EXHIBIT 99.7
PAYING AGENCY AGREEMENT
PAYING AGENCY AGREEMENT, dated as of October 24, 1997 (this
"Agreement"), among Chase Manhattan Bank Luxembourg S.A. ("Chase Luxembourg", or
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in its capacity as paying agent hereunder, the "Luxembourg Paying Agent"), Chase
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Manhattan Bank, as paying agent (individually, "Chase", or in its capacity as
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paying agent, the "Principal Paying Agent") under the Indenture (as defined
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below), Terra Nova Insurance (UK) Holdings plc (the "Issuer"), and Terra Nova
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(Bermuda) Holdings Ltd. ("Bermuda Holdings").
W I T N E S S E T H:
WHEREAS, the Issuer and Bermuda Holdings, have entered into an
indenture with Chase, as trustee (the "Trustee"), dated as of August 26, 1997
(the "Indenture"), pursuant to which the Issuer issued an aggregate principal
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amount of US$75,000,000 of its 7.2% Senior Notes due 2007, fully and
unconditionally guaranteed by Bermuda Holdings (the "Senior Notes"; capitalized
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terms used herein without other definition have the respective meanings
specified in the Indenture);
WHEREAS, pursuant to a deposit and custody agreement, dated as of
August 26, 1997 (the "Depositary Agreement"), by and among the Issuer, Bermuda
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Holdings, the Trustee, Chase, as depositary (the "Depositary"), and Chase
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Luxembourg, as custodian (the "Custodian"), among other things, the Custodian
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agreed to accept custody of the Global Notes from the Trustee as instructed by
the Issuer and to act as Custodian thereof on behalf of the Depositary in
accordance with the terms therein;
WHEREAS, pursuant to the Indenture, the Issuer has appointed the
Trustee as a paying agent and may appoint additional paying agents to which
Senior Notes, and such senior notes issued in exchange for such Senior Notes
pursuant to the Exchange Offer (the "Senior Notes") may be presented or
surrendered for payment, which additional paying agents shall be subject to the
terms of the Indenture;
WHEREAS, the Issuer desires to appoint Chase Luxembourg as a paying
agent, and Chase Luxembourg desires to accept such appointment;
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants and promises expressed herein and other consideration, the
receipt and sufficiency of which are hereby acknowledged, it is hereby agreed by
and
among the Issuer, Bermuda Holdings, the Luxembourg Paying Agent and the
Principal Paying Agent as follows:
1. Appointment of Luxembourg Paying Agent. The Issuer hereby
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appoints and designates Chase Luxembourg, and by execution hereof Chase
Luxembourg hereby accepts such appointment and designation as the Luxembourg
Paying Agent, to receive the payments on the terms and conditions herein set
forth.
2. The Payments by the Issuer. Interest on the Senior Notes is
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payable by the Issuer semi-annually on each February 15 and August 15,
commencing February 15, 1998 (each, a "Semi-annual Payment Date"). The Senior
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Notes will mature on August 15, 2007. Pursuant to the terms of the Indenture,
so long as the Issuer has one or more paying agents on the Senior Notes, the
Issuer shall, at least one Business Day before the due date for the payment of
principal of and any premium and interest on the Senior Notes (and any
Additional Amounts payable by the Issuer or Bermuda Holdings in respect
thereof), deposit with the Principal Paying Agent (or any other paying agent
appointed in accordance with the Indenture) a sum in same day funds sufficient
to pay such principal, premium and interest to become due on the Senior Notes
(and any Additional Amounts payable by the Issuer or Bermuda Holdings in respect
thereof), such sum to be held in trust for the benefit of the Persons entitled
to such principal, premium or interest on the Senior Notes and the Issuer will
promptly notify the Trustee of such action or any failure so to act. For
purposes of this Agreement, "Principal Paying Agent" shall refer to the Trustee
or any other paying agent appointed in accordance with the Indenture to whom the
Issuer shall make a deposit pursuant to the terms of this Section 2.
3. Payments by the Luxembourg Paying Agent. The Luxembourg Paying
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Agent acting through its office shall make payments of principal and interest in
respect of the Senior Notes in accordance with the terms of the Indenture and
the Senior Notes; provided, however, that:
(a) if any Definitive Senior Note is presented or surrendered for payment
to the Luxembourg Paying Agent and the Luxembourg Paying Agent has delivered a
replacement therefor or has been notified that the same has been replaced, the
Luxembourg Paying Agent shall forthwith notify the Issuer and the Guarantor of
such presentation or surrender and shall not make payment against the same until
it is so instructed by the Issuer and has received the amount to be so paid; and
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(b) the Luxembourg Paying Agent shall cancel each Definitive Senior Note
against surrender of which it has made full payment and shall deliver each
Definitive Senior Note so cancelled by it to the Trustee.
4. Reimbursement by Principal Paying Agent. If the Luxembourg Paying
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Agent makes any payment in accordance with Section 3:
(a) it shall notify the Principal Paying Agent of the amount so paid by it
and the certificate or serial number of the Definitive Senior Note or Global
Receipt against presentation or surrender of which payment of principal or
interest was made; and
(b) the Principal Paying Agent shall pay to the Luxembourg Paying Agent
out of the funds received by the Principal Paying Agent under Section 2, an
amount equal to the amount so paid by the Luxembourg Paying Agent.
5. Reimbursement by Issuer. If the Luxembourg Paying Agent makes a
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payment in respect of the Senior Notes at a time which the Principal Paying
Agent has not received the full amount of the relevant payment due to it under
Section 2 and the Principal Paying Agent is not able out of the funds received
by it under Section 2 to reimburse the Luxembourg Paying Agent therefor by
payment under Section 4, the Issuer or Bermuda Holdings shall from time to time
on demand pay to the Principal Paying Agent for the account of the Luxembourg
Paying Agent the amount so paid out by the Luxembourg Paying Agent and not so
reimbursed to it; provided, however, that the Issuer shall not reimburse the
Principal Paying Agent for amounts reimbursed to the Luxembourg Paying Agent in
the case of the Principal Paying Agent's or the Luxembourg Paying Agent's gross
negligence or willful misconduct.
6. Partial Payments. If any time and for any reason the Luxembourg
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Paying Agent makes a partial payment in respect of any Senior Note presented for
payment to it, the Luxembourg Paying Agent shall endorse thereon a statement
indicating the amount and date of such payment.
7. Covenants. The Luxembourg Paying Agent agrees to:
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(a) hold all sums held by it for the payment of the principal of and any
premium and interest on the Senior Notes (and any Additional Amounts payable by
the Issuer or Bermuda Holdings in respect thereof) in trust for the benefit of
the Persons entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
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(b) give the Trustee notice of any default by the Issuer or Bermuda
Holdings (or any other obligor upon the Senior Notes) in the making of any
payment of principal and any premium and interest on the Senior Notes (and any
Additional Amounts payable by the Issuer or Bermuda Holdings in respect
thereof);
(c) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held in
trust by the Luxembourg Paying Agent;
(d) acknowledge, accept and agree to comply in all respects with the
provisions of the Indenture relating to the duties, rights and obligations of
the Luxembourg Paying Agent;
(e) maintain a paying agent office for payments in Luxembourg, and notify
in writing the Issuer, Bermuda Holdings, the Trustee, and the Principal Paying
Agent of any change of address of such office or if the Luxembourg Paying Agent
shall at any time cease or is otherwise unable to act as paying agent in the
Grand Duchy of Luxembourg; and
(f) make available to the Principal Paying Agent such information as is
reasonably required for the maintenance of any records required to be maintained
under the Indenture.
8. Concerning the Luxembourg Paying Agent.
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(a) The Luxembourg Paying Agent shall not be liable, except to the extent
of its own gross negligence or willful misconduct and, except as aforesaid, the
Issuer and Bermuda Holdings shall indemnify and hold the Luxembourg Paying Agent
harmless (and any successor paying agent) from and against any and all losses,
liabilities, claims, actions, damages and expenses, including reasonable
attorneys' fees and disbursements, arising out of and in connection with this
Agreement, except to the extent such losses, liabilities, claims, actions,
damages and expenses arise out of the gross negligence or willful misconduct of
the Luxembourg Paying Agent.
(b) The Luxembourg Paying Agent shall be entitled to rely upon any
certification, demand, notice instrument or other writing delivered to the
Luxembourg Paying Agent by the Issuer, Bermuda Holdings or the Trustee without
being required to determine the authenticity or the correctness of any fact
stated therein or the propriety or validity of the service thereof. The
Luxembourg Paying Agent may act in reliance upon any instrument or signature by
the Issuer, Bermuda Holdings or the Trustee
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believed by the Luxembourg Paying Agent to be genuine and may assume that any
person purporting to give notice or receipt or advice or make any statement or
execute any document in connection with the provisions hereof has been duly
authorized to do so.
(c) The Luxembourg Paying Agent may act pursuant to the advice of counsel
with respect to any matter relating to this Agreement and shall not be liable
for any action taken or omitted in reliance on such advice.
(d) The Luxembourg Paying Agent makes no representation or warranty and
shall not at any time have any responsibility for, or liability or obligation in
respect of, the legality, validity, binding effect, adequacy or enforceability
of the Senior Notes, the performance and observance by the Issuer or Bermuda
Holdings of its obligations under the Senior Notes or the recoverability of any
sum of interest, arrears of interest, premium or principal due or to become due
from the Issuer or Bermuda Holdings in respect of the Senior Notes.
(e) The Luxembourg Paying Agent shall at no time have any responsibility
for, or obligation or liability in respect of, the financial condition,
creditworthiness, affairs, status or nature of the Issuer or Bermuda Holdings.
(f) The Luxembourg Paying Agent shall at no time be liable for any act,
default or omission of the Issuer or Bermuda Holdings under or in respect of the
Senior Notes, except in connection with the Luxembourg Paying Agent's gross
negligence or bad faith in performing its duties under Section 7(b).
(g) The Luxembourg Paying Agent shall not be under any obligation to
appear in, prosecute or defend any action, suit or other proceeding in respect
of any Senior Note, or take any other action or omit to take any action under
the Agreement which in its opinion may involve it in expense or liability,
unless indemnity satisfactory to it against all expense and liability be
furnished as often as may be required.
(h) The Luxembourg Paying Agent shall not be liable for any acts or
omissions made by a successor paying agent in connection with a matter arising
wholly after the removal or resignation of the Luxembourg Paying Agent.
(i) The Luxembourg Paying Agent may own and deal in any class of
securities of the Issuer and its affiliates and in interests in the Senior
Notes.
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(j) The Luxembourg Paying Agent may enter into other dealings with the
Issuer and its affiliates of any nature whatsoever.
(k) The Luxembourg Paying Agent (and any successor paying agent) may at
any time resign by delivering all amounts held by it to the Principal Paying
Agent or, if the Principal Paying Agent shall have also resigned or the Issuer
or Bermuda Holdings otherwise directs, any successor paying agent designated by
the Issuer or Bermuda Holdings in writing, or to any court of competent
jurisdiction, provided that the Luxembourg Paying Agent shall not resign within
any 90-day period preceding a Semi-annual Payment Date. The Luxembourg Paying
Agent's resignation will only take effect on the appointment of a successor
which is qualified to act as a paying agent in Luxembourg.
(l) Every successor to the Luxembourg Paying Agent shall execute and
deliver to its predecessor, the Issuer and Bermuda Holdings an instrument in
writing accepting its appointment hereunder, and thereupon, such successor
paying agent, without any further act or deed, shall become fully vested with
all the rights, powers, duties and obligations of its predecessor; provided,
that such successor paying agent such only become so vested if it is qualified
to act as a paying agent in Luxembourg.
(m) Any corporation into or with which the Luxembourg Paying Agent may be
merged or consolidated shall be the successor of the Luxembourg Paying Agent
without the execution or filing of any document or of any further act, except
for such documents or actions which may be required in connection with
qualification of such successor with the Luxembourg Stock Exchange.
9. Termination. The Issuer or Bermuda Holdings may at any time
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terminate this Agreement or appoint additional paying agents to act as a paying
agent, including as a Principal Paying Agent.
10. Trust Indenture Act. This Agreement shall be subject to the
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terms of the Trust Indenture Act of 1939, as amended.
11. Counterparts. This Agreement may be executed in any number
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of counterparts by the parties hereto on separate counterparts, each of which,
when so executed and delivered, shall be deemed an original, but all such
counterparts shall together constitute one and the same instrument.
12. Severability. In case any one or more of the provisions
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contained in this Agreement should be or become invalid, illegal or
unenforceable in
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any respect, the validity, legality and enforceability of the remaining
provisions contained herein or therein shall in no way be affected, prejudiced
or disturbed thereby.
13. Notices. Notices hereunder shall be mailed or delivered as
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follows:
To the Principal Paying Agent:
The Chase Manhattan Bank
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
To the Luxembourg Paying Agent:
Chase Manhattan Bank Luxembourg S.A.
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▇-▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇: Corporate Trust Department
Telephone No.: ▇▇▇-▇▇▇-▇▇-▇▇▇-▇▇▇▇
Telecopy No.: 011-352-46-268-5380
To the Issuer:
Terra Nova Insurance (UK) Holdings plc
Terra ▇▇▇▇ ▇▇▇▇▇
▇▇-▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ Great Britain
Attention: Company Secretary
Telephone No.: ▇▇▇-▇▇-▇▇▇-▇▇▇-▇▇▇▇
Telecopy No.: 011-44-171-283-1749
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To Bermuda Holdings:
Terra Nova (Bermuda) Holdings Ltd.
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▇▇ ▇▇▇-▇▇-▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇ ▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇: Secretary
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
or as to each party at such other address as shall be designated by such party
in a written notice to the other parties. Any communication so addressed and
mailed or delivered to the Principal Paying Agent, the Luxembourg Paying Agent,
Bermuda Holdings or the Issuer shall be deemed to be given when received.
14. Section Headings . The section headings in this Agreement are
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for convenience of reference only and shall not be deemed to alter or affect any
provision hereof.
15. Miscellaneous. This Agreement shall be binding upon and inure
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solely to the benefit of the parties hereto and their respective successors and
assigns, heirs, administrators and representatives and shall not be enforceable
by or inure to the benefit of any third party except for Section 8 (with respect
to a resignation by the Luxembourg Paying Agent). This Agreement shall be
construed in accordance with and governed by the laws of the State of New York,
without regard to the conflict of laws provisions therein.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first written above.
TERRA NOVA INSURANCE (UK) HOLDINGS PLC
By:_______________________________________________
Name:
Title:
TERRA NOVA (BERMUDA) HOLDINGS LTD.
By:_______________________________________________
Name:
Title:
CHASE MANHATTAN BANK LUXEMBOURG S.A.,
as Luxembourg Paying Agent
By:_______________________________________________
Name:
Title:
THE CHASE MANHATTAN BANK,
as Principal Paying Agent
By:_______________________________________________
Name:
Title:
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