U.S.$2,000,000,000
FACILITY AGREEMENT
between
KONINKLIJKE AHOLD N.V.
as Borrower
ABN AMRO BANK N.V.
as Arranger
ABN AMRO BANK N.V.
as Facility Agent
and
ABN AMRO BANK N.V.
as Original Lender
▇▇▇▇▇▇▇▇ Chance
Amsterdam
THIS AGREEMENT is made the 7th day of September, 1998
BETWEEN:
(1) KONINKLIJKE AHOLD N.V. as borrower (the "BORROWER");
(2) ABN AMRO BANK N.V. as arranger (the "ARRANGER");
(3) ABN AMRO BANK N.V. as facility agent (the "FACILITY AGENT"); and
(4) ABN AMRO BANK N.V. as original lender (the "ORIGINAL LENDER").
NOW IT IS HEREBY AGREED as follows:
PART 1
INTERPRETATION
1. INTERPRETATION
1.1 In this Agreement:
"ACQUISITION" means (x) the purchase for cash by Ahold Acquisition of the Class
A Shares pursuant to the Offer to Purchase for Cash, the purchase for cash by
Ahold Acquisition of the Class AC Shares pursuant to the Stock AC Purchase
Agreement and the purchase for cash by Ahold Acquisition of the Class AL shares
pursuant to the Stock AL Purchase Agreement and (y) the Merger;
"ACQUISITION DATE" means the date upon which Ahold Acquisition purchases Class A
Shares subject to the Tender Offer;
"ADVANCE" means, save as otherwise provided herein, an advance (as from time to
time reduced by repayment) made or to be made by the Banks hereunder;
"AHOLD ACQUISITION" means Giant Acquisition Corporation, a Delaware corporation
wholly owned by Ahold U.S.A.,Inc. a Delaware corporation, which itself is
indirectly wholly owned by the Borrower;
"APPLICABLE MARGIN" means (subject to Clause 5.3 (Accrued Interest)) 0.15 per
cent. per annum;
"AVAILABLE COMMITMENT" means, at any time and save as otherwise provided herein:
(a) in relation to the Original Lender, $2,000,000,000 as the same
may be varied as a result of transfers pursuant to Clause 25.3
(Transfers by Banks); and
(b) in relation to any other Bank, the amount transferred to it as
Available Commitment, as the same may be varied, as a result of
transfers pursuant to Clause 25.3 (Transfers by Banks),
LESS the aggregate amount which it has advanced hereunder at such
time.
"AVAILABLE FACILITY" means, at any time, the aggregate amount of the Available
Commitments at such time;
"BANK" means each of the Original Lender and any other bank or other financial
institution which becomes a party hereto pursuant to a transfer in accordance
with Clause 25.3 (Transfers by Banks) and any reference herein to the "BANKS"
shall, unless the context otherwise requires, be construed as a reference to the
Original Lender and each other bank or other financial institution (if any)
which shall have so become a party hereto.
"CLASS A SHARES" means the shares of Class A common stock in Target which are
the subject of the Offer to Purchase for Cash;
"CLASS AC SHARES" means the 125,000 shares of Class AC common stock in Target,
owned by The 1224 Corporation, which are the subject of the Stock AC Purchase
Agreement;
"CLASS AL SHARES" means the 125,000 shares of Class AL common stock in Target
owned by ▇. ▇▇▇▇▇▇▇▇▇ USA Holdings, Inc., which are the subject of the Stock AL
Purchase Agreement;
"CODE" means the United States Internal Revenue Code of 1986, as amended;
"DRAWDOWN DATE" means, in relation to any Advance, the date on which such
Advance is made available or is to be made available hereunder;
"EMPLOYEE PLAN" shall mean an "employee pension benefit plan" as defined in
Section 3(2) of ERISA, other than a Multiemployer Plan, which is maintained for,
or under which contributions are made on behalf of, employees of any Material US
Subsidiary or any ERISA Affiliate;
"ENVIRONMENT" means:
(a) land including any natural or man-made structures;
(b) water including ground waters and waters in drains and sewers;
(c) air including air within buildings and other natural or man-made
structures above or below ground;
"ENVIRONMENTAL LAWS" means all and any applicable laws, including common law,
statute and subordinate legislation, European Community Regulations and
Directives and judgments and decisions, laws and regulations including those of
the United States of America and any state or locality therein, including
notices, orders and circulars, of any court or authority competent to make such
judgment or decision, compliance with which is mandatory for any member of the
Group in any jurisdiction with regard to:
(a) the pollution or protection of the Environment:
(b) harm to the health of humans, animals or plants including laws
relating to public and workers' health and safety;
(c) emissions, discharges or releases into the Environment of
chemicals or any other pollutants or contaminants or industrial,
radioactive, dangerous, toxic or hazardous substances or wastes
(whether in solid, semi-solid, liquid or gaseous form and
including noise and genetically-modified organisms; or
(d) the manufacture, processing, use, treatment, storage,
distribution, disposal, transport or handling of the substances
or wastes described in (c) above;
"ENVIRONMENTAL PERMITS" means all and any permits, licences, consents,
approvals, certificates, qualifications, specifications, registrations and other
authorisations including any conditions which attach to any of the foregoing and
the filing of all notifications, reports and assessments required under
Environmental Laws for the operation of any business or for the sale, use,
ownership, leasing, or operation of any real property;
"ERISA" means the United States Employee Retirement Income Security Act of 1974,
as amended, and the rules and regulations thereunder;
"ERISA AFFILIATE" shall mean any person that for the purposes of Title I and
Title IV of ERISA and Section 412 of the Code is a member of any member of any
Material US Subsidiary's controlled group, or under common control with any
Material US Subsidiary, within the meaning of Section 414 (b) and (c) of the
Code and the regulations promulgated and rulings issued thereunder;
"ERISA EVENT" shall mean (i) (A) any reportable event, as defined in Section
4043(c) of ERISA with respect to an Employee Plan, as to which PBGC has not by
regulation waived the requirement of Section 4043(a) of ERISA that it be
notified within thirty days of the occurrence of such event (provided that a
failure to meet the minimum funding standard of Section 412 of the Code or
Section 302 of ERISA shall be a reportable event for the purposes of this
sub-paragraph (i) regardless of the issuance of any waivers in accordance with
Section 412(d) of the Code); or (B) the requirements of subsection (1) of
Section 4043(b) of ERISA (without regard to subsection (2) of such Section) are
met with respect to a contributing sponsor, as defined in Section 4001(a)(13) of
ERISA, of an Employee Plan and an event described in paragraph (9), (10), (11),
(12) or (13) of Section 4043(c) of ERISA is reasonably expected to occur with
respect to such Employee Plan within the following 30 days; (ii) the filing
under Section 4041(c) of ERISA of a notice of intent to terminate any Employee
Plan or the termination of any Employee Plan under Section 4042 of ERISA; (iii)
the failure to make a required contribution to any Employee Plan that would
result in the imposition of a lien under Section 412(n) of the Code or Section
302 (f) of ERISA; and (iv) an enagement in a non-exempt prohibited transaction
within the meaning of Section 4975 of the Code or Section 406 of ERISA;
"EVENT OF DEFAULT" means any of those events specified in Clause 14 (Events of
Default);
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended;
"EXISTING FACILITIES" means the US$ 1,000,000,000 Multicurrency Revolving Credit
and US Dollar and Dutch Guilder Swing-Line Facilities Agreement dated 18
December, 1996 and the US$ 500,000,000 Multicurrency Revolving Credit Agreement
dated 18 March, 1998 each entered into between, inter alia, Koninklijke Ahold
N.V. as borrower, ABN AMRO Bank N.V. as arranger and facility agent, and the
financial institutions named therein as banks;
"FACILITY" means the dollar term loan facility granted to the Borrower in this
Agreement;
"FACILITY OFFICE" means, in relation to the Facility Agent or any Bank, the
office identified with its signature below (or, in the case of a Transferee, at
the end of the Transfer Certificate to which it is a party as Transferee) or
such other office as it may from time to time select;
"GROUP" means the Borrower and its subsidiaries for the time being including,
after the Acquisition Date, Target and its subsidiaries;
"IRS" means the United States Internal Revenue Service;
"INFORMATION MEMORANDUM" means the document concerning the Borrower which, on
its behalf, will be prepared in relation to this transaction and distributed by
the Arranger to selected banks;
"INSTRUCTING GROUP" means:
(i) at any time whilst no Advances are outstanding hereunder and
in any event for the purposes of Clause 30 (Amendments), a
Bank or group of Banks the aggregate of whose Commitments at
such time (or, if each Bank's Commitment has been reduced to
zero, did immediately before such reduction to zero) amount in
aggregate to more than sixty-six and two-thirds per cent. of
the Total Commitments at such time; or
(ii) at any time that there are one or more Advances outstanding
hereunder, a Bank or group of Banks to whom more than
sixty-six and two-thirds per cent. of the Loan at such time is
owed;
"INTEREST PERIOD" means, save as otherwise provided herein, any of those periods
mentioned in Clause 4.1 (Interest Periods);
"LETTER OF TRANSMITTAL" means the form of letter of transmittal filed as an
exhibit to the the Schedule 14D-1 filed by the Borrower on 19 May, 1998 with the
SEC pursuant to Section 14(d)(1) of the Exchange Act with respect to the Tender
Offer;
"LOAN" means the aggregate principal amount for the time being outstanding
hereunder;
"LIBOR" means, in relation to any Advance or unpaid sum in respect of the
Facility:
(i) the rate per annum which is the offered rate (if any)
appearing on page 3750 (or any successor or replacement page)
of the Telerate Screen which displays British Bankers'
Association Settlement Rates for deposits in the London
Interbank Market for the specified period denominated in
dollars during the specified period at or about 11.00 a.m. on
the Quotation Date for the specified period; or
(ii) in the event no such rate can be determined for the specified
period in accordance with (i) above, the rate per annum
determined by the Facility Agent to be equal to the arithmetic
mean (rounded upwards to four decimal places) of the rates (as
notified to the Facility Agent) at which each of the Reference
Banks was offering to prime banks in the London Interbank
Market deposits in dollars for the specified period at or
about 11.00 a.m. on the Quotation Date for such period
and for the purposes of this definition, "SPECIFIED PERIOD" means an Interest
Period relating to such Advance or, as the case may be, the period in respect of
which LIBOR falls to be determined in relation to such unpaid sum;
"MARGIN STOCK" has the meaning assigned that term in Regulation U of the Board
of Governors of the Federal Reserve System of the United States (or any
successor) as in effect from time to time;
"MATERIAL SUBSIDIARY" means, at any time:
(i) any subsidiary of the Borrower the assets of which exceed ten per
cent. (10%) of the consolidated assets of the Group taken as a
whole; and
(ii) each other subsidiary of the Borrower specified from time to time
by the Borrower (which, at the date hereof and without limitation
to the foregoing, are the companies listed in the Seventh
Schedule)
Provided that the Borrower shall ensure that the assets of all subsidiaries
referred to in paragraphs (i) and (ii) shall at all times account for at least
eighty per cent. (80%) of the consolidated assets of the Borrower and its
subsidiaries and for these purposes, the assets of such subsidiary or the
Borrower and its subsidiaries (as the case may be) shall in each case be
adjusted, as the Facility Agent, acting on the instructions of an Instructing
Group, may consider appropriate, to take account of any changes in circumstances
since the date as of which the most recent audited consolidated financial
statements were prepared.
"MATERIAL US SUBSIDIARY" means (a) Target and (b) any Material Subsidiary which
is incorporated under the laws of the United States or any state thereof;
"MERGER" means the merger to take place between Ahold Acquisition and Target
after the date hereof on terms acceptable to the Facility Agent;
"MERGER DOCUMENT" means the merger agreement to be entered into between Ahold
U.S.A., Inc., Ahold Acquisition and Target or, if no such merger agreement is
entered into, the certificate of ownership and merger to be filed by Ahold
U.S.A., Inc. with the Secretary of State of the State of Delaware, in each case,
in relation to the Merger;
"MULTIEMPLOYER PLAN" means a "multiemployer plan" (as such term is defined in
Section 4001(a)(3) of ERISA);
"NOTICE OF DRAWDOWN" means a notice substantially in the form set out in the
Fourth Schedule;
"OFFER TO PURCHASE FOR CASH" means the document entitled "Offer to Purchase for
Cash All Outstanding Class A Shares of Common Stock of Giant Food Inc." dated 19
May, 1998, as amended from time to time;
"ORIGINAL CONSOLIDATED FINANCIAL STATEMENTS" means the audited consolidated
financial statements of the Borrower for its financial year ended 28 December,
1997;
"PBGC" means the United States Provision Benefit Guaranty Corporation or any
successor thereto under ERISA;
"PARTICIPATION" in relation to a Bank at any time means the aggregate of such
Bank's Available Commitment at such time and its share of the Loan at such time;
"POTENTIAL EVENT OF DEFAULT" means any event which could or would become (with
the passage of time, the giving of notice, the making of any determination
hereunder or any combination thereof) an Event of Default;
"PROPORTION" means, in relation to a Bank, the proportion borne by its
Commitment to the Total Commitments (or, if the Total Commitments are then zero,
by its Commitment to the Total Commitments immediately prior to their reduction
to zero);
"QUOTATION DATE" means, in relation to any period for which an interest rate is
to be determined hereunder, the day which is two business days in London prior
to the first day of such period;
"REFERENCE BANKS" means the principal London offices of ▇▇▇▇▇▇ Guaranty Trust
Company of New York, ABN AMRO Bank N.V. and Credit Suisse or such other bank or
banks as may from time to time be agreed between the Borrower and the Facility
Agent;
"REGULATIONS" mean any regulations of the Board of Governors of the Federal
Reserve System of the United States from time to time in force;
"REPAYMENT DATE" means 16 May, 1999;
"SEC" means the United States Securities and Exchange Commission;
"STOCK AC PURCHASE AGREEMENT" means the agreement dated 19 May, 1998 as amended
from time to time as permitted hereunder between the Borrower and The 1224
Corporation relating to the Class AC Shares;
"STOCK AL PURCHASE AGREEMENT" means the agreement dated 27 May, 1998 as amended
from time to time as permitted hereunder between the Borrower, ▇. ▇▇▇▇▇▇▇▇▇ plc
and JS Mass. Securities Corp. relating to the Class AL Shares;
"SUBSTANTIAL" means equal to or greater than 10 per cent. of the relevant amount
as disclosed by the latest audited consolidated balance sheet or, as the case
may be, profit and loss account of the Group;
"TARGET" means Giant Food Inc., a corporation organised and existing under the
laws of the State of Delaware;
"TARGET GROUP" means Target and its subsidiaries for the time being;
"TENDER OFFER" means the tender offer made by the Borrower in respect of the
Class A Shares for the purposes of the Acquisition pursuant to the Offer to
Purchase for Cash;
"TENDER OFFER DOCUMENTS" means the Schedule 14D-1 filed by the Borrower on 19
May, 1998 with the SEC pursuant to Section 14(d)(1) of the Exchange Act with
respect to the Tender Offer together with all amendments, supplements and
exhibits thereto, including the form of Offer to Purchase for Cash and the form
of Letter of Transmittal set forth in the Exhibits thereto, including any other
amendments prior to the date hereof that (i) relate only to (a) an extension of
time during which the Offer to Purchase for Cash remains outstanding, (b) the
status of discussions with the appropriate authorities in relation to an
anti-trust regulatory clearance or (c) the results of the Tender Offer or (ii)
are approved by the Facility Agent;
"TENDERED SHARES" means the Class A Shares which are tendered pursuant to the
Tender Offer and not withdrawn;
"TERMINATION DATE" means the day which is the earlier of (i) the Repayment Date
and (ii) the first business day on which the Available Commitment of each of the
Banks is zero;
"TOTAL COMMITMENTS" means the aggregate for the time being of the Banks'
Commitments;
"TRANSACTION DOCUMENTS" means the Tender Offer Documents, the Stock AC Purchase
Agreement and the Stock AL Purchase Agreement and all documents, instruments and
agreements executed and delivered in connection therewith or as required
thereunder;
"TRANSFER CERTIFICATE" means a certificate substantially in the form set out in
the Second Schedule signed by a Bank and a Transferee whereby:
(i) such Bank seeks to procure the transfer to such Transferee of
all or a part of such Bank's rights and obligations hereunder
upon and subject to the terms and conditions set out in Clause
25.3 (Transfer by Banks); and
(ii) such Transferee undertakes to perform the obligations it will
assume as a result of delivery of such certificate to the
Facility Agent as is contemplated in Clause 25.3 (Transfer by
Banks);
"TRANSFER DATE" means, in relation to any Transfer Certificate, the date for the
making of the transfer as specified in the schedule to such Transfer
Certificate;
"TRANSFEREE" means a bank or other financial institution to which a Bank seeks
to transfer all or part of such Bank's rights and obligations hereunder; and
"UNITED STATES" and "US" means the United States of America (including the
District of Columbia), its territories, possessions and other areas subject to
the jurisdiction of the United States of America.
1.2 Any reference in this Agreement to:
the "FACILITY AGENT" or any "BANK" in any capacity hereunder shall be construed
so as to include its and any subsequent successors, Transferees and assigns in
accordance with their respective interests;
"AFFILIATE" of any person is a reference to a holding company or a subsidiary,
or a subsidiary of a holding company, of such person;
any "APPLICABLE LAW" shall be construed so as to include all present and future
applicable laws, statutes, regulations, codes, treaties, conventions, judgments,
awards, determinations or decrees;
"BORROWED MONEY" means, in respect of any person:
(i) money borrowed or raised and premiums (if any) and capitalised
interest in respect thereof;
(ii) the principal and premiums (if any) and capitalised interest in
respect of any debenture, bond, note, loan stock or similar
instrument;
(iii) liabilities in respect of any letter of credit, acceptance
credit, ▇▇▇▇ discounting or note purchase facility and any
receivables purchase, factoring or discounting arrangement;
(iv) rental or hire payments under leases or hire purchase agreements
(whether in respect of land, machinery equipment or otherwise)
entered into primarily for the purpose of raising finance;
(v) the deferred purchase price of assets or services in respect of
transactions which have the commercial effect of borrowing or
which otherwise finance its or the Group's operations or capital
requirements (except any such arrangements entered into in the
ordinary and usual course of trading and having a term not
exceeding 90 days from the date on which the liability was
originally incurred);
(vi) liabilities in respect of any foreign exchange agreement,
currency or interest purchase or swap transactions or similar
arrangements;
(vii) all obligations to purchase, redeem, retire, defease or otherwise
acquire for value any share capital of any person or any
warrants, rights or options to acquire such share capital in
respect of transactions which have the commercial effect of
borrowing or which otherwise finance its or the Group's
operations or capital requirements;
(viii) any other transactions having the commercial effect of
borrowing entered into by any person to finance its operations or
capital requirements; and
(ix) all indebtedness for borrowed money of other persons referred to
in paragraphs (i) to (viii) above guaranteed directly or
indirectly in any manner by such person, or having the commercial
effect of being guaranteed directly or indirectly by such person
by virtue of an agreement (a) to pay or purchase such
indebtedness for borrowed money or to advance or supply funds for
the payment or purchase of such indebtedness for borrowed money,
(b) to purchase or lease (as lessee) property, or to purchase
services, primarily for the purpose of enabling the debtor to
make payments of such indebtedness for borrowed money, (c) to
supply funds to or in any other manner invest in the debtor
(including any agreement to pay for property of services
irrespective of whether such property is received or such
services are rendered) or (d) otherwise to assure any person to
whom indebtedness for borrowed money is owed against loss with
respect thereto;
a "BUSINESS DAY" shall be construed as a reference to a day (other than a
Saturday or Sunday) on which banks are generally open for business in London,
New York and Amsterdam;
a "BUSINESS DAY IN AMSTERDAM" shall be construed as a reference to a day (other
than a Saturday or a Sunday) on which banks are generally open for business in
Amsterdam, The Netherlands;
a "BUSINESS DAY IN LONDON" shall be construed as a reference to a day (other
than a Saturday or a Sunday) on which banks are generally open for business in
London, England;
a "CLAUSE" shall, subject to any contrary indication, be construed as a
reference to a clause hereof;
"ENCUMBRANCE" means any mortgage, pledge, lien (other than a lien arising solely
by operation of law in the ordinary course of business), charge, assignment,
hypothecation, security interest or other encumbrance or charge by way of
security or any title retention right (other than in the ordinary course of
trading), preferential right (other than a preferential right accorded to
creditors on a liquidation solely by operation of law) or trust arrangement or
other agreement or arrangement the effect of any of which is the creation of
security;
"EQUIVALENT" means on any given date in one currency (the "FIRST CURRENCY") of
an amount denominated in another currency (the "SECOND CURRENCY") is a reference
to the amount of the first currency which could be purchased with the amount of
the second currency at the spot rate of exchange quoted by the Facility Agent at
or about 12.00 (noon) on such date for the purchase of the first currency with
the second currency;
a "HOLDING COMPANY" of a company or corporation shall be construed as a
reference to any company or corporation of which the first-mentioned company or
corporation is a subsidiary;
"INDEBTEDNESS" shall be construed so as to include any obligation (whether
incurred as principal or as surety) for the payment or repayment of money,
whether present or future, actual or contingent;
a "MONTH" is a reference to a period starting on one day in a calendar month and
ending on the numerically corresponding day in the next succeeding calendar
month save that, where any such period would otherwise end on a day which is not
a business day, it shall end on the next succeeding business day, unless that
day falls in the calendar month succeeding that in which it would otherwise have
ended, in which case it shall end on the immediately preceding business day
Provided that, if a period starts on the last business day in a calendar month
or if there is no numerically corresponding day in the month in which that
period ends, that period shall end on the last business day in that later month
(and references to "MONTHS" shall be construed accordingly);
"NET ASSETS" shall be construed as a reference to the difference between (a) the
aggregate of the current assets (including but not limited to Cash and cash
Equivalents, Receivables and Inventories) and fixed assets (including but not
limited to Total Net Tangible Fixed Assets, Loan Receivables, Investments in
unconsolidated subsidiaries and affiliates and Intangible Assets) of the
Borrower and (b) the aggregate of the current liabilities (including but not
limited to Loans payable, Taxes payable, Accounts payable, Accrued expenses and
Other current liabilities) and long term liabilities (including but not limited
to Subordinated loans, Other loans, Capitalised lease commitments, Deferred
income taxes and Other provisions) of the Borrower in each case as reported in
the latest consolidated balance sheet of the Borrower delivered pursuant to
Clause 13.1(a) (Undertakings)
a "PART" shall, subject to any contrary indication, be construed as a reference
to a part hereof;
a "PERSON" shall be construed as a reference to any person, firm, company,
corporation, government, state or agency of a state or any association or
partnership (whether or not having separate legal personality) of two or more of
the foregoing;
a "REGULATION" refers to one of the Regulations;
a "SCHEDULE" shall, subject to any contrary indication, be construed as a
reference to a schedule hereto;
a "SUBSIDIARY" of the Borrower means any company which is a subsidiary of the
Borrower within the meaning of Article 24.a of Book II of the Dutch Civil Code
and which is a company which is consolidated in the consolidated financial
statements of the Borrower.
a "SUBSIDIARY" of a company or corporation other than the Borrower shall be
construed as a reference to any company or corporation:
(a) which is controlled, directly or indirectly, by the
first-mentioned company or corporation;
(b) more than half the issued share capital of which is beneficially
owned, directly or indirectly, by the first-mentioned company or
corporation; or
(c) which is a subsidiary of another subsidiary of the
first-mentioned company or corporation
and, for these purposes, a company or corporation shall be treated as being
controlled by another if that other company or corporation is able to direct its
affairs and/or to control the composition of its board of directors or
equivalent body;
"TAX" shall be construed so as to include any tax, levy, impost, duty or other
charge of a similar nature (including, without limitation, any penalty or
interest payable in connection with any failure to pay or any delay in paying
any of the same);
"VAT" shall be construed as a reference to value added tax including any similar
tax which may be imposed in place thereof from time to time; and
the "WINDING-UP", "DISSOLUTION" or "ADMINISTRATION" of a company or corporation
shall be construed so as to include bankruptcy (faillissement), moratorium
(surseance van betaling) and any equivalent or analogous proceedings under the
law of the jurisdiction in which such company or corporation is incorporated or
any jurisdiction in which such company or corporation carries on business
including the seeking of liquidation, winding-up, reorganisation, dissolution,
administration, arrangement, adjustment, protection or relief of debtors.
1.3 "US$", "US DOLLARS" and "DOLLARS" denote the lawful currency of the United
States of America.
1.4 Save where the contrary is indicated, any reference in this Agreement to:
(i) this Agreement or any other agreement or document shall be
construed as a reference to this Agreement or, as the case may
be, such other agreement or document as the same may have been,
or may from time to time be, amended, varied, novated or
supplemented;
(ii) a statute shall be construed as a reference to such statute as
the same may have been, or may from time to time be, amended or
re-enacted; and
(iii) a time of day shall be construed as a reference to London time.
1.5 Clause, Part and Schedule headings are for ease of reference only.
PART 2
THE FACILITY
2. THE FACILITY
2.1 GRANT OF THE FACILITY The ▇▇▇▇▇ ▇▇▇▇▇ to the Borrower,
upon the terms and subject to the conditions hereof, a dollar term loan in an
aggregate amount of US$2,000,000,000.
2.2 PURPOSE AND APPLICATION The Facility is intended for the
purpose of financing the Acquisition, the payment of all fees and expenses in
connection therewith and, accordingly, the Borrower shall so apply through one
or more of its subsidiaries all amounts drawn by it thereunder. No portion of
the proceeds of any borrowing under this Agreement shall be used by the Borrower
or any of its subsidiaries in any manner that would cause the borrowing or the
application of such proceeds to violate any of the Regulations or to violate the
Exchange Act, in each case as in effect on the date or dates of such borrowing
and such use of proceeds.
2.3 NO NEED TO MONITOR APPLICATION Without prejudice to the
obligations of the Borrower under Clause 2.2 (Purpose and Application), none of
the Facility Agent, the Arranger or the Banks shall be obliged to concern
themselves with the application of amounts raised by the Borrower hereunder.
2.4 CONDITIONS PRECEDENT DOCUMENTS The Borrower may not
deliver any Notice of Drawdown hereunder unless the Facility Agent has confirmed
to the Borrower and the Banks that it has received all of the documents listed
in the Third Schedule and that each is in form and substance satisfactory to the
Facility Agent.
2.5 NATURE OF BANKS' OBLIGATIONS The obligations of each
Bank hereunder are several. The failure by a Bank to perform its obligations
hereunder shall not affect the obligations of the Borrower towards any other
party hereto nor shall any other party be liable for the failure by such Bank to
perform its obligations hereunder. The amounts outstanding at any time hereunder
from the Borrower to any of the parties hereto shall, subject as otherwise
provided herein, be a separate and independent debt and each such party shall,
subject to the terms of this Agreement, be entitled to protect and enforce its
individual rights arising out of this Agreement independently of any other party
and it shall not be necessary for any party hereto to be joined as an additional
party in any proceedings for this purpose.
3. AVAILABILITY OF THE FACILITY
3.1 DRAWDOWN CONDITIONS An Advance will be made by the Banks to the Borrower if:
(i) not more than ten nor less than, in the case of the first
Advance, two business days, or, in the case of all other
Advances, three business days, before the proposed date for the
making of such Advance, the Facility Agent has received from the
Borrower a Notice of Drawdown therefor, receipt of which shall
oblige the Borrower to borrow the amount therein requested on the
date therein stated upon the terms and subject to the conditions
contained herein;
(ii) the proposed date for the making of such Advance is a business
day which is or precedes the Termination Date;
(iii) the proposed amount of such Advance is an amount which is not
less than US$50,000,000 and which is an integral multiple of
US$10,000,000 (or any other amount or multiple to which the
Facility Agent has given its prior written approval) and which is
less than or equal to the amount of the Available Facility;
(iv) the interest rate applicable to such Advance during its first
Interest Period would not fall to be determined pursuant to
Clause 6.1 (Market Disruption);
(v) no Event of Default or Potential Event of Default has occurred
and the representations set out in Clause 12 (Representations)
which are to be repeated pursuant to the relevant Notice of
Drawdown are true on and as of the proposed date for the making
of such Advance (as if references therein to Original
Consolidated Financial Statements were references to the most
recent set of annual consolidated audited financial statements
delivered by the Borrower to the Facility Agent pursuant to
Clause 13.1);
(vi) no event of default or potential event of default, howsoever
described (which has not been waived in accordance with its
terms) has occurred for any reason or would result from the
making of such Advance in relation to (a) borrowed money of the
Borrower having a principal amount which, when aggregated with
the principal amounts of all other borrowed money to which this
Clause 3.1(vi)(a) applies, exceeds US$25,000,000 or (b) borrowed
money of any member of the Target Group having a principal amount
which, when aggregated with the principal amounts of all other
borrowed money to which this Clause 3.1(vi)(b) applies, exceeds
US$200,000,000;
(vii) the Tendered Shares shall have been validly tendered to Ahold
Acquisition, shall be free and clear of all encumbrances and
restrictions to purchase imposed by applicable law or otherwise
and shall be available for purchase in accordance with the terms
and conditions set forth in the Tender Offer Documents and Ahold
Acquisition shall be obliged to pay the purchase price for the
Tendered Shares;
(viii) no court or governmental or regulatory agency, body or
authority shall have issued any permanent or temporary injunction
or other order or decree or passed any law, rule or regulation,
prohibiting or delaying consummation of the Tender Offer or the
Merger and the transactions contemplated by the Transaction
Documents or making the Tender Offer, the Merger or any such
transaction illegal;
(ix) Ahold Acquisition (a) shall have acquired (or shall acquire
simultaneously with utilisation of the Facility) all of the Class
AC Shares and Class AL Shares and such shares shall constitute
100% of the issued and outstanding shares of voting stock of
Target; (b) upon such acquisition, shall hold such shares free
and clear of all liens, encumbrances, options, rights and
restrictions; (c) upon such acquisition, shall be entitled to
vote such shares without restriction and (d) shall have acquired
(or shall acquire simultaneously with utilisation of the
Facility) such shares under the terms and conditions of the Stock
AC Purchase Agreement and Stock AL Purchase Agreement,
respectively, all of the conditions to which shall have been
satisfied without waiver or amendment, except as may have been
approved by the Facility Agent;
(x) none of the conditions to the Tender Offer as set out in Section
14 of the Offer to Purchase for Cash shall have occurred;
(xi) the making of the Advance and the use of proceeds by the Borrower
and its subsidiaries thereof shall not contravene any law of
regulations of any jurisdiction, including, without limitation,
the Regulations;
(xii) the Existing Facilities shall have been amended in the manner
agreed to with the Facility Agent such that borrowings thereunder
can be utilized to purchase Class A Shares in compliance with the
Regulations;
(xiii) each of the Transaction Documents shall be in full force and
effect and no provision of any of the Transaction Documents shall
have been amended, supplemented, waived or otherwise modified in
any material respect without the prior written consent of the
Facility Agent;
(xiv) all necessary approvals, consents and authorisations for the
making of the Acquisition and the consummation of each of the
transactions contemplated by the Transaction Documents shall have
been obtained or given and all applicable waiting periods
(including, without limitation, that under the ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇
Antitrust Improvements Act of 1976, as amended, of the United
States) shall have expired without any action being taken or
threatened by any competent authority which would restrain,
prevent or otherwise impose adverse conditions on the Tender
Offer, the Merger or the financing thereof. No action, request
for stay, petition for review or rehearing, reconsideration, or
appeal with respect to any of the foregoing shall be pending, and
the time for any applicable agency to take action to set aside
its consent on its own motion shall have expired; and
(xv) there would not, immediately after the making of such Advance, be
more than ten Advances outstanding.
3.2 EACH BANK'S PARTICIPATION Each Bank will participate through its Facility
Office in each Advance made pursuant to Clause 3.1 (Drawdown Conditions) in the
proportion borne by its Available Commitment to the Available Facility
immediately prior to the making of that Advance.
3.3 REDUCTION OF AVAILABLE COMMITMENT If a Bank's Available Commitment is
reduced in accordance with the terms hereof after the Facility Agent has
received the Notice of Drawdown for an Advance, then the amount of that Advance
shall be reduced accordingly.
PART 3
INTEREST
4. INTEREST PERIODS
4.1 INTEREST PERIODS The period for which an Advance is outstanding shall be
divided into successive periods each of which (other than the first) shall start
on the last day of the preceding such period.
4.2 DURATION The duration of each Interest Period shall, save as otherwise
provided herein, be one, two, three or six months (or such other period which
may be agreed by the Banks), in each case as the Borrower may by not less than
five business days' prior notice to the Facility Agent select Provided that:
(i) if the Borrower fails to give such notice of its selection in
relation to an Interest Period, the duration of that Interest
Period shall, subject to paragraphs (ii) and (iii) below, be
three months;
(ii) any Interest Period which begins during or at the same time as
any other Interest Period shall end at the same time as that
other Interest Period; and
(iii) any Interest Period, which would otherwise end during the month
preceding, or extend beyond, the Repayment Date, shall end on the
Repayment Date.
4.3 CONSOLIDATION OF ADVANCES If two or more Interest Periods end at the same
time, then, on the last day of those Interest Periods, the Advances to which
they relate shall be consolidated into and treated as a single Advance.
4.4 DIVISION OF ADVANCES The Borrower may, by not less than five business days'
prior notice to the Facility Agent, direct that any Advance shall, at the
beginning of any Interest Period relating thereto, be divided into (and
thereafter, save as otherwise provided herein, treated in all respects as) two
or more Advances in such amounts (in aggregate, equalling the amount of the
Advance being so divided) as shall be specified by the Borrower in such notice
Provided that the Borrower shall not be entitled to make such a direction if any
Advance thereby coming into existence would be of an amount less than
US$50,000,000 and other than an integral multiple of US$10,000,000.
5. PAYMENT AND CALCULATION OF INTEREST
5.1 PAYMENT OF INTEREST On the last day of each Interest Period the Borrower
shall pay accrued interest on the Advance to which such Interest Period relates
Provided that if any Advance has an Interest Period of more than six months,
accrued but unpaid interest shall also be paid on the last day of each
successive period of six months which occurs during such Interest Period.
5.2 CALCULATION OF INTEREST The rate of interest applicable to an Advance from
time to time during an Interest Period relating thereto shall be the rate per
annum which is the sum of the Applicable Margin and LIBOR on the Quotation Date
therefor.
5.3 ACCRUED INTEREST In addition to any interest which shall have accrued on any
Advance pursuant to Clause 5.2 (Calculation of Interest) if any Advance is
outstanding on 31 December, 1998 (the amount of such Advance then outstanding,
the "relevant portion" of such Advance) the Borrower shall, on the last day of
the then current Interest Period in relation to that Advance, pay to the
Facility Agent for the account of the Banks an amount equal to the interest
which would have accrued on the relevant portion of that Advance from and
including the earlier of (i) 1 October, 1998 and (ii) the Drawdown Date in
relation to that Advance to and including 31 December, 1998 had such interest
accrued in accordance with the provisions hereof at the rate of 0.3% per annum.
6. ALTERNATIVE INTEREST RATES
6.1 MARKET DISRUPTION If:
(i) the Facility Agent determines that at or about 11.00 a.m. (London
time) on the Quotation Date for an Interest Period in respect of
an Advance none of the Reference Banks was offering to prime
banks in the London Interbank Market deposits in dollars for the
proposed duration of such Interest Period; or
(ii) before the close of business in London on the Quotation Date for
an Interest Period in respect of an Advance, the Facility Agent
has been notified by a Bank or each of a group of Banks to whom
in aggregate thirty-five per cent. or more of such Advance is
(or, in the case of an undrawn Advance, if such Advance were then
made, would be) owed that the rate at which such deposits were
being so offered does not accurately reflect the cost to it of
obtaining such deposits,
then, notwithstanding the provisions of Clause 4 (Interest Periods) and Clause 5
(Payment and Calculation of Interest):
(a) if paragraph (i) above applies, the duration of that Interest
Period shall be one month or, if less, such that it shall end on
the Repayment Date; and
(b) if either paragraph (i) or (ii) above applies, the rate of
interest applicable to such Advance from time to time during such
Interest Period shall be the rate per annum which is the sum of
the Applicable Margin and the rate per annum determined by the
Facility Agent to be the arithmetic mean (rounded upwards to four
decimal places) of the rates notified by each Bank to the
Facility Agent before the last day of such Interest Period to be
those which express as a percentage rate per annum the cost to
each Bank of funding from whatever sources it may select its
portion of such Advance during such Interest Period.
6.2 SUBSTITUTE BASIS OR REPAYMENT If (i) either of those events mentioned at
paragraphs (i) and (ii) in Clause 6.1 (Market Disruption) occurs in relation to
an Advance and an Interest Period during which such Advance is (or was) to be
outstanding in dollars or (ii) by reason of circumstances affecting the London
Interbank Market during any period of three consecutive business days none of
the Reference Banks offers deposits in dollars to prime banks in the London
Interbank Market, then:
(i) the Facility Agent shall notify the Borrower and the Banks of
such event;
(ii) if the Facility Agent so requires, within five days of such
notification the Facility Agent and the Borrower shall enter into
negotiations with a view to agreeing a substitute basis (1) for
determining the rates of interest from time to time applicable to
the Advances and/or (2) upon which the Advances may be maintained
(whether in dollars or some other currency) thereafter and any
such substitute basis that is agreed shall take effect in
accordance with its terms and be binding on each party hereto
Provided that the Facility Agent may not agree any such
substitute basis without the prior consent of an Instructing
Group; and
(iii) if the Facility Agent has required the Borrower to enter into
such negotiations, the Facility Agent may declare (any such
declaration to be binding on the Borrower) that each Advance
shall become due and payable on the last day of its then current
Interest Period unless by then a substitute basis has been agreed
in relation thereto.
PART 4
REPAYMENT, CANCELLATION AND PREPAYMENT
7. REPAYMENT
The Borrower shall repay the Loan in full on the Repayment Date.
8. CANCELLATION AND PREPAYMENT
8.1 CANCELLATION The Borrower may, by giving to the Facility Agent not less than
ten days' prior written notice to that effect, cancel the whole or any part
(being, if in part, an amount of not less than US$50,000,000 and an integral
multiple of US$10,000,000) of the Available Facility. Any such cancellation
shall reduce the Available Commitments of the Banks rateably.
8.2 PREPAYMENT At any time after cancellation in accordance with Clause 8.1 of
the whole of the Available Facility, the Borrower may, if it has given to the
Facility Agent not less than fifteen days' prior written notice to that effect
and subject to Clause 15.4 (Broken Periods), prepay without premium or penalty
the whole of any Advance or any part of any Advance (and, if in part, in a
minimum amount of US$50,000,000 and an integral multiple of US$10,000,000).
8.3 MANDATORY PREPAYMENT At any time when the Loan or any other amount remains
outstanding or payable hereunder, the Borrower shall apply or procure the
application of, within three (3) business days of receipt, any proceeds received
pursuant to any issue by it of any shares or other similar securities either:
(i) in repayment and permanent reduction of the Loan; or
(ii) in purchase of Class A Shares tendered to the Borrower or Ahold
Acquisition for purchase pursuant to the Tender Offer.
8.4 NOTICE OF CANCELLATION OR PREPAYMENT Any notice of cancellation or
prepayment given by the Borrower pursuant to Clause 8.1 (Cancellation) or Clause
8.2 (Prepayment) shall be irrevocable, shall specify the date upon which such
cancellation or prepayment is to be made and the amount of such cancellation or
prepayment and, in the case of a notice of prepayment, shall oblige the Borrower
to make such prepayment on such date.
8.5 REPAYMENT OF A BANK'S SHARE OF THE LOAN If any Bank claims indemnification
from the Borrower under Clause 9.2 (Tax Indemnity) or Clause 11.1 (Increased
Costs) and within thirty days thereafter the Facility Agent receives from the
Borrower at least ten days' prior written notice (which shall be irrevocable) of
the Borrower's intention to repay such Bank's share of the Loan, the Borrower
shall on the last day of each of the then current Interest Periods repay such
Bank's portion of the Advance to which such Interest Period relates.
8.6 NO FURTHER ADVANCES A Bank for whose account a repayment is to be made under
Clause 8.5 (Repayment of a Bank's Share of the Loan) shall not be obliged to
participate in the making of Advances on or after the date upon which the
Facility Agent receives the Borrower's notice of its intention to repay such
Bank's share of the Loan, on which date such Bank's Available Commitment shall
be reduced to zero.
8.7 REPAYMENTS AND NO REBORROWING The Borrower shall not repay all or any part
of the Loan except at the times and in the manner expressly provided for in this
Agreement and shall not be entitled to reborrow any amount repaid.
8.8 NOTIFICATION OF CANCELLATION OR PREPAYMENT The Facility Agent shall promptly
notify each of the Banks of any notice of cancellation or prepayment received by
it from the Borrower pursuant to Clause 8.1 (Cancellation) or Clause 8.2
(Prepayment).
PART 5
CHANGES IN CIRCUMSTANCES
9. TAXES
9.1 TAX GROSS-UP All payments to be made by the Borrower to any person hereunder
shall be made free and clear of and without deduction for or on account of tax
unless the Borrower is required to make such a payment subject to the deduction
or withholding of tax, in which case the sum payable by the Borrower in respect
of which such deduction or withholding is required to be made shall be increased
to the extent necessary to ensure that, after the making of the required
deduction or withholding, such person receives and retains (free from any
liability in respect of any such deduction or withholding) a net sum equal to
the sum which it would have received and so retained had no such deduction or
withholding been made or required to be made.
9.2 TAX INDEMNITY Without prejudice to the provisions of Clause 8.1
(Cancellation), if any person or the Facility Agent on its behalf is required to
make any payment on account of tax or otherwise (not being a tax imposed on the
net income of any Facility Office by the jurisdiction in which it is
incorporated or in which such Facility Office is located) on or in relation to
any sum received or receivable hereunder by such person or the Facility Agent on
its behalf (including, without limitation, any sum received or receivable under
this Clause 9) or any liability in respect of any such payment is asserted,
imposed, levied or assessed against such person or an Facility Agent on its
behalf, the Borrower shall, upon demand of the Facility Agent, promptly
indemnify such person against such payment or liability, together with any
interest, penalties and expenses payable or incurred in connection therewith.
9.3 CLAIMS BY BANKS Any person intending to make a demand pursuant to Clause 9.2
(Tax Indemnity) shall notify the Borrower (through the Facility Agent in the
case of a Bank) in reasonable detail of the event by reason of which it is
entitled to do so Provided that nothing herein shall require such person to
disclose any confidential information relating to the organisation of its
affairs.
10. TAX RECEIPTS
10.1 NOTIFICATION OF REQUIREMENT TO DEDUCT TAX If, at any time, the Borrower is
required by law to make any deduction or withholding from any sum payable by it
hereunder (or if thereafter there is any change in the rates at which or the
manner in which such deductions or withholdings are calculated), the Borrower
shall promptly notify the Facility Agent upon becoming aware of the same.
10.2 EVIDENCE OF PAYMENT OF TAX If the Borrower makes any payment hereunder in
respect of which it is required to make any deduction or withholding, it shall
pay the full amount required to be deducted or withheld to the relevant taxation
or other authority within the time allowed for such payment under applicable law
and shall deliver to the Facility Agent for each Bank, within thirty days after
it has made such payment to the applicable authority, an original receipt (or a
certified copy thereof) issued by such authority (if any) or other written
evidence of payment as the Borrower can provide evidencing the payment to such
authority of all amounts so required to be deducted or withheld in respect of
that Bank's share of such payment.
11. CHANGES IN CIRCUMSTANCES
11.1 INCREASED COSTS If, by reason of (i) any change in law or in its
interpretation or administration and/or (ii) compliance with any request from or
requirement of any central bank or other fiscal, monetary or other authority
(including, without limitation, a request or requirement which affects the
manner in which a Bank or any holding company of such Bank is required to or
does maintain capital resources having regard to such Bank's obligations
hereunder and to amounts owing to it hereunder):
(a) a Bank or any holding company of such Bank incurs a cost as a
result of such Bank's having entered into and/or performing its
obligations under this Agreement and/or assuming or maintaining a
commitment under this Agreement and/or its participating in or
making one or more Advances;
(b) a Bank or any holding company of such Bank is unable to obtain
the rate of return on its overall capital which it would have
been able to obtain but for such Bank having entered into and/or
performing its obligations and/or assuming or maintaining a
commitment under this Agreement;
(c) there is any increase in the cost to a Bank or any holding
company of such Bank of funding or maintaining all or any of the
advances comprised in a class of advances formed by or including
the Advances made or to be made by such Bank hereunder; or
(d) a Bank or any holding company of such Bank becomes liable to make
any payment on account of tax or otherwise (not being a tax
imposed on the net income of any Facility Office of such Bank by
the jurisdiction in which it is incorporated or in which such
Facility Office is located) on or calculated by reference to the
amount of the Advances made or to be made by such Bank hereunder
and/or to any sum received or receivable by it hereunder,
then the Borrower shall, from time to time on demand of the Facility Agent,
promptly pay to the Facility Agent for the account of that Bank amounts
sufficient to indemnify that Bank or any such holding company against, as the
case may be, (1) such cost, (2) such reduction in such rate of return (or such
proportion of such reduction as is, in the opinion of that Bank, attributable to
its obligations hereunder), (3) such increased cost (or such proportion of such
increased cost as is, in the opinion of that Bank, attributable to its funding
or maintaining Advances) or (4) such liability.
11.2 INCREASED COSTS CLAIMS A Bank intending to make a claim pursuant to Clause
11.1 shall notify the Facility Agent in reasonable detail of the event by reason
of which it is entitled to do so, whereupon the Facility Agent shall notify the
Borrower thereof Provided that nothing herein shall require such Bank to
disclose any confidential information relating to the organisation of its
affairs.
11.3 ILLEGALITY If, at any time, it is unlawful for a Bank to make, fund or
allow to remain outstanding all, any or part of its share of the Advances made
or to be made by it hereunder then that Bank shall, promptly after becoming
aware of the same, deliver to the Borrower through the Facility Agent a
certificate to that effect and, unless such illegality is avoided in accordance
with Clause 11.4 (Mitigation):
(i) such Bank shall not thereafter be obliged to make any Advances
and the amount of its Available Commitment shall be
immediately reduced to zero; and
(ii) if the Facility Agent on behalf of such Bank so requires, the
Borrower shall on such date as the Facility Agent shall have
specified repay such Bank's share of any outstanding Advances
together with accrued interest thereon and all other amounts
owing to such Bank hereunder.
11.4 MITIGATION If, in respect of any Bank, circumstances arise which would or
would upon the giving of notice result in:
(i) the reduction of its Commitment to zero pursuant to Clause 11.3
(Illegality);
(ii) an increase in the amount of any payment to be made to it or for
its account pursuant to Clause 9.1 (Tax Gross-Up); or
(iii) a claim for indemnification pursuant to Clause 9.2 (Tax
Indemnity) or Clause 11.1 (Increased Costs),
then, without in any way limiting, reducing or otherwise qualifying the rights
of such Bank or the obligations of the Borrower under any of the Clauses
referred to in (i), (ii) or (iii) above such Bank shall promptly upon becoming
aware of the same notify the Facility Agent thereof and, in consultation with
the Facility Agent and the Borrower and to the extent that it can do so without
prejudice to its own position, take reasonable steps to mitigate the effects of
such circumstances including the transfer of its Facility Office Provided that
such Bank shall be under no obligation to take any such action if, in the
opinion of such Bank, to do so might have any material adverse effect upon its
business, operations or financial condition.
PART 6
REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT
12. REPRESENTATIONS AND WARRANTIES
12.1 The Borrower represents and warrants to the Facility Agent and each of the
Banks that:
(i) it is a public company with limited liability ("naamloze
vennootschap") duly incorporated and validly existing under the
laws of The Netherlands and has the corporate power to own its
property and assets and to carry on its business as it is now
being conducted and that each of Ahold U.S.A., Inc. and Ahold
Acquisition is a corporation, duly incorporated and validly
existing under the laws of the State of Delaware and has the
corporate power and authority to own its property and assets, to
carry on its business and to enter into and perform those
Transaction Documents to which it is expressed to be a party and
to consummate all transaction contemplated thereunder;
(ii) it has the corporate power to enter into and perform this
Agreement and each of the Transaction Documents and the
transactions contemplated hereby and thereby and to borrow
hereunder and has taken all necessary actions to authorise the
borrowing of Advances upon the terms and conditions of this
Agreement and to authorise the execution, delivery and
performance of this Agreement and each of the Transaction
Documents in accordance with their respective terms; each of
Ahold Acquisition and Ahold U.S.A., Inc. has the corporate power
to enter into and perform, to the extent applicable, each of the
Transaction Documents to which it is expressed to be a party (or
to which it becomes a party or in relation to which any rights or
obligations thereunder are assigned to or assumed by it) and the
transactions contemplated thereby and has taken all necessary
actions to authorise the execution, delivery and performance, to
the extent applicable, of each of the Transaction Documents to
which it is a party (or to which it becomes a party or in
relation to which any rights or obligations thereunder are
assigned to or assumed by it) in accordance with their respective
terms;
(iii) this Agreement (in the case of the Borrower) and each of the
Transaction Documents to which the Borrower and/or Ahold
Acquisition is expressed to be a party (or to which it becomes a
party or in relation to which any rights or obligations
thereunder are assigned to or assumed by it) constitutes and will
at all times constitute its and Ahold Acquisition's legal, valid
and binding obligations, enforceable in accordance with their
terms;
(iv) its indebtedness under this Agreement is its direct,
unconditional and general indebtedness and ranks, and will at all
times rank, pari passu with all other unsecured indebtedness and
liabilities (actual or contingent) (with the exception of any
indebtedness and liabilities preferred by law and deferred or
subordinated indebtedness) issued, created or assumed now or in
the future or for which it is now or may at any time in the
future otherwise be or become responsible;
(v) the Original Consolidated Financial Statements (copies of which
have been provided to each of the Banks) were prepared in
accordance with accounting principles generally accepted in The
Netherlands and fairly present its condition and that of the
Group at the date to which they were prepared and its results and
the results of the Group for the year then ended; there has been
no material adverse change in its financial position or in the
financial position of the Group, taken as a whole, since that
date which might have a material adverse effect on its ability to
perform its obligations under this Agreement or under any of the
Transaction Documents, and such accounts included all significant
liabilities (including contingent liabilities) Provided that it
is hereby agreed that, without prejudice to Clause 13(vii), a
reduction in the tangible net worth of the Group, an increase in
borrowed monies or a lower ratio of operating earnings before
income taxes plus Net Interest Expense (as defined in Clause
13(vii)) to Net Interest Expense following the Acquisition Date
shall not constitute a material adverse change for the purposes
of this Clause;
(vi) since the date on which the Original Consolidated Financial
Statements were prepared there has been no material adverse
change in its or the Group's financial or trading condition or
prospects which could have a material adverse effect on its
ability to perform or comply with its obligations under this
Agreement or any of the Transaction Documents;
(vii) no Event of Default or Potential Event of Default has occurred
and is continuing unremedied, nor will any Event of Default or
Potential Event of Default result from the making of any Advance;
(viii) its execution, delivery and performance of this Agreement and
each of the Transaction Documents and the borrowing of Advances
hereunder do not and will not violate in any respect any
provisions of (i) any applicable law or judgement of The
Netherlands, or any relevant jurisdiction, or (ii) any mortgage,
contract, other undertaking or instrument to which it is a party
or which is binding upon it or any of its assets and does not and
will not result in the creation or imposition of any encumbrance
on any of its assets pursuant to the provisions of any such
mortgage, contract or other undertaking or instrument;
(ix) no litigation, arbitration or administrative proceedings are
presently current or pending or, to the best of its knowledge
threatened, which would or might have a material adverse effect
on its ability to perform its obligations under this Agreement or
under any of the Transaction Documents;
(x) all acts, conditions and things required to be done, fulfilled
and performed in order (a) to enable it and Ahold Acquisition
lawfully to enter into (to the extent applicable), exercise its
rights under and perform and comply with the obligations
expressed to be assumed by it in this Agreement and each of the
Transaction Documents to which it is expressed to be a party (or
to which it becomes a party or in relation to which any rights or
obligations thereunder are assigned to or assumed by it), (b) to
ensure that the obligations expressed to be assumed by it and
Ahold Aquisition in this Agreement and each of the Transaction
Documents to which it is expressed to be a party (or to which it
becomes a party or in relation to which any rights or obligations
thereunder are assigned to or assumed by it) are legal, valid and
binding and (c) to make this Agreement and each of the
Transaction Documents to which it is expressed to be a party (or
to which it becomes a party or in relation to which any rights or
obligations thereunder are assigned to or assumed by it)
admissible in evidence in the Netherlands have been done,
fulfilled and performed;
(xi) no member of the Group or the Target Group is in breach of or in
default under any agreement in respect of borrowed money (save,
in respect of any guarantees, where liability under such
guarantee is being contested by the Borrower or a Material
Subsidiary in good faith) to which it is a party or which is
binding on it or any of its assets save for any such agreement in
relation to borrowed money having a principal or capital amount
which, when aggregated with the principal or capital amounts
payable under all other agreements in respect of borrowed money
under which (a) the Borrower is in breach or default, does not
exceed US$25,000,000 or (b) a member of the Target Group is in
breach or default, does not exceed US$200,000,000;
(xii) all of the written information supplied by it or Ahold
Acquisition to the Facility Agent, the Arranger and the Banks in
connection herewith, with the Information Memorandum or with any
of the Transaction Documents is true, complete and accurate in
all material respects and it is not aware of any material facts
or circumstances that have not been disclosed to the Facility
Agent, the Arranger and the Banks and which might, if disclosed,
adversely affect the decision of a person considering whether or
not to provide finance to it;
(xiii) neither it nor any of its subsidiaries has taken any corporate
action nor have any other steps been taken or legal proceedings
been started or (to the best of its knowledge and belief)
threatened against it or any of its subsidiaries for its
winding-up, dissolution, administration or re-organisation or for
the appointment of a receiver, administrator, administrative
receiver, trustee or similar officer of it or of any or all of
its assets or revenues;
(xiv) it is conducting, in all material respects, its business and
operations in compliance with all laws and regulations and all
directives of governmental authorities having the force of law
applicable or relevant to it;
(xv) it owns and has good and marketable title to all of its material
property;
(xvi) to the best of its knowledge, it and each member of the Target
Group is in compliance, in all material respects, with all
Environmental Laws and it has obtained and is in compliance with,
in all material respects, all Environmental Permits necessary for
its operations;
(xvii) to the best of its knowledge, there are no circumstances which
have led, or could lead, to a competent authority or a third
party taking any action or making a claim under any Environmental
Laws including the requirement to clean up any contaminated land
or the revocation, suspension, variation or non-renewal of any
Environmental Permits or to any member of the Group or Target
Group having to take action to avert the possibility of any such
action or claim;
(xviii) each material representation contained in each Transaction
Document is true;
(xix) no party to any Transaction Document is in material breach
thereunder;
(xx) each permit, license, approval and consent required in relation
to the Transaction Documents has been given or obtained and is in
full force and effect, and no event has occurred which permits
(or with the passage of time would permit) the revocation or
termination of any such permit, license, approval or consent or
the imposition of any restriction thereon;
(xxi) there has been no amendment, variation, revision or waiver of
the terms of the Tender Offer as set out in the Tender Offer
Documents from the form approved by the Arranger immediately
prior to the signing hereof and no provision of any Transaction
Document has been amended, supplemented, waived, revised or
otherwise modified in any material respect without the prior
written consent of the Arranger;
(xxii) the borrowings made hereunder and under the Existing Facilities
will not violate, or give rise to a violation of, any of the
Regulations. No member of the Group or any agent acting in their
behalf has taken or will take any action which would cause this
Agreement or any of the documents or instruments delivered
pursuant hereto, any borrowing hereunder or use of proceeds
thereof to violate any Regulation or to violate the Exchange Act
or any applicable US federal or state securities laws;
(xxiii) the Borrower is not subject to regulation under the United
States Public Utility Holding Company Act of 1935, the United
States Federal Power Act or the United States Investment Company
Act of 1940 or to any United States federal or state statute or
regulation limiting its ability to incur indebtedness; the
Borrower is not an "investment company," or an "affiliated
person" of, or "promoter" or "principal underwriter" for, an
"investment company," as such terms are defined in the U.S.
Investment Company Act of 1940 (15 U.S.C. ▇▇.▇▇. 80a-1. et seq.);
and none of the transactions contemplated by this Agreement will
violate such Act; and
(xxiv) the aggregate liabilities of each Material US Subsidiary and
the ERISA Affiliates to all Multiemployer Plans in the event of a
complete withdrawal therefrom, as of the close of the most recent
fiscal year of each such Multiemployer Plan ended prior to the
date hereof, would not have a material adverse effect upon the
financial condition of any Material US Subsidiary; each Employee
Plan is in compliance in all material respects in form and
operation with ERISA and the Code; except as disclosed, each
Employee Plan which is intended to be qualified under Section
401(a) of the Code has been determined by the IRS to be so
qualified as to form, and, to the knowledge of the Borrower,
nothing has occurred since the date of such determination that
would adversely affect such determination; the fair market value
of the assets of each Employee Plan subject to Title IV of ERISA
is at least equal to the present value of the "benefit
liabilities" (within the meaning of Section 4001(a)(16) of ERISA)
under such Employee Plan determined using the actuarial
assumptions and method used by the actuary to such Employee Plan
in its most recent valuation of such Employee Plan; there are no
actions, suits, or claims pending against or with respect to any
Employee Plan (other than routine claims for benefits) which
would cause any Material US Subsidiary to incur a material
liability or to the knowledge of such Material US Subsidiary,
which could reasonably be expected to be asserted against or with
respect to any Employee Plan which would cause such Material US
Subsidiary to incur a material liability; each of the Target and
the ERISA Affiliates has made all material contributions to or
under each such Employee Plan, or any contract or agreement
requiring contribution to an Employee Plan; none of any Material
US Subsidiary or any ERISA Affiliate has ceased operations at a
facility so as to become subject to the provisions of Section
4062(e) of ERISA, withdrawn as a substantial employer so as to
become subject to the provisions of Section 4063 of ERISA or
ceased making contributions to any Plan subject to Section
4064(a) of ERISA to which it made contributions each in a manner
which would cause such Material Subsidiary to incur a material
liability; and none of such Material US Subsidiary nor any of the
ERISA Affiliates has incurred or reasonably expects to incur any
material liability to PBGC other than for premiums under Section
4007 of ERISA;
12.2 The representations set out in Clause 12.1 shall be deemed to be repeated
on the first day of each Interest Period by reference to the facts and
circumstances then subsisting provided that any reference to "Original
Consolidated Financial Statements" shall be deemed to be a reference to the most
recent set of annual audited financial statements delivered by the Borrower to
the Facility Agent pursuant to Clause 13.1.
13. UNDERTAKINGS
The Borrower undertakes that from and after the date hereof and until all sums
due and to become due from the Borrower under this Agreement have been paid or
repaid and the Facility shall no longer exist:
(i) (a) it will deliver to the Facility Agent and each of the
Banks as soon as the same are available (and in any event no
later than 180 days after the end of the relevant financial
year) its audited consolidated (and unconsolidated to the
extent that any Bank shall have to comply with any
regulations imposed on it in relation to the provision of
financial information by the Borrower) profit and loss
account for such financial year and its audited consolidated
(and unconsolidated to the extent that any Bank shall have
to comply with any regulations imposed on it in relation to
the provision of financial information by the Borrower)
balance sheet as at the end of such financial year prepared
in conformity with generally accepted accounting principles
in The Netherlands applied on a basis consistent with those
of the preceding financial year, or if not prepared on a
consistent basis, containing or accompanied by an adequate
explanation of the consequences of any such inconsistency;
(b) it will promptly send to the Facility Agent and each of the
Banks two copies of any interim report or accounts or any
other notice or communication sent by it to its shareholders
in their capacity as such or to any stock exchange on which
its shares are listed;
(c) it will forthwith upon a request to that effect, provide the
Facility Agent with such additional financial information or
other information as the Facility Agent or any Bank through
the Facility Agent may from time to time reasonably require
(including, without limitation, information that the
Facility Agent or any Bank may reasonably require in order
to determine the ratios referred to in Clause 13(vii) in
respect of any financial period) and upon receipt of a
written request to that effect from the Facility Agent,
confirm to the Facility Agent that, save as previously
notified to the Facility Agent or as notified in such
confirmation, no Event of Default or Potential Event of
Default has occurred;
(d) it will annually as soon as possible after the end of its
financial year (but in no event later than 90 days after the
end of the relevant financial year) furnish the Facility
Agent with a certificate to the effect that the
representations and warranties set out in Clause 12
(Representations and Warranties) hereof are true and
accurate on and as of that time as if made at that time;
(e) without prejudice to Clause 13(i)(c), it will as soon as
possible after the end of each quarter of each financial
year (but in no event later than 90 days after the end of
the relevant quarter of such financial year) furnish the
Facility Agent in sufficient copies for the Banks with its
interim report in respect of such financial quarter, such
interim report to contain such information as may be
required to enable the Facility Agent and the Banks to
calculate the ratios contained in Clause 13(vii) as at or
during the four quarter period ending on (as the case may
be) the last day of the relevant quarter of such financial
year and a duly signed certificate by one of its duly
authorised officers stating that the covenants set out in
Clause 13(vii) were complied with during the four quarter
period ending at the end of such quarter;
(ii) it will promptly give written notice to the Facility Agent of any
Event of Default and of any Potential Event of Default or of the
occurrence of any such event in relation to a subsidiary as if
the references to Borrower in Clause 14 (Events of Default) were
references to a subsidiary and if, in such latter case, such
event could have a material adverse affect on the ability of any
Borrower to perform its obligations under this Agreement or under
any of the Transaction Documents, at the same time informing the
Facility Agent of any action taken or proposed to be taken by the
Borrower in connection therewith;
(iii) it will not without the Banks' prior written consent create or
permit to be created or to subsist and will ensure that none of
its subsidiaries will without the Banks' prior written consent
create or permit to be created or to subsist any encumbrance on
or over the whole or any part of its assets (present or future);
Provided that (x) the foregoing shall not prohibit any
encumbrances upon any Margin Stock; and (y) the Banks hereby
consent to (i) encumbrances to secure indebtedness for borrowed
money to be created or to subsist over assets and revenues not in
excess of 15% of the total consolidated net assets of the Group
according to the audited consolidated financial statements of the
Group most recently delivered to the Facility Agent pursuant to
Clause 13(i)(a), and (ii) encumbrances created or consented to by
any member of the Group prior to the date of this Agreement
Provided that the Borrower has notified the Facility Agent in
writing of such encumbrances providing to the Facility Agent full
details thereof, such notice to be received by the Facility Agent
not later than the date hereof;
(iv) it will, if the consent (other than the consent granted pursuant
to (y)(i) or (ii) of sub-clause (iii) above) of the Banks is
required pursuant to sub-clause (iii) above and such consent is
forthcoming in relation to any encumbrance, create to the
satisfaction of the Banks in favour of the Banks (or the Facility
Agent on behalf of the Banks) the same encumbrance or such other
encumbrance or encumbrances as the Banks in their absolute
discretion shall deem not materially less beneficial to them than
the encumbrance in respect of which such consent is given to
secure, in each case, all sums due and to become due from the
Borrower under this Agreement Provided that the foregoing shall
not apply to any Margin Stock;
(v) it will forthwith notify the Facility Agent of any litigation or
administrative or arbitration proceedings in or by any court,
tribunal, arbitrator or governmental or municipal authority in
process, pending or threatened against any member of the Group or
any of their respective assets which might have a material
adverse effect on the ability of the Borrower to perform its
obligations under this Agreement or under any of the Transaction
Documents;
(vi) it will use its best endeavours to obtain and maintain and cause
Ahold Acquisition to obtain and maintain all authorisations,
approvals, consents, licenses and exemptions and it will make all
necessary filings and registrations as may be required under any
applicable law or regulation (which expression shall include,
without limitation, the Regulations and applicable federal and
state securities laws) to enable it to perform its obligations
under this Agreement and to enable it and Ahold Acquisition to
perform their respective obligations under each of the
Transaction Documents, or required for the validity or
enforceability of this Agreement or any of the Transaction
Documents and will comply with the terms of the same; and
(vii) it will ensure at all times that the consolidated financial
condition of the Group, as evidenced by the Borrower's most
recent audited annual consolidated financial statements (adjusted
to take account of any changes in circumstances which occur after
the date as of which such audited annual consolidated financial
statements were prepared), shall be such that the ratio of
operating earnings before income taxes plus Net Interest Expense
to Net Interest Expense determined on a rolling four quarter
average basis is not less than 3.00:1.00.
The expressions used in this Clause 13(vii) shall have the
meanings attributed thereto in the consolidated financial
statements of the Group (which shall comply with Clause 13(i) and
shall be construed in accordance with generally accepted
accounting principles in The Netherlands) but so that "Net
Interest Expense" shall equal interest expense minus interest
income.
Finally, "determined on a rolling four quarter average basis",
means in relation to the ratio referred to above, such ratio
tested at the end of each Quarterly Financial Period by taking
the average of such ratios calculated for each of such Quarterly
Financial Period and the three immediately preceding Quarterly
Financial Periods where "QUARTERLY FINANCIAL PERIOD" means a
financial quarter of a financial year of the Borrower;
(viii) it shall procure that each member of the Group maintains
insurances on and in relation to its business and assets with
reputable underwriters or insurance companies against such risks
and to such extent as is usual for companies carrying on a
business such as that carried on by such member of the Group
whose practice is not to self insure;
(ix) it shall ensure that each of its subsidiaries shall comply, in
all material respects, with all Environmental Laws and
Environmental Permits applicable from time to time to all or any
part of its business or assets;
(x) it shall ensure that each of its subsidiaries shall not allow any
circumstances to arise which could lead to a competent authority
or a third party taking action or making a claim under any
Environmental Laws including the requirement to clean up any
contaminated land or the revocation, suspension, variation or
non-renewal of any Environmental Permits or to it or any such
subsidiary having to take action to avert the possibility of any
such action or claim which action or claim would have a material
adverse effect on the Group;
(xi) within four days of the receipt of notice of the same, it shall
give full particulars (and if requested a copy of any written
particulars received by the relevant member of the Group) to the
Facility Agent of any material notice, order, direction,
designation, resolution or proposal having application to all or
any part of its business or assets or that of any of its
subsidiaries or to the area in which such business or assets are
situate or to any real property owned, leased, used or operated
by any member of the Group given or made by any planning
authority or other public body or authority whatsoever under or
by virtue of Environmental Laws or any other statutory power
whatsoever or in pursuance of the powers conferred by any other
statute whatsoever; and
(xii) if so required by the Facility Agent, without delay and at the
cost of the Borrower, take all reasonable or necessary steps to
comply with any such notice or order referred to in Clause 13(xi)
above and at the request of any Bank, without delay and at the
cost of the Borrower, make or join with the Facility Agent in
making such objection or objections or representations against or
in respect of any proposal for such a notice or order as the
Facility Agent shall deem expedient;
(xiii) it shall not and it shall ensure that Ahold Acquisition shall
not:
(a) amend, vary or revise in any material respect the Tender
Offer or any Transaction Document without the prior written
consent of the Facility Agent; or
(b) waive, in whole or in part, any of the conditions of the
Tender Offer or any Transaction Document without the prior
written consent of the Facility Agent.
(xiv) it shall and it shall ensure that Ahold Acquisition shall:
(a) have made the Tender Offer on the terms detailed in the
Offer to Purchase for Cash and the other Transaction
Documents;
(b) in relation to the Tender Offer, comply in all respects with
all relevant laws and regulations and all requirements of
relevant regulatory authorities (including, without
limitation, the Regulations and applicable federal and state
securities laws);
(c) make available to the Facility Agent without delay all
proofs of the Transaction Documents and all publicity
material, press releases and other documents submitted or
filed with the SEC or published in relation to the Tender
Offer by or on behalf of Ahold Acquisition and, at the
request of the Facility Agent, provide the Facility Agent
with any material information in the possession of Ahold
Acquisition relating to the Tender Offer as the Facility
Agent may reasonably request;
(xv) use reasonable endeavours to ensure that no publicity material,
press releases or other documents in relation to the Tender Offer
are published or released by it or on behalf of Ahold Acquisition
or its or their advisers which refer to any of the Facility
Agent, the Arranger or the Banks, the Facility Agreement or the
Facility unless such reference and the context in which it
appears have previously been approved by the Facility Agent and
the Banks (such approval not to be unreasonably withheld or
delayed) and the Facility Agent and the Banks shall not withhold
such approval if such publication or release is required by law;
(xvi) as far as possible, it shall promptly consult with the Facility
Agent before taking any action in connection with the Tender
Offer (other than effecting amendments that (i) relate only to
(a) an extension of time during which the Offer to Purchase for
Cash remains outstanding, (b) discussions with the appropriate
authorities relating to an anti-trust regulatory clearance or (c)
the results of the Tender Offer), in particular (without
limitation) before taking any of the actions referred to above;
(xvii) after the Tender Offer is consummated, it shall use all
reasonable endeavours to acquire all of the Tendered Shares as
soon as reasonably practicable in accordance with the terms of
the Tender Offer, and applicable laws and regulations (including,
without limitation, the Regulations and applicable federal and
state securities laws);
(xviii) as soon as possible after Target becomes a subsidiary of the
Borrower, it will (a) review the composition of the board of
directors of Target so as to ensure that it controls such board
and (b) consummate the Merger;
(xix) it shall notify the Facility Agent on a regular basis (and in any
event at least once per week) of the number of Class A Shares
tendered in connection with the Tender Offer, notify the Facility
Agent (if requested by the Facility Agent) of any information
furnished to the Antitrust Division of the Department of Justice
of the United States of America (the "ANTITRUST DIVISION") and/or
the Federal Trade Commission and/or the applicable State
Attorneys General and keep the Facility Agent informed of the
details of all discussions held by the Borrower, Ahold
Acquisition and/or Target with the Antitrust Division and/or the
Federal Trade Commission until such time as the Tender Offer
either is withdrawn, lapses or is consummated;
(xx) it shall, and shall cause each of its subsidiaries to, comply
with the terms of the Transaction Documents;
(xxi) it will not cancel any of the Existing Facilities; and
(xxii) it shall, as soon as practicably possible, arrange for the
Merger Document to be duly entered into or, as the case may be,
duly filed.
Nothing contained in this Agreement shall restrict the ability of the
Borrower or any of its subsidiaries from selling, pledging or
otherwise disposing of any assets which, at the time in question,
constitute Margin Stock, or cause or enable any one or more Banks to
cause any or all of the Advances or other payment obligations owed by
the Borrower hereunder to become due and payable or enable any one or
more of the Banks to take any of the actions specified in Clause
14.1(a) or (b) below solely as a result of any such sale, pledge or
disposition.
14. EVENTS OF DEFAULT
14.1 EVENTS OF DEFAULT If:
(i) the Borrower fails to pay any principal, interest or other sum on
the day of the same becoming due and payable pursuant to this
Agreement;
(ii) any representation, warranty or statement made or (deemed to be)
repeated by the Borrower in this Agreement or in any certificate,
statement, opinion or other document contemplated hereby proves
to be untrue or incorrect in a respect which is, in the opinion
of an Instructing Group, material at the time such certificate
statement, opinion or document is made or repeated (or deemed to
be made or repeated) or expressed or any representation or
warranty of any party to any Transaction Document proves to be
incorrect or misleading in any material respect at the time it is
made or repeated (or deemed to be repeated); or
(iii)the Borrower defaults in the due performance or observance of
any undertaking or obligation on its part contained in or
pursuant to this Agreement and, if such default is capable of
remedy, the same shall not have been remedied to the satisfaction
of the Facility Agent (after consultation with an Instructing
Group,) within fourteen days thereafter or any party to any
Transaction Document fails to perform or comply with, in either
case in any material respect, any obligation, agreement or
covenant to be performed or complied with under any Transaction
Document which shall include, for the avoidance of doubt but
without limitation, a withdrawal by ▇. ▇▇▇▇▇▇▇▇▇ plc of any Class
A Shares tendered by it pursuant to the Stock AL Purchase
Agreement or a repudiation by any party to any Transaction
Document of such Transaction Document; or
(iv) there shall have occurred the liquidation of the Borrower or any
Material Subsidiary or any order is made or resolution, law or
regulation passed or other action taken (including the making of
any application to any court or other relevant authority) for or
with a view to the liquidation of the Borrower or any Material
Subsidiary or the Borrower or any Material Subsidiary shall
otherwise enter into liquidation; or
(v) the Borrower or any Material Subsidiary petitions or applies to
any court, tribunal or other body or authority for the
appointment of, or there shall otherwise be appointed, any
administrator, bewindvoerder, receiver, liquidator, curator,
sequestrator, trustee or other similar officer of the Borrower or
any Material Subsidiary or of all or any part of the assets of
the Borrower or any Material Subsidiary; or
(vi) the Borrower or any Material Subsidiary applies for a (temporary)
moratorium or suspension of payments or for an arrangement with
its creditors or for any proceedings or arrangement by which the
assets of the Borrower or any Material Subsidiary are submitted
to the control of its creditors or the Borrower or any Material
Subsidiary otherwise threatens, proposes or declares any
moratorium on its debts or any class of its debts; or
(vii) the Borrower or any Material Subsidiary becomes, or is declared
by any competent authority to be, insolvent or admits in writing
its inability to pay its debts as they fall due or is or becomes
subject to or applies for any bankruptcy proceedings or starts
negotiations with its creditors for a restructuring of its debt;
or
(viii) the Borrower without the written consent of the Facility Agent
on behalf of the Banks ceases or threatens to cease its business
as presently conducted or if the Borrower or any other member of
the Group sells, leases, transfers or otherwise disposes of the
whole or any Substantial part of its assets (other than Margin
Stock) exceeding a value equalling a Substantial part of the
assets on a consolidated basis of the Borrower whether by one
transaction or a series of related transactions without the prior
written consent of the Banks; or
(ix) any other indebtedness of the Borrower or any Material Subsidiary
for or in respect of any borrowed moneys which, when aggregated
with the amount of all other borrowed monies to which this Clause
14.1(ix) applies, exceed $25,000,000 (or its equivalent) (save,
in respect of any guarantee, where liability under such guarantee
is being contested by the Borrower or any Material Subsidiary in
good faith) is not paid when due for payment (or within any
stated applicable period of grace) or is found not to have been
so paid or becomes due and payable or capable of being declared
due and payable prior to its stated date of payment or, if
payable on demand, shall not be paid when demanded; provided that
if such other indebtedness is held by any Bank (or any affiliate
thereof) and was declared to be due and payable or became capable
of being declared due and payable prior to its stated date of
payment, in any case, in circumstances which would not have
occurred but for a default by the Borrower or one or more of its
subsidiaries in complying with a restriction contained in the
documentation governing such indebtedness on the ability of the
Borrower or such subsidiary to sell, pledge or otherwise dispose
of Margin Stock, then neither such declaration (or any failure to
pay based on any such declaration) or such becoming capable of
being declared due and payable shall constitute a Potential Event
of Default or Event of Default; or
(x) the Borrower or any Material Subsidiary defaults under any
mortgage, charge, pledge, lien or other encumbrance or other
security interest upon the whole or any part of the assets of the
Borrower or any Material Subsidiary and the same accordingly
becomes enforceable; or
(xi) all or any Substantial part of the assets of the Borrower or any
Material Subsidiary are attached or distrained upon or becomes
subject to any order or court or other process for execution and
such attachment, distraint, order or process remains in effect
and not discharged for 30 days; or
(xii) any consent of the Dutch authorities or the authorities of any
other relevant jurisdiction required for the validity,
enforceability or legality of this Agreement or any of the
Transaction Documents or the performance hereof or thereof ceases
to be or is not for any reason in full force and effect or such
performance becomes unlawful or the obligations of the Borrower
under this Agreement or of any other party to any Transaction
Document are not or cease to be legal, valid, binding or
enforceable; or
(xiii) the whole or any part of the assets, revenues or share capital
of the Borrower or any Material Subsidiary having a value which,
when aggregated with the value of all other assets to which this
Clause 14.1(xiii) applies, equals or exceeds 15% of the
consolidated net assets of the Borrower is expropriated or
nationalised by any government; or
(xiv) with respect to any Material US Subsidiary or any ERISA
Affiliate thereof, an ERISA Event shall occur with respect to an
Employee Plan and there shall result from such ERISA Event a
liability which, individually or in the aggregate, has a material
adverse effect upon the financial condition of such Material US
Subsidiary; or
(xv) the Merger shall not have been consummated pursuant to the terms
set forth in the Offer to Purchase for Cash within six months
from the date hereof,
then, and in any such case and at any time thereafter, the Facility Agent may
(and, if so instructed by an Instructing Group, shall) by written notice to the
Borrower:
(a) declare the Advances to be immediately due and payable (in
the case of an Event of Default specified in paragraphs (i)
- (xi) and (xiii) above) or due and payable within seven
days of demand of the Facility Agent (in any other case)
(whereupon the same shall become so payable together with
accrued interest thereon and any other sums then owed by the
Borrower hereunder) or declare the Advances to be due and
payable on demand of the Facility Agent; and/or
(b) declare that the Facility shall be cancelled, whereupon the
same shall be cancelled and the Commitment of each Bank
shall be reduced to zero
14.2 FACILITIES DUE ON DEMAND If, pursuant to Clause 14.1 (Events of Default),
the Facility Agent declares the Advances to be due and payable on demand of the
Facility Agent, then, and at any time thereafter, the Facility Agent may (and,
if so instructed by an Instructing Group, shall) by written notice to the
Borrower:
(i) call for repayment of the Advances on such date as it may specify
in such notice (whereupon the same shall become due and payable
on such date together with, in the case of payments in respect of
Advances, accrued interest thereon and any other sums then owed
by the Borrower hereunder) or withdraw its declaration with
effect from such date as it may specify in such notice; and /or
(ii) select as the duration of any Interest Period which begins whilst
such declaration remains in effect a period of six months or
less.
PART 7
DEFAULT INTEREST AND INDEMNITY
15. DEFAULT INTEREST AND INDEMNITY
15.1 DEFAULT INTEREST PERIODS If any sum due and payable by the Borrower
hereunder is not paid on the due date therefor in accordance with the provisions
of Clause 17 (Payments) or if any sum due and payable by the Borrower under any
judgment of any court in connection herewith is not paid on the date of such
judgment, the period beginning on such due date or, as the case may be, the date
of such judgment and ending on the date upon which the obligation of the
Borrower to pay such sum (the balance thereof for the time being unpaid being
herein referred to as an "UNPAID SUM") is discharged shall be divided into
successive periods, each of which (other than the first) shall start on the last
day of the preceding such period and (except as otherwise provided in this
Clause 15) shall be of such duration (not exceeding three months) as the
Facility Agent may select.
15.2 DEFAULT INTEREST During each such period relating thereto as is mentioned
in Clause 15.1 (Default Interest Periods) an unpaid sum shall bear interest at
the rate per annum which is the sum from time to time of two per cent., the
Applicable Margin and LIBOR on the Quotation Date therefor Provided that:
(i) if, for any such period, LIBOR cannot be determined, the rate of
interest applicable to each part of any unpaid sum owed to any
Bank shall be the sum from time to time of one per cent., the
Applicable Margin and the rate per annum (rounded upwards, to the
nearest four decimal places) notified (together with reasonable
evidence that such rate is applicable) by such Bank to the
Facility Agent (who shall notify the Borrower thereof) before the
last day of such period to be that which expresses as a
percentage rate per annum the cost to it of funding from whatever
source it may select its portion of such unpaid sum for such
period; and
(ii) if such unpaid sum is all or part of an Advance which became due
and payable on a day other than the last day of an Interest
Period relating thereto, the first such period applicable thereto
shall be of a duration equal to the unexpired portion of that
Interest Period and the rate of interest applicable thereto from
time to time during such period shall be that which exceeds by
two per cent. the rate which would have been applicable to it had
it not so fallen due.
15.3 PAYMENT OF DEFAULT INTEREST Any interest which shall have accrued under
Clause 15.2 (Default Interest) in respect of any sum shall be due and payable
and shall be paid by the Borrower at the end of the period by reference to which
it is calculated or on such other date or dates as the Facility Agent may
specify by written notice to the Borrower.
15.4 BROKEN PERIODS If any Bank or the Facility Agent on its behalf receives or
recovers for any reason all or any part of any Advance made by such Bank
otherwise than on the last day of an Interest Period relating to that Advance,
the Borrower shall pay to the Facility Agent on demand for account of such Bank
an amount equal to the amount (if any) by which (i) the additional interest
which would have been payable on the amount so received or recovered had it been
received or recovered on the last day of that Interest Period exceeds (ii) the
amount of interest which in the opinion of the Facility Agent would have been
payable to the Facility Agent on the last day of that Interest Period in respect
of a dollar deposit equal to the amount so received or recovered placed by it
with a prime bank in London for a period starting on the third business day in
London following the date of such receipt or recovery and ending on the last day
of that Interest Period.
15.5 BORROWER'S INDEMNITY The Borrower undertakes to indemnify:
(i) each of the Facility Agent, the Arrangers and the Banks against
any cost, claim, loss, expense (including legal fees) or
liability together with any VAT thereon, which any of them may
sustain or incur as a consequence of the occurrence of any Event
of Default or any payment default by the Borrower hereunder; and
(ii) each Bank against any loss it may suffer as a result of its
funding or making an Advance requested by the Borrower hereunder
but not made by reason of the operation of any one or more of the
provisions hereof.
15.6 UNPAID SUMS AS ADVANCES Any unpaid sum shall (for the purposes of this
Clause 15 and Clause 11.1 (Increased Costs)) be treated as an advance and
(accordingly in this Clause 15 and Clause 11.1 (Increased Costs)) the term
"Advance" includes any unpaid sum and the term "Interest Period", in relation to
an unpaid sum, includes each such period relating thereto as is mentioned in
Clause 15.1 (Default Interest Periods).
PART 8
PAYMENTS
16. CURRENCY OF ACCOUNT AND PAYMENT
16.1 CURRENCY OF ACCOUNT AND PAYMENT The dollar is the currency of account and
payment for each and every sum at any time due from the Borrower hereunder
Provided that:
(i) each payment in respect of costs and expenses shall be made in
the currency in which the same were incurred;
(ii) each payment pursuant to Clause 9.2 (Tax Indemnity) or Clause
11.1 (Increased Costs) shall be made in the currency specified by
the party claiming thereunder; and
(iii) any amount expressed to be payable in a currency other than
dollars shall be paid in that other currency.
16.2 CURRENCY INDEMNITY If any sum due from the Borrower under this Agreement or
any order or judgment given or made in relation hereto has to be converted from
the currency (the "FIRST CURRENCY") in which the same is payable hereunder or
under such order or judgment into another currency (the "SECOND CURRENCY") for
the purpose of (a) making or filing a claim or proof against the Borrower, (b)
obtaining an order or judgment in any court or other tribunal or (c) enforcing
any order or judgment given or made in relation hereto, the Borrower shall
indemnify and hold harmless each of the persons to whom such sum is due from and
against any loss suffered or incurred as a result of any discrepancy between (i)
the rate of exchange used for such purpose to convert the sum in question from
the first currency into the second currency and (ii) the rate or rates of
exchange at which such person may in the ordinary course of business purchase
the first currency with the second currency upon receipt of a sum paid to it in
satisfaction, in whole or in part, of any such order, judgment, claim or proof.
17. PAYMENTS
17.1 PAYMENTS TO THE FACILITY AGENT On each date on which this Agreement
requires an amount to be paid by the Borrower or any of the Banks hereunder, the
Borrower or, as the case may be, such Bank shall make the same available to the
Facility Agent by payment in dollars and in same day funds (or in such other
funds as may for the time being be customary in New York City for the settlement
in New York City of international banking transactions in dollars) to the
Facility Agent's account number 574294107000 with ABN AMRO Bank N.V., New York,
N.Y., United States of America reference: Koninklijke Ahold N.V. (or such other
account or bank as the Facility Agent may have specified for this purpose). Any
payment received by the Facility Agent from the Borrower in accordance with the
foregoing shall, without prejudice to the Facility Agent's or any Bank's right
to reclaim or reassert its rights to payment from the Borrower of any amount
which the Facility Agent and such Bank is required to repay to the Borrower for
any reason, constitute fulfilment by the Borrower of its obligation to make such
payment hereunder.
17.2 ALTERNATIVE PAYMENT ARRANGEMENTS If, at any time, it shall become
impracticable (by reason of any action of any governmental authority or any
change in law, exchange control regulations or any similar event) for the
Borrower to make any payments hereunder in the manner specified in Clause 17.1
(Payments to the Facility Agent), then the Borrower may agree with each or any
of the Banks alternative arrangements for the payment direct to such Bank of
amounts due to such Bank hereunder Provided that, in the absence of any such
agreement with any Bank, the Borrower shall be obliged to make all payments due
to such Bank in the manner specified herein. Upon reaching such agreement the
Borrower and such Bank shall immediately notify the Facility Agent thereof and
shall thereafter promptly notify the Facility Agent of all payments made direct
to such Bank.
17.3 PAYMENTS BY THE FACILITY AGENT Save as otherwise provided herein, each
payment received by the Facility Agent for the account of another person
pursuant to Clause 17.1 shall:
(i) in the case of a payment received for the account of the
Borrower, be made available by the Facility Agent to the Borrower
by application:
(a) first, in or towards payment (on the date, and in the
currency and funds, of receipt) of any amount then due from
the Borrower hereunder to the person from whom the amount
was so received or in or towards the purchase of any amount
of any currency to be so applied; and
(b) secondly, in or towards payment (on the date, and in the
currency and funds, of receipt) to such account with such
bank in the principal financial centre of the country of the
currency of such payment as the Borrower shall have
previously notified to the Facility Agent for this purpose;
and
(ii) in the case of any other payment, be made available by the
Facility Agent to the person for whose account such payment was
received (in the case of a Bank, for the account of its relevant
Facility Office) for value the same day by transfer to such
account of such person with such bank in the principal financial
centre of the country of the currency of such payment as such
person shall have previously notified to the Facility Agent.
17.4 NO SET-OFF All payments required to be made by the Borrower hereunder shall
be calculated without reference to any set-off or counterclaim and shall be made
free and clear of and without any deduction for or on account of any set-off or
counterclaim.
17.5 CLAWBACK Where a sum is to be paid hereunder to the Facility Agent for
account of another person, the Facility Agent shall not be obliged to make the
same available to that other person or to enter into or perform any exchange
contract in connection therewith until it has been able to establish to its
satisfaction that it has actually received such sum, but if it does so and it
proves to be the case that it had not actually received such sum, then the
person to whom such sum or the proceeds of such exchange contract was so made
available shall on request refund the same to the Facility Agent together with
an amount sufficient to indemnify the Facility Agent against any cost or loss it
may have suffered or incurred by reason of its having paid out such sum or the
proceeds of such exchange contract prior to its having received such sum.
17.6 APPLICATION OF PAYMENTS The Facility Agent and each Bank shall apply any
amount received by it hereunder:
(i) first, in payment of all costs and expenses required to be
reimbursed by the Borrower hereunder;
(ii) secondly, in payment of all accrued but unpaid fees;
(iii) thirdly, in payment of all accrued but unpaid default interest;
(iv) fourthly, in payment of all accrued but unpaid interest (other
than default interest); and
(v) fifthly, in payment of any unpaid principal.
18. SET-OFF
18.1 CONTRACTUAL SET-OFF The Borrower authorises each Bank to apply and each
Bank shall be entitled to set off any credit balance to which the Borrower is
entitled on any account of the Borrower with that Bank in satisfaction of any
sum due and payable from the Borrower to such Bank hereunder but unpaid; for
this purpose, each Bank is authorised to purchase with the moneys standing to
the credit of any such account such other currencies as may be necessary to
effect such application. No Bank shall be obliged to exercise any right given to
it by this Clause 18.
19. SHARING
19.1 REDISTRIBUTION OF PAYMENTS Subject to Clause 19.3, if, at any time, the
proportion which any Bank (a "RECOVERING BANK") has received or recovered
(whether by payment, the exercise of a right of set-off or combination of
accounts or otherwise) in respect of its portion of any payment (a "RELEVANT
PAYMENT") to be made under this Agreement by the Borrower for account of such
Recovering Bank and one or more other Banks is greater (the portion of such
receipt or recovery giving rise to such excess proportion being herein called an
"EXCESS AMOUNT") than the proportion thereof so received or recovered by such
Bank or Banks so receiving or recovering the smallest proportion thereof, then:
(i) such Recovering Bank shall pay to the Facility Agent an amount
equal to such excess amount;
(ii) there shall thereupon fall due from the Borrower to such
Recovering Bank an amount equal to the amount paid out by such
Recovering Bank pursuant to paragraph (i) above, the amount so
due being, for the purposes hereof, treated as if it were an
unpaid part of such Recovering Bank's portion of such relevant
payment; and
(iii) the Facility Agent shall treat the amount received by it from
such Recovering Bank pursuant to paragraph (i) above as if such
amount had been received by it from the Borrower in respect of
such relevant payment and shall pay the same to the persons
entitled thereto (including such Recovering Bank) pro rata to
their respective entitlements thereto,
Provided that to the extent that any excess amount is attributable to a payment
to a Bank pursuant to Clause 17.3(i)(a) such portion of such excess amount as is
so attributable shall not be required to be shared pursuant hereto.
19.2 REPAYABLE RECOVERIES If any sum (a "RELEVANT SUM") received or recovered by
a Recovering Bank in respect of any amount owing to it by the Borrower becomes
repayable and is repaid by such Recovering Bank, then:
(i) each Bank which has received a share of such relevant sum by
reason of the implementation of Clause 19.1 shall, upon request
of the Facility Agent, pay to the Facility Agent for account of
such Recovering Bank an amount equal to its share of such
relevant sum together with such amount (if any) as is necessary
to reimburse the Recovering Bank the appropriate proportion of
any interest it shall have been obliged to pay when repaying such
relevant sum to the Borrower as aforesaid; and
(ii) there shall thereupon fall due from the Borrower to each such
Bank an amount equal to the amount paid out by it pursuant to
paragraph (i) above, the amount so due being, for the purposes
hereof, treated as if it were the sum payable to such Bank
against which such Bank's share of such relevant sum was applied.
19.3 RECOVERIES THROUGH LEGAL PROCEEDINGS If any Bank shall commence any action
or proceeding in any court to enforce its rights hereunder after consultation
with the other Banks and, as a result thereof or in connection therewith, shall
receive any excess amount (as defined in Clause 19.1), then such Bank shall not
be required to share any portion of such excess amount with any Bank which has
the legal right to, but does not, join in such action or proceeding or commence
and diligently prosecute a separate action or proceeding to enforce its rights
in another court.
PART 9
FEES, COSTS AND EXPENSES
20. COMMITMENT COMMISSION AND FEES
20.1 COMMITMENT FEE The Borrower shall pay to the Facility Agent for account of
each Bank a commitment fee to be calculated at the rate of 0.075 per cent. per
annum and payable on the amount of such Bank's Available Commitment from time to
time during the period beginning on the date hereof and ending on the
Termination Date, in arrear on the last day of each successive period of three
months which ends prior to the Termination Date, on the day the Loan is fully
drawn, on the Termination Date and upon the date of cancellation of all or any
part of the Available Commitments to the extent any such fee has accrued and is
unpaid on the amount so cancelled.
20.2 AGENCY FEE The Borrower shall pay to the Facility Agent for its own account
the agency fees specified in the letter of even date herewith from the Facility
Agent to the Borrower signed by the Borrower at the times, and in the amounts,
specified in such letter.
20.3 ARRANGEMENT FEE The Borrower shall pay to the Arranger for its own account
the fees specified in the letter of even date herewith from the Arranger to the
Borrower signed by the Borrower at the times, and in the amounts, specified in
such letter.
21. COSTS AND EXPENSES
21.1 TRANSACTION EXPENSES The Borrower shall, on demand of the Facility Agent,
reimburse each of the Facility Agent and the Arranger for all reasonable legal
and out-of-pocket costs and expenses (including printing and publicity costs)
together with any VAT thereon incurred by it in connection with the negotiation,
preparation and execution of this Agreement and the completion of the
transactions herein contemplated.
21.2 PRESERVATION AND ENFORCEMENT OF RIGHTS The Borrower shall, from time to
time on demand of the Facility Agent, reimburse each of the Facility Agent, the
Arranger and the Banks for all costs and expenses (including legal fees)
together with any VAT thereon incurred in or in connection with the preservation
and/or enforcement of any of the rights of any of the Facility Agent, the
Arranger and the Banks under this Agreement.
21.3 STAMP TAXES The Borrower shall pay all stamp, registration and other taxes
to which this Agreement is or at any time may be subject and shall, from time to
time on demand of the Facility Agent, indemnify each of the Facility Agent, the
Arranger and the Banks against any liabilities, costs, claims and expenses
resulting from any failure to pay or any delay in paying any such tax.
21.4 AGENT'S COSTS The Borrower shall, from time to time on demand of the
Facility Agent (and without prejudice to the provisions of Clause 21.2
(Preservation and Enforcement of Rights) and Clause 30.2 (Amendment Costs))
compensate the Facility Agent at such daily and/or hourly rates as the Facility
Agent shall from time to time reasonably determine for the time and expenditure,
all costs and expenses (including telephone, fax, copying, travel and personnel
costs) incurred by the Facility Agent in connection with its taking such action
as it may deem appropriate or in complying with any instructions from an
Instructing Group or any request by the Borrower in connection with:
(a) the granting or proposed granting of any waiver or consent
requested hereunder by the Borrower;
(b) any actual, potential or suspected breach by the Borrower of its
obligations hereunder;
(c) the occurrence of any event which is an Event of Default or a
Potential Event of Default; or
(d) any amendment or proposed amendment hereto requested by the
Borrower.
21.5 BANKS' LIABILITIES FOR COSTS If the Borrower fails to perform any of its
obligations under this Clause 21, each Bank shall, in its Proportion, indemnify
each of the Facility Agent and the Arranger against any loss incurred by any of
them as a result of such failure and the Borrower shall forthwith reimburse each
Bank for any payment made by it pursuant to this Clause 21.4.
21.6 INDEMNIFICATION BY THE BORROWER The Borrower agrees to and hereby does
indemnify and hold harmless the Facility Agent and each Bank and their
respective affiliates, directors, officers, agent and employees and each other
person, if any controlling them or any of their affiliates within the meaning of
either Section 15 of the Securities Act of 1933, as amended or Section 20(a) of
the Exchange Act (each, "INDEMNIFIED PARTY") from and against any and all
losses, claims, damages, costs, expenses (including reasonable counsel fees and
disbursements) and liabilities which may be incurred by or asserted against such
Indemnified Party resulting from any actual or threatened legal actions or
proceedings arising out of the Commitments, the financings contemplated hereby,
the Tender Offer, any transaction contemplated by any of the Transaction
Documents or their role in connection therewith whether or not they or any other
Indemnified Party is named as a party to any such legal action or proceeding
("CLAIMS"). The Borrower will not, however, be responsible to any Indemnified
Party hereunder for any claims to the extent that a court having jurisdiction
shall have determined by a final judgment that any such Claim shall have arisen
out of or resulted from actions taken or omitted to be taken by such Indemnified
Party which constitutes the gross negligence or wilful misconduct of such
Indemnified Party ("EXCLUDED CLAIMS"). Each Indemnified Party shall give the
Borrower prompt written notice of any Claim setting forth a description of those
elements of the claim of which such Indemnified Party has knowledge. The
Borrower shall have the right at any time during which a Claim is pending to
select counsel to defend and settle any Claims for which the Borrower is an
indemnitor hereunder so long as in any such event the Borrower shall have stated
by written notice delivered to the applicable Indemnified Party that, as between
the Borrower and such Indemnified Party, the Borrower is responsible to such
Indemnified Party with respect to such Claim to the extent and subject to the
limitations set forth herein. In any other case, the Indemnified Party shall
have the right to select counsel and control the defence of any Claims to the
extent provided for herein; provided, however, that no Indemnified Party shall
settle any claim as to which it is controlling the defence without the
Borrower's consent, which consent shall not be unreasonably withheld. With
respect to any Claim for which the Borrower is entitled to select counsel, each
Indemnified Party shall have the right, at its expense, to participate in the
defence of such Claim.
PART 10
AGENCY PROVISIONS
22. THE FACILITY AGENT, THE ARRANGER AND THE BANKS
22.1 APPOINTMENT OF THE FACILITY AGENT The Arranger and each of the Banks hereby
appoints the Facility Agent to act as its facility agent in connection herewith
and authorises the Facility Agent to exercise such rights, powers, authorities
and discretions as are specifically delegated to the Facility Agent by the terms
hereof together with all such rights, powers, authorities and discretions as are
reasonably incidental thereto.
22.2 FACILITY AGENT'S DISCRETIONS The Facility Agent may:
(i) assume that:
(a) any representation made by the Borrower in connection
herewith is true;
(b) no Event of Default or Potential Event of Default has
occurred;
(c) the Borrower is not in breach of or default under its
obligations hereunder or under any of the Transaction
Documents; and
(d) any right, power, authority or discretion vested herein upon
an Instructing Group, the Banks or any other person or group
of persons has not been exercised,
unless the Facility Agent has, in its capacity as facility agent
hereunder, actual knowledge of or received actual notice to the
contrary from any other party hereto;
(ii) assume that the Facility Office of each Bank is that identified
with its signature below (or, in the case of a Transferee, at the
end of the Transfer Certificate to which it is a party as
Transferee) until it has received from such Bank a notice
designating some other office of such Bank to replace any such
Facility Office and act upon any such notice until the same is
superseded by a further such notice;
(iii) engage and pay for the advice or services of any lawyers,
accountants, surveyors or other experts whose advice or services
may to it seem necessary, expedient or desirable and rely upon
any advice so obtained;
(iv) rely as to any matters of fact which might reasonably be expected
to be within the knowledge of the Borrower upon a certificate
signed by or on behalf of the Borrower;
(v) rely upon any communication or document believed by it to be
genuine;
(vi) refrain from exercising any right, power or discretion vested in
it as facility agent hereunder unless and until instructed by an
Instructing Group as to whether or not such right, power or
discretion is to be exercised and, if it is to be exercised, as
to the manner in which it should be exercised; and
(vii) refrain from acting in accordance with any instructions of an
Instructing Group to begin any legal action or proceeding arising
out of or in connection with this Agreement until it shall have
received such security as it may require (whether by way of
payment in advance or otherwise) for all costs, claims, losses,
expenses (including legal fees) and liabilities together with any
VAT thereon which it will or may expend or incur in complying
with such instructions.
22.3 FACILITY AGENT'S OBLIGATIONS The Facility Agent shall:
(i) promptly inform each Bank of the contents of any notice or
document received by it in its capacity as Facility Agent from
the Borrower hereunder;
(ii) promptly notify each Bank of the occurrence of any Event of
Default, Potential Event of Default or any default by the
Borrower or any other party in the due performance of or
compliance with its obligations under this Agreement or under any
Transaction Document of which the Facility Agent has actual
knowledge or received actual notice from any other party hereto;
(iii) save as otherwise provided herein, act as facility agent
hereunder in accordance with any instructions given to it by an
Instructing Group, which instructions shall be binding on the
Arrangers and all of the Banks; and
(iv) if so instructed by an Instructing Group, refrain from exercising
any right, power or discretion vested in it as facility agent
hereunder unless such right, power or discretion is vested in the
Facility Agent in its individual capacity hereunder or is a
right, power or discretion that may be exercised against the
Arranger, the Banks or any of them.
22.4 EXCLUDED OBLIGATIONS Notwithstanding anything to the contrary expressed or
implied herein, neither the Facility Agent nor the Arranger shall:
(i) be bound to enquire as to:
(a) whether or not any representation made by the Borrower in
connection herewith is true;
(b) the occurrence or otherwise of any Event of Default or
Potential Event of Default;
(c) the performance by the Borrower of its obligations hereunder
or under any of the Transaction Documents; or
(d) any breach of or default by the Borrower of or under its
obligations hereunder or under any of the Transaction
Documents;
(ii) be bound to account to any Bank for any sum or the profit element
of any sum received by it for its own account;
(iii) be bound to disclose to any other person any information
relating to any member of the Group if such disclosure would or
might in its opinion constitute a breach of any law or regulation
or be otherwise actionable at the suit of any person; or
(iv) be under any obligations or fiduciary duties other than those for
which express provision is made herein.
22.5 INDEMNIFICATION Each Bank shall, in its Proportion, from time to time on
demand by the Facility Agent, indemnify the Facility Agent, against any and all
costs, claims, losses, expenses (including legal fees) and liabilities together
with any VAT thereon which the Facility Agent may incur in acting in its
capacity as facility agent hereunder and the Borrower shall, on first demand of
such Bank, reimburse such Bank in full for any monies paid out by it pursuant to
this Clause 22.5. Each Bank shall, following any payment made by it under this
Clause 22.5, be entitled to recover from the Facility Agent any amount which it
establishes has been paid by it to the Facility Agent pursuant to this Clause
22.5 in respect of costs, claims, losses, expenses (including legal fees) and
liabilities incurred by the Facility Agent as a result of the Facility Agent's
own gross negligence or wilful misconduct in acting in its capacity as facility
agent hereunder.
22.6 EXCLUSION OF LIABILITIES Neither the Facility Agent nor the Arranger
accepts any responsibility for the accuracy and/or completeness of any
information supplied by it or the Borrower in connection herewith or for the
legality, validity, effectiveness, adequacy or enforceability of this Agreement
and neither the Facility Agent nor the Arranger shall be under any liability as
a result of taking or omitting to take any action in relation to this Agreement,
save in the case of gross negligence or wilful misconduct.
22.7 NO ACTIONS Each of the Banks agrees that it will not assert or seek to
assert against any director, officer or employee of the Facility Agent or the
Arranger any claim it might have against any of them in respect of the matters
referred to in Clause 22.6 (Exclusion of Liabilities).
22.8 BUSINESS WITH THE GROUP Each of the Facility Agent and the Arranger may
accept deposits from, lend money to and generally engage in any kind of banking
or other business with any member of the Group.
22.9 RESIGNATION The Facility Agent may resign its appointment hereunder at any
time without assigning any reason therefor by giving not less than thirty days'
prior written notice to that effect to each of the other parties hereto Provided
that no such resignation shall be effective until a successor for the Facility
Agent is appointed in accordance with the succeeding provisions of this Clause
22.
22.10 REMOVAL An Instructing Group may remove the Facility Agent from its
appointment hereunder as the Facility Agent at any time by giving not less than
thirty days' prior written notice to that effect to each of the other parties
hereto provided that no such removal shall be effective until a successor for
the Facility Agent is appointed in accordance with the succeeding provisions of
this Clause 22.
22.11 SUCCESSOR FACILITY AGENT If the Facility Agent gives notice of its
resignation pursuant to Clause 23.9 (Resignation), then any reputable and
experienced bank or other financial institution may be appointed as a successor
to the Facility Agent by an Instructing Group during the period of such notice
but, if no such successor is so appointed, the Facility Agent may appoint such a
successor itself.
22.12 NEW FACILITY AGENT If an Instructing Group removes the Facility Agent from
its appointment hereunder pursuant to Clause 22.10 (Removal), then any reputable
and experienced bank or other financial institution may be appointed, after
consultation with the Borrower, as a successor to such Facility Agent by an
Instructing Group.
22.13 RIGHTS AND OBLIGATIONS If a successor to the Facility Agent is appointed
under the provisions of Clause 22.11 (Successor Facility Agent), then (i) the
retiring Facility Agent shall be discharged from any further obligation
hereunder but shall remain entitled to the benefit of the provisions of this
Clause 22.9 (Resignation) and (ii) its successor and each of the other parties
hereto shall have the same rights and obligations amongst themselves as they
would have had if such successor had been a party hereto.
22.14 OWN RESPONSIBILITY It is understood and agreed by each Bank that it has
itself been, and will continue to be, solely responsible for making its own
independent appraisal of and investigations into the financial condition,
creditworthiness, condition, affairs, status and nature of the Borrower and the
Group and, accordingly, each Bank warrants to the Facility Agent and the
Arranger that it has not relied on and will not hereafter rely on the Facility
Agent and the Arranger or any of them:
(i) to check or enquire on its behalf into the adequacy, accuracy or
completeness of any information provided by the Borrower in
connection with this Agreement or the transactions herein
contemplated (whether or not such information has been or is
hereafter circulated to such Bank by the Facility Agent or the
Arranger or any of them); or
(ii) to assess or keep under review on its behalf the financial
condition, creditworthiness, condition, affairs, status or nature
of the Borrower and the Group.
22.15 AGENCY DIVISION SEPARATE In acting as Facility Agent and/or Arranger for
the Banks, the agency department of the Facility Agent and the Arranger shall be
treated as a separate entity from any other of its divisions or departments and,
notwithstanding the foregoing provisions of this Clause 22, in the event that
the Facility Agent or, as the case may be, the Arranger should act for any
member of the Group in any capacity in relation to any other matter, any
information given by such member of the Group to the Facility Agent or, as the
case may be, the Arranger in such other capacity may be treated as confidential
by the Facility Agent or, as the case may be, the Arranger and shall not
constitute actual knowledge of any matter for the purposes of Clause 22.2
(Facility Agent's Discretions).
22.16 CONFIDENTIAL INFORMATION Notwithstanding anything to the contrary
expressed or implied herein and without prejudice to the provisions of Clause
22.14 (Agency Division Separate), the Facility Agent shall not as between itself
and the Banks be bound to disclose to any Bank or other person any information
which is supplied by any member of the Group to the Facility Agent in its
capacity as facility agent hereunder for the Banks and which is identified by
such member of the Group at the time it is so supplied as being confidential
information Provided that the consent of the relevant member of the Group to
such disclosure shall not be required in relation to any information which in
the opinion of the Facility Agent relates to an Event of Default or Potential
Event of Default or in respect of which the Banks have given a confidentiality
undertaking in a form satisfactory to the Facility Agent and the relevant member
of the Group.
PART 11
ASSIGNMENTS AND TRANSFERS
23. BENEFIT OF AGREEMENT
This Agreement shall be binding upon and enure to the benefit of each party
hereto and its or any subsequent successors (including without limitation, any
entity which assumes the rights and obligations of any party hereto by operation
of the law of the jurisdiction of incorporation or domicile of such party),
Transferees and assigns.
24. ASSIGNMENTS AND TRANSFERS BY THE BORROWER
The Borrower shall not be entitled to assign or transfer all or any of its
rights, benefits and obligations hereunder.
25. ASSIGNMENTS AND TRANSFERS BY BANKS
25.1 ASSIGNMENT AND TRANSFERS BY BANKS Any Bank may, at any time, assign all or
(subject to the proviso below) any of its rights and benefits hereunder or
transfer in accordance with Clause 25.3 (Transfers by Bank) all or any of its
rights, benefits and obligations hereunder (i) to any holding company, any of
its wholly-owned subsidiaries or any affiliate or (ii) with the prior written
consent of the Borrower (not to be unreasonably withheld or delayed) to any
other person provided that (without prejudice to a Bank's right to assign and/or
transfer all of its rights, benefits and obligations hereunder in accordance
with this Clause 25.1) a Bank shall be entitled to assign and/or transfer part
of its Participation hereunder only in an amount which is in a minimum amount of
US$25,000,000 unless it assigns or transfers the whole of its Participation.
25.2 ASSIGNMENTS BY BANKS If any Bank assigns all or any of its rights and
benefits hereunder in accordance with Clause 25.1 (Assignments and Transfers by
Banks), then, unless and until the assignee has agreed with the Borrower, the
Facility Agent, the Arranger and the other Banks that it shall be under the same
obligations towards each of them as it would have been under if it had been an
original party hereto as a Bank (whereupon such assignee shall become a party
hereto as a "Bank"), the Facility Agent, the Arranger and the other Banks shall
not be obliged to recognise such assignee as having the rights against each of
them which it would have had if it had been such a party hereto. The assignee
shall be responsible for giving notice of the assignment to the Borrower.
25.3 TRANSFER BY BANKS If any Bank wishes to transfer all or any of its rights,
benefits and/or obligations hereunder as contemplated in Clause 25.1
(Assignments and Transfers by Banks), then such transfer may be effected by the
delivery to and signature by the Facility Agent on behalf of the Borrower (and
the Borrower hereby irrevocably appoints the Facility Agent as its facility
agent for the purposes of such delivery and signature of any Transfer
Certificate) of a duly completed and duly executed Transfer Certificate in which
event it is hereby irrevocably agreed by the Borrower in advance that, on the
later of the Transfer Date specified in such Transfer Certificate and the fifth
business day after (or such earlier business day endorsed by the Facility Agent
on such Transfer Certificate falling on or after) the date of delivery of such
Transfer Certificate to and signature by the Facility Agent on behalf of the
Borrower (which signature the Facility Agent agrees to complete promptly upon
receipt of the relevant Transfer Certificate in accordance with this Clause 25):
(i) to the extent that in such Transfer Certificate the Bank party
thereto seeks to transfer its rights, benefits and obligations
hereunder, the Borrower and such Bank shall be released from
further obligations towards one another hereunder and their
respective rights against one another shall be cancelled (such
rights, benefits and obligations being referred to in this Clause
25.3 as "DISCHARGED RIGHTS AND OBLIGATIONS");
(ii) the Borrower and the Transferee party thereto shall assume
obligations towards one another and/or acquire rights against one
another which differ from such discharged rights and obligations
only insofar as the Borrower and such Transferee have assumed
and/or acquired the same in place of the Borrower and such Bank;
(iii) the Facility Agent, the Arranger, such Transferee and the other
Banks shall acquire the same rights and benefits and assume the
same obligations between themselves as they would have acquired
and assumed had such Transferee been an original party hereto as
a Bank with the rights, benefits and/or obligations acquired or
assumed by it as a result of such transfer; and
(iv) such Transferee shall become a party hereto as a "Bank" and will
also be deemed to have appointed the Facility Agent as its agent
in accordance with the terms of this Agreement.
Receipt of a Transfer Certificate by the Facility Agent shall also constitute
notice to the Borrower as required by Dutch law and each party hereto hereby
irrevocably authorises and instructs the Facility Agent to receive each such
notice on its behalf and irrevocably agrees that each such notice to be given to
such party may be given to the Facility Agent as representative of such party.
25.4 TRANSFER FEES On the date upon which a transfer (other than a transfer by
an Arranger) takes effect pursuant to Clause 25.3 (Transfer by Banks), the
Transferee in respect of such transfer shall pay to the Facility Agent for its
own account a transfer fee of US$1000. All costs of any transfer of any Bank's
rights, benefits and obligations hereunder to any Transferee (including, without
limitation, any stamp duty) shall be for the account of such Bank.
25.5 LIMITATION ON GROSS-UPS AND INDEMNITIES If any Bank assigns or transfers
any of its rights, benefits and obligations hereunder or changes its Facility
Office and there arises (by reason of circumstances existing at the date of such
assignment or transfer or which are not existing at such date but which are
scheduled to take effect or in respect of which there is a general consensus
that they will take effect after the date thereof) an obligation on the part of
the Borrower to such Bank or its assignee or transferee or any other person any
amount in excess of the amount it would have been obliged to pay but for such
assignment, transfer or change, then the Borrower shall not be obliged to pay
the amount of such excess.
26. DISCLOSURE OF INFORMATION
Any Bank may disclose to any actual or potential assignee or Transferee or to
any person who may otherwise enter into contractual relations with such Bank in
relation to this Agreement such information about the Borrower and the Group as
such Bank shall consider appropriate and each Bank shall also be entitled to
disclose any such information:
(i) if required by applicable law or applicable regulations of any
relevant supervising authorities;
(ii) in connection with any legal proceedings taken against the
Borrower in connection with this Agreement;
(iii) to any of its auditors or legal counsel; or
(iv) which is in the public domain.
PART 12
MISCELLANEOUS
27. CALCULATIONS AND EVIDENCE OF DEBT
27.1 BASIS OF ACCRUAL Interest and the commitment fee shall accrue from day to
day and shall be calculated on the basis of a year of 360 days (or, if market
practice differs, in accordance with market practice) and the actual number of
days elapsed.
27.2 QUOTATION If on any occasion a Reference Bank or Bank fails to supply the
Facility Agent with a quotation required of it under the foregoing provisions of
this Agreement, the rate for which such quotation was required shall be
determined from those quotations which are supplied to the Facility Agent.
27.3 EVIDENCE OF DEBT Each Bank shall maintain in accordance with its usual
practice accounts evidencing the amounts from time to time lent by and owing to
it hereunder.
27.4 CONTROL ACCOUNTS The Facility Agent shall maintain on its books a control
account or accounts in which shall be recorded (i) the amount of any Advance
made or arising hereunder (and the name of the Bank to which such sum relates
and each Bank's share therein), (ii) the amount of all principal, interest and
other sums due or to become due from the Borrower to any of the Banks hereunder
and each Bank's share therein and (iii) the amount of any sum received or
recovered by the Facility Agent hereunder and each Bank's share therein. The
Facility Agent shall, upon request of the Borrower, deliver to the Borrower
statements of the accounts referred to in this Clause 27.4.
27.5 PRIMA FACIE EVIDENCE In any legal action or proceeding arising out of or in
connection with this Agreement, the entries made in the accounts maintained
pursuant to Clauses 27.3 (Evidence of Debt) and 27.4 (Control Accounts) shall be
prima facie evidence of the existence and amounts of the obligations of the
Borrower therein recorded.
27.6 CERTIFICATES OF BANKS A certificate of a Bank as to (i) the amount by which
a sum payable to it hereunder is to be increased under Clause 9.1 (Tax
Indemnity) or (ii) the amount for the time being required to indemnify it
against any such cost, payment or liability as is mentioned in Clause 9.2 (Tax
Gross-Up) 11.1 (Increased Costs), 15.4 (Broken Periods) or 16.2 (Currency
Indemnity) shall be conclusive evidence for the purposes of this Agreement save
in the case of manifest error.
28. REMEDIES AND WAIVERS
No failure to exercise, nor any delay in exercising, on the part of any party
hereto, any right or remedy hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any right or remedy prevent any further
or other exercise thereof or the exercise of any other right or remedy. The
rights and remedies herein provided are cumulative and not exclusive of any
rights or remedies provided by law.
29. PARTIAL INVALIDITY
If, at any time, any provision hereof is or becomes illegal, invalid or
unenforceable in any respect under the law of any jurisdiction, neither the
legality, validity or enforceability of the remaining provisions hereof nor the
legality, validity or enforceability of such provision under the law of any
other jurisdiction shall in any way be affected or impaired thereby.
30. AMENDMENTS
30.1 AMENDMENT PROCEDURES With the prior written consent of an Instructing
Group, the Facility Agent and the Borrower may from time to time enter into
written amendments, supplements or modifications hereto for the purpose of
adding any provisions to this Agreement or changing in any manner the rights of
all or any of the Facility Agent, the Arranger and the Banks or of the Borrower
hereunder, and, at the request of the Borrower with the prior consent of an
Instructing Group, the Facility Agent on behalf of the Arranger and the Banks
may execute and deliver to the Borrower a written instrument waiving
prospectively or retrospectively, on such terms and conditions as the Facility
Agent may specify in such instrument, any of the requirements of this Agreement
or any Event of Default or Potential Event of Default and its consequences
Provided, however, that:
(i) no such waiver and no such amendment, supplement or modification
shall without the prior consent of all the Banks:
(a) amend or modify the definitions of Instructing Group, Margin
or Termination Date;
(b) amend, modify or waive any provision requiring the consent
of all the Banks, any provision of Clause 19 (Sharing) or
this Clause 30;
(c) change the principal amount of or currency of any Advance or
defer the Repayment Date;
(d) decrease the amount of, or change the currency of or extend
the date for any payment of interest, fees or any other
amount payable to all or any of the Facility Agent, the
Arrangers and the Banks hereunder; or
(e) increase the amount of the Total Commitments.
(ii) notwithstanding any other provision hereof, the Facility Agent
shall not be obliged to agree to any such waiver, amendment,
supplement or modification if the same would:
(a) amend, modify or waive any provision of this Clause 30; or
(b) otherwise amend, modify or waive any of the Facility Agent's
or the Arrangers' rights hereunder or subject the Facility
Agent or, as the case may be, any Arranger to any additional
obligations hereunder; and
(iii) the Facility Agent shall promptly notify the Banks of any written
amendments, supplements or modifications hereto which have been
made with the consent of an Instructing Group and the Borrower.
30.2 AMENDMENT COSTS If the Borrower requests any amendment, supplement,
modification or waiver in accordance with Clause 30.1 (Amendment Procedures),
then the Borrower shall, on demand of the Facility Agent, reimburse the Facility
Agent for all reasonable costs and expenses (including legal fees) together with
any VAT thereon incurred by the Facility Agent in the negotiation, preparation
and execution of any written instrument contemplated by Clause 30.1 (Amendment
Procedures) or incurred otherwise responding to or complying with such request.
31. NOTICES
31.1 COMMUNICATIONS IN WRITING Each communication to be made hereunder shall be
made in writing but, unless otherwise stated, may be made by telefax or letter
Provided that the Borrower shall indemnify each of the Facility Agent, the
Arranger and the Banks against any cost, claims, loss, expense (including legal
fees) or liability together with any VAT thereon which any of them may sustain
or incur as a consequence of any telefax communication originating from the
Borrower not being actually received by or delivered to the intended recipient
thereof or any telefax communication purporting to originate from the Borrower
being made or delivered fraudulently.
31.2 DELIVERY Any communication or document (unless made by telefax or
telephone) to be made or delivered by one person to another pursuant to this
Agreement shall (unless that other person has by fifteen days' written notice to
the Facility Agent specified another address) be made or delivered to that other
person at the address identified with its signature below (or, in the case of a
Transferee, at the end of the Transfer Certificate to which it is a party as
Transferee) and shall be deemed to have been made or delivered when left at that
address or (as the case may be) ten days after being deposited in the post
postage prepaid in an envelope addressed to it at that address Provided that:
(i) any communication or document to be made or delivered to the
Facility Agent shall be effective only when received by the
Facility Agent and then only if the same is expressly marked for
the attention of the department or officer identified with the
Facility Agent's signature below (or such other department or
officer as the Facility Agent shall from time to time specify for
this purpose); and
(ii) any communication or document to be made or delivered to any Bank
having more than one Facility Office shall (unless such Bank has
by fifteen days' written notice to the Facility Agent specified
another address) be made or delivered to such Bank at the address
identified with its signature below (or, in the case of a
Transferee, at the end of the Transfer Certificate to which it is
a party as Transferee) as its main Facility Office.
31.3 COMMUNICATION BY TELEPHONE OR TELEFAX Where any provision of this Agreement
specifically contemplates telephone or telefax communication made by one person
to another, such communication shall be made to that other person at the
relevant telephone number specified by it from time to time for the purpose and
shall be deemed to have been received when made (in the case of any
communication by telephone) or when transmission of such telefax communication
has been completed (in the case of any telecommunication by telefax). Each such
telefax communication, if made to the Facility Agent by the Borrower shall be
signed by the person or persons authorised by the Borrower in the certificate
delivered pursuant to the Third Schedule and shall be expressed to be for the
attention of the department or officer whose name has been notified for the time
being for that purpose by the Facility Agent to the Borrower.
31.4 ENGLISH LANGUAGE Each communication and document made or delivered by one
party to another pursuant to this Agreement shall be in the English language or
accompanied by a translation thereof into English certified (by an officer of
the person making or delivering the same) as being a true and accurate
translation thereof.
32. COUNTERPARTS
This Agreement may be executed in any number of counterparts and by different
parties hereto on separate counterparts each of which, when executed and
delivered, shall constitute an original, but all the counterparts shall together
constitute but one and the same instrument.
PART 13
LAW AND JURISDICTION
33. LAW
This Agreement shall be governed by, and shall be construed in accordance with,
the law of The Netherlands.
34. JURISDICTION
34.1 ENGLISH COURTS Each of the parties hereto irrevocably agrees for the
benefit of each of the Facility Agent, the Arrangers and the Banks that the
courts of England shall have jurisdiction to hear and determine any suit, action
or proceeding, and to settle any disputes, which may arise out of or in
connection with this Agreement and, for such purposes, irrevocably submits to
the jurisdiction of such courts.
34.2 DUTCH COURTS The Borrower irrevocably agrees for the benefit of each of the
Facility Agent, the Arrangers and the Banks that the competent courts of
Amsterdam, The Netherlands shall have jurisdiction to hear and determine any
suit, action or proceeding, and to settle any disputes, which may arise out of
or in connection with this Agreement and, for such purposes, irrevocably submits
to the jurisdiction of such courts.
34.3 NEW YORK COURTS The Borrower irrevocably agrees that the courts of the
State of New York and the courts of the United States of America, in each case
sitting in the County of New York, shall have jurisdiction to hear and determine
any suit, action or proceedings and to settle any disputes which may arise out
of, or in connection with this Agreement and, for such purposes, irrevocably
submits to the jurisdiction of such courts.
34.4 APPROPRIATE FORM The Borrower irrevocably waives any objection which it
might now or hereafter have to the courts referred to in Clauses 34.1 (English
Courts), 34.2 (Dutch Courts) or 34.3 (New York Courts) being nominated as the
forum to hear and determine any suit, action or proceeding, and to settle any
disputes, which may arise out of or in connection with this Agreement and agrees
not to claim that any such court is not a convenient or appropriate forum.
34.5 SERVICE OF PROCESS The Borrower agrees that the process by which any suit,
action or proceeding is begun may be served on it by being delivered (i) in
connection with any suit, action or proceeding in England, to ▇▇▇▇▇▇▇▇ Chance
Secretaries, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ and (ii) in connection with
any suit, action or proceeding in New York, to CT Corporation System at ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ of America. If the appointment of
the person mentioned in this Clause 34.5 ceases to be effective the Borrower
shall immediately appoint a further person in England or, as the case may be,
New York to accept service of process on its behalf in England or, as the case
may be, New York and, failing such appointment within 15 days, the Facility
Agent shall be entitled to appoint such a person by notice to the Borrower.
Nothing contained herein shall affect the right to serve process in any other
manner permitted by law.
34.6 NON-EXCLUSIVE SUBMISSIONS The submission to the jurisdiction of the courts
referred to in Clauses 34.1 (English Courts), 34.2 (Dutch Courts) 34.3 (New York
Courts) shall not (and shall not be construed so as to) limit the right of the
Facility Agent, the Arranger and the Banks or any of them to take proceedings
against the Borrower in any other court of competent jurisdiction nor shall the
taking of proceedings in any one or more jurisdictions preclude the taking of
proceedings in any other jurisdiction (whether concurrently or not) if and to
the extent permitted by applicable law.
34.7 CONSENT TO ENFORCEMENT The Borrower hereby consents generally in respect of
any legal action or proceeding arising out of or in connection with this
Agreement to the giving of any relief or the issue of any process in connection
with such action or proceeding including, without limitation, the making,
enforcement or execution against any property whatsoever (irrespective of its
use or intended use) of any order or judgment which may be made or given in such
action or proceeding.
34.8 WAIVER OF IMMUNITY To the extent that the Borrower may in any jurisdiction
claim for itself or its assets immunity from suit, execution, attachment
(whether in aid of execution, before judgment or otherwise) or other legal
process and to the extent that in any such jurisdiction there may be attributed
to itself or its assets such immunity (whether or not claimed), the Borrower
hereby irrevocably agrees and shall be obliged for the purposes of this
Agreement not to claim and hereby irrevocably waives such immunity to the full
extent permitted by the laws of such jurisdiction.
AS WITNESS the hands of the duly authorised representatives of the parties
hereto the day and year first before written.
THE FIRST SCHEDULE
FORM OF TRANSFER CERTIFICATE
To: [ ]
TRANSFER CERTIFICATE
relating to the agreement (as from time to time amended, varied, novated or
supplemented, the "Facility Agreement") dated [ ], 1998 whereby a
US$2,000,000,000 term loan facility was made available to Koninklijke Ahold N.V.
as borrower by a group of banks on whose behalf ABN AMRO Bank N.V. acted as
facility agent in connection therewith.
1. Terms defined in the Facility Agreement shall, subject to any contrary
indication, have the same meanings herein. The terms Amount Transferred, Bank,
Bank's Participation and Transferee are defined in the schedule hereto.
2. The Bank confirms that the Bank's Participation is an accurate summary of its
participation in the Facility Agreement and requests the Transferee to accept
and procure the transfer to the Transferee of a percentage of the Bank's
Participation (equal to the percentage that the Amount Transferred is of the
aggregate of the component amounts (as set out in the schedule hereto) of the
Bank's Participation) by counter-signing and delivering this Transfer
Certificate to the Facility Agent at its address for the service of notices
specified in the Facility Agreement.
3. The Transferee hereby requests the Facility Agent to accept this Transfer
Certificate as being delivered to the Facility Agent pursuant to and for the
purposes of Clause 25.2 (Transfer by Banks) of the Facility Agreement so as to
take effect in accordance with the terms thereof on the Transfer Date or on such
later date as may be determined in accordance with the terms thereof.
4. The Transferee confirms that it has received a copy of the Facility Agreement
together with such other information as it has required in connection with this
transaction and that it has not relied and will not hereafter rely on the Bank
to check or enquire on its behalf into the legality, validity, effectiveness,
adequacy, accuracy or completeness of any such information and further agrees
that it has not relied and will not rely on the Bank to assess or keep under
review on its behalf the financial condition, creditworthiness, condition,
affairs, status or nature of the Borrower or the Group.
5. The Transferee hereby undertakes with the Bank and each of the other parties
to the Facility Agreement that it will perform in accordance with their terms
all those obligations which by the terms of the Facility Agreement will be
assumed by it after delivery of this Transfer Certificate to the Facility Agent
and satisfaction of the conditions (if any) subject to which this Transfer
Certificate is expressed to take effect.
6. The Bank makes no representation or warranty and assumes no responsibility
with respect to the legality, validity, effectiveness, adequacy or
enforceability of the Facility Agreement or any document relating thereto and
assumes no responsibility for the financial condition of the Borrower or for the
performance and observance by the Borrower of any of its obligations under the
Facility Agreement or any document relating thereto and any and all such
conditions and warranties, whether express or implied by law or otherwise, are
hereby excluded.
7. The Bank hereby gives notice that nothing herein or in the Facility Agreement
(or any document relating thereto) shall oblige the Bank to (i) accept a
re-transfer from the Transferee of the whole or any part of its rights, benefits
and/or obligations under the Facility Agreement transferred pursuant hereto or
(ii) support any losses directly or indirectly sustained or incurred by the
Transferee for any reason whatsoever including, without limitation, the
non-performance by the Borrower or any other party to the Facility Agreement (or
any document relating thereto) of its obligations under any such document. The
Transferee hereby acknowledges the absence of any such obligation as is referred
to in (i) or (ii) above.
8. This Transfer Certificate and the rights and obligations of the parties
hereunder shall be governed by and construed in accordance with Dutch law.
THE SCHEDULE
1. Bank:
2. Transferee:
3. Transfer Date:
4. Bank's Participation:
Bank's Available Commitment Bank's Portion of the Loan
5. Amount Transferred: Advances
[Transferor Bank] [Transferee Bank]
By: By:
Date: Date:
[Facility Agent] as agent for and on behalf of the Borrower
By:
Date:
ADMINISTRATIVE DETAILS OF TRANSFEREE
Address/Main Office:
Contact name:
Account for Payments:
Telex: [ ]
Telephone: [ ]
Telefax: [ ]
THE SECOND SCHEDULE
CONDITION PRECEDENT DOCUMENTS
1. A copy, certified a true copy by a duly authorised officer of the Borrower,
of an extract from the relevant Chamber of Commerce and the Articles of
Association of the Borrower.
2. A copy, certified a true copy by a duly authorised officer of the Borrower,
of such resolutions of the board of managing directors of the Borrower, the
supervisory board of the Borrower (Raad van Commissarissen) and the works'
council of the Borrower (Ondernemingsraad) as may be required by Dutch Counsel
to the Banks approving the execution, delivery and performance of this Agreement
and the terms and conditions hereof and authorising a named person or persons to
sign this Agreement and any documents to be delivered by the Borrower pursuant
hereto.
3. A certificate of a duly authorised officer of the Borrower setting out the
names and signatures of the persons authorised to sign, on behalf of the
Borrower, this Agreement and any documents to be delivered by the Borrower
pursuant hereto.
4. A copy, certified a true copy by or on behalf of the Borrower, of each such
law, decree, consent, licence, approval, registration or declaration as is, in
the opinion of counsel to the Banks, necessary to render this Agreement legal,
valid, binding and enforceable, to make this Agreement admissible in evidence in
the Borrower's jurisdiction of incorporation and to enable the Borrower to
perform its obligations hereunder.
5. Copies, certified as true by a duly authorised officer of the Borrower, of
each of the Transaction Documents duly executed or issued by each of the parties
thereto.
6. An opinion of the Borrower's in-house Counsel in substantially the form set
out in the Fifth Schedule.
7. An opinion of ▇▇▇▇▇▇▇▇ Chance, solicitors to the Facility Agent.
8. An opinion of White & Case, counsel to Ahold Acquisition.
9. A copy, certified a true copy by a duly authorised officer of the Borrower,
of the Original Consolidated Financial Statements.
10. Evidence that each of the process agents referred to in Clause 34.4 (Service
of Process) has agreed to act as the process agent of the Borrower for the
service of process in England or New York, as the case may be.
11. Certificate of Incorporation, certified by the secretary of state of
Delaware and by-laws of Ahold Acquisition and Target, certified by the secretary
of such corporations.
12. Evidence of existence and good standing of Ahold Acquisition and Target from
the State of Delaware.
13. Evidence that all appropriate steps required to be taken by it, other than
effecting payment, have been duly taken and that all documentation has been
delivered to it or delivered to it in escrow to facilitate consummation of the
purchase of the Class AC Shares and the Class AL Shares.
THE THIRD SCHEDULE
NOTICE OF DRAWDOWN
From: Koninklijke Ahold N.V.
To: [Facility Agent]
Dated:
Dear Sirs,
1. We refer to the agreement (as from time to time amended, varied, novated or
supplemented, the "Facility Agreement") dated [ ], 1998 and made between
Koninklijke Ahold N.V. as borrower, ABN AMRO Bank N.V. as arranger, ABN AMRO
Bank N.V. as facility agent and the financial institutions named therein as
banks. Terms defined in the Facility Agreement shall have the same meaning in
this notice.
2. We hereby give you notice that, pursuant to the Facility Agreement, we wish
to borrow an Advance in the amount of US$[ ] upon the terms and subject to the
conditions contained therein.
3. We would like this Advance to have a first Interest Period of [ ] months'
duration.
4. We confirm that, at the date hereof, the representations set out in Clause 12
(Representations) of the Facility Agreement are true provided that each
reference to "Original Consolidated Financial Statements" therein shall be
deemed to be a reference to the most recent set of annual audited financial
statements delivered by the Borrower to the Facility Agent pursuant to Clause 13
(Undertakings).
5. The proceeds of this drawdown should be credited to [insert account details].
Yours faithfully
.............................
for and on behalf of
Koninklijke Ahold N.V.
THE FOURTH SCHEDULE
OPINION OF THE BORROWER'S IN-HOUSE COUNSEL
THE FIFTH SCHEDULE
OPINION OF WHITE & CASE
THE SIXTH SCHEDULE
MATERIAL SUBSIDIARIES
▇▇▇▇▇▇ ▇▇▇▇▇ B.V.
BI-LO, Inc.
Giant Food Stores, Inc.
Ahold Vastgoed B.V.
Tops Markets, Inc.
▇▇▇▇▇▇▇▇▇ N.V.
The Stop & Shop Companies, Inc.
SIGNATURE PAGES
THE BORROWER
KONINKLIJKE AHOLD N.V.
By:
Address: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Attention: Treasury
Telephone: + ▇▇ ▇▇ ▇▇▇ ▇▇▇▇
Facsimile: + 31 75 659 8359
THE ARRANGER
ABN AMRO BANK N.V.
By:
Address: Foppingadreef 20-22
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Attention:
Telephone:
Facsimile:
THE FACILITY AGENT
ABN AMRO BANK N.V.
By:
Address: Foppingadreef 20-22
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Attention:
Telephone:
Facsimile:
THE ORIGINAL LENDER
ABN AMRO BANK N.V.
By:
Address: Foppingadreef 20-22
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Attention:
Telephone:
Facsimile:
THE SCHEDULES
The First Schedule : Form of Transfer Certificate
The Second Schedule : Condition Precedent Documents
The Third Schedule : Notice of Drawdown
The Fourth Schedule : Opinion of the Borrower's In-house Counsel
The Fifth Schedule : Opinion of White & Case
The Sixth Schedule : Material Subsidiaries
TABLE OF CONTENTS
Page
Part 1 INTERPRETATION........................................................2
1. Interpretation...................................................2
Part 2 THE FACILITY.........................................................12
2. The Facility....................................................12
3. Availability of the Facility....................................12
Part 3 INTEREST.............................................................15
4. Interest Periods................................................15
5. Payment and Calculation of Interest.............................15
6. Alternative Interest Rates......................................16
Part 4 REPAYMENT, CANCELLATION AND PREPAYMENT...............................17
7. Repayment.......................................................17
8. Cancellation and Prepayment.....................................17
Part 5 CHANGES IN CIRCUMSTANCES.............................................18
9. Taxes...........................................................18
10. Tax Receipts....................................................18
11. Changes in Circumstances........................................18
Part 6 REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT..................21
12. Representations and Warranties..................................21
13. Undertakings....................................................24
14. Events of Default...............................................29
Part 7 DEFAULT INTEREST AND INDEMNITY.......................................32
15. Default Interest and Indemnity..................................32
Part 8 PAYMENTS.............................................................34
16. Currency of Account and Payment.................................34
17. Payments........................................................34
18. Set-off.........................................................36
19. Sharing.........................................................36
Part 9 FEES, COSTS AND EXPENSES.............................................38
20. Commitment Commission and Fees..................................38
21. Costs and Expenses..............................................38
Part 10 AGENCY PROVISIONS...................................................40
22. The Facility Agent, the Arranger and the Banks..................40
Part 11 ASSIGNMENTS AND TRANSFERS...........................................44
23. Benefit of Agreement............................................44
24. Assignments and Transfers by the Borrower.......................44
25. Assignments and Transfers by Banks..............................44
26. Disclosure of Information.......................................45
Part 12 MISCELLANEOUS.......................................................46
27. Calculations and Evidence of Debt...............................46
28. Remedies and Waivers............................................46
29. Partial Invalidity..............................................46
30. Amendments......................................................46
31. Notices.........................................................47
32. Counterparts....................................................48
Part 13 LAW AND JURISDICTION................................................49
33. Law.............................................................49
34. Jurisdiction....................................................49