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EXHIBIT 10.24
EXECUTION COPY
PLD EUROPE FINANCE B.V.
and
PLD UK FINANCE B.V.
as Original Borrowers
PROLOGIS TRUST
as Guarantor
ABN AMRO BANK N.V.
as Arranger
and
SOCIETE GENERALE
as Co-Arranger
ABN AMRO BANK N.V.
as Agent
ABN AMRO BANK N.V.
as L/C Issuing Bank
and
THE BANKS
(as defined herein)
-------------------------------------------------
EURO 325,000,000
MULTICURRENCY REVOLVING CREDIT FACILITY AGREEMENT
-------------------------------------------------
XXXXXXXX CHANCE
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CONTENTS
CLAUSE PAGE
1. DEFINITIONS AND INTERPRETATION...................................................... 1
2. THE FACILITY........................................................................ 17
3. UTILISATION OF THE FACILITY......................................................... 18
4. PAYMENT AND CALCULATION OF INTEREST................................................. 22
5. LETTER OF CREDIT COMMISSION AND L/C ISSUING BANK FEE................................ 22
6. MARKET DISRUPTION AND ALTERNATIVE INTEREST RATES.................................... 24
7. NOTIFICATION........................................................................ 25
8. REPAYMENT........................................................................... 26
9. BORROWERS' LIABILITIES IN RELATION TO LETTERS OF CREDIT............................. 27
10. CANCELLATION, VOLUNTARY PREPAYMENT AND EXTENSION.................................... 29
11. TAXES............................................................................... 31
12. TAX RECEIPTS........................................................................ 33
13. INCREASED COSTS..................................................................... 34
14. ILLEGALITY.......................................................................... 36
15. MITIGATION.......................................................................... 36
16. REPRESENTATIONS..................................................................... 37
17. FINANCIAL INFORMATION............................................................... 43
18. FINANCIAL CONDITION................................................................. 45
19. COVENANTS........................................................................... 50
20. EVENTS OF DEFAULT................................................................... 54
21. GUARANTEE AND INDEMNITY............................................................. 59
22. COMMITMENT COMMISSION AND FEES...................................................... 61
23. COSTS AND EXPENSES.................................................................. 62
24. DEFAULT INTEREST AND BREAK COSTS.................................................... 63
25. GUARANTOR'S INDEMNITIES............................................................. 64
26. CURRENCY OF ACCOUNT AND PAYMENT..................................................... 65
27. PAYMENTS............................................................................ 66
28. SET-OFF............................................................................. 68
29. SHARING............................................................................. 68
30. THE AGENT, THE ARRANGERS, THE BANKS AND THE L/C ISSUING BANK........................ 69
31. THE BANKS AND THE L/C ISSUING BANK.................................................. 74
32. ASSIGNMENTS AND TRANSFERS........................................................... 75
33. CALCULATIONS AND EVIDENCE OF DEBT................................................... 78
34. ADDITIONAL BORROWERS................................................................ 80
35. REMEDIES AND WAIVERS, PARTIAL INVALIDITY............................................ 80
36. NOTICES............................................................................. 81
37. COUNTERPARTS........................................................................ 82
38. AMENDMENTS.......................................................................... 82
39. GOVERNING LAW....................................................................... 83
40. JURISDICTION........................................................................ 83
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THE SCHEDULES
Schedule 1 : The Banks
Schedule 2 : Form of Transfer Certificate
Schedule 3 : Part A - Initial Conditions Precedent
Part B - Additional Conditions Precedent
Schedule 4 : Notice of Drawdown
Schedule 5 : Form of Compliance Certificate
Schedule 6 : Consolidated and Unconsolidated Affiliates
Schedule 7 : Form of Borrower Accession Agreement
Schedule 8 : Mandatory Costs
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THIS AGREEMENT is made on 17 December 1999
BETWEEN
(1) PLD EUROPE FINANCE B.V. ("PLD EUROPE") and PLD UK FINANCE B.V. ("PLD
UK") (each an "ORIGINAL BORROWER", together the "ORIGINAL BORROWERS");
(2) PROLOGIS TRUST (the "GUARANTOR");
(3) ABN AMRO BANK N.V. (the "ARRANGER") and SOCIETE GENERALE (the
"CO-ARRANGER") as arranger and co-arranger of the Facility;
(4) ABN AMRO BANK N.V. as agent for the Banks (the "AGENT");
(5) ABN AMRO BANK N.V. as letter of credit issuing bank (the "L/C ISSUING
BANK"); and
(6) THE BANKS (as defined below).
IT IS AGREED as follows.
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Agreement:
"ADDITIONAL BORROWER" means any wholly-owned subsidiary of the
Guarantor which becomes a Borrower pursuant to and in accordance with
the provisions of Clause 34 (Additional Borrowers).
"ADVANCE" means an advance made or to be made by the Banks hereunder
pursuant to Clause 3 (Utilisation of the Facility).
"APPLICABLE MARGIN" and "L/C COMMISSION RATE" means, at any time, the
percentage rate per annum set out in the table below alongside the S&P
Rating, the Xxxxx'x Rating and the D&P Rating (or, if only two Ratings
are available, alongside the two Ratings which are available) which is
applicable to the Guarantor at such time. In the event of a split
Rating, the applicable margin will be determined by reference to the
lower of the higher two Ratings (or, if only two Ratings are available,
the lower Rating):
S&P Rating Xxxxx'x Rating D&P Rating Applicable Margin/
L/C Commission Rate
BBB+ Baa1 BBB+ 0.75 per cent.
BBB Baa2 BBB 0.85 per cent.
BBB- Baa3 BBB- 0.95 per cent.
"AUTHORISED SIGNATORY" means, in relation to an Obligor or proposed
Obligor, any person
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who is duly authorised (in such manner as may be reasonably acceptable
to the Agent) and in respect of whom the Agent has received a
certificate signed by a director or another Authorised Signatory of
such Obligor or proposed Obligor setting out the name and signature of
such person and confirming such person's authority to act.
"AVAILABLE COMMITMENT" means, in relation to a Bank at any time and
save as otherwise provided herein, its Commitment at such time LESS the
aggregate of its portions of the Euro Amounts of the Outstandings at
such time PROVIDED THAT such amount shall not be less than zero.
"AVAILABLE FACILITY" means, at any time, the aggregate amount of the
Available Commitments adjusted, in the case of any proposed
utilisation, so as to take into account:
(a) any reduction in the Commitment of a Bank pursuant to the
terms hereof;
(b) the Euro Amount of any Advance and/or Letter of Credit which,
pursuant to any other utilisation, is to be made and/or
issued; and
(c) the Euro Amount of any Advance and/or Letter of Credit which
is due to be repaid or expire,
on or before the proposed Utilisation Date relating to such
utilisation.
"BANK" means any financial institution:
(a) named in Schedule 1 (The Banks); or
(b) which has become a party hereto in accordance with Clause 32.4
(Assignments by Banks) or Clause 32.5 (Transfers by Banks),
and which has not ceased to be a party hereto in accordance with the
terms hereof.
"BORROWERS" means the Original Borrowers and each Additional Borrower,
(and "BORROWER" means any one of them).
"BORROWER ACCESSION AGREEMENT" means an accession agreement entered
into by an Additional Borrower pursuant to Clause 34 (Additional
Borrowers) substantially in the form set out in Schedule 7 (Form of
Borrower Accession Agreement).
"BUSINESS DAY" means a day (other than a Saturday or Sunday) (a) on
which banks generally are open for business in Amsterdam and Brussels,
(b) in relation to a payment of or a rate fixing relating to euros,
which is a TARGET Day and (c) in relation to a date for the payment or
purchase of any sum denominated in an Optional Currency, on which banks
generally are open for business in London and the principal financial
centre of the country of such Optional Currency.
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"CASH COLLATERAL" means, in relation to any Letter of Credit or L/C
Proportion of a Letter of Credit, a deposit in such interest-bearing
account or accounts as the Agent may specify, such deposit and account
to be secured in favour of, and on terms and conditions acceptable to,
the Agent.
"CHANGE OF CONTROL" means a person or group of persons acting together
with a common purpose becoming entitled to exercise, directly or
indirectly, the majority of the voting rights attaching to the ordinary
issued share capital of a Borrower or the Guarantor where such person
or group of persons was not previously so entitled.
"COMMITMENT" means, in relation to a Bank at any time and save as
otherwise provided herein, the amount set opposite its name in Schedule
1 (The Banks), or in the case of a Transferee, the amount set out in
the schedule to the relevant transfer certificate as being transferred
to that Transferee, as transferred (in whole or part), reduced, varied,
cancelled or terminated under this Agreement.
"COMPLIANCE CERTIFICATE" means a certificate substantially in the form
set out in Schedule 5 (Form of Compliance Certificate).
"COMPUTER SYSTEM" means any business critical computer hardware or
software or any computer equipment operated by electronic means.
"CONSOLIDATED AFFILIATE" means, with respect to the Guarantor, any
person in whom any member of the Group holds an equity or ownership
interest and whose financial results would be consolidated under GAAP
with the financial results of the Guarantor on the consolidated
financial statements of the Guarantor (and "CONSOLIDATED AFFILIATES"
means all of them).
"D&P" means Duff & Xxxxxx Credit Rating Co.
"DISPUTE" means any dispute referred to in Clause 40 (Jurisdiction).
"DISTRIBUTION" means, with respect to any Stock of any person, (a) the
retirement, redemption, purchase, or other acquisition for value of
such Stock by such person, (b) the declaration or payment of any
dividend on or with respect to such Stock by such person, (c) any loan
or advance by that person to, or other investment by that person in,
the holder of any of such Stock, or (d) any other payment by that
person with respect to such Stock.
"EMU" means Economic and Monetary Union as contemplated in the Treaty
establishing the European Community (signed in Rome on 25 March 1957)
and amended by the Treaty on European Union (signed in Maastricht on 7
February 1992), as amended from time to time.
"ENCUMBRANCE" means (a) a mortgage, charge, pledge, lien or other
encumbrance securing
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any obligation of any person or (b) any other type of preferential
arrangement (including any title transfer and retention arrangement)
having a similar effect.
"ENVIRONMENTAL CLAIM" means any claim or proceedings by any person
pursuant to any Environmental Law.
"ENVIRONMENTAL LAW" means any applicable law in any jurisdiction in
which any member of the Group conducts business which relates to the
pollution or protection of the environment or harm to or the protection
of human health.
"ENVIRONMENTAL PERMITS" means any permit, licence, consent, approval
and other authorisation and the filing of any notification, report or
assessment required under any Environmental Law for the operation of
the business of any member of the Group conducted on or from the
properties owned or used by the relevant member of the Group.
"ERISA" means the United States Employee Retirement Income Security Act
of 1974 (as amended) and the rules and regulations promulgated
thereunder.
"ERISA AFFILIATE" means any trade or business (whether or not
incorporated) which, together with the Guarantor, is treated as a
single employer under Section 414(b) or (c) of the United States
Internal Revenue Code of 1986, as amended, and the rules and
regulations promulgated thereunder.
"EURIBOR" means, in relation to any amount to be advanced to or owing
by an Obligor hereunder on which interest for a given period is to
accrue:
(a) the percentage rate per annum equal to the offered quotation
which appears on the page of the Telerate Screen which
displays the rate of the Banking Federation of the European
Union for the euro (being currently page "248") for such
period at or about 11.00 a.m. (Brussels time) on the Quotation
Date for such period or, if such page or such service shall
cease to be available, such other page or such other service
for the purpose of displaying an average rate of the Banking
Federation of the European Union as the Agent, after
consultation with the Banks and the Guarantor, shall select;
or
(b) if no quotation for the euro for the relevant period is
displayed and the Agent has not selected an alternative
service on which a quotation is displayed, the arithmetic mean
(rounded upwards to four decimal places) of the rates (as
notified to the Agent) at which each of the Reference Banks
was offering to prime banks in the European Interbank Market
deposits in euro of an equivalent amount for such period at or
about 11.00 a.m. (Brussels time) on the Quotation Date for
such period.
"EURO AMOUNT" means:
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(a) in relation to any Advance, its Original Euro Amount as
reduced by the proportion (if any) of such Advance which has
been repaid;
(b) in relation to any Letter of Credit, if such Letter of Credit
is denominated in euro, the maximum actual and contingent
liability of the L/C Issuing Bank thereunder or in respect
thereof; and
(c) in relation to any Letter of Credit, if such Letter of Credit
is denominated in an Optional Currency, the equivalent in euro
of the maximum actual and contingent liability of the L/C
Issuing Bank thereunder or in respect thereof, calculated as
at the later of the date which falls (i) two Business Days
before its issue date or any renewal date or (ii) on the most
recent L/C Valuation Date; and
(d) in relation to the Outstandings, the aggregate of the Euro
Amounts of each outstanding Advance and Letter of Credit.
"EVENT OF DEFAULT" means any circumstance described as such in Clause
20 (Events of Default).
"EXPIRY DATE" means, in relation to any Letter of Credit, the date on
which the maximum aggregate liability thereunder is to be reduced to
zero.
"EXTENDED MATURITY DATE" means the day which falls twelve months after
the Final Maturity Date.
"FACILITY" means the multicurrency revolving credit facility granted to
the Borrowers in this Agreement.
"FACILITY DOCUMENTS" means this Agreement, each Borrower Accession
Agreement and any other agreement or document, deed, notice or
certificate entered into or executed by any of the Obligors pursuant to
the terms hereof or thereof or otherwise in connection herewith or
therewith together with all amendments and supplements to any of the
foregoing (and "FACILITY DOCUMENT" shall be construed accordingly).
"FACILITY OFFICE" means, in relation to the Agent, the office
identified with its signature below or such other office as it may
select by notice and, in relation to any Bank, the office notified by
it to the Agent in writing prior to the date hereof (or, in the case of
a Transferee, at the end of the Transfer Certificate to which it is a
party as Transferee) or such other office as it may from time to time
select by notice to the Agent.
"FINAL MATURITY DATE" means the day which falls 48 months after the
date hereof.
"FINANCE PARTIES" means the Agent, the Arrangers, the L/C Issuing Bank
and the Banks.
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"FINANCIAL INDEBTEDNESS" means (without double counting) any
indebtedness for or in respect of:
(a) Indebtedness for Borrowed Money;
(b) any documentary credit facility;
(c) any interest rate swap, currency swap, forward foreign
exchange transaction, cap, floor, collar or option transaction
(but excluding, for the avoidance of doubt, any cap or foreign
exchange option transaction where no indebtedness is
outstanding in relation thereto) or any other treasury
transaction or any combination thereof or any other
transaction entered into in connection with protection against
or benefit from fluctuation in any rate or price (and the
amount of the Financial Indebtedness in relation to all such
transactions shall be the net amount calculated by reference
to the xxxx-to-market valuations of all such transactions at
the relevant time); and
(d) any guarantee, indemnity, bond, standby letter of credit or
similar instrument for any of the items referred to in
paragraphs (a) to (c) above.
"GAAP" has the meaning given to it in Clause 18.2 (Financial
Definitions).
"GROUP" means the Guarantor and its Consolidated Affiliates.
"INDEBTEDNESS FOR BORROWED MONEY" means (without double counting) any
indebtedness for or in respect of:
(a) moneys borrowed;
(b) any amount raised by acceptance under any acceptance credit
facility;
(c) any amount raised pursuant to any note purchase facility or
the issue of bonds, notes, debentures, loan stock or any
similar instrument;
(d) any amount raised pursuant to any issue of shares which are
expressed to be redeemable before the Final Maturity Date (or,
if the Final Maturity Date is extended in accordance with the
provisions hereof, the Extended Maturity Date);
(e) the amount of any liability in respect of any lease or hire
purchase contract which would, in accordance with generally
accepted accounting principles in the relevant jurisdiction,
be treated as a finance or capital lease;
(f) the amount of any liability in respect of any advance or
deferred purchase agreement if one of the primary reasons for
entering into such agreement is to raise finance;
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(g) receivables sold or discounted (other than on a non-recourse
basis);
(h) any agreement or option to re-acquire an asset if one of the
primary reasons for entering into such agreement or option is
to raise finance;
(i) any amount raised under any other transaction (including any
forward sale or purchase agreement) having the commercial
effect of a borrowing; and
(j) the amount of any liability in respect of any guarantee or
indemnity for any of the items referred to in paragraphs (a)
to (i) above.
"INFORMATION MEMORANDUM" means the document concerning the Obligors
which, at their request and on their behalf, was prepared in relation
to this transaction and distributed by the Arrangers to selected banks
during November 1999.
"INSTRUCTING GROUP" means, save as otherwise provided herein:
(a) whilst there are no Outstandings, a Bank or Banks whose
Commitments amount (or, if each Bank's Commitment has been
reduced to zero, did immediately before such reduction to
zero, amount) in aggregate to more than sixty-six and two
thirds per cent. of the Total Commitments; and
(b) whilst there are Outstandings, a Bank or Banks to whom in
aggregate more than sixty-six and two thirds per cent. of the
Outstandings is owed.
"I.R.C." means the United States Internal Revenue Code of 1986, as
amended.
"L/C AMOUNT" means:
(a) each sum paid or due and payable by the L/C Issuing Bank to
the beneficiary of a Letter of Credit pursuant to the terms of
such Letter of Credit; and
(b) all liabilities, costs (including, without limitation, any
costs incurred in funding any amount which falls due from the
L/C Issuing Bank under a Letter of Credit), claims, losses and
expenses which the L/C Issuing Bank incurs or sustains in
connection with a Letter of Credit,
in each case which has not been reimbursed pursuant to Clause 9
(Borrowers' Liabilities in relation to Letters of Credit).
"L/C COMMISSION RATE" shall have the meaning given thereto in the
definition of "Applicable Margin".
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"L/C ISSUING BANK" means ABN AMRO Bank N.V. or such bank as may be
appointed as such by the Agent after consultation with the Guarantor.
"L/C PROPORTION" means, in relation to a Bank in respect of any Letter
of Credit and save as otherwise provided herein, the proportion
(expressed as a percentage) borne by such Bank's Available Commitment
to the Available Facility immediately prior to the issue of such Letter
of Credit.
"L/C VALUATION DATE" means the first Business Day which falls six
months after the date hereof and each day falling at six monthly
intervals thereafter.
"LETTER OF CREDIT" means a letter of credit issued or to be issued by
the L/C Issuing Bank pursuant to Clause 3 (Utilisation of the Facility)
in a form which is acceptable to the Agent and the relevant L/C Issuing
Bank.
"LIBOR" means, in relation to any amount denominated in an Optional
Currency owed by an Obligor hereunder on which interest for a given
period is to accrue:
(a) the percentage rate per annum equal to the offered quotation
which appears on the page of the Telerate Screen which
displays an average British Bankers Association Interest
Settlement Rate for the currency of the relevant amount (being
currently "3740" or, as the case may be, "3750") for such
period at or about 11.00 a.m. (London time) on the Quotation
Date for such period or, if such page or such service shall
cease to be available, such other page or such other service
for the purpose of displaying an average British Bankers
Association Interest Settlement Rate for such currency as the
Agent, after consultation with the Banks and the Guarantor,
shall select; or
(b) if no quotation for the relevant currency and the relevant
period is displayed and the Agent has not selected an
alternative service on which a quotation is displayed, the
arithmetic mean (rounded upwards to four decimal places) of
the rates (as notified to the Agent) at which each of the
London Reference Banks was offering to prime banks in the
London Interbank Market deposits in the currency of such
amount and for such period at or about 11.00 a.m. (London
time) on the Quotation Date for such period.
"MANDATORY COSTS RATE" means the rate determined in accordance with
Schedule 8 (Mandatory Costs).
"MATERIAL ADVERSE EFFECT" means any (a) material impairment of the
ability of the Guarantor to perform any of its payment or other
material obligations under any Facility Document or (b) material and
adverse effect on the financial condition of the Group taken as a
whole.
"MOODY'S" means Xxxxx'x Investor Service, Inc.
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"NATIONSBANK FACILITY AGREEMENT" means the facility agreement dated as
of 29 March 1999 and made between the Guarantor as borrower and
NationsBank, N.A., as administrative agent, Commerzbank
Aktiengesellschaft, New York Branch, as syndication agent, Chase Bank
of Texas, National Association as documentation agent and the financial
institutions named therein as lenders, as amended on 19 May 1999,
pursuant to which the lenders referred to therein agreed to make
available to the Guarantor a US$550,000,000 facility in accordance with
the terms thereof.
"NOTICE OF DRAWDOWN" means a notice substantially in the form set out
in the Schedule 4 (Notice of Drawdown).
"OBLIGORS" means the Borrowers and the Guarantor (and "OBLIGOR" means
any one of them).
"ORIGINAL BORROWERS" means PLD Europe and PLD UK.
"OPTIONAL CURRENCY" means sterling and any currency (except euro) which
is freely transferable and freely convertible into euro, which is
available to banks in the European Interbank Market and which has been
previously approved in writing by the Agent (acting on the instructions
of all the Banks) as an optional currency for the purposes of any
utilisation at least three Business Days prior to delivery of the
Notice of Drawdown for such Advance.
"ORIGINAL EURO AMOUNT" means, in relation to an Advance or Letter of
Credit, the amount thereof requested in the Notice of Drawdown relating
thereto (as the same may be reduced pursuant to Clause 3.9 (Reduction
of Available Commitment)) or, if such Advance or Letter of Credit is
denominated in an Optional Currency, the equivalent of such amount (as
the same may be so reduced) in euro, calculated as at the date of such
Notice of Drawdown.
"ORIGINAL FINANCIAL STATEMENTS" means:
(a) in relation to the Guarantor, its audited consolidated
financial statements for its financial year ended 31 December
1998;
(b) in relation to each Original Borrower, its opening balance
sheet as at 31 October 1999 delivered to the Agent pursuant to
Clause 2.3 (Conditions Precedent); and
(c) in relation to each Additional Borrower, any financial
statements in relation to such Additional Borrower required to
be delivered pursuant to Schedule 3, Part B (Additional
Conditions Precedent).
"OUTSTANDINGS" means, at any time, the aggregate of the Euro Amounts of
each outstanding Advance and the Euro Amounts of the maximum actual and
contingent liabilities of the Banks in respect of each outstanding
Letter of Credit.
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"PARTICIPATING MEMBER STATE" means any member state of the European
Union which has adopted the euro as its lawful currency at the relevant
time.
"PENSION PLAN" means an employee pension or benefit plan covered by
Title IV of ERISA or any other applicable pension laws established or
maintained by any member of the Group and any other ERISA Affiliate.
"PERMITTED DISTRIBUTIONS" means, for the Guarantor for any fiscal year
of the Guarantor, an amount not to exceed the greater of (a)
ninety-five per cent. (95%) of Funds from Operations (as defined in
Clause 18.2 (Financial Definitions)) for such fiscal year and (b) one
hundred per cent. (100%) of real estate investment trust taxable income
(as determined under 857 of the I.R.C.) but determined (i) without
regard to the deduction for dividends paid, (ii) by excluding any net
capital gain and (iii) by subtracting any "excess noncash income" as
defined in I.R.C. 857(e) for such fiscal year.
"PERMITTED ENCUMBRANCE" means:
(a) any netting or set-off arrangement entered into by any member
of the Group in the normal course of its banking arrangements
for the purpose of netting debit and credit balances, or any
set-off arrangement which arises by operation of law as a
result of any member of the Group opening a bank account;
(b) any title transfer or retention of title arrangement entered
into by any member of the Group in the normal course of its
trading activities on the counterparty's standard or usual
terms;
(c) any lien arising by operation of law and in the normal course
of business;
(d) any Encumbrance over goods and documents of title to goods
arising out of letter of credit transactions entered into in
the ordinary course of business;
(e) any Encumbrance resulting from the subordination by a member
of the Group of indebtedness due to it from other members of
the Group or any third parties;
(f) any Encumbrance made to secure payment of workers compensation
(or to participate in any fund in connection with workers
compensation insurance), unemployment insurance, pensions or
social security programs;
(g) any lien or other Encumbrance for taxes not yet due and
payable or which are being contested in good faith by
appropriate proceedings diligently conducted and for which
reserves in accordance with generally accepted accounting
principles or otherwise reasonably acceptable to the Agent
have been provided;
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(h) any Encumbrance securing assessments or charges payable to a
property owner association or similar entity, which
assessments are not yet due and payable or are being contested
in good faith by appropriate proceedings diligently conducted,
and for which reserves in accordance with generally accepted
accounting principles or otherwise reasonably acceptable to
the Agent have been provided;
(i) any Encumbrance granted to a member of the Group by any other
member of the Group; and
(j) any other Encumbrance in respect of Properties or other assets
securing Indebtedness (as defined in Clause 18.2 (Financial
Definitions)) (where such Encumbrance is not otherwise
permitted pursuant to any of paragraphs (a) to (i) above)
where the aggregate Indebtedness (as so defined) secured by
such Encumbrance, when aggregated with the aggregate of all
other Indebtedness (as so defined) secured by any other such
Encumbrance not otherwise permitted pursuant to any of
paragraphs (a) to (i) above, does not exceed an amount equal
to 25% of Total Assets (as defined in Clause 18.2 (Financial
Definitions)) of the Guarantor (determined on a consolidated
basis).
"POTENTIAL EVENT OF DEFAULT" means any event which could reasonably be
expected to become (with the passage of time, the giving of notice, the
making of any determination hereunder or any combination thereof) an
Event of Default.
"PROPERTY" means any and all real property owned by any member of the
Group or any Unconsolidated Affiliate.
"PROPORTION" means, in relation to a Bank:
(a) whilst no Advance or Letter of Credit is outstanding, the
proportion borne by its Commitment to the Total Commitments
(or, if the Total Commitments are then zero, by its Commitment
to the Total Commitments immediately prior to their reduction
to zero); or
(b) whilst at least one Advance or Letter of Credit is
outstanding, the proportion borne by its share of the Euro
Amount of the Outstandings to the Euro Amount of the
Outstandings.
"QUALIFYING LENDER" means any bank in respect of which the relevant
Borrower will not be obliged to make any withholding or deduction on
account of tax from payments of interest made to such bank under the
law of the Relevant Jurisdiction of that Borrower.
"QUOTATION DATE" means, in relation to any period for which an interest
rate is to be determined hereunder, the day on which quotations would
ordinarily be given by prime
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banks in the European Interbank Market (or, if the currency in relation
to which such rate is to be determined is an Optional Currency, the
London Interbank Market) for deposits in the currency in relation to
which such rate is to be determined for delivery on the first day of
that period, PROVIDED THAT, if, for any such period, quotations would
ordinarily be given on more than one date, the Quotation Date for that
period shall be the last of those dates.
"RATING" means the most recent credit rating of the Guarantor, as
announced from time to time by S&P, Xxxxx'x or, as the case may be,
D&P, which is assigned to any class of senior, unsecured liability
securities (having a maturity date falling not less than 12 months
after the date of issue) issued by the Guarantor as to which no letter
of credit, guaranty, or third party credit support is in place,
regardless of whether all or any part of such liability has been issued
at the time such announcement is made.
"REIT" means an entity which is a real estate investment trust under
I.R.C. "856-859 or any successor laws thereto.
"REFERENCE BANKS" means, the principal London offices of ABN AMRO Bank
N.V. Societe Generale and Bank of America, N.A. or such banks as may be
appointed as such by the Agent after consultation with the Guarantor.
"REFRIGERATED WAREHOUSE BUSINESS" means all operations and assets
invested in by the Group related to refrigerated storage and
distribution of goods from temperature-controlled facilities.
"RELEVANT JURISDICTION" means:
(a) in relation to the Guarantor, the State of Maryland, United
States of America;
(b) in relation to each Original Borrower, The Netherlands; and
(c) in relation to each other Obligor and each other member of the
Group, its jurisdiction of incorporation.
"REPAYMENT DATE" means, in relation to an Advance, the last day of the
Term thereof.
"REPEATED REPRESENTATIONS" means each of the representations set out in
Clause 16.1 (Status) to Clause 16.29 (No Event of Default) other than
Clause 16.4 (to the extent only that it relates to execution of the
Facility Documents), Clause 16.14 (Information Memorandum), Clause
16.17 (No Filing or Stamp Taxes), Clause 16.19 (No Deduction or
Withholding) and Clause 16.29 (No Event of Default) (to the extent that
it refers to a Potential Event of Default).
"ROLLOVER ADVANCE" means an Advance which is used to refinance a
maturing Advance and which is in the same or lesser amount and the same
currency as such maturing Advance and is to be drawn on the day such
maturing Advance is to be repaid.
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"S&P" means Standard & Poor's Rating Group, a division of McGraw Hill,
Inc., a New York corporation;
"STOCK" means all shares, options, warrants, general or limited
partnership interests, membership interests, or other ownership
interests (regardless of how designated) of or in a corporation,
partnership, limited liability company, trust or other entity, whether
voting or non-voting, including common stock, preferred stock, or any
other "equity security" (as such term is defined in Rule 3a11-1 of the
General Rules and Regulations promulgated by the United States
Securities and Exchange Commission under the United States Securities
Exchange Act of 1934, as amended).
"SUBSEQUENT PARTICIPANT" means a member state of the European Union
which adopts the euro as its lawful currency after 1 January 1999.
"SYNDICATION DATE" means the day specified by the Arrangers as the day
on which primary syndication of the Facility is completed.
"TARGET" means Trans-European Automated Real-time Gross settlement
Express Transfer system.
"TARGET DAY" means a day on which payments in euros are settled in the
TARGET system.
"TERM" means, save as otherwise provided herein:
(a) in relation to any Advance, the period for which such Advance
is borrowed as specified in the Notice of Drawdown relating
thereto;
(b) in relation to any Letter of Credit, the period from its
Utilisation Date until its Expiry Date; and
(c) in relation to an Unpaid Sum, any of those periods mentioned
in Clause 24.1 (Default Interest Periods).
"TOTAL COMMITMENTS" means, at any time, the aggregate of the Banks'
Commitments.
"TRANSFER CERTIFICATE" means a certificate substantially in the form
set out in Schedule 2 (Form of Transfer Certificate) signed by a Bank
and a Transferee under which:
(a) such Bank seeks to procure the transfer to such Transferee of
all or a part of such Bank's rights, benefits and obligations
hereunder upon and subject to the terms and conditions set out
in Clause 31.3 (Assignments and Transfers by Banks); and
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(b) such Transferee undertakes to perform the obligations it will
assume as a result of delivery of such certificate to the
Agent as contemplated in Clause 31.6 (Transfers by Banks).
"TRANSFER DATE" means, in relation to any Transfer Certificate, the
date for the making of the transfer as specified in such Transfer
Certificate.
"TRANSFEREE" means a person to which a Bank seeks to transfer by
novation all or part of such Bank's rights, benefits and obligations
hereunder.
"UNCONSOLIDATED AFFILIATE" means any person in whom any member of the
Group holds Stock and whose financial results would not be consolidated
under GAAP with the financial results of the Group on the consolidated
financial statements of the Group other than (i) the ProLogis European
Properties Fund, (ii) ProLogis California I LLC and (iii) (with the
prior written consent of an Instructing Group) any other such person
(such consent not to be unreasonably withheld or delayed where ProLogis
can demonstrate to the reasonable satisfaction of an Instructing Group
that the Group does not own all or substantially all of the economic
interest in such person).
"UNPAID SUM" means the unpaid balance of any of the sums referred to in
Clause 24.1 (Default Interest Periods).
"UTILISATION DATE" means, in relation to an Advance, the date on which
it is to be made and, in relation to a Letter of Credit, the date on
which it is to be issued.
"YEAR 2000 COMPLIANT" means, in relation to any Computer System, that
any reference to or use of a date on or after 31 December 1999 in the
operation of that Computer System will not have a material adverse
effect on the use of that Computer System.
1.2 INTERPRETATION
Any reference in this Agreement to:
an "ARRANGER", the "L/C ISSUING BANK", the "AGENT" or any "BANK" shall
be construed so as to include its and any subsequent successors and
permitted transferees in accordance with their respective interests;
an "ARRANGER" or the "ARRANGERS" includes a reference to each of ABN
AMRO Bank N.V. as Arranger and Societe Generale as Co-Arranger;
"CONTINUING", in relation to an Event of Default, shall be construed as
a reference to an Event of Default which has not been remedied or
waived in accordance with the terms hereof and, in relation to a
Potential Event of Default, one which has not been remedied within the
relevant grace period or waived in accordance with the terms hereof
and, in the case of late delivery of a document or withdrawal of a
claim whose existence constituted an Event of Default, that Event of
Default is not continuing once delivery or withdrawal has occurred.
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a "DISPOSAL" shall be construed so as to include (without limitation)
the sale, lease or transfer of any revenues or assets of any member of
the Group.
the "EQUIVALENT" on any date in one currency (the "FIRST CURRENCY") of
an amount denominated in another currency (the "SECOND CURRENCY") is a
reference to the amount of the first currency which could be purchased
with the amount of the second currency at the spot rate of exchange
quoted by the Agent at or about 11.00 a.m. on such date for the
purchase of the first currency with the second currency;
a "HOLDING COMPANY" of a company or corporation shall be construed as a
reference to any company or corporation of which the first-mentioned
company or corporation is a subsidiary;
"INDEBTEDNESS" shall be construed so as to include any obligation
(whether incurred as principal or as surety) for the payment or
repayment of money, whether present or future, actual or contingent;
a "LAW" shall be construed as any law (including common or customary
law), statute, constitution, decree, judgment, treaty, regulation,
directive, bye-law, order or any other legislative measure of any
government, supranational, local government, statutory or regulatory
body or court;
a "MONTH" is a reference to a period starting on one day in a calendar
month and ending on the numerically corresponding day in the next
succeeding calendar month save that:
(a) if any such numerically corresponding day is not a Business
Day, such period shall end on the immediately succeeding
Business Day to occur in that next succeeding calendar month
or, if none, it shall end on the immediately preceding
Business Day; and
(b) if there is no numerically corresponding day in that next
succeeding calendar month, that period shall end on the last
Business Day in that next succeeding calendar month,
(and references to "MONTHS" shall be construed accordingly);
a Bank's "PARTICIPATION" in relation to a Letter of Credit shall be
construed as a reference to the rights and obligations of such Bank in
relation to such Letter of Credit as such rights are expressly set out
in this Agreement;
a "PERSON" shall be construed as a reference to any person, firm,
company, corporation, government, state or agency of a state or any
association or partnership (whether or not having separate legal
personality) of two or more of the foregoing;
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"REPAY" (or any derivative form thereof) shall, subject to any contrary
indication, be construed to include "PREPAY" (or, as the case may be,
the corresponding derivative form thereof);
a "SUBSIDIARY" of a company or corporation (other than the Guarantor)
shall be construed as a reference to any company or corporation:
(a) which is controlled, directly or indirectly, by the
first-mentioned company or corporation;
(b) more than half the issued share capital of which is
beneficially owned, directly or indirectly, by the
first-mentioned company or corporation; or
(c) which is a subsidiary of another subsidiary of the
first-mentioned company or corporation
and, for these purposes, a company or corporation shall be treated as
being controlled by another if that other company or corporation is
able to direct its affairs and/or to control the composition of its
board of directors or equivalent body;
a "SUCCESSOR" shall be construed so as to include an assignee or
successor in title of such party and any person who under the laws of
its jurisdiction of incorporation or domicile has assumed the rights
and obligations of such party under this Agreement or to which, under
such laws, such rights and obligations have been transferred;
"TAX" means any tax, assessment or other governmental charge or levy
imposed upon any person, its income, or any of its properties,
franchises or assets;
"VAT" shall be construed as a reference to value added tax including
any similar tax which may be imposed in place thereof from time to
time;
a "WHOLLY-OWNED SUBSIDIARY" of a company or corporation shall be
construed as a reference to any company or corporation which has no
other members except that other company or corporation and that other
company's or corporation's wholly-owned subsidiaries or persons acting
on behalf of that other company or corporation or its wholly-owned
subsidiaries; and
the "WINDING-UP", "DISSOLUTION" or "ADMINISTRATION" of a company or
corporation shall be construed so as to include any equivalent or
analogous proceedings under the law of the jurisdiction in which such
company or corporation is incorporated or any jurisdiction in which
such company or corporation carries on business.
1.3 CURRENCY SYMBOLS AND DEFINITIONS
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1.3.1 "EURO" and "EUR" denote the single currency of the
European Union as constituted by the Treaty on European
Union and as referred to in EMU Legislation.
1.3.2 "STERLING" denotes lawful currency of the United Kingdom.
1.4 AGREEMENTS AND STATUTES
Any reference in this Agreement to:
1.4.1 this Agreement or any other agreement or document shall be
construed as a reference to this Agreement or, as the case may
be, such other agreement or document as the same may have
been, or may from time to time be, amended, varied, novated or
supplemented; and
1.4.2 a statute or treaty shall be construed as a reference to such
statute or treaty as the same may have been, or may from time
to time be, amended or, in the case of a statute, re-enacted.
1.5 HEADINGS
Clause and Schedule headings are for ease of reference only.
1.6 TIME
Any reference in this Agreement to a time of day shall, unless a
contrary indication appears, be a reference to Amsterdam time.
2. THE FACILITY
2.1 GRANT OF THE FACILITY
The Xxxxx xxxxx to the Borrowers, upon the terms and subject to the
conditions hereof, a multicurrency revolving credit and letter of
credit facility in an aggregate amount of EUR 300,000,000 or its
equivalent from time to time in Optional Currencies.
2.2 PURPOSE AND APPLICATION
The Facility is intended for the purpose of financing and refinancing
indebtedness incurred for the purpose of acquiring and developing land
or acquiring land tracts for later development and for working capital
purposes (in any such case, predominantly in Western Europe) and,
accordingly, each Borrower shall apply all amounts raised by it
hereunder in or towards satisfaction of such purposes and none of the
Finance Parties shall be obliged to concern themselves with such
application.
2.3 CONDITIONS PRECEDENT
Save as the Banks may otherwise agree, none of the Borrowers may
deliver any Notice of Drawdown unless the Agent has confirmed to the
Guarantor and the Banks that it has received all of the documents and
other evidence listed in Schedule 3 (Conditions
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Precedent) and that each is, in form and substance, satisfactory to the
Agent.
2.4 BANKS' OBLIGATIONS SEVERAL
The obligations of each Bank and the L/C Issuing Bank are several and
the failure by a Bank or the L/C Issuing Bank to perform its
obligations hereunder shall not affect the obligations of an Obligor
towards any other party hereto nor shall any other party be liable for
the failure by such Bank or the L/C Issuing Bank to perform its
obligations hereunder.
2.5 BANKS' RIGHTS SEVERAL
The rights of each Bank are several and any debt arising hereunder at
any time from an Obligor to any of the other parties hereto shall be a
separate and independent debt. Each such party shall be entitled to
protect and enforce its individual rights arising out of this Agreement
independently of any other party (so that it shall not be necessary for
any party hereto to be joined as an additional party in any proceedings
for this purpose).
3. UTILISATION OF THE FACILITY
3.1 DELIVERY OF NOTICE OF DRAWDOWN
Any Borrower may from time to time request the making of an Advance or
the issuing of a Letter of Credit by delivering to the Agent by not
later than 10.00 a.m. on the third Business Day before the proposed
Utilisation Date a completed Notice of Drawdown therefor, receipt of
which shall oblige the Borrowers to borrow the amount therein requested
on the date therein stated upon the terms and subject to the conditions
contained therein.
3.2 DRAWDOWN DETAILS
Each Notice of Drawdown delivered to the Agent pursuant to Clause 3.1
(Delivery of Notice of Drawdown) shall specify:
3.2.1 whether the utilisation is to be by way of Advance or Letter
of Credit;
3.2.2 the proposed Utilisation Date, which shall be a Business Day
falling one month (or, with the prior consent of the Agent,
one week) or more before the Final Maturity Date (or, if the
Banks have granted an extension to the Facility pursuant to
Clause 10.8 (Extension), the Extended Maturity Date) and which
shall be at least four Business Days after the date upon which
the Facility was previously utilised;
3.2.3 the currency of denomination of the utilisation requested,
which shall be euro or an Optional Currency, PROVIDED THAT, if
a Borrower selects an Optional Currency, such Borrower may
also select euro to apply if its first selection becomes
ineffective pursuant to Clause 3.3 (Conditions for Drawing in
an Optional Currency);
3.2.4 (in the case of an Advance) the proposed Euro amount of the
Advance
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requested, which shall be (a) (if less than the Available
Facility) a minimum amount of EUR 2,000,000 and an integral
multiple of EUR 1,000,000 (or, if the Advance is to be
denominated in an Optional Currency, such comparable and
convenient amount thereof as the Agent may from time to time
specify) or (b) equal to the amount of the Available Facility;
3.2.5 (in the case of a Letter of Credit) the proposed Euro Amount
of such Letter of Credit, which shall be, when aggregated with
the Euro Amount of Outstandings in respect of all other
Letters of Credit at such time, less than or equal to EUR
10,000,000 and less than or equal to the Available Facility;
3.2.6 (in the case of an Advance) the proposed Term of the Advance
requested, which shall be a period of one, three or six months
or such other period as the Agent may agree (PROVIDED THAT
prior to the Syndication Date only periods of one month or
such other period specified by the Arranger may be requested)
ending on or before the Final Maturity Date (or, if the Banks
have granted an extension to the Facility pursuant to Clause
10.8 (Extension), the Extended Maturity Date);
3.2.7 (in the case of a Letter of Credit) the proposed Term of the
Letter of Credit requested, which shall be a period not
exceeding twelve months, ending on or before the Final
Maturity Date (or, if the Banks have granted an extension to
the Facility pursuant to Clause 10.8 (Extension) the Extended
Maturity Date);
3.2.8 (in the case of a Letter of Credit) each of the L/C Issuing
Bank and the Agent has approved (i) the terms of the Letter of
Credit, (ii) (save where the purpose of such Letter of Credit
falls within the purposes described in Clause 2.2 (Purpose and
Application)) the purpose of its issue and (iii) the identity
of the beneficiary; and
3.2.9 (in the case of an Advance) the account to which the proceeds
of the proposed drawdown are to be paid.
3.3 CONDITIONS FOR DRAWING IN AN OPTIONAL CURRENCY
If a Borrower requests that an Advance or Letter of Credit be
denominated in an Optional Currency (other than sterling) but:
3.3.1 no later than 10.00 a.m. on the Quotation Date for such
Advance (or, in the case of a Letter of Credit, two Business
Days prior to the proposed Utilisation Date), the Agent
notifies such Borrower and the Banks that the Agent is of the
opinion that it is not feasible for such Advance or Letter of
Credit to be denominated in such Optional Currency; or
3.3.2 to give effect to such request would cause the Outstandings to
be denominated in more than 4 Optional Currencies,
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then, unless such Borrower and the Banks otherwise agree, such Advance
or Letter of Credit shall be made in euro (in the case of PLD Europe
and each Additional Borrower) or sterling (in the case of PLD UK) in an
amount equal to the Original Euro Amount relating to such Notice of
Drawdown.
3.4 DRAWDOWN CONDITIONS
If a Borrower requests an Advance or Letter of Credit in accordance
with this Clause 3 and, on the proposed date for the making of such
Advance or issue of such Letter of Credit:
3.4.1 (save in relation to a Rollover Advance or a Letter of Credit)
if either of the events mentioned in sub-clauses 6.1.1 and
6.1.2 of Clause 6.1 (Market Disruption) shall have occurred
but each of the Banks is able to obtain match funding in the
relevant interbank market in relation to such Advance;
3.4.2 the Original Euro Amount of such Advance or Letter of Credit
does not exceed the Available Facility and (in the case of a
Letter of Credit) EUR 10,000,000 when aggregated with the Euro
Amount of all other Outstandings relating to Letters of
Credit;
3.4.3 there would not, immediately after the making of such Advance,
be more than 10 Advances outstanding; and
3.4.4 on and as of the proposed Utilisation Date (i) no Event of
Default or (save in relation to a Rollover Advance) Potential
Event of Default is continuing and (ii) the Repeated
Representations are true in all material respects,
then, save as otherwise provided herein, such Advance will be made or
such Letter of Credit will be issued (as the case may be) in accordance
with this Agreement.
3.5 COMPLETION OF LETTERS OF CREDIT
The L/C Issuing Bank is authorised to issue any Letter of Credit
pursuant to Clause 3.2 (Utilisation Conditions) by:
3.5.1 completing the issue date and the proposed Expiry Date of such
Letter of Credit; and
3.5.2 executing and delivering such Letter of Credit to the relevant
recipient on the Utilisation Date.
3.6 RENEWAL OF A LETTER OF CREDIT
3.6.1 Not less than three Business Days before the Expiry Date of a
Letter of Credit,
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the Borrower which requested such Letter of Credit may, by
written notice to the Agent, request that the Term of such
Letter of Credit be extended.
3.6.2 The Finance Parties shall treat such request in the same way
as a Notice of Drawdown for a Letter of Credit save that the
conditions set out in Clause 3.1 (Delivery of Notice of
Drawdown) shall not apply.
3.6.3 The terms of each renewed Letter of Credit shall be the same
as those of the relevant Letter of Credit immediately prior to
its renewal, save that its Term shall commence on the date
which was the Expiry Date of such Letter of Credit immediately
prior to its renewal and shall end on the proposed Expiry Date
specified in such request.
3.6.4 The L/C Issuing Bank is authorised to amend any such Letter of
Credit pursuant to such request if the conditions set out in
this Agreement have been complied with.
3.7 EACH BANK'S PARTICIPATION
Save as otherwise provided herein, each Bank will participate through
its Facility Office in each Advance made or Letter of Credit issued
pursuant to this Clause 3 in the proportion borne by its Available
Commitment to the Available Facility immediately prior to the making of
that Advance or the issue of that Letter of Credit.
3.8 RESTRICTIONS ON PARTICIPATION IN LETTERS OF CREDIT
If at any time prior to the issue of a Letter of Credit any Bank is
prohibited by law or pursuant to any request from or requirement of any
central bank or other fiscal, monetary or other authority (being, in
the case of a request or requirement, a request or requirement of a
type with which such Bank is accustomed or expected to comply) from
having any right or obligation under this Agreement in respect of such
Letter of Credit, such Bank shall notify the Agent on or before the
Business Day prior to the proposed Utilisation Date and:
3.8.1 the maximum actual and contingent liabilities of the L/C
Issuing Bank under such Letter of Credit shall be reduced by
an amount equal to what would have been the amount of such
Bank's L/C Proportion of such Letter of Credit if such
prohibition had not occurred;
3.8.2 the L/C Proportion of such Bank in relation to such Letter of
Credit shall be nil; and
3.8.3 such Bank's Available Commitment shall be reduced by an amount
equal to what would have been the amount of such Bank's L/C
Proportion of such Letter of Credit if such prohibition had
not occurred.
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3.9 REDUCTION OF AVAILABLE COMMITMENT
If a Bank's Commitment is reduced in accordance with the terms hereof
after the Agent has received the Notice of Drawdown pursuant to this
Clause 3 or a request for an extension of the Term of a Letter of
Credit pursuant to Clause 3.6 (Renewal of a Letter of Credit) and such
reduction was not taken into account in the Available Facility, then
the amount of that Advance or Letter of Credit shall be reduced
accordingly.
4. PAYMENT AND CALCULATION OF INTEREST
4.1 PAYMENT OF INTEREST
On the Repayment Date relating to each Advance (and, if the Term of
such Advance exceeds six months, on the expiry of each period of six
months during such Term) the Borrowers shall pay accrued interest on
that Advance.
4.2 CALCULATION OF INTEREST
The rate of interest applicable to an Advance from time to time during
its Term shall be the rate per annum which is the sum of (i) the
Applicable Margin at such time, (ii) (in relation to that portion of
such Advance made available by any Bank whose Facility Office for such
purpose is situated in England or, as the case may be, a Participating
Member State) the Mandatory Costs Rate in respect thereof at such time
and (iii) EURIBOR (or, if the currency in which such Advance is
denominated is an Optional Currency, LIBOR) on the Quotation Date
therefor.
5. LETTER OF CREDIT COMMISSION AND L/C ISSUING BANK FEE
5.1 LETTER OF CREDIT COMMISSION
Each Borrower which has requested a Letter of Credit shall, in respect
of each Letter of Credit requested by it, pay to the Agent for the
account of each Bank (for distribution in proportion to each Bank's L/C
Proportion of such Letter of Credit) a letter of credit commission in
the currency in which the relevant Letter of Credit is denominated at
the L/C Commission Rate (calculated as specified in the remaining
provisions of this Clause 5.1) on the maximum actual and contingent
liabilities of the L/C Issuing Bank under the relevant Letter of
Credit. Such letter of credit commission shall be paid in advance in
respect of each successive period of three months (or such shorter
period as shall end on the relevant Expiry Date) which begins during
the Term of the relevant Letter of Credit, the first such payment to be
made on the Utilisation Date for such Letter of Credit and thereafter
on the first day of each such period and to be calculated on the basis
of the L/C Commission Rate prevailing on the relevant Utilisation Date
or, as the case may be, the first day of such period. If, during any
such period (a "RELEVANT PERIOD") in respect of which any such payment
has been made, the L/C Commission Rate increases or decreases then:
5.1.1 (in the case of an increase in the L/C Commission Rate) the
relevant Borrower shall pay to the Agent for the account of
each Bank (for distribution in
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proportion to each Bank's L/C Proportion of the relevant
Letter of Credit) additional letter of credit commission (in
the currency in which the relevant Letter of Credit is
denominated and on the maximum actual and contingent
liabilities of the L/C Issuing Bank thereunder), such
additional letter of credit commission to be calculated on the
basis of the percentage rate per annum equal to the difference
between the L/C Commission Rate immediately prior to such
increase and the L/C Commission Rate immediately after such
increase and to be payable in respect of the remainder of the
relevant period after such increase; and
5.1.2 (in the case of a decrease in the L/C Commission Rate) each
Bank (in proportion to its L/C Proportion of the relevant
Letter of Credit) shall rebate to the relevant Borrower
through the Agent a portion of the commitment commission
previously paid in respect of the relevant period, such rebate
to be paid in the currency in which the relevant Letter of
Credit is denominated and in respect of the remainder of the
relevant period after such decrease and to be calculated on
the basis of the maximum actual and contingent liabilities of
the L/C Issuing Bank under the relevant Letter of Credit and
the percentage rate per annum equal to the difference between
the L/C Commission Rate immediately prior to such decrease and
the L/C Commission Rate immediately after such decrease.
Any such additional letter of credit commission or rebate shall be paid
by the relevant Borrower or, as the case may be, the Banks on the last
day of the relevant period.
5.2 L/C ISSUING BANK FEE
Each Borrower which has requested a Letter of Credit shall, in respect
of each Letter of Credit, pay to the L/C Issuing Bank a fee in euro in
the amounts and at the times agreed between such L/C Issuing Bank and
such Borrower.
5.3 CANCELLATION REBATES
If a Letter of Credit is prematurely cancelled or returned to the L/C
Issuing Bank and:
5.3.1 the L/C Issuing Bank is satisfied that as of the relevant date
of cancellation or return (the "CANCELLATION/RETURN DATE") the
L/C Issuing Bank has no further actual or contingent
liabilities in respect of such Letter of Credit;
5.3.2 letter of credit commitment commission has previously been
paid by the relevant Borrower pursuant to Clause 5.1 (Letter
of Credit Commission) in respect of such Letter of Credit and
in respect of the period after the relevant
Cancellation/Return Date; and
5.3.3 the relevant Cancellation/Return Date falls during the first
or the second month after the date (the "PAYMENT DATE") on
which letter of credit commission was most recently paid in
relation to the relevant Letter of Credit pursuant to Clause
5.1 (Letter of Credit Commission),
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then the L/C Issuing Bank shall (through the Agent) notify each Bank
accordingly and each Bank shall (in proportion to its L/C Proportion of
the relevant Letter of Credit and on the tenth Business Day after the
relevant Cancellation/Return Date) rebate to the relevant Borrower in
the currency in which the relevant Letter of Credit is denominated the
letter of credit commission previously paid in respect of such Letter
of Credit which relates to the period after the last day of (a) the
first month after the relevant Payment Date (if the relevant
Cancellation/Return Date falls during the first month after the
Relevant Payment Date) or (b) the second month after the relevant
Payment Date (if the relevant Cancellation/Return Date falls during the
second month after the relevant Payment Date). No rebate shall be
required to be made by any Bank pursuant to this Clause 5.3 in any
other circumstances.
6. MARKET DISRUPTION AND ALTERNATIVE INTEREST RATES
6.1 MARKET DISRUPTION
If, in relation to any Advance or Unpaid Sum:
6.1.1 EURIBOR (or, as the case may be, LIBOR) is to be determined by
reference to Reference Banks and at or about 11.00 a.m. on the
Quotation Date for the relevant Term none or only one of the
Reference Banks supplies a rate for the purpose of determining
EURIBOR (or, as the case may be, LIBOR) for the relevant Term;
or
6.1.2 before the close of business in Brussels (or, as the case may
be, London) on the Quotation Date for such Advance or Unpaid
Sum the Agent has been notified by a Bank or each of a group
of Banks to whom in aggregate thirty-five per cent. or more of
such Advance if made would be owed (or such Unpaid Sum is
owed) that the EURIBOR (or, as the case may be, LIBOR) rate
does not accurately reflect the cost of funding its
participation in such Advance or Unpaid Sum,
then the Agent shall promptly notify the other parties hereto in
writing of such event and, notwithstanding anything to the contrary in
this Agreement, Clause 6.2 (Substitute Term and Interest Rate) shall
apply to such Advance or Unpaid Sum. If sub-clauses 6.1.1 or 6.1.2
applies to a proposed Advance, such Advance (other than a Rollover
Advance) shall not be made if any Bank is unable to obtain match
funding in the relevant interbank market in relation to such Advance.
6.2 SUBSTITUTE TERM AND INTEREST RATE
If sub-clause 6.1.1 of Clause 6.1 (Market Disruption) applies to a
Rollover Advance or an Advance which is not prevented from being made
by the operation of Clause 6.1, the duration of the relevant Term shall
be one month or, if less, such that it shall end on the Final Maturity
Date (or, if the Banks have granted an extension to the Facility
pursuant to
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Clause 10.8 (Extension), the Extended Maturity Date). If either
sub-clause 6.1.1 or 6.1.2 of Clause 6.1 (Market Disruption) applies to
a Rollover Advance, an Advance which is not prevented from being made
by the operation of Clause 6.1 or an Unpaid Sum, the rate of interest
applicable to such Rollover Advance, Advance or Unpaid Sum during the
relevant Term shall (subject to any agreement reached pursuant to
Clause 6.3 (Alternative Rate)) be the rate per annum which is the sum
of:
6.2.1 the Applicable Margin at such time;
6.2.2 (in relation to a portion of an Advance which has been
provided by a Bank whose Facility Office for such purpose is
situated in England, or as the case may be, a Participating
Member State) the Mandatory Costs Rate in respect thereof at
such time; and
6.2.3 the rate per annum determined by the Agent to be the
arithmetic mean (rounded upwards to four decimal places) of
the rates notified by each Bank to the Agent before the last
day of such Term to be those which express as a percentage
rate per annum the cost to each Bank of funding from whatever
sources it may reasonably select its portion of such Rollover
Advance, Advance or Unpaid Sum during such Term.
6.3 ALTERNATIVE RATE
If (a) either of those events mentioned in sub-clauses 6.1.1 and 6.1.2
of Clause 6.1 (Market Disruption) occurs in relation to an Advance or
Unpaid Sum or (b) by reason of circumstances affecting the European
Interbank Market (or, in the case of any Advances denominated in an
Optional Currency, the London Interbank Market) during any period of
three consecutive Business Days, EURIBOR (or, as the case may be,
LIBOR) is not available for euro to prime banks in the European
Interbank Market (or, in the case of any Advances denominated in an
Optional Currency, the London Interbank Market), then if the Agent or
the Borrowers so require, the Agent and the Borrowers shall enter into
negotiations with a view to agreeing a substitute basis (i) for
determining the rates of interest from time to time applicable to the
Advances and Unpaid Sums and/or (ii) upon which the Advances and Unpaid
Sums may be maintained (whether in euro or some other currency)
thereafter and any such substitute basis that is agreed shall take
effect in accordance with its terms and be binding on each party
hereto, PROVIDED THAT the Agent may not agree any such substitute basis
without the prior consent of each Bank.
7. NOTIFICATION
7.1 ADVANCES AND LETTERS OF CREDIT
Not less than three Business Days before an Advance is to be made or a
Letter of Credit is to be issued, the Agent shall notify each Bank of
the proposed Euro Amount of the relevant Advance or Letter of Credit,
its proposed Term, whether or not such Advance or Letter of Credit is
to be denominated in an Optional Currency (and, if so, the amount of
such
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Advance or Letter of Credit in the relevant Optional Currency) and the
aggregate principal amount of the relevant Advance or Letter of Credit
allocated to such Bank pursuant to this Agreement and, in relation to a
Letter of Credit, the name of the proposed beneficiary.
7.2 INTEREST RATE DETERMINATION
The Agent shall promptly notify the relevant Borrower and the Banks of
each determination of LIBOR or, as the case may be, EURIBOR, the
Applicable Margin and the Mandatory Costs Rate.
7.3 DEMANDS UNDER LETTERS OF CREDIT
If a demand is made under a Letter of Credit or the L/C Issuing Bank
incurs in connection with a Letter of Credit any other liability, cost,
claim, loss or expense which is to be reimbursed pursuant to this
Agreement, the L/C Issuing Bank shall promptly notify the Agent of the
amount of such demand or such liability, cost, claim, loss or expense
and the Letter of Credit to which it relates and the Agent shall
promptly make demand upon the Borrowers in accordance with this
Agreement and notify the Banks.
7.4 CHANGES TO CURRENCY OR INTEREST RATES
The Agent shall promptly notify the relevant Borrower and the Banks of
any change (a) to the proposed currency of an Advance occasioned by the
operation of Clause 3.3 (Conditions for Drawing in an Optional
Currency) or (b) in interest rate or Term occasioned by the operation
of Clause 6 (Market Disruption and Alternative Interest Rates).
8. REPAYMENT AND MANDATORY PREPAYMENT
8.1 REPAYMENT
Each Borrower shall repay each Advance made to it in full on the
Repayment Date relating thereto. Any Advance repaid before the Final
Maturity Date shall remain available for drawing on the terms of
conditions of this Agreement.
8.2 MANDATORY PREPAYMENT
8.2.1 If, at any time, an Obligor receives notice that any two of
the three Ratings of the Guarantor set out below (or, if only
two Ratings are available, either such Rating) has fallen
below the grade indicated alongside it:
(a) S&P BBB-
(b) Xxxxx'x Baa3
(c) D&P BBB-
then such Obliger shall inform the Agent thereof and the
Borrowers shall, on the day which falls 30 days after the date
upon which the last of the relevant
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rating agencies to publish the relevant Rating has published
its formal announcement of such Rating and subject to Clause
24.4 (Break Costs), prepay the whole of the amount of the
outstanding Advances together with accrued interest thereon
and all other amounts owing to the Finance Parties under the
Facility Documents and provide Cash Collateral for each Letter
of Credit in an amount specified by the Agent (such amount not
to exceed the maximum actual and contingent liability of the
L/C Issuing Bank in relation to such Letter of Credit) and in
the currency of each such Letter of Credit. Each Obligor shall
promptly notify the Agent of any announcement made by any such
rating agency of a change in Rating by it.
8.2.2 If there is a Change of Control of the Guarantor, the
Borrowers shall, upon the written request of the Agent (acting
on the instructions of one or more Banks) received by the
Guarantor no later than 30 days after the occurrence of such
Change of Control, prepay such amount of the Advances as is
owed to the Bank or Banks so instructing the Agent to request
prepayment, together with accrued interest thereon and all
other amounts owing to such Bank or Banks under the Facility
Documents and provide Cash Collateral for each such Bank's
portion of each Letter of Credit in an amount specified by the
Agent (such amount not to exceed a proportion of the maximum
actual and contingent liability of the L/C Issuing Bank in
relation to such Letter of Credit equal to such Bank's L/C
Proportion in relation to such Letter of Credit) and in the
currency of each such Letter of Credit, in each case by no
later then 120 days after the occurrence of such Change of
Control (but without prejudice, for the avoidance of doubt, to
the rights of the Agent and the Banks if an Event of Default
occurs during such 120 day period). The Guarantor shall
promptly notify the Agent in the event that there is a Change
of Control of the Guarantor.
9. BORROWERS' LIABILITIES IN RELATION TO LETTERS OF CREDIT
9.1 BORROWERS' INDEMNITY TO L/C ISSUING BANK
Each Borrower which has requested a Letter of Credit shall irrevocably
and unconditionally as a primary obligation indemnify (on demand of the
Agent) the L/C Issuing Bank against:
9.1.1 any sum paid or due and payable by the L/C Issuing Bank under
such Letter of Credit; and
9.1.2 all liabilities, costs (including, without limitation, any
costs incurred in funding any amount which falls due from the
L/C Issuing Bank under or in connection with any such Letter
of Credit), claims, losses and expenses which the L/C Issuing
Bank may at any time incur or sustain in connection with or
arising out of any such Letter of Credit.
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9.2 BORROWERS' INDEMNITY TO BANKS
Each Borrower which has requested a Letter of Credit shall irrevocably
and unconditionally as a primary obligation indemnify (on demand of the
Agent) each Bank against:
9.2.1 any sum paid or due and payable by such Bank (whether under
Clause 31.1 (Banks' Indemnity) or otherwise) in connection
with such Letter of Credit; and
9.2.2 all liabilities, costs (including, without limitation, any
costs incurred in funding any amount which falls due from such
Bank in connection with such Letter of Credit), claims, losses
and expenses which such Bank may at any time incur or sustain
in connection with any Letter of Credit.
9.3 PRESERVATION OF RIGHTS
Neither the obligations of the Borrowers set out in this Clause 9 nor
the rights, powers and remedies conferred on the L/C Issuing Bank or
any Bank by this Agreement or by law shall be discharged, impaired or
otherwise affected by:
9.3.1 the winding-up, dissolution, administration or re-organisation
of the L/C Issuing Bank, any Bank or any other person or any
change in its status, function, control or ownership;
9.3.2 any of the obligations of the L/C Issuing Bank, any Bank or
any other person hereunder or under any Letter of Credit or
under any other security taken in respect of any Obligor's
obligations hereunder or otherwise in connection with a Letter
of Credit being or becoming illegal, invalid, unenforceable or
ineffective in any respect;
9.3.3 time or other indulgence being granted or agreed to be granted
to the L/C Issuing Bank, any Bank or any other person in
respect of its obligations hereunder or under or in connection
with a Letter of Credit or under any such other security;
9.3.4 any amendment to, or any variation, waiver or release of, any
obligation of the L/C Issuing Bank, any Bank or any other
person under a Letter of Credit or this Agreement;
9.3.5 any other act, event or omission which, but for this Clause 9,
might operate to discharge, impair or otherwise affect any of
the obligations of the relevant Borrower set out in this
Clause 9 or any of the rights, powers or remedies conferred
upon the L/C Issuing Bank or any Bank by this Agreement or by
law.
The obligations of each Borrower set out in this Clause 9 shall be in
addition to and independent of every other security which the L/C
Issuing Bank or any Bank may at any time hold in respect of such
Obligor's obligations hereunder.
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9.4 SETTLEMENT CONDITIONAL
Any settlement or discharge between a Borrower and the L/C Issuing Bank
or any Bank shall be conditional upon no security or payment to the L/C
Issuing Bank or such Bank by such Borrower, or any other person on
behalf of such Borrower, being avoided or reduced by virtue of any laws
relating to bankruptcy, insolvency, liquidation or similar laws of
general application and, if any such security or payment is so avoided
or reduced, the L/C Issuing Bank or such Bank shall be entitled to
recover the value or amount of such security or payment from such
Borrower subsequently as if such settlement or discharge had not
occurred.
9.5 RIGHT TO MAKE PAYMENTS UNDER LETTERS OF CREDIT
The L/C Issuing Bank shall (without prejudice to the obligations of the
Obligors hereunder in respect of any Letter of Credit) notify the
relevant Borrower as soon as reasonably practicable upon receipt of any
demand under a Letter of Credit and shall be entitled to make any
payment in accordance with the terms of the relevant Letter of Credit
without any reference to or further authority from the relevant
Borrower or any other investigation or enquiry. Each Borrower
irrevocably authorises the L/C Issuing Bank to comply with any demand
under a Letter of Credit which is valid on its face.
10. CANCELLATION, VOLUNTARY PREPAYMENT AND EXTENSION
10.1 CANCELLATION
The Guarantor may, by giving to the Agent not less than five Business
Days' prior written notice to that effect, cancel the whole or any part
(being a minimum amount of EUR 5,000,000 and an integral multiple of
EUR 1,000,000) of the Available Facility. Any such cancellation shall
reduce the Available Commitment and Commitment of each Bank rateably.
10.2 VOLUNTARY PREPAYMENT
Subject to Clause 24.4 (Break Costs) a Borrower may, by giving to the
Agent not less than five Business Days prior written notice to that
effect, prepay the whole or any part of an Advance (being an amount
such that the Euro Amount of such Advance will be reduced by a minimum
amount of EUR 5,000,000 (or, if less, the amount of the Advance) and
integral multiple of EUR 1,000,000).
10.3 CANCELLATION OF LETTERS OF CREDIT
Any Borrower which has requested a Letter of Credit may give the Agent
not less than five Business Days' prior notice of its intention to
procure that the relevant L/C Issuing Bank's liability under such
Letter of Credit is reduced to zero (whereupon it shall do so).
10.4 NOTICE OF CANCELLATION OR VOLUNTARY PREPAYMENT
Any notice of cancellation or prepayment given by the Guarantor
pursuant to Clause 10.1 (Cancellation) or by a Borrower pursuant to
Clause 10.2 (Voluntary Prepayment) or 10.3
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(Cancellation of Letters of Credit) shall be irrevocable and shall
specify the date upon which such cancellation or prepayment is to be
made and the amount of such cancellation or prepayment.
10.5 CANCELLATION OF A BANK'S COMMITMENT
If:
10.5.1 any sum payable to any Bank by an Obligor is required to be
increased pursuant to Clause 11.1 (Tax Gross-up); or
10.5.2 any Bank claims indemnification from an Obligor under Clause
11.2 (Tax Indemnity) or Clause 13.1 (Increased Costs),
the Guarantor may, whilst such circumstance continues, by not less than
ten Business Days' prior notice to the Agent (which notice shall be
irrevocable), cancel such Bank's Commitment whereupon such Bank shall
cease to be obliged to participate in further Advances and its
Commitment shall be reduced to zero.
10.6 PREPAYMENT OF A BANK'S COMMITMENT
If the Guarantor gives notice pursuant to Clause 10.5 (Cancellation of
a Bank's Commitment), each Borrower shall, at the time such notice
expires and subject to Clause 24.4 (Break Costs), prepay the relevant
Bank's portion of all outstanding Advances together with accrued
interest thereon and all other amounts owing to such Bank hereunder and
provide Cash Collateral for such Bank's portion of each Letter of
Credit in an amount specified by the Agent (such amount not to exceed a
proportion of the maximum actual and contingent liability of the L/C
Issuing Bank in relation to such Letter of Credit equal to such Bank's
L/C Proportion in relation to such Letter of Credit) and in the
currency of each such Letter of Credit.
10.7 NO OTHER REPAYMENTS
None of the Borrowers shall repay or cancel all or any part of the
Outstandings except at the times and in the manner expressly provided
herein.
10.8 EXTENSION
The Guarantor may request an extension of the Facility for one period
of twelve months, such period to commence on the Final Maturity Date
and to end on the Extended Maturity Date in accordance with the
procedure set out below.
10.8.1 The Guarantor shall no later than 60 days prior to the Final
Maturity Date request by notice in writing to the Agent that
the Facility be extended to the Extended Maturity Date.
10.8.2 The Agent shall, forthwith upon receipt of a request made
pursuant to sub-clause 10.8.1 above, advise each of the Banks
of such a request, and each of the Banks shall, no later than
25 Business Days prior to the Final Maturity
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Date, notify the Agent in writing that either (i) it approves
of the extension of the Facility to the Extended Maturity Date
or (ii) it does not approve of such extension. Any Bank which
fails to notify the Agent of its approval or otherwise of the
extension of the Facility as aforesaid shall be deemed not to
approve of such extension. The Agent shall notify the
Guarantor of each Bank's decision no later than 20 Business
Days prior to the Final Maturity Date.
10.8.3 Nothing contained in this Clause 10.8 shall oblige a Bank to
approve of an extension of the Facility to the Extended
Maturity Date. In considering whether or not to approve of
such an extension, each Bank shall make its own independent
appraisal of the creditworthiness of each Obligor and its own
independent investigation and assessment into the financial
condition and affairs of each Obligor.
10.8.4 If any Bank does not approve or is deemed not to approve of
the extension of the Facility then, on the Final Maturity
Date, the Borrowers shall repay to such Bank such Bank's
portion of the outstanding Advances together with all other
amounts then owing by the Borrowers to such Bank and provide
Cash Collateral for such Bank's portion of each Letter of
Credit in an amount specified by the Agent (such amount not to
exceed a proportion of the maximum actual and contingent
liability of the L/C Issuing Bank in relation to such Letter
of Credit equal to such Bank's L/C Proportion in relation to
such Letter of Credit) and in the currency of each such Letter
of Credit.
10.8.5 If any Bank does not approve or is deemed not to approve of
the extension of the Facility to the Extended Maturity Date
then the Agent shall promptly notify the other Banks thereof.
10.8.6 Notwithstanding any other provision of this Clause 10.8, if a
Bank or group of Banks to whom in aggregate more than fifty
per cent of the Outstandings is owed does not approve of an
extension to the Final Maturity Date then the extension shall
not be made and the Borrowers shall repay all amounts
outstanding under the Facility Documents on or prior to the
Final Maturity Date in accordance with the terms hereof.
11. TAXES
11.1 TAX GROSS-UP
All payments to be made by an Obligor to any Finance Party hereunder
shall be made free and clear of and without deduction for or on account
of tax unless such Obligor is required to make such a payment subject
to the deduction or withholding of tax, in which case the sum payable
by such Obligor (in respect of which such deduction or withholding is
required to be made) shall be increased to the extent necessary to
ensure that such Finance Party
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receives a sum net of any deduction or withholding equal to the sum
which it would have received had no such deduction or withholding been
made or required to be made.
11.2 TAX INDEMNITY
Without prejudice to Clause 11.1 (Tax Gross-up), if any Finance Party
is required to make any payment of or on account of tax on or in
relation to any sum received or receivable hereunder (including any sum
deemed for purposes of tax to be received or receivable by such Finance
Party whether or not actually received or receivable) or if any
liability in respect of any such payment is asserted, imposed, levied
or assessed against any Finance Party, the Borrowers shall, within 7
Business Days of written demand of the Agent, indemnify the Finance
Party which suffers a loss or liability as a result against such
payment or liability, together with any interest, penalties, and
out-of-pocket costs and expenses payable or incurred in connection
therewith (unless such interest, penalties, costs or expenses arose due
to the acts or default of the Finance Party not complying with any tax
notice or assessment in a timely manner), PROVIDED THAT this Clause
11.2 shall not apply to:
11.2.1 any tax imposed on and calculated by reference to the net
income actually received or receivable as net income by such
Finance Party (but, for the avoidance of doubt, not including
any sum deemed for purposes of tax to be received or
receivable by such Finance Party but not actually receivable)
by the jurisdiction in which such Finance Party is
incorporated; or
11.2.2 any tax imposed on and calculated by reference to the net
income of the Facility Office of such Finance Party actually
received or receivable by such Finance Party (but, for the
avoidance of doubt, not including any sum deemed for purposes
of tax to be received or receivable as net income by such
Finance Party but not actually receivable) by the jurisdiction
in which its Facility Office is located.
11.3 BANKS' TAX STATUS CONFIRMATION
Each Bank confirms in favour of the Agent and each Borrower (on the
date hereof or, in the case of a Bank which becomes a party hereto
pursuant to a transfer or assignment, on the date on which the relevant
transfer or assignment becomes effective) that it is Qualifying Lender
and each Bank shall promptly notify the Agent and each Borrower if
there is any change in its position from that set out above.
11.4 CLAIMS BY BANKS
Any Finance Party intending to make a claim pursuant to Clause 11.2
(Tax Indemnity) shall promptly notify the Agent of the event giving
rise to the claim, whereupon the Agent shall notify the relevant
Obligor thereof in writing.
11.5 EXCEPTIONS TO TAX GROSS-UP AND TAX INDEMNITY
11.5.1 Each Finance Party will promptly on request by a Borrower take
all reasonable
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steps (if any) required to be taken to establish entitlement
to exemption for any Borrower from withholding under any
applicable double tax treaty, including satisfying any
reasonable information, reporting or other requirement and
completion and filing of relevant forms, claims, declarations
and similar documents and shall provide the relevant Borrower
with copies of all forms, claims, declarations and similar
documents filed for such purpose.
11.5.2 No additional amounts shall be payable to a Bank or the Agent
under Clause 11.1 (Tax Gross-up) or 11.2 (Tax Indemnity) in
respect of any payment from a Borrower if the Bank or Agent to
whom the relevant payment is to be made has failed (otherwise
than due to circumstances beyond its control) to comply with
its obligations under Clause 11.5.1 (unless such failure
results from the failure of a Borrower to comply with its
obligations under the relevant treaty).
11.5.3 If a Bank ceases to be a Qualifying Lender (except as a result
of the introduction of, change in, or change in the
interpretation or application of any law occurring after the
date of this Agreement), then no Obligor shall be liable to
pay any amount under Clauses 11.1 or 11.2 in excess of the
amount which it would have been obliged to pay if that Bank
had remained a Qualifying Lender.
12. TAX RECEIPTS
12.1 NOTIFICATION OF REQUIREMENT TO DEDUCT TAX
If, at any time, an Obligor is required by law to make any deduction or
withholding from any sum payable by it hereunder (or if thereafter
there is any change in the rates at which or the manner in which such
deductions or withholdings are calculated), such Obligor shall promptly
notify the Agent.
12.2 EVIDENCE OF PAYMENT OF TAX
If an Obligor makes any payment hereunder in respect of which it is
required to make any deduction or withholding, it shall pay the full
amount required to be deducted or withheld to the relevant taxation or
other authority within the time allowed for such payment under
applicable law and shall deliver to the Agent for each Bank, within
thirty days after it has made such payment to the applicable authority,
an original receipt (or a certified copy thereof) issued by such
authority evidencing the payment to such authority of all amounts so
required to be deducted or withheld in respect of that Bank's share of
such payment.
12.3 TAX CREDIT PAYMENT
If an additional payment is made under Clause 11 (Taxes) by an Obligor
for the benefit of any Finance Party and such Finance Party, in its
sole discretion, determines that it has obtained (and has derived full
use and benefit from) a credit against, a relief or remission for, or
repayment of, any tax, then, if and to the extent that such Finance
Party, in its sole opinion, determines that:
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12.3.1 such credit, relief, remission or repayment is in respect of
or calculated with reference to the additional payment made
pursuant to Clause 11 (Taxes); and
12.3.2 its tax affairs for its tax year in respect of which such
credit, relief, remission or repayment was obtained have been
finally settled,
such Finance Party shall, to the extent that it can do so without
prejudice to the retention of the amount of such credit, relief,
remission or repayment, pay to such Obligor such amount as such Finance
Party shall, in its sole opinion, determine to be the amount which will
leave such Finance Party (after such payment) in no worse after-tax
position than it would have been in had the additional payment in
question not been required to be made by such Obligor.
12.4 TAX CREDIT CLAWBACK
If any Finance Party makes any payment to an Obligor pursuant to Clause
12.3 (Tax Credit Payment) and such Finance Party subsequently
determines, in its sole opinion, that the credit, relief, remission or
repayment in respect of which such payment was made was not available
or has been withdrawn or that it was unable to use such credit, relief,
remission or repayment in full, such Obligor shall reimburse such
Finance Party such amount as such Finance Party determines, in its sole
opinion, is necessary to place it in the same after-tax position as it
would have been in if such credit, relief, remission or repayment had
been obtained and fully used and retained by such Finance Party.
12.5 TAX AND OTHER AFFAIRS
No provision of this Agreement shall interfere with the right of any
Finance Party to arrange its tax or any other affairs in whatever
manner it thinks fit, oblige any Finance Party to claim any credit,
relief, remission or repayment in respect of any payment under Clause
11.1 (Tax Gross-up) in priority to any other credit, relief, remission
or repayment available to it nor oblige any Finance Party to disclose
any information relating to its tax or other affairs or any
computations in respect thereof.
13. INCREASED COSTS
13.1 INCREASED COSTS
If, by reason of (a) any change in law or in its interpretation or
administration and/or (b) compliance with any request or requirement
relating to the maintenance of capital or any other request from or
requirement of any central bank or other fiscal, monetary or other
authority (any such change in law, or in its interpretation or
administration, and any such request or requirement, an "INCREASED COST
TRIGGER EVENT"):
13.1.1 a Bank or the L/C Issuing Bank or any holding company of such
Bank or the L/C Issuing Bank is unable to obtain the rate of
return on its capital which it would have been able to obtain
but for such Bank's or the L/C Issuing Bank's
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entering into or assuming or maintaining a commitment, issuing
or performing its obligations under the Facility Documents or
any Letter of Credit;
13.1.2 a Bank or the L/C Issuing Bank or any holding company of such
Bank or the L/C Issuing Bank incurs a cost as a result of such
Bank's or the L/C Issuing Bank's entering into or assuming or
maintaining a commitment, issuing or performing its
obligations under the Facility Documents or any Letter of
Credit; or
13.1.3 there is any increase in the cost to a Bank or the L/C Issuing
Bank or any holding company of such Bank or the L/C Issuing
Bank of funding or maintaining such Bank's or the L/C Issuing
Bank's share of the Advances or, any Unpaid Sum or any Letter
of Credit,
then the Borrowers shall, from time to time within 7 Business Days of
written demand of the Agent, pay to the Agent for the account of that
Bank or the L/C Issuing Bank amounts sufficient to indemnify that Bank
or the L/C Issuing Bank or to enable that Bank or the L/C Issuing Bank
to indemnify its holding company from and against, as the case may be,
(i) such reduction in the rate of return of capital, (ii) such cost or
(iii) such increased cost.
13.2 INCREASED COSTS CLAIMS
A Bank or the L/C Issuing Bank intending to make a claim pursuant to
Clause 13.1 (Increased Costs) shall notify the Agent of the claim and
give reasonable details of the circumstances and event giving rise to
such claim and of its calculation of the amount claimed, whereupon the
Agent shall notify the Borrowers thereof in writing providing such
details of the claim PROVIDED THAT nothing in this Clause shall oblige
any Bank to disclose any information which it considers, acting
reasonably to be confidential.
13.3 EXCLUSIONS TO INCREASED COSTS
Notwithstanding the foregoing provisions of this Clause 13, no Bank or
L/C Issuing Bank shall be entitled to make any claim under this Clause
13 in respect of:
13.3.1 any cost, increased cost or liability as referred to in Clause
13.1 (Increased Costs) to the extent the same is compensated
by the Mandatory Costs Rate; or
13.3.2 any cost, increased cost or liability compensated by Clause 11
(Taxes); or
13.3.3 any cost, increased cost or liability resulting from any
Increased Cost Trigger Event except where such Bank or, as the
case may be, the L/C Issuing Bank can demonstrate that such
Increased Cost Trigger Event occurs, or is made or imposed,
after the date of this Agreement;
13.3.4 any cost, increased cost or liability resulting from a failure
by a Bank to comply with any requests from or requirement of
any central bank or fiscal or monetary authority (whether or
not having force
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of law, but if not having force of law being a request of a
nature with which banks generally are accustomed or expected
to comply); or
13.3.5 any cost, increased cost or liability arising more than 90
days prior to the receipt by the Borrowers of a written notice
under Clause 13.2 (Increased Costs Claims).
14. ILLEGALITY
If, at any time, it is or will become unlawful for a Bank or the L/C
Issuing Bank to make, fund, issue, participate in or allow to remain
outstanding all or part of its share of the Advances or Letters of
Credit, then that Bank or the L/C Issuing Bank shall, promptly after
becoming aware of the same, deliver to the Guarantor through the Agent
a written notice to that effect and:
14.1.1 such Bank or the L/C Issuing Bank shall not thereafter be
obliged to participate in any Advance or Letter of Credit (or,
in the case of the L/C Issuing Bank, to issue any Letter of
Credit) and the amount of its Commitment shall be immediately
reduced to zero; and
14.1.2 if the Agent on behalf of such Bank or the L/C Issuing Bank so
requires, the Guarantor shall on such date as the Agent shall
have specified in order to comply with the relevant law:
(a) repay such Bank's share of any outstanding Advances
together with accrued interest thereon and all other
amounts owing to such Bank hereunder; and
(b) provide Cash Collateral for such Bank's portion of
each Letter of Credit in an amount specified by the
Agent (such amount not to exceed a proportion of the
maximum actual and contingent liability of the L/C
Issuing Bank in relation to such Letter of Credit
equal to such Bank's L/C Proportion in relation to
such Letter of Credit) and in the currency of such
Letter of Credit.
15. MITIGATION
If, in respect of any Bank, circumstances arise which would or would
upon the giving of notice result in:
15.1.1 an increase in any sum payable to it or for its account
pursuant to Clause 11.1 Tax Gross-up);
15.1.2 a claim for indemnification pursuant to Clause 11.2 (Tax
Indemnity) or Clause 13.1 (Increased Costs); or
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15.1.3 the reduction of its Available Commitment to zero or any
repayment to be made by the Guarantor pursuant to Clause 14
(Illegality),
then, without in any way limiting, reducing or otherwise qualifying the
rights of such Bank or the obligations of the Obligors under any of the
Clauses referred to in sub-clauses 15.1.1, 15.1.2 and 15.1.3 such Bank
shall promptly upon becoming aware of such circumstances notify the
Agent thereof and, in consultation with the Agent and the Guarantor and
to the extent that it can do so lawfully and without prejudice to its
own position, take reasonable steps (including a change of location of
its Facility Office or the transfer of its rights, benefits and
obligations hereunder to another financial institution acceptable to
the Guarantor and willing to participate in the Facility) to mitigate
the effects of such circumstances, PROVIDED THAT such Bank shall be
under no obligation to take any such action if, in the opinion of such
Bank, to do so might have an adverse effect upon its business,
operations or financial condition (other than any minor costs and
expenses of an administrative nature).
16. REPRESENTATIONS
Each Obligor makes the representations and warranties set out in Clause
16.1 (Status) to Clause 16.29 (No Event of Default) (with respect to
itself) and acknowledges that the Finance Parties have entered into the
Facility Documents in reliance on those representations and warranties.
16.1 STATUS
It is a corporation (or, in the case of the Guarantor, a Maryland real
estate investment) duly organised, validly existing and (to the extent
such concept is recognised) in good standing under the laws of its
Relevant Jurisdiction.
16.2 GOVERNING LAW AND JUDGMENTS
In any proceedings taken in its Relevant Jurisdiction in relation to
the Facility Documents, the choice of English law as the governing law
of the Facility Documents and any judgment obtained in England will be
recognised and enforced.
16.3 BINDING OBLIGATIONS
Subject to the legal (but not factual) qualifications contained in the
legal opinions delivered pursuant to Clause 2.3 (Conditions Precedent),
the obligations expressed to be assumed by it in the Facility Documents
to which it is a party are legal and valid obligations binding on it
and enforceable against it in accordance with the terms thereof,
subject to general principles of equity, bankruptcy, insolvency or
other similar laws affecting the enforcement of creditors' rights and,
in the case of the Guarantor, applicable United States Debtor Relief
Laws including, without limitation, the United States Bankruptcy Code.
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16.4 EXECUTION OF FACILITY DOCUMENTS
Its execution of the Facility Documents to which it is a party and its
exercise of its rights and performance of its obligations hereunder do
not and will not:
16.4.1 conflict with any agreement, mortgage, bond or other
instrument or treaty to which it is a party or which is
binding upon it or any of its assets;
16.4.2 conflict with its constitutive documents (and, in the case of
the Guarantor, its declaration of trust); or
16.4.3 conflict with any applicable law (including, in the case of
the Guarantor, any applicable trust law),
except, in any such case, where violation of any of the foregoing could
not reasonably be expected to have a Material Adverse Effect.
It has the power (including, in the case of the Guarantor, trust power)
to enter into the Facility Documents to which it is a party and all
corporate, trust and other action required to authorise the execution
by it thereof and the performance of its obligations thereunder has
been duly taken.
16.5 NO WINDING-UP
No member of the Group nor any Unconsolidated Affiliate (the total
assets of which, when aggregated with the total assets of any other
member of the Group or Unconsolidated Affiliate in relation to which
any of the events referred to in this Clause 16.5 applies, exceed 5% of
Total Assets (as defined in Clause 18.2 (Financial Definitions)) of the
Guarantor (determined on a consolidated basis) and no Obligor has taken
any corporate action nor have any other steps been taken or legal
proceedings been started or (to the best of its knowledge and belief)
threatened against any such member of the Group, any such
Unconsolidated Affiliate or any Obligor for its winding-up,
dissolution, liquidation, administration or re-organisation (whether by
voluntary arrangement, scheme of arrangement or otherwise) or the
appointment of a receiver, administrator, administrative receiver,
conservator, custodian, trustee or similar officer of it or of any or
all of its assets or revenues.
16.6 NO MATERIAL DEFAULTS
No member of the Group is in breach of or in default under any
agreement to which it is a party or which is binding on it or any of
its assets to an extent or in a manner which could reasonably be
expected to have a Material Adverse Effect.
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16.7 NO MATERIAL PROCEEDINGS
Except as disclosed to and accepted by the Agent prior to the date
hereof, no action or administrative proceeding of or before any court
or agency has been started nor (to the best of its knowledge and
belief) does there exist a genuine threat thereof against any member of
the Group which is reasonably likely to be determined adversely against
such member of the Group and which, if so adversely determined, is
reasonably likely to have a Material Adverse Effect. Except as
disclosed to and accepted by the Agent prior to the date hereof, no
outstanding and unpaid judgment exists against any member of the Group
which could reasonably be expected to have a Material Adverse Effect.
16.8 TAXES
16.8.1 All of the tax returns of the Group required to be filed have
been filed (or extensions have been granted) before
delinquency, except for returns for which the failure to file
could not reasonably be expected to have a Material Adverse
Effect, and all taxes imposed upon each member of the Group
have been paid in accordance with Clause 19.20 (Taxes).
16.8.2 As of the date hereof, no United States federal income tax
returns of the "affiliated group" (as defined in the I.R.C.
and the rules and regulations promulgated thereunder) of which
the Guarantor is a member have been examined and closed. The
members of such affiliated group have filed all United States
Federal income tax returns and all other material tax returns
which are required to be filed by them and have paid all taxes
due pursuant to such returns or pursuant to any assessment
received by any of them. The charges, accruals and reserves on
the books of the Guarantor in respect of taxes or other
governmental charges are, in the opinion of the Guarantor,
adequate.
16.8.3 The Guarantor qualifies as a REIT.
16.9 PENSION PLANS
16.9.1 Except as disclosed in the Original Financial Statements of
the Guarantor and except to the extent that any such
termination, liability, penalty, or fine would not (either
individually or in the aggregate) reasonably be expected to
have a Material Adverse Effect (a) no steps have been taken to
terminate any Pension Plan and no contribution failure has
occurred with respect to any Pension Plan sufficient to give
rise to an Encumbrance under any applicable pension laws
(including, without limitation, ERISA), (b) no condition
exists or event or transaction has occurred with respect to
any Pension Plan which could reasonably be expected to result
in the incurrence by the Guarantor or any ERISA Affiliate of
any material liability with respect to any contribution
thereto, fine, or penalty, and (c) neither the Guarantor nor
any ERISA Affiliate has any material contingent liability with
respect to any post retirement benefit under a Pension Plan.
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16.9.2 EXEMPTION FROM ERISA: PLAN ASSETS
The assets of the Guarantor are not "plan assets" (as defined
in 29. C.F.R. para 2510.3-101 (a) (1) (or any successor
regulation)) of any Pension Plan.
16.9.3 PENSION PLANS
All Pension Plans applied within the Group comply with all
material provisions of applicable law and employ reasonable
actuarial assumptions. No member of the Group has any
liability in respect of any Pension Plan (save as permitted in
accordance with ERISA) and there are no circumstances which
may give rise to such liability.
16.10 GOVERNMENT REGULATIONS
No member of the Group is subject to regulation under the United States
Investment Company Act of 1940, as amended, or the United States Public
Utility Holding Company Act of 1939, as amended.
16.11 AUDITED FINANCIAL STATEMENTs
The most recent financial statements of each Borrower (audited if
required in accordance with the provisions of Clause 17.2 (Borrower's
Annual Statements) and the most recent audited consolidated financial
statements of the Guarantor:
16.11.1 were prepared in accordance with accounting principles
generally accepted in:
(a) in the case of the Original Borrowers, the
Netherlands, and the United States of America;
(b) in the case of the Guarantor, the United States of
America; and
(c) in the case of each Additional Borrower, its Relevant
Jurisdiction;
16.11.2 disclose all material liabilities (contingent or
otherwise) and all unrealised or anticipated losses of
(in the case of each Borrower) each Borrower and (in the
case of the Guarantor) the Group on a consolidated basis;
and
16.11.3 save as disclosed therein, give a true and fair view of
the financial condition and operations of each Borrower
or, as the case may be, the Group during the relevant
financial year.
16.12 NO MATERIAL ADVERSE CHANGE
Since the date as at which the most recent financial statements
(audited, if applicable)) of each Borrower and the most recent audited
consolidated financial statements of the Guarantor were stated to be
prepared, there has been no change in the business or financial
condition of such Borrower or, as the case may be, the Group which
could reasonably be expected to have a Material Adverse Effect.
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16.13 WRITTEN INFORMATION
All written factual information (other than the Information Memorandum
but including any information supplied in relation to the preparation
of any due diligence reports by or on behalf of the Arrangers prior to
the date hereof) supplied to the Agent in connection with this
Agreement is true and accurate in all material respects as at the date
it was given and is not misleading in any material respect.
16.14 INFORMATION MEMORANDUM
The factual information contained in the Information Memorandum is true
and accurate in all material respects as at the date of the Information
Memorandum, the financial projections contained therein have been
prepared on the basis of recent historical information and on the basis
of reasonable assumptions and nothing has occurred or been omitted that
renders the information contained in the Information Memorandum untrue
or misleading in any material respect.
16.15 VALIDITY AND ADMISSIBILITY IN EVIDENCE
All acts, conditions and things required to be done, fulfilled and
performed in order (a) to enable it lawfully to enter into, exercise
its rights under and perform and comply with the obligations expressed
to be assumed by it in the Facility Documents, (b) to ensure that the
obligations expressed to be assumed by it in the Facility Documents are
legal, valid, binding and enforceable and (c) to make the Facility
Documents admissible in evidence in its Relevant Jurisdiction have been
(or, by the latest time permitted by applicable law, will be) done,
fulfilled and performed.
16.16 CLAIMS PARI PASSU
Under the laws of its Relevant Jurisdiction in force at the date
hereof, the claims of the Finance Parties against it under the Facility
Documents will rank at least pari passu with the claims of all its
other unsecured and unsubordinated creditors save those whose claims
are preferred solely by any bankruptcy, insolvency, liquidation or
other similar laws of general application.
16.17 NO FILING OR STAMP TAXES
Under the laws of its Relevant Jurisdiction in force at the date
hereof, it is not necessary that:
16.17.1 the Facility Documents be filed, recorded or enrolled with any
court or other authority; or
16.17.2 any stamp, registration or similar tax be paid on or in
relation to the Facility Documents.
16.18 ENCUMBRANCES
Save for Permitted Encumbrances, no Encumbrance exists over all or any
of the present or future revenues or assets of any member of the Group.
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16.19 NO DEDUCTION OR WITHHOLDING
Under the laws of its Relevant Jurisdiction in force at the date
hereof, it will not be required to make any deduction or withholding
from any payment it may make hereunder.
16.20 ENVIRONMENTAL COMPLIANCE
Except as otherwise disclosed to and accepted by the Agent prior to the
date hereof, each member of the Group has duly performed and observed
in all material respects all Environmental Law, Environmental Permits
and all other material covenants, conditions, restrictions or
agreements directly or indirectly concerned with any contamination,
pollution or waste or the release or discharge of any toxic or
hazardous substance in connection with any real property which is or
was at any time owned, leased or occupied by any member of the Group or
on which any member of the Group has conducted any activity where
failure to do so could reasonably be expected to have a Material
Adverse Effect.
16.21 ENVIRONMENTAL CLAIMS
Except as otherwise disclosed to and accepted by the Agent prior to the
date hereof, no Environmental Claim has been commenced or (to the best
of the Obligors' knowledge and belief) has been threatened in writing
against any member of the Group where such claim is reasonably likely
to be determined against such member of the Group and, if so
determined, could reasonably be expected to have a Material Adverse
Effect.
16.22 NO IMMUNITY
In any proceedings taken in its Relevant Jurisdiction in relation to
the Facility Documents it will not be entitled to claim for itself or
any material part of its assets immunity from suit, execution,
attachment or other legal process.
16.23 OWNERSHIP OF THE BORROWERS
Each Borrower is a wholly-owned subsidiary of the Guarantor.
16.24 YEAR 2000 COMPLIANT
The Guarantor has undertaken a review of all of its Computer Systems to
determine that they are Year 2000 Compliant and has not identified any
Computer System which, upon failure to be Year 2000 Compliant, would
have a material adverse impact on its business or the results of its
operations.
16.25 TRANSACTIONS WITH AFFILIATES
No member of the Group, nor any Unconsolidated Affiliate is a party to
any material transaction with any other member of the Group or
Unconsolidated Affiliate which has not been entered into on arm's
length terms or otherwise in the reasonable commercial interests of the
Group taken as a whole.
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16.26 REAL PROPERTY AND OTHER ASSETS
Each member of the Group has good and marketable title (or the
equivalent of good and marketable title in jurisdictions that do not
use such terminology) to all property (including all Property) owned by
it and to all of its revenues and assets and enjoys such possession
under all leases of property (including Property) or assets leased by
it as is necessary for the proper use and operation of such property
(including Property) or assets.
16.27 COMPLIANCE WITH APPLICABLE LAWS
Each member of the Group has complied with all applicable laws and
regulations of material importance in relation to its business and
operations, failure to comply with which would have a Material Adverse
Effect.
16.28 CONSENTS
All consents, licenses and other approvals necessary and material for
the conduct of each member of the Group's business have been or will be
obtained as and when required.
16.29 NO EVENT OF DEFAULT
No Event of Default or Potential Event of Default has occurred which is
continuing.
16.30 REPETITION OF REPRESENTATIONS
The Repeated Representations shall be deemed to be repeated by each
Obligor by reference to the facts and circumstances then existing on
each date on which an Advance is or is to be made or a Letter of Credit
is to be issued or its Term extended, and Clause 16.14 (Information
Memorandum) shall be deemed to be made on the date that the Information
Memorandum is approved by the Borrowers and the Guarantor and on the
Syndication Date.
17. FINANCIAL INFORMATION
17.1 GUARANTOR'S ANNUAL STATEMENTS
The Guarantor shall, as soon as the same become available but in any
event within 120 days after the end of each of its financial years,
deliver to the Agent, in sufficient copies for the Banks, the audited
consolidated financial statements of the Group for such financial year,
audited by an internationally recognised firm of independent auditors
licensed to practise in its Relevant Jurisdiction.
17.2 BORROWER'S ANNUAL STATEMENTS
Each Borrower shall, if so requested by any Bank through the Agent and
as soon as the same becomes available but in any event within 180 days
after the end of the relevant financial year of such Borrower, deliver
to the Agent its financial statements (audited by an internationally
recognised firm of independent auditors licensed to practise in its
Relevant Jurisdiction if such Borrower is required by applicable law to
produce audited financial statements) for such financial year.
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17.3 SEMI-ANNUAL STATEMENTS
The Guarantor shall (and each Borrower shall, if so requested by any
Bank through the Agent) as soon as the same become available, but in
any event within 90 days after the end of each half of each of its
financial years, deliver to the Agent in sufficient copies for the
Banks its financial statements (or, in the case of the Guarantor, the
consolidated financial statements of the Group) for such period.
17.4 QUARTERLY STATEMENTS
The Guarantor shall (and each Borrower shall, if so requested by any
Bank through the Agent) as soon as the same become available but in any
event within 50 days after the end of each quarter of each of its
financial years deliver to the Agent in sufficient copies for the Banks
its financial statements (or, in the case of the Guarantor, its
consolidated financial statements) for such period.
17.5 REQUIREMENTS AS TO FINANCIAL STATEMENTS
Each Obligor shall ensure that each set of financial statements
delivered by it pursuant to this Clause 17 is:
17.5.1 in the case of the Guarantor, prepared in accordance with
GAAP; and
17.5.2 certified by an Authorised Signatory of such Obligor as giving
a true and fair view of its financial condition (or, in the
case of financial statements of the Guarantor, the financial
condition of the Group) as at the end of the period to which
those financial statements relate and of the results of its
(or, as the case may be, the Group's) operations during such
period.
17.6 COMPLIANCE CERTIFICATES
The Guarantor shall ensure that each set of financial statements
delivered by it pursuant to Clause 17.1 (Guarantor's Annual Statements)
and Clause 17.3 (Semi-annual Statements) is accompanied by a Compliance
Certificate signed by its auditors (in the case of a Compliance
Certificate delivered with the Group's annual consolidated financial
statements) or by a duly authorised senior financial officer (in the
case of a Compliance Certificate delivered with any semi-annual
financial statements).
17.7 INFORMATION TO SHAREHOLDERS
The Guarantor, shall promptly after mailing or delivery thereof,
deliver to the Agent in sufficient copies for the Banks, copies of all
filings with the Securities Exchange Commission.
17.8 OTHER FINANCIAL INFORMATION
Each Obligor shall from time to time on the request of the Agent,
furnish the Agent with such information about its (or, as the case may
be, the Group's) business and financial condition as the Agent may
reasonably require.
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17.9 ACCOUNTING POLICIES
The Guarantor shall ensure that each set of financial statements of the
Guarantor delivered pursuant to this Clause 17 is prepared using
accounting policies, principles and reference periods consistent with
those applied in the preparation of its Original Financial Statements
unless, in relation to any such set of financial statements, the
Guarantor notifies the Agent that there have been one or more changes
in any such accounting policies, principles or reference periods and
the Guarantor provides:
17.9.1 a description of the changes and the adjustments which would
be required to be made to those financial statements (in
reasonable detail and to the extent that such changes and
adjustments are relevant for the purpose of calculating the
financial ratios contained in Clause 18.1 (Financial
Conditions)) in order to cause them to use the accounting
policies, principles and reference periods upon which the
immediately preceding financial statements of the Guarantor
delivered to the Agent for the purposes of this Agreement were
prepared; and
17.9.2 (if any such description of changes and adjustments is
provided to the Agent pursuant to Clause 17.9.1) such
additional information, in reasonable detail, as may be
reasonably requested by the Agent in order to enable the Agent
to calculate the financial ratios contained in Clause 18.1
(Financial Conditions) on the basis of such changes and
adjustments when taken in conjunction with any other
description of changes and adjustments previously provided to
the Agent pursuant to Clause 17.9.1 (but without, for the
avoidance of doubt, imposing any obligation on the Guarantor
to maintain parallel accounting records for the purpose of
calculating the financial ratios contained in Clause 18.1
(Financial Conditions) in the event of any relevant changes in
accounting policies, principles or reference periods),
and any reference in this Agreement to those financial statements shall
be construed as a reference to those financial statements as adjusted
on the basis of each of the changes and adjustments referred to in
Clause 17.9.1.
18. FINANCIAL CONDITION
18.1 FINANCIAL CONDITION
The Guarantor shall ensure that the financial condition of the Group,
shall be such that:
18.1.1 TOTAL DEBT/TANGIBLE NET WORTH
The ratio of Total Debt to Tangible Net Worth at any time
shall not exceed 1.00: 1.00.
18.1.2 INTEREST EXPENSE COVERAGE RATIO
The Interest Expense Coverage Ratio at any time shall not be
less than 2.00: 1.00.
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18.1.3 FIXED CHARGE COVERAGE RATIO
The Fixed Charge Coverage Ratio at any time shall not be less
than 1.75: 1.00.
18.1.4 SECURED DEBT/TOTAL ASSETS
The ratio of Secured Debt to Total Assets at any time shall be
less than 1.00: 4.00.
18.2 FINANCIAL DEFINITIONS
In this Agreement the following terms have the following meanings.
"ACTUAL CAPITAL EXPENDITURES" means any expenditures by a person that
are properly classified in the relevant financial statements of such
person in accordance with GAAP as a capital asset for (a) tenant
improvements and capitalised lease commissions on previously leased
space, and (b) recurring capital expenditures relating to any Property.
"AFFILIATE" of a person means any other individual or entity who
directly or indirectly controls, or is controlled by, or is under
common control with, that person. For purposes of this definition
"control," "controlled by," and "under common control with" mean
possession, directly or indirectly, of power to direct (or cause the
direction of) management or policies (whether through ownership of
voting securities or other ownership interests, by contract, or
otherwise).
"CAPITAL EXPENDITURES" means an amount equal to the sum of (a) in the
case of Properties that are not Refrigerated Warehouse Properties, the
greater of (1) Actual Capital Expenditures with respect to such
Properties during the four (4) financial quarters ending on the date of
determination, and (ii) the product of (A) the sum of the total square
footage with respect to all completed industrial space in all such
Properties as of the last day of each of the immediately preceding five
(5) calendar quarters, divided by five (5), and (B) $0.15, and (b) in
the case of Properties that are Refrigerated Warehouse Properties, the
greater of (i) Actual Capital Expenditures with respect to such
Properties during the four (4) financial quarters ending on the date of
determination, and (ii) the product of (A) the sum of the total cubic
footage with respect to all completed space in all such Properties as
of the last day of each of the immediately preceding five (5) calendar
quarters, divided by five (5), and (B) $0.06.
"CAPITAL LEASE" means any capital lease or sublease that has been (or
under GAAP should be) capitalized on a balance sheet.
"COMPANIES" means, without duplication, the Guarantor and each of its
Consolidated Affiliates, and "COMPANY" means any one of the Companies.
"DEBT SERVICE" means, for any person for any period, the sum of all
regularly scheduled principal payments (other than Excluded Debt
Service) and all Interest Expense that are
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paid or payable during such period in respect of all Indebtedness of
such person (excluding the payment or amortization of Interest Expense
consisting of fees and expenses paid upon the incurrence of
Indebtedness and paid in cash with the proceeds of such Indebtedness).
"DISQUALIFIED STOCK" means any person's Stock which by its terms (or by
the terms of any Stock into which it is convertible or for which it is
exchangeable or exercisable) (a) matures or is subject to mandatory
redemption, pursuant to a sinking fund obligation or otherwise, (b) is
convertible into or exchangeable or exercisable for a Liability or
Disqualified Stock during the term of this Agreement, (c) is redeemable
during the term of this Agreement at the option of the holder of such
Stock, or (d) otherwise requires any mandatory payments by any Company,
in each case on or before the Final Maturity Date; PROVIDED THAT
"Disqualified Stock" shall not include any preferred Stock solely
because such Stock requires the payment of Distributions with respect
to such Stock prior to the payment of Distributions with respect to any
other class of Stock.
"EXCLUDED DEBT SERVICE" means, for any period, any regularly scheduled
principal payments on (a) any Indebtedness which pays such Indebtedness
in full, but only to the extent the amount of such final payment is
greater than the scheduled principal payment immediately preceding such
final payment, and (b) any Indebtedness that is rated at least Baa3 and
BBB-, as the case may be, by at least two (2) of Xxxxx'x, S&P, and D&P
and issued prior to September 30 1999.
"FIXED CHARGE COVERAGE RATIO" means as of any date, the ratio of (a)
(i) Funds from Operations, plus (ii) Interest Expense, minus (iii)
Capital Expenditures, to (b) the sum of (i) Debt Service in respect of
all Indebtedness, plus (ii) Distributions of any kind or character or
other proceeds paid or payable with respect to Disqualified Stock, in
each case for the Companies and for the four (4) financial quarters
ending on the date of determination.
"FUNDS FROM OPERATIONS" means for the Guarantor for any period, net
earnings (before Distributions in respect of preferred Stock) plus
depreciation and amortization (exclusive of amortization of financing
costs), all as determined in accordance with GAAP; PROVIDED THAT there
shall not be included in such calculation (a) any proceeds of any
insurance policy other than rental or business interruption insurance
received by such person (b) any gain or loss which is classified as
"extraordinary" in accordance with GAAP, (c) any capital gains and
taxes on capital gains in each case exclusive of such amounts
recognized in accordance with GAAP that are attributable to bona fide
sales to third parties (including the ProLogis European Properties
Fund, to the extent of any third party interests therein) by ProLogis
Services, Kings Park Holding S.A., and International Consolidated
Affiliates of Properties developed by such persons with the intention
of reselling such Properties to third parties and not holding such
ProLogis Properties as an Investment, (d) any non-recurring and
non-cash event that is excluded from the Guarantor's reported Funds
from Operations in its quarterly 10-Q and annual 10-K Financial
Statements, (e) any tax expense which is classified as "deferred" in
accordance with GAAP, (f) any tax income which is classified as a tax
benefit in accordance with GAAP, (g) any foreign exchange gain or loss
which is the result of a period ending "xxxx to market" of intercompany
or third-party loans or xxxxxx (for
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currency or interest rate swaps) in accordance with GAAP, and (h) gains
or losses from sales of depreciated Properties of the Guarantor. The
Funds from Operations contribution from Unconsolidated Affiliates shall
be (i) included only to the extent that such amounts have been, or are
not prohibited on the last day of the applicable period of
determination from being distributed (directly or indirectly) to a
Company and (ii) calculated on the same basis as this definition. Funds
from Operations shall be calculated as if all minority interests in
Consolidated Affiliates have been converted into Stock of the
Guarantor.
"GAAP" means generally accepted accounting principles of the Accounting
Principles Board of the American Institute of Certified Public
Accountants and the Financial Accounting Standards Board that are
applicable on the date of this Agreement.
"HEDGING AGREEMENTS" means any and all agreements, devices, or
arrangements designed to protect at least one of the parties thereto
from fluctuations of interest rates, exchange rates, or forward rates
applicable to such party's assets, liabilities, or exchange
transactions, including, without limitation, dollar-denominated or
cross-currency interest rate exchange agreements, forward currency
exchange agreements, interest rate cap, swap, or collar protection
agreements, and forward rate currency or interest rate options, as the
same may be amended or modified and in effect from time to time, and
any and all cancellations, buybacks, reversals, terminations, or
assignments of the foregoing.
"INDEBTEDNESS" means, for any person, all Liabilities (without
duplication) of such person that are (a) Liabilities for borrowed money
of such person, (b) evidenced by bonds, debentures, notes, or similar
instruments of such person, (c) obligations to pay the deferred
purchase price of assets, services, or Stock except (i) accounts
payables, (ii) obligations incurred in the ordinary course of business
to pay the purchase price of Stock so long as such obligations are paid
within customary settlement terms, and (iii) obligations to purchase
Stock (other than Stock of the Guarantor or any of its Affiliates)
pursuant to subscription or Stock purchase agreements in the ordinary
course of business, (d) secured by an Encumbrance existing on any
property of such person or any interest of such person therein, whether
or not such Liability shall have been assumed by such person, (e)
Capital Leases, (f) a guaranty, endorsement, or other contingent
obligation of such person (other than (i) endorsement in the ordinary
course of business of negotiable instruments or documents for deposit
or collection, and (ii) indemnification obligations and purchase price
adjustments pursuant to acquisition agreements entered into in the
ordinary course of business), and (g) accounts payable, accrued
expenses, net obligations arising under Hedging Agreements, and other
Liabilities not included in the calculation of (a) through (f) above
which in the aggregate are in excess of five percent (5%) of the amount
of Total Assets of such person determined in accordance with GAAP plus
the amount of any accumulated depreciation with respect to such assets,
as of the date of determination.
"INTEREST EXPENSE" means, for any person for any period, all interest
expense on such person's Indebtedness (whether direct, indirect, or
contingent, and including interest on all convertible Liabilities)
determined in accordance with GAAP.
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"INTEREST EXPENSE COVERAGE RATIO" means, as of any date, the ratio of
(a) the sum of (i) Funds from Operations, plus (ii) Interest Expense to
(b) the sum of (i) Interest Expense (excluding the payment or
amortisation of Interest Expense consisting of fees and expenses paid
upon the incurrence of Indebtedness and paid in cash with the proceeds
of such Indebtedness), plus (ii) Distributions of any kind or character
or other proceeds paid or payable with respect to any Disqualified
Stock, in each case for each member of the Group and for the four (4)
financial quarters ending on the date of determination.
"INTERNATIONAL CONSOLIDATED AFFILIATES" means each Consolidated
Affiliate of a Borrower that is not organised under the laws of a state
located in the United States and "INTERNATIONAL CONSOLIDATED AFFILIATE"
means any one of the International Consolidated Affiliates.
"INVESTMENT" in any person means any investment, whether by means of
Stock purchase, loan, advance, extension of credit, capital
contribution, or otherwise, in or to such person, the guarantee of any
Liabilities of such person, or the subordination of any claim against
such person to other Liabilities of such person.
"LIABILITIES" means (without duplication), for any person, (a) any
obligations required by GAAP to be classified upon such person's
balance sheet as liabilities, (b) any liabilities secured (or for which
the holder of the Liability has an existing Right, contingent or
otherwise, to be so secured) by any Encumbrance existing on property
owned or acquired by that person, (c) any obligations that have been
(or under GAAP should be) capitalised for financial reporting purposes,
and (d) any guarantees, endorsements, and other contingent obligations
with respect to Liabilities or obligations of others, and "LIABILITY"
means any of the Liabilities.
"REFRIGERATED WAREHOUSE PROPERTIES" means each Property that is a
temperature-controlled facility and "Refrigerated Warehouse Property"
means any one of the Refrigerated Warehouse Properties.
"RIGHTS" means rights, remedies, powers, privileges, and benefits.
"SECURED DEBT" means, for any person, Indebtedness of such person
secured by any Encumbrances (other than those referred to in paragraphs
(a) to (i) inclusive in the definition of Permitted Encumbrances) in
any of such person's Properties or other assets.
"TANGIBLE NET WORTH" means for any person as of any date, (a) Total
Assets less (to the extent included therein) the book value of all
assets that would be treated as intangible assets under GAAP (including
goodwill, trademarks, trade names, copyrights, patents, deferred
charges, and unamortized debt discount and expense), minus (b) all
Liabilities of such person minus (c) the amount determined in
accordance with GAAP attributable to any minority interests in
Consolidated Affiliates of such person.
"TOTAL ASSETS" means for any person at any time (a) such person's total
assets determined in
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accordance with GAAP, plus (b) accumulated depreciation with respect to
such assets.
"TOTAL DEBT" means at any time in relation to any person, Indebtedness
at such time of such person;
18.3 FINANCIAL TESTING
The financial covenants set out in Clause 18.1 (Financial Condition)
shall be tested by reference to each of the financial statements and
each Compliance Certificate delivered pursuant to Clause 17 (Financial
Information).
18.4 ACCOUNTING TERMS
All accounting expressions which are not otherwise defined herein shall
be construed in accordance with GAAP applicable on the date of this
Agreement.
19. COVENANTS
19.1 MAINTENANCE OF LEGAL VALIDITY
Each Obligor shall obtain, comply with the terms of and do all that is
necessary to maintain in full force and effect all authorisations,
approvals, licences and consents required in or by the laws of its
Relevant Jurisdiction to enable it lawfully to enter into and perform
its obligations under the Facility Documents and to ensure the
legality, validity, enforceability or admissibility in evidence of the
Facility Documents in its jurisdiction of incorporation.
19.2 INSURANCE
The Guarantor shall maintain insurances on and in relation to the
business and assets of each member of the Group with reputable
underwriters or insurance companies against such risks and to such
extent as is usual for companies carrying on a business such as that
carried on by each such member of the Group.
19.3 ENVIRONMENTAL COMPLIANCE
Each Obligor shall, and the Guarantor shall ensure that each other
member of the Group shall, comply in all material respects with all
Environmental Laws and obtain and maintain any Environmental Permits
and take all reasonable steps in anticipation of known or expected
future changes to or obligations under the same, breach of which (or
failure to obtain, maintain or take which) could reasonably be expected
to have a Material Adverse Effect.
19.4 ENVIRONMENTAL CLAIMS
Each Obligor shall inform the Agent in writing (and the Guarantor shall
ensure that each other member of the Group shall inform the Guarantor)
as soon as reasonably practicable upon becoming aware of the same if
any Environmental Claim has been commenced or (to the best of such
Obligor's, or such other member of the Group's, knowledge and belief)
is genuinely threatened or threatened in writing against any member of
the Group or of any facts or circumstances which will or are reasonably
likely to result in any Environmental Claim being commenced or
threatened against any member of the Group in any case where such
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claim would be reasonably likely to be determined against such member
of the Group and if so determined would be reasonably likely to have a
Material Adverse Effect.
19.5 NOTIFICATION OF EVENTS OF DEFAULT
Each Obligor shall promptly inform the Agent of the occurrence of any
Event of Default or Potential Event of Default and, upon receipt of a
written request to that effect from the Agent, confirm to the Agent
that, save as previously notified to the Agent or as notified in such
confirmation, no Event of Default or Potential Event of Default has
occurred.
19.6 CLAIMS PARI PASSU
Each Obligor shall ensure that at all times the claims of the Finance
Parties against it under the Facility Documents rank at least pari
passu with the claims of all its other unsecured and unsubordinated
creditors save those whose claims are preferred by any bankruptcy,
insolvency, liquidation or other similar laws of general application.
19.7 NEGATIVE PLEDGE
None of the Borrowers (nor, if any Borrower on-lends any amount
borrowed by it hereunder, any other member of the Group to which such
amount is on-lent) shall create or permit to subsist any Encumbrance
over all or any of its present or future revenues or assets (other than
Permitted Encumbrances falling within paragraphs (a) to (i) of the
definition of "Permitted Encumbrance"). The Guarantor shall not and
shall ensure that no other member of the Group shall create or permit
to subsist any Encumbrance over all or any of its present or future
revenues or assets other than Permitted Encumbrances.
19.8 LOANS, GUARANTEES AND INVESTMENTS
The Guarantor shall ensure that:
19.8.1 no member of the Group shall acquire any shares or other
equity interest in any person otherwise than on arm's length
terms or in the reasonable commercial interests of the Group
taken as a whole;and
19.8.2 no member of the Group shall make any loans or grant any
credit to, or give any guarantee or indemnity (except as
required or permitted pursuant to the Facility Documents) in
respect of the obligations of any person which is not a member
of, the Group or which is not an Unconsolidated Affiliate or
otherwise voluntarily assume any liability, whether actual or
contingent, in respect of any obligation of any other person
which is not a member of the Group or which is not an
Unconsolidated Affiliate other than (a) loans to tenants of
Properties in relation to tenant improvements on such
Properties in the ordinary course of business or (b) any such
loan, credit, guarantee or indemnity not otherwise permitted
pursuant to (a) above where the aggregate amount of such loan
or credit or the maximum amount which could be claimed under
such guarantee or indemnity (when aggregated with the
aggregate amount of each other such loan or credit and the
maximum amount which could be claimed under each other such
guarantee or indemnity which is not otherwise permitted
pursuant to (a) above) does not exceed EUR 15,000,000 or its
equivalent. For the avoidance of doubt, this Clause 19.8.2
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shall not apply to (i) the guarantee of up to French Francs
210,000,000 dated as of 29 December 1998 granted by the
Guarantor in favour of certain financial institutions party to
an acquisition facility agreement dated 29 December 1998
between ProLogis France III SAS, ProLogis France II SARL, such
financial institutions as lenders and Credit Immobilier
General as agent for such lenders or (ii) the guarantee of up
to French Francs 100,000,000 dated as of 5 March 1999 granted
by the Guarantor in favour of certain financial institutions
party to a secured term loan agreement dated as of 29 December
1998 (as amended on 5 March 1999) between Garonor S.A., such
financial institutions as lenders, Credit Immobilier General
as agent for such lenders and Societe Generale as security
agent.
19.9 DISPOSALS
The Guarantor shall not and shall ensure that no other member of the
Group shall sell, assign, lease, transfer, or otherwise dispose of any
of their assets, other than to a member of the Group, and except for
(a) sales, leases, or other dispositions of assets that are obsolete or
have negligible fair market value, (b) sales of equipment for a fair
and adequate consideration (but if replacement equipment is necessary
for the proper operation of the business of the seller, the seller must
promptly replace the sold equipment), (c) sale or other disposal of
assets relating to the Refrigerated Warehouse Business and (d) sales or
other transfers of Property during any twelve (12) month period having
a fair market value of not more than twenty percent (20%) of the fair
market value of all Properties of the Group prior to such sale or
transfer.
19.10 MERGERS
None of the Obligors shall, and the Guarantor shall ensure that no
other member of the Group (the total assets of which, when aggregated
with the total assets of any other member of the Group to which this
Clause 19.10 applies, exceed 5% of Total Assets (as defined in Clause
18.2 (Financial Definitions)) of the Guarantor (determined on a
consolidated basis) shall, without the prior written consent of an
Instructing Group, merge or consolidate with any other person, enter
into any demerger transaction or participate in any other type of
corporate reconstruction save where any of the foregoing does not (i)
result in a Change of Control or (ii) materially and adversely affect
any Obligor's ability to comply with its obligations under the Facility
Documents.
19.11 DIVIDENDS AND DISTRIBUTIONS
The Guarantor shall not declare, make, or pay any Distributions, other
than (a) Permitted Distributions and (b) Distributions declared, made,
or paid by the Guarantor wholly in the form of its Stock.
19.12 SYNDICATION
Each Obligor shall, and the Guarantor shall ensure that each other
member of the Group shall, provide reasonable assistance to the
Arrangers in the preparation of the Information Memorandum and the
primary syndication of the Facility (including, without limitation, by
making management available for the purpose of making presentations to,
or meeting, potential lending institutions) and will comply with all
reasonable requests for information
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from potential syndicate members prior to the Syndication Date.
19.13 YEAR 2000 COMPLIANT
Each Obligor shall use all reasonable endeavours to procure that all
Computer Systems used within the Group which are of material importance
to the business and operations of the Group are (or will by no later
than 31 December 1999 be) Year 2000 Compliant.
19.14 ARM'S LENGTH TERMS
No member of the Group nor any Unconsolidated Affiliate shall enter
into any arrangement or contract with any other member of the Group or
Unconsolidated Affiliate otherwise than on arm's length terms or on
terms which are in the reasonable commercial interests of the Group
taken as a whole.
19.15 FINANCIAL INDEBTEDNESS
The Guarantor shall ensure that none of the Borrowers (and if any
Borrower on-lends any amounts borrowed hereunder to any other member of
the Group, the relevant member of the Group to which amounts are
on-lent) shall incur any Financial Indebtedness other than Financial
Indebtedness (a) incurred pursuant to this Agreement or (b) incurred in
circumstances permitted by Clause 19.14 (Arm's Length Terms).
19.16 AFFILIATES LIST
The Guarantor shall provide the Agent semi-annually in arrears (and
otherwise on the reasonable request of any Bank through the Agent) with
a written list of all Consolidated Affiliates and Unconsolidated
Affiliates existing at such time. The Consolidated Affiliates and
Unconsolidated Affiliates on the date hereof are set out in Schedule 6
(Consolidated and Unconsolidated Affiliates).
19.17 RATING
Promptly upon receipt of notice thereof, and in any event within five
Business Days after any change in the Rating of the Guarantor (as
announced from time to time by any of S&P, Xxxxx'x and D&P), the
Guarantor shall give written notice of such change to the Agent.
19.18 MAINTENANCE OF RECORDS
Each Obligor shall maintain such books and such records as may from
time to time be required by the laws of its Relevant Jurisdiction or
which are usual for companies carrying on a business such as that
carried on by such Obligor.
19.19 MAINTENANCE OF PROPERTY
Each Obligor shall take all reasonable steps to ensure that at all
times it implements and maintains a repair programme so that any and
all property (including any Property) which is owned or controlled by
such Obligor is maintained in accordance with good industry practice.
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19.20 TAXES
The Guarantor shall, and shall ensure that each member of the Group
shall:
19.20.1 promptly pay when due any and all taxes (other than property
and franchise taxes); and
19.20.2 (in relation to any and all property and franchise taxes)
promptly pay the same when due or (in circumstances where
there is no material risk of any levy or execution of any
Encumbrance on the assets or revenues in relation to which
such taxes are imposed prior to or during the 30 day period
referred to below and no material risk of attachment or
similar process in relation to such assets or revenues prior
to or during the 30 day period referred to below and PROVIDED
THAT in such circumstances the aggregate amount of such taxes
does not exceed EUR 10,000,000 or its equivalent) within 30
days of receipt of notice by the relevant member of the Group
that such taxes are due and payable.
This Clause 19.20 shall not apply to taxes which are being contested in
good faith by lawful proceedings diligently conducted, against which
reserve or other provision required by generally accepted accounting
practices in the Relevant Jurisdiction of the relevant member of the
Group have been made, and in respect of which levy and execution of any
Encumbrance have been and continue to be stayed.
19.21 MAINTENANCE OF RATINGS
The Guarantor shall ensure that it at all times maintains a credit
rating of the type described in the definition of "RATING" from at
least two of S&P, Xxxxx'x and D&P.
19.22 MAINTENANCE OF REIT STATUS
The Guarantor shall take all action necessary (as and when required in
accordance with applicable law) to remain qualified as a REIT.
20. EVENTS OF DEFAULT
Each of Clause 20.1 (Failure to Pay) to Clause 20.18 (Material Adverse
Change) describes circumstances which constitute an Event of Default
for the purposes of this Agreement.
20.1 FAILURE TO PAY
Any Obligor fails to pay any sum due from it under the Facility
Documents within 4 Business Days of such failure to pay.
20.2 MISREPRESENTATION
Any material representation or material statement made or deemed to be
made by an Obligor in the Facility Documents or in any notice or other
document, certificate or statement
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delivered by it pursuant hereto or in connection herewith is or proves
to have been incorrect or misleading in any material respect when made
or deemed to be made unless the underlying circumstances are capable of
remedy and are remedied within 10 Business Days of that date.
20.3 SPECIFIC COVENANTS
An Obligor fails duly to perform or comply with any of the obligations
expressed to be assumed by it in Clause 17 (Financial Information),
Clause 19.9 (Disposals), Clause 19.10 (Mergers), Clause 19.11
(Dividends and Distributions) or Clause 19.15 (Financial Indebtedness).
20.4 FINANCIAL CONDITION
At any time any of the requirements of Clause 18.1 (Financial
Condition) is not satisfied.
20.5 OTHER OBLIGATIONS
An Obligor fails duly to perform or comply with any other obligation
expressed to be assumed by it in the Facility Documents and such
failure, if capable of remedy, is not remedied within thirty days after
the earlier of (i) such Obligor obtaining knowledge thereof and (ii)
the Agent giving notice thereof to such Obligor
20.6 CROSS DEFAULT
Any Financial Indebtedness of any member of the Group or any
Unconsolidated Affiliate is not paid when due, any Financial
Indebtedness of any member of the Group or any Unconsolidated Affiliate
is declared to be or otherwise becomes due and payable prior to its
specified maturity by reason of a default, event of default or
termination event (however described), any commitment for any Financial
Indebtedness of any member of the Group or any Unconsolidated Affiliate
is cancelled or suspended by a creditor of any such member of the Group
or such Unconsolidated Affiliate by reason of a default, event of
default or termination event (however described) or any creditor of any
member of the Group or any Unconsolidated Affiliate becomes entitled to
declare any Financial Indebtedness of any such member of the Group or
such Unconsolidated Affiliate due and payable prior to its specified
maturity by reason of a default, event of default or termination event
(however described), PROVIDED THAT
20.6.1 it shall not constitute an Event of Default if the aggregate
amount (or its equivalent in euro) of all such Financial
Indebtedness is less than EUR 15,000,000; and
20.6.2 (if any creditor of any member of the Group or any
Unconsolidated Affiliate becomes entitled to declare any
Financial Indebtedness of any such member of the Group or such
Unconsolidated Affiliate due and payable prior to its
specified maturity by reason of a default, event of default or
termination event (however described)), the same shall not
constitute an Event of Default until the expiry of 30 days
after the first date on which such entitlement arose PROVIDED
THAT such entitlement did not arise as a result of such member
of the Group's or such Unconsolidated Affiliate's failure to
pay any Financial Indebtedness when due and PROVIDED FURTHER
THAT, for the avoidance of doubt, this Clause 20.6.2 is
subject to and without prejudice to the preceding provisions
of this
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Clause 20.6 in relation to the occurrence of an Event of
Default if the relevant Financial Indebtedness (which the
relevant creditor has become entitled to declare due and
payable prior to its specified maturity by reason of a
default, event of default or termination event (however
described)) is declared to be or otherwise becomes due and
payable prior to its specified maturity by reason of a
default, event of default or termination event (however
described) during such 30 day period.
20.7 INSOLVENCY AND RESCHEDULING
Any member of the Group or any Unconsolidated Affiliate (the total
assets of which, when aggregated with the total assets of any other
member of the Group or Unconsolidated Affiliate to which this Clause
applies, exceed 5% of Total Assets (as defined in Clause 18.2
(Financial Definitions)) of the Guarantor (on a consolidated basis) is
unable to pay its debts as they fall due, commences negotiations with
any one or more of its creditors with a view to the general
readjustment or rescheduling of its indebtedness or makes a general
assignment for the benefit of or a composition with its creditors.
20.8 WINDING-UP
Any member of the Group or any Unconsolidated Affiliate (the total
assets of which, when aggregated with the total assets of any other
member of the Group or Unconsolidated Affiliate to which this Clause
applies, exceed 5% of Total Assets (as defined in Clause 18.2
(Financial Definitions)) of the Guarantor (on a consolidated basis)
takes any corporate action or other steps are taken or legal
proceedings are started (which are not frivolous or vexatious) for its
winding-up, dissolution, liquidation, administration or re-organisation
(whether by way of voluntary arrangement, scheme of arrangement or
otherwise except for any such action taken for the purposes of a
reconstruction or amalgamation whilst solvent on terms previously
approved by the Agent, such approval not to be unreasonably withheld or
delayed in the case of a member of the Group which is not an Obligor)
or for the appointment of a liquidator, receiver, administrator,
administrative receiver, conservator, custodian, trustee or similar
officer of it or of any or all of its revenues and assets.
20.9 EXECUTION OR DISTRESS
Any execution or distress is levied against (and is not discharged or
paid out within 10 days), or an encumbrancer takes possession of, the
whole or any part of, the property, undertaking or assets of any member
of the Group or any event occurs which under the laws of any
jurisdiction has a similar or analogous effect in each case PROVIDED
THAT it shall not be an Event of Default under this Clause unless the
aggregate amount of assets which are the subject of any such action as
aforesaid exceeds EUR 30,000,000 or its equivalent.
20.10 FAILURE TO COMPLY WITH FINAL JUDGMENT
Any member of the Group fails to comply with or pay any sum due from it
under, any final judgment or any final order made or given by any court
of competent jurisdiction PROVIDED THAT it shall not be an Event of
Default under this Clause unless the aggregate of all such sums exceeds
EUR 30,000,000 or its equivalent.
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20.11 GOVERNMENTAL INTERVENTION
By or under the authority of any government, (a) the management of any
member of the Group or any Unconsolidated Affiliate (the total assets
of which, when aggregated with the total assets of any other member of
the Group or any Unconsolidated Affiliate to which this Clause applies,
exceed 5% of Total Assets (as defined in Clause 18.2 (Financial
Definitions)) of the Guarantor (on a consolidated basis) is wholly or
partially displaced or the authority of any such member of the Group or
any such Unconsolidated Affiliate in the conduct of its business is
wholly or partially curtailed or (b) all or a majority of the issued
shares of any such member of the Group or any such Unconsolidated
Affiliate or the whole or any part (the book value of which is twenty
per cent. or more of the book value of the whole) of its revenues or
assets is seized, nationalised, expropriated or compulsorily acquired.
20.12 OWNERSHIP OF THE BORROWERS
Any Borrower ceases to be (directly or indirectly) a wholly-owned
subsidiary of the Guarantor PROVIDED THAT with the prior consent of an
Instructing Group, any change in the ownership of a Borrower shall be
permitted to the extent that such change (i) does not result in a
Change of Control and (ii) is not likely (in the opinion of an
Instructing Group) to adversely affect any Obligor's ability to comply
with its obligations under any of the Facility Documents.
20.13 STATUS OF THE GUARANTOR
The Guarantor ceases to be a REIT.
20.14 THE GROUP'S BUSINESS
Save with the consent of an Instructing Group, the Group taken as a
whole ceases to carry on or changes a material part of, the business
(other than the Refrigerated Warehouse Business) it carries on at the
date hereof or enters into any unrelated business which results in any
material change to the nature of such business (save that the cessation
of the Refrigerated Warehouse Business shall not be an Event of
Default).
20.15 REPUDIATION
An Obligor repudiates any Facility Document or does or causes to be
done any act or thing evidencing an intention to repudiate any Facility
Document.
20.16 ILLEGALITY
At any time it is or becomes unlawful for an Obligor to perform or
comply with any or all of its material obligations hereunder or any of
the material obligations of an Obligor hereunder are not or cease to be
legal, valid, binding and enforceable (where for this purpose the
guarantee of the Guarantor contained in this Agreement is, for the
avoidance of doubt, material).
20.17 QUALIFICATION TO FINANCIAL STATEMENTS
The external auditors of the Group make a qualification in their audit
opinion in relation to the consolidated financial statements of the
Group required to be delivered pursuant to Clause 17.1 (Guarantor's
Annual Statements) which, in the reasonable opinion of an Instructing
Group, is reasonably likely to have a Material Adverse Effect.
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20.18 MATERIAL ADVERSE CHANGE
Any event or circumstance occurs which an Instructing Group reasonably
believes is reasonably likely to have a Material Adverse Effect.
20.19 ACCELERATION AND CANCELLATION
Upon the occurrence of an Event of Default and at any time thereafter
whilst it is continuing, the Agent may (and, if so instructed by an
Instructing Group, shall) by notice to the Borrowers:
20.19.1 declare all or any part of the Advances to be immediately due
and payable (whereupon the same shall become so payable
together with accrued interest thereon and any other sums then
owed by the Borrowers hereunder) or declare all or any part of
the Advances to be due and payable on demand of the Agent;
and/or
20.19.2 require each Borrower which has requested a Letter of Credit
to procure that the liabilities of each of the Banks and the
L/C Issuing Bank under each Letter of Credit are promptly
reduced to zero and/or provide Cash Collateral for each Letter
of Credit in an amount specified by the Agent (such amount not
to exceed the maximum actual and contingent liability of the
L/C Issuing Bank in relation to such Letter of Credit) and in
the currency of such Letter of Credit (whereupon such Borrower
shall do so); and/or
20.19.3 declare that the Facility shall be cancelled, whereupon the
same shall be cancelled and the Commitment of each Bank shall
be reduced to zero.
20.20 ADVANCES DUE ON DEMAND
If, pursuant to Clause 20.19 (Acceleration and Cancellation), the Agent
declares all or any part of the Advances to be due and payable on
demand of the Agent, then, and at any time thereafter whilst an Event
of Default is continuing, the Agent may (and, if so instructed by an
Instructing Group, shall) by notice to the Borrowers:
20.20.1 require repayment of all or such part of the Advances and any
other payment due hereunder on such date as it may specify in
such notice (whereupon the same shall become due and payable
on the date specified together with accrued interest thereon
and any other sums then owed by the Borrowers hereunder) or
withdraw its declaration with effect from such date as it may
specify; and
20.20.2 declare that the Facility shall be cancelled, whereupon the
same shall be cancelled and the Commitment of each Bank
reduced to zero.
20.21 LENGTH OF TERMS
If, pursuant to Clause 20.19 (Acceleration and Cancellation), the Agent
declares the Advances to be due and payable on demand of the Agent, the
Term in respect of any such
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Advance shall, if the Agent subsequently demands payment before the
scheduled Repayment Date in respect of such Advance, be deemed (except
for the purposes of Clause 24.4 (Break Costs) to be of such length that
it ends on the date that such demand is made.
21. GUARANTEE AND INDEMNITY
21.1 GUARANTEE
The Guarantor irrevocably and unconditionally guarantees to each
Finance Party the due and punctual observance and performance of all
the terms, conditions and covenants on the part of each Borrower
contained in the Facility Documents and agrees to pay from time to time
on demand any and every sum or sums of money which each such Borrower
is at any time liable to pay to any Finance Party under or pursuant to
the Facility Documents and which has become due and payable but has not
been paid at the time such demand is made.
21.2 INDEMNITY
The Guarantor irrevocably and unconditionally agrees as a primary
obligation to indemnify each Finance Party from time to time on demand
from and against any loss incurred by any Finance Party as a result of
any of the obligations the Borrowers (or any of them) under or pursuant
to the Facility Documents being or becoming void, voidable,
unenforceable or ineffective as against the Borrowers (or any of them)
for any reason whatsoever, whether or not known to any Finance Party or
any other person, the amount of such loss being the amount which the
person or persons suffering it would otherwise have been entitled to
recover from the Borrowers (or any of them).
21.3 ADDITIONAL SECURITY
The obligations of the Guarantor herein contained shall be in addition
to and independent of every other security (if any) which any Finance
Party may at any time hold in respect of any of the Obligors'
obligations under the Facility Documents.
21.4 CONTINUING OBLIGATIONS
The obligations of the Guarantor herein contained shall constitute and
be continuing obligations notwithstanding any settlement of account or
other matter or thing whatsoever and shall not be considered satisfied
by any intermediate payment or satisfaction of all or any of the
obligations of Borrowers (or any of them) under the Facility Documents
and shall continue in full force and effect until final payment in full
of all amounts owing by the Borrowers (or any of them) under the
Facility Documents and total satisfaction of all the Borrowers' actual
and contingent obligations thereunder.
21.5 OBLIGATIONS NOT DISCHARGED
Neither the obligations of the Guarantor herein contained nor the
rights, powers and remedies conferred in respect of the Guarantor upon
any Finance Party by this Agreement or by law shall be discharged,
impaired or otherwise affected by:
21.5.1 the bankruptcy, insolvency, winding-up, dissolution,
liquidation, administration
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or re-organisation of any Borrower or any other person or any
change in its status, function, control or ownership;
21.5.2 any of the obligations of any Borrower or any other person
under the Facility Documents or under any other security taken
in respect of any of its obligations under the Facility
Documents being or becoming illegal, invalid, unenforceable or
ineffective in any respect;
21.5.3 time or other indulgence being granted or agreed to be granted
to any Borrower in respect of its obligations under the
Facility Documents or under any such other security;
21.5.4 any amendment to, or any variation, waiver or release of, any
obligation of any Borrower under the Facility Documents or
under any such other security;
21.5.5 any failure to take, or fully to take, any security
contemplated hereby or otherwise agreed to be taken in respect
of any Borrower's obligations under the Facility Documents;
21.5.6 any failure to realise or fully to realise the value of, or
any release, discharge, exchange or substitution of, any
security taken in respect of any Borrower's obligations under
the Facility Documents; or
21.5.7 any other act, event or omission which, but for this Clause
21.5, might operate to discharge, impair or otherwise affect
any of the obligations of the Guarantor herein contained in
the Facility Documents or any of the rights, powers or
remedies conferred upon any of the Finance Parties by the
Facility Documents or by law.
21.6 SETTLEMENT CONDITIONAL
Any settlement or discharge between the Guarantor and any of the
Finance Parties shall be conditional upon no security or payment to any
Finance Party by an Obligor or any other person on behalf of an Obligor
being avoided or reduced by virtue of any laws relating to bankruptcy,
insolvency, liquidation or similar laws of general application and, if
any such security or payment is so avoided or reduced, each Finance
Party shall be entitled to recover the value or amount of such security
or payment from the Guarantor subsequently as if such settlement or
discharge had not occurred.
21.7 EXERCISE OF RIGHTS
No Finance Party shall be obliged before exercising any of the rights,
powers or remedies conferred upon them in respect of the Guarantor by
this Agreement or by law to:
21.7.1 take any action or obtain judgment in any court against any
Borrower;
21.7.2 make or file any claim or proof in a winding-up or dissolution
of any Borrower; or
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21.7.3 enforce or seek to enforce any other security taken in respect
of any of the obligations of any Borrower hereunder.
21.8 DEFERRAL OF GUARANTOR'S RIGHTS
The Guarantor agrees that, so long as any amounts are or may be owed by
any Borrower hereunder or any Borrower is under any actual or
contingent obligations under the Facility Documents, the Guarantor
shall not exercise any rights which the Guarantor may at any time have
by reason of performance by it of its obligations under the Facility
Documents to:
21.8.1 be indemnified by the Borrowers; and/or
21.8.2 claim any contribution from any other guarantor of any
Borrower's obligations under the Facility Documents; and/or
21.8.3 take the benefit (in whole or in part and whether by way of
subrogation or otherwise) of any rights of the Finance Parties
under the Facility Documents or of any other security taken
pursuant to, or in connection with, the Facility Documents by
all or any of the Finance Parties.
21.9 SUSPENSE ACCOUNTS
All moneys received, recovered or realised by a Bank by virtue of
Clause 21.1 (Guarantee) or Clause 21.2 (Indemnity) may, in that Bank's
discretion, be credited to an interest bearing suspense or impersonal
account and may be held in such account for such reasonable time as the
Bank thinks fit pending the application from time to time (as such Bank
may think fit) of such moneys in or towards the payment and discharge
of any amounts owing by an Obligor to such Bank under the Facility
Documents.
22. COMMITMENT COMMISSION AND FEES
22.1 COMMITMENT COMMISSION
The Guarantor shall pay to the Agent for account of each Bank a
commitment commission on the amount of such Bank's Available Commitment
from day to day during the period beginning on the date hereof and
ending on the Final Maturity Date (or, if the Banks have granted an
extension to the Facility pursuant to Clause 10.8 (Extension), the
Extended Maturity Date), such commitment commission to be calculated at
the rate per annum which is 50 per cent. of the Applicable Margin and
payable in arrear on the last day of each successive period of three
months which ends during such period and on the Final Maturity Date
(or, if the Banks have granted an extension to the Facility pursuant to
Clause 10.8 (Extension), the Extended Maturity Date).
22.2 ARRANGEMENT FEE
The Guarantor shall pay to the Arrangers the fees specified in the
letter of even date herewith from the Arrangers to the Guarantor at the
times, and in the amounts, specified in such letter.
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22.3 AGENCY FEE
The Guarantor shall pay to the Agent for its own account the agency
fees specified in the letter of even date herewith from the Agent to
the Guarantor at the times, and in the amounts, specified in such
letter.
23. COSTS AND EXPENSES
23.1 TRANSACTION EXPENSES
The Guarantor shall, from time to time within 30 days of demand of the
Agent, reimburse each of the Agent and each of the Arrangers for all
reasonable costs and expenses (including legal fees) together with any
VAT thereon incurred by it in connection with the negotiation,
preparation and execution of this Agreement, any other document
referred to in this Agreement and the completion of the transactions
herein contemplated.
23.2 PRESERVATION AND ENFORCEMENT OF RIGHTS
The Guarantor shall, from time to time within 7 days of demand of the
Agent, reimburse the Finance Parties for all costs and expenses
(including legal fees) on a full indemnity basis together with any VAT
thereon incurred in or in connection with the preservation and/or
enforcement of any of the rights of the Finance Parties under this
Agreement and any other document referred to in this Agreement
(including, without limitation, any costs and expenses relating to any
investigation (with reasonable cause) as to whether or not an Event of
Default might have occurred or any steps necessary or desirable in
connection with any proposal for remedying or otherwise resolving an
Event of Default or Potential Event of Default).
23.3 STAMP TAXES
The Guarantor shall pay all stamp, registration and other taxes to
which this Agreement, any other document referred to in this Agreement
or any judgment given in connection therewith is or at any time may be
subject and shall, within 21 days of written demand of the Agent,
indemnify the Finance Parties against any reasonable liabilities,
costs, claims and expenses resulting directly from any failure to pay
or any delay in paying any such tax.
23.4 COSTS
If an Obligor requests any amendment, waiver or consent then the
Guarantor shall, within 30 days of demand by the Agent, reimburse the
Finance Parties for all reasonable costs and expenses (including legal
fees) together with any VAT thereon incurred by such person in
responding to or complying with such request.
23.5 BANKS' LIABILITIES FOR COSTS
If the Guarantor fails to perform any of its obligations under this
Clause 23, each Bank shall, in its Proportion, indemnify each of the
Agent and the Arrangers against any loss incurred by any of them as a
result of such failure.
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24. DEFAULT INTEREST AND BREAK COSTS
24.1 DEFAULT INTEREST PERIODS
If any sum due and payable by an Obligor hereunder is not paid on the
due date therefor in accordance with Clause 27 (Payments) or if any sum
due and payable by an Obligor under any judgment of any court in
connection herewith is not paid on the date of such judgment, the
period beginning on such due date or, as the case may be, the date of
such judgment and ending on the date upon which the obligation of such
Obligor to pay such sum is discharged shall be divided into successive
periods, each of which (other than the first) shall start on the last
day of the preceding such period and the duration of each of which
shall (except as otherwise provided in this Clause 24) be selected by
the Agent.
24.2 DEFAULT INTEREST
Each Finance Party's portion of an Unpaid Sum shall bear interest
during each Term in respect thereof at the rate per annum which is 1.5
per cent. per annum above the percentage rate which would apply to an
Advance in the amount and currency of such Unpaid Sum and for the same
Term (but assuming for this purpose that "EURIBOR" shall be replaced by
a reference to the rate per annum, as notified by such Finance Party to
the Agent, which represents the cost to such Finance Party of funding
from whatever sources it may select its portion of such Unpaid Sum
during such Term), PROVIDED THAT if such Unpaid Sum relates to an
Advance which became due and payable on a day other than the last day
of the Term thereof:
24.2.1 the first such Term applicable to such Unpaid Sum shall be of
a duration equal to the unexpired portion of the current Term
relating to that Advance; and
24.2.2 the percentage rate of interest applicable thereto from time
to time during such period shall be that which exceeds by 1.5
per cent. the rate which would have been applicable to it had
it not so fallen due save that the Applicable Margin shall be,
or be deemed to be, the highest rate specified in the
definition thereof.
24.3 PAYMENT OF DEFAULT INTEREST
Any interest which shall have accrued under Clause 24.2 (Default
Interest) in respect of an Unpaid Sum shall be due and payable and
shall be paid by the Obligor owing such Unpaid Sum on the last day of
its Term or on such other dates as the Agent may specify by notice to
such Obligor.
24.4 BREAK COSTS
If any Bank or the Agent on its behalf receives or recovers all or any
part of an Advance or Unpaid Sum otherwise than on the last day of the
Term thereof, the Borrowers shall pay to the Agent on demand for
account of such Bank an amount equal to the amount (if any) by which
(a) the additional interest which would have been payable on the amount
so received or recovered had it been received or recovered on the last
day of the Term thereof (excluding any element of interest representing
the Applicable Margin) exceeds (b) the amount of interest
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which in the opinion of the Agent would have been payable to the Agent
on the last day of the Term thereof in respect of a deposit in the
currency of the amount so received or recovered equal to the amount so
received or recovered placed by it with a prime bank in Amsterdam (or,
in the case of amounts denominated in an Optional Currency, London) for
a period starting on the first Business Day following the date of such
receipt or recovery and ending on the last day of the Term thereof.
25. GUARANTOR'S INDEMNITIES
25.1 GUARANTOR'S INDEMNITY
The Guarantor undertakes to indemnify:
25.1.1 each Finance Party against any cost, claim, loss, expense
(including legal fees) or liability together with any VAT
thereon, whether or not reasonably foreseeable, which it may
sustain or incur as a consequence of the occurrence of any
Event of Default or any default by any Obligor in the
performance of any of the obligations expressed to be assumed
by it in the Facility Documents;
25.1.2 the Agent against any reasonable cost or loss it may suffer or
incur as a result of its entering into, or performing, any
foreign exchange contract for the purposes of Clause 27
(Payments);
25.1.3 each Bank against any reasonable cost or loss it may suffer
under Clause 23.5 (Banks' Liabilities for Costs) or Clause
30.5 (Indemnification);
25.1.4 each Bank or the L/C Issuing Bank against any reasonable cost
or loss it may suffer or incur as a result of either:
(a) its funding or making arrangements to fund its
portion of an Advance requested by any Borrower
hereunder but not made; or
(b) its issuing or making arrangements to issue a Letter
of Credit requested by any Borrower hereunder but not
issued,
by reason of the operation of any one or more of the
provisions hereof; and
25.1.5 each Bank against any reasonable loss it may suffer or incur
as a result of its funding its portion of any Advance which is
denominated in euro or sterling by reason of Clause 3.3
(Conditions for Drawing in an Optional Currency).
25.2 CURRENCY INDEMNITY
If any sum (a "SUM") due from an Obligor under this Agreement or any
order, judgment given or made in relation hereto has to be converted
from the currency (the "FIRST CURRENCY") in which such Sum is payable
into another currency (the "SECOND CURRENCY") for the purpose of:
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25.2.1 making or filing a claim or proof against such Obligor;
25.2.2 obtaining an order, judgment in any court or other tribunal;
or
25.2.3 enforcing any order, judgment given or made in relation
hereto,
the Guarantor shall indemnify each person to whom such Sum is due from
and against any reasonable loss suffered or incurred as a result of any
discrepancy between (a) the rate of exchange used for such purpose to
convert such Sum from the First Currency into the Second Currency and
(b) the rate or rates of exchange available to such person at the time
of receipt of such Sum.
26. CURRENCY OF ACCOUNT AND PAYMENT
26.1 CURRENCY OF ACCOUNT
The euro is the currency of account and payment for each and every sum
at any time due from an Obligor hereunder, PROVIDED THAT:
26.1.1 each repayment of an Advance or Unpaid Sum or a part thereof
shall be made in the currency in which such Advance or Unpaid
Sum is denominated at the time of that repayment;
26.1.2 each payment in respect of a Letter of Credit (including any
Cash Collateral in respect of a Letter of Credit) shall be
made in the currency in which such Letter of Credit is
denominated;
26.1.3 each payment of interest shall be made in the currency in
which the sum in respect of which such interest is payable is
denominated;
26.1.4 each payment in respect of costs and expenses shall be made in
the currency in which the same were incurred;
26.1.5 each payment pursuant to Clause 11.2 (Tax Indemnity) or Clause
13.1 (Increased Costs) shall be made in the currency specified
by the party claiming thereunder; and
26.1.6 any amount expressed to be payable in a currency other than
euros shall be paid in that other currency.
If, after the date of this Agreement, a member state becomes a
Subsequent Participant, all obligations under this Agreement (including
any obligation in respect of any Bank's Available Commitment) to make a
payment in its national currency unit shall be
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redenominated into euro on the date on which it becomes a Subsequent
Participant (but otherwise in accordance with EMU Legislation).
27. PAYMENTS
27.1 PAYMENTS TO THE AGENT
On each date on which this Agreement requires an amount to be paid by
an Obligor or a Bank, such Obligor or, as the case may be, such Bank
shall make the same available to the Agent:
27.1.1 (in relation to any amount other than an amount denominated in
euro) for value on the due date at such time and in such funds
and to such account with such bank as the Agent shall specify
from time to time; and
27.1.2 (in relation to euro) in immediately available, freely
transferable, cleared funds to a bank account nominated by the
Agent for this purpose from time to time.
27.2 PAYMENTS BY THE AGENT
Save as otherwise provided herein, each payment received by the Agent
pursuant to Clause 27.1 (Payments to the Agent) shall:
27.2.1 in the case of a payment received for the account of any
Borrower, be made available by the Agent to such Borrower by
application:
(a) first, in or towards payment (on the date, and in the
currency and funds, of receipt) of any amount then
due from such Borrower hereunder to the person from
whom the amount was so received or in or towards the
purchase of any amount of any currency to be so
applied; and
(b) secondly, in or towards payment (on the date, and in
the currency and funds, of receipt) to such account
with such bank in the principal financial centre of
the country of the currency of such payment as such
Borrower shall have previously notified to the Agent
for this purpose; and
27.2.2 in the case of any other payment, be made available by the
Agent to the person entitled to receive such payment in
accordance with this Agreement (in the case of a Bank, for the
account of the Facility Office) for value the same day by
transfer to such account of such person with such bank in the
principal financial centre of the country of the currency of
such payment as such person shall have previously notified to
the Agent.
27.3 PAYMENTS BY THE AGENT TO THE BANKS
Any amount payable by the Agent to the Banks under this Agreement in
the currency of a Participating Member State shall be paid in the euro
unit.
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27.4 NO SET-OFF
Subject only to Clause 27.2 (Payments by the Agent), all payments
required to be made by an Obligor hereunder shall be calculated without
reference to any set-off or counterclaim and shall be made free and
clear of and without any deduction for or on account of any set-off or
counterclaim.
27.5 CLAWBACK
Where a sum is to be paid hereunder to the Agent for account of another
person, the Agent shall not be obliged to make the same available to
that other person or to enter into or perform any exchange contract in
connection therewith until it has been able to establish to its
satisfaction that it has actually received such sum, but if it does so
and it proves to be the case that it had not actually received such
sum, then the person to whom such sum or the proceeds of such exchange
contract was so made available shall on request refund the same to the
Agent together with an amount sufficient to indemnify the Agent against
any reasonable cost or loss it may have suffered or incurred by reason
of its having paid out such sum or the proceeds of such exchange
contract prior to its having received such sum.
27.6 PARTIAL PAYMENTS
If and whenever a payment is made by an Obligor hereunder the Agent may
apply the amount received towards the obligations of the Obligors under
this Agreement in the following order:
27.6.1 FIRST, in or towards payment of any unpaid costs and expenses
of each of the Agent and the Arrangers;
27.6.2 SECONDLY, in or towards payment pro rata to the amounts owed
to each of the Banks and the L/C Issuing Bank of any fee
payable to any Bank or the L/C Issuing Bank hereunder due but
unpaid;
27.6.3 THIRDLY, in or towards payment of any demand made by the L/C
Issuing Bank in respect of a payment made or to be made by it
under a Letter of Credit due but unpaid;
27.6.4 FOURTHLY, in or towards payment pro rata to the amounts owed
to each of the Banks of any accrued interest and letter of
credit commission due but unpaid;
27.6.5 FIFTHLY, in or towards payment pro rata to the amounts owed to
each of the Banks of any principal due but unpaid; and
27.6.6 SIXTHLY, in or towards payment pro rata to the amounts owed to
each of the Banks of any other sum due but unpaid.
27.7 VARIATION OF PARTIAL PAYMENTS
The order of payments set out in Clause 27.6 (Partial Payments) shall
override any
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appropriation made by the Obligor to which the partial payment relates
but the order set out in sub-clauses 27.6.2, 27.6.3, 27.6.4 and 27.6.5
of Clause 27.6 (Partial Payments) may be varied if agreed by all the
Banks.
28. SET-OFF
28.1 CONTRACTUAL SET-OFF
Each Obligor authorises each Bank and the L/C Issuing Bank, after the
occurrence of an Event of Default which is continuing, to apply any
credit balance to which such Obligor is entitled on any account of such
Obligor with such Bank or the L/C Issuing Bank in satisfaction of any
sum due and payable from such Obligor to such Bank or the L/C Issuing
Bank hereunder but unpaid. For this purpose, each Bank and the L/C
Issuing Bank is authorised to purchase with the moneys standing to the
credit of any such account such other currencies as may be necessary to
effect such application.
28.2 SET-OFF NOT MANDATORY
None of the Banks or the L/C Issuing Bank shall be obliged to exercise
any right given to it by Clause 28.1 (Contractual Set-off).
29. SHARING
29.1 PAYMENTS TO BANKS
If a Bank (a "RECOVERING BANK") applies any receipt or recovery from an
Obligor to a payment due under this Agreement and such amount is
received or recovered other than in accordance with Clause 27
(Payments), then such Recovering Bank shall:
29.1.1 notify the Agent of such receipt or recovery;
29.1.2 at the request of the Agent, promptly pay to the Agent an
amount (the "SHARING PAYMENT") equal to such receipt or
recovery less any amount which the Agent determines may be
retained by such Recovering Bank as its share of any payment
to be made in accordance with Clause 27.6 (Partial Payments).
29.2 REDISTRIBUTION OF PAYMENTS
The Agent shall treat the Sharing Payment as if it had been paid by the
relevant Obligor and distribute it between the Finance Parties (other
than the Recovering Bank) in accordance with Clause 27.6 (Partial
Payments).
29.3 RECOVERING BANK'S RIGHTS
The Recovering Bank will be subrogated into the rights of the parties
which have shared in a redistribution pursuant to Clause 29.2
(Redistribution of Payments) in respect of the Sharing Payment (and the
relevant Obligor shall be liable to the Recovering Bank in an amount
equal to the Sharing Payment).
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29.4 REPAYABLE RECOVERIES
If any part of the Sharing Payment received or recovered by a
Recovering Bank becomes repayable and is repaid by such Recovering
Bank, then:
29.4.1 each party which has received a share of such Sharing Payment
pursuant to Clause 29.2 (Redistribution of Payments) shall,
upon request of the Agent, pay to the Agent for account of
such Recovering Bank an amount equal to its share of such
Sharing Payment; and
29.4.2 such Recovering Bank's rights of subrogation in respect of any
reimbursement shall be cancelled and the relevant Obligor will
be liable to the reimbursing party for the amount so
reimbursed.
29.5 EXCEPTION
This Clause 29 shall not apply if the Recovering Bank would not, after
making any payment pursuant hereto, have a valid and enforceable claim
against the relevant Obligor
29.6 RECOVERIES THROUGH LEGAL PROCEEDINGS
If any Bank intends to commence any action in any court it shall give
prior notice to the Agent and the other Banks. If any Bank shall
commence any action in any court to enforce its rights hereunder and,
as a result thereof or in connection therewith, receives any amount,
then such Bank shall not be required to share any portion of such
amount with any Bank which has the legal right to, but does not, join
in such action or commence and diligently prosecute a separate action
to enforce its rights in another court.
30. THE AGENT, THE ARRANGERS, THE BANKS AND THE L/C ISSUING BANK
30.1 APPOINTMENT OF THE AGENT
Each of the Arrangers, the Banks and the L/C Issuing Bank hereby
appoints the Agent to act as its agent in connection with the Facility
Documents and authorises the Agent to exercise such rights, powers,
authorities and discretions as are specifically delegated to the Agent
by the terms hereof together with all such rights, powers, authorities
and discretions as are reasonably incidental thereto.
30.2 AGENT'S DISCRETIONS
The Agent may:
30.2.1 assume, unless it has, in its capacity as agent for the Banks,
received notice to the contrary from any other party to the
Facility Documents, that (a) any representation made or deemed
to be made by an Obligor in connection with the Facility
Documents is true, (b) no Event of Default or Potential Event
of Default has occurred, (c) no Obligor is in breach of or
default under its obligations under the Facility Documents and
(d) any right, power, authority or discretion vested therein
upon an Instructing Group, the Banks,
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the L/C Issuing Bank or any other person or group of persons
has not been exercised;
30.2.2 assume that the Facility Office of each Bank is that notified
to it by such Bank in writing prior to the date hereof (or, in
the case of a Transferee, at the end of the Transfer
Certificate to which it is a party as Transferee) until it has
received from such Bank a notice designating some other office
of such Bank to replace its Facility Office and act upon any
such notice until the same is superseded by a further such
notice;
30.2.3 engage and pay for the advice or services of any lawyers,
accountants, surveyors or other experts whose advice or
services may to it seem necessary, expedient or desirable and
rely upon any advice so obtained;
30.2.4 rely as to any matters of fact which might reasonably be
expected to be within the knowledge of an Obligor upon a
certificate signed by or on behalf of such Obligor;
30.2.5 rely upon any communication or document believed by it to be
genuine;
30.2.6 refrain from exercising any right, power or discretion vested
in it as agent under the Facility Documents unless and until
instructed by an Instructing Group as to whether or not such
right, power or discretion is to be exercised and, if it is to
be exercised, as to the manner in which it should be
exercised; and
30.2.7 refrain from acting in accordance with any instructions of an
Instructing Group to begin any legal action or proceeding
arising out of or in connection with the Facility Documents
until it shall have received such security as it may require
(whether by way of payment in advance or otherwise) for all
costs, claims, losses, expenses (including legal fees) and
liabilities together with any VAT thereon which it will or may
expend or incur in complying with such instructions.
30.3 AGENT'S OBLIGATIONS
The Agent shall:
30.3.1 promptly inform each Bank and, where appropriate, the L/C
Issuing Bank of the contents of any notice or document
received by it in its capacity as Agent from an Obligor under
the Facility Documents;
30.3.2 promptly notify each Bank and, where appropriate, the L/C
Issuing Bank of the occurrence of any Event of Default or any
default by an Obligor in the due performance of or compliance
with its obligations under the Facility Documents of which the
Agent has notice from any other party to the Facility
Documents;
30.3.3 save as otherwise provided herein, act as agent under the
Facility Documents in accordance with any instructions given
to it by an Instructing Group, which instructions shall be
binding on the Arrangers, the L/C Issuing Bank and the Banks;
and
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30.3.4 if so instructed by an Instructing Group, refrain from
exercising any right, power or discretion vested in it as
agent under the Facility Documents.
The Agent's duties under the Facility Documents are solely mechanical
and administrative in nature.
30.4 EXCLUDED OBLIGATIONS
Notwithstanding anything to the contrary expressed or implied in the
Facility Documents, neither the Agent nor any of the Arrangers shall:
30.4.1 be bound to enquire as to (a) whether or not any
representation made or deemed to be made by an Obligor in
connection with the Facility Documents is true, (b) the
occurrence or otherwise of any Event of Default or Potential
Event of Default, (c) the performance by an Obligor of its
obligations under the Facility Documents or (d) any breach of
or default by an Obligor of or under its obligations under the
Facility Documents;
30.4.2 be bound to account to any Bank or the L/C Issuing Bank for
any sum or the profit element of any sum received by it for
its own account;
30.4.3 be bound to disclose to any other person any information
relating to any member of the Group or any Unconsolidated
Affiliate if (a) such person, on providing such information
expressly stated to the Agent or, as the case may be, the
Arrangers, that such information was confidential or (b) such
disclosure would or might in its opinion constitute a breach
of any law or be otherwise actionable at the suit of any
person;
30.4.4 be under any obligations other than those for which express
provision is made in the Facility Documents; or
30.4.5 be or be deemed to be a fiduciary for any other party to the
Facility Documents.
30.5 INDEMNIFICATION
Each Bank shall, in its Proportion, from time to time on demand by the
Agent, indemnify the Agent, against any and all costs, claims, losses,
expenses (including legal fees) and liabilities together with any VAT
thereon which the Agent may incur, otherwise than by reason of its own
gross negligence or wilful misconduct, in acting in its capacity as
agent under the Facility Documents (other than any which have been
reimbursed by the Guarantors pursuant to Clause 25.1 (Guarantor's
Indemnity)).
30.6 EXCLUSION OF LIABILITIES
Except in the case of gross negligence or wilful default, none of the
Agent and the Arrangers accepts any responsibility:
30.6.1 for the adequacy, accuracy and/or completeness of the
Information
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Memorandum or any other information supplied by the Agent or
the Arrangers, by any member of the Group or any
Unconsolidated Affiliate or by any other person in connection
with the Facility Documents, the transactions contemplated in
the Facility Documents or any other agreement, arrangement or
document entered into, made or executed in anticipation of,
pursuant to or in connection with the Facility Documents;
30.6.2 for the legality, validity, effectiveness, adequacy or
enforceability of any of the Facility Documents or any other
agreement, arrangement or document entered into, made or
executed in anticipation of, pursuant to or in connection with
the Facility Documents; or
30.6.3 for the exercise of, or the failure to exercise, any
judgement, discretion or power given to any of them by or in
connection with the Facility Documents or any other agreement,
arrangement or document entered into, made or executed in
anticipation of, pursuant to or in connection with the
Facility Documents.
Accordingly, none of the Agent and the Arrangers shall be under any
liability in respect of such matters, save in the case of gross
negligence or wilful misconduct.
30.7 NO ACTIONS
Each of the Banks and the L/C Issuing Bank agrees that it will not
assert or seek to assert against any director, officer or employee of
the Agent or any Arranger any claim it might have against any of them
in respect of the matters referred to in Clause 30.6 (Exclusion of
Liabilities).
30.8 BUSINESS WITH THE GROUP
The Agent and each of the Arrangers may accept deposits from, lend
money to and generally engage in any kind of banking or other business
with any member of the Group.
30.9 RESIGNATION
The Agent may not resign its appointment under the Facility Documents.
30.10 REMOVAL OF AGENT
An Instructing Group may remove the Agent from its role as agent under
the Facility Documents by giving notice to that effect to each of the
other parties hereto. Such removal shall take effect only when a
successor to the Agent is appointed in accordance with the terms
hereof.
30.11 SUCCESSOR AGENT
If the Agent is removed pursuant to Clause 30.10 (Removal of Agent),
then any reputable and experienced bank or other financial institution
may be appointed as a successor to the Agent by an Instructing Group
(after consultation with the Guarantor) before such removal takes
effect. Such removal shall not take effect until an Instructing Group
has received in form and substance satisfactory to it such documents,
legal opinions and other evidence it requires in order to be satisfied
that the interests of the Banks under the Facility Documents are not
thereby prejudiced.
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30.12 RIGHTS AND OBLIGATIONS
If a successor to the Agent is appointed under the provisions of Clause
30.11 (Successor Agent), then (a) the departing Agent shall be
discharged from any further obligations under the Facility Documents
but shall remain entitled to the benefit of the provisions of this
Clause 30 and (b) its successor and each of the other parties to the
Facility Documents shall have the same rights and obligations amongst
themselves as they would have had if such successor had been a party to
the Facility Documents.
30.13 OWN RESPONSIBILITY
It is understood and agreed by each Bank and the L/C Issuing Bank that
at all times it has itself been, and will continue to be, solely
responsible for making its own independent appraisal of and
investigation into all risks arising under or in connection with the
Facility Documents including, but not limited to:
30.13.1 the financial condition, creditworthiness, condition, affairs,
status and nature of each member of the Group and each
Unconsolidated Affiliate;
30.13.2 the legality, validity, effectiveness, adequacy and
enforceability of the Facility Documents and any other
agreement, arrangement or document entered into, made or
executed in anticipation of, pursuant to or in connection with
the Facility Documents;
30.13.3 whether such Bank has recourse, and the nature and extent of
that recourse, against an Obligor or any other person or any
of their respective assets under or in connection with the
Facility Documents, the transactions contemplated in the
Facility Documents or any other agreement, arrangement or
document entered into, made or executed in anticipation of,
pursuant to or in connection with the Facility Documents; and
30.13.4 the adequacy, accuracy and/or completeness of the Information
Memorandum and any other information provided by the Agent or
the Arrangers, an Obligor, or by any other person in
connection with the Facility Documents, the transactions
contemplated therein or any other agreement, arrangement or
document entered into, made or executed in anticipation of,
pursuant to or in connection with the Facility Documents.
Accordingly, each Bank and the L/C Issuing Bank acknowledges to the
Agent and the Arrangers that it has not relied on and will not
hereafter rely on the Agent and the Arrangers or any of them in respect
of any of these matters.
30.14 BANK'S MANDATORY COST DETAILS
Each Bank will supply the Agent with such information and in such
detail as the Agent may require in order to calculate the Mandatory
Costs Rate in accordance with Schedule 10 (Mandatory Costs).
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30.15 AGENCY DIVISION SEPARATE
In acting as agent under the Facility Documents for the Banks, the
Agent shall be regarded as acting through its agency division which
shall be treated as a separate entity from any other of its divisions
or departments and, notwithstanding the foregoing provisions of this
Clause 30, any information received by some other division or
department of the Agent may be treated as confidential and shall not be
regarded as having been given to the Agent's agency division.
31.31. THE BANKS AND THE L/C ISSUING BANK
31.1 BANK'S INDEMNITY
If any Borrower fails to comply with its obligations under Clause 9.1
(Borrowers' Indemnity to L/C Issuing Bank) the Agent shall make demand
on each Bank for its share of the relevant L/C Amount and, subject to
Clause 31.2 (Direct Participation)), each Bank shall indemnify the L/C
Issuing Bank for such Bank's L/C Proportion of each L/C Amount.
31.2 DIRECT PARTICIPATION
If any Bank is not permitted (by its constitutional documents or any
applicable law) to comply with Clause 31.1 (Bank's Indemnity) then such
Bank will not be obliged to comply with Clause 31.1 (Bank's Indemnity)
and shall instead be deemed to have taken, on the date such Letter of
Credit is issued (or if later, on the date such L/C Participation is
transferred or assigned to such Bank in accordance with the terms of
this Agreement), an undivided interest and participation in such Letter
of Credit in an amount equal to such Bank's L/C Proportion of such
Letter of Credit. On receipt of a demand made by the Agent in
accordance with Clause 31.1 (Bank's Indemnity), each such Bank shall
pay to the Agent (for the account of the L/C Issuing Bank) its L/C
Proportion of any L/C Amount.
31.3 OBLIGATIONS NOT DISCHARGED
Neither the obligations of each Bank in this Clause 31 nor the rights,
powers and remedies conferred upon the L/C Issuing Bank by this
Agreement or by law shall be discharged, impaired or otherwise affected
by:
31.3.1 the winding-up, dissolution, administration or re-organisation
of the L/C Issuing Bank, any Obligor or any other person or
any change in its status, function, control or ownership;
31.3.2 any of the obligations of the L/C Issuing Bank, any Borrower
or any other person under the Facility Documents, under a
Letter of Credit or under any other security taken in respect
of its obligations under the Facility Documents or under a
Letter of Credit being or becoming illegal, invalid,
unenforceable or ineffective in any respect;
31.3.3 time or other indulgence being granted or agreed to be granted
to the L/C Issuing Bank, any Borrower or any other person in
respect of its obligations under the
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Facility Documents, under a Letter of Credit or under any such
other security;
31.3.4 any amendment to, or any variation, waiver or release of, any
obligation of the L/C Issuing Bank, any Borrower or any other
person under the Facility Documents, under a Letter of Credit
or under any such other security; and
31.3.5 any other act, event or omission which, but for this Clause
31.3, might operate to discharge, impair or otherwise affect
any of the obligations of each Bank herein contained or any of
the rights, powers or remedies conferred upon the L/C Issuing
Bank by this Agreement or by law.
The obligations of each Bank herein contained shall be in addition to
and independent of every other security which the L/C Issuing Bank may
at any time hold in respect of any Letter of Credit.
31.4 SETTLEMENT CONDITIONAL
Any settlement or discharge between a Bank and the L/C Issuing Bank
shall be conditional upon no security or payment to any L/C Issuing
Bank by a Bank or any other person on behalf of a Bank being avoided or
reduced by virtue of any laws relating to bankruptcy, insolvency,
liquidation or similar laws of general application and, if any such
security or payment is so avoided or reduced, the L/C Issuing Bank
shall be entitled to recover the value or amount of such security or
payment from such Bank subsequently as if such settlement or discharge
had not occurred.
31.5 EXERCISE OF RIGHTS
The L/C Issuing Bank shall not be obliged before exercising any of the
rights, powers or remedies conferred upon it in respect of any Bank by
this Agreement or by law:
31.5.1 to take any action or obtain judgment in any court against any
Obligor;
31.5.2 to make or file any claim or proof in a winding-up or
dissolution of any Obligor; or
31.5.3 to enforce or seek to enforce any other security taken in
respect of any of the obligations of any Obligor under the
Facility Documents.
32. ASSIGNMENTS AND TRANSFERS
32.1 BINDING AGREEMENT
This Agreement shall be binding upon and enure to the benefit of each
party hereto and its or any subsequent successors and Transferees.
32.2 NO ASSIGNMENTS AND TRANSFERS BY THE OBLIGORS
No Obligor shall be entitled to assign or transfer all or any of its
rights, benefits and obligations hereunder.
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32.3 ASSIGNMENTS AND TRANSFERS BY BANKS
Subject to obtaining the prior written consent of the Guarantor (not to
be unreasonably withheld or delayed) and the L/C Issuing Bank (not to
be unreasonably withheld or delayed having regard, inter alia, to the
L/C Issuing Bank's internal policies and guidelines, commercial
position and affairs at the relevant time), any Bank may, at any time,
assign all or any of its rights and benefits under the Facility
Documents or transfer in accordance with Clause 32.5 (Transfers by
Banks) all or any of its rights, benefits and obligations hereunder to
a bank or financial institution, PROVIDED THAT (a) the Guarantor's
consent shall not be required if such assignment or transfer is to any
subsidiary or holding company, or to any subsidiary of any holding
company, of such Bank, (b) neither the Guarantor's nor the L/C Issuing
Bank's consent shall be required if such assignment or transfer is to
any other Bank and (c) if such assignment or transfer is of part only
of such Bank's rights, benefits and/or obligations hereunder, such
assignment or transfer is in a minimum amount of EUR 10,000,000 or the
equivalent thereof.
32.4 ASSIGNMENTS BY BANKS
If any Bank assigns all or any of its rights and benefits under the
Facility Documents in accordance with Clause 32.3 (Assignments and
Transfers by Banks), then, unless and until the assignee has delivered
a notice to the Agent confirming in favour of the Agent, the Arrangers,
the L/C Issuing Bank and the other Banks that it shall be under the
same obligations towards each of them as it would have been under if it
had been an original party hereto as a Bank (whereupon such assignee
shall become a party hereto as a "Bank"), the Agent, the Arrangers, the
L/C Issuing Bank and the other Banks shall not be obliged to recognise
such assignee as having the rights against each of them which it would
have had if it had been such a party hereto.
32.5 TRANSFERS BY BANKS
If any Bank wishes to transfer all or any of its rights, benefits
and/or obligations hereunder as contemplated in Clause 32.3
(Assignments and Transfers by Banks), then such transfer may be
effected by the delivery to the Agent of a duly completed Transfer
Certificate executed by such Bank and the relevant Transferee in which
event, on the later of the Transfer Date specified in such Transfer
Certificate and the fifth Business Day after (or such earlier Business
Day endorsed by the Agent on such Transfer Certificate falling on or
after) the date of delivery of such Transfer Certificate to the Agent:
32.5.1 to the extent that in such Transfer Certificate the Bank party
thereto seeks to transfer by novation its rights, benefits and
obligations hereunder, each of the Obligors and such Bank
shall be released from further obligations towards one another
hereunder and their respective rights against one another
shall be cancelled (such rights and obligations being referred
to in this Clause 32.5 as "DISCHARGED RIGHTS AND
OBLIGATIONS");
32.5.2 each of the Obligors and the Transferee party thereto shall
assume obligations
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towards one another and/or acquire rights against one another
which differ from such discharged rights and obligations only
insofar as such Obligor and such Transferee have assumed
and/or acquired the same in place of such Obligor and such
Bank;
32.5.3 the Agent, the Arrangers, such Transferee, the L/C Issuing
Bank and the other Banks shall acquire the same rights and
benefits and assume the same obligations between themselves as
they would have acquired and assumed had such Transferee been
an original party hereto as a Bank with the rights, benefits
and/or obligations acquired or assumed by it as a result of
such transfer and to that extent the Agent, the Arrangers, the
L/C Issuing Bank and the relevant Bank shall each be released
from further obligations to each other hereunder; and
32.5.4 such Transferee shall become a party hereto as a "Bank".
32.6 ASSIGNMENT AND TRANSFER FEES
On the date upon which an assignment takes effect pursuant to Clause
32.5 (Assignments by Banks) or a transfer takes effect pursuant to
Clause 32.6 (Transfers by Banks) the relevant assignee or Transferee
shall pay to the Agent for its own account a fee of EUR 1,500 (but not,
for the avoidance of doubt, any further fee solely in relation to such
assignment or transfer).
32.7 DISCLOSURE OF INFORMATION
Any Bank may disclose to any person:
32.7.1 to (or through) whom such Bank assigns or transfers (or may
potentially assign or transfer) all or any of its rights,
benefits and obligations hereunder;
32.7.2 with (or through) whom such Bank enters into (or may
potentially enter into) any sub-participation in relation to,
or any other transaction under which payments are to be made
by reference to, this Agreement or any Obligor; or
32.7.3 to whom information may be required to be disclosed by any
applicable law,
such information about any Obligor, the Group, any Unconsolidated
Affiliate and the Facility Documents as such Bank shall consider
appropriate (PROVIDED THAT (in the case of sub-clauses 32.7.1 and
32.7.2) such person enters into a confidentiality agreement in relation
to such information on terms reasonably acceptable to such Bank).
32.8 NOTIFICATION
On the last Business Day of each calendar month, the Agent shall notify
the Guarantor and the Banks of any assignment or transfer completed
during such calendar month pursuant to this Clause 32 (Assignments and
Transfers).
32.9 LIMITATION
If any Bank assigns or transfers all or any of its rights benefits
and/or obligations
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hereunder pursuant to this clause 32 no Obligor shall be obliged to
make any additional payment to the relevant assignee or Transferee
pursuant to Clause 11 (Taxes) or make any payment by way of
indemnification under Clause 13 (Increased Costs) in excess of the
additional payment it would have been required to make pursuant to
Clause 11 (Taxes) or in excess of the amount it would have been obliged
to pay by way of indemnification under Clause 13 (Increased Costs) in
the absence of such assignment or transfer.
33. CALCULATIONS AND EVIDENCE OF DEBT
33.1 BASIS OF ACCRUAL
Interest, letter of credit commission and commitment commission shall
accrue from day to day and shall be calculated on the basis of a year
of 360 days (or, in the case of any Advance or Letter of Credit
denominated in sterling, 365 days or, in any case where market practice
differs, in accordance with market practice) and the actual number of
days elapsed.
33.2 PROPORTIONATE REDUCTIONS
Any repayment of an Advance denominated in an Optional Currency shall
reduce the amount of such Advance by the amount of such Optional
Currency repaid and shall reduce the Euro Amount of such Advance
proportionately.
33.3 QUOTATIONS
If on any occasion a Reference Bank or Bank fails to supply the Agent
with a quotation required of it under the foregoing provisions of this
Agreement, the rate for which such quotation was required shall be
determined from those quotations which are supplied to the Agent,
PROVIDED THAT, in relation to determining EURIBOR or, as the case may
be, LIBOR, this Clause 33.3 shall not apply if only one Reference Bank
supplies a quotation.
33.4 EVIDENCE OF DEBT
Each Bank shall maintain in accordance with its usual practice accounts
evidencing the amounts from time to time lent by and owing to it
hereunder.
33.5 CONTROL ACCOUNTS
The Agent shall maintain on its books a control account or accounts in
which shall be recorded (a) the amount and the Euro Amount of any
Advance or Unpaid Sum and the face amount and the Euro Amount of any
Letter of Credit issued and each Bank's share therein, (b) the amount
of all principal, interest and other sums due or to become due from an
Obligor and each Bank's share therein and (c) the amount of any sum
received or recovered by the Agent hereunder and each Bank's share
therein.
33.6 PRIMA FACIE EVIDENCE
In any legal action or proceeding arising out of or in connection with
this Agreement, the entries made in the accounts maintained pursuant to
Clause 33.4 (Evidence of Debt) and Clause 33.5 (Control Accounts) shall
be prima facie evidence in the absence of manifest error of the
existence and amounts of the specified obligations of the Obligors.
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33.7 ROUNDING AND OTHER CONSEQUENTIAL CHANGES
33.7.1 Without prejudice and in addition to any method of conversion
or rounding prescribed by any EMU Legislation and without
prejudice to (a) the liabilities for indebtedness of any
Obligor to the Banks under or pursuant to the Facility
Documents or (b) the Bank's Commitments, any reference in the
Facility Documents to a minimum amount (or an integral
multiple thereof) in a national currency of a Subsequent
Participant to be paid to or by the Agent shall, immediately
upon it becoming a Subsequent Participant, be replaced by a
reference to such reasonably comparable and convenient amount
(or an integral multiple thereof) in the euro unit as the
Agent may specify.
30.7.2 Save as expressly provided in this Clause 30.7, the Facility
Documents shall be subject to such reasonable changes of
construction as the Agent and the Borrowers may agree at the
relevant time to be appropriate to reflect the adoption of the
euro in any Participating Member State and any relevant market
conventions or practices relating to the euro.
33.8 CERTIFICATES OF BANKS
A certificate of a Bank as to (a) the amount by which a sum payable to
it hereunder is to be increased under Clause 11.1 (Tax Gross-up), (b)
the amount for the time being required to indemnify it against any such
cost, payment or liability as is mentioned in Clause 11.2 (Tax
Indemnity) or Clause 13.1 (Increased Costs) or (c) the amount of any
credit, relief, remission or repayment as is mentioned in Clause 12.3
(Tax Credit Payment) or Clause 12.4 (Tax Credit Clawback) shall, in the
absence of manifest error, be prima facie evidence of the existence and
amounts of the specified obligations of the Obligors.
33.9 AGENT'S CERTIFICATES
A certificate of the Agent as to the amount at any time due from any
Borrower hereunder or the amount which, but for any of the obligations
of any Borrower hereunder being or becoming void, voidable,
unenforceable or ineffective, at any time would have been due from any
Borrower hereunder shall, in the absence of manifest error, be
conclusive for the purposes of Clause 21 (Guarantee and Indemnity).
33.10 LETTERS OF CREDIT
A certificate of the L/C Issuing Bank as to the amount paid out by such
L/C Issuing Bank in respect of any Letter of Credit shall, save for
manifest error, be prima facie evidence of the payment of such amounts
in any legal action or proceedings arising in connection therewith.
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34. ADDITIONAL BORROWERS
34.1 REQUEST FOR ADDITIONAL BORROWER
The Guarantor may request that any of its Consolidated Affiliates
having as its Relevant Jurisdiction a European country become an
Additional Borrower by delivering to the Agent a Borrower Accession
Memorandum duly executed by the Guarantor and such subsidiary, together
with the documents and other evidence listed in Part B of Schedule 3
(Additional Conditions Precedent) in relation to such Consolidated
Affiliate.
34.2 BORROWER CONDITIONS PRECEDENT
A company, in respect of which the Guarantor has delivered a Borrower
Accession Agreement to the Agent, shall become an Additional Borrower
and assume all the rights, benefits and obligations of a Borrower as if
it had been an Original Borrower on the date on which the Agent
notifies the Guarantor that:
34.2.1 each Bank gives its consent (not to be unreasonably withheld
or delayed PROVIDED THAT it shall not be unreasonable if any
Bank withholds or delays such consent as a result of
application of taxation matters or its internal credit
policies) to the request in respect of such Consolidated
Affiliate; and
34.2.2 the Agent has received, in form and substance satisfactory to
it, all documents and other evidence listed in Part B of
Schedule 3 (Additional Conditions Precedent) in relation to
such subsidiary,
unless on such date an Event of Default or Potential Event of Default
is continuing or would occur as a result of such Consolidated Affiliate
becoming an Additional Borrower.
34.3 RESIGNATION OF A BORROWER
If at any time a Borrower is under no actual or contingent obligation
under or pursuant to any Facility Documents, the Guarantor may request
that such Borrower shall cease to be a Borrower by delivering to the
Agent a resignation notice. Such resignation notice shall be accepted
by the Agent on the date on which it notifies the Guarantor that it is
satisfied that such Borrower is under no actual or continent obligation
under or pursuant to any Facility Document and such Borrower shall
immediately cease to be a Borrower and shall have no further rights,
benefits or obligations under the Facility Documents save for those
which arose prior to such date.
35. REMEDIES AND WAIVERS, PARTIAL INVALIDITY
35.1 REMEDIES AND WAIVERS
No failure to exercise, nor any delay in exercising, on the part of any
Finance Party, any right or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any right or
remedy prevent any further or other exercise thereof or the exercise of
any other right or remedy. The rights and remedies herein provided are
cumulative and not exclusive of any rights or remedies provided by law.
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35.2 PARTIAL INVALIDITY
If, at any time, any provision hereof is or becomes illegal, invalid or
unenforceable in any respect under the law of any jurisdiction, neither
the legality, validity or enforceability of the remaining provisions
hereof nor the legality, validity or enforceability of such provision
under the law of any other jurisdiction shall in any way be affected or
impaired thereby.
36. NOTICES
36.1 COMMUNICATIONS IN WRITING
Each communication to be made hereunder shall be made in writing and,
unless otherwise stated, shall be made by fax or letter.
36.2 ADDRESSES
Any communication or document to be made or delivered pursuant to this
Agreement shall (unless the recipient of such communication or document
has, by fifteen days' written notice to the Agent, specified another
address or fax number) be made or delivered to the address or fax
number:
36.2.1 in the case of the Original Borrowers, the Guarantor and the
Agent, identified with its name below; and
36.2.2 in the case of each Bank or the L/C Issuing Bank, notified in
writing to the Agent prior to the date hereof (or, in the case
of a Transferee, at the end of the Transfer Certificate to
which it is a party as Transferee);
36.2.3 in the case of each Additional Borrower, in the relevant
Borrower Accession Agreement,
PROVIDED THAT (save in the case of a Bank with two Facility Offices)
not more than one address may be specified by each party pursuant to
this Clause 36.2 at any time.
36.3 DELIVERY
Any communication or document to be made or delivered by one person to
another pursuant to the Facility Documents shall:
36.3.1 if by way of fax, be deemed to have been received when
transmission has been completed; and
36.3.2 if by way of letter, be deemed to have been delivered when
left at the relevant address or,
PROVIDED THAT any communication or document to be made or delivered to
the Agent shall be effective only when received and then only if the
same is expressly marked for the
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attention of the department or officer identified with the Agent's
signature below (or such other department or officer as the Agent shall
from time to time specify for this purpose).
36.4 NOTIFICATION OF CHANGES
Promptly upon receipt of notification of a change of address or fax
number pursuant to Clause 36.2 (Addresses) or changing its own address
or fax number, the Agent shall notify the other parties hereto of such
change.
36.5 ENGLISH LANGUAGE
Each communication and document made or delivered by one party to
another pursuant to this Agreement shall be in the English language or
accompanied by a translation thereof into English certified (by an
officer of the person making or delivering the same) as being a true
and accurate translation thereof.
37. COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one and the same instrument.
38. AMENDMENTS
38.1 AMENDMENTS
If the Agent has the prior consent of an Instructing Group, the Agent
and the Obligors may from time to time agree in writing to amend the
Facility Documents or to waive, prospectively or retrospectively, any
of the requirements of the Facility Documents and any amendments or
waivers so agreed shall be binding on all the Finance Parties and the
Obligors, PROVIDED THAT no such waiver or amendment shall subject any
party hereto to any new or additional obligations without the consent
of such party.
38.2 AMENDMENTS REQUIRING THE CONSENT OF ALL THE BANKS
An amendment or waiver which relates to:
38.2.1 Clause 29 (Sharing) or this Clause 38;
38.2.2 reducing the proportion of any amount received or recovered in
respect of any amount due from the Borrowers hereunder to
which any Bank is entitled;
38.2.3 a change in the principal amount of or currency of any Advance
or Letter of Credit, or extending the term of the Facility or
the Term of any Advance or Letter of Credit;
38.2.4 a reduction in the Applicable Margin or the L/C Commission
Rate or a change in the amount or currency of any payment of
interest, fees or any other amount payable
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hereunder to any Finance Party or deferral of the date for
payment thereof;
38.2.5 Clause 18 (Financial Condition) or Clause 19.7 (Negative
Pledge);
38.2.6 the conditions set out in sub-clause 3.4.4 of Clause 3.4
(Drawdown Conditions) if an Event of Default or Potential
Event of Default which relates to a Repeated Representation,
Clause 18.1 (Financial Condition) or Clause 19.7 (Negative
Pledge) is continuing;
38.2.7 the definition of Event of Default, Instructing Group or
Potential Event of Default;
38.2.8 any provision which contemplates the need for the consent or
approval of all the Banks;or
38.2.9 any release of the Guarantor from any of its obligations under
Clause 21 (Guarantee and Indemnity),
shall not be made without the prior consent of all the Banks.
38.3 EXCEPTIONS
Notwithstanding any other provisions hereof, neither the Agent nor the
L/C Issuing Bank shall be obliged to agree to any such amendment or
waiver if the same would:
38.3.1 (in respect of the Agent only) amend or waive this Clause 38,
Clause 23 (Costs and Expenses) or Clause 30 (The Agent, the
Arrangers, the Banks and the L/C Issuing Bank); or
38.3.2 otherwise amend or waive any of the Agent's rights or the L/C
Issuing Bank's rights hereunder or subject the Agent or the
L/C Issuing Bank or the Arrangers to any additional
obligations hereunder.
39. GOVERNING LAW
This Agreement shall be governed by, and construed in accordance with,
English law.
40. JURISDICTION
40.1 ENGLISH COURTS
Each of the parties hereto irrevocably agrees for the benefit of each
of the Finance Parties that the courts of England shall have
jurisdiction to hear and determine any suit, action or proceedings, and
to settle any disputes, which may arise out or in connection with this
Agreement (respectively "PROCEEDINGS" and "DISPUTES") and, for such
purposes, irrevocably submits to the jurisdiction of such courts.
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40.2 NEW YORK COURTS
Each of the parties hereto irrevocably agrees that the courts of the
State of New York and the courts of the United States of America, in
each case sitting in the County of New York, shall have jurisdiction to
hear and determine any Proceedings and to settle any Disputes and, for
such purposes, irrevocably submits to the jurisdiction of such courts.
40.3 WAIVER OF JURY TRIAL
Each of the parties hereto irrevocably waives, to the extent permitted
by applicable law, trial by jury in any litigation in any court with
respect to, in connection with, or arising out of this Agreement or the
validity, protection, interpretation, or enforcement hereof.
40.4 CONVENIENT FORUM
The parties agree that the courts of England and the courts of New York
are the most appropriate and convenient courts to settle Disputes
between them and, accordingly, that they will not argue to the
contrary.
40.5 NON-EXCLUSIVE JURISDICTION
This Clause 40 is for the benefit of the Finance Parties only. As a
result and notwithstanding Clause 40.1 (English Courts) and Clause 40.2
(New York Courts), it does not prevent any Finance Party from taking
proceedings relating to a Dispute ("PROCEEDINGS") in any other courts
with jurisdiction. To the extent allowed by law, the Finance Parties
may take concurrent Proceedings in any number of jurisdictions.
40.6 SERVICE OF PROCESS
Each Obligor agrees that the documents which start any Proceedings and
any other documents required to be served in relation to those
Proceedings may be served on it:
40.6.1 in the case of the Original Borrowers, on ProLogis
Developments Limited at Kingspark House, 1 Monkspath Hall
Road, Solihull, West Midlands B90 4FY, England, or, if
different, its registered office;
40.6.2 in the case of the Guarantor, on ProLogis Developments Limited
at Kingspark House, 1 Monkspath Hall Road, Solihull, West
Midlands B90 4FY, England, or, if different, its registered
office; and
40.6.3 in the case of each Additional Borrower, on the person and at
the address specified in the relevant Borrower Accession
Agreement.
If the appointment of the person mentioned in this Clause 40.6 ceases
to be effective, the relevant Obligor shall immediately appoint another
person in England for service of process on its behalf in England. If
an Obligor fails to do so (and such failure continues for a period of
not less than fourteen days), the Agent shall be entitled to appoint
such a person by notice to such Obligor. Nothing contained herein shall
restrict the right to serve process in any other
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manner allowed by law. This Clause 40.6 applies to Proceedings in
England and to Proceedings elsewhere.
AS WITNESS the hands of the duly authorised representatives of the parties
hereto the day and year first before written.
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SCHEDULE 1
THE BANKS
BANK COMMITMENT (EUR)
ABN AMRO Bank N.V. 25,500,000
Societe Generale 25,500,000
Credit Local de France 25,000,000
Fortis Bank (Nederland) N.V. 25,000,000
AIB International Finance 18,000,000
Bank of America, N.A. 18,000,000
Bankhaus Lobbecke & Co. 18,000,000
Barclays Bank PLC 18,000,000
Credit Commercial de France 18,000,000
Credit Communal de Belgique S.A. 18,000,000
Credit Foncier de France 18,000,000
Credit Lyonnais 18,000,000
Den Danske Bank Aktieselskab 18,000,000
Dresdner Bank Luxembourg S.A. 18,000,000
Landesbank Rheinland-Pfalz International S.A. 18,000,000
Vereins- und Westbank AG 16,000,000
Banque Artesia Nederland N.V. 10,000,000
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SCHEDULE 2
FORM OF TRANSFER CERTIFICATE
To:
TRANSFER CERTIFICATE
relating to the agreement (as from time to time amended, varied, novated or
supplemented, the "Facility Agreement") dated 17 December 1999 whereby a EUR
325,000,000 multicurrency revolving credit facility was made available to PLD
Europe Finance B.V. and PLD UK Finance B.V. as original borrowers under the
guarantee of ProLogis Trust by a group of banks on whose behalf ABN AMRO Bank
N.V. acted as agent in connection therewith.
1. Terms defined in the Facility Agreement shall, subject to any contrary
indication, have the same meanings herein. The terms Bank and
Transferee are defined in the schedule hereto.
2. The Bank (a) confirms that the details in the schedule hereto under the
heading "BANK'S COMMITMENT", "LETTERS OF CREDIT" or "ADVANCE(S)"
accurately summarises its Commitment and/or, as the case may be, its
participation in, and the Term and Repayment Date of, one or more
existing Advances or Letters of Credit and (b) requests the Transferee
to accept and procure the transfer by novation to the Transferee of the
portion specified in the schedule hereto of, as the case may be, its
Commitment and/or its participation in such Advance(s) and/or Letters
of Credit by counter-signing and delivering this Transfer Certificate
to the Agent at its address for the service of notices specified in the
Facility Agreement.
3. The Transferee hereby requests the Agent to accept this Transfer
Certificate as being delivered to the Agent pursuant to and for the
purposes of Clause 31.6 (Transfers by Banks) of the Facility Agreement
so as to take effect in accordance with the terms thereof on the
Transfer Date or on such later date as may be determined in accordance
with the terms thereof.
4. The Transferee confirms that it has received a copy of the Facility
Agreement together with such other information as it has required in
connection with this transaction and that it has not relied and will
not hereafter rely on the Bank to check or enquire on its behalf into
the legality, validity, effectiveness, adequacy, accuracy or
completeness of any such information and further agrees that it has not
relied and will not rely on the Bank to assess or keep under review on
its behalf the financial condition, creditworthiness, condition,
affairs, status or nature of the Obligors.
5. The Transferee hereby undertakes with the Bank and each of the other
parties to the
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Facility Agreement that it will perform in accordance with their terms
all those obligations which by the terms of the Facility Agreement will
be assumed by it after delivery of this Transfer Certificate to the
Agent and satisfaction of the conditions (if any) subject to which this
Transfer Certificate is expressed to take effect.
6. The Bank makes no representation or warranty and assumes no
responsibility with respect to the legality, validity, effectiveness,
adequacy or enforceability of the Facility Agreement or any document
relating thereto and assumes no responsibility for the financial
condition of the Obligors or for the performance and observance by the
Obligors of any of its obligations under the Facility Agreement or any
document relating thereto and any and all such conditions and
warranties, whether express or implied by law or otherwise, are hereby
excluded.
7. The Bank hereby gives notice that nothing herein or in the Facility
Agreement (or any document relating thereto) shall oblige the Bank to
(a) accept a re-transfer from the Transferee of the whole or any part
of its rights, benefits and/or obligations under the Facility Agreement
transferred pursuant hereto or (b) support any losses directly or
indirectly sustained or incurred by the Transferee for any reason
whatsoever including the non-performance by an Obligor or any other
party to the Facility Agreement (or any document relating thereto) of
its obligations under any such document. The Transferee hereby
acknowledges the absence of any such obligation as is referred to in
(a) or (b).
8. This Transfer Certificate and the rights, benefits and obligations of
the parties hereunder shall be governed by and construed in accordance
with English law.
THE SCHEDULE
1. Bank:
2. Transferee:
3. Transfer Date:
4. Commitment:
Bank's Commitment Portion Transferred
5. Advance(s):
Amount of Term and
Bank's Participation Repayment Date Portion Transferred
6. Letter(s) of Credit Term and
Bank's L/C Participation Expiry Date Portion Transferred
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[Transferor Bank] [Transferee Bank]
By: By:
Date: Date:
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SCHEDULE 3
PART A
INITIAL CONDITIONS PRECEDENT
1. In relation to each Original Borrower and the Guarantor (each an
"ORIGINAL OBLIGOR")
(a) a copy, certified as at the date of this Agreement a true and
up-to-date copy by an Authorised Signatory of such Original
Obligor, of the constitutional documents of such Original
Obligor;
(b) a copy, certified as at the date of this Agreement a true and
up-to-date copy by an Authorised Signatory of such Original
Obligor, of a board resolution of such Original Obligor
approving the execution, delivery and performance of this
Agreement and the terms and conditions hereof and authorising
a named person or persons to sign this Agreement and any
documents to be delivered by such Original Obligor pursuant
hereto;
(c) a certificate of an Authorised Signatory of such Original
Obligor setting out the names and signatures of the persons
authorised to sign, on behalf of such Original Obligor, this
Agreement and any documents to be delivered by such Original
Obligor pursuant hereto; and
(d) a certificate of an Authorised Signatory of such Original
Obligor confirming that utilisation of the Facility would not
breach any restriction of its borrowing powers.
2. A copy, certified a true copy by or on behalf of each Original
Borrower, of each such law, decree, consent, licence, approval,
registration or declaration as is, in the opinion of counsel to the
Banks, necessary to render this Agreement legal, valid, binding and
enforceable, to make this Agreement admissible in evidence in each
Original Obligor's Relevant Jurisdiction and to enable each of the
Original Obligors to perform its obligations hereunder.
3. An opinion of the Banks' US Counsel satisfactory in form and substance
to the Agent.
4. An opinion of the Banks' Netherlands Counsel satisfactory in form and
substance to the Agent.
5. An opinion of Xxxxxxxx Chance, solicitors to the Agent, in
substantially the form distributed to the Banks prior to the signing of
this Agreement.
6. Evidence that the fees, costs and expenses required to be paid by the
Guarantor pursuant to Clause 22.2 (Arrangement Fee), Clause 22.3
(Agency Fee) and Clause 23.3 (Stamp Taxes) (if any) have been paid or
(in relation to the fees referred to in Clause 22.2
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(Arrangement Fee) and Clause 22.3 (Agency Fee)) will be paid in
accordance with the terms set out in the relevant fee letters relating
thereto and evidence that the costs and expenses required to be paid by
the Guarantor pursuant to Clause 23.1 (Transaction Expenses) have been
or will be paid..
7. A copy, certified a true copy by an Authorised Signatory of each
Original Obligor, of the Original Financial Statements of such Original
Obligor.
8. Evidence that ProLogis Kingspark Developments Limited has agreed to act
as the agent of the Original Obligors for the service of process in
England.
9. Evidence, in form and substance satisfactory to the Agent, that the
Guarantor is in compliance with the financial covenants contained in
Clause 18 (Financial Conditions) of this Agreement (such evidence to be
constituted by a statement from a duly Authorised Signatory of the
Guarantor as to such compliance as at 30 September, 1999) and Section 9
(Financial Covenants) of the NationsBank Facility Agreement (such
evidence to be constituted by a copy of the most recent compliance
certificate delivered pursuant to the NationsBanks Facility Agreement).
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SCHEDULE 3
PART B
ADDITIONAL CONDITIONS PRECEDENT
1. A copy, certified as at the date of the relevant Borrower Accession
Agreement a true and up-to-date copy by an Authorised Signatory of the
proposed Additional Borrower, of the constitutional documents of such
proposed Additional Borrower.
2. A copy, certified as at the date of the relevant Borrower Accession
Agreement a true and up-to-date copy by an Authorised Signatory of the
proposed Additional Borrower, of a board resolution of such proposed
Additional Borrower such proposed Additional Borrower to this Agreement
and the performance of its obligations under the Facility Documents and
authorising a named person or persons to sign such Borrower Accession
Agreement, any other Facility Document and any other documents to be
delivered by such proposed Additional Borrower pursuant thereto.
3. A certificate of an Authorised Signatory of the proposed Additional
Obligor setting out the names and signatures of the person or persons
authorised to sign, on behalf of such proposed Additional Obligor, the
Borrower Accession Agreement, any other Facility Documents and any
other documents to be delivered by such proposed Additional Borrower
pursuant thereto.
4. A certificate of an Authorised Signatory of the proposed Additional
Borrower confirming that the utilisation of the Facility and the
granting of a guarantee and indemnity pursuant to the terms of the
Facility Agreement would not breach any restriction of its memorandum
of association.
5. If the proposed Additional Borrower is incorporated in a jurisdiction
other than England and Wales or The Netherlands, a copy, certified a
true copy by or on behalf of the proposed Additional Borrower, of each
such law, decree, consent, licence, approval, registration or
declaration as is, in the opinion of counsel to the Banks, necessary to
render the relevant Borrower Accession Agreement legal, valid, binding
and enforceable, to make such Accession Memorandum admissible in
evidence in the proposed Additional Borrower's jurisdiction of
incorporation and to enable the proposed Additional Borrower to perform
its obligations thereunder and under the other Facility Documents.
6. A copy, certified a true copy by an Authorised Signatory of the
proposed Additional Borrower, of its most recent Financial Statements,
if available.
7. If the proposed Additional Borrower is incorporated in a jurisdiction
other than England and Wales or The Netherlands, an opinion of the
Banks' local counsel in such Additional Borrower's Relevant
Jurisdiction in form and substance satisfactory to the Agent.
8. If the proposed Additional Borrower is incorporated in England and
Wales, a letter from
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the Guarantor to the Agent (attaching supporting advice from the
Guarantor's English solicitors) confirming that such proposed
Additional Borrower is not prohibited by section 151 of the Companies
Xxx 0000 from entering into the Facility Documents and performing its
obligations thereunder.
9. An opinion of Xxxxxxxx Chance, solicitors to the Agent, in form and
substance satisfactory to the Agent.
10. If the proposed Additional Borrower is incorporated in a jurisdiction
other than England and Wales, evidence that the process agent specified
in the relevant Borrower Accession Agreement has agreed to act as its
agent for the service of process in England.
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SCHEDULE 4
NOTICE OF DRAWDOWN
From: [Name of Borrower]
To: ABN AMRO Bank N.V.
Dated:
Dear Sirs,
1. We refer to the agreement (the "Facility Agreement") dated 17 December
1999 and made between PLD Europe Finance B.V. and PLD UK Finance B.V.
as original borrowers under the guarantee of ProLogis Trust, ABN AMRO
Bank N.V. and Societe Generale as arranger and co-arranger, ABN AMRO
Bank N.V. as facility agent and the financial institutions named
therein as banks. Terms defined in the Facility Agreement shall have
the same meaning in this notice.
2. This notice is irrevocable.
3. We hereby give you notice that, pursuant to the Facility Agreement and
upon the terms and subject to the conditions contained therein, we wish
[an Advance to be made to us] [a Letter of Credit to be issued] as
follows:
(a) Currency and Amount:
(b) Utilisation Date:
(c) Term:
[4. If it is not possible, pursuant to Clause 3.3 (Conditions for Drawing
in an Optional Currency) of the Facility Agreement, for the [Advance to
be made] [Letter of Credit to be issued] in the currency specified, we
would wish the [Advance[ [Letter of Credit] to be denominated in euro
or sterling.]
[5.] We confirm that, at the date hereof, the Repeated Representations are
true in all material respects and no Event of Default, or Potential
Event of Default is continuing.
[6.] [The proceeds of this drawdown should be credited to [insert account
details]. [The Letter of Credit should be issued in favour of [name of
recipient] in the form attached and delivered to the recipient at
[address of recipient]. The purpose of its issue is [ ].]
Yours faithfully
---------------------------------------
Authorised Signatory
for and on behalf of [Name of Borrower]
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SCHEDULE 5
FORM OF COMPLIANCE CERTIFICATE
To: ABN AMRO Bank N.V.
Date:
Dear Sirs,
We refer to an agreement (the "Facility Agreement" dated 17 December, 1999 and
made between PLD Europe Finance B.V. and PLD UK Finance B.V. as original
borrowers, ProLogis Trust as guarantor, ABN AMRO Bank N.V. and Societe Generale
as arranger and co-arranger, ABN AMRO Bank N.V. as facility agent and the
financial institutions defined therein as Banks.
Terms defined in the Facility Agreement shall bear the same meaning herein.
We confirm that:
[Insert details of financial covenants]
[Signed:
---------------------------- ------------------------------
Director Director
OR
-----------------------------------
for and on behalf of
[name of auditors of the Guarantor]
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SCHEDULE 6
CONSOLIDATED AND UNCONSOLIDATED AFFILIATES
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SCHEDULE 7
FORM OF BORROWER ACCESSION AGREEMENT
To: ABN AMRO Bank N.V.
From: [New Borrower]
and
ProLogis Trust
Dated:
Dear Sirs,
1. We refer to a EURO 325,000,000 multicurrency revolving credit facility
agreement (the "FACILITY AGREEMENT") dated 17 December, 1999 and made
between PLD Europe Finance B.V. and PLD UK Finance B.V. as original
borrowers (the "ORIGINAL BORROWERS") under the guarantee of ProLogis
Trust (the "GUARANTOR"), ABN AMRO Bank N.V. and Societe Generale as
arranger and co-arranger, ABN AMRO Bank N.V. as facility agent and the
Banks (as defined in the Facility Agreement).
2. Terms defined in the Facility Agreement shall bear the same meanings
herein.
3. Each of the Guarantor and each Borrower requests that [Subsidiary]
become an Additional Borrower pursuant to Clause 34 (Additional
Borrowers) of the Facility Agreement.
4. [Subsidiary] is a company duly organised under the laws of [name of
relevant jurisdiction].
5. [Subsidiary] confirms that it has received from the Guarantor or, as
the case may be, a Borrower a true and up-to-date copy of the Facility
Agreement and a list of the Borrowers as at the date hereof.
6. [Subsidiary] undertakes, upon its becoming a Borrower, to perform all
the obligations expressed to be undertaken under the Facility Agreement
by a Borrower and agrees that it shall be bound by the Facility
Agreement in all respects as if it had been an original party thereto
as a Borrower.
7. Each of the Guarantor and the Borrowers:
(a) repeats the Repeated Representations; and
(b) confirms that no Event of Default or Potential Event of
Default is continuing or
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would occur as a result of [Subsidiary] becoming an Additional
Borrower.
8. [Subsidiary] makes the representations and warranties set out in Clause
16 (Representations) of the Facility Agreement.
9. [Subsidiary's] administrative details are as follows:
Address:
Fax No.:
[10. PROCESS AGENT*
[Subsidiary] agrees that the documents which start any Proceedings and
any other documents required to be served in relation to those
Proceedings may be served on it at [address of Subsidiary's place of
business in England] or at any address in Great Britain at which
process may be served on it in accordance with Part XXIII of the
Companies Act 1985] / [on [name of process agent in England] at
[address of process agent] or, if different, its registered office.] If
[[Subsidiary] ceases to have a place of business in Great Britain]/
[the appointment of the person mentioned above ceases to be effective],
[Subsidiary] shall immediately appoint another person in England to
accept service of process on its behalf in England. Nothing contained
herein shall restrict the right to serve process in any other manner
allowed by law. This applies to Proceedings in England and to
Proceedings elsewhere.]
11. This Agreement shall be governed by English law.
[Guarantor] [Borrowers]
By: By:
------------------------- ----------------------------
[Subsidiary]
By:
-------------------------
* This clause is required only if the acceding Borrower is not incorporated in
England or Wales.
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SCHEDULE 8
MANDATORY COSTS
1. The Mandatory Cost Rate is an addition to the interest rate to
compensate Banks for the cost of compliance with (a) the requirements
of the Bank of England and/or the Financial Services Authority (or, in
either case, any other authority which replaces all or any of its
functions) or (b) the requirements of the European Central Bank.
2. On the first day of each Term (or as soon as possible thereafter) the
Agent shall calculate, as a percentage rate, a rate (the "ADDITIONAL
COSTS RATE") for each Bank, in accordance with the formulae set out in
paragraph 4 below. The Mandatory Cost Rate will be calculated by the
Agent as a weighted average of the Banks' additional costs rates
(weighted in proportion to the percentage participation of each Bank in
the relevant Advance) and will be expressed as a percentage rate per
annum.
3. The additional costs rate for any Bank lending from a Facility Office
in a Participating Member State will be the percentage notified by that
Bank to the Agent as a cost of complying with the minimum reserve
requirements of the European Central Bank.
4. The additional cost rate for any Bank lending from a Facility Office in
England will be calculated by the Agent as follows:
(a) in relation to sterling Advances:
AB + C (B - D) + E x 0.01 per cent. per annum
-------------------------
100-(A+C)
(b) in relation to Advances in any currency other than sterling:
E x 0.01 per cent. per annum
--------
300
Where:
A is the percentage of eligible liabilities (assuming these to
be in excess of any stated minimum) which that Bank is from
time to time required to maintain as an interest free cash
ratio deposit with the Bank of England to comply with cash
ratio requirements.
B is the percentage rate of interest (excluding the Applicable
Margin and the Mandatory Cost Rate) payable for the relevant
Term on the Advance.
C is the percentage (if any) of eligible liabilities which that
Bank is required from
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time to time to maintain as interest bearing special deposits
with the Bank of England.
D is the percentage rate per annum payable by the Bank of
England to the Agent on interest bearing special deposits.
E is the rate of charge payable by the Bank to the Financial
Services Authority pursuant to the Fee Regulations (but, for
this purpose, ignoring any minimum fee requirement pursuant to
the Fee Regulations) and expressed in pounds per ,1,000,000 of
the Fee Base of that Bank.
5. For the purposes of this Schedule:
(a) "ELIGIBLE LIABILITIES" and "SPECIAL DEPOSITS" have the
meanings given to them from time to time under or pursuant to
the Bank of England Act 1998 or (as may be appropriate) by the
Bank of England;
(b) "FEE REGULATIONS" means the Banking Supervision (Fees)
Regulations 1999 or such other law as may be in force from
time to time in respect of the payment of fees for banking
supervision; and
(c) "FEE BASE" has the meaning given to it, and will be calculated
in accordance with, the Fee Regulations.
6. In application of the above formulae, A, B, C and D will be included in
the formulae as percentages (i.e. 5 per cent. will be included in the
formula as 5 and not as 0.05). A negative result obtained by
subtracting D from B shall be taken as zero. The resulting figures
shall be rounded to four decimal places.
7. Each Bank shall supply any information required by the Agent for the
purpose of calculating the above formulae. In particular, but without
limitation, each Bank shall supply the following information in writing
on or prior to the date on which it becomes a Bank:
(a) its jurisdiction of incorporation and the jurisdiction of its
Facility Office; and
(b) such other information that the Agent may reasonably require
for such purpose.
Each Bank shall promptly notify the Agent in writing of any change to
the information provided by it pursuant to this paragraph.
8. The percentages or rates of charge of each Bank for the purpose of A, C
and E above shall be determined by the Agent based upon the information
supplied to it pursuant to paragraph 6 above and on the assumption
that, unless a Bank notifies the Agent to the
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contrary, each Bank's obligations in relation to cash ratio deposits,
special deposits and the Fee Regulations are the same as those of a
typical bank from its jurisdiction of incorporation with a Facility
Office in the same jurisdiction as its Facility Office.
The Agent shall have no liability to any person if such determination
results in an additional costs rate which over or under compensates any
Bank and shall be entitled to assume that the information provided by
any Bank pursuant to paragraph 6 above is true and correct in all
respects.
9. The Agent shall distribute the additional amounts received pursuant to
the Mandatory Cost Rate to the Banks on the basis of the additional
costs rate for each Bank, in accordance with the above formulae and
based on the information provided by each Bank pursuant to paragraph 6
above.
10. Any determination by the Agent pursuant to this Schedule in relation to
a formula, the Mandatory Cost Rate, an additional costs rate or any
amount payable to a Bank shall, in the absence of manifest error, be
conclusive and binding on all parties hereto.
11. The Agent may from time to time, after consultation with the Guarantor
and the Banks, determine and notify to all parties any amendments or
variations which are required to be made to any of the formulae set out
above in order to comply with any change in law or any requirements
from time to time imposed by the Bank of England or the Financial
Services Authority (or, in either case, any other authority which
replaces all or any of its functions) and any such determination shall,
in the absence of manifest error, be conclusive and binding on all
parties hereto.
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SIGNATURES
THE ORIGINAL BORROWERS
PLD UK FINANCE B.V.
By:
Address: Xxxxxxxxxxx 00 -00
0000 XX Xxxxxxx-Xxxx
Xxxxxxxxx
Xxx Xxxxxxxxxxx
Tel: x00 00 0000 0000
Fax: x00 00 0000 0000
PLD EUROPE FINANCE B.V.
By:
Address: Xxxxxxxxxxx 00 -00
0000 XX Xxxxxxx-Xxxx
Xxxxxxxxx
Xxx Xxxxxxxxxxx
Tel: x00 00 0000 0000
Fax: x00 00 0000 0000
THE GUARANTOR
PROLOGIS TRUST
By:
Address: 00000 Xxxx 00xx Xxxxx
Xxxxxx
Xxxxxxxx 00000
U.S.
Tel: + 0 000 000 0000
Fax: + 0 000 000 0000
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THE ARRANGER AND CO-ARRANGER
ABN AMRO BANK N.V.
By:
Address: Gustav Xxxxxxxxxx 00
X X Xxx 000
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
Tel: x00 00 000 0000
Fax: x00 00 000 0000
Attention: Xxxxxxxxx Xxxxxx
Agency Services PACHQ4131
SOCIETE GENERALE
By:
Address: Les Miroir Batiment D-La Defence 3
92978 Paris La Defense Cedex
France
Tel: x000 0000 0000
Fax: x000 0000 0000
Attention: Xxxxxxxx Xxxxxxxx / Xxxx Xxxxxx
Real Estate FINT/IMM/DIM
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THE AGENT
ABN AMRO BANK N.V.
By:
Address: Gustav Xxxxxxxxxx 00
X X Xxx 000
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
Tel: x00 00 000 0000
Fax: x00 00 000 0000
Attention: Xxxxxxxxx Xxxxxx
Agency Services HQ4131
THE BANKS
ABN AMRO BANK N.V.
By:
Address: Gustav Xxxxxxxxxx 00
X X Xxx 000
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
Tel: x00 00 000 0000
Fax: x00 00 000 0000
Attention: Xxxxxxxxx Xxxxxx
Agency Services HQ4131
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AIB INTERNATIONAL FINANCE
By:
CREDIT MATTERS
Address: AIB International Centre
IFSC
Dublin
Ireland
Tel: x000 0 000 0000
Fax: x000 0 000 0000
Attention: Xxxxx XxXxxx
OPERATIONAL MATTERS
Address: Business Support
Xxxxxxxxxxx, Xxxxxxxxxxx
Xxxxxx 0
Xxxxxxx
Tel: x000 0 0000000
Fax: x000 0 0000000
BANK OF AMERICA, N.A.
By:
CREDIT MATTERS
Address: SDG Group
000 Xxxx Xxxxxx
00xx Xxxxx
Xxxxxx, Xxxxx
00000 XXX
Tel: x0 000 000 0000
Fax: x0 000 000 0000
Attention: Xxxx Xxxxxx
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OPERATIONAL MATTERS
Address: SDG Administration
000 Xxxx Xxxxxx
00xx Xxxxx
Xxxxxx, Xxxxx
00000 XXX
Tel: x0 000 000 0000
Fax: x0 000 000 0000
Attention: Xxxxx Xxxxxxxx
BANQUE ARTESIA NEDERLAND N.V.
By:
Address: Corporate Banking
Xxxxxxxxxxxxxxxx 00
X X Xxx 0000
0000 XX Xxxxxx
Xxx Xxxxxxxxxxx
Tel: x00 00 000 0000
Fax: x00 00 000 0000
CREDIT MATTERS
Attention: X.X. Xxxxxxx
OPERATIONAL MATTERS
Attention: T Xxxx
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BANKHAUS LOBBECKE & CO.
By:
Address: Global Capital Markets
Xxxxxxxxxxxxxx 00-00
X-00000 Xxxxxx
Xxxxxxx
Fax: x00 00 00 000 000
CREDIT MATTERS
Attention: Xxxxx Xxxxxxx / Xxxxxxxxxx Xxxxxxxx
Tel: x00 00 00 000 000
OPERATIONAL MATTERS
Attention: Xxxxxx Xxxxxxx
Tel: x00 00 00000 000
BARCLAYS BANK PLC
By:
CREDIT MATTERS
Address: Corporate Banking
WTC Strawinskylaan 1353
1077 XX Amsterdam
The Netherlands
Tel: x00 00 000 0000
Fax: x00 00 000 0000
Attention: Xxxxxx van der Linden
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OPERATIONAL MATTERS
Address: Global Services Unit, Barclays Capital
5 the Xxxxx Xxxxxxxxx
Xxxxxx Xxxxx
Xxxxxx X00 0XX
U.K.
Tel: x00 000 000 0000
Fax: x00 000 000 0000
Attention: Xxx Xxxxxxx
CREDIT COMMERCIAL DE FRANCE
By:
Address: Direction des Affaires Immobilieres
103 Champs Elysees
00000 Xxxxx
Xxxxxx
Tel: x000 0000 0000
Fax: x000 0000 0000
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CREDIT MATTERS
Attention: Xxxxx Guerbois / Xxxx Xxxxxxxxx
OPERATIONAL MATTERS
Attention: Xxxxx Guerbois
CREDIT COMMUNALE DE BELGIQUE S.A.
By:
Address: Xxxxxxxxx Xxxxxxx 00
0000 Xxxxxxxx
Xxxxxxx
Tel: +32 2 222
Fax: x00 0 000 0000
CREDIT MATTERS
Attention: Geert Junuis / Dieter Baelden
Investment Banking PA3/2
OPERATIONAL MATTERS
Attention: Xxxxx xx Xxxx/ Xxxx Petiav
Back Office Treasury and Capital Markets
CREDIT FONCIER DE FRANCE
By:
Address: Finance Structures
00 Xxx xx Xxxxxxxxx
XX00 00000 Xxxxx Ledex 00
Xxxxxx
Fax: x000 0000 0000
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CREDIT MATTERS
Attention: Maurcie Boukabza / Phillipe Lestang
Tel: x000 0000 0000
OPERATIONAL MATTERS
Attention: Xxxxxxxxx Xxxxxxxxxxx
Tel: x00 0 00 00 00 00
CREDIT LOCAL DE FRANCE
By:
Address: 0/00 Xxxx Xxxxx Xxxxxxx
XX 0000 00000 Xxxxx Ledex 15
France
CREDIT MATTERS
Attention: Xxxxxxx Xxxxx / Xxxxxxxxxx Xxxxx
Project and Structured Finance Department
Tel: x000 0000 0000
Fax: x000 0000 0000
OPERATIONAL MATTERS
Attention: Xxxxxxxxx Xxxxxx / Xxxxxxxx Xxxxxxxx
Back Office / CRPB2 "Production Bancaire"
Tel: x000 0000 0000
Fax: x000 0000 0000
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CREDIT LYONNAIS
By:
Address: Agence Centrale Enterprise
00 Xxx Xxxxx Xxxxx xxx Xxxxxxxxx
00000 Xxxxx
Xxxxxx
Fax: x00 0 00 00 0000
CREDIT MATTERS
Attention: Xxxxxxxxx Xxxxxxxx
Tel: x00 0 0000 0000
OPERATIONAL MATTERS
Attention: Xxxxxx Xxxxxx
Tel: x00 0 0000 0000
DEN DANKSE BANK AKTIESELSKAB
By:
Address: 00 Xxxx Xxxxxxx Xxxxxx
Xxxxxx
XX0X 0XX
Tel: x000 000 0000
Fax: x000 000 0000
CREDIT MATTERS
Attention: Xxxxxx Xxxxx/Xxxxx Xxxxxx
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ADMINISTRATION MATTERS
Attention: Xxxxx Xxxxxxxxxx
Corporate Loans Administration
DRESDNER BANK LUXEMBOURG S.A.
By:
Address: 00 Xxx xx Xxxxxx-xxx-Xxxxxx
X-0000 Xxxxxxxxxx
Xxxxxxxxxx
CREDIT MATTERS
Tel: x000 0000 000
Fax: x000 0000 000
Attention: Xxxxx Xxxxxxxxx
OPERATIONAL MATTERS
Tel: x000 0000 000/423
Fax: x000 0000 000
Attention: Xxxxxxxx Xxxxxxxxx/Xxxxx Xxxxxxxxx
FORTIS BANK (NEDERLAND) N.V.
By:
Address: Amsterdam Corporate
Nachtwachtlaan 20
Xxxxxxx 00
0000 XX
Fax: x00 00 000 0000
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CREDIT MATTERS
Attention: Xxxxxx Xxxxxx
Tel: x00 00 000 0000
OPERATIONAL MATTERS
Attention: Xxxxx Xxxxxxxxx
Tel: x00 00 000 0000
LANDESBANK RHEINLAND-PFALZ INTERNATIONAL S.A.
By:
CREDIT AND OPERATIONAL MATTERS
Address: Corporate and Structured Finance
00-00 Xxxxxxxxx Xxxxxxxxx
X0000 Xxxxxxxxxx
Tel: x000 0000 00 000
Fax: x000 0000 00 000
Attention: Xxxx Xxxxxx
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SOCIETE GENERALE
By:
CREDIT MATTERS
Address: Les Miroir Batiment D-La Defence 3
92978 Paris La Defense Cedex
France
Attention: Betrand Discours/Xxxx Xxxxxx
Real Estate - FINT/IMM/DIM
Tel: x00 0 0000 0000
Fax: x00 0 0000 0000
OPERATIONAL MATTERS
Attention: Xxxxxxxx Batoche/ Xxxx Xxxxx
FINT/IMM/FIN/CIG
Tel: x00 0 00 00 0000
Fax: x00 0 00 00 0000
VEREINS- UND WESTBANK AG
By:
Address: Xxxxxxxxx 00
00000 Xxxxxxx
Xxxxxxx
Fax: x00 00 00 00 0000
CREDIT MATTERS
Attention: Birgit Gotthavelt-Xxxx
Tel: x00 00 0000 0000
OPERATIONAL MATTERS
Attention: Xxx Xxxxxxxxx
Tel: x00 00 0000 0000
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