CONFORMED COPY
PURCHASE AGREEMENT
September 21, 2000
Intrepid Funding Master Trust
c/o Wilmington Trust Company, as Owner-Trustee
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-000
Ladies and Gentlemen:
MRM Capital Trust I, a statutory business trust organized under the laws of
the State of Delaware (the "Trust"), Mutual Group Ltd., a Delaware corporation
(the "Company"), as sponsor of the Trust, and Mutual Risk Management Ltd., a
company organized under the laws of Bermuda, as guarantor of the obligations of
the Company under the Indenture and Remarketing Agreement each as referred to
below (the "Guarantor", and together with the Trust and the Company, the "MRM
Parties"), propose that the Trust, subject to the terms and conditions stated
herein, issue and sell to Intrepid Funding Master Trust, a statutory business
trust formed under the laws of the State of Delaware (the "Purchaser"), an
aggregate of $40,000,000 of Auction Rate Reset Preferred Securities (liquidation
amount $1,000 per preferred security) (the "Preferred Securities"), representing
undivided beneficial interests in the assets of the Trust, guaranteed on a
senior basis by the Company as to the payment of distributions and as to
payments upon liquidation or redemption, to the extent set forth in a guarantee
agreement relating to the Preferred Securities (the "Guarantee") dated as of
September 21, 2000 among the Company, the Guarantor and The Chase Manhattan
Bank, as trustee (the "Guarantee Trustee"). The Preferred Securities will be
offered and sold to the Purchaser pursuant to one or more exemptions from the
registration requirements under the Securities Act of 1933, as amended (the
"Securities Act").
Pursuant to the Senior Note Purchase Agreement (the "Note Purchase
Agreement") dated as of September 21, 2000 between the Company and the Trust,
the Trust is to purchase, with the proceeds from the sale of an aggregate of
$1,240,000 Auction Rate Reset Common Securities (liquidation amount $1,000 per
common security) (the "Common Securities") and the sale of the Preferred
Securities, Auction Rate Reset Senior Notes Series A (the "Senior Notes") of the
Company, to be issued pursuant to an Indenture (the "Base Indenture") dated as
of September 21, 2000 among the Company, the Guarantor and The Chase Manhattan
Bank, as trustee (the "Indenture Trustee"), as supplemented by the First
Supplemental Indenture (the "Supplemental Indenture") dated as of September 21,
2000 between the Company, the Guarantor and the Indenture Trustee (the Base
Indenture, as so supplemented, the "Indenture"). The Company will be the
purchaser of 100% of the Common Securities. The Trust will be subject to the
terms of an Amended and Restated Trust Agreement (the "Trust Agreement") dated
as of September 21, 2000 among the Company and the trustees of the Trust (the
"Trustees"), including The Chase Manhattan Bank, as property trustee (the
"Property Trustee").
If a Trigger Event (as defined in the Trust Agreement) occurs, the holders
of the Preferred Securities (or, following the distribution of the Senior Notes
to holders of the Preferred Securities upon the termination of the Trust, the
holders of the Senior Notes) may require the remarketing of the Preferred
Securities (or, if applicable, the Senior Notes) pursuant to the terms of the
Remarketing and Contingent Purchase Agreement dated as of September 21, 2000
(the "Remarketing Agreement") among the MRM Parties and Banc of America
Securities LLC, as remarketing agent. The Guarantor and Banc of America
Securities LLC have also entered into a Forward Underwriting Agreement (the
"Forward Underwriting Agreement") dated as of September 21, 2000 relating to
underwritten offerings of common shares, $.01 par value, or other debt or equity
securities (any and all of the foregoing, the "Offered Securities") of the
Guarantor.
Capitalized terms used and not defined in this Agreement have the meanings
assigned to them in the Trust Agreement. The term "Transaction Documents" refers
collectively to the Trust Agreement, the Preferred Securities, the Common
Securities, the Indenture, the Senior Notes, the Senior Note Purchase Agreement,
the Guarantee, the Common Securities Guarantee, the Remarketing Agreement, the
Forward Underwriting Agreement and this Agreement.
1. Representations and Warranties of the MRM Parties. Each of the MRM
Parties represents and warrants to the Purchaser that:
(a) The Guarantor has made available to the Purchaser copies of the
Guarantor's Annual Report on Form 10-K for its fiscal year ended December
31, 1999, its Quarterly Reports on Form 10-Q for its fiscal quarters ended
March 31, 2000 and June 30, 2000, and its Current Reports on Form 8-K filed
after the date of its Form 10-K for the fiscal year ended December 31,
1999, if any, in each case, as filed with the Securities and
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Exchange Commission (the "Commission") to fulfill the Guarantor's
reporting obligations under the Securities Exchange Act of 1934 (the
"Exchange Act") (collectively, the "SEC Disclosure Documents"). At the
time each such document was filed (or, if an amendment with respect to
any such document was filed, at the time such amendment was filed) with
the Commission, it complied as to form in all material respects with
the requirements of the Exchange Act and the rules and regulations of
the Commission promulgated thereunder. None of such documents, at the
time they were filed (or, if an amendment with respect to any such
document was filed, at the time such amendment was filed), contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
(b) The Guarantor has been duly organized and is validly existing
as a company with limited liability in good standing under the laws of
Bermuda, with full power and authority to own, lease, license and
operate its properties and conduct the business as described in the SEC
Disclosure Documents. The Guarantor is duly qualified to do business as
a foreign corporation in good standing in all other jurisdictions in
which its ownership, lease, licensing or operation of property or the
conduct of its business requires such qualification, except where the
failure to so qualify would not have a material adverse effect on the
condition (financial or otherwise), business, net worth or results of
operations of the Guarantor and its Significant Subsidiaries (as
defined in Rule 1-02 of Regulations S-X promulgated under the
Securities Act) (each, a "Significant Subsidiary") taken as a whole (a
"Material Adverse Effect").
(c) Each Significant Subsidiary of the Guarantor (including the
Company) has been duly incorporated or organized and is validly
existing as a company with limited liability or as a corporation, as
the case may be, in good standing under the laws of the jurisdiction of
its incorporation or organization, with full power (corporate or other)
and authority to own, lease, license and operate its properties and
conduct its business as described in the SEC Disclosure Documents. Each
Significant Subsidiary of the Guarantor (including the Company) is duly
qualified to do business as a foreign corporation in good standing in
all other jurisdictions in which its ownership, lease, licensing or
operation of property or the conduct of its business requires such
qualification, except where the failure to so qualify would not have a
Material Adverse Effect. All of the issued and outstanding capital
stock of each Significant Subsidiary of the Guarantor (including the
Company) has been duly authorized and validly issued and is fully paid
and nonassessable. All of the issued and outstanding capital
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stock of each Significant Subsidiary of the Guarantor (including the
Company) is owned by the Guarantor, directly or through subsidiaries,
free and clear of any security interest, mortgage, pledge, lien,
encumbrance or claim (each, a "Lien"), except as described in the SEC
Disclosure Documents or created in connection with the Letter of Credit
dated November 1, 1996, as amended May 29, 1997.
(d) All outstanding shares of capital stock of the Guarantor have
been duly authorized and validly issued and are fully paid and
nonassessable. The stockholders of the Guarantor have no preemptive
rights with respect to the Preferred Securities or the shares of the
Offered Securities issuable pursuant to the Forward Underwriting
Agreement.
(e) Each of the Guarantor and its subsidiaries (including the
Company) possess such permits, licenses, approvals, consents and other
authorizations (collectively, "Governmental Licenses") issued by
appropriate federal, state, local or foreign regulatory agencies or
bodies necessary to conduct the business now operated by it except
where the failure to possess any such permits, licenses, approvals,
consents and other authorizations would not, individually or in the
aggregate, result in a Material Adverse Effect, and neither the
Guarantor nor any subsidiary (including the Company) has received any
notice of proceedings relating to the revocation or modification of any
such certificate, authorization or permit which, individually or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would result in a Material Adverse Effect, except as described
in the SEC Disclosure Documents.
(f) Each of the Guarantor and its insurance subsidiaries
(including insurance holding companies) is duly registered, licensed or
admitted as an insurer or an insurance holding company (as applicable)
in each jurisdiction where it is required to be so registered, licensed
or admitted to conduct its business as presently conducted, except
where the failure to be so registered, licensed or admitted would not
result in a Material Adverse Effect; and each of the Guarantor and the
insurance subsidiaries (including insurance holding companies) has
filed all reports, documents or other information required to be filed
under such statutes and regulations, except where the failure to comply
or file would not have a Material Adverse Effect;
(g) Except as disclosed in the SEC Disclosure Documents, there
are no pending actions, suits, proceedings, inquiries or investigations
against or affecting the Guarantor, any of its subsidiaries (including
the Company) or any of their respective properties that, if determined
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adversely to the Guarantor or any of its subsidiaries (including the
Company), would individually or in the aggregate have a Material
Adverse Effect, or would materially and adversely affect the ability of
any MRM Party to perform its obligations under the Transaction
Documents (including the provisions of this Agreement) or that are
otherwise material in the context of the sale of the Preferred
Securities, and no such actions, suits, proceedings, inquiries or
investigations are, to the knowledge of any MRM Party, threatened or
contemplated.
(h) The financial statements included in the SEC Disclosure
Documents present fairly in all material respects the financial
position of the Guarantor and its consolidated subsidiaries (including
the Company) as of and at the dates specified and the results of
operations and cash flows for the periods specified, and such financial
statements have been prepared in conformity with generally accepted
accounting principles in the United States applied on a consistent
basis.
(i) Except as disclosed in the SEC Disclosure Documents, since
the date of the latest audited financial statements included in the SEC
Disclosure Documents, (i) there has been no material adverse change or
any development that reasonably could be expected to result in a
Material Adverse Effect and (ii) there has not been any material
adverse change in the consolidated reserves for losses and loss
adjustment expenses of the Guarantor and its subsidiaries (including
the Company).
(j) The Preferred Securities have been duly and validly
authorized by the Trust, and, when the Preferred Securities are issued
and delivered to the Purchaser against payment therefor, such Preferred
Securities will be validly issued, fully paid and non-assessable
undivided beneficial interests in the assets of the Trust. The issuance
of the Preferred Securities is not subject to any preemptive or other
similar rights. The Preferred Securities will have the rights set forth
in the Trust Agreement, and the terms of the Preferred Securities are
valid and binding on the Trust.
(k) The Common Securities have been duly and validly authorized
by the Trust and upon delivery by the Trust to the Company against
payment therefor, will be duly and validly issued undivided beneficial
interests in the assets of the Trust. The issuance of the Common
Securities is not subject to preemptive or other similar rights, and at
the Time of Delivery (as defined in Section 4 hereof), all of the
issued and outstanding Common Securities of the Trust will be directly
owned by the Company free and clear of any Lien. The Common Securities
and the
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Preferred Securities are the only interests authorized to be issued by
the Trust.
(l) No order, license, consent, authorization or approval of, or
exemption by, or the giving of notice to, or the registration with any
federal, state, municipal or other governmental department, commission,
board, bureau, agency or instrumentality, and no filing, recording,
publication or registration in any public office or any other place,
was or is now required to be obtained by the Company or the Trust for
the due execution or delivery of, or the performance of its obligations
under, the Transaction Documents, except such as have been obtained or
may be required under state securities laws or, in the case of
performance of the Forward Underwriting Agreement, under the Securities
Act.
(m) The execution, delivery and performance of the Transaction
Documents by each of the MRM Parties, the issuance and sale of the
Preferred Securities and the Common Securities by the Trust and the
consummation of the transactions contemplated by the Transaction
Documents (i) do not and will not conflict with, result in a breach or
violation of any of the terms or provisions of, or constitute a default
or require the consent of any party under (A) the organizational
documents of any MRM Party, (B) any material indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument to which any
MRM Party is a party, by which any MRM Party is bound or to which the
property or assets of any MRM Party is subject or (C) any material
statute or currently existing rule, regulation, judgment, order or
decree of any court or governmental agency or body, domestic or
foreign, having jurisdiction over any MRM Party or any of the
properties or assets of any MRM Party and (ii) do not and will not
result in the creation or imposition of any Lien on the properties or
assets of any MRM Party.
(n) None of the MRM Parties is, and after giving effect to the
sale of the Senior Notes, the application of the proceeds therefrom and
the consummation of the transactions contemplated hereby, none of the
MRM Parties will be, an "investment company" within the meaning of the
Investment Company Act of 1940, as amended (the "Investment Company
Act").
(o) The Trust has been duly created and is validly existing as a
statutory business trust in good standing under the Business Trust Act
of the State of Delaware (the "Business Trust Act") with the trust
power and authority to own property and conduct its business, and has
conducted and will conduct no business other than the transactions
contemplated by the
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Transaction Documents. The Trust is not a party to or bound by any
agreement or instrument other than this Agreement, the Trust Agreement
and the agreements and instruments contemplated by the Trust Agreement.
Based on expected operations and current law, the Trust is and will be
classified as a grantor trust or other pass-through entity for United
States federal income tax purposes, and not as an association or
publicly traded partnership taxable as a corporation. To the knowledge
of each of the MRM Parties, the Trust is not a party to or subject to
any action, suit or proceeding of any nature.
(p) Each Transaction Document to which any MRM Party is or is to
be a party has been duly authorized by such party and when validly
executed and delivered by such party and, in the case of the Guarantee,
by the Guarantee Trustee and, in the case of the Trust Agreement, by
the Trustees and, in the case of the Indenture, by the Indenture
Trustee, and, in the case of the Senior Notes, when validly
authenticated and delivered by the Indenture Trustee and, in the case
of the Guarantee and the Common Securities Guarantee, upon due
execution, authentication and delivery of the Senior Notes and upon
payment therefor, and, in the case of the Preferred Securities and the
Common Securities, when validly authenticated and delivered by the
Property Trustee upon payment therefor and, in the case of the other
Transaction Documents, when validly executed and delivered by the other
parties thereto, will constitute a valid and binding obligation of such
party, enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting creditors' rights generally and to general
principles of equity (regardless of whether enforcement is considered
in a proceeding at law or in equity); the Senior Notes are entitled to
the benefits of the Indenture.
(q) Under current laws and regulations of Bermuda and any
political subdivision thereof, all amounts which may be payable by the
Guarantor under the Transaction Documents may be paid by the Guarantor
in United States dollars and freely transferred out of Bermuda and all
such payments made to non-residents of Bermuda will not be subject to
income, withholding or other taxes under laws and regulations of
Bermuda or any political subdivision or taxing authority thereof or
therein and will otherwise be free and clear of any other tax, duty,
withholding or deduction in Bermuda or any political subdivision or
taxing authority thereof or therein and without the necessity of
obtaining any governmental authorization in Bermuda or any political
subdivision or taxing authority thereof or therein.
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(r) No MRM Party and no Affiliate of any MRM Party has
directly, or through any agent, (i) sold, offered for sale, solicited
offers to buy or otherwise negotiated in respect of, any security (as
defined in the Securities Act) that has been or will be integrated with
the sale of the Preferred Securities in a manner that would require the
registration of the Preferred Securities under the Securities Act or
(ii) engaged in any form of general solicitation or general advertising
in connection with the offering of the Preferred Securities (as those
terms are used in Regulation D under the Securities Act) or in any
manner involving a public offering within the meaning of section 4(2)
of the Securities Act, including, but not limited to, publication or
release of articles, notices or other communications published in any
newspaper, magazine, or similar medium or broadcast over television or
radio, or any seminar or meeting whose attendees have been invited by
any general solicitation or general advertising. No securities of the
same class as the Preferred Securities have been issued and sold by any
MRM Party within the six-month period immediately prior to the date
hereof.
(s) No registration of the Preferred Securities under the
Securities Act is required for the sale of the Preferred Securities to
the Purchaser as contemplated hereby assuming the accuracy of the
Purchaser's representations and warranties and agreements set forth in
Section 2 hereof.
(t) The description of the Guarantor's and its subsidiaries'
reserves and reserving methodology and assumptions described in the SEC
Disclosure Documents is accurate in all material respects and fairly
presents the information set forth therein in all material respects
and, since the date of the latest financial statements included in the
SEC Disclosure Documents, no loss experience has developed which would
require or make it appropriate for the Guarantor or any of its
subsidiaries to alter or modify such methodology.
The MRM Parties acknowledge that the Purchaser and, for purposes of the
opinions to be delivered to the Purchaser pursuant to Section 7 hereof, counsel
to the MRM Parties and counsel to the Purchaser will rely upon the accuracy and
truth of the foregoing representations and hereby consent to such reliance.
2. Representations and Warranties of the Purchaser. The Purchaser
represents and warrants to each of the MRM Parties that:
(a) The Purchaser has full power and authority to enter into
this Agreement, and this Agreement constitutes a valid and legally
binding
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obligation, enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting creditors' rights generally or by general
principles of equity (regardless of whether enforcement is considered
in a proceeding at law or in equity).
(b) The Purchaser will acquire the Preferred Securities for
investment purposes for its own account, not as a nominee or agent, and
not with a view to the resale or distribution of any part thereof, and
that such Purchaser has no present intention of selling, granting any
participation in, or otherwise distributing the Preferred Securities.
By executing this Agreement, the Purchaser further represents that the
Purchaser does not have any contract, undertaking, agreement or
arrangement with any person to sell, transfer or grant participations
to such person or to any third person, with respect to any of the
Preferred Securities.
(c) The Purchaser has received all the information it considers
necessary or appropriate to decide whether to purchase the Preferred
Securities. During the course of this transaction and prior to the
purchase of any of the Preferred Securities, the MRM Parties have made
available to the Purchaser the opportunity to ask questions of and
receive answers from any of their principals concerning the terms and
conditions of the transaction described in this Agreement, and to
obtain any additional information relative to the financial data and
business of the MRM Parties, to the extent that such information can be
obtained without unreasonable effort or expense, and all such
questions, if asked, have been answered satisfactorily and all such
documents, if examined, have been found to be fully satisfactory.
(d) The Purchaser acknowledges that it can bear the economic risk
of its investment, and has such knowledge and experience in financial
or business matters that it is capable of evaluating the merits and
risks of an investment in the Preferred Securities.
(e) The Purchaser is a "qualified institutional buyer" within the
meaning of Rule 144A under the Securities Act.
(f) The Purchaser understands that the Preferred Securities are
"restricted securities" under the federal securities laws insofar as
they are being acquired from the Trust in a transaction not involving a
public offering and that, under such laws and applicable regulations,
such
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securities may be resold without registration under the Securities Act
only in certain limited circumstances set forth in the Trust Agreement.
(g) The Purchaser and its Affiliates will treat, for United
States Federal income tax purposes, the Senior Notes as indebtedness
and the Preferred Securities as evidence of indirect beneficial
ownership in the Senior Notes and will not take any position for United
States Federal income tax purposes which is contrary to the
classification of the Trust as a grantor trust.
The Purchaser acknowledges that the MRM Parties and, for purposes of
the opinions to be delivered to the Purchaser pursuant to Section 7 hereof,
counsel to the MRM Parties, will rely upon the accuracy and truth of the
foregoing representations and hereby consents to such reliance.
3. Purchase of the Preferred Securities.
(a) Subject to the terms and conditions set forth herein,
the MRM Parties agree that the Trust shall issue and sell to the
Purchaser, and the Purchaser agrees to purchase from the Trust, at a
purchase price per security of $1,000 per Preferred Security, the
number of Preferred Securities set forth opposite the name of the
Purchaser in Schedule I hereto.
(b) At the Time of Delivery, the Guarantor will pay, or
cause to be paid, a placement fee of $27.50 per Preferred Security to
Bank of America Securities LLC by wire transfer of immediately
available funds.
4. Delivery of and Payment for the Preferred Securities.
(a) The Preferred Securities to be purchased by the
Purchaser shall be delivered by or on behalf of the Trust to the
Purchaser, against payment by or on behalf of the Purchaser of the
purchase price therefor by certified or official bank check or checks,
payable to the order of the Trust in federal or other immediately
available funds. The Trust will cause the certificates representing the
Preferred Securities to be made available for examination at least
twenty-four hours prior to the Time of Delivery (as defined below) at
the offices of Xxxxx Xxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx,
XX, 00000 (the "Designated Office"). The Preferred Securities to be
purchased by the Purchaser hereunder will be represented by one or more
definitive Preferred Securities in certificated form registered in such
name as requested by the Purchaser at least twenty-four hours prior to
the Time of Delivery. The time and date of such delivery
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and payment (the "Time of Delivery") shall be 9:30 a.m., New York City
time, on September 21, 2000 or such other time and date as the
Purchaser, the Trust and the Company may agree upon in writing.
(b) Upon the issuance thereof, each of the certificates
representing the Preferred Securities shall bear the following legend,
in addition to any other legend specified in the Trust Agreement:
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE
FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1)
REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED
IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT HAS ACQUIRED THE
SECURITIES IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE
903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (2) AGREES THAT IT
WILL NOT PRIOR TO THE EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO
SALES OF THE SECURITY EVIDENCED HEREBY UNDER RULE 144(k) UNDER THE
SECURITIES ACT (OR ANY SUCCESSOR PROVISION) RESELL OR OTHERWISE
TRANSFER THE SECURITIES EVIDENCED HEREBY EXCEPT (A) TO MUTUAL RISK
MANAGEMENT LTD. OR ANY AFFILIATE THEREOF, (B) TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES
ACT OR (C) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE
903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT AND (3) AGREES THAT
IT WILL DELIVER TO EACH PERSON TO WHOM THE SECURITIES EVIDENCED HEREBY
ARE TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
THIS LEGEND WILL BE REMOVED AFTER THE EXPIRATION OF THE HOLDING PERIOD
APPLICABLE TO SALES OF THE SECURITIES EVIDENCED HEREBY UNDER RULE
144(k) UNDER THE SECURITIES ACT.
(c) The documents to be delivered at the Time of Delivery by or
on behalf of the parties hereto pursuant to Section 7 hereof, including
the
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cross-receipt for the Preferred Securities, will be delivered at such
time and date at the Designated Office, and the Preferred Securities
will be delivered at the Designated Office, all at the Time of
Delivery. A meeting will be held at the Designated Office prior to the
Time of Delivery, at which meeting the final drafts of the documents to
be delivered pursuant to the preceding sentence will be available for
review by the parties hereto. The term "Business Day" shall mean each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on
which banking institutions in New York are generally authorized or
obligated by law or executive order to close.
5. Covenants of the MRM Parties. The MRM Parties, jointly and
severally, agree with the Purchaser:
(a) So long as the Preferred Securities are outstanding and
to the extent not available on the Guarantor's website at
xxxx://xxx.xxxxxxx.xxx or the Commission's website at
xxxx://xxx.xxx.xxx, (i) to mail and make generally available as soon as
practicable after the end of each fiscal year to the Purchaser a
financial report of the Guarantor and its subsidiaries on a
consolidated basis, all such financial reports to include a
consolidated balance sheet, a consolidated statement of operations, a
consolidated statement of cash flows and a consolidated statement of
shareholders' equity as of the end of and for such fiscal year,
together with comparable information as of the end of and for the
preceding year, certified by the Guarantor's independent public
accountants and (ii) to mail and make generally available as soon as
practicable after the end of each quarterly period (except for the last
quarterly period of each fiscal year) to the Purchaser, a consolidated
balance sheet, a consolidated statement of operations and a
consolidated statement of cash flows as of the end of and for such
period, and for the period from the beginning of such year to the close
of such quarterly period, together with comparable information for the
corresponding periods of the preceding year.
(b) If the Purchaser fails to purchase the Preferred Securities
due to the failure of any MRM Party to comply with any of the
conditions specified in Section 7 hereof, or, if this Agreement shall
be terminated in accordance with the provisions of Section 9 hereof
prior to the Time of Delivery, to pay the reasonable fees and
disbursements of Xxxxx Xxxx & Xxxxxxxx, special counsel to the
Purchaser, and, if the Purchaser shall not take up and pay for the
Preferred Securities due to the failure of any MRM Party to comply with
any of the conditions specified in Section 7 hereof, to reimburse the
Purchaser for its reasonable out-of-pocket expenses incurred in
connection with the financing contemplated by this Agreement.
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6. Expenses. The Company covenants and agrees with the Purchaser
that the Company will pay or cause to be paid the following: (i) any fees
charged by securities rating services for rating the Preferred Securities; (ii)
the cost of preparing the certificates for the Preferred Securities and the
Senior Notes; (iii) the fees and expenses of the Trustees, the Indenture Trustee
and the Guarantee Trustee and any other agent thereof and the fees and
disbursements of their counsel; (iv) the cost and charges of any transfer agent
or registrar or dividend disbursing agent; and (v) all other costs and expenses
incident to the performance of its obligations hereunder that are not otherwise
specifically provided for in this Section 6. It is understood, however, that,
except as provided in this Section 6, Section 5(b) and Section 9 hereof, the
Purchaser will pay its own costs and expenses, including, without limitation,
the fees of its counsel.
7. Conditions on the Purchaser's Obligations. The obligations of the
Purchaser shall be subject to (i) the condition that all representations and
warranties of the MRM Parties herein are, at and as of the Time of Delivery,
true and correct, (ii) the condition that the MRM Parties shall have performed
all of their respective obligations hereunder theretofore to be performed and
(iii) the following additional conditions:
(a) Xxxxx Xxxx & Xxxxxxxx, special counsel for the Purchaser,
shall have furnished to the Purchaser such counsel's written opinion or
opinions, dated the Time of Delivery, with respect to the
enforceability of each of the Base Indenture, the Supplemental
Indenture, the Guarantee, the Common Securities Guarantee, the
Remarketing Agreement, the Forward Underwriting Agreement and this
Agreement and, when validly executed and delivered by the parties
hereto, the Secondary Purchase Agreement.
(b) Xxxxx, Xxxxx & Xxxxx, United States counsel to the Company
and the Guarantor, shall have furnished to the Purchaser such counsel's
written opinion or opinions, dated the Time of Delivery, in form and
substance satisfactory to the Purchaser, to the effect that:
(i) the Company and each Significant Subsidiary
incorporated in the United States is validly existing as a
corporation in good standing under the laws of its jurisdiction
of incorporation, with full corporate power and authority to own
lease, license and operate its properties and conduct the
business in which it is currently engaged;
(ii) the execution, delivery and performance of the
Transaction Documents by each of the MRM Parties and the
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consummation of the transactions contemplated by the
Transaction Documents do not and will not conflict with,
result in a breach or violation of any of the material terms
or provisions of, or constitute a default or require the
consent of any party under (i) the organizational documents of
any MRM Party or (ii) any material statute or any currently
existing material rule, regulation, judgment, order or decree
known to such counsel of any court or governmental agency or
body having jurisdiction over any of the MRM Parties or their
respective subsidiaries or the properties of any of the MRM
Parties or their respective subsidiaries (other than the
insurance and securities or Blue Sky laws of the various
states, as to which such counsel need express no opinion);
(iii) none of the MRM Parties is, and after giving
effect to the sale of the Senior Notes, the application of the
proceeds therefrom and the consummation of the transactions
contemplated hereby, none of the MRM Parties will be, an
"investment company" within the meaning of the Investment
Company Act;
(iv) each Transaction Document to which the Company is
or is to be a party has been duly authorized by the Company,
and each such Transaction Document contemplated to be in
effect at the Time of Delivery has been duly executed and
delivered by the Company; the Senior Notes are in the form
contemplated by the Indenture;
(v) each Transaction Document to which the Trust is
or is to be a party has been duly authorized by the Trust and
each such Transaction Document contemplated to be in effect at
the Time of Delivery has been duly executed and delivered by
the Trust;
(vi) each Transaction Document to which any MRM Party
is or is to be a party is, or in the case of Transaction
Documents not contemplated to be in effect at the Time of
Delivery, will when validly executed and delivered by such
party be, a valid and binding obligation of such party,
enforceable against such party in accordance with its terms,
except to the extent that enforcement thereof may be limited
by (i) bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect relating to
creditors' rights generally and (ii) general principles of
equity (regardless of whether enforcement is considered in a
proceeding in equity or at law);
14
(vii) to the best of such counsel's knowledge, the
Trust is not a party to or bound by any agreement or
instrument other than this Agreement, the Trust Agreement and
the agreements and instruments contemplated by the Trust
Agreement; to the best of such counsel's knowledge, there are
no legal or governmental proceedings pending to which the
Trust is a party or of which any property of the Trust is the
subject and no such proceedings are threatened or contemplated
by governmental authorities or threatened by others; and
(viii) assuming the accuracy of the representations and
warranties made by the Purchaser in Section 2, no order,
license, consent, authorization or approval of, or exemption
by, or the giving of notice to, or the registration with any
federal, state, municipal or other governmental department,
commission, board, bureau, agency or instrumentality, and no
filing, recording, publication or registration in any public
office or any other place, was or is now required to be
obtained by any MRM Party for the due execution or delivery
of, or the performance of its obligations under, the
Transaction Documents, except such as may be required under
state or foreign insurance and securities or Blue Sky laws
and, in the case of performance of the Forward Underwriting
Agreement, under the Act.
The foregoing opinions may be limited to the laws of
Delaware, New York and the federal law of the United States.
In giving such opinion, such counsel may rely, as to matters
of Delaware law, upon the opinion of Xxxxxxxx, Xxxxxx &
Finger, P.A., special Delaware counsel to the MRM Parties, in
which case the opinion shall state that such counsel believes
that you and they are entitled to so rely.
(c) Xxxxxxx X'Xxxxx, Esq., General Counsel of the Guarantor,
shall have furnished to the Purchaser such counsel's written opinion
or opinions, dated the Time of Delivery, in form and substance
satisfactory to the Purchaser, to the effect that:
(i) each of the Guarantor, the Company and their
Significant Subsidiaries is duly qualified as a foreign
corporation to transact business and is in good standing in
each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or
the conduct of business, except
15
where the failure to so qualify or be in good standing would
not, individually and in the aggregate, have a Material
Adverse Effect;
(ii) all of the issued and outstanding capital stock of
each of the Company and each Significant Subsidiary of the
Guarantor has been authorized and validly issued, is fully
paid and non-assessable and, except as set forth in the SEC
Disclosure Documents or created in connection with the Letter
of Credit dated November 1, 1996, as amended May 29, 1997, all
such shares are owned by the Guarantor, directly or through
its subsidiaries, free and clear of any Lien;
(iii) each of the Guarantor and its subsidiaries
(including the Company) possess such Governmental Licenses
issued by appropriate federal, state, local or foreign
regulatory agencies or bodies necessary to conduct the
business now operated by it except where the failure to
possess any such permits, licenses, approvals, consents and
other authorizations would not, individually or in the
aggregate, result in a Material Adverse Effect, and neither
the Guarantor nor any subsidiary (including the Company) has
received any notice of proceedings relating to the revocation
or modification of any such certificate, authorization or
permit which, individually or in the aggregate, if the subject
of an unfavorable decision, ruling or finding, would result in
a Material Adverse Effect, except as described in the SEC
Disclosure Documents;
(iv) the execution, delivery and performance of the
Transaction Documents by each of the MRM Parties and the
consummation of the transactions contemplated by the
Transaction Documents do not and will not conflict with,
result in a breach or violation of any of the material terms
or provisions of, or constitute a default or require the
consent of any party under (A) any material indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument known to such counsel to which any of the MRM
Parties or their respective subsidiaries is a party, by which
any of the MRM Parties or their respective subsidiaries is
bound or to which the property or assets of any of the MRM
Parties or their respective subsidiaries is subject (except
for such breaches or violations or defaults that would not
have a Material Adverse Effect) or (B) any material statute or
any currently existing material rule, regulation, judgment,
order or decree of any court or governmental agency or body
having jurisdiction over any of the MRM Parties or their
respective subsidiaries or the properties of
16
any of the MRM Parties or their respective subsidiaries, which
in any event relates to state insurance laws;
(v) to the best of such counsel's knowledge, and except
as otherwise disclosed in the SEC Disclosure Documents, there
are no legal or governmental proceedings pending to which the
Guarantor or any of its subsidiaries is a party or of which
any property of the Guarantor or any of its subsidiaries is
the subject which, if determined adversely to the Guarantor or
any of its subsidiaries, would in the aggregate have a
Material Adverse Effect; to the best of such counsel's
knowledge, no such proceedings are threatened or contemplated
by governmental authorities or threatened by others; and
(vi) no order, license, consent, authorization or
approval of, or exemption by, or the giving of notice to, or
the registration with any federal, state, municipal or other
governmental department, commission, board, bureau, agency or
instrumentality, having jurisdiction over insurance laws was
or is now required to be obtained by any MRM Party for the due
execution or delivery of, or the performance of its
obligations under, the Transaction Documents.
(d) Xxxxxxx Xxxx & Xxxxxxx, Bermuda counsel to the Guarantor,
shall have furnished to the Purchaser such counsel's written opinion or
opinions, dated the Time of Delivery, in form and substance
satisfactory to the Purchaser, to the effect that:
(i) the Guarantor and each Significant Subsidiary of
the Guarantor which is incorporated in Bermuda is validly
existing as a corporation in good standing under the laws of
Bermuda;
(ii) all of the issued and outstanding capital stock of
the Guarantor has been authorized and validly issued, is fully
paid and non-assessable;
(iii) to the best of such counsel's knowledge, and except
as otherwise disclosed in the SEC Disclosure Documents, there
are no legal or governmental proceedings pending in Bermuda to
which the Guarantor is a party;
(iv) each Transaction Document to which Guarantor is or
is to be a party has been duly authorized and each such
Transaction
17
Document contemplated to be in effect at the Time of Delivery,
has been duly executed and delivered by the Guarantor;
(v) the execution, delivery and performance of the
Transaction Documents by the Guarantor and the consummation of
the transactions contemplated by the Transaction Documents do
not and will not (A) violate any provision the organizational
documents of the Guarantor; (B) contravene any provision of
any law, public rule or regulation of Bermuda applicable to
the Guarantor; (C) to the best of such counsel's knowledge,
contravene any existing published order or decree of the
courts of Bermuda by which the Guarantor is bound or by which
its properties or assets may be affected; or (D) require any
consent, approval or authorization or order of, or
qualification with, any Bermuda governmental agency in
connection with the offer and sale of the Senior Notes or the
Offered Shares of the Guarantor issuable pursuant to the
Forward Underwriting Agreement;
(vi) all statements made in the SEC Disclosure
Documents with regard to statutes, regulations, rules,
treaties and other laws of Bermuda and enforcement of
judgments in the Bermuda are accurate;
(vii) to the extent that the laws of Bermuda are
relevant, the Guarantor has legally, validly, effectively and
irrevocably submitted to the jurisdiction of the federal and
state courts of the United States having jurisdiction in the
State of New York, County of New York, and has legally,
validly and effectively appointed Mutual Group Ltd. as the
authorized agent of the Guarantor for the purposes described
in the Transaction Documents assuming this to be the case as a
matter of the applicable federal and state laws;
(viii) the choice of the laws of New York or Delaware, as
the case may be, United States of America as the governing law
of the Transaction Documents is a valid choice of law and
would be recognized and given effect to in any action brought
before a court of competent jurisdiction in Bermuda, except
for those laws (i) which such court considers to be procedural
in nature, (ii) which are revenue or penal laws or (iii) the
application of which would be inconsistent with public policy,
as such term is interpreted under the laws of Bermuda;
18
(ix) the courts of Bermuda would recognize as a valid
judgment, a final and conclusive judgment in personam obtained
in the New York or Delaware courts against the Guarantor based
upon the Transaction Documents under which a sum of money is
payable (other than a sum of money payable in respect of
multiple damages, taxes or other charges of a like nature or
in respect of a fine or other penalty) and would give a
judgment based thereon provided that (a) such courts had
proper jurisdiction over the parties subject to such judgment,
(b) such courts did not contravene the rules of natural
justice of Bermuda, (c) such judgment was not obtained by
fraud, (d) the enforcement of the judgment would not be
contrary to the public policy of Bermuda, (e) no new
admissible evidence relevant to the action is submitted prior
to the rendering of the judgment by the courts of Bermuda and
(f) there is due compliance with the correct procedures under
the laws of Bermuda; and
(x) each Significant Subsidiary of the Guarantor which
is incorporated in Bermuda is duly registered as an insurer
under the Insurance Act of 1978, as amended by the Insurance
Amendment Act of 1995, and the regulations promulgated
thereunder (together, the "Insurance Act") and as so
registered, each such Subsidiary may conduct that insurance
business which it is described in the SEC Disclosure Documents
as carrying on; and, based solely on the certificates of
compliance and without independent inquiry, each such
Subsidiary has filed with the appropriate Bermuda governmental
authority all reports, documents or other information required
to be filed under the Insurance Act. On the basis that the
Guarantor carries on its business as set forth in the SEC
Disclosure Documents, there is no requirement that it be
licensed under the Insurance Act.
(e) Xxxxx, Xxxxx & Xxxxx, tax counsel to the Company and the
Trust, shall have furnished to the Purchaser such counsel's written
opinion or opinions, dated the Time of Delivery, in form and substance
satisfactory to the Purchaser, to the effect that the Trust will be
classified as a grantor trust for United States federal income tax
purposes and not as an association or publicly traded partnership
taxable as a corporation.
(f) Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel
to the MRM Parties, shall have furnished to the Purchaser such
counsel's written opinion or opinions, dated the Time of Delivery, in
form and substance satisfactory to the Purchaser, to the effect that:
19
(i) the Trust has been duly created and is validly
existing in good standing as a business trust under the
Business Trust Act, and all filings required under the laws of
the State of Delaware with respect to the creation and valid
existence of the Trust as a business trust have been made;
(ii) under the Business Trust Act and the Trust
Agreement, the Trust has the trust power and authority to own
property and conduct its business, all as described in the
Trust Agreement, and to enter into and perform its obligations
under each Transaction Document to which it is or is to be a
party;
(iii) the Preferred Securities have been duly authorized
under the Trust Agreement and, when issued and delivered
against payment of the consideration as set forth in this
Agreement, the Preferred Securities will be validly issued
and, subject to the qualifications set forth in this
paragraph, fully paid and nonassessable undivided beneficial
interests in the assets of the Trust. The holders of the
Preferred Securities will be entitled to the benefits of the
Trust Agreement and, as beneficial owners of the Trust, will
be entitled to the same limitation of personal liability
extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of
Delaware. Such counsel may note that the holders of Preferred
Securities may be obligated pursuant to the Trust Agreement to
(i) provide indemnity and/or security in connection with and
pay taxes or governmental charges arising from transfers or
exchanges of Preferred Securities certificates and the
issuance of replacement Preferred Securities certificates and
(ii) provide security or indemnity in connection with requests
of or directions to the Property Trustee to exercise its
rights and remedies under the Trust Agreement;
(iv) the Common Securities have been duly authorized
under the Trust Agreement and, when issued and delivered by
the Trust to the Company against payment therefor, will be
validly issued undivided beneficial interests in the assets of
the Trust;
(v) under the Business Trust Act and the Trust
Agreement, the issuance of the Preferred Securities and the
Common Securities is not subject to preemptive or other
similar rights;
20
(vi) under the Trust Agreement and the Business Trust
Act, the execution and delivery by the Trust of each of the
Transaction Documents to which the Trust is or is to be a
party, and the performance by the Trust of its obligations
thereunder, have been duly authorized by all necessary trust
action on the part of the Trust;
(vii) the Trust Agreement constitutes a valid and binding
obligation of the Company and the Trustees and is enforceable
against the Company and the Trustees in accordance with its
terms;
(viii) the issuance and sale by the Trust of the Preferred
Securities, the purchase by the Trust of the Senior Notes, the
execution, delivery and performance by the Trust of each of
the Transaction Documents to which it is or is to be a party,
the consummation by the Trust of the transactions contemplated
thereby and compliance by the Trust with its obligations
thereunder do not violate (i) any of the provisions of the
Certificate of Trust or the Trust Agreement or (ii) any
applicable Delaware law or Delaware administrative regulation;
and
(ix) no filing with, or authorization, approval,
consent, license, order, registration, qualification or decree
of, any Delaware court or Delaware governmental authority or
Delaware agency is necessary or required solely in connection
with the issuance and sale by the Trust of the Preferred
Securities, the purchase by the Trust of the Senior Notes, the
execution, delivery and performance by the Trust of the
Transaction Documents to which it is or is to be a party, the
consummation by the Trust of the transactions contemplated
thereby and compliance by the Trust with its obligations
thereunder.
(g) That, between the date hereof and the Time of Delivery,
there has been no downgrading of the investment ratings of the
Guarantor's debt securities or preferred stock by Standard & Poor's
Ratings Services, Xxxxx'x Investors Service, Inc. or Duff & Xxxxxx
Credit Rating Co., and the Guarantor shall not have been placed on
"credit watch" or "credit review" with negative implications by any of
such statistical rating organizations if any of such occurrences shall,
in the judgment of the Purchaser, impair the creditworthiness of the
Guarantor.
21
(h) The Transaction Documents contemplated to be in effect at
the Time of Delivery shall have been executed and delivered by the
other parties thereto, in each case in a form reasonably satisfactory
to the Purchaser.
(i) The MRM Parties shall have furnished or caused to be
furnished to the Purchaser at the Time of Delivery certificates of
officers or trustees, as the case may be, of the MRM Parties to the
effect that to the best of such person's knowledge, (i) during the
period beginning on the date of the execution of this Agreement and
ending at the Time of Delivery, there has been no material adverse
change in the condition (financial or otherwise) business, net worth or
results of operations of the Guarantor and its subsidiaries, taken as a
whole, or of the Trust, (ii) the representations and warranties of each
of the MRM Parties contained herein at and as of the Time of Delivery
are true and correct and (iii) each of the MRM Parties has complied
with all agreements and satisfied all conditions to be performed or
satisfied by it at or prior to the Time of Delivery.
8. Survival. The respective indemnities, agreements, representations
and warranties and other statements of the MRM Parties and the Purchaser, as set
forth in this Agreement or made by or on behalf of them, respectively, pursuant
to this Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of the Purchaser, the MRM Parties, or any controlling person of the Purchaser,
or any MRM Party, or any officer, director or Administrative Trustee of any MRM
Party, and shall survive delivery of and payment for the Preferred Securities.
9. Termination.
(a) This Agreement may be terminated at any time prior to the
Time of Delivery by the Purchaser if, prior to such time, any of the
following events shall have occurred: (i) a suspension or material
limitation in trading in securities generally on the New York Stock
Exchange; (ii) a suspension or material limitation in trading of the
common stock of the Guarantor by the Commission or by the principal
national securities exchange or automated quotation system on which the
common stock of the Guarantor is listed or quoted; (iii) a general
moratorium on commercial banking activities declared by either Federal
or New York State authorities; or (iv) the outbreak or escalation of
hostilities involving the United States or the declaration by the
United States of a national emergency or war, if the effect of any such
event specified in this Section 9(a) in the judgment of the Purchaser
makes it impracticable or
22
inadvisable to proceed with the transactions contemplated hereby; if
the Purchaser elects to terminate this Agreement in accordance with
this Section 9(a), the Purchaser will promptly notify the Company by
telephone or telecopy, confirmed in writing;
(b) This Agreement shall terminate if the Time of Delivery has
not occurred on or before September 29, 2000; and
(c) If the Purchaser fails to perform its obligations under this
Agreement for any reason permitted hereunder, or if the sale of the
Preferred Securities to the Purchaser contemplated hereby is not
consummated because any MRM Party is unable to comply with the terms
hereof, subject to Section 5(b), (i) the MRM Parties shall not be under
any obligation under this Agreement and shall not be liable to the
Purchaser for the loss of anticipated profits from the transactions
contemplated by this Agreement and (ii) the Purchaser shall not be
under any obligation under this Agreement and shall have no liability
to the MRM Parties under this Agreement; and
(d) Notwithstanding the foregoing, the provisions of Sections 6
and 8 shall survive any termination of this Agreement.
10. Limitation of Liability of the Owner Trustee. It is expressly
understood and agreed by the parties hereto that (a) this Agreement is executed
and delivered by Wilmington Trust Company, not individually or personally but
solely as the owner trustee of the Purchaser, in the exercise of the powers and
authority conferred and vested in it, (b) each of the representations,
undertakings and agreements herein made on the part of the Purchaser is made and
intended not as personal representations, undertakings and agreements by
Wilmington Trust Company but made and intended for the purpose of binding only
the Purchaser, (c) nothing herein contained shall be construed as creating any
liability on Wilmington Trust Company, individually or personally, to perform
any covenant, either expressed or implied, contained herein, all liability, if
any, being expressly waived by the parties hereto and by any person claiming by,
through or under the parties hereto and (d) under no circumstances shall
Wilmington Trust Company be personally liable for the payment of any
indebtedness or expenses of the Purchaser or be liable for the breach or failure
of any obligation, representation, warranty or covenant made or undertaken by
the Purchaser under this Agreement or any other related documents.
11. Notice. All statements, requests, notices and agreements
hereunder shall be in writing, and if to the Purchaser, shall be delivered or
sent by mail, telex or facsimile transmission to Intrepid Funding Xxxxxx Xxxxx,
Xxxxxx Xxxxxx Xxxxx,
00
0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-000, facsimile: (302) 651-
8882, Attention: Corporate Trust Administration; and if to any MRM Party, shall
be delivered or sent by mail, telex or facsimile transmission to Mutual Risk
Management Ltd., 00 Xxxxxx Xxxxxx, Xxxxxxxx, XX 00 Xxxxxxx, Xxxxxxxxx: Xxxxx X.
Xxxxx, Telephone: 000-000-0000, Telecopier: 000-000-0000. Any such statements,
requests, notices or agreements shall take effect upon receipt thereof.
12. Assignment. This Agreement shall be binding upon, and inure solely
to the benefit of, the Purchaser and the MRM Parties, and to the extent provided
in Section 8 hereof, the officers, directors and administrative trustees of any
MRM Party, each person who controls any MRM Party, and their respective heirs,
executors, administrators, successors and assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement.
13. 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.
14. Counterparts. This Agreement may be executed by any one or more
of the parties hereto and thereto in any number of counterparts, each of which
shall be deemed to be an original, but all such respective counterparts shall
together constitute one and the same instrument.
24
If the foregoing is in accordance with your understanding, please sign
and return to the MRM Parties a counterpart hereof, at which time this
instrument, along with all counterparts, will become a binding agreement among
the Purchaser and the MRM Parties.
Very truly yours,
MRM CAPITAL TRUST I
By: MUTUAL GROUP LTD.
By: /s/ Xxxxxxx X'Xxxxx
--------------------------------
Title: Vice President
MUTUAL GROUP LTD.
By: /s/ Xxxxxxx X'Xxxxx
--------------------------------
Title: Vice President
MUTUAL RISK MANAGEMENT LTD.
By: /s/ Xxxxxxxxx Xxxxx
--------------------------------
Title: Secretary
Accepted as of the date hereof:
INTREPID FUNDING MASTER TRUST
By: Wilmington Trust Company, not in its
individual capacity, but solely as Owner Trustee
By: /s/ Xxxx Xxx Xxxxxxx
---------------------------------------------
Title: Senior Financial Services Officer
25
SCHEDULE I
Number of
Preferred
Securities to
Purchaser be Purchased
----------- --------------
Intrepid Funding Master Trust............... 40,000
26
