EXHIBIT 4.10
GUARANTEE AGREEMENT
Property Code:
THIS GUARANTEE AGREEMENT (the "Guarantee Agreement") dated as
of January 26, 2001 is given by KONINKLIJKE AHOLD N.V., a public company with
limited liability organized under the laws of the Netherlands (the "Guarantor"),
to the Lessor identified on Schedule A hereto (the "Lessor"), FIRST UNION
NATIONAL BANK, both as the Pass Through Trustee under the Pass Through Trust
Agreements to be dated on or about February 12, 2001 (the "Pass Through
Trustee") and as the Indenture Trustee under the Trust Indenture and Security
Agreement to be dated on or about February 12, 2001 to which the Lessor is a
party (the "Indenture Trustee"), the Remainderman identified in Schedule A
hereto (the "Remainderman") and the Owner Participant identified in Schedule A
hereto (the "Owner Participant"), for each of their respective benefit and the
benefit of each other Indemnified Person (as defined in the Participation
Agreement referred to below) related to any one of them (individually, an
"Obligee" and, collectively, the "Obligees").
WHEREAS, the Owner Participant, Ahold Lease U.S.A., Inc. (the
"Lessee"), the Lessor, the Pass Through Trustee, the Indenture Trustee and
certain other parties have entered into that certain Participation Agreement
dated as of the date hereof (as amended, supplemented or modified from time to
time in accordance with the terms thereof, the "Participation Agreement") in
connection with the lease of, among others, the Leased Property referred to
therein and identified on Schedule A hereto; and
WHEREAS, as contemplated by the Participation Agreement, the
Lessor and the Lessee will enter into the Lease Agreement (the "Lease")
providing for the lease by the Lessor to the Lessee of the Leased Property; and
WHEREAS, as a condition to the participation by the Obligees
in the transactions contemplated by the Participation Agreement, the Obligees
require the irrevocable and unconditional guarantee by the Guarantor of the due
and punctual payment, observance and performance of all of the obligations of
the Lessee under the Lease, the Tax Indemnification Agreement, the Participation
Agreement, and the other Operative Agreements, in each case entered into in
connection with the Lease, to which the Lessee is a party (collectively, the
"Guarantee Documents"); and
WHEREAS, the Guarantor, in furtherance of its business
objectives, is willing to provide such guarantee on the terms and conditions
hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and other
valuable consideration (receipt of which is hereby acknowledged), the Guarantor
hereby agrees as follows:
SECTION 1. Definitions. Except as otherwise provided herein,
terms defined in Appendix A to the Participation Agreement are used herein as
defined therein.
SECTION 2. The Guarantee.
2.01 Guarantee. (a) The Guarantor hereby irrevocably,
absolutely and unconditionally guarantees, as primary obligor and as a guarantor
of payment and performance, and not merely as surety or guarantor of collection,
to each of the Obligees and their successors, permitted assigns and transferees
the due, complete and punctual payment of all amounts which are or may become
due and payable by the Lessee subject to any applicable grace period, and the
due, complete and punctual performance of all other agreements and undertakings
of the Lessee, under the Guarantee Documents, together with all claims for
damages arising from or in connection with the failure punctually and completely
to pay or perform such obligations (such obligations being herein collectively
called the "Guarantee Obligations"). In furtherance and not in limitation
hereof, the Guarantor does hereby agree that in the event that the Lessee does
not or is unable to punctually and completely pay or perform subject to any
applicable grace period the Guarantee Obligations for any reason (including,
without limitation, because of the liquidation, dissolution, receivership,
insolvency, bankruptcy, general assignment for the benefit of the creditors,
reorganization, arrangement, composition or readjustment of or other similar
proceedings affecting the status, existence, assets or obligations of, the
Lessee, or the limitation of damages from the breach or the disaffirmance of any
of the Guarantee Obligations in any such proceeding or the operation of any
other law or other legal proceeding or otherwise), the Guarantor shall pay the
rent or other amounts provided to be paid by the Lessee under the Lease or other
Guarantee Documents (the "Rent") or such other sums or amounts equal thereto (it
being the intention hereof that (a) the Guarantor shall pay to each Obligee to
which the Rent or other sums or amounts equal thereto are owing, as a payment
obligation due directly from the Guarantor to such Obligee, amounts equal to all
Guarantee Obligations constituting payment obligations which the Lessee fails to
pay promptly to such Obligee subject to any applicable grace period, as and when
due (whether at stated maturity, by acceleration, or otherwise) or otherwise
provide for and bring about such prompt payment subject to any applicable grace
period, as and when due, and (b) as to Guarantee Obligations not requiring the
payment of money, as a performance obligation due directly from the Guarantor to
any Obligee, the Guarantor shall punctually perform such other Guarantee
Obligations for the benefit of such Obligee).
(b) Notwithstanding any provision to the contrary
contained herein or in any other Operative Agreement, upon the occurrence of (i)
(x) a Bankruptcy Default with respect to the Lessee, and (y) a failure by the
Guarantor to perform its obligations under this Guarantee Agreement, or (ii) (x)
a Bankruptcy Default with respect to the Lessee, and (y) a Bankruptcy Default
with respect to the Guarantor, the Guarantor agrees, irrespective of whether in
fact the Lease remains in effect during such bankruptcy case or the Lessee is
complying with its payment and performance obligations under the Lease after the
occurrence of such Bankruptcy Default with respect to the Lessee, to pay in
satisfaction of the Guarantee Obligations due under this Guarantee Agreement, an
amount equal to the sum of (i) the Stipulated Loss Value that would have been
payable by the Lessee under Section 20.6 of the Lease if such Lease had been
terminated on the date of the occurrence of such Bankruptcy Default with respect
to the Lessee plus (ii) all other Guarantee Obligations which are then due or
thereafter become payable, minus (iii) any Basic Rent, Additional Rent or other
payments included in the foregoing amounts paid by or on behalf of the Lessee up
to the date payment in full is made by the Guarantor under this Section 2.01(b).
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2.02 Obligations Unconditional. The Guarantor agrees that
this Guarantee Agreement shall be continuing, and that the Guarantee Obligations
will be paid and performed in accordance with their terms and are absolute and
unconditional, irrespective of the value, genuineness, validity, legality,
regularity or enforceability or lack thereof of the Guarantee Documents or any
thereof or any part of the Guarantee Obligations or any agreement or instrument
relating to the Guarantee Obligations, or the existence of any indemnities with
respect to the Guarantee Documents, or the existence of any other guarantee of
or security for any of the Guarantee Obligations, or any substitution, release
or exchange of any other guarantee of or security for any of the Guarantee
Obligations, and to the fullest extent permitted by Applicable Law, irrespective
of any other circumstance whatsoever that might otherwise constitute a legal or
equitable discharge or defense of a surety or guarantor, it being the intent of
this Section 2.02 that the obligations of the Guarantor hereunder shall be
absolute and unconditional under any and all circumstances. Without limiting the
generality of the foregoing, it is agreed that the occurrence of any one or more
of the following shall not affect the liability of the Guarantor hereunder:
(a) at any time or from time to time, without notice to
the Guarantor, the time for any performance of or compliance with any of the
Guarantee Obligations shall be extended, renewed or accelerated or such
performance or compliance shall be waived;
(b) any of the acts mentioned in any of the provisions of
the Participation Agreement, the Lease or any other Guarantee Document shall be
done or omitted;
(c) the maturity of any of the Guarantee Obligations
shall be accelerated, or any of the Guarantee Obligations shall be modified,
supplemented or amended in any respect, or any right under any Guarantee
Document shall be waived or any other guarantee of any of the Guarantee
Obligations or any security therefor shall be released or exchanged in whole or
in part or otherwise dealt with;
(d) any Lien granted to, or in favor of, any Obligee as
security for any of the Guarantee Obligations shall be allowed to lapse or
expire, be subordinated or shall fail or cease to be perfected or shall be
discharged, disallowed, unenforceable, illegal or void for any reason;
(e) any waiver, rescission, modification, renewal or
amendment of any of the terms of the Guarantee Documents or the Guarantee
Obligations in any respect in accordance with their respective terms;
(f) any merger or consolidation of the Lessee into or
with any other Person, or any sale of all or any part of its assets by or
restructuring, liquidation, reorganization or termination of the corporate
existence of the Lessee or the Guarantor;
(g) any change in the ownership of any shares of the
capital stock of or interests in the Lessee or any other change in the
relationship between the Guarantor and the Lessee;
(h) any regulatory change or other governmental action
(whether or not adverse);
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(i) any legal disability, incapacity or other similar
defense of the Lessee;
(j) the entering into any of the Guarantee Documents by
the Lessee being invalid or in excess of the powers of the Lessee, as the case
may be, or of any Person purporting to act on its behalf;
(k) any transfer, sublease or assignment of the rights of
the Lessee pursuant to any of the Guarantee Documents;
(l) any exercise or nonexercise of any right, remedy,
power or privilege of any Person under or in respect of any Guarantee
Obligation;
(m) any voluntary or involuntary bankruptcy, insolvency,
reorganization, rearrangement, readjustment, assignment for the benefit of
creditors, composition, receivership, conservatorship, custodianship,
liquidation, marshalling of assets and liabilities or similar proceedings with
respect to the Lessee, the Guarantor, any other Person or any of their
respective properties or creditors, or any action taken by any trustee,
bewindvoerder, curator or receiver or by any court in any such proceeding or any
contest of the validity of the Lease or any other Guarantee Document or the
disaffirmation, attempted disaffirmation or rejection of the Lease or other
Guarantee Document in any such proceeding;
(n) the partial payment or performance of the Guarantee
Obligations (whether as a result of the exercise of any right, remedy, power or
privilege or otherwise) shall be accepted or received;
(o) all or any part of the Guarantee Obligations or any
collateral for or guarantee of all or any part of the Guarantee Obligations
shall be settled, compromised, released, liquidated or enforced upon such terms
and in such manner as Obligee may determine or as applicable law may dictate;
(p) any foreclosure or sale of, or other election of
remedies with respect to, any collateral serving as security for all or any part
of the Guarantee Obligations, even though such foreclosure, sale or election of
remedies may impair the subrogation rights of the Guarantor or may preclude the
Guarantor from obtaining reimbursement, contribution, indemnification or other
recovery from any Obligee, any other guarantor of any Guarantee Obligation or
any other Person and even though any such Obligee may not, as a result of such
foreclosure, sale or election of remedies, be liable for any deficiency;
(q) any defense, setoff, counterclaim, recoupment or
termination whatsoever by reason of the invalidity, illegality or
unenforceability of any Guarantee Obligation or otherwise, including, without
limitation, any assertion or determination that any claim arising from the
Guarantee Obligations, or any portion thereof, is limited in amount under
Section 502(b)(6) of the U.S. Bankruptcy Code;
(r) any default, failure or delay, whether as the result
of actual or alleged force majeure, commercial impracticability or otherwise, in
the performance of the Guarantee Obligations, or by any other act or
circumstance which may or might in any manner or to any extent vary
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the risk of the Guarantor or which would otherwise operate as a discharge of the
Guarantor as a matter of law;
(s) any failure, omission or delay on the part of any
Obligees to enforce, assert or exercise any right, power or remedy conferred on
it in this Guarantee, or any such failure, omission or delay on the part of any
Obligees in connection with any Guarantee Obligation, or any other action on the
part of any Obligees; or
(t) any other act or thing which, but for this provision,
could act as a release of the liabilities of or a legal or equitable defense to
or discharge of the obligations of the Guarantor hereunder.
The Guarantor hereby expressly waives notice of acceptance of
this Guarantee Agreement, diligence, marshalling of assets, presentment, demand
of payment or performance, protest and all other notices whatsoever, any
requirement that an Obligee exhaust any right, power or remedy or proceed
against the Lessee, as the case may be, under the Participation Agreement or any
other Guarantee Document, or against any other Person under any other guarantee
of, or security for, or any other agreement, regarding, any of the Guarantee
Obligations or any other circumstance which might otherwise constitute a defense
(legal or equitable) available to, or a discharge of, or a counterclaim or
rights of set-off by, the Lessee or the Guarantor (other than the due
performance of the Guarantee Obligations).
2.03 Reinstatement. The obligations of the Guarantor under
this Section 2 shall continue and be automatically reinstated if and to the
extent that for any reason any payment to any Obligee by or on behalf of the
Lessee, in respect of the Guarantee Obligations is rescinded or must be
otherwise restored by such Obligee, whether as a result of any proceedings in
bankruptcy or reorganization or otherwise, and the Guarantor agrees that it will
indemnify such Obligee on demand for all reasonable costs and expenses
(including, without limitation, reasonable fees and expenses of counsel)
incurred by such Obligee in connection with its compliance with or resistance to
any such rescission or restoration.
2.04 Continuing Guarantee. The guarantee in this Section 2
is a continuing guarantee and shall remain in full force and effect and be
binding on the Guarantor in accordance with its terms and shall inure to the
benefit of each Obligee and its permitted successors, assigns and transferees
until such time as all of the Guarantee Obligations are finally paid, performed
and observed in full and, except as contemplated by Section 2.01(b) hereof, the
Lease has been terminated and any time period during which any right of
recoupment or recovery by any trustee in bankruptcy, debtor in possession or
other Person shall have expired. The Guarantor hereby acknowledges and agrees
that this Guarantee Agreement constitutes a guarantee of payment and performance
due and not of collection.
2.05 Payment and Taxes. All payments hereunder shall be
made in the currency and funds required for the relevant payment due from the
Lessee, as the case may be, under the relevant Guarantee Document. All payments
by the Guarantor hereunder shall be made by the Guarantor with respect to the
Guarantee Obligations without withholding or deduction for or on account of any
present or future taxes, duties, levies or other governmental charges of
whatever
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nature in effect on the date hereof or imposed or established in the future by
or on behalf of any Governmental Authority (whether in the United States or The
Netherlands) ("Taxes"). In the event any such Taxes are so imposed or
established, the Guarantor shall pay such additional amounts ("Additional
Amounts") as may be necessary in order that the net amounts receivable by each
Obligee after any payment, withholding or deduction in respect of such Taxes
shall equal the respective amounts which would have been receivable in respect
of the Guarantee Obligations in the absence of such payment, withholding or
deduction; except that no Additional Amounts will be payable with respect to any
payment hereunder to the extent that one or more of the exclusions set forth in
Section 17(a) of the Participation Agreement would have applied had the payment
been made by the Lessee.
2.06 Judgment Currency. This Guarantee Agreement is made
by the Guarantor in connection with an international financing transaction in
which the specification of payment in Dollars at the designated place of payment
is of the essence, and Dollars shall be the currency of account in all events.
The obligation of the Guarantor hereunder to make payment in Dollars (the "first
currency") shall not be discharged or satisfied by any tender or recovery
pursuant to any judgment or otherwise expressed in or converted into another
currency (the "second currency") except to the extent that such tender or
recovery results in the effective receipt by any Obligee of the full amount in
the first currency payable to it under this Guarantee Agreement, and the
Guarantor shall indemnify each Obligee for any difference between such full
amount and the amount effectively received by it pursuant to any such tender or
recovery (including any resulting liability for Taxes on the Obligee from a
foreign currency gain resulting from the receipt of the second currency and its
conversion into the first currency), and each Obligee shall have an additional
claim against the Guarantor for the first currency due and owing to such
Obligee, which difference the Guarantor shall promptly pay to such Obligee.
2.07 Enforcement. (a) Any Obligee may enforce this
Guarantee Agreement. The Guarantor agrees to pay on demand all costs and
expenses, including reasonable attorneys' fees and disbursements and any other
costs of collection, incurred by any Obligee in the enforcement of any and all
terms of this Guarantee Agreement together with interest on such sums at the
Late Rate from the date when such expenses are so incurred.
(b) Subject to the provisions of paragraph (bb) following
the Granting Clauses of the Indenture, the Owner Participant shall have a
separate and independent right to make a demand for payment or performance of
any Guarantee Obligations due and owing to the Lessor and to exercise any and
all rights to enforce such claim, including, without limitation, bringing a
cause of action in any court of competent jurisdiction.
2.08 Representations and Warranties. The Guarantor makes,
as of the date hereof and as of the Closing Date, the following representations
and warranties to each Obligee:
(a) The Guarantor (i) is a public company with limited
liability duly organized and validly existing under the laws of The Netherlands,
(ii) has the corporate power and authority to consummate the transactions
contemplated herein and (iii) is qualified to do business in all jurisdictions
in which the nature of the business conducted by it makes such qualification
neces-
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sary or is subject to no material liability or disability by reason of the
failure to be so qualified in any such jurisdiction.
(b) The Guarantor has the corporate power and authority
to execute, deliver and perform the terms and provisions of this Guarantee
Agreement and has taken all necessary corporate action to authorize the
execution, delivery and performance by it of this Guarantee Agreement. The
Guarantor has duly executed and delivered this Guarantee Agreement, and this
Guarantee Agreement constitutes its valid and binding obligation enforceable in
accordance with its terms, except to the extent that the enforceability thereof
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws generally affecting creditors' rights or general equitable
principles (regardless of whether enforcement is sought in equity or at law).
(c) Neither the execution, delivery or performance by the
Guarantor of this Guarantee Agreement, nor the consummation by the Guarantor of
the transactions contemplated herein, (i) will contravene any applicable
provision of any law, statute, rule or regulation of any Governmental Authority,
(ii) will violate any provision of the Articles of Association of the Guarantor,
(iii) will violate the provisions of any material agreement or instrument to
which the Guarantor is a party or by which its property is bound, or (iv) will
result in the creation or imposition of any Lien on any assets or revenues of
the Guarantor.
(d) There has been no material adverse change in the
financial condition or results of operation of the Guarantor and its
consolidated subsidiaries, taken as a whole, since October 8, 2000.
(e) Under the laws of the United States, the State of New
York and The Netherlands in force at the date hereof, it is not necessary that
this Guarantee Agreement by filed, recorded, registered, notarized or enrolled
with any court or other authority in the United States, the State of New York or
The Netherlands or that any stamp, registration or similar tax be paid on or in
relation to this Guarantee Agreement (or where it is so required, this Guarantee
Agreement has been so filed, recorded or enrolled or such stamp, registration or
other tax has been paid or will be paid within the time due). This Guarantee
Agreement is in proper legal form under Dutch law for the enforcement hereof
under Dutch law. Neither the execution and the delivery of the Guarantee
Agreement nor the performance by the Guarantor thereof is subject to any tax,
duty, or similar levy imposed by or within The Netherlands or any political
subdivision or taxing authority thereof.
(f) The obligations of the Guarantor under this Guarantee
Agreement, when executed and delivered, will rank at least pari passu with all
other unsecured indebtedness of the Guarantor.
(g) There is no action, suit, proceeding or investigation
at law or in equity by or before any court, governmental body, agency,
commission or other tribunal now pending or, to the Guarantor's knowledge,
threatened against the Guarantor (i) which questions the validity of this
Guarantee Agreement or (ii) that would, if adversely determined, have a material
adverse effect on the business, results of operations or the financial condition
of the Guarantor and its
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consolidated subsidiaries, taken as a whole, or have a material adverse effect
on the ability of the Guarantor to perform its obligations under this Guarantee
Agreement.
(h) The consolidated historical financial statements and
schedules of the Guarantor and its consolidated subsidiaries, included in the
Guarantor's annual report on Form 20-F for the fiscal year ending January 2,
2000, present fairly in all material respects the financial condition, results
of operations and cash flow of the Guarantor and its consolidated subsidiaries
as of the dates and for the periods indicated therein.
2.09 Covenants. The Guarantor covenants to each Obligee
as follows:
(a) Subject to Section 2.09(b) hereof, the Guarantor
shall preserve and keep in full force and effect its corporate existence.
(b) (i) The Guarantor shall not consolidate with or merge
into any other entity or sell, convey, transfer or lease all or substantially
all of its assets to any Person, unless (x) such transaction shall not cause an
Event of Default to occur and (y) the entity formed by such consolidation or
into which the Guarantor is merged or the Person which acquires by sale,
conveyance, transfer or lease all or substantially all of the assets of the
Guarantor, shall execute and deliver to the Indenture Trustee and the Owner
Participant an agreement in form reasonably satisfactory to the Indenture
Trustee and the Owner Participant (a "Successor Agreement") containing an
assumption by such successor entity of the due and punctual performance and
observance of each covenant and condition of this Guarantee Agreement.
(ii) Upon any consolidation or merger in which the
Guarantor is not the surviving entity, or any sale, conveyance, transfer or
lease of all or substantially all of the assets of the Guarantor, the entity
with which the Guarantor is consolidated or into which it is merged or to which
such sale, conveyance, transfer or lease is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Guarantor under
this Guarantee Agreement with the same effect as if such successor entity had
been named as the Guarantor herein and the Guarantor or any successor entity
which shall theretofore have become such shall be relieved of any further
obligation hereunder upon delivery of a Successor Agreement.
(iii) The Indenture Trustee and the Owner
Participant shall be entitled to receive, prior to or simultaneously with such
consolidation, merger, sale, conveyance, transfer or lease, an Officer's
Certificate and a written opinion of counsel of the Guarantor (in each case, in
form and substance reasonably satisfactory to the Indenture Trustee and the
Owner Participant, and covering such matters as they may reasonably request) as
conclusive evidence that any consolidation, merger, sale, conveyance, transfer
or lease to which Section 2.09(b) relates complies with the provisions of this
Section 2.09(b).
(c) The Guarantor will furnish to the Owner Participant,
the Pass Through Trustee and the Indenture Trustee:
(i) Within 90 days after the end of each quarterly
fiscal period (except the last) of each fiscal year, commencing with the fiscal
quarter ending April 22, 2001, copies of:
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(A) a balance sheet of the Guarantor and
its consolidated subsidiaries as of the close
of such period; and
(B) a statement of income of the
Guarantor and its consolidated subsidiaries
for the portion of the fiscal year ending with
such period;
in each case setting forth in comparative form the
figures for the corresponding period of the preceding
fiscal year, certified by an officer of the Guarantor
as fairly presenting the financial position of the
Guarantor and its consolidated subsidiaries as at the
date of such financial statements and for the period
then ending, subject to changes resulting from
year-end audit adjustments.
(ii) Within 180 days after the end of each fiscal
year of the Guarantor, copies of:
(A) a balance sheet of the Guarantor and
its consolidated subsidiaries as of the close
of such fiscal year; and
(B) statements of income, common
stockholders' equity and cash flows of the
Guarantor and its consolidated subsidiaries
for such fiscal year;
in each case setting forth in comparative form the
figures for the preceding fiscal year, all in
reasonable detail and accompanied by an opinion
thereon of independent public accountants of
recognized international standing selected by the
Guarantor, to the effect that such financial
statements present fairly the financial position of
the Guarantor and its consolidated subsidiaries and
have been prepared in accordance with generally
accepted accounting principles consistently applied
and that the examination of such accountants in
connection with such financial statements has been
made in accordance with applicable generally accepted
auditing standards.
(iii) Within 180 days after the end of each fiscal
year of the Guarantor, the Guarantor will provide to the Indenture Trustee and
Owner Participant an Officer's Certificate stating as to the officer signing
such certificate, whether or not, to such officer's knowledge after reasonable
investigation, as of the date of such Officer's Certificate, the Guarantor is in
compliance with all of its obligations under this Guarantee Agreement and, if
not, specifying all such instances of noncompliance and the nature thereof of
which such officer may have knowledge, and the actions proposed to be undertaken
by the Guarantor with respect thereto; provided, however, that so long as the
Guarantor is subject to the reporting requirements of Section 13 or 15(d) of the
Exchange Act, the Guarantor shall not be required to deliver such Officer's
Certificate to the Owner Participant or the Indenture Trustee unless it receives
a written request from the Owner Participant or the Indenture Trustee, in which
case the Guarantor shall deliver such Officer's Certificate within 20 days of
its receipt of such request.
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(iv) Promptly after it has knowledge that it has
failed to comply with any of its material obligations under this Guarantee
Agreement, the Guarantor shall deliver to the Owner Participant, the Pass
Through Trustee and the Indenture Trustee a notice to such effect describing the
same in reasonable detail and, together with such notice or as soon thereafter
as possible, a description of the action that it has taken or proposes to take
with respect thereto.
2.10 Subrogation. The Guarantor hereby agrees that, until
the payment and satisfaction in full of all Guarantee Obligations and, except as
contemplated by Section 2.01(b) hereof, the termination of the Lease, it shall
not exercise any right or remedy arising by reason of any performance by it of
its guarantee in Section 2.01 hereof, whether by subrogation or otherwise,
against the Lessee or any other guarantor of any of the Guarantee Obligations or
any security for any of the Guarantee Obligations. In the event that the
Guarantor shall receive any payment on account of such rights of subrogation
while any portion of the Guarantee Obligations remains outstanding, the
Guarantor agrees to pay all such amounts so received (but not in excess of the
Guarantee Obligations then outstanding), to the Lessor, or, so long as the Liens
of the Security Documents have not been discharged and released, to the
Indenture Trustee (other than Excepted Payments), in each case to be applied to
the payment of the Guarantee Obligations and other amounts with respect to the
Leased Property payable under the Operative Agreements in accordance with the
respective terms thereof. Upon irrevocable payment and satisfaction in full of
all Guarantee Obligations, the Guarantor shall be subrogated to the rights of
the Obligees hereunder.
2.11 Remedies. The Guarantor agrees that, as between
Guarantor and each Obligee, the Guarantee Obligations may be declared to be
forthwith due and (in the case of payment obligations) payable as provided in
Section 2.01 hereof notwithstanding any stay, injunction or other prohibition
preventing such declaration (or such obligations from becoming automatically due
and (in the case of payment obligations) payable as against the Lessee, as the
case may be) and that, in the event of any such declaration, such obligations
payable by the Lessee, as the case may be, shall forthwith become due and (in
the case of payment obligations) payable by the Guarantor.
SECTION 3. Miscellaneous.
3.01 No Waiver. No failure on the part of any Obligee or
any of its agents to exercise, and no course of dealing with respect to, and no
delay in exercising, any right, power or remedy hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise by any Obligee or any
of its agents of any right, power or remedy hereunder preclude any other or
further exercise thereof or the exercise of any other right, power or remedy.
The remedies herein are cumulative and are not exclusive of any remedies
provided by law.
3.02 Governing Law. This Guarantee Agreement has been
executed and delivered in the State of New York. This Guarantee Agreement shall
be governed by and construed in accordance with the laws of the State of New
York (including Sections 5-1401 and 5-1402 of the New York General Obligations
Law but excluding all other choice-of-law and conflicts-of-law rules).
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3.03 Submission to Jurisdiction; Agent for Service of
Process; Waiver of Jury Trial. (a) Any suit, action or proceeding against the
Guarantor with respect to this Guarantee Agreement or any judgment entered by
any court in respect of this Guarantee Agreement may be brought in the United
States District Court for the Southern District of the State of New York or the
Supreme Court of the State of New York for New York County.
(b) The Guarantor hereby irrevocably consents to the
service of process in any suit, action or proceeding in said court in accordance
with Applicable Law. The Guarantor hereby irrevocably waives any objection which
it may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Guarantee Agreement or any
judgment entered by any court in respect of this Guarantee Agreement brought in
any of the aforesaid court and hereby further irrevocably waives any claim that
any suit, action or proceeding brought in said court has been brought in an
inconvenient forum.
(c) The Guarantor has appointed Ahold U.S.A., Inc., ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇, as its authorized agent (the
"Authorized Agent") upon whom process may be served in any suit, action or
proceeding arising out of or based upon this Guarantee Agreement or the
transactions contemplated hereby which may be instituted in the United States
District Court for the Southern District of the State of New York or the Supreme
Court of the State of New York for New York County, by any Obligee. The
Guarantor represents and warrants that the Authorized Agent has agreed to act as
such agent for service of process and agrees to take any and all action,
including the filing of any and all documents and instruments, that may be
necessary to continue such appointment in full force and effect as aforesaid.
Service of process upon the Authorized Agent and written notice of such service
to the Guarantor shall be deemed, in every respect, effective service of process
upon the Guarantor.
(d) TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE
GUARANTOR HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY JUDICIAL PROCEEDING
TO WHICH IT IS A PARTY INVOLVING ANY CLAIM UNDER THIS GUARANTEE AGREEMENT.
3.04 Notices. The provisions of Section 14 of the
Participation Agreement concerning notices are hereby incorporated herein by
reference, as if fully set forth herein.
3.05 Waivers and Amendments. This Guarantee Agreement and
any provision hereof may be terminated, waived, amended, modified or
supplemented only by an agreement or instrument in writing, specifying the
provision (or, if applicable, the whole of this Guarantee Agreement) intended to
be terminated, waived, amended, modified or supplemented, and executed by the
Guarantor, the Owner Participant, the Lessor, the Remainderman and, unless the
Lien of the Indenture shall have been discharged in accordance with the terms
thereof, to the extent provided in the Indenture, the Indenture Trustee and the
Pass Through Trustee, provided, that if any Pass Through Certificates are then
outstanding, Rating Agency Confirmation is obtained with respect to such
termination, waiver, amendment, modification or supplement.
3.06 Successors and Assigns. This Guarantee Agreement
shall be binding upon, and inure to the benefit of, the respective successors
and assigns of the Guarantor and the
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Obligees; provided, that the Guarantor shall not assign or transfer its rights
hereunder without the prior written consent of the Obligees, and shall not
assign, transfer or delegate its duties hereunder. The Guarantor hereby
acknowledges receipt of a copy of the Indenture and consents in all respects (to
the extent such consent may be necessary) to the provisions of the Indenture and
to the collateral assignment of the Lessor's right, title, interest, claim and
demand in, to and under this Guarantee Agreement as and to the extent set forth
in the Indenture, including, without limitation, all amounts payable pursuant to
Section 2.07(b) of this Guarantee Agreement.
3.07 Severability. Should any of the provisions of this
Guarantee Agreement be or become fully or in part invalid or unenforceable, the
other provisions hereof shall remain enforceable and in full force and effect.
3.08 Further Assurances. The Guarantor shall execute and
deliver all such instruments and take all such actions as any of the Obligees
may from time to time reasonably request in order to effectuate fully the
purposes of this Guarantee Agreement.
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IN WITNESS WHEREOF, the Guarantor and each Obligee have caused
this Guarantee Agreement to be duly executed and delivered by one of their
officers thereunto duly authorized as of the date first above written.
KONINKLIJKE AHOLD N.V.
By
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
FIRST UNION NATIONAL BANK,
as Pass Through Trustee, and
as Indenture Trustee
By
--------------------------------
Name:
Title:
NAME OF REMAINDERMAN
By
--------------------------------
Name:
Title:
[NAME OF LESSOR LLC]
By [OWNER PARTICIPANT], as
Managing Member
By
--------------------------------
Name:
Title:
[NAME OF OWNER PARTICIPANT]
By
--------------------------------
Name:
Title: