AGREEMENT by and among GREENLIGHT REINSURANCE, LTD., GREENLIGHT CAPITAL RE, LTD. (for limited purposes) and DME ADVISORS, LP DATED AS OF JANUARY 1, 2008

EX-10.1 2 file2.htm AGREEMENT

EXHIBIT 10.1

AGREEMENT

by and among

GREENLIGHT REINSURANCE, LTD.,

GREENLIGHT CAPITAL RE, LTD. (for limited purposes)

and

DME ADVISORS, LP

DATED AS OF JANUARY 1, 2008

 

 

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TABLE OF CONTENTS

 

 

 

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THIS AGREEMENT is made as of this 1st day of January, 2008 by and between Greenlight Reinsurance, Ltd., incorporated under the laws of the Cayman Islands as an exempted company with limited liability and a holder of a Class B Insurer’s license issued in accordance with the terms of the Insurance Law (as revised) of the Cayman Islands (“Greenlight Re”), and DME Advisors, LP, a Delaware limited partnership (“DME”), and, solely for the purposes set forth in Section 4.1 (d) and (e), Greenlight Capital Re, Ltd. incorporated under the laws of the Cayman Islands as an exempted company with limited liability (“Greenlight Capital Re”);

WHEREAS, Greenlight Re and DME desire to create a joint venture solely with respect to the management of certain investable assets and to share in the profits and losses therefrom as described in this Agreement.

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the undersigned parties agree as follows:

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Article I

Definitions

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For purposes of this Agreement:

“Affiliate” means with respect to any Person, a Person that, directly or indirectly through one or more intermediaries, controls, is controlled by or is under common control with such Person. For these purposes, the term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting Securities, by contract or otherwise.

“Agreement” means this Agreement, as amended from time to time.

“Assets” has the meaning set forth in Section 2.2.

“Business Day” means any day on which banks are open for business in New York, New York and the Cayman Islands.

“Board” means Greenlight Re’s  full  board of directors, or, if required by law, regulation or securities exchange upon which Greenlight Re’s common shares are listed, an independent committee of the Board; provided that any such independent committee shall consist of all members of Greenlight Re’s board of directors that are not expressly prohibited by applicable law, regulation or securities exchange from participating in an action to be taken by the Board pursuant to this Agreement.

“Capital Account” means with respect to each Participant a memorandum account established and maintained on behalf of such Participant as described in Section 3.3.

 

 

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“Carryforward Account” means a memorandum account to be recorded by DME in the books and records of the venture with respect to each Participant that has an initial balance of zero and that is adjusted as follows:

“Cause” has the meaning set forth in Section 6.1(a)(ii).

“Code” means the U.S. Internal Revenue Code of 1986, as amended and as hereafter amended, or any successor law.

“Commencement Date” means the date of this Agreement.

“Company Act” means the U.S. Investment Company Act of 1940, as amended.

“Covered Person” means DME, the general partner of DME, and their respective members, partners, managers, directors, officers, employees and agents, and any Person who controls DME or its general partner.

“Designated Securities” has the meaning set forth in Section 3.5(b).

“DME Compensation” means with respect to each Participant other than DME, an amount per month equal to 0.125% (an annual rate of 1.5%) of the Capital Account balance of each such Participant.

“ERISA” means the Employee Retirement Income Security Act of 1974, as the same may be amended from time to time.

“Excluded Participant” means any Participant reasonably determined by DME to be legally or otherwise restricted from participating (in whole or in part) in investments in one or more particular securities or types of investments.

 

 

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“Entity” has the meaning set forth in Section 4.1(b).

“Final Determination” means (1) with respect to U.S. federal income taxes, a “determination” (as defined in Section 1313(a) of the Code) or the execution of a settlement agreement with the Internal Revenue Service (pursuant to Form 870-AD or otherwise) and (2) with respect to taxes other than U.S. federal income taxes, any judicial or administrative determination or settlement that is substantially similar to a Final Determination described in clause (1).

“Fiscal Period” means each period that starts on the Commencement Date (in the case of the initial Fiscal Period) and thereafter on the first day immediately following the last day of the preceding Fiscal Period, and that ends on the earliest of the following dates:

“Fiscal Year” means the period commencing on January 1 of each year and ending on December 31 of such year.

“Force Majeure” shall mean fires, floods, acts of God or the public enemy, interference by civil or military authorities, terrorist acts, governmental actions, orders or requests.

“Guidelines” has the meaning set forth in Section 4.1(a).

“Interest” means all of the rights, obligations and interest(s) (in their entirety) of a Participant in the venture at the relevant time, including the right of such Participant to any and all benefits to which a Participant may be entitled as provided in this Agreement and the obligations of such Participant to comply with all the terms and provisions of this Agreement.

“Losses” has the meaning set forth in Section 4.4(a).

“Managed Account” means assets managed by DME or any of its Affiliates, whether for its own account or for the account of any third party, that are invested or available for investment in investment or trading activities.

 

 

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“NASD” means the National Association of Securities Dealers, Inc.

“NASD-restricted Issues” has the meaning assigned to such term in Section 3.5(a) hereof.

“Negative Performance Change” has the meaning set forth in the definition of Performance Change.

“Net Assets” means the total value, as determined by DME in accordance with Section 7.2, of the Assets (including net unrealized appreciation or depreciation of the assets and accrued interest and dividends receivable net of any withholding taxes), less an amount equal to all accrued debts, liabilities and obligations chargeable against such Assets in accordance with this Agreement (including any reserves for contingencies accrued pursuant to Section 3.7). Except as otherwise expressly provided herein, Net Assets as of the first day of any Fiscal Period shall be determined on the basis of the valuation of Assets conducted as of the close of the immediately preceding Fiscal Period but after giving effect to any capital contributions made by any Participant subsequent to the last day of such immediately preceding Fiscal Period and Net Assets as of the last day of any Fiscal Period shall be determined before giving effect to any of the following amounts payable generally or in respect of any Securities which payments or allocations are effective as of the date on which such determination is made:

“Net Loss” means any amount by which the Net Assets as of the first day of a Fiscal Period exceed the Net Assets as of the last day of the same Fiscal Period.

“Net Profit” means any amount by which the Net Assets as of the last day of a Fiscal Period exceed the Net Assets as of the first day of the same Fiscal Period.

“Participant” means any Person that is or becomes a party to this Agreement, until the entire Interest of such Person has been withdrawn pursuant to Section 5.2 or a substitute Participant or Participants are admitted with respect to such Person’s entire Interest, or this Agreement is terminated pursuant to Section 6.1 and the Assets distributed or liquidated pursuant to Section 6.2.

 

 

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“Percentage” means a percentage established for each Participant as of the first day of each Fiscal Period representing such Participant’s share of allocations attributable to transactions involving the Capital Account for such Fiscal Period. The Percentage of a Participant for a Fiscal Period is determined by dividing the amount of the Participant’s Capital Account as of the beginning of the Fiscal Period (after adjustment for all net contributions or withdrawals, DME Compensation and Performance Allocations that are effective as of such date) by the aggregate Capital Accounts of all Participants as of the beginning of the Fiscal Period (after adjustment for all net contributions or withdrawals and DME Compensation that are effective as of such date). The sum of the Percentages of all Participants for each Fiscal Period must equal 100%.

“Performance Allocation” means with respect to each Participant other than DME:

“Performance Change” means, with respect to each Participant for each Performance Period, the difference between:

 

 

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If the amount specified in clause (1) exceeds the amount specified in clause (2) such difference is a “Positive Performance Change,” and if the amount specified in clause (2) exceeds the amount specified in clause (1), the absolute value of such difference is a “Negative Performance Change.”

“Performance Period” means, with respect to Participants, the period commencing as of the date that such Participant becomes a party to this Agreement (in the case of such Participant’s initial Performance Period) and thereafter each period commencing as of the day following the last day of the preceding Performance Period with respect to such Participant, and ending as of the close of business on the first to occur of the following after the relevant commencement date:

“Person” means any individual, partnership, corporation, limited liability company, trust, or other entity.

“Positive Performance Change” has the meaning set forth in the definition of Performance Change.

“Proceeding” has the meaning set forth in Section 3.12.

“Regulations” means the regulations issued under the Code or any successor law.

“Regulation 114 Trust” means a three way investment trust that (i) involves an agreement among a cedent, a financial institution and a non-admitted reinsurer governed by Regulation 114 of the Official Compilation of Codes, Rules and Regulations (11 NYCRR4) of the New York State Insurance Department, (ii) is maintained in the United States in an approved financial institution and (iii) is collateralized only by cash and cash equivalents, U.S. Treasury securities and/or fixed income securities rated “A” or higher.

“Restricted Capital Accounts” has the meaning assigned to such term in Section 3.5(a) hereof.

“Securities” has the meaning set forth in Section 4.1(b).

“Tax Treatment” has the meaning set forth in Section 3.12.

“Transfer” means any sale, exchange, transfer, assignment or other disposition by a Participant of his Interest to another party, whether voluntary or involuntary, including a transfer by operation of law. Notwithstanding the foregoing, a pledge or lien by a Participant of any or all of its Interest made in accordance with, and permitted by, this Agreement shall not be deemed to be a Transfer.

 

 

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“Treasury Bill Rate” means, with respect to any calendar month, a rate of interest, determined and adjusted monthly by DME as of the fifth Business Day of each month, equal to the annual coupon equivalent yield on 13-week U.S. Treasury bills resulting from the most recent auction of such instruments prior to the monthly determination date.

“venture” has the meaning set forth in Section 2.1(c).

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Article II

Organization

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2.1. Purpose of Agreement

(a) The parties hereto hereby agree to form a joint venture to manage certain jointly held assets and to share profits and losses as more particularly described herein.

(b) Each of the Participants hereby agrees, subject to the remainder of this Agreement, to reasonably cooperate to carry out the intent of this Agreement and to effectuate, implement and continue the valid and subsisting existence of the relationship created hereby.

(c) The parties hereto acknowledge that they intend that the joint venture created by this Agreement be taxed as a partnership and not as an association taxable as a corporation for United States federal income tax purposes and references herein to the “venture” are references to such joint venture and tax partnership. No election may be made by a Participant to treat the relationship created by this Agreement as other than a partnership for United States federal income tax purposes.

2.2. Assets

The Participants acknowledge and agree that the assets governed by and subject to this Agreement (the “Assets”) will be jointly owned, but held in segregated accounts each in the name of Greenlight Re separate from Greenlight Re’s other assets. All Assets held in the name of Greenlight Re shall be held in trust for the benefit of all Participants in accordance with the terms of this Agreement. DME will select one or more custodians for the Assets and will promptly notify each Participant in writing following the selection of custodians hereunder.

2.3. Term of Agreement

The term of this Agreement commences on the Commencement Date and continues, unless earlier terminated pursuant to Section 6.1 hereof, until December 31, 2010; provided however, that this Agreement shall automatically continue for additional successive three-year periods unless Greenlight Re or DME notifies the other Participants at least 90 days prior to the end of the current period that it wishes to terminate this Agreement.

 

 

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2.4. Objectives

The object and purpose of and the nature of the business to be conducted pursuant to this Agreement is investing, acquiring, holding, voting, disposing and otherwise dealing with the Securities consistent with the terms of this Agreement (including, without limitation, the Guidelines) and engaging in any and all activities necessary or incidental to the foregoing.

2.5. Actions by DME

Subject to the limitations contained elsewhere in this Agreement, DME, on behalf of the Participants, may execute, deliver and perform all contracts, agreements and other undertakings and engage in all activities and transactions as may, in the reasonable discretion of DME, be necessary or advisable to carry out the objectives of this Agreement (including without limitation all federal securities filings relating to any of the investment activities set forth in Section 4.1(b)), provided, however, that if a contract, agreement or other undertaking is or is to be made by DME on behalf of Greenlight Re that could reasonably be expected to require disclosure on a Form 8-K pursuant to Section 13 or 15(d) of the United States Securities Exchange Act of 1934, as amended, DME shall promptly notify Greenlight Re and cooperate with Greenlight Re to allow a timely and proper disclosure to be made.

2.6. Reliance by Third Parties

Persons dealing with any Participant, individually or in the aggregate as it relates to the Assets or the relationship created by this Agreement, are entitled to rely conclusively upon the power and authority of the Participants as herein set forth.

2.7. Liability of Participants

In no event will any Participant (or former Participant) be obligated to make any capital contribution in addition to its agreed capital contributions (or other payments provided for herein) or have any liability for the repayment or discharge of debts and obligations of the venture except to the extent provided herein or as required by law.

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Article III

Capital

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3.1. Contributions to Capital

(a) Each Participant shall make an initial contribution to the capital of the venture in the amount listed on Exhibit B.

(b) Each Participant, as applicable, shall make additional capital contributions in accordance with Section 3.6(b), Section 4.1(d) and 4.1(e) hereof. In the event that DME’s Percentage falls below 1%, it shall promptly (and in any event within five (5) Business Days of

 

 

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such occurrence) make a capital contribution necessary to increase its Percentage to at least 1%. DME shall not be required to make any other additional capital contributions except as otherwise specifically contemplated by this Agreement.

3.2. Rights of Participants in Capital

(a) No Participant is entitled to interest on any contributions made pursuant to this Agreement.

(b) No Participant has the right to the return of any contribution made pursuant to this Agreement except (i) upon a withdrawal by a Participant pursuant to Section 5.2 or (ii) upon the termination of this Agreement pursuant to Section 6.1. The entitlement to any such return at such time is limited to the value of the Capital Account of the Participant.

3.3. Capital Accounts

(a) Each Participant shall have a separate Capital Account relating to its Interest.

(b) Each Participant’s Capital Account has an initial balance equal to the amount of any cash and the net value, as determined in accordance with Section 7.2 hereof, of any assets constituting such Participant’s initial contribution, as listed on Exhibit B.

(c) Each Participant’s Capital Account is increased by the amount of cash and the net value, as determined in accordance with Section 7.2 hereof, of any assets constituting additional contributions by such Participant and decreased by the amount of cash and the net value of any assets withdrawn by and distributed to such Participant and such Participant’s pro rata portion of the expenses allocable pursuant to Section 4.2(a).

(d) Each Participant’s Capital Account is adjusted in the manner specified in the remaining provisions of Article III.

3.4. Allocation of Net Profits and Net Losses

(a) Except as otherwise expressly provided herein, all capital contributions by a Participant are credited to such Participant’s Capital Account, and all withdrawals by or distributions to such Participant are debited from such Participant’s Capital Account to the extent thereof. Subject to the remaining provisions of this Section 3.4, Section 3.5, and Section 3.8 as of the last day of each Fiscal Period, any Net Profit or Net Loss for such Fiscal Period shall be allocated among and credited to or debited against the Capital Accounts of the Participants in proportion to their respective Percentages for such Fiscal Period.

(b) Notwithstanding Section 3.4(a), items of income, gains, losses, deduction, credit and expenses that relate to NASD-restricted Issues and Designated Securities shall be allocated exclusively to Participants who, as DME reasonably determines, are eligible to participate in such NASD-restricted Issues and Designated Securities on a pro rata basis. DME acknowledges that Greenlight Re holds a Class B Insurer’s license issued in accordance with the terms of the Insurance Law (as revised) of the Cayman Islands.

 

 

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3.5. Allocations Relating to NASD-Restricted Issues and Designated Securities

(a) Pursuant to the rules of the NASD, members of the NASD are permitted to sell to the venture certain publicly-offered securities (“NASD-restricted Issues”) only if the Capital Accounts of Participants connected with the securities industry (“Restricted Capital Accounts”) are restricted from sharing a beneficial interest in such NASD-restricted Issues in accordance with the provisions of such NASD rules. Notwithstanding the provisions of Section 3.4 above, to enable investment in NASD-restricted Issues, DME shall not allocate any items of income, gain, loss, deduction and credit that relate to investments in NASD-restricted Issues to Restricted Capital Accounts except to the extent permitted by the NASD rules and shall instead allocate such items among the other Capital Accounts on a pro rata basis. To the extent that NASD rules permit certain persons with Restricted Capital Accounts to participate in NASD-restricted Issues, DME will allocate such NASD-restricted Issue among such Restricted Capital Accounts on a pro rata basis. DME may specially allocate a carrying charge to compensate Participants with Restricted Capital Accounts to the extent such Restricted Capital Accounts do not participate in investments in NASD-restricted Issues for the use of capital to purchase or carry such positions. To the extent consistent with NASD rules, as amended from time to time, DME shall determine when all Capital Accounts may participate in the Net Profit and Net Loss from any NASD-restricted Issue. DME shall value any NASD-restricted Issue at such time at the then-current price of the security in the secondary market.

(b) Certain investments may be purchased under this Agreement in which participation by Excluded Participants may be restricted (“Designated Securities”). Notwithstanding the provisions of Section 3.4 above, to enable investment in such Designated Securities while limiting an Excluded Participant’s participation in investments that are Designated Securities with respect to such Excluded Participant, DME shall not allocate any items of income, gain, loss, deduction and credit that relate to such Designated Securities to any Excluded Participant with respect to such Designated Securities to the extent required in connection with such Excluded Participant’s designation as such, and shall instead allocate such items among the other Capital Accounts on a pro rata basis. DME may allocate a commercially reasonable carrying charge to compensate an Excluded Participant to the extent such Excluded Participant does not participate in such Designated Security.

(c) Notwithstanding the foregoing, if DME deems that Greenlight Re is an Excluded Participant with respect to any Designated Security, then no investment in such Designated Security shall be made on behalf of any Participant in connection with the venture.

3.6. Allocation of DME Compensation, Withholding Taxes and Certain Other Expenditures

(a) As of the first day of each month, the DME Compensation for such month shall be debited against the Capital Account of each Participant (other than DME) and paid in cash to DME. All applicable DME Compensation accrues from the Commencement Date and is payable monthly in advance on the first day of the month, based on the Capital Account balance of each such Participant as of the beginning of such month (or on the Commencement Date in the case of the first month of this Agreement). If this agreement is terminated in accordance with its terms as of a date other than the last day of a month, the monthly compensation for the final month shall be prorated to the date of termination.

 

 

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(b) If the venture or a Participant incurs a withholding tax or other tax obligation with respect to the share of income allocable to any Participant, then DME, on behalf the venture or of such Participant, shall (unless otherwise agreed by such Participant) withhold the appropriate portion of such Participant’s share of income, timely remit such amount to the applicable taxing authority and cause the amount of such obligation to be debited against the Capital Account of such Participant as of the close of the Fiscal Period during which such obligation was paid. If the amount of such taxes is greater than such Capital Account balance, then such Participant and any successor to such Participant’s Interest must, in connection with this Agreement, make a capital contribution in the amount of such excess. No one other than the Participant is obligated to apply for or obtain a reduction of or exemption from withholding tax on behalf of any Participant that may be eligible for such reduction or exemption but DME will provide any assistance reasonably requested by a Participant, at such Participant’s cost, in connection with establishing any such reduction or exemption. Notwithstanding the foregoing, DME shall bear the financial obligation of any withholding or other tax obligation if the venture or Greenlight Re incurs such withholding or other tax obligation with respect to the share of income allocable to Greenlight Re that (i) Greenlight Re would not have been subject to but for the establishment of, and the investment by, the venture, and (ii) increases Greenlight Re’s aggregate tax liability compared to Greenlight Re’s aggregate tax liability had the investment been made by Greenlight Re, directly or otherwise, outside of the venture.

(c) Except as otherwise provided for in this Agreement, any expenditures payable by or on behalf of the venture, to the extent determined by DME to have been paid or withheld on behalf of, or by reason of particular circumstances applicable to, one or more but fewer than all of the Participants, are to be charged to only those Participants on whose behalf such payments are made or whose particular circumstances gave rise to such payments. Such charges are debited from the Capital Accounts of such Participants as of the close of the Fiscal Period during which any such items were accrued or paid.

3.7. Reserves; Adjustments for Certain Future Events

(a) Appropriate reserves may be created, accrued and charged against the Net Assets and proportionately against the Capital Accounts of the Participants for contingent liabilities associated with the venture, including, without limitation, for accrued Performance Allocation amounts, such reserves to be in the amounts that DME, in its reasonable discretion, deems necessary or appropriate. DME may increase or reduce any such reserve from time to time by such amounts as DME in its reasonable discretion deems necessary or appropriate. At the reasonable discretion of DME, the amount of any such reserve, or any increase or decrease therein, may be charged or credited, as appropriate, to the Capital Accounts of those parties who are Participants at the time when such reserve is created, increased, or decreased, as the case may be, or alternatively may be charged or credited to those parties who were Participants at the time of the act or omission giving rise to the contingent liability for which the reserve was established.

(b) If DME in its reasonable discretion determines that it is equitable to treat an amount to be paid or received as being applicable to one or more prior periods, then such amount may be proportionately charged or credited, as appropriate, to those parties who were Participants during such prior period or periods.

 

 

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(c) If any amount is to be charged or credited to a party who is no longer a Participant, such amount must be paid by or to such party, as the case may be, in cash with interest at the Treasury Bill Rate in effect at that time from the date on which the Participants determine that such charge or credit is required. In the case of a charge, the former Participant is obligated to pay the amount of the charge, or if another Participant has already paid the charge, to reimburse such other Participant promptly on demand; provided that (i) in no event is a former Participant obligated to make a payment exceeding the amount of its Capital Account at the time to which the charge relates, and (ii) no such demand may be made if the applicable limitation period under applicable law, if any, has expired. To the extent DME or the Participants fail to collect, in full, any amount required to be charged to such former Participant pursuant to paragraph (a) or (b) of this Section 3.7, whether due to the expiration of the applicable limitation period, if any, or for any other reason whatsoever, the deficiency may be charged proportionately to the Capital Accounts of the current Participants.

(d) In the event any reserves in excess of $100,000 are created, accrued or charged against the Net Assets of Greenlight Re’s Capital Account, or any such reserves are increased or decreased, DME will promptly, within five (5) Business Days following month end, provide written notice and a description of such event to Greenlight Re.

3.8. Performance Allocation

(a) The Performance Allocation shall be debited against the Capital Account of each Participant (other than DME) as of the last day of each Performance Period with respect to such Participant, and the amount so debited shall be simultaneously credited to the Capital Account of DME.

(b) DME, in its sole discretion, may waive or reduce the Performance Allocation.

3.9. Allocations for Income Tax Purposes

(a) Except as otherwise required by Code Section 704(c), items of income, gain, deduction, loss, or credit that are recognized for income tax purposes in each Fiscal Year shall be allocated among the Participants, in such manner as to reflect equitably amounts credited to or debited against each Participant’s Capital Account, whether in such Fiscal Year or in prior Fiscal Years. To this end, DME shall establish and maintain records that show the extent to which the Capital Account of each Participant, as of the last day of each Fiscal Year, consists of amounts that have not been reflected in the taxable income of such Participant. To the extent deemed by DME, in its reasonable discretion, to be feasible and equitable, taxable income and gains in each Fiscal Year shall be allocated among the Participants who have enjoyed the related credits to their Capital Accounts, and items of deduction, loss and credit in each Fiscal Year shall be allocated among the Participants who have borne the burden of the related debits to their Capital Accounts.

(b) To the extent an adjustment to the adjusted tax basis of any Asset or any Capital Account pursuant to Code Section 734(b) is required under Regulations Sections 1.704-1(b)(2)(iv)(m)(4) and (5) to be taken into account in determining Capital Accounts, the amount of such adjustment to the Capital Accounts shall be treated as an item of gain (if the adjustment

 

 

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increases the basis of the asset) or loss (if the adjustment decreases such basis) and such gain or loss shall be specially allocated to the Participants in the same manner that the gain or loss displaced by such basis adjustment would have been allocated had the assets in question been sold.

3.10. Qualified Income Offset

In the event any Participant receives any adjustments, allocations, or distributions described in Section 1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5), or 1.704 1(b)(2)(ii)(d)(6) of the Regulations, items of income and gain will be specially allocated to each such Participant in an amount and manner sufficient to eliminate, to the extent required by the Regulations, the deficit balance in the Capital Account of such Participant as quickly as possible, provided that an allocation pursuant to this Section 3.10 may be made only if and to the extent that such Participant would have a deficit balance in its Capital Account after all other allocations provided for in this Article III have been tentatively made as if this Section 3.10 were not in the Agreement. This Section 3.10 is intended to constitute a “qualified income offset” within the meaning of Regulations Section 1.704-1(b)(2)(ii), and must be interpreted consistently therewith.

3.11. Gross Income Allocation

In the event any Participant has a deficit Capital Account at the end of any Fiscal Year that is in excess of the sum of (i) the amount such Participant is obligated to restore pursuant to any provision of this Agreement and (ii) the amount such Participant is deemed to be obligated to restore pursuant to the penultimate sentences of Regulations Section 1.704-2(g)(1) and 1.704-2(i)(5), each such Participant will be specially allocated items of income and gain in the amount of such excess as quickly as possible, provided that an allocation pursuant to this Section 3.11 may be made only if and to the extent that such Participant would have a deficit Capital Account in excess of such sum after all other allocations provided for in this Article III have been made as if Section 3.10 hereof and this Section 3.11 were not in the Agreement.

3.12. Individual Participants’ Tax Treatment

(a) Except with regard to the treatment of the venture as a partnership for U.S. tax purposes and the treatment of the Performance Allocation as contemplated by this Agreement (“Tax Treatment”), each Participant agrees not to treat, on any income tax return or in any claim for a refund, any item of income, gain, loss, deduction or credit in a manner inconsistent with the treatment of such item pursuant to the terms of this Agreement unless otherwise required by a Final Determination after such Participant uses its commercially reasonable efforts to uphold the treatment of the item in a manner consistent with the terms of this Agreement.

(b) Notwithstanding the foregoing, the parties shall not take any position inconsistent with the Tax Treatment. If a claim, action or proceeding (a “Tax Proceeding”) is brought by the Internal Revenue Service or other taxing authority against a Participant or the venture challenging the Tax Treatment, such Participant shall provide prompt written notice to DME of such Tax Proceeding and DME shall be entitled to assume the defense of, and control all matters with regard to, such Tax Proceeding as it relates to the Tax Treatment in accordance with the procedures set forth in Section 4.4(e). DME shall indemnify such Participant for any losses,

 

 

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damages, costs and expenses associated with any such Tax Proceeding in accordance with Section 4.4 of this Agreement whether or not it assumes the defense. DME shall use reasonable efforts to keep such Participant apprised of the status of such Tax Proceeding. No Participant may settle a Tax Proceeding inconsistent with the Tax Treatment contemplated by this Agreement unless DME fails to assume or maintain the defense of the Tax Proceeding as contemplated by this Section 3.12(b), or DME provides express prior written consent.

3.13. Distributions

(a) Subject to Section 5.2, the amount, form and timing of any distributions pursuant to this Agreement are determined by DME.

(b) Notwithstanding any provision to the contrary contained in this Agreement, DME may not make a distribution to any Participant on account of such Participant’s Interest if such distribution would violate any applicable law.

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Article IV

Management

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4.1. Duties and Powers of the Participants

(a) Subject to the investment guidelines of Greenlight Re attached hereto as Exhibit A, as amended from time to time by the Board, and provided in writing to DME (the “Guidelines”), DME shall be empowered (a) to formulate the overall trading and investment strategy of the venture (and the limited related borrowing activities associated therewith in order to implement such strategy) and (b) to exercise full discretion in the management of the trading and investment transactions and related activities contemplated by this Agreement in order to implement such strategy, including the authority to allocate a portion of the Assets to other trading advisors through managed accounts or collective investment vehicles. DME shall consider the interests of all Participants when exercising its discretion and shall not make investment decisions based on tax treatment that are or could be reasonably expected to be beneficial to DME to the detriment of other Participants.

(b) Subject to Section 4.1(c), in furtherance of the foregoing, subject to the Guidelines, the Participants hereby designate and appoint DME as agent and attorney-in-fact for purposes of this Agreement, with full power and authority and without the need for further approval of any Participant (except as may be required by applicable law) to have the exclusive power on behalf of the Participants to (i) effect any and all transactions in equity and debt securities (including derivatives thereon), currencies and commodities (and options, futures, derivatives, swaps, and forward contracts thereon), trade and other claims, arbitrages, loans, break-ups, consolidations, reorganizations and similar securities of non-United States issuers, and everything connected therewith in the broadest sense (“Securities”); (ii) determine all matters relating to the manner, method and timing of investment transactions and to engage consultants and analysts in connection therewith; (iii) select brokers (including prime brokers),

 

 

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dealers, banks and other intermediaries by or through whom such investment transactions will be executed or carried out; (iv) make short sales; (v) purchase or write options (including uncovered options); (vi) trade on margin; (vii) draw funds and direct banks, brokers or other custodians to effect deliveries of funds or assets, but only in the course of effecting investment transactions for the account of the venture and its Participants; (viii) exercise all voting and other powers and privileges attributable to any Securities or other property held for the account of the venture and its Participants hereunder; and (ix) make and execute all such documents and to take all such other actions as DME considers necessary or appropriate to carry out its investment advisory duties hereunder, including opening brokerage (including prime brokerage) accounts and any other required documentation including, without limitation, swaps, securities, lending arrangements and similar agreements on behalf of the venture and its Participants. DME may, with the prior consent of Greenlight Re (which consent may not be unreasonably withheld), effectuate the foregoing through one or more corporations, partnerships, limited liability companies or other entities formed on behalf of the venture (an “Entity”). For purposes of providing such consent, Greenlight Re shall designate an authorized representative (and a substitute authorized representative in the event that the first authorized representative is unavailable) each of whom have the authority to provide such consent. A failure of an authorized representative to consent or reject the formation and use of an Entity in connection with a proposed transaction within twenty-four (24) hours of receipt of a written request (via electronic mail or otherwise) for approval from DME shall be deemed consent. For purposes of documenting the foregoing for third parties, each of the Participants shall execute a Power of Attorney in the form attached hereto as Exhibit C. Such Power of Attorney shall be subject to any limitations contained in this Agreement, including, without limitation, those limitations listed in Section 4.1(c) below.

(c) Notwithstanding anything to the contrary in this Agreement, DME shall use commercially reasonable efforts to avoid engaging in any activity or taking any action that would cause Greenlight Re to be treated as engaged in a U.S. trade or business for U.S. federal income tax purposes, including investing in any asset that (i) does not qualify for the trading safe harbor provided in Section 864(b)(2) of the Code and the Treasury Regulations promulgated thereunder, or (ii) would be considered a United States real property interest for purposes of Section 897 of the Code. DME’s investment authority and discretion shall be subject to the following additional restrictions: DME shall not, except as otherwise approved by Greenlight Re in writing, effect any investment transactions for the accounts of the venture and it Participants which are inconsistent with the Guidelines or other investment restrictions from time to time imposed by regulation or adopted by the Board, or as set forth in any other written statement of investment restrictions; provided that such Guidelines and investment restrictions are communicated in writing to DME.

(d) During the term of this Agreement neither Greenlight Capital Re nor Greenlight Re shall engage a person or entity, other than DME or, with the prior written consent of DME, a DME Affiliate, to act as its investment advisor or in a similar capacity. In furtherance of the foregoing, during the term of this Agreement Greenlight Re shall use its commercially reasonable efforts to cause substantially all of its investable assets to be contributed to the venture as soon as reasonably practicable; provided, however, that the term “investable assets” shall not be deemed to include (i) any assets of Greenlight Re which are, in the good faith determination of the Board, necessary for the operation of Greenlight Re’s business; (ii) up to

 

 

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10% (20% if approved by the Board, and communicated in writing to DME) of its assets that are available for investment that are used to collateralize Regulation 114 Trusts.

(e) During the term hereof (including, for the avoidance of doubt, during any renewal term), Greenlight Re and Greenlight Capital Re shall, and shall use commercially reasonable efforts to cause any of their respective subsidiaries that are formed before or after the date hereof to (i) become a Participant or (ii) enter into an agreement similar to this Agreement, in each case relating to the investment of substantially all of their investable assets.

(f) In connection with the transactions contemplated by this Agreement, the Participants acknowledge and agree that in the course of selecting brokers, dealers, banks and financial intermediaries to effect such transactions, DME may agree to such commissions, fees and other charges as it shall deem reasonable under the circumstances, taking into consideration all such factors as DME deems relevant, including the following: the ability to effect prompt and reliable executions at favorable prices; the operational efficiency with which transactions are effected; the financial strength, integrity and stability of the broker; the quality, comprehensiveness and frequency of available research and other services considered to be of value (even if such research and other services are not for the exclusive benefit of the accounts of the venture and its Participants); and the competitiveness of commission rates in comparison with other brokers satisfying DME’s other selection criteria. It is understood that the costs of such services will not necessarily represent the lowest costs available and that DME is under no obligation to combine or arrange orders so as to obtain reduced charges.

(g) DME shall be the tax matters partner for purposes of this Agreement and Section 6231(a)(7) of the Code. The tax matters partner has the exclusive authority and discretion to make any elections required or permitted to be made by the venture under any provisions of the Code or any other applicable laws.

4.2. Expenses

(a) All expenses incurred directly in connection with transactions effected or positions held for the account of the venture and its Participants (including, without limitation, custodial fees, brokerage commissions, research costs, market data fees, legal, consulting and auditing fees, interest on debit balances and withholding or transfer taxes) shall be paid or reimbursed by the venture. In addition, DME shall be entitled to be paid or reimbursed for other out-of pocket expenses (other than its own salary, office rent and other customary general administrative, overhead costs and the costs of maintaining books and records pursuant to Section 7.4) incurred in the performance of its duties pursuant to this Agreement. Expenses generally will be borne pro rata by the Participants in accordance with the balances in their respective Capital Accounts, except as provided elsewhere in this Agreement, including Sections 3.4, 3.5, 3.6, and 3.9.

(b) DME shall be entitled to use “soft dollars” generated by investments to pay for certain of its own operating and overhead costs, including payment of all or a portion of its costs and expenses of operation to the extent that DME, in its reasonable discretion, determines that any such costs and expenses are reasonably related to the investment decision-making process. Use of “soft dollars” by DME as described herein shall not constitute a breach by it of any

 

 

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fiduciary or other duty which DME may be deemed to owe to any other Participant or any Affiliate thereof.

(c) If DME shall incur any of the expenses for the account or benefit of, or in connection with its activities or those of its Affiliates on behalf of, both the venture and any Managed Account, DME, as appropriate, will allocate such expense among the venture and each such Managed Account in proportion to the size of the investment made by each of the venture and each Managed Account in the activity or entity to which the expense relates, or in such other manner as DME in good faith considers fair and reasonable.

(d) The venture does not have its own separate employees or office, and no Participant is entitled to reimbursement for salaries, office rent and other general overhead costs of such Participant in connection with this Agreement.

4.3. Other Activities of Participants

(a) DME is not required to devote its full time to its duties under this Agreement, but must devote such of its time to such duties as it, in its discretion exercised in good faith, determines to be necessary to conduct the affairs contemplated by this Agreement.

(b) This Agreement shall not restrict in any way the ability of DME or its Affiliates to engage in any other business or investment activities. It is expressly understood that DME and its Affiliates may effect investment transactions for their own account and for Managed Accounts which may or may not be affiliated with any Participant, and the Participants further understand and agree that nothing herein shall restrict the ability of DME or its Affiliates to engage in any such transactions notwithstanding the fact that the Participants may have, by virtue of this Agreement or otherwise, or may take a position of any kind; provided, however, that DME shall not, without the prior written consent of the Board, purchase pursuant to this Agreement any Asset from, or sell pursuant to this Agreement any Asset to, DME or any Managed Account which DME or an Affiliate is the investment advisor to or is otherwise a beneficial owner of; provided further, however, that failure to obtain such prior written consent shall not be deemed a breach of this Agreement if the Board ratifies such purchase or sale after the fact. Notwithstanding the foregoing, DME may cause the venture and Managed Accounts that invest in parallel therewith to enter into book account trades in the ordinary course of business transferring portions of investments among all such Managed Accounts in order to reflect changes in the size of the venture relative to the size of such Managed Accounts without the need for consent or ratification by the Board of any such trades.

(c) It is understood that when DME determines that it would be appropriate for the venture and one or more of DME’s (or its Affiliates’) other Managed Accounts to participate in an investment opportunity, DME will seek to execute orders for, or otherwise allocate such opportunities to, the venture and such Managed Accounts on an equitable basis. In such situations, DME may place orders for the venture and each Managed Account simultaneously and if all such orders are not filled at the same price, DME may cause the venture and each Managed Account to pay or receive the average of the prices at which such orders were filled for the venture and all other Managed Accounts. If all such orders cannot be fully executed under prevailing market conditions, DME may allocate among the venture and the Managed Accounts

 

 

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the securities traded in a manner which DME considers in its reasonable discretion equitable, taking into account the size of the order placed for the venture and each such Managed Account as well as any other factors which DME deems relevant. However, DME is not obligated to devote any specific amount of time to its duties under this Agreement and is not required to accord exclusivity or priority to the venture or the Participants in the event of limited investment opportunities arising from the application of speculative position limits or other factors.

4.4. Duty of Care; Indemnification

(a) Each Participant agrees that no Covered Person shall be liable to the venture or to any of the Participants or their shareholders for any liabilities, obligations, losses, costs, damages, expenses, claims, judgments and reasonable attorneys fees and expenses (collectively, “Losses”) occasioned by any act or omission of any Covered Person in connection with the performance of such Covered Person’s services hereunder, except that DME shall be liable to the Participants: (i) for any misstatement or omission of material fact contained in a filing made by or on behalf of a Participant under the United States Securities and Exchange Act of 1934 or other federal law or other public disclosure in so far as such losses, damages, expenses or claims arise out of or are based upon any written information provided by such Covered Person regarding the Participants or the venture expressly for use in such filing or other public disclosure, to the extent (and only to the extent) that such misstatement or omission of a material fact contained in such filing occurs in reliance upon and in conformity with the written information furnished by the Covered Person; (ii) for acts or omissions by it which constitute gross negligence, willful misconduct or reckless disregard of DME’s obligations under this Agreement, (iii) for breaches of the Guidelines by DME which are not cured within 15 days of the earlier of (x) the date on which DME becomes aware of such breach, and (y) the date on which DME receives a written notice of such breach from a Participant or an authorized representative of a Participant; or (iv) for breaches of Section 5.2 hereof in each case as finally determined by a court having proper jurisdiction and after all appeals are resolved or exhausted.

(b) The venture shall indemnify and hold harmless each Covered Person from and against any Losses arising out of any claim asserted or threatened to be asserted in connection with any matter arising out of or in connection with this Agreement or the venture’s business or affairs; provided, however, that no Covered Person shall be entitled to any such indemnification with respect to any expense, loss, liability or damage which was caused by (i) any misstatement or omission of material fact contained in a filing made by or on behalf of a Participant under the United States Securities and Exchange Act of 1934 or other federal law or other public disclosure in so far as such losses, damages, expenses or claims arise out of or are based upon any written information provided by such Covered Person regarding the Participants or the venture expressly for use in such filing or other public disclosure, to the extent (and only to the extent) that such misstatement or omission of a material fact contained in such filing occurs in reliance upon and in conformity with the written information furnished by the Covered Person, (ii) any Covered Person’s gross negligence, willful misconduct or reckless disregard of any of the its obligations under this Agreement, (iii) for breaches of the Guidelines by DME in connection with its actions under this Agreement which breaches are not cured within 15 days of the earlier of (x) the date on which DME becomes aware of such breach, and (y) the date on which DME receives a written notice of such breach from a Participant; or (iv) for breaches of Section 5.2 hereof. The venture shall advance to any Covered Person the reasonable costs and expenses of investigating

 

 

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and/or defending such claim subject to receiving a written undertaking from the Covered Person to repay such amounts if and to the extent of any subsequent determination by a court or other tribunal of competent jurisdiction that the Covered Person was not entitled to indemnification hereunder. Notwithstanding the foregoing, no Participant shall be liable hereunder for any settlement of any action or claim effected without its consent thereto, which will not be unreasonably withheld.

(c) All transactions effected pursuant to this Agreement by DME shall be for the Participants’ accounts and risk. DME has not made and makes no guarantee whatsoever as to the success or profitability of DME’s trading methods and strategies, and the Participants each acknowledge that it has received no such guarantee from DME or any Covered Person, and has not entered into this Agreement in consideration of or in reliance upon any such guarantee or similar representation from DME or any Covered Person.

(d) DME shall indemnify and hold harmless each of the Participants against any Losses which were caused by: (i) any misstatement or omission of material fact contained in a filing made by or on behalf of a Participant under the United States Securities and Exchange Act of 1934 or other federal law or other public disclosure in so far as such losses, damages, expenses or claims arise out of or are based upon any written information provided by DME regarding the Participants or the venture expressly for use in such filing or other public disclosure, to the extent (and only to the extent) that such misstatement or omission of a material fact contained in such filing occurs in reliance upon and in conformity with the written information furnished by DME; (ii) DME’s fraud, gross negligence, willful misconduct or reckless disregard of any of DME’s obligations under this Agreement; (iii) for breaches of the Guidelines by DME in connection with its duties under this Agreement which breaches are not cured within 15 days of the earlier of (x) the date on which DME becomes aware of such breach, and (y) the date on which DME receives a notice of such breach from a Participant; or (iv) for breaches of Section 5.2 hereof; or (v) any Tax Proceeding.

(e) If a Participant shall receive notice of or have actual knowledge of any Tax Proceeding, such Participant shall give DME written notice of such Tax Proceeding; provided, however, that failure to notify DME shall not relieve DME from any liability which it may have on account of the Tax Proceeding except to the extent that DME shall have been materially prejudiced by such failure. DME shall be entitled to assume control of the defense or settlement of such matter. If DME elects to assume such control, the Participant being indemnified and its counsel shall be entitled to consult with DME and its counsel and participate in the defense or settlement of such matter at its own cost; provided, however, that DME shall bear the costs and expenses of such Participant’s counsel (from one law firm) if, in the reasonable opinion of counsel mutually acceptable to the parties hereto, use of such Participant’s counsel is necessary as a result of a conflict of interest between the Participant, on the one hand, and DME, on the other hand. In any event, DME shall indicate in writing to the Participant being indemnified within 10 calendar days after such Participant has given DME written notice whether DME intends to pay the claim or assume control of the defense or settlement of such matter.

In the event DME exercises its right to assume control of the defense, the Participant being indemnified shall reasonably cooperate with DME in such defense and make available to DME witnesses, pertinent records, materials and information in its possession or

 

 

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under its control relating thereto as are reasonably requested by DME. No claim may be settled by DME without the written consent of such Participant, which consent shall not be unreasonably withheld or delayed; provided, however, that DME may settle such claim without the consent of such Participant so long as the settlement (x) includes an unconditional release of such Participant, in form and substance reasonably satisfactory to such Participant, from the claimant, (y) does not impose any liabilities or obligations on such Participant, and (z) with respect to any non-monetary provision of any settlement of a claim does not impose and conditions upon such Participant.

(f) The amount which any indemnifying party is required to pay to, or for the benefit of, an indemnified person under this Section 4.4 will be reduced (including, without limitation, retroactively) by any insurance proceeds which are actually paid by, or on behalf of, the indemnified party in reduction of the related Losses.

(g) If the indemnity provided for in Section 4.4 and to which an Covered Person is otherwise entitled is unavailable to such Covered Person in respect of any Losses referred to therein, then the venture, in lieu of indemnifying such Covered Person, shall contribute to the amount paid or payable by such Covered Person as a result of such Losses in the proportion the total capital of the venture (exclusive of the balance in the Covered Person’s Capital Account (or the Capital Account of DME if the Covered Person is not DME)) bears to the total capital of the venture (including the balance in Covered Person’s Capital Account (or the Capital Account of DME if the Covered Person is not DME), which contribution shall be treated as an expense of the venture calculated as if the DME’s Capital Account balance was equal to zero.

4.5. Fiduciary Duties; Discretion

(a) To the extent that, at law or in equity, a Covered Person has duties (including fiduciary duties) and liabilities relating thereto to the venture or to any Participant, such Covered Person acting under this Agreement is not liable to the venture or to any Participant for its good faith reliance on the provisions of this Agreement. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Covered Person otherwise existing at law or in equity, are agreed by the parties hereto to replace such other duties and liabilities of such Covered Person.

(b) To the fullest extent permitted by law, unless otherwise expressly provided for herein, (i) whenever a conflict of interest exists or arises between DME or any of its Affiliates, on the one hand, and the venture or any of the other Participants on the other hand, or (ii) whenever this Agreement or any other agreement contemplated herein or therein provides that a Participant must act in a manner which is, or provide terms which are, fair and reasonable, the Participant must resolve such conflict of interest, take such action or provide such terms, considering in each case the relative interest of each party, including its own interest, to such conflict, agreement, transaction or situation and the benefits and burdens relating to such interests, any customary or accepted industry practices, and any applicable generally accepted accounting practices or principles. In the absence of bad faith by the Participant, the resolution, action or terms so made, taken or provided by the Participant do not constitute a breach of this Agreement or any other agreement contemplated herein or of any duty or obligation of the Participant at law or in equity or otherwise.

 

 

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(c) To the fullest extent permitted by law, except as provided elsewhere in this Agreement, whenever in this Agreement a Person is permitted or required to make a decision (i) in its “sole discretion” or under a grant of similar authority or latitude, such Person is entitled to consider only such interests and factors as it desires, including its own interests, and has no duty or obligation to give any consideration to any interest of or factors affecting the venture or the Participants, or (ii) in its “good faith” or under another express standard, then such Person acts under such express standard and is not subject to any other or different standards imposed by this Agreement or any other agreement contemplated herein or by relevant provisions of law or in equity or otherwise.

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Article V

Admissions and Withdrawals

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5.1. Admission of Participants

The Participants may by unanimous written consent, on the first day of any calendar month, or at such other times as the Participants may determine, admit any Person who executes this Agreement or any other writing evidencing the intent of such Person to become a Participant, unless the participation by such Participant would have any of the effects described in clauses (i) through (vi) of Section 5.3(c).

5.2. Withdrawal of Interests of Participants

(a) The Interest of a Participant may not be withdrawn prior to termination of this Agreement except as provided in this Section 5.2.

(b) Subject in the case of DME to its requirement to maintain at least a 1% interest pursuant to Section 3.1 hereof, a Participant may voluntarily withdraw all or part of its Capital Account as of the close of business on any Business Day. If a Participant wishes to withdraw funds, it must give written notice to DME at least 3 Business Days prior to the proposed withdrawal date indicating the amount to be withdrawn from such Participant’s Capital Account in such notice. DME may with respect to such request, in its reasonable discretion, waive the foregoing notice requirement. DME shall not be liable for failure to perform or delay in performing under this Section 5.2 when such failure or delay is due to Force Majeure, so long as DME uses its commercially reasonable efforts to cure such event or occurrence as soon as practicably as possible.

(c) The right of any Participant to withdraw or of any Participant to have distributed an amount from his Capital Account pursuant to the provisions of this Section 5.2 is subject to the provision by DME, on behalf of the Participants, for all of the venture’s liabilities and for reserves for contingencies provided for in Section 3.7 and Section 4.4 herein.

(d) With respect to any amounts withdrawn, a withdrawing Participant does not share in the income, gains and losses resulting from the venture or have any other rights or obligations as a Participant after the effective date of its withdrawal except as provided in Section 3.7 and Section 4.4.

 

 

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5.3. Transfer of Interests in Participants

(a) Each Participant agrees that he will not make or attempt to make any Transfer of its Interest which would violate this Section 5.3. In the event of any attempted Transfer of any Participant’s Interest in violation of the provisions of this Section 5.3, without limiting any other rights of DME under this Agreement or otherwise, such attempted transfer shall be void ab initio and DME (or, in the case of a transfer by DME, the other Participants) shall have the right to require the withdrawal of such Participant’s Interest.

(b) No Transfer of any Participant’s Interest, whether voluntary or involuntary, is valid or effective, and no transferee becomes a substituted Participant, unless the prior written consent of DME (or, in the case of a transfer by DME, a majority in interest of the other Participants) has been obtained, which consent may be withheld for any reason or for no reason in the sole discretion of DME or such Participants; provided, however, that in the case of DME, DME may make an assignment in a transaction that does not result in a change of its actual control or management. In the event of any Transfer, all of the conditions of the remainder of this Section 5.3 must also be satisfied.

(c) No Transfer of any Participant’s Interest, whether voluntary or involuntary, is valid or effective unless DME (or, in the case of a transfer by DME, a majority in interest of the other Participants) in its or their sole discretion determines, after consultation with legal counsel, that such Transfer will not:

(d) The transferring Participant must give the other Participants written notice before making any voluntary Transfer and after any involuntary Transfer and must provide sufficient information to allow DME to make the determination that the proposed Transfer will not result in any of the consequences referred to in clauses (i) through (vi) above.

 

 

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(e) Any other provision of this Agreement to the contrary notwithstanding, any successor to any Participant’s Interest is bound by the provisions hereof. Prior to recognizing any Transfer in accordance with this Section 5.3, the other Participants in their sole discretion may require the transferring Participant to execute and acknowledge an instrument of transfer in form and substance satisfactory to the Participants, and may require the transferee to make certain representations and warranties to the Participants and to accept, adopt and approve in writing all of the terms and provisions of this Agreement. A transferee becomes a substituted Participant and succeeds to the portion of the transferor’s Capital Account relating to the Interest transferred effective upon the satisfaction of all of the conditions for such Transfer contained in this Section 5.3.

(f) Notwithstanding the foregoing, the Participants acknowledge that Greenlight Re has or may in the future enter into financing arrangements pursuant to which it may grant to lenders a security interest in its rights to its portion of the Assets. DME agrees to reasonably cooperate with Greenlight Re to effect the granting of such security interests, including without limitation, executing a pledge agreement or similar agreement on reasonably acceptable terms including if possible the right to foreclose on a portion of the Assets equal to Greenlight Re’s Percentage, after accounting for liabilities and reserves. Greenlight Re agrees not to pledge more than its percentage interest in any Assets.

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Article VI

Termination and Liquidation

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6.1. Termination of this Agreement

(a) Subject to applicable law, this Agreement will terminate and its affairs must be wound up upon the earliest of:

 

 

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(b) Except as provided in Section 6.1(a) or applicable law, the death, mental illness, dissolution, termination, liquidation, bankruptcy, reorganization, merger, sale of substantially all of the stock or assets of or other change in the ownership or nature of a Participant, the execution of a joinder agreement to this Agreement by a new Participant, the withdrawal of a Participant, or the transfer by a Participant of its Interests to a third party does not cause this Agreement to terminate.

6.2. Liquidation of Assets

(a) Upon termination of this Agreement pursuant to Section 6.1(a), DME shall promptly liquidate the Assets, except that if DME is unable to perform this function, a liquidator elected by Participants whose Percentages represent more than fifty percent (50%) of the aggregate Percentages of all Participants shall liquidate the Assets.

(b) Net profit and net loss attributable to a Capital Account during the Fiscal Periods that include the period of liquidation shall be allocated pursuant to Article III. The proceeds from liquidation shall be divided in the following manner, subject to applicable law:

(c) Notwithstanding anything in this Section 6.2 to the contrary and subject to the priorities set forth in applicable law, DME, the liquidator or the trustee, as the case may be, may distribute ratably in-kind rather than in cash, upon termination, any Assets, provided, however, that if any in-kind distribution is to be made, (i) the assets distributed in kind must be valued pursuant to Section 7.2 as of the actual date of their distribution, and charged as so valued and distributed against amounts to be paid under Section 6.2(b) above and (ii) any gain or loss (as computed for book purposes) attributable to property distributed in-kind must be included in the net profit or net loss attributable to the Capital Account for the Fiscal Period ending on the date of such distribution.

 

 

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Article VII

Accounting and Valuations;

Books and Records;

Board Meetings

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7.1. Accounting and Reports

(a) DME may adopt, on behalf of the venture, for tax accounting purposes any accounting method that DME decides in its reasonable discretion is in the best interests of the venture and that is permissible for U.S. federal income tax purposes and that does not prejudice any other Participant. DME will promptly notify each Participant in writing of any change.

(b) At the request of a Participant received at least 30 days prior to the end of the Fiscal Year, as soon as practicable after the end of such Fiscal Year, DME shall cause an audit of the financial statements of the venture in accordance with U.S. generally accepted accounting principles as of the end of each such Fiscal Year to be made by a firm of certified public accountants selected by DME, which is reasonably acceptable to Greenlight Re; and as soon as is practicable thereafter but subject to Section 7.5, a copy of a set of financial statements prepared on a basis that uses United States generally accepted accounting principles as a guideline (with such adjustments thereto as the Participants determine appropriate), including the report of such certified public accountants, is furnished to each Participant. For purposes of this Section 7.1(b) the accounting firm of BDO Seidman, LLP shall be deemed acceptable to Greenlight Re.

(c) Promptly after each calendar month end, DME shall arrange for the preparation and delivery to each Participant of an interim statement of its respective Capital Account valued as set forth in Section 7.2, including, but not limited to, balance sheet, income statement, trial balance and detailed holdings report of a Participant’s Capital Account, and other information that the Participant may reasonably request.

(d) As soon as practicable after the end of each taxable year, DME shall furnish each Participant such information as may be required to enable each Participant properly to report for United States federal, state and local income tax purposes, as applicable, its distributive share of each Participant’s item of income, gain, loss, deduction or credit for such year.

(e) DME shall arrange for the preparation and delivery to each Participant a statement setting forth the computation of (i) the DME Compensation within 10 Business Days following the beginning of each month and (ii) Performance Allocation within 30 days after the close of each Performance Period. If the amount calculated pursuant to this Section 7.1(e) does not agree with the DME Compensation and Performance Allocation as noted in the venture’s annual audited financial statements, DME shall adjust the DME Compensation and/or Performance Allocation by increasing or decreasing the applicable amounts to match the relevant amounts set forth on the audited financial statements.

 

 

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(f) DME shall provide a draft of any tax return required to be filed by the venture (together with schedules, statement or attachments thereto) to Greenlight Re no later than ten (10) Business Days prior to the due date (including extensions) of such tax return for Greenlight Re’s review and comment. DME shall consult with Greenlight Re and in good faith consider any comments provided by Greenlight Re within five (5) Business Days of Greenlight Re’s receipt of such tax returns.

(g) DME shall timely prepare and file on behalf of Greenlight Re or the venture any filings under Section 13 or 16 of the Exchange Act with the U.S. Securities and Exchange Commission resulting from any investment made by the venture.

(h) DME will use commercially reasonable efforts to assist Greenlight Re in any required internal control or compliance matters applicable to Greenlight Re and related to this Agreement, including preparing any internal control reviews that are reasonably deemed necessary by Greenlight Re. DME acknowledges that Greenlight Re is subject to the reporting requirements of, among others, the Securities Exchange Act of 1934, as amended, the listing requirements of the Nasdaq Stock Market and the regulatory and information requirements of the Cayman Islands Monetary Authority and A.M Best & Co.

(i) Notwithstanding anything herein to the contrary, all expenses incurred directly in connection with the creation and maintenance of the accounting records for the venture shall be paid for or reimbursed by DME.

7.2. Valuation of Assets and Interests

(a) DME shall value or have valued the Securities and other Assets as of the close of business on the last day of each month, at the end of each Performance Period and on any other date selected by DME or reasonably selected by Greenlight Re. In addition, in good faith, DME shall value Securities that are being distributed in kind as of their date of distribution in accordance with Section 6.2(c). In determining the value of the Assets, no value is placed on the goodwill, if any, created by this Agreement, or the office records, files, statistical data or any similar intangible assets relating to the Assets not normally reflected in the venture’s accounting records, but there must be taken into consideration any related items of income earned but not received, expenses incurred but not yet paid, liabilities fixed or contingent, prepaid expenses to the extent not otherwise reflected in the books of account, and the value of options or commitments to purchase or sell Securities pursuant to agreements entered into on or prior to such valuation date. Valuation of Securities made pursuant to this Section 7.2 must be based on all relevant factors and is expected to comply generally with the following guidelines:

 

 

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(b) The fair value of any assets not referred to in paragraph (a) (or the valuation of any assets referred to therein in the event that DME determines in its reasonable discretion that market prices or quotations do not fairly represent the value of particular assets) shall be determined by or at the direction of DME; but may be audited by Greenlight Re or any of its representatives or agents, at Greenlight Re’s cost and expense, at any time upon reasonable notice. In these circumstances, DME will attempt to use consistent and fair valuation criteria and may (but is not required to) obtain independent appraisals, which shall be considered an expense under Section 4.3.

(c) Except as otherwise reasonably determined by DME, investment and trading transactions shall be accounted for on the trade date. Accounts shall be maintained in U.S. dollars and except as otherwise determined by or at the direction DME: (i) assets and liabilities denominated in currencies other than U.S. dollars shall be translated at the rates of exchange in effect at the close of the relevant valuation period (and exchange adjustments shall be recorded in the results of operations); and (ii) investment and trading transactions and income and expenses shall be translated at the rates of exchange in effect at the time of each transaction.

(d) The value of each Security and other Asset and the net worth of the Capital Accounts as a whole determined pursuant to this Section 7.2 shall be, in the absence of bad faith or manifest error and/or subject to any audit verification, conclusive and binding on all of the Participants and all parties claiming through or under them.

7.3. Determinations by DME

(a) All matters concerning the determination and allocation among the Participants of the amounts to be determined and allocated pursuant to Sections  3.4 through 3.9 hereof, including any taxes thereon and accounting procedures applicable thereto, are and will be determined by DME in good faith unless specifically and expressly otherwise provided for by the provisions of this Agreement, and such determinations and allocations are final and binding on all the Participants.

(b) DME may make such adjustments to the computation of any of the memorandum accounts maintained pursuant to this Agreement or any component items comprising any of the foregoing as it considers reasonably appropriate to reflect the financial results of the Assets and the intended allocation thereof among the Participants in a reasonably accurate, fair and efficient manner.

 

 

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7.4. Books and Records

(a) DME shall keep (or cause to be kept) books and records of the venture showing all assets and liabilities, receipts and disbursements, gains and losses, Participants’ Capital Accounts and all transactions entered into in connection with the Assets and this Agreement. Such books and records shall be kept at DME’s office.

(b) DME shall retain, or arrange for the retention, for a period of at least five (5) years, copies of any documents it deems pertinent generated or received by DME in the ordinary course of business pertaining to the Assets or to the compensation payable to DME. DME shall afford to Greenlight Re’s independent auditors reasonable access to such documents during customary business hours and shall permit Greenlight Re’s auditors to make copies thereof or extracts therefrom at the expense of Greenlight Re.

7.5. Greenlight Re Board Meeting

At the request of Greenlight Re and subject to reasonable prior notice, DME shall endeavor to make one of DME’s representatives available to attend the meetings of the Board, or meetings with Greenlight Re’s management (in either case in person or telephonically) to report on the ventures’ activities and on other matters pertaining to this Agreement.

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Article VIII

General Provisions

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8.1. Amendment of Agreement

This Agreement may be amended, in whole or in part, with the written consent of all of the Participants.

8.2. Notices

Unless otherwise provided, all notices and other communications required or permitted under this Agreement shall be in writing and shall be sent by facsimile, sent by electronic mail, or delivered personally by hand or by an internationally recognized overnight courier addressed to the party to be notified at the address, facsimile number or e-mail address indicated for such party set forth below, or at such other address, facsimile number or e-mail address as such party may designate by ten days advance written notice to the other parties hereto. All such notices shall be effective upon receipt. Unless otherwise provided in writing to the other parties, all notices shall be sent to the following addresses, facsimile numbers or e-mail addresses:

If to DME:

DME Advisors, LP

140 East 45th Street, 24th Floor

New York, NY 10017

Attention: Daniel Roitman

Facsimile No.: 212 ###-###-####

E-Mail: ***@***

 

 

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With a copy to (which shall not constitute notice):

DME Advisors, LP

140 East 45th Street, 24th Floor

New York, NY 10017

Attention: Harry Brandler

Facsimile No.: 212 ###-###-####

E-Mail: ***@***

If to Greenlight Re or to Greenlight Capital Re:

Greenlight Reinsurance, Ltd.

802 West Bay Road, The Grand Pavilion

Grand Cayman, KY 1-1205

Cayman Islands

Attention: Len Goldberg

Facsimile No.: 345 ###-###-####

E-Mail: ***@***

With a copy to (which shall not constitute notice):

Akin Gump Strauss Hauer & Feld LLP

590 Madison Avenue

New York, New York 10022

Attention: Kerry Berchem

Facsimile No.: 212 ###-###-####

E-Mail: ***@***

8.3. Agreement Binding Upon Successors and Assigns

This Agreement shall be binding upon and inures to the benefit of the parties hereto and their respective successors and permitted assigns as set forth in Section 5.3 hereof.

8.4. Governing Law

(a) This Agreement and the rights of the Participants hereunder shall be governed by and construed in accordance with the laws of the State of New York, without regard to the conflict of laws rules thereof. The parties acknowledge that the venture is formed under the laws of the State of New York.

(b) Each party hereto submits to the jurisdiction of any state or federal court sitting in New York, New York in any action arising out of or relating to this Agreement and agrees that all claims in respect of any such action may be heard and determined in any such court. Each party

 

 

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hereto agrees that a final judgment in any action so brought will be conclusive and may be enforced by action on the judgment or in any other manner provided at law or in equity. Each party hereto waives any defense of inconvenient forum to the maintenance of any action so brought and waives any bond, surety, or other security that might be required of any other party with respect thereto.

8.5. Not for Benefit of Third Parties

The provisions of this Agreement are intended only for the regulation of relations among Participants and between Participants and former or prospective Participants. This Agreement is not intended for the benefit of non-Participants and no rights are granted to non-Participants under this Agreement.

8.6. Consents

Any and all consents, agreements or approvals provided for or permitted by this Agreement must be in writing and a signed copy thereof must be filed and kept with the books of each Participant.

8.7. Miscellaneous

(a) The captions and titles preceding the text of each section hereof shall be disregarded in the construction of this Agreement.

(b) This Agreement may be executed in counterparts, each of which is deemed to be an original hereof.

(c) The Participants have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, the Participants intend that this Agreement be construed as if drafted jointly by the Participants and that no presumption or burden of proof arise favoring or disfavoring any Participant by virtue of the authorship of any of the provisions of this Agreement. Any reference to any federal, state, local, or foreign statute or law is deemed also to refer to all rules and regulations promulgated thereunder, unless the context requires otherwise. The word “including” means including without limitation. The word “or” is not exclusive. All words used in this Agreement shall be construed to be of such gender or number as the circumstances require.

(d) The Participants intend that each representation, warranty, and covenant contained herein has independent significance. If any Participant has breached any representation, warranty, or covenant contained herein in any respect, the fact that there exists another representation, warranty, or covenant relating to the same subject matter (regardless of the relative levels of specificity) that such Participant has not breached does not detract from or mitigate the fact that such Participant is in breach of the first representation, warranty, or covenant.

(e) If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Agreement shall remain in full force and effect. Any provision of this Agreement held invalid or unenforceable only in part or degree shall remain in full force and effect to the extent not held invalid or unenforceable.

 

 

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(f) Each party hereto hereby agrees that the other would be damaged irreparably if any provision of this Agreement were not performed in accordance with the specific terms or were otherwise breached and each party hereto agrees that any party shall be entitled to seek equitable relief, including, without limitation, any injunction or injunctions, to prevent breaches or threatened breaches of this Agreement by the other parties or any of their representatives and to specifically enforce the terms and provisions of this Agreement.

8.8. Entire Agreement

This Agreement contains the entire understanding of the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings between the parties hereto relating to the subject matter hereof, and each of the parties hereto agrees that each and every such prior agreement is terminated and replaced in its entirety by the rights created by this Agreement.

[SIGNATURE PAGE FOLLOWS]

 

 

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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first-above written.

 

 

 

 

 

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Exhibit A

GUIDELINES

 

 

A-1

 

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Exhibit B

INITIAL CAPITAL CONTRIBUTION

 

 

 

B-1

 

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Exhibit C

POWER OF ATTORNEY

The undersigned, in connection with and subject to the terms and conditions of that certain Agreement (the “Agreement”) by and among Greenlight Reinsurance, Ltd., DME Advisors, LP (collectively, the “Participants”) and Greenlight Capital Re, Ltd. (for limited purposes), dated as of January 1, 2008, hereby designates  and appoints DME Advisors, LP, a Delaware limited partnership (“DME”), as agent and attorney-in-fact, with full power and authority and without the need for further approval of the undersigned (except as may be required by applicable law) to have the exclusive power on behalf of the undersigned to:

 

 

 

C-2

 

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