Financial Services plc) and The Bank of New York Mellon (under its previous name of The Bank of New York), as amended by an amendment agreement dated 14 November 2014 (the “Everest Re Account Control Agreement”); and
(n) the Collateral Account Control Agreement dated 7 April 2005 and entered into by Everest UK, the Bank (under its previous name of Citibank Ireland Financial Services plc) and The Bank of New York Mellon (under its previous name of The Bank of New York), as amended by amendment agreements dated 15 March 2006, 14 November 2014 and 17 September 2015 (the “Everest UK Account Control Agreement”, and together with the Everest Re Account Control Agreement, the “Account Control Agreements”),
in each case, as amended, varied, supplemented, novated or assigned from time to time.
4.2 In the event of any inconsistency between the terms of this Committed Facility Letter and the terms of any other Facility Document in respect of the terms of the Committed Facility, the terms of this Committed Facility Letter shall prevail.
A Company shall not request the issue of any further Credits on or after the Effective Date until the Bank has received the documents and other evidence specified below in a form and substance satisfactory to the Bank:
(o) this Committed Facility Letter, the Uncommitted Facility Letter and the Fee Letter, each duly executed on behalf of the Companies;
(p) an affirmation letter signed by a director of each Company in respect of the security interests created by or pursuant to each Pledge Agreement; and
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(q) such other documents and other evidence as the Bank may reasonably require prior to the date of issuance of any further Credits on or after the Effective Date.
6.1 Whenever a Company wishes the Bank (which, for purposes of this paragraph 6 shall include any branch or affiliate of the Bank that issues a Credit pursuant hereto) to issue a Credit under the Committed Facility, it shall provide a duly completed application form in accordance with the provisions of the relevant Master Agreement.
6.2 The Bank shall be entitled to examine each request to issue a Credit on a case-by-case basis and, notwithstanding clause 1.1(i) of the relevant Master Agreement during the continuance of this Committed Facility Letter, shall only be entitled to decline any such request without liability where:
(r) such request would cause the Bank to be in breach of any law of any jurisdiction (including non-exclusively any breach of sanctions imposed by the law of the United States of America); or
(s) the Credit requested is in a currency which is not an Approved Currency;
(t) upon the issuance of the requested Credit the provisions of paragraph 3 (Amount and availability) would not be complied with;
(u) the request was received by the Bank after the date falling five (5) days before (but not including) the Availability End Date;
(v) on the date of the request and/or the proposed date of issuance, a Company is in breach (unless such breach is capable of remedy and has been remedied to the satisfaction of the Bank) of any provision of any Facility Documents;
(w) on the date of the request and/or the proposed date of issuance, any of the representations or warranties set out in the Master Agreement is not true in all material respects; and/or
(x) on the proposed date of issuance, any deposit(s) as may have been requested by the Bank to be placed in the accounts established pursuant to the terms of the relevant Pledge Agreement and/or relevant Account Control Agreement have not been carried out to the Bank’s satisfaction.
7.1 The relevant Company shall pay interest on the amount drawn by a Beneficiary under a Credit at the Interest Rate from the date of drawing until the date of reimbursement by the relevant Company.
7.2 Any interest accruing under this paragraph 7 shall be immediately payable by the relevant Company on demand by the Bank. Overdue interest shall be compounded in accordance with the usual practice of the Bank in respect of unauthorised overdrafts.
7.3 Interest due from the Company under this Committed Facility Letter shall be:
(y) calculated and accrue from day to day;
(z) calculated on the basis of the actual number of days elapsed and a 360 day year (or such other day count convention as is market practice for the relevant currency); and
(aa) payable both before and after judgment.
8. Fees
9. Repayment and expiry
9.1 For the avoidance of doubt and without double counting, the reimbursement and indemnification provisions contained within the Master Agreements shall apply in respect of each Credit established or deemed established pursuant to this Committed Facility Letter, including each Existing Standard LC.
9.2 The provisions of paragraph 3.3 shall apply in respect of the expiry of the Committed Facility. The Companies and the Bank may commence negotiations, without being under any obligation,
9.3 on the renewal of the Committed Facility no earlier than 90 days, and no later than 60 days (or such other time period as may be agreed by the Bank), before the Availability End Date.
10. Representations and warranties
Each Company represents and warrants to the Bank, on the date of this Committed Facility Letter and, with reference to paragraph (f)(ii) below only, on each day (by reference to the facts and circumstances then existing) until this Committed Facility Letter is terminated, that:
(bb) it (i) is duly organised, validly existing and (to the extent applicable) in good standing under the laws of its jurisdiction of incorporation or organisation, (ii) is duly qualified to do business and (to the extent applicable) in good standing in each jurisdiction where, because of the nature of its activities or properties, such qualification is required, (iii) has the requisite corporate power and authority and the right to own and operate its properties, to lease the property it operates under lease, and to conduct its business as now and proposed to be conducted, and (iv) has obtained all material licenses, permits, consents or approvals from or by, and has made all filings with, and given all notices to, all governmental authorities having jurisdictions, to the extent required for such ownership, operation and conduct (including, without limitation, the consummation of transactions contemplated by this Committed Facility Letter and the other Facility Documents) as to each of the foregoing, except, in each case in clauses (ii), (iii) and (iv), where the failure to do so would not have a material adverse effect on the financial condition or prospects of the Group;
(cc) the execution, delivery and performance by it of each the Facility Documents and the consummation of the transactions contemplated thereby are within the Company's corporate powers, have been duly authorised by all necessary corporate action, and do not contravene (i) the Company's constitutional documents or (ii) law or any contractual restriction binding on or affecting the Company;
(dd) no authorisation or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any third party is required for the due execution, delivery and performance by it of any Facility Document or in respect of any Credit, except for those authorisations, approvals, actions, notices and filings that have been duly obtained, taken, given or made and are in full force and effect;
(ee) each Facility Document has been duly executed and delivered by each Company and constitutes the legal, valid and binding obligation of it enforceable against it in accordance with its terms, subject to (i) the effect of any applicable bankruptcy, insolvency, reorganisation, moratorium or similar law affecting creditors' rights generally, (ii) the effect of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or law);
(ff) the financial statements included in the most recent 10Q filing, copies of which have been furnished to the Bank, fairly present the financial condition of each Company in all material respects in accordance with generally accepted accounting principles consistently applied. Since the date of such filing there has been no material adverse change to the financial condition or property of each Company; and
(gg) there is no pending or, to the knowledge of each Company, threatened action, suit, investigation, litigation or proceeding affecting any member of the Group before any court, governmental agency or arbitrator that (i) could be reasonably likely to have a material adverse effect on the financial position or prospects of the Group or (ii) purports to affect the legality, validity or enforceability of this Committed Facility Letter or any Facility Documents or the consummation of the transactions contemplated hereby and thereby.
11. Undertakings
Each Company undertakes to the Bank that it shall:
(hh) ensure that the Bank receives each annual report on Form 10-K filed by Everest Re Group Ltd. with SEC as soon as it is available and in any event within 105 days of its financial year end except to the extent such annual report is publicly available on Everest Re Group, Ltd.’s website;
(ii) ensure that the Bank receives each quarterly report on Form 10-Q filed by Everest Re. Group Ltd. with SEC as soon as it is available and in any event within 55 days of the end of the relevant quarter except to the extent such quarterly report is publicly available on each Company’s website; and
(jj) promptly upon it becoming aware of the event, provide the Bank with notice of any change in that Company’s ownership structure such that its ultimate parent (as at the date of this Committed Facility Letter) ceases to own, directly or indirectly, a majority of the equity of the Company or upon any announcement of such a restructuring by the parent. Any such event shall entitle the Bank, at its sole discretion, and upon 60 days’ prior notice to the Companies to terminate the Committed Facility.
12. Amendments to the Master Agreements
12.1 With effect on and from the date of this Committed Facility Letter, the Master Agreements shall be amended as follows:
(kk) clause 13 of the Everest Re Master Agreement shall be amended such that the words “Subject to your receiving our prior written agreement, such agreement not to be unreasonably withheld, you” shall be deleted and replaced with “You”;
(ll) clause 15.1 of the Everest Re Master Agreement shall be deleted and replaced with the following:
“We hereby irrevocably authorise you to debit and credit, on our behalf, in respect of payments due under this Agreement and any associated agreements thereof, any account or accounts which are held in our name with Citibank, N.A.”; and
(mm) clause 10 of the Everest UK Master Agreement shall be amended such that the words “(subject to our consent, such consent not to be unreasonably withheld)” shall be deleted.
12.2 Except as amended by the terms of this Committed Facility Letter, all of the terms and conditions of each of the Master Agreements shall continue to apply and remain in full force and effect.
13. Costs and expenses
Each Company undertakes to indemnify the Bank, on demand, for and against all actions, proceedings, losses, damages, reasonable and documented charges, costs, expenses, claims and demands which the Bank may incur, pay or sustain (apart from the Bank’s own gross negligence or wilful misconduct) in connection with this Committed Facility Letter (including non-exclusively the cost of all registrations and any other legal fees that the Bank incurs in relation to the Committed Facility).
14. Certificates
Without prejudice to each Company’s rights under this Committed Facility Letter, any calculation or demand made, or certificate issued by the Bank specifying any amount due under this Committed Facility Letter or any Facility Documents or any determination of any ratio shall, in the absence of manifest error, be conclusive and binding on each Company.
15. Miscellaneous
15.1 The rights of the Bank under this Committed Facility Letter and the Facility Documents may be exercised as often as necessary; are cumulative and not exclusive of its rights under the general law; and may be waived only in writing and specifically. Delay in exercising or non‑exercise of any such right is not a waiver of that right.
15.2 If any provision of this Committed Facility Letter or any Facility Documents is or becomes illegal, invalid or unenforceable in any jurisdiction, that shall not affect (i) the legality, validity or enforceability in that jurisdiction of any other provision of that document; or (ii) the legality, validity or enforceability in any other jurisdiction of that or any other provision of that document.
15.3 In no event shall the Bank be liable on any theory of liability for any special, indirect or punitive damages and each Company hereby waives, releases and agrees (for itself and on behalf of the other members of the Group) not to sue upon any such claim for any such damages, whether or not accrued and whether or not known or suspected to exist in its or their favour.
15.4 Clause 13 of each Master Agreement shall apply in respect of this Committed Facility Letter as if set out here in full, with necessary changes, including that references to “this Agreement” or like references shall be deemed to refer to this Committed Facility Letter.
15.5 The terms of this Committed Facility Letter may not be waived, modified or amended unless such waiver, modification or amendment is in writing and signed by you nor may either Company assign any of its rights hereunder without the prior written consent of the Bank.
16. Definitions and interpretation
16.1 Terms defined in the relevant Master Agreement shall have the same meanings when used in this Committed Facility Letter unless otherwise defined herein. Additionally, the following terms have the following meanings:
“Approved Currency” means United States dollars (USD), Australian dollars (AUD), Singapore dollars (SGD), Hong Kong dollars (HKD), euros (EUR), pounds sterling (GBP) or Canadian dollars (CAD), or such other currency which may be approved by the Bank;
“Business Day” means a day (other than a Saturday or a Sunday) on which banks are generally open in Dublin and London.
“Existing FAL LC” means:
(nn) each of the letters of credit specified in the Schedule to the Uncommitted Facility Letter; and
(oo) each other FAL LC established or deemed established by the Bank pursuant to the facility granted by the Bank under the Existing Facility Letter.
“Existing Standard LC” means:
(a) each of the letters of credit specified in the Schedule to this Committed Facility Letter; and
(pp) each other letter of credit or similar or equivalent instrument established or deemed established by the Bank pursuant to the facility granted by the Bank under the Existing Facility Letter, except for any Existing FAL LC.
“Facility Document” means each of the documents specified in paragraph 4.1, any other document pursuant to which a security interest, guarantee or other form of credit support is created or exists in favour of the Bank in respect of the obligations of any Company in respect of any Credits or any facility offered by the Bank in connection with the Master Agreements, and any other document designated as a Facility Document by the Companies and the Bank.
“FAL LC” means a letter of credit in respect of Funds at Lloyd’s obligations.
“Group” means the Companies and each other person from time to time included in the consolidated financial statements of Everest Re. Group Ltd. filed with SEC.
“Interest Rate” means, at any time, 1% per annum above SOFR as determined by the Bank.
“SEC” means the U.S. Securities and Exchange Commission.
“SOFR” means; (i) with respect to any SOFR Banking Day, a rate per annum equal to the secured overnight financing rate for such Business Day administered by the Federal Reserve Bank of New York (or any other person which takes over the administration of that rate) published by the Federal Reserve Bank of New York (or any other person which takes over the publication of that rate) on the immediately succeeding SOFR Banking Day; and (ii) on any day other than a SOFR Banking Day, the rate appliable to the immediately preceding SOFR Banking Day. If applicable SOFR on any day is less than 0%, the rate for that day shall be deemed to be 0%.
“SOFR Banking Day” means any day other than: (i) a Saturday or Sunday; and (ii) a day on which the Securities Industry and Financial Markets Association (or any successor organisation) recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in US Government securities.
“Uncommitted Facility” has the meaning given to it in the Uncommitted Facility Letter.
16.2 In this Committed Facility Letter (unless otherwise provided):
(qq) words importing the singular shall include the plural and vice versa; and
(rr) references to:
(i) paragraphs are to be construed as references to the paragraphs of this Committed Facility Letter;
(ii) any document shall be construed as references to that document, as amended, varied, novated or supplemented;
(iii) any statute or statutory provision shall include any statute or statutory provision which amends, extends, consolidates or replaces the same;
(iv) any document or person being acceptable or approved or satisfactory shall be construed as meaning acceptable to or approved by or satisfactory to the Bank in its sole discretion;
(v) a person shall be construed so as to include that person's assignors, transferees or successors in title and shall be construed as including references to an individual, firm, partnership, joint venture, company, corporation, body corporate, unincorporated body of persons or any state or any agency of a state; and
(vi) time are to London time.
16.3 The headings in this Committed Facility Letter are for convenience only and shall be ignored in construing this Committed Facility Letter.
17. Communications
17.1 Any notice or demand to be served on either Company by the Bank hereunder may be served:
(ss) personally on any officers listed in the relevant Company’s General Communications Indemnity as amended from time to time (such shall be referred to as “Authorized Officer(s)”);
(tt) by letter addressed to the relevant Company or to any of its officers at that Company’s registered office or at any one of its principal places of business; or
(uu) by telex or facsimile addressed in any such manner as aforesaid to any then published telex or facsimile number of that Company.
17.2 Unless otherwise stated, any notice or demand to be served on the Bank by a Company hereunder must be served on the Bank either at its address stated at the beginning of this Committed Facility Letter (or such other address as the Bank may notify the Companies from time to time) or by facsimile to such number as the Bank may notify the Companies of from time to time.
17.3 Any notice or demand:
(vv) sent by post shall be deemed to have been served on the relevant party on the third Business Day after and exclusive of the day of posting; or
(ww) sent by telex or facsimile shall be deemed to have been served on the relevant party when confirmation is received.
17.4 In proving such service by post it shall be sufficient to show that the letter containing the notice or demand was properly addressed and posted and such proof of service shall be effective notwithstanding that the letter was in fact not delivered or was returned undelivered.
18.1 The Bank undertakes that is shall not disclose to any person any confidential information concerning the business or affairs of the Companies except as permitted by paragraph 18.2 and shall not use such information for any purpose other than to perform its obligations under this Committed Facility Letter.
18.2 The Bank may only disclose confidential information concerning the Companies:
(xx) to its employees, officers, representatives or advisers who need to know such information for the purposes of carrying out the Bank's obligations under this Committed Facility Letter. The Bank shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this paragraph 18;
(yy) as permitted pursuant to clause 13 of each Master Agreement; and
(zz) as may be required by law, court order or any governmental or regulatory authority.
19. Data protection
19.1 Compliance with law: Each Company and the Bank will comply with applicable data protection and privacy laws in processing personal data in connection with its activities under the Facility Documents. Without limiting the foregoing, each Company warrants that: (i) any personal data that it provides to the Bank has been processed fairly and lawfully, is accurate and is relevant for the purposes for which it is provided to the Bank; (ii) it shall provide notice to, and shall seek consent from (and promptly upon the Bank’s request shall provide evidence to the Bank of having provided such notices and/or obtained such consents), data subjects regarding the Bank’s processing of their personal data in accordance with any instructions of the Bank from time to time; and (iii) pursuant to clause (ii) it will provide data subjects with a copy of the relevant TTS EEA Privacy Statement accessible at https://www.citibank.com/tts/sa/tts-privacy-
19.2 statements/index.html (or such other URL or statement as the Bank may notify to the Companies from time to time).
19.3 Mutual cooperation: Each Company and the Bank will promptly notify, and reasonably cooperate with and provide information to, the other Party in respect of any data subject requests, communications from supervisory authorities, or material security incidents relating to the processing of personal data under any Facility Document, in each case to the extent reasonably necessary to enable the other Party to meet its obligations to data subjects and/or supervisory authorities.
19.4 Definitions: The terms ‘personal data’, ‘processing’, ‘data subject’ and ‘supervisory authority’ shall have the respective meanings set forth in the General Data Protection Regulation (EU) 2016/679, as amended or superseded from time-to-time.
20.1 Notwithstanding any other terms of this Committed Facility Letter, any other Facility Document or any other agreement, arrangement or understanding between the parties, each counterparty (including the Company) to a BRRD Party acknowledges and accepts that any liability of a BRRD Party to it under or in connection with this Committed Facility Letter or any other Facility Document may be subject to Bail-In Action by the relevant Resolution Authority and acknowledges and accepts to be bound by the effect of (i) any Bail-In Action in relation to any such liability, including (without limitation) (A) a reduction, in full or in part, in the principal amount, or outstanding amount due (including any accrued but unpaid interest) in respect of any such liability, (B) a conversion of all, or part of, any such liability into shares or other instruments of ownership that may be issued to, or conferred on, it and (C) a cancellation of any such liability and (ii) a variation of any terms of this Committed Facility Letter and/or any other Facility Document to the extent necessary to give effect to any Bail-In Action in relation to any such liability.
20.2 For the purposes of this paragraph 20 : (i) "Bail-In Action" means the exercise of any Write-down and Conversion Powers. (ii) "Bail-In Legislation" means, in relation to Ireland, the European Union (Bank Recovery and Resolution) Regulations 2015 (S.I. No. 289/2015). (iii) "BRRD" means Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms. (iv) "BRRD Party" means an institution or entity referred to in point (b), (c) or (d) of Article 1(1) BRRD, including Citibank Europe plc. (v) "EEA Member Country" means any member state of the European Union, Iceland, Liechtenstein and Norway. (vi) "Resolution Authority" means any body which has authority to exercise any Write-down and Conversion Powers. (vii) "Write-down and Conversion Powers" means, in relation to Ireland, any write-down, conversion, transfer, modification or suspension power existing from time to time under, and exercised in compliance with, any law or regulation in effect in Ireland, relating to the transposition of Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms, including but not limited to the Bail-In Legislation and Regulation (EU) No 806/2014 and the instruments, rules and standards created thereunder, pursuant to which (A) any obligation of a bank or investment firm or affiliate of a bank or investment firm can be reduced, cancelled, modified or converted into shares, other securities or other obligations of such entity or any other person (or suspended for a temporary period) and (B) any right in a contract governing an obligation of a bank or investment firm or affiliate of a bank or investment firm may be deemed to have been exercised.
21. Governing Law
21.1 This Committed Facility Letter, and any non-contractual obligation of whatever nature arising out of or in relation to it, shall be governed by English law the Bank and the Companies irrevocably submit to the jurisdiction of the English Courts in respect of any dispute which may arise from or in connection with this Committed Facility Letter or any Credit.
21.2 A person who is not a party to this Committed Facility Letter has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any terms of this Committed Facility Letter.
21.3 Without prejudice to any other mode of service allowed under any relevant law, Everest Re: (a) irrevocably appoints Everest UK as its agent for service of process in relation to any proceedings before the English courts in connection with any Facility Document; and (b) agrees that failure by an agent for service of process to notify Everest Re of the process will not invalidate the proceedings concerned.
22. [Reserved]
23. Effect as a deed
This Committed Facility Letter will take effect as a deed notwithstanding that it is signed under hand by the Bank.
This Committed Facility Letter has been entered into under hand by the Bank, and as a deed by the Companies, on the date stated at the beginning of this Deed
Yours faithfully,
Signed for and on behalf of
Citibank Europe plc
by:
(Sign) …………………………………….
Name: /S/ NIALL TUCKEY
Title: Authorised Signatory
We hereby accept and agree to be bound by the terms of this Committed Facility Letter.
Executed as a deed by
Everest Reinsurance (Bermuda) Limited
acting by person(s) who, in accordance with the
laws of its jurisdiction of incorporation, are acting
under the authority of the company
(Sign) ……………………………………. (Sign) …………………………………….
Name: /S/ CHRIS DOWNEY Name: /S/ DAVID LAWLER
Title: Authorised Signatory Title: Authorised Signatory
CEO and Managing Director Chief Accounting Officer
Executed as a deed by
Everest Reinsurance (Bermuda) Limited, UK Branch
acting by person(s) who, in accordance with the
laws of its jurisdiction of incorporation, are acting
under the authority of the company
(Sign) ……………………………………. (Sign) …………………………………….
Name: /S/ PAUL TESTER Name: /S/ NIGEL SMITH
Title: Authorised Signatory Title: Authorised Signatory
Acting Head of London Branch and CUO CFO & CAO
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EXECUTION VERSION
Standby Letter of Credit Agreement
(Committed/Secured)
STANDBY LETTER OF CREDIT AGREEMENT (the “Agreement”), dated as of August 27, 2021, by and among EVEREST REINSURANCE (BERMUDA), LTD., a company incorporated and existing under the laws of Bermuda (the “Account Party”), and BAYERISCHE LANDESBANK, a financial institution organized under the laws of the Federal Republic of Germany (“Bank”).
1. DEFINED TERMS.
(a) Definitions. For purposes of this Agreement, in addition to the terms defined elsewhere herein, the following terms have the meanings set forth below (such meanings to be equally applicable to the singular and plural forms thereof):
“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.
“A.M. Best” means A.M. Best Company, Inc.
“Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdiction applicable to the Account Party from time to time concerning or relating to bribery or corruption, including, to the extent applicable, the United States Foreign Corrupt Practices Act of 1977 and the rules and regulations thereunder and the U.K. Bribery Act 2010 and the rules and regulations thereunder.
“Anti-Money Laundering Laws” means any and all laws, rules and regulations applicable to the Account Party from time to time concerning or relating to terrorism financing or money laundering, including any applicable provision of the PATRIOT Act and The Currency and Foreign Transactions Reporting Act (also known as the “Bank Secrecy Act,” 31 U.S.C. §§ 5311-5330 and 12 U.S.C. §§ 1818(s), 1820(b) and 1951-1959).
“Application” has the meaning set forth in Section 2(a).
“Annual Statement” means, with respect to the Account Party for any fiscal year, the annual financial statements of the Account Party 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.
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.
“Bail-In Legislation” means (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation rule or requirement for such EEA
Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
“Bankruptcy Law” means the United States Bankruptcy Code (11 U.S.C. § 101 et seq.), as amended, modified, succeeded or replaced from time to time, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization or similar debtor relief laws of the United States or any state thereof, Bermuda or any other foreign or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.
“Base Rate” means, at any time, the highest of (a) 0.00%, (b) the prime rate per annum established by the JPMorgan Chase Bank, N.A. as the reference rate for short term commercial loans in Dollars, and (c) the NYFRB Rate plus 0.50%; each change in the Base Rate shall take effect simultaneously with the corresponding change or changes in the rate specified in clause (b) above or the NYFRB Rate.
“Business Day” means (i) any day other than a Saturday, Sunday or legal holiday on which banks in Hamilton, Bermuda and New York City, New York, are open for the conduct of their commercial banking business and (ii) when used in connection with a Letter of Credit denominated in a Foreign Currency, such day is also a day on which banks are open for dealings in deposits in such Foreign Currency in the principal financial center for such Foreign Currency.
“Capital Stock” means (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” means (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 clauses (i) through (iv) above.
“Change in Control” means (a) the acquisition of ownership, directly or indirectly, beneficially or of record, by any Person or group (within the meaning of the Securities Exchange Act of 1934 and the rules of the SEC thereunder as in effect on the date hereof), other than Everest Re Group, Ltd. and any of its direct or indirect Subsidiaries, of Capital Stock representing 25% or more of the aggregate ordinary voting power represented by the issued and outstanding Capital Stock of the Account Party; or (b) the acquisition of direct or indirect Control of the Account Party by any Person or group, other than Everest Re Group, Ltd. and any of its direct or indirect Subsidiaries.
“Change in Law” means the occurrence after the date of this Agreement of: (a) the adoption or effectiveness of any law, rule, regulation, judicial ruling, judgment or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application by any Governmental Authority of any law, rule, regulation or treaty, or (c) the making or issuance by any Governmental Authority of any request, rule, guideline or directive, whether or not having the force of law; provided that notwithstanding anything herein to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (ii) all requests, rules, guidelines or directives concerning capital adequacy promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the U.S. federal or foreign regulatory authorities shall, in each case, be deemed to be a “Change in Law,” regardless of the date enacted, adopted or issued.
“Closing Date” means August 27, 2021.
“Code” means the Internal Revenue Code of 1986, and the rules and regulations promulgated thereunder.
“Collateral” means all the assets, property and interests in property that shall from time to time be pledged or be purported to be pledged as direct or indirect security for the Obligations pursuant to any one or more of the Security Documents.
“Collateral Value” for any Business Day shall be calculated as set forth on Attachment A to Exhibit B.
“Collateral Value Certificate” means a certificate substantially in the form attached as Exhibit B.
“Commitment” means the obligation of Bank to Issue Letters of Credit for the account of the Account Party hereunder in an aggregate principal amount at any time outstanding not to exceed $200,000,000, as such amount may be reduced from time to time pursuant to the terms hereof.
“Commitment Fee” has the meaning specified in Section 2(i) hereto.
“Commitment Termination Date” means the earliest to occur of (a) August 27, 2024, (b) the date of termination of the entire Commitment by the Account Party pursuant to Section 2(h), and (c) the date of termination of the Commitment pursuant to Section 11(a).
“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise
voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto.
“Control Agreement” means the control agreement among Custodian, Bank and the Account Party, as amended, supplemented or restated from time to time, pursuant to which a Lien on one or more Custodial Accounts and the contents thereof and all security entitlements related thereto securing the Obligations is perfected in favor of Bank.
“Covenant Compliance Worksheet” means a fully completed worksheet in the form of Annex A to Exhibit A.
“Credit Documents” means, collectively, this Agreement, the Letter of Credit Documents, each Security Document, and each other agreement, document, or instrument executed and delivered by the Account Party to the Bank in connection with any Credit Document or any Letter of Credit.
“Custodial Account” means each custodial, brokerage or similar account of the Account Party maintained by the Custodian as a “securities account” within the meaning of Section 8-501(a) of the UCC for the Account Party as the “entitlement holder” within the meaning of Section 8-102(7) of the UCC pursuant to a custodial agreement, on which (and on the contents of which) a Lien has been granted as security for the Obligations.
“Custodian” means The Bank of New York Mellon (in its capacity as custodian of the Custodial Accounts).
“Default” means any of the events specified in Section 10 which with the passage of time, the giving of notice or any other condition, would constitute an Event of Default.
“Disqualified Capital Stock” means, 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 clause (i) or (ii) above, in each case under clause (i), (ii) or (iii) above at any time on or prior to the Final 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 Amount” means, at any time, (i) with respect to any amount denominated in Dollars, such amount, and (ii) with respect to any amount denominated in any Foreign Currency, the equivalent amount thereof in Dollars as determined by Bank at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date) for the purchase of Dollars with such Foreign Currency.
“Dollars” or “$” means dollars of the United States of America. “Draw Date” has the meaning specified in Section 2(b)(i).
“Due Date” has the meaning specified in Section 2(b)(i).
“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority” means any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.
“ERISA Affiliate” means any trade or business (whether or not incorporated) that, together with the Account Party, is treated as a single employer under Section 414(b) or (c) of the Code or Section 4001(14) of ERISA or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under Section 414(m) or (o) of the Code.
“ERISA Event” means (a) any “reportable event”, as defined in Section 4043 of ERISA or the regulations issued thereunder with respect to a Plan (other than an event for which the 30 day notice period is waived); (b) the failure to satisfy the “minimum funding standard” (as defined in Section 412 of the Code or Section 302 of ERISA), whether or not waived with respect to any Plan; (c) the filing pursuant to Section 412(c) of the Code or Section 302(c) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan; (d) the incurrence by the Account Party or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to the termination of any Plan; (e) the receipt by the Account Party or any of its ERISA Affiliates from the PBGC or a plan administrator of any notice relating to an intention to terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f) the incurrence by the Account Party or any of its ERISA Affiliates of any liability with respect to the withdrawal or partial withdrawal of the Account Party or any of its ERISA Affiliates from any Plan or Multiemployer Plan; or (g) the receipt by the Account Party or any of its ERISA Affiliates of any notice, or the receipt by any Multiemployer Plan from, the Account Party, or any of its ERISA Affiliates of any notice, concerning the imposition upon the Account Party, or any of its ERISA Affiliates of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent within the meaning of Title IV of ERISA.
“EU Blocking Regulation” means, collectively, the Council Regulation (EC) No. 2271/96 of November 22, 1996, as amended by Commission Delegated Regulation (EU) 2018/1100 of
June 6, 2018, Section 7 of the German Foreign Trade Ordinance (Außenwirtschaftsverordnung - AWV), and any other applicable anti-boycott or similar laws, each as in effect from time to time.
“Event of Default” has the meaning specified in Section 10.
“Exchange Act” means the Securities Exchange Act of 1934.
“FATCA” means (a) Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, and any agreements entered into pursuant to Section 1471(b)(1) of the Code, (b) any treaty, law, regulation or other official guidance enacted in any other jurisdiction, or relating to an intergovernmental agreement between the United States and any other jurisdiction with the purpose (in either case) of facilitating the implementation of (a) above, or (c) any agreement pursuant to the implementation of paragraphs (a) or (b) above with the IRS, the United States government or any governmental or taxation authority in the United States.
“Federal Funds Effective Rate” means, for any day, the rate calculated by the NYFRB based on such day’s federal funds transactions by depositary institutions, as determined in such manner as shall be set forth on the NYFRB’s Website from time to time, and published on the next succeeding Business Day by the NYFRB as the effective federal funds rate.
“Final Expiry Date” means the date when the Final Maturity Date has occurred, all Letters of Credit have expired or terminated without any pending drawing thereon, and all Obligations owing hereunder and in the other Credit Documents have been paid in full.
“Final Maturity Date” means the first anniversary of the Commitment Termination Date.
“Financial Strength Rating” means, as to any Person, the rating that has been most recently announced by A.M. Best as the “financial strength rating” of such Person.
“Fiscal Year” means the fiscal year of the Account Party.
“Foreign Currency” means any currency other than Dollars approved by Bank, in its sole discretion, from time to time.
“Foreign Currency Equivalent” means, at any time, with respect to any amount denominated in Dollars, the equivalent amount thereof in the applicable Foreign Currency as determined by Bank at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date) for the purchase of such Foreign Currency with Dollars.
“GAAP” means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or such other principles as may be approved by a significant segment of the accounting profession in the United States, that are applicable to the circumstances as of the date of determination, consistently applied.
“Governmental Authority” means the government of any nation or any political subdivision thereof, whether at the national, state, territorial, provincial, municipal or any other level, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of, or pertaining to, government (including any supra- national bodies such as the European Union or the European Central Bank).
“Hedge Agreement” means 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, including any swap agreement (as defined in 11 U.S.C. § 101).
“Hedge Termination Value” means, in respect of any one or more Hedge Agreements, after taking into account the effect of any legally enforceable netting agreement relating to such Hedge Agreements, (a) for any date on or after the date such Hedge Agreements have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Hedge Agreements, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Hedge Agreements (which may include Bank or any affiliate of Bank).
“Indebtedness” means, with respect to any Person (without duplication), (i) all indebtedness of such Person for borrowed money or in respect of loans or advances, (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 or finance leases, to the extent such obligations are required to be so recorded, (vii) all obligations and liabilities of such Person incurred in connection with any transaction or series of transactions providing for the financing of assets through one or more securitizations or in connection with, or pursuant to, any synthetic lease or similar off-balance sheet financing, (viii) all Disqualified Capital Stock issued by such Person, with the amount of Indebtedness represented by such Disqualified Capital Stock being equal to the greater of its voluntary or involuntary liquidation preference and its maximum fixed repurchase price, but excluding accrued dividends, if any (for purposes hereof, the “maximum fixed repurchase price” of any Disqualified Capital Stock that does not have a fixed repurchase price shall be calculated in accordance with the terms of such Disqualified Capital Stock as if such Disqualified Capital Stock were purchased on any date on which Indebtedness shall be required to be determined pursuant to this Agreement, and if such price is based upon, or measured by, the fair market value of such Disqualified Capital Stock, such fair market value shall be determined reasonably and in good faith by the board of directors or other governing body of the issuer of such Disqualified Capital Stock), (ix) the Hedge Termination Value of such Person under any Hedge Agreements, calculated as of any date as if such agreement or arrangement were
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terminated as of such date, (x) all contingent obligations of such Person in respect of Indebtedness of other Persons 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.
“Instructions” has the meaning set forth in Section 2(a).
“Insurance Regulatory Authority” means, with respect to the Account Party, 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 the Account Party, in each other jurisdiction in which the Account Party conducts business or is licensed to conduct business.
“Investment Company Act” means the Investment Company Act of 1940 (15 U.S.C. § 80(a)(1), et seq.).
“IRS” means the United States Internal Revenue Service.
“issue” means, with respect to any Letter of Credit, to issue, to amend or to extend the expiry of, or to renew or increase the stated amount of, such Letter of Credit. The terms “issued”, “issuing” and “issuance” have corresponding meanings.
“Letters of Credit” means the collective reference to standby letters of credit issued pursuant to Section 2.
“Letter of Credit Documents” means, with respect to any Letter of Credit, collectively, any Applications, agreements, instruments, guarantees or other documents (whether general in application or applicable only to such Letter of Credit) governing or providing for the rights and obligations of the parties concerned or at risk with respect to such Letter of Credit.
“Letter of Credit Fee” has the meaning specified in Section 2(i)(iii) hereto.
“Lien” means any mortgage, pledge, hypothecation, assignment, security interest, lien (statutory or otherwise), preference, priority, charge or other encumbrance of any nature, whether voluntary or involuntary, including 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.
“Material Adverse Effect” means a material adverse effect upon (i) the financial condition, operations, business, properties or assets of the Account Party, (ii) the ability of the Account Party to perform its payment or other material obligations under this Agreement or any of the other Credit Documents, or (iii) the legality, validity, or enforceability of this Agreement or any of the other Credit Documents or the rights and remedies of Bank hereunder and thereunder.
“Multiemployer Plan” means a multiemployer plan as defined in Section 4001(a)(3) of ERISA.
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“Multiple Employer Plan” means an employee pension benefit plan with respect to which the Account Party or any of its ERISA Affiliates is a contributing sponsor, and that has two (2) or more contributing sponsors at least two (2) of whom are not under common control, as such a plan is described in Section 4064 of ERISA.
“Non-Extension Notice Date” has the meaning given to such term in Section 2(g).
“Notice of Non-Extension” has the meaning given to such term in Section 2(g).
“NYFRB” means the Federal Reserve Bank of New York.
“NYFRB Rate” means, for any day, the greater of (a) the Federal Funds Effective Rate in effect on such day and (b) the Overnight Bank Funding Rate in effect on such day (or for any day that is not a Business Day, for the immediately preceding Business Day); provided that if none of such rates are published for any day that is a Business Day, the term “NYFRB Rate” means the rate for a federal funds transaction quoted at 11:00 a.m. on such day received by Bank from a federal funds broker of recognized standing selected by it; provided, further, that if any of the aforesaid rates as so determined are less than zero, such rate shall be deemed to be zero for purposes of this Agreement.
“NYFRB’s Website” means the website of the NYFRB at http://www.newyorkfed.org, or any successor source.
“Obligations” means all obligations and liabilities (including (a) any interest and fees accruing after the filing of a petition or commencement of a case by or with respect to the Account Party seeking relief under any applicable Bankruptcy Laws, whether or not the claim for such interest or fees is allowed or allowable in such proceeding, (b) the obligation to provide cash collateral hereunder, and (c) reimbursement and other payment obligations and liabilities) of the Account Party to Bank arising under, or in connection with, the applicable Credit Document (including Section 5 below) any Application or any Letter of Credit, in each case whether matured or unmatured, absolute or contingent, now existing or hereafter incurred.
“OFAC” means the U.S. Department of the Treasury’s Office of Foreign Assets Control.
“Officer’s Compliance Certificate” means a certificate of the chief executive officer, the chief financial officer, vice president—finance, principal accounting officer, treasurer or assistant treasurer of the Account Party substantially in the form attached as Exhibit A, together with a Covenant Compliance Worksheet.
“Other Taxes” has the meaning specified in Section 2(c).
“Outstanding Letters of Credit” means, as of any date, the sum of (a) the Stated Amount of all outstanding Letters of Credit at such time and, without duplication, (b) all reimbursement obligations in respect of Letters of Credit at such time.
“Overnight Bank Funding Rate” means, for any day, the rate comprised of both overnight federal funds and overnight eurodollar borrowings denominated in Dollars by U.S.-managed
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banking offices of depository institutions, as such composite rate shall be determined by the NYFRB as set forth on the NYFRB’s Website from time to time, and published on the next succeeding Business Day by the NYFRB as an overnight bank funding rate.
“PATRIOT Act” means the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)).
“Payment Date” has the meaning specified in Section 2(b)(i).
“PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions.
“Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, governmental authority or other entity.
“Plan” means any employee pension benefit plan (including a Multiple Employer Plan, but other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and in respect of which the Account Party or any ERISA Affiliate thereof is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.
“Pledge Agreement” means the Pledge and Security Agreement, dated as of the date hereof, made by the Account Party in favor of Bank, as amended, supplemented or restated from time to time.
“Quarterly Statement” means, with respect to the Account Party for any fiscal quarter, the quarterly financial statements of the Account Party 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.
“Requirement of Law” means, with respect to any Person, the charter, articles, constitution or certificate of organization or incorporation and by-laws 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.
“Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“Responsible Officer” means, as to any Person, the chief executive officer, president, chief financial officer, controller, treasurer or assistant treasurer of such Person or any other officer of such Person designated in writing by the Account Party and reasonably acceptable to Bank; provided that, to the extent requested thereby, Bank shall have received a certificate of such Person certifying as to the incumbency and genuineness of the signature of each such officer. Any document delivered hereunder or under any other Credit Document that is signed by a Responsible Officer of a Person shall be conclusively presumed to have been authorized by all necessary corporate, limited liability company, partnership and/or other action on the part of such Person and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Person.
“Revaluation Date” means with respect to any Letter of Credit, each of the following: (i) each date of issuance of a Letter of Credit denominated in a Foreign Currency, (ii) each date of an amendment of any such Letter of Credit having the effect of increasing or decreasing the Stated Amount thereof, (iii) each date of any payment by Bank under any Letter of Credit denominated in a Foreign Currency and (iv) each such additional date as Bank shall determine or require.
“Sanctions” means any and all economic or financial sanctions, sectoral sanctions, secondary sanctions, trade embargoes and anti-terrorism laws, including but not limited to those imposed, administered or enforced from time to time by the U.S. government (including those administered by OFAC or the U.S. Department of State), the United Nations Security Council, the European Union, Her Majesty’s Treasury, or other relevant sanctions authority.
“Sanctioned Country” means at any time, a country, territory or region which is itself the subject or target of any Sanctions.
“Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by OFAC (including OFAC’s Specially Designated Nationals and Blocked Persons List and OFAC’s Consolidated Non- SDN List), the U.S. Department of State, the United Nations Security Council, the European Union, Her Majesty’s Treasury, or other relevant sanctions authority, (b) any Person located, operating, organized or resident in a Sanctioned Country or (c) any Person owned or controlled by any such Person or Persons described in clauses (a) and (b), including a Person that is deemed by OFAC to be a Sanctions target based on the ownership of such legal entity by Sanctioned Peron(s).
“Security Documents” means, collectively, (a) the Pledge Agreement and (b) the Control Agreement, and (c) each other document, agreement, certificate and/or financing statement, executed, delivered, made or filed pursuant to the terms of the documents specified in foregoing clauses (a) and (b).
“Solvent” means, as to any Person as of any date of determination, that on such date (a) the fair value of the property of such Person is greater than the total amount of liabilities, including contingent liabilities, of such Person, (b) the present fair saleable value of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts, including contingent debts, as they become absolute and matured, (c) such Person does not intend to, and does not believe that it will, incur debts or liabilities, including contingent debts and liabilities, beyond such Person’s ability to pay such debts and liabilities as they mature and (d) such Person is not engaged in a business or a transaction, and is not about to engage in a business or a transaction, for which such Person’s property would constitute an unreasonably small capital. The amount of any contingent liability at any time shall be computed as the amount that, in light of all of the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.
“Spot Rate” means, with respect to any Foreign Currency, the rate quoted by Bank as the spot rate for the purchase by Bank of such Foreign Currency with Dollars through its
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principal foreign exchange trading office at approximately 11:00 a.m., London time, on the date two Business Days prior to the date as of which the foreign exchange computation is made; provided that Bank may use such spot rate quoted on the date as of which the foreign exchange computation is made in the case of any Letter of Credit denominated in an Foreign Currency.
“Standard Letter of Credit Practice” means, for Bank, any U.S. federal or state or foreign law or letter of credit practices applicable in the city in which Bank issued the applicable Letter of Credit or for its branch or correspondent banks, such laws and practices applicable in the city in which it has advised, confirmed or negotiated such Letter of Credit, as the case may be. Such practices shall be (i) of banks that regularly issue letters of credit in the particular city, and (ii) required or permitted under the ISP (as defined below) or UCP (as defined below), as chosen in the applicable Letter of Credit. “ISP” means, International Standby Practices 1998 (International Chamber of Commerce Publication No. 590) and any subsequent revision thereof adopted by the International Chamber of Commerce on the date such Letter of Credit is issued. “UCP” means, Uniform Customs and Practice for Documentary Credits 2007 Revision, International Chamber of Commerce Publication No. 600 and any subsequent revision thereof adopted by the International Chamber of Commerce on the date such Letter of Credit is issued.
“Stated Amount” means, with respect to any Letter of Credit at any time, the aggregate Dollar Amount available to be drawn thereunder at such time (regardless of whether any conditions for drawing could then be met).
“Subsidiary” means as to any Person, any corporation, partnership, limited liability company or other entity 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 (or equivalent governing body) or other managers of such corporation, partnership, limited liability company or other entity is at the time owned by (directly or indirectly) such Person (irrespective of whether, at the time, Capital Stock of any other class or classes of such corporation, partnership, limited liability company or other entity shall have or might have voting power by reason of the happening of any contingency).
“Taxes” has the meaning specified in Section 2(c).
“Threshold Amount” means $200,000,000.
“UCC” means the Uniform Commercial Code as in effect on the date hereof in the State of New York.
“UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.
“UK Resolution Authority” means Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
“Upfront Fee” has the meaning specified in Section 2(i) hereto. “U.S.” means United States of America.
“Withdrawal Liability” means liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.
“Write-Down and Conversion Powers” means, (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.
(b) Exchange Rates; Currency Equivalents.
(i) The Bank shall determine the Spot Rates as of each Revaluation Date to be used for calculating Dollar Amounts of Letters of Credit denominated in Foreign Currencies. Such Spot Rates shall become effective as of such Revaluation Date and shall be the Spot Rates employed in converting any amounts between the applicable currencies until the next Revaluation Date to occur. Except for purposes of financial statements required to be delivered hereunder or calculating financial covenants hereunder and except as otherwise provided herein, the applicable amount of any currency (other than Dollars) for purposes of the Credit Documents shall be such Dollar Amount as so determined by Bank.
(ii) Wherever in this Agreement in connection with the issuance, amendment or extension of a Letter of Credit, an amount, such as a required minimum or multiple amount, is expressed in Dollars, but such Letter of Credit is denominated in a Foreign Currency, such amount shall be the relevant Foreign Currency Equivalent of such Dollar amount (rounded to the nearest unit of such Foreign Currency, with 0.5 of a unit being rounded upward), as determined by Bank.
(a) General. At the request of the Account Party, Bank agrees, on and subject to the terms and conditions of this Agreement, to issue standby Letters of Credit for the account of the Account Party in Dollars (or, in Bank’s sole discretion, a Foreign Currency) from time to time during the period from the Closing Date to but not including the Commitment Termination Date. Bank may, in its sole discretion, arrange for one or more Letters of Credit to be issued by its New York branch, which branch is on the List of Qualified U.S. Financial Institutions maintained by the Securities Valuation Office of the National Association of Insurance Commissioners, or by any other branch or affiliate of Bank that is on the List of Qualified U.S. Financial Institutions maintained by the Securities
Valuation Office of the National Association of Insurance Commissioners, in which case the term “Bank” shall include any such branch or affiliate with respect to Letters of Credit issued by such branch or affiliate. Letters of Credit may only be issued on Business Days. The request to issue a Letter of Credit (an “Application”) shall be in such form as Bank shall from time to time require or agree to accept (including any type of electronic form or means of communication acceptable to Bank) and, upon the receipt of any Application, Bank shall process such Application in accordance with its customary procedures and shall, subject to Section 4, promptly issue the Letter of Credit requested thereby (but in no event shall Bank be required to issue any Letter of Credit earlier than three Business Days after its receipt of the Application therefor) by issuing the original of such Letter of Credit to the beneficiary thereof or as otherwise may be agreed by Bank and the Account Party. Inquiries, communications and instructions (whether written, facsimile or in other electronic form approved by Bank) regarding a Letter of Credit, an Application and this Agreement are each referred to herein as “Instructions”. Bank’s records of the content of any Instruction will be conclusive, absent manifest error.
(b) General Payment Obligations. For each Letter of Credit, the Account Party shall, as to clause (i) below, reimburse Bank, and as to all other clauses below, pay Bank, in each case in Dollars (unless Bank agrees otherwise with Account Party):
(i) with respect to a drawing under any Letter of Credit, the amount of each drawing paid by Bank thereunder (such date of payment hereinafter referred to as the “Draw Date”) no later than the first succeeding Business Day after the Account Party’s receipt of notice of such payment by Bank (the “Due Date”), with interest as provided below on the amount so paid by Bank (to the extent not reimbursed prior to 2:00 p.m. Eastern Time on the Draw Date) for the period from the Draw Date to the date the reimbursement obligation created thereby is satisfied in full (the “Payment Date”). If the Payment Date is on or prior to the Due Date, such interest shall be payable at the Base Rate as in effect from time to time during the period from the Draw Date to the Payment Date. If the Payment Date is after the Due Date, such interest shall be payable (x) as provided in the preceding sentence during the period from and including the Draw Date to and not including the Due Date, and (y) at the Base Rate as in effect from time to time plus 2% from and including the Due Date to and not including the Payment Date;
(ii) the fees payable by the Account Party at such times and in such amounts as are set forth in Section 2(i).
(iii) except as otherwise provided in clause (i) above and clause (iv) below, interest on each amount payable by the Account Party under the applicable Credit Documents for each day from and including the date such payment is due to and not including the date of payment, on demand, at a rate per annum equal to the Base Rate as in effect from time to time plus 2%;
(iv) within ten (10) days of demand, Bank’s reasonable and documented out-of-pocket costs and expenses (including the reasonable and documented legal fees, charges and disbursements of outside counsel to Bank incurred in connection with the protection or enforcement of Bank’s rights against the Account Party under this
Agreement and the other applicable Credit Documents and any correspondent bank’s documented charges related thereto), with interest from the date of demand by Bank to and not including the date of payment by the Account Party, at a rate per annum equal to the Base Rate as in effect from time to time plus 2%;
(v) if as a result of any Change in Law, Bank determines that the cost to Bank of issuing or maintaining any Letter of Credit is increased (excluding, for purposes of this clause (a)(v), any such increased costs resulting from (A) income taxes, franchise taxes and similar taxes imposed on Bank by any taxing authority, any U.S. federal withholding taxes imposed under FATCA and Other Taxes (in each case as to which Section 2(c) shall govern) and (B) changes in the basis of taxation of overall net income or overall gross income by the U.S. or by the foreign jurisdiction or state under the laws of which Bank is organized or has its lending office or any political subdivision thereof), then the Account Party will pay to Bank, from time to time, within ten (10) days after demand by Bank, which demand shall include a statement of the basis for such demand and a calculation in reasonable detail of the amount demanded, additional amounts sufficient to compensate Bank for such increased cost. A certificate as to the amount of such increased cost, submitted to the Account Party by Bank, shall be conclusive and binding for all purposes, absent manifest error; and
(vi) if Bank determines that any Change in Law affecting Bank or any lending office of Bank or Bank’s holding company regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on Bank’s capital or on the capital of Bank’s holding company as a consequence of this Agreement or the Letters of Credit issued by Bank to a level below that which Bank or Bank’s holding company could have achieved but for such Change in Law (taking into consideration Bank’s or its holding company’s policies with respect to capital adequacy), then from time to time the Account Party will pay to Bank within ten (10) days after demand by Bank, which demand shall include a statement of the basis for such demand and a calculation in reasonable detail of the amount demanded, such additional amount or amounts as will compensate Bank or Bank’s holding company for any such reduction suffered. A certificate as to such amounts submitted to the Account Party by Bank shall be conclusive and binding for all purposes, absent manifest error.
Bank shall use reasonable efforts to designate a different lending office if such designation will avoid (or reduce the cost to the Account Party of) any event described in the preceding sentence and such designation will not, in Bank’s good faith judgment, subject Bank to any unreimbursed cost or expense and would not otherwise be disadvantageous to Bank.
Notwithstanding the provisions of clause (v) or (vi) above or Section 2(c) below (and without limiting the immediately preceding paragraph), Bank shall not be entitled to compensation from the Account Party for any amount arising prior to the date which is 180 days before the date on which Bank notifies the Account Party of such event or circumstance (except that if such event or circumstance is retroactive, then such 180-day period shall be extended to include the period of retroactive effect thereof).
Any payments received by Bank pursuant to the Credit Documents after 1:00 p.m. Eastern shall be deemed to have been made on the next succeeding Business Day for all purposes under the Credit Documents.
(c) Immediately Available Funds; No Withholding. All reimbursements and payments by or on behalf of the Account Party shall be made in immediately available funds, free and clear of and without deduction for any present or future Taxes, set-off or other liabilities, to such location as Bank may reasonably designate from time to time. The Account Party shall pay all withholding taxes and Other Taxes imposed by any taxing authority on reimbursement or payment under any Letter of Credit and any Credit Document, and shall indemnify Bank against all liabilities, costs, claims and expenses resulting from Bank having to pay or from any omission to pay or delay in paying any such taxes, except to the extent that such taxes are determined by a court of competent jurisdiction by a final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of Bank. Any such indemnification payment shall be made within ten (10) days from the date Bank makes written demand therefor. “Taxes” means all taxes, fees, duties, levies, imposts, deductions, charges or withholdings of any kind (other than income taxes, franchise taxes and similar taxes imposed on Bank by any taxing authority and any U.S. federal withholding taxes imposed under FATCA). “Other Taxes” means all present or future stamp, documentary, excise, property or similar taxes, charges or levies that arise from any payment made hereunder or from the execution, delivery or registration of, performance under, or otherwise with respect to, this Agreement or any other Credit Document.
(d) Automatic Debit and Set-Off. Upon the occurrence and during the continuance of any Event of Default with respect to the Account Party, Bank (which term shall include Bank’s branches and affiliates for purposes of this paragraph) may (but shall not be required to), without demand for reimbursement or payment or notice to the Account Party, and in addition to any other right of set-off that Bank may have, debit any account or accounts, irrespective of the currency of such account or accounts, maintained by the Account Party with any office of Bank (now or in the future) and set-off and apply (i) any balance or deposits (general, special, time, demand, provisional, final, matured or absolute) in the account(s) and (ii) any sums due or payable from Bank, to the payment of any and all Obligations owed by the Account Party to Bank, irrespective of whether Bank shall have made any demand under this Agreement and although such Obligations may be contingent or unmatured. Bank agrees promptly to notify the Account Party 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.
(e) Obligations Absolute. The Account Party’s reimbursement and payment obligations under this Section 2 are absolute, unconditional and irrevocable and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever, including:
(i) any lack of validity, enforceability or legal effect of any Letter of Credit or any Credit Document or any term or provision therein;
(ii) payment against presentation of any draft, demand or claim for payment under any Letter of Credit or other document presented for purposes of drawing under any Letter of Credit (individually, a “Drawing Document” and collectively, the “Drawing
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Documents”) that does not comply in whole or in part with the terms of the applicable Letter of Credit or which proves to be fraudulent, forged or invalid in any respect or any statement therein proving to be untrue or inaccurate in any respect, or which is signed, issued or presented by a Person or a transferee of such Person purporting to be a successor or transferee of the beneficiary of such Letter of Credit;
(iii) Bank or any of its branches or affiliates being the beneficiary of any Letter of Credit;
(iv) Bank or any correspondent bank honoring a drawing against a Drawing Document up to the amount available under any Letter of Credit even if such Drawing Document claims an amount in excess of the amount available under such Letter of Credit;
(v) the existence of any claim, set-off, defense or other right that Account Party or any other Person may have at any time against any beneficiary or any assignee of proceeds, Bank or any other Person;
(vi) if any other Person shall at any time have guaranteed or otherwise agreed to be liable for any of the Obligations or granted any security therefor, any change in the time, manner or place of payment of or any other term of the obligations of such other Person, or any exchange, change, waiver, release of, or failure or lapse of perfection of any grant of any collateral for, or any other Person’s guarantee of or other liability for, any of the Obligations;
(vii) any other event, circumstance or conduct whatsoever, whether or not similar to any of the foregoing that might, but for this Section 2(e), constitute a legal or equitable defense to or discharge of, or provide a right of set-off against, the Obligations, whether against Bank, the beneficiary or any other Person;
provided, however, that subject to Section 5(b) below, the foregoing shall not release Bank from such liability to the Account Party as may be determined by a court of competent jurisdiction by a final and nonappealable judgment against Bank following reimbursement and/or payment of the Obligations.
(f) Computation of Interest and Fees; Maximum Rate. All computations of interest and fees to be made hereunder and under any other Credit Document shall be made on the basis of a year consisting of (i) in the case of interest determined with reference to the Base Rate, 365/366 days, as the case may be, or (ii) in all other instances, 360 days; and in each case under (i) and (ii), for the actual number of days elapsed (including the first day but excluding the last day) occurring in the period for which such interest or fee is payable. In no contingency or event whatsoever shall the aggregate of all amounts deemed interest under this Agreement charged or collected pursuant to the terms of this Agreement exceed the highest rate permissible under any applicable law which a court of competent jurisdiction shall, in a final determination, deem applicable hereto. In the event that such a court determines that Bank has charged or received interest hereunder in excess of the highest applicable rate, the rate in effect hereunder shall automatically be reduced to the maximum rate permitted by applicable law and Bank shall at its option (i) promptly refund to the Account Party any interest received by Bank in excess of the maximum lawful rate or (ii) apply such excess to any outstanding Obligations. It is the intent hereof that the Account
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Party not pay or contract to pay, and that Bank not receive or contract to receive, directly or indirectly in any manner whatsoever, interest in excess of that which may be paid by the Account Party under applicable law.
(g) Expiry Date of Letters of Credit. Each Letter of Credit shall expire at or prior to the earlier of (i) the close of business on the date one year after the date of the issuance of such Letter of Credit (or, in the case of any renewal or extension thereof, one year after such renewal or extension), or (ii) the Final Maturity Date; provided, however, if the Account Party so requests in any applicable Application, Bank agrees to issue a Letter of Credit that provides for the automatic extension for successive periods of one year or less until Bank shall have delivered prior written notice of non-extension to the beneficiary of such Letter of Credit (a “Notice of Non-Extension”) no later than 60 days prior to the stated maturity date specified in such Letter of Credit (such time, the “Non-Extension Notice Date”). The Account Party acknowledges that Bank shall not be required to extend any Letter of Credit if Bank has determined that it would have no obligation at such time to issue such Letter of Credit (as extended) under the terms hereof.
(h) Permanent Reduction of Commitment. The Account Party shall have the right at any time and from time to time, upon at least three Business Days’ prior irrevocable written notice to Bank, to permanently reduce, without premium or penalty, (i) the entire Commitment at any time or (ii) portions of the Commitment, from time to time, in an aggregate principal amount not less than $3,000,000 or any whole multiple of $1,000,000 in excess thereof. All Commitment Fees accrued until the effective date of any termination of the Commitment shall be paid on the effective date of such termination.
(i) Fees. The Account Party agrees to pay the following amounts:
(i) a non-refundable upfront fee (the “Upfront Fee”), in an aggregate amount equal to 0.04% (four basis points) of the Commitment as in effect on the Closing Date. The entire amount of the Upfront Fee will be fully earned on the Closing Date and payable in full in cash within 15 Business Days after the Closing Date;
(ii) a non-refundable commitment fee (a “Commitment Fee”), for each calendar quarter (or portion thereof) at a per annum rate equal to 0.10% (ten basis points) of the actual daily aggregate unused portion of the Commitment, payable in arrears (A) on the last Business Day of each calendar quarter, beginning with the first such day to occur after the Closing Date through the Commitment Termination Date and (B) on the Commitment Termination Date; and
(iii) a non-refundable letter of credit fee (the “Letter of Credit Fee”) for each calendar quarter (or portion thereof) in respect of all Letters of Credit issued for the account of the Account Party and outstanding during such quarter, at a per annum rate equal to 0.39% (thirty-nine basis points) of the actual daily aggregate Stated Amount of such Letters of Credit. The Letter of Credit Fee shall be due and payable quarterly in arrears (A) on the last Business Day of each calendar quarter, commencing with the first such date to occur after the Closing Date through the Final Maturity Date, (B) on the Final Maturity Date and (C) on the Final Expiry Date.
3. ACCOUNT PARTY’S RESPONSIBILITY. The Account Party is responsible for approving the final
text of any Letter of Credit issued by Bank for its account, irrespective of any assistance Bank may provide such as drafting or recommending text or by Bank’s use or refusal to use text submitted by the Account Party. The Account Party is solely responsible for the suitability of the Letter of Credit for the Account Party’s purposes. The Account Party will examine the copy of each Letter of Credit issued for its account and any other documents sent by Bank in connection with such Letter of Credit and shall promptly notify Bank in writing of any non-compliance with the Account Party’s Instructions and of any discrepancy in any document under any presentment or other irregularity. The Account Party understands that the final form of any Letter of Credit may be subject to such revisions and changes as are deemed necessary or appropriate by Bank in accordance with standard industry practice and the Account Party hereby consents to such revisions and changes.
4. CONDITIONS OF CLOSING AND ISSUANCE.
(a) Conditions Precedent to Closing. The obligation of Bank to close this Agreement and to issue any Letters of Credit on the Closing Date is subject to the satisfaction of each of the following conditions:
(i) Executed Credit Documents. This Agreement, together with any other applicable Credit Documents, shall have been duly authorized, executed and delivered to Bank by the parties thereto, shall be in full force and effect and no Default or Event of Default shall exist hereunder or thereunder.
(ii) Closing Certificates; Etc. Bank shall have received each of the following in form and substance reasonably satisfactory to Bank:
(A) Officer’s Certificate. A certificate from a Responsible Officer of the Account Party to the effect that (I) all representations and warranties of the Account Party contained in this Agreement and the other Credit Documents are true, correct and complete in all material respects (except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case such representation and warranty shall be true, correct and complete in all respects); and (II) as of the Closing Date, no Default or Event of Default has occurred and is continuing.
(B) Certificate of Secretary of the Account Party. A certificate of a Responsible Officer of the Account Party certifying as to the incumbency and genuineness of the signature of each officer of the Account Party executing Credit Documents to which it is a party and certifying that attached thereto is a true, correct and complete copy of (I) the memorandum of association (or equivalent), as applicable, of the Account Party and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of incorporation, organization or formation (or equivalent), as applicable, (II) the by-laws or other governing document of the Account Party as in effect on the Closing Date, (III) resolutions duly adopted by the board of directors (or other governing body) of the Account Party authorizing and approving the transactions contemplated hereunder and the execution, delivery and performance of this Agreement and the other Credit Documents to which it is a party, and (D) each certificate required to be delivered pursuant to Section 4(a)(ii)(C).
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(C) Certificates of Good Standing. Certificates as of a recent date of the good standing of the Account Party under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable, and, to the extent requested by Bank, each other jurisdiction where the Account Party is qualified to do business.
(D) Opinions of Counsel. Opinions of counsel to the Account Party addressed to Bank with respect to the Account Party, the Credit Documents and such other matters as Bank shall request (which such opinions shall expressly permit reliance by permitted successors and assigns of Bank). The Account Party requests that such counsel deliver such opinions.
(iii) Lien Search. Bank shall have received the results of a Lien search, in form and substance reasonably satisfactory to Bank, indicating among other things that the Collateral is free and clear of any Lien.
(iv) Consents; Defaults.
(A) Governmental and Third Party Approvals. The Account Party shall have received all material governmental, shareholder and third party consents and approvals necessary (or any other material consents as determined in the reasonable discretion of Bank) in connection with the transactions contemplated by this Agreement and the other Credit Documents and all applicable waiting periods shall have expired without any action being taken by any Person that would reasonably be expected to restrain, prevent or impose any material adverse conditions on the Account Party or such other transactions or that could seek or threaten any of the foregoing, and no law or regulation shall be applicable which in the reasonable judgment of Bank would reasonably be expected to have such effect.
(B) No Injunction, Etc. No action, proceeding or investigation shall have been instituted, threatened in writing or proposed in writing before any Governmental Authority to enjoin, restrain, or prohibit, or to obtain substantial damages in respect of, or which is related to or arises out of this Agreement or the other Credit Documents or the consummation of the transactions contemplated hereby or thereby, or which, in Bank’s sole discretion, would make it inadvisable to consummate the transactions contemplated by this Agreement or the other Credit Documents or the consummation of the transactions contemplated hereby or thereby.
(v) [Reserved]
(vi) Miscellaneous.
(A) PATRIOT Act, etc. The Account Party shall have provided to Bank the documentation and other information requested by Bank in order to comply with requirements of any Anti-Money Laundering Laws, including the PATRIOT Act and any applicable “know your customer” rules and regulations.
(B) Other Documents. All opinions, certificates and other instruments and all proceedings in connection with the transactions contemplated by this Agreement shall be
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satisfactory in form and substance to Bank. Bank shall have received copies of all other documents, certificates and instruments reasonably requested thereby, with respect to the transactions contemplated by this Agreement.
(b) Conditions Precedent to Issuance of Letters of Credit. The obligation of Bank to issue Letters of Credit (including any Letters of Credit issued on the Closing Date) is subject to the satisfaction of each of the following conditions:
(i) Continuation of Representations and Warranties. The representations and warranties contained in this Agreement and the other Credit Documents shall be true and correct in all material respects, except for any representation and warranty that is qualified by materiality or reference to Material Adverse Effect, which such representation and warranty shall be true and correct in all respects, on and as of such issuance with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct in all material respects as of such earlier date, except for any representation and warranty that is qualified by materiality or reference to Material Adverse Effect, which such representation and warranty shall be true and correct in all respects as of such earlier date).
(ii) No Existing Default. No Default or Event of Default shall have occurred and be continuing on the issuance date with respect to such Letter of Credit or after giving effect to the issuance of such Letter of Credit on such date.
(iii) Notice and Collateral Value Certificate. Bank shall have received an Application from the Account Party and a Collateral Value Certificate pursuant to Section 7(d)(iii).
(iv) Miscellaneous. In addition to the foregoing, Bank shall be under no obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator having jurisdiction over Bank shall by its terms enjoin or restrain the issuance of such Letter of Credit or any law applicable to Bank, or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over it shall prohibit, or request that it refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon it with respect to such Letter of Credit any restriction or reserve or capital or liquidity requirement (for which Bank is not otherwise compensated) not in effect on the Closing Date, or any unreimbursed loss, cost or expense which was not applicable or in effect as of the Closing Date and which Bank in good faith deems material to it;
(B) Bank shall have delivered a Notice of Non-Extension with respect to such Letter of Credit;
(C) the expiry date of such Letter of Credit would occur more than twelve months after the date of issuance or last extension unless Bank has approved such expiry date in writing;
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(D) the expiry date of such Letter of Credit occurs after the Final Maturity Date, unless Bank has approved such expiry date in writing;
(E) such Letter of Credit is not substantially in form and substance reasonably acceptable to Bank;
(F) immediately after giving effect thereto, the amount of Outstanding Letters of Credit would exceed the Commitment or the Collateral Value of the Collateral at such time; or
(G) any proposed beneficiary of such Letter of Credit is the subject of a receivership or similar proceeding, including any conservation, rehabilitation, or liquidation proceeding, or is otherwise insolvent.
5. INDEMNIFICATION; LIMITATION OF LIABILITY.
(a) Indemnification. The Account Party agrees to indemnify and hold harmless Bank (including its branches and affiliates), its correspondent banks and each of their respective directors, officers, employees, attorneys and agents (each, including Bank, an “Indemnified Person”) from and against any and all claims, suits, judgments, liabilities, losses, fines, damages, penalties, interest, costs and expenses (including expert witness fees and reasonable out-of-pocket legal fees, charges and disbursements of any counsel (including outside counsel fees and expenses), and all expenses of arbitration or litigation and in preparation thereof), in each case, which are documented and may be incurred by or awarded against any Indemnified Person (collectively, the “Costs”), and which arise out of or in connection with or by reason of this Agreement, the other Credit Documents, the actual or proposed use of the proceeds of the Letters of Credit or any of the transactions contemplated thereby, including any Costs which arise out of or in connection with, or as a result of:
(i) any Letter of Credit or amendment thereto, or any pre-advice of the issuance of a Letter of Credit;
(ii) any transfer, sale, delivery, surrender or endorsement of any Drawing Document at any time(s) held by any Indemnified Person in connection with any Letter of Credit;
(iii) any actual or prospective action or proceeding arising out of, or in connection with, any Letter of Credit or any Credit Document (whether administrative, judicial or in connection with arbitration, whether based on contract, tort or any other theory, and whether brought by a third party or by the Account Party, and regardless of whether any Indemnified Person is a party thereto), including any action or proceeding to compel or restrain any presentation or payment under any Letter of Credit, or for the wrongful dishonor of, or honoring a presentation under, any Letter of Credit;
(iv) any independent undertakings issued by the beneficiary of any Letter of Credit;
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(v) any unauthorized Instruction or error in computer or electronic transmission in connection with any Letter of Credit issued hereunder;
(vi) an adviser, confirmer or other nominated person seeking to be reimbursed, indemnified or compensated in connection with any Letter of Credit issued hereunder;
(vii) any third party seeking to enforce the rights of the Account Party, beneficiary, nominated person, transferee, assignee of Letter of Credit proceeds or holder of an instrument or document in connection with any Letter of Credit issued hereunder;
(viii) the fraud, forgery or illegal action of parties other than any Indemnified Person in connection with any Letter of Credit issued hereunder;
(ix) Bank’s performance of the obligations of a confirming institution or entity that wrongfully dishonors a confirmation in connection with any Letter of Credit issued hereunder; or
(x) the acts or omissions, whether rightful or wrongful, of any present or future de jure or de facto Governmental Authority or cause or event beyond the control of such Indemnified Person in connection with any Letter of Credit issued hereunder;
in each case, including that resulting from Bank’s own negligence; provided, however, that such indemnity shall not be available to any Person claiming indemnification under this Section 5(a) to the extent that such Costs (A) are determined by a court of competent jurisdiction by a final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Person, (B) are determined by a court of competent jurisdiction by a final and nonappealable judgment to have resulted from a claim by the Account Party against an Indemnified Person for breach in bad faith of the obligations of such Indemnified Person hereunder or under any other Credit Document, or (C) result from any dispute solely between or among Indemnified Persons. The Account Party hereby agrees to pay Bank within fifteen (15) days after demand from time to time all amounts owing under this Section 5(a). This indemnity provision shall survive termination of this Agreement and all Letters of Credit.
(b) Direct Damages; No Punitive Damages. The liability of Bank (or any other Indemnified Person) under, in connection with and/or arising out of any Credit Document or any Letter of Credit (or pre-advice), regardless of the form or legal grounds of the action or proceeding, shall be limited to direct damages suffered by the Account Party that are determined by a court of competent jurisdiction by a final and nonappealable judgment to have been caused directly by Bank’s gross negligence, willful misconduct or breach in bad faith in (i) honoring a presentation under a Letter of Credit that on its face does not at least substantially comply with the terms and conditions of such Letter of Credit, (ii) failing to honor a presentation under a Letter of Credit that strictly complies with the terms and conditions of such Letter of Credit or (iii) retaining Drawing Documents presented under a Letter of Credit. Bank shall be deemed to have acted with due diligence and reasonable care if Bank’s conduct is in accordance with Standard Letter of Credit Practice or in accordance with any Credit Document. No Indemnified Person shall be liable for any damages arising from any errors,
omissions, interruptions or delays in transmission or delivery of any message, advice or document (regardless of how sent or transmitted) in connection with this Agreement or the other Credit Documents, except to the extent that any losses, claims, damages, liabilities or expenses result from the gross negligence or willful misconduct of such Indemnified Person in making any such transmission as determined by a final nonappealable judgment of a court of competent jurisdiction.
(c) Waiver of Consequential Damages, etc. Notwithstanding anything to the contrary in this Agreement or in any other Credit Document, no Indemnified Person shall be liable in contract, tort or otherwise for any punitive, exemplary, consequential, indirect or special damages or losses regardless of whether or not such party or Indemnified Person shall have been advised of the possibility thereof or the form of action in which such damages or losses may be claimed. The Account Party shall take commercially reasonable action to avoid and mitigate the amount of any damages claimed against Bank or any other Indemnified Person, including by enforcing its rights in appropriate proceedings diligently pursued in the underlying transaction.
(d) No Responsibility or Liability. Without limiting any other provision of this Agreement or any other Credit Document, Bank and each other Indemnified Person (if applicable) shall not be responsible to the Account Party for, and/or Bank’s rights and remedies against the Account Party and the Obligations shall not be impaired by:
(i) honor of a presentation under any Letter of Credit that on its face substantially complies with the terms and conditions of such Letter of Credit, even if the Letter of Credit requires strict compliance by the beneficiary;
(ii) acceptance as a draft of any written or electronic demand or request for payment under a Letter of Credit, even if nonnegotiable or not in the form of a draft;
(iii) the identity or authority of any presenter or signer of any Drawing Document or the form, accuracy, genuineness or legal effect of any Drawing Document (other than Bank’s determination that such Drawing Document appears on its face to substantially comply with the terms and conditions of the Letter of Credit);
(iv) acting upon any Instruction that it in good faith believes to have been given by a Person authorized to give such Instructions;
(v) any errors in interpretation of technical terms or in translation;
(vi) any acts, omissions or fraud by, or the solvency of, any beneficiary, any nominated person or entity or any other Person, other than an Indemnified Person;
(vii) any breach of contract between the beneficiary and the Account Party or any of the parties to the underlying transaction;
(viii) payment to any paying or negotiating bank (designated or permitted by the
terms of the applicable Letter of Credit) claiming that it rightfully honored or is entitled to reimbursement or indemnity under Standard Letter of Credit Practice applicable to it;
(ix) acting as required or permitted, or failing to act as permitted, in each case under Standard Letter of Credit Practice applicable to where it has issued, confirmed, advised or negotiated such Letter of Credit, as the case may be;
(x) honor of a presentation after the expiration date of any Letter of Credit notwithstanding that a presentation was made prior to such expiration date and dishonored by Bank if subsequently Bank or any court or other finder of fact determines such presentation should have been honored;
(xi) dishonor of any presentation that does not strictly comply or that is fraudulent, forged or otherwise not entitled to honor;
(xii) honor of a presentation that is subsequently determined by Bank to have been made in violation of international, federal, state or local restrictions on the transaction of business with certain prohibited Persons; or
(xiii) amending a Letter of Credit to reflect any change of address or other contact information of any beneficiary
(e) Within 15 Business Days after the Closing Date, the Account Party shall pay to the Bank or its designee all reasonable and documented costs and expenses incurred by the Bank as of the Closing Date (including the reasonable fees and expenses of counsel) in connection with this Agreement, the other Credit Documents and the transactions contemplated hereby.
6. REPRESENTATIONS AND WARRANTIES. The Account Party hereby represents and warrants to Bank (all of which representations and warranties will be repeated as of the date of each new Application submitted by the Account Party to Bank and as of the date of issuance of any Letter of Credit requested in each such Application) as follows:
(a) Organization, etc. It is duly organized or formed, validly existing and (to the extent applicable under the laws of the relevant jurisdiction) in good standing under the laws of the jurisdiction of its organization or formation, and is duly qualified or licensed to do business (and in good standing as a foreign corporation or entity, if applicable) in all jurisdictions in which such qualification or licensing is required or in which the failure to so qualify or to be so licensed would have a Material Adverse Effect. It does not have any Subsidiaries.
(b) Power and Authority. It has the requisite power and authority to execute and deliver this Agreement and each other Credit Document to which it is a party and to perform and observe the terms and conditions stated herein and therein, and it has taken all necessary corporate or other action to authorize its execution, delivery and performance of each such Credit Document.
(c) Valid and Binding Obligation. This Agreement constitutes, and each other Credit Document when signed and delivered by it to Bank will constitute, its legal, valid and
binding obligation, enforceable against it in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights against it generally, by general equitable principles or by principles of good faith and fair dealing, and assuming that this Agreement and each such other Credit Document have been validly executed and delivered by each party thereto other than the Account Party.
(d) No Violation or Breach. Its execution, delivery and performance of each Credit Document to which it is a party and the payment of all sums payable by it under each such Credit Document do not and will not: (i) violate or contravene its memorandum of association, by-laws or other organizational documents; (ii) violate or contravene any order, writ, law, treaty, rule, regulation or determination of any Governmental Authority, in each case applicable to or binding upon it or any of its property, the violation or contravention of which would have a Material Adverse Effect; or (iii) result in the breach of any provision of, or in the imposition of any Lien or encumbrance (except for Liens or encumbrances created under the Credit Documents) under, or constitute a default or event of default under, any agreement or arrangement to which it is a party or by which it or any of its property is bound, the contravention of which agreement or arrangement would have a Material Adverse Effect.
(e) Approvals. No authorization, approval or consent of, or notice to or filing with, any Governmental Authority is required to be made by it in connection with the execution and delivery by it of any Credit Document to which it is a party or the issuance by Bank of any Letter of Credit for the account of the Account Party pursuant to this Agreement and the related Application, except for those which have been duly obtained, taken, given or made and are in full force and effect; and except where failure to obtain the foregoing could not reasonably be expected to have a Material Adverse Effect.
(f) Compliance with Laws. It is in compliance with all applicable laws and regulations, except where the noncompliance with which would not have a Material Adverse Effect, and no Application, Letter of Credit or transaction of the Account Party under any Credit Document to which it is a party will contravene any laws, treaties, rules or regulations of any Governmental Authority, including any foreign exchange control laws or regulations, U.S. foreign assets control laws or regulations or currency reporting laws and regulations, now or hereafter applicable to it, except where the noncompliance with which would not have a Material Adverse Effect.
(g) No Default Under Other Agreements. It is not in default under any agreement, obligation or duty to which it is a party or by which it or any of its property is bound, which would have a Material Adverse Effect.
(h) No Arbitration Proceeding or Litigation. There is no pending or, to the knowledge of the Account Party, threatened arbitration proceeding, litigation or action against it which (i) is reasonably likely to have a Material Adverse Effect or (ii) may affect the legality, validity or enforceability of this Agreement or the other Credit Documents.
(i) Anti-Corruption Laws; Anti-Money Laundering Laws and Sanctions.
(i) None of (i) the Account Party or, to the knowledge of the Account Party, any of
its directors, officers, or employees, or (ii) any agent or representative of the Account Party that will act in any capacity in connection with this Agreement, (A) is a Sanctioned Person or currently the subject or target of any Sanctions, (B) is controlled by or is acting on behalf of a Sanctioned Person or (C) is located, organized or resident in a country or territory that is, or whose government is, the subject of Sanctions, in a manner that would result in the violation of applicable Sanctions by any party hereto.
(ii) The Account Party has implemented and maintains in effect policies and procedures designed to ensure compliance by the Account Party and its directors, officers and employees with all applicable Anti-Corruption Laws, Anti-Money Laundering Laws and Sanctions.
(iii) The Account Party and, to the knowledge of the Account Party, each director, officer, employee and agent of the Account Party, is in compliance with all applicable Anti-Corruption Laws, Anti-Money Laundering Laws and Sanctions in all material respects.
(iv) No proceeds of any Letter of Credit have been used, directly or indirectly, by the Account Party or, to the knowledge of the Account Party, any of its directors, officers, employees and agents in violation of Section 7(h).
(v) The preceding provisions of this Section 6(i) and the provisions of Section 7(h)(ii) and Section 7(j) will not apply to any party hereto to which the EU Blocking Regulation applies, if and to the extent that such provisions are or would be unenforceable pursuant to, or would otherwise result in a breach or violation of, (i) any provision of the EU Blocking Regulation (or any law or regulation implementing the EU Blocking Regulation in any member state of the European Union) or (ii) any similar blocking or anti-boycott law in effect in the United Kingdom.
(j) Filed All Tax Returns and Paid All Taxes. It has filed all required tax returns, and all Taxes, assessments and other governmental charges due from it have been fully paid, except for Taxes which are being contested in good faith or those which the failure to file or pay would not have a Material Adverse Effect. It has established on its books reserves adequate for the payment of all federal, state and other income tax liabilities, including those being contested in good faith.
(k) Financial Statements. The financial statements most recently furnished to Bank by the Account Party fairly present in all material respects the financial condition of the Account Party as at the date of such financial statements and for the periods then ended in accordance with GAAP (except as disclosed therein and, in the case of interim financial statements for any fiscal quarter, subject to normal year-end adjustments and except that footnote and schedule disclosure may be abbreviated), and there has been no material adverse change in the Account Party’s business or financial condition or results of operations since the date of the Account Party’s most recent annual financial statements.
(l) Collateral. On the date of issuance of any Letter of Credit for the account of the Account
Party, both immediately before and after giving effect to such issuance, the amount of Outstanding Letters of Credit does not exceed the Collateral Value of the Collateral.
(m) Margin Stock. It is not engaged principally or as one of its activities in the business of extending credit for the purpose of “purchasing” or “carrying” any “margin stock” (as each such term is defined or used, directly or indirectly, in Regulation U of the Board of Governors of the Federal Reserve System). No part of the proceeds of any Letters of Credit will be used for purchasing or carrying margin stock or for any purpose which violates, or which would be inconsistent with, the provisions of Regulation T, U or X of such Board of Governors.
(n) No Material Adverse Effect. There has been no Material Adverse Effect since December 31, 2020, and there exists no event, condition or state of facts that could reasonably be expected to result in a Material Adverse Effect.
(o) Investment Company. It is not an “investment company” or a company “controlled” by an “investment company” (as each such term is defined or used in the Investment Company Act).
(q) ERISA. It does not have any direct obligation or direct liability in respect of any Plan or Multiemployer Plan, and except as would not reasonably be expected to have a Material Adverse Effect, no ERISA Affiliate thereof has any obligation or liability in respect of any Plan or Multiemployer Plan. With respect to its obligations to each Plan, it is in compliance in all material respects with the applicable provisions of ERISA and the Code and the regulations and published interpretations thereunder and other federal or state laws. No ERISA Event has occurred or is reasonably expected to occur that, when taken together with all other such ERISA Events for which liability is reasonably expected to occur, has had or could reasonably be expected to result in a Material Adverse Effect.
7. AFFIRMATIVE COVENANTS. Until all of the Obligations (other than contingent indemnification obligations not then due) have been paid and satisfied in full in cash, all Letters of Credit have been terminated or expired without any pending drawing thereon, and the Commitment has been terminated, the Account Party covenants and agrees to the following:
(a) GAAP Financial Statements. It shall deliver to Bank, in form and detail satisfactory to Bank:
(i) As soon as available and in any event within 55 days after the end of each of the first three fiscal quarters of each fiscal year, beginning with the fiscal quarter ending March 31, 2021, the Quarterly Statement prepared for its board of directors in accordance with GAAP, in each case 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
(ii) As soon as available and in any event within 90 days after the end of each fiscal
year, beginning with the fiscal year ending December 31, 2020, the Annual Statement prepared for its board of directors in accordance with GAAP, in each case 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.
(b) Certificates; Other Reports. It shall deliver to Bank:
(i) at each time financial statements are delivered pursuant to Section 7(a), a duly completed Officer’s Compliance Certificate signed by the chief executive officer, chief financial officer, vice president—finance, principal accounting officer, treasurer or assistant treasurer of the Account Party, together with a Covenant Compliance Worksheet reflecting the computation of the respective financial covenants set forth in such Covenant Compliance Worksheet;
(ii) promptly upon receipt thereof, copies of all reports, if any, submitted to the Account Party, or any of its respective boards of directors by its respective independent public accountants in connection with their auditing function, including any management report and any management responses thereto;
(iii) promptly upon the request thereof, such other information and documentation required by bank regulatory authorities under applicable Anti-Money Laundering Laws (including any applicable “know your customer” rules and regulations and the PATRIOT Act), as from time to time reasonably requested by Bank; and
(iv) such other information regarding the operations, business affairs and financial condition of the Account Party thereof as Bank may reasonably request.
(c) Notice of Litigation and Other Matters. Promptly (but in no event later than ten (10) days after any Responsible Officer of the Account Party becoming aware thereof), it shall notify Bank in writing of:
(i) the occurrence of any Default or Event of Default;
(ii) the commencement of all proceedings and investigations by or before any Governmental Authority and all actions and proceedings in any court or before any arbitrator against or involving the Account Party or any of its respective properties, assets or businesses in each case that if adversely determined would reasonably be expected to result in a Material Adverse Effect;
(iii) any attachment, judgment, Lien, levy or order exceeding the Threshold Amount that has been assessed against the Account Party; and
(iv) any announcement by A.M. Best of any change in the Financial Strength Rating of the Account Party.
Each notice pursuant to Section 7(c) shall be accompanied by a statement of a Responsible Officer of the Account Party, setting forth details of the occurrence
referred to therein and stating what action the Account Party has taken and proposes to take with respect thereto and shall describe with particularity any and all provisions of this Agreement and any other Credit Document that have been breached.
(d) Collateral. It shall comply with the following:
(i) Pursuant to the Security Documents and as collateral security for the payment and performance of its Obligations, the Account Party shall grant and convey to Bank a security interest in the Collateral charged and pledged by it, prior and superior to all other Liens, except for Liens in favor of the Custodian securing payment of amounts advanced to settle authorized transactions or pay income or distributions in respect of Collateral. The Account Party shall cause the Collateral charged and pledged by it to be made subject to the Security Documents (in form and substance reasonably acceptable to Bank) necessary for the perfection of the security interest in the Collateral and for the exercise by Bank of its rights and remedies with respect thereto. The Account Party shall promptly after the date hereof file a charge against the Collateral with the Bermuda Registrar of Companies and deliver evidence of such filing to Bank no later than thirty (30) days after the date hereof.
(ii) The Account Party shall at all times cause the Collateral Value of the Collateral pledged by the Account Party to equal or exceed the amount of Outstanding Letters of Credit at such time. If on any date the Outstanding Letters of Credit shall exceed the Collateral Value of the Collateral pledged by the Account Party, the Account Party agrees to pay or deliver within three (3) Business Days to the Custodian Collateral having an aggregate Collateral Value of not less than the amount of such excess, with any such Collateral to be held in the Account Party’s Custodial Account as security for all Obligations hereunder.
(iii) The Account Party shall deliver to Bank a Collateral Value Certificate, setting forth the Outstanding Letters of Credit, the fair market value of the Collateral by category and in the aggregate, the calculation of each Collateral Value and such other information as Bank may reasonably request (A) not later than 11:00 a.m. on the Business Day immediately preceding the date on which any Letter of Credit is to be issued, (B) within ten (10) Business Days after the end of each calendar month, (C) at and as of such other times as Bank may reasonably request and (D) at such other times as the Account Party may desire.
(iv) The Account Party shall cause the Custodian to provide to Bank, in a manner and at times consistent with the terms of the Control Agreement, information with respect to each of its Custodial Accounts, in a format to be agreed by Bank (acting reasonably), which information shall provide, without limitation, a detailed list of the assets in each such Custodial Account (including the amount of cash and a detailed description of the Collateral (including a breakdown listing the name of each issuer, and the fair market value of the assets held of such issuer)), the fair market value of those assets and the pricing source of such valuation.
(e) Payment of Taxes and Other Obligations. Except where the failure to pay or perform such items described in this Section would not reasonably be expected to have a
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Material Adverse Effect or impact the Collateral, it will pay and perform all taxes, assessments and other governmental charges that may be levied or assessed upon it or any of its property; provided, that it may contest any item described in this Section in good faith so long as adequate reserves are maintained with respect thereto in accordance with GAAP.
(f) Compliance with Laws and Approvals. It shall observe and remain in compliance in all material respects with all applicable laws and maintain in full force and effect all Governmental Approvals, in each case applicable to the conduct of its business except where the failure to do so would not reasonably be expected to have a Material Adverse Effect.
(g) Maintenance of Books and Records; Inspection. It shall (i) maintain adequate books, accounts and records, in which full, true and correct entries in all material respects 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 Bank, and after the occurrence and during the continuance of an Event of Default, Bank, to visit and inspect its properties and examine or audit its books, records, working papers and accounts and make copies and memoranda of them, and at its own cost and expense (other than after the occurrence of an Event of Default), and to discuss its affairs, finances and accounts with its officers and employees and, upon notice to it, its independent public accountants (and by this provision it authorizes such accountants to discuss its the finances and affairs), all at such times that will not materially interrupt or interfere with the operation of its business and from time to time, upon reasonable notice and during business hours, as may be reasonably requested; provided that except during the continuance of an Event of Default Bank shall not exercise such rights described in clause (ii) of this Section more than once per calendar year.
(h) Use of Proceeds. It shall comply with the following:
(i) The Account Party shall use the Letters of Credit to support insurance obligations, obligations under reinsurance agreements and retrocession agreements and similar risk obligations and for general corporate purposes.
(ii) The Account Party shall not request or use any issued Letter of Credit, (i) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti-Corruption Laws, (ii) for the purpose of funding, financing or facilitating any activities, business or transaction of or with any Sanctioned Person, or in any Sanctioned Country, except to the extent permitted for a Person required to comply with Sanctions or (iii) in any manner that would result in the violation of any Sanctions applicable to any party hereto.
(i) Accuracy of Information. It will ensure that any information, including financial statements or other documents, furnished by it to Bank in connection with this Agreement or any amendment or modification hereof or waiver hereunder contains no material misstatement of fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not
materially misleading, and the furnishing of such information shall be deemed to be a representation and warranty by it on the date thereof as to the matters specified in this Section.
(j) Compliance with Anti-Corruption Laws; Anti-Money Laundering Laws and Sanctions. It shall maintain in effect and enforce policies and procedures designed to ensure compliance by it and its directors, officers, employees and agents with all applicable Anti-Corruption Laws, Anti-Money Laundering Laws, and Sanctions.
(k) Further Assurances. It will execute and deliver to Bank such additional certificates, instruments and/or documents and take such additional action as may be reasonably requested by Bank to enable Bank to issue any Letter of Credit pursuant to this Agreement and the related Application, to perfect and maintain the validity and priority of the Liens granted pursuant to the Security Documents, to protect, exercise and/or enforce Bank’s rights and interests under any Credit Document and/or to give effect to the terms and provisions of any Credit Document.
(l) Maintenance of Existence. It shall (i) maintain its entity existence, and (ii) maintain in full force and effect all licenses, bonds, franchises, leases, trademarks, qualifications and authorizations to do business, and all patents, contracts and other rights necessary or advisable to the profitable conduct of its businesses, in each case except where failure to do so could not reasonably be expected to have a Material Adverse Effect.
(m) Change in Nature of Business. It shall will not, at any time from the date hereof until the Final Expiry Date, make any material change in the nature of its business as carried on at the date hereof that could be reasonably expected to have a Material Adverse Effect or enter into any new line of business that is not similar, corollary, related, ancillary, incidental or complementary, or a reasonable extension, development or expansion thereof or ancillary thereto the business as carried on as of the date hereof.
(n) Payment of Liabilities. It shall pay and discharge, in the ordinary course of business, all obligations and liabilities (including tax liabilities and other governmental charges), except where the same may be contested in good faith by appropriate proceedings and for which adequate reserves with respect thereto have been established in accordance with GAAP and except where the same could not reasonably be expected to have a Material Adverse Effect.
8. FINANCIAL COVENANTS. Until all of the Obligations (other than contingent indemnification obligations not then due) have been paid and satisfied in full in cash, all Letters of Credit have been terminated or expired, without any pending drawing thereon, and the Commitment terminated, the Account Party covenants and agrees to the following:
(a) Minimum Total Shareholder’s Equity. The total shareholder’s equity of the Account Party, determined in accordance with GAAP, shall be at all times an amount not less $1,905,373,600.00.
(b) Financial Strength Ratings. The Account Party shall at all times maintain a financial strength rating by A.M. Best Company and shall not permit such rating to be lower than “B++.”
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9. NEGATIVE COVENANTS.
(a) [Reserved].
10. EVENTS OF DEFAULT. Each of the following shall be an “Event of Default” under this Agreement:
(a) Failure to Reimburse Draws. The failure by the Account Party to reimburse or pay any drawing under any Letter of Credit or accrued interest thereon on the Due Date therefor.
(b) Failure to Pay Certain Other Amounts. The failure by the Account Party to pay any fee or other amount when due under or in connection with any Credit Document or any Letter of Credit within three (3) Business Days after the same shall become due and payable.
(c) Breach of Representation and Warranty. Any representation, warranty, certification or statement made or furnished by the Account Party under or in connection with any Credit Document or as an inducement to Bank to issue a Letter of Credit shall be false, incorrect or misleading in any material respect when made (except to the extent any such representation, warranty, certification or statement is qualified by materiality or reference to Material Adverse Effect, in which case, such representation, warranty, certification or statement shall be true, correct and complete in all respects).
(d) Failure to Maintain Collateral Value. The Account Party shall fail to maintain at any time Collateral in which Bank shall have a perfected first priority security interest and having a Collateral Value of not less than the Outstanding Letters of Credit and such failure shall continue or remain unremedied for more than the three (3) Business Day period provided for in Section 7(d)(ii).
(e) Failure to Perform or Observe Covenants.
(i) The Account Party’s failure to perform or observe any term, covenant or agreement contained in Sections 7(c)(i), 7(h) or 8; or
(ii) The Account Party’s failure to perform or observe any term, covenant or agreement contained in any Credit Document (other than those referred to in subsections (a), (b), (c), (d) and (e)(i) of this Section 10), and with respect to any such failure or breach that by its nature can be cured, such failure or breach shall continue or remain unremedied for thirty (30) calendar days after the earlier of (1) Bank’s delivery of written notice thereof to the Account Party, and (2) the Account Party having actual knowledge that such failure or breach has occurred.
(f) Insolvency Proceedings, Etc. The Account Party institutes or consents to the institution of any proceeding under any Bankruptcy Law; or makes an assignment for the benefit of creditors; or applies for or consents to the appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or for
all or any material part of its property; or any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer is appointed without the application or consent of the Account Party, and the appointment continues undischarged, undismissed or unstayed for sixty (60) calendar days; or any proceeding under any Bankruptcy Law relating to the Account Party or to all or any material part of their respective property is instituted without the consent of the Account Party, and continues undischarged, undismissed or unstayed for sixty (60) calendar days; or an order for relief is entered in any such proceeding; or the Account Party becomes unable or admits in writing its inability or fails generally to pay its debts as they become due.
(g) Sale of Assets; Merger; Dissolution. There shall occur in one or a series of transactions: (i) the sale, assignment or transfer of all or substantially all of the assets of the Account Party); (ii) a merger, amalgamation or consolidation of the Account Party without the prior written consent of Bank, except that the Account Party may merge, amalgamate or consolidate with any Person so long as the Account Party is the surviving entity in any such transaction; or (iii) the dissolution of the Account Party.
(h) Credit Documents. Any provision of any Credit Document to which the Account Party is a party shall for any reason cease to be valid and binding or enforceable; or the Account Party shall deny or disaffirm in writing the enforceability of any provision of any Credit Document to which it is a party.
(i) Security Documents. Any Security Document to which the Account Party is a party shall for any reason (other than pursuant to the terms thereof) cease to create in favor of Bank a valid and perfected first priority security interest in the Collateral of the Account Party purported to be covered thereby; or Bank shall cease for any reason to hold a perfected first priority security interest in the Collateral of the Account Party; or the Account Party or any Person acting on its behalf shall deny or disaffirm in writing the enforceability of any Security Document.
(j) Indebtedness Cross-Default. The Account Party shall (i) default in the payment of any Indebtedness (other than the Obligations and other than Indebtedness solely among or between the Account Party and its affiliates) the aggregate principal amount (including undrawn committed or available amounts), or with respect to any Hedge Agreement, the Hedge Termination Value, of which is in excess of the Threshold Amount beyond the period of grace if any, provided in the instrument or agreement under which such Indebtedness was created, or (ii) default in the observance or performance of any other agreement or condition relating to any Indebtedness (other than the Obligations and other than in respect of Indebtedness solely among or between the Account Party and its affiliates) the aggregate principal amount (including undrawn committed or available amounts), or with respect to any Hedge Agreement, the Hedge Termination Value, of which is in excess of the Threshold Amount or contained in any instrument or agreement evidencing, securing or relating thereto or any other event shall occur or condition exist other than in respect of an instrument, agreement, or condition solely among or between the Account Party and its affiliates, the effect of which default or other event or condition is to cause with the giving of notice and/or lapse of time, if required, any such Indebtedness
to (A) become due, or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase, prepay, defease or redeem such Indebtedness to be made, prior to its stated maturity (any applicable grace period having expired) or (B) be cash collateralized (it being understood that a pledge of cash collateral by the Account Party to secure a Hedge Agreement as initial or variation margin does not trigger a violation of this clause (B)).
(k) Judgment. One or more judgments, orders or decrees shall be entered against the Account Party by any court and continues without having been discharged, vacated or stayed for a period of thirty (30) consecutive days after the entry thereof and such judgments, orders or decrees are either (i) for the payment of money, individually or in the aggregate (not paid or fully covered by insurance as to which the relevant insurance company has acknowledged coverage), equal to or in excess of the Threshold Amount or (ii) for injunctive relief and could reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
(l) Employee Benefit Matters. Except as would not reasonably be expected to result in a Material Adverse Effect, any Lien shall be imposed on the assets of the Account Party under ERISA with respect to any Plan or under any foreign laws similar to ERISA governing foreign pension plans.
(m) Change in Control. The occurrence of any Change in Control.
11. REMEDIES. Upon the occurrence and during the continuance of any Event of Default:
(a) Bank may terminate the Commitment and declare all amounts owed to Bank under this Agreement or any of the other Credit Documents and all other Obligations, to be forthwith due and payable, whereupon the same shall promptly become due and payable without presentment, demand, protest or other notice of any kind, all of which are expressly waived by the Account Party, anything in this Agreement or the other Credit Documents to the contrary notwithstanding; provided, that upon the occurrence of an Event of Default specified in Section 10(f), the Commitment shall be automatically terminated and all Obligations shall automatically become due and payable without presentment, demand, protest or other notice of any kind, all of which are expressly waived by the Account Party, anything in this Agreement or in any other Credit Document to the contrary notwithstanding.
(b) Solely with respect to the occurrence of an Event of Default under Sections 10(a), (b), (d), or (f), Bank may (i) demand that the Account Party deposit in the Custodial Account an amount of cash equal to 103% of the aggregate Outstanding Letters of Credit to be held and applied to the Obligations and/or (ii) terminate any or all of the Letters of Credit or give Notices of Non-Extension in respect thereof, in each case if permitted in accordance with their terms; provided that upon the occurrence of an Event of Default specified in Section 10(f), the requirement to deliver cash collateralize pursuant to the foregoing clause (i) in respect of all Outstanding Letters of Credit shall automatically become due without demand or other notice of any kind, all of which are expressly waived by the Account Party, anything in this Agreement or in any other Credit Document to the contrary notwithstanding. Such cash collateral shall be applied by Bank to the payment of drafts drawn, and other demands for payments made, under such
Letters of Credit, and the unused portion thereof after all such Letters of Credit shall have expired without any pending drawing thereon, or been fully drawn upon, if any, shall be applied to repay the other Obligations. After all such Letters of Credit shall have expired without any pending drawing thereon, or been fully drawn upon, and all Obligations shall have been paid in full, the balance, if any, in such Custodial Account shall be returned to the Account Party.
(c) Bank may exercise from time to time any of the rights, powers and remedies available to Bank under any Credit Document to which the Account Party is a party, under any other documents now or in the future evidencing or securing the Obligations or under applicable law, and all such remedies shall be cumulative and not exclusive.
12. SUBROGATION. Without limiting any rights or remedies of Bank under applicable law, if an Event of Default is continuing, Bank, at its option, shall be subrogated to the Account Party’s rights against any Person who may be liable to the Account Party on any transaction or obligation underlying any Letter of Credit, to the rights of any holder in due course or Person with similar status against the Account Party, and to the rights of any beneficiary or any successor or assignee of any beneficiary.
13. TERM OF AGREEMENT. This Agreement shall remain in effect from the Closing Date through and including the date upon which all Obligations (other than contingent indemnification obligations not then due) arising hereunder or under any other Credit Document shall have been indefeasibly and irrevocably paid and satisfied in full, all Letters of Credit have been terminated or expired without any pending drawing thereon, and the Commitment has been terminated. No termination of this Agreement shall affect the rights and obligations of the parties hereto arising prior to such termination or in respect of any provision of this Agreement which survives such termination.
14. USA PATRIOT ACT; ANTI-MONEY LAUNDERING LAWS. Bank hereby notifies the Account Party that pursuant to the requirements of the PATRIOT Act or any other Anti-Money Laundering Laws, it is required to obtain, verify and record information that identifies the Account Party, which information includes the name and address of the Account Party and other information that will allow Bank to identify the Account Party in accordance with the PATRIOT Act or such Anti-Money Laundering Laws.
15. GOVERNING LAW; UCP; ISP; STANDARD LETTER OF CREDIT PRACTICE. Each Credit Document and each Letter of Credit shall be governed by and construed in accordance with (a) in the case of each Credit Document (other than the Letters of Credit), the substantive laws of New York and (b) in the case of each Letter of Credit, such Letter of Credit will be governed by and construed in accordance with the governing law (if any) specified in such Letter of Credit, which governing law may be specified by Bank at the Account Party’s request or with its approval (and which governing law may include the laws of a particular jurisdiction and may include specification of ISP or UCP as the practice rules to govern such Letter of Credit), and if any such practice rules are specified in such Letter of Credit then they are incorporated by reference into this Agreement and shall control (to the extent not prohibited by applicable law) to the extent of any conflict with the law applicable to such Letter of Credit. Unless the Account Party specifies otherwise in its Application for a Letter of Credit, the Account Party agrees that Bank may issue a Letter of Credit subject to the ISP or UCP. Bank’s privileges, rights and remedies under the ISP and UCP, as applicable, shall be in addition to, and not in limitation of, its privileges, rights, and remedies expressly provided for herein. The ISP or UCP, as applicable, shall serve, in the absence of proof to the contrary, as evidence of Standard Letter of Credit Practice with respect to matters covered therein. To the extent permitted by applicable law, as between the Account Party and Bank, (i) this Agreement shall prevail in case of conflict between this Agreement, the UCC and/or Standard Letter of
Credit Practice, (ii) the ISP shall prevail in case of conflict between the ISP and the UCC or other Standard Letter of Credit Practice if the Letter of Credit is governed by the ISP, and (iii) the UCP shall prevail in case of a conflict between the UCP and the UCC or other Standard Letter of Credit Practice if the Letter of Credit is governed by the UCP.
16. CONSENT TO JURISDICTION AND VENUE. THE ACCOUNT PARTY HEREBY CONSENTS TO THE EXCLUSIVE JURISDICTION OF ANY STATE COURT WITHIN NEW YORK COUNTY, NEW YORK OR ANY FEDERAL COURT LOCATED WITHIN THE SOUTHERN DISTRICT OF THE STATE OF NEW YORK OR ANY APPELLATE COURT THEREOF 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 BANK OR THE ACCOUNT PARTY 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 BANK OR PROCEEDING TO WHICH BANK OR THE ACCOUNT PARTY IS A PARTY. THE BANK AND THE ACCOUNT PARTY 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 BANK AND THE ACCOUNT PARTY IRREVOCABLY AGREE THAT SERVICE OF PROCESS MAY BE DULY EFFECTED UPON IT BY MAILING A COPY THEREOF, BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO IT AT ITS ADDRESS SET FORTH OR REFERRED TO IN SECTION 19 BELOW. NOTWITHSTANDING THE FOREGOING, NOTHING IN THIS AGREEMENT SHALL AFFECT THE RIGHT OF ANY PARTY TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR THE RIGHT OF BANK TO BRING ANY ACTION OR PROCEEDING AGAINST THE ACCOUNT PARTY OR ITS PROPERTIES IN THE COURTS OF ANY OTHER JURISDICTION.
17. WAIVER OF JURY TRIAL. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE ACCOUNT PARTY AND BANK KNOWINGLY AND VOLUNTARILY WAIVE ALL RIGHTS TO TRIAL BY JURY WITH RESPECT TO ANY LITIGATION BASED ON, ARISING OUT OF, OR RELATING TO ANY CREDIT DOCUMENT OR LETTER OF CREDIT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (ORAL OR WRITTEN) OR ACTIONS OF THE ACCOUNT PARTY OR BANK WITH RESPECT THERETO. THIS WAIVER IS A MATERIAL INDUCEMENT FOR BANK TO ISSUE LETTERS OF CREDIT.
18.
BANKRUPTCY
AND FORFEITURE REINSTATEMENT.
If any consideration transferred to Bank in payment of, or as collateral for,
or in satisfaction of the Obligations, shall be voided in whole or in part as a result of (a) a
subsequent bankruptcy or insolvency proceeding; (b) any forfeiture or seizure
action or remedy; (c) any fraudulent transfer
or preference action
or remedy; or (d) any other civil, criminal
or equitable proceeding or remedy, then Bank’s claim to recover the voided
consideration shall be a new and independent claim arising under the applicable
Credit Document and shall be due and payable immediately by the Account Party
under the terms of the Credit Documents.
19. NOTICES. Unless otherwise expressly provided herein, all notices, Instructions, approvals, requests, demands, consents and other communications provided for hereunder (collectively, “notices”) shall be in writing (including by facsimile or other electronic transmission approved by Bank). All notices shall be sent by regular U.S. mail or registered or certified mail prepaid, by facsimile or other electronic transmission approved by Bank, by hand delivery, by Federal Express (or other comparable domestic or international delivery service) prepaid to the applicable address, facsimile number or electronic mail address set forth on the signature page hereof in the case of the Account Party. All notices to Bank (including notices by email, if Bank approves of receiving notices by email) shall be directed to Bank at Bayerishe Landesbank, Brienner Strasse 18, 80333 Munich, Germany, Attention: Thorsten Klein and Vanessa Niekrawietz, email addresses: Thorsten.Klein@bayernlb.de and Vanessa.Niekrawietz@bayernlb.de, with a copy to Bayerishe Landesbank, 560 Lexington Avenue, 21st
Floor, New York, New York 10022, Attention: Credit Services, email address: creditcompliance@bayernlbny.com. Bank may, but shall not be obligated to, require authentication of any electronic transmission. Notices sent by hand, Federal Express (or other comparable domestic or international delivery service) or registered or certified mail shall be deemed to have been given when received; notices sent by regular U.S. mail shall be deemed to have been received five (5) days after deposit into the U.S. mail; notices sent by facsimile or other electronic transmission shall be deemed to have been given upon receipt by sender of a transmission confirmation or read receipt. The Account Party or Bank may change its address (including email addresses) for notices by notifying the other of the new address in any manner permitted by this Section. The Account Party irrevocably consents that service of process may be made by registered or certified mail directed to it at the address of its agent for service of process, Conyers Corporate Services (Bermuda) Ltd., Clarendon House, 2 Church Street, Hamilton, HM 11 Bermuda.
20. WAIVER AND AMENDMENTS. No modification, amendment or waiver of, or consent to any departure by Bank or the Account Party from, any provision of any Credit Document will be effective unless made in a writing signed by the Account Party (in the case of Bank) or Bank (in the case of the Account Party and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No party’s consent to any amendment, waiver or modification shall mean that such party will consent or has consented to any other or subsequent request to amend, modify or waive a term of any Credit Document. No delay by any party in exercising any of its rights or remedies shall operate as a waiver, nor shall any single or partial waiver of any right or remedy preclude any other further exercise of that right or remedy, or the exercise of any other right or remedy.
21. SUCCESSORS AND ASSIGNS. Each Credit Document to which the Account Party is a party will be binding on the Account Party’s successors and permitted assigns, as applicable, and shall inure to the benefit of the respective successors and permitted assigns of the Account Party and Bank. Except as provided in the last sentence of this Section 21, Bank may assign its rights and obligations under each Credit Document, including its rights to reimbursement regarding any Letter of Credit, in whole or in part, with the Account Party’s consent; provided that the Account Party shall be deemed to have consented to any such assignment unless it objects by written notice to Bank within ten (10) Business Days after having received notice thereof; and, provided further, that the Account Party’s consent to an assignment to any Person shall not be required if (i) the assignment is to an affiliate of Bank or (ii) an Event of Default has occurred and is continuing. Bank may sell to one or more Persons participations in or to all or a portion of its rights and obligations under the Credit Documents without the Account Party’s consent. Any assignment in violation of this Section 21 shall be void. The Account Party shall not assign or transfer any of its interests, rights or remedies related to any Credit Document, in whole or in part, without the prior written consent of Bank. Any Person to whom Bank delegates its obligation to issue a Letter of Credit must be a bank, or a branch or affiliate, that is on the List of Qualified U.S. Financial Institutions maintained by the Securities Valuation Office of the National Association of Insurance Commissioners.
22. SEVERABILITY. Whenever possible, each provision of each Credit Document shall be interpreted in a manner as to be effective and valid under applicable law, but if any provision of any Credit Document shall be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity without invalidating the remainder of such provision or any remaining provisions of such Credit Document.
23. ENTIRE AGREEMENT. This Agreement, together with the other Credit Documents and any other agreement, document or instrument referred to herein, constitute the final, exclusive and entire
1681v13 019861.0101
agreement and understanding of, and supersede all prior or contemporaneous, oral or written, agreements, understandings, representations and negotiations between, the parties relating to the subject matter of the Credit Documents, provided that this Agreement shall not supersede any reimbursement agreement (however titled) that has been entered into specifically with respect to any “direct pay” standby letter of credit or other similar standby letter of credit where the terms of such reimbursement agreement have been drafted to specifically address the particular attributes of, or the particular circumstances of the underlying transaction supported by, such standby letter of credit.
24. SURVIVAL. All covenants, agreements, representations and warranties made by the Account Party herein and in the other Credit Documents and in the certificates or other instruments delivered in connection with or pursuant to this Agreement or any other Credit Documents shall be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of this Agreement and the issuance of any Letters of Credit, regardless of any investigation made by any such other party or on its behalf and notwithstanding that Bank may have had notice or knowledge of any Event of Default or incorrect representation or warranty at the time any credit is extended hereunder, and shall continue in full force and effect as long as the principal of or any accrued interest on any fee or any other amount payable under this Agreement is outstanding and unpaid or any Letter of Credit is outstanding and so long as the Commitments have not expired or terminated. The provisions of Sections 2(b)(v), 2(b)(vi), 2(c) and 5 shall survive and remain in full force and effect regardless of the consummation of the transactions contemplated hereby, the expiration or termination of the Letters of Credit and the Commitments or the termination of this Agreement or any provision hereof.
25. INTERPRETATION; COUNTERPARTS; ELECTRONIC EXECUTION. In this Agreement, (a) the term “including” means “including without limitation”; (b) the terms “will” and “shall” shall have the same meaning, (c) unless the context requires otherwise, references herein to Sections shall be construed to refer to Sections of this Agreement; (d) references to any laws, rules, or regulations include any amendments thereto or successor or replacement laws, rules, or regulations; and (e) references to actions Bank “may” take or omit to take mean “may in its sole discretion”.
26. COUNTERPARTS; ELECTRONIC EXECUTION. This Agreement may be executed by one or more of the parties to this Agreement on any number of separate counterparts and all of such counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of an executed signature page of this Agreement by any electronic means that reproduces an image of the actual executed signature page shall be effective as delivery of a manually executed counterpart hereof.
27. NO FIDUCIARY DUTY, ETC.
(a) The Account Party acknowledges and agrees that Bank will not have any obligations except those obligations expressly set forth herein and in the other Credit Documents and Bank is acting solely in the capacity of an arm’s length contractual counterparty to the Account Party with respect to the Credit Documents and the transactions contemplated herein and therein and not as a financial advisor or a fiduciary to, or an agent of, the Account Party or any other Person. The Account Party agrees that it will not assert any claim against Bank based on an alleged breach of fiduciary duty by Bank in connection with this Agreement and the transactions contemplated hereby. Additionally, the Account Party acknowledges and agrees that Bank is not advising the Account Party as to any legal, tax, investment, accounting, regulatory or any other matters in any jurisdiction. The Account Party shall consult with its own advisors concerning such matters and shall be responsible for making its own
independent investigation and appraisal of the transactions contemplated herein or in the other Credit Documents, and Bank shall have no responsibility or liability to the Account Party with respect thereto.
(b) The Account Party further acknowledges and agrees that Bank, together with its branches and affiliates, is a full service securities or banking firm engaged in securities trading and brokerage activities as well as providing investment banking and other financial services. In the ordinary course of business, Bank may provide investment banking and other financial services to, and/or acquire, hold or sell, for its own accounts and the accounts of customers, equity, debt and other securities and financial instruments (including bank loans and other obligations) of, the Account Party and other companies with which the Account Party may have commercial or other relationships. With respect to any securities and/or financial instruments so held by Bank or any of its customers, all rights in respect of such securities and financial instruments, including any voting rights, will be exercised by the holder of the rights, in its sole discretion.
(c) In addition, the Account Party acknowledges and agrees that Bank and its affiliates may be providing debt financing, equity capital or other services (including financial advisory services) to other companies in respect of which the Account Party may have conflicting interests regarding the transactions described herein and otherwise. Bank will not use confidential information obtained from the Account Party by virtue of the transactions contemplated by the Credit Documents or its other relationships with the Account Party in connection with the performance by Bank of services for other companies, and Bank will not furnish any such information to other companies. The Account Party also acknowledges that Bank has no obligation to use in connection with the transactions contemplated by the Credit Documents, or to furnish to the Account Party, confidential information obtained from other companies.
28. JUDGMENT CURRENCY. The Account Party’s obligation to make payments in any currency (the “Specified Currency”) shall not be discharged or satisfied by any tender, or any recovery pursuant to any judgment or otherwise, which is expressed in or converted into any currency other than the Specified Currency, except to the extent that such tender or recovery results in the actual receipt by Bank of the full amount of the Specified Currency payable under this Agreement. The Account Party shall indemnify Bank for any shortfall and the Account Party’s obligation to indemnify Bank and make payments in the Specified Currency shall be enforceable as an alternative or additional cause of action to the extent that such actual receipt is less than the full amount of the Specified Currency expressed to be payable hereunder, and shall not be affected by judgment being obtained for other sums due hereunder.
29. ACKNOWLEDGEMENT AND CONSENT TO BAIL-IN OF AFFECTED FINANCIAL INSTITUTIONS. Notwithstanding anything to the contrary in any Credit Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Affected Financial Institution arising under any Credit Document may be subject to the Write-Down and Conversion Powers of the applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
(a) the application of any Write-Down and Conversion Powers by an the applicable Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an Affected Financial Institution; and
(b) the effects of any Bail-In Action on any such liability, including, if applicable:
1681v13 019861.0101
(i) a reduction in full or in part or cancellation of any such liability;
(ii) a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected Financial Institution, its parent entity, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Credit Document; or
(iii) the variation of the terms of such liability in connection with the exercise of the Write-Down and Conversion Powers of the applicable Resolution Authority.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this Standby Letter of Credit as of the date first set forth above.
ACCOUNT PARTY:
EVEREST REINSURANCE (BERMUDA), LTD.
By: /S/ PETER BELL
Name: Peter Bell
Title: CEO
Address for Notices:
Seon Place, 4th floor 141 Front Street
Hamilton HM19 Bermuda
BANK:
BAYERISCHE LANDESBANK
By: /S/ THOMAS LEHMPUHL
Name: Thomas Lehmpuhl
Title: Managing Director
By: /S/ THORSTEN KLEIN
Name: Thorsten Klein
Title: Director
1681v13 019861.0101
EXHIBIT A
FORM OF
OFFICER’S COMPLIANCE CERTIFICATE
THIS CERTIFICATE is given pursuant to Section 7(c)(i) of the Standby Letter of Credit Agreement, dated as of August 27, 2021 (as amended, restated, modified or supplemented from time to time, the “Credit Agreement,” the terms defined therein being used herein as therein defined), among Everest Reinsurance (Bermuda), Ltd., a company incorporated and existing under the laws of Bermuda (the “Account Party”), and Bayerische Landesbank (the “Bank”).
The undersigned hereby certifies that:
1. He or she is the [Chief Executive Officer] [Chief Financial Officer] [Vice President— Finance] [Principal Accounting Officer] [Treasurer] [Assistant Treasurer] of the Account Party.
2. Enclosed with this Certificate are copies of the financial statements of the Account Party as of , and for the [ -month period] [year] then ended, required to be delivered under Section 7(a) of the Credit Agreement. Such financial statements have been prepared in accordance with GAAP [(subject to the absence of notes required by GAAP and subject to normal year-end adjustments)]1 and present fairly, in all material respects, the financial condition of the Account Party on a consolidated basis as of the date indicated and the results of operations of the Account Party on a consolidated basis for the period covered thereby.
3. The undersigned has reviewed the terms of the Credit Agreement and has made, or caused to be made under the supervision of the undersigned, a review in reasonable detail of the transactions and condition of the Account Party during the accounting period covered by such financial statements.
4. The examination described in paragraph 3 above did not disclose, and the undersigned has no knowledge of the existence of, any Default or Event of Default during or at the end of the accounting period covered by such financial statements or as of the date of this Certificate [, except as set forth below.
Describe here or in a separate attachment any exceptions to paragraph 4 above by listing, in reasonable detail, the nature of the Default or Event of Default, the period during which it existed and the action that Everest has taken or proposes to take with respect thereto].
5. Attached to this Certificate as Annex A is a covenant compliance worksheet reflecting the computation of the financial covenants set forth in Section 8 of the Credit Agreement as of the last day of the period covered by the financial statements enclosed herewith.
IN WITNESS WHEREOF, the undersigned has executed and delivered this Certificate as of the
day of , .
EVEREST REINSURANCE (BERMUDA), LTD.
By:
Name:
Title:
ANNEX A
COVENANT COMPLIANCE WORKSHEET
A. Minimum Total Shareholder’s Equity (Section 8(a) of the Credit Agreement)
(1) Total Shareholder’s Equity as of the date of determination |
|
a) Required: |
$1,905,373,600.00 |
b) Actual: |
$
|
B. Financial Strength Rating (Section 8(b) of the Credit Agreement)
(1) Has the Account Party maintained a financial strength rating by A.M. Best Company at all times from the date of the most recently delivered Officer’s Compliance Certificate to and including the date hereof? |
Yes |
No |
(2) Has the financial strength rating by A.M. Best Company for the Account Party been equal to or better than “B++” at all times during the period described in line (1) above? |
Yes |
No |
1681v13 019861.0101
EXHIBIT B
FORM OF COLLATERAL VALUE CERTIFICATE
, 20
THE BANK NAME ADDRESS
Ladies and Gentlemen:
Reference is made to the Standby Letter of Credit Agreement, dated as of August 27, 2021, among Everest Reinsurance (Bermuda), Ltd., a company incorporated and existing under the laws of Bermuda (the “Account Party”), and Bayerische Landesbank (the “Bank”) (as amended or otherwise modified from time to time, the “Credit Agreement”). Terms defined in the Credit Agreement are, unless otherwise defined herein or the context otherwise requires, used herein as defined therein.
This Collateral Value Certificate is delivered pursuant to Section 7(e)(iii) of the Credit
Agreement. The date of this Collateral Value Certificate is , 20 (the “Certificate
Date”). Set forth on Attachment A is the computation of the Collateral Value of the Collateral and certain other information required by Section 7(e)(iii) of the Credit Agreement as of , 20 (the “Valuation Date”), calculated in accordance with the definition of “Collateral Value” contained in the Credit Agreement and the other provisions of the Credit Agreement (including Schedule I thereto).
The undersigned hereby certifies that (i) the information on Attachment A correctly sets forth the Collateral Value (in the aggregate and for each category of Collateral) and the Outstanding Letters of Credit as of the Valuation Date; (ii) the Outstanding Letters of Credit do not exceed the aggregate Collateral Value as of the Valuation Date; and (iii) nothing has come to the attention of the undersigned to cause the undersigned to believe that Bank does not have a first priority perfected Lien on and security interest in the Collateral set forth on Attachment A as of the Certificate Date.
[Signature page to follow]
ACCOUNT PARTY:
EVEREST REINSURANCE (BERMUDA), LTD.
By:______________________________
Name:
Title:
ATTACHMENT A
COLLATERAL VALUE OF THE COLLATERAL
Type of Security |
Value |
Advance Rates |
Collateral Value |
Cash (denominated in USD) or Certificate of Deposit |
$ |
100% |
$ |
Mutual Funds |
$
$ |
75%
75% |
$
$ |
Listed (on a nationally recognized U.S. exchange) Money Market Mutual Funds
U.S. Fixed Income Mutual Funds (excluding high yield and tax exempt)
|
|||
U.S. Government Bills, Notes, and U.S. Government Sponsored Agency Securities(1) |
|
|
|
Maturing in 5 years or less |
$ |
95% |
$ |
Maturing in more than 5 years |
$ |
90% |
$ |
High Grade U.S. Corporate/Municipal/Structured Fixed Income Securities (AA/Aa2 or better) |
|
|
|
Maturing in 5 years or less |
$ |
90% |
$ |
Maturing in more than 5 years |
$ |
85% |
$ |
Intermediate Grade U.S. Corporate/Municipal/Structured Fixed Income Securities (BBB/Baa2 or better but worse than AA/Aa2) (2) |
|
|
|
Maturing in 5 years or less |
$ |
85% |
$ |
Maturing in more than 5 years |
$ |
80% |
$ |
Commercial Paper |
|
|
|
A1 or P1 Graded Commercial Paper |
$ |
85% |
$ |
A2 or P2 Graded Commercial Paper |
$ |
80% |
$ |
Total Collateral Value |
|
|
$ |
Notes:
(1) U.S. Government Bills/Notes/Sponsored Agencies include: U.S. Treasury Bills, Notes, and Bonds; U.S. Government Agency and U.S. Government Sponsored Enterprise (GSE) Securities. Also included are Mortgage- Backed Securities (MBSs). GSE and MBS securities include Fannie Mae, Freddie Mac, Ginnie
Mae, FHLB System Banks, and Federal Farm Credit Banks.
(2) Securities rated BBB or Baa2 shall not comprise greater than 20% of Collateral Value.
Outstanding Letters of Credit
Beneficiary |
Issue Date |
Undrawn Amount |
Unreimbursed Drawings |
|
|
$ |
$ |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Outstanding Letters of Credit |
|
$ |
$ |
Ratio of aggregate Collateral Value to Outstanding Letters of Credit:
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their duly authorized officers as of the date first above written.
Everest Reinsurance (Bermuda), Ltd.
By: /S/ CHRISTOPHER S. DOWNEY
Name: Christopher S. Downey
Title: Managing Director and Chief Executive Officer
Error! Unknown document property name.
Signature Page to First Amendment to Standby Letter of Credit
WELLS FARGO BANK, NATIONAL ASSOCIATION
By: /S/ WILLIAM R. GOLEY
Name: William R. Goley
Title: Managing Director
WELLS FARGO BANK, NATIONAL ASSOCIATION
By: /S/ WILLIAM R. GOLEY
Name: William R. Goley
Title: Managing Director
Signature Page to First Amendment to Standby Letter of Credit
SCHEDULE I
COLLATERAL BASE
Type of Security |
Advance Rates |
Cash (denominated in USD) or Certificate of Deposit |
100% |
Mutual Funds |
|
Listed (on a nationally recognized U.S. exchange) Money Market Mutual Funds |
90% |
U.S. Fixed Income Mutual Funds (excluding high yield and tax exempt) |
80% |
U.S. Government Bills, Notes, and U.S. Government Sponsored Agency Securities(1) |
|
Maturing in 5 years or less |
95% |
Maturing in more than 5 years |
90% |
High Grade U.S. Corporate/Municipal/Structured Fixed Income Securities (AA/Aa2 or better) |
|
Maturing in 5 years or less |
90% |
Maturing in more than 5 years |
85% |
Intermediate Grade U.S. Corporate/Municipal/Structured Fixed Income Securities (BBB/Baa2 or better but worse than AA/Aa2)(2) |
|
Maturing in 5 years or less |
85% |
Maturing in more than 5 years |
80% |
Commercial Paper |
|
A1 or P1 Graded Commercial Paper |
85% |
A2 or P2 Graded Commercial Paper |
80% |
Notes:
(1) U.S. Government Bills/Notes/Sponsored Agencies include: U.S. Treasury Bills, Notes, and Bonds; U.S. Government Agency and U.S. Government Sponsored Enterprise (GSE) Securities. Also included are Mortgage-Backed Securities (MBSs). GSE and MBS securities include Fannie Mae, Freddie Mac, Ginnie Mae, FHLB System Banks, and Federal Farm Credit Banks.
(2) Securities rated BBB or Baa2 shall not comprise greater than 20% of Collateral Value.
Signature Page to First Amendment to Standby Letter of Credit
EXHIBIT A
FORM OF
OFFICER’S COMPLIANCE CERTIFICATE
THIS CERTIFICATE is given pursuant to Section 7(c)(i) of the Standby Letter of Credit Agreement, dated as of February 23, 2021 (as amended, restated, modified or supplemented from time to time, the “Credit Agreement,” the terms defined therein being used herein as therein defined), among Everest Reinsurance (Bermuda), Ltd., a company incorporated and existing under the laws of Bermuda (the “Account Party”), and Wells Fargo Bank, National Association (the “Bank”).
The undersigned hereby certifies that:
1. He or she is the [Chief Executive Officer] [Chief Financial Officer] [Vice President—Finance] [Principal Accounting Officer] [Treasurer] [Assistant Treasurer] of the Account Party.
2. Enclosed with this Certificate are copies of the financial statements of the Account Party and its Subsidiaries as of _____________, and for the [________-month period] [year] then ended, required to be delivered under Section 7(a) of the Credit Agreement. Such financial statements have been prepared in accordance with GAAP [(subject to the absence of notes required by GAAP and subject to normal year-end adjustments)] and present fairly, in all material respects, the financial condition of the Account Party and its Subsidiaries on a consolidated basis as of the date indicated and the results of operations of the Account Party and its Subsidiaries on a consolidated basis for the period covered thereby.
3. The undersigned has reviewed the terms of the Credit Agreement and has made, or caused to be made under the supervision of the undersigned, a review in reasonable detail of the transactions and condition of the Account Party and its Subsidiaries during the accounting period covered by such financial statements.
4. The examination described in paragraph 3 above did not disclose, and the undersigned has no knowledge of the existence of, any Default or Event of Default during or at the end of the accounting period covered by such financial statements or as of the date of this Certificate [, except as set forth below.
Describe here or in a separate attachment any exceptions to paragraph 4 above by listing, in reasonable detail, the nature of the Default or Event of Default, the period during which it existed and the action that Everest has taken or proposes to take with respect thereto].
5. Attached to this Certificate as Annex A is a covenant compliance worksheet reflecting the computation of the financial covenants set forth in Section 8 of the Credit Agreement as of the last day of the period covered by the financial statements enclosed herewith.
IN WITNESS WHEREOF, the undersigned has executed and delivered this Certificate as of the _______ day of _____________, ____.
EVEREST REINSURANCE (BERMUDA), LTD.
By:______________________________________
Name:____________________________________
Title:_____________________________________
ANNEX A
COVENANT COMPLIANCE WORKSHEET
A. Minimum Total Shareholder’s Equity
(Section 8(a) of the Credit Agreement)
(1) Total Shareholder’s Equity as of the date of determination |
|
|
|
a) Required: |
|
|
$2,143,539,163.00 |
b) Actual: |
|
|
$ |
Signature Page to First Amendment to Standby Letter of Credit
B. Financial Strength Rating
(Section 8(b) of the Credit Agreement)
(1) Has the Account Party maintained a financial strength rating by A.M. Best Company at all times from the date of the most recently delivered Officer’s Compliance Certificate to and including the date hereof? |
___ Yes |
___ No |
(2) Has the financial strength rating by A.M. Best Company for the Account Party been equal to or better than “B++” at all times during the period described in line (1) above? |
___ Yes |
___ No |
Signature Page to First Amendment to Standby Letter of Credit
Error! Unknown document property name.
EXHIBIT B
FORM OF
COLLATERAL VALUE CERTIFICATE
____________, 20__
Wells Fargo Corporate Banking
550 South Tryon Street
MAC D1086-330
Charlotte, NC 28202
Attention: William R. Goley
Ladies and Gentlemen:
Reference is made to the Standby Letter of Credit Agreement, dated as of February 23, 2021, among Everest Reinsurance (Bermuda), Ltd., a company incorporated and existing under the laws of Bermuda (the “Account Party”), and Wells Fargo BaPnk, National Association (the “Bank”) (as amended or otherwise modified from time to time, the “Credit Agreement”). Terms defined in the Credit Agreement are, unless otherwise defined herein or the context otherwise requires, used herein as defined therein.
This Collateral Value Certificate is delivered pursuant to Section 7(e)(iii) of the Credit Agreement. The date of this Collateral Value Certificate is _____________, 20__ (the “Certificate Date”). Set forth on Attachment A is the computation of the Collateral Value of the Collateral and certain other information required by Section 7(e)(iii) of the Credit Agreement as of ______________, 20__ (the “Valuation Date”), calculated in accordance with the definition of “Collateral Value” contained in the Credit Agreement and the other provisions of the Credit Agreement (including Schedule I thereto).
The undersigned hereby certifies that (i) the information on Attachment A correctly sets forth the Collateral Value (in the aggregate and for each category of Collateral) and the Outstanding Letters of Credit as of the Valuation Date; (ii) the Outstanding Letters of Credit do not exceed the aggregate Collateral Value as of the Valuation Date; and (iii) nothing has come to the attention of the undersigned to cause the undersigned to believe that the Bank does not have a first priority perfected Lien on and security interest in the Collateral set forth on Attachment A as of the Certificate Date.
[Signature page to follow]
Signature Page to First Amendment to Standby Letter of Credit
Error! Unknown document property name.
ACCOUNT PARTY:
EVEREST REINSURANCE (BERMUDA), LTD.
By: ____________________________________
Name:
Title:
Signature Page to First Amendment to Standby Letter of Credit
Error! Unknown document property name.
ATTACHMENT A
COLLATERAL VALUE OF THE COLLATERAL
Type of Security |
Value |
Advance Rates |
Collateral Value |
Cash (denominated in USD) or Certificate of Deposit |
$________ |
100% |
$________ |
Mutual Funds |
|
|
|
Listed (on a nationally recognized U.S. exchange) Money Market Mutual Funds
U.S. Fixed Income Mutual Funds (excluding high yield and tax exempt) |
$________
$________ |
90%
80% |
$________
$________ |
U.S. Government Bills, Notes, and U.S. Government Sponsored Agency Securities(1) |
|
|
|
Maturing in 5 years or less |
$________ |
95% |
$________ |
Maturing in more than 5 years |
$________ |
90% |
$________ |
High Grade U.S. Corporate/Municipal/Structured Fixed Income Securities (AA/Aa2 or better) |
|
|
|
Maturing in 5 years or less |
$________ |
90% |
$________ |
Maturing in more than 5 years |
$________ |
85% |
$________ |
Intermediate Grade U.S. Corporate/Municipal/Structured Fixed Income Securities (BBB/Baa2 or better but worse than AA/Aa2)(2) |
|
|
|
Maturing in 5 years or less |
$________ |
85% |
$________ |
Maturing in more than 5 years |
$________ |
80% |
$________ |
Commercial Paper |
|
|
|
A1 or P1 Graded Commercial Paper |
$________ |
85% |
$________ |
A2 or P2 Graded Commercial Paper |
$________ |
80% |
$________ |
Total Collateral Value |
|
|
$________ |
Notes:
(1) U.S. Government Bills/Notes/Sponsored Agencies include: U.S. Treasury Bills, Notes, and Bonds; U.S. Government Agency and U.S. Government Sponsored Enterprise (GSE) Securities. Also included are Mortgage-Backed Securities (MBSs). GSE and MBS securities include Fannie Mae, Freddie Mac, Ginnie Mae, FHLB System Banks, and Federal Farm Credit Banks.
(2) Securities rated BBB or Baa2 shall not comprise greater than 20% of Collateral Value.
Signature Page to First Amendment to Standby Letter of Credit
Outstanding Letters of Credit
Beneficiary |
Issue Date |
Undrawn Amount |
Unreimbursed Drawings |
|
|
$________ |
$________ |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Outstanding Letters of Credit |
|
$________ |
$________ |
Ratio of aggregate Collateral Value to Outstanding Letters of Credit: ____________
Signature Page to First Amendment to Standby Letter of Credit
Error! Unknown document property name.
Exhibit 31.1
CERTIFICATIONS
I, Juan C. Andrade, certify that:
1. I have reviewed this quarterly report on Form 10-Q of Everest Re Group, Ltd;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f)and 15d-15(f)) for the registrant and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5. The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
November 4, 2021
Error! Unknown document property name.
/S/ JUAN C. ANDRADE |
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Juan C. Andrade |
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President and |
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Chief Executive Officer |
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Exhibit 31.2
CERTIFICATIONS
I, Mark Kociancic, certify that:
1. I have reviewed this quarterly report on Form 10-Q of Everest Re Group, Ltd;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f)and 15d-15(f)) for the registrant and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5. The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
November 4, 2021
Error! Unknown document property name.
/S/ MARK KOCIANCIC |
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Mark Kociancic |
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Executive Vice President and |
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Chief Financial Officer |
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Exhibit 32.1
CERTIFICATIONS PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the Quarterly Report on Form 10-Q for the quarter ended September 30, 2021 of Everest Re Group, Ltd., a company organized under the laws of Bermuda (the “Company”), filed with the Securities and Exchange Commission on the date hereof (the “Report”), the undersigned hereby certify, pursuant to 18 U.S.C. ss. 1350, as enacted by section 906 of the Sarbanes-Oxley Act of 2002, that:
1. The Report fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934, and
2. The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
November 4, 2021
/S/ JUAN C. ANDRADE |
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Juan C. Andrade |
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President and |
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Chief Executive Officer |
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/S/ MARK KOCIANCIC |
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Mark Kociancic |
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Executive Vice President and |
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Chief Financial Officer |
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