SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 10
TO
SCHEDULE 14D-1
TENDER OFFER STATEMENT
PURSUANT TO SECTION 14(d)(1) OF THE SECURITIES EXCHANGE ACT OF 1934
GIANT FOOD INC.
(Name of Subject Company)
KONINKLIJKE AHOLD N.V.
(ROYAL AHOLD)
AHOLD AMERICAS HOLDINGS, INC.
AHOLD U.S.A., INC.
GIANT ACQUISITION CORPORATION
(Bidders)
Class A Common Stock, par value $1.00 per share
(Title of Class of Securities)
374478105
(CUSIP Number of Class of Securities)
PAUL P.J. BUTZELAAR, ESQ.
KONINKLIJKE AHOLD N.V.
ALBERT HEIJNWEG 1
1507 EH ZAANDAM, THE NETHERLANDS
011-31-75-6598111
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications on Behalf of Bidder)
Copy to:
MAUREEN S. BRUNDAGE, ESQ.
WHITE & CASE LLP
1155 AVENUE OF THE AMERICAS
NEW YORK, NEW YORK 10036
(212) 819-8200
<PAGE>
SCHEDULE 14D-1
- ---------------------------------
CUSIP No. 37447810235
- ---------------------------------
- -------- ----------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Koninklijke Ahold N.V.
- -------- ----------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
[ ] (a)
[ ] (b)
- -------- ----------------------------------------------------------------------
3 SEC USE ONLY
- -------- ----------------------------------------------------------------------
4 SOURCE OF FUNDS
OO; BK
- -------- ----------------------------------------------------------------------
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(e) or 2(f)
[ ]
- -------- ----------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
The Netherlands
- -------- ----------------------------------------------------------------------
7 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
0
- -------- ----------------------------------------------------------------------
8 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (7) EXCLUDES
CERTAIN SHARES
[ ]
- -------- ----------------------------------------------------------------------
9 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (7)
0.0%
- -------- ----------------------------------------------------------------------
10 TYPE OF REPORTING PERSON
CO
- -------- ----------------------------------------------------------------------
<PAGE>
SCHEDULE 14D-1
- ---------------------------------
CUSIP No. 37447810235
- ---------------------------------
- -------- ----------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Ahold Americas Holdings, Inc.
- -------- ----------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
[ ](a)
[ ](b)
- -------- ----------------------------------------------------------------------
3 SEC USE ONLY
- -------- ----------------------------------------------------------------------
4 SOURCE OF FUNDS
AF
- -------- ----------------------------------------------------------------------
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(e) or 2(f)
[ ]
- -------- ----------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
The Netherlands
- -------- ----------------------------------------------------------------------
7 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
0
- -------- ----------------------------------------------------------------------
8 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (7) EXCLUDES
CERTAIN SHARES
[ ]
- -------- ----------------------------------------------------------------------
9 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (7)
0.0%
- -------- ----------------------------------------------------------------------
10 TYPE OF REPORTING PERSON
CO
- -------- ----------------------------------------------------------------------
<PAGE>
SCHEDULE 14D-1
- ---------------------------------
CUSIP No. 37447810235
- ---------------------------------
- -------- ----------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Ahold U.S.A., Inc.
- -------- ----------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
[ ](a)
[ ](b)
- -------- ----------------------------------------------------------------------
3 SEC USE ONLY
- -------- ----------------------------------------------------------------------
4 SOURCE OF FUNDS
AF; BK
- -------- ----------------------------------------------------------------------
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(e) or 2(f)
[ ]
- -------- ----------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
The Netherlands
- -------- ----------------------------------------------------------------------
7 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
0
- -------- ----------------------------------------------------------------------
8 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (7) EXCLUDES
CERTAIN SHARES
[ ]
- -------- ----------------------------------------------------------------------
9 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (7)
0.0%
- -------- ----------------------------------------------------------------------
10 TYPE OF REPORTING PERSON
CO
- -------- ----------------------------------------------------------------------
<PAGE>
SCHEDULE 14D-1
- ---------------------------------
CUSIP No. 37447810235
- ---------------------------------
- -------- ----------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Giant Acquisition Corporation
- -------- ----------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
[ ](a)
[ ](b)
- -------- ----------------------------------------------------------------------
3 SEC USE ONLY
- -------- ----------------------------------------------------------------------
4 SOURCE OF FUNDS
AF
- -------- ----------------------------------------------------------------------
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(e) or 2(f)
[ ]
- -------- ----------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
The Netherlands
- -------- ----------------------------------------------------------------------
7 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
0
- -------- ----------------------------------------------------------------------
8 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (7) EXCLUDES
CERTAIN SHARES
[ ]
- -------- ----------------------------------------------------------------------
9 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (7)
0.0%
- -------- ----------------------------------------------------------------------
10 TYPE OF REPORTING PERSON
CO
- -------- ----------------------------------------------------------------------
<PAGE>
This Amendment No. 10 amends and supplements the Schedule 14D-1 filed on
May 19, 1998 relating to the offer by Koninklijke Ahold N.V., a public company
with limited liability incorporated under the laws of The Netherlands with its
corporate seat in Zaandam (Municipality Zaanstad) ("Royal Ahold"), to purchase
for cash all of the outstanding shares of Class A Common Stock, par value $1.00
per share (the "Shares"), of Giant Food Inc., a Delaware corporation (the
"Company"), at a price of $43.50 per share (the "Offer Price"), net to the
seller in cash, without interest thereon, upon the terms and subject to the
conditions set forth in the Offer to Purchase, dated May 19, 1998 (the "Offer to
Purchase"), and in the related Letter of Transmittal and Notice of Guaranteed
Delivery.
ITEM 2. IDENTITY AND BACKGROUND.
Item 2 (a)-(d), (g) is hereby amended to add at the end thereof the
following:
"Giant Acquisition Corporation ("Acquisition Corporation") is a
newly-formed Delaware corporation and a subsidiary of Ahold U.S.A., Inc. ("Ahold
U.S.A."), which is a Delaware corporation and a subsidiary of Ahold Americas
Holdings, Inc. ("Ahold Americas"), which is a Delaware corporation and a
subsidiary of Koninklijke Ahold N.V. ("Royal Ahold"). Except for Sections 8 and
10 of the Offer to Purchase and unless the context requires otherwise, the term
"Purchaser" in the Offer to Purchase shall be deemed to refer to Acquisition
Corporation. The name, business addresses, present principal occupations or
employment, material occupations, positions, offices or employment during the
last five years and citizenship of the members of the board of directors and
executive officers of each of Royal Ahold, Ahold Americas, Ahold U.S.A. and
Acquisition Corporation are set forth in Schedule I and are incorporated herein
by reference."
Item 2 (a)-(d), (g) is further amended by amending and restating Schedule I
in its entirety as attached hereto.
Item 2 (e), (f) is hereby amended to read in its entirety as follows:
"During the last five years, none of Royal Ahold, Ahold Americas, Ahold
U.S.A. or Acquisition Corporation and, to the best knowledge of Royal Ahold,
Ahold Americas, Ahold U.S.A. and Acquisition Corporation, none of the persons
listed in Schedule I to this Offer to Purchase has been convicted in a criminal
proceeding (excluding traffic violations or similar misdemeanors) or was a party
to a civil proceeding of a judicial or administrative body of competent
jurisdiction as a result of which any such persons was or is subject to a
judgment, decree or final order in joining future violations of, or prohibiting
activities subject to, federal or state security laws or finding any violations
of such law."
ITEM 4. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
Item 4 is hereby amended to add at the end thereof the following:
Section 9 ("Source and Amount of Funds") of the Offer to Purchase is
amended to read in its entirety as follows:
"The Offer is not conditioned upon any financing arrangements. The amount
of funds required by Acquisition Corporation to purchase all of the Class AC
Shares from the Selling Shareholder, all of the Class AL Shares from Sainsbury
and all of the outstanding Shares pursuant to the Offer (collectively, the
"Acquisition") and to pay related fees and expenses is expected to be
approximately $2.7 billion.
Acquisition Corporation will obtain $2.0 billion of the funds needed for
the Acquisition indirectly from Royal Ahold. Royal Ahold intends to obtain the
$2.0 billion from the net proceeds of a global offering (the "Global Offering")
by Royal Ahold of Common Shares (which may be in the form of American Depository
Shares) and Guilder-denominated Convertible Subordinated Notes (which may be in
the form of American Depository Notes). No assurance can be given that market
conditions or available terms will render it desirable to proceed with the
Global Offering.
In the event that the Offer is consummated prior to the closing of the
Global Offering, Royal Ahold intends to obtain the $2.0 billion needed through
borrowings under a U.S. $2,000,000,000 Facility Agreement (the "1998 Credit
Facility"), dated September 7, 1998, between Royal Ahold and ABN AMRO Bank N.V.
(the "Bank") as Arranger, Facility Agent and Original Lender. The $2.0 billion
will be provided by Royal Ahold directly or indirectly to Ahold U.S.A., which
will then lend such $2.0 billion to Acquisition Corporation. Upon completion of
the Global Offering, Royal Ahold then would use the net proceeds from the Global
Offering to repay the borrowings under the 1998 Credit Facility.
Acquisition Corporation will obtain the remaining $700 million of the funds
needed for the Acquisition from a capital contribution by Ahold U.S.A., which
Ahold U.S.A. will fund by a borrowing made under an Amended and Restated U.S.
$1,000,000,000 Multicurrency Revolving Facility Agreement (the "1996 Credit
Facility"), dated December 18, 1996, and amended and restated September 7, 1998,
between Royal Ahold, Ahold U.S.A, the Bank, Chase Investment Bank Limited and
J.P. Morgan Securities Ltd. as Arrangers, The Chase Manhattan Bank as Facility,
Swing-Line, Letter of Credit and Short Term Advances Agent, Chase Manhattan
International Limited as Multicurrency Facility Agent and certain financial
institutions named therein.
The 1998 Credit Facility provides for an unsecured loan facility in an
aggregate amount of up to U.S. $2,000,000,000. The 1998 Credit Facility will
expire 364 days from September 7, 1998. The 1998 Credit Facility may be used by
Royal Ahold for the purposes of financing the acquisition of the Company and
paying all fees and expenses in connection therewith. Advances under the 1998
Credit Facility will bear interest at a rate per annum equal to LIBOR plus 15
basis points. The 1998 Credit Facility contains certain restrictions on, among
other things, the creation of liens and a financial covenant which requires
Royal Ahold to maintain a specified ratio of operating earnings before income
taxes plus net interest expense to net interest expense. The 1998 Credit
Facility also contains certain events of default including (i) the liquidation
or bankruptcy of Royal Ahold or any of its material subsidiaries, (ii) changes
in the character of its business and (iii) the lease, sale or disposition of all
or any substantial part of its assets. In addition, Royal Ahold has agreed to
pay the Bank certain fees and to reimburse the Bank for certain expenses and to
provide certain indemnities, as is customary for commitments of the type
described therein.
The 1996 Credit Facility provides for an unsecured loan facility in an
aggregate amount of up to U.S. $1 billion. The 1996 Credit Facility expires on
December 18, 2002. The 1996 Credit Facility may be used by Royal Ahold for
general corporate purposes including working capital and the refinancing of
certain other facilities. Revolving credit advances under the 1996 Credit
Facility will bear interest at a rate per annum equal to LIBOR plus 10 basis
points. The 1996 Credit Facility contains certain restrictions on, among other
things, the creation of liens and certain financial covenants which require
Royal Ahold to maintain a specified (i) ratio of operating earnings before
income taxes plus net interest expense to net interest expense and (ii) ratio of
interest bearing debt minus subordinated loans minus cash to total capital
accounts plus goodwill, associated with a previous acquisition. The 1996 Credit
Facility also contains certain events of default including (i) the liquidation
or bankruptcy of Royal Ahold or any of its material subsidiaries, (ii) changes
in the character of its business and (iii) the lease, sale or disposition of all
or any substantial part of its assets. In addition, Royal Ahold has agreed to
pay the Chase Manhattan Bank certain fees and to reimburse each of the agents
and arrangers for certain expenses and to provide certain indemnities, as is
customary for commitments of the type described therein.
The foregoing summary of the source and amount of funds is qualified in its
entirety by reference to the text of the 1998 Credit Facility and the 1996
Credit Facility, copies of which have been filed as exhibits to the Tender Offer
Statement on Schedule 14D-1 relating to the Offer which the Purchaser has filed
with the Commission (the "Schedule 14D-1"). The 1998 Credit Facility and the
1996 Credit Facility may be inspected at, and copies may be obtained from, the
same places and in the manner set forth in Section 7.
The margin regulations promulgated by the Federal Reserve Board place
restrictions on the amount of credit that may be extended for the purposes of
purchasing margin stock (including the Shares) if such credit is secured
directly or indirectly by margin stock. Royal Ahold and Acquisition Corporation
believe that the financing of the acquisition of the Shares will be in full
compliance with, or not subject to, the margin regulations."
ITEM 7. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS
OR RELATIONSHIPS WITH RESPECT TO THE SUBJECT
COMPANY'S SECURITIES.
Item 7 is hereby amended to add at the end thereof the following:
"Pursuant to an Assignment and Assumption Agreement ("Assignment
Agreement"), dated as of September 4, 1998, by and between Royal Ahold and
Acquisition Corporation, and as permitted by Section 2 of the Offer to Purchase,
Royal Ahold has assigned to Acquisition Corporation its rights and Acquisition
Corporation has assumed Royal Ahold's obligations to purchase Shares tendered
pursuant to the Offer. In addition, pursuant to the Assignment Agreement, Royal
Ahold has assigned to Acquisition Corporation its rights and Acquisition
Corporation has assumed Royal Ahold's obligations under certain related
contracts, including the Stock Purchase Agreement and the Sainsbury Agreement. A
copy of the Assignment Agreement is attached hereto as Exhibit (a)(16) and is
incorporated herein by reference."
ITEM 11. MATERIALS TO BE FILED AS EXHIBITS.
The following is hereby added as an exhibit:
Exhibit (a)(14) U.S. $2,000,000,000 Facility Agreement, dated
September 7, 1998, between Koninklijke Ahold N.V.
and ABN AMRO Bank N.V.
Exhibit (a)(15) Amended and Restated U.S. $1,000,000,000
Multicurrency Revolving Facility Agreement, dated
December 18, 1996, and amended and restated
September 7, 1998, between Koninklijke Ahold N.V.,
Ahold U.S.A., Inc., ABN AMRO Bank N.V., Chase
Investment Bank Limited and J.P. Morgan Securities
Ltd., as Arrangers, The Chase Manhattan Bank as
Facility, Swing-Line, Letter of Credit and Short
Term Advances Agent, Chase Manhattan International
Limited as Multicurrency Facility Agent and certain
financial institutions named therein.
Exhibit (a)(16) Assignment and Assumption Agreement, dated as of
September 4, 1998, by and between Koninklijke Ahold
N.V. and Giant Acquisition Corporation.
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement is true,
complete and correct.
Dated: September 8, 1998 KONINKLIJKE AHOLD N.V.
By: /s/ A. Michiel Meurs
-------------------------
Name: A. Michiel Meurs
Title: Executive Vice President
AHOLD AMERICAS HOLDINGS INC.
By: /s/ Robert G. Tobin
-------------------------
Name: Robert G. Tobin
Title: President
AHOLD U.S.A., INC.
By: /s/ A. Michiel Meurs
-------------------------
Name: A. Michiel Meurs
Title: Executive Vice President
GIANT AQUISITION CORPORATION
By: /s/ Robert G. Tobin
-------------------------
Name: Robert G. Tobin
Title: President
<PAGE>
SCHEDULE I
1. DIRECTORS AND EXECUTIVE OFFICERS OF KONINKLIJKE AHOLD N.V.
Set forth below is the name, present principal occupation or employment and
material occupations, positions, offices or employments for the past five years
of each member of the Supervisory Board, the Corporate Executive Board and each
executive officer of Koninklijke Ahold N.V. The principal address of Koninklijke
Ahold N.V. and, unless indicated below, the current business address for each
individual listed below is Albert Heijnweg 1, 1507 EH Zaandam, The Netherlands,
Telephone: 011-31-75-6599111. Each such person is, unless indicated below, a
citizen of The Netherlands. Members of the Supervisory Board are identified by
an asterisk and members of the Corporate Executive Board are identified by two
asterisks.
NAME AND CURRENT PRESENT PRINCIPAL OCCUPATION OR
BUSINESS ADDRESS EMPLOYMENT; MATERIAL POSITIONS
HELD DURING PAST FIVE YEARS
H. de Ruiter*..........................Chairman of the Supervisory Board of
Carel van Bijlandtlaan Koninklijke Ahold N.V.; Former Group
2596 HR The Hague Managing Director and Managing Director
(P.O. Box 1622501 AN) of Royal Dutch Petroleum Company; Member
(The Hague) of the Supervisory Board of Royal Dutch
The Netherlands Petroleum Company; Member of the
Supervisory Board of Heineken N.V.;
Member of the Supervisory Board of
Wolters Kluwer N.V.; Chairman of the
Supervisory Board of Beers N.V.;
Chairman of the Supervisory Board of
Koninklijke Hoogovens N.V.; Chairman of
the Supervisory Board of Koninklijke
Pakhoed N.V.; Non-Executive Director of
British Biotech; Chairman of the
Supervisory Board of Aegon N.V.
R.J. Nelissen*.........................Vice Chairman of the Supervisory Board
Hoog Hoefloo 36 of Koninklijke Ahold N.V.; Former
1251 ED Laren Chairman of the Managing Board of
The Netherlands ABN/AMRO Holding N.V.; Supervisory Board
Member of ABN AMRO Bank N.V.;
Supervisory Board Member of Elsevier
N.V. and Reed Elsevier PLC
Sir Michael Perry*.....................Member of the Supervisory Board of
Clarendon House Koninklijke Ahold N.V.; Deputy Chairman
11-12 Cliffort Street of Bass PLC; Chairman of Centrica PLC
London W1X 1RB (formerly British Gas); Chairman of
United Kingdom Dunlop Slazenger Group Limited; Member
of Supervisory Board of Marks & Spencer
PLC; Chairman of The Shakespeare Globe
Trust; Chairman of The International
Shakespeare Globe Centre Ltd.; Former
Director British Gas PLC; Former
Chairman of the Managing Board of
Unilever PLC; Former Chairman of United
Holdings Ltd.; Former Chairman of The
Advertising Association; Former member
of the British Chamber of Commerce
(Citizen of the United Kingdom)
J.A.van Kemenade*......................Member of the Supervisory Board of
Dreef 3 Koninklijke Ahold N.V.; Governor-General
2012 HR Haarlem for the Dutch Province of
The Netherlands North-Holland; Former Minister of
Education and Science of the Dutch
Government
A.J. Kranendonk*.......................Member of the Supervisory Board of
Nieuw Rapenburg 23 Koninklijke Ahold N.V.; Former President
8935 BG Leeuwarden of the Management Board of Friesland
The Netherlands W.A.; Chairman of the Association of
Dutch Chambers of Commerce; Member of
the Supervisory Board of S.C.
Johnson--Benelux S.A.; Chairman of the
Supervisory Board of Athlon N.V.; Member
of the Supervisory Board of De
Nederlandse Bank N.V.; Member of the
Supervisory Board of DHV B.V.; President
of the Supervisory Board of Dokkumer
Vlaggen Centrale B.V.; Member of the
Supervisory Board of Meyn B.V.; Member
of the Supervisory Board of Lankhorst
B.V.
R.F. Meyer*............................Member of the Supervisory Board of
Harvard University Koninklijke Ahold N.V.; Professor of
Morgan 311 Business Administration, Harvard
Cambridge MA Business School; Chairman of NEDD
02163 USA (Citizen of USA)
C.H. van der Hoeven**..................President of Koninklijke Ahold N.V.;
Member of the Supervisory Board of ABN
AMRO Bank N.V.; Director, Chairman and
Executive Vice President of Ahold U.S.A.
Inc.
J.G. Andreae**.........................Executive Vice-President of Koninklijke
Ahold N.V.; Former President of Albert
Heijn B.V.; President of the Supervisory
Board of S.V.M.; Former Member of the
Supervisory Board of KLM-catering;
Co-chairman of ECR Europe; Co-chairman
of ECR NL; Director and Executive Vice
President of Ahold U.S.A. Inc.
A.M. Meurs**...........................Executive Vice-President & CFO of
Koninklijke Ahold N.V.; Director and
Vice-President of Ahold Americas
Holdings, Inc.; Former Senior
Vice-President Business Development of
Koninklijke Ahold N.V.; Former Senior
Vice-President of Finance Koninklijke
Ahold N.V.; Former Vice-President of
Finance Koninklijke Ahold N.V.; Member
of the Supervisory Board of Van Den Boom
Groep; Member of the Supervisory Board
of Van der Hoop Effectenbank N.V.;
Director and Executive Vice President of
Ahold U.S.A. Inc.
R. Zwartendijk**.......................Executive Vice-President of Koninklijke
Ahold N.V.; Director of Ahold U.S.A.
Inc.; President of Luis Paez S.A.;
Former Member of the Supervisory Board
of Schuitema N.V.; Member of the
Supervisory Board of Numico N.V.;
President of the Supervisory Board of
A.C. Holding N.V.
R.G. Tobin............................Executive Vice President of Koninklijke
Ahold N.V.; Director and President of
Ahold Americas Holdings, Inc.; Director
and President of Giant Acquisition
Corporation; Former Chairman, President
and Chief Executive Officer of The Stop &
Shop Company (Citizen of the United
States).
A.S. Noddle............................Executive Vice President of Koninklijke
Ahold N.V.; Vice-Chairman, Director,
President and Chief Executive Officer of
Ahold U.S.A., Inc.; President and Chief
Executive Officer of Ahold USA Support
Services, Inc.; President and Chief
Executive Officer of Giant Food Stores,
Inc. (Citizen of the United States)
A. Buitenhuis..........................Senior Vice-President of Finance and
Fiscal Affairs of Koninklijke Ahold
N.V.; Senior Vice-President of Fiscal
Affairs of Koninklijke Ahold N.V.
P.P.J. Butzelaar.......................Senior Vice-President and General
Counsel of Koninklijke Ahold N.V.;
Director and Vice-President of Ahold
Americas Holdings, Inc.; Managing
Director of the Disco Ahold
International Holdings N.V.; Former
Corporate Secretary and Senior
Vice-President and General Counsel of
Koninklijke Ahold N.V.; Member of the
Supervisory Board of DCE Holding B.V.
H. Gobes...............................Senior Vice-President of Communications
of Koninklijke Ahold N.V.
L.A.P.A. Verhelst......................Senior Vice-President of Administration
of Koninklijke Ahold N.V.; Former
President of Pays-Bas Property Fund
N.V.; Former Member of the Executive
Board of Koninklijke Bols Wessanen N.V.
M. J. Dorhout Mees.................... Senior Vice-President of Business
Development of Koninklijke Ahold N.V.;
Former Senior Vice-President of Sales &
Services of Albert Heijn B.V.; Former
Deputy Director of Customer Services of
Albert Heijn B.V.
N.L.J. Berger..........................Corporate Secretary of Koninklijke Ahold
N.V.; Former Deputy General Counsel of
Koninklijke Ahold N.V.
A.J. Brouwer...........................Senior Vice President of Management
Development and Organization of
Koninklijke Ahold N.V.; Former Vice
President of Management Development and
Organization of Koninklijke Ahold N.V.
P.P.M. Ekelschot.......................Senior Vice President of Internal Audit
of Koninklijke Ahold N.V.; Former Vice
President of Internal Audit of
Koninklijke Ahold N.V.
2. DIRECTORS AND EXECUTIVE OFFICERS OF AHOLD AMERICAS HOLDINGS, INC.
Set forth below is the name, present principal occupation or employment and
material occupations, positions, offices or employments for the past five years
of each director and each executive officer of Ahold Americas Holdings, Inc. The
present principal address of Ahold Americas Holdings, Inc. and, unless otherwise
indicated, the current business address for each of the following persons is
Albert Heijnweg 1, 1507 EH Zaandam, The Netherlands. Each person is, unless
indicated below, a citizen of the United States.
NAME AND CURRENT PRESENT PRINCIPAL OCCUPATION OR
BUSINESS ADDRESS EMPLOYMENT; MATERIAL POSITIONS
HELD DURING PAST FIVE YEARS
R.G. Tobin..............................Director and President of Ahold Americas
Holdings, Inc.; Executive Vice President
of Koninklijke Ahold N.V.; Director and
President of Giant Acquisition
Corporation; Former Chairman, President
and Chief Executive Officer of The Stop
& Shop Company.
E.J. Smith..............................Secretary and Treasurer of Ahold
Americas Holdings, Inc.; Secretary of
Giant Acquisition Corporation; Secretary
and Executive Vice President-Finance of
Ahold U.S.A., Inc.; Secretary and
Executive Vice President of Giant Food
Stores, Inc.
3. DIRECTORS AND EXECUTIVE OFFICERS OF AHOLD U.S.A., INC.
Set forth below is the name, present principal occupation or employment and
material occupations, positions, offices or employments for the past five years
of each member of the Board of Directors and each executive officer of Ahold
U.S.A., Inc. The principal address of Ahold U.S.A., Inc. is One Atlanta Plaza,
East Paces Ferry Road, Suite 2575, Atlanta, Georgia 30326. Unless indicated
below, the current business address for each individual listed below is Albert
Heijnweg 1, 1507 EH Zaandam, The Netherlands, Telephone: 011-31-75-6599111. Each
such person is, unless indicated below, a citizen of The Netherlands.
NAME AND CURRENT PRESENT PRINCIPAL OCCUPATION OR
BUSINESS ADDRESS EMPLOYMENT; MATERIAL POSITIONS HELD
DURING PAST FIVE YEARS
A.S. Noddle.............................Vice-Chairman, Director, President and
Chief Executive Officer of Ahold U.S.A.,
Inc.; Executive Vice President of
Koninklijke Ahold N.V.; President and
Chief Executive Officer of Ahold USA
Support Services, Inc.; President and
Chief Executive Officer of Giant Food
Stores, Inc. (Citizen of the United
States)
C.H. van der Hoeven.....................Chairman, Director and Executive Vice
President of Ahold U.S.A., Inc.;
President of Koninklijke Ahold N.V.;
Member of the Supervisory Board of ABN
AMRO Bank N.V.
J.G. Andreae............................Director and Executive Vice President of
Ahold U.S.A., Inc.; Executive
Vice-President of Koninklijke Ahold
N.V.; Former President of Albert Heijn
B.V.; President of the Supervisory Board
of S.V.M.; Former Member of the
Supervisory Board of KLM-catering;
Co-chairman of ECR Europe; Co-chairman
of ECR NL
A.M. Meurs..............................Director and Executive Vice President of
Ahold U.S.A., Inc.; Executive
Vice-President & CFO of Koninklijke
Ahold N.V.; Director and Vice-President
of Ahold Americas Holdings, Inc.; Former
Senior Vice-President of Koninklijke
Ahold N.V.; Former Senior Vice-President
of Finance Koninklijke Ahold N.V.;
Former Vice-President of Finance
Koninklijke Ahold N.V.; Member of the
Supervisory Board of Van Den Boom Groep;
Member of the Supervisory Board of Van
der Hoop Effectenbank N.V.
M.J. Collins, Jr........................Director and Executive Vice President -
Support Service of Ahold U.S.A., Inc.;
President and Chief Executive Officer of
BI-LO, Inc. (Citizen of the United
States)
J.F. Harber.............................Executive Vice President of Ahold
U.S.A., Inc.; Executive Vice President
of Ahold USA Support Services, Inc.
(Citizen of the United States)
G.W. Preston............................Executive Vice President - Human
Resources of Ahold U.S.A., Inc.;
Executive Vice President - Human
Resources of Ahold USA Support Services,
Inc.; Executive Vice President - Human
Resources of BI-LO, Inc. (Citizen of the
United States)
E.S. Moerk..............................Director of Ahold U.S.A., Inc.;
Executive Vice-President of Koninklijke
Ahold N.V.; Member of the Supervisory
Board of Schuitema N.V.; Member of the
Board and International Council of
INSEAD; Former President of Campbell
Biscuits Europe; Former Corporate
Vice-President of Campbell Soup Company
(Citizen of Norway)
E.J. Smith..............................Executive Vice President-Finance and
Secretary of Ahold U.S.A., Inc.;
Secretary and Treasurer of Ahold
Americas Holdings, Inc.; Secretary of
Giant Acquisition Corporation; Secretary
and Executive Vice Presdient of Giant
Food Stores, Inc. (Citizen of the United
States
B.A. Fields.............................Assistant Secretary of Ahold U.S.A.,
Inc.
4. DIRECTORS AND EXECUTIVE OFFICERS OF GIANT ACQUISITION CORPORATION
Set forth below is the name, present principal occupation or employment and
material occupations, positions, offices or employments for the past five years
of each member of the Board of Directors and each executive officer of Giant
Acquisition Corporation. The principal address of Giant Acquisition Corporation
is Albert Heijnweg 1, 1507 EH Zaandam, The Netherlands, Telephone:
011-31-75-6599111. Unless indicated below, the current business address for each
individual listed below is Albert Heijnweg 1, 1507 EH Zaandam, The Netherlands,
Telephone: 011-31-75-6599111. Each such person is, unless indicated below, a
citizen of the United States.
NAME AND CURRENT PRESENT PRINCIPAL OCCUPATION OR
BUSINESS ADDRESS EMPLOYMENT; MATERIAL POSITIONS HELD
DURING PAST FIVE YEARS
R.G. Tobin..............................Director and President of Giant
Acquisition Corporation; Executive Vice
President of Koninklijke Ahold N.V.;
Director and President of Ahold Americas
Holdings, Inc.; Former Chairman,
President and Chief Executive Officer of
The Stop & Shop Company.
E.J. Smith..............................Secretary of Giant Acquisition
Corporation; Secretary and Treasurer of
Ahold Americas Holdings, Inc.; Executive
Vice President-Finance and Secretary of
Ahold U.S.A., Inc.; Secretary and
Executive Vice Presdient of Giant Food
Stores, Inc.
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
Clifford Chance
Amsterdam
<PAGE>
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 J. Sainsbury 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 Morgan 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, J. Sainsbury 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, bill 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.
<PAGE>
PART 2
THE FACILITY
2. THE FACILITY
2.1 GRANT OF THE FACILITY The Banks grant 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 Hart-Scott Rodino
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. ss.ss. 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 J. Sainsbury 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 Clifford Chance
Secretaries, 200 Aldersgate Street, London EC1A 4JJ and (ii) in connection with
any suit, action or proceeding in New York, to CT Corporation System at 1633
Broadway, New York, N.Y. 10019, United States 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.
<PAGE>
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.
<PAGE>
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:
<PAGE>
ADMINISTRATIVE DETAILS OF TRANSFEREE
Address/Main Office:
Contact name:
Account for Payments:
Telex: [ ]
Telephone: [ ]
Telefax: [ ]
<PAGE>
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 Clifford 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.
<PAGE>
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.
<PAGE>
THE FOURTH SCHEDULE
OPINION OF THE BORROWER'S IN-HOUSE COUNSEL
<PAGE>
THE FIFTH SCHEDULE
OPINION OF WHITE & CASE
<PAGE>
THE SIXTH SCHEDULE
MATERIAL SUBSIDIARIES
Albert Heijn B.V.
BI-LO, Inc.
Giant Food Stores, Inc.
Ahold Vastgoed B.V.
Tops Markets, Inc.
Schuitema N.V.
The Stop & Shop Companies, Inc.
<PAGE>
SIGNATURE PAGES
THE BORROWER
KONINKLIJKE AHOLD N.V.
By:
Address: Albert Heijnweg 1
1507 EH Zaandam
The Netherlands
Attention: Treasury
Telephone: + 31 75 659 5635
Facsimile: + 31 75 659 8359
THE ARRANGER
ABN AMRO BANK N.V.
By:
Address: Foppingadreef 20-22
P.O. Box 283
1000 EA Amsterdam
The Netherlands
Attention:
Telephone:
Facsimile:
THE FACILITY AGENT
ABN AMRO BANK N.V.
By:
Address: Foppingadreef 20-22
P.O. Box 283
1000 EA Amsterdam
The Netherlands
Attention:
Telephone:
Facsimile:
THE ORIGINAL LENDER
ABN AMRO BANK N.V.
By:
Address: Foppingadreef 20-22
P.O. Box 283
1000 EA Amsterdam
The Netherlands
Attention:
Telephone:
Facsimile:
<PAGE>
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
<PAGE>
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
DATED SEPTEMBER 7, 1998
between
KONINKLIJKE AHOLD N.V.
AHOLD U.S.A., INC.
(FORMERLY
AHOLD USA HOLDINGS, INC.)
as Borrowers and Guarantors
and
THE CHASE MANHATTAN BANK
as Facility Agent
-----------------------------------
AMENDMENT AND RESTATEMENT AGREEMENT
relating to a
Multicurrency Revolving Credit Agreement
dated 18 December 1996
------------------------------------
Clifford Chance
Amsterdam
<PAGE>
THIS AMENDMENT AND RESTATEMENT AGREEMENT is made the 7th day of September
1998
BETWEEN
(1) KONINKLIJKE AHOLD N.V. (the "PRINCIPAL COMPANY");
(2) AHOLD U.S.A., INC. (FORMERLY AHOLD USA HOLDINGS, INC.) ("AHOLD USA" and,
together with the Principal Company, the "BORROWERS"); and
(3) THE CHASE MANHATTAN BANK (the "FACILITY AGENT").
NOW IT IS AGREED as follows:
WHEREAS:
(A) By an agreement dated 18 December, 1996 (the "EXISTING FACILITY AGREEMENT")
made between (i) the Principal Company as borrower and guarantor, (ii)
Ahold USA as borrower and guarantor, (iii) ABN AMRO Bank N.V., Chase
Investment Bank Limited and J.P. Morgan Securities Ltd. as arrangers, (iv)
the Facility Agent as facility, swing-line, letter of credit agent and
short term advances agent, (v) Chase Manhattan International limited as
multicurrency facility agent and (vi) the financial institutions named
therein as Banks, the Banks made available to the Borrowers a
US$1,000,000,000 multicurrency revolving credit facility with short-term
advance, swing-line and letter of credit options on the terms and
conditions set out therein.
(B) It has been agreed between the parties hereto (in connection with which the
Facility Agent is acting on behalf of, and with the express consent of,
itself, the Arrangers and the Banks) that the Existing Facility Agreement
shall be amended and restated as hereinafter provided, subject to the terms
and conditions hereof.
NOW IT IS HEREBY AGREED as follows:
1. INTERPRETATION
1.1 Terms defined in the Existing Facility Agreement shall, unless otherwise
defined herein and save as the context otherwise requires, have the same
meanings when used in this Agreement.
1.2 In this Agreement the "EFFECTIVE DATE" means the later of the date hereof
and the date upon which the Facility Agent confirms in writing to the Banks and
the Principal Company that it has received each of the documents listed in the
Schedule in form and substance satisfactory to the Facility Agent.
1.3 Clause and Schedule headings are for ease of reference only.
1.4 Words and expressions used herein importing the singular shall, where the
context permits or requires, include the plural and vice versa.
2. AMENDMENTS TO THE EXISTING FACILITY AGREEMENT
The parties hereto agree that the Existing Facility Agreement shall, as of the
Effective Date, be amended and restated for all purposes as set out in the Annex
to this Agreement and agree to be bound by the terms and conditions thereof
accordingly.
3. REPRESENTATIONS
Each of the Borrowers and the Guarantors:
(a) repeats each of the representations and warranties set out in
paragraphs (i), (ii), (iii), (viii) and (x) of Clause 23
(Representations and Warranties) of the Existing Facility Agreement on
the date hereof and on the Effective Date (by reference to the facts
and circumstances then subsisting) as if each reference therein to the
"FINANCE DOCUMENTS" included a reference to this Agreement and the
Existing Facility Agreement (as amended hereby, when such
representations and warranties are repeated on the Effective Date) and
acknowledges that the Facility Agent has entered into this Agreement
in reliance on those representations and warranties; and
(b) confirms on the date hereof and on the Effective Date that no Event of
Default or Potential Event of Default has occurred.
4. WAIVER
The Facility Agent hereby waives any default under the Existing Facility
Agreement which may have occurred as a result of any breach of any
representation contained in paragraph (xix) of Clause 23 of the Existing
Facility Agreement by virtue of (a) any Margin Stock being owned by any Member
of the Group or (b) the proceeds of any borrowings under the Existing Facility
Agreement being used, directly or indirectly, for any purposes specified in such
paragraph (xix).
5. MISCELLANEOUS
5.1 Clauses 33 (Costs and Expenses), 37 (Remedies and Waivers, Partial
Invalidity), 39 (Notices) and 40.2 (English Courts) to Clause 40.9 (Waiver of
Immunity) of the Existing Facility Agreement shall be deemed to be incorporated
herein as though set out herein, mutatis mutandis.
5.2 The Existing Facility Agreement shall remain in full force and effect save
as expressly amended hereby and the parties hereto agree that:
(a) this Agreement shall be a "FINANCE DOCUMENT" for the purposes of the
Existing Facility Agreement and the other Finance Documents; and
(b) on and after the Effective Date any reference to the Existing Facility
Agreement in any of the Finance Documents (including the Existing
Facility Agreement) shall be construed as a reference to the Existing
Facility Agreement as amended hereby.
5.3 For the avoidance of doubt the guarantees and other obligations given and
entered into by the Guarantors pursuant to Clause 26 of the Existing Facility
Agreement shall not be affected by the amendments to the Existing Facility
Agreement effected hereby on the Effective Date or by any of the other matters
provided for in this Agreement (including the waiver in Clause 4 of this
Agreement)(and shall continue in full force and effect in accordance with the
terms of the Existing Facility Agreement notwithstanding such amendments or such
other matters).
6. COUNTERPARTS
This Agreement may be executed in any number of counterparts and by different
parties hereto on separate counterparts, each of which, when so executed, shall
be an original but all such counterparts shall together constitute but one and
the same instrument.
7. LAW
This Agreement shall be governed by, and construed in accordance with, the laws
of The Netherlands.
IN WITNESS whereof this Agreement has been entered into the day and year first
above written.
<PAGE>
THE SCHEDULE
CONDITIONS PRECEDENT DOCUMENTS
1. In relation to each of the Obligors:
(a) a copy, certified a true copy by a duly authorised officer of such
Obligor, of the constitutional documents of such Obligor and (in the
case of the Principal Company) an extract from the relevant Chamber of
Commerce;
(b) a copy, certified a true copy by a duly authorised officer of such
Obligor, of a board resolution of such Obligor and (in the case of the
Principal Company) such resolutions of the board of managing directors
of the Principal Company, the supervisory board of the Principal
Company (Raad van Commissarissen) and the works' council of the
Principal Company (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 such Obligor pursuant hereto; and
(c) a certificate of a duly authorised officer of such Obligor setting out
the names and signatures of the persons authorised to sign, on behalf
of such Obligor, this Agreement and any documents to be delivered by
such Obligor pursuant hereto.
2. A copy, certified a true copy by or on behalf of the Principal Company, of
each such law, decree, consent, licence, approval, registration or declaration
as is, in the opinion of counsel to the Banks, necessary to render this
Agreement legal, valid, binding and enforceable, to make this Agreement
admissible in evidence in each Obligor's jurisdiction of incorporation and to
enable each of the Obligors to perform its obligations hereunder.
3. An opinion of each of the Borrowers' in-house Dutch and United States counsel
in substantially the form agreed by the Facility Agent prior to the execution
hereof.
4. An opinion of Clifford Chance, solicitors to the Facility Agent, in
substantially the form agreed by the Facility Agent prior to the execution
hereof.
THE OBLIGORS
KONINKLIJKE AHOLD N.V.
By:
Address: Albert Heijnweg 1
1507 EH Zaandam
The Netherlands
Attention: The Treasury
Telephone: 31 75 659 5635
Fax: 31 75 695 8359
AHOLD U.S.A., INC.
By:
Address: One Atlanta Plaza, Suite 2575
950 East Paces Ferry Road
30326 Atlanta, Georgia
United States of America
Attention: Ernie J. Smith
Telephone: 1 404 262 6050
Fax: 1 404 262 6051
THE FACILITY AGENT
THE CHASE MANHATTAN BANK
By:
Address: 270 Park Avenue
New York, NY 10081
United States of America
Attention: Hilma Gabbidon
Telephone: 1 212 552 4650
Telefax: 1 212 552 5658
<PAGE>
ANNEX
US$1,000,000,000
MULTICURRENCY REVOLVING CREDIT AGREEMENT
with
SHORT-TERM ADVANCE, SWING-LINE AND LETTER OF CREDIT OPTIONS
between
KONINKLIJKE AHOLD N.V.
AHOLD USA HOLDINGS, INC.
as Borrowers and Guarantors
ABN AMRO BANK N.V.
CHASE INVESTMENT BANK LIMITED
J.P. MORGAN SECURITIES LTD.
as Arrangers
THE CHASE MANHATTAN BANK
as Facility, Swing-Line,
Letter of Credit and Short-Term Advances Agent
CHASE MANHATTAN INTERNATIONAL LIMITED
as Multicurrency Facility Agent
and
OTHERS
Clifford Chance
Amsterdam
<PAGE>
THIS AGREEMENT is made on 18 December 1996
BETWEEN:
(1) KONINKLIJKE AHOLD N.V. as borrower and guarantor (the "Principal Company");
(2) AHOLD USA HOLDINGS, INC. as borrower and guarantor ("Ahold USA" and,
together with the Principal Company, the "Borrowers");
(3) ABN AMRO BANK N.V., CHASE INVESTMENT BANK LIMITED and J.P. MORGAN
SECURITIES LTD. as arrangers (the "Arrangers");
(4) THE CHASE MANHATTAN BANK as facility agent (the "Facility Agent"), as
swing-line agent (the "Swing-Line Agent"), as Letter of Credit agent (the
"Letter of Credit Agent") and as short term advances agent (the "Short-Term
Advances Agent");
(5) CHASE MANHATTAN INTERNATIONAL LIMITED as Multicurrency Facility Agent (the
"Multicurrency Facility Agent"); and
(6) THE BANKS (as defined below).
IT IS AGREED as follows:
PART 1
DEFINITIONS AND INTERPRETATION
1. Definitions and Interpretation
1.1 Definitions In this Agreement:
"Absolute Basis" in relation to Short-Term Advances means the basis of any offer
therefor expressed as a percentage rate and not by reference to LIBOR.
"Adjustment Amounts" means, in relation to any proposed Advance or Letter of
Credit:
(a) the Dollar Amounts of any other proposed Advances or Letters of Credit
which any of the Banks or the Issuing Bank are then obliged to make,
issue or participate in on or before the proposed Utilisation Date
relating to such proposed Advance or Letter of Credit; and
(b) the Dollar Amounts of any Advances or Letters of Credit which have
been made, issued or participated in by any of the Banks or the
Issuing Bank pursuant hereto and which are due to be repaid or, as the
case may be, expire on or before the proposed Utilisation Date
relating to such proposed Advance or Letter of Credit.
"Advance" means a Revolving Credit Advance, a Swing-Line Advance or a Short-Term
Advance.
"Additional Borrower" means a wholly-owned direct or indirect subsidiary of the
Principal Company which, with the prior written consent of the Facility Agent
acting on the instructions of the Banks, has become an Additional Borrower
pursuant to and in accordance with the provisions of Clause 2.9 to Clause 2.12.
"Agents" means the Facility Agent, the Swing-Line Agent, the Letter of Credit
Agent, the Short-Term Advance Agent and the Multicurrency Facility Agent.
"Available Commitment" means, in relation to a Bank at any time and save as
otherwise provided herein, its Commitment at such time less its share of the
Outstandings at such time Provided that such amount shall not be less than zero.
"Available Facility" means, at any time, the aggregate of the Available
Commitments at such time and adjusted so as to take into account:
(a) any Adjustment Amounts; and
(b) any reduction in the Commitment of a Bank which will occur prior to
the commencement of the Term relating to the relevant Advance or the
relevant Letter of Credit consequent upon a cancellation of the whole
or any part of the relevant Commitment of such Bank pursuant to the
terms hereof;
"Available Letter of Credit Commitment" means, in relation to a Bank at any time
and save as otherwise provided herein, the lesser of:
(a) its Letter of Credit Commitment at such time less its share of the
Dollar Amounts of the outstanding Letters of Credit at such time (and
for the purposes of this definition an "outstanding" Existing Letter
of Credit shall mean an Existing Letter of Credit in which the Banks
are participating in accordance with Clause 4); and
(b) its Available Commitment at such time.
"Available Letter of Credit Facility" means, at any time, the aggregate of the
Available Letter of Credit Commitments at such time and, for the purposes of
Clause 4.2(c) and Clause 4.3(a) and a proposed Letter of Credit only, adjusted
so as to take into account:
(a) any Adjustment Amounts; and
(b) any reduction in the Commitment or Letter of Credit Commitment of a
Bank which will occur prior to the commencement of the Term relating
to such proposed Letter of Credit consequent upon a cancellation of
the whole or any part of the Commitment of such Bank pursuant to the
terms hereof.
"Available Swing-Line Commitment" means, in relation to a Swing-Line Bank at any
time and save as otherwise provided herein, the lesser of:
(a) its Swing-Line Commitment at such time less its share of the Dollar
Amounts of the outstanding Swing-Line Advances at such time; and
(b) its Available Commitment at such time.
"Available Swing-Line Facility" means, at any time, the aggregate of the
Available Swing-Line Commitments at such time and, for the purposes of Clause
7.2(b) and Clause 7.3(a) and a proposed Swing-Line Advance only, adjusted so as
to take into account:
(a) any Adjustment Amounts; and
(b) any reduction in the Commitment or Swing-Line Commitment of a
Swing-Line Bank which will occur prior to the commencement of the Term
relating to such proposed Swing-Line Advance consequent upon a
cancellation of the whole or any part of the Commitment of such
Swing-Line Bank pursuant to the terms hereof.
"Banks" means:
(a) any financial institution named in Part 1 of the First Schedule (The
Banks) (other than one which has ceased to be a party hereto in
accordance with the terms hereof); and
(b) any financial institution which has become a party hereto in
accordance with the provisions of Clause 35.4 (Assignments by Banks)
or Clause 35.5 (Transfers by Banks).
"Code" means the United States Internal Revenue Code of 1986.
"Commitment" means, in relation to a Bank at any time and save as otherwise
provided herein, the amount set opposite its name in Part 1 of the
First Schedule (The Banks).
"Dollar Amount" means:
(a) in relation to any Advance, the principal amount thereof or, if such
Advance is not denominated in dollars, the equivalent of such amount
in dollars calculated as at the date of the Utilisation Request in
respect of such Advance; and
(b) in relation to any Letter of Credit:
(i) at or before the Utilisation Date in respect of such Letter of
Credit, the face amount thereof; and
(ii) thereafter, the sum at such time of the maximum actual and
contingent liabilities of the Issuing Bank under such Letter of
Credit and the total amount of any payments made by the Issuing
Bank thereunder which at such time have not been paid or
reimbursed by any Obligor to the Issuing Bank hereunder,
and the Dollar Amount of a Requested Amount shall be determined accordingly.
"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 Obligor 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; and
(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, including notices, orders or 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.
"ERISA" shall mean, at any date, the US Employee Retirement Income Security Act
of 1974 and the regulations promulgated and rulings issued thereunder, all as
the same shall be in effect at such date.
"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 Obligor's
controlled group, or under common control with any Obligor, 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 by the
PBGC, or the appointment of a trustee to administer 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 engagement in a
non-exempt prohibited transaction within the meaning of Section 4795 of the Code
or Section 406 of ERISA.
"Event of Default" means any of those circumstances specified in Clause 25
(Events of Default).
"Existing Facilities" means the following facilities:
(a) the $400,000,000 revolving credit facility granted pursuant to an
agreement dated 29 March 1994 in favour of the Principal Company by
certain financial institutions named therein for whom ABN AMRO Bank
N.V. acted as Facility Agent;
(b) the $600,000,000 Credit Agreement among The Stop & Shop Companies,
Inc., the several Banks and The Chase Manhattan Bank as Agent, dated
29 August 1994;
(c) the $200,000,000 Credit Agreement among The Stop & Shop Companies,
Inc. the several Banks and The Chase Manhattan Bank as Agent, dated 19
January 1996; and
(d) the $200,000,000 Credit Agreement among The Shop & Stop Master Trust,
the several Banks and The Chase Manhattan Bank as Agent, dated 12
January 1995.
"Existing Letter of Credit" means a Letter of Credit, details of which are set
out in the Sixth Schedule.
"Expiry Date" means, in relation to any Letter of Credit or Existing Letter of
Credit, the date on which the maximum aggregate liability thereunder is to be
reduced to zero.
"Facilities" means the Revolving Credit Facility, the Letter of Credit Facility,
the Swing-Line Facility and the Short-Term Advances Facility (and "Facility"
means any one of them).
"Facility Office" means:
(a) in relation to any Agent, the office identified with such Agent's
signature below or such other office as it may from time to time
select; and
(b) in relation to any Bank and any Facility, 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) for the
purposes of such Facility or, in any such case, such other office as
such Bank may from time to time select.
"Federal Funds Rate" means, in relation to any day, the rate per annum equal to
the weighted average of the rates on overnight Federal funds transactions with
members of the United States Federal Reserve System arranged by Federal funds
brokers, as published for that day (or, if that day is not a business day in New
York, for the immediately preceding business day in New York) by the Federal
Reserve Bank of New York or, if a rate is not so published for any day which is
a business day in New York, the average of the quotations for that day on such
transactions received by the Swing-Line Agent from three Federal funds brokers
of recognised standing selected by the Swing-Line Agent.
"Finance Documents" means this Agreement (as supplemented by any Supplemental
Agreement) and each Supplemental Agreement.
"Financial L/C Commission Rate" means:
(i) during the period commencing on the date hereof and ending on the
date which is the fifth anniversary of the date hereof, 0.10 per
cent. per annum; and
(ii) thereafter, 0.1125 per cent. per annum.
"Financial Letter of Credit" means a Letter of Credit issued in favour of any
contractor or state agency for the purposes of credit guarantees in relation to
the construction of property and self insurance schemes (such as workers'
compensation programmes).
"Guarantors" means the Principal Company and Ahold USA in their respective
capacities as guarantors hereunder.
"Group" means the Principal Company and its subsidiaries for the time being.
"Instructing Group" means:
(a) whilst no Advances or Letters of Credit are outstanding hereunder and
in any event for the purposes of Clause 39, a Bank or group of Banks
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
(b) at any time that there are one or more Advances or Letters of Credit
outstanding hereunder, a Bank or group of Banks to whom more than
sixty-six and two thirds per cent. of the Outstandings at such time is
owed (other than the Dollar Amount of Swing-Line Advances and
Short-Term Advances).
"Issuing Bank" means any Bank which, at the time of the Utilisation Request
relating to the relevant Letter of Credit, has a long-term debt rating by
Standard & Poor's of not less than AA- or by Moody's Investors Service, Inc. of
not less than Aa3 as selected by Ahold USA or such alternative equivalent long
term debt rating as may be applied by Standard & Poor's or Moody's Investors
Service, Inc., respectively, from time to time.
"L/C Outstandings" means, at any time, the aggregate of the Dollar Amounts of
each outstanding Letter of Credit (and for the purposes of this definition an
"outstanding" Existing Letter of Credit shall mean an Existing Letter of Credit
in which the Banks are participating in, in accordance with Clause 4).
"Letter of Credit" means a letter of credit (including, without limitation,
except for the purposes of Clause 4, an Existing Letter of Credit) issued or to
be issued by an Issuing Bank, subject to and with the benefit of the provisions
hereof, under the Letter of Credit Facility.
"Letter of Credit Commitment" means, in relation to a Bank at any time and save
as otherwise provided herein, the amount set opposite its name in Part 1 of the
First Schedule.
"Letter of Credit Facility" means the letter of credit facility granted to Ahold
USA pursuant to the terms of this Agreement.
"LIBOR" means, in relation to any Revolving Credit Advance or Short-Term Advance
or unpaid sum in respect of the Revolving Credit Facility or Short-Term Advances
Facility:
(i) the rate per annum which is the offered rate (if any) appearing
on the relevant 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
the currency in which such Revolving Credit Advance, Short-Term
Advance or unpaid sum is to be or is denominated 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 Multicurrency Facility Agent to be equal to the
arithmetic mean (rounded upwards to four decimal places) of the
rates (as notified to the Multicurrency Facility Agent) at which
each of the Reference Banks was offering to prime banks in the
London Interbank Market deposits in the currency in which such
Revolving Credit Advance, Short-Term Advance or unpaid sum is to
be or is denominated 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 the Term of
such Revolving Credit Advance or Short-Term 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" means:
(i) during the period commencing on the date hereof and ending on the
date which is the fifth anniversary of the date hereof, 0.10 per
cent. per annum; and
(ii) thereafter, 0.1125 per cent. per annum.
"Margin Stock" means margin stock within the meaning of Regulations T, U and X.
"Material Subsidiary" means, at any time:
(i) any subsidiary of the Principal Company 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 Principal Company specified from
time to time by the Principal Company (which, at the date hereof
and without limitation to the foregoing, are the companies listed
in the Fifth Schedule)
Provided that the Principal Company shall ensure that the assets of all
subsidiaries referred to in paragraphs (i) and (ii) shall at all times account
for at least 80 per cent. of the consolidated assets of the Principal Company
and its subsidiaries and for these purposes, the assets of such subsidiary or
the Principal Company 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.
"Multiemployer Plan" means a multiemployer plan (as defined in Section
4001(a)(3) of ERISA) maintained or contributed to for employees of (i) any
Obligor or (ii) any ERISA Affiliate.
"Non-Financial L/C Commission Rate" means 0.15 per cent. per annum.
"Non-Financial Letter of Credit" means any Letter of Credit other than a
Financial Letter of Credit.
"Obligors" means the Borrowers and the Guarantors (and "Obligor" means anyone of
them).
"Optional Currency" means any currency (other than ecu, sterling and dollars)
which is freely transferable and freely convertible into dollars.
"Original Financial Statements" means:
(a) in relation to the Principal Company, its audited consolidated
financial statements for its financial year ended 31 December 1995;
and
(b) in relation to each Additional Borrower, its most recently published
audited financial statements as at the date it becomes an Additional
Borrower hereunder.
"Outstandings" means, at any time, the aggregate of:
(a) the Dollar Amounts of all outstanding Advances; and
(b) the L/C Outstandings.
"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 all Outstandings at
such time;
"PBGC" means the Pension Benefit Guaranty Corporation or any entity succeeding
to all or any of its functions under ERISA.
"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.
"Prime Rate" means, on any day, the prime commercial lending rate publicly
announced by the Swing-Line Agent in respect of such day, which rate need not be
the lowest rate charged to its borrowers Provided that each change in the
interest rate applicable to a Swing-Line Advance which results from a change in
the Prime Rate shall become effective on the day on which the change in the
Prime Rate becomes effective.
"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 LIBOR is to be
determined hereunder, the day which is two business days prior to the first day
of such period.
"Reference Banks" means, for the purposes of determining LIBOR, the principal
London offices of ABN AMRO Bank N.V., The Chase Manhattan Bank and Morgan
Guaranty Trust Company of New York or such other bank or banks as may from time
to time be agreed between the Principal Company and the Facility Agent.
"Regulation D Costs" means, in relation to the portion of any Advance made by a
Bank to a US Borrower (or deposits maintained by a Bank to fund such an
Advance), the amount (if any) certified by such Bank to be the cost to it of
complying with Regulation D (or any similar reserve requirements) in respect of
that Advance or those deposits.
"Regulations D, T, U and X" means, respectively, Regulations D, T, U and X of
the Board of Governors of the Federal Reserve System of the United States (or
any successor).
"Relevant Amount" means, in relation to any Bank or Swing-Line Bank at any time
and any proposed Utilisation, the amount arrived at by applying the following
formula:
Relevant Amount = BC x (RA + TO)
______________ - BO
TC
where:
BC = such Bank's or Swing-Line Bank's Commitment at such time;
RA = the Dollar Amount of the Advance or Letter of Credit comprising such
proposed Utilisation;
TO = the Outstandings at such time;
TC = the Total Commitments at such time;
BO = the relevant Bank or Swing-Line Bank's share of all Outstandings at
such time,
Provided that when in respect of any one or more Banks or Swing-Line Banks
application of the above formula results in a negative figure, then for the
purpose of calculating the Relevant Amount for each other Bank or Swing-Line
Bank, the first mentioned Bank(s) or Swing-Line Bank(s) and it or their
Commitment(s) (and that of any affiliates thereof) shall be deducted from "TC"
and the aggregate of such Bank's or Swing-Line Bank's share of all Outstandings
shall be deducted from "TO".
"Repayment Date" means, in relation to any Advance, the last day of the Term
thereof or such earlier date upon which such Advance is required to be repaid
pursuant hereto.
"Requested Amount" means, in relation to any Utilisation Request, the aggregate
principal amount of the Advances or, as the case may be, the face amount of the
Letter of Credit therein requested to be made or issued or in which the Banks
are requested to participate.
"Revolving Credit Advance" means, save as otherwise provided herein, an advance
made or to be made by the Banks pursuant to Clause 3 (Utilisation of the
Revolving Credit Advance) and the other terms hereof.
"Revolving Credit Facility" means the multicurrency revolving credit facility
granted to the Borrowers pursuant to the terms of this Agreement.
"Short-Term Advance" means, save as otherwise provided herein, an advance made
or to be made by the Banks pursuant to Clause 8 (Request for Offers) and the
other terms hereof.
"Short-Term Advances Facility" means the short term advances facility granted to
Ahold USA pursuant to the terms of this Agreement.
"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.
"Supplemental Agreement" means any agreement entered into by the parties hereto
with any Additional Borrower (in its capacity as an Additional Obligor) pursuant
to Clause 2.9 (Nomination of Additional Borrowers) to Clause 2.12 (Original
Borrower's Authority) substantially in the form set out in the Eighth Schedule
(Supplemental Agreement for Additional Borrowers) or such other form as the
Principal Company and the Facility Agent shall agree.
"Swing-Line Advance" means, save as otherwise provided herein, an advance made
or to be made by the Swing-Line Banks pursuant to Clause 7 (Utilisation of the
Swing-Line Facility) and the other terms hereof.
"Swing-Line Banks" means each of the Banks listed in Part 2 of the First
Schedule (Swing-Line Banks).
"Swing-Line Commitment" means, in relation to a Swing-Line Bank at any time and
save as otherwise provided herein, the amount set opposite its name in Part 2 of
the First Schedule.
"Swing-Line Facility" means the swing-line facility granted to the Borrowers
pursuant to the terms of this Agreement.
"Swing-Line Margin" means 0.50 per cent. per annum.
"Term" means, save as otherwise provided herein, in relation to any Advance, the
period for which such Advance is borrowed (as specified in the Utilisation
Request relating thereto) and, in relation to any Letter of Credit, the period
from the date on which such Letter of Credit is issued (or, in the case of an
Existing Letter of Credit, the Banks commence participating in such Existing
Letter of Credit pursuant to Clause 4) until its Expiry Date (as specified in
the Utilisation Request relating thereto).
"Termination Date" means the day which is eighty-four months after the date
hereof.
"Total Commitments" means the aggregate for the time being of the Banks'
Commitments.
"Transfer Certificate" means a certificate substantially in the form set out in
the Second Schedule (Form of Transfer Certificate) signed by a Bank and a
Transferee whereby:
(a) such Bank seeks to procure the transfer to such Transferee of all or a
part of such Bank's rights, benefits and obligations hereunder as
contemplated in Clause 35.3 (Assignments and Transfers by Banks); and
(b) 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 35.5 (Transfers 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, benefits and obligations
hereunder.
"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.
"US Borrower" means any Material Subsidiary which has been incorporated in the
United States.
"US Obligor" means any Obligor incorporated in the United States.
"Utilisation" means a utilisation of any or more of the Facilities hereunder.
"Utilisation Date" means the date of a Utilisation, being the date on which the
Advance in respect thereof is to be made or the Letter of Credit in respect
thereof is to be issued (or, in relation to an Existing Letter of Credit, the
date on which the Banks are to commence participating therein).
"Utilisation Request" means a notice substantially in the form set out in the
Fourth-Schedule (Utilisation Request).
"Withdrawal Liability" has the meaning given to such term under Part I of
Subtitle E of Title IV of ERISA.
1.2 Interpretation Any reference in this Agreement to:
any 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, bill 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 and
New York City and, if such reference relates to the date for the payment of any
sum denominated in any Optional Currency, banks are generally open for business
in the principal financial centre of the country of such Optional Currency;
a "business day in New York" 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
New York City;
a "Clause" shall, subject to any contrary indication, be construed as a
reference to a clause hereof;
a "currency" includes ecu;
"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;
the "equivalent" 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) London time 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
Principal Company 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 Principal Company in each
case as reported in the latest consolidated balance sheet of the Principal
Company delivered pursuant to Clause 24(i)(a) (Undertakings);
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 "subsidiary" of the Principal Company means a company which is a subsidiary of
the Principal Company within the meaning of Article 24.a of the Dutch Civil Code
and which is a company which is consolidated in the consolidated financial
statements of the Principal Company;
a "subsidiary" of a company or corporation other than the Principal Company
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 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 Currency Symbols "$" and "dollars" denote lawful currency of the United
States of America and "sterling" denotes lawful currency of the United Kingdom.
1.4 Agreements, Documents and Statutes Save where the contrary is indicated, any
reference in this Agreement to:
(a) 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;
(b) 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
(c) a time of day shall be construed as a reference to New York time.
1.5 Headings Clause, Part and Schedule headings are for ease of reference only.
<PAGE>
PART 2
THE FACILITIES; ADDITIONAL BORROWERS
2. THE FACILITIES
2.1 REVOLVING CREDIT FACILITY The Banks grant to the Borrowers, upon the terms
and subject to the conditions hereof, a multicurrency revolving credit facility
in an aggregate amount of $1,000,000,000 or its equivalent from time to time in
Optional Currencies.
2.2 LETTER OF CREDIT FACILITY The Banks grant to Ahold USA, upon the terms and
subject to the conditions hereof, a dollar denominated letter of credit facility
in an aggregate amount of $100,000,000.
2.3 SWING-LINE FACILITY The Swing-Line Banks grant to the Borrowers, upon the
terms and subject to the conditions hereof, a dollar denominated swing-line
facility in an aggregate amount of $200,000,000.
2.4 SHORT-TERM ADVANCES FACILITY The Banks grant to Ahold USA, upon the terms
and subject to the conditions hereof, an uncommitted short term advances
facility in an aggregate amount of $1,000,000,000.
2.5 PURPOSE AND APPLICATION The Facilities are intended for general corporate
purposes including working capital and the refinancing of the Existing
Facilities. Accordingly, each of the Borrowers shall apply all amounts raised by
it under each Facility in or towards satisfaction of such purposes. Without
prejudice to the obligations of the Borrowers under this Clause 2.5 (Purpose and
Application), neither the Agents, the Arrangers and the Banks nor any of them
shall be obliged to concern themselves with the application of amounts raised by
any Borrower hereunder.
2.6 CONDITION PRECEDENT DOCUMENTS None of the Borrowers may deliver any
Utilisation Request hereunder unless the Facility Agent has confirmed to the
Principal Company and the Banks that it has received all of the documents listed
in the Third Schedule (Condition Precedent Documents) each, in form and
substance, satisfactory to the Facility Agent and that each of the other
conditions referred to therein have been met to the satisfaction of the Facility
Agent.
2.7 BANKS' OBLIGATIONS SEVERAL The obligations of each Bank hereunder are
several. The failure by a Bank to perform its obligations hereunder shall not
affect the obligations of any Obligor 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 a
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.
2.8 AGGREGATION OF ADVANCES Clause 2.1 (Revolving Credit Facility), Clause 2.2
(Letter of Credit Facility), Clause 2.3 (Swing-Line Facility) and Clause 2.4
(Short-Term Advances Facility) are subject to the restriction that at no time
may the aggregate of the Dollar Amounts of all outstanding Advances and Letters
of Credit under each of the Facilities referred to in such Clauses exceed the
Total Commitments, (being, at the date hereof, $1,000,000,000).
2.9 NOMINATION OF ADDITIONAL BORROWERS Subject to having obtained the prior
written consent, through the Facility Agent, of all the Banks, the Principal
Company may from time to time designate any of its wholly-owned subsidiaries as
an Additional Borrower. If the Principal Company so designates any such
subsidiary or subsidiaries, the Principal Company shall promptly deliver or
cause to be delivered to the Facility Agent a Supplemental Agreement duly
executed by the parties thereto.
2.10 ACCESSION OF ADDITIONAL BORROWERS Promptly on receipt by it of each of the
conditions precedent specified in any Supplemental Agreement, the Facility Agent
will confirm to the relevant Additional Borrower, the Principal Company and the
Banks that it has received such documents and whether or not each is, in form
and substance, satisfactory to it. Upon delivery to the Facility Agent of any
Supplemental Agreement and subject to the Facility Agent having confirmed to the
relevant Additional Borrower, the Principal Company and the Banks that it has
received, in form and substance satisfactory to it, each of the conditions
precedent specified therein, this Agreement shall thenceforth be read and
construed as if each subsidiary of the Principal Company which is a party to the
Supplemental Agreement as an Additional Borrower were a party hereto having all
the rights and obligations of a Borrower. Accordingly all references in any
Finance Document to (a) any "Additional Borrower", "Borrower", "Obligor" or any
derivative term, shall be treated as including a reference to any such
subsidiary becoming a party hereto in the manner contemplated above; and (b)
this Agreement, shall be treated as a reference to this Agreement as
supplemented by such Supplemental Agreement and all previous Supplemental
Agreements to the intent that this Agreement, such Supplemental Agreement and
all previous Supplemental Agreements shall be read and construed together as one
single agreement.
2.11 FACILITY AGENT'S AUTHORITY Each of the Agents (other than the Facility
Agent), the Arranger and the Banks irrevocably authorises the Facility Agent to
execute any Supplemental Agreement on its behalf. The Facility Agent shall
promptly notify each of the Banks of the execution by it of any Supplemental
Agreement.
2.12 ORIGINAL BORROWER'S AUTHORITY Each of the Obligors (other than the
Principal Company) irrevocably authorises the Principal Company to designate any
of its subsidiaries as an Additional Borrower pursuant to Clause 2.9 (Nomination
of Additional Borrowers) and irrevocably authorises the Principal Company to
execute on its behalf any Supplemental Agreement in relation thereto.
2.13 SEPARATE AND INDEPENDENT FACILITIES Subject to Clause 2.8 (Aggregation of
Advances), the Facilities granted in this Agreement are separate and independent
of each other. The aggregate of the amounts outstanding at any time under each
Facility shall be a separate and independent debt.
2.14 USE OF FACILITIES Any Bank may, by notice to the Facility Agent, designate
another bank or financial institution (a "Funding Bank") to make available to
the relevant Agent the proceeds of that Bank's share of any Advance or to make
payments in respect of any Letter of Credit (in which case that Bank shall
ensure that the Funding Bank does so). Any such notice shall specify the name of
the Funding Bank and its fax number and address (which must be in New York City)
and marking (if any) for the purpose of communications to it in relation to the
relevant Facility. A copy of any written communication to that Bank shall be
sent to the Funding Bank (which need not be a party to this Agreement nor an
affiliate of that Swingline Bank). Whether or not the Funding Bank is a party to
this Agreement, all rights and obligations with respect to that Bank's
Commitment and its Outstandings under the Facilities shall remain solely in that
Bank (not the Funding Bank) and this Agreement shall apply as if that Bank
(rather than the Funding Bank) had funded its share of each Advance or Letter of
Credit, except that the Bank may direct that its share of any payment with
respect to the relevant Facility be made to the Funding Bank instead.
<PAGE>
PART 3
UTILISATION OF THE REVOLVING CREDIT FACILITY
3. UTILISATION OF THE REVOLVING CREDIT FACILITY
3.1 DELIVERY OF UTILISATION REQUEST FOR REVOLVING CREDIT ADVANCES Save as
otherwise provided herein, a Borrower may from time to time request the making
of Revolving Credit Advances under the Revolving Credit Facility by the delivery
to the Facility Agent and, in the case of a Revolving Credit Advance denominated
in an Optional Currency, the Multicurrency Facility Agent not more than eight
business days nor later than three (or, in the case of a Revolving Credit
Advance denominated in any Optional Currency four) business days before the
proposed date for the making of the relevant Revolving Credit Advance, of a duly
completed Utilisation Request therefor.
3.2 UTILISATION DETAILS Each Utilisation Request delivered to the Facility Agent
and Multicurrency Facility Agent pursuant to Clause 3.1 (Delivery of Utilisation
Request for Revolving Credit Advances) shall be irrevocable and shall specify:
(a) the proposed date for the making of the relevant Revolving Credit
Advance which shall be a business day falling before the Termination
Date;
(b) the currency of denomination of the proposed Revolving Credit Advance
which shall be dollars or an Optional Currency Provided that, if the
relevant Borrower selects an Optional Currency, such Borrower may also
select dollars to apply if its first selection becomes ineffective
pursuant to Clause 3.3 (Banks' Agreement to Optional Currency);
(c) the amount of the proposed Revolving Credit Advance, which shall be an
amount of not less than $25,000,000 and an integral multiple of
$5,000,000 (or, if the Revolving Credit Advance is to be denominated
in an Optional Currency, such comparable and convenient amount thereof
as the Multicurrency Facility Agent may from time to time specify) and
the Dollar Amount of which shall not exceed the Available Facility;
(d) the proposed Term of the proposed Revolving Credit Advance, which
shall be a period of one, two, three or six months or such other
period not exceeding twelve months agreed by the Banks ending on a
business day falling on or before the Termination Date; and
(e) the account to which the proceeds of the proposed Revolving Credit
Advance are to be paid.
3.3 BANKS' AGREEMENT TO OPTIONAL CURRENCY If a Borrower requests that a
Revolving Credit Advance be denominated in an Optional Currency and:
(a) no later than 12.00 noon (London time) on the third business day
preceding the first day of the Term of such Revolving Credit Advance,
any Bank notifies the Multicurrency Facility Agent that it does not
agree to such request; or
(b) no later than 11.00 a.m. (London time) on the Quotation Date for such
Revolving Credit Advance, the Facility Agent notifies the Borrower and
the Banks that the Multicurrency Facility Agent is of the reasonable
opinion that it is not feasible for such Revolving Credit Advance to
be made in such Optional Currency; or
(c) to give effect to such request would mean that the Revolving Credit
Advances outstanding would be denominated in more than three Optional
Currencies,
then, unless such Borrower and the Banks otherwise agree, such Revolving Credit
Advance shall not be made unless such Borrower specified in the Utilisation
Request in respect of such Revolving Credit Advance that in such event such
Revolving Credit Advance should be denominated in dollars in which case such
Revolving Credit Advance shall, save as otherwise provided herein, be made in
dollars in an amount equal to the Dollar Amount relating to such Utilisation
Request.
3.4 MAKING OF REVOLVING CREDIT ADVANCES If a Borrower requests a Revolving
Credit Advance in accordance with the provisions of this Clause 3 and, on the
proposed date for the making of such Advance:
(a) none of the events mentioned in Clause 22(a) and (b) (Market
Disruption) shall have occurred;
(b) the Dollar Amount of such Revolving Credit Advance does not exceed the
Available Facility;
(c) to give effect to such request would not result in more than ten
Advances being outstanding; and
(d) either:
(i) no Event of Default or Potential Event of Default has occurred
and is continuing or would result from the making of such
Revolving Credit Advance; and
(ii) the representations set out in Clause 23 (Representation and
Warranties) which are to be repeated pursuant to the relevant
Utilisation Request are true on and as of the proposed date for
the making of such Revolving Credit Advance and would continue to
be true immediately following the making of the relevant
Revolving Credit Advance and the application of the proceeds
thereof in meeting the purpose for the making of such Revolving
Credit Advance (as if references therein to Original Financial
Statements were references to the most recent set of annual
audited financial statements delivered by each Borrower to the
Facility Agent pursuant to Clause 24 (Undertakings))
or each of the Banks agrees, notwithstanding any matter mentioned at (i) or
(ii) above to participate in the making of such Revolving Credit Advance,
then:
(1) the Facility Agent (or in the case of a Revolving Credit Advance
denominated in an Optional Currency, the Multicurrency Facility
Agent) shall, no later than 5.00 p.m. (London time) on the third
business day prior to the proposed Utilisation Date, notify each
Bank by telefax or by telephone (with confirmation to follow by
telefax) at its Facility Office specified for the purpose of
Revolving Credit Advances of the amount of such Revolving Credit
Advance, the amount of such Bank's participation therein and the
period for which such Revolving Credit Advance is to be made;
(2) each Bank shall, no later than 12.00 noon (local time for the
financial centre of the relevant currency) on such proposed
Utilisation Date make its portion of such Revolving Credit
Advance available to the Facility Agent or in the case of a
Revolving Credit Advance denominated in an Optional Currency, the
Multicurrency Facility Agent), in the relevant currency, in
accordance with Clause 29 (Payments); and
(3) the Facility Agent (or in the case of a Revolving Credit Advance
denominated in an Optional Currency, the Multicurrency Facility
Agent) shall, no later than 4.00 p.m. (local time for the
financial centre of the relevant currency) on such proposed
Utilisation Date, make such Revolving Credit Advance available to
the relevant Borrower in accordance with but subject to Clause 29
(Payments).
3.5 FACILITY OFFICE Each Bank will participate in each Revolving Credit Advance
made pursuant to this Clause 3 through its Facility Office specified in relation
to Revolving Credit Advances in its Relevant Amount.
3.6 REDUCTION OF ADVANCES If a Bank's Commitment is reduced in accordance with
the terms hereof after the Facility Agent (or in the case of a Revolving Credit
Advance denominated in an Optional Currency, the Multicurrency Facility Agent)
has received the Utilisation Request for a Revolving Credit Advance, then both
the Dollar Amount and the amount of that Revolving Credit Advance shall be
reduced accordingly.
3.7 APPLICATION OF ADVANCES The proceeds of any Revolving Credit Advance made
hereunder shall first be applied in repayment of any Swing-Line Advance
(together with any accrued interest thereon), and the Facility Agent shall pay
such portion of any Revolving Credit Advance to be made hereunder to the
Swing-Line Banks as the Swing-Line Agent instructs the Facility Agent is
necessary to repay each outstanding Swing-Line Advance (together with any
accrued interest thereon).
3.8 PAYMENT OF SWING-LINE ADVANCES Notwithstanding anything to the contrary
provided herein, one or more Revolving Credit Advances (as may be necessary)
will be made by the Banks to the Borrower if, prior to 10.00 a.m. on any
business day, the Swing-Line Agent, on behalf of the Swing-Line Banks, gives
notice to the Facility Agent that it requires each outstanding Swing-Line
Advance to be repaid by means of a Revolving Credit Advance hereunder (and, for
the purposes hereof such notice shall be deemed to have been automatically given
by the Swing-Line Agent to the Facility Agent, if either (i) the Facility Agent
receives notice from any other party hereto that an Event of Default has
occurred or (ii) for any reason whatsoever the proceeds of a Revolving Credit
Advance hereunder cannot be applied in the manner outlined in Clause 3.7) and,
two business days after the Swing-Line Agent gives notice to the Facility Agent
as aforesaid a Revolving Credit Advance will be made in respect of each
outstanding Swing-Line Advance by the Banks in an amount of each such Swing-Line
Advance and for a Term selected by the Facility Agent, in consultation with the
Borrower, notwithstanding (a) the occurrence of an Event of Default, (b) any
reduction in the Total Commitments after the date hereof or (c) any other
requirements for a drawdown pursuant to any of the other provisions of this
Clause 3 not being fulfilled Provided that nothing herein contained shall be
construed so as to require the Banks to participate in any Revolving Credit
Advance requested hereunder by the Swing-Line Agent to repay any Swing-Line
Advance which was made in breach of Clause 7.2(b) or was made in the
circumstances set out in Clause 7.3(b). Each Revolving Credit Bank will
participate through its Facility Office in its Relevant Amount in any Revolving
Credit Advance made pursuant to the terms of this Clause 3.8.
PART 4
UTILISATION OF THE LETTER OF CREDIT FACILITY
4. UTILISATION OF THE LETTER OF CREDIT FACILITY
4.1 DELIVERY OF UTILISATION REQUEST FOR LETTERS OF CREDIT Save as otherwise
provided herein, Ahold USA may from time to time request the issue of Letter(s)
of Credit and/or that the Banks participate in the issuance of any Existing
Letter(s) of Credit under the Letter of Credit Facility by the delivery to the
Facility Agent, not more than eight business days in New York nor later than
9.30 a.m. on the third business day in New York before the proposed date for
either (a) the issue of the relevant Letter(s) of Credit and/or (b) the
effectiveness of the Banks' participating in the relevant Existing Letter(s) of
Credit (as the case may be) of a duly completed Utilisation Request therefor.
4.2 UTILISATION DETAILS Each Utilisation Request delivered to the Facility Agent
pursuant to Clause 4.1 (Delivery of Utilisation Request for Letters of Credit)
shall be irrevocable and shall specify:
(a) the face amount of (i) the proposed Letter(s) of Credit and/or (ii)
Existing Letter(s) of Credit (as the case may be), which shall be an
amount of not more than the Available Letter of Credit Facility;
(b) the proposed Term of (i) the proposed Letter(s) of Credit and/or (ii)
Existing Letter(s) of Credit (as the case may be), which shall be a
period ending on a business day falling on or before the Termination
Date;
(c) the name and address of the recipient to whom such Letter(s) of Credit
is to be delivered and/or to whom such Existing Letter(s) of Credit
has been delivered (as the case may be); and
(d) the Issuing Bank relating to such Letter(s) of Credit and/or Existing
Letter(s) of Credit (as the case may be).
4.3 ISSUE OF LETTERS OF CREDIT If the Borrower requests the issue of a Letter of
Credit and/or the participation of Banks in the issuance of any Existing Letter
of Credit in accordance with the provisions of this Clause 4 and, on the
proposed date for such issue and/or participation:
(a) the Dollar Amount of such Letter(s) of Credit and (if applicable)
Existing Letter(s) of Credit does not exceed the Available Letter of
Credit Facility;
(b) the identity of the recipient has been agreed by all the Banks no
later than 3.00 p.m. (New York Time) on the third business day in New
York before the proposed date for the issue of the relevant Letter(s)
of Credit or participation in the relevant Existing Letter(s) of
Credit;
(c) (in relation to any new Letter of Credit) the form of such Letter(s)
of Credit is such form as has been agreed between the relevant
Borrower and the Issuing Bank (acting on the instructions of the
Banks) by no later than 3.00 p.m. (New York Time) on the third
business day in New York before the date from the issue of such
Letter(s) of Credit;
(d) either:
(i) no Event of Default or Potential Event of Default has occurred
and is continuing or would result from the issue of such
Letter(s) of Credit or participation by the Banks in such
Existing Letter(s) of Credit; and
(ii) the representations set out in Clause 23 (Representations and
Warranties) which are to be repeated pursuant to the relevant
Utilisation Request are true on and as of the proposed date for
the issue of such Letter(s) of Credit and/or participation in
such Existing Letter(s) of Credit (as the case may be) and would
continue to be true immediately following the issuing of the
relevant Letter(s) of Credit and/or participation in such
Existing Letter(s) of Credit (as the case may be) (as if
references therein to Original Financial Statements were
references to the most recent set of annual audited financial
statements delivered by each Borrower to the Facility Agent
pursuant to Clause 24 (Undertakings))
or each of the Banks agrees, notwithstanding any matter mentioned at (i) or
(ii) above to the issue of such Letter of Credit and/or participation in
such Existing Letter(s) of Credit (as the case may be),
then:
(1) the Facility Agent shall, no later than 5.00 p.m. (New York Time) on
the third business day prior to the proposed Utilisation Date, notify
each Bank and the Issuing Bank by telefax or by telephone (with
confirmation to follow by telefax) at its Facility Office specified
for the purpose of the Letter of Credit Facility of the amount of such
Letter(s) of Credit and/or Existing Letter(s) of Credit (as the case
may be), the amount of such Bank's participation therein and the Term
of such Letter(s) of Credit and/or Existing Letter(s) of Credit (as
the case may be); and
(2) (in the case of any new Letter(s) of Credit) the Issuing Bank shall on
such proposed Utilisation Date, issue such Letter of Credit to the
relevant recipient
Provided that, if the issue of such proposed new Letter(s) of Credit to the
proposed beneficiary is prohibited under any law, statute, regulation, order or
decree to which a Bank is subject or pursuant to any request or requirement of
any central bank or other fiscal, monetary or other authority to which a Bank is
subject, the Issuing Bank shall not be obliged to issue such proposed new
Letter(s) of Credit.
4.4 BANKS' PARTICIPATION IN LETTERS OF CREDIT Each Bank will participate in the
issuance of each Letter of Credit and each Existing Letter of Credit through its
Facility Office specified in relation to the Letter of Credit Facility to the
extent of its Relevant Amount.
4.5 REDUCTION OF BANKS' LETTER OF CREDIT COMMITMENTS If a Bank's Commitment is
reduced in accordance with the terms hereof after the Facility Agent has
received the Utilisation Request for any Letter(s) of Credit and/or Existing
Letter(s) of Credit, then both the Dollar Amount and the amount of such
Letter(s) of Credit and/or Existing Letter(s) of Credit shall be reduced
accordingly.
4.6 COMPLETION OF LETTERS OF CREDIT The Issuing Bank relating to any Letter of
Credit is hereby authorised to issue such Letter of Credit pursuant to
Clause 4.3 (Issue of Letters of Credit) by:
a) completing the issue date and Expiry Date of such Letter of Credit;
and
b) executing and delivering such Letter of Credit to the relevant
recipient on the Utilisation Date.
5. INDEMNITY
5.1 DEMAND FOR PAYMENT If, at any time, a demand for payment (the amount so
demanded being herein referred to as the "Amount Demanded") is made under a
Letter of Credit the Issuing Bank relating to such Letter of Credit shall notify
the Facility Agent who shall notify each of the Banks and Ahold USA of such
demand and the Facility Agent shall make demand of each of the Banks for an
amount equal to its share of the amount demanded.
5.2 PAYMENT Each Bank shall, upon receipt by it of a demand made on it by the
Facility Agent under this Clause 5 and in any event no later than 11.00 a.m.
(London time) on the business day following receipt of the demand, pay to the
Facility Agent the amount demanded of it. The Facility Agent shall, upon receipt
of such amount, promptly pay the same to the Issuing Bank of the relevant Letter
of Credit.
5.3 INDEMNIFICATION Ahold USA hereby irrevocably and unconditionally agrees to
indemnify and keep indemnified the Issuing Bank, the Facility Agent and each
Bank on demand against each and every sum paid or payable by the Issuing Bank or
any such Bank under or in respect of any Letter of Credit and also undertakes to
indemnify and hold harmless the Issuing Bank, the Facility Agent and each Bank
on demand from and against all actions, proceedings, liabilities, costs
(including any costs incurred in funding any amount which falls due from the
Issuing Bank, the Facility Agent or any Bank under any Letter of Credit in
connection with any such Letter of Credit), claims, losses, damages and expenses
which the Issuing Bank, the Facility Agent and each Bank may at any time incur
or sustain in connection with or arising out of any Letter of Credit.
5.4 THE ISSUING BANK'S AND BANKS' ENTITLEMENTS The Issuing Bank and each Bank
shall be entitled to make any payment under or in respect of any Letter of
Credit for which a demand has been made without any reference to or further
authority from Ahold USA or any other investigation or enquiry, need not concern
itself with the propriety of any demand made or purported to be made under and
in the manner required by the terms of any such Letter of Credit and shall be
entitled to assume that any person expressed in any Letter of Credit or in any
notice served pursuant to any such Letter of Credit to be entitled to make
demands is so entitled and that any individual purporting to sign any such
demand or notice on behalf of such person is duly authorised to do so;
accordingly, it shall not be a defence to any demand made of Ahold USA, nor
shall Ahold USA's obligations hereunder be impaired by the fact (if it be the
case), that the Issuing Bank, the Facility Agent or any Bank was or might have
been justified in refusing payment, in whole or in part, of the amounts so
demanded.
5.5 OBLIGATIONS NOT DISCHARGED The obligations of each of the Banks and Ahold
USA to the Issuing Bank, the Facility Agent and (in the case of Ahold USA) each
Bank shall not be discharged, lessened or impaired by any act, omission or
circumstance whatsoever which, but for this provision, might operate to release
or exonerate such Bank or Ahold USA from all or part of such obligations or in
any other way discharge, lessen or impair the same.
5.6 CERTIFICATE OF THE ISSUING BANK CONCLUSIVE A certificate of the Issuing Bank
as to the amount paid out by the Issuing Bank under any Letter of Credit shall,
save for manifest error, be conclusive and binding upon Ahold USA for the
purposes of this Agreement and prima facie evidence of the payment of such
amounts in any legal action or proceedings arising in connection therewith.
6. LETTER OF CREDIT FEES AND FRONTING FEE
6.1 LETTER OF CREDIT FEES Ahold USA shall, in respect of each Letter of Credit
issued at its request, be obliged to pay to the Facility Agent for the account
of each Bank (for distribution in proportion to each Bank's participation under
the relevant Letter of Credit, a letter of credit fee at the Financial L/C
Commission Rate (in the case of Financial Letter of Credit) or Non Financial L/C
Commission Rate (in the case of a Non-Financial Letter of Credit) on the face
amount of the relevant Letter of Credit. Such letter of credit fee shall be paid
in arrears in respect of each successive period of three months (or such shorter
period as shall end on the Expiry Date relating to such Letter of Credit) which
begins during the Term of the relevant Letter of Credit, each payment of such
letter of credit commission to be made on the last day of each such period.
6.2 FRONTING FEE Ahold USA shall negotiate in good faith with any proposed
Issuing Bank and agree a fee to be paid to such Issuing Bank in respect of its
issuing any Letter of Credit or Existing Letter of Credit. Such fee shall be
payable in arrears in respect of each successive period of three months (or such
shorter period as shall end on the Expiry Date of such Letter of Credit or
Existing Letter of Credit (as the case may be)) which begins during the Term of
such Letter of Credit or Existing Letter of Credit (as the case may be), such
fee to be payable directly to such Issuing Bank on the last day of each such
period. In addition, Ahold USA shall compensate each Issuing Bank in full on
demand by such Issuing Bank for all customary administrative, issuance,
amendment, payment and negotiation charges incurred or chargeable by it in
connection with any Letter of Credit or Existing Letter of Credit (as the case
may be) issued by it.
<PAGE>
PART 5
UTILISATION OF THE SWING-LINE FACILITY
7. UTILISATION OF THE SWING-LINE FACILITY
7.1 DELIVERY OF UTILISATION REQUEST FOR SWING-LINE ADVANCES Save as otherwise
provided herein, a Borrower may from time to time request the making of a
Swing-Line Advance under the Swing-Line Facility by delivery by telefax to the
Swing-Line Agent and the Facility Agent, not more than three business days in
New York before nor later than 10.00 a.m. (New York Time) on the latest business
day in New York which falls on or before the proposed date for the making of the
relevant Swing-Line Advance, of a duly completed Utilisation Request.
7.2 UTILISATION DETAILS Each request made of the Swing-Line Agent pursuant to
Clause 7.1 (Delivery of Utilisation Request for Swing-Line Advances) shall be
irrevocable and shall specify:
(a) the proposed date for the making of the relevant Swing-Line Advance,
which shall be a business day in New York falling before the
Termination Date;
(b) the amount of the proposed Swing-Line Advance, which shall be an
amount of not less than $25,000,000 and an integral multiple of
$5,000,000 which is less than or equal to the Available Swing-Line
Facility;
(c) the proposed Term of the proposed Swing-Line Advance, which shall be a
period of not more than ten business days in New York ending on a
business day in New York on or before the Termination Date; and
(d) the account to which the proceeds of the proposed Swing-Line Advance
are to be paid.
7.3 CONDITIONS OF UTILISATION If the Borrower requests a Swing-Line Advance in
accordance with the preceding provisions of this Clause 7 and, on the proposed
date for the making of such Swing-Line Advance:
(a) the Dollar Amount of such Swing-Line Advance does not exceed the
Available Swing-Line Facility; and
(b) either:
(i) no Event of Default or Potential Event of Default has occurred
and is continuing or would result from the making of such
Swing-Line Advance; and
(ii) the representations set out in Clause 23 (Representation and
Warranties) which are to be repeated pursuant to the relevant
Utilisation Request are true on and as of the proposed date for
the making of such Swing-Line Advance and would continue to be
true immediately following the making of the relevant Swing-Line
Advance and the application of the proceeds thereof in meeting
the purpose of the making of such Swing-Line Advance (as if
references therein to Original Financial Statements were
references to the most recent set of annual audited financial
statements delivered by each Borrower to the Facility Agent
pursuant to Clause 24 (Undertakings))
or each of the Swing-Line Banks agrees (notwithstanding any matter
mentioned at (i) or (ii) above) to participate in the making of such
Swing-Line Advance,
then:
(1) the Swing-Line Agent shall, no later than 1.00 p.m. (New York Time) on
the proposed Utilisation Date, notify each Swing-Line Bank by telefax
or by telephone (with confirmation to follow by telefax) at its
Facility Office specified for the purpose of Swing-Line Advances of
the amount of such Swing-Line Advance, the amount of such Swing-Line
Bank's participation therein and the period for which such Swing-Line
Advance is to be made;
(2) each Swing-Line Bank shall, no later than 2.00 p.m. (New York Time) on
such proposed Utilisation Date make its portion of such Swing-Line
Advance available to the Swing-Line Agent, in dollars, in accordance
with Clause 29 (Payments); and
(3) the Swing-Line Agent shall, no later than 4.00 p.m. (New York Time) on
such proposed Utilisation Date, make such Swing-Line Advance available
to the relevant Borrower in accordance with but subject to Clause 29
(Payments).
7.4 FACILITY OFFICE Each Swing-Line Bank will participate in each Swing-Line
Advance made pursuant to this Clause 7 through its Facility Office specified for
the purpose of Swing-Line Advances in its Relevant Amount.
7.5 REDUCTION OF COMMITMENT If a Bank's Swing-Line Commitment is reduced in
accordance with the terms hereof after the Swing-Line Agent has received a
request for a Swing-Line Advance, then the amount of that Swing-Line Advance
shall be reduced accordingly.
PART 6
UTILISATIONS OF THE SHORT-TERM ADVANCES FACILITY
8. REQUEST FOR OFFERS
8.1 MAKING REQUESTS FOR OFFERS Save as otherwise provided herein, Ahold USA may
from time to time request offers by tender for the making of Short-Term Advances
under the Short-Term Advances Facility by the delivery to the Short-Term
Advances Agent by telex, not earlier than the eighth business day nor later than
five (or if the interest rates relating to such Short-Term Advances are to be
expressed on the Absolute Basis 9.30 a.m. (New York Time) two) business days
before the proposed Utilisation Date relating to such Short-Term Advance, of a
duly completed Utilisation Request therefor.
8.2 REQUEST DETAILS Each Utilisation Request delivered to the Short-Term
Advances Agent pursuant to Clause 8.1 (Making Requests for Offers) shall be
irrevocable and shall specify:
(a) the proposed Utilisation Date, which shall be a business day falling
five business days or more after the previous Utilisation Date, if
any, relating to Short-Term Advances and one month or more before the
Termination Date;
(b) whether or not the interest rate relating to the relevant Short-Term
Advances is to be determined by reference to LIBOR or expressed on the
Absolute Basis;
(c) the aggregate amount of the Short-Term Advances in respect of which
offers are requested, which shall be an amount of not less than
$10,000,000 and an integral multiple of $5,000,000 and the Dollar
Amount of which is less than the Available Facility;
(d) the proposed Term of the proposed Short-Term Advances which shall be a
period of one, two, three, six or twelve months (if the interest rate
relating to such Short-Term Advances is to be determined by reference
to LIBOR) or not less than seven days or more than one hundred and
eighty days (if the interest rate relating to such Short-Term Advances
is to be expressed on the Absolute Basis) and, in each case, ending on
a business day falling on or before the Termination Date.
8.3 NOTIFICATION OF BANKS The Short-Term Advances Agent shall, promptly after
receipt by it of a Utilisation Request and in any event no later than 2.00 p.m.
(New York Time) on the fourth business day (or, in the case of Short-Term
Advances the interest rate relating to which is to be expressed on the Absolute
Basis 2.00 p.m. (New York Time) on the second business day) before the proposed
Utilisation Date relating thereto, notify the Banks by telex of its receipt of
such Utilisation Request specifying:
(a) the proposed Utilisation Date;
(b) the Requested Amount and Term of the proposed Short-Term Advances; and
(c) whether or not the interest rate relating to the relevant Short-Term
Advances is to be determined by reference to LIBOR or expressed on the
Absolute Basis;
and inviting each Bank to make an offer or offers to make the proposed
Short-Term Advances.
9. OFFERS FOR SHORT-TERM ADVANCES
9.1 OFFERS BY BANKS Each Bank may (but is not obliged to) make an offer or
offers (not exceeding three) to make any proposed Short-Term Advances by the
delivery to the Short-Term Advances Agent by telex, no later than 11.00 a.m.
(New York Time) on the third business day (or, in the case of Short-Term
Advances the interest rate relating to which is to be determined by reference to
the Absolute Basis, 9.30 a.m. (New York Time) on the business day) before the
proposed Utilisation Date relating to such Short-Term Advances, of a notice
bearing such Bank's name, and the reference "Ahold USA Holdings, Inc -
Short-Term Advances" and specifying:
(a) the Utilisation Request in relation to which the offer or offers
therein contained are made; and
(b) in relation to each offer therein contained the amount of the
Short-Term Advance which such Bank offers to make, which shall be not
less than $5,000,000 and an integral multiple of $1,000,000; and
(c) if the interest rate in relation to such Short-Term Advances is to be
determined by reference to LIBOR, the margin (positive or negative and
expressed as a percentage rounded up, if necessary, to four decimal
places) over or under LIBOR or if the interest rate in relation to
such Short-Term Advances is to be expressed by reference to the
Absolute Basis, the rate of interest per annum expressed as a fixed
annual percentage yield (rounded up, if necessary, and specified in
increments of 1/10,000 of one per cent.) offered for each such
Short-Term Advance.
9.2 SEPARATE OFFERS Each offer made by a Bank pursuant to Clause 9.1 (Offers by
Banks) shall be treated as a separate offer for the purposes hereof and shall be
irrevocable and capable of acceptance by Ahold USA in accordance with the terms
hereof.
9.3 NOTIFICATION TO AHOLD USA The Short-Term Advances Agent shall, as soon as
practicable and in any event no later than 12.30 p.m. (New York Time) on the
third business day (or, in the case of Short-Term Advances the interest rate
relating to which is to be expressed on the Absolute Basis, 10.15 a.m. (New York
Time) on the business day) preceding the proposed Utilisation Date for any
Short-Term Advances, notify Ahold USA by telex or telephone of the offers made
pursuant to the Utilisation Request relating to such Short-Term Advances
specifying, in respect of each offer:
(a) the name of the Bank making such offer;
(b) the amount of the Short-Term Advance offered; and
(c) the relevant margin quote (in the case of Short-Term Advances the
interest rate relating to which is to be determined by reference to
LIBOR) or fixed annual percentage yield (in the case of Short-Term
Advances the interest rate in relation to which is to be determined by
reference to the Absolute Basis).
10. OFFERS BY THE SHORT-TERM ADVANCES AGENT OR ITS AFFILIATES
Notwithstanding the provisions of Clause 9 (Offers for Short-Term Advances), any
Bank which is, or is an affiliate of, the Short-Term Advances Agent may only
make an offer or offers to make Short-Term Advances in response to any
Utilisation Request by notifying its offer or offers to Ahold USA making such
request by telex no later than 10.00 a.m. (New York Time) on the third business
day (or, in the case of Short-Term Advances the interest rate relating to which
is to be expressed on the Absolute Basis, 9.00 a.m. (New York Time) on the
business day) prior to the proposed Utilisation Date for such Short-Term
Advances and any offer by such a Bank which is not so notified to Ahold USA
shall be invalid and shall not be capable of acceptance by Ahold USA.
11. ACCEPTANCE OF OFFERS
11.1 NOTIFICATION BY AHOLD USA OF ACCEPTANCES Ahold USA shall, no later than
1.30 p.m. (New York Time) on the third business day (or, in the case of
Short-Term Advances the interest rate relating to which is to be determined by
reference to the Absolute Basis, 11.30 a.m. (New York Time) on the business day)
prior to the Utilisation Date relating to such Short-Term Advances, notify the
Short-Term Advances Agent by telex or telephone whether or not it wishes to
accept, in whole or in part, the offers made in response to the relevant
Utilisation Request and, if so, the aggregate amount of the Short-Term Advances
the offers in respect of which it wishes to accept, which shall be:
(a) not less than $10,000,000 and an integral multiple of $5,000,000 and
which shall be: -
(i) not more than the Requested Amount specified in such Utilisation
Request; and
(ii) the Dollar Amount of which shall not exceed the Available
Facility.
11.2 ACCEPTED OFFERS Each acceptance by Ahold USA pursuant to Clause 11.1
(Notification by Ahold USA of Acceptances) of the offers made in response to a
Utilisation Request shall be treated as an acceptance of such offers in
ascending order of the yields (in the case of offers made by reference to LIBOR,
calculated in accordance with Clause 9.1 (Offers by Bank)) at which the same
were made but if, as a result thereof, two or more offers at the same yield fall
to be partially accepted, then the amounts of the Short-Term Advances in respect
of which such offers are accepted shall be treated as being the amounts which
bear the same proportion to one another as the respective amounts of the
Short-Term Advances so offered bear to one another but, in each case, rounded as
the Short-Term Advances Agent may consider necessary to ensure that the amount
of each Short-Term Advance is an amount of not less than $5,000,000 and an
integral multiple of $1,000,000.
11.3 NOTIFICATION TO BANKS OF ACCEPTED OFFERS The Short-Term Advances Agent
shall, no later than 3.00 p.m. (New York Time) on the third business day (or, in
the case of Short-Term Advances the interest rate in relation to which is
expressed on the Absolute Basis 3.00 p.m. (New York Time) on the business day)
prior to the Utilisation Date relating to the relevant Short-Term Advances,
notify by telex each Bank which has made an offer in response to such
Utilisation Request whether or not such offer has been accepted in whole or in
part and, if so, the amount of the Short-Term Advance in respect of which such
offer has been accepted and the yield relating thereto.
12. MAKING OF SHORT-TERM ADVANCES
If the Short-Term Advances Agent notifies any Bank in accordance with
Clause 11.3 (Notification to Banks of Accepted Offers) of Ahold USA's
acceptance, in whole or in part, of any offer by such Bank to make any
Short-Term Advance and on the proposed Utilisation Date relating to such
Short-Term Advance:
(i) if the interest rate in respect of such Short-Term Advance is to
be determined by reference to LIBOR, neither of the events
mentioned in Clause 22 (Market Disruption) shall have occurred;
(ii) the Dollar Amount of such Short-Term Advance does not exceed the
Available Facility; and
(iii) either:
(a) no Event of Default or Potential Event of Default has
occurred and is continuing or would result from the making
of such Short-Term Advance; and
(b) the representations set out in Clause 23 (Representations
and Warranties) which are to be repeated pursuant to the
relevant Utilisation Request are true on and as of the
proposed date for the making of such Short-Term Advance and
would continue to be true immediately following the making
of the relevant Short-Term Advance and the application of
the proceeds of thereof in meeting the purpose of such
Short-Term Advance (as if references therein to Original
Financial Statements were references to the most recent set
of annual audited financial statements delivered by each
Borrower to the Facility Agent pursuant to Clause 24
(Undertakings)),
or the respective Bank agrees (notwithstanding any matter
mentioned in (a) and (b) above) to participate in the making of
such Short-Term Advance, then, on such Utilisation Date, such
Bank shall make such Short-Term Advance through its Facility
Office to Ahold USA in accordance with Clause 29 (Payments).
<PAGE>
PART 7
INTEREST
13. INTEREST ON REVOLVING CREDIT ADVANCES
13.1 RATE OF INTEREST The rate of interest applicable to a Revolving Credit
Advance during the Term of such Revolving Credit Advance shall be the rate per
annum determined by the Facility Agent to be the sum of LIBOR relating to such
Revolving Credit Advance and the Margin at such time.
13.2 NOTIFICATION The Facility Agent shall promptly notify the relevant Borrower
and each Bank of each determination made by it pursuant to this Clause 13.
13.3 PAYMENT OF INTEREST On the Repayment Date relating to each Revolving Credit
Advance (and if such Revolving Credit Advance has a Term which exceeds six
months, at the end of each successive six monthly period of such Term) the
relevant Borrower shall pay accrued interest on that Revolving Credit Advance.
14. INTEREST ON SWING-LINE ADVANCES
14.1 RATE OF INTEREST The rate of interest applicable to a Swing-Line Advance on
each day (a "relevant day") during the Term of such Swing-Line Advance shall be
the rate per annum determined by the Swing-Line Agent as at 11.00 a.m. (New York
Time) on the relevant day to be the greater of:
(i) the Prime Rate for such relevant day; and
(ii) the sum of the Federal Funds Rate for such relevant day and the
Swing-Line Margin at such time.
14.2 NOTIFICATION The Swing-Line Agent shall promptly notify the relevant
Borrower and each Swing-Line Bank of each determination made by it pursuant to
Clause 14.1 (Rate of Interest).
14.3 PAYMENT OF INTEREST On the Repayment Date relating to each Swing-Line
Advance the relevant Borrower shall pay accrued interest on that Swing-Line
Advance.
15. INTEREST ON SHORT-TERM ADVANCES
15.1 RATE OF INTEREST The rate of interest applicable to a Short-Term Advance
during the Term of such Short-Term Advance shall be:
(i) (if the interest rate relating to such Short-Term Advance is to be
determined by reference to LIBOR) the rate per annum determined by the
Facility Agent to be the sum of LIBOR relating to such Short-Term
Advance and the margin at which such Short-Term Advance was offered
or, if such margin was negative, the difference between such margin
(taking such margin as a positive number for such purpose) and LIBOR
relating to such Short-Term Advance; or
(ii) (if the interest rate relating to such Short-Term Advance is expressed
on the Absolute Basis) the fixed annual percentage yield at which such
Short-Term Advance was offered.
15.2 PAYMENT OF INTEREST On the Repayment Date relating to each Short-Term
Advance (and if such Short-Term Advance has a Term which exceeds six months, at
the end of each successive six monthly period of such Term) the relevant
Borrower shall pay accrued interest on that Short-Term Advance.
<PAGE>
PART 8
REPAYMENT AND CANCELLATION
16. REPAYMENT OF ADVANCES
16.1 REPAYMENT Each Borrower shall repay each Advance made to it in full on the
Repayment Date relating thereto.
16.2 PREPAYMENT A Borrower may, subject to Clause 27.5 (Broken Periods), if it
gives to the Facility Agent not less than fifteen days' prior written notice to
that effect, prepay the whole of any Advance. Any notice of prepayment shall be
irrevocable, shall specify the date upon which such prepayment is to be made and
the amount of such prepayment and shall oblige such Borrower to make such
prepayment on such date.
16.3 MANDATORY PAYMENT If any Bank claims indemnification from a Borrower under
Clause 18 (Taxes) or Clause 20 (Increased Costs) and within thirty days
thereafter the Facility Agent receives from such Borrower at least ten days'
prior written notice (which shall be irrevocable) of such Borrower's intention
to repay such Bank's share of any Advance, the Borrower shall, subject to Clause
27.5 (Broken Periods), repay such Bank's portion of such Advance.
16.4 REDUCTION OF COMMITMENTS A Bank for whose account a repayment is to be made
under Clause 16.3 (Mandatory Repayment) shall not be obliged to make any
Advances hereunder on or after the date upon which the Facility Agent receives a
Borrower's notice of its intention to repay such Bank's share of any Advance, on
which date such Bank's Available Commitment (and hence its Swing-Line Commitment
and Letter of Credit Commitment) shall be reduced to zero.
16.5 REPAYMENT METHOD None of the Borrowers shall repay all or any part of any
Advance outstanding hereunder except at the times and in the manner expressly
provided herein but shall, save as provided herein, be entitled to reborrow any
amount repaid.
17. CANCELLATION
17.1 CANCELLATION The Principal Company 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 an amount of not less than $25,000,000 and an integral multiple of
$5,000,000) of the Total Commitments. Any such cancellation shall reduce the
Commitment of each Bank rateably.
17.2 IRREVOCABLE INSTRUCTION Any notice of cancellation given by the Principal
Company pursuant to Clause 17.1 (Cancellation) shall be irrevocable and shall
specify the date upon which such cancellation is to be made and the amount of
such cancellation.
17.3 NOTICE The Facility Agent shall promptly notify each of the other Agents
and the Banks of any notice of cancellation received by it from the Borrower
pursuant to Clause 17.1 (Cancellation).
17.4 CANCELLATION OF COMMITMENT If any Bank claims indemnification from the
Principal Company under Clause 18 (Taxes) or Clause 20 (Increased Costs), the
Principal Company may, whilst the relevant circumstances continue and by not
less than ten days' prior written notice to the Facility Agent (which notice
shall be irrevocable), cancel such Bank's Commitment whereupon such Bank shall
cease to be obliged to make Advances and its Commitment (and thereby its
Swing-Line Commitment and its Letter of Credit Commitment, if any) shall be
reduced to zero.
<PAGE>
PART 9
RISK ALLOCATION
18. TAXES
18.1 TAX GROSS-UP All payments to be made by any Obligor to any person hereunder
shall be made free and clear of and without deduction for or on account of tax
unless such Obligor is required to make such a payment subject to the deduction
or withholding of tax, in which case the sum payable by such Obligor in respect
of which such deduction or withholding is required to be made shall be increased
to the extent necessary to ensure that, 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.
18.2 TAX INDEMNITY Without prejudice to the provisions of Clause 18.1 (Tax
Gross-Up), if any person or an 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 an Agent on its behalf (including,
without limitation, any sum received or receivable under this Clause 18) or any
liability in respect of any such payment is asserted, imposed, levied or
assessed against such person or an Agent on its behalf, the Principal Company
shall, upon demand of the relevant Agent, promptly indemnify such person against
such payment or liability, together with any interest, penalties and expenses
payable or incurred in connection therewith.
18.3 CLAIMS BY BANKS Any person intending to make a demand pursuant to
Clause 18.2 (Tax Indemnity) shall notify the Principal Company (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.
18.4 U.S. WITHHOLDING TAXES Each Bank and Agent that is not incorporated under
the laws of the United States of America or a state thereof which is or will be
a lender to Ahold USA agrees that it will deliver to Ahold USA and the Facility
Agent two duly completed copies of United States Internal Revenue Service Form
1001 or 4224 or successor applicable form, as the case may be. Each such Bank
and Agent also agrees to deliver to Ahold USA and the Facility Agent two further
copies of said Form 1001 or 4224 or successor applicable forms or other manner
of certification, as the case may be, on or before the date that any such form
expires or becomes obsolete or after the occurrence of any event requiring a
change in the most recent form previously delivered by it to Ahold USA and the
Facility Agent and such extensions or renewals thereof as may reasonably be
requested by Ahold USA or the Facility Agent, unless in any such case an event
(including, without limitation, any change in treaty, law or regulation) has
occurred prior to the date on which any such delivery would otherwise be
required which renders all such forms inapplicable or which would prevent such
Bank or Agent from duly completing and delivering any such form with respect to
it and such Bank or Agent so advises Ahold USA and (in the case of any Bank) the
Facility Agent. Each such Bank and Agent shall certify that it is entitled to
receive payments from Ahold USA under this Agreement without deduction or
withholding of any United States federal income taxes.
19. TAX RECEIPTS
19.1 NOTIFICATION OF REQUIREMENT TO DEDUCT TAX If, at any time, any Obligor is
required by law to make any deduction or withholding from any sum payable by it
hereunder (or if thereafter there is any change in the rates at which or the
manner in which such deductions or withholdings are calculated), such Obligor
shall promptly notify the Facility Agent upon becoming aware of the same.
19.2 EVIDENCE OF PAYMENT OF TAX If any Obligor makes any payment hereunder in
respect of which it is required to make any deduction or withholding, it shall
pay the full amount required to be deducted or withheld to the relevant taxation
or other authority within the time allowed for such payment under applicable law
and shall deliver to the 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 such Obligor 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.
20. INCREASED COSTS
20.1 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 or
performing its obligations (including its obligation to make Advances
or participate in, or make a payment under, a Letter of Credit) under
this Agreement and/or its participating in or making one or more
Advances or the issuing of or participation in one or more Letters of
Credit;
(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's 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
or payments in respect of Letters of Credit 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 such holding company or 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 or
Letters of Credit issued or to be issued hereunder or its
participation therein and/or to any sum received or receivable by it
hereunder,
then the Principal Company 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 payments in respect of Letters of Credit) or (4) such
liability.
20.2 INCREASED COST CLAIMS A Bank intending to make a claim pursuant to
Clause 20.1 (Increased Costs) 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 Principal Company thereof Provided that nothing
herein shall require such Bank to disclose any confidential information relating
to the organisation of its affairs.
20.3 EXCLUSION OF SWING-LINE For the purposes of this Clause 20 "Bank" does not
include any Bank in its capacity as a Swing-Line Bank and "Advances" does not
include Swing-Line Advances.
20.4 ILLEGALITY If, at any time, it is unlawful for a Bank to make, fund or
allow to remain outstanding all or any of the Advances made or to be made by it
hereunder or to participate in the issue of, or to allow to remain outstanding
all or any of its liabilities under, any of the Letters of Credit, then that
Bank shall, promptly after becoming aware of the same, deliver to the Principal
Company through the Facility Agent a notice to that effect and:
(a) such Bank shall not thereafter be obliged to make any Advances or to
participate in the issue of any Letters of Credit or the Swing-Line
Facility and the amount of its Commitment shall be immediately reduced
to zero; and
(b) if the Facility Agent on behalf of such Bank so requires, the
Principal Company shall procure that the relevant Borrower or
Borrowers shall on such date as the Facility Agent shall have
specified:
(i) repay each outstanding Advance together with accrued interest
thereon and all other amounts owing to such Bank; and/or
(ii) procure that such Bank's obligations under any Letters of Credit
will be reduced to zero or otherwise secured with 100% cash
security (in the currency in which such Letter of Credit is
denominated) in a manner acceptable to such Bank.
20.5 REGULATION D COSTS Each relevant Borrower shall, within seven days of
demand by any Bank (through the Facility Agent), pay to that Bank the amount of
any Regulation D Costs actually incurred by that Bank in respect of any Advance
made by it to that Borrower. Any such demand shall contain reasonable details of
the calculation of the relevant Regulation D Costs.
21. MITIGATION
If, in respect of any Bank, circumstances arise which would or would upon the
giving of notice result in:
(a) the reduction of its Commitment (and thereby its Swing-Line Commitment
and its Letter of Credit Commitment, if any) to zero pursuant to
Clause 20.4(a) (Illegality);
(b) an increase in the amount of any payment to be made to it or for its
account pursuant to Clause 18.1 (Tax Gross-Up); or
(c) a claim for indemnification pursuant to Clause 18.2 (Tax Indemnity) or
Clause 20.1 (Increased Costs),
then, without in any way limiting, reducing or otherwise qualifying the rights
of such Bank or the obligations of any Borrower under any of the Clauses
referred to in (a), (b) or (c) 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.
22. MARKET DISRUPTION
If, in relation to any Revolving Credit Advance or Short-Term Advance the
interest rate in relation to which is to be determined by reference to LIBOR:
(a) the Facility Agent determines that at 11.00 a.m. on the Quotation Date
for such Revolving Credit Advance or Short-Term Advance (i) there is
no screen rate quote for LIBOR and (ii) none or only one of the
Reference Banks was offering to prime banks in the London Interbank
Market deposits in the currency requested for such Revolving Credit
Advance or Short-Term Advance for the proposed duration of the Term
thereof; or
(b) before the close of business in London on the Quotation Date for such
Term 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 the
Dollar Amount of the Outstandings is (or, if such Revolving Credit
Advance or Short-Term 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 13 (Interest on Revolving Credit
Advances) or 15 (Interest on Short-Term Advances):
(i) the Facility Agent shall notify the other parties hereto of such
event;
(ii) such Revolving Credit Advance or Short-Term Advance shall not be
made; and
(iii) if the Facility Agent so requires, within five days of such
notification the Facility Agent and the Principal Company shall
enter into negotiations in good faith with a view to agreeing a
substitute basis for determining the rates of interest which may
be applicable to Revolving Credit Advances or Short-Term Advance
in the future 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 each Bank.
<PAGE>
PART 10
REPRESENTATIONS, WARRANTIES, UNDERTAKINGS AND EVENTS OF DEFAULT
23. REPRESENTATIONS AND WARRANTIES
Each Obligor represents and warrants to the Agents and each of the Banks that:
(i) (in the case of the Principal Company) it is a public company with
limited liability ("naamloze vennootschap") duly incorporated and
validly existing under the laws of The Netherlands, (in the case of
Ahold USA) it is a corporation duly organised and in good standing
under the laws of the State of Delaware and the United States of
America and (in the case of any Additional Borrower) it is a
corporation duly organised and in good standing under the laws of its
jurisdiction of incorporation and has the corporate power to own its
property and assets and to carry on its business as it is now being
conducted;
(ii) it has the corporate power to enter into and perform the Finance
Documents to which it is expressed to be a party and the transactions
contemplated thereby and to borrow and to undertake obligations in
respect of Letters of Credit hereunder and has taken all necessary
actions to authorise the borrowing of Advances and the undertaking of
obligations in respect of Letters of Credit upon the terms and
conditions of this Agreement and to authorise the execution, delivery
and performance of the Finance Documents to which it is expressed to
be a party in accordance with their respective terms;
(iii) each of the Finance Documents to which it is expressed to be a party
constitutes and will at all times constitute its legal, valid and
binding obligations, enforceable in accordance with its 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) its Original 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 (in the case of the
Principal Company) and its jurisdiction of incorporation and The
Netherlands (in the case of any Additional Borrower) and fairly
present its condition and (in the case of the Principal Company) that
of the Group, at such date and its results and (in the case of the
Principal Company) the results of the Group for such year; there has
been no material adverse change in its financial position or in the
financial position of the Group or in the financial position of Ahold
USA and its subsidiaries, taken as a whole, since that date which
might have a material adverse effect on any Obligor's ability to
perform its obligations under any of the Finance Documents to which it
is expressed to be a party, and such accounts included all significant
liabilities (including contingent liabilities);
(vi) since the date on which its Original Financial Statements were
prepared there has been no material adverse change in its (or, in the
case of the Principal Company, the Group's, or, in the case of Ahold
USA, Ahold USA and its subsidiaries) 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;
(vii) no Event of Default or Potential Event of Default has occurred and is
continuing unremedied, nor will any Event of Default or Potential
Events of Default result from the making of any Advance or issue of or
participation by a Bank in any Letter of Credit hereunder;
(viii) its execution, delivery and performance of the Finance Documents to
which it is expressed to be a party and the borrowing of Advances and
the undertaking of obligations in respect of Letters of Credit do not
and will not violate in any respect any provisions of (i) any
applicable law or judgement of The Netherlands, its jurisdiction of
incorporation or any other 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;
(x) all acts, conditions and things required to be done, fulfilled and
performed in order (a) to enable it lawfully to enter into, exercise
its rights under and perform and comply with the obligations expressed
to be assumed by it in the Finance Documents to which it is expressed
to be party, (b) to ensure that the obligations expressed to be
assumed by it in the Finance Documents to which it is expressed to be
party are legal, valid and binding and (c) to make the Finance
Documents to which it is expressed to be party admissible in evidence
in its jurisdiction of incorporation have been done, fulfilled and
performed;
(xi) no member of the Group is in breach of or in default under any
agreement in respect of borrowed money which exceeds $25,000,000 (or
its equivalent) (save, in respect of any guarantees, where liability
under such guarantee is being contested by an Obligor or Material
Subsidiary in good faith) to which it is a party or which is binding
on it or any of its assets;
(xii) all of the written information supplied by it to the Agents, the
Arrangers and the Banks in connection herewith 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 Agents, the
Arrangers 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 (in the case of the Principal Company and Ahold USA)
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 (in the
case of the Principal Company and Ahold USA) 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 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 property;
(xvi) to the best of its knowledge, it is in compliance with all
Environmental Laws and it has obtained, and will at all times obtain,
and is in compliance with, all Environmental Permits;
(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 having to take action to avert the
possibility of any such action or claim;
(xviii) the aggregate liabilities of each Obligor 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 such Obligor;
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 any Obligor, 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 an
Employee Plan (other than routine claims for benefits) which would
cause the Obligor to incur a material liability or to the knowledge of
any Obligor, which could reasonably be expected to be asserted against
or with respect to any Employee Plan which would cause the Obligor to
incur a material liability; each of the Obligors 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 the Obligors 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 Obligor to incur a material liability; and none of
the Obligors 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;
(xix) The borrowings made hereunder will not violate or give rise to a
violation of Regulation U or Regulation X. No member of the Group or
any agent acting on 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 of the Board of
Governors of the Federal Reserve System of the United States or to
violate the US Securities Exchange Act of 1934 or any applicable US
federal or state securities laws; and
(xx) no member of the Group is 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; no member of the Group is
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.
Section 80a-1. et seq.); and none of the transactions contemplated by
this Agreement will violate such Act.
24. UNDERTAKINGS
Each of the Borrowers (unless otherwise specified) undertakes that from and
after the date hereof and until all sums due and to become due from such
Borrower under this Agreement have been paid or repaid and the Facilities shall
no longer exist:
(i)(a) the Principal Company 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 Principal Company)
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 Principal Company) 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) the Principal Company 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 24(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 23
(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 24(i)(b), the Principal Company 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 24(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 24(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 25 (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, at the same time
informing the Facility Agent of any action taken or proposed to be
taken by such 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 24(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 Principal Company 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
sub-clause (iii)) 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 any Obligor
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 an Obligor to perform its obligations under this
Agreement;
(vi) it will use its best endeavours 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 to enable it to perform its
obligations under each Finance Document, or required for the validity
or enforceability of each Finance Document and will comply with the
terms of the same; and
(vii) the Principal Company will ensure at all times the consolidated
financial condition of the Group, as evidenced by the Principal
Company'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: (a) 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 2.50:1.00; and: (b) the ratio of Interest
Bearing Debt minus subordinated loans minus cash to Total Capital
Accounts plus goodwill associated with the acquisition of Stop & Shop
Companies, Inc. is less than 0.785:1.00.
The expressions used in this Clause 24(vii) shall have the meanings
attributed thereto in the consolidated financial statements of the
Group (which shall comply with Clause 24(i) and shall be construed in
accordance with generally accepted accounting principles in The
Netherlands) but so that:
(1) Net Interest Expense shall equal interest expense minus interest
income;
(2) Interest Bearing Debt means loans payable, other loans,
subordinated loans and capitalised lease commitments; and
(3) Total Capital Accounts includes stockholders' equity, minority
interests (if any) and subordinated loans.
Finally, "determined on a rolling four quarter average basis", means
in relation to the ratio referred to in (a) 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 Principal Company;
(viii) 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 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;
(xi) within four days of the receipt of notice of the same, 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 the its business or
assets or that of any of its subsidiaries or to the area in which such
business or assets are situate 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;
(xii) if so required by the Facility Agent, without delay and at the cost of
the Principal Company, take all reasonable or necessary steps to
comply with any such notice or order referred to in Clause 24(xi)
above and at the request of any Bank, without delay and at the cost of
the Principal Company, 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; and
(xiii) 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 obligations to become due
and payable or to enable any one or more of the Banks to take any of
the actions specified in Clause 25.1(a), (b) or (c) below as a result
of any such sale, pledge or disposition.
25. EVENTS OF DEFAULT
25.1 EVENTS OF DEFAULT If:
(i) any Obligor 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 any Obligor 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
(iii) any Obligor 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
(iv) there shall have occurred the liquidation of any of the Obligors 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 any Obligor or any Material Subsidiary or
any Obligor or any Material Subsidiary shall otherwise enter into
liquidation; or
(v) any Obligor 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 any Obligor or any Material Subsidiary or of all or any
part of the assets of any Obligor or any Material Subsidiary; or
(vi) any Obligor 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
any Obligor or any Material Subsidiary are submitted to the control of
its creditors or any Obligor or any Material Subsidiary otherwise
threatens, proposes or declares any moratorium on its debts or any
class of its debts; or
(vii) any Obligor 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) any Obligor 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 any Obligor 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 Principal Company whether by one transaction or a series
of related transactions without the prior written consent of the
Banks; or
(ix) any other indebtedness of any Obligor 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 25.1(ix)
applies, exceed $25,000,000 (or its equivalent) (save, in respect of
any guarantee, where liability under such guarantee is being contested
by such Obligor 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 either of the Borrowers or one or more of its
subsidiaries in complying with a restriction contained in the
documentation governing such indebtedness on the ability of such
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) any Obligor 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 such Obligor or any
Material Subsidiary and the same accordingly becomes enforceable; or
(xi) all or any Substantial part of the assets of any Obligor 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 the performance thereof ceases to be or
is not for any reason in full force and effect or such performance
becomes unlawful; or
(xiii) the whole or any part of the assets, revenues or share capital of any
Obligor or any Material Subsidiary having a value which, when
aggregated with the value of all other assets to which this Clause
25.1(xiii) applies, equals or exceeds 15% of the consolidated net
assets of the Principal Company, is expropriated or nationalised by
any government; or
(xiv) any US Obligor shall (i) file a petition to take advantage of any
insolvency act; (ii) file a petition or answer seeking reorganisation
or arrangement or similar relief under the Federal Bankruptcy Code or
any other applicable law or statute of the United States or any state;
or (iii) by appropriate proceedings of the board of directors, or the
general or limited partners or other governing body of any US Obligor,
authorize the filing of any such petition, making of such assignment
or commencement of such a proceeding; or
(xv) in respect of any US Obligor a court of competent jurisdiction shall
enter an order, judgment or decree appointing a custodian, receiver,
trustee, liquidator or conservator of any US Obligor or of the whole
or any substantial part of its properties, or approve a petition filed
against any US Obligor seeking reorganization or arrangement or
similar relief under the Federal Bankruptcy Code or any other
applicable law or statute of the United States or any state; or if,
under the provisions of any other law for the relief or aid of
debtors, a court of competent jurisdiction shall assume custody or
control of any US Obligor or of the whole or any substantial part of
its properties; or if there is commenced against any US Obligor any
proceeding for any of the foregoing relief and such proceeding or
petition remains undismissed for a period of sixty days; or if any US
Obligor by any act indicates its consent to or approval of any such
proceeding or petition; or
(xvi) with respect to any Obligor 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 Obligor,
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
Borrowers:
(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) - (xv) 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 any Obligor hereunder) or
declare the Advances to be due and payable on demand of the
Facility Agent; and/or
(b) require the relevant Borrower to procure that the obligations of
each of the Banks in respect of each Letter of Credit are
promptly reduced to zero or provide 100% cash security (in the
currency in which such Letter of Credit is denominated) in a
manner acceptable to each Bank in respect thereof (whereupon the
relevant Borrower shall do so); and/or
(c) declare that the Facilities shall be cancelled, whereupon the
same shall be cancelled and the Commitment of each Bank shall be
reduced to zero
(Provided, however, that notwithstanding the above, if there shall occur an
Event of Default under Clause 25.1(xiv) or Clause 25.1(xv) then the obligations
of the Banks to lend hereunder shall automatically terminate and any and all of
the Advances and other obligations shall be immediately due and payable without
any action by the Facility Agent or any Bank).
25.2 FACILITIES DUE ON DEMAND If, pursuant to Clause 25.1 (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
Borrowers 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 Obligors hereunder) or withdraw its
declaration with effect from such date as it may specify in such notice.
<PAGE>
PART 11
GUARANTEE
26. GUARANTEE AND INDEMNITY
26.1 GUARANTEE: PRINCIPAL COMPANY The Principal Company irrevocably and
unconditionally guarantees to the Agents, the Arrangers and the Banks the due
and punctual observance and performance of all the terms, conditions and
covenants on the part of each other Obligor under this Agreement and agrees to
pay to the Facility Agent for its account or for the account of the Banks, the
Arrangers and the other Agents from time to time on demand any and every sum or
sums of money which any such other Obligor is at any time liable to pay to the
Agents, the Arrangers and the Banks or any of them under or pursuant to this
Agreement and which has become due and payable but has not been paid at the time
such demand is made.
26.2 INDEMNITY: PRINCIPAL COMPANY The Principal Company irrevocably and
unconditionally agrees as a primary obligation to indemnify the Agents, the
Arrangers and the Banks from time to time on demand by the Facility Agent from
and against any loss incurred by the Agents, the Arrangers and the Banks or any
of them as a result of any of the obligations of any other Obligor under or
pursuant to this Agreement being or becoming void, voidable, unenforceable or
ineffective as against such Obligor for any reason whatsoever, whether or not
known to the Agents, the Arrangers and the Banks or any of them or any other
person, the amount of such loss being the amount which the person or persons
suffering it would otherwise have been entitled to recover from such Obligor.
26.3 GUARANTEE: AHOLD USA Ahold USA irrevocably and unconditionally guarantees
to the Agents, the Arrangers and the Banks the due and punctual observance and
performance of all the terms, conditions and covenants on the part of the
Principal Company contained in this Agreement and agrees to pay to the Facility
Agent for its account or for the account of the Banks, the Arrangers and the
other Agents from time to time on demand any and every sum or sums of money
which the Principal Company is at any time liable to pay to the Agents, the
Arrangers and the Banks or any of them under or pursuant to this Agreement and
which has become due and payable but has not been paid at the time such demand
is made.
26.4 INDEMNITY: AHOLD USA Ahold USA irrevocably and unconditionally agrees as a
primary obligation to indemnify the Agents, the Arrangers and the Banks from
time to time on demand by the Facility Agent from and against any loss incurred
by the Agents, the Arrangers and the Banks or any of them as a result of any of
the obligations of the Principal Company under or pursuant to this Agreement
being or becoming void, voidable, unenforceable or ineffective as against the
Principal Company for any reason whatsoever, whether or not known to the Agents,
the Arrangers and the Banks or any of them or any other person, the amount of
such loss being the amount which the person or persons suffering it would
otherwise have been entitled to recover from the Principal Company.
26.5 ADDITIONAL SECURITY The obligations of each Guarantor herein contained
shall be in addition to and independent of every other security which the
Agents, the Arrangers and the Banks or any of them may at any time hold in
respect of any obligations of any Obligor hereunder.
26.6 CONTINUING OBLIGATIONS The obligations of each Guarantor herein contained
shall constitute and be continuing obligations notwithstanding any settlement of
account or other matter or thing whatsoever and shall not be considered
satisfied by any intermediate payment or satisfaction of all or any of the
obligations of any Obligor under this Agreement and shall continue in full force
and effect until final payment in full of all amounts owing by each Obligor
hereunder and total satisfaction of all the Obligors' actual and contingent
obligations hereunder.
26.7 OBLIGATIONS NOT DISCHARGED Neither the obligations of each Guarantor herein
contained nor the rights, powers and remedies conferred in respect of such
Guarantor upon the Agents, the Arrangers and the Banks or any of them by this
Agreement or by law shall be discharged, impaired or otherwise affected by:
(a) the winding-up, dissolution, administration or re-organisation of any
other Obligor or any other person or any change in its status,
function, control or ownership;
(b) any of the obligations of any other Obligor or any other person
hereunder or under any other security taken in respect of any of its
obligations hereunder being or becoming illegal, invalid,
unenforceable or ineffective in any respect;
(c) time or other indulgence being granted or agreed to be granted to any
other Obligor in respect of its obligations hereunder or under any
such other security;
(d) any amendment to, or any variation, waiver or release of, any
obligation of any other Obligor hereunder or under any such other
security;
(e) any failure to take, or fully to take, any security contemplated
hereby or otherwise agreed to be taken in respect of any other
Obligor's obligations hereunder;
(f) any failure to realise or fully to realise the value of, or any
release, discharge, exchange or substitution of, any security taken in
respect of any other Obligor's obligations hereunder; or
(g) any other act, event or omission which, but for this Clause 26.7,
might operate to discharge, impair or otherwise affect any of the
obligations of such Obligor herein contained or any of the rights,
powers or remedies conferred upon the Agents, the Arrangers and the
Banks or any of them by this Agreement or by law.
26.8 SETTLEMENT CONDITIONAL Any settlement or discharge between the Guarantors
and the Agents, the Arrangers and the Banks or any of them shall be conditional
upon no security or payment to the Agents, the Arrangers and the Banks or any of
them by any Obligor or any other person on behalf of such Obligor being avoided
or reduced by virtue of any provisions or enactments relating to bankruptcy,
insolvency, liquidation or similar laws of general application for the time
being in force and, if any such security or payment is so avoided or reduced,
the Agents, the Arrangers and the Banks shall each be entitled to recover the
value or amount of such security or payment from such Guarantor subsequently as
if such settlement or discharge had not occurred.
26.9 EXERCISE OF RIGHTS Neither the Agents, the Arrangers and the Banks nor any
of them shall be obliged before exercising any of the rights, powers or remedies
conferred upon them in respect of any Guarantor by this Agreement or by law:
(a) to make any demand of any other Obligor;
(b) to take any action or obtain judgment in any court against any other
Obligor;
(c) to make or file any claim or proof in a winding-up or dissolution of
any other Obligor; or
(d) to enforce or seek to enforce any other security taken in respect of
any of the obligations of any other Obligor hereunder.
26.10 DEFERRAL OF BORROWERS' RIGHTS Each Guarantor agrees that, so long as any
amounts are or may be owed by any other Obligor hereunder or any other Borrower
is under any actual or contingent obligations hereunder, such Guarantor shall
not exercise any rights which it may at any time have by reason of performance
by it of its obligations hereunder:
(a) to be indemnified by any other Obligor; and/or
(b) to claim any contribution from any other Obligor or any other
guarantor of any other Obligor's obligations hereunder; and/or
(c) to take the benefit (in whole or in part and whether by way of
subrogation or otherwise) of any rights of the Agents, the Arrangers
and the Banks hereunder or of any other security taken pursuant to, or
in connection with, this Agreement by all or any of the Agents, the
Arrangers and the Banks.
26.11 SUSPENSE ACCOUNTS All moneys received, recovered or realised by a Bank by
virtue of Clause 26.1 (Guarantee: Principal Company) or Clause 26.3 (Guarantee:
Ahold USA) or Clause 26.2 (Indemnity: Principal Company) or Clause 26.4
(Indemnity) may, in that Bank's discretion, be credited to a suspense or
impersonal account and may be held in such account for so long as such Bank
thinks fit pending the application from time to time (as such Bank may think
fit) of such moneys in or towards the payment and discharge of any amounts owing
by any of the Obligors to such Bank hereunder.
<PAGE>
PART 12
DEFAULT INTEREST AND INDEMNITY
27. DEFAULT INTEREST AND INDEMNITY
27.1 DEFAULT INTEREST PERIODS If any sum due and payable by any of the Obligors
hereunder (other than in relation to a Swing-Line Advance) is not paid on the
due date therefor in accordance with the provisions of Clause 29 (Payments) or
if any sum due and payable by any of the Obligors under any judgment of any
court in connection herewith is not paid on the date of such judgment, the
period beginning on such due date or, as the case may be, the date of such
judgment and ending on the date upon which the obligation of such Obligor to pay
such sum (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 shall be of such duration (not exceeding three months) as the
Facility Agent may select (except as otherwise provided in this Clause 27).
27.2 DEFAULT INTEREST During each such period relating thereto as is mentioned
in Clause 27.1 (Default Interest Periods) an unpaid sum referred to in Clause
27.1 shall bear interest at the rate per annum which is the sum from time to
time of two per cent., the Margin and LIBOR determined in respect of such unpaid
sum for such period Provided that:
(a) 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 two per cent., the 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
(b) if such unpaid sum is all or part of a Revolving Credit or Short-Term
Advance which became due and payable on a day other than the last day
of the Term thereof, the first such period applicable thereto shall be
of a duration equal to the unexpired portion of that Term 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.
27.3 SWING-LINE DEFAULT INTEREST If any sum due and payable by the Borrower
hereunder in respect of a Swing-Line Advance is not paid on the due date
therefor in accordance with the provisions of Clause 29 (Payments) or if any sum
due and payable by the Borrower under any judgment of any court in connection
with any Swing-Line Advance is not paid on the date of such judgment, then
interest shall accrue on such sum on each day (a "relevant day") from and
including the due date thereof or the date of such judgment (as the case may be
) until (but excluding) the date of actual payment at a rate per annum (as
determined by the Swing-Line Agent at 11.00 a.m. on each such relevant day)
equal to the sum of two per cent. and the greater of:
(i) the Prime Rate for such relevant day; and
(ii) the sum of the Federal Funds Rate for such relevant day and the
Swing-Line Margin.
27.4 PAYMENT OF DEFAULT INTEREST Any interest which shall have accrued under
Clause 27.2 (Default Interest) and Clause 27.3 (Swing-Line Default Interest) in
respect of any sum shall be due and payable and shall be paid by the Obligor
owing such sum 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 such Obligor.
27.5 BROKEN PERIODS If any Bank or the Facility Agent on its behalf receives or
recovers all or any part of an Advance made by such Bank otherwise than on the
last day of the Term thereof, the Obligor to whom such Advance was made shall
pay to the Facility Agent on demand for account of such Bank an amount equal to
the amount (if any) by which (a) the additional interest which would have been
payable on the amount so received or recovered had it been received or recovered
on the last day of the Term thereof exceeds (b) 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 the Term thereof in respect of a deposit in the currency of
the amount so received or recovered equal to the amount so received or recovered
placed by it with a prime bank in London for a period starting on the third
business day following the date of such receipt or recovery and ending on the
last day of the Term thereof.
27.6 THE PRINCIPAL COMPANY'S INDEMNITY The Principal Company undertakes to
indemnify:
(a) each of the Agents, 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 any of the Obligors hereunder;
(b) each Agent against any loss it may suffer as a result of its entering
into, or performing, any foreign exchange contract for the purposes of
Part 13; and
(c) each Bank against any loss it may suffer as a result of its funding an
Advance requested by any of the Borrowers hereunder but not made by
reason of the operation of any one or more of the provisions hereof.
27.7 UNPAID SUMS AS ADVANCES Any unpaid sum shall (for the purposes of this
Clause 27 and Clause 20.1 (Increased Costs)) be treated as an advance and
accordingly in this Clause 27 and Clause 20.1 (Increased Costs) the term
"Advance" includes any unpaid sum and "Term", in relation to an unpaid sum,
includes each such period relating thereto as is mentioned in Clause 20.1
(Default Interest Periods).
<PAGE>
PART 13
PAYMENTS
28. CURRENCY OF ACCOUNT AND PAYMENT
28.1 CURRENCY OF ACCOUNT The dollar is the currency of account and payment for
each and every sum at any time due from any of the Obligors hereunder Provided
that:
(a) each repayment of an Advance or a part thereof shall be made in the
currency in which such Advance is denominated at the time of that
repayment;
(b) each payment in respect of a Letter of Credit shall be made in the
currency in which such Letter of Credit is denominated;
(c) each payment of interest shall be made in the currency in which the
sum in respect of which such interest is payable is denominated;
(d) each payment in respect of costs and expenses shall be made in the
currency in which the same were incurred;
(e) each payment pursuant to Clause 18.2 (Tax Indemnity) or Clause 20.1
(Increased Costs) shall be made in the currency specified by the party
claiming thereunder; and
(f) any amount expressed to be payable in a currency other than dollars
shall be paid in that other currency.
28.2 CURRENCY INDEMNITY If any sum due from any of the Obligors 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 such
Obligor, (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 or if any
such sum is paid in the second currency, the Principal Company shall indemnify
and hold harmless each of the persons to whom such sum is due from and against
any loss suffered 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.
29. PAYMENTS
29.1 PAYMENTS TO THE AGENTS On each date on which this Agreement requires an
amount to be paid by any Obligor or any of the Banks hereunder, such Obligor or,
as the case may be, such Bank shall make the same available to the Facility
Agent or, in the case of an amount to be paid in an Optional Currency, the
Multicurrency Facility Agent:
(a) where such amount is denominated in dollars, 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 323510027 with The Chase Manhattan Bank, New York,
N.Y., United States of America under account name Ahold USA Holdings,
Inc. and ABA Number 021000021 (or such other account or bank as the
Facility Agent may have specified for this purpose); or
( b) where such amount is denominated in an Optional Currency, by payment
in such Optional Currency and in immediately available, freely
transferable, cleared funds to such account with such bank in the
principal financial centre of the country of such Optional Currency as
the Multicurrency Facility Agent shall have specified for this
purpose.
Any payment received by any Agent from any Obligor in accordance with the
foregoing shall, without prejudice to such Agent's or any Bank's rights to
reclaim or reassert its rights to payment from the Obligors of any amount which
such Agent or such Bank is required to repay to the Obligors for any reason,
constitute fulfilment by the Obligors of its obligation to make such payment
hereunder.
29.2 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 any or all
of the Obligors to make any payments hereunder in the manner specified in
Clause 29.1 (Payments to the Agents), then such Obligor 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, such Obligor shall be obliged to make all payments due
to such Bank in the manner specified herein. Upon reaching such agreement such
Obligor and such Bank shall immediately notify the appropriate Agent thereof and
shall thereafter promptly notify such Agent of all payments made direct to such
Bank.
29.3 PAYMENTS BY THE AGENTS Save as otherwise provided herein, each payment
received by any Agent for the account of another person pursuant to Clause 29.1
(Payments to the Agents) shall:
(a) in the case of a payment received for the account of any Obligor, be
made available by such Agent to such Obligor by application:
(i) first, in or towards payment (on the date, and in the currency
and funds, of receipt) of any amount then due from such Obligor
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
(ii) secondly, in or towards payment (on the date, and in the currency
and funds, of receipt) to such account with such bank in the
principal financial centre of the country of the currency of such
payment as such Obligor shall have previously notified to such
Agent for this purpose; and
(b) in the case of any other payment, be made available by such 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 such Agent.
29.4 PAYMENTS UNDER THE SHORT-TERM ADVANCES FACILITY In the case of the
acceptance of an offer pursuant to Clause 11 (Acceptance of Offers) for
Short-Term Advances the provisions of Clause 29.1 (Payments to the Agents) shall
not apply to the making of the relevant Short-Term Advance by the relevant Bank
or the repayment thereof or the payment of any interest thereon on or prior to
its Repayment Date. All such payments shall be paid directly to the relevant
Obligor by the relevant Bank or, as the case may be, by the relevant Obligor to
the relevant Bank, in each case, in such manner as the relevant Obligor and the
relevant Bank shall agree. The relevant Bank shall promptly notify the
Short-Term Advances Agent if any payment referred to in this Clause 29.4 is not
met in full on its due date specifying the amount and currency of any shortfall.
29.5 NO SET-OFF All payments required to be made by any of the Obligors
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.
29.6 CLAWBACK Where a sum is to be paid hereunder to an Agent for account of
another person, such 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 were so made available shall
on request refund the same to such Agent together with an amount sufficient to
indemnify such 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.
30. SET-OFF
30.1 CONTRACTUAL SET-OFF Each of the Obligors authorises each Bank to apply and
each Bank shall be entitled to set-off any credit balance to which such Obligor
is entitled on any account of such Obligor with that Bank in satisfaction of any
sum due and payable from such Obligor 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.
30.2 SET-OFF NOT MANDATORY No Bank shall be obliged to exercise any right given
to it by Clause 30.1 (Contractual Set-off).
31. SHARING
31.1 REDISTRIBUTION OF PAYMENTS Subject to Clause 31.3 (Recoveries Through Legal
Proceedings), 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 any of the
Obligors 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 the Bank or Banks so receiving or recovering the
smallest proportion thereof, then:
(a) such Recovering Bank shall pay to the relevant Agent an amount equal
to such excess amount;
(b) there shall thereupon fall due from such Obligor to such Recovering
Bank an amount equal to the amount paid out by such Recovering Bank
pursuant to paragraph (a) 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
(c) such Agent shall treat the amount received by it from such Recovering
Bank pursuant to paragraph (a) above as if such amount had been
received by it from such Obligor 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 paragraph (a)(i) of Clause 29.3 (Payments by the Agents)
such portion of such excess amount as is so attributable shall not be required
to be shared pursuant hereto.
31.2 REPAYABLE RECOVERIES If any sum (a "relevant sum") received or recovered by
a Recovering Bank in respect of any amount owing to it by any of the Obligors
becomes repayable and is repaid by such Recovering Bank, then:
(a) each Bank which has received a share of such relevant sum by reason of
the implementation of Clause 31.1 (Redistribution of Payments) shall,
upon request of the relevant Agent, pay to such Agent for account of
such Recovering Bank an amount equal to its share of such relevant
sum; and
(b) there shall thereupon fall due from such Obligor to each such Bank an
amount equal to the amount paid out by it pursuant to paragraph (a)
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.
31.3 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 31.1 (Redistribution of
Payments)), 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.
<PAGE>
PART 14
FEES, COSTS AND EXPENSES
32. FEES
32.1 FACILITY FEE The Principal Company shall pay to the Facility Agent for
account of each Bank a facility fee on the amount of the Total Commitments from
time to time during the period (the "relevant period") beginning on the date
hereof and ending on the Termination Date, such facility fee to be calculated:
(i) in respect of the period commencing on the date hereof and ending on
the date which is the fifth anniversary of the date hereof, at the
rate of 0.10 per cent. per annum; and
(ii) thereafter, at the rate of 0.1125 per cent. per annum.
and to be payable in arrear on the last day of each successive period of three
months which ends during the relevant period and on the Termination Date.
32.2 PARTICIPATION FEE The Principal Company shall pay to the Facility Agent for
the account of the Arrangers and the Banks the fees specified in the mandate
letter signed by the Borrower on 18 November 1996 at the times, and in the
amounts, specified in such letter.
32.3 AGENCY FEE The Principal Company 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 Principal Company at the times, and in the amounts,
specified in such letter.
33. COSTS AND EXPENSES
33.1 TRANSACTION EXPENSES The Principal Company shall, on demand of the Facility
Agent, reimburse each of the Agents and the Arrangers 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.
33.2 PRESERVATION AND ENFORCEMENT OF RIGHTS The Principal Company shall, from
time to time on demand of the Facility Agent, reimburse each of the Agents, the
Arrangers 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 Agents, the Arrangers and
the Banks under this Agreement.
33.3 STAMP TAXES The Principal Company 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 Agents,
the Arrangers and the Banks against any liabilities, costs, claims and expenses
resulting from any failure to pay or any delay in paying any such tax.
33.4 AGENTS' COSTS The Principal Company shall, from time to time on demand of
the Facility Agent (and without prejudice to the provisions of Clause 33.2
(Preservation and Enforcement of Rights) and Clause 38.2 (Amendment Costs))
compensate each of the Agents at such daily and/or hourly rates as such 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 such 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 Borrowers or any of them in connection with:
(a) the granting or proposed granting of any waiver or consent requested
hereunder by the Borrowers or any of them;
(b) any actual, potential or suspected breach by the Borrowers or any of
them 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 Borrowers
or any of them.
33.5 BANKS' LIABILITIES FOR COSTS If the Principal Company fails to perform any
of its obligations under this Clause 33, each Bank shall, in its Proportion,
indemnify each of the Agents and the Arrangers against any loss incurred by
either of them as a result of such failure and the Principal Company shall
forthwith reimburse each Bank for any payment made by it pursuant to this
Clause 33.5.
<PAGE>
PART 15
AGENCY PROVISIONS
34. THE AGENTS, THE ARRANGERS AND THE BANKS
34.1 APPOINTMENT OF THE AGENTS Each of the Arrangers and the Banks hereby
appoints each of the Agents, and each of the Agents hereby appoints the Facility
Agent, to act as its agent in connection herewith and authorises such Agent to
exercise such rights, powers, authorities and discretions as are specifically
delegated to such Agent by the terms hereof together with all such rights,
powers, authorities and discretions as are reasonably incidental thereto.
34.2 AGENT'S DISCRETIONS Each Agent may:
(a) assume that:
(i) any representation made by any of the Borrowers in connection
herewith is true;
(ii) no Event of Default or Potential Event of Default has occurred;
(iii) none of the Borrowers is in breach of or default under its
obligations hereunder; and
(iv) 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 such Agent has, in its capacity as agent hereunder, actual
knowledge of or received actual notice to the contrary from any other
party hereto;
(b) assume that the Facility Office or, as the case may be, each 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;
(c) 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;
(d) rely as to any matters of fact which might reasonably be expected to
be within the knowledge of any of the Obligors upon a certificate
signed by or on behalf of such Obligor;
(e) rely upon any communication or document believed by it to be genuine;
(f) refrain from exercising any right, power or discretion vested in it as
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
(g) 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.
34.3 AGENT'S OBLIGATIONS Each Agent shall:
(a) promptly inform each Bank of the contents of any notice or document
received by it in its capacity as Agent from any of the Obligors
hereunder;
(b) promptly notify each Bank of the occurrence of any Event of Default or
any default by any of the Borrowers in the due performance of or
compliance with its obligations under this Agreement of which such
Agent has actual knowledge or received actual notice from any other
party hereto;
(c) save as otherwise provided herein, act as 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
(d) if so instructed by an Instructing Group, refrain from exercising any
right, power or discretion vested in it as agent hereunder unless such
right, power or discretion is vested in such Agent in its individual
capacity hereunder or is a right, power or discretion that may be
exercised against the Arrangers, any other Agent, the Banks or any of
them.
34.4 EXCLUDED OBLIGATIONS Notwithstanding anything to the contrary expressed or
implied herein, neither any Agent nor any of the Arrangers shall:
(a) be bound to enquire as to:
(i) whether or not any representation made by any of the Borrowers in
connection herewith is true;
(ii) the occurrence or otherwise of any Event of Default or Potential
Event of Default;
(iii) the performance by any of the Borrowers of its obligations
hereunder; or
(iv) any breach of or default by any of the Borrowers of or under its
obligations hereunder;
(b) be bound to account to any Bank for any sum or the profit element of
any sum received by it for its own account;
(c) 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
(d) be under any obligations or fiduciary duties other than those for
which express provision is made herein.
34.5 INDEMNIFICATION Each Bank shall, in its Proportion, from time to time on
demand by any Agent, indemnify such Agent, against any and all costs, claims,
losses, expenses (including legal fees) and liabilities together with any VAT
thereon which such Agent may incur in acting in its capacity as agent hereunder
to the extent the same are not paid by any of the Obligors. Each Bank shall,
following any payment made by it under this Clause 34.5, be entitled to recover
from an Agent any amount which it establishes has been paid by it to such Agent
pursuant to this Clause 34.5 in respect of costs, claims, losses, expenses
(including legal fees) and liabilities incurred by such Agent as a result of
such Agent's own gross negligence or wilful misconduct in acting in its capacity
as agent hereunder.
34.6 EXCLUSION OF LIABILITIES None of the Agents and the Arrangers accepts any
responsibility for the accuracy and/or completeness of any information supplied
by any of the Borrowers in connection herewith or for the legality, validity,
effectiveness, adequacy or enforceability of this Agreement and none of the
Agents and the Arrangers 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.
34.7 NO ACTIONS Each of the Banks agrees that it will not assert or seek to
assert against any director, officer or employee of any Agent or any Arranger
any claim it might have against any of them in respect of the matters referred
to in Clause 34.6 (Exclusion of Liabilities).
34.8 BUSINESS WITH THE GROUP Each of the Agents and the Arrangers may accept
deposits from, lend money to and generally engage in any kind of banking or
other business with any member of the Group.
34.9 RESIGNATION Each 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 such Agent is
appointed in accordance with the succeeding provisions of this Clause 34.
34.10 REMOVAL OF AGENT An Instructing Group may remove any Agent from its
appointment hereunder as 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 such Agent is
appointed in accordance with the succeeding provisions of this Clause 34.
34.11 SUCCESSOR AGENT If an Agent gives notice of its resignation pursuant to
Clause 34.9 (Resignation), then any reputable and experienced bank or other
financial institution may be appointed as a successor to such Agent by an
Instructing Group during the period of such notice but, if no such successor is
so appointed, such Agent may appoint such a successor itself.
34.12 NEW AGENT If an Instructing Group removes an Agent from its appointment
hereunder pursuant to Clause 34.10 (Removal of Agent), then any reputable and
experienced bank or other financial institution may be appointed, after
consultation with the Principal Company, as a successor to such Agent by an
Instructing Group.
34.13 RIGHTS AND OBLIGATIONS If a successor to an Agent is appointed under the
provisions of Clause 34.11 (Successor Agent) or Clause 34.12 (New Agent), then
(a) the retiring Agent shall be discharged from any further obligation hereunder
but shall remain entitled to the benefit of the provisions of this Clause 34 and
(b) 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.
34.14 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 each Borrower and the
Group and, accordingly, each Bank warrants to each of the Agents and the
Arrangers that it has not relied on and will not hereafter rely on any of the
Agents and the Arrangers:
(a) to check or enquire on its behalf into the adequacy, accuracy or
completeness of any information provided by any of the Borrowers 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 any Agent or Arranger); or
(b) to assess or keep under review on its behalf the financial condition,
creditworthiness, condition, affairs, status or nature of any member
of the Group.
34.15 SEPARATION OF DEPARTMENTS In acting as Agent and/or Arranger for the
Banks, the agency department of each of the Agents and the Arrangers shall be
treated as a separate entity from any other of its divisions or departments and,
notwithstanding the foregoing provisions of this Clause 34, in the event that an
Agent or, as the case may be, an 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 such Agent or, as the case may be, such Arranger in such
other capacity may be treated as confidential by such Agent or, as the case may
be, such Arranger and shall not constitute actual knowledge of any matter for
the purposes of Clause 34.2.
34.16 THE SHORT-TERM ADVANCES Agent Ahold USA hereby appoints the Short-Term
Advances Agent to act as its agent in connection with this Agreement and
authorises the Short-Term Advances Agent to exercise such rights, powers and
discretions as are specifically delegated to the Short-Term Advances Agent by
the terms of this Agreement together with all such rights, powers and
discretions as are reasonably incidental thereto.
34.17 EXONERATION OF SHORT-TERM ADVANCES AGENT The Short-Term Advances Agent
shall comply with the obligations expressly undertaken by it hereunder Provided
that the accidental failure by the Short-Term Advances Agent to give any notice
to any Bank of a Short-Term Advances Request delivered to it hereunder or to
give any notice to Ahold USA of any offer for Short-Term Advances received by it
hereunder shall not constitute a breach of the Short-Term Advances Agent's
obligations hereunder nor shall any other party hereto be entitled to require
such failure to be rectified after the latest time for the giving of the
relevant notice hereunder.
34.18 INDEMNITY Ahold USA shall, on demand by the Short-Term Advances Agent,
indemnify the Short-Term Advances Agent against any and all reasonable costs,
claims, expenses (including reasonable legal fees) and liabilities which the
Short-Term Advances Agent may incur, otherwise than by reason of its own
negligence or wilful misconduct, in acting in its capacity as Short-Term
Advances Agent under this Agreement.
<PAGE>
PART 16
ASSIGNMENTS AND TRANSFERS
35. ASSIGNMENTS AND TRANSFERS
35.1 BINDING AGREEMENT This Agreement shall be binding upon and enure to the
benefit of each party hereto and its or any subsequent successors, Transferees
and assigns.
35.2 NO ASSIGNMENTS AND TRANSFERS BY THE OBLIGORS None of the Obligors shall be
entitled to assign or transfer all or any of its rights, benefits and
obligations hereunder.
35.3 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 35.5 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
Principal Company (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 35.3) a Bank shall be entitled to assign and/or transfer part
of its Participation hereunder only in an amount equal to or exceeding
$10,000,000 and then only if it retains a Participation of not less than
$25,000,000.
35.4 ASSIGNMENTS BY BANKS If any Bank assigns all or any of its rights and
benefits hereunder in accordance with Clause 35.3 (Assignments and Transfers by
Banks), then, unless and until the assignee has agreed with the Principal
Company, the Agents, the Arrangers 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 Agents, the Arrangers 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 relevant
Obligors.
35.5 TRANSFERS BY BANKS If any Bank wishes to transfer all or any of its rights,
benefits and/or obligations hereunder as contemplated in Clause 35.3
(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 Obligors (and
each of the Obligors hereby irrevocably appoints the Facility Agent as its 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 each of the Obligors 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
Obligors (which signature the Facility Agent agrees to complete promptly upon
receipt of the relevant Transfer Certificate in accordance with this Clause 35):
(a) to the extent that in such Transfer Certificate the Bank party thereto
seeks to transfer its rights, benefits and obligations hereunder each
of the Obligors and such Bank shall be released from further
obligations towards one another hereunder and their respective rights
against one another shall be cancelled (such rights, benefits and
obligations being referred to in this Clause 35.5 as "discharged
rights and obligations");
(b) each of the Obligors 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 such Obligor and such Transferee have assumed and/or
acquired the same in place of such Obligor and such Bank;
(c) the Agents, the Arrangers, 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;
(d) such Transferee shall become a party hereto as a "Bank" and will also
be deemed to have appointed the Agents as its Agent in accordance with
the terms of this Agreement; and
(e) to the extent that in such Transfer Certificate the Bank party thereto
seeks to transfer its Commitment, the Transferee shall replace such
Bank in respect of any relevant Letter of Credit.
Receipt of a Transfer Certificate by the Facility Agent shall also constitute
notice to the Obligors 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.
35.6 TRANSFER FEE On the date upon which a transfer takes effect pursuant to
Clause 35.5 (Transfers by Banks) the Transferee in respect of such transfer
shall pay to the Facility Agent for its own account a transfer fee of $1,000.
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.
35.7 EXCESS AMOUNTS 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 a 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
such Borrower shall not be obliged to pay the amount of such excess.
35.8 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 Borrowers and the Group as such Bank shall consider appropriate.
<PAGE>
PART 17
MISCELLANEOUS
36. CALCULATIONS AND EVIDENCE OF DEBT
36.1 BASIS OF ACCRUAL Interest and the facility 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.
36.2 ACCRUAL OF LETTER OF CREDIT COMMISSION Letter of credit commission in
respect of any Letter of Credit, and any period of the Term thereof determined
pursuant to Clause 6 (Letters of Credit Fees and Fronting Fee), shall be
calculated on the basis of a year of 360 days and the actual number of days in
such period.
36.3 QUOTATIONS If on any occasion a Reference Bank or Bank fails to supply any
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 such Agent.
36.4 EVIDENCE OF DEBT Each Bank shall maintain in accordance with its usual
practice accounts evidencing the amounts from time to time lent by and owing to
it hereunder.
36.5 CONTROL ACCOUNTS The Facility Agent shall maintain on its books a control
account or accounts in which shall be recorded (a) the amount of any Advance
made or arising hereunder (and the name of the Bank to whom such sum relates and
each Bank's share therein) and the face amount of any Letter of Credit issued
(and each Bank's share therein) as the case may be, (b) the amount of all
principal, interest and other sums due or to become due from any of the
Borrowers to any of the Banks hereunder and each Bank's share therein and (c)
the amount of any sum received or recovered by any Agent hereunder and each
Bank's share therein. The Facility Agent shall, upon request of any Borrower,
deliver to such Borrower statements of the accounts referred to in this Clause
36.5.
36.6 PRIMA FACIE EVIDENCE In any legal action or proceeding arising out of or in
connection with this Agreement, the entries made in the accounts maintained
pursuant to Clause 36.4 (Evidence of Debt) and Clause 36.5 (Control Accounts)
shall be prima facie evidence of the existence and amounts of the obligations of
the Borrowers therein recorded.
36.7 CERTIFICATES OF BANKS A certificate of a Bank as to (a) the amount by which
a sum payable to it hereunder is to be increased under Clause 18.1 (Tax
Gross-up) or (b) the amount for the time being required to indemnify it against
any such cost, payment or liability as is mentioned in Clause 18.2 (Tax
Indemnity) or Clause 20.1 (Increased Costs) or Clause 27.5 (Broken Periods) or
Clause 28.2 (Currency Indemnity) shall be conclusive evidence for the purposes
of this Agreement save in the case of manifest error.
36.8 AGENTS' CERTIFICATES A certificate of any Agent as to the amount at any
time due from any Borrower hereunder or the amount which, but for any of the
obligations of any Borrower hereunder being or becoming void, voidable,
unenforceable or ineffective, at any time would have been due from such Borrower
hereunder shall, in the absence of manifest error, be conclusive for the
purposes of Part 11 (Guarantee).
37. REMEDIES AND WAIVERS, PARTIAL INVALIDITY
37.1 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.
37.2 PARTIAL INVALIDITY If, at any time, any provision hereof is or becomes
illegal, invalid or unenforceable in any respect under the law of any
jurisdiction, neither the legality, validity or enforceability of the remaining
provisions hereof nor the legality, validity or enforceability of such provision
under the law of any other jurisdiction shall in any way be affected or impaired
thereby.
38. AMENDMENTS
38.1 AMENDMENTS With the prior written consent of an Instructing Group, the
Facility Agent and the Principal Company 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 Agents, the Arrangers and the Banks or of any Obligor
hereunder, and, at the request of the Principal Company with the prior consent
of an Instructing Group, the Facility Agent on behalf of the other Agents, the
Arrangers and the Banks may execute and deliver to the Principal Company 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 Additional Borrower,
Instructing Group, Margin, Swing-Line Margin or Termination Date;
(b) amend, modify or waive any provision which requires the prior
written consent of the Banks, Clause 32 (Fees), Clause 35.2 (No
Assignments and Transfers by the Obligors) or this Clause 38;
(c) change the principal or currency of any Advance or Letter of
Credit or extend the Term thereof;
(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 Agents, the Arrangers and the Banks
hereunder;
(e) increase the amount of the Total Commitments; or
(f) release any Guarantor from all or any of its obligations
hereunder;
(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 38; or
(b) otherwise amend, modify or waive any of the Agents' or the
Arrangers' rights hereunder or subject any 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.
38.2 AMENDMENT COSTS If the Principal Company requests any amendment,
supplement, modification or waiver in accordance with Clause 38.1, then the
Principal Company shall, on demand of the Facility Agent, reimburse the Facility
Agent for all reasonable costs and expenses (including reasonable 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 38.1.
39. NOTICES
39.1 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 Borrowers shall indemnify each of the Agents, the Arrangers
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 any Borrower not
being actually received by or delivered to the intended recipient thereof or any
telefax communication purporting to originate from any Borrower being made or
delivered fraudulently.
39.2 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:
(a) any communication or document to be made or delivered to any Agent
shall be effective only when received by such Agent and then only if
the same is expressly marked for the attention of the department or
officer identified with such Agent's signature below (or such other
department or officer as such Agent shall from time to time specify
for this purpose); and
(b) 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.
39.3 COMMUNICATIONS 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 any Agent by a Borrower shall be signed by the
person or persons authorised by such 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 such Agent to such Borrower.
39.4 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.
<PAGE>
PART 18
LAW AND JURISDICTION
40. LAW AND JURISDICTION
40.1 DUTCH LAW This Agreement shall be governed by, and shall be construed in
accordance with, laws of The Netherlands.
40.2 ENGLISH COURTS Each of the parties hereto irrevocably agrees for the
benefit of each of the Agents, 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 (respectively "Proceedings" and "Disputes") and, for such
purposes, irrevocably submits to the jurisdiction of such courts.
40.3 DUTCH COURTS Each of the Obligors irrevocably agrees for the benefit of
each of the Agents, 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 and, for such purposes,
irrevocably submits to the jurisdiction of such courts.
40.4 NEW YORK COURTS Each of the Obligors irrevocably agrees that the courts of
the State of New York and the courts of the United States of America, in each
case sitting in the County of New York, shall have jurisdiction to hear and
determine any Proceedings and to settle any Disputes and, for such purposes,
irrevocably submits to the jurisdiction of such courts.
40.5 APPROPRIATE FORUM Each of the Obligors irrevocably waives any objection
which it might now or hereafter have to the courts referred to in Clause 40.2
(English Courts), Clause 40.3 (Dutch Courts) and Clause 40.3 (New York Courts)
being nominated as the forum to hear and determine any Proceedings and to settle
any Disputes and agrees not to claim that any such court is not a convenient or
appropriate forum.
40.6 SERVICE OF PROCESS Each of the Obligors 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 Legibus
Secretaries Limited at 200 Aldersgate Street, London EC1A 4JJ and (ii) in
connection with any suit, action or proceeding in New York, to CT Corporation
System at 1633 Broadway, New York N.Y. 10019, United States of America. If the
appointment of the person mentioned in this Clause 40.6 ceases to be effective
each Obligor 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 such
Obligor. Nothing contained herein shall affect the right to serve process in any
other manner permitted by law.
40.7 NON-EXCLUSIVE SUBMISSIONS The submission to the jurisdiction of the courts
referred to in Clause 40.2 (English Courts), Clause 40.3 (Dutch Courts) and
Clause 40.4 (New York Courts) shall not (and shall not be construed so as to)
limit the right of the Agents, the Arrangers and the Banks or any of them to
take Proceedings against any of the Obligors 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.
40.8 CONSENT TO ENFORCEMENT Each of the Obligors hereby consents generally in
respect of any Proceedings to the giving of any relief or the issue of any
process in connection with such Proceedings 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 Proceedings.
40.9 WAIVER OF IMMUNITY To the extent that any of the Obligors 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), such
Obligor 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 and, in particular, to the
intent that in any Proceedings taken in New York the foregoing waiver of
immunity shall have effect under and be construed in accordance with the United
States Foreign Sovereign Immunities Act of 1976.
AS WITNESS the hands of the duly authorised representatives of the parties
hereto the day and year first before written.
<PAGE>
THE FIRST SCHEDULE
The Banks
Part 1
The Revolving Credit Banks
Commitment ($)
ABN AMRO Bank N.V. 61,000,000
The Chase Manhattan Bank 61,000,000
Morgan Guaranty Trust Company of New York 61,000,000
The First National Bank of Boston 57,000,000
Bayerische Landesbank International S.A. 57,000,000
Citibank N.A., Amsterdam Branch 57,000,000
Deutsche Bank AG 57,000,000
Fleet National Bank 57,000,000
Dai-Ichi Kangyo Bank Nederland N.V. 57,000,000
ING Bank N.V. 57,000,000
Rabobank International, Utrecht Branch 57,000,000
SBC 57,000,000
Union Bank of Switzerland 57,000,000
Westdeutsche Landesbank Girozentrale, London Branch 57,000,000
The Bank of New York 38,000,000
Banque Paribas Nederland N.V. 38,000,000
Barclays Bank plc (CLAD) UK 38,000,000
The First National Bank of Chicago 38,000,000
Kredietbank (Nederland) N.V. 38,000,000
<PAGE>
Part 2
The Swing-Line Banks
Bank Commitment ($)
ABN AMRO Bank N.V. 36,666,666.66
The Chase Manhattan Bank 36,666,666.66
Morgan Guaranty Trust Company of New York 36,666,666.66
The Bank of New York 30,000,000.00
Bayerische Landesbank Girozentrale, New York Branch 30,000,000.00
Union Bank of Switzerland 30,000,000.00
<PAGE>
THE SECOND SCHEDULE
Form of Transfer Certificate
To: The Chase Manhattan Bank
TRANSFER CERTIFICATE
relating to the agreement (as from time to time amended, varied, novated or
supplemented, the "Facility Agreement") dated [ ] 199[ ] whereby a
US$1,000,000,000 multicurrency revolving credit and short-term advances
facility, a US$100,000,000 letter of credit facility and a US$200,000,000
swing-line facility was made available to Koninklijke Ahold N.V. and Ahold USA
Holdings, Inc., as borrowers by a group of banks on whose behalf The Chase
Manhattan Bank 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 Bank and Transferee are
defined in the schedule hereto.
2. The Bank (a) confirms that the details in the schedule hereto under the
heading "Bank's Commitment", "Swing-Line Commitment", "Letter of Credit
Commitment", "Relevant Revolving Credit Advance(s)" "Relevant Letters of Credit
Issued", "Relevant Swing-Line Advance(s)", and "Relevant Short-Term Advances"
accurately summarises its Commitment, its Swing-Line Commitment, and/or its
Letter of Credit Commitment and/or, as the case may be, the Term and Repayment
Date of one or more existing Advances or Letters of Credit made by it or in
which it participates and (ii) requests the Transferee to accept and procure the
transfer to the Transferee of the portion specified in the schedule hereto of,
as the case may be, its Commitment, its Swing-Line Commitment, its Letter of
Credit Commitment and/or such Advance(s) and/or participations 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 35.5 (Transfers by Banks) of the Facility Agreement so as to
take effect in accordance with the terms thereof on the Transfer Date or on such
later date as may be determined in accordance with the terms thereof.
4. The Transferee confirms that it has received a copy of the Facility Agreement
together with such other information as it has required in connection with this
transaction and that it has not relied and will not hereafter rely on the Bank
to check or enquire on its behalf into the legality, validity, effectiveness,
adequacy, accuracy or completeness of any such information and further agrees
that it has not relied and will not rely on the Bank to assess or keep under
review on its behalf the financial condition, creditworthiness, condition,
affairs, status or nature of any of the Borrowers.
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 any of the Borrowers or
for the performance and observance by such 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 (a) accept a
re-transfer from the Transferee of the whole or any part of its rights, benefits
and/or obligations under the Facility Agreement transferred pursuant hereto or
(b) support any losses directly or indirectly sustained or incurred by the
Transferee for any reason whatsoever including the non-performance by any of the
Borrowers or any other party to the Facility Agreement (or any document relating
thereto) of its obligations under any such document. The Transferee hereby
acknowledges the absence of any such obligation as is referred to in (a) or (b)
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. Commitment:
Bank's Commitment Portion Transferred
Swing-Line Commitment Portion Transferred
Letter of Credit Commitment Portion Transferred
5. Advance(s):
Term and Repayment Date of
Revolving Credit Advance(s) Portion Transferred
Term and Repayment Date of
Letters of Credit Portion Transferred
Term and Repayment Date of
Swing-Line Advances Portion Transferred
Term and Repayment Date
of Short-Term Advances Portion Transferred
[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:
Swing-Line Office:
Letter of Credit Office:
Short-Term Advances Office:
Contact Name:
Account for Payments in US Dollars:
Telex: [ ] (Main office)
[ ] (Swing-Line office)
[ ] (Letter of Credit Office)
[ ] (Short-Term Advances Office)
Telephone: [ ] (Main office)
[ ] (Swing-Line office)
[ ] (Letter of Credit Office)
[ ] (Short-Term Advances Office)
Telefax: [ ] (Main office)
[ ] (Swing-Line office)
[ ] (Letter of Credit Office)
[ ] (Short-Term Advances Office)
<PAGE>
THE THIRD SCHEDULE
Condition Precedent Documents
1. In relation to each of the Obligors:
(a) a copy, certified a true copy by a duly authorised officer of
such Obligor, of the constitutional documents of such Borrower
and (in the case of the Principal Company) an extract from the
relevant Chamber of Commerce;
(b) a copy, certified a true copy by a duly authorised officer of
such Obligor, of a board resolution of such Obligor and (in the
case of the Principal Company) such resolutions of the board of
managing directors of the Principal Company, the supervisory
board of the Principal Company (Raad van Commissarissen) and the
works' council of the Principal Company (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 such Obligor pursuant hereto; and
(c) a certificate of a duly authorised officer of such Obligor
setting out the names and signatures of the persons authorised to
sign, on behalf of such Obligor, this Agreement and any documents
to be delivered by such Obligor pursuant hereto.
2. A copy, certified a true copy by or on behalf of the Principal Company, of
each such law, decree, consent, licence, approval, registration or declaration
as is, in the opinion of counsel to the Banks, necessary to render this
Agreement legal, valid, binding and enforceable, to make this Agreement
admissible in evidence in each Obligor's jurisdiction of incorporation and to
enable each of the Obligors to perform its obligations hereunder.
3. An opinion of each of the Borrowers' in-house Dutch and United States Counsel
in substantially the forms set out in the Eighth Schedule.
4. An opinion of Clifford Chance, solicitors to the Facility Agent, in
substantially the form distributed to the Banks prior to the execution hereof.
5. A copy, certified a true copy by a duly authorised officer of each Borrower,
of the Original Financial Statements of such Borrower.
6. Evidence that each of the process agents referred to in Clause 40.6 has
agreed to act as the agent of the Obligors for the service of process in England
and New York.
7. Evidence that the Existing Facilities shall be terminated and all
outstandings thereunder shall be paid or repaid upon the making of the first
Advance or issue of (or participation by a Bank in) the first Letter of Credit
(whichever occurs first).
<PAGE>
THE FOURTH SCHEDULE
Utilisation Request
From: [Name of Borrower]
To: The Facility Agent [and the Multicurrency Facility Agent [delete
if no Optional Currency is requested]*
Dated:
Dear Sirs,
1. We refer to the agreement (as from time to time amended, varied, novated or
supplemented, the "Facility Agreement") dated [ ] 1996 and made between
Koninklijke Ahold N.V., Ahold USA Holdings, Inc. as borrowers, ABN AMRO Bank
N.V., The Chase Investment Bank Limited and J.P. Morgan Securities Ltd. as
arrangers, The Chase Manhattan Bank as Facility, Letter of Credit, Swing-Line
and Short-Term Advances Agent and Chase Manhattan International Limited as
Multicurrency 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
the [Banks/Swing-Line Banks] to *[make Advances/Swing-Line Advances/make offers
of Short-Term Advances] as follows:
(a) Aggregate *[principal/face] amount:
(b) Utilisation Date:
(c) Term (specify number of business days for Swing-Line Advances or the
number of months or business days for other Advances):
(d) *[Repayment Date]:]*
[2. We require [a Letter of Credit to be opened for our account/the Banks to
participate in an Existing Letter of Credit]* under the Facility Agreement as
follows:
(a) Issue Date: [ ]
(b) Tenor: [ ]
(c) Amount: [ ]
(d) Approved Beneficiary: [ ]
(e) Concerning: [brief details of the purpose of the Letter of Credit].]*
[3. If it is not possible, pursuant to Clause 3.3 (Banks' Agreement to Optional
Currency) of the Facility Agreement, for the Advance to be made in the currency
specified, we would wish the Advance to be denominated in dollars.]*[N.B: Only
retain in case of Revolving Credit Advance requested in Optional Currency]
[3./4. We confirm that, at the date hereof, the representations set out in
Clause 23 of the Facility Agreement are true provided that each reference to
"Original Financial Statements" therein shall be deemed to be a reference to
each most recent set of annual audited financial statements delivered by any
Borrower to the Facility Agent pursuant to Clause 24.
[4/5.] *[The proceeds of this Utilisation should be credited to [insert account
details]]/[The Letter of Credit should be issued in favour of [name of
recipient] in the form attached and delivered to the recipient at [address of
recipient]].**
Yours faithfully
.............................
for and on behalf of
[NAME OF BORROWER]
- ----------------------------------------------------------
* Delete as appropriate
** not applicable for Existing Letters of Credit
<PAGE>
THE FIFTH SCHEDULE
Material Subsidiaries
Albert Heijn B.V.
BI-LO, Inc.
Giant Food Stores, Inc.
Ahold Vastgoed B.V.
Tops Markets, Inc.
Schuitema N.V.
The Stop & Shop Companies, Inc.
<PAGE>
THE SIXTH SCHEDULE
Existing Letters of Credit
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
Issue Date Issuer No. of Letter Outstanding ($) Expiry Date
of Credit
09.10.89 The First National Bank of Chicago 31449901 30,686,000.00 01.11.97
20.06.95 The First National Bank of Chicago 31449912 396,395.21 30.10.98
01.08.95 The First National Bank of Chicago 31449914 830,400.00 01.08.97
16.02.96 The First National Bank of Chicago 31449919 385,908.00 16.02.97
11.03.96 The First National Bank of Chicago 31449920 1,750,000.00 11.02.97
15.10.96 The First National Bank of Chicago 31449921 1,074,073.00 15.10.97
</TABLE>
<PAGE>
THE SEVENTH SCHEDULE
Opinion of Borrowers' Netherlands and United States Counsel
<PAGE>
THE EIGHTH SCHEDULE
Supplemental Agreement for Additional Borrowers
THIS SUPPLEMENTAL AGREEMENT is made on the day of , 19
BETWEEN:
(1) KONINKLIJKE AHOLD N.V. (the "Principal Company");
(2) [Additional Borrower(s)] (the "Additional Borrower(s)"); and
(3) [The Chase Manhattan Bank] on behalf of itself as facility agent and on
behalf of the Arranger(s), the other Agents, the Banks and Swing-Line
Banks.
WHEREAS:
(1) By an agreement (together with the supplemental agreements referred to in
(2) below, the "Facility Agreement") dated [ ] 1996 and made between the
Principal Company, Ahold USA, the Arrangers, the Agents and the Banks the
Principal Company and Ahold USA were granted facilities in the maximum
amount of $1,000,000,000.
(2) The agreement referred to in (1) above has been supplemented by the
following agreements:
[List Supplemental Agreements]
NOW IT IS HEREBY AGREED as follows:
1. Interpretation
Save as otherwise defined herein, terms defined in the Facility Agreement shall
bear the same meaning herein.
2. Additional Borrower(s)
With effect as from the date that the Facility Agent confirms to the Principal
Company that it has received, in form and substance satisfactory to it [in
relation to each Additional Borrower], each of the conditions precedent
documents specified in Clause 3, the Facility Agreement shall henceforth be read
and construed as if the [each] Additional Borrower were party to the Facility
Agreement having all the rights and obligations of an Additional Borrower and an
Obligor. Accordingly all references in any Finance Document to (a) any
"Additional Borrower" or "Obligor" shall be treated as including a reference to
the [such] Additional Borrower and (b) the Facility Agreement shall be treated
as a reference to the Facility Agreement as supplemented by this Agreement to
the intent that this Agreement and the Facility Agreement shall be read and
construed together as one single agreement.
3. Conditions Precedent
The following are the conditions precedent referred to in Clause 2 which are
required to be delivered to the Facility Agent in relation to the [each]
Additional Borrower:
(a) a copy, certified a true and up-to-date copy by a duly authorised
officer of the [such] Additional Borrower, of the Memorandum and
Articles of Association [or other constitutional documents] of the
[such] Additional Borrower together with its most recent audited
annual financial statements;
(b) a copy, certified a true copy by a duly authorised officer of the
[such] Additional Borrower, of all corporate and other resolutions of
the [such] Additional Borrower required for the approval of the
execution, delivery and performance of this Agreement and the
performance of the obligations to be assumed pursuant hereto by the
[such] Additional Borrower under the Facility Agreement and
authorising a named person or persons to sign this Agreement and any
documents to be delivered by the [such] Additional Borrower pursuant
hereto or thereto and to operate the Facilities on behalf of the
[such] Additional Borrower;
(c) a certificate of a duly authorised officer of the [such] Additional
Borrower setting out the names and signatures of the persons
authorised to sign, on behalf of the [such] Additional Borrower, this
Agreement and any documents to be delivered by the [such] Additional
Borrower pursuant hereto or to the Facility Agreement and a
certificate as to the names of any persons authorised to give telex or
telephone instructions in relation to the operation of the Facilities
on behalf of the [such] Additional Borrower as contemplated by
paragraph (b) above;
(d) a copy, certified a true copy by a duly authorised officer of the
[such] Additional Borrower, of each such law, decree, consent,
licence, approval, registration or declaration as is necessary to
render this Agreement and the Facility Agreement legal, valid and
binding as against the [such] Additional Borrower in accordance with
their respective terms, to make this Agreement and the Facility
Agreement admissible in evidence against the [such] Additional
Borrower in the [such] Additional Borrower's country of incorporation
and to enable the [such] Additional Borrower to perform its
obligations hereunder and thereunder;
(e) a copy, certified a true and up-to-date copy by an Authorised
Signatory of the Principal Company, of the Memorandum and Articles of
Association of the Principal Company/a letter from an Authorised
Signatory of the Principal Company confirming that there has been no
change in the Memorandum and Articles of Association of the Principal
Company since the same were last delivered to the Facility Agent;
(f) a copy, certified a true copy by an Authorised Signatory of the
Principal Company, of all resolutions required for the approval of the
execution, delivery and performance of this Agreement and confirming
that its board resolution referred to in paragraph 2 of the Third
Schedule of the Facility Agreement has not been revoked, varied or
amended;
(g) written evidence that [ ] has agreed to act as the agent of the [such]
Additional Borrower for the service of process in England and that [ ]
has agreed to act as the agent of the [such] Additional Borrower for
the service of process in New York;
(h) an opinion of counsel to the Facility Agent and the Banks, in a form
satisfactory to them;
(i) an opinion of counsel to the Additional Borrower, in a form
satisfactory to the Facility Agent and the Banks;
(j) written evidence of the consent of the Facility Agent and the Banks to
the [such] Additional Borrower being designated by the Principal
Company as such; and
(k) if requested by the Facility Agent, on the basis of regulations
applicable to any Bank requiring the provision of financial
information, the most recent added financial statements or written
confirmation than there is no requirement to produce such statements.
4. Representations
The [Each] Additional Borrower hereby represents as if the representations set
out in Clause 23 of the Facility Agreement were set out in full in this
Agreement.
5. Covenant
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 Additional
Borrower, the Additional Borrower shall supply the Facility Agent with its most
recent audited consolidated financial statement or if such statement do not
exist then the Additional Borrower shall supply the Facility Agent with written
confirmation stating that it is not required to produce such statements.
6. Counterparts
This Agreement may be signed in counterparts, all of which taken together shall
constitute a single agreement.
7. Law
This Agreement shall be governed by, and construed in accordance with, Dutch
law.
AS WITNESS the hands of the duly authorised representatives of the parties
hereto the day and year first before written.
<PAGE>
[NAME OF ADDITIONAL BORROWER]
By :
Address :
<PAGE>
The Obligors
KONINKLIJKE AHOLD N.V.
By:
Address: Albert Heijnweg 1
1507 EH Zaandam
The Netherlands
Attention: Norbert Berger / Paul Freischlag
Telephone: 31 75 595795
Fax: 31 75 598355
AHOLD USA HOLDINGS, INC.
By:
Address: One Atlanta Plaza, Suite 2575
950 East Paces Ferry Road
30326 Atlanta, Georgia
United States of America
Attention: Joseph Harber
Telephone: 1 404 262 6050
Fax: 1 404 262 6051
The Arrangers
ABN AMRO BANK N.V.
By:
Address: P.O. Box 283
1000 EA Amsterdam
The Netherlands
<PAGE>
CHASE INVESTMENT BANK LIMITED
By:
Address: 125 London Wall
London EC2Y 5AJ
United Kingdom
J.P. MORGAN SECURITIES LTD.
By:
Address: 60 Victoria Embankment
London EC4Y 0JP
United Kingdom
The Agents
THE CHASE MANHATTAN BANK
By:
Address: 270 Park Avenue
New York, NY 10081
United States of America
Attention: Hilma Gabbidon
Telephone: 1 212 552 4650
Telefax: 1 212 552 5658
CHASE MANHATTAN INTERNATIONAL LIMITED
By:
Address: Trinity Tower
9 Thomas More Street
London E1 9YT
United Kingdom
Attention: Steve Horford
Telephone: 44 171 777 2847
Telefax: 44 171 777 2085
<PAGE>
The Banks
ABN AMRO BANK N.V.
By:
Address: Foreign Credit Services/AA4130
P.O. Box 283
1000 EA Amsterdam
The Netherlands
Attention: Ruud Farenhorst / Agnes Knigge-Dekker / Jim Fraeyhoven /
Maartje Kuit
Telephone: 31 20 628 7392 / 31 20 628 4367 / 31 20 628 7423 /
31 20 628 6450
Telefax: 31 20 628 1286
For Swing-Line Advances
Address. 500 Park Avenue
New York, NY 10022
United States of America
Attention: Doreen Yip / Barbara Tsiakaros
Telephone: 1 212 754 6114
Telefax: 1 212 446 4155
THE CHASE MANHATTAN BANK
By:
Address: European Loan Services
125 London Wall
London EC2Y 5AJ
United Kingdom
Attention: Nick Gittins / Tina Holes, European Loan Services
Telephone: 1 202 34 3923/2020
Telefax: 1 202 34 3730
<PAGE>
With a copy to:
Attention: Anne Whittaker, Transaction Management
Telefax: 44 171 962 3611
For Swing-Line Advances
Address: 270 Park Avenue
New York, NY 10081
United States of America
Attention: Hilma Gabbidon
Telephone: 1 212 552 4650
Telefax: 1 212 552 5658
MORGAN GUARANTY TRUST COMPANY OF NEW YORK
By:
Address: 60 Victoria Embankment
London EC4Y O5P
United Kingdom
Attention: Alex Cornwell / Ray Mayers, Global Credit
Telephone: 44 171 325 5291 / 44 171 325 5245
Telefax: 44 171 325 8190 / 44 171 325 8217
For Swingline Advances
Address: J.P. Morgan Services Inc.
500 Stanton Christiana Road
Newark, Delaware 19713
United States of America
Attention: Donna Davis / Kendal Hinmon, IBG Operations
Telephone: 1 302 634 1860
Telefax: 1 302 634 4267
<PAGE>
THE FIRST NATIONAL BANK OF BOSTON
By:
Address: 100 Federal Street/MS-01-09-04
Boston, Mass. 02110
United States of America
Attention: Susan Santos
Telephone: 1 617 434 3496
Telefax: 1 617 434 0637
For Short Term Advances
Address: 100 Federal Street/MS-01-12-07
Boston, Mass. 02110
United States of America
Attention: Larry Faccini
Telephone: 1 617 434 7725
Telefax: 1 617 434 4695
For Letters of Credit
Address: 150 Federal Street/MS-50-04-01
Boston, Mass. 02110
United States of America
Attention: Dawn Trench
Telephone: 1 617 434 5874
Telefax: 1 617 434 1202
For Advances in a Multicurrency
Address: 100 Rustcraft Rd/MS-74-02-02D
Dedham, Mass. 02026
United States of America
Attention: Cheryl Troy
Telephone: 1 617 434 2087
Telefax: 1 617 434 2094
<PAGE>
BAYERISCHE LANDESBANK INTERNATIONAL S.A.
By:
Address: 3, rue Jean Monnet
L-2180 Luxembourg
Luxembourg
Attention: Mr. P. Lang
Telephone: 352 42434 3325
Telefax: 352 42434 3399
For Letters of Credit, Short-Term Advances and Swing-Line Advances
Address: Bayerische Landesbank Girozentrale, New York Branch
560 Lexington Avenue
New York, NY 10022
United States of America
Attention: Ms. Patricia Sanchez
Telephone: 1 212 310 9810
Telefax: 1 212 310 9930
CITIBANK, N.A., AMSTERDAM BRANCH
By:
Address: "Europlaza"
Hoogoorddreef 54 B
1101 BE Amsterdam Z.O.
The Netherlands
Attention: Mr. Hans P. Verdoes
Telephone: 31 20 6514 394
Telefax: 31 20 6514 292
<PAGE>
For Short-Term Advances and Letters of Credit
Address: Citibank, N.A.
One Court Square, 7th Floor
Long Island City, NY 11120
United States of America
Attention: Mrs. Stephanie Tackore, Manager
Telephone: 1 718 248 3596
Telefax: 1 718 248 7393
DEUTSCHE BANK AG
By:
Address: Deutsche Bank de Bary N.V.
FX/MM Settlements
Herengracht 450
1017 CA Amsterdam
The Netherlands
Attention: C. Spaans
Telephone: 31 20 555 4202
Telefax: 31 20 555 4428
For Swing-Line Advances
Address: 31 West 52nd Street
New York, NY 10019
United States of America
Attention: Babara Hoeltz
Telephone: 1 212 469 8121
Telefax: 1 212 469 8115
<PAGE>
FLEET NATIONAL BANK
By:
Address: One Federal Street
Boston, MA 02211
United States of America
Attention: Fancia Castillo, National Banking
Telephone: 1 617 346 5635
Telefax: 1 617 346 0595
For Advances in a Multicurrency
Attention: Gordon Kilby
Telephone: 44 171 248 9531
Telefax: 44 171 334 9456
DAI-ICHI KANGYO BANK NEDERLAND N.V.
By:
Address: Apollolaan 171
1077 AS Amsterdam
The Netherlands
Attention: Mr. Joost van Leeuwen
Telephone: 31 20 5740200
Telefax: 31 20 6760301
ING BANK N.V.
By:
Address: De Weer 75
P.O. Box 48
1500 EA Zaandam
The Netherlands
Attention: Mr. M.H. van Doorn / Mr. G.J. Bakker
Telephone: 31 75 681 1335
Telefax: 31 75 612 3007
<PAGE>
RABOBANK INTERNATIONAL, UTRECHT BRANCH
By:
Address: Croeselaan 18
P.O. Box 17100
3500 HG Utrecht
The Netherlands
Attention: Mr. Richard Polkerman, BOF / Loan Administration
Telephone: 31 30 216 3445
Telefax: 31 30 216 2767
For Letters of Credit and Short-Term Advances
Address: 1201 West Peachtree Street N.W.
Atlanta, GA 30309
United States of America
Attention:
Telephone: 1 404 881 4050
Telefax: 1 404 881 4777
SBC
By:
Address: 1 High Timber Street
London EC4V 3SB
United Kingdom
Attention: Paul Hardy, Associate Director, Treasury Customer Desk
Telephone: 44 171 329 0201
Telefax: 44 171 711 3861
<PAGE>
For Advances to Ahold USA
Address: Swiss Bank Corporation
222 Broadway, 2nd Floor
New York, NY 10038
United States of America
Attention: Marisa Reonegro, Banking Finance Support
Telephone: 1 212 574 6241
Telefax: 1 212 574 5248
UNION BANK OF SWITZERLAND
By:
Address: Bahnhofstrasse 45
8021 Zurich
Switzerland
Attention: Claude Aklin, Assistant Vice President, Ref.: KABI-AKC
Telephone: 41 1 235 69 79 / 41 1 235 33 73
Telefax: 41 1 235 32 68
For Swing-Line Advances
Address: 299 Park Avenue
New York, NY 10171
United States of America
Attention: Douglas Edwards
Telephone: 1 212 821 3628
Telefax: 1 212 821 3878
<PAGE>
WESTDEUTSCHE LANDESBANK GIROZENTRALE, LONDON BRANCH
By:
Address: 51 Moorgate
London EC2R 6AE
United Kingdom
Attention: Mr. Stewart Nutt
Telephone: 44 171 4572116
Telefax: 44 171 374 8546
THE BANK OF NEW YORK
By:
For Letters of Credit and Swing-Line Advances
Address: One Wall Street, 22nd Floor
New York, NY 10286
United States of America
Attention: Patricia Botler / Terry Blackborn
Telephone: 1 212 635 6732
Telefax: 1 212 635 6397
For Short-Term Advances
Address: 48 Wall Street, 13th Floor
New York, NY 10005
United States of America
Attention: Wilson Mastrandrea
Telephone: 1 212 804 2050
Telefax: 1 212 809 5272
<PAGE>
BANQUE PARIBAS NEDERLAND N.V.
By:
Address: Herengracht 527
P.O. Box 2171
1000 CD Amsterdam
The Netherlands
Attention: Ms. R. van de Vondervoort / Mr. J. de Wild
Telephone: 31 20 520 4400
Telefax: 31 20 620 1623
BARCLAYS BANK PLC (CLAD) UK
By:
Address: 5th Floor
St. Swithin's House
11-12 St. Swithin's Lane
London EC4N 8AS
United Kingdom
Attention: Sharon Carter
Telephone: 44 171 621 4000
Telefax: 44 171 621 4583
With a copy to:
Address: Atrium, Strawinskylaan 3053
1077 ZX Amsterdam
The Netherlands
Attention: Victor J. van der Linden
Telephone: 31 20 5045 338
Telefax: 31 20 5045 339
<PAGE>
THE FIRST NATIONAL BANK OF CHICAGO
By:
Address: First Chicago House
90 Long Acre
London WC2E 9RB
United Kingdom
Attention: Dot O'Flaherty
Telephone: 44 171 438 4150
Telefax: 44 171 438 4148
For Letters of Credit
Address: The First National Bank of Chicago
300 S.Riverside
Suite 0236-7th Floor
Chicago, Illinois
United States of America
Attention: Louis Virgo, Operations Officer
Telephone: 1 312 954 1928
Telefax: 1 312 954 1963 / 001 312 954 1964
KREDIETBANK (NEDERLAND) N.V.
By:
Address: Westersingel 88
3015 LC Rotterdam
The Netherlands
Attention: Mr. H. Langstraat
Telephone: 31 10 43 68 399
Telefax: 31 10 43 66 335
<PAGE>
TABLE OF CONTENTS
Page
PART 1
DEFINITIONS AND INTERPRETATION
1. Definitions and Interpretation............................................1
PART 2
THE FACILITIES; ADDITIONAL BORROWERS
2. The Facilities...........................................................15
PART 3
UTILISATION OF THE REVOLVING CREDIT FACILITY
3. Utilisation of the Revolving Credit Facility.............................17
PART 4
UTILISATION OF THE LETTER OF CREDIT FACILITY
4. Utilisation of the Letter of Credit Facility.............................20
5. Indemnity................................................................22
6. Letter of Credit Fees and Fronting Fee...................................23
PART 5
UTILISATION OF THE SWING-LINE FACILITY
7. Utilisation of the Swing-Line Facility...................................24
PART 6
UTILISATIONS OF THE SHORT-TERM ADVANCES FACILITY
8. Request for offers.......................................................26
9. Offers for Short-Term Advances...........................................27
10. Offers by the Short-Term Advances Agent or its Affiliates................27
11. Acceptance of Offers.....................................................28
12. Making of Short-Term Advances............................................28
PART 7
INTEREST
13. Interest on Revolving Credit Advances....................................30
14. Interest on Swing-Line Advances..........................................30
15. Interest on Short-Term Advances..........................................30
PART 8
REPAYMENT AND CANCELLATION
16. Repayment of Advances....................................................31
17. Cancellation.............................................................31
PART 9
RISK ALLOCATION
18. Taxes....................................................................32
19. Tax Receipts.............................................................32
20. Increased Costs..........................................................33
21. Mitigation...............................................................34
22. Market Disruption........................................................35
PART 10
REPRESENTATIONS, WARRANTIES, UNDERTAKINGS AND EVENTS OF DEFAULT
23. Representations and Warranties...........................................36
24. Undertakings.............................................................39
25. Events of Default........................................................42
PART 11
GUARANTEE
26. Guarantee and Indemnity..................................................46
PART 12
DEFAULT INTEREST AND INDEMNITY
27. Default Interest and Indemnity...........................................49
PART 13
PAYMENTS
28. Currency of Account and Payment..........................................51
29. Payments.................................................................51
30. Setoff...................................................................53
31. Sharing..................................................................53
PART 14
FEES, COSTS AND EXPENSES
32. Fees.....................................................................55
33. Costs and Expenses.......................................................55
PART 15
AGENCY PROVISIONS
34. The Agents, the Arrangers and the Banks..................................57
PART 16
ASSIGNMENTS AND TRANSFERS
35. Assignments and Transfers................................................61
PART 17
MISCELLANEOUS
36. Calculations and Evidence of Debt........................................63
37. Remedies and Waivers, Partial Invalidity.................................63
38. Amendments...............................................................64
39. Notices..................................................................65
PART 18
LAW AND JURISDICTION
40. Law and Jurisdiction.....................................................67
THE SCHEDULES
The First Schedule : The Banks
The Second Schedule : Form of Transfer Certificate
The Third Schedule : Condition Precedent Documents
The Fourth Schedule : Utilisation Request
The Fifth Schedule : Material Subsidiaries
The Sixth Schedule : Existing Letters of Credit
The Seventh Schedule : Opinion of Borrowers' Netherlands
and United States Counsel
The Eighth Schedule : Supplemental Agreement
ASSIGNMENT AND ASSUMPTION AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Agreement"), dated as of
September 4, 1998, by and between Koninklijke Ahold N.V., a public company with
limited liability incorporated under the laws of the Netherlands ("Assignor"),
and Giant Acquisition Corporation, a Delaware corporation and an indirect
wholly-owned subsidiary of Assignor ("Assignee").
Assignor does hereby sell, convey, transfer, assign and deliver to Assignee
and its successors and assigns forever all of Assignor's right, title and
interest in and to all of the following rights and contracts (the "Assets"), to
have and to hold the same unto Assignee, its successors and assigns, to or for
its use forever:
(a) the right of Assignor to purchase for cash all of the
outstanding shares of Class A Common Stock, par value $1.00 per share,
of Giant Food Inc., a Delaware corporation, at a price of $43.50 per
share, pursuant to the Offer to Purchase dated May 19, 1998 (the
"Offer");
(b) the Dealer-Manager Agreement, dated as of May 19, 1998, by
and between Assignor and Merrill Lynch, Pierce, Fenner & Smith
Incorporated, as Dealer Manager;
(c) the Depositary Agreement to be entered into between Assignor
and The Bank of New York in connection with the Offer;
(d) the Stock Purchase Agreement, dated as of May 19, 1998, by
and between Assignor and The 1224 Corporation; and
(e) the Stock Purchase Agreement, dated as of May 27, 1998, by
and among J Sainsbury plc, JS Mass. Securities Corp. and Assignor.
On or after the date hereof, Assignor shall, from time to time, execute and
deliver such further instruments of conveyance, assignment and transfer and
shall take, or cause to be taken, such other action as is necessary for more
effective conveyance, assignment and transfer to Assignee of any of the Assets,
and Assignor shall assist Assignee in the collection and reduction to possession
of the Assets, in the exercise of rights with respect thereto and otherwise in
the effectuation of the intentions and purposes of this Agreement.
Assignee hereby assumes and agrees to perform the obligations of Assignor
under the above contracts. Notwithstanding the foregoing, Assignor remains
liable for its obligations in respect of the Assets and guarantees performance
of the obligations assumed by Assignee.
This Agreement shall be deemed to be a contract made in and under the laws
of the State of Delaware, and for all purposes, shall be construed, interpreted
and enforced in accordance with the laws of the State of Delaware, without
regard to the conflicts of laws rules thereto.
<PAGE>
IN WITNESS WHEREOF, each of Assignor and Assignee has caused this
instrument to be duly executed by its duly authorized officer as of this 4th day
of September, 1998.
KONINKLIJKE AHOLD N.V.
By: s/ A. M. Meurs
Name: A.M. Meurs
Title: Executive Vice President
GIANT ACQUISITION CORPORATION
By: /s/ Robert G. Tobin
Name: Robert G. Tobin
Title: President
