EXHIBIT 10.36
EXECUTION COPY
PARENT
GUARANTEE AGREEMENT
by and between
CASTLEPOINT
HOLDINGS, LTD.
and
WILMINGTON
TRUST COMPANY
Dated as of December 14,
2006
TABLE OF CONTENTS
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Page
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ARTICLE I
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DEFINITIONS AND INTERPRETATION
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2
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Section 1.1
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Definitions and
Interpretation
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2
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ARTICLE II
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POWERS, DUTIES AND RIGHTS OF THE GUARANTEE
TRUSTEE
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6
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Section 2.1
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Powers and Duties of the Guarantee
Trustee
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6
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Section 2.2
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Certain Rights of the Guarantee
Trustee
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8
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Section 2.3
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Not Responsible for Recitals or
Issuance of Guarantee
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9
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Section 2.4
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Events of Default; Waiver
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9
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Section 2.5
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Events of Default; Notice
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10
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ARTICLE III
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GUARANTEE TRUSTEE
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10
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Section 3.1
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Guarantee Trustee;
Eligibility
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10
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Section 3.2
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Appointment, Removal and Resignation
of the Guarantee Trustee
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11
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ARTICLE IV
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GUARANTEE
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11
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Section 4.1
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Guarantee
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11
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Section 4.2
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Waiver of Notice and
Demand
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12
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Section 4.3
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Obligations Not Affected
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13
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Section 4.4
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Rights of Holders
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14
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Section 4.5
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Guarantee of Payment
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14
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Section 4.6
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Subrogation
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14
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Section 4.7
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Independent Obligations
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14
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Section 4.8
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Enforcement by a
Beneficiary
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15
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ARTICLE V
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LIMITATION OF TRANSACTIONS; RANKING
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15
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Section 5.1
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Limitation of
Transactions
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15
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Section 5.2
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Ranking
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16
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ARTICLE VI
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TERMINATION
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17
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Section 6.1
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Termination
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17
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ARTICLE VII
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INDEMNIFICATION
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17
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Section 7.1
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Exculpation
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17
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Section 7.2
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Indemnification
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17
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Section 7.3
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Compensation; Reimbursement of
Expenses
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18
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i
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ARTICLE VIII
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MISCELLANEOUS
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19
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Section 8.1
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Successors and Assigns
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19
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Section 8.2
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Company May Consolidate, etc., on
Certain Terms
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19
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Section 8.3
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Amendments
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19
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Section 8.4
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Notices
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20
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Section 8.5
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Benefit
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20
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Section 8.6
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Governing Law
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21
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Section 8.7
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Counterparts
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21
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Section 8.8
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Separability
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22
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ii
PARENT GUARANTEE
AGREEMENT
This PARENT GUARANTEE AGREEMENT
(this “Guarantee”), dated as of December 14, 2006, is
executed and delivered by CastlePoint Holdings, Ltd., a Bermuda
corporation (the “Guarantor”), and Wilmington Trust
Company, a banking corporation, organized under the laws of the
State of Delaware, (the “Guarantee Trustee”), for the
benefit of the Holders (as defined herein) from time to time of the
Debentures (as defined herein) of CastlePoint Management Corp., a
Delaware corporation and a wholly owned subsidiary of the Guarantor
(the “Company”), and the Capital Securities (as defined
herein) of CastlePoint Management Statutory Trust II, a Delaware
statutory trust (the “Issuer”).
WHEREAS, pursuant to an Amended and
Restated Declaration of Trust (the “Declaration”),
dated as of the date hereof among Wilmington Trust Company, not in
its individual capacity but solely as institutional trustee, the
administrators of the Issuer named therein, the Company, as sponsor
of the Issuer, and the holders from time to time of undivided
beneficial interests in the assets of the Issuer, the Issuer is
issuing on the date hereof those undivided beneficial interests,
having an aggregate liquidation amount of $50,000,000 (the
“Capital Securities”);
WHEREAS, pursuant to a guarantee
(the “Company Guarantee”) dated the date hereof
executed and delivered by the Company and the guarantee trustee
named therein for the benefit of the holders from time to time of
the Capital Securities, the Company has agreed to make certain
payments with respect to the Capital Securities and to make certain
other payments with respect to obligations and liabilities of the
Issuer;
WHEREAS, pursuant to an indenture of
trust (the “Indenture”) dated as of the date hereof
between the Company and Wilmington Trust Company, not in its
individual capacity but solely as trustee, the Company is issuing
on the date hereof $51,547,000 aggregate principal amount of
Floating Rate Junior Subordinated Deferrable Interest Debentures
(the “Debentures”);
WHEREAS, the Issuer desires to issue
the Capital Securities and to use the proceeds thereof to purchase
the Debentures; and
WHEREAS, as incentive for the
Holders of the Debentures to purchase the Debentures from the
Company and for the Holders of the Capital Securities to purchase
the Capital Securities from the Issuer, the Guarantor desires
irrevocably and unconditionally to agree, to the extent set forth
in this Guarantee, to pay to the Holders of Capital Securities the
Guarantee Payments (as defined herein).
NOW, THEREFORE, in consideration of
the purchase of the Debentures by each Debenture Holder and of the
Capital Securities by each Holder of Capital Securities, which
purchase the Guarantor hereby agrees shall benefit the Guarantor,
the Guarantor executes and delivers this Guarantee for the benefit
of the Holders.
ARTICLE I
DEFINITIONS AND INTERPRETATION
Section 1.1
Definitions and
Interpretation.
In this Guarantee, unless the
context otherwise requires:
(a)
capitalized terms used in this
Guarantee but not defined in the preamble above have the respective
meanings assigned to them in this Section 1.1;
(b)
a term defined anywhere in this
Guarantee has the same meaning throughout;
(c)
all references to “the
Guarantee” or “this Guarantee” are to this
Guarantee as modified, supplemented or amended from time to
time;
(d)
all references in this Guarantee to
“Articles” or “Sections” are to Articles or
Sections of this Guarantee, unless otherwise specified;
(e)
terms defined in the Declaration as
at the date of execution of this Guarantee have the same meanings
when used in this Guarantee, unless otherwise defined in this
Guarantee or unless the context otherwise requires; and
(f)
a reference to the singular includes
the plural and vice versa.
“ Additional Amount
” has the meaning set forth in Section 4.1(b).
“ Additional Junior
Indebtedness ” means, without duplication and other than
the Guarantee Payments, (a) any indebtedness, liabilities or
obligations of the Guarantor, or any Subsidiary of the Guarantor,
under debt securities (or guarantees in respect of debt securities)
initially issued on or after the date of this Guarantee to any
trust, or a trustee of a trust, partnership or other entity
affiliated with the Guarantor that is, directly or indirectly, a
finance subsidiary (as such term is defined in Rule 3a-5 under the
Investment Company Act of 1940) or other financing vehicle of the
Guarantor or any Subsidiary of the Guarantor in connection with the
issuance by that entity of preferred securities, (b) other
securities that are issued either junior and subordinate to or on a
pari passu basis with the Guarantee Payments or (c) any
guarantees of the Guarantor in respect of the equity or other
securities of any entity referred to in clause (a).
“ Affiliate ” has
the same meaning as given to that term in Rule 405 of the
Securities Act of 1933, as amended, or any successor rule
thereunder.
“ Authorized Agent
” has the meaning set forth in Section 8.6.
“ Beneficiaries ”
means any Person to whom the Company, under the terms of this
Guarantee, is obligated to pay any sum or hereafter becomes
indebted or liable.
“ Capital Securities
” has the meaning set forth in the recitals to this
Guarantee.
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“ Common Securities
” means the common securities issued by the Issuer to the
Company pursuant to the Declaration.
“ Company ” means
CastlePoint Management Corp. and each of its successors and
assigns.
“ Company Guarantee
” means the guarantee dated the date hereof executed and
delivered by the Company and the guarantee trustee named therein
for the benefit of the holders from time to time of the Capital
Securities.
“ Corporate Trust
Office ” means the office of the Guarantee Trustee at
which the corporate trust business of the Guarantee Trustee shall,
at any particular time, be principally administered, which office
at the date of execution of this Guarantee is located at Rodney
Square North, 1100 North Market Street, Wilmington, Delaware
19890.
“ Covered Person
” means any Holder of Debentures or Capital
Securities.
“ Debentures ”
means the debt securities of the Company designated the Floating
Rate Junior Subordinated Deferrable Interest Debentures due 2034
held by the Institutional Trustee (as defined in the Declaration)
of the Issuer.
“ Declaration ”
has the meaning set forth in the recitals.
“ Declaration Event of
Default ” means an “Event of Default” as
defined in the Declaration.
“ Event of Default
” has the meaning set forth in Section 2.4(a).
“ Foreign Jurisdiction
” has the meaning set forth in Section 4.1(b).
“ Foreign Taxes ”
has the meaning set forth in Section 4.1(b).
“ Guarantee Payments
” means the following payments or distributions, without
duplication, to the extent not paid or made by the Company:
(i) with respect to the Debentures, any payment that the Company is
obligated to make under the Debentures and/or the Indenture; and
(ii) with respect to the Capital Securities, any payments that the
Company is obligated to make with respect to the Company
Guarantee.
“ Guarantee Trustee
” means Wilmington Trust Company, until a Successor Guarantee
Trustee has been appointed and has accepted such appointment
pursuant to the terms of this Guarantee and thereafter means each
such Successor Guarantee Trustee.
“ Guarantor ”
means CastlePoint Holdings, Ltd. and each of its successors and
assigns.
“ Holder ” means
(i) any holder, as registered on the books and records of the
Indenture Trustee, of any Debenture or (ii) any holder, as
registered on the books and records of the Issuer, of any Capital
Securities; provided , however , that, in determining
whether the Holders
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of the requisite percentage of Debentures and
Capital Securities have given any request, notice, consent or
waiver hereunder, “Holder” shall not include the
Guarantor or any Affiliate of the Guarantor.
“ Indemnified Person
” means the Guarantee Trustee, any Affiliate of the Guarantee
Trustee, or any officers, directors, shareholders, members,
partners, employees, representatives, nominees, custodians or
agents of the Guarantee Trustee.
“ Indenture ”
means the Indenture dated as of the date hereof between the Company
and Wilmington Trust Company, not in its individual capacity but
solely as trustee, and any indenture supplemental thereto pursuant
to which the Debentures are to be issued to the institutional
trustee of the Issuer.
“ Indenture Trustee
” means Wilmington Trust Company, in its capacity as trustee
under the Indenture, and its permitted successors and
assigns.
“ Issuer ” has
the meaning set forth in the opening paragraph to this
Guarantee.
“ Liquidation
Distribution ” has the meaning set forth in the
definition of “Guarantee Payments” herein.
“ Majority in liquidation
amount of the Capital Securities ” means Holder(s) of
outstanding Capital Securities, voting together as a class, but
separately from the holders of Common Securities, of more than 50%
of the aggregate liquidation amount (including the stated amount
that would be paid on redemption, liquidation or otherwise, plus
accrued and unpaid Distributions to the date upon which the voting
percentages are determined) of all Capital Securities then
outstanding.
“ Majority of principal
amount of the Debentures ” means Holder(s) of outstanding
Debentures, voting together as a class, of more than 50% of the
aggregate principal amount of all Debentures then
outstanding.
“ Majority of the Holders
of Debentures and Capital Securities ” means Majority in
liquidation amount of the Capital Securities and Majority of
principal amount of the Debentures.
“ New York Court
” has the meaning set forth in Section 8.6.
“ Officer’s
Certificate ” means, with respect to any Person, a
certificate signed by one Authorized Officer of such Person. Any
Officer’s Certificate delivered with respect to compliance
with a condition or covenant provided for in this Guarantee shall
include:
(a)
a statement that the officer signing
the Officer’s Certificate has read the covenant or condition
and the definitions relating thereto;
(b)
a brief statement of the nature and
scope of the examination or investigation undertaken by the officer
in rendering the Officer’s Certificate;
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(c)
a statement that the officer has
made such examination or investigation as, in such officer’s
opinion, is necessary to enable such officer to express an informed
opinion as to whether or not such covenant or condition has been
complied with; and
(d)
a statement as to whether, in the
opinion of the officer, such condition or covenant has been
complied with.
“ Optional Redemption
Price ” has the meaning set forth in the
Indenture.
“ Person ” means
a legal person, including any individual, corporation, estate,
partnership, joint venture, association, joint stock company,
limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any
other entity of whatever nature.
“ Responsible Officer
” means, with respect to the Guarantee Trustee, any officer
within the Corporate Trust Office of the Guarantee Trustee
including any Vice President, Assistant Vice President, Secretary,
Assistant Secretary or any other officer of the Guarantee Trustee
customarily performing functions similar to those performed by any
of the above designated officers and also, with respect to a
particular corporate trust matter, any other officer to whom such
matter is referred because of that officer’s knowledge of and
familiarity with the particular subject.
“ Senior Indebtedness
” means, with respect to the Guarantor, (i) the
principal, premium, if any, and interest in respect of
(A) indebtedness of the Guarantor for money borrowed and
(B) indebtedness evidenced by securities, debentures, notes,
bonds or other similar instruments issued by the Guarantor;
(ii) all capital lease obligations of the Guarantor;
(iii) all obligations of the Guarantor issued or assumed as
the deferred purchase price of property, all conditional sale
obligations of the Guarantor and all obligations of the Guarantor
under any title retention agreement; (iv) all obligations of
the Guarantor for the reimbursement of any letter of credit, any
banker’s acceptance, any security purchase facility, any
repurchase agreement or similar arrangement, any interest rate
swap, any other hedging arrangement, any obligation under options
or any similar credit or other transaction; (v) all
obligations of the type referred to in clauses (i) through
(iv) above of other Persons for the payment of which the Guarantor
is responsible or liable as obligor, guarantor or otherwise; and
(vi) all obligations of the type referred to in
clauses (i) through (v) above of other Persons secured by any
lien on any property or asset of the Guarantor (whether or not such
obligation is assumed by the Guarantor), whether incurred on or
prior to the date of this Indenture or thereafter incurred.
Notwithstanding the foregoing, “Senior
Indebtedness” shall not include (1) any Additional
Junior Indebtedness, (2) trade accounts payable of the
Guarantor arising in the ordinary course of business (such trade
accounts payable being pari passu in right of payment to the
Guarantee Payments), or (3) obligations with respect to which (a)
in the instrument creating or evidencing the same or pursuant to
which the same is outstanding, it is provided that such obligations
are pari passu , junior or otherwise not superior in right
of payment to the Guarantee Payments and (b) the Guarantor, prior
to the issuance thereof, has, if required, notified the relevant
state insurance regulatory agency. Senior Indebtedness shall
continue to be Senior Indebtedness and be entitled to the
subordination provisions irrespective of any amendment,
modification or waiver of any term of such Senior
Indebtedness.
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“ Special Event ”
has the meaning set forth in the Indenture.
“ Special Redemption
Price ” has the meaning set forth in the
Indenture.
“ Subsidiary ”
means with respect to any Person, (i) any corporation at least a
majority of the outstanding voting stock of which is owned,
directly or indirectly, by such Person or by one or more of its
Subsidiaries, or by such Person and one or more of its
Subsidiaries, (ii) any general partnership, joint venture or
similar entity, at least a majority of the outstanding partnership
or similar interests of which shall at the time be owned by such
Person, or by one or more of its Subsidiaries, or by such Person
and one or more of its Subsidiaries and (iii) any limited
partnership of which such Person or any of its Subsidiaries is a
general partner. For the purposes of this definition,
“voting stock” means shares, interests, participations
or other equivalents in the equity interest (however designated) in
such Person having ordinary voting power for the election of a
majority of the directors (or the equivalent) of such Person, other
than shares, interests, participations or other equivalents having
such power only by reason of the occurrence of a
contingency.
“ Successor Guarantee
Trustee ” means a successor Guarantee Trustee possessing
the qualifications to act as Guarantee Trustee under
Section 3.1.
ARTICLE II
POWERS, DUTIES AND RIGHTS OF THE
GUARANTEE TRUSTEE
Section 2.1
Powers and Duties of the
Guarantee Trustee.
(a)
This Guarantee
shall be held by the Guarantee Trustee for the benefit of the
Holders of the Debentures and the Holders of the Capital
Securities, and the Guarantee Trustee shall not transfer this
Guarantee to any Person except a Holder of Debentures or Capital
Securities exercising his or her rights pursuant to Section 4.4(b)
or to a Successor Guarantee Trustee on acceptance by such Successor
Guarantee Trustee of its appointment to act as Successor Guarantee
Trustee. The right, title and interest of the Guarantee
Trustee shall automatically vest in any Successor Guarantee
Trustee, and such vesting and cessation of title shall be effective
whether or not conveyancing documents have been executed and
delivered pursuant to the appointment of such Successor Guarantee
Trustee.
(b)
If an Event of
Default actually known to a Responsible Officer of the Guarantee
Trustee has occurred and is continuing, the Guarantee Trustee shall
enforce this Guarantee for the benefit of the Holders of the
Debentures and/or the Holders of the Capital
Securities.
(c)
The Guarantee
Trustee, before the occurrence of any Event of Default and after
the curing or waiving of all Events of Default that may have
occurred, shall undertake to perform only such duties as are
specifically set forth in this Guarantee, and no implied covenants
shall be read into this Guarantee against the Guarantee
Trustee. In case an Event of Default has occurred (that has
not been cured or waived pursuant to Section 2.4) and is
actually known to a Responsible Officer of the Guarantee Trustee,
the Guarantee Trustee shall exercise such of the rights and powers
vested in it by this Guarantee, and use the same degree of care and
skill in its
6
exercise thereof, as a
prudent person would exercise or use under the circumstances in the
conduct of his or her own affairs.
(d)
No provision of
this Guarantee shall be construed to relieve the Guarantee Trustee
from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except
that:
(i)
prior to the
occurrence of any Event of Default and after the curing or waiving
of all such Events of Default that may have occurred:
(A)
the duties and obligations of the
Guarantee Trustee shall be determined solely by the express
provisions of this Guarantee, and the Guarantee Trustee shall not
be liable except for the performance of such duties and obligations
as are specifically set forth in this Guarantee, and no implied
covenants or obligations shall be read into this Guarantee against
the Guarantee Trustee; and
(B)
in the absence of bad faith on the
part of the Guarantee Trustee, the Guarantee Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Guarantee Trustee and
conforming to the requirements of this Guarantee; but in the case
of any such certificates or opinions that by any provision hereof
are specifically required to be furnished to the Guarantee Trustee,
the Guarantee Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this
Guarantee;
(ii)
the Guarantee
Trustee shall not be liable for any error of judgment made in good
faith by a Responsible Officer of the Guarantee Trustee, unless it
shall be proved that such Responsible Officer of the Guarantee
Trustee or the Guarantee Trustee was negligent in ascertaining the
pertinent facts upon which such judgment was made;
(iii)
the Guarantee
Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the
written direction of the Holders of not less than a Majority in
liquidation amount of the Capital Securities relating to the time,
method and place of conducting any proceeding for any remedy
available to the Guarantee Trustee, or relating to the exercise of
any trust or power conferred upon the Guarantee Trustee under this
Guarantee; and
(iv)
no provision of
this Guarantee shall require the Guarantee Trustee to expend or
risk its own funds or otherwise incur personal financial liability
in the performance of any of its duties or in the exercise of any
of its rights or powers, if the Guarantee Trustee shall have
reasonable grounds for believing that the repayment of such funds
is not reasonably assured to it under the terms of this Guarantee
or security and indemnity, reasonably satisfactory to the Guarantee
Trustee, against such risk or liability is not reasonably assured
to it.
7
Section 2.2
Certain Rights of the
Guarantee Trustee.
(a)
Subject to the
provisions of Section 2.1:
(i)
The Guarantee
Trustee may conclusively rely, and shall be fully protected in
acting or refraining from acting upon, any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to be
genuine and to have been signed, sent or presented by the proper
party or parties.
(ii)
Any direction or
act of the Guarantor contemplated by this Guarantee shall be
sufficiently evidenced by an Officer’s
Certificate.
(iii)
Whenever, in the
administration of this Guarantee, the Guarantee Trustee shall deem
it desirable that a matter be proved or established before taking,
suffering or omitting any action hereunder, the Guarantee Trustee
(unless other evidence is herein specifically prescribed) may, in
the absence of bad faith on its part, request and conclusively rely
upon an Officer’s Certificate of the Guarantor which, upon
receipt of such request, shall be promptly delivered by the
Guarantor.
(iv)
The Guarantee
Trustee shall have no duty to see to any recording, filing or
registration of any instrument (or any re-recording, refiling or
re-registration thereof).
(v)
The Guarantee
Trustee may consult with counsel of its selection, and the advice
or opinion of such counsel with respect to legal matters shall be
full and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith and
in accordance with such advice or opinion. Such counsel may be
counsel to the Guarantor or any of its Affiliates and may include
any of its employees. The Guarantee Trustee shall have the
right at any time to seek instructions concerning the
administration of this Guarantee from any court of competent
jurisdiction.
(vi)
The Guarantee
Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Guarantee at the request or
direction of any Holder, unless such Holder shall have provided to
the Guarantee Trustee such security and indemnity, reasonably
satisfactory to the Guarantee Trustee, against the costs, expenses
(including attorneys’ fees and expenses and the expenses of
the Guarantee Trustee’s agents, nominees or custodians) and
liabilities that might be incurred by it in complying with such
request or direction, including such reasonable advances as may be
requested by the Guarantee Trustee; provided ,
however , that nothing contained in this Section 2.2(a)(vi)
shall relieve the Guarantee Trustee, upon the occurrence of an
Event of Default, of its obligation to exercise the rights and
powers vested in it by this Guarantee.
(vii)
The Guarantee
Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or
other paper or document, but the Guarantee Trustee, in its
discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit.
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(viii)
The Guarantee
Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through
agents, nominees, custodians or attorneys, and the Guarantee
Trustee shall not be responsible for any misconduct or negligence
on the part of any agent or attorney appointed with due care by it
hereunder.
(ix)
Any action taken
by the Guarantee Trustee or its agents hereunder shall bind the
Holders of the Debentures and the Holders of the Capital
Securities, and the signature of the Guarantee Trustee or its
agents alone shall be sufficient and effective to perform any such
action. No third party shall be required to inquire as to the
authority of the Guarantee Trustee to so act or as to its
compliance with any of the terms and provisions of this Guarantee,
both of which shall be conclusively evidenced by the Guarantee
Trustee’s or its agent’s taking such
action.
(x)
Whenever in the
administration of this Guarantee the Guarantee Trustee shall deem
it desirable to receive instructions with r
