Exhibit 4.17
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PREFERRED SECURITIES GUARANTEE AGREEMENT
BETWEEN
MUTUAL RISK MANAGEMENT LTD.
AND
THE CHASE MANHATTAN BANK,
AS GUARANTEE TRUSTEE
DATED AS OF___________________
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TABLE OF CONTENTS
Page No.
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ARTICLE I
DEFINITIONS AND INTERPRETATIONS
SECTION 1.1 Definitions and Interpretations............................. 2
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act: Application............................ 6
SECTION 2.2 List of Holders............................................. 6
SECTION 2.3 Reports by the Guarantee Trustee............................ 6
SECTION 2.4 Periodic Reports to the Guarantee Trustee................... 7
SECTION 2.5 Evidence of Compliance with Conditions Precedent............ 7
SECTION 2.6 Events of Default; Waiver................................... 7
SECTION 2.7 Event of Default; Notice.................................... 7
SECTION 2.8 Conflicting Interests....................................... 8
ARTICLE III
POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Guarantee Trustee.................. 8
SECTION 3.2 Certain Rights of the Guarantee Trustee..................... 9
SECTION 3.3 Compensation................................................ 10
SECTION 3.4 Indemnity................................................... 11
ARTICLE IV
GUARANTEE TRUSTEE
SECTION 4.1 Guarantee Trustee; Eligibility.............................. 11
SECTION 4.2 Appointment, Removal and Resignation of Guarantee Trustees.. 12
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ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee............................................. 12
SECTION 5.2 Waiver of Notice and Demand........................... 12
SECTION 5.3 Obligations Not Affected.............................. 13
SECTION 5.4 Rights of Holders..................................... 14
SECTION 5.5 Guarantee of Payment.................................. 14
SECTION 5.6 Subrogation........................................... 14
SECTION 5.7 Independent Obligations............................... 15
SECTION 5.8 Net Payments.......................................... 15
ARTICLE VI
LIMITATION OF TRANSACTIONS; RANKING
SECTION 6.1 Limitation of Transactions............................ 16
SECTION 6.2 Ranking............................................... 17
SECTION 6.3 Pari Passu Guarantees................................. 17
ARTICLE VII
TERMINATION
SECTION 7.1 Termination........................................... 18
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1 Successors and Assigns................................ 18
SECTION 8.2 Amendments............................................ 18
SECTION 8.3 Notices............................................... 18
SECTION 8.4 Benefit............................................... 20
SECTION 8.5 Governing Law......................................... 20
SECTION 8.6 Submission to Jurisdiction............................ 20
SECTION 8.7 Counterparts.......................................... 21
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PREFERRED SECURITIES GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT, dated as of ________________________, is executed
and delivered by Mutual Risk Management Ltd., a Bermuda corporation (the
"Guarantor"), having its principal place of business at 44 Church Street,
Hamilton HM 12 Bermuda, and The Chase Manhattan Bank, having a corporate trust
office at 450 West 33rd Street, New York, New York, 10001, as trustee (the
"Guarantee Trustee"), for the benefit of the Holders (as defined herein) from
time to time of the Preferred Securities (as defined herein) of MRM Capital
Trust [ ], a Delaware statutory business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Trust Agreement, dated as of
______________, among the Trustees named therein, Mutual Group Ltd., a Delaware
corporation, as depositor (in such capacity, the "Depositor"), the Guarantor, as
Note issuer, and the Holders from time to time of undivided beneficial interests
in the assets of the Issuer (as amended from time to time, the "Trust
Agreement"), the Issuer is issuing on the date hereof $___________ ($___________
if the Underwriters' over-allotment option pursuant to the Underwriting
Agreement is exercised in full), aggregate liquidation preference of its _____%
preferred securities (liquidation preference $1,000 per preferred security) (the
"Preferred Securities") representing preferred undivided beneficial interests in
the assets of the Issuer and having the terms set forth in the Trust Agreement;
WHEREAS, the Preferred Securities will be issued by the Issuer and the
proceeds thereof, together with the proceeds from the issuance of the Issuer's
Common Securities (as defined herein), will be used to purchase the Notes (as
defined herein) of Mutual Risk Management (in its capacity as issuer of the
Notes, the "Note Issuer"), which will be deposited with The Chase Manhattan
Bank, as Property Trustee under the Trust Agreement, as trust assets; and
WHEREAS, as incentive for the Holders to purchase the Preferred Securities,
the Guarantor desires irrevocably and unconditionally to agree, to the extent
set forth in this Guarantee Agreement, to pay to the Holders of the Preferred
Securities the Guarantee Payments (as defined herein) and to make certain other
payments on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the purchase by each Holder of
Preferred Securities, which purchase the Guarantor hereby agrees shall benefit
the Guarantor, the Guarantor executes and delivers this Guarantee Agreement for
the benefit of the Holders from time to time of the Preferred Securities.
ARTICLE I
DEFINITIONS AND INTERPRETATIONS
SECTION 1.1 Definitions and Interpretations
In this Guarantee Agreement, unless the context otherwise requires:
(a) capitalized terms used in this Guarantee Agreement, but not defined in
the preamble hereto have the respective meanings assigned to them in this
Section 1.1 or in the Trust Agreement, as the case may be;
(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 Preferred Securities 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.
"Additional Amounts" means any additional amounts which are required hereby
or by the Notes, under circumstances specified herein or therein, to be paid by
the Guarantor in respect of certain taxes, assessments or other governmental
charges imposed on Holders specified therein and which are owing to such
Holders.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person; provided, however, that the Issuer shall not
be deemed to be an Affiliate of the Guarantor. For the purpose of this
definition, "control" when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
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"Common Securities" means the securities representing common undivided
beneficial interests in the assets of the Issuer.
"Event of Default" means a default by the Guarantor on any of its payment
or other obligations under this Guarantee Agreement; provided, that except with
respect to a default in payment of any Guarantee Payments, the Guarantor shall
have received notice of default from the Guarantee Trustee and shall not have
cured such default within 60 days after receipt of such notice.
"Guarantee Payments" means the following payments or distributions, without
duplication, with respect to the Preferred Securities, to the extent not paid or
made by or on behalf of the Issuer: (i) any accrued and unpaid Distributions (as
defined in the Trust Agreement) that are required to be paid on such Preferred
Securities, to the extent the Issuer shall have funds on hand available therefor
at such time, (ii) the redemption price, including all accumulated and unpaid
Distributions to the date of redemption (the "Redemption Price") with respect to
Preferred Securities called for redemption by the Issuer, to the extent the
Issuer shall have funds on hand available therefor at such time and (iii) upon a
voluntary or involuntary dissolution, winding-up or liquidation of the Issuer,
unless Notes are distributed to the Holders, the lesser of (a) the aggregate of
the liquidation preference of $1,000 per Preferred Security plus accumulated and
unpaid Distributions on the Preferred Securities to the date of payment, to the
extent the Issuer shall have funds on hand available to make such payment at
such time and (b) the amount of assets of the Issuer remaining available for
distribution to Holders in liquidation of the Issuer (in either case, the
"Liquidation Distribution").
"Guarantee Trustee" means The Chase Manhattan Bank, until a Successor
Guarantee Trustee has been appointed and has accepted such appointment pursuant
to the terms of this Guarantee Agreement and thereafter means each such
Successor Guarantee Trustee.
"Holder" shall mean any holder, as registered on the books and records of
the Issuer, of any Preferred Securities; provided, that in determining whether
the holders of the requisite percentage of Preferred Securities have given any
request, notice, consent or waiver hereunder, "Holder" shall not include the
Guarantor, the Depositor, the Guarantee Trustee or any Affiliate of the
Guarantor, the Depositor or the Guarantee Trustee.
"Indebtedness" means, with respect to any Person, whether recourse is to
all or a portion of the assets of such Person and whether or not contingent and
without duplication, (i) every obligation of such Person for money borrowed;
(ii) every obligation of such Person evidenced by bonds, debentures, notes or
other similar instruments, including obligations incurred in connection with the
acquisition of property, assets or businesses; (iii) every reimbursement
obligation of such Person with respect to letters of credit, bankers'
acceptances or similar facilities issued for the account of such Person; (iv)
every obligation of such Person issued or assumed as the deferred purchase price
of property or services (but excluding trade accounts payable); (v) every
capital lease obligation of such Person; (vi) every obligation of such Person
pursuant to derivative products, including interest rate, foreign exchange rate
and commodity
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forward contracts, options and swaps and similar arrangements; (vii) every
obligation of the type referred to in clauses (i) through (vi) of another Person
and all dividends of another Person the payment of which, in either case, such
Person has guaranteed or is responsible or liable for, directly or indirectly,
as obligor or otherwise; and (viii) any renewals, extensions, refundings,
amendments or modifications of any obligation of the type referred to in clauses
(i) through (vii).
"Indenture" means the Junior Subordinated Indenture dated as of
________________ between the Note Issuer and The Chase Manhattan Bank, as
trustee, and any indenture supplemental thereto pursuant to which the Notes are
to be issued to the Property Trustee of the Issuer.
"List of Holders" has the meaning specified in Section 2.2(a).
"Majority in liquidation preference of the Preferred Securities" means,
except as provided by the Trust Indenture Act, a vote by Holder(s), voting
separately as a class, of more than 50% of the liquidation preference of all
then outstanding Preferred Securities issued by the Issuer.
"Notes" means the series of subordinated debt securities of the Note Issuer
designated the _____% Junior Subordinated Deferrable Interest Notes due ____
held by the Property Trustee.
"Officer's Certificate" means, with respect to any Person, a certificate
signed by the Chairman of the Board of Directors, a Vice Chairman, the
President, any Vice President, the Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary of such Person, and delivered to the
Guarantee Trustee. Any Officer's Certificate delivered with respect to
compliance with a condition or covenant provided for in this Guarantee Agreement
(other than pursuant to Section 2.4) shall include:
(a) a statement that the officer signing the Officer's Certificate has read
the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by such officer in rendering the Officer's Certificate;
(c) a statement that such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such officer
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether, in the opinion of such officer, such
condition or covenant has been complied with.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association or government or any agency
or political subdivision thereof, or any other entity of whatever nature.
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"Responsible Officer," when used with respect to the Guarantee Trustee,
means the chairman or any vice-chairman of the board of directors, the chairman
or any vice-chairman of the executive committee of the board of directors, the
chairman of the trust committee, the president, any vice president, the
secretary, any assistant secretary, the treasurer, any assistant treasurer, the
cashier, any senior trust officer, any assistant cashier, any trust officer or
assistant trust officer, the controller or any assistant controller or any other
officer of the Guarantee Trustee customarily performing functions similar to
those performed by any of the above designated officers and also means, with
respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of his or her knowledge of and familiarity with the
particular subject.
"Senior Indebtedness" means, with respect to any Person, the principal of,
any premium and interest on (including interest accruing on or after the filing
of any petition in bankruptcy or for reorganization relating to such Person
whether or not such claim for post-petition interest is allowed in such
proceeding) and other amounts in respect of all Indebtedness of such Person,
whether incurred on or prior to the date of this Indenture or thereafter
incurred, unless, in the instrument creating or evidencing the same or pursuant
to which the same is outstanding, it is provided that such obligations are not
superior in right of payment to this Guarantee Agreement or to other
Indebtedness that is pari passu with, or subordinated to, this Guarantee
Agreement, provided, that Senior Indebtedness shall not be deemed to include (a)
Indebtedness under this Guarantee Agreement, (b) any Indebtedness of such Person
that, when incurred and without respect to any election under Section 1111(b) of
the Bankruptcy Reform Act of 1978, was without recourse to such Person, (c) any
Indebtedness of such Person to any of its Subsidiaries, (d) any Indebtedness of
such Person to any employee of such Person, and (e) trade accounts payable of
such Person.
"Subsidiary" means, in respect of any Person, a corporation more than 50%
of the outstanding voting stock of which is owned, directly or indirectly, by
such Person or by one or more other Subsidiaries, or by such Person and one or
more other Subsidiaries. For purposes of this definition, "voting stock" means
stock that ordinarily has voting power for the election of directors, whether at
all times or only so long as no senior class of stock has such voting power by
reason of any contingency.
"Successor Guarantee Trustee" means a successor Guarantee Trustee
possessing the qualifications to act as Guarantee Trustee under Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended.
"Underwriting Agreement" means an underwriting agreement, purchase
agreement or placement agreement executed and delivered by the Issuer, the
Guarantor and the underwriters named therein.
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ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act: Application
(a) This Guarantee Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Guarantee Agreement and
shall, to the extent applicable, be governed by such provisions. If any
provision of this Guarantee Agreement modifies or excludes any provision of the
Trust Indenture Act that may be so modified or excluded, the latter provision
shall be deemed to apply to this Guarantee Agreement as so modified or to be
excluded, as the case may be.
(b) If any provision of this Guarantee Agreement limits, qualifies or
conflicts with any duties imposed by Sections 310 to 317, inclusive, of the
Trust Indenture Act by Section 318(c) thereof, such required provision shall
control.
SECTION 2.2 List of Holders
(a) The Guarantor shall furnish or cause to be furnished to the Guarantee
Trustee (i) 15 days after each Regular Record Date (as defined in the
Indenture), a list, in such form as the Guarantee Trustee may reasonably
require, of the names and addresses of the Holders ("List of Holders") as of the
applicable date, and (ii) at such other times as the Guarantee Trustee may
request in writing, within 30 days after the receipt by the Guarantor of any
such request, a List of Holders as of a date not more than 15 days prior to the
time such list is furnished, in each case to the extent such information is in
the possession or control of the Guarantor and is not identical to a previously
supplied list of Holders or has not otherwise been received by the Guarantee
Trustee in its capacity as such or in its capacity as Security Registrar (as
defined in the Indenture). The Guarantee Trustee may destroy any List of Holders
previously given to it on receipt of a new List of Holders.
(b) The Guarantee Trustee shall comply with its obligations under Section
311(a), Section 311(b) and Section 312(b) of the Trust Indenture Act.
SECTION 2.3 Reports by the Guarantee Trustee
If required by Section 313(a) of the Trust Indenture Act, the Guarantee
Trustee shall, within 60 days after each September 15 following the date of this
Guarantee Agreement deliver to the Holders a brief report dated as of such
September 15, which complies with the provisions of Section 313(a). The
Guarantee Trustee shall also comply with the other requirements of Section 313
of the Trust Indenture Act.
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SECTION 2.4 Periodic Reports to the Guarantee Trustee
The Guarantor shall provide to the Guarantee Trustee, the Securities and
Exchange Commission and the Holders, such documents, reports and information, if
any, as required by Section 314 of the Trust Indenture Act and the compliance
certificate required by Section 314 of the Trust Indenture Act, in the form, in
the manner and at the times required by Section 314 of the Trust Indenture Act,
such compliance certificate to be provided within 120 days of the end of each
fiscal year of the Guarantor.
SECTION 2.5 Evidence of Compliance with Conditions Precedent
The Guarantor shall provide to the Guarantee Trustee such evidence of
compliance with such conditions precedent, if any, provided for in this
Guarantee Agreement that relate to any of the matters set forth in Section
314(c) of the Trust Indenture Act. Any certificate or opinion required to be
given by an officer pursuant to Section 314(c)(1) may be given in the form of an
Officer's Certificate.
SECTION 2.6 Events of Default; Waiver
The Holders of a Majority in liquidation preference of the Preferred
Securities may, by vote, on behalf of all Holders, waive any past Event of
Default and its consequences. Upon such waiver, any such Event of Default shall
cease to exist, and any Event of Default arising therefrom shall be deemed to
have been cured, for every purpose of this Guarantee Agreement, but no such
waiver shall extend to any subsequent or other Event of Default or impair any
right consequent thereon.
SECTION 2.7 Event of Default; Notice
(a) The Guarantee Trustee shall, within 90 days after the occurrence
of an Event of Default known to the Guarantee Trustee, transmit by mail, first
class postage prepaid, to the Holders, notices of all such Events of Default,
unless such defaults have been cured or waived before the giving of such notice,
provided, that except in the case of a default in the payment of a Guarantee
Payment, the Guarantee Trustee shall be protected in withholding such notice if
and so long as a the board of directors, the executive committee or a trust
committee of directors and/or Responsible Officers of the Guarantee Trustee in
good faith determines that the withholding of such notice is in the interests of
the Holders.
(b) The Guarantee Trustee shall not be deemed to have knowledge of any
Event of Default unless the Guarantee Trustee shall have received written
notice, or a Responsible Officer of the Guarantee Trustee charged with the
administration of the Trust Agreement shall have obtained written notice, of
such Event of Default from the Guarantor or a Holder.
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SECTION 2.8 Conflicting Interests
The Trust Agreement shall be deemed to be specifically described in this
Guarantee Agreement for the purposes of clause (i) of the first proviso
contained in Section 310(b) of the Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Guarantee Trustee
(a) The rights, immunities, duties and responsibilities of the Guarantee
Trustee shall be as provided by the Trust Indenture Act. Notwithstanding the
foregoing, no provision of this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur any finan cial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it. Whether or not therein expressly so provided,
every provision of this Guarantee Agreement relating to the conduct or affecting
the liability of or affording protection to the Guarantee Trustee shall be
subject to the provisions of this Section.
(b) This Guarantee Agreement shall be held by the Guarantee Trustee for the
benefit of the Holders, and the Guarantee Trustee shall not transfer this
Guarantee Agreement to any Person except a Holder exercising his or her rights
pursuant to Section 5.4(d) or to a Successor Guarantee Trustee on acceptance by
such Successor Guarantee Trustee of its appointment to act as Successor
Guarantee Trustee. The right, title and interest of the Guarantee Trustee shall
automatically vest in any Successor Guarantee Trustee, upon acceptance by such
Successor Guarantee Trustee of its appointment hereunder, and such vesting and
cessation of title shall be effective whether or not conveyancing documents have
been executed and delivered pursuant to the appointment of such Successor
Guarantee Trustee.
(c) Without limiting the effect of the first sentence of Section 3.1(a), no
provision of this Guarantee Agreement shall be construed to relieve the
Guarantee Trustee from liability for its own negligent action, its negligent
failure to act or its own bad faith or willful misconduct, except that:
(i) the Guarantee Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Guarantee
Trustee, unless it shall be proved that the Guarantee Trustee was negligent
in ascertaining the pertinent facts upon which such judgment was made; and
(ii) the Guarantee Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance with
the direction of the Holders of not less than a Majority in liquidation
preference of the Preferred Securities relating to
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the time, method and place of conducting any proceeding for any remedy
available to the Guarantee Trustee, or exercising any trust or power
conferred upon the Guarantee Trustee under this Guarantee Agreement.
(d) If an Event of Default has occurred and is continuing, the
Guarantee Trustee shall be entitled to enforce this Guarantee for the benefit of
the Holders.
SECTION 3.2 Certain Rights of the Guarantee Trustee
(a) Subject to the provisions of Section 3.1:
(i) The Guarantee Trustee may rely upon, and shall be fully
protected in acting or refraining from acting upon, any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to be genuine and to
have been signed, sent or presented by the proper party or parties.
(ii) Any direction or act of the Guarantor contemplated by this
Guarantee Agreement shall be sufficiently evidenced by an Officer's
Certificate of the Guarantor, unless otherwise prescribed herein.
(iii) Whenever, in the administration of this Guarantee Agreement,
the Guarantee Trustee shall deem it desirable that a matter be proved or
established before taking, suffering or omitting any action hereunder, the
Guarantee Trustee (unless other evidence is herein specifically prescribed)
may, in the absence of bad faith on its part, request and rely upon an
Officer's Certificate which, upon receipt of such request, shall be
promptly delivered by the Guarantor.
(iv) The Guarantee Trustee may consult with competent legal
counsel, and the written advice or opinion of such counsel with respect to
legal matters shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted to be taken by it
hereunder in good faith and in accordance with such advice or opinion. Such
counsel may be counsel to the Guarantor or any of its Affiliates and may
include any of its employees. The Guarantee Trustee shall have the right at
any time to seek instructions concerning the administration of this
Guarantee Agreement from any court of competent jurisdiction.
(v) The Guarantee Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Guarantee
Agreement at the request or direction of any Holder, unless such Holder
shall have provided to the Guarantee Trustee reasonable security and
indemnity against the costs, expenses (including attorneys' fees and
expenses) and liabilities that might be incurred by it in complying with
such request or direction, including such reasonable advances as may be
requested by the Guarantee Trustee.
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(vi) The Guarantee Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Guarantee Trustee, in its
discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit.
(vii) The Guarantee Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys, and the Guarantee Trustee shall not be responsible for
any misconduct or negligence on the part of any such agent or attorney
appointed with due care by it hereunder.
(viii) Any action taken by the Guarantee Trustee or its agents
hereunder shall bind the Holders, and the signature of the Guarantee
Trustee or its agents alone shall be sufficient and effective to perform
any such action. No third party shall be required to inquire as to the
authority of the Guarantee Trustee to so act or as to its compliance with
any of the terms and provisions of this Guarantee Agreement, both of which
shall be conclusively evidenced by the Guarantee Trustee's or its agent's
taking such action.
(ix) Whenever in the administration of this Guarantee Agreement the
Guarantee Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other action
hereunder, the Guarantee Trustee (A) may request instructions from the
Holders of a Majority in liquidation preference of the Preferred
Securities, (B) may refrain from enforcing such remedy or right or taking
such other action until such instructions are received, and (C) shall be
protected in acting in accordance with such instructions.
(b) No provision of this Guarantee Agreement shall be deemed to impose any
duty or obligation on the Guarantee Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it in any
jurisdiction in which it shall be illegal, or in which the Guarantee Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Guarantee Trustee
shall be construed to be a duty to act in accordance with such power and
authority.
SECTION 3.3 Compensation
The Guarantor agrees to pay the Guarantee Trustee from time to time
reasonable compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust) and to reimburse the Guarantee
Trustee upon request for all reasonable expenses, disbursements and advances
(including the reasonable fees and expenses of its attorneys and agents)
incurred or made by the Guarantee Trustee in accordance with any provision of
this Guarantee Agreement.
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The provisions of this Section 3.3 shall survive the termination of this
Guarantee Agreement or the resignation or removal of the Guarantee Trustee.
SECTION 3.4 Indemnity
The Guarantor agrees to indemnify the Guarantee Trustee for, and to hold it
harmless against, any loss, liability or expense incurred without negligence,
bad faith or willful misconduct on the part of the Guarantee Trustee, arising
out of or in connection with the acceptance or administration of this Guarantee
Agreement, including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance of any of its
powers or duties hereunder. The Guarantee Trustee will not claim or exact any
lien or charge on any Guarantee Payments as a result of any amount due to it
under this Guarantee Agreement.
The provisions of this Section 3.4 shall survive the termination of this
Guarantee Agreement or the resignation or removal of the Guarantee Trustee.
ARTICLE IV
GUARANTEE TRUSTEE
SECTION 4.1 Guarantee Trustee; Eligibility
(a) There shall at all times be a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a Person that is eligible pursuant to the Trust Indenture
Act to act as such and has a combined capital of at least 50 million U.S.
dollars ($50,000,000), and shall be a corporation meeting the requirements
of Section 310(a) of the Trust Indenture Act. If such corporation publishes
reports of condition at least annually pursuant to law or to the
requirements of the supervising or examining authority then, for the
purposes of this Section 4.1(a)(ii), the combined capital and surplus of
such corporation shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published.
(b) If at any time the Guarantee Trustee shall cease to be eligible to so
act under Section 4.1(a), the Guarantee Trustee shall immediately resign in the
manner and with the effect set out in Section 4.2(c).
(c) If the Guarantee Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act, the
Guarantee Trustee and Guarantor shall in all respects comply with the provisions
of Section 310(b) of the Trust Indenture Act, subject to the penultimate
paragraph thereof.
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SECTION 4.2 Appointment, Removal and Resignation of Guarantee Trustees
(a) Subject to Section 4.2(b), the Guarantee Trustee may be appointed
or removed with or without cause at any time by the Guarantor.
(b) The Guarantee Trustee shall not be removed in accordance with
Section 4.2(a) until a Successor Guarantee Trustee has been appointed and has
accepted such appointment by written instrument executed by such Successor
Guarantee Trustee and delivered to the Guarantor.
(c) The Guarantee Trustee appointed to office shall hold office until
a Successor Guarantee Trustee shall have been appointed or until its removal or
resignation. The Guarantee Trustee may resign from office (without need for
prior or subsequent accounting) by an instrument in writing executed by the
Guarantee Trustee and delivered to the Guarantor, which resignation shall not
take effect until a Successor Guarantee Trustee has been appointed and has
accepted such appointment by instrument in writing executed by such Successor
Guarantee Trustee and delivered to the Guarantor and the resigning Guarantee
Trustee.
(d) If no Successor Guarantee Trustee shall have been appointed and
accepted appointment as provided in this Section 4.2 within 30 days after
delivery to the Guarantor of an instrument of resignation, the resigning
Guarantee Trustee may petition any court of competent jurisdiction for
appointment of a Successor Guarantee Trustee. Such court may thereupon, after
prescribing such notice, if any, as it may deem proper, appoint a Successor
Guarantee Trustee.
ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee
The Guarantor irrevocably and unconditionally agrees to pay in full to the
Holders the Guarantee Payments (without duplication of amounts theretofore paid
by or on behalf of the Issuer), as and when due, regardless of any defense,
right of set-off or counterclaim that the Issuer may have or assert, other then
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, through the Note Issuer, to pay such
amounts to the Holders. The Guarantor shall give prompt written notice to the
Guarantee Trustee in the event it makes any direct payment hereunder.
SECTION 5.2 Waiver of Notice and Demand
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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
Guarantee Trustee, 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 5.3 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 Preferred 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 Preferred Securities or the extension
of time for the performance of any other obligation under, arising out of, or in
connection with, the Preferred Securities (other than an extension of time for
payment of Distributions, Redemption Price, Liquidation Distribution or other
sum payable that results from the extension of any interest payment period on
the Notes or so provided 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 Preferred 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
indebtedness 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 Preferred
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 5.3 that the obligations of the Guarantor hereunder shall be
absolute and unconditional under any and all circumstances.
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There shall be no obligation of the Holders to give notice to, or obtain
the consent of, the Guarantor with respect to the happening of any of the
foregoing.
SECTION 5.4 Rights of Holders
The Guarantor expressly acknowledges that: (a) this Guarantee Agreement
will be deposited with the Guarantee Trustee to be held for the benefit of the
Holders; (b) the Guarantee Trustee has the right to enforce this Guarantee
Agreement on behalf of the Holders; (c) the Holders of a Majority in liquidation
preference of the Preferred Securities have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the Guarantee
Trustee in respect of this Guarantee Agreement or to direct the exercise of any
trust or power conferred upon the Guarantee Trustee under this Guarantee
Agreement; provided, however, that, subject to Section 3.1, the Guarantee
Trustee shall have the right to decline to follow any such direction if the
Guarantee Trustee being advised by counsel determines that the action so
directed may not lawfully be taken, or if the Guarantee Trustee in good faith
shall, by a Responsible Officer or Officers of the Guarantee Trustee, determine
that the proceedings so directed would be illegal or involve it in personal
liability or be unduly prejudicial to the rights of the Holders not party to
such direction, and provided, further, that nothing in this Guarantee Agreement
shall impair the right of the Guarantee Trustee to take any action deemed proper
by the Guarantee Trustee and which is not inconsistent with such direction; and
(d) any Holder may, to the extent permitted by law, institute a legal proceeding
directly against the Guarantor to enforce its rights under this Guarantee
Agreement, without first instituting a legal proceeding against the Guarantee
Trustee, the Issuer, the Note Issuer or any other Person. The Guarantor waives
any right or remedy to require that any such action on this Guarantee Agreement
be brought first against the Issuer or any other Person or entity before so
proceeding directly against the Guarantor.
SECTION 5.5 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 Notes to Holders as provided in the Trust
Agreement.
SECTION 5.6 Subrogation
The Guarantor shall be subrogated to all rights, if any, 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 mandatory provisions of law) be entitled to
enforce or exercise any right that 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
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preceding sentence, the Guarantor agrees to hold such amount in trust for the
Holders and to pay over such amount to the Holders.
SECTION 5.7 Independent Obligations
The Guarantor acknowledges that its obligations hereunder are independent
of the obligations of the Issuer with respect to the Preferred 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 5.3 hereof.
SECTION 5.8 Net Payments.
All payments required to be made hereunder by the Guarantor shall be made
without withholding or deduction at source for, or on account of, any present or
future taxes, fees, duties, assessments or governmental charges of whatever
nature imposed or levied by or on behalf of Bermuda or any other jurisdiction in
which the Guarantor is organized or resident for tax purposes (each, a "taxing
jurisdiction") or any political subdivision or taxing authority thereof or
therein, unless such taxes, fees, duties, assessments or governmental charges
are required to be withheld or deducted by (i) the laws (or any regulations or
ruling promulgated thereunder) of a taxing jurisdiction or any political
subdivision or taxing authority thereof or therein or (ii) an official position
regarding the application, administration, interpretation or enforcement of any
such laws, regulations or rulings (including a holding by a court of competent
jurisdiction or by a taxing authority in a taxing jurisdiction or any political
subdivision thereof). If any withholding or deduction at source is required,
the Guarantor shall, subject to the limitations and exceptions set forth below,
pay to the Holder of any Preferred Security such additional amounts as may be
necessary so that every net payment of principal, premium, if any, interest or
any other amount made to such Holder, after such withholding or deduction, shall
not be less than the amount provided for in this Guarantee Agreement to be then
due and payable (the "Additional Amounts"); provided, that the Guarantor shall
not be required to make payment of such Additional Amounts for or on account of:
(1) any tax, fee, duty, assessment or governmental charge of whatever
nature which would not have been imposed but for the fact that
such Holder or the Owner of such Preferred Security: (A) was a
resident, domiciliary or national of, or engaged in business or
maintained a permanent establishment or was physically present
in, the relevant taxing jurisdiction or any political subdivision
thereof or therein or otherwise had some connection with the
relevant taxing jurisdiction or any political subdivision thereof
or therein other than by reason of the mere ownership of, or
receipt of payment under, such Preferred Security or this
Guarantee Agreement; (B) presented such Preferred Security for
payment in the relevant taxing jurisdiction or any political
subdivision thereof or therein, unless such Preferred Security
could not have been presented for payment
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elsewhere; or (C) presented such Preferred Security more than
thirty (30) days after the date on which the payment in respect
of such Preferred Security first became due and payable, except
to the extent that such Holder would have been entitled to such
Additional Amounts if it had presented such Preferred Security
for payment on any day within such period of thirty (30) days;
(2) any estate, inheritance, gift, sale, transfer, personal property
or similar tax, fee, duty, assessment or other governmental
charge; or
(3) any tax, fee, duty, assessment or other governmental charge that
is imposed or withheld by reason of the failure by such Holder or
such Owner to comply, within 90 days, with any reasonable request
by the Guarantor addressed to such Holder or such Owner (A) to
provide information concerning the nationality, residence or
identity of such Holder or such Owner or (B) to make any
declaration or other similar claim or satisfy any information or
reporting requirement, which, in the case of (A) or (B), is
required or imposed by statute, treaty, regulation or
administrative practice of the relevant taxing jurisdiction or
any political subdivision thereof or therein as a precondition to
exemption from all or part of such tax, fee, duty, assessment or
other governmental charge;
nor shall Additional Amounts be paid with respect to any payment of the
principal of, or premium, if any, interest or any other amounts on, any such
Preferred Security to any Holder where the Owner of such Preferred Security is a
fiduciary or partnership to the extent such payment would be required by the
laws of the relevant taxing jurisdiction (or any political subdivision or
relevant taxing authority thereof or therein) to be included in the income for
tax purposes of a beneficiary with respect to such fiduciary or partner of such
partnership who would not have been entitled to such Additional Amounts had it
been the Holder of the Preferred Security.
All references in this Guarantee Agreement to Guarantee Payments shall
include any Additional Amounts payable by the Guarantor in respect of such
Guarantee Payments.
In administering the provisions of this Section, the Guarantee Trustee
shall be entitled to rely on, and the Guarantor agrees to provide to it, the
certifications provided to the Note Trustee under Section 10.5(c) of the
Indenture. The Guarantee Trustee shall be entitled to the same indemnity
available to the Note Trustee under the last sentence of said Section 10.5(c).
ARTICLE VI
LIMITATION OF TRANSACTIONS; RANKING
SECTION 6.1 Limitation of Transactions
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The Guarantor covenants and agrees that it shall not (i) declare or pay any
dividends or distributions on, or redeem purchase, acquire or make a liquidation
payment with respect to, any shares of the capital stock of the Guarantor or
(ii) make any payment of principal of or any interest or premium on or repay,
repurchase or redeem any debt securities of the Guarantor that rank pari passu
in all respects with or junior in interest to the Notes (other than (A)
repurchases, redemptions or other acquisitions of shares of capital stock of the
Guarantor in connection with any employment contract, benefit plan or other
similar arrangement with or for the benefit of any one or more employees,
officers, directors or consultants, in connection with a dividend reinvestment
or stockholder stock purchase plan or in connection with the issuance of capital
stock of the Guarantor (or securities convertible into or exercisable for such
capital stock) as consideration in an acquisition transaction entered into prior
to the applicable Extension Period, (B) as a result of an exchange or conversion
of any class or series of the capital stock of the Guarantor (or any capital
stock of a Subsidiary of the Guarantor), for any class or series of the capital
stock of the Guarantor or of any class or series of the indebtedness of the
Guarantor for any class or series of the capital stock of the Guarantor, (C) the
purchase of fractional interests in shares of the capital stock of the Guarantor
pursuant to the conversion or exchange provisions of such capital stock or the
security being converted or exchanged, (D) any declaration of a dividend in
connection with any Rights Plan, the issuance of rights, stock or other property
under any Rights Plan or the redemption or repurchase of rights pursuant thereto
or (E) any dividend in the form of stock, warrants, options or other rights
where the dividend stock or the stock issuable upon exercise of such warrants,
options or other rights is the same stock as that on which the dividend is being
paid or ranks pari passu with or junior to such stock), if at such time the
Guarantor shall have given notice of its election to begin an Extension Period
with respect to the Notes as provided in the Indenture and shall not have
rescinded such notice, or such Extension Period, or any extension thereof, shall
be continuing.
SECTION 6.2 Ranking
This Guarantee Agreement will constitute an unsecured obligation of the
Guarantor and will rank subordinate and junior in right of payment to all Senior
Indebtedness of the Guarantor. The obligations of the Guarantor under this
Guarantee Agreement do not constitute Senior Debt (as defined in the Indenture).
SECTION 6.3 Pari Passu Guarantees
This Guarantee Agreement shall rank pari passu with any similar guarantee
agreements issued by the Guarantor on behalf of holders of preferred securities
of any other Trust (as defined in the Indenture) or any trust, partnership or
other entity affiliated with the Guarantor which is a financing vehicle of the
Guarantor or any Affiliate of the Guarantor in connection with the issuance by
such entity of preferred securities or other securities which are similar to
preferred securities that are guaranteed by the Guarantor pursuant to an
instrument that ranks pari passu with or junior in right of payment to this
Guarantee Agreement.
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ARTICLE VII
TERMINATION
SECTION 7.1 Termination
This Guarantee Agreement shall terminate and be of no further force and
effect upon (i) full payment of the Redemption Price of all Preferred
Securities, (ii) the distribution of the Notes to all Holders in exchange for
the Preferred Securities or (iii) 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 with respect to the Preferred Securities
or under this Guarantee Agreement. The obligations of the Guarantor under
Sections 3.3 and 3.4 shall survive any such termination.
ARTICLE VII
MISCELLANEOUS
SECTION 8.1 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 shall inure to the benefit of the Holders of the Preferred
Securities then outstanding. Except in connection with a consolidation,
amalgamation or merger or conveyance, transfer or lease involving the Guarantor
that is permitted under Article VIII of the Indenture and pursuant to which the
assignee agrees in writing to perform the Guarantor's obligations hereunder, the
Guarantor shall not assign its obligations hereunder.
SECTION 8.2 Amendments
Except with respect to any changes that do not adversely affect the rights
of Holders in any material respect (in which case no consent of Holders will be
required), this Guarantee Agreement may only be amended with the prior approval
of the Holders of at least a Majority in liquidation preference of the Preferred
Securities. The provisions of Article VI of the Trust Agreement concerning
meetings of Holders apply to the giving of such approval.
SECTION 8.3 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 first class mail, as
follows:
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(a) If given to the Guarantee Trustee, at the Guarantee Trustee's mailing
address or facsimile number set forth below (or such other address or facsimile
number as the Guarantee Trustee may give notice of to the Guarantor and the
Holders):
The Chase Manhattan Bank
450 West 33rd Street
New York, New York 10001
Attention: Capital Markets Fiduciary Services
Facsimile No.: (212) 946-____
(b) If given to the Guarantor, at the Guarantor's mailing address or
facsimile number set forth below (or such other address or facsimile number as
the Guarantor may give notice of to the Guarantee Trustee and the Holders):
Mutual Risk Management, Ltd.
44 Church Street
Hamilton HMI2 Bermuda
Attn: General Counsel and Secretary
Facsimile No.: (441) 295-1867
(c) If given to the Issuer, at the Issuer's (and the Guarantee Trustee's)
address or facsimile number set forth below or such other address or facsimile
number as the Issuer or the Guarantee Trustee may give notice to the Guarantee
Trustee (if given by the Issuer) and the Holders:
MRM Capital Trust [ ]
Mutual Group, Ltd.
One Logan Square
Suite 1500
Philadelphia, Pennsylvania 19103
Attn: General Counsel and Secretary
Facsimile No.: (215) 963-1610
with a copy to:
The Chase Manhattan Bank
450 West 33rd Street
New York, New York 10001
Attention: Capital Markets Fiduciary Services
Facsimile No.: (212) 946-____
(d) If given to any Holder, at the address set forth on the books and
records of the Issuer.
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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 8.4 Benefit
This Guarantee Agreement is solely for the benefit of the Holders and is
not separately transferable from the Preferred Securities.
SECTION 8.5 Governing Law
THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICT OF LAWS
PROVISIONS THEREOF.
SECTION 8.6 Submission to Jurisdiction
The Guarantor agrees that any judicial proceedings instituted in relation
to any matter arising under this Guarantee Agreement may be brought in any
United States Federal or New York State court sitting in the Borough of
Manhattan, The City of New York, New York to the extent that such court has
subject matter jurisdiction over the controversy, and, by execution and delivery
of this Guarantee Agreement, the Guarantor hereby irrevocably accepts, generally
and unconditionally, the jurisdiction of the aforesaid courts, acknowledges
their competence and irrevocably agrees to be bound by any judgment rendered in
such proceeding. The Guarantor also irrevocably and unconditionally waives for
the benefit of the Guarantee Trustee and the Holders any immunity from
jurisdiction and any immunity from legal process (whether through service of
notice, attachment prior to judgment, attachment in the aid of execution,
execution or otherwise) in respect of this Guarantee Agreement. The Guarantor
hereby irrevocably designates and appoints for the benefit of the Guarantee
Trustee and the Holders for the term of this Guarantee Agreement CT Corporation,
111 8th Avenue, New York, New York 10011, as its agent to receive on its behalf
service of all process (with a copy of all such service of process to be
delivered to Richard E. O'Brien, Senior Vice President and General Counsel,
Mutual Risk Management Ltd., 44 Church Street, Hamilton, HM 12, Bermuda) brought
against it with respect to any such proceeding in any such court in The City of
New York, such service being hereby acknowledged by the Guarantor to be
effective and binding service on it in every respect whether or not the
Guarantor shall then be doing or shall have at any time done business in New
York. Such appointment shall be irrevocable so long as any of the Preferred
Securities or the obligations of the Guarantor hereunder remain outstanding, or
until the appointment of a successor by the Guarantor and such successor's
acceptance of such appointment. Upon such acceptance, the Guarantor shall notify
the Guarantee Trustee of the name and address of such successor. The Guarantor
further agrees for the benefit of the Guarantee Trustee and the Holders to take
any and all action, including the
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execution and filing of any and all such documents and instruments, as may be
necessary to continue such designation and appointment of CT Corporation in full
force and effect so long as any of the Preferred Securities or the obligations
of the Guarantor hereunder shall be outstanding. The Guarantee Trustee shall not
be obligated and shall have no responsibility with respect to any failure by the
Guarantor to take any such action. Nothing herein shall affect the right to
serve process in any other manner permitted by any law or limit the right of the
Guarantee Trustee or any Holder to institute proceedings against the Guarantor
in the courts of any other jurisdiction or jurisdictions.
SECTION 8.7 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 but one and the same instrument.
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THIS PREFERRED SECURITIES GUARANTEE AGREEMENT is executed as of the day and
year first above written.
MUTUAL RISK MANAGEMENT LTD.
By:_____________________________________
Name:___________________________________
Title:__________________________________
THE CHASE MANHATTAN BANK,
as Guarantee Trustee
By:_____________________________________
Name:___________________________________
Title:__________________________________
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