Exhibit 10.6
AMENDMENT NO. 1 TO
REMARKETING AND CONTINGENT
PURCHASE AGREEMENT
This AMENDMENT NO. 1 (the "Amendment") is made as of May 8, 2001, by and
among Mutual Group Ltd., a Delaware corporation (the "Company"), Mutual Risk
Management Ltd., a Bermuda company (the "Guarantor"), MRM Capital Trust I, a
Delaware statutory business trust (the "Trust"), and Banc of America Securities
LLC, as remarketing agent (the "Remarketing Agent").
WITNESSETH:
WHEREAS, the Company, the Guarantor, the Trust and the Remarketing Agent
are parties to a Remarketing and Contingent Purchase Agreement dated as of
September 21, 2000 (the "Remarketing Agreement");
WHEREAS, the parties hereto desire to amend the Remarketing Agreement as
set forth herein;
WHEREAS, the Remarketing Agreement provides for amendment of its terms,
subject to satisfaction of certain requirements;
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 Remarketing
Agreement.
(b) The definition of Reference Corporate Dealer in Section 1 of the
Remarketing 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 of the Remarketing
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 of the Remarketing Agreement is hereby amended by the
addition of the following new definitions in the appropriate alphabetical order:
"Deal Expenses" means any and all fees paid by any Mutual Party
in connection with the issuance of the XL Securities or the
Restructuring, including, without limitation, all interest payable on
the XL Securities, the fee payable to Intrepid Master Funding Trust
pursuant to Section 2.02 of Amendment No. 1 to the Remarketing
Agreement, any private placement, structuring, advisory or similar fee
payable to BAS or any other agent in connection with the issuance of
the XL Securities or the Restructuring, all legal fees and
disbursements incurred by any Mutual Party, BAS or any of its
affiliates, Credit Suisse First Boston or any of it affiliates or any
XL Entity in connection with any of the above and payable by any
2
Mutual Party and any other fees or expenses arising from related
transactions.
"Initial XL Issuance Date" has the meaning set forth in the
definition of Trigger Event.
"Mutual Party" means each of the Company, the Guarantor and each
of their respective affiliates and subsidiaries and any entity formed
in connection with the Restructuring.
"Newco" shall have the meaning set forth in Annex A to this
Amendment.
"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) does
not equal at least $100,000,000 at that time.
"Restructuring" shall have the meaning set forth in Annex A to
this Amendment.
"Separate Account" means the account established by the Company
with Fleet National Bank pursuant to Section 3(a)(x).
"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 this
Amendment (it being understood that the Warrants (as defined in Annex
A to this Amendment) shall not be deemed to be XL Securities).
Section 1.02. Separate Account. Section 3 of the Remarketing Agreement is
hereby amended to add the following subsection 3(a)(x):
3
(x) On or prior to the Initial XL Issuance Date, the Company shall
establish the Separate Account, and all proceeds of the issuance of
the XL Securities shall be deposited directly in the Separate Account;
provided that proceeds to be used for the payment of interest on the
XL Securities as set forth in the "Use of Proceeds" section of Annex A
to this Amendment may be deposited in an collateral account as
described in Annex A to this Amendment. All Deal Expenses shall be
paid solely out of funds in such collateral account.
Section 1.03. Remarketing Provisions. (a) Sections 5(a) and (b) of the
Remarketing Agreement are hereby amended to read in their entirety as follows:
SECTION 5. Determination of Reset Date; Remarketing
Procedures. (a) (i) Subject to Section 7, upon and at any time after
the occurrence of a Event or a Cross Default, 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 by 10:00 a.m. on any date on or after the date on
which such Trigger Event or Cross Default 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 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 (or, if
applicable, the Senior Notes) pursuant to Section 103(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 (or, if applicable, the
Senior Notes) in accordance with Section 103(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
Defau lt.
4
(b) If the Company and the Guarantor have complied in all
material respects with all covenants set forth herein, 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 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 4:30 p.m., New York City time, on
the Reset Date, the Remarketing Agent shall notify the Company, the
Indenture Trustee 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 Company and the Guarantor have not complied in all material
respects with all covenants set forth herein, 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 13 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 holders of
the Senior Notes, the Company, the Guarantor, the Indenture Trustee,
the Property Trustee and the Trust.
Section 1.04. Successful Remarketing. Section 5(d) of the Remarketing
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 and
sale of the Preferred Securities (or, if applicable, the Senior
Notes), the provisions of this Section 5 (other than Sections 5(i) and
5(j)) shall terminate and shall be of no further effect.
Section 1.05. XL Securities. Section 5 of the Remarketing Agreement shall
be amended by the addition of the following new subsection (k):
(k) If any XL Securities are issued, each Holder of Preferred
Securities shall have the right to exchange all or any portion of the
Preferred Securities (or, if applicable, the Senior Notes) held by
such Holder for XL Securities (the "New Securities") with a principal
amount equal to the principal amount of the Preferred
5
Securities so exchanged (or, if the Senior Notes have been distributed
to the Holders of the Trust Securities, the aggregate principal amount
of Senior Notes so exchanged); provided that such Holder notify the
issuer of such XL Securities on or prior to the date hereof as to the
exercise of such right and the principal amount of Preferred
Securities (or, if the Senior Notes have been distributed to the
Holders of the Trust Securities, the aggregate principal amount of
Senior Notes) to be exchanged; provided further that such New
Securities shall differ from the XL Securities solely to the extent
set forth in Annex A. If the Mutual Party that issues such XL
Securities is not a party hereto, the Company and the Guarantor shall
cause such Mutual Party to honor the rights of the Remarketing Agent
and the Holders of the Preferred Securities under this Section. The
Company and the Guarantor shall promptly deliver, or caused to be
delivered, to the Remarketing Agent copies of any and all documents
relating to any XL Securities issued by any Mutual Party and all
notices, including without limitation notices relating to the exercise
of any right by any XL Entity to require the relevant Mutual Party to
purchase the XL Securities held by such XL Entity, received by any
Mutual Party from any XL Entity. In the event that a Holder of
Preferred Securities exercises its right to exchange all or a portion
of its Preferred Securities for New Securities pursuant to this
subsection 5(k), the Trust shall pay in cash to such Holder all
accrued and unpaid Distributions on such Preferred Securities (or, if
the Senior Notes have been distributed to the Holders of the Trust
Securities, all accrued and unpaid interest thereon) up to but
excluding the date of such exchange.
Section 1.06. Exchange of Preferred Securities. Section 5 of the
Remarketing Agreement shall be amended by the addition of the following new
subsection (l):
(l) The Company and the Guarantor agree that if the
Restructuring is effected, the final documentation therefor shall
provide that if (i) the holders of all of the Preferred Securities
(or, as applicable, the Senior Notes) do not exercise their right to
exchange all of the Preferred Securities (or, as applicable, the
Senior Notes) held by them into New Securities pursuant to Section
5(k) and (ii) any holder of any XL Securities subsequently exchanges,
in whole or in part, the XL Securities held by such holder into common
shares or convertible notes of Newco, then the Holders of a Majority
in Liquidation Amount of the Trust Securities (or, if applicable, the
holders of a majority in principal amount of
6
the Senior Notes) shall have the right to exchange the Preferred
Securities (or, if applicable, the Senior Notes) for senior notes
issued by Newco having terms substantially identical to the Senior
Notes.
Section 1.07. Failed Remarketing; Contingent Purchase Obligation. Section
9 of the Remarketing Agreement is hereby amended to read in its entirety as
follows:
SECTION 9. Failed Remarketing; Contingent Purchase Obligation.
The Remarketing Agent shall give notice of any Failed Remarketing on
or after the date such Failed Remarketing occurs to the Company, the
Property Trustee, the Indenture Trustee and the paying agent under the
Indenture. In the case of (a)(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 the Senior Notes) or (b) solely after the exchange
of all or a portion of the Trust Securities (or, if applicable, the
Senior Notes) for New Securities, the One Hundred Million Dollar
Trigger (the "Post-Exchange Trigger"), any holder of New Securities
may, by notice in writing to the Company which notice may be given at
any time on or after the date of such Failed Remarketing, Change of
Control or One Hundred Million Dollar Trigger, 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) or (solely in the case of the
Post-Exchange Trigger) all outstanding New Securities for a purchase
price equal to the aggregate principal amount of such New Securities
plus accrued but unpaid interest thereon. Payment of such purchase
price shall be made directly to each such holder on the third Business
Day following the date that the notice to the Company given pursuant
to the preceding sentence is made. 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
7
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 1.08. Offering Memorandum. (a) Section 13 of the Remarketing
Agreement is hereby amended to read in its entirety as follows:
SECTION 13. Offering Memorandum. Upon receipt of a Remarketing
Notice by 10:00 a.m. (New York City time) on the Reset Date, the
Company shall furnish an offering memorandum (the "Offering
Memorandum") to the Remarketing Agent not later than 11:00 a.m. (New
York City time) on such Reset Date, in form and substance reasonably
satisfactory to the Remarketing Agent, to be used by the Secondary
Purchaser or purchasers under the Secondary Purchase Agreement in the
remarketing, and shall pay all expenses relating to the preparation
and furnishing of such Offering Memorandum.
Section 1.09. Term of Agreement. Section 19 of the Remarketing Agreement is
hereby amended by replacing the period at the end of such Section with the
following proviso:
; provided that if all or a portion of the Preferred Securities (or,
if applicable, the Senior Notes) have been exchanged for New
Securities, this Agreement shall not terminate until all New
Securities have been redeemed or purchased pursuant to Section 9
hereof.
Section 1.10. Successors and Assigns. Section 20 of the Remarketing
Agreement is hereby amended by the deletion of the fourth sentence thereof.
Section 1.11. Guarantee. Section 26 of the Remarketing Agreement is hereby
amended by the insertion of "(a)" before the initial words "The Guarantor" and
by the addition of the following new subsection (b):
(b) If any Mutual Party incurs any direct obligation, or
guarantees the obligations of any other Person, with respect to any XL
Securities, the Company and the Guarantor will immediately notify the
Remarketing Agent thereof and will cause such Mutual Party to fully
and unconditionally guarantee all the Company's obligations hereunder,
and to become subject to the provisions of Sections 27, 28 and 29
hereof, as applicable.
8
Article 2
PURCHASE
Section 2.01. Purchase. (a) On or prior to the date hereof, the Company
shall purchase from the Holders of the Preferred Securities, on a Pro Rata Basis
in accordance with Section 9 of Annex I to the Trust Agreement (applied as if an
Event of Default had occurred and were continuing under the Trust Agreement),
for a purchase price equal to $10,024,796.53 to be paid no later than 5:00 p.m.
New York City time on the date of purchase, Preferred Securities with an
aggregate Liquidation Amount equal to $10,000,000. For the avoidance of doubt,
the parties acknowledge that such purchase shall be a transfer of such Preferred
Securities governed by Article 9 of the Trust Agreement.
(b) The parties hereto acknowledge that this Section 2.01 is a "securities
contract", as such term is defined in Section 741(7) of Title 11 of the United
States Code (the "Bankruptcy Code"), and that any transfer of funds under this
Section is a "settlement payment" as such term is used in Sections 362(b)(6) and
546(e) of the Bankruptcy Code.
Section 2.02. Fees. The Company hereby agrees to pay to Intrepid Master
Funding Trust on or prior to the date hereof a fee of $500,000.
ARTICLE 3
Miscellaneous
Section 3.01. 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 New York and all rights and remedies shall be governed by such laws,
without reference to the choice of laws rules thereof.
Section 3.02. 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.
Section 3.03. 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 3.04. Ratification of Remarketing Agreement; Amendment Controls.
The Remarketing Agreement, as amended by this Amendment, is in all
9
respects ratified and confirmed, and this Amendment shall be deemed part of the
Remarketing Agreement. The provisions of this Amendment shall supersede the
provisions of the Remarketing Agreement to the extent the Remarketing Agreement
is inconsistent herewith.
Section 3.05. Expenses. The Company agrees to pay the expenses of the
Remarketing Agent and the Holders of the Preferred Securities incurred in
connection with this Amendment, Amendment No. 1 dated as of the date hereof to
the Trust Agreement and the Second Supplemental Indenture dated as of the date
hereof by and among the Company, the Guarantor and The Chase Manhattan Bank, as
Trustee, and the transactions contemplated hereby and thereby, including the
fees and disbursements of counsel to the Remarketing Agent and such Holders in
connection with the drafting, negotiation and production of this letter
agreement and any related documents or matters; provided, however, that the
Company shall not be responsible for such expenses in excess of $50,000.
10
IN WITNESS WHEREOF, each of Company, the Guarantor, the Trust and the
Remarketing Agent has caused this Amendment to the 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/ Xxxxxxx X'Xxxxx
_________________________
Name: Xxxxxxx X'Xxxxx
Title: Vice President
MUTUAL RISK MANAGEMENT LTD.
By: /s/ Xxxxxxx X'Xxxxx
_________________________
Name: Xxxxxxx X'Xxxxx
Title: Senior Vice President
MRM CAPITAL TRUST I
By: /s/ Xxxxxxx X'Xxxxx
___________________________________
Name: Xxxxxxx X'Xxxxx
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/ Xxxxxxx X. Xxxxxxxxx
________________________
Name: Xxxxxxx X. Xxxxxxxxx
Title: Authorized Signatory
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
