Exhibit 4.3
PARENT GUARANTEE AGREEMENT
BETWEEN
CRM HOLDINGS, LTD.
AS PARENT GUARANTOR,
AND
THE BANK OF NEW YORK TRUST COMPANY, NATIONAL ASSOCIATION,
AS GUARANTEE TRUSTEE
DATED AS OF NOVEMBER 14, 2006
CRM USA HOLDINGS TRUST I
TABLE OF CONTENTS
PAGE
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ARTICLE I INTERPRETATION AND DEFINITIONS.............................................................1
Section 1.1. Interpretation....................................................................1
Section 1.2. Definitions.......................................................................2
ARTICLE II REPORTS....................................................................................5
Section 2.1. Intentionally Omitted.............................................................5
Section 2.2. Periodic Reports to the Guarantee Trustee.........................................5
Section 2.3. Event of Default; Waiver..........................................................6
Section 2.4. Event of Default; Notice..........................................................6
ARTICLE III POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE.........................................6
Section 3.1. Powers and Duties of the Guarantee Trustee........................................6
Section 3.2. Certain Rights of the Guarantee Trustee...........................................7
Section 3.3. Compensation......................................................................9
Section 3.4. Indemnity.........................................................................9
Section 3.5. Securities.......................................................................10
ARTICLE IV GUARANTEE TRUSTEE.........................................................................10
Section 4.1. Guarantee Trustee; Eligibility...................................................10
Section 4.2. Appointment, Removal and Resignation of the Guarantee Trustee....................11
ARTICLE V PARENT GUARANTEE..........................................................................11
Section 5.1. Parent Guarantee.................................................................11
Section 5.2. Waiver of Notice and Demand......................................................12
Section 5.3. Obligations Not Affected.........................................................12
Section 5.4. Rights of Holders and the Trust..................................................13
Section 5.5. Guarantee of Payment.............................................................13
Section 5.6. Subrogation......................................................................13
Section 5.7. Independent Obligations..........................................................14
Section 5.8. Enforcement......................................................................14
ARTICLE VI SUBORDINATION.............................................................................14
Section 6.1. Intentionally Omitted............................................................14
Section 6.2. Subordination....................................................................14
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TABLE OF CONTENTS
(continued)
PAGE
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ARTICLE VII TERMINATION...............................................................................15
Section 7.1. Termination......................................................................15
ARTICLE VIII MISCELLANEOUS.............................................................................15
Section 8.1. Successors and Assigns...........................................................15
Section 8.2. Amendments.......................................................................15
Section 8.3. Notices..........................................................................15
Section 8.4. Benefit..........................................................................16
Section 8.5. Governing Law....................................................................17
Section 8.6. Submission to Jurisdiction.......................................................17
Section 8.7. Counterparts.....................................................................17
Section 8.8. The Indenture....................................................................17
ARTICLE IX CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE AND OWNERSHIP OF THE COMPANY.........17
Section 9.1. Parent Guarantor May Consolidate, etc., Only on Certain Terms....................17
Section 9.2. Limitation on Dividends..........................................................18
Section 9.3. Successor Company Substituted....................................................18
Section 9.4. Ownership of the Company.........................................................19
ARTICLE X REPRESENTATIONS AND WARRANTIES............................................................19
Section 10.1. Representations and Warranties of Parent Guarantor...............................19
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This Parent Guarantee Agreement, dated as of November 14, 2006,
executed and delivered by CRM Holdings, Ltd., an exempted holding company
incorporated under the laws of Bermuda (the "Parent Guarantor") and The Bank of
New York Trust Company, National Association, a limited purpose national banking
association with trust powers, as trustee (in such capacity, the "Guarantee
Trustee"), for the benefit of the Trust (as defined herein) and the Holders (as
defined herein) from time to time of the Preferred Securities (as defined
herein) of the Trust.
W I T N E S S E T H :
Whereas, pursuant to an Indenture, dated as of the date hereof (the
"Indenture"), among CRM USA Holdings, Inc., a Delaware corporation (the
"Company"), the Parent Guarantor and The Bank of New York Trust Company,
National Association, the Company is issuing Thirty Six Million Eighty Three
Thousand Dollars ($36,083,000) aggregate principal amount of its junior
subordinated debt securities (the "Debt Securities") having the terms set forth
in the Indenture to CRM USA Holdings Trust I, a Delaware statutory trust (the
"Trust"), and evidencing loans made to the Company by the Trust of proceeds from
the issuance of undivided preferred beneficial interests in the assets of the
Trust (the "Preferred Securities"), and undivided common beneficial interests in
the assets of the Trust (collectively, the "Trust Securities");
Whereas, the Parent Guarantor owns one hundred percent (100%) of the
outstanding shares of capital stock of the Company, and will substantially
benefit from the issuance of the Debt Securities by the Company and the purchase
by the Holders of the Preferred Securities; and
Whereas, as incentive for the Holders to purchase Preferred Securities
from the Trust and for the Trust to purchase the Debt Securities with the
proceeds from such purchase, the Parent Guarantor desires irrevocably and
unconditionally to agree, to the extent set forth herein, to pay to the Trust
the Parent Guarantee Payments (as defined herein) and to make certain other
payments on the terms and conditions set forth herein.
Now, therefore, in consideration of the purchase by each Holder of
Preferred Securities and the purchase of the Debt Securities by the Trust, the
Parent Guarantor executes and delivers this Parent Guarantee Agreement to
provide as follows for the benefit of the Holders from time to time of the
Preferred Securities and the Trust:
ARTICLE I
Interpretation and Definitions
SECTION 1.1. Interpretation.
In this Parent Guarantee Agreement, unless the context otherwise
requires:
(a) capitalized terms used in this Parent Guarantee
Agreement but not defined in the preamble herein have the respective
meanings assigned to them in Section 1.2;
(b) the words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation";
(c) all references to "the Parent Guarantee Agreement" or
"this Parent Guarantee Agreement" are to this Parent Guarantee
Agreement, as modified, supplemented or amended from time to time;
(d) all references in this Parent Guarantee Agreement to
articles and sections are to articles and sections of this Parent
Guarantee Agreement unless otherwise specified;
(e) the words "hereby", "herein", "hereof" and
"hereunder" and other words of similar import refer to this Parent
Guarantee Agreement as a whole and not to any particular Article,
Section or other subdivision;
(f) a reference to the singular includes the plural and
vice versa;
(g) a reference to the "Guarantor" shall be deemed to
refer to the Parent Guarantor; and
(h) the masculine, feminine or neuter genders used herein
shall include the masculine, feminine and neuter genders.
SECTION 1.2. Definitions.
As used in this Parent Guarantee Agreement, the terms set forth below
shall, unless the context otherwise requires, have the following meanings:
"Affiliate" has the meaning given to that term in Rule 405 of
the Securities Act of 1933, as amended, or any successor rule
thereunder.
"Beneficiaries" means any Person to whom the Trust is or
hereafter becomes indebted or liable.
"Board of Directors" of any Person means either the board of
directors of such Person or any duly authorized committee of that
board.
"Common Securities" means the securities representing common
undivided beneficial interests in the assets of the Trust.
"Debt" means, with respect to any Person, whether recourse is
to all or a portion of the assets of such Person, whether currently
existing or hereafter incurred, and whether or not contingent and
without duplication, (i) every obligation of such Person for money
borrowed; (ii) every obligation of such Person evidenced by bonds,
debentures, debt securities or other similar instruments, including
obligations incurred in connection with the acquisition of property,
assets or businesses; (iii) every reimbursement obligation of such
Person with respect to letters of credit, bankers' acceptances or
similar facilities issued for the account of such Person; (iv) every
obligation of such Person issued or assumed as the deferred purchase
price of property or services (but excluding trade accounts payable
arising in the ordinary course of business); (v) every capital lease
obligation of such Person;
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(vi) all indebtedness of such Person, whether incurred on or prior to
the date of this Parent Guarantee Agreement or thereafter incurred, for
claims in respect of derivative products, including interest rate,
foreign exchange rate and commodity forward contracts, options, swaps
and similar arrangements; (vii) every obligation of the type referred
to in clauses (i) through (vi) of another Person and all dividends of
another Person the payment of which, in either case, such Person has
guaranteed or is responsible or liable for, directly or indirectly, as
obligor or otherwise; and (viii) any renewals, extensions, refundings,
amendments or modifications of any obligation of the type referred to
in clauses (i) through (vii).
"Event of Default" means a default by the Parent Guarantor on
any of its payment or other obligations under this Parent Guarantee
Agreement; provided, that except with respect to a default in payment
of any Parent Guarantee Payments, such default shall not be an Event of
Default unless the Parent Guarantor shall have received notice of such
default in accordance with the terms herein from the Guarantee Trustee,
the Trust or any Holder and shall have failed to cure such default
within thirty (30) days after receipt of such notice.
"Guarantee Trustee" means The Bank of New York Trust Company,
National Association, until a Successor Guarantee Trustee, as defined
below, has been appointed and has accepted such appointment pursuant to
the terms of this Parent Guarantee Agreement, and thereafter means each
such Successor Guarantee Trustee.
"Holder" means any holder, as registered on the books and
records of the Trust, of any Preferred Securities; provided, that, in
determining whether the holders of the requisite percentage of
Preferred Securities have given any request, notice, consent or waiver
hereunder, "Holder" shall not include the Parent Guarantor, the
Guarantee Trustee or any Affiliate of the Parent Guarantor or the
Guarantee Trustee.
"Indenture" means the Indenture, dated as of November 14,
2006, among the Company, the Parent Guarantor and The Bank of New York
Trust Company, National Association, 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.
"List of Holders" has the meaning specified in Section 2.1.
"Majority in Liquidation Amount of the Preferred Securities"
means Holder(s) of outstanding Preferred Securities, voting together as
a class, but separately from the holders of Common Securities, of more
than fifty percent (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, but excluding, the
date upon which the voting percentages are determined) of all Preferred
Securities then outstanding.
"Obligations" means any costs, expenses or liabilities (but
not including liabilities related to taxes) of the Trust, other than
obligations of the Trust to pay to holders of any Preferred Securities
the amounts due such holders pursuant to the terms of the Preferred
Securities.
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"Officer's Certificate" means, with respect to any Person, a
certificate signed by the Chief Executive Officer, Chief Financial
Officer, President, the Treasurer or the Secretary of such Person, and
delivered to the Guarantee Trustee. Any Officer's Certificate delivered
with respect to compliance with a condition or covenant provided for in
this Parent Guarantee Agreement (other than the certificate provided
pursuant to Section 2.2) 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 such officer in rendering
the Officer's Certificate;
(c) a statement that such 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 such
officer, such condition or covenant has been complied with.
"Parent Guarantee Payments" means the following payments or
distributions, without duplication, with respect to the Debt
Securities, to the extent not fully and promptly paid or made by the
Company immediately after the expiration of any applicable grace or
cure period applicable to the Company under the terms of the Indenture:
(a) any accumulated and unpaid payments of interest or principal, or
other amounts, required to be paid on the Debt Securities on the
Maturity Date, Redemption Date or Special Redemption Date (each as
defined in the Indenture), or upon expiration of the Extension Periods
allowed under Section 2.11 of the Indenture; and (b) payment of any
other amounts to be paid by the Company under 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, 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 Senior Vice President, any Vice President, any Assistant
Vice President, the Secretary, any Assistant Secretary, the Treasurer,
any Assistant Treasurer, any Trust Officer or Assistant Trust Officer
or any other officer of the Corporate Trust Department of the Guarantee
Trustee and also means, 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.
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"Senior Debt" means the principal of and any premium and
interest on (including interest accruing on or after the filing of any
petition in bankruptcy or for reorganization relating to the Parent
Guarantor whether or not such claim for post-petition interest is
allowed in such proceeding) all Debt of the Parent Guarantor, whether
incurred on or prior to the date of the Indenture or thereafter
incurred, unless it is provided in the instrument creating or
evidencing the same or pursuant to which the same is outstanding, that
such obligations are subordinated in right of payment to the Preferred
Securities.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended and as in effect on the date of this Parent Guarantee
Agreement.
"Successor Guarantee Trustee" means a successor Guarantee
Trustee possessing the qualifications to act as Guarantee Trustee under
Section 4.1.
Capitalized or otherwise defined terms used but not otherwise defined herein
shall have the meanings assigned to such terms in the Indenture as in effect on
the date hereof.
ARTICLE II
Reports
SECTION 2.1. Intentionally Omitted.
SECTION 2.2. Periodic Reports to the Guarantee Trustee.
(a) The Parent Guarantor shall deliver to the Guarantee Trustee,
within one hundred twenty (120) days after the end of each fiscal year of the
Parent Guarantor ending after the date of this Parent Guarantee Agreement, an
Officer's Certificate covering the preceding fiscal year, stating whether or not
to the knowledge of the signer thereof the Parent Guarantor is in default in the
performance or observance of any of the terms or provisions or any of the
conditions of this Parent Guarantee Agreement (without regard to any period of
grace or requirement of notice provided hereunder) and, if the Parent Guarantor
shall be in default thereof, specifying all such defaults and the nature and
status thereof of which such person has knowledge.
(b) The Parent Guarantor shall furnish (i) to the Guarantee
Trustee; (ii) Xxxxx & Company, 0000 Xxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxxxxx,
Xxxxxxxxxxxx 00000 or such other address as designated by Xxxxx & Company; and
(iii) any Holder of the Preferred Securities reasonably identified to the
Company and the Trust (which identification may be made either by such Holder or
Xxxxx & Company) a duly completed and executed certificate substantively and
substantially in the form attached hereto as Exhibit A, including the financial
statements referenced in such Exhibit, which certificate and financial
statements shall be so furnished by the Parent Guarantor not later than forty
five (45) days after the end of each of the first three fiscal quarters of each
fiscal year of the Parent Guarantor and not later than ninety (90) days after
the end of each fiscal year of the Parent Guarantor.
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SECTION 2.3. Event of Default; Waiver.
Neither the Trust nor holders of the Debt Securities shall have the
right to waive any past Event of Default without the consent of the Holders of a
Majority in Liquidation Amount of the Preferred Securities. The Holders of a
Majority in Liquidation Amount of the Preferred Securities may, on behalf of the
Holders, the Trust or the holders of Debt Securities waive any past Event of
Default and its consequences. Upon such waiver, any such Event of Default shall
cease to exist, and any Event of Default arising therefrom shall be deemed to
have been cured, for every purpose of this Parent Guarantee Agreement, but no
such waiver shall extend to any subsequent or other default or Event of Default
or impair any right consequent therefrom.
SECTION 2.4. Event of Default; Notice.
(a) The Guarantee Trustee shall, within ninety (90) days after the
occurrence of a default, transmit to the Trust, the Parent Guarantor and the
Holders notices of all defaults actually known to the Guarantee Trustee, unless
such defaults have been cured or waived before the giving of such notice;
provided, that, except in the case of a default in the payment of a Parent
Guarantee Payment, the Guarantee Trustee shall be protected in withholding such
notice if and so long as the Board of Directors, the executive committee or a
trust committee of directors and/or Responsible Officers of the Guarantee
Trustee in good faith determines that the withholding of such notice is in the
interests of the Holders. For the purpose of this Section 2.4, the term
"default" means any event that is, or after notice or lapse of time or both
would become, an Event of Default.
(b) The Guarantee Trustee shall not be deemed to have knowledge of
any Event of Default unless the Guarantee Trustee shall have received written
notice, or a Responsible Officer charged with the administration of this Parent
Guarantee Agreement shall have obtained written notice, of such Event of Default
from the Parent Guarantor, the Company, a holder of Debt Securities or a Holder.
ARTICLE III
Powers, Duties and Rights of the Guarantee Trustee
SECTION 3.1. Powers and Duties of the Guarantee Trustee.
(a) This Parent Guarantee Agreement shall be held by the Guarantee
Trustee for the benefit of the Holders, the holders of Debt Securities and the
Trust, and the Guarantee Trustee shall not transfer this Parent Guarantee
Agreement to any Person except a Holder or a holder of Debt Securities
exercising its rights pursuant to Section 5.4(d) or (iii) to a Successor
Guarantee Trustee upon 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, upon acceptance by such Successor Guarantee Trustee of its appointment
hereunder, and such vesting and succession of title shall be effective whether
or not conveyancing documents have been executed and delivered pursuant to the
appointment of such Successor Guarantee Trustee.
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(b) The rights, immunities, duties and responsibilities of the
Guarantee Trustee shall be as provided by this Parent Guarantee Agreement and
there shall be no other duties or obligations, express or implied, of the
Guarantee Trustee. Notwithstanding the foregoing, no provisions of this Parent
Guarantee Agreement shall require the Guarantee Trustee to expend or risk its
own funds or otherwise incur any financial liability in the performance of any
of its duties hereunder, or in the exercise of any of its rights or powers, if
it shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it. Whether or not herein expressly so provided, every provision of this Parent
Guarantee Agreement relating to the conduct or affecting the liability of or
affording protection to the Guarantee Trustee shall be subject to the provisions
of this Section 3.1. To the extent that, at law or in equity, the Guarantee
Trustee has duties and liabilities relating to the Trust, the Parent Guarantor
or the Holders, the Guarantee Trustee shall not be liable to any Holder for the
Guarantee Trustee's good faith reliance on the provisions of this Parent
Guarantee Agreement. The provisions of this Parent Guarantee Agreement, to the
extent that they restrict the duties and liabilities of the Guarantee Trustee
otherwise existing at law or in equity, are agreed by the Parent Guarantor and
the Holders to replace such other duties and liabilities of the Guarantee
Trustee.
(c) No provision of this Parent Guarantee Agreement shall be
construed to relieve the Guarantee Trustee from liability for its own negligent
action, negligent failure to act or own willful misconduct, except that:
(i) 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 the Guarantee Trustee
was negligent in ascertaining the pertinent facts upon which such
judgment was made; and
(ii) 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 direction of the Holders of not less than a
Majority in Liquidation Amount of the Preferred Securities relating to
the time, method and place of conducting any proceeding for any remedy
available to the Guarantee Trustee, or exercising any trust or power
conferred upon the Guarantee Trustee under this Parent Guarantee
Agreement.
SECTION 3.2. Certain Rights of the Guarantee Trustee.
(a) Subject to the provisions of Section 3.1:
(i) the Guarantee Trustee may conclusively rely, and
shall be fully protected in acting or refraining from acting in good
faith and in accordance with the terms hereof, 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 reasonably believed by it to be
genuine and to have been signed, sent or presented by the proper party
or parties;
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(ii) any direction or act of the Parent Guarantor
contemplated by this Parent Guarantee Agreement shall be sufficiently
evidenced by an Officers' Certificate unless otherwise prescribed
herein;
(iii) the Guarantee Trustee may consult with counsel, and
the advice of such counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted to be
taken by it hereunder in good faith and in reliance thereon and in
accordance with such advice. Such counsel may be counsel to the
Guarantee Trustee, the Parent Guarantor or any of their respective
Affiliates and may be one of its Guarantees Trustee's employees. The
Guarantee Trustee shall have the right at any time to seek instructions
concerning the administration of this Parent Guarantee Agreement from
any court of competent jurisdiction;
(iv) the Guarantee Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Parent
Guarantee Agreement at the request or direction of any Holder, unless
such Holder shall have provided to the Guarantee Trustee reasonable
security or indemnity against the costs, expenses (including reasonable
attorneys' fees and expenses) 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, that, nothing contained in this Section 3.2(a)(iv) shall be
taken to 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 Parent Guarantee Agreement;
(v) 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, and if the Guarantee Trustee
shall determine to make such inquiry or investigation, it shall be
entitled to examine the books, records and premises of the Parent
Guarantor, personally or by agent or attorney;
(vi) the Guarantee Trustee may execute any of the trusts
or powers hereunder or perform any duties hereunder either directly or
by or through its agents, attorneys, custodians or nominees and the
Guarantee Trustee shall not be responsible for any misconduct or
negligence on the part of any such agent, attorney, custodian or
nominee appointed with due care by it hereunder;
(vii) whenever in the administration of this Parent
Guarantee Agreement the Guarantee Trustee shall deem it desirable to
receive instructions with respect to enforcing any remedy or right
hereunder, the Guarantee Trustee (A) may request instructions from the
Trust and the Holders of a Majority in Liquidation Amount of the
Preferred Securities, (B) may refrain from enforcing such remedy or
right or taking such other action until such requested instructions are
received and (C) shall be protected in acting in accordance with such
instructions; provided, however, that the Guarantee Trustee must first
obtain the consent of the Holders of a Majority in Liquidation Amount
of the Preferred Securities prior to taking any action only upon only
the direction of the Trust;
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(viii) except as otherwise expressly provided by this Parent
Guarantee Agreement, the Guarantee Trustee shall not be under any
obligation to take any action that is discretionary under the
provisions of this Parent Guarantee Agreement; and
(ix) whenever, in the administration of this Parent
Guarantee Agreement, the Guarantee Trustee shall deem it desirable that
a matter be proved or established before taking, suffering or omitting
to take 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 rely upon an Officers' Certificate
which, upon receipt of such request from the Guarantee Trustee, shall
be promptly delivered by the Parent Guarantor.
(b) No provision of this Parent Guarantee Agreement shall be
deemed to impose any duty or obligation on the Guarantee Trustee to perform any
act or acts or exercise any right, power, duty or obligation conferred or
imposed on it in any jurisdiction in which it shall be illegal, or in which the
Guarantee Trustee shall be unqualified or incompetent in accordance with
applicable law, to perform any such act or acts or to exercise any such right,
power, duty or obligation. No permissive power or authority available to the
Guarantee Trustee shall be construed to be a duty to act in accordance with such
power and authority.
SECTION 3.3. Compensation.
The Parent Guarantor agrees to pay to the Guarantee Trustee from time
to time reasonable compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provisions of law in regard to the
compensation of a trustee of an express trust) and to reimburse the Guarantee
Trustee upon request for all reasonable expenses, disbursements and advances
(including the reasonable fees and expenses of its attorneys and agents)
incurred or made by the Guarantee Trustee in accordance with any provisions of
this Parent Guarantee Agreement.
SECTION 3.4. Indemnity.
The Parent Guarantor agrees to indemnify and hold harmless the
Guarantee Trustee and any of its Affiliates and any of their officers,
directors, shareholders, employees, representatives or agents from and against
any loss, damage, liability, tax (other than income, franchise or other taxes
imposed on amounts paid pursuant to Section 3.3), penalty, expense or claim of
any kind or nature whatsoever incurred without negligence, bad faith or willful
misconduct on its part, arising out of or in connection with the acceptance or
administration of this Parent Guarantee Agreement, including the costs and
expenses of defending itself against any claim or liability in connection with
the exercise or performance of any of its powers or duties hereunder. The
Guarantee Trustee will not claim or exact any lien or charge on any Parent
Guarantee Payments as a result of any amount due to it under this Parent
Guarantee Agreement. This indemnity shall survive the termination of this Parent
Guarantee Agreement or the resignation or removal of the Guarantee Trustee.
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In no event shall the Guarantee Trustee be liable for any indirect,
special, punitive or consequential loss or damage of any kind whatsoever,
including, but not limited to, lost profits, even if the Guarantee Trustee has
been advised of the likelihood of such loss or damage and regardless of the form
of action.
In no event shall the Guarantee Trustee be liable for any failure or
delay in the performance of its obligations hereunder because of circumstances
beyond its control, including, but not limited to, acts of God, flood, war
(declared or undeclared), terrorism, fire, riot, embargo, government action,
including any laws, ordinances, regulations, governmental action or the like
which delay, restrict or prohibit the providing of the services contemplated by
this Parent Guarantee Agreement.
SECTION 3.5. Securities.
The Guarantee Trustee or any other agent of the Guarantee Trustee, in
its individual or any other capacity, may become the owner or pledgee of Trust
Securities.
ARTICLE IV
Guarantee Trustee
SECTION 4.1. Guarantee Trustee; Eligibility.
(a) There shall at all times be a Guarantee Trustee which shall:
(i) not be an Affiliate of the Parent Guarantor or the
Company; and
(ii) be a corporation organized and doing business under
the laws of the United States or of any State thereof, authorized to
exercise corporate trust powers, having a combined capital and surplus
of at least fifty million dollars ($50,000,000), subject to supervision
or examination by Federal or State authority and having an office
within the United States. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of
such supervising or examining authority, then, for the purposes of this
Section 4.1, the combined capital and surplus of such corporation shall
be deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published.
(b) If at any time the Guarantee Trustee shall cease to be
eligible to so act under Section 4.1(a), the Guarantee Trustee shall immediately
resign in the manner and with the effect set out in Section 4.2(c).
(c) If the Guarantee Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act, the
Guarantee Trustee shall either eliminate such interest or resign in the manner
and with the effect set out in Section 4.2(c).
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SECTION 4.2. Appointment, Removal and Resignation of the Guarantee
Trustee.
(a) Subject to Section 4.2(b), the Guarantee Trustee may be
appointed or removed without cause at any time by the Parent Guarantor, except
during an Event of Default.
(b) The Guarantee Trustee shall not be removed until a Successor
Guarantee Trustee has been appointed and has accepted such appointment by
written instrument executed by such Successor Guarantee Trustee and delivered to
the Parent Guarantor.
(c) The Guarantee Trustee appointed hereunder shall hold office
until a Successor Guarantee Trustee shall have been appointed or until its
removal or resignation. The Guarantee Trustee may resign from office (without
need for prior or subsequent accounting) by an instrument in writing executed by
the Guarantee Trustee and delivered to the Parent Guarantor, which resignation
shall not take effect until a Successor Guarantee Trustee has been appointed and
has accepted such appointment by instrument in writing executed by such
Successor Guarantee Trustee and delivered to the Parent Guarantor and the
resigning Guarantee Trustee.
(d) If no Successor Guarantee Trustee shall have been appointed
and accepted appointment as provided in this Section 4.2 within thirty (30) days
after delivery to the Parent Guarantor of an instrument of resignation, the
resigning Guarantee Trustee may petition, at the expense of the Parent
Guarantor, any court of competent jurisdiction for appointment of a Successor
Guarantee Trustee. Such court may thereupon, after prescribing such notice, if
any, as it may deem proper, appoint a Successor Guarantee Trustee.
ARTICLE V
Parent Guarantee
SECTION 5.1. Parent Guarantee.
(a) The Parent Guarantor irrevocably and unconditionally agrees to
pay in full to the holders of the Debt Securities and/or the Beneficiaries, as
the case may be, the Parent Guarantee Payments (without duplication of amounts
theretofore timely paid by or on behalf of the Company), as and when due,
regardless of any defense (except for the defense of timely payment by the
Company), right of set-off or counterclaim which the Company may have or assert.
The Parent Guarantor's obligation to make a Parent Guarantee Payment may be
satisfied by direct payment of the required amounts by the Parent Guarantor to
the Trust or by causing the Company to pay such amounts to the Trust. The Parent
Guarantor shall give prompt written notice to the Guarantee Trustee in the event
the Parent Guarantor makes any direct payment to the Trust hereunder.
(b) The Parent Guarantor expressly agrees that the guarantee set
forth in the immediately preceding paragraph includes, but is not limited to,
the guarantee of the full and prompt payment of the Parent Guarantor's
obligation to make any and all interest payments on the Debt Securities which
would be required to be made by the Company under the Indenture including,
without limitation, any amounts of Additional Interest, the Redemption Price,
Special Redemption Price or any other amount set forth in the Indenture or the
Debt Security.
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(c) The Parent Guarantor hereby also agrees to assume any and all
Obligations, and, in the event any such Obligation is not so assumed, subject to
the terms and conditions hereof, the Parent Guarantor hereby irrevocably and
unconditionally guarantees to each Beneficiary the full payment, when and as
due, of any and all Obligations to such Beneficiary. This Section 5.1 is
intended to be for the Beneficiaries who have received notice hereof.
SECTION 5.2. Waiver of Notice and Demand.
The Parent Guarantor hereby waives notice of acceptance of the Parent
Guarantee Agreement and of any liability to which it applies or may apply,
presentment, demand for payment, any right to require a proceeding first against
the Guarantee Trustee, Company, the Trust, the holders of Debt Securities or any
other Person before proceeding against the Parent Guarantor, protest, notice of
nonpayment, notice of dishonor, notice of redemption and all other notices and
demands.
SECTION 5.3. Obligations Not Affected.
The obligations, covenants, agreements and duties of the Parent
Guarantor under this Parent Guarantee Agreement shall be absolute and
unconditional, and shall in no way be affected or impaired by reason of the
happening from time to time of any of the following:
(a) the release or waiver, by operation of law or
otherwise, of the performance or observance by the Company of any
express or implied agreement, covenant, term or condition relating to
the Debt Securities to be performed or observed by the Company;
(b) the extension of time for the payment by the Company
of all or any portion of the obligations under the Debt Securities
(other than the extension of any interest payment period on the Debt
Securities as permitted under Section 2.11 of the Indenture) or any
other sums payable under the terms of the Debt Securities or the
extension of time for the performance of any other obligation under,
arising out of, or in connection with, the Debt Securities;
(c) any failure, omission, delay or lack of diligence on
the part of the Trust or the Holders to enforce, assert or exercise any
right, privilege, power or remedy conferred on the Trust or the Holders
pursuant to the terms of the Debt Securities, or any action on the part
of the Company granting indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation,
dissolution, sale of any collateral, receivership, insolvency,
bankruptcy, assignment for the benefit of creditors, reorganization,
arrangement, composition or readjustment of debt of, or other similar
proceedings affecting, the Company or any of the assets of the Company;
(e) any invalidity of, or defect or deficiency in, the
Debt Securities;
(f) the settlement or compromise of any obligation
guaranteed hereby or hereby incurred; or
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(g) any other circumstance whatsoever that might
otherwise constitute a legal or equitable discharge or defense of a
guarantor, it being the intent of this Section 5.3 that the obligations
of the Parent Guarantor hereunder shall be absolute and unconditional
under any and all circumstances.
There shall be no obligation of the Holders, the holders of the Debt Securities
or the Trust to give notice to, or obtain the consent of, the Parent Guarantor
with respect to the happening of any of the foregoing. No set-off, counterclaim,
reduction or diminution of any obligation, or any defense of any kind or nature
that the Parent Guarantor has or may have shall be available hereunder to the
Parent Guarantor against the Trust, any Holder or any holder of Debt Securities
to reduce the payments thereto under this Parent Guarantee Agreement.
SECTION 5.4. Rights of Holders and the Trust.
The Parent Guarantor expressly acknowledges that: (a) this Parent
Guarantee Agreement will be deposited with the Guarantee Trustee to be held for
the benefit of the Holders, the holders of the Debt Securities and the Trust;
(b) the Guarantee Trustee has the right to enforce this Parent Guarantee
Agreement on behalf of the Holders, the holders of the Debt Securities and the
Trust; (c) the Holders of a Majority in Liquidation Amount of the Preferred
Securities, the holders of a Majority in Liquidation Amount of the Debt
Securities and the Trust have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Guarantee Trustee in
respect of this Parent Guarantee Agreement or exercising any trust or power
conferred upon the Guarantee Trustee under this Parent Guarantee Agreement
(provided, however, the Trust shall not exercise such right without the consent
of the Holders of a Majority in Liquidation Amount of the Preferred Securities);
and (d) the Trust, any holder of Debt Securities or any Holder may institute a
legal proceeding directly against the Parent Guarantor to enforce their
respective rights under this Parent Guarantee Agreement, without first
instituting a legal proceeding against the Guarantee Trustee, the Company or any
other Person.
SECTION 5.5. Guarantee of Payment.
This Parent Guarantee Agreement creates a guarantee of payment and not
of collection. This Parent Guarantee Agreement will not be discharged except by
payment of the Parent Guarantee Payments in full (without duplication of amounts
theretofore paid by the Company) or upon payment in full of the Debt Securities
and all amounts owed by the Company under the Indenture to the holders of Debt
Securities or beneficiary thereof.
SECTION 5.6. Subrogation.
The Parent Guarantor shall be subrogated to all (if any) rights of the
Trust and the Holders against the Company in respect of any amounts paid to the
Trust by the Parent Guarantor under this Parent Guarantee Agreement and shall
have the right to waive payment by the Company pursuant to Section 5.1;
provided, that, the Parent Guarantor shall not (except to the extent required by
mandatory provisions of law) be entitled to enforce or exercise any rights it
may acquire by way of subrogation or any indemnity, reimbursement or other
agreement, in all cases as a result of payment under this Parent Guarantee
Agreement, if, at the time of any such payment, any amounts are due and unpaid
under this Parent Guarantee Agreement. If any amount shall be paid to the Parent
Guarantor in violation of the preceding sentence, the Parent Guarantor agrees to
hold such amount in trust for the Trust and the Holders, holders of Debt
Securities and holders of any beneficiary interests thereof and to pay over such
amount to the Trust, appropriate holder of Debt Securities or Holder, as
applicable.
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SECTION 5.7. Independent Obligations.
The Parent Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Company with respect to the Debt
Securities, any other guarantee agreement and with respect to any obligations of
Parent Guarantor or Company with respect to the Debt Securities and Preferred
Securities and that the Parent Guarantor shall be liable as principal and as
debtor hereunder to make Parent Guarantee Payments pursuant to the terms of this
Parent Guarantee Agreement notwithstanding the occurrence of any event referred
to in subsections (a) through (g), inclusive, of Section 5.3.
SECTION 5.8. Enforcement.
A Beneficiary or a holder of Debt Securities may enforce the
Obligations of the Parent Guarantor contained in Section 5.1(c) directly against
the Parent Guarantor, and the Parent Guarantor waives any right or remedy to
require that any action be brought against the Company or any other person or
entity before proceeding against the Parent Guarantor.
ARTICLE VI
Subordination
SECTION 6.1. Intentionally Omitted.
SECTION 6.2. Subordination.
(a) The obligations of the Parent Guarantor under this Parent
Guarantee Agreement will constitute unsecured obligations of the Parent
Guarantor and will rank subordinate and junior in right of payment to all
present and future Senior Debt (as defined in the Indenture) of the Parent
Guarantor. By their acceptance hereof, each Holder agrees to the foregoing
provisions of this Parent Guarantee Agreement and other terms set forth herein.
(b) The right of the Parent Guarantor to participate in any
distribution of assets of any of its subsidiaries upon any such subsidiary's
liquidation or reorganization or otherwise is subject to the prior claims of
creditors of that subsidiary, except to the extent the Parent Guarantor may
itself be recognized as a creditor of that subsidiary. Accordingly, the Parent
Guarantor's obligations under this Parent Guarantee Agreement will be
effectively subordinated to all existing and future liabilities of the Parent
Guarantor's subsidiaries, and claimants should look only to the assets of the
Parent Guarantor for payments thereunder. This Parent Guarantee Agreement does
not limit the incurrence or issuance of other secured or unsecured debt of the
Parent Guarantor, including Senior Debt of the Parent Guarantor, under any
indenture or agreement that the Parent Guarantor may enter into in the future or
otherwise.
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ARTICLE VII
Termination
SECTION 7.1. Termination.
This Parent Guarantee Agreement shall terminate and be of no further
force and effect upon (i) full payment of the Redemption Price or Special
Redemption Price, as applicable, of the Preferred Securities; (ii) upon the
distribution of all of the Debt Securities (as defined in the Indenture) to the
Holders; or (iii) full payment of the Debt Securities and all amounts payable in
accordance with the Indenture. Notwithstanding the foregoing, this Parent
Guarantee Agreement will continue to be effective or will be reinstated, as the
case may be, if at any time any Holder or the Trust must restore payment of any
sums paid with respect to Preferred Securities, the Debt Securities or this
Parent Guarantee Agreement. The obligations of the Parent Guarantor under
Sections 3.3 and 3.4 shall survive any such termination or the resignation and
removal of the Guarantee Trustee.
ARTICLE VIII
Miscellaneous
SECTION 8.1. Successors and Assigns.
All guarantees and agreements contained in this Parent Guarantee
Agreement shall bind the successors, assigns, receivers, trustees and
representatives of the Parent Guarantor and shall inure to the benefit of the
Trust and the Holders or holders of the Debt Securities. Except in connection
with a consolidation, merger or sale involving the Parent Guarantor that is
permitted under Article IX hereof, and pursuant to which the successor or
assignee agrees in writing to perform the Parent Guarantor's obligations
hereunder, the Parent Guarantor shall not assign its rights or delegate its
obligations hereunder without the prior approval of the Holders of a Majority in
Liquidation Amount of the Preferred Securities.
SECTION 8.2. Amendments.
Except with respect to any changes that do not adversely affect the
rights of the Trust and of the Holders in any material respect (in which case no
consent of the Holders will be required), this Parent Guarantee Agreement may
only be amended with the prior approval of the Parent Guarantor, the Guarantee
Trustee, the Trust and the Holders of not less than a Majority in Liquidation
Amount of the Preferred Securities. The provisions of Article VI of the Trust
Agreement (as defined in the Indenture) concerning meetings or consents of the
Holders shall apply to the giving of such approval.
SECTION 8.3. Notices.
Any notice, request or other communication required or permitted to be
given hereunder shall be in writing, duly signed by the party giving such
notice, and delivered, telecopied or mailed by first class mail as follows:
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(a) if given to the Parent Guarantor, to the address or
facsimile number set forth below or such other address, facsimile
number or to the attention of such other Person as the Parent Guarantor
may give notice to the Guarantee Trustee and the Holders:
CRM Holdings, Ltd.
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxx
(b) if given to the Trust, at the address or facsimile
number set forth below or such other address, facsimile number or to
the attention of such other Person as the Trust may give notice to the
Guarantee Trustee and the Holders:
CRM USA Holdings Trust I
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxx
(c) if given to the Guarantee Trustee, at the address or
facsimile number set forth below or such other address, facsimile
number or to the attention of such other Person as the Guarantee
Trustee may give notice to the Parent Guarantor and the Holders:
The Bank of New York Trust Company, National
Association
000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxx 00000
Attention: Corporate Trust -
CRM USA Holdings Trust I
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
(d) if given to any holder of Debt Securities, at the
address set forth in the books and records of the Institutional Trustee
(as defined in the Indenture), and if to any Holder, at the address set
forth on the books and records of the Trust.
All notices hereunder shall be deemed to have been given when received
in person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid, except that if a notice or other document is refused delivery
or cannot be delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have been delivered on
the date of such refusal or inability to deliver.
SECTION 8.4. Benefit.
This Parent Guarantee Agreement is solely for the benefit of the Trust,
the holders of the Debt Securities and the Holders, and is not separately
transferable from the Debt Securities.
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SECTION 8.5. Governing Law.
This Parent Guarantee Agreement and the rights and obligations of each
party hereto, shall be construed and enforced in accordance with and governed by
the laws of the State of New York without reference to its conflict of laws
provisions (other than Section 5-1401 of the General Obligations Law).
SECTION 8.6. Submission to Jurisdiction.
ANY LEGAL ACTION OR PROCEEDING BY OR AGAINST ANY PARTY HERETO OR WITH
RESPECT TO OR ARISING OUT OF THIS PARENT GUARANTEE AGREEMENT MAY BE BROUGHT IN
OR REMOVED TO THE COURTS OF THE STATE OF NEW YORK, IN AND FOR THE COUNTY OF NEW
YORK, OR OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK
(IN EACH CASE SITTING IN THE BOROUGH OF MANHATTAN). BY EXECUTION AND DELIVERY OF
THIS PARENT GUARANTEE AGREEMENT, EACH PARTY ACCEPTS, FOR ITSELF AND IN RESPECT
OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE
AFORESAID COURTS (AND COURTS OF APPEALS THEREFROM) FOR LEGAL PROCEEDINGS ARISING
OUT OF OR IN CONNECTION WITH THIS PARENT GUARANTEE AGREEMENT.
SECTION 8.7. Counterparts.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
SECTION 8.8. The Indenture.
Each of the parties hereto hereby acknowledges that it is familiar with
the terms of the Indenture. The Indenture shall be deemed to be specifically
described in this Parent Guarantee Agreement.
ARTICLE IX
Consolidation, Merger, Conveyance, Transfer or Lease and
Ownership of the Company
SECTION 9.1. Parent Guarantor May Consolidate, etc., Only on Certain
Terms.
The Parent Guarantor shall not consolidate with or merge into any other
Person or convey, transfer or lease its properties and assets substantially as
an entirety to any Person, and no Person shall consolidate with or merge into
the Parent Guarantor or convey, transfer or lease its properties and assets
substantially as an entirety to the Parent Guarantor, unless:
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(a) if the Parent Guarantor shall consolidate with or merge into
another Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, the entity formed by such
consolidation or into which the Parent Guarantor is merged or the Person that
acquires by conveyance or transfer, or that leases, the properties and assets of
the Parent Guarantor substantially as an entirety shall be an entity organized
and existing under the laws of the United States of America or any State or
Territory thereof or the District of Columbia and shall expressly assume, in
writing, executed and delivered to the Guarantee Trustee, in form reasonably
satisfactory to the Guarantee Trustee, the due and punctual payment of the
Parent Guarantee Payments required hereunder and the performance of every
covenant and obligation of Parent Guarantor to be performed under this Parent
Guarantee Agreement on the part of the Parent Guarantor to be performed or
observed;
(b) immediately after giving effect to such transaction, no Event
of Default, and no event that, after notice or lapse of time, or both, would
constitute an Event of Default, shall have happened and be continuing; and
(c) the Parent Guarantor has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such consolidation,
merger, conveyance, transfer or lease and, if a written agreement evidencing any
assignment or assumption is required in connection with such transaction, any
such agreement complies with this Article IX and that all conditions precedent
herein provided for relating to such transaction have been complied with; and
the Trustee may rely upon such Officers' Certificate and Opinion of Counsel as
conclusive evidence that such transaction complies with this Section 9.1.
SECTION 9.2. Limitation on Dividends.
So long as the Debt Securities remain outstanding, if there shall have
occurred an Event of Default (as defined in the Indenture) or the Company shall
have elected to defer interest under Section 2.11 of the Indenture, then the
Parent Guarantor shall be subject to the payment restrictions set forth in
Section 3.08 of the Indenture.
SECTION 9.3. Successor Company Substituted.
(a) Upon any consolidation or merger by the Parent Guarantor with
or into any other Person, or any conveyance, transfer or lease by the Parent
Guarantor of its properties and assets substantially as an entirety to any
Person in accordance with Section 9.1 and the execution and delivery to the
Trustee of the written agreement described in Section 9.1(a), the successor
entity formed by such consolidation or into which the Parent Guarantor is merged
or to which such conveyance, transfer or lease is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Parent Guarantor
under this Parent Guarantee Agreement with the same effect as if such successor
Person had been named as the Parent Guarantor herein; and in the event of any
such conveyance, or transfer, or lease following the execution and delivery of
such written agreement, the Parent Guarantor shall be discharged from all
obligations and covenants under the Parent Guarantee Agreement and the Debt
Securities.
(b) In case of any such consolidation, merger, sale, conveyance,
transfer or lease, such changes in phraseology and form may be made in the Trust
Securities thereafter to be issued as may be appropriate to reflect such
occurrence, if necessary.
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SECTION 9.4. Ownership of the Company.
Except as provided in Article XI of the Indenture, at all times while
this Parent Guarantee Agreement is in effect and while any of the obligations of
the Parent Guarantor hereunder remain outstanding, one hundred percent (100%) of
the outstanding capital stock of the Company shall be owned by the Parent
Guarantor.
ARTICLE X
Representations and Warranties
SECTION 10.1. Representations and Warranties of Parent Guarantor.
The Parent Guarantor hereby represents and warrants for the benefit of
the holders of Debt Securities and the Holders that:
(a) the Parent Guarantor is a corporation duly incorporated,
validly existing and in good standing under the laws of its jurisdiction of
incorporation;
(b) the Parent Guarantor has full corporate power, authority and
legal right to execute, deliver and perform its obligations under this Parent
Guarantee Agreement and has taken all necessary action to authorize the
execution, delivery and performance by it of this Parent Guarantee Agreement;
(c) this Parent Guarantee Agreement has been duly executed and
delivered by the Parent Guarantor and constitutes the legal, valid and binding
agreement of the Parent Guarantor enforceable against the Parent Guarantor in
accordance with its terms, subject to applicable bankruptcy, insolvency and
similar laws affecting creditors' rights generally and to general principles of
equity; and
(d) the execution, delivery and performance of this Parent
Guarantee Agreement have been duly authorized by all necessary corporate or
other action on the part of the Parent Guarantor and do not require any approval
of stockholders of the Parent Guarantor and such execution, delivery and
performance will not (i) violate the articles or certificate of incorporation or
by-laws (or other organizational documents) of the Parent Guarantor or (ii)
violate any applicable law, governmental rule or regulation governing the Parent
Guarantor, any material agreement to which it is a party or any material portion
of its property or any order, judgment or decree applicable to the Parent
Guarantor, or any material portion of its property.
[SIGNATURE PAGE FOLLOWS]
19
In Witness Whereof, the undersigned have executed this Parent Guarantee
Agreement as of the date first above written.
CRM Holdings, Ltd.
By: /s/ Xxxxxx X. Xxxxxx, Xx.
-----------------------------
Name Xxxxxx X. Xxxxxx, Xx.
Title: Co-Chief Executive Officer
The Bank of New York Trust Company,
National Association, not in its
individual capacity, but solely
as Guarantee Trustee
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
OFFICER'S FINANCIAL CERTIFICATE
The undersigned, the [Chairman/Chief Executive Officer/President/Chief Financial
Officer], hereby certifies pursuant to Section 2.2(b) of the Parent Guarantee
Agreement, dated as of [date] (the "Parent Guarantee Agreement"), between CRM
Holdings, Ltd. (the "Parent Guarantor") and The Bank of New York Trust Company,
National Association, as guarantee trustee, that, as of [date], [20__].
[FOR FISCAL YEAR END: Attached hereto are the audited consolidated financial
statements (including the balance sheet, income statement and statement of cash
flows, and notes thereto, together with the report of the independent
accountants thereon) of the Parent Guarantor and its consolidated subsidiaries
for the three years ended _______, 20___].
[FOR FISCAL QUARTER END: Attached hereto are the unaudited consolidated and
consolidating financial statements (including the balance sheet and income
statement) of the Parent Guarantor and its consolidated subsidiaries for the
fiscal quarter ended [date], 20__.]
The financial statements fairly present in all material respects, in accordance
with U.S. generally accepted accounting principles ("GAAP"), the financial
position of the Parent Guarantor and its consolidated subsidiaries, and the
results of operations and changes in financial condition as of the date, and for
the [quarter] [annual] period ended [date], 20__, and such financial statements
have been prepared in accordance with GAAP consistently applied throughout the
period involved (expect as otherwise noted therein).
IN WITNESS WHEREOF, the undersigned has executed this Officer's
Financial Certificate as of this _____ day of _____________, 20__.
CRM HOLDINGS, LTD.
By:
------------------------
Name:
------------------------