Exhibit (c)(8)
LOAN AGREEMENT
U.S.$20,000,000
SCOR U.S. CORPORATION
Borrower
SCOR S.A.
Lender
October 2, 1995
This Loan AGREEMENT, dated October 2, 1995, between SCOR U.S. Corporation,
a Delaware Corporation, with its principal office at ▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇, (the "Borrower"), and SCOR S.A. a company incorporated in France
with its head office in PUTEAUX - Hauts de Seine - France, Avenue du President
▇▇▇▇▇▇, (the "Lender"), sets forth the binding Agreement of the parties.
SECTION 1. INTERPRETATIONS AND DEFINITIONS
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1.01 Definitions
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The following terms, as used herein, shall have the following respective
meanings:
"Borrower" means Scor U.S. Corporation.
"Business Day" means any day, except a Saturday or Sunday or other day on
which commercial banks in New York City are not open.
"Control" (including, with its correlative meanings, "controlled by" and
"under common control with") means, with respect to any Person, the possession,
directly or indirectly, of power to direct or cause the direction of the
management or policies of such Person.
"Debt" means at any date, without duplication, (i) all obligations for
borrowed money, including, without limitation, reimbursement obligations
related to letters of credit, and (ii) all obligations evidenced by bonds,
debentures, notes or other similar instruments.
"Default" means any condition or event which constitutes an Event of
Default or which with the giving of notice or lapse of time, or both, would
unless cured or waived become an Event of Default.
"Dollars" and the sign "$" mean lawful money of the United States of
America.
"Interest Period" means the period commencing on the date of this
Agreement 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 until the principal is repaid.
"Lender" means Scor S.A.
"Loan" shall mean the aggregate principal amount advanced by the Lender as
a loan to the Borrower hereunder or, where the context so requires, the amount
thereof then outstanding.
"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 Loan.
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"Notice" shall mean notice delivered by a party to this Agreement to the
other party hereto in the manner provided in Section 7.06.
"Original Period" means the period commencing October 2, 1995 and ending
October 2, 1996.
"Renewal Period" means the one (1) year period commencing October 2nd
1996 and ending October 2, 1997.
"Repayment Date" shall mean October 2, 1996 or October 2, 1997.
"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.
SECTION 2. THE LOAN
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2.01 Agreement to Lend
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The Lender hereby agrees, on the terms and conditions set forth in
this Agreement, to lend to the Borrower and Borrower hereby agrees to
borrow, the principal sum of $20,000,000 ( the "Loan").
2.02 Method of Borrowing
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On the date of this Agreement the Lender will make the proceeds of the
Loan available to the Borrower by depositing the proceeds of such Loan in
the account of the Borrower, at the Bank designated by the Borrower as of
the date hereof by the time requested by the Borrower; provided, however,
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that such time is not earlier than 2:00 p.m. (New York City time).
2.03 The Note
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The Loan 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 as of
the date hereof.
2.04 Interest
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The Loan shall bear interest on the outstanding principal amount for
each day from the date the Loan is made to the date on which it is repaid
in full. Interest for the 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 end of such Interest Period, Borrower
has given Lender notice of its intent to include such interest in the
outstanding principal balance of the Loan, then any interest on the Loan
shall be added to the outstanding principal balance and shall bear interest
at the applicable rate of interest.
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The "Margin" means 2/10 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 Repayment of the Loan
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The Borrower shall repay the Loan (together with accrued interest
thereon) on the Repayment Date.
2.06 Optional Prepayments
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The Borrower may, at the end of an Interest Period and upon at least
thirty (30) day's notice to the Lender, prepay the 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.
2.07 Loan Termination and Renewal
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The term of the Loan shall be a period of one (1) year commencing
October 2, 1995 and ending October 2, 1996, subject to renewal for an
additional term of one (1) year upon not less than sixty (60) days written
notice prior to the expiration of the Original Period from Borrower to
Lender of its intention to renew the Loan. In the event such notice is not
given the Loan shall terminate.
Upon termination of the Loan Borrower shall repay the Loan in
accordance with Sections 2.05 and 2.08 hereof
2.08 General Provisions as to Payments
---------------------------------
Except as permitted by Section 2.06 hereof payment of principal of,
and interest on, the Loan shall be due on the Repayment Date.
The Borrower shall make payments of principal of, and interest on,
the Loan 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 Loan 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.
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SECTION 3. CONDITIONS
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3.01 Initial Loan.
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The obligation of the Lender to make the Loan hereunder shall be subject to
the satisfation 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.
SECTION 4. PURPOSES OF LOAN
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4.01 Use of Proceeds
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The Borrower will not use the Loan proceeds for any purposes other than
repayment of its Debt to Banque Worms under an agreement dated October 4,
1990.
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 whatsoever to
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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 events
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("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 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
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(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.
SECTION 6.CONSEQUENCES OF DEFAULT
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6.01 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 ▇.▇▇▇▇ ADMINISTRATION
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7.01 Term of Agreement
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The term of this Agreement shall commence on October 2, 1995 and shall
end upon payment in full of all principal, interest and other sums payable
by the Borrower in respect of this Agreement, but in no event later than
October 2, 1997.
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.
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.
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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.
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
▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: Treasurer
To the Lender:
SCOR S.A. - Immeuble SCOR
One Avenue du President ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇ La ▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇
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.
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: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:Senior V.P. & Chief Financial Officer
LENDER: SCOR S.A.
By: /s/ Francois Reach
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Name: Francois Reach
Title: Deputy General Manager
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Exhibit A
NOTE
U.S. $20,000,000 October 2, ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
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 the Loan made by the
Lender to the Borrower pursuant to the Loan Agreement referred to below on
the Repayment Date. 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 Loan 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 ▇▇▇▇▇▇, Cedex 39, 92074 ▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇ or such other place as may be designated in writing from
time to time by Lender.
This note is the Note referred to in the Loan Agreement dated as of
October 2, 1995, between the Borrower and the Lender (as the same may be
amended from time to time, the "Loan Agreement"). Terms defined in the Loan
Agreement are used herein with the same meanings. Reference is made to the
Loan Agreement for provisions for the prepayment hereof and the
acceleration of the maturity hereof.
SCOR U.S. CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title:Senior V.P. and Chief Financial Officer
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