Exhibit (c)(7)
CREDIT AGREEMENT
US $20,000,000
SCOR U.S. CORPORATION
Borrower
SCOR S.A.
Lender
January 24, 1995
This Credit AGREEMENT, dated January 24, 1995, between SCOR U.S.
Corporation, a Delaware Corporation, with its principal office at 000
Xxxxxxx Xxxxxx, Xxx Xxxx, XX, (the "Borrower"), and SCOR S.A. a
company incorporated in France with its head office in PUTEAUX - Hauts
de Seine- France, Avenue du President Xxxxxx, (the "Lender"), sets
forth the binding Agreement of the parties.
SECTION 1. INTERPRETATIONS AND DEFINITIONS
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1.01 Definitions
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The following terms, as used herein, shall have the following
respective meanings:
"Commitment" means the obligation of the Lender to lend the
amount set forth in Section 2.1 hereof.
"Convertible Subordinated Debentures" means the 5-1/4% convertible
subordinated debentures due April 1, 2000 issued by Borrower.
"Control" (including, with its correlative meanings, "controlled
by" and "under common control with") means, with respect to any
Person, the possession, directly or indirectly, of power to direct or
cause the direction of the management or policies of such Person.
"Debt" means at any date, without duplication, (i) all
obligations for borrowed money, including, without limitation,
reimbursement obligations related to letters of credit, and (ii) all
obligations evidenced by bonds, debentures, notes or other similar
instruments.
"Default" means any condition or event which constitutes an Event
of Default or which with the giving of notice or lapse of time, or
both, would unless cured or waived become an Event of Default.
"Dollars" and the sign "$" mean lawful money of the United States
of America.
"Business Day" means any day, except a Saturday or Sunday or
other day on which commercial banks in New York City are open.
"Interest Period" means: with respect to each Loan, the period
commencing on the date of such Loan and ending 3 months thereafter,
with a new Interest Period commencing at the end of each such 3 month
period and each succeeding 3 month period thereafter.
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"London Interbank Offered Rate" has the meaning set forth in
Section 2.04 hereof.
"Note" means the promissory note of the Borrower, substantially
in the form of Exhibit A hereto, evidencing the obligation of the
Borrower to repay the Loans.
"Notice" shall mean notice delivered by a party to this Agreement
to the other party hereto in the manner provided in Section 7.06.
"Repayment Date" shall mean the earlier of the period ending 5
years from the date of each Loan, or the end of the applicable
Interest Period immediately preceding December 31, 2000.
"Revolving Credit Period" means the period from and including the
date of the execution of this Agreement to and including the
Termination Date.
"Subsidiary" means any corporation or other entity of which
securities or other ownership interests having ordinary voting power
to elect a majority of the board of directors or other persons
performing similar functions are at the time directly or indirectly
owned by the Borrower.
"Termination Date" means the earlier of December 31, 2000, or
termination of the Commitment pursuant to Section 2.06 or 2.07 hereof.
SECTION 2. THE LOAN
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2.01 Agreement to Lend
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During the Revolving Credit Period the Lender agrees, on the
terms and conditions set forth in this Agreement, to make Loans to the
Borrower from time to time in amounts not exceeding in the aggregate
at any one time outstanding $20,000,000 (the "Commitment"). The
initial Loan under this Section 2.01 shall be in the minimum principal
amount of $5,000,000 and each Loan thereafter shall be in the minimum
principal amount of $2,000,000 or any $1,000,000 multiple in excess
thereof (except that any such Loan may be in the amount of the unused
Commitment). During such Period and within the foregoing limits, the
Borrower may borrow under this Section 2.01, repay or, to the extent
permitted by Section 2.05 hereof, prepay Loans and reborrow under this
Section 2.01.
2.02 Method of Borrowing
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(a) With respect to each Loan made pursuant to Section 2.01
hereof, the borrower shall give the Lender written notice not later
than 10:00 a.m. (New York City time) five (5) Business Days before
each Loan, specifying: (i) the date of such Loan, which shall be a
Business Day; and (ii) the principal amount of such Loan.
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(b) On the date of each Loan the Lender will make the proceeds
thereof available to the Borrower by depositing the proceeds of such
Loan in the account of the Borrower, at the Bank designated by the
Borrower from time to time, by the time requested by the Borrower;
provided, however, that such time is not earlier than 9:00 a.m. (New
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York City time).
2.03 The Note
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The Loans shall be evidenced by a single Note in the form of
Exhibit A hereto, payable to the order of the Lender. Such Note shall
be dated on or before the date of the first Loan and shall set forth
the Commitment as the maximum principal amount thereof.
2.04 Interest
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Each Loan shall bear interest on the principal amount thereof,
for each day from the date such Loan is made to the date on which it
becomes due. Interest for each Loan during the applicable Interest
Period shall be at a rate equal to the sum of the Margin plus the
applicable three (3) month London Interbank Offered Rate. Such
interest shall be payable for each Interest Period on the last day
thereof; provided, however, if not less than two (2) days prior to the
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end of such Interest Period, Borrower has given Lender notice of its
intent to include such interest in the outstanding principal balance
of the applicable Loan, then any interest on any Loan shall be added
to the outstanding principal balance and shall bear interest at the
rate of interest applicable to such Loan.
The "Margin" means 1/2 of 1%.
The "London Interbank Offered Rate" applicable to any Interest
Period means the rate at which 3 month deposits in Dollars are offered
in the London Interbank market based on quotations at five major banks
at approximately 11:00 a.m. (London time) two Business Days prior to
the first day of such Interest Period.
2.05 Optional Prepayments
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The Borrower may, at the end of an Interest Period and upon at
least two (2) Business Day's notice to the Lender, prepay any Loan
without premium or penalty in whole or in part in amounts aggregating
$1,000,000 or any multiple thereof by paying the principal amount
being prepaid together with accrued interest thereon to the date of
prepayment.
2.06 Mandatory Termination
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The Commitment shall terminate on the Termination Date and any
Loans then outstanding (together with accrued interest thereon) shall
be due and payable on such date.
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2.07 Optional Termination or Reduction of Commitment
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During the Revolving Credit Period the Borrower may, upon at
least three Business Days' notice to the Lender terminate the
Commitment at any time, if no Loans are outstanding at such time; or
may reduce the Commitment to an amount not less than the aggregate
amount of Loans outstanding.
2.08 General Provisions as to Payments
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Except as permitted by Section 2.05 hereof payment of principal
of, and interest on, the Loans shall be due on the Repayment Date.
The Borrower shall make each payment of principal of, and
interest on, the Loans hereunder not later than 11:00 a.m. (New York
City time) on the date when due by depositing the funds in the account
of Lender at the New York City branch of a bank designated by Lender.
Whenever any payment of principal of, or interest on, the Loans shall
be due on a day which is not a Business Day, the date for payment
thereof shall be extended to the next succeeding Business Day unless
as a result thereof it would fall in the next calendar month, in which
case it shall be advanced to the next preceding Business Day. If the
date for any payment of principal is extended by operation of law or
otherwise, interest shall be payable for such extended time.
SECTION 3. CONDITIONS
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3.01 Initial Loan
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The obligation of the Lender to make the initial Loan hereunder
shall be subject to the satisfaction by the Borrower of the following
conditions:
(a) receipt by the Lender of counterparts hereof signed by the
Borrower;
(b) receipt by the Lender of a duly executed Note dated on or
before the date of the initial Loan complying with the provisions of
Section 2.03 hereof.
3.02 All Loans
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The obligation of the Lender to make a Loan on the occasion of
any borrowing is subject to the satisfaction of the following
conditions:
(a) receipt by the Lender of the notice from the Borrower
required by Section 2.02 hereof; and
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(b) the fact that, immediately after such Loan, no Default shall
have occurred and be continuing.
SECTION 4. PURPOSES OF LOANS
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4.01 Use of Proceeds
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The Borrower will not use the proceeds of any Loans for any
purposes other than:
(a) the redemption of Convertible Subordinated Debentures issued
by the Borrower; or
(b) to refund any Debt incurred by Borrower, including but not
limited to a Loan, for such redemption.
SECTION 5. EVENTS OF DEFAULT
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5.01 Events of Default
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Each of the following events and occurrences shall constitute an
Event of Default under this Agreement:
(a) Payment Default. The Borrower fails for any reason
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whatsoever to make payment of any amount under this Agreement on the
date on which such amount is due and payable whether by the terms
hereof or by acceleration and continuance of such failure for five
business days. Acceptance of partial payment shall not constitute a
waiver of the failure to make payment in full.
(b) Representation Default. If any one or more of the following
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events ("Events of Default") shall have occurred and be continuing:
(i) the Borrower shall fail to observe or perform any
covenant or agreement contained in this Agreement other than that
covered by Section 5.01(a) for 30 days after written notice thereof
has been given to the Borrower by the Lender; or
(ii) the Borrower shall commence a voluntary case or other
proceeding seeking liquidation, reorganization or other relief with
respect to itself or its debts under any bankruptcy, insolvency or
other similar law now or hereafter in effect or seeking the
appointment of a trustee, receiver, liquidator, custodian or other
similar official of it or any substantial part of its property, or
shall consent to any such relief or to the appointment of or taking
possession by any such official in an involuntary case or other
proceeding commenced against it, or shall make case or other
proceeding commenced against it, or
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shall make a general assignment for the benefit of creditors, or shall
fail generally to pay its debts as they become due, or shall take any
corporate action to authorize any of the foregoing; or
(iii) an involuntary case or other proceeding shall be
commenced against the Borrower seeking liquidation, reorganization or
other relief with respect to it or its debts under any bankruptcy,
insolvency or other similar law now or hereafter in effect or seeking
the appointment of a trustee, receiver, liquidator, custodian or other
similar official of it or any substantial part of its property, and
such involuntary case or other proceeding shall remain undismissed and
unstayed for a period of 60 days; or an order for relief shall be
entered against the Borrower or any Subsidiary under the federal
bankruptcy laws as now or hereafter in effect.
5.02 Consequences of Default
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If an Event of Default shall occur and be continuing beyond any
grace period permitted therefor, the Lender may, by Notice to the
Borrower, declare the outstanding amount of the Commitment together
with accrued interest and other sums payable hereunder to be
immediately due and payable without presentment, demand or notice of
any kind other than the Notice specifically required by this Section,
all other notice being expressly waived by the Borrower. If an Event
of Default shall occur, such default may be waived by Notice from the
Lender.
SECTION 6. LOAN ADMINISTRATION
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6.01 Term
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The term of this Agreement shall commence on January 24, 1995 and
shall end upon payment in full of all principal, interest and other
sums payable by the Borrower in respect of this Agreement which
payment in full shall occur at the latest on December 31, 2000.
SECTION 7. MISCELLANEOUS
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7.01 Legal Action and Governmental and Corporate Approvals
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Borrower and Lender each represent and warrant that they have
taken all necessary legal and corporate action to authorize the
execution and delivery of this Agreement, and there are no
governmental approvals required on the part of either in connection
therewith or for the performance by the Borrower or Lender of its
obligations under this Agreement. This Agreement constitutes a valid
and binding agreement of the parties.
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7.02 Entire Agreement and Amendment
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This Agreement, together with the Note of even date constitute
the entire agreement of the parties with respect to the subject matter
hereof and supersedes any prior expressions of intent or understanding
with respect to this transaction. This Agreement may be amended, or
the benefit of any provisions hereof may be waived, only by an
instrument in writing executed by both parties hereto.
7.03 Cumulative Rights and Waiver
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The failure or delay of the Lender to require performance by the
Borrower or to enforce its rights under any provision of this
Agreement shall not affect its right to require performance and to
enforce its rights with respect to such provision unless and until
such performance has been waived in writing by the Lender. Any waiver
of an Event of Default shall be effective only in accordance with its
terms and may be restricted or conditioned in any way. No waiver of
any event of Default shall constitute a waiver of continuance or
reoccurrence of such Event of Default or of any other Event of Default
except as provided in such waiver. The rights granted to the Lender
hereunder or under any other document or instrument delivered
hereunder and any rights available to it at law or in equity shall be
cumulative and may be exercised in part or in whole from time to time.
7.04 Assignment
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This Agreement and the Note shall be binding upon and shall be
enforceable by the Borrower and the Lender and their respective
successors, except that neither party has any right to assign or
transfer its rights or obligations hereunder.
7.05 Governing Law
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This Agreement shall be governed by and interpreted in accordance
with the Laws of the Republic of France.
The Borrower irrevocably submits to the non-exclusive
jurisdiction of the Tribunal de Commerce of Nanterre (Hauts de Seine)
over any suit, action or proceedings arising out of or relating to
this Agreement or the transactions contemplated hereby, and waives, to
the fullest extent it may effectively do so under applicable law, any
objection which it may have or hereafter have to the laying of the
venue of any such suit, action, proceeding brought in any such court
and any claim that any such suit, action or proceeding brought in any
such court has been brought in any inconvenient forum. The Borrower
agrees, to the fullest extent it may effectively do so under
applicable law, that a final judgment in any such suit, action or
proceeding may be enforced in the above courts and any other court of
the jurisdiction of which the Borrower is or may be subject by a suit
upon such judgment, provided that service of process is effected on
the Borrower in the manner specified below or as otherwise permitted
by law.
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The Borrower consents to process being served in any suit, action
or proceeding of the nature referred to above by the mailing of a copy
thereof by registered or certified airmail postage prepaid, return
receipt requested, to its address, set forth in Section 7.06, or to
any other address of which the Borrower shall have given written
notice to the Lender. Nothing herein shall affect the right of the
Lender to serve process in any other manner permitted by law, or limit
the right of the Lender to bring proceedings against the Borrower in
the court of any other jurisdiction.
7.06 Notices
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(a) Any Notice required or permitted to be given hereunder shall
be in writing and shall be (i) personally delivered, (ii) transmitted
by postage prepaid mail (airmail if international), or
(iii) transmitted by telex or telefax to the parties as follows, as
elected by the party giving such Notice:
To the Borrower:
SCOR U.S. Corporation
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Treasurer
To the Lender:
SCOR S.A. - Immeuble SCOR
One Avenue du President Xxxxxx
Xxxxx 00
00000 Xxxxx La Xxxxxxx 0, Xxxxxx
Attn: Francois Reach
(b) All Notices and other communications shall be effective on
(i) the date of receipt if delivered personally, (ii) the date of
receipt if transmitted by telex or telefax, whichever shall first
occur. Any party may change its address for purposes hereof by Notice
to the other party.
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7.07 Headings
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The section and subsection headings used herein have been
inserted for convenience of reference only and do not constitute
matters to be considered in interpreting this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed and delivered by their respective duly authorized
signatories in New York on the date first written above.
BORROWER: SCOR U.S. CORPORATION
By:
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Name: Xxxxxxx X. Xxxxxxx
Title: Senior VP & Chief
Financial Officer
LENDER: SCOR S.A.
By:
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Name: Francois Reach
Title: Deputy General Manager
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Exhibit A
NOTE
U.S. $20,000,000 January 24, 0000
Xxx Xxxx, Xxx Xxxx
FOR VALUE RECEIVED, SCOR U.S. CORPORATION, a Delaware corporation
(the "Borrower"), hereby unconditionally promises to pay to the order
of SCOR S.A. (the "Lender"), the unpaid principal amount of each Loan
made by the Lender to the Borrower pursuant to the Credit Agreement
referred to below on the Repayment Date relating to such Loan. The
Borrower promises to pay interest on the unpaid principal amount of
each such Loan on the dates and at the rate or rates provided for in
the Credit Agreement.
All such payments of principal and interest shall be made in
lawful money of the United States of America in Federal or other
immediately available funds at One Avenue du President Xxxxxx, Cedex
39, 92074 Xxxxx Xx Xxxxxxx 0, Xxxxxx or such other place as may be
designated in writing from time to time by Lender.
All Loans made by the Lender, the respective maturities thereof
and all of the principal thereof shall be recorded by the Lender and,
with respect to each such Loan then outstanding shall be endorsed by
the Lender on the schedule attached hereto and made a part hereof;
provided that the failure of the Lender to make any such recordation
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or endorsement shall not affect the obligations of the Borrower
hereunder or under the Credit Agreement.
This note is the Note referred to in the Credit Agreement dated
as of January 24, 1995, between the Borrower and the Lender (as the
same may be amended from time to time, the "Credit Agreement"). Terms
defined in the Credit Agreement are used herein with the same
meanings. Reference is made to the Credit Agreement for provisions
for the prepayment hereof and the acceleration of the maturity hereof.
SCOR U.S, CORPORATION
By:
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Title: Senior V.P. and Chief
Financial Officer
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LOANS AND PAYMENTS OF PRINCIPAL
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Amount Amount of
of Principal Maturity Notation
Date Loan Repaid Date Made by
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