x
|
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
|
o
|
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
|
CAYMAN ISLANDS
|
N/A
|
(State or other jurisdiction of incorporation or organization)
|
(I.R.S. employer identification no.)
|
65 MARKET STREET
SUITE 1207, CAMANA BAY
P.O. BOX 31110
GRAND CAYMAN
CAYMAN ISLANDS
|
KY1-1205
|
(Address of principal executive offices)
|
(Zip code)
|
Class A Ordinary Shares, $0.10 par value
|
30,200,835
|
Class B Ordinary Shares, $0.10 par value
|
6,254,949
|
(Class)
|
(Outstanding as of October 29, 2010)
|
Page
|
|||||
PART I — FINANCIAL INFORMATION
|
|||||
Item 1.
|
|||||
3
|
|||||
4
|
|||||
5
|
|||||
6
|
|||||
7
|
|||||
Item 2.
|
19
|
||||
Item 3.
|
29
|
||||
Item 4.
|
30
|
||||
PART II — OTHER INFORMATION
|
|||||
Item 1.
|
31
|
||||
Item 1A.
|
31
|
||||
Item 2.
|
32
|
||||
Item 3.
|
32
|
||||
Item 4.
|
32
|
||||
Item 5.
|
32
|
||||
Item 6.
|
32
|
||||
|
September
30,
2010
(unaudited)
|
December 31, 2009
|
||||||||
Assets
|
|||||||||
Investments
|
|||||||||
Debt instruments, trading, at fair value
|
$
|
20,060
|
$
|
95,838
|
|||||
Equity securities, trading, at fair value
|
744,292
|
593,201
|
|||||||
Other investments, at fair value
|
172,936
|
141,561
|
|||||||
Total investments
|
937,288
|
830,600
|
|||||||
Cash and cash equivalents
|
9,726
|
31,717
|
|||||||
Restricted cash and cash equivalents
|
631,758
|
590,871
|
|||||||
Financial contracts receivable, at fair value
|
16,491
|
30,117
|
|||||||
Reinsurance balances receivable
|
147,745
|
82,748
|
|||||||
Loss and loss adjustment expense recoverable
|
9,518
|
7,270
|
|||||||
Deferred acquisition costs, net
|
85,172
|
34,401
|
|||||||
Unearned premiums ceded
|
6,325
|
6,478
|
|||||||
Notes receivable
|
14,491
|
15,424
|
|||||||
Other assets
|
2,947
|
4,754
|
|||||||
Total assets
|
$
|
1,861,461
|
$
|
1,634,380
|
|||||
Liabilities and shareholders’ equity
|
|||||||||
Liabilities
|
|||||||||
Securities sold, not yet purchased, at fair value
|
$
|
578,790
|
$
|
570,875
|
|||||
Financial contracts payable, at fair value
|
25,653
|
16,200
|
|||||||
Due to prime brokers
|
22,822
|
—
|
|||||||
Loss and loss adjustment expense reserves
|
161,180
|
137,360
|
|||||||
Unearned premium reserves
|
233,491
|
118,899
|
|||||||
Reinsurance balances payable
|
35,239
|
34,301
|
|||||||
Funds withheld
|
22,482
|
14,711
|
|||||||
Other liabilities
|
10,859
|
12,796
|
|||||||
Performance compensation payable to related party
|
4,145
|
—
|
|||||||
Total liabilities
|
1,094,661
|
905,142
|
|||||||
Shareholders’ equity
|
|||||||||
Preferred share capital (par value $0.10; authorized, 50,000,000; none issued)
|
—
|
—
|
|||||||
Ordinary share capital (Class A: par value $0.10; authorized, 100,000,000; issued and outstanding, 30,200,835 (2009: 30,063,893); Class B: par value $0.10; authorized, 25,000,000; issued and outstanding, 6,254,949 (2009: 6,254,949))
|
3,646
|
3,632
|
|||||||
Additional paid-in capital
|
484,535
|
481,449
|
|||||||
Non-controlling interest in joint venture
|
30,784
|
30,597
|
|||||||
Retained earnings
|
247,835
|
213,560
|
|||||||
Total shareholders’ equity
|
766,800
|
729,238
|
|||||||
Total liabilities and shareholders’ equity
|
$
|
1,861,461
|
$
|
1,634,380
|
Three months ended
September 30,
|
Nine months ended
September 30,
|
|||||||||
2010 | 2009 | 2010 | 2009 | |||||||
Revenues
|
||||||||||
Gross premiums written
|
$
|
151,247
|
$
|
65,983
|
$
|
307,091
|
$
|
207,901
|
||
Gross premium ceded
|
(3,639
|
) |
(2,894
|
) |
(8,228
|
) |
(10,725
|
)
|
||
Net premium written
|
147,608
|
63,089
|
298,863
|
197,176
|
||||||
Change in net unearned premium reserves
|
(68,207
|
) |
(6,432
|
) |
(114,745
|
) |
(44,979
|
) | ||
Net premiums earned
|
79,401
|
56,657
|
184,118
|
152,197
|
||||||
Net investment income
|
33,881
|
32,628
|
39,682
|
148,667
|
||||||
Other income (expense), net
|
(474
|
) |
(145
|
) |
(1,002
|
) |
1,909
|
|||
Total revenues
|
112,808
|
89,140
|
222,798
|
302,773
|
||||||
Expenses
|
||||||||||
Loss and loss adjustment expenses incurred, net
|
50,257
|
34,643
|
114,936
|
88,386
|
||||||
Acquisition costs, net
|
28,807
|
17,767
|
60,183
|
46,591
|
||||||
General and administrative expenses
|
3,392
|
4,081
|
11,633
|
13,788
|
||||||
Total expenses
|
82,456
|
56,491
|
186,752
|
148,765
|
||||||
Net income before non-controlling interest and income tax expense
|
30,352
|
32,649
|
36,046
|
154,008
|
||||||
Non-controlling interest in income of joint venture
|
(1,313
|
) |
(380
|
) |
(1,687
|
) |
(1,716
|
) | ||
Net income before income tax expense
|
29,039
|
32,269
|
34,359
|
152,292
|
||||||
Income tax expense
|
(25
|
) |
(11
|
) |
(84
|
) |
(28
|
) | ||
Net income
|
$
|
29,014
|
$
|
32,258
|
$
|
34,275
|
$
|
152,264
|
||
Earnings per share
|
||||||||||
Basic
|
$
|
0.80
|
$
|
0.89
|
$
|
0.94
|
$
|
4.21
|
||
Diluted
|
$
|
0.78
|
$
|
0.88
|
$
|
0.92
|
$
|
4.16
|
||
Weighted average number of ordinary shares used in the determination of:
|
||||||||||
Basic
|
36,452,224
|
36,286,514
|
36,408,859
|
36,202,860
|
||||||
Diluted
|
37,218,906
|
36,828,726
|
37,174,558
|
36,627,849
|
Nine months ended
September 30, 2010
|
Nine months ended
September 30, 2009
|
|||||||
Ordinary share capital
|
||||||||
Balance – beginning of period
|
$
|
3,632
|
$
|
3,604
|
||||
Issue of Class A ordinary share capital, net of forfeitures
|
14
|
27
|
||||||
Balance – end of period
|
$
|
3,646
|
$
|
3,631
|
||||
Additional paid-in capital
|
||||||||
Balance – beginning of period
|
$
|
481,449
|
$
|
477,571
|
||||
Issue of Class A ordinary share capital
|
32
|
578
|
||||||
Share-based compensation expense, net of forfeitures
|
3,054
|
2,528
|
||||||
Options repurchased
|
—
|
(124
|
) | |||||
Balance – end of period
|
$
|
484,535
|
$
|
480,553
|
||||
Non-controlling interest
|
||||||||
Balance – beginning of period
|
$
|
30,597
|
$
|
6,058
|
||||
Non-controlling interest (withdrawal) contribution from/to joint venture
|
(1,500
|
) |
337
|
|||||
Non-controlling interest in income of joint venture
|
1,687
|
1,716
|
||||||
Balance – end of period
|
$
|
30,784
|
$
|
8,111
|
||||
Retained earnings
|
||||||||
Balance – beginning of period
|
$
|
213,560
|
$
|
4,207
|
||||
Net income
|
34,275
|
152,264
|
||||||
Options repurchased
|
—
|
(89
|
) | |||||
Balance – end of period
|
$
|
247,835
|
$
|
156,382
|
||||
Total shareholders’ equity
|
$
|
766,800
|
$
|
648,677
|
Nine months ended September 30,
|
||||||||
2010
|
2009
|
|||||||
Cash provided by (used in)
Operating activities
|
||||||||
Net income
|
$
|
34,275
|
$
|
152,264
|
||||
Adjustments to reconcile net income to net cash provided by (used in) operating activities
|
||||||||
Net change in unrealized gains and losses on investments and financial contracts
|
1,258
|
(164,936
|
) | |||||
Net realized gains on investments and financial contracts
|
(52,153
|
) |
(8,073
|
) | ||||
Foreign exchange (gain) loss on restricted cash and cash equivalents
|
(3,810
|
) |
2,164
|
|||||
Non-controlling interest in income of joint venture
|
1,687
|
1,716
|
||||||
Share-based compensation expense
|
3,068
|
2,549
|
||||||
Depreciation expense
|
168
|
60
|
||||||
Net change in
|
||||||||
Reinsurance balances receivable
|
(64,997
|
) |
(27,519
|
) | ||||
Loss and loss adjustment expense recoverable
|
(2,248
|
) |
5,011
|
|||||
Deferred acquisition costs, net
|
(50,771
|
) |
(19,551
|
) | ||||
Unearned premiums ceded
|
153
|
(452
|
) | |||||
Other assets
|
1,639
|
(1,763
|
) | |||||
Loss and loss adjustment expense reserves
|
23,820
|
50,186
|
||||||
Unearned premium reserves
|
114,592
|
45,432
|
||||||
Reinsurance balances payable
|
938
|
1,251
|
||||||
Funds withheld
|
7,771
|
(369
|
) | |||||
Other liabilities
|
(1,937
|
) |
3,819
|
|||||
Performance compensation payable to related party
|
4,145
|
16,255
|
||||||
Net cash provided by operating activities
|
$
|
17,598
|
$
|
58,044
|
||||
Investing activities
|
||||||||
Purchase of investments and financial contracts
|
(885,146
|
) |
(890,780
|
) | ||||
Sales of investments and financial contracts
|
860,347
|
1,024,623
|
||||||
Change in due to prime brokers
|
22,822
|
—
|
||||||
Change in restricted cash and cash equivalents, net
|
(37,077
|
) |
(247,589
|
) | ||||
Change in notes receivable, net
|
933
|
(14,383
|
) | |||||
Non-controlling interest (withdrawal) contribution from/to joint venture
|
(1,500
|
) |
337
|
|||||
Fixed assets additions
|
—
|
(1,453
|
) | |||||
Net cash used in investing activities
|
$
|
(39,621
|
) |
$
|
(129,245
|
) | ||
Financing activities
|
||||||||
Net proceeds from exercising of stock options
|
32
|
584
|
||||||
Options repurchased
|
—
|
(213
|
) | |||||
Net cash provided by financing activities
|
$
|
32
|
|
$
|
371
|
|||
Net decrease in cash and cash equivalents
|
(21,991
|
) |
(70,830
|
) | ||||
Cash and cash equivalents at beginning of period
|
31,717
|
94,144
|
||||||
Cash and cash equivalents at end of period
|
$
|
9,726
|
$
|
23,314
|
||||
Supplementary information
|
||||||||
Interest paid in cash
|
$
|
7,840
|
$
|
3,430
|
||||
Interest received in cash
|
3,880
|
3,500
|
||||||
Income tax paid in cash
|
17
|
—
|
1.
|
GENERAL
|
2.
|
SIGNIFICANT ACCOUNTING POLICIES
|
Three months ended
September 30,
|
Nine months ended
September 30,
|
||||||||
2010
|
2009
|
2010
|
2009
|
||||||
Weighted average shares outstanding
|
36,452,224
|
36,286,514
|
36,408,859
|
36,202,860
|
|||||
Effect of dilutive service provider share-based awards
|
177,559
|
148,729
|
178,483
|
125,767
|
|||||
Effect of dilutive employee and director share-based awards
|
589,123
|
393,483
|
587,216
|
299,222
|
|||||
37,218,906
|
36,828,726
|
37,174,558
|
36,627,849
|
||||||
Anti-dilutive stock options outstanding
|
240,000
|
210,000
|
240,000
|
210,000
|
3.
|
FINANCIAL INSTRUMENTS
|
|
Fair value measurements as of September 30, 2010
|
|||||||||||||||
Description
|
Quoted prices in
active markets
(Level 1)
|
Significant other
observable
inputs
(Level 2)
|
Significant
unobservable
inputs
(Level 3)
|
Total
|
||||||||||||
($ in thousands)
|
||||||||||||||||
Assets:
|
||||||||||||||||
Debt instruments
|
$
|
—
|
$
|
16,813
|
$
|
3,247
|
$
|
20,060
|
||||||||
Listed equity securities
|
744,292
|
—
|
—
|
744,292
|
||||||||||||
Commodities
|
122,195
|
—
|
—
|
122,195
|
||||||||||||
Private and unlisted equity securities
|
—
|
1,892
|
39,630
|
41,522
|
||||||||||||
Put options
|
—
|
5,533
|
—
|
5,533
|
||||||||||||
Call options
|
—
|
3,686
|
—
|
3,686
|
||||||||||||
Financial contracts receivable
|
—
|
16,064
|
427
|
16,491
|
||||||||||||
$
|
866,487
|
$
|
43,988
|
$
|
43,304
|
$
|
953,779
|
|||||||||
Liabilities:
|
||||||||||||||||
Debt instruments, sold not yet purchased
|
$
|
—
|
$
|
(1,871
|
) |
$
|
—
|
$
|
(1,871
|
) | ||||||
Listed equity securities, sold not yet purchased
|
(576,394
|
) |
—
|
—
|
(576,394
|
) | ||||||||||
Call options
|
—
|
(525
|
) |
—
|
(525
|
) | ||||||||||
Financial contracts payable
|
—
|
(25,653
|
) |
—
|
(25,653
|
) | ||||||||||
$
|
(576,394
|
) |
$
|
(28,049
|
) |
$
|
—
|
$
|
(604,443
|
) |
Fair value measurements using
significant unobservable inputs
(Level 3)
Three months ended September 30, 2010
|
Fair value measurements using
significant unobservable inputs
(Level 3)
Nine months ended September 30, 2010
|
|||||||||||||||||||||||
Debt
instruments
|
Private
and unlisted equity
securities
|
Financial contracts receivable
|
Total
|
Debt
instruments
|
Private
and unlisted equity
securities
|
Financial contracts receivable
|
Total
|
|||||||||||||||||
($ in thousands)
|
||||||||||||||||||||||||
Beginning balance
|
$
|
1,090
|
$
|
36,924
|
$
|
641
|
$
|
38,655
|
$
|
1,537
|
$
|
25,228
|
$
|
—
|
$
|
26,765
|
||||||||
Purchases, sales, issuances, and settlements, net
|
1,575
|
|
2,452
|
|
—
|
4,027
|
|
1,563
|
|
12,567
|
855
|
14,985
|
||||||||||||
Total realized and unrealized gains (losses) and amortization included in earnings, net
|
582
|
|
254
|
(214
|
)
|
622
|
147
|
|
1,835
|
(428
|
)
|
1,554
|
||||||||||||
Transfers into (out of) Level 3, net
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
||||||||||||||||
Ending balance,
September
30, 2010
|
$
|
3,247
|
$
|
39,630
|
$
|
427
|
$
|
43,304
|
$
|
3,247
|
$
|
39,630
|
$
|
427
|
$
|
43,304
|
Fair value measurements using
significant unobservable inputs
(Level 3)
Three months ended September 30, 2009
|
Fair value measurements using
significant unobservable inputs
(Level 3)
Nine months ended September 30, 2009
|
||||||||||||||||||||
Debt
instruments
|
Private
and unlisted
equity
securities
|
Total |
Debt
instruments
|
Private
and unlisted
equity
securities
|
Total
|
||||||||||||||||
($ in thousands)
|
|||||||||||||||||||||
Beginning balance
|
$
|
6,806
|
$
|
9,530
|
$ |
16,336
|
$
|
4,115
|
$
|
11,776
|
$
|
15,891
|
|||||||||
Purchases, sales, issuances, and settlements, net
|
(3,231
|
)
|
3,140
|
(91
|
)
|
(1,481
|
)
|
3,259
|
1,778
|
||||||||||||
Total realized and unrealized gains (losses) included in earnings, net
|
129
|
2,196
|
2,325
|
(718
|
) |
(169
|
)
|
(887
|
)
|
||||||||||||
Transfers into Level 3, net
|
—
|
1,606
|
1,606
|
1,788
|
1,606
|
3,394
|
|||||||||||||||
Ending balance, September 30, 2009
|
$
|
3,704
|
$
|
16,472
|
$ |
20,176
|
$
|
3,704
|
$
|
16,472
|
$
|
20,176
|
2010
|
Cost/amortized
cost
|
Unrealized
gains
|
Unrealized
losses
|
Fair
value
|
||||||||||||
($ in thousands)
|
||||||||||||||||
Corporate debt – U.S.
|
$
|
18,492
|
$
|
5,944
|
$
|
(4,379
|
)
|
$
|
20,057
|
|||||||
Corporate debt – Non U.S.
|
16
|
—
|
(13
|
)
|
3
|
|||||||||||
Total debt instruments
|
$
|
18,508
|
$
|
5,944
|
$
|
(4,392)
|
$
|
20,060
|
2009
|
Cost / amortized
cost
|
Unrealized
gains
|
Unrealized
losses
|
Fair
value
|
||||||||||||
($ in thousands)
|
||||||||||||||||
Corporate debt – U.S.
|
|
$ |
60,121
|
$
|
36,040
|
$
|
(5,555
|
) |
$
|
90,606
|
||||||
Corporate debt – Non U.S.
|
2,961
|
2,274
|
(3
|
) |
5,232
|
|||||||||||
Total debt instruments
|
|
$ |
63,082
|
$
|
38,314
|
$
|
(5,558
|
) |
$
|
95,838
|
Cost / amortized
cost
|
Fair
value
|
|||||||
($ in thousands)
|
||||||||
Within one year
|
$
|
4,223
|
$
|
5,066
|
||||
From one to five years
|
7,860
|
12,010
|
||||||
From five to ten years
|
3,947
|
1,602
|
||||||
More than ten years
|
2,478
|
1,382
|
||||||
$
|
18,508
|
$
|
20,060
|
2010
|
Cost
|
Unrealized
gains
|
Unrealized
losses
|
Fair
value
|
||||||||||||
($ in thousands)
|
||||||||||||||||
Equities – listed
|
$
|
652,760
|
$
|
105,942
|
$
|
(34,075
|
)
|
$
|
724,627
|
|||||||
Exchange traded funds
|
7,002
|
12,663
|
—
|
19,665
|
||||||||||||
$
|
659,762
|
$
|
118,605
|
$
|
(34,075
|
)
|
$
|
744,292
|
2009
|
Cost
|
Unrealized
gains
|
Unrealized
losses
|
Fair
value
|
||||||||||||
($ in thousands)
|
||||||||||||||||
Equities – listed
|
$
|
510,229
|
$
|
104,768
|
$
|
(40,040
|
) |
$
|
574,957
|
|||||||
Exchange traded funds
|
7,879
|
10,365
|
—
|
18,244
|
||||||||||||
$
|
518,108
|
$
|
115,133
|
$
|
(40,040
|
) |
$
|
593,201
|
2010
|
Cost
|
Unrealized
gains
|
Unrealized
losses
|
Fair
value
|
|||||||||
($ in thousands)
|
|||||||||||||
Commodities
|
$
|
96,551
|
$
|
25,644
|
$
|
—
|
$
|
122,195
|
|||||
Private and unlisted equity securities
|
42,532
|
1,877
|
(2,887
|
)
|
41,522
|
||||||||
Put options
|
16,044
|
—
|
(10,511
|
)
|
5,533
|
||||||||
Call options
|
4,252
|
—
|
(566
|
)
|
3,686
|
||||||||
$
|
159,379
|
$
|
27,521
|
$
|
(13,964
|
)
|
$
|
172,936
|
2009
|
Cost
|
Unrealized
gains
|
Unrealized
losses
|
Fair
value
|
||||||||||||
($ in thousands)
|
||||||||||||||||
Commodities
|
$
|
96,552
|
$
|
5,687
|
$
|
—
|
$
|
102,239
|
||||||||
Private and unlisted equity securities
|
27,636
|
1,430
|
(3,838
|
)
|
25,228
|
|||||||||||
Put options
|
6,269
|
2,540
|
—
|
8,809
|
||||||||||||
Call options
|
6,406
|
51
|
(1,172
|
)
|
5,285
|
|||||||||||
$
|
136,863
|
$
|
9,708
|
$
|
(5,010
|
)
|
$
|
141,561
|
2010 |
Proceeds
|
Unrealized gains
|
Unrealized losses
|
Fair
value
|
|||||||||
($ in thousands)
|
|||||||||||||
Equities – listed
|
$
|
(561,218
|
)
|
$
|
78,343
|
$
|
(69,945
|
)
|
$
|
(552,820
|
)
|
||
Warrants and rights on listed equities
|
—
|
—
|
(538
|
)
|
(538
|
)
|
|||||||
Exchange traded funds
|
(21,601
|
)
|
—
|
(1,435
|
)
|
(23,036
|
)
|
||||||
Debt instruments
|
(1,870
|
)
|
3
|
(4
|
)
|
(1,871
|
)
|
||||||
Call options
|
(827
|
)
|
302
|
—
|
(525
|
)
|
|||||||
$
|
(585,516
|
)
|
$
|
78,648
|
$
|
(71,922
|
)
|
$
|
(578,790
|
)
|
2009 |
Proceeds
|
Unrealized gains
|
Unrealized losses
|
Fair
value
|
||||||||||
($ in thousands)
|
||||||||||||||
Equities - listed
|
$
|
(536,895
|
)
|
$
|
62,278
|
$
|
(79,525
|
)
|
$
|
(554,142
|
)
|
|||
Warrants and rights on listed equities
|
—
|
—
|
(733
|
)
|
(733
|
)
|
||||||||
Exchange traded funds
|
(15,678
|
)
|
—
|
(322
|
)
|
(16,000
|
)
|
|||||||
$
|
(552,573
|
)
|
$
|
62,278
|
$
|
(80,580
|
)
|
$
|
(570,875
|
)
|
Financial contracts
|
Listing
currency
|
Notional amount of
underlying instruments
|
Fair value of net assets
(obligations)
on financial
contracts
|
||||
($ in thousands)
|
|||||||
Financial contracts receivable
|
|||||||
Interest rate options
|
USD
|
1,723,954
|
$
|
4,976
|
|||
Credit default swaps, purchased – sovereign debt
|
USD
|
117,353
|
4,870
|
||||
Credit default swaps, purchased – corporate debt
|
USD
|
180,926
|
239
|
||||
Total return swaps – equities
|
USD
|
45,390
|
5,979
|
||||
Weather derivative swap
|
USD
|
10,000
|
427
|
||||
Total financial contracts receivable, at fair value
|
$
|
16,491
|
|||||
Financial contracts payable
|
|||||||
Credit default swaps, purchased – sovereign debt
|
USD
|
189,898
|
$
|
(3,456
|
)
|
||
Credit default swaps, purchased – corporate debt
|
USD
|
81,453
|
(4,801
|
)
|
|||
Credit default swaps, issued – corporate debt
|
USD
|
35,890
|
(15,963
|
)
|
|||
Total return swaps – equities
|
USD
|
13,410
|
(1,433
|
)
|
|||
Total financial contracts payable, at fair value
|
$
|
(25,653
|
)
|
Financial contracts
|
Listing
currency
|
Notional amount of
underlying instruments
|
Fair value of net assets (obligations) on financial contracts | ||||||
($ in thousands)
|
|||||||||
Financial contracts receivable
|
|||||||||
Interest rate options
|
USD | 1,723,954 |
$
|
20,325
|
|||||
Credit default swaps, purchased – sovereign debt
|
USD | 315,722 |
5,322
|
||||||
Total return swaps – equities
|
USD | 45,516 |
4,470
|
||||||
Total financial contracts receivable, at fair value
|
$
|
30,117
|
|||||||
Financial contracts payable
|
|||||||||
Credit default swaps, purchased – sovereign debt
|
USD | 20,811 |
$
|
(128
|
)
|
||||
Credit default swaps, purchased – corporate debt
|
USD | 121,118 |
(7,281
|
)
|
|||||
Credit default swaps, issued – corporate debt
|
USD | 13,909 |
(8,739
|
)
|
|||||
Total return swaps – equities
|
USD | 2,286 |
(52
|
)
|
|||||
Total financial contracts payable, at fair value
|
$
|
(16,200
|
)
|
Derivatives not designated as hedging instruments
|
Location of gains and losses on derivatives recognized in income
|
Gain (loss) on derivatives recognized in
income for the three months ended
September 30,
|
Gain (loss) on derivatives recognized in income for the nine months ended September 30,
|
|||||||||||||
2010
|
2009
|
2010
|
2009
|
|||||||||||||
($ in thousands)
|
($ in thousands)
|
|||||||||||||||
Interest rate options
|
Net investment income
|
$
|
(2,047
|
)
|
$
|
(3,199
|
) |
(15,350
|
)
|
$
|
2,608
|
|||||
Credit default swaps, purchased – corporate debt
|
Net investment income
|
(3,205
|
)
|
(7,189
|
) |
(677
|
)
|
(13,425
|
) | |||||||
Credit default swaps, purchased – sovereign debt
|
Net investment income
|
(2,127
|
)
|
(3,233
|
) |
5,795
|
|
(12,829
|
) | |||||||
Total return swaps – equities
|
Net investment income
|
3,579
|
2,090
|
5,194
|
3,992
|
|||||||||||
Credit default swaps, issued – corporate debt
|
Net investment income
|
2,571
|
802
|
3,338
|
(1,008
|
) | ||||||||||
Options, futures, warrants, and rights
|
Net investment income
|
(10,585
|
)
|
(3,097
|
) |
(19,075
|
)
|
(10,010
|
) | |||||||
Weather derivative swap
|
Other income (expense) |
(214
|
)
|
— |
(428
|
)
|
— | |||||||||
Total
|
$
|
(12,028
|
)
|
$
|
(13,826
|
) |
$
|
(21,203
|
)
|
$
|
(30,672
|
) |
Derivatives not designated as hedging instruments
|
Three months ended
September 30, 2010
|
Nine months ended
September 30, 2010
|
|||||||||||
Entered
|
Exited
|
Entered
|
Exited
|
||||||||||
($ in thousands)
|
|||||||||||||
Credit default swaps
|
$
|
21,981
|
$
|
—
|
$
|
340,106
|
$
|
206,145
|
|||||
Total return swaps
|
4,372
|
12,905
|
34,471
|
17,323
|
|||||||||
Weather derivative swap
|
—
|
—
|
10,000
|
—
|
|||||||||
Options
|
188,528
|
57,999
|
510,929
|
199,582
|
|||||||||
Futures
|
—
|
—
|
44,436
|
41,762
|
|||||||||
Total
|
$
|
214,881
|
$
|
70,904
|
$
|
939,942
|
$
|
464,812
|
Three months ended
September 30, 2009
|
Nine months ended
September 30, 2009
|
||||||||||||
Derivatives not designated as hedging instruments
|
Entered
|
Exited
|
Entered
|
Exited
|
|||||||||
($ in thousands)
|
|||||||||||||
Credit default swaps
|
$
|
—
|
$
|
151
|
$
|
164,421
|
$
|
21,000
|
|||||
Total return swaps
|
—
|
8,713
|
—
|
20,857
|
|||||||||
Interest rate options
|
416,693
|
—
|
1,319,863
|
—
|
|||||||||
Options
|
86,268
|
38,458
|
214,068
|
60,486
|
|||||||||
Rights – equity
|
—
|
—
|
7,870
|
4,212
|
|||||||||
Total
|
$
|
502,961
|
$
|
47,322
|
$
|
1,706,222
|
$
|
106,555
|
5.
|
RETROCESSION
|
Number of non-vested
restricted shares
|
Weighted average
grant date fair value
|
|||||||
Balance at December 31, 2009
|
474,782
|
$
|
16.51
|
|||||
Granted
|
135,500
|
24.62
|
||||||
Vested
|
(140,285
|
)
|
16.02
|
|||||
Forfeited
|
(898
|
)
|
16.17
|
|||||
Balance at September 30, 2010
|
469,099
|
|
19.00
|
2010
|
2009
|
||||||||
Risk free rate
|
2.94
|
%
|
3.55
|
%
|
|||||
Estimated volatility
|
35.00
|
%
|
30.00
|
%
|
|||||
Expected term
|
10.00
|
years
|
10.00
|
years
|
|||||
Dividend yield
|
0.00
|
%
|
0.00
|
%
|
Number of options
|
Weighted average
exercise price
|
Weighted average
grant date fair value
|
||||||||||
Balance at December 31, 2009
|
1,281,340
|
$ |
14.24
|
$ |
6.33
|
|||||||
Granted
|
80,000
|
32.42
|
10.39
|
|||||||||
Exercised
|
(2,340
|
) |
13.85
|
7.13
|
||||||||
Forfeited
|
—
|
—
|
—
|
|||||||||
Expired
|
—
|
—
|
—
|
|||||||||
Balance at September 30, 2010
|
1,359,000
|
$ |
15.31
|
$ |
6.57
|
Nine months ended
September 30, 2010
|
Nine months ended
September 30, 2009
|
|||||||||||||||
Class A
|
Class B
|
Class A
|
Class B
|
|||||||||||||
Balance – beginning of period
|
30,063,893
|
6,254,949
|
29,781,736
|
6,254,949
|
||||||||||||
Issue of ordinary shares, net of forfeitures
|
136,942
|
—
|
272,157
|
—
|
||||||||||||
Balance – end of period
|
30,200,835
|
6,254,949
|
30,053,893
|
6,254,949
|
8.
|
COMMITMENTS AND CONTINGENCIES
|
2010
|
2011
|
2012
|
2013
|
2014
|
Thereafter
|
Total
|
||||||||||||||||
($ in thousands)
|
||||||||||||||||||||||
Operating lease obligations
|
$
|
69
|
$ |
276
|
$ |
276
|
$ |
276
|
$ |
276
|
$ |
967
|
$ |
2,140
|
||||||||
Specialist service agreement
|
222
|
694
|
400
|
150
|
—
|
—
|
1,466
|
|||||||||||||||
Private equity and limited partnerships
(1)
|
10,011
|
—
|
—
|
—
|
—
|
—
|
10,011
|
|||||||||||||||
$
|
10,302
|
$ |
970
|
$ |
676
|
$ |
426
|
$ |
276
|
$ |
967
|
$ |
13,617
|
|
(1)
|
Given the nature of these investments, the Company is unable to determine with any degree of accuracy when these commitments will be called. Therefore, for purposes of the above table, the Company has assumed that all commitments with no fixed payment schedules will be called during the year ending December 31, 2010.
|
Available
|
Termination Date
|
Notice period required for termination
|
||||||||
($ in thousands)
|
||||||||||
Citibank Europe plc
|
$
|
400,000
|
October 11, 2011
|
120 days prior to termination date
|
||||||
Butterfield Bank (Cayman) Limited
|
60,000
|
June 30, 2011
|
90 days prior to termination date
|
|||||||
Bank of America, N.A
|
100,000
|
July 20, 2011
|
90 days prior to termination date
|
|||||||
$
|
560,000
|
9.
|
SEGMENT REPORTING
|
Three months ended
September 30, 2010
|
Three months ended
September 30, 2009
|
Nine months ended
September 30, 2010
|
Nine months ended
September 30, 2009
|
|||||||||||||||||
($ in thousands)
|
($ in thousands)
|
($ in thousands)
|
($ in thousands)
|
|||||||||||||||||
Property
|
||||||||||||||||||||
Commercial lines
|
$
|
6,052
|
4.0
|
%
|
$
|
3,800
|
5.7
|
%
|
$
|
15,468
|
5.0
|
%
|
$
|
12,363
|
6.0
|
%
|
||||
Personal lines
|
90,291
|
59.7
|
10,948
|
16.6
|
135,904
|
44.3
|
42,479
|
20.4
|
||||||||||||
Total Property
|
96,343
|
63.7
|
14,748
|
22.3
|
151,372
|
49.3
|
54,842
|
26.4
|
||||||||||||
Casualty
|
||||||||||||||||||||
General liability
|
14,510
|
9.6
|
6,770
|
10.3
|
29,609
|
9.6
|
20,933
|
10.1
|
||||||||||||
Marine liability
|
—
|
—
|
—
|
—
|
483
|
0.2
|
—
|
—
|
||||||||||||
Motor liability
|
12,712
|
8.4
|
31,495
|
47.7
|
42,294
|
13.8
|
73,448
|
35.3
|
||||||||||||
Motor physical damage
|
531
|
0.3
|
—
|
—
|
1,924
|
0.6
|
—
|
—
|
||||||||||||
Professional liability
|
—
|
—
|
(47
|
)
|
—
|
1,307
|
0.4
|
4,498
|
2.2
|
|||||||||||
Total Casualty
|
27,753
|
18.3
|
38,218
|
58.0
|
75,617
|
24.6
|
98,879
|
47.6
|
||||||||||||
Specialty
|
||||||||||||||||||||
Financial
|
3,949
|
2.6
|
—
|
—
|
19,599
|
6.4
|
—
|
—
|
||||||||||||
Health
|
14,652
|
9.7
|
10,460
|
15.8
|
48,421
|
15.8
|
37,049
|
17.8
|
||||||||||||
Medical malpractice
|
—
|
—
|
—
|
—
|
(1,929
|
)
|
(0.6
|
)
|
1,033
|
0.5
|
||||||||||
Workers’ compensation
|
8,550
|
5.7
|
2,557
|
3.9
|
14,011
|
4.5
|
16,098
|
7.7
|
||||||||||||
Total Specialty
|
27,151
|
18.0
|
13,017
|
19.7
|
80,102
|
26.1
|
54,180
|
26.0
|
||||||||||||
$
|
151,247
|
100.0
|
%
|
$
|
65,983
|
100.0
|
%
|
$
|
307,091
|
100.0
|
%
|
$
|
207,901
|
100.0
|
%
|
Three months ended
September 30, 2010
|
Three months ended
September 30, 2009
|
Nine months ended
September 30, 2010
|
Nine months ended
September 30, 2009
|
|||||||||||||||||
($ in thousands)
|
($ in thousands)
|
($ in thousands)
|
($ in thousands)
|
|||||||||||||||||
USA
|
$
|
140,940
|
93.2
|
%
|
$
|
62,238
|
94.3
|
%
|
$
|
268,299
|
87.4
|
%
|
$
|
182,053
|
87.6
|
%
|
||||
Worldwide
(2)
|
10,307
|
6.8
|
3,745
|
5.7
|
38,792
|
12.6
|
24,103
|
11.6
|
||||||||||||
Caribbean
|
—
|
—
|
—
|
—
|
—
|
—
|
1,745
|
0.8
|
||||||||||||
$
|
151,247
|
100.0
|
%
|
$
|
65,983
|
100.0
|
%
|
$
|
307,091
|
100.0
|
%
|
$
|
207,901
|
100.0
|
%
|
September 30, 2010
|
June 30, 2010
|
March 31, 2010
|
December 31, 2009
|
September 30, 2009
|
|||||||||||||
($ in thousands, except per share and share amounts)
|
|||||||||||||||||
Basic adjusted and fully diluted adjusted book value per share numerator:
|
|||||||||||||||||
Total shareholders' equity (GAAP)
|
$
|
766,800
|
$
|
735,264
|
$
|
716,694
|
$
|
729,238
|
$
|
648,677
|
|||||||
Less: Non-controlling interest in joint venture
|
(30,784
|
) |
(29,471
|
) |
(29,517
|
)
|
(30,597
|
)
|
(8,111
|
)
|
|||||||
Basic adjusted book value per share numerator
|
$
|
736,016
|
$
|
705,793
|
$
|
687,177
|
$
|
698,641
|
$
|
640,566
|
|||||||
Add: Proceeds from in-the-money options issued and outstanding
|
16,590
|
16,590
|
16,590
|
16,623
|
16,031
|
||||||||||||
Fully diluted adjusted book value per share numerator
|
$
|
752,606
|
$
|
722,383
|
$
|
703,767
|
$
|
715,264
|
$
|
656,597
|
|||||||
Basic adjusted and fully diluted adjusted book value per share denominator:
|
|||||||||||||||||
Ordinary shares issued and outstanding for basic adjusted book value per share denominator
|
36,455,784
|
36,451,784
|
36,415,902
|
36,318,842
|
36,308,842
|
||||||||||||
Add: In-the-money stock options issued and outstanding
|
1,419,000
|
1,419,000
|
|
1,419,000
|
1,421,340
|
1,406,340
|
|||||||||||
Fully diluted adjusted book value per share denominator
|
37,874,784
|
37,870,784
|
37,834,902
|
37,740,182
|
37,715,182
|
||||||||||||
Basic adjusted book value per share
|
$
|
20.19
|
$
|
19.36
|
$
|
18.87
|
$
|
19.24
|
$
|
17.64
|
|||||||
Fully diluted adjusted book value per share
|
$
|
19.87
|
$
|
19.07
|
$
|
18.60
|
$
|
18.95
|
$
|
17.41
|
Three months ended
September 30,
|
Nine months ended
September 30,
|
|||||||||||||||||||||||
($ in thousands)
|
($ in thousands)
|
|||||||||||||||||||||||
2010
|
2009
|
2010
|
2009
|
|||||||||||||||||||||
Frequency
|
$
|
144,889
|
95.8
|
%
|
$
|
62,238
|
94.3
|
%
|
$
|
283,950
|
92.5
|
%
|
$ |
|
176,084
|
84.7
|
%
|
|||||||
Severity
|
6,358
|
4.2
|
3,745
|
5.7
|
23,141
|
7.5
|
31,817
|
15.3
|
||||||||||||||||
Total
|
$
|
151,247
|
100.0
|
%
|
$
|
65,983
|
100.0
|
%
|
$
|
307,091
|
100.0
|
%
|
$ |
|
207,901
|
100.0
|
%
|
Three months ended
September 30,
|
Nine months ended
September 30,
|
|||||||||||||||||||||||||
($ in thousands)
|
($ in thousands)
|
|||||||||||||||||||||||||
2010
|
2009
|
2010
|
2009
|
|||||||||||||||||||||||
Frequency
|
$
|
141,250
|
95.7
|
%
|
$
|
59,493
|
94.3
|
%
|
$
|
275,722
|
92.3
|
%
|
$
|
166,262
|
84.3
|
%
|
||||||||||
Severity
|
6,358
|
4.3
|
3,596
|
5.7
|
23,141
|
7.7
|
30,914
|
15.7
|
||||||||||||||||||
Total
|
$
|
147,608
|
100.0
|
%
|
$
|
63,089
|
100.0
|
%
|
$
|
298,863
|
100.0
|
%
|
$
|
197,176
|
100.0
|
%
|
Three months ended
September 30,
|
Nine months ended
September 30,
|
|||||||||||||||||||||||||
($ in thousands)
|
($ in thousands)
|
|||||||||||||||||||||||||
2010
|
2009
|
2010
|
2009
|
|||||||||||||||||||||||
Frequency
|
$
|
72,684
|
91.5
|
%
|
$
|
47,176
|
83.3
|
%
|
$
|
161,295
|
87.6
|
%
|
$
|
117,208
|
77.0
|
%
|
||||||||||
Severity
|
6,717
|
8.5
|
9,481
|
16.7
|
22,823
|
12.4
|
34,989
|
23.0
|
||||||||||||||||||
Total
|
$
|
79,401
|
100.0
|
%
|
$
|
56,657
|
100.0
|
%
|
$
|
184,118
|
100.0
|
%
|
$
|
152,197
|
100.0
|
%
|
Three months ended
September 30,
|
Nine months ended
September 30,
|
|||||||||||||||||||||||||||
($ in thousands)
|
($ in thousands)
|
|||||||||||||||||||||||||||
2010
|
2009
|
2010
|
2009
|
|||||||||||||||||||||||||
Frequency
|
|
$ |
49,610
|
98.7
|
%
|
|
$ |
30,517
|
88.1
|
%
|
$
|
110,724
|
96.3
|
%
|
$
|
71,226
|
80.6
|
%
|
||||||||||
Severity
|
647
|
1.3
|
4,126
|
11.9
|
4,212
|
3.7
|
17,160
|
19.4
|
||||||||||||||||||||
Total
|
|
$ |
50,257
|
100.0
|
%
|
|
$ |
34,643
|
100.0
|
%
|
$
|
114,936
|
100.0
|
%
|
$
|
88,386
|
100.0
|
%
|
Three months ended
September 30, 2010
|
Three months ended
September 30, 2009
|
|||||||||||||||||||||||
Gross
|
Ceded
|
Net
|
Gross
|
Ceded
|
Net
|
|||||||||||||||||||
($ in thousands)
|
||||||||||||||||||||||||
Losses paid (recovered)
|
$
|
55,189
|
$ |
(770
|
)
|
$ |
54,419
|
$
|
18,889
|
$
|
(185
|
)
|
$
|
18,704
|
||||||||||
Change in reserves
|
(3,595
|
)
|
(567
|
)
|
(4,162
|
)
|
16,081
|
(142
|
)
|
15,939
|
||||||||||||||
Total
|
$
|
51,594
|
$ |
(1,337
|
)
|
$ |
50,257
|
$
|
34,970
|
$
|
(327
|
)
|
$
|
34,643
|
Nine months ended
September 30, 2010
|
Nine months ended
September 30, 2009
|
|||||||||||||||||||||||
Gross
|
Ceded
|
Net
|
Gross
|
Ceded
|
Net
|
|||||||||||||||||||
($ in thousands)
|
||||||||||||||||||||||||
Losses paid (recovered)
|
$
|
95,069
|
$ |
(1,720
|
)
|
$ |
93,349
|
$
|
36,079
|
$
|
(2,868
|
)
|
$
|
33,211
|
||||||||||
Change in reserves
|
23,835
|
(2,248
|
)
|
21,587
|
50,164
|
5,011
|
55,175
|
|||||||||||||||||
Total
|
$
|
118,904
|
$ |
(3,968
|
)
|
$ |
114,936
|
$
|
86,243
|
$
|
2,143
|
$
|
88,386
|
§
|
Adverse loss development of $9.1 million based on data received from the client and our quarterly reserve analysis relating to 2008 and 2009 motor liability contracts, both currently in run-off;
|
§
|
Adverse loss development of $3.4 million based on data received from the client and our quarterly reserve analysis, relating to California wildfires on a 2007 casualty clash contract, resulting in losses being reserved at the full contract limit;
|
§
|
Adverse loss development of $3.0 million on a 2007 multi-year professional liability excess of loss contract, based on data receive from the client and our quarterly reserve analysis;
|
§
|
Elimination of $1.9 million of reserves held on a medical malpractice contract commuted during 2010;
|
§
|
Favorable loss development of $1.6 million in aggregate, on two catastrophe contracts based on data received from the client and our quarterly reserve analysis;
|
§
|
Adverse loss development of $1.2 million on a 2008 professional liability excess of loss contract, based on data received from the client and our quarterly reserve analysis; and
|
§
|
Favorable loss development of $1.1 million in aggregate, on two 2007 professional liability excess of loss contracts, based on data received from the client and our quarterly reserve analysis.
|
Three months ended
September 30,
|
Nine months ended
September 30,
|
|||||||||||||||||||||||||
($ in thousands)
|
($ in thousands)
|
|||||||||||||||||||||||||
2010
|
2009
|
2010
|
2009
|
|||||||||||||||||||||||
Frequency
|
$
|
27,799
|
96.5
|
%
|
$
|
16,193
|
91.1
|
%
|
$
|
57,370
|
95.3
|
%
|
$
|
43,809
|
94.0
|
%
|
||||||||||
Severity
|
1,008
|
3.5
|
1,574
|
8.9
|
2,813
|
4.7
|
2,782
|
6.0
|
||||||||||||||||||
Total
|
$
|
28,807
|
100.0
|
%
|
$
|
17,767
|
100.0
|
%
|
$
|
60,183
|
100.0
|
%
|
$
|
46,591
|
100.0
|
%
|
Three months ended
September 30,
|
Nine months ended
September 30,
|
||||||||
($ in thousands)
|
($ in thousands)
|
||||||||
2010
|
2009
|
2010
|
2009
|
||||||
Realized gains (losses) and movement in unrealized gains (losses), net
|
$
|
41,983
|
$
|
39,648
|
$
|
55,133
|
$
|
170,846
|
|
Interest, dividend and other investment income
|
3,636
|
2,997
|
14,449
|
12,725
|
|||||
Interest, dividend and other investment expenses
|
(4,806
|
)
|
(3,570
|
) |
(16,010
|
) |
(11,006
|
) | |
Investment advisor compensation
|
(6,932
|
)
|
(6,447
|
) |
(13,890
|
) |
(23,898
|
) | |
Net investment income
|
$
|
33,881
|
$
|
32,628
|
$
|
39,682
|
$
|
148,667
|
Nine months ended
September 30, 2010
|
Nine months ended
September 30, 2009
|
|||||||||||||||||||||||
Frequency
|
Severity
|
Total
|
Frequency
|
Severity
|
Total
|
|||||||||||||||||||
Loss ratio
|
68.7
|
% |
18.5
|
% |
62.4
|
% |
60.8
|
%
|
49.0
|
% |
58.1
|
% | ||||||||||||
Acquisition cost ratio
|
35.6
|
% |
12.3
|
% |
32.7
|
% |
37.4
|
%
|
8.0
|
% |
30.6
|
% | ||||||||||||
Composite ratio
|
104.3
|
% |
30.8
|
% |
95.1
|
% |
98.2
|
% |
57.0
|
% |
88.7
|
% | ||||||||||||
Internal expense ratio
|
6.3
|
% |
9.1
|
% | ||||||||||||||||||||
Combined ratio
|
101.4
|
% |
97.8
|
% |
September 30, 2010
|
December 31, 2009
|
|||||||||||||||||||||||
Case
Reserves
|
IBNR
|
Total
|
Case
Reserves
|
IBNR
|
Total
|
|||||||||||||||||||
($ in thousands)
|
||||||||||||||||||||||||
Frequency
|
$
|
47,609
|
$
|
67,240
|
$
|
114,849
|
$
|
19,704
|
$
|
69,166
|
$
|
88,870
|
||||||||||||
Severity
|
19,240
|
27,091
|
46,331
|
20,472
|
28,018
|
48,490
|
||||||||||||||||||
Total
|
$
|
66,849
|
$
|
94,331
|
$
|
161,180
|
$
|
40,176
|
$
|
97,184
|
$
|
137,360
|
Zone
|
Single Event
Loss
|
Aggregate
Loss
|
||||||
($ in thousands)
|
||||||||
United States
(1)
|
$
|
99,906 |
$
|
118,843 | ||||
Europe
|
57,113 | 57,113 | ||||||
Japan
|
69,613 | 69,613 | ||||||
Rest of the world
|
49,613 | 49,613 | ||||||
Maximum Aggregate
|
99,906 | 118,843 |
(1)
|
Includes the Caribbean
|
Less than
1 year
|
1-3 years
|
3-5 years
|
More than
5 years
|
Total
|
||||||||||||||||
($ in thousands)
|
||||||||||||||||||||
Operating lease obligations
(1)
|
$
|
276
|
$ |
552
|
$ |
552
|
$ |
760
|
$ |
2,140
|
||||||||||
Specialist service agreement
|
791
|
675
|
—
|
—
|
1,466
|
|||||||||||||||
Private equity investments
(2)
|
10,011
|
10,011
|
||||||||||||||||||
Loss and loss adjustment expense reserves
(3)
|
73,729 | 56,472 | 24,643 | 6,336 | 161,180 | |||||||||||||||
$
|
84,807 | $ | 57,699 | $ | 25,195 | $ | 7,096 | $ | 174,797 |
(1) | Reflects our contractual obligations pursuant to the July 9, 2008 lease agreement as described below. |
(2)
|
As of September 30, 2010, we had made commitments to invest a total of $23.4 million in private investments. As of September 30, 2010, we had invested $13.4 million of this amount, and our remaining commitments to these investments were $10.0 million. Given the nature of these investments, we are unable to determine with any degree of accuracy when the remaining commitment will be called. Therefore, for purposes of the above table, we have assumed that all commitments with no fixed payment schedules will be made within one year. Under our investment guidelines, in effect as of the date hereof, no more than 10% of the assets in the investment portfolio may be held in private equity securities without specific approval from the Board of Directors.
|
(3)
|
Due to the nature of our reinsurance operations the amount and timing of the cash flows associated with our reinsurance contractual liabilities will fluctuate, perhaps materially, and, therefore, are highly uncertain.
|
10% increase in U.S. dollar
|
10% decrease in U.S. dollar
|
||||||||||||||
Foreign Currency
|
Change in
fair value
|
Change in fair value as % of investment portfolio
|
Change in
fair value
|
Change in fair value as % of investment portfolio
|
|||||||||||
($ in thousands)
|
|||||||||||||||
Chinese Yuan
|
$
|
9,068
|
1.0
|
%
|
$
|
(408
|
)
|
0.0
|
%
|
||||||
Euro
|
(4,779
|
)
|
(0.5
|
)
|
4,915
|
0.5
|
|||||||||
Indian Rupee
|
1,395
|
0.2
|
(1,395
|
)
|
(0.2
|
)
|
|||||||||
Japanese Yen
|
9,563
|
1.0
|
(5,062
|
)
|
(0.5
|
)
|
|||||||||
Swiss Franc
|
(1,262
|
)
|
(0.1
|
)
|
1,262
|
0.1
|
|||||||||
Other
|
(623
|
)
|
(0.1
|
)
|
623
|
0.1
|
|||||||||
Total
|
$
|
13,362
|
1.5
|
% | $ |
(65
|
)
|
0.0
|
%
|
100 basis point increase
in interest rates
|
100 basis point decrease
in interest rates
|
||||||||||||
Change in
fair value
|
Change in fair value as % of investment portfolio
|
Change in
fair value
|
Change in fair value as % of investment portfolio
|
||||||||||
($ in thousands)
|
|||||||||||||
Debt instruments
|
$
|
(66
|
)
|
(0.0
|
)%
|
$ |
66
|
0.0
|
%
|
||||
Credit default swaps
|
45
|
0.0
|
(45
|
)
|
0.0
|
||||||||
Interest rate options
|
7,057
|
0.8
|
(2,683
|
)
|
(0.3
|
)
|
|||||||
Net exposure to interest rate risk
|
$
|
7,036
|
0.8
|
% | $ |
(2,662
|
)
|
(0.3
|
)%
|
GREENLIGHT CAPITAL RE, LTD.
|
||
(Registrant)
|
||
/s/ Leonard Goldberg
|
||
Name:
|
Leonard Goldberg
|
|
Title:
|
Chief Executive Officer
|
|
Date:
|
November 2, 2010
|
|
/s/ Tim Courtis
|
||
Name: | Tim Courtis | |
Title:
|
Chief Financial Officer
|
|
Date:
|
November 2, 2010
|
Peadar Mac Canna
|
Citibank Europe plc
|
|
Director
|
1 North Wall Quay
|
|
Trade Business Management
|
Dublin 1, Ireland
|
|
Tel +353 (1) 622 4567
|
||
Fax +353 (1) 622 2741
|
||
peadar.maccanna@citigroup.com
|
1.
|
Committed letter of credit facility
|
(a)
|
The Insurance Letters of Credit - Master Agreement (Form 3/CEP) (the “Master Agreement”);
|
(b)
|
A Reinsurance Deposit Agreement (Form 12/CEP)
|
|
(a)
|
the enclosed duplicate of this Letter, duly executed on behalf of the Company before 20
th
August 2010;
|
(b)
|
the other Facility Documents together with any document to be delivered under the Facility Documents, duly executed on behalf of the Company;
|
|
(c)
|
evidence that all registrations, filings and other steps necessary (other than any specifically referred to as conditions subsequent) to perfect any security interest created pursuant to the Facility Documents have been fulfilled;
|
|
(h)
|
a request in form and substance satisfactory to the Bank for the issuance of a Credit in favour of Citibank N.A. drawable by Citibank N.A. in connection with any letter of credit or similar instrument issued by Citibank N.A. under or in connection with the Original Facility in form and substance satisfactory to Citibank NA.
|
5.1
|
Whenever the Company wishes the Bank to issue a Credit under the Facility, it shall give to the Bank a duly completed application form in accordance with the Master Agreement and at least 3 Business Days before the proposed issue date for the Credit.
|
5.2
|
The Bank shall be entitled to examine each request to issue a Credit on a case-by-case basis and, notwithstanding clause 1(a)(i) of the Master Agreement during the continuance of this Letter, shall only be entitled to decline any such request without liability where:
|
(a)
|
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 England); or
|
(b)
|
the tenor of the Credit is longer than 15 months; or
|
(c)
|
there is a failure to deposit in a Reinsurance Deposit account held with Citibank N.A. (London Branch) in an amount required under the terms of the Reinsurance Deposit Agreement.
|
6.1
|
The Company shall pay interest on the amount drawn by a Beneficiary under a Credit at a rate per annum of LIBOR plus 2.5% from the date of drawing until the date of reimbursement by the Company.
|
6.2
|
Any interest accruing under this paragraph 6 shall be immediately payable by the Company on demand by the Bank. Overdue interest shall be compounded in accordance with the usual practice of the Bank as outlined below in respect of unauthorised overdrafts.
|
|
(b)
|
be 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
|
|
(a)
|
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 operates 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 Letter and the other Facility Documents) as to each of the foregoing, except in each case referred to in clauses (ii) and (iv) where the failure to do so would not have a Material Adverse Effect.
|
|
(b)
|
The execution, delivery and performance by it of this Letter and any other Facility Document to which it is a party and the consummation of the transactions contemplated hereby, are within the Company's corporate powers, have been duly authorised by all necessary corporate action, and do not contravene the Company's constitutional documents. Nor do any of them contravene (i) any applicable law or (ii) any contractual restriction binding on or affecting the Company in a way that has, or that could reasonably be expected to have, a Material Adverse Effect.
|
|
(c)
|
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 the Company of this Letter, any other Facility Document to which it is a party 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 and except where the failure to obtain such authorizations, approvals, actions, notices and filings does not and cannot have a Material Adverse Effect.
|
|
(d)
|
This Letter and the other Facility Documents have been duly executed and delivered by the Company and constitute the legal, valid and binding obligation of the Company enforceable against the Company in accordance with their respective terms, subject to (i) the effect of any applicable bankruptcy, insolvency, reorganisation, moratorium or similar law affecting creditors' rights generally and (ii) the effect of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or law).
|
|
(e)
|
The consolidated financial statements included in the most recent 10Q filing of the Group, copies of which have been furnished to the Bank, fairly present the consolidated financial condition of the Group in accordance with generally accepted accounting principles consistently applied. Since the date of such filing there has been no Material Adverse Effect.
|
|
(f)
|
There is no pending or, to the knowledge of the Company, threatened action, suit, investigation, litigation or proceeding affecting any member of the Group before any court, governmental agency or arbitrator that could reasonably be expected to have a Material Adverse Effect or if brought by a third party, purports to affect the legality, validity or enforceability of this Letter or any Facility Document or the consummation of the transactions contemplated hereby and, in each case, is reasonably likely to be successful.
|
9.
|
Undertakings
|
|
(a) post each annual 10K filing when available on
www.sec.gov
and in any event within 90 days of its financial year end;
|
(b)
|
post each 10Q filing when available on
www.sec.gov
and in any event within 45 days of the end of the relevant quarter;
|
12.2
|
Whilst an Event of Default is continuing, the Bank may at any time terminate the availability of the Facility to the Company. If an Event of Default occurs under Clause 12.1(d), to assist the Bank in determining whether to terminate the availability of the Facility, the Bank may ask the Company to provide (or procure the provision by the new owner) to the Bank of any documents, information and other evidence the Bank reasonably requires in order to comply with the Bank's anti-money-laundering and other know-your-customer policies and procedures in relation to the new owner.
|
12.3
|
The rights of the Bank under this 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.
|
12.4
|
If any provision of this Letter or any Facility Document 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.
|
12.5
|
In no event shall the Bank or the Company be liable on any theory of liability for any special, indirect, consequential or punitive damages and each of the Bank and the Company hereby waives, releases and agrees not to sue the other party hereto 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.
|
12.6
|
Whilst an Event of Default is continuing, the Bank may set off any obligation of the Company under the Facility Documents to which it is a party or in respect of any Credit (whether present or future, actual or contingent) against any obligation owed by the Bank to such Company or Citibank N.A., regardless of the place of payment, booking branch or currency of either obligation. If the obligations are in different currencies, the Bank may convert either obligation at a market rate of exchange in its usual course of business for the purpose of the set-off.
|
12.7
|
The terms of this Letter may not be waived, modified or amended unless such waiver, modification or amendment is in writing and signed by each of the Bank and the Company, nor may the Company assign any of its rights hereunder without the prior written consent of the Bank.
|
12.8
|
Clauses 9 and 10 of the Master Agreement shall apply in respect of this Letter, with necessary changes.
|
Business Day
means a day (other than a Saturday or a Sunday) on which banks are generally open in Dublin and London.
|
Facility Documents
means the documents specified in paragraphs 3(a) through 3(e) and 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 the Company under this Letter.
|
Group
means the Company and each other person from time to time included in the consolidated financial statements of the Company filed with the Securities and Exchange Commission.
|
LIBOR
means the overnight rate for US Dollars which appears on the screen display designated "Reuters Screen LIBOR01" on the Reuters Service (or such other screen display or service as may replace it for the purpose of displaying the relevant British Bankers' Association Interest Settlement Rates for deposits in US Dollars in the London interbank market) at or about 11.00 a.m. on the relevant day.
|
Material Adverse Effect
means an event or circumstance having a material adverse effect on the financial condition of (i) the Company; or (ii) the Group as a whole; or (iii) the legality, validity or enforceability of any Facility Document against the Company.
|
|
(i)
|
paragraphs are to be construed as references to the paragraphs of this 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.
|
13.3
|
The headings in this Letter are for convenience only and shall be ignored in construing this Letter.
|
14
|
Communications
|
14.1
|
Any notice or demand to be served on the Company by the Bank hereunder may be served:
|
|
(a)
|
Personally on any officers listed in such Company’s General Communications Indemnity and dated this date as amended from time to time (such shall be referred to as “Authorized Officer(s)”);
|
|
Cayman Islands
|
|
(c)
|
by posting the same by letter addressed in any such manner as aforesaid to such registered office or principal place of business; or
|
|
(d)
|
by telex or facsimile addressed in any such manner as aforesaid to any then published telex or facsimile number of ourselves.
|
14.2
|
Unless otherwise stated, any notice or demand to be served on the Bank by the Company hereunder must be served on the Bank either at its address stated at the beginning of this Letter (or such other address as the Bank may notify the Company of from time to time) or by facsimile to such number as the Bank may notify the Company of from time to time.
|
|
(a)
|
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; provided that a copy of all such communications sent by post shall be sent via facsimile or other form of electronic communication; or
|
|
(b)
|
sent by telex or facsimile shall be deemed to have been served on the relevant party when confirmation is received.
|
15.1
|
This Letter and all non-contractual obligations arising out of it or in connection with it shall be governed by English law and for the benefit of the Bank the Company irrevocably submits to the jurisdiction of the English Courts in respect of any dispute which may arise from or in connection with this Letter or any Credit.
|
15.2
|
A person who is not a party to this Letter has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any terms of this Letter.
|
15.3
|
The Company designates the address below as its address for service of all claim forms, application notices, judgments, orders or other notices of English legal process relating to this Letter and any other Facility Document governed by English law.
|
|
Corporation Service Company (UK) Limited Elysium Gate, Unit
|
|
20/21, 126-128 New Kings Road London SW6 4LZ, United Kingdom
|
|
Items served at this address must be marked for the attention of the Company.
|
15.4
|
The Company must have the same address for service and it must be an address in London, United Kingdom. If the Company wishes to change their address for service, the Company may do so by giving the Bank at least 10 Business Days' written notice of the new address for service.
|
Signed: | /s/ Tim Courtis | Signed: | /s/ Faramarz Romer |
Name: | Tim Courtis | Name: | Faramarz Romer |
T itle: | Chief Financial Officer | Title: | Reporting & Compliance Officer |
|
Insurance Letters of Credit – Master Agreement
|
|
Form 3/CEP
|
|
1.1
|
In order to establish a Credit, the Company is required to submit an application form to CEP (“the Application Form”). The Application Form must (a) be substantially in the form of Schedule 2 hereto; Application Forms may, subject to CEP’s agreement, be received via any electronic system(s) or transmission arrangement(s); (b) be completed by or on behalf of the Company in accordance with the terms of the Company’s banking mandate(s) or other authorities lodged with CEP or in accordance with arrangement(s) made with CEP from time to time; and (c) indicate therein the name of the Beneficiary and the amount and term of the Credit required. Upon receipt of an Application Form that satisfies the above criteria, CEP shall establish on behalf of the Company an irrevocable clean sight Credit (or such other form of Credit as may be required by the Application Form relating thereto) available, in whole or in part, by the Beneficiary’s sight draft (the Company hereby agreeing that CEP may accept as a valid ”sight draft” any written or electronic demand or other request for payment under the Credit, even if such demand or other request is not in the form of a negotiable instrument) on CEP or otherwise as may be required by the terms of the Credit; provided, however, that:
|
|
(i)
|
the opening of any Credit hereunder shall, in every instance, be at CEP’s option and nothing herein shall be construed as obliging CEP to open any Credit;
|
|
(ii)
|
prior to the establishment of any Credit or in order to maintain a Credit the Company undertakes as follows:
|
|
(a)
|
forthwith at CEP’s request to deposit, at an Approved Bank, in an account or accounts in the Company’s name, cash or securities or a combination of cash and securities as per the Reinsurance Deposit Agreement or as otherwise agreed between the parties, of such amount and in such combination as CEP may require (a "Deposit"). “Approved Bank” for the purposes of this Clause 1.1(ii)(a) shall mean one or more of the following:- (i) Citibank, N.A. at their branch at Citigroup Centre, Canada Square, Canary Wharf, London E14 5LB; (ii) a bank approved by CEP; or, (iii) such other Citigroup branch or approved bank as CEP may designate and notify to the Company; and
|
|
(b)
|
should a Deposit have been requested, to execute CEP’s standard form charge documentation in relation to the accounts opened pursuant to Clause 1.1 (ii) (a) above.
|
1.2
|
Without prejudice to the generality of Clause 1.1 (i), the opening of any Credit hereunder
|
|
1.3
|
The Company undertakes to reimburse CEP, promptly following demand (and in any event within five (5) Business Days), the amount of any and all drawings (including, for the avoidance of doubt, drawings presented electronically) under each Credit;
|
|
1.4
|
The Company undertakes to indemnify CEP, promptly following demand, for and against all actions, proceedings, losses, damages, charges, costs, expenses, claims and demands which CEP may incur, pay or sustain in connection with each Credit and/or this Agreement, howsoever arising (unless resulting from CEP’s own gross negligence or wilful misconduct);
|
|
1.5
|
The Company undertakes to pay CEP, on demand, such fees and/or commissions of such amount(s) and/or at such rate(s) as specified in the fee letter (separately agreed between the parties) as payable in connection with each Credit;
|
1.6
|
The Company hereby irrevocably authorises CEP to make any payments and comply with any demands which may be claimed from or made upon CEP in connection with any Credit without any reference to, or further authority from, the Company against presentation of a draft or other document that in CEP’s good faith judgment appeared to comply with the terms and conditions of the applicable Credit. The Company hereby agrees that it shall not be incumbent upon CEP to enquire or take notice of whether or not any such payments or demands claimed from or made upon CEP in connection with each Credit are properly made or whether any dispute exists between the Company and the Beneficiary thereof. The Company further agrees that any payment CEP makes in accordance with the terms and conditions of each Credit shall be binding upon the Company and shall be accepted by the Company as conclusive evidence that CEP was liable to make such payment or comply with such demand.
|
2.1
|
The Company represents and warrants to CEP and undertakes that:-
|
|
(i)
|
it has and will at all times have the necessary power to enable it to enter into and perform the obligations expressed to be assumed by it under this Agreement;
|
|
(ii)
|
the Agreement constitutes its legal, valid, binding and enforceable obligation effective in accordance with its terms
, subject to (x) the effect of any applicable bankruptcy, insolvency, reorganisation, moratorium or similar law affecting creditors' rights generally and (y) the effect of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or law)
; and
|
(iii)
|
all necessary authorisations to enable or entitle it to enter into this Agreement have been obtained and are in full force and effect and will remain in such force and effect at all times during the subsistence of this Agreement;
|
|
(i)
|
it is not unable to pay its debts as they fall due;
|
|
(ii)
|
it has not been deemed or declared to be unable to pay its debts under any applicable law;
|
|
(iii)
|
it has not suspended making payments on any of its debts;
|
|
(iv)
|
it has not, by reason of actual or anticipated financial difficulties, commenced negotiations with any of its creditors with a view to rescheduling any of its indebtedness;
|
|
(v)
|
the value of its assets is not less than its liabilities (taking into account contingent and prospective liabilities);
|
|
(vi)
|
no moratorium has been declared in respect of any of its indebtedness; and
|
|
(vii)
|
no analogous or similar event or concept to those set out in this Clause 2.2 has occurred or is the case under the laws of any jurisdiction.
|
3.
|
EXTENSION/TERMINATION
|
|
3.1
|
(a)
|
Any Credit established hereunder may, if requested by the Company on the relevant Application Form and subject to CEP’s consent, bear a clause to the effect that it will automatically be extended for successive periods of one year (or such other period as may be stated in the relevant Application Form)
UNLESS
the Beneficiary has received from the bank or institution issuing the Credit (the "Issuing Bank") by registered mail (or other appropriate receipted delivery) notification of intention not to renew such Credit at least 60 days (or such longer period as may be stated in the relevant Application Form) prior to the end of the original term or, as the case may be, of a period of extension (the "Notice Period").
|
|
(b)
|
The Issuing Bank shall be under no obligation to the Company to send the Beneficiary such notification (and without such notification to the Beneficiary the Credit will be automatically extended as provided above)
UNLESS
the Company shall have sent notification to CEP by registered mail (or other means acceptable to CEP) of its election not to renew such Credit at least 60 days prior to the commencement of the Notice Period.
|
|
(c)
|
CEP reserves the right, at its sole option and discretion, to give or procure the giving at any time to the Beneficiary of notification of intention not to renew any Credit. If CEP exercises such said right, it will give the Company notice in writing thereof as soon as is reasonably possible.
|
|
5.1
|
Unless otherwise agreed between the parties in writing, the previous agreement(s) (if any) entered into between them (other than those at any time governed by a "Master Agreement – London Market Letter of Credit Scheme" or substantially equivalent agreement) governing Credits established by CEP on the Company’s behalf in favour of Beneficiaries shall, on due execution by the parties of this Agreement, cease to apply to all such Credits, which Credits shall henceforth be governed by this Agreement.
|
5
.
2
|
For the avoidance of doubt any letter or letters of credit or similar or equivalent instrument or instruments (the "Existing Credit(s)") which has or have been established or opened pursuant to the terms of any previous agreement(s) entered into between the Company and Citibank, N.A. governing the Existing Credits (including any security arrangements that apply in respect of any obligation under or pursuant to such previous agreement(s)) (the "Existing Agreement(s)") shall continue in force until cancelled. The Existing Agreement(s) shall continue to apply to the Existing Credit(s) until all the Existing Credit(s) have been cancelled. The Company undertakes, on CEP’s request, to take all reasonable steps to procure that any cancelled Existing Credit(s) are destroyed or returned to CEP.
|
|
7.1
|
The Company acknowledges that CEP may carry out any of its obligations or exercise any of its rights under this Agreement through any of its offices or branches, wheresoever situated.
|
7.2
|
The Company further understands that CEP reserves the right to issue any Credit through any third party correspondent bank of its choice (provided that such correspondent bank is approved by the National Association of Insurance Commissioners) and/or to have any Credit confirmed by Citibank, N.A. In such circumstances, CEP will be required to guarantee reimbursement to such correspondent and/or Citibank, N.A. of any payments which such correspondent and/or Citibank, N.A. may make under the Credit in question and such guarantee (howsoever described) shall be treated mutatis mutandis as a Credit for the purpose of this Agreement.
|
|
9.1
|
Any notice or demand to be served on the Company by CEP hereunder may be served:
|
|
(b)
|
by letter addressed to the Company or to any of its officers and left at the Company’s registered office or at any one of its principal places of business;
|
|
(c)
|
by posting the same by letter addressed in any such manner as aforesaid to such registered office or principal place of business; or
|
|
(d)
|
by facsimile addressed in any such manner as aforesaid to any then published facsimile number of the Company.
|
|
9.2
|
Unless otherwise stated, any notice or demand to be served on CEP by the Company hereunder must be served either at CEP’s address as stated above (or such other address as CEP may notify us of from time to time) or by facsimile to such number as CEP may notify the Company of from time to time.
|
|
9.3
|
Any notice or demand:-
|
|
(a)
|
sent by post to any address in the Republic of Ireland or the United Kingdom shall be deemed to have been served on the Company at 10am. (London time) on the first Business Day after the date of posting (in the case of an address in the Republic of Ireland) and on the second Business Day after posting (in the case of an address in the United Kingdom) or, in the case of an address outside the Republic of Ireland or the United Kingdom (or a notice or demand to CEP), shall be deemed to have been served on the relevant party at 10am. (London time) on the third Business Day after and exclusive of the date of posting; or
|
|
(b)
|
sent by facsimile shall be deemed to have been served on the relevant party when dispatched.
|
|
9.4
|
In proving 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.
|
|
9.5
|
In this Clause 9, "Business Day" shall be construed as a reference to a day (other than a Saturday or a Sunday) on which banks are generally open in London.
|
|
10.1
|
CEP has a full and unfettered right (a) to assign or otherwise dispose of the whole or any part of its rights and/or benefits under this Agreement or (b) (subject to Clauses 10.2 to 10.5) to novate its rights and obligations under this Agreement, in each case, to a Permitted Transferee. The words "CEP" and "CEP’s" wherever used in Clauses 10.2 to 10.5 shall be deemed to include CEP’s permitted assignees and novatees and other successors, whether immediate or derivative, who shall be entitled to enforce and proceed upon this Agreement in the same manner as if named herein. CEP shall be entitled to impart any information concerning the Company to any such permitted assignee, novatee or other successor or any participant or proposed permitted assignee, novatee, successor or participant; provided, however, that in connection with any such assignment or novation, CEP may disclose to the assignee or transferee or proposed assignee or proposed transferee any information relating to the Company furnished to CEP by or on behalf of the Company, provided that, prior to any such disclosure, the assignee or transferee or proposed assignee or proposed transferee shall agree to be subject to the same confidentiality obligations applicable to CEP with respect to any confidential information related to the Company and shall enter into a confidentiality agreement to such effect with CEP under which the Company is designated a third party beneficiary with the right to enforce the terms of such confidentiality agreement.
|
|
10.2
|
The person who is for the time being liable to perform CEP’s obligations under this Agreement (a "Transferring Bank") shall be entitled to novate at any time, upon service of a notice on the Company in the form attached as Schedule One to this Agreement (a "Novation Notice"), any or all of its rights and obligations under, and the benefit of, this Agreement to any Permitted Transferee. With effect from the date on which a Novation Notice is executed by the Transferring Bank and the Permitted Transferee and served on the Company (the "Novation Date"), the provisions of Clause 10.3 shall have effect (but not otherwise).
|
10.3
|
With effect from (and subject to the occurrence of) the Novation Date:
|
|
10.3.1
|
the Permitted Transferee shall be bound by the terms of this Agreement (as novated) in every way as if the Permitted Transferee was and had been a party hereto in place of the Transferring Bank and the Permitted Transferee shall undertake and perform and discharge all of CEP’s obligations and liabilities under this Agreement (as novated) whether the same fell or fall to be performed or arose or arise on, before or after the Novation Date;
|
10.3.2
|
the Company shall release and discharge the Transferring Bank from further performance of its obligations arising in favour of the Company on and after the Novation
|
|
Date under this Agreement and all claims and demands whatsoever in respect thereof against the Transferring Bank, and the Company shall accept the liability of the Permitted Transferee in respect of such obligations in place of the liability of the Transferring Bank;
|
|
10.3.3
|
the Transferring Bank shall release and discharge the Company from further performance of its obligations arising in favour of the Transferring Bank on and after the Novation Date under this Agreement and all claims and demands whatsoever in respect thereof by the Transferring Bank; and
|
|
10.3.4
|
the Company shall be bound by the terms of this Agreement (as novated) in every way, and it shall undertake and perform and discharge in favour of the Permitted Transferee each of its obligations whether the same fell or fall to be performed or arose or arise on, before or after the Novation Date and expressed to be owed to CEP.
|
|
10.4
|
Without prejudice to the automatic novation of the Transferring Bank’s rights and obligations pursuant to Clause 10.3, the Company undertakes to sign and return promptly each acknowledgement of the Novation Notice from time to time delivered to it promptly following receipt of the same from the Transferring Bank.
|
10.5
|
For the purposes of this Clause 10 a "Permitted Transferee" shall mean;
|
i)
|
any holding company, subsidiary or affiliate of Citigroup Inc, or;
|
ii)
|
subject to the Company’s consent (such consent not to be unreasonably withheld),any other third party.
|
|
11.1
|
The Company hereby irrevocably authorises CEP to debit and credit, on the Company’s behalf, any account or accounts which are held in the Company’s name with Citibank, N.A.
|
|
11.2
|
The Company hereby agrees that Citibank N.A. shall be entitled to rely on and action any credit or debit made by CEP in accordance with Clause 11.1.
|
|
13.1
|
Subject to this Clause and to Clause 11.2 a person who is not a party to this Agreement has no rights under the Contracts (Rights of Third Parties) Act 1999 (the "Third Parties Act") to enforce any terms of this Agreement.
|
|
13.2
|
Citibank, N.A. may enforce the terms of Clause 11.2 subject to, and in accordance with, this Clause 13.2 and Clause 12 and the provisions of the Third Parties Act.
|
|
13.3
|
The parties to this Agreement do not require the consent of Citibank, N.A. to rescind or vary this Agreement at any time.
|
|
13.4
|
If Citibank, N.A. brings proceedings to enforce the terms of Clause 11.2, the Company shall only have available to it by way of defence, set-off or counterclaim a matter that would have been available by way of defence, set-off or counterclaim if Citibank, N.A. had been party to this Agreement.
|
|
13.5
|
Citibank, N.A. may not take proceedings to enforce Clause 11.2 unless and until it gives notice in writing to the Company in any manner as is permitted by Clause 9, agreeing irrevocably to the provisions of Clause 12.
|
14
|
CONFIDENTIALITY OF COMPANY INFORMATION
|
|
CEP agrees to take and to cause its affiliates to take normal and reasonable precautions and exercise due care to maintain the confidentiality of all information provided by the Company or any of its affiliates under this Agreement or any other agreement or document relating to the Credit (“Information”), and neither it nor any of its affiliates shall use any Information other than in connection with or in enforcement of this Agreement and the other agreements and documents relating to the Credit except to the extent the Information was or becomes generally available to the public other than as a result of a disclosure by CEP or its affiliates, provided that such source is not bound by a confidentiality agreement with Company known to CEP; provided, however that CEP may disclose Information (i) at the request or pursuant to any requirement of any governmental authority to which CEP is subject, and will use all reasonable endeavours in each case to give prior notice to the Company unless prohibited by law or the rules governing the process requiring such disclosure; (ii) pursuant to subpoena or other court process, and will use all reasonable endeavours to give prior notice to the Company unless prohibited by law or the rules governing the process requiring such disclosure; (iii) when required to do so in accordance with the provisions of any applicable requirement of law, and will use all reasonable endeavours to give prior notice to the Company unless prohibited by law or the rules governing the process requiring such disclosure; (iv) to the extent reasonably required in connection with the exercise of any remedy hereunder or any other agreement or document relating to the Credit; and (v) to CEP’s independent auditors and other professional advisors who agree or are directed to maintain the confidentiality of the Information.
|
|
EXECUTED THIS DAY ABOVE WRITTEN BY:
|
|
Tim Courtis
|
Faramarz Romer |
|
Greenlight Reinsurance, Ltd
|
|
/s/ Tim Courtis
|
/s/ Faramarz Romer |
|
(Signature(s))
|
|
Dated
August 20, 2010
|
|
Niall Tuckey___________________________________
|
|
/s/ Niall Tuckey________________________________
|
|
(Signature(s))
|
|
Dated
August 20, 2010
|
To:
|
[ ]
|
|
Date:
|
(1)
|
acknowledges receipt of the Novation Notice; and
|
(2)
|
agrees that with effect from the date of the Novation Notice the rights, liabilities and obligations of [ ] are novated to [ ] in the manner set out in Clause 10 of the Agreement.
|
|
[NAME OF COUNTERPARTY]
|
REINSURANCE DEPOSIT AGREEMENT (CHARGE FORM - CITIBANK, N.A. AS CUSTODIAN)
|
Name of Chargor and address of its registered or principal office:
Greenlight Reinsurance, Ltd
65 Market Street
Suite 1207, Jasmine Court
Camana Bay, PO Box 31110 Grand Cayman, KY1-1205
CAYMAN ISLANDS
facsimile no: 345 745 4576 Company Number: CR-137831
(the "Chargor")
|
Name of Custodian and address of its registered or principal office
:
CITIBANK, N.A., FAO: INSURANCE LETTER OF CREDIT PRODUCT MANAGER, CITIGROUP CENTRE, CANADA SQUARE, CANARY WHARF, LONDON E14 5LB
(the "Custodian")
|
Date:
20
TH
August 2010
|
1.
|
PAYMENT AND DISCHARGE
|
2.
|
FIXED CHARGE AND ENFORCEMENT
|
|
(a)
|
The Chargor hereby charges with full title guarantee and by way of first fixed charge, in the Bank’s favour all of the Chargor’s rights, title and interest in the Assets as security for the payment to you and the discharge of all of the Obligations.
|
|
(b)
|
If:
|
|
(i)
|
an Event of Default (as defined in the Committed Facility Letter) has occurred and is
|
continuing;
|
|
(ii)
|
the Chargor defaults in paying or discharging any of the Obligations on demand within 5
|
Business Days of its due date; or
|
|
(iii)
|
the Chargor defaults under or fails to comply with any provisions of this Deposit Agreement, any other Agreement or any agreements or contract giving rise to the Obligations and such default continues for a period of ten (10) Business Days following the Bank’s notice of such non-compliance; or
|
|
then:
|
|
(A)
|
the security created by or pursuant to this Deposit Agreement shall become immediately enforceable and the Bank may, subject to the requirements of applicable law, without notice to the Chargor or prior authorisation from any court, in the Bank’s absolute discretion enforce all or any part of that security (at the times, in the manner and on the terms the Bank thinks fit) and take possession of and hold or dispose of all or any part of the Assets; and
|
(B)
|
without prejudice to the generality of (A) above, the Bank shall be entitled, without notice or further demand but subject to the requirements of applicable law, immediately to exercise all the rights, powers and remedies possessed by it according to law as chargee of the Assets and to:
|
|
(I)
|
demand and receive all and any monies due under or arising out of each of the Assets;
|
|
(II)
|
exercise in relation to each of the Assets all such rights as the Chargor was then entitled to exercise in relation to each such Asset or might, but for the terms of this Deposit Agreement, exercise; and
|
|
(III)
|
apply, set-off or transfer any or all of the Assets in or towards the payment or other satisfaction of the Obligations or any part of them.
|
|
(C)
|
Subject to the requirements of applicable law, the Bank shall not be liable to account as a mortgagee in possession in respect of all or any part of the Assets or be liable for any loss upon realisation or for any neglect, default or omission in connection with the Assets to which a mortgagee in possession might otherwise be liable.
|
3.
|
REQUIRED DEPOSITS
|
|
(a)
|
It is agreed between the Chargor and the Bank in relation to each of the Credits that:-
|
|
(i)
|
it is a prior condition to the establishment of any Credit pursuant to an Agreement that there should first have been deposited with Citibank, N.A. (the "Custodian") at their branch at Citigroup Centre, Canada Square, Canary Wharf, London E14 5LB (or such other branch as may be advised to the Chargor by the Bank for such purpose) in an account in the Chargor’s name designated as a "Reinsurance Deposit Account" and/or such other designation(s) as may be agreed between the Chargor and the Bank and notified by the Bank to the Custodian (referred to herein as an "Account") a deposit:-
|
|
(1)
|
in an amount in the same currency as such Credit and at least equal to 100% of the face value of such Credit (or such other percentage as may be agreed between the Chargor and the Bank in writing for this purpose); and/or
|
|
(2)
|
in an amount in the currency(ies) and of the percentage all as required by the alternative arrangements set out in Schedule Two hereto but subject to the limitation(s) (if any) therein referred to (or as the same may from time to time hereafter be amended or substituted),
|
|
and, in either case, the balance from time to time standing to the credit of any such Account (the "Reinsurance Deposit") to be subject to the security hereby constituted and to be applied on the terms and conditions herein set forth;
|
|
(ii)
|
so long as the Chargor is under any actual or contingent liability pursuant to any Agreement, the Chargor shall be entitled, upon request, to require the Bank to release from the security hereby constituted only that part of a Reinsurance Deposit which is in excess of the amounts required by Clause 3(a)(i)(1) and (2); provided, however, that the Chargor shall not be entitled to request any such release if an Event of Default has occurred and is continuing. Bank hereby agrees that, promptly (and in any event within 2 Business Days) following receipt of the Chargor’s request therefor, it shall notify the Custodian of its consent to any such release;
|
|
(iii)
|
the Chargor shall be entitled to receive any interest which may accrue on each Reinsurance Deposit, provided, however, that if an Event of Default has occurred and is continuing, then such interest shall be paid only to the credit of the relevant Account and such interest shall form part of the Reinsurance Deposit in question;
|
|
(iv)
|
if at any time, acting reasonably, the Bank determines that the amount of any Reinsurance Deposit is less than the amount required by Clause 3(a)(i)(1) and/or (2) the Chargor shall immediately (and in any event within three (3) Business Days) following the Bank’s demand deposit in the relevant Account any further sum or sums which the Bank may certify to be required to cover the shortfall; and
|
|
(v)
|
until payment in full of the Obligations and termination of this agreement, the Chargor shall not, without the Bank’s prior written consent, be entitled to permit or agree to any variation of the rights attaching to the Assets or any Account or to receive, withdraw or otherwise deal with or transfer the Assets or any Account except as otherwise expressly provided herein.
|
|
(b)
|
In the event that the Bank elects not to allocate or otherwise attribute a specific Reinsurance Deposit in an Account to a specific Credit, it may treat all of the balance(s) from time to time standing to the credit of each Account as constituting security in respect of the Obligations.
|
|
(c)
|
Following the occurrence and during the continuance of any of the events described in Clauses 2 (b) (i) to 2 (b) (iv) above and subject to any applicable grace and/or notice), the Bank is hereby irrevocably authorised (without reference to the Chargor and on its behalf) to instruct the Custodian to convert, so far as is then possible, all or part of a Reinsurance Deposit established pursuant to the provisions of Clause 3(a)(i)(2) from its then existing currency of denomination into the other currency(ies) which would have been required if the provisions of Clause 3(a)(i)(1) had originally been complied with by the Chargor (the "Requisite
Currency(ies)"). The Requisite Currency(ies) shall be held in one or more accounts established by the Custodian for such purposes but otherwise subject to the security hereby constituted and the terms and conditions hereof. In order to effect the foregoing the Chargor irrevocably authorises the Bank (without reference to the Chargor) to debit (on the Chargor’s behalf) any account with such sums as may be required by the Bank or the Custodian in or towards payment of the cost of obtaining the requisite currency(ies) (whether or not such cost includes a premium over any official or other rate of exchange) and all other costs, charges and expenses incurred by the Bank or the Custodian (in connection with obtaining the requisite currency(ies).
|
|
(d)
|
For the purpose of any calculations required by this Clause 3, the Bank may convert any figure expressed in its existing currency of denomination into such other currency of denomination as the Bank may require for the purposes hereof, and any such conversion shall be effected at the Bank’s then prevailing spot rate of exchange for obtaining such requisite currency(ies) with the existing currency(ies).
|
4.
|
|
CUSTODIAN'S UNDERTAKING
|
|
(a)
|
the Chargor undertakes to deliver (or procure the delivery of) the Custodian's Undertaking to the Bank forthwith upon the execution of this Security Agreement.
|
|
(b)
|
following the occurrence and continuance of an Event of Default, the Bank may at any time and without prior notice to the Chargor exercise any or all of the Bank’s rights under or pursuant to the Custodian's Undertaking.
|
5.
|
FURTHER ASSURANCE
|
6.
|
NOTICES OF CHARGE
|
7.
|
REPRESENTATIONS AND WARRANTIES
|
(a)
|
The Chargor hereby represents and warrants to the Bank and undertakes that:-
|
(i)
|
It is and will, at all times during the subsistence of the security hereby constituted, be the sole, lawful and beneficial owner of all of the Assets free from mortgages or charges (other than this first fixed charge) or other encumbrances;
|
(ii)
|
(save as may have been disclosed by the Chargor to the Bank in writing prior to the date of this Deposit Agreement) it has not sold or agreed to sell or otherwise disposed of or agreed to dispose of, and (save with the Bank’s prior consent) will not at any time during the subsistence of the security hereby constituted sell or agree to sell or otherwise dispose of or agree to dispose of, the benefit of all or any of its rights, titles and interests in and to the Assets or any part thereof (except for any withdrawals and releases expressly permitted by the terms hereof);
|
(iii)
|
it has and will at all times have the necessary power to enable the Chargor to enter into and perform the obligations expressed to be assumed by it under this Deposit Agreement;
|
(iv)
|
this Deposit Agreement constitutes its legal, valid, binding and enforceable obligation and is a security over the Assets and every part thereof effective in accordance with its terms, subject to (x) the effect of any applicable bankruptcy, insolvency, reorganisation, moratorium or similar law affecting creditors' rights generally and (y) the effect of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or law); and
|
|
(v)
|
all necessary authorisations to enable or entitle it to enter into this Deposit Agreement have been obtained and are in full force and effect and will remain in such force and effect at all times during the subsistence of the security hereby constituted.
|
|
(b)
|
The Chargor hereby represents and warrants to the Bank that:-
|
(i)
|
it is not unable to pay its debts as they fall due;
|
(ii)
|
it has not been deemed or declared to be unable to pay its debts under applicable law;
|
(iii)
|
it has not suspended making payments on any of its debts;
|
(iv)
|
it has not by reason of actual or anticipated financial difficulties commenced negotiations with any of its creditors with a view to rescheduling any of its indebtedness;
|
(v)
|
the value of its assets is not less than its liabilities (taking into account contingent and prospective liabilities);
|
(vi)
|
no moratorium has been declared in respect of any of its indebtedness; and
|
(vii)
|
no analogous or similar event or concept to those set out in Clauses 7(b)(i) to 7(b)(vi) above has occurred or is the case under the laws of any jurisdiction.
|
8.
|
NEGATIVE PLEDGE
|
|
(b)
|
with the Bank’s prior written consent and in accordance with and subject to any conditions which the Bank may attach to such consent,
|
|
create, grant, extend or permit to subsist any mortgage or other fixed security or any floating charge on or over the Assets or any part thereof. The foregoing prohibition shall apply not only to mortgages, other fixed securities and floating charges which rank or purport to rank in point of security in priority to the security hereby constituted but also to any mortgages, securities or floating charges which rank or purport to rank pari passu therewith or thereafter.
|
9.
|
POWER OF ATTORNEY
|
|
The Chargor hereby irrevocably appoints the Bank to be its attorney and in its name and on its behalf and as its act and deed to sign, seal, execute, deliver, perfect and do all documents and things as may be, or as the Bank may reasonably consider to be requisite for carrying out any obligations imposed on the Chargor under Clause 5. The Chargor hereby undertakes to ratify and confirm all things done and documents executed by the Bank in the exercise of the power of attorney conferred by this Clause.
|
10.
|
CONSOLIDATION OF SECURITIES
|
|
Subsection (1) of Section 93 of the Law of Property Act 1925 shall not apply to this Deposit Agreement.
|
11.
|
EFFECTIVENESS OF SECURITY
|
(a)
|
This Deposit Agreement shall be in addition to and shall be independent of every other security which the bank may at any time hold for any of the Obligations. No prior security held by the bank over the whole or any part of the Assets shall merge in the security hereby constituted.
|
(b)
|
This Deposit Agreement shall remain in full force and effect as a continuing security until the Obligations have been unconditionally and irrevocably paid and performed in full and this Deposit Agreement and the other Facility Documents shall have been terminated (other than for any contingent indemnification with respect to then unasserted claims which, pursuant to the express terms of this Deposit Agreement or the other Facility Documents, survive the termination of this Deposit Agreement or the other Facility Documents), and the Bank (at the reasonable request and sole expense of the Chargor), will take all reasonable action in order to execute and deliver to the Chargor the proper instruments acknowledging the termination of this Deposit Agreement and the security over the Assets, and will duly assign, transfer and deliver to the Chargor such of the Assets as may be in possession of the Bank and have not thereto been disposed of, applied or released.
|
(c)
|
Nothing in this Deposit Agreement is intended to, or shall operate so as to, prejudice or affect any bill, note, guarantee, mortgage, pledge, charge or other security of any kind whatsoever which the Bank may have for the Obligations or any of them or any right, remedy or privilege of the Bank’s thereunder.
|
12.
|
REMEDIES, TIME OR INDULGENCE
|
|
(a)
|
The rights, powers and remedies provided by this Deposit Agreement are cumulative and are not, nor are they to be construed as, exclusive of any right of set-off or other rights, powers and remedies provided by law.
|
|
(b)
|
No failure on the Bank’s part to exercise, or delay on the Bank’s part in exercising, any of the rights, powers and remedies provided by this Deposit Agreement or by law (each a "Bank's Right") shall operate as a waiver thereof, nor shall any single or partial waiver of any Bank's Right preclude any further or other exercise of such Bank's Right or the exercise of any other Bank's Right.
|
(c)
|
The Bank may in its discretion grant time or other indulgence or make any other arrangement, variation or release with any person(s) not party/ies hereto (irrespective of whether such person(s) is/are jointly liable with the Chargor) in respect of the Obligations or in any way affecting or concerning them or any of them or in respect of any security for the Obligations or any of them, without in any such case prejudicing, affecting or impairing the security hereby constituted, or any Bank's Right or the exercise of the same, or any indebtedness or other liability owed by the Chargor to the Bank.
|
13.
|
ACCOUNTS
|
|
(a)
|
If the Bank shall at any time receive notice of any subsequent mortgage, assignment, charge or other interest affecting the whole or any part of the Assets the Bank may open a new account or accounts for the Chargor in its books. If the Bank does not do so, then (unless the Bank gives express written notice to the contrary to the Chargor) as from the time of receipt of such notice by the Bank, all payments made by the Chargor to the Bank shall in the absence of any express appropriation by the Bank to the contrary be treated as having been credited to a new account of the Chargor’s and not as having been applied in reduction of the Obligations at the time when the Bank received the notice.
|
|
(b)
|
Following the occurrence and during the continuance of any of the Events described in Clauses 2(b)(i) to 2(b)(iv) above (and subject to any applicable grace and/or notice periods), all monies received, recovered or realised by the Bank under this Deposit Agreement (including the proceeds of any conversion of currency) may in the Bank’s discretion be credited to any suspense or impersonal account and may be held in such account for so long as the Bank shall think fit (with interest accruing thereon at such rate, if any, as the Bank may deem fit) pending their application from time to time (as the Bank shall be entitled to do in the Bank’s discretion) in or towards the discharge of any of the Obligations.
|
|
(c)
|
In case the Bank shall have more than one account for the Chargor in its books the Bank may at any time after making any demand for payment or other discharge of any of the Obligations or after the Bank shall have received notice of any subsequent charge or other interest affecting all or any part of the Assets, and without prior notice in that behalf, forthwith transfer all or any part of any balance standing to the credit of any such account to any other such account which may be in debit.
|
14.
|
CURRENCY
|
(a)
|
For the purpose of or pending the discharge of any of the Obligations the Bank may convert any monies received, recovered or realised or subject to application by the Bank under this Deposit Agreement (including the proceeds of any previous conversion under this Clause) from their existing currency of denomination into such other currency of denomination as the Bank may think fit (acting reasonably), and any such conversion shall be effected at the Bank’s then prevailing spot rate of exchange for obtaining such other currency with the existing currency.
|
|
(b)
|
References herein to any currency extend to any funds of that currency and for the avoidance of doubt funds of one currency may be converted into different funds of the same currency.
|
15.
|
COSTS, CHARGES AND EXPENSES
|
16.
|
LAW AND JURISDICTION
|
|
This Deposit Agreement and all non-contractual obligations arising out of or in connection with it shall be governed by English law and for the Bank’s benefit the Chargor hereby irrevocably submits to the jurisdiction of the English courts in respect of any disputes which may arise from or in connection with this Deposit Agreement.
|
17.
|
PROVISIONS SEVERABLE
|
|
Each of the provisions contained in this Deposit Agreement shall be severable and distinct from one another and if at any time any one or more of such provisions is or becomes invalid, illegal or unenforceable, the validity, legality and enforceability of each of the remaining provisions of this Deposit Agreement shall not in any way be affected prejudiced or impaired thereby.
|
18.
|
NOTICES
|
|
(a)
|
Any notice or demand to be served on the Chargor by the Bank hereunder may be served:-
|
|
(ii)
|
by letter addressed to the Chargor or to any of the Chargor’s officers and left at the Chargor’s registered office or at any one of the Chargor’s principal places of business;
|
|
(iii)
|
by posting the same by letter addressed in any such manner as aforesaid to such registered office or any such principal place of business; or
|
|
(iv)
|
by facsimile addressed in any such manner as aforesaid to any then published facsimile number of the Chargor’s.
|
|
(b)
|
Any notice or demand to be served on the Bank by the Chargor hereunder must be served on the Bank either at the Bank’s address stated at the beginning of this Deposit Agreement (or such other address as the Bank may notify the Chargor of from time to time) or by facsimile to such number as the Bank may notify the Chargor of from time to time.
|
|
(i)
|
sent by post in accordance with Clause 18(a) to an address in the Republic of Ireland or the United Kingdom shall be deemed to have been served on the Chargor at 10.00 a.m. (London time) on the first Business Day after the date of posting (in the case of an address in the Republic of Ireland) and on the Second Business Day after posting (in the case of an address in the United Kingdom) or, in the case of an address outside the Republic of Ireland or the United Kingdom (or a notice or demand to you), shall be deemed to have been served on the relevant party at 10.00 a.m. (London time) on the third Business Day after and exclusive of the date of posting; or
|
|
(ii)
|
sent by facsimile in accordance with Clause 18(a) shall be deemed to have been served on the relevant party when dispatched.
|
|
Any liberty or power, subject to any express restriction contained herein which may be exercised or any determination which may be made hereunder by the Bank may be exercised or made in the Bank’s absolute and unfettered discretion and the Bank shall not be under any obligation to give reasons therefor.
|
20.
|
ASSIGNMENT
|
21.
|
FIXED TIME DEPOSITS
|
|
The Chargor hereby agrees with the Bank that if, apart from the terms of this Deposit Agreement, the whole or any part of the monies from time to time deposited by the Chargor with the Custodian pursuant to the terms of the Deposit Agreement are held in a fixed time deposit account (each such account being referred to in this Clause as a "Fixed Time Deposit Account" and the monies therein being referred to in this Clause as a "Fixed Time Deposit") then:-
|
|
(a)
|
insofar as the context may require, the references in this Deposit Agreement to an Account, an account and a Reinsurance Deposit shall be construed
mutatis mutandis
as though they were, respectively, references to a fixed time deposit account and a fixed time deposit;
|
|
(b)
|
unless and until the Chargor is entitled to have the whole of a Fixed Time Deposit released from the security hereby constituted the Chargor shall renew each Fixed Time Deposit, upon each of its maturity dates, for such period of time and on such terms as may be agreed between the Chargor and the Bank (or, in the absence of agreement between the Chargor and the Bank, as may be determined by the Bank in its sole discretion) (such terms which the Bank shall be entitled to communicate to the Custodian) (each such period of time being referred to in this Clause in respect of the Fixed Time Deposit to which it relates as a "Deposit Period"); and
|
|
(c)
|
the existence of any Fixed Time Deposit shall not prejudice any of the Bank’s rights under or pursuant to the Agreement(s) and/or this Deposit Agreement and, without prejudice to the generality of the foregoing, the Bank shall not be precluded or in any way obliged to delay the exercise of the Bank’s rights pursuant to this Deposit Agreement until the maturity of any Deposit Period relating to any Fixed Time Deposit and the Bank may (by instructing the Custodian accordingly) unilaterally terminate such deposit period at any time for any reason, quantify the cost to be incurred by the Chargor as a result thereof and instruct the Custodian (who the Chargor irrevocably authorises the Bank (without reference to the Chargor) to so instruct) to adjust any interest payable by the Custodian accordingly. If, pursuant to the terms of this Deposit Agreement, the Chargor is entitled to withdraw any surplus funds from a Time Deposit Account such right may only be exercised by the Chargor at the end of a Deposit Period relating thereto.
|
22.
|
INTERPRETATION
|
(a)
|
In this Deposit Agreement:
|
23.
|
THIRD PARTY RIGHTS
|
|
(a)
|
Subject to this Clause and to Clause 24 a person who is not a party to this Deposit Agreement has no rights under the Contracts (Rights of Third Parties) Act 1999 (the "Third Parties Act") to enforce any term of this Deposit Agreement.
|
|
(b)
|
The Custodian may enforce the terms of Clause 24 subject to and in accordance with this Clause and Clause 16 and the provisions of the Third Parties Act.
|
|
(c)
|
The parties to this Deposit Agreement do not require the consent of the Custodian to rescind or vary this Deposit Agreement at any time.
|
|
(d)
|
If the Custodian brings proceedings to enforce the terms of Clause 24 the Chargor shall only have available to it by way of defence, set-off or counterclaim a matter that would have been available by way of defence, set-off or counterclaim if the Custodian had been a party to this Deposit Agreement.
|
|
(e)
|
The Custodian may not take proceedings to enforce a term of this Deposit Agreement unless and until it gives notice in writing to the Chargor, in any manner as is permitted by Clause 18, agreeing irrevocably to the provisions of Clause 16.
|
|
24.
|
BANK'S INSTRUCTIONS TO THE CUSTODIAN
|
|
The Chargor hereby agrees that the Custodian shall be entitled to rely on and action any instructions which it receives from the Bank which the Bank is entitled to give to it pursuant to the terms of this Deposit Agreement.
|
To:
|
Citibank, N.A.
|
|
Citigroup Centre
|
|
Canada Square
|
|
Canary Wharf
|
|
London E14 5LB
|
|
1
This notice is to be given to the Custodian following the establishment of each Account and of each account opened pursuant to clause 3(c) of the Deposit Agreement.
|
1.
|
A Reinsurance Deposit may, at the election of the Chargor, be in any currency which is acceptable to the Bank and which is freely transferable and convertible into U.S. dollars. Where, after a Reinsurance Deposit has been established, the currency of all or a portion thereof ceases to be acceptable to the Bank, the Bank may require that such Reinsurance Deposit or such portion thereof be converted into or re-established in another currency acceptable to the Bank and may instruct the Custodian to so convert or re-establish such deposit. The Bank is irrevocably authorised (without reference to us) to so instruct the Custodian.
|
2.
|
Where a Reinsurance Deposit or a portion thereof is denominated in the same currency as a Credit (the
"Credit Currency"
), the Reinsurance Deposit or such portion thereof shall have a value of 100% of its value in the relative Credit Currency; and for this purpose the Bank (and the Custodian) shall notionally match each Credit with a Reinsurance Deposit or a portion thereof denominated in the relative Credit Currency.
|
3.
|
Where a Reinsurance Deposit or a portion thereof is denominated in a currency other than the relative Credit Currency, both the proportion specified above of the face value of the Credit (the
"Required Value"
) (or, where only a portion of the Reinsurance Deposit is in the relative Credit Currency, the balance of the Required Value remaining unmatched) and the Reinsurance Deposit or such portion thereof shall be notionally converted into a common base currency (as the Bank may in its reasonable discretion determine); and following such notional conversion the Reinsurance Deposit or such portion thereof shall suffer a deduction of the Relevant Percentage, to cover exchange movements that may from time to time affect the value of the underlying unmatched Reinsurance Deposit or a portion thereof and the contingent obligations to which it relates.
|
4.
|
The
"Relevant Percentage"
means:
|
|
(a)
|
where a Reinsurance Deposit or a portion thereof is denominated in U.S. dollars, Canadian dollars or Sterling, 10%;
|
|
(b)
|
where a Reinsurance Deposit or a portion thereof is denominated in Euro, Swiss francs or Japanese yen, 15%; and
|
|
(c)
|
where a Reinsurance Deposit or a portion thereof is denominated in any other currency, 25%.
|
5.
|
For the purposes of each notional conversion to be effected hereunder the provisions of Clause 14(a) shall apply mutatis mutandis.
|
Name of Custodian and address of its registered or principal office
:
CITIBANK, N.A., FAO: INSURANCE LETTER OF CREDIT PRODUCT MANAGER, CITIGROUP CENTRE, CANADA SQUARE, CANARY WHARF, LONDON E14 5LB
(
the "Custodian"
)
|
Name of Chargor and address of its registered or principal office
:
Greenlight Reinsurance, Ltd
65 Market Street
Suite 1207, Jasmine Court
Camana Bay, PO Box 31110 Grand Cayman, KY1-1205
CAYMAN ISLANDS
facsimile no: 345 943 4573 Company Number: CR - 137831 (
the "Chargor"
)
|
Date of Reinsurance Deposit Agreement (Charge Form - Citibank, N.A. as Custodian)
(Form 12/CIFS): 20
th
August 2010
|
|
To:
|
CITIBANK EUROPE PLC (the "Bank")
|
|
2
nd
Floor
|
|
1 North Wall Quay
|
|
Dublin 1
|
|
Republic of Ireland
|
|
1.
|
The Custodian will hold the Assets to the Bank's Order and for such purposes will act as pledgeholder for and on behalf of the Bank in accordance with the terms of the Deposit Agreement and will comply with all undertakings it gives in each Acknowledgement of Notice.
|
|
2.
|
We have not received notice of any previous assignments of, charges over or trusts in respect of, the Assets or the Account(s) and we will not, without the Bank's prior written consent (a) exercise any right of combination, consolidation or set-off which we may have in respect of the Assets or the Account(s) or (b) amend or vary any rights attaching to the Assets or the Account(s).
|
3.
|
The Custodian will ensure that the Bank has, at all times, such access (electronic or otherwise) to the collateral platform computer systems and records currently named "Flexecube" and "Cosmos" which are maintained by the Custodian (and any successor or replacement computer systems and/or records) (collectively the "Computer Systems") as the Bank may require from time to time.
|
|
4.
|
The Custodian will ensure that:
|
|
(a)
|
the Computer Systems display, at all times, all the information that the Bank may require from time to time; and
|
(b)
|
that such information is correct, complete and up-to-date at all times.
|
|
5.
|
The Custodian will, without prejudice to the remainder of this Undertaking, comply with any instructions received from persons authorised by the Bank pursuant to the Bank's rights under:
|
|
(a)
|
Clause 3(c) of the Deposit Agreement (and will establish such accounts as may be necessary pursuant to such Clause);
|
(b)
|
Clause 21 of the Deposit Agreement; and
|
(c)
|
the Second Schedule to the Deposit Agreement.
|
|
6.
|
All rights and interests of the Custodian in or towards the Assets or any Account or any part thereof are and shall be subordinated and postponed to the Bank’s rights and interests therein under and pursuant to the Deposit Agreement, save that the Custodian shall be entitled to debit any account of the Chargor with the Custodian with any reasonable fees or commissions due and owing by the Chargor to the Custodian in respect of the Assets or part thereof.
|
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7.
|
|
(a)
|
Any notice, demand or other communication to be served on us by you (or vice versa) hereunder must be served on the relevant party:
|
|
(i)
|
at such party's address stated at the beginning of this Undertaking (or such other address as either party may notify the other of from time to time); or;
|
|
(ii)
|
by facsimile to such number as either party may notify the other of from time to time;
|
(b)
|
Any notice, demand or other communication:-
|
|
(i)
|
sent by post to either party, shall be deemed to have been served on the relevant party at 10.00 a.m. (London time) on the third Business Day after and exclusive of the date of posting; or
|
|
(ii)
|
sent by facsimile shall be deemed to have been served on the relevant party when dispatched. In proving such service by post it shall be sufficient to show that the letter containing the notice, demand or other communications 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
.
|
|
8.
|
This Undertaking shall be governed by and construed in accordance with, English law and, for the benefit of the Bank, the Custodian hereby irrevocably submits to the jurisdiction of the English courts in respect of any dispute which may arise from or in connection with this Undertaking.
|
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9.
|
A person who is not a party to this Undertaking has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Undertaking.
|
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Peadar MacCanna, Director
|
|
(Authorised Signatory)
|
|
for and on behalf of the Custodian
|
|
20th August, 2010
|
The COMMON or CORPORATE SEAL of
|
|||
the CHARGOR was hereto affixed
|
|||
to this DEED in the presence of:
|
|||
/s/Tim Courtis________________________ | |||
Tim Courtis
|
|||
Chief Financial Officer | |||
*
*
EXECUTED as a DEED
|
|||
by the CHARGOR
|
|||
/s/ Tim Courtis
|
|||
Tim Courtis | |||
Chief Financial Officer | |||
/s/ Faramarz Romer | |||
Faramarz Romer | |||
Reporting & Compliance Officer | |||
Accepted and agreed for and on behalf of
|
)
|
||
CITIBANK EUROPE PLC
|
)
|
||
/s/ Niall Tuckey | |||
By: Niall Tuckey
|
|
2.2.
Assets
|
8 |
|
31 |
|
(1)
|
the last day of any calendar month; or
|
|
(2)
|
any date as of which any withdrawal or distribution of capital is made by or to any Participant or as of which this Agreement provides for any amount to be credited to or debited against the Capital Account of any Participant, other than a withdrawal or distribution by or to, or an allocation to the Capital Accounts of, all Participants that does not result in any change of any Participant’s Percentage; or
|
|
(3)
|
the date that immediately precedes any day as of which a contribution to capital is made pursuant to this Agreement, other than a capital contribution that does not result in any change of any Participant’s Percentage; or
|
|
(4)
|
any other date that DME, in its reasonable discretion, selects.
|
|
(1)
|
any withdrawals or distributions payable to any Participant that are effective as of the date on which such determination is made;
|
|
(2)
|
any DME Share Payment or Performance Allocation as of the date on which such determination is made; and
|
|
(3)
|
withholding taxes, expenses of processing withdrawals and other items payable, any increases or decreases in any reserves or other amounts recorded pursuant to
Section 3.7
, and any increases or decreases in the value of any New Issues pursuant to
Section 3.5
or in the value of any Designated Securities during the Fiscal Period ending as of the date on which such determination is made, to the extent DME reasonably determines that, pursuant to any provisions of this Agreement, such items should be charged to one or more individual Participants and not charged ratably to the Capital Accounts of all Participants on the basis of their respective Percentages as of the commencement of the Fiscal Period.
|
|
(1)
|
10% of the portion of the Positive Performance Change for such Participant’s Capital Account, if any, determined as of the close of each Performance Period, that is less than or equal to the positive balance in such Participant’s Carryforward Account as of the most recent prior date as of which adjustment has been made thereto; plus
|
|
(2)
|
20% of the portion of the Positive Performance Change for such Participant’s Capital Account, if any, determined as of the close of each Performance Period that exceeds the positive balance in such Participant’s Carryforward Account as of the most recent prior date as of which adjustment has been made thereto.
|
|
(1)
|
the sum of (a) the balance of each such Participant’s Capital Account as of the close of the Performance Period (after giving effect to all allocations to be made to each such Participant’s Capital Account as of such date other than any Performance Allocation to be debited against each such Participant’s Capital Account), plus (b) any debits to each such Participant’s Capital Account during the Performance Period to reflect any actual or deemed distributions or withdrawals with respect to each such Participant’s Interest, plus (c) any debits to each such Participant’s Capital Account during the Performance Period to reflect any items allocable to each such Participant’s Capital Account pursuant to
Section 3.6(b)
or
Section 3.6(c)
hereof; and
|
|
(2)
|
the sum of (a) the balance of each such Participant’s Capital Account as of the commencement of the Performance Period, plus (b) any credits to such Participant’s Capital Account during the Performance Period to reflect any contributions by such Participant pursuant to this Agreement.
|
|
(1)
|
the last day of a Fiscal Year;
|
|
(2)
|
the withdrawal or Transfer by a Participant of its entire Interest; or
|
|
(3)
|
termination of this Agreement pursuant to
Section 6.1(a)
.
|
(i)
|
require registration of any Interest under any securities laws of the United States of America, any state thereof or any other jurisdiction;
|
(ii)
|
subject the venture or the Participants to a requirement to register under any securities or commodities laws of the United States of America, any state thereof or any other jurisdiction;
|
(iii)
|
cause the venture to be treated as a “publicly traded partnership” for U.S. federal income tax purposes under Section 7704(b) of the Code;
|
(iv)
|
result in the venture being considered an investment company under the Company Act;
|
(v)
|
violate or be inconsistent with any representation or warranty made by the transferring Participant at the time the Participant purchased an Interest; or
|
(vi)
|
result in Assets being considered “plan assets” for purposes of ERISA.
|
(i)
|
the end of the term of this Agreement, as determined pursuant to
Section 2.3(a)
hereof; and
|
(ii)
|
the date on which only one Participant remains.
|
(i)
|
the debts, liabilities and obligations of the venture, other than debts to the Participants as Participants, and the expenses of liquidation (including legal and accounting expenses incurred in connection therewith), up to and including the date that distribution of the Assets to the Participants has been completed, shall be first satisfied (whether by payment or the making of reasonable provision for payment thereof);
|
(ii)
|
such debts as are owing to the Participants as Participants shall be next paid; and
|
(iii)
|
the Participants shall be next paid liquidating distributions (in cash, securities, or other assets, whether or not readily marketable) pro rata in accordance with, and up to the positive balances of their respective Capital Accounts, as adjusted pursuant to Article III to reflect allocations for the Fiscal Period ending on the date of the distributions under this
Section 6.2(b)(iii)
.
|
(i)
|
The market value of each Security listed or traded on any recognized national securities exchange shall be the last reported sale price at the relevant valuation date on the composite tape or on the principal exchange on which such Security is traded. If no such sale of such Security was reported on that date, the market value is the last reported bid price (in the case of Securities held long), or last reported ask price (in the case of Securities sold short).
|
(ii)
|
Dividends declared but not yet received, and rights in respect of Securities that are quoted ex-dividend or ex-rights, shall be recorded at the fair value thereof, as determined by DME, which may (but need not) be the value so determined on the day such Securities are first quoted ex-dividend or ex-rights.
|
(iii)
|
Listed options, or over-the-counter options for which representative brokers’ quotations shall be available, are valued in the same manner as listed or over-the-counter Securities as hereinabove provided.
|
By: | /s/ Bart Hedges | By: | /s/ Leonard Goldberg | ||
Name: | Bart Hedges | Name: | Leonard Goldberg | ||
T itle: | President & CUO | Title: | CEO |
By: | /s/ Bart Hedges | By: | /s/ Leonard Goldberg | ||
Name: | Bart Hedges | Name: | Leonard Goldberg | ||
T itle: | CUO | Title: | Director |
By: | /s/ Vinit Sethi | By: | /s/ Harry Brandler |
Name: | Vinit Sethi | Name: | Harry Brandler |
T itle: | Vice President | Title: | CFO |
By: | /s/ Sherry Diaz | By: | /s/ Leonard Goldberg |
Name: | Sherry Diaz | Name: | Leonard Goldberg |
T itle: | Controller | Title: | CEO |
·
|
Composition of Investments
: At least 80% of the assets in the investment portfolio will be held in debt or equity securities (including swaps) of publicly traded companies (or their subsidiaries) and governments of OECD (the Organization of Economic Co-operation and Development) high income countries, cash, cash equivalents and gold. No more than 10% of the assets in the investment portfolio will be held in private equity securities.
|
·
|
Concentration of Investments
: Other than cash, cash equivalents and United States government obligations, no single investment in the investment portfolio will constitute more than 20% of the portfolio.
|
·
|
Liquidity
: Assets will be invested in such fashion that Greenlight Re has a reasonable expectation that it can meet any of its liabilities as they become due. Greenlight Re will review with DME the liquidity of the portfolio on a periodic basis.
|
·
|
Monitoring
: Greenlight Re will require DME to re-evaluate each position in the investment portfolio and to monitor changes in intrinsic value and trading value and provide monthly reports on the investment portfolio to Greenlight Re as Greenlight Re may reasonably determine.
|
·
|
Leverage
: The investment portfolio may not employ greater than 5% indebtedness for borrowed money, including net margin balances, for extended time periods. DME may use, in the normal course of business, an aggregate of up to 20% net margin leverage for periods of less than 30 days.
|
·
|
Composition of Investments
: At least 80% of the assets in the investment portfolio will be held in debt or equity securities (including swaps) of publicly traded companies (or their subsidiaries) and governments of OECD (the Organization of Economic Co-operation and Development) high income countries, cash, cash equivalents and gold. No more than 10% of the assets in the investment portfolio will be held in private equity securities.
|
·
|
Concentration of Investments
: Other than cash or cash equivalents and United States government obligations, (1) no single investment in the investment portfolio will constitute more than 10% of the portfolio, (2) the 10 largest investments shall not constitute greater than 50% of the total investment portfolio, and (3) the investment portfolio shall at all times be comprised of a minimum of 50 debt or equity securities of publicly traded companies (or their subsidiaries).
|
·
|
Liquidity
: Assets will be invested in such fashion that GRIL has a reasonable expectation that it can meet any of its liabilities as they become due. GRIL will review with DME the liquidity of the portfolio on a periodic basis.
|
·
|
Monitoring
: GRIL will require DME to re-evaluate each position in the investment portfolio and to monitor changes in intrinsic value and trading value and provide monthly reports on the investment portfolio to GRIL as GRIL may reasonably determine.
|
·
|
Leverage
: The investment portfolio may not employ greater than 5% indebtedness for borrowed money, including net margin balances, for extended time periods. DME may use, in the normal course of business, an aggregate of up to 20% net margin leverage for periods of less than 30 days.
|
Dated: August [ ], 2010
|
[Participant]
|
Nine Months Ended September 30, 2010
(2)
|
Nine Months Ended September 30, 2009
(2)
|
||
Ratio of Earnings to Fixed Charges (1)
|
5.46
|
43.44
|
1.
|
I have reviewed this quarterly report on Form 10-Q of Greenlight Capital Re, 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 periods 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 officers 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:
|
5.
|
The registrant’s other certifying officers 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):
|
Dated: November 2, 2010
|
/s/ Leonard Goldberg
|
|
Leonard Goldberg
|
||
Chief Executive Officer
|
1.
|
I have reviewed this quarterly report on Form 10-Q of Greenlight Capital Re, 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 periods 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 officers 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:
|
5.
|
The registrant’s other certifying officers 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):
|
Dated: November 2, 2010
|
/s/ Tim Courtis
|
|
Tim Courtis
|
||
Chief Financial Officer
|
Dated: November 2, 2010
|
/s/ Leonard Goldberg
|
|
Leonard Goldberg
|
Dated: November 2, 2010
|
/s/ Tim Courtis
|
|
Tim Courtis
|