1
EXHIBIT 10.65
US $ 2,625,000
CREDIT FACILITY
for
PIONEER REAL ESTATE ADVISORS, INC.
PROVIDED BY
BANQUE SOCIETE GENERALE VOSTOK
AGREEMENT
DATED 19TH DECEMBER, 1996
GIDE LOYRETTE NOUEL
0, XXXXXXXXXX XXXXXXXX
000000 XXXXXX
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2.
CREDIT FACILITY AGREEMENT
This agreement entered into in Moscow, Russian Federation, on 19th December,
1996 is made by and between:
(1) Banque Societe Generale Vostok, whose registered office is located at 0,
Xxxxxxxx Xxxxxxxx, 000000 Xxxxxx, Russian Federation, (hereinafter referred
to as the "BANK"), represented by Thierry Garde, Deputy Managing Director,
and Xxxxx Durrios, Chief Accountant, acting in compliance with the
provisions of its Charter, on the one part;
and
(2) Pioneer Real Estate Advisors, Inc., a company organised and existing under
the laws of the State of Delaware, U.S.A., having its principal place of
business at 00 Xxxxx Xxxxxx, Xxxxxx, XX, X.X.X., (hereinafter referred to
as the "BORROWER"), Xx Xxxxxxxxx Xxxx Xxxxx, Managing Director of Pioneer
Real Estate Advisors, Inc., acting on the basis of a power of attorney, on
the other part;
(hereinafter collectively defined as the "PARTIES");
by which it is agreed as follows:
ARTICLE 1: DEFINITIONS
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In this Agreement:
"ACCOUNT" shall mean the Borrower's Dollar account N(degree) 10228 0081 309
opened with the Bank;
"ACCOUNTS" shall mean any account of the Borrower opened with the Bank;
"ACKNOWLEDGEMENT LETTER" shall mean each letter from the relevant Tenant or
other Tenants pursuant to Article 6.3. undertaking to pay the relevant Rent
payments under the relevant Lease to the Bank, which shall be substantially in
the form attached in Appendix 3 b) hereto;
"AGREEMENT" shall mean this Agreement including all amendments and appendixes
which form an integral part hereof;
"AVAILABILITY PERIOD" shall mean the period during which the Borrower shall be
entitled to make Drawings as specified in Article 3.1. below;
"BUSINESS DAY" shall mean, for all purposes, any day except Saturday, Sunday
and any day which shall be in Moscow (Russia), Paris (France), New York (U.S.A.)
or London (England) a legal holiday or a day on which banking institutions are
authorised or required by law or other action of a governmental or State agency
to close;
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3.
"COMMITMENT" shall mean the maximum amount which the Borrower may borrow under
Article 2.1. of this Agreement;
"CREDIT FACILITY" shall mean the credit facility made available by the Bank to
the Borrower in an amount not exceeding the Commitment;
"DEFAULT INTEREST" shall mean interest payable at a rate equal to overnight
LIBOR (as defined below) plus eight (8) per cent per annum;
"DOLLARS" shall mean the lawful currency of the United States of America;
"DRAWING" shall mean the principal amount of each borrowing by the Borrower
under this Agreement during the Availability Period or the principal amount
outstanding with respect to the Loan after the first instalment repayment;
"DRAWING DATE" shall mean the date on which a Drawing shall be made available to
the Borrower;
"DUE DATE" shall mean any date upon which a payment of principal, interest,
fees, commissions or other sums is due by the Borrower to the Bank under this
Agreement;
"EVENT OF DEFAULT" shall mean any event which constitutes or, with notice or
lapse of time or both would constitute, an Event of Default described in Article
9;
"GENERAL CONDITIONS" shall mean the General Conditions of the Bank, a copy of
which constitutes APPENDIX 1 hereto;
"INSURANCE POLICIES" shall mean the insurance policies covering damage to
property and loss of Rent in respect of the premises let to the Tenants under
the Leases;
"INTEREST PAYMENT DATES" shall mean 7th, April, 1997 (being the first interest
payment date), 7th July, 1997, 6th October, 1997, 5th January, 1998, 6th April,
1998, 6th July, 1998, 5th October, 1998, and 5th January, 1999.
"INTEREST PERIOD" shall mean a period (i) in respect of each Drawing, a period
starting on Drawing Dates and ending on the day before the first interest
payment date as specified in clause 4.2. and (ii) for any subsequent interest
period, the period starting on the relevant interest payment date and ending on
the day before the next interest payment date;
"LEASE" shall mean any lease entered into between one of the Tenants and the
Borrower listed in APPENDIX 2 hereto;
"LIBOR" shall mean in relation to the Loan or any Drawing, the arithmetic mean
(rounded upward to the nearest one sixteenth of one percent) of the rate of
interest per annum quoted to the Bank by leading banks in the London interbank
market at or about 11.00 a.m. London time two (2) Business Days before the first
day of any Interest Period for the offering of Dollar deposits for a comparable
amount and period, shown on the "Reuters, Money News, page LIBO" as at 11:00
a.m. (London time) on such day, and with respect to any day which is not a
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4.
date on which such quotation is made at the London interbank market, the latest
such rates shown on such display; and the term "Reuters, Money News, page LIBO"
shall mean the display designated "page LIBO" on Reuters Service, or such other
page as may replace the "page LIBO" on that service for the purpose of the
London interbank offered rates of major banks for US Dollar deposits per annum;
"LOAN" shall mean the aggregate sum of the Drawings in Dollars lent by the Bank
under the terms of this Agreement to the Borrower;
"RENT" shall mean the Base Rent payable by Tenants under the Lease as defined
therein;
"RENT ASSIGNMENT LETTER" shall mean each letter from the Borrower to a Tenant
informing the latter of the irrevocable assignment of Rent payments to the Bank,
duly acknowledged and returned to the Bank by such Tenant, which shall be in the
form attached in APPENDIX 3 a) hereto;
"TENANT" shall mean any of the tenants of the Borrower whose name appears on the
list included in APPENDIX 2 hereto or the relevant tenant in application of the
provisions of Article 6.3 below.
ARTICLE 2: OBJECT OF THIS AGREEMENT
-----------------------------------
2.1.Subject to other terms and conditions provided under this Agreement, the
Bank agrees to provide Drawings during the Availability Period to the
Borrower up to an aggregate amount not exceeding the Commitment as follows:
Commitment: two million six hundred and twenty five thousand (2,625,000)
Dollars to be drawn down in accordance with the provisions of Article 3
below.
Facility Period: period from 26th December, 1996 to 5th January, 1999.
Purpose: to finance the property development activities of the Borrower.
The Bank shall have the right to monitor or verify the application of the
Loan but shall not be obliged to do so.
2.2.The Borrower undertakes to repay the Loan in accordance with the provisions
of this Agreement and to abide by its other provisions.
ARTICLE 3: AVAILABILITY OF THE LOAN - DRAWINGS
----------------------------------------------
3.1.The Credit Facility shall be made available by the Bank to the Borrower in
one or several Drawings of at least one hundred thousand (100,000) Dollars
and an integral multiple thereof (unless the relevant Drawing is requested
for an amount equal to the undrawn amount of the Credit Facility) up to
the amount of the Commitment. The Availability Period shall be between 26th
December 1996 and 7th April, 1997 both dates inclusive.
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5.
3.2. Drawings shall be effected by transfer of immediately available funds in
Dollars into the Account upon not less than three (3) Business Days advance
written notice of Drawing, in the form attached as APPENDIX 4 hereto,
indicating the Drawing Date, which shall be a Business Day occurring before
the end of the Availability Period.
The Bank shall automatically deduct from the first Drawing the arrangement
fee described in Article 8.1. (b) below.
3.3. Availability of the Credit Facility and Drawings shall be subject to the
absence of occurrence of any Event of Default and to the following
conditions precedent having been fulfilled in form and content satisfactory
to the Bank:
(a) the receipt by the Bank of copies of Rent Assignment Letters and
original of the relevant Acknowledgement Letters in respect of Leases
representing in value (calculated by capitalising future Rent
payments) at least one hundred and thirty per cent. (130%) of the
Commitment;
(b) the receipt by the Bank of satisfactory copies of each of the Tenants'
Leases duly executed and stamped with the Borrower;
(c) the receipt by the Bank of a letter from Holme Xxxxxxx & Xxxx LLP,
legal counsel to the Borrower substantially in the form attached
hereto as Appendix 6;
(d) the receipt by the Bank of a copy of the Insurance Policies;
(e) the receipt by the Bank of satisfactory evidence of the assignment by
the Borrower to the Bank of the benefit of the proceeds of the
Insurance Policies; and
(f) the receipt by the Bank of a notarised copy of the by-laws,
certificate of incorporation and evidence of accreditation of the
Representation Office in Russian Federation of the Borrower;
(g) the receipt by the Bank of a duly signed letter of support from The
Pioneer Group, Inc., in the form and content satisfactory to the Bank;
and
(h) the receipt by the Bank of a certified copy of the minutes of the
Board of Directors of the Borrower authorising the Borrower to enter
into the Agreement.
3.4. During the Availability Period, each Drawing shall be made available for a
period starting on the Drawing Date and ending on 7th April, 1997. On 8th
April, 1997, all Drawings shall be consolidated into one single Loan to be
amortised in accordance with the provisions of Article 5 below.
ARTICLE 4: INTEREST
-------------------
4.1. The Drawings and, as from 8th April, 1997, the Loan shall bear interest for
the relevant Interest Period at the rate of LIBOR 3 months increased by six
per cent. (6%) per annum.
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6.
All interest payable under this Agreement is calculated on the basis of a
360 day year and for the actual number of days elapsed, including the
Drawing Date, or the first day of the Interest Period but excluding the
last day of the Interest Period, as appropriate.
In the event the publication of the LIBOR 3 months is suspended or
disappears prior to the total repayment of the Loan, a new interest rate
applicable to the Loan shall be agreed upon by the parties.
In the event the Parties do not agree within one calendar month following
the date the publication of the LIBOR 3 months was suspended or the LIBOR 3
months disappeared, the Loan shall bear interest at a rate which shall be
the latest quoted LIBOR 3 months on the preceding Business Day of the said
suspension or disappearance.
In any event, the application of any new interest rate shall be retroactive
to the date the publication of the relevant LIBOR 3 months was suspended or
the LIBOR 3 months disappeared.
The Bank shall, on the very date of its calculation, notify the Borrower of
the interest rate applicable to the considered Interest Period, as well as
of the amount of interest which shall be due for such Interest Period
according to the actual number of days elapsed on the basis of a 360 day
year.
4.2. From the first Drawing Date until 5th January, 1999, the Borrower shall pay
interest on the outstanding balance of the Loan in accordance with this
Agreement. Such interest shall be payable quarterly on the Interest Payment
Dates:
4.3. In the event any amount due by the Borrower under the Agreement is not paid
at its Due Date, the Borrower shall have to pay Default Interest. Default
Interest shall be due in respect of any sum owed to the Bank under this
Agreement which remains due and payable after a Due Date.
For the avoidance of doubt, it is acknowledged that the Borrower shall not
pay any Default Interest if the Bank fails to timely deduct from the
Accounts the sum due by the Borrower under this Agreement, provided that
the sums on the Accounts are sufficient to repay all the sums due to the
Bank under this Agreement on Due Dates.
ARTICLE 5: REPAYMENT
--------------------
5.1. The Loan shall be repaid in eight (8) instalments on 7th April, 1997, 7th
July, 1997, 6th October 1997, 5th January, 1998, 6th April, 1998, 6th July,
1998, 5th October, 1998, and 5th January, 1999 in accordance with
Appendix 5.
5.2. It is intended (without prejudice to the rights of the Bank) that payments
shall be effected by debiting the Accounts according to the following
procedure.
Pursuant to the terms of the Rent Assignment Letter and the Acknowledgement
Letter, each Tenant shall pay all sums under the relevant Lease into the
Account. Upon receipt
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7.
of payments from the Tenants, the Bank shall be entitled to retain a
sufficient sum with respect to repayment dates, taking into account
expected payments of Rent under the Leases, to cover the following
quarterly repayment of principal plus the following quarterly payment of
interest, as provided by this Agreement and the schedule in Appendix 5 to
this Agreement.
Payments in respect of the Loan, interest and other outstanding sums on
each Due Date shall automatically be made by the Bank by transferring the
appropriate sum in immediately available funds from the Account into an
account in the name of the Bank.
The Accounts shall be interest bearing account for the Borrower, the
conditions for the remuneration of the sums on such account shall be those
applicable under the General Conditions for Banks' customers of similar
standing.
Any Rouble deposited into the Roubles Account would be converted into
Dollars:
(i) on the date of receipt of Roubles, provided that such receipt is made
before 12:00 a.m. of such date and that the relevant conversion order
is received by the Bank before 12:00 a.m. of such date;
(ii) at a conversion rate which will be the standard exhange rate that the
Bank offers on similar currency exchange transactions to customers of
similar standing.
5.3. If any Due Date does not fall on a Business Day, payment shall be effected
on the next Business Day. All payments by the Borrower shall be made
without set off or counterclaim and without any deduction. If the Borrower
is compelled either by law, regulation or recommendation of a competent
regulatory or professional body or authority to make any deduction, it
shall pay additional amounts to ensure receipt by the Bank of the full
amount which the Bank would have received but for such deduction.
5.4. Prepayment at the request of the Borrower shall be allowed at any time
subject to prior prepayment notice received by the Bank at least three (3)
Business Days in advance and the payment of a prepayment fee of three
quarter per cent (0.75%) on the amount prepaid. Furthermore, the Borrower
shall automatically repay to the Bank all amount in interests and fees
increased by all expenses and charges if any incurred by the Bank as the
result of the said prepayment. Prepayment shall be applied against the
repayment instalments in order of maturity.
In addition, there shall be prepayment in the following circumstances:
(a) If any Lease is terminated and another lease is not substituted for it
in accordance with the revisions of Article 6.3. below within a period
of two (2) months, the Borrower shall, within three (3) Business Days
from the receipt of a written request of the Bank, reimburse part of
the Loan so that the outstanding Loan remains under seventy seven per
cent (77%) of the remaining capitalised value of the capitalised
future payments of Rent under the Leases. Prepayment shall be applied
against the repayment instalments in order of maturity.
Upon such prepayment, a prepayment fee equal to three quarter per cent
(0.75%) of the amount prepaid shall be due by the Borrower to the
Bank and the Borrower shall
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8.
automatically repay to the Bank all amount in interests and fees
increased by all expenses and charges if any incurred by the Bank as
the result of the said prepayment; and
(b) If a change in circumstances beyond the control of the Parties
(including the unavailability of Dollars) makes it illegal or
impossible for the Bank or for the Borrower to perform their
obligations under this Agreement, the Bank's obligations under this
Agreement shall be automatically terminated and the Borrower shall
automatically repay to the Bank all amount in due capital, interests
and fees increased by all expenses and charges if any incurred by the
Bank as the result of the said prepayment. For the avoidance of doubt,
it is understood that there will be no prepayment penalty in case of
prepayment under Article 5.4. (b).
5.5. The Borrower irrevocably grants to the Bank the right to debit from the
Accounts or any of its other accounts with the Bank, without the need for
any further preliminary consent, any sum due to the Bank under this
Agreement, but not to exceed the amount specifically assigned to the Bank
hereunder. With regard to this Agreement, for the avoidance of doubt, the
Bank may not debit or offset from the Account any amounts in excess of
proceeds actually received from the Tenants.
5.6. The Borrower also irrevocably grants to the Bank the right to sell against
Roubles such fraction of the Dollar payments of the Tenants as required by
the Russian legislation within 2 banking days from the receipt of such
payment and to repurchase Dollars for the whole amount of Roubles received
from the obligatory sale, but in any event for an amount which is not in
excess of the total amount of any sums due and payable to the Bank by the
Borrower upon the next payment under this Agreement.
ARTICLE 6: ASSIGNMENT OF RENT AND OF INSURANCE POLICIES
-------------------------------------------------------
6.1. The Loan and all other payments due by the Borrower to the Bank under this
Agreement shall be secured by the irrevocable assignment by the Borrower of
its rights to payments of Rent under the Leases and of the proceeds of
Insurance Policies.
6.2. The Bank accepts such assignment up to one hundred and thirty per cent.
(130%) of sum of the Loan and the Drawing requested. The Bank shall have
the right (but shall not be obliged) to enforce its rights to receive the
Rent payments under the Leases in order to recover any such sum, in which
case the Borrower shall provide whatever assistance the Bank may reasonably
need for that purpose.
6.3. If any Lease is terminated for any reason whatsoever before the repayment
of all sums due under this Agreement, the Borrower may propose to the Bank
to assign its rights under another comparable lease. Upon agreement of the
Bank and receipt by it of a Rent Assignment Letter and an Acknowledgement
Letter from the relevant tenant, such lease and tenant shall be deemed to
be a Lease and a Tenant respectively for the purposes of this Agreement.
Likewise, in the event that an Insurance Policy is terminated, the Borrower
shall immediately sign a new insurance policy with a new insurance company
satisfactory to
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9.
the Bank and shall assign its rights to the proceeds of the new insurance
policy to the Bank.
6.4. Upon payment of all sums due by the Borrower to the Bank under this
Agreement, the Bank shall provide the Borrower with any document it may
reasonably request to evidence the termination of all assignments hereunder
and the Bank agrees to take all other action reasonably requested by the
Borrower. The Bank will pay promptly to the Borrower any amounts received
pursuant to such assignment following payment of all sums due by the
Borrower to the Bank under this Agreement. Any material cost involved in
the provision of such documents or in taking such action shall be borne by
the Borrower.
ARTICLE 7 : REPRESENTATIONS, COVENANTS, WARRANTIES AND UNDERTAKINGS OF THE
--------------------------------------------------------------------------
BORROWER AND THE BANK
---------------------
7.1. The Borrower represents, covenants and warrants as follows:
(a) that it has due authority to enter into this Agreement and it has all
necessary corporate or administrative consents and notifications for the
execution and performance of this Agreement;
(b) to provide the Bank with copies of its quarterly uncertified accounts;
(c) to inform the Bank in the event of any material adverse change affecting
its ability to repay the Loan;
(d) to inform the Bank within five (5) Business Days in the event that any
Lease or Insurance Policy is terminated, or that any of their respective
material terms and conditions are amended;
(e) to maintain an insurance cover over the premises let under the Leases
similar to the Insurance Policies at the date thereof;
(f) to inform the Bank within three (3) Business Days in the event that any
Event of Default has occurred; and
(g) to provide the Bank with any relevant information relating to the
Borrower's ability to perform hereunder which the Bank may reasonably
request.
7.2. The Borrower undertakes to open a Rouble Account with the Bank within one
(1) month from the date of the execution of the Agreement in accordance
with the Instruction of the Central Bank n(degree) 16 of 16th July, 1996
which provides in its Article 1.2. that a foreign entity may open only one
Rouble Account.
7.3. The Bank represents, covenants and warrants that it is duly registered and
licensed by the Central Bank of the Russian Federation and with the
relevant tax authorities and has received all licenses, registration
certificates or approvals necessary to execute and perform its obligations
under this Agreement.
ARTICLE 8: COMMISSIONS, FEES AND MISCELLANEOUS PAYMENTS
-------------------------------------------------------
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10.
8.1. The commissions and reimbursable expenses payable by the Borrower to the
Bank under this Agreement consist of:
(a) a one time commitment fee to be calculated at the rate of one half per
cent (0.5 %) per annum on the undrawn part of the Commitment; and
payable together with the first interest payment;
(b) an arrangement fee of an amount of one quarter per cent. (0,25%) of
the Commitment plus an amount up to twelve thousand (12.000) Dollars
(V.A.T. excluded) for the drafting of the documentation and the legal
review of the Leases;
the arrangement fee shall be payable on the date of the first Drawing.
8.2. In addition, the Borrower shall promptly pay to the Bank, upon receipt of
calculation detai1s and attestation that such costs, if any, were actually
incurred:
(a) all funding breakage costs, any taxes or stamp duties arising out of
the acceleration of the Loan or part thereof due to an Event of
Default or to new circumstances making it illegal for the parties to
perform their obligations hereunder;
(b) such amount as is necessary to indemnify the Bank fully against the
consequences of any non-performance by the Borrower of any of its
obligations hereunder or any Event of Default; .
(c) all reasonable costs including legal fees incurred by the Bank in
connection with the enforcement of this Agreement, including those
incurred in connection with the collection of Rent payments under any
of the Leases, provided that the Bank shall notify the Borrower thirty
(30) days prior to the Bank's attempt to collect the Rent payments
during which period the Borrower may itself take action to collect
such payments; and
(d) all losses resulting from any judgement or claim being payable in a
different currency from that agreed hereunder.
8.3.
(a) In the event that a change in Russian legislation, administrative,
regulatory or legal circumstances or a change in the interpretation of such
rules resulting in the Bank incurring increased costs or receiving a lower
return in relation to the Loan, the Borrower shall compensate the Bank upon
demand for the corresponding amount as certified by the Bank. The Bank
shall provide details of its calculations and attest that such costs were
actually incurred.
(b) If any additional amount becomes payable to the Bank under Article 8.3. (a)
and if such amount is deemed to be material for the Borrower, the Bank will
(if so requested by the o Borrower) consult with the Borrower for up to
fifteen (15) days from the date of such request with a view to agreeing to
a mutually acceptable alternative arrangement which will avoid or minimise
the payment of such material additional amount. However, the Bank shall
not be obliged to agree to any arrangement if in its bona fide opinion such
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arrangement would or might be materially adverse to it or its business,
operations or financial condition. If no solution has been reached within
fifteen (15) days from the date of the request of the Borrower to the Bank,
the Borrower may prepay the Loan and all other sums due under this
Agreement within thirty (30) days without penalty. In case of such
prepayment, the Borrower shall automatically repay to the Bank all amount
in interests and fees due to the Bank under the Agreement increased by all
expenses and charges, if any, incurred by the Bank as the result of the
said prepayment.
ARTICLE 9: EVENTS OF DEFAULT
----------------------------
9.1. Each of the following events shall constitute an Event of Default:
(a) failure of the Borrower to pay any sum under this Agreement within ten
(10) calendar days from the date it has become due;
(b) failure of the Borrower to perform its obligations materially under
the Leases giving the right to Tenants to terminate such agreements;
(c) if the total value of the Leases (calculated by capitalising all due
Rent payments under the Leases) falls at any time below one hundred
and thirty per cent (130%) of the Loan for a continuous period of more
than two (2) months and if no Lease is subsituted in accordance with
Article 5.4. (a) and 6.3. of this Agreement;
(d) if any representation made by the Borrower in this Agreement shall
prove to be untrue in any material respect on the date as of which it
was made or if the Borrower shall default in the due performance by it
of any obligation and, except for breaches under Article 9.1.(a) and
(b) above and those incapable of being remedied, such default shall
continue unremedied for a period of thirty (30) days after written
notice to the Borrower;
(e) insolvency or strong and continuous threat thereof, initiation of
bankruptcy or analogous proceedings, initiation of amicable settlement
proceedings by the creditors of the Borrower; and
(f) in the case of any event which, in the reasonable opinion of the Bank,
materially adversely affects the Borrower's ability to fulfil its
obligations hereunder or if the Bank shall cease to be reasonably
satisfied with the financial position of the operations of the
Borrower.
9.2. If an Event of Default occurs, the Loan and all other sums due under this
Agreement shall become immediately due and payable and shall be forthwith
repaid by the Borrower but only upon written notice of the Bank to the
Borrower so stating in accordance with this Article 9.
In addition, the Bank shall then be entitled to direct Tenants to make
payments into any account designated by the Bank for any amount due under
this Agreement.
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12.
ARTICLE 10: ASSIGNMENT
----------------------
10.1. The Bank shall be entitled to assign any part of its rights under this
Agreement to another bank comparable with the standing of the Bank and
properly licensed and authorised to conduct business in the Russian
Federation with the prior consent of the Borrower which shall not be
unreasonably withheld or delayed. The failure by the Borrower to answer
within thirty (30) days from written notification shall be deemed to
constitute consent.
10.2. The Borrower shall have the right to assign any part of its rights under
this Agreement to another member of The Pioneer Group subject to the prior
written approval of the Bank.
ARTICLE 11: MISCELLANEOUS PROVISIONS
------------------------------------
11.l. All notices under this Agreement shall be made in writing and sent by fax
(with written confirmation delivered by hand against receipt), or
delivered by hand or by a major courrier company against receipt to the
following address:
(a) If to the Bank: Attention Xx. Xxxxxxxx Rehbinder /
Xx. Xxxxxxx Xxxxx
Banque Societe Xxxxxxxx Xxxxxx
0, Xxxxxxxx Xxxxxxxx
000000 Xxxxxx
Russian Federation
Fax: 0 000 000 00 00
Tel: 0 000 000 00 00
(b) If to the Borrower: Attention Xx Xxxxxxxxx Xxxx-Xxxxx
Pioneer Real Estate Advisors, Inc.
Smolnaya 00/X
0xx Xxxxx
Xxxxxx, Xxxxxxx Xxxxxxxxxx
Fax: 0 000 000 0000
Tel: 0 000 000 0000
and Xx Xxxxxx X. Xxxxx
General Counsel
The Pioneer Group, Inc.,
00 Xxxxx Xxxxxx,
Xxxxxx
Xxxxxxxxxxxxx 00000
Xxxxxx Xxxxxx of America
Fax: 000 000-0000
Tel: 000 000-0000
Any change of address or of contact numbers shall be notified in advance.
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13.
Any such notice shall be deemed to be given if in writing when delivered
and if by fax upon receipt of the written confirmation. However, a notice
given in accordance with the above but received on a non Business Day or
after business hours in the place of receipt shall only be deemed to be
given on the next Business Day.
11.2. No failure or delay by the Bank in exercising any right or power hereunder
shall operate as a waiver thereof or prejudice any other or further
exercise by the Bank of its rights or remedies hereunder.
11.3. The Borrower accepts the General Conditions of the Bank as an integral
part of this Agreement. If any provision of this Agreement is inconsistent
with the provisions of the General Conditions, the provisions of this
Agreement shall prevail.
11.4. This Agreement shall come into force on the date of its execution and
shall remain valid until all sums due by the Borrower pursuant to this
Agreement are fully repaid.
11.5. All amendments to this Agreement shall be valid only if done in writing
and signed by both Parties.
11.6. This Agreement shall be governed by Russian law. All disputes between the
parties will be discussed between the parties in order to achieve an
amicable solution. If an amicable solution has not been reached within
fifteen (15) days from the date of the notice of dispute from the
complaining party to the other, the dispute shall be submitted to the
International Commercial Arbitration Court at the Chamber of Commerce and
Industry of the Russian Federation in accordance with the rules of such
Court.
11.7. This Agreement is established in two (2) originals in Russian and two (2)
originals in English, one (1) in English and one (1) in Russian for the
Bank and one (1) in English and one (1) in Russian for the Borrower. In
case of discrepancy between the two versions, the English version shall
prevail.
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14.
For Banque Societe Generale Vostok: For Pioneer Real Estate Advisors, Inc.:
/s/ Thierry Garde /s/ Greenville Xxxx Xxxxx
----------------------------------- --------------------------------------
Name: Thierry Garde Name: Xx. Xxxxxxxxx Xxxx Xxxxx
Title: Deputy Managing Director Title: Managing Director
/s/ Xxxxx Durrios
-----------------------------------
Name: Xxxxx Durrios
Title: Chief Accountant
[Seal]
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15.
APPENDIX 1
GENERAL CONDITIONS OF THE BANK
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[Logo]
BAHK COCbETE )KEHEPAJIb BOCTOK
BANK SOCIETE GENERALE VOSTOK
GENERAL CONDITIONS
1. DEFINITIONS
In these conditions:
"The Bank" means BANK SOCIETE GENERALE VOSTOK, "the Customer" means a person or
persons holding any account with the Bank (and shall when the context so
requires include person(s) requesting such an account or other services from the
Bank); "Authorised Signatories" are as defined in condition 3. The singular
includes the plural, and vice versa: where there is more than one person
included in the expression "the Customer" all obligations by the customer are
joint and several.
2. LAW
The relationship between the Bank and customer is governed by Law and subject to
applicable exchange control, fiscal and central banking regulations in Russia.
These general conditions apply but are not exhaustive. In particular, financial
terms applicable to accounts, overdrafts, lending contracts, and other services
provided by the Bank are such as may from time to time be agreed between the
Bank and the Customer.
3. AUTHORISED SIGNATORIES
All cheques and orders must be signed by Authorised Signatories. "Authorised
Signatories" are
(i) in the case of a Customer who is an individual sole account holder,
that Customer
and
(ii) Persons authorised to sign by a Mandate duly completed, in a form
provided by the Bank, and deposited with the Bank.
Any change of Mandate must be by completion Of a fresh Mandate, in a form
provided by the Bank and shall not be effective until such new Mandate has been
received by the Bank.
4. CURRENT ACCOUNTS
Debit balances on current account are not permitted without prior agreement of
the Bank permitting an overdraft, and shall carry interest at the rate then
agreed between the Bank and the Customer, which may be debited by the Bank to
any account with it of the Customer, normally the current account concerned,
quarterly or half yearly as may be determined by the Bank. Such rate of interest
will normally be expressed as an annual percentage above the Bank's prime rate
for the relevant currency from time to time, subject to a minimum percentage,
and the Customer shall be bound by such changes in prime rates as may from time
to time be made by the Bank for all its Customers. In addition the Bank will
make charges for the operation of the account in accordance with its standard
practice from time to time (details of which will be supplied to the Customer on
request) such charges being debited in the same way as for interest above.
5. LOAN ACCOUNTS
The particular terms and conditions applicable to Loan and Personal Loan
Accounts are as published from time to time by the Bank and/or as may be agreed
between the Bank and the Customer.
6. OTHER ACCOUNTS
The particular terms and conditions applicable to Deposit and Savings Accounts
are as published from time to time by the Bank and/or as may be agreed between
the Bank and the Customer.
7. NUMBERED ACCOUNTS
Current, savings, and deposit accounts may be opened in numbered form. The terms
and conditions applicable to the relevant type of account will apply, but
Authorised Signatories will be permitted to sign cheques and orders by use of
the relevant account numbered (mandates, specimen signature forms, cheques and
other account operating forms being adapted accordingly). The normal duty of
Secrecy will apply provided that, upon request to the Bank by an authorised
officer of the Bank Supervisory Department of the Central Bank of Russia may
inspect the Register of Numbered Accounts, containing particulars of the
account holders, for the sole
17
purpose of enable him to discharge his duty as Bank examiner and in particular
for ensuring that deposits are not accepted by the Bank from persons ordinarily
resident of the Russian Federation or of Russian origin.
8. OTHER SERVICES
Documentary Credits
Credit Facilities against Commercial bills, stocks and shares, goods
and other deeds
Discounting commercial bills
Letters of Guarantee
Acceptances, endorsements, drafts, etc.
Foreign Exchange Dealing
Investment Management
Commodity Trading
Additional Conditions apply to each of such services, including in the case of
documentary credits the Uniform Customs and Practice for Documentary Credits
issued by the Council of the International Chamber of Commerce. Copies of the
Additional Conditions applicable to particular services are available upon
request, and will apply thereto in any event.
9. CHEQUES
The Bank will not pay cheques otherwise than in forms issued and/or approved by
it. It is the responsibility of the Customer to ensure the security and proper
use of cheques issued to or held by the Customer. The Bank will not be liable
for any loss arising from or in connection with the loss, theft or misuse by any
third party of any cheque. The Customer should immediately notify the Bank in
writing concerning the loss or theft of any cheques. The Bank will not be liable
for any consequential refusal by it to pay such cheques.
10. CURRENCIES
A Current Account will normally be denominated in a single currency
(multi-currency facilities normally being by way of loan subject to a facility
letter, rather than by way of overdraft). The limit of an overdraft facility on
Current Account will be expressed in the currency in which that Current Account
is denominated. Cheques may not be drawn on Current Account in currencies other
than that in which the Current Account is denominated without the prior consent
of the Bank, and at a rate of exchange to be determined by the Bank upon
presentation for payment. Payments into Current Account, including repayment of
any debit balance should be in the currency in which that Current Account is
denominated, save that the Customer may make payments into Current Account,
including repayment of any debit balance in an alternative currency subject to
the prior consent of the Bank and at a rate of exchange determined by the Bank.
11. STATEMENTS
The Bank will supply periodic statements of account to the Customer, and/or as
Authorised Signatories may direct, at intervals to be agreed. The Customer shall
be deemed to receive such statements on delivery to, or within 15 days after
posting by letter post to the Customer, any Authorised Signatory, or any person
directed or apparently authorised by Authorised Signatories to receive such
Statements, unless the Customer delivers a complaint in writing to the Bank of
non-receipt within 30 days after the relevant periodic day upon which such
statements are normally dispatched or agreed to be dispatched by the Bank. The
Customer shall be responsible for checking all such statements, and all entries
therein, whether debits, credits, balances, or otherwise, and details thereof,
and unless the Customer delivers a complaint in writing to the Bank disputing or
questioning any entries therein within 15 days after receipt, or deemed receipt,
by the Customer of the statement such statement shall be treated as confirmed
and agreed by the Customer. The Customer will also be asked by the Bank
periodically to agree and sign the acknowledgement of balances, and the
signature thereof by or on behalf of the Customer shall be confirmation that all
preceding entries in accounts of the Customer are correct and that the position
as between the Bank and the Customer as at the date when such acknowledgement
was prepared by the Bank is as stated therein.
12. REPAYMENT
All debit balances on Current Account are repayable on demand whether or not
subject to periodic review and whether or not resulting from advances made for
an unconcluded purpose or otherwise under a facility referable to a purpose or
period. Loans, otherwise than by way overdraft on Current Account, are repayable
in accordance with the provisions of the Facility Letter applicable thereto.
Default in repayment of any sum due to the Bank shall result in all other
indebtedness and liabilities of the Customer to the Bank becoming
18
immediately due and payable, and the Bank shall then cease to be liable to make
further advances or have any further commitment to the Customer. All payments to
be made by the Customer whether in repayment of debit balances on Current
Account or in repayment of loans shall be made in full, free and clear of any
set off or counterclaim deductions or withholdings of any kind whatsoever,
including, without limitation to the foregoing, any taxes that may be imposed by
any governmental of fiscal agency on any payments to be made hereunder. The
books of the Bank shall be conclusive evidence as to the state of indebtedness
and liabilities of the Customer to the Bank at any time.
13. CUSTOMER SET-OFF
In any case where the Customer has more than one account with the Bank,
including all its branches worldwide, the Customer shall not be entitled without
the prior consent of the Bank to draw on one account in excess of the credit
balance or permitted limit thereof by reference to any undrawn balances or
non-utilisation of limits on other accounts, not otherwise without such consent
to combine or set off balances on separate accounts. This is particularly
important among accounts denominated in different currencies. In the case of any
combination or set-off permitted by the Bank resulting in the need for currency
conversion such conversion shall be effected at such rate as may be determined
by the Bank.
14. BANK'S SET-OFF AND LIEN
The Bank, including all its branches worldwide, shall have the right without
prior notice to the Customer at any time to combine or set off balances on
separate accounts of the Customer with it. The Bank shall further be entitled to
set off against any credit balance of the Customer with it any other liabilities
of the Customer to the Bank, present, future, actual or contingent (whether
under any guarantee or counter-indemnity or otherwise). The Bank shall also have
a lien on all securities or other property of the Customer from time to time
held by the Bank, whether for safe custody or otherwise. In the case of any
exercise by the Bank of its rights of combination, set-off or lien resulting in
the need for currency conversion such conversion shall be effected at such rate
as may be determined by the Bank.
15. SECURITY .
The Bank may at any time require the provision of security as a condition of the
continuation of facilities whether or not indebtedness or other liabilities
under such facilities have become due.
16. INSURANCE
Goods and property of the Customer from time to time deposited with or otherwise
in the possession of the Bank shall be insured against all risks by the Customer
with insurers approved by the Bank, and satisfactory evidence thereof produced
to the Bank upon request, failing which the Bank may (but shall not be bound
to), insure at the expense of the Customer. The Bank shall not be liable for
insuring non insurable risks.
17. EXPENSES
Costs and Expenses incurred by the Bank in connection with any application for
or conduct of an account or other services for a Customer, whether before or
after any account is opened or services provided, are to be paid by the Customer
to the Bank on demand on a full indemnity basis, or may (at the option of the
Bank) be debited by the Bank to any account of the Customer with the Bank.
18. DEMANDS AND NOTICES
A demand or notice hereunder by the Bank shall be in writing, signed by an
officer or agent of the Bank, and may be served on the Customer either by hand
or by post. In the case of a company service by hand may be made either by
delivering the same to any officer of the company at any place or leaving the
same addressed to the company at its registered office or a place of business
last known to the Bank. A demand or notice by post may be addressed to the
Customer at the registered office or address or place of business last known to
the Bank and shall be deemed to have been received within 15 days after the day
on which it was posted and shall be effective notwithstanding it be returned
undelivered and notwithstanding the death or incapacity of the Customer. Any
notice by the Customer to the Bank shall be in writing, signed by Authorised
Signatories, and delivered to the office of the Bank where the Customer's
account is kept either personally or by post. Any such notice to the Bank shall
not be effective until received by the Bank. Prior to service of any written
notice or demand hereunder preliminary notification may be given, and may be
but need not be, acted upon, orally, or by telephone, or telex or facsimile
communication, in the case of the Bank by or apparently by any officer or agent
19
of the Bank, and in the case of the Customer by or apparently by any Authorised
Signatory, but shall be confirmed by written notice or demand as soon as
possible thereafter.
19. LEGAL JURISDICTION
Legal proceeding against the Customer may be brought by the Bank in the Courts
of any country wherein
(i) the Bank carries on business.
(ii) the Customer is domiciled or resident or has its registered or other
principal office or place of central management or control.
(iii) the Customer has movable or immovable property.
Legal proceedings against the Bank may be brought by the Customer in the Courts
of the country in and from which the Bank carries on business.
20. AMENDMENTS
The Bank may from time to time amend these General Conditions subject to giving
to the Customer written notice of amendments not less than 15 days before such
amendments will take effect. The continuance of the banker-customer relationship
30 days after dispatch by the Bank of such notice shall constitute agreement of
the Customer to the amendments so notified.
SIGNED
------------------------------------
20
16.
APPENDIX 2
LIST OF LEASES AND TENANTS
----------------------------------------------------------------------------------------------
NAME OF DEVELOPMENT NAME AND DETAILS QUARTERLY CAPITALISED AMOUNT OF
AND DETAILS OF PREMISES OF RENT RENT REMAINING OWED
TENANT IN UNDER THE LEASE IN
DOLLARS DOLLARS
----------------------------------------------------------------------------------------------
[ ] [ ]
Sixteenth floor XX Xxxx Xxx
U1. Smolnaya 24/D Cosmetics
125445, Moscow
----------------------------------------------------------------------------------------------
[ ] [ ]
Part fifteenth floor XX Xxxx Xxx
UI. Smolnaya 24/D Cosmetics
125445, Moscow
----------------------------------------------------------------------------------------------
[ ] [ ]
Sixth floor Scala (Cyprus)
U1. Smolnaya 24/D Limited
125445, Moscow
----------------------------------------------------------------------------------------------
[ ] [ ]
Seventh floor Van Melle AG
UI. Xxxxxxxx 00/X Xxxxxxxxxxx
000000, Xxxxxx
----------------------------------------------------------------------------------------------
[ ] [ ]
Fourth floor Xxxx Xxxxx X.X.
U1. Xxxxxxxx 00/X
000000, Xxxxxx
----------------------------------------------------------------------------------------------
[ ] [ ]
Part Fifth floor Xxxx Xxxxx X.X.
U1. Xxxxxxxx 00/X
000000, Xxxxxx
----------------------------------------------------------------------------------------------
[ ] [ ]
Part Fifth floor Xxxx Xxxxx X.X.
U1. Xxxxxxxx 00/X
000000, Xxxxxx
----------------------------------------------------------------------------------------------
21
17.
APPENDIX 3 (a)
FORM OF RENT ASSIGNMENT LETTER
[Letterhead of Pioneer Real Estate Advisors, Inc.]
[Name and address of the Tenant]
[ ], 1996
Dear Sirs,
We refer to the lease agreement entered into between ourselves and your company
on [date] relating to the premises located at [address and other details] (the
"LEASE").
We hereby inform you that we have assigned all of our rights to receive Base
Rent payments under the Lease to Banque Societe Generale Vostok pursuant to a
credit agreement between ourselves and Banque Societe Generale Vostok dated [ ],
1996. Pursuant to the provisions of this assignment, we hereby instruct you
irrevocably to make all payments of Rent under the Lease from [date] to the
following account:
Account N(degree) [_______________________]
Banque Societe Generale Vostok
0, Xxxxxxxx Xxxxxxxx
000000 Xxxxxx
or to such account as Banque Societe Generale Vostok may from time to time
direct.
To confirm receipt of this letter, please return a copy the acknowledgement
letter, a form of which is attached hereto, duly signed by a duly empowered
representative of your company, to Banque Societe Generale Vostok at the address
indicated above for the attention of Xx. Xxxxxxxx Rehbinder / Xx. Xxxxxxx Xxxxx,
with a copy by fax sent to us for the attention of [ ] at the
following number: [ ].
Yours faithfully,
For Pioneer Real Estate Advisors, Inc.
By:
Title:
[stamp]
22
18.
APPENDIX 3 (b)
FORM OF ACKNOWLEDGEMENT LETTER
[LETTERHEAD OF THE TENANT]
Banque Societe Generale Vostok
5 Nikitsky Terenlok
103009 Moscow
[ ], 1996
For the attention of Xx. Xxxxxxxx Rehbinder /
---------------------------------------------
Xx. Xxxxxxx Xxxxx
-----------------
Re.: Lease Agreement dated [ ] between Pioneer Real Estate Advisors, Inc.
as lessor and our company as lessee (the "LEASE AGREEMENT")
--------------------------------------------------------------------
Dear Sirs,
We refer to the letter dated [ ] addressed to us by Pioneer Real Estate
Advisors, Inc. under which we have been instructed to pay from [ ] all the
Base Rent payments due under the Lease Agreement to Banque Societe Generale
Vostok on the Account n(degree) [_____________] or on any other account which
may from time to time be notified to us by Banque Societe Generale Vostok.
Therefore, we irrevocably undertake to pay from [ ] to the order of Banque
Societe Generale Vostok, all the Rent due under the Lease Agreement,
irrespective of any instruction to the contrary we may receive from Pioneer Real
Estate Advisors, Inc., after the date hereof.
For the avoidance of doubt, it is understood that the present undertaking does
not imply for us any extra obligation regarding the Lease Agreement.
We understand that we will be released of this undertaking only after full
repayment of all sums due by Pioneer Real Estate Advisors, Inc. to Banque
Societe Generale Vostok or suspension of our obligations under the Lease, which
will be notified to us by Banque Societe Generale Vostok.
Subject to the terms hereof, all provisions of the Lease Agreement and our
rights and obligations under the Lease Agreement remain unchanged.
Yours faithfully,
For [ ]
By: ..
Title:
[stamp] .
23
19.
APPENDIX 4
FORM OF NOTICE OF DRAWING
From: Pioneer Real Estate Advisors, Inc.
To: Banque Societe Generale Vostok
Attention Xx. Xxxxxxxx Rehbinder / Xx. Xxxxxxx Xxxxx
------------------------------------------
AGREEMENT WITH PIONEER REAL ESTATE ADVISORS, INC. N(DEGREE)[ ] DATED [ ],
DECEMBER 1996
FOR AN AMOUNT OF US$ [ ]
1. We wish to borrow the Loan as follows:
(a) Drawing Date: [Not earlier than 3 Business Days from the date of the
notice of drawing and not later than the end of the
Availability Period defined in Article 3.1.]
(b) Amount: [$ [ ] or multiple thereof]
(c) Interest Period: [number of days from Drawing Date to [ ], 1996]
(d) Purpose: [Purchase of inventory / services / other]
2. We confirm that each condition precedent under Article 3.3. has been
fulfilled and that no Event of Default has occurred and is continuing.
For: Pioneer Real Estate Advisors, Inc.
Name:
------------------------------
Title:
------------------------------
Seal
24
20.
APPENDIX 5
CASH-FLOW CHART
25
Pioneer loan repayment projections. (In US Dollars, according to Tenant's leases payment schedule).
----------------------------------------------------------------------------------------------------------------------------
DATE Outstanding Pioneer Income * Principal Interest (12% p.a.) Arrang. fee Total
------ ----------- ---------------------------
Monthly Cumulative Payments Payments (0.25% upfront) Payments
----------------------------------------------------------------------------------------------------------------------------
Nov-96 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Dec-96 0.00 317,195.00 317,195.00 0.00 0.00 0.00 0.00
Jan.97 2,625,000.00 0.00 317,195.00 0.00 0.00 -6,562.50 -6,562.50
Feb-97 2,625,000.00 0.00 317,195.00 0.00 0.00 0.00 0.00
Mar-97 2,625,000.00 0.00 317,195.00 0.00 0.00 0.00 0.00
Apr-97 2,625,000.00 283,649.00 600,844.00 -200,000.00 -78,750.00 0.00 -278,750.00
May-97 2,425,000.00 0.00 600,844.00 0.00 0.00 0.00 0.00
Jun-97 2,425,000.00 0.00 600,844.00 0.00 0.00 0.00 0.00
Jul-97 2,425,000.00 310,213.00 911,057.00 -200,000.00 -72,750.00 0.00 -272,750.00
Aug-97 2,225,000.00 0.00 911,057.00 0.00 0.00 0.00 0.00
Sep-97 2,225,000.00 0.00 911,057.00 0.00 0.00 0.00 0.00
0ct-97 2,225,000.00 310,214.00 1,221,271.00 -328,125.00 -66,750.00 0.00 -394,875.00
Nov-97 1,896,875.00 0.00 1,221,271.00 0.00 0.00 0.00 0.00
Dec-97 1,896,875.00 0.00 1,221,271.00 0.00 0.00 0.00 0.00
Jan-98 1,896,875.00 487,273.00 1,708,544.00 -328,125.00 -56,906.25 0.00 -385,031.25
Feb-98 1,568,750.00 0.00 1,708,544.00 0.00 0.00 0.00 0.00
Mar-98 1,568,750.00 0.00 1,708,544.00 0.00 0.00 0.00 0.00
Apr-98 1,568,750.00 513,839.00 2,222,383.00 -328,125.00 -47,062.50 0.00 -375,187.50
May-98 1,240,625.00 0.00 2,222,383.00 0.00 0.00 0.00 0.00
Jun-98 1,240,625.00 0.00 2,222,383.00 0.00 0.00 0.00 0.00
Jul-98 1,240,625.00 513,838.00 2,736,221.00 -328,125.00 -37,218.75 0.00 -365,343.75
Aug-98 912,500.00 0.00 2,736,221.00 0.00 0.00 0.00 0.00
Sep-98 912,500.00 0.00 2,736,221.00 0.00 0.00 0.00 0.00
Oct-98 912,500.00 513,839.00 3,250,060.00 -456,250.00 -27,375.00 0.00 -483,625.00
Nov-98 456,250.00 0.00 3,250,060.00 0.00 0.00 0.00 0.00
Dec-98 456,250.00 0.00 3,250,060.00 0.00 0.00 0.00 0.00
Jan-99 456,250.00 513,839.00 3,763,898.00 -456,250.00 -13,687.50 0.00 -469,937.50
Feb-99 0.00 0.00 3,763,899.00 0.00 0.00 0.00 0.00
------------------------------------------------------------
DATE Cumulative Cash in hand Cash in hand
------
Payments (monthly) (cumulative)
------------------------------------------------------------
Nov-96 0.00 0.00 0.00
Dec-96 0.00 317,195.00 317,195.00
Jan.97 -6,562.50 -6,562.50 310,632.50
Feb-97 -6,562.50 0.00 310,632.50
Mar-97 -6,562.50 0.00 310,632.50
Apr-97 -285,312.50 4,899.00 315,531.50
May-97 -285,312.50 0.00 315,531.50
Jun-97 -285,312.50 0.00 315,531.50
Jul-97 -558,062.50 37,463.00 352,994.50
Aug-97 -558,062.50 0.00 352,994.50
Sep-97 -558,062.50 0.00 352,994.50
0ct-97 -952,937.50 -84,661.00 268,333.50
Nov-97 -952,937.50 0.00 268,333.50
Dec-97 -952,937.50 0.00 268,333.50
Jan-98 -1,337,968.75 102,241.75 370,575.25
Feb-98 -1,337,968.75 0.00 370,575.25
Mar-98 -1,337,968.75 0.00 370,575.25
Apr-98 -1,713,156.25 138,651.50 509,226.75
May-98 -1,713,156.25 0.00 509,226.75
Jun-98 -1,713,156.25 0.00 509,226.75
Jul-98 -2,078,500.00 148,494.25 657,721.00
Aug-98 -2,078,500.00 0.00 657,721.00
Sep-98 -2,078,500.00 0.00 657,721.00
Oct-98 -2,562,125.00 30,214.00 687,935.00
Nov-98 -2,562,125.00 0.00 687,935.00
Dec-98 -2,562,125.00 0.00 687,935.00
Jan-99 -3,032,062.50 43,901.50 731,836.50
Feb-99 0.00 0.00 0.00
* Pioneer income - rentals of 4 tenants (7 lease agreements) to be assigned
to loan.
** Loan coverage - 130% min. (ratio of Pioneer cumulative assigned income to
initial outstanding). Availability period starts on 26.12.96
--------------------------------------------------------------------------------
26
21.
APPENDIX 6
[DRAFT LETTER FROM XXXXXX XXXXXXX XXXX LLP]
27
Appendix 6
December __, 1996
Banque Societe Generale Vostok
Xxxxxxxx Xxxxxxxx 0
000000 Xxxxxx, Xxxxxx
Gentlemen:
We have acted as counsel to Pioneer Real Estate Advisors, Inc. ("PREA"), a
Delaware, U.S.A. corporation in connection with its execution and delivery of a
certain Credit Facility Agreement (the "Agreement"), dated as of __ December
1996, between PREA and Banque Societe Generale Vostok (the "Bank"). We are
giving this opinion pursuant to section 3.3(c) of the Agreement.
I. INFORMATION RELIED UPON. In rendering this opinion, we have reviewed, are
familiar with and have relied upon the Agreement, as executed and delivered by
PREA and the Bank, and the lease agreements (the "Leases") between PREA and the
entities listed in Appendix 2 of the Agreement (the "Tenants"). In addition, we
have reviewed and relied upon relevant and published laws, acts, regulations and
instructions of various government agencies and legislative bodies of the
Russian Federation and of the City of Moscow in effect as of December 2, 1996
("Relevant Law"). This opinion is based only on Relevant Law and no opinion is
given with respect to the laws of any other jurisdiction, region, oblast, city
or municipality.
II. OPINION. Based upon our examination of the Agreement, the Leases and
Relevant Law and subject to the assumptions and qualifications set forth below,
we are of the opinion that under Relevant Law, to the extent such law is
applicable to any of the Leases, the following formalities are required in order
to effect PREA's assignment to the Bank of PREA's right to receive base rents
under the Leases as security for the Credit Facility under the Agreement:
1. NOTIFICATION AND ASSURANCES TO TENANTS. PREA shall notify Tenants in
writing regarding the assignments to the Bank by PREA of the base rents
under the Leases, pursuant to Article 830 (1) of the Civil Code of the
Russian Federation ("Civil Code"). It must be noted that, pursuant to
Article 830 (2) of the Civil Code, the Tenants have the right to
request evidence of the assignment and the obligation of the Tenants
to pay the Bank will not mature until the Bank demonstrates evidence
of the assignment to the Tenants so requesting.
28
2. RECEIPT BY THE BANK OF A LICENSE TO CARRY ON LENDING ACTIVITIES. The
Bank must be duly licensed by the Central Bank of the Russian
Federation to lend money against the assignment of claims, pursuant to
Articles 825 and 173 of the Civil Code.
3. REGISTRATION OF THE AGREEMENT. Pursuant to Article 389 (2) of the
Civil Code and Presidential Decree # 293 of February 28, 1996, to
effect the assignment, the Bank is required to register the Agreement
with the Russian Federal Commission for Immovable Property and Real
Estate Appraisal ("Commission"). The Commission, however, has not yet
promulgated procedures for such registration, and, therefore, at
present it is not currently possible to register the Agreement with
the Commission. While we cannot opine on the possible impact of this
impossibility to register the Agreement on the validity of the
assignment, if past trends of legislative and regulatory
interpretation are any indication, we think that Russian courts and/or
government agencies of competent jurisdiction are likely to recognize
the assignment as valid and enforceable under Relevant Law, on the
condition that the Bank timely registers the Agreement once the
Commission establishes registration procedures.
III. ASSUMPTIONS. In rendering the opinion we have assumed the following:
1. In respect of all documents we have reviewed, examined or relied upon,
we have assumed the genuineness of all signatures, the conformity to
original documents of all the documents submitted to us as certified,
photostatic or facsimile copies and the authenticity of the originals
of such documents.
2. In respect of all the documents issued by government agencies of the
Russian Federation and various regional government bodies, we have
assumed that such government agencies acted in compliance with their
established rules and procedures in issuing such documents and that
any individual or individuals executing, certifying or otherwise
issuing any such documents on behalf of the government agencies have
all the requisite authority to act on behalf of such government
agencies.
IV. FURTHER QUALIFICATIONS. This opinion is subject to the following additional
qualifications:
1. This opinion speaks only to Relevant Law in effect as of December 2,
1996. No opinion is given as to any prospective matter, and no
undertakiing is given to update this opinion or advise you of any
changes in Relevant Law after such date.
.
.
2
29
2. Relevant Law and all interpretations of such law by the government
agencies of the Russian Federation and the City of Moscow, and all
statements made by us in this opinion with respect to Relevant Law and
application of it to the legal status PREA, the Bank and the Tenants,
are of necessity subject to the exercise of broad discretionary powers
of relevant authorities and legislative bodies of the government
agencies of the Russian Federation and the City of Moscow.
3. The opinions expressed in this letter are limited to the matters
expressly set forth herein, and no other opinion should be inferred
beyond the matters expressly stated. This opinion is solely for your
benefit in connection with the transactions contemplated by the
Agreement and may not be relied on by the Bank for any other purpose
or by any other person for any purpose, nor may the Bank furnish
copies of this opinion to any other person without the prior written
consent of Holme Xxxxxxx & Xxxx LLP.
Very truly yours
Holme Xxxxxxx & Xxxx LLP
By:
-------------------------------------
Xxxxxxxx X. XxXxxx, Partner
3
