Exhibit 10 (w)
LOAN AGREEMENT
U.S. $20,0000,000
SCOR U.S. CORPORATION
Borrower
SCOR S.A.
Lender
October 2, 1995
This Loan AGREEMENT, dated October 2, 1995, between SCOR U.S.
Corporation, a Delaware Corporation, with its principal office at 2 World Trade
Center, New York, N.Y., (the "Borrower"), and SCOR S.A. a company incorporated
in France with its head office in PUTEAUX-Hauts de Seine - France, Avenue du
President Wilson, (the "Lender"), sets forth the binding Agreement of the
parties.
SECTION 1. INTERPRETATIONS AND DEFINITIONS
1.01 Definitions
The following terms, as used herein, shall have the following
respective meanings:
"Borrower" means SCOR U.S. Corporation.
"Business Day" means any day, except a Saturday or Sunday or other day
on which commercial banks in New York City are not open.
"Control" (including, with its correlative meanings, "controlled by"
and "under common control with") means, with respect to any Person, the
possession, directly or indirectly, of power to direct or cause the direction of
the management or policies of such Person.
"Debt" means at any date, without duplication, (I) all obligations for
borrowed money, including, without limitation, reimbursement obligations related
to letters of credit, and (ii) all obligations evidenced by bonds, debentures,
notes or other similar instruments.
"Default" means any condition or event which constitutes an Event of
Default or which with the giving of notice or lapse of time, or both, would
unless cured or waived become an Event of Default.
"Dollars" and the sign "$" 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.
2
"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.
"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
2.01 Agreement to Lend
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
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, that such time
is not earlier than 2:00 p.m. (New York time).
2.03 The Note
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.
3
2.04 Interest
The Loan shall bear interest on the outstanding principal amount for
each day from the date the Loan is a 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.
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
The Borrower shall repay the Loan (together with accrued interest
thereon) on the Repayment Date.
2.06 Optional Prepayment
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
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.
4
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.
SECTION 3. CONDITIONS
3.01 Initial Loan.
The obligation of the Lender to make the 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.
SECTION 4. PURPOSES OF LOAN
4.01 Use of Proceeds
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
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
5
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.
SECTION 6. CONSEQUENCES OF DEFAULT
6.01 Consequences of Default
If an Event of Default shall occur and be continuing beyond any grace
period permitted thereof, 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.
6
SECTION 7. LOAN ADMINISTRATION
7.01 Term of Agreement
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
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 not governmental approvals required on the part of
either in connection with 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
hereto.
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 s 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
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
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 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
effect 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
2 World Trade Center
New York, New York 10048
Att: Treasurer
To the Lender:
SCOR S.A. - Immueble SCOR
One Avenue du President Wilson
Cedex 39
92074 Paris La Defense 8, France
Att: Francois Reach
8
(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 of telefax, whichever shall first occur. Any party may change its
address for purposes hereof by Notice to the other party.
7.07 Headings
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/ Jeffrey D. Cropsey
Name: Jeffrey D. Cropsey
Title: Senior V.P. & Chief Financial Officer
LENDER: SCOR S.A.
By: /s/ Francois Reach
Name: Francois Reach
Title: Deputy General Manager
9
EXHIBIT A
NOTE
U.S. $20,000,000 October 2, 1995
New York, New York
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 Wilson, Cedex 39, 92074 Paris La Defense 8,
France 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: Jeffrey D. Cropsey
Title: Senior V.P. and Chief Financial Officer
10