SCOR U.S. CORPORATION
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
SECTION 1. INTERPRETATIONS AND DEFINITIONS
The following terms, as used herein, shall have the following
"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
"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.
"London Interbank Offered Rate" has the meaning set forth in Section 2.04
"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
"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
2.01 Agreement to Lend
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
(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.
(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 York City time).
2.03 The Note
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.
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 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
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
2.05 Optional Prepayments.
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
The Commitment shall terminate on the Termination Date and any Loans then
outstanding (together with accrued interest thereon) shall be due and payable on
2.07 Optional Termination or Reduction of Commitment
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
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
3.01 Initial Loan.
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
3.02 All Loans
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
(b) the fact that, immediately after such Loan, no Default shall have
occurred and be continuing.
SECTION 4. PURPOSES OF LOANS
4.01 Use of Proceeds
The Borrower will not use the proceeds of any Loans for any purposes
(a) the redemption of Convertible Subordinated Debentures issued by the
(b) to refund any Debt incurred by Borrower, including but not
limited to a Loan, for such redemption.
SECTION 5. EVENTS OF DEFAULT
5.01 Events of Default
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
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
("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
(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
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
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
7.01 Legal Action and Governmental and Corporate Approvals
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
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
7.03 Cumulative Rights and Waiver
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.
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
7.05 Governing Law
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
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.
(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
To the Lender:
SCOR S.A. - Immeuble SCOR
One Avenue du President Xxxxxx
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.
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/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Senior VP & Chief Financial Officer
LENDER: SCOR S.A.
By: /s/ Francois Reach
Name: Francois Reach
Title: Deputy General Manager
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
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 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: /s/ Xxxxxxx X. Xxxxxxx
Title: Senior V.P. and Chief