EXHIBIT 4.2
AMENDED AND RESTATED
DEED OF GUARANTY
AMENDED AND
RESTATED DEED OF GUARANTY (this “ Amended and Restated
Deed ”) dated as of November 24, 2003, by and among
UNITED NATIONAL GROUP, LTD., an exempted company formed with
limited liability under the laws of the Cayman Islands (together
with its successors and permitted assigns, the “
Guarantor ”), in favor of the holders of Senior Notes
(as defined below) (together with their successors and permitted
assigns, the “ Senior Noteholders ”).
W I T N E S S E T H:
WHEREAS, U.N.
Holdings (Cayman), Ltd., an exempted company formed with limited
liability under the laws of the Cayman Islands (the “
Cayman Purchaser ”), the Guarantor, U.N. Holdings II,
Inc., a Delaware corporation, U.N. Holdings LLC, a Delaware limited
liability company, U.N. Holdings Inc., a Delaware corporation, Wind
River Investment Incorporation, a Delaware corporation (the “
Company ”), and the stockholders of the Company (the
“ Trusts ”) entered into an Amended and Restated
Investment Agreement, dated of as September 5, 2003 (the
“ Investment Agreement ”), pursuant to the terms
of which the parties agreed, among other things, to enter into a
transaction in which the Company would redeem 31.285647 shares of
Wind River Common Stock held by the Trusts in exchange for 5%
Senior Notes, due September 5, 2015, in an aggregate principal
amount of $72,848,000 (the “ Original Notes ”)
(such redemptions, together with the other transactions
contemplated by the Investment Agreement, the “
Transactions ”);
WHEREAS, the
execution and delivery by the Guarantor of a Deed of Guaranty dated
as of September 5, 2003 (the “ Original Deed
”) was a condition to the obligations of the Trusts to
consummate the Transactions;
WHEREAS, the
Guarantor had determined that it was in its best interests to
guaranty the obligations of the Company under the Original Notes in
favor of the Senior Noteholders in order to induce the Trusts to
consummate the Transactions, without which the Trusts would not
have been willing to consummate the Transactions;
WHEREAS, the
Original Deed was executed and delivered in connection with the
consummation of the Transactions;
WHEREAS, the
Guarantor has determined that it is in its best interests that the
Original Notes be amended and restated, acknowledges that the
execution and delivery of this Amended and Restated Deed is
necessary to induce the Senior Noteholders to accept the Senior
Notes in exchange for the Original Notes, and has therefore
determined that it is in its best interests to amend and restate
the Original Deed; and
WHEREAS, the
Senior Notes are being issued simultaneously herewith in exchange
for the Original Notes.
NOW, THEREFORE,
intending to be legally bound, the parties agree as
follows:
1.
Definitions .
1.1
Certain Definitions . As used in this Amended and Restated
Deed, the following terms shall have the meanings ascribed to them
below. Any capitalized terms used in this Amended and Restated Deed
that are not otherwise defined in this Amended and Restated Deed
shall have the meaning ascribed to such terms in the Senior
Notes.
“
Affiliate ” has the meaning ascribed thereto in the
Investment Agreement.
“
Action” has the meaning given in
Section 7.5.
“
Amended and Restated Deed ” has the meaning given in
the preamble.
“
Cayman Purchaser ” has the meaning given in the
recitals.
“
Company” has the meaning given in the
recitals.
“
Contract ” has the meaning ascribed thereto in the
Investment Agreement.
“
Event of Default ” has the meaning ascribed thereto in
the Senior Notes.
“
FPC ” means Fox, Paine & Co., LLC, a Delaware
limited liability company.
“Guaranteed Obligations” means all amounts due
from time to time from the Company in respect of the Senior Notes
issued by the Company to the Senior Noteholders in the
Transactions, including, without limitation, (a) any Principal
Amount, (b) any interest on the unpaid balance of the
Principal Amount, and (c) if there shall occur any Event of
Default, all documented out-of-pocket expenses (including, without
limitation, reasonable fees and disbursements of legal counsel,
accountants, investigators and other experts) incurred by the
Senior Noteholders in connection with the protection, preservation,
exercise or enforcement of any of the rights or remedies of the
Senior Noteholders under the Senior Notes.
“
Guarantor” has the meaning given in the
preamble.
“
Investment Agreement” has the meaning given in the
recitals.
“
Law ” has the meaning ascribed thereto in the
Investment Agreement.
“
Original Deed ” has the meaning given in the
recitals.
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“
Original Notes ” has the meaning given in the
recitals.
“
Person ” has the meaning ascribed thereto in the
Investment Agreement.
“
Principal Amount ” has the meaning ascribed thereto in
the Senior Notes.
“
Restricted Payment ” means (i) any dividend or
other distribution, direct or indirect, in respect of any share
capital of the Guarantor or any ownership interest of its
subsidiaries, now or hereafter outstanding, except (A) a
dividend payable solely in share capital of the Guarantor pro
rata to all holders or (B) a dividend payable by a
subsidiary of the Guarantor to the Guarantor or a direct or
indirect wholly-owned subsidiary of the Guarantor, and
(ii) any redemption, retirement, purchase or other
acquisition, direct or indirect, of any share capital of the
Guarantor or any ownership interest of its subsidiaries, now or
hereafter outstanding, or of any warrants, rights or options to
acquire any such share capital or other interests; provided,
however , that any dividend or other distribution in respect
of, or payment made in redemption or other repurchase of, any
preferred shares of the Guarantor (other than the Series A
Preferred Shares) issued subject to Section 6.1 of the
Shareholders Agreement shall not be a Restricted
Payment.
“
Senior Noteholders” has the meaning given in the
preamble.
“
Senior Notes ” means the amended and restated 5%
Senior Notes, due September 5, 2015, in an aggregate principal
amount of $72,848,000 issued by the Company to the Trusts as of the
date hereof.
“
Series A Preferred Shares ” means the
Series A Preferred Shares, par value $0.0001, of the
Guarantor.
“
Shareholders Agreement ” means the Shareholders
Agreement, dated as of September 5, 2003, by and among the
Guarantor, Cayman Purchaser and the Trusts.
“
Transactions” has the meaning given in the
recitals.
“
Trusts” has the meaning given in the
recitals.
1.2
Interpretation . Except as otherwise provided or if the
context requires otherwise, whenever used in this Amended and
Restated Deed, (a) any noun or pronoun shall be deemed to
include the singular and the plural, (b) the terms
“include” and “including” shall be deemed
to be followed by the phrase “without limitation” and
(c) the word “or” shall be inclusive and not
exclusive.
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2.
Guaranty.
2.1
Guaranty of Payment . The Guarantor hereby irrevocably and
unconditionally guarantees to the Senior Noteholders that the
Guaranteed Obligations will be paid in full when due and payable,
whether at the stated or accelerated maturity thereof or upon any
mandatory or voluntary prepayment or otherwise. The
Guarantor’s liability under this Amended and Restated Deed
shall be as a principal debtor and not a secondary obligor. As used
in this Amended and Restated Deed, the expressions “pay in
full,” “paid in full” or “payment in
full” mean, with respect to the Guaranteed Obligations, the
final and indefeasible payment in full in cash of all of the
Guaranteed Obligations in accordance with their terms.
2.2
Obligations of Guarantor Absolute, Etc. The obligations of
the Guarantor under this Amended and Restated Deed are absolute and
unconditional. The Guarantor guarantees that the Guaranteed
Obligations will be paid strictly in accordance with the terms of
the Senior Notes, regardless of any law, regulation or order now or
hereafter in effect in any jurisdiction affecting any such terms or
the rights of the Senior Noteholders with respect thereto. The
liability of the Guarantor under this Amended and Restated Deed is
absolute and unconditional irrespective of:
(a) any
lack of validity or enforceability of the Senior Notes;
(b) any
change in the time, manner or place of payment of the Guaranteed
Obligations;
(c) any
amendment or modification of or supplement to the Senior Notes
(including, without limitation, any amendment or adjustments that
would increase the amount of the Guaranteed Obligations), or any
furnishing or acceptance of any security, or any release of any
security with respect to the Guaranteed Obligations;
(d) any
waiver, consent, extension, indulgence or other action or inaction
under or in respect of the Senior Notes or nonexercise of any
right, remedy, power or privilege under or in respect of the Senior
Notes;
(e) any
counterclaim, setoff, recoupment or defense based upon any claim
the Guarantor or the Company may have against the Senior
Noteholders;
(f) any
bankruptcy, insolvency, reorganization, arrangement, readjustment,
composition, liquidation or similar proceeding with respect to the
Company, any of its Affiliates, the Guarantor or their respective
properties or creditors;
(g) any
invalidity or unenforceability, in whole or in part, of any term of
this Amended and Restated Deed or of the Senior Notes;
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(h) any
failure on the part of the Company for any reason to perform or
comply with any term of the Senior Notes; or
(i) any
other occurrence whatsoever, whether similar or dissimilar to the
foregoing.
2.3
Continuing Guaranty. This guaranty is an absolute,
unconditional, present and continuing guaranty of payment and is in
no way conditional or contingent; it shall remain in full force and
effect until terminated pursuant to Section 6.
2.4
Waivers . The Guarantor hereby waives, to the fullest extent
permitted by applicable law, (a) all presentments, demands for
performance, notice of non-performance, protests, notices of
protests and notices of dishonor in connection with the Guaranteed
Obligations or any agreement relating thereto; (b) notice of
acceptance of this Amended and Restated Deed; (c) any
requirement of diligence or promptness on the part of a Senior
Noteholder in the enforcement of its rights under this Amended and
Restated Deed or under the Senior Notes; (d) any enforcement
of any present or future agreement or instrument relating directly
or indirectly to the Guaranteed Obligations; (e) notice of any of
the matters referred to in Section 2.2; (f) notices of
every kind and description that may be required to be given by any
statute or rule of law; and (g) any defense of any kind that
it may now or hereafter have with respect to its liability under
this Amended and Restated Deed to the fullest extent permitted by
law. Without limiting the foregoing, the Senior Noteholders shall
not be required to make any demand upon, or to pursue or exhaust
any rights or remedies against the Company for the Guaranteed
Obligations. No course of dealing and no delay or failure on the
part of a Senior Noteholder in exercising any right, power or
remedy under this Amended and Restated Deed will operate as a
waiver thereof or otherwise prejudice such Senior
Noteholder’s rights, powers or remedies; nor shall any single
or partial exercise of any right under this Amended and Restated
Deed preclude any other or further exercise thereof or the exercise
of any other right. The rights, powers and remedies provided in
this Amended and Restated Deed are cumulative and no right, power
or remedy conferred hereby is exclusive of any other right, power
or remedy referred to herein or now or hereafter available at law,
in equity, by s
