CONFORMED COPY
REMARKETING AND CONTINGENT PURCHASE
AGREEMENT
among
MUTUAL GROUP LTD.,
MUTUAL RISK MANAGEMENT LTD.,
MRM CAPITAL TRUST I
and
BANC OF AMERICA SECURITIES LLC
Dated as of September 21, 2000
REMARKETING AND CONTINGENT PURCHASE AGREEMENT
REMARKETING AND CONTINGENT PURCHASE AGREEMENT dated as of September 21,
2000 by and among Mutual Group Ltd., a Delaware corporation (the "Company"),
Mutual Risk Management Ltd., a company orga nized under the laws of Bermuda
(the "Guarantor"), MRM Capital Trust I, a statutory business trust organized
under the laws of the State of Delaware (the "Trust"), and Banc of America
Securities LLC, as remarketing agent (the "Remarketing Agent").
WITNESSETH:
WHEREAS, the Trust shall issue 40,000 Auction Rate Reset Preferred
Securities (the "Preferred Securities") in an aggregate stated liquidation
amount of $40,000,000 and 1,240 Auction Rate Reset Common Securities (the
"Common Securities", and together with the Preferred Securities, the "Trust
Securities") in an aggregate stated liquidation amount of $1,240,000 under the
Amended and Restated Trust Agreement dated as of September 21, 2000 among the
Company, the Administrative Trustees, the Delaware Trustee and the Property
Trustee (as the same may be amended from time to time, the "Trust Agreement");
WHEREAS, the sole assets of the Trust, consisting of $41,240,000 aggregate
principal amount of Auction Rate Reset Senior Notes Series A (the "Senior
Notes") of the Company, shall be purchased by the Trust from the Company with
the proceeds of the sale of the Trust Securities;
WHEREAS, upon the occurrence of a Trigger Event (as defined herein), the
Preferred Securities (or, following the distribution of Senior Notes to Holders
of Preferred Securities upon the termination of the Trust, the Senior Notes) may
be remarketed in accordance with the terms hereof;
WHEREAS, the Company and the Trust have requested that Banc of America
Securities LLC ("BAS") act as the Remarketing Agent and, as such, perform the
duties described herein;
WHEREAS, the Guarantor is willing to unconditionally guarantee the
obligations of the Company hereunder; and
WHEREAS, BAS is willing to act as Remarketing Agent and, as such, to
perform such duties on the terms and conditions expressly set forth herein;
NOW, THEREFORE, in consideration of the covenants herein made, and subject to
the conditions herein set forth, the parties hereto agree as follows:
Section 1. Definitions. Capitalized terms used and not defined in this
Agreement shall have the meanings assigned to them in the Trust Agreement. In
addition, as used in this Agreement, the following terms shall have the
following definitions:
"Affiliated Bidder" has the meaning set forth in Section 5(b).
"Associated Person" has the meaning set forth in Article 1(ee) of the By-
Laws of the National Association of Securities Dealers, Inc.
"BAS" has the meaning set forth in the fourth recital hereto.
"Bid" means an irrevocable offer to purchase at the Remarketing Price the
aggregate outstanding Liquidation Amount of Preferred Securities or, following
any distribution of Senior Notes to Holders, the aggregate outstanding principal
amount of such Senior Notes, as the case may be, with a Distribution Rate or
interest rate, as applicable, equal to the Bid Rate specified in such Bid and
with a redemption date or maturity date, as the case may be, on the Remarketed
Maturity Date.
"Bid Rate" means the proposed Distribution Rate on the Preferred Securities
or interest rate on Senior Notes specified in a Bid.
"Business Day" means a day on which banking institutions in New York, New
York and Wilmington, Delaware are not authorized or required by law or
regulation to close.
"Change of Control" shall be deemed to have occurred if (i) any Person or
group of Persons (within the meaning of Section 13 or 14 of the Exchange Act)
shall have acquired beneficial ownership (within the meaning of Rule 13d-3 of
the Exchange Act) of 30% or more of the Voting Shares of the Guarantor or (ii)
Continuing Directors shall cease to be a majority of the members of the Board of
Directors of the Guarantor.
"Commission" means the Securities and Exchange Commission.
"Company" has the meaning set forth in the initial paragraph hereto.
"Continuing Directors" means (i) the members of the Board of Directors of
the Guarantor on the date hereof and (ii) future members of such Board of
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Directors who were nominated or appointed by a majority of the Continuing
Directors at the date of their nomination or appointment.
"Cross Default" has the meaning set forth in the Trust Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Act Regulations" means the rules and regulations promulgated
under the Exchange Act.
"Expected Reset Date" has the meaning set forth in Section 5(a)(i).
"Failed Remarketing" means an event deemed to have occurred if, following
the giving of notice by the Requesting Holders to the Remarketing Agent as
contemplated by Section 5(a)(i), the settlement of a purchase and sale of the
Preferred Securities (or, if applicable, the Senior Notes) shall not have
occurred within the applicable time limit specified in this Agreement, and in
any event, if such a settlement shall not have occurred by the 23rd Business Day
following the delivery of the related Remarketing Notice, giving effect, if
applicable, to the provisions of Section 7.
"Final Reset Date" has the meaning set forth in Section 5(a)(iii).
"Former Holders" has the meaning set forth in Section 5(i).
"Forward Underwriting Agreement" means the Forward Underwriting Agreement
dated as of September 21, 2000 between the Guarantor and BAS.
"Guarantee Agreement" means the Preferred Securities Guarantee Agreement
dated as of September 21, 2000, executed by the Company and the Guarantor for
the benefit of Holders of the Preferred Securities, as amended, supplemented,
modified or superseded from time to time.
"Guarantor" has the meaning set forth in the initial paragraph hereto.
"Indenture" means the Indenture (the "Base Indenture") dated as of
September 21, 2000 among the Company, the Guarantor and The Chase Manhattan
Bank, as Indenture Trustee, as supplemented by the First Supplemental Indenture
dated as of September 21, 2000 and as further amended, supplemented, modified or
superceded from time to time.
"Indenture Trustee" means the Trustee pursuant to the Indenture.
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"Investment Company Act" means the Investment Company Act of 1940, as
amended.
"Material Adverse Change" means any development that could be reasonably
expected to result in a material adverse change in the business, properties or
financial condition of the Guarantor and its subsidiaries, taken as a whole.
"1934 Act Reports" has the meaning set forth in Section 2(b)(iv).
"Offering Memorandum" has the meaning set forth in Section 13.
"Preferred Securities" has the meaning set forth in the first recital
hereto.
"Reference Corporate Dealer" means a leading dealer of publicly traded debt
securities selected by the Company, which dealer shall be a Qualified
Institutional Buyer (as defined in Rule 144A under the Securities Act) and which
shall not include BAS, its Affiliates (as such term is defined in Rule 405 under
the Securities Act) or its Associated Persons.
"Remarketed Maturity Date" means the later of (i) the first anniversary of
the Remarketing Settlement Date on which Replacement Securities are issued and
(ii) September 21, 2003.
"Remarketing" means a remarketing of Preferred Securities or Senior Notes
pursuant to Section 5.
"Remarketing Fee" has the meaning set forth in Section 8.
"Remarketing Notice" has the meaning set forth in Section 5(a)(i).
"Remarketing Price" means (i) with respect to the Preferred Securities, a
price equal to 100.25% of the aggregate outstanding Liquidation Amount of the
Preferred Securities and (ii) with respect to the Senior Notes, a price equal to
100.25% of the aggregate outstanding principal amount of such Senior Notes.
"Remarketing Settlement Date" means the third Business Day immediately
following the Reset Date.
"Renewed Remarketing" has the meaning set forth in Section 7.
"Replacement Preferred Securities" has the meaning set forth in Section
5.(j).
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"Replacement Securities" has the meaning set forth in Section 5(j).
"Replacement Senior Notes" has the meaning set forth in Section 5(j).
"Representation Date" has the meaning set forth in Section 2(a).
"Requesting Holders" has the meaning set forth in Section 5(a)(i).
"Reset Date" means any date established as a Reset Date pursuant to Section
5.
"Reset Rate" means the Winning Bid Rate.
"Secondary Purchase Agreement" means an agreement to be dated as of the
Reset Date (or such other date permitted by applicable law) among the Company,
the Trust (if applicable), the Guarantor, the Remarketing Agent and the
Secondary Purchaser providing for the purchase of the Preferred Securities, or
the Senior Notes, as the case may be, by the Secondary Purchaser, in a form
customary for transactions of this type and as otherwise agreed among the
Company, the Trust (if applicable), the Guarantor, the Remarketing Agent and the
Secondary Purchaser.
"Secondary Purchaser" has the meaning set forth in Section 5(c).
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Notes" has the meaning set forth in the second recital hereto.
"Transaction Documents" means this Agreement, the Purchase Agreement, the
Trust Agreement, the Guarantee Agreement, the Indenture, the Common Securities,
the Forward Underwriting Agreement, the Secondary Purchase Agreement, the
Preferred Securities and the Senior Notes; provided that for any representation
made as of the date hereof pursuant to Section 2(b), Transaction Documents means
this Agreement, the Purchase Agreement, the Trust Agreement, the Guarantee
Agreement, the Indenture, the Common Securities, the Forward Underwriting
Agreement, the Preferred Securities and the Senior Notes.
"Trigger Event" has the meaning set forth in Section 5(a)(i).
"Trigger Price" has the meaning set forth in Section 10.
"Trust" has the meaning set forth in the initial paragraph hereto.
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"Trust Agreement" has the meaning set forth in the first recital hereto.
"Trust Securities" has the meaning set forth in the first recital hereto.
"Winning Bid Rate" has the meaning set forth in Section 5(b).
"Voting Shares" means capital stock of the Guarantor having ordinary voting
power for the election of directors.
Section 2. Representations and Warranties. (a) Basic Warranties. Each of
the Company, the Guarantor and the Trust, on the one hand, and the Remarketing
Agent, on the other hand, represents and warrants to the other, as of the date
hereof, the Reset Date and the Remarketing Settlement Date (each of the
foregoing dates being hereinafter referred to as a "Representation Date"), that:
(i) Status. It is a duly and validly existing entity under the laws
of the jurisdiction of its creation, formation or incorporation and, if
relevant under such laws, in good standing.
(ii) Powers. It has the corporate or trust power and authority to
execute, enter into and perform its obligations under, or contemplated
under, this Agreement and consummate the transactions contemplated hereby.
(iii) No Violation or Conflict. The execution, delivery and
performance by such party of this Agreement, the consummation of the
transactions herein contemplated and compliance by such party with its
obligations hereunder (A) do not violate or conflict with (1) any provision
of its organizational documents, (2) any law applicable to it, any order or
judgment of any court or other agency of government applicable to it or any
of its assets that affects the legality, validity or enforceability of this
Agreement and (B) do not and will not conflict with or constitute a breach
of any material contractual restriction binding on or affecting it or any
of its assets.
(iv) Consents. All governmental and other material consents that are
required to have been obtained by it with respect to the performance by
such party of its obligations under this Agreement have been obtained and
are in full force and effect and all conditions of any such consents have
been complied with.
(v) Obligations Binding. Its obligations under this Agreement
constitute its legal, valid and binding obligations, enforceable against it
in
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accordance with the terms of this Agreement, except as the enforcement
hereof may be limited by bankruptcy, insolvency, reorganization, moratorium
or other laws of general application relating to or affecting the
enforcement of creditors' rights or by general equitable principles.
(vi) Absence of Litigation. There is not pending or, to the best of
its knowledge, threatened against or affecting it or any of its Affiliates
any action, suit or proceeding at law or in equity or before any court,
tribunal, governmental body, agency or official or any arbitrator that
could reasonably be expected to materially and adversely affect the
legality, validity or enforceability against it of this Agreement or its
ability to perform its obligations under this Agreement.
(vii) Non-Reliance. It is acting for its own account, and it has made
its own independent decision to enter into this Agreement and as to whether
this Agreement is appropriate or proper for it based upon its own judgment
and upon advice from such advisers as it has deemed necessary. It is not
relying on any communication (written or oral) of any other party as
investment advice or as a recommendation to enter into this Agreement, it
being understood that information and explanations related to the terms and
conditions of this Agreement shall not be considered investment advice or a
recommendation to enter into this Agreement. No communication (written or
oral) received from any other party shall be deemed to be an assurance or
guarantee as to the expected results of this Agreement. No other party is
acting as a fiduciary for or an adviser to it with respect to this
Agreement.
(viii) Assessment and Understanding. It is capable of assessing the
merits of and understanding (on its own behalf or through independent
professional advice), and understands and accepts, the terms, conditions
and risks of this Agreement. It is also capable of assuming, and assumes,
the risks of this Agreement.
(b) Representations and Warranties of the Company, the Guarantor and the
Trust. Each of the Company, the Guarantor and the Trust further represents and
warrants to the Remarketing Agent as of each Representation Date, as applicable
to each such entity, that:
(i) Securities Validly Issued. The Preferred Securities and Senior
Notes have been, and the Replacement Preferred Securities and the
Replacement Senior Notes will be, validly authorized and executed by the
Trust or the Company, as the case may be, and authenticated, issued and
delivered in the manner provided for in the Trust Agreement or the
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Indenture, as the case may be, and delivered against payment of the
purchase price therefor as provided in the Purchase Agreement and the
Senior Note Purchase Agreement, and constitute, or will constitute, legally
binding obligations of the Trust or the Company, as the case may be,
entitled to the benefits of the Trust Agreement or Indenture, as the case
may be.
(ii) No Event of Default. No Event of Default under the Trust
Agreement and no Event of Default under the Indenture has occurred and is
continuing and no such event or circumstance would occur as a result of its
entering into or performing its obligations under this Agreement.
(iii) Compliance with Exchange Act Requirements. The Guarantor has
made all the filings with the Commission that it is required to make under
the Exchange Act and the Exchange Act Regulations, and each such filing
complies in all material respects with the requirements of the Exchange Act
and Exchange Act Regulations.
(iv) No Material Misstatements. The Guarantor's most recent Annual
Report on Form 10-K, and its Quarterly Reports on Form 10-Q and Current
Reports on Form 8-K filed after the end of the fiscal year to which such
Annual Report relates (collectively, the "1934 Act Reports"), as
supplemented by material press releases, at the time they were filed did
not contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(v) No Material Adverse Change. Since the respective dates as of
which information is given in the 1934 Act Reports, except as otherwise
stated therein, there has been no Material Adverse Change.
(vi) Not an Investment Company. None of the Company, the Guarantor
and the Trust is an "investment company" or an entity "controlled" by an
"investment company" as such terms are defined in the Investment Company
Act.
Section 3. Covenants. (a) Each of the Company and the Guarantor hereby
covenants with the Remarketing Agent as follows:
(i) Maintain Authorizations. It shall use its reasonable best
efforts to maintain in full force and effect all consents of any governmental or
other authority that are required to be obtained by it with respect to this
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Agreement and shall use its reasonable best efforts to obtain any such
consents that may become necessary in the future.
(ii) Comply with Laws. It shall comply in all material respects with
all applicable laws and orders to which it may be subject if failure so to
comply would materially impair its ability to perform its obligations under
this Agreement.
(iii) Furnish Documentation. It will furnish to the Remarketing Agent:
(i) unless available to the Remarketing Agent on ▇▇▇▇▇ or the Guarantor's
website, each document filed after the date hereof by the Guarantor
pursuant to the periodic reporting requirements of the Exchange Act and
(ii) in connection with the remarketing of the Preferred Securities or
Senior Notes, as the case may be, such other information as the Remarketing
Agent may reasonably request from time to time. Notwithstanding the
foregoing sentence, the Guarantor agrees to provide the Remarketing Agent
with as many copies of the foregoing written materials and other
information as the Remarketing Agent may reasonably request for use in
connection with the remarketing of the Preferred Securities or Senior
Notes, as the case may be, and consents to the use thereof for such
purpose.
(iv) Notification. If, at any time after a Trigger Event and prior to
the Remarketing Settlement Date, any event or condition known to the
Company or the Guarantor relating to or affecting the Company, the
Guarantor, the Preferred Securities or the Senior Notes shall occur that
could reasonably be expected to cause any of the reports, documents,
materials or information referred to in Section 3(a)(iii) or any document
incorporated therein by reference to contain an untrue statement of a
material fact or omit to state a material fact, it shall promptly notify
the Remarketing Agent in writing of the then-known circumstances and
details of such event or condition.
(v) Comply with Securities Laws. It will comply with the Securities
Act and the rules and regulations of the Commission thereunder, the
Exchange Act and the Exchange Act Regulations in connection with the
completion of the remarketing of the Preferred Securities or Senior Notes,
as the case may be, as contemplated in this Agreement.
(vi) No Purchase of Securities. Neither it nor any of its
subsidiaries or Affiliates shall purchase or otherwise acquire, or enter
into any agreement to purchase or otherwise acquire, any of the Preferred
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Securities or Senior Notes prior to the remarketing thereof by the
Remarketing Agent, other than pursuant to this Agreement.
(vii) Notification of Rating Agency Action. It will provide prompt
notice by telephone, confirmed in writing (which may include facsimile or
other electronic transmission), to the Remarketing Agent of any
notification or announcement by a "nationally recognized statistical rating
organization" (as defined by the Commission for purposes of Rule 436(g)(2)
under the Securities Act) with regard to a downgrade or withdrawal of the
rating of any security of the Company or the Guarantor or the placement on
what is currently called a "watch list"or a "credit watch" with negative
implications of any security of the Company or the Guarantor.
(viii) Restriction on Debt Issuance. During the period commencing on
the date on which the Remarketing Agent delivers a Remarketing Notice in
accordance with Section 5(a)(i) and ending on the earlier of (A) the
related Remarketing Settlement Date or (B) the date of the related Failed
Remarketing, it will not, without the consent of the Remarketing Agent,
offer, sell or contract to sell, or otherwise dispose of, directly or
indirectly, or announce the offering of, any debt securities with a
maturity of more than one year but fewer than three years.
(ix) Reasonable Best Efforts. It shall use its reasonable best
efforts to assist the Remarketing Agent in remarketing the Preferred
Securities or the Senior Notes, as the case may be, in the manner
contemplated by this Agreement.
(b) The Remarketing Agent hereby covenants with the Company, the Guarantor
and the Trust as follows:
(i) Maintain Authorizations. The Remarketing Agent will use its
reasonable best efforts to maintain in full force and effect all consents
of any governmental or other authority that are required to be obtained by
it with respect to this Agreement and shall use its reasonable best efforts
to obtain any that may become necessary in the future.
(ii) Comply with Laws. the Remarketing Agent shall comply with all
applicable laws and orders which it may be subject if failure so to comply
would materially impair its ability to perform its obligations under this
Agreement.
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Section 4. Appointment and Obligations of Remarketing Agent and Calculation
Agent; Secondary Purchaser. (a) The Company and the Trust hereby appoint BAS as
Remarketing Agent and as Calculation Agent under the Trust Agreement and the
Indenture (i) to determine, in accordance with the terms described in Section 5,
the Reset Rate that, when applied to the Preferred Securities (or, following the
distribution of the Senior Notes to Holders of the Preferred Securities upon
termination of the Trust, the Senior Notes), shall result in the resale of all
outstanding Preferred Securities (or, if applicable, all outstanding Senior
Notes), at a sales price equal to the Remarketing Price; provided that the Reset
Rate shall in no event exceed the rate permitted by applicable law, (ii to
conduct a private auction of all outstanding Preferred Securities or Senior
Notes, as the case may be, and (ii to enter into a Secondary Purchase Agreement
with respect to the Preferred Securities or the Senior Notes, as the case may
be. BAS hereby accepts its appointment as Remarketing Agent and Calculation
Agent under the Trust Agreement and the Indenture.
(b) Pursuant to the Secondary Purchase Agreement, the Secondary Purchaser,
either as the sole purchaser or as the representative of a syndicate of
purchasers designated by the Secondary Purchaser, shall agree, subject to the
terms and conditions set forth therein, that the Secondary Purchaser and any
such other purchasers shall purchase such Preferred Securities or Senior Notes,
as the case may be, from the holders thereof at a price equal to the Remarketing
Price.
Section 5. Determination of Reset Date; Remarketing Procedures.
(a) (i) Subject to Section 7, if (x) the Closing Price of the Common Shares
on any Trading Day is less than the Trigger Price or (y) a Cross Default occurs
(each, a "Trigger Event"), the Holders of a Majority in Liquidation Amount of
the Trust Securities (or, if applicable, the holders of a majority in principal
amount of the Senior Notes), acting together as a single class (the "Requesting
Holders"), will have the right to require remarketing of the Trust Securities
(or, if applicable, the Senior Notes). The Requesting Holders may exercise this
right by delivering a written notice to the Remarketing Agent at any time on or
prior to the sixth Business Day following the date on which such Trigger Event
occurs. Upon the receipt of such notice, the Remarketing Agent shall immediately
deliver a written notice to the Company on behalf of the Requesting Holders (the
"Remarketing Notice"). If the Requesting Holders exercise their right to require
the remarketing of the Preferred Securities (or, if applicable, the Senior
Notes), the Reset Date shall be the sixth Business Day after the date on which
the Remarketing Notice is delivered by the Remarketing Agent (the "Expected
Reset Date").
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(ii) If the Requesting Holders do not exercise their right to require
the remarketing of the Preferred Securities (or, if applicable, the Senior
Notes) pursuant to Section 5 above with respect to any Trigger Event, the
Requesting Holders shall have the right to require the remarketing of the
Preferred Securities (or, if applicable, the Senior Notes) in accordance with
Section 5 with respect to any subsequent Trigger Event.
(iii) Notwithstanding Section 5(a)(i):
(A) the Company may, by notice to the Remarketing Agent,
direct that the Reset Date be delayed if the Company believes it will
be unable to meet the conditions to Remarketing in the absence of such
a delay; and
(B) the Remarketing Agent may, by notice to the Company,
direct that the Reset Date be delayed if the Remarketing Agent
believes that a Remarketing will not be successful in the absence of
such a delay;
provided that the Company and the Remarketing Agent, in either such event,
will use their reasonable best efforts to establish a delayed Reset Date
that is within five Business Days after the Expected Reset Date, but in no
event later than the 15th Business Day following the date on which the
related Remarketing Notice was delivered, or the 20th Business Day in the
case of a Renewed Remarketing to which the provisions of Section 7 apply
(as applicable, the "Final Reset Date").
(iv) If the Company and the Remarketing Agent have not agreed, on or
prior to the sixth Business Day preceding the Final Reset Date, to a Reset
Date that is not later than the Final Reset Date, a Failed Remarketing
shall be deemed to have occurred.
(b) The Company shall, by notice to the Remarketing Agent no later than
five Business Days prior to the Reset Date, select and specify five Reference
Corporate Dealers. By 3:00 p.m., New York City time, on the Reset Date, the
Remarketing Agent shall request Bids from such Reference Corporate Dealers. The
Remarketing Agent or an Affiliate or Associated Person thereof (any such person,
an "Affiliated Bidder") may, at its option, enter a Bid. The Remarketing Agent
shall disclose to the Company the Bids obtained and determine the lowest Bid
Rate (the "Winning Bid Rate") from among the Bids obtained on the Reset Date. By
approximately 4:30 p.m., New York City time, on the Reset Date, the Remarketing
Agent shall notify the Company, the Indenture Trustee and the
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Property Trustee of the Winning Bid Rate. If on a Reset Date, Bids are not
submitted by at least two Reference Corporate Dealers, or if the lowest Bid
submitted would result in a Winning Bid Rate in excess of the rate permitted by
applicable law, the Remarketing shall be deemed to be a Failed Remarketing on
the corresponding Remarketing Settlement Date. The Winning Bid Rate determined
by the Remarketing Agent, absent manifest error, shall be binding and conclusive
upon the Holders of the Trust Securities, the holders of the Senior Notes, the
Company, the Guarantor, the Indenture Trustee, the Property Trustee and the
Trust.
(c) On the Reset Date, the Remarketing Agent shall designate as the
Secondary Purchaser (the "Secondary Purchaser") the Reference Corporate Dealer
providing the Bid containing the Winning Bid Rate. If the Winning Bid Rate is
specified in the Bids submitted by two or more bidders, the Remarketing Agent
shall, in consultation with the Company, designate one of such bidders as the
Secondary Purchaser.
(d) On the Reset Date, the Secondary Purchaser shall enter into a Secondary
Purchase Agreement for the purchase by such Secondary Purchaser at the
Remarketing Price of the aggregate Liquidation Amount of Preferred Securities,
with (i) a Distribution Rate equal to the Winning Bid Rate (or, if Senior Notes
shall have been distributed to Holders of the Trust Securities, the aggregate
principal amount of Senior Notes with an interest rate equal to the Winning Bid
Rate) and (ii a Mandatory Redemption Date (or, in the case of Senior Notes, a
maturity date) on the Remarketed Maturity Date.
(e) If a Remarketing shall have occurred pursuant to this Section 5 but
settlement of the purchase and sale of the Preferred Securities or Senior Notes,
as the case may be, does not occur on the corresponding Remarketing Settlement
Date, then, unless the provisions of Section 7 with respect to a Renewed
Remarketing shall apply, a Failed Remarketing shall be deemed to have occurred
on such Remarketing Settlement Date.
(f) At the time and in the manner specified in the Secondary Purchase
Agreement, the Secondary Purchaser shall pay on the Remarketing Settlement Date
to the Remarketing Agent on behalf of the holders of the Preferred Securities or
Senior Notes, as the case may be, an amount of cash equal to the Remarketing
Price.
(g) Unless otherwise agreed among the Remarketing Agent, the paying agent
(under the Trust Agreement or Indenture, as applicable) and any Former Holder,
the Remarketing Agent shall promptly pay the Remarketing Price, less the
Remarketing Fee, to the paying agent, acting solely as agent for the Former
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Holders, and the paying agent shall pay such amount to the Former Holders on the
Remarketing Settlement Date in the manner specified in the Trust Agreement or
the Indenture, as the case may be. Any amounts held by the paying agent for
payment to the Former Holders shall not be property of the Trust or the Company,
as the case may be.
(h) The obligation of the Remarketing Agent to make payment to the Former
Holders in connection with the Remarketing shall be limited to the extent that
the Secondary Purchaser has delivered the Remarketing Price therefor to the
Remarketing Agent.
(i) Any outstanding Preferred Securities (or, if applicable, the Senior
Notes) purchased on the Remarketing Settlement Date shall be deemed to be
transferred to the Secondary Purchaser and shall be replaced in the manner
provided in Section 5. After the Remarketing Settlement Date (except in the
event of (i) a Failed Remarketing or (ii) a failure by the Trust to pay on the
Remarketing Settlement Date all accrued and unpaid Distributions (including any
Additional Distributions) to such Remarketing Settlement Date (or, in the case
of the Senior Notes, a failure by the Company to pay on the Remarketing
Settlement Date all accrued interest (including any Additional Interest) on the
Senior Notes to such Remarketing Settlement Date)), (i) the Trust (or the
Company, in the case of the Senior Notes) shall make no further payments to, and
the Trust (or the Company, in the case of the Senior Notes) shall have no
further obligations under the Trust Agreement (or the Indenture, in the case of
the Senior Notes) in respect of, the holders of such replaced securities (the
"Former Holders"), (ii the Trust (or the Company, in the case of the Senior
Notes) shall only be obligated to make payments to the holders of Replacement
Securities and (ii the Preferred Securities (or, if applicable, the Senior
Notes) of the Former Holders shall no longer represent an obligation of, or
interest in, the Trust (or the Company, in the case of the Senior Notes) but
shall only represent a right to receive the proceeds of the Remarketing from the
paying agent under the Trust Agreement or the Indenture, as the case may be.
(j) (i) The Company shall cause replacement certificates evidencing the
remarketed Preferred Securities (the "Replacement Preferred Securities") to be
executed by an Administrative Trustee on behalf of the Trust and authenticated
by the Property Trustee and (ii the Company shall cause replacement certificates
evidencing the Senior Notes (the "Replacement Senior Notes", and together with
the Replacement Preferred Securities, the "Replacement Securities") to be
executed by an authorized signatory and authenticated by the Indenture Trustee,
in each case, in accordance with the provisions of Section 5. If the Preferred
Securities are to be purchased on the Remarketing Settlement Date, (A) the
Replacement Preferred Securities shall be delivered to the purchaser of the
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remarketed Preferred Securities in accordance with the terms of the Secondary
Purchase Agreement and (B) the Replacement Senior Notes shall be delivered to
the Trust. If the Senior Notes are to be purchased on the Remarketing Settlement
Date, the Replacement Senior Notes shall be delivered to the purchaser of the
remarketed Senior Notes in accordance with the terms of the Secondary Purchase
Agreement.
Section 6. Reset of Distribution Rate, Mandatory Redemption Date, Interest
Rate and Maturity Date. Unless a Failed Remarketing shall have occurred, from
and including the Remarketing Settlement Date on which Replacement Securities
are issued, (a) the Distribution Rate on the Trust Securities and the interest
rate on the Senior Notes shall be the Winning Bid Rate and (b) the Mandatory
Redemption Date and the maturity date of the Senior Notes shall be the
Remarketed Maturity Date.
Section 7. Renewed Remarketing. If a Remarketing has occurred pursuant to
Section 5 that would be a Failed Remarketing pursuant to Section 5 because the
purchase and sale of the Preferred Securities (or, if applicable, the Senior
Notes) do not take place on the corresponding Remarketing Settlement Date, and
the reason for such failure shall, in the good faith determination of the
Remarketing Agent (made after consultation with the Sponsor), result from facts
or circumstances that are not due to the action or inaction of the Company, then
the provisions of Section 5 shall apply to a second remarketing (a "Renewed
Remarketing") of the Preferred Securities (or, if applicable, the Senior Notes),
except that the Expected Reset Date shall be the sixth Business Day following
such corresponding Remarketing Settlement Date; provided that only one Renewed
Remarketing may occur pursuant to this Section 7, and no Renewed Remarketing
shall occur after the Final Reset Date.
Section 8. Remarketing Fee. With respect to the Remarketing, the
Remarketing Agent shall retain as a remarketing fee (the "Remarketing Fee") an
amount equal to 25 basis points (.25%) of the aggregate Liquidation Amount of
the remarketed Preferred Securities or 25 basis points (.25%) of the aggregate
principal amount of the Senior Notes, as the case may be, from the purchase
price received in connection with such Remarketing.
Section 9. Failed Remarketing; Contingent Purchase Obligation. The
Remarketing Agent shall give notice of any Failed Remarketing on the date such
Failed Remarketing occurs, or is deemed to have occurred, by 4:00 p.m., New York
City time, to the Company, the Property Trustee, the Indenture Trustee and the
paying agent under the Indenture. In the case of (i) any Failed Remarketing or
(ii) a Change of Control, the Holders of a Majority in Liquidation Amount of the
Trust Securities (or, if applicable, the holders of a majority in principal
amount of
15
the Senior Notes) may, by notice in writing to the Company, which notice, in the
case of a Failed Remarketing, shall be given not later than 15 days after the
occurrence of such Failed Remarketing, require the Company to purchase from the
holders thereof, on a Pro Rata basis in accordance with Section 9 of Annex I to
the Trust Agreement, all outstanding Trust Securities (or, if applicable, all
outstanding Senior Notes) for a purchase price equal to the aggregate
Liquidation Amount of such Trust Securities plus accrued but unpaid
Distributions thereon (or, if applicable, the aggregate principal amount of such
Senior Notes plus accrued but unpaid interest thereon). Payment of such purchase
price shall be made directly to each such holder on the tenth Business Day
following the date of the notice to the Company pursuant to the preceding
sentence. Such purchase shall be without recourse of any kind to any such
holder. The parties recognize that the occurrence of a Failed Remarketing
indicates that it would not be commercially reasonable under the circumstances
to require Holders of Trust Securities (or, if applicable, holders of the Senior
Notes) to attempt to resell such securities otherwise than pursuant to this
Section 9, and that therefore in the event of any default by the Company in its
obligations under this Section 9, a holder shall be entitled to recover the
price of the securities specified herein.
Section 10. Adjustments to Trigger Price. The "Trigger Price" shall
initially be $13.50. Following the determination by the Remarketing Agent in its
reasonable discretion that a Potential Adjustment Event has occurred, the
Remarketing Agent shall determine (after consultation with the Guarantor)
whether such Potential Adjustment Event has a dilutive or concentrative effect
on the theoretical value of the Common Shares and, if so, shall make the
corresponding adjustment(s), if any, to the Trigger Price. The Guarantor shall
promptly notify the Remarketing Agent of any Potential Adjustment Event. The
Remarketing Agent may, but need not, determine the appropriate adjustment(s) by
reference to the adjustment(s) in respect of such Potential Adjustment Event
made by an options exchange to options on the Common Shares traded on that
options exchange. In the event of any merger, consolidation or reorganization of
the Guarantor, the Remarketing Agent shall determine (after consultation with
the Guarantor) the appropriate Trigger Price as a result of such event.
Section 11. Replacement and Resignation of Remarketing Agent. (a) The
Company shall not have the right to replace BAS as the Remarketing Agent, except
in the case of bad faith, gross negligence or willful misconduct by BAS.
(b) BAS may resign at any time for good reason (after consultation with the
Company) and, subject to the following sentence, shall be discharged from its
duties and obligations hereunder or as Calculation Agent under the Trust
Agreement and the Indenture by giving no less than 10 days' written notice to
the Company. Any such resignation shall become effective upon the Company's
16
appointment of a successor to perform the services that would otherwise be
performed hereunder by the Remarketing Agent or the Calculation Agent under the
Trust Agreement and the Indenture, as the case may be, and the agreement of any
such successor so to serve. Upon receiving written notice from the Remarketing
Agent that it wishes to resign hereunder or as Calculation Agent under the Trust
Agreement and the Indenture stating the reasons for such resignation, the
Company shall appoint such a successor, notify the Indenture Trustee and the
Property Trustee of such appointment and enter into a new remarketing agreement
with such a successor as soon as reasonably practicable.
(c) This Agreement shall terminate as to any Remarketing Agent that is
replaced on the effective date of its replacement pursuant to Section 11.
Notwithstanding any such termination, the obligations of the Company set forth
in Section 15 shall survive and remain in full force and effect until all
amounts payable under said Section 15 shall have been paid in full.
Section 12. Dealing in the Securities. BAS, when acting as Remarketing
Agent hereunder or under the Secondary Purchase Agreement or when acting in its
individual or any other capacity, may, to the extent permitted by law, buy,
sell, hold or deal in any of the Preferred Securities or Senior Notes. The
Remarketing Agent may exercise any vote or join in any action with respect to
any Preferred Securities or Senior Notes owned by it with like effect as if it
did not act in any capacity hereunder. BAS, in its individual capacity, either
as principal or agent, may also engage in or have an interest in any financial
or other transaction with the Company as freely as if it did not act in any
capacity hereunder.
Section 13. Offering Memorandum. As soon as reasonably practicable
following a Trigger Event, the Company shall furnish an offering memorandum (the
"Offering Memorandum") to the Remarketing Agent, in form and substance
reasonably satisfactory to the Remarketing Agent, to be used in the remarketing
by the Secondary Purchaser or purchasers under the Secondary Purchase Agreement,
and shall pay all expenses relating to the preparation and furnishing of such
Offering Memorandum.
Section 14. Conditions to the Remarketing Agent's Obligations. (a) The
obligations of the Remarketing Agent, the Secondary Purchaser and any other
purchasers to perform their respective obligations hereunder and under the
Secondary Purchase Agreement shall be subject to the terms and conditions of the
Secondary Purchase Agreement.
(b) If, at any time during the term of this Agreement, any Event of Default
under the Indenture or any Event of Default under the Trust Agreement, or event
that with the passage of time or the giving of notice or both would
17
become an Event of Default under the Indenture or an Event of Default under the
Trust Agreement, has occurred and is continuing under the Indenture or the Trust
Agreement, then the obligations and duties of the Remarketing Agent under this
Agreement shall be suspended until such default or event has been cured. The
Trust shall cause the Property Trustee to provide to the Remarketing Agent
notice of all such defaults and events of which the Property Trustee is aware
and the Company shall cause the Indenture Trustee to provide to the Remarketing
Agent notice of all such defaults and events of which the Indenture Trustee is
aware.
Section 15. Indemnification. The Company shall indemnify and hold harmless
the Remarketing Agent and its officers and employees from and against all
actions, claims, damages, liabilities and losses, and costs and expenses related
thereto (including reasonable legal fees and costs), relating to or arising out
of actions or omissions in any capacity hereunder and in any capacity as
Calculation Agent under the Trust Agreement and the Indenture, except actions,
claims, damages, liabilities, losses, costs and expenses to the extent caused by
(a) the bad faith, gross negligence or wilful misconduct of such indemnified
party or (b) the breach by the Remarketing Agent of its representations,
warranties and covenants hereunder. This Section 15 shall survive the
termination of the Agreement, the Trust Agreement, the Indenture and the payment
in full of all obligations under the Preferred Securities or the Senior Notes,
as the case may be, and this Agreement, whether by purchase, repurchase,
redemption or otherwise.
Section 16. Remarketing Agent's Performance: Duty of Care; Power of
Attorney. The duties and obligations of the Remarketing Agent hereunder shall be
determined solely by the express provisions of this Agreement and the Secondary
Purchase Agreement.
The Remarketing Agent hereby accepts the obligation set forth in the Trust
Agreement and the Indenture to act as attorney-in-fact for the holders of the
Preferred Securities or Senior Notes, as the case may be.
Section 17. Expenses. The Company shall pay the reasonable fees and
disbursements of the Remarketing Agent's counsel incurred in connection with any
Remarketing, including any Renewed Remarketing and any Failed Remarketing, and
the Company shall pay the reasonable fees, expenses and disbursements of the
Remarketing Agent and its counsel in connection with the execution and delivery
of the Secondary Purchase Agreement.
Section 18. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York without reference
to the choice of law rules thereof.
18
Section 19. Term of Agreement. Unless otherwise terminated in accordance
with the provisions hereof and except as otherwise provided herein, this
Agreement shall remain in full force and effect from the date hereof until 30
days after the earlier of (i) the date all Preferred Securities (or, if
applicable, Senior Notes) shall have been redeemed or purchased pursuant to
Section 9 hereof and (ii) the Reset Date in connection with a Remarketing that
is not a Failed Remarketing.
Section 20. Successors and Assigns. The rights and obligations of the
Company and the Guarantor hereunder may not be assigned or delegated to any
other person without the prior written consent of the Remarketing Agent. Subject
to the provisions of Section 11, the rights and obligations of the Remarketing
Agent hereunder may not be assigned or delegated to any other person without the
prior written consent of the Company. This Agreement shall inure to the benefit
of and be binding upon the Trust, the Company, the Guarantor and the Remarketing
Agent and their respective successors and assigns. The terms "successors" and
"assigns" shall not include any purchaser of Preferred Securities or Senior
Notes merely as a result of such purchase. This Agreement shall inure to the
benefit of the Holders of the Preferred Securities (or, if applicable, holders
of the Senior Notes).
Section 21. Headings. Section headings have been inserted in this Agreement
as a matter of convenience of reference only, and it is agreed that such section
headings are not a part of this Agreement and shall not be used in the
interpretation of any provision of this Agreement.
Section 22. Severability. If any provision of this Agreement shall be held
or deemed to be or shall, in fact, be invalid, inoperative or unenforceable as
applied in any particular case in any or all jurisdictions because it conflicts
with any provisions of any constitution, statute, rule or public policy or for
any other reason, such circumstances shall not have the effect of rendering the
provision in question invalid, inoperative or unenforceable in any other case,
circumstances or jurisdiction, or of rendering any other provision or provisions
of this Agreement invalid, inoperative or unenforceable to any extent
whatsoever.
Section 23. Counterparts. This Agreement may be executed in counterparts,
each of which shall be regarded as an original and all of which shall constitute
one and the same document.
Section 24. Amendments. This Agreement may be amended by any instrument in
writing signed by the parties hereto; provided that any amendment to Section 5
shall require the consent of all Holders of the Preferred Securities (or,
following the distribution of Senior Notes to Holders of the Preferred
Securities
19
upon termination of the Trust, the Senior Notes).
Section 25. Notices. Unless otherwise specified, any notices, requests,
consents or other communications given or made hereunder or pursuant hereto
shall be made in writing or transmitted by any standard form of
telecommunication, including telephone, telegraph or telecopy, and confirmed in
writing. All written notices and confirmations of notices by telecommunication
shall be deemed to have been validly given or made when delivered or mailed,
registered or certified mail, return receipt requested and postage prepaid. All
such notices, requests, consents or other communications shall be addressed as
follows:
if to the Company, to:
Mutual Group Ltd.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
if to the Guarantor, to:
Mutual Risk Management Ltd.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
if to the Trust, to:
MRM Capital Trust I
c/o Mutual Group Ltd.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
and if to the Remarketing Agent, to:
Banc of America Securities LLC
20
▇ ▇▇▇▇ ▇▇/▇▇/ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
or to such other address as any of the above shall specify to the other in
writing.
Section 26. Guarantee. The Guarantor hereby unconditionally guarantees to
the Remarketing Agent and each holder of a Trust Security (or, if applicable, of
a Senior Note) the due and punctual payment of all amounts payable by the
Company pursuant to this Agreement, when and as the same shall become due and
payable in accordance with the terms hereof, and the due and punctual
performance by the Company of all other obligations of the Company under this
Agreement. In case of the failure of the Company punctually to pay any amount
payable by it hereunder, the Guarantor hereby agrees to cause such payment to be
made punctually when and as the same shall become due and payable, as if such
payment were made by the Company.
Section 27. Submission to Jurisdiction. The Guarantor agrees that any
judicial proceedings instituted in relation to any matter arising under any
Transaction Document may be brought in any United States Federal or New York
State court sitting in the Borough of Manhattan, The City of New York, New York
to the extent that such court has subject matter jurisdiction over the
controversy, and, by execution and delivery of this Agreement, the Guarantor
hereby irrevocably accepts, generally and unconditionally, the jurisdiction of
the aforesaid courts, acknowledges their competence and irrevocably agrees to be
bound by any judgment rendered in such proceeding. The Guarantor also
irrevocably and unconditionally waives for the benefit of the Remarketing Agent
and the Holders from time to time of the Trust Securities (or, if applicable,
the Senior Notes) any immunity from jurisdiction and any immunity from legal
process (whether through service or notice, attachment prior to judgment,
attachment in the aid of execution, execution or otherwise) in respect of any
Transaction Document. The Guarantor hereby irrevocably designates and appoints
for the benefit of the Remarketing Agent and the Holders from time to time of
the Trust Securities for the term of this Agreement CT Corporation, ▇▇▇ ▇/▇▇/
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Telephone: ▇▇▇-▇▇▇-▇▇▇▇, as its agent to
receive on its behalf service of all process (with a copy of all such service of
process to be delivered to Mutual Risk Management Ltd., ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Telephone: ▇▇▇-▇▇▇-▇▇▇▇,
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇) brought against it with respect to any such proceeding
in any such court in The City of New York, such service being hereby
acknowledged by the Guarantor to be effective and binding service on it in
21
every respect whether or not the Guarantor, as the case may be, shall then be
doing or shall have at any time done business in New York. Such appointment
shall be irrevocable so long as any of the obligations of the Guarantor
hereunder remain outstanding, or until the appointment of a successor by the
Guarantor, as the case may be, and such successor's acceptance of such
appointment. Upon such acceptance, the Guarantor shall notify the Remarketing
Agent of the name and address of such successor. The Guarantor further agrees
for the benefit of the Remarketing Agent and the Holders from time to time of
the Trust Securities to take any and all action, including the execution and
filing of any and all such documents and instruments, as may be necessary to
continue such designation and appointment of said agent in full force and effect
so long as any of the obligations of the Guarantor hereunder shall be
outstanding. The Remarketing Agent shall not be obligated and shall have no
responsibility with respect to any failure by the Guarantor to take any such
action. Nothing herein shall affect the right to serve process in any other
manner permitted by any law or limit the right of the Remarketing Agent or any
Holder to institute proceedings against the Guarantor in the courts of any other
jurisdiction or jurisdictions.
Section 28. Judgment Currency. All payments by the Company or the Guarantor
hereunder shall be made in lawful currency of the United States of America
("Dollars"). The Guarantor agrees, to the fullest extent that it may effectively
do so under applicable law, that (a) if for the purpose of obtaining judgment in
any court it is necessary to convert the sum due in Dollars into a currency in
which a judgment will be rendered (the "Judgment Currency"), the rate of
exchange used shall be the rate at which in accordance with normal banking
procedures the Remarketing Agent could purchase in The City of New York the
requisite amount of Dollars with the Judgment Currency on the Business Day
preceding the day on which a final unappealable judgment is given and (b) its
obligations under this Agreement to make payments in Dollars (i) shall not be
discharged or satisfied by any tender, or any recovery pursuant to any judgment
(whether or not entered in accordance with clause (a)), in any currency other
than the Dollars, except to the extent that such tender or recovery shall result
in the actual receipt, by the payee, of the full amount of the Dollars expressed
to be payable in respect of such payments, (ii) shall be enforceable as an
alternative or additional cause of action for the purpose of recovering in
Dollars the amount, if any, by which such actual receipt shall fall short of the
full amount of Dollars so expressed to be payable and (iii) shall not be
affected by judgment being obtained for any other sum due under this Agreement.
Section 29. Net Payments. All payments hereunder by the Guarantor
("Guarantee Payments") shall be made by the Guarantor without withholding or
deduction at source for, or on account of, any present or future taxes, fees,
duties, assessments or governmental charges of whatever nature imposed or levied
by or
22
on behalf of Bermuda (a "taxing jurisdiction") or any political subdivision or
taxing authority thereof or therein, unless such taxes, fees, duties,
assessments or governmental charges are required to be withheld or deducted by
(i) the laws (or any regulations or ruling promulgated thereunder) of a taxing
jurisdiction or any political subdivision or taxing authority thereof or therein
or (ii) an official position regarding the application, administration,
interpretation or enforcement of any such laws, regulations or rulings
(including, without limitation, a holding by a court of competent jurisdiction
or by a taxing authority in a taxing jurisdiction or any political subdivision
thereof). If a withholding or deduction at source is required, the Guarantor
shall, subject to certain limitations and exceptions set forth below, pay to the
Holder of any Security (or, if applicable, Senior Note) such Additional Amounts
(as defined below) as may be necessary so that every net Guarantee Payment,
after such withholding or deduction, shall not be less than the amount due and
payable pursuant to this Agreement; provided, however, that the Guarantor shall
not be required to make payment of such Additional Amounts for or on account of:
(1) any tax, fee, duty, assessment or governmental change of whatever
nature which would not have been imposed but for the fact that such Holder: (A)
was a resident, domiciliary or national of, or engaged in business or maintained
a permanent establishment or was physically present in, the taxing jurisdiction
or any political subdivision thereof or otherwise had some connection with the
taxing jurisdiction other than by reason of the mere ownership of such Security
or receipt of a Guarantee Payment; (B) presented such Security for payment in
the taxing jurisdiction or any political subdivision thereof, unless such
Security could not have been presented for payment elsewhere; or (C) presented
such Security more than 30 days after the date on which the payment in respect
of such Security first became due and payable or provided for, whichever is
later, except to the extent that the Holder would have been entitled to such
Additional Amounts if it had presented such Security for payment on any day
within such period of 30 days;
(2) any estate, inheritance, gift, sale, transfer, personal property or
similar tax, fee, duty, assessment or other governmental charge;
(3) any tax, fee, duty, assessment or other governmental charge that is
imposed or withheld by reason of the failure by the Holder or the beneficial
owner of such Security to comply with any reasonable request by the Guarantor
addressed to the Holder or the beneficial owner of such Security within 90 days
of such request (A) to provide information concerning the nationality, residence
or identity of the Holder or such beneficial owner or (B) to make any
declaration or other similar claim or satisfy any information or reporting
requirement, which, in the case of (A) or (B), is required or imposed by
statute, treaty, regulation or
23
administrative practice of the taxing jurisdiction or any political subdivision
thereof as a precondition to exemption from all or part of such tax, fee, duty,
assessment or other governmental charge; or
(4) any combination of items (1), (2) and (3);
nor shall Additional Amounts be paid with respect to any Guarantee Payment to
any Holder who is a fiduciary or partnership or other than the sole beneficial
owner of such Security to the extent such payment would be required by the laws
of the taxing jurisdiction (or any political subdivision or taxing authority
thereof or therein) to be included in the income for tax purposes of a
beneficiary or partner or settlor with respect to such fiduciary or a member of
such partnership or a beneficial owner who would not have been entitled to such
Additional Amounts had it been the holder of the Security.
If any withholding for or on account of any tax, fee, duty, assessment or
other governmental charge described in this Section 29 shall be required in
connection with a Guarantee Payment, the Guarantor shall specify, in a
certificate to the Holder, by the taxing jurisdiction the amount, if any,
required to be withheld on such payments to such Holder, and the Guarantor
agrees to pay to such Holder the additional amounts required by this Section 29.
The Guarantor covenants to indemnify each Holder for, and to hold it harmless
against, any loss, liability or expense reasonably incurred without negligence
or bad faith on its part arising out of or in connection with actions taken or
omitted by it in reliance on any such certificate furnished pursuant to this
Section 29.
"Additional Amounts" means any additional amounts which are required
hereby, under circumstances specified herein, to be paid by the Guarantor in
respect of certain taxes, assessments or other governmental charges imposed on
Holders and which are owing to such Holders.
24
IN WITNESS WHEREOF, each of the Company, the Guarantor, the Trust and the
Remarketing Agent has caused this Remarketing Agreement to be executed in its
name and on its behalf by one of its duly authorized officers as of the date
first above written.
MUTUAL GROUP LTD.
By: /s/ ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇
Title: Vice President
MUTUAL RISK MANAGEMENT LTD.
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Secretary
MRM CAPITAL TRUST I
By: Mutual Group Ltd.
By: /s/ ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇
Title: Vice President
Confirmed and Accepted
as of the date hereof:
BANC OF AMERICA
SECURITIES LLC, not individually,
but solely as Remarketing Agent
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Managing Director
25