COMMON SECURITIES GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT dated as of September 21, 2000 is executed and
delivered by Mutual Group Ltd., a Delaware corporation (the "Guar antor") and
Mutual Risk Management Ltd., a Bermuda corporation ("MRM"), for the benefit of
the holders from time to time of the Common Securities (as defined herein) of
MRM Capital Trust I, a statutory business trust organized under the laws of the
State of Delaware (the "Issuer").
WHEREAS, pursuant to the Amended and Restated Trust Agreement (the
"Trust Agreement") dated as of September 21, 2000 among the Trustees of the
Issuer named therein, the Guarantor, as Sponsor (the "Sponsor"), and the holders
from time to time of undivided beneficial interests in the assets of the Issuer,
the Issuer is issuing on the date hereof 1,240 Auction Rate Reset Common
Securities (liquidation amount $1,000 per common security) (the "Common
Securities") representing common undivided beneficial interests in the assets of
the Issuer which, under certain circumstances, are subordinated to the Preferred
Securities, and having the terms set forth in the Trust Agreement.
WHEREAS, the Common Securities will be issued by the Issuer and the
proceeds thereof, together with the proceeds from the issuance by the Issuer of
the Preferred Securities (as defined herein), will be used to purchase the
Senior Notes (as defined in the Trust Agreement) of the Sponsor, which will be
deposited with The Chase Manhattan Bank, a New York banking corporation, as
Property Trustee under the Trust Agreement, as trust assets;
WHEREAS, as incentive for the Holders (as defined herein) to purchase
the Common Securities, the Guarantor desires to irrevocably and unconditionally
to agree, to the extent set forth in this Guarantee Agreement, to pay the
Guarantee Payments (as defined herein) to the Holders and to make certain other
payments on the terms and conditions set forth herein;
WHEREAS, as incentive for the Holders to purchase the Common
Securities, MRM desires to irrevocably and unconditionally to guarantee, to the
extent set forth in this Guarantee Agreement, the due and punctual payment of
the Guarantee Payments on the terms and conditions set forth herein; and
WHEREAS, the Guarantor and MRM are executing and delivering for the
benefit of the holders of the Preferred Securities (as defined herein) a
guarantee agreement (the "Preferred Securities Guarantee Agreement") with terms
substantially identical to those of this Guarantee Agreement, except that if an
Event of Default (as defined in the Indenture (as defined in the Trust
Agreement)) has occurred and is continuing, the rights of the Holders to receive
Guarantee Payments under this Guarantee Agreement shall be subordinated to the
rights of the holders of Preferred Securities to receive payments under the
Preferred Securities Guarantee Agreement.
NOW, THEREFORE, in consideration of the purchase by each Holder, which
purchase the Guarantor hereby agrees shall benefit the Guarantor and which
purchase MRM hereby agrees shall benefit MRM, the Guarantor and MRM execute and
deliver this Guarantee Agreement for the benefit of the Holders.
ARTICLE 1
Definitions
Section 1.01. Definitions. In this Guarantee Agreement, unless the
context otherwise requires, the terms set forth below shall have the following
meanings. Terms defined in the Trust Agreement as at the date of execution of
this Guarantee Agreement have the same meaning when used in this Guarantee
Agreement unless otherwise defined in this Guarantee Agreement. The singular
includes the plural and vice versa.
"Guarantee Payments" shall mean the following payments or
distributions, without duplication, with respect to the Common Securities, to
the extent not paid or made by or on behalf of the Issuer: (i) any accrued and
unpaid Distributions which are required to be paid on such Common Securities to
the extent the Issuer shall have funds available therefor, (ii) the redemption
price, including all accrued and unpaid Distributions to the date of redemption
(the "Redemption Price") to the extent the Issuer shall have funds available
therefor, with respect to any Com mon Securities called for redemption by the
Issuer, and (iii) upon a voluntary or involuntary dissolution, winding-up or
liquidation of the Issuer (other than in connection with the distribution of
Senior Notes to the Holders in exchange for Common Securities as provided in the
Trust Agreement), the lesser of (a) the aggregate of the liquidation amount and
all accrued and unpaid Distributions on the Common Securities to the date of
payment, to the extent the Issuer shall have funds available therefor and (b)
the amount of assets of the Issuer remaining avail able for distribution to the
Holders in liquidation of the Issuer (in either case, the "Liquidation
Distribution").
"Holder" shall mean any holder, as registered on the books and records
of the Issuer, of any Common Securities.
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"Preferred Securities" shall mean the Auction Rate Reset Preferred
Securities (liquidation amount $1,000 per preferred security) of the Issuer.
ARTICLE 2
Mutual Group Ltd. Guarantee
Section 2.01. Mutual Group Ltd. Guarantee. The Guarantor irrevocably
and unconditionally agrees to pay in full the Guarantee Payments (without
duplication of amounts theretofore paid by the Issuer) to the Holders, as and
when due, regardless of any defense, right of set-off or counterclaim which the
Issuer may have or assert, other than the defense of payment. The Guarantor's
obligation to make a Guarantee Payment may be satisfied by direct payment of
the required amounts by the Guarantor to the Holders or by causing the Issuer to
pay such amounts to the Holders.
Section 2.02. Waiver of Notice and Demand. The Guarantor hereby waives
notice of acceptance of this Guarantee Agreement and of any liability to which
it applies or may apply, presentment, demand for payment, any right to require a
proceeding first against the Issuer or any other Person before proceeding
against the Guarantor, protest, notice of nonpayment, notice of dishonor, notice
of redemption and all other notices and demands.
Section 2.03. Obligations Not Affected. The obligations, covenants,
agreements and duties of the Guarantor under this Guarantee Agreement shall in
no way be affected or impaired by reason of the happening from time to time of
any of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied agreement,
covenant, term or condition relating to the Common Securities to be performed or
observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or any
portion of the Distributions, Redemption Price, Liquidation Distribution or any
other sums payable under the terms of the Common Securities or the extension of
time for the performance of any other obligation under, arising out of, or in
connection with, the Common Securities (other than any extension of the maturity
date of the Senior Notes permitted by the Indenture);
(c) any failure, omission, delay or lack of diligence on the part of
the Holders to enforce, assert or exercise any right, privilege, power or remedy
con-
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ferred on the Holders pursuant to the terms of the Common Securities, or any
action on the part of the Issuer granting indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting, the Issuer or any of the assets of the
Issuer;
(e) any invalidity of, or defect or deficiency in the Common
Securities;
(f) the settlement or compromise of any obligation guaranteed hereby
or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise constitute a
legal or equitable discharge or defense of a guarantor, it being the intent of
this Section 2.03 that the obligations of the Guarantor hereunder shall be
absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or
obtain consent of, the Guarantor with respect to the happening of any of the
foregoing.
Section 2.04. Right of Holders. The Guarantor expressly acknowledges
that any Holder may institute a legal proceeding directly against the Guarantor
to enforce its rights under this Guarantee Agreement, without first instituting
a legal proceeding against the Issuer or any other Person.
Section 2.05. Guarantee of Payment. This Guarantee Agreement creates a
guarantee of payment and not of collection. This Guarantee Agreement will not be
discharged except by payment of the Guarantee Payments in full (without
duplication of amounts theretofore paid by the Issuer) or upon distribution of
Senior Notes to the Holders as provided in the Trust Agreement.
Section 2.06. Subrogation. The Guarantor shall be subrogated to all (if
any) rights of the Holders against the Issuer in respect of any amounts paid to
such Holders by the Guarantor under this Guarantee Agreement; provided that the
Guarantor shall not (except to the extent required by applicable law) be
entitled to enforce or exercise any rights which it may acquire by way of
subrogation or any indemnity, reimbursement or other agreement, in all cases as
a result of payment under this Guarantee Agreement, if, at the time of any such
payment, any amounts are due and unpaid under this Guarantee Agreement. If any
amount shall be paid to the Guarantor in violation of the preceding sentence,
the Guarantor agrees to hold such amount in trust for the Holders and to pay
over such amount to the Holders.
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Section 2.07. Independent Obligations. The Guarantor acknowledges that
its obligations hereunder are independent of the obligations of the Issuer with
respect to the Common Securities and that the Guarantor shall be liable as
principal and as debtor hereunder to make Guarantee Payments pursuant to the
terms of this Guarantee Agreement notwithstanding the occurrence of any event
referred to in subsections (a) through (g), inclusive, of Section 2.03.
Section 2.08. Subordination. This Guarantee Agreement will constitute
an unsecured obligation of the Guarantor and will rank (a) subordinate and
junior in right of payment to all other liabilities of the Guarantor and (b)
pari passu with any guarantee now or hereafter entered into by the Guarantor in
respect of any preferred or preference stock of any Affiliate of the Guarantor;
provided that if an Event of Default (as defined in the Indenture) has occurred
and is continuing, the rights of the Holders to receive Guarantee Payments shall
be subordinated to the rights of the holders of the Preferred Securities to
receive payments under the Preferred Securities Guarantee Agreement.
ARTICLE 3
Mutual Risk Management Ltd. Guarantee
Section 3.01. Mutual Risk Management Ltd. Guarantee. MRM irrevocably
and unconditionally guarantees the due and punctual payment by the Guarantor of
the Guarantee Payments to the Holders, as and when the same shall become due and
payable in accordance with the terms of this Guarantee Agreement, regardless of
any defense, right of set-off or counterclaim which the Guarantor may have or
assert, other than the defense of payment. In case of the failure of the
Guarantor punctually to make any such Guarantee Payments, MRM hereby agrees to
cause any such payment to be made punctually as and when the same shall become
due and payable and as if such payment were made by the Guarantor. MRM's
obligation to make a Guarantee Payment may be satisfied by direct payment of the
required amounts by MRM to the Holders or by causing the Issuer or the Guarantor
to pay such amounts to the Holders. The Guarantee Trustee is entitled to enforce
the guarantee by MRM on behalf of the Holders.
Section 3.02. Waiver of Notice and Demand. MRM hereby waives notice of
acceptance of this Guarantee Agreement and of any liability to which it applies
or may apply, presentment, demand for payment, any right to require a proceeding
first against the Issuer, the Guarantor or any other Person before proceeding
against MRM, protest, notice of nonpayment, notice of dishonor, notice of
redemption and all other notices and demands.
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Section 3.03. Obligations Not Affected. The obligations, covenants,
agreements and duties of MRM under this Guarantee Agreement shall in no way be
affected or impaired by reason of the happening from time to time of any of the
following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer or the Guarantor of any express or
implied agreement, covenant, term or condition relating to the Common Securities
to be performed or observed by the Issuer or the Guarantor;
(b) the extension of time for the payment by the Issuer or the
Guarantor of all or any portion of the Distributions, Redemption Price,
Liquidation Distribution or any other sums payable under the terms of the Common
Securities or the extension of time for the performance of any other obligation
under, arising out of, or in connection with, the Common Securities (other than
any extension of the maturity date of the Senior Notes permitted by the
Indenture);
(c) any failure, omission, delay or lack of diligence on the part of
the Holders to enforce, assert or exercise any right, privilege, power or remedy
conferred on the Holders pursuant to the terms of the Common Securities, or any
action on the part of the Issuer or the Guarantor granting indulgence or
extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting, the Issuer or the Guarantor or any of
the assets of the Issuer or the Guarantor;
(e) any invalidity of, or defect or deficiency in the Common Securities
or the Guarantor's obligations under this Guarantee Agreement;
(f) the settlement or compromise of any obligation guaranteed hereby
or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise constitute a
legal or equitable discharge or defense of a guarantor, it being the intent of
this Section 3.03 that the obligations of MRM hereunder shall be absolute and
unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or
obtain consent of, MRM with respect to the happening of any of the foregoing.
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Section 3.04. Right of Holders. MRM expressly acknowledges that any
Holder may institute a legal proceeding directly against MRM to enforce its
rights under this Guarantee Agreement, without first instituting a legal
proceeding against the Issuer, the Guarantor or any other Person.
Section 3.05. Guarantee of Payment. This Guarantee Agreement creates a
guarantee of payment and not of collection. This Guarantee Agreement will not be
discharged except by payment of the Guarantee Payments in full (without
duplication of amounts theretofore paid by the Issuer or the Guarantor) or upon
distribution of Senior Notes to the Holders as provided in the Trust Agreement.
Section 3.06. Subrogation. MRM shall be subrogated to all (if any)
rights of the Holders against the Issuer in respect of any amounts paid to such
Holders by MRM under this Guarantee Agreement; provided that MRM shall not
(except to the extent required by applicable law) be entitled to enforce or
exercise any rights which it may acquire by way of subrogation or any indemnity,
reimbursement or other agreement, in all cases as a result of payment under this
Guarantee Agreement, if, at the time of any such payment, any amounts are due
and unpaid under this Guarantee Agreement. If any amount shall be paid to MRM in
violation of the preceding sentence, MRM agrees to hold such amount in trust for
the Holders and to pay over such amount to the Holders.
Section 3.07. Independent Obligations. MRM acknowledges that its
obligations hereunder are independent of the obligations of the Issuer and the
Guarantor with respect to the Common Securities and that MRM shall be liable as
principal and as debtor hereunder to make Guarantee Payments pursuant to the
terms of this Guarantee Agreement notwithstanding the occurrence of any event
referred to in subsections (a) through (g), inclusive, of Section 3.03.
Section 3.08. Subordination. This Guarantee Agreement will constitute
an unsecured obligation of MRM and will rank (a) subordinate and junior in right
of payment to all other liabilities of MRM and (b) pari passu with any guarantee
now or hereafter entered into by MRM in respect of any preferred or preference
stock of any Affiliate of MRM; provided that if an Event of Default (as defined
in the Indenture) has occurred and is continuing, the rights of the Holders to
receive Guarantee Payments shall be subordinated to the rights of the holders of
the Preferred Securities to receive payments under the Preferred Securities
Guarantee Agreement.
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ARTICLE 4
Termination
Section 4.01. Termination. This Guarantee Agreement shall terminate
upon the first to occur of (a) full payment of the Redemption Price of all
Common Securities, (b) upon the distribution of Senior Notes in exchange for all
outstanding Preferred Securities and Common Securities and (c) full payment of
the amounts payable in accordance with the Trust Agreement upon liquidation of
the Issuer. Notwithstanding the foregoing, this Guarantee Agreement will
continue to be effective or will be reinstated, as the case may be, if at any
time any Holder must restore payment of any sums paid under the Common
Securities or under this Guarantee Agreement.
ARTICLE 5
Miscellaneous
Section 5.01. Successors and Assigns. All guarantees and agreements
contained in this Guarantee Agreement shall bind the successors, assigns,
receivers, trustees and representatives of the Guarantor and of MRM and shall
inure to the benefit of the Holders of the Common Securities then outstanding.
Except in connection with a consolidation, merger or sale involving the
Guarantor or MRM that is permitted under the Indenture and pursuant to which the
assignee agrees in writing to perform the Guarantor's or MRM's obligations
hereunder, neither the Guarantor nor MRM shall assign its obligations hereunder.
Section 5.02. Amendments. Except with respect to any changes which do
not adversely affect the rights of the Holders in any material respect (in which
case no consent of the Holders will be required), this Guarantee Agreement may
only be amended with the prior approval of the Holders of not less than a
Majority in Liquidation Amount of all outstanding Common Securities. The
provisions of Section 12.02 of the Trust Agreement with respect to meetings of
the Holders shall apply to the giving of such approval.
Section 5.03. Notices. Any notice, request or other communication
required or permitted to be given hereunder shall be in writing, duly signed by
the party giving such notice, and shall be delivered, telecopied or mailed by
registered or certified mail, as follows:
(a) if given to the Issuer, in care of the Administrative Trustees at
the Issuer's mailing address set forth below (or such other address as the
Issuer may give notice of to the Holders):
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MRM Capital Trust I
c/o Mutual Group Ltd.
Xxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxxx X'Xxxxx
Telephone: 000-000-0000
Telecopier: 000-000-0000
(b) if given to the Guarantor, at the Guarantor's mailing address set
forth below (or such other address as the Guarantor may give notice of to the
Holders of the Common Securities):
Mutual Group Ltd.
Xxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxxx X'Xxxxx
Telephone: 000-000-0000
Telecopier: 000-000-0000
(c) if given to MRM, at MRM's mailing address set forth below (or such
other address as MRM may give notice of to the Holders of the Common
Securities):
Mutual Risk Management Ltd.
00 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00 Xxxxxxx
Xxxxxxxxx: Xxxxx X. Xxxxx
Telephone: 000-000-0000
Telecopier: 000-000-0000
(d) if given to any Holder, at the address set forth on the books and
records of the Issuer.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address of which no notice was given,
such notice or other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
Section 5.04. Benefit. This Guarantee Agreement is solely for the
benefit of Holders and is not separately transferable from the Common
Securities.
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Section 5.05. Interpretation. In this Guarantee Agreement, unless the
context otherwise requires:
(a) capitalized terms used in this Guarantee Agreement but not defined
in the preambles hereto have the respective meanings assigned to them in Section
1.01;
(b) a term defined anywhere in this Guarantee Agreement has the same
meaning throughout;
(c) all references to "the Guarantee Agreement" or "this Guarantee
Agreement" are to this Guarantee Agreement as modified, supplemented or
amended from time to time;
(d) all references in this Guarantee Agreement to Articles and Sections
are to Articles and Sections of this Guarantee Agreement unless otherwise
specified;
(e) a term defined in the Trust Indenture Act has the same meaning when
used in this Guarantee Agreement unless otherwise defined in this Guarantee
Agreement or unless the context otherwise requires.
(f) a reference to the singular includes the plural and vice versa; and
(g) the masculine, feminine or neuter genders used herein shall include
the masculine, feminine and neuter genders.
Section 5.06. Governing Law. THIS GUARANTEE AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO THE CONFLICT OF LAW PRINCIPLES THEREOF.
Section 5.07. Counterparts. This instrument may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
instrument.
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THIS GUARANTEE AGREEMENT is executed as of the day and year first above
written.
MUTUAL GROUP LTD.
By: /s/ Xxxxxxx X'Xxxxx
---------------------------
Title: Vice President
MUTUAL RISK MANAGEMENT
LTD.
By: /s/ Xxxxxxxxx Xxxxx
---------------------------
Title: Secretary
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