Exhibit 4.5
AMENDMENT NO. 1 TO
AMENDED AND RESTATED
TRUST AGREEMENT
This AMENDMENT NO. 1 (the "Amendment") is made as of May 8, 2001, by and
among the Administrative Trustees of MRM Capital Trust I, Mutual Group Ltd., a
Delaware corporation, as Sponsor and as holder of the Common Securities (the
"Sponsor"), and Intrepid Master Funding Trust, as holder of the Preferred
Securities.
WITNESSETH:
WHEREAS, certain of the Trustees and the Sponsor established MRM CAPITAL
TRUST I (the "Trust"), a trust created under the Business Trust Act (as defined
herein) pursuant to a Trust Agreement dated as of February 3, 2000 (the
"Original Agreement"), as amended and restated by the Amended and Restated Trust
Agreement dated as of September 21, 2000 (as amended and restated, the "Trust
Agreement");
WHEREAS, the parties hereto desire to amend the Trust Agreement as set
forth herein;
WHEREAS, the Trust Agreement provides for amendment of its terms, subject
to satisfaction of certain requirements, including the consent of all the
holders of the Preferred Securities and the Common Securities;
WHEREAS, all things necessary to make this Amendment a valid amendment and
agreement according to its terms have been done;
NOW THEREFORE, in consideration of their mutual covenants contained herein,
the parties hereto, intending to be legally bound, hereby mutually covenant and
agree as follows:
ARTICLE 1
AMENDMENTS
Section 1.01. Definitions. (a) Capitalized terms used and not defined in
this Amendment shall have the meanings assigned to them in the Trust Agreement.
(b) The definition of Reference Corporate Dealer in Section 1.01 of the
Trust Agreement is hereby amended to read in its entirety as follows:
"Reference Corporate Dealer" means each of Xxxxxx Xxxxxxx & Co.
Incorporated, Xxxxxxx Xxxxx Barney, Inc., Credit Suisse First Boston
Corporation, Xxxxxxx, Xxxxx & Co. and Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated.
(c) The definition of Trigger Event in Section 1.01 of the Trust Agreement
is hereby amended to read in its entirety as follows:
"Trigger Event" means the occurrence of any of the following: (a)
May 17, 2001, if no Mutual Party has issued to any XL Entity and
other purchasers at least $100,000,000 in aggregate principal amount
of any XL Securities (of which at least $50,000,000 are to be
purchased for investment by an XL Entity) prior to such date, (b) any
issued XL Securities become due and payable or the holders thereof
have the right to require the relevant Mutual Party to purchase such
XL Securities, (c) on (i) any Trading Day from and including the date
four months from the first date of issuance of any XL Securities (the
"Initial XL Issuance Date") to but excluding the date six months from
the Initial XL Issuance Date, if the Restructuring has not been
completed by 9:00 a.m., New York City time on such Trading Day and
the Closing Price of the Common Shares on the immediately preceding
Trading Day is less than $8.00 or (ii) the first Business Day six
months after the Initial XL Issuance Date, if the Restructuring has
not been completed, (d) after 9:00 a.m., New York City time, on the
tenth day immediately following the date the Restructuring has been
completed or (e) the One Hundred Million Dollar Trigger.
(d) Section 1.01 of the Trust Agreement is hereby amended by the addition
of the following new definitions in the appropriate alphabetical order:
"Amendment No. 1" means Amendment No. 1 to the Remarketing
Agreement dated as of May 8, 2001.
"Initial XL Issuance Date" has the meaning set forth in the
definition of Trigger Event.
"Mutual Party" means each of the Sponsor, the Guarantor and each
of their respective affiliates and subsidiaries and any entity formed
in connection with the Restructuring.
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"Newco" shall have the meaning set forth in Annex A to
Amendment No. 1.
"One Hundred Million Dollar Trigger" means at any time from
and including the Initial XL Issuance Date to but excluding the date
on which the holders of the XL Securities no longer have any right
to, or could not pursuant to the terms of the XL Securities upon the
occurrence of any event, have any right to, require a Mutual Party to
repurchase such XL Securities, the sum of the amounts in the Separate
Account and the collateral account referred to in Section 3(a)(x) of
the Remarketing Agreement does not equal at least $100,000,000 at
that time.
"Restructuring" shall have the meaning set forth in Annex A
to Amendment No. 1.
"Separate Account" means the account established by the
Company with Fleet National Bank pursuant to Section 3(a)(x) of the
Remarketing Agreement, as amended.
"XL Entity" means XL Capital Ltd. or any subsidiary or
affiliate thereof.
"XL Securities" means any debt securities issued by any
Mutual Party to any XL Entity and any securities of the same class
issued to any other purchasers, together with the voting preferred
stock described in the "Voting Preferred Stock" section of Annex A to
Amendment No. 1 (it being understood that the Warrants (as defined in
Annex A to Amendment No. 1) shall not be deemed to be XL Securities).
Section 1.02. Remarketing Provisions. (a) Sections 6.02(a) and (b) of the
Trust Agreement are hereby amended to read in their entirety as follows:
SECTION 6.02. (a) Remarketing Procedures.(i) Subject to
Section 6.04, upon and at any time after the occurrence of a Trigger
Event or a Cross Default, the Holders of a Majority in Liquidation
Amount of the Securities, acting together as a single class (the
"Requesting Holders"), will have the right to require remarketing of
the Preferred Securities. The Requesting Holders may exercise this
right by delivering a written notice to the Remarketing Agent by
10:00 a.m. on any date on or after the date on which such Trigger
Event or Cross Default occurs. Upon the
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receipt of such notice, the Remarketing Agent shall immediately
deliver a written notice to the Sponsor on behalf of the Requesting
Holders (the "Remarketing Notice"). If the Requesting Holders
exercise their right to require the remarketing of the Preferred
Securities, the Reset Date shall be the date on which such
Remarketing Notice is delivered.
(ii) If the Requesting Holders do not exercise their right
to require the remarketing of the Preferred Securities pursuant
to Section 6.02(a)(i) above with respect to any Trigger Event or
Cross Default, the Requesting Holders shall have the right to
require the remarketing of the Preferred Securities in accordance
with Section 6.02(a)(i) at any subsequent time with respect to
the same Trigger Event or Cross Default or with respect to any
subsequent Trigger Event or Cross Default.
(b) If the Sponsor and the Guarantor have complied in all
material respects with all covenants set forth in the Remarketing
Agreement, as amended, then by 3:00 p.m., New York City time, on the
Reset Date, the Remarketing Agent shall request Bids from the
Reference Corporate Dealers. The Remarketing Agent shall disclose to
Sponsor the Bids obtained and determine the lowest Bid Rate (the
"Winning Bid Rate") from among the Bids obtained on the Reset Date.
By 4:30 p.m., New York City time, on the Reset Date, the Remarketing
Agent shall notify the Sponsor and the 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, or if the Sponsor and the Guarantor have not complied
in all material respects with all covenants set forth in the
Remarketing Agreement, as amended, the Remarketing shall be deemed to
be a Failed Remarketing on such date; provided, that the Company's
obligation to furnish the Offering Memorandum to the Remarketing
Agent by 11:00 a.m. (New York City time) on the Reset Date pursuant
to Section 13of the Remarketing Agreement shall not be subject to the
foregoing qualification as to materiality. 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
Sponsor, the Guarantor and the Trust.
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Section 1.03. Successful Remarketing. Section 6.02(d) of the Trust
Agreement shall be amended by the addition of the following new sentence after
the last sentence thereof:
On the Remarketing Settlement Date following the settlement of the
purchase and sale of the Preferred Securities (or, if applicable, the
Senior Notes), the provisions of this Section 6.02 (other than
Sections 6.02(i) and 6.02(j)) shall terminate and shall be of no
further effect.
Section 1.04. Failed Remarketing. (a) Section 6.05 of the Trust Agreement
is hereby amended in its entirety to read as follows:
SECTION 6.05. Failed Remarketing. The Remarketing Agent
shall give notice of any Failed Remarketing on or after the date such
Failed Remarketing occurs to the Sponsor, the Guarantor, the Senior
Note Trustee and the Property Trustee.
Section 1.05. Cancellation by Holders. The Trust Agreement is hereby
amended by the addition of the following new Section 7.12:
SECTION 7.12. Cancellation by Holders. The Holders of all of
the outstanding Preferred Securities and Common Securities may, at
any time, deliver all of the outstanding Preferred Securities and
Common Securities to the Property Trustee for cancellation; provided
that upon such surrender of all of the outstanding Preferred
Securities and Common Securities for cancellation, the Trust shall,
simultaneously, surrender the aggregate principal amount of the
outstanding Senior Notes to the trustee under the Base Indenture for
cancellation. The Property Trustee shall promptly cancel all
Preferred Securities and Common Securities surrendered for
cancellation and shall dispose of all such canceled Preferred
Securities and Common Securities in accordance with its customary
practices; provided that the Property Trustee shall not be obligated
to destroy any Preferred Securities or Common Securities. The Trust
may not issue new Preferred Securities or Common Securities to
replace the Preferred Securities that the Holders thereof delivered
to the Property Trustee for cancellation.
Section 1.06. Dissolution and Termination of Trust. Section 8.01 of the
Trust Agreement is hereby amended by deleting the word "or" at the end of clause
(v) thereof, replacing the period at the end of clause (vi) thereof by "; or"
and inserting the following new clause (vii):
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(vii) the cancellation of all Preferred Securities and
Common Securities pursuant to Section 7.12 hereof.
Section 1.07. Distribution Rate. The Trust Agreement (including Annex I
and the Exhibits thereto) is hereby amended by replacing each reference to "150
basis points" therein by a reference to "566 basis points". Such amended
Distribution Rate shall be effective on and as of April 1, 2001.
ARTICLE 2
Miscellaneous
Section 2.01. Conditions. On the date hereof, the Property Trustee shall
have received (a) an Officers' Certificate from each of the Trust and the
Sponsor that such amendment is permitted by, and conforms to, the terms of this
Agreement (including the terms of the Securities) pursuant to Section
12.01(b)(i) of the Trust Agreement and (b) an Opinion of Counsel pursuant to
Sections 6(b), 7(b) and 8 of Annex I to the Trust Agreement.
Section 2.02. Consent to Action by Property Trustee. The Sponsor, as
holder of the Common Securities, and Intrepid Funding Master Trust, as holder of
the Preferred Securities, hereby consent to the execution and delivery of the
Trust's consent to the Second Supplemental Indenture dated as of May 8, 2001,
among Mutual, MRM, and The Chase Manhattan Bank, as trustee, by The Chase
Manhattan Bank, as Property Trustee under the Trust Agreement, on behalf of the
Trust.
Section 2.03. Governing Law. This Amendment and the rights of the parties
hereunder shall be governed by and construed in accordance with the laws of the
State of Delaware and all rights and remedies shall be governed by such laws,
without reference to the choice of laws rules thereof; provided, however, that
the immunities and standard of care of the Property Trustee in connection with
the administration of its trusts and duties hereunder shall be construed in
accordance with and governed by the internal laws of the State of New York.
SECTION 3540 OF TITLE 12 OF THE DELAWARE CODE SHALL NOT APPLY TO THE TRUST.
Section 2.04. Severability. If any provision in this Amendment shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
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Section 2.05. Counterparts. The parties may sign any number of copies of
this Amendment. Each signed copy shall be an original, but all of them together
represent the same agreement. Any signed copy shall be sufficient proof of this
Amendment.
Section 2.06. Ratification of Trust Agreement; Amendment Controls. The
Trust Agreement, as amended by Amendment, is in all respects ratified and
confirmed, and this Amendment shall be deemed part of the Trust Agreement. The
provisions of this Amendment shall supersede the provisions of the Trust
Agreement to the extent the Trust Agreement is inconsistent herewith.
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IN WITNESS WHEREOF, the undersigned have caused this Amendment to the Trust
Agreement to be executed as of the date first above written.
Xxxxxxx X'Xxxxx, not in his individual
capacity but solely as Administrative
Trustee of the Trust
/s/ Xxxxxxx X. X'Xxxxx
___________________________
Xxxxxxxxx Xxxxx, not in her individual
capacity but solely as Administrative
Trustee of the Trust
/s/ Xxxxxxxxx X. Xxxxx
___________________________
MUTUAL GROUP LTD., as Sponsor and the
Holder of the Common Securities
By: /s/ Xxxxxxxxx X. Xxxxx
________________________
Name: Xxxxxxxxx X. Xxxxx
Title: Assistant Secretary
Consented to:
INTREPID FUNDING MASTER TRUST,
as the Holder of the Preferred Securities
By: Wilmington Trust Company, not
in its individual capacity, but
solely as Owner Trustee
By: /s/ Xxxx Xxx Xxxxxxx
_________________________
Name: Xxxx Xxx Xxxxxxx
Title: Senior Financial Services Officer
THE CHASE MANHATTAN BANK,
not in its individual capacity but solely
as Property Trustee of the Trust
By: /s/ Sheik Wiltshire
________________________
Name: Sheik Wiltshire
Title: Assistant Vice President
