SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 6-K
REPORT OF FOREIGN PRIVATE ISSUER
PURSUANT TO RULE 13A-16 OR 15D-16 OF THE
SECURITIES EXCHANGE ACT OF 1934
DATE: May 4, 1999
Koninklijke Ahold N.V.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN CHARTER)
Royal Ahold
(TRANSLATION OF REGISTRANT'S NAME INTO ENGLISH)
Albert Heijnweg 1, 1507 EH Zaandam, The Netherlands
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
Indicate by check mark whether the registrant files or will file
annual reports under cover of Form 20-F or Form 40-F.
Form 20-F X Form 40-F
--- ---
Indicate by check mark whether the registrant by furnishing the
information contained in this form is also thereby furnishing the information to
the Commission pursuant to Rule 12g3-2(b) under the Securities Exchange Act of
1934.
Yes No X
--- ---
If "Yes" is marked, indicate below the file number assigned to the
registrant in connection with Rule 12g3-2(b): 82-________
<PAGE>
On April 23, 1999, Koninklijke Ahold N.V. (the "Company") and Ahold
Finance U.S.A., Inc. (the "Issuer") entered into an underwriting agreement and a
related terms agreement (collectively, the "Underwriting Agreement") with Chase
Securities Inc. and J.P. Morgan Securities Inc., as representatives of the
several underwriters named in Schedule I thereto, in connection with an offering
of guaranteed senior notes of the Issuer (the "Notes"). The transaction
contemplated by the Underwriting Agreement closed on April 29, 1999, and on that
date the Company, the Issuer and The Chase Manhattan Bank, as trustee, entered
into an indenture (the "Indenture") and an indenture supplement (the "Indenture
Supplement") relating to the Notes. Offers and sales of the Notes were made
pursuant to the Company's and the Issuer's Registration Statement on Form F-3
and Form S-3 (Nos. 333-71383 and 333-71383-01) and the Company's Registration
Statement on Form F-3 (No. 333-9376) (collectively, the "Registration
Statements").
In order to have the Underwriting Agreement, the Indenture and the
Indenture Supplement placed on file as exhibits to the Registration Statements,
the Company hereby files copies of these documents. In addition, the Company
hereby files forms of the following documents pursuant to which securities may
be issued from time to time under the Registration Statements: (i) the
underwriting agreements relating to debt securities and common shares of the
Company and (ii) the indenture relating to senior debt securities of the Company
and the indenture relating to guaranteed subordinated debt securities of the
Issuer.
This Form 6-K shall be deemed to be incorporated by reference into the
prospectuses forming a part of the Registration Statements and to be part of
such prospectuses from the date of the filing hereof.
<PAGE>
EXHIBITS
1.1 Form of Underwriting Agreement with respect to common shares of the
Company.
1.2 Form of Underwriting Agreement with respect to debt securities of the
Company.
1.3 Underwriting Agreement and related Terms Agreement, each dated April 23,
1999, among the Issuer, the Company and Chase Securities Inc. and J.P.
Morgan Securities Inc., as representatives of the several underwriters
named in Schedule I thereto, relating to the offering of Notes.
4.1 Not applicable.
4.2 Indenture for the issuance of senior debt securities of the Company, to be
dated on or about the date of the issuance of the first series of senior
debt securities thereunder, between the Company and The Chase Manhattan
Bank (including the form of senior debt securities).
4.3 Not applicable.
4.4 Indenture for the issuance of guaranteed senior debt securities of the
Issuer, dated April 29, 1999, among the Issuer, the Company, as guarantor,
and The Chase Manhattan Bank, as trustee (including the form of guaranteed
senior debt securities).
4.5 Indenture for the issuance of guaranteed subordinated debt securities of
the Issuer, to be dated on or about the date of issuance of the first
series of guaranteed subordinated debt securities thereunder, among the
Issuer, the Company, as guarantor, and The Bank of New York, as trustee
(including the form of guaranteed subordinated debt securities).
4.6 Indenture Supplement for the issuance of guaranteed senior debt securities
of the Issuer, dated April 29, 1999, among the Issuer, the Company, as
guarantor, and The Chase Manhattan Bank, as trustee.
99.1 Press release, dated April 15, 1999, relating to the offering of Notes.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
KONINKLIJKE AHOLD N.V.
Date: May 3, 1999 By: /s/ C.H. van der Hoeven
---------------------------
Name: C.H. van der Hoeven
Title: President
KONINKLIJKE AHOLD N.V.
Common Shares
Underwriting Agreement
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Ladies and Gentlemen:
1. Introductory. Koninklijke Ahold N.V. (Royal Ahold), a public
company with limited liability organized under the laws of The Netherlands, and
with its corporate seat in Zaandam (municipality Zaanstad), The Netherlands (the
"Company"), proposes to issue and sell from time to time common shares, par
value NLG 0.50 per share, of the Company (the "Common Shares").
Particular issuances of Common Shares will be sold pursuant to a Terms
Agreement referred to in Section 3 in the form of Annex A attached hereto, for
resale in accordance with the terms of offering determined at the time of sale.
Under such Terms Agreement, subject to the terms and conditions hereof, the
Company will agree to issue and sell, and the firm or firms specified therein
(the "Underwriters") will agree to purchase, severally, the number of Common
Shares specified therein (the "Firm Shares"). In such Terms Agreement, the
Company also may grant to such Underwriters, subject to the terms and conditions
set forth therein, an option to purchase additional Common Shares in an amount
not to exceed the amount specified in such Terms Agreement (such additional
Common Shares are hereinafter referred to as the "Option Shares"). The Firm
Shares and the Option Shares are hereinafter collectively referred to as the
"Offered Shares." The Firm Shares and the Option Shares are registered pursuant
to the registration statement referred to in Section 2(a).
Pursuant to the Terms Agreement referred to in Section 3, the
Underwriters may have the right to elect to take delivery of the Offered Shares
in the form of Common Shares or in the form of American Depositary Shares (the
"ADSs"). The ADSs are to be issued pursuant to an amended and restated deposit
agreement specified in the Terms Agreement (the "Deposit Agreement"), among the
Company, the depositary specified in the Terms Agreement (the "Depositary"), and
the registered holders from time to time of the American Depositary Receipts
(the "ADRs") issued by the Depositary and evidencing the ADSs. Each ADS will
initially represent the right to receive one Common Share deposited pursuant to
the Deposit Agreement. Except as the context may otherwise require, references
hereinafter to Common Shares or Offered Shares shall include all of the Common
Shares or Offered Shares, as the case may be, whether in the form of Common
Shares or ADSs.
The representative or representatives of the Underwriters, if any,
specified in a Terms Agreement referred to in Section 3 are hereinafter referred
to as the "Representatives"; provided, however, that if the Terms Agreement does
not specify any representative of the Underwriters, the term "Representatives",
as used in this Agreement (other than in the second sentence of Section 3) shall
mean the Underwriters.
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, each Underwriter that:
(a) A registration statement on Forms F-3 and S-3 (Nos. 333-71383 and
333-71383-01), including a prospectus relating to the Offered Shares, has
been filed with the Securities and Exchange Commission (the "Commission")
and has been declared effective by the Commission. The various parts of
such registration statement, as amended at the time of the execution of the
Terms Agreement referred to in Section 3, including all exhibits thereto
(but excluding the Trustees' Statement of Eligibility on Form T-1) and the
documents incorporated by reference in the prospectus contained in such
registration statement at the time of execution of the Terms Agreement
referred to in Section 3, are hereinafter collectively referred to as the
"Registration Statement"; any prospectus included in the Registration
Statement at the time it became effective or in any post-effective
amendment thereto filed prior to the time of execution of the Terms
Agreement referred to in Section 3 at the time such amendment became
effective or filed with the Commission pursuant to and in accordance with
Rule 424(b) ("Rule 424(b)") of the rules and regulations of the Commission
(the "Rules and Regulations") under the Securities Act of 1933, as amended
(the "Act"), prior to the time of the execution of the Terms Agreement
referred to in Section 3, as supplemented by a preliminary prospectus
supplement reflecting the proposed terms of the offering of the Offered
Shares that is filed with the Commission pursuant to and in accordance with
Rule 424(b) prior to the time of the execution of the Terms Agreement
referred to in Section 3, including all material incorporated therein by
reference, is hereinafter referred to as a "Preliminary Prospectus", and
the prospectus included in the Registration Statement, as supplemented by a
prospectus supplement as contemplated by Section 3 to reflect the terms of
the offering of the Offered Shares, as first filed with the Commission
pursuant to and in accordance with Rule 424(b) including all material
incorporated by reference therein, is hereinafter referred to as the
"Prospectus". Any reference to any amendment or supplement to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include any documents filed after the date of such Preliminary Prospectus
or Prospectus, as the case may be, under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and incorporated by reference in
such Prospectus or Preliminary Prospectus, as the case may be. No stop
order suspending the effectiveness of the Registration Statement or
preventing or suspending the use of any Preliminary Prospectus or the
Prospectus has been issued and no proceeding for that purpose has been
instituted or, to the knowledge of the Company, threatened by the
Commission.
(b) The Registration Statement relating to the Offered Shares, on the
effective date thereof, and any Preliminary Prospectus, as of its date,
conformed in all material respects to the requirements of the Act and the
Rules and Regulations and did not include any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, and the
Registration Statement and the Prospectus, on the date of the Terms
Agreement referred to in Section 3, will conform in all material respects
to the requirements of the Act and the Rules and Regulations, and neither
of such documents will include any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary
to make the statements therein (in the case of the Prospectus, in light of
the circumstances under which they were made) not misleading, except that
the foregoing representations do not apply to statements in or omissions
from any of such documents based upon written information furnished to the
Company by any Underwriter specifically for use therein.
(c) The documents incorporated by reference into the Prospectus, when
they were filed with the Commission, conformed in all material respects to
the requirements of the Exchange Act and the rules and regulations
thereunder, and none of such documents when so filed included any untrue
statement of a material fact or omitted to state any material fact required
to be stated therein or necessary to make the statements therein not
misleading, and each document, if any, hereafter filed and so incorporated
by reference in the Prospectus and any further amendment or supplement
thereto (other than documents incorporated by reference therein relating
solely to an offering of securities other than the Offered Shares) when
such documents are filed with the Commission will conform in all material
respects to the requirements of the Exchange Act and the rules and
regulations of the Commission thereunder and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading, except that the foregoing representations do not apply to
statements in or omissions from any of such documents based upon written
information furnished to the Company by any Underwriter specifically for
use therein.
(d) A Registration Statement on Form F-6 (No. 333- ) in respect of the
ADSs has been filed with the Commission and has been declared effective by
the Commission; no stop order suspending the effectiveness of such
Registration Statement has been issued and no proceeding for that purpose
has been initiated or, to the knowledge of the Company, threatened by the
Commission (the various parts of such Registration Statement, including all
exhibits thereto, each as amended at the time of the Terms Agreement
referred to in Section 3, being hereinafter called the "ADS Registration
Statement"); such Registration Statement when it became effective
conformed, and any further amendment thereto when it becomes effective will
conform, in all material respects to the requirements of the Act and the
Rules and Regulations; such Registration Statement when it became effective
did not, and any further amendment thereto when it becomes effective will
not, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; and, on the date of any Terms Agreement
referred to in Section 3, the ADS Registration Statement will conform in
all material respects to the requirements of the Act and the Rules and
Regulations and it will not include any untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading.
(e) Neither the Company nor any of the Significant Subsidiaries (as
defined below) has sustained since the date of the latest audited financial
statements included in the Prospectus or incorporated by reference therein,
any loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, in either case
material to the Company and its subsidiaries taken as a whole, and
otherwise than as set forth or contemplated in the Prospectus; and, since
the respective dates as of which information is given in the Registration
Statement and the Prospectus, there has not been any change in the capital
stock or consolidated long-term debt of the Company or any of its
subsidiaries or any material adverse change, or any development involving a
prospective material adverse change, in or affecting the general affairs,
financial position, shareholders' equity or results of operations of the
Company and its subsidiaries taken as a whole or the officers and directors
of the Company, otherwise than as set forth or contemplated in the
Prospectus. As used in this Agreement, the term "Significant Subsidiary"
refers to Albert Heijn B.V., BI-LO Inc., Giant Food Stores, Inc., Ahold
Vastgoed B.V., Tops Markets, Inc., The Stop & Shop Companies, Inc and Giant
Food Inc.
(f) The Company has been duly incorporated and is validly existing
under the laws of The Netherlands as a legal entity in the form of a
"naamloze vennootschap" (a public company with limited liability), with
corporate power and corporate authority to own or lease its properties and
conduct its business as described in the Prospectus, and has been duly
qualified as a foreign corporation for the transaction of business and is
in good standing (where applicable) under the laws of each other
jurisdiction in which it owns or leases properties or conducts any business
so as to require such qualification, or is subject to no material liability
or disability by reason of the failure to be so qualified in any such
jurisdiction; and each Significant Subsidiary has been duly incorporated
and is validly existing as a corporation in good standing (where
applicable) under the laws of its jurisdiction of incorporation.
(g) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued, and are fully paid and
non-assessable and conform to the description of the capital stock
contained in the Prospectus; and all of the issued shares of capital stock
of each Significant Subsidiary have been duly and validly authorized and
issued, are fully paid and non-assessable and are owned directly or
indirectly by the Company, free and clear of all liens, encumbrances,
equities or claims; all of the issued and outstanding Shares have been duly
listed and admitted for trading subject to notice of issuance on the
AEX-Stock Exchange ("AEX") and the Swiss Exchange ("SE") and the ADSs have
been duly listed and admitted for trading on the New York Stock Exchange,
Inc. ("NYSE"); the holders of outstanding shares of capital stock of the
Company are not entitled to preemptive or other rights to acquire the
Offered Shares, such rights having been excluded by resolution of the
Corporate Executive Board which has been approved by the Supervisory Board
in accordance with the Articles of Association of the Company, the
Corporate Executive Board being entitled to exclude such rights with
respect to Common Shares by authorization of the general meeting of
shareholders; there are no outstanding securities convertible into or
exchangeable for, or warrants, rights or options to purchase from the
Company, or obligations of the Company to issue, Common Shares or any other
class of capital stock of the Company, except as set forth in the
Prospectus; the Offered Shares may be freely deposited by the Company with
the Depositary against issuance of ADRs evidencing ADSs; the ADSs are
freely transferable by the Company to or for the account of the several
Underwriters and (to the extent described in the Prospectus) the initial
purchasers thereof; and there are no restrictions on subsequent transfers
of the Offered Shares under the laws of The Netherlands and the United
States except as described in the Prospectus under "Description of American
Depositary Receipts."
(h) The unissued Offered Shares to be issued and sold by the Company
to the Underwriters under the Terms Agreement referred to in Section 3 have
been duly and validly authorized and, when the Offered Shares are issued
and delivered pursuant to such Terms Agreement against payment therefor as
provided therein, will be duly and validly issued and fully paid and
non-assessable and will conform to the description of the Offered Shares
contained in the Prospectus.
(i) The Deposit Agreement has been duly authorized, executed and
delivered by the Company and, assuming due authorization, execution and
delivery by the Depositary, constitutes a valid and legally binding
agreement of the Company, enforceable in accordance with its terms,
subject, as to enforceability, to bankruptcy, insolvency, reorganization
and similar laws of general applicability relating to or affecting
creditors' rights and to general principles of equity; upon issuance by the
Depositary of ADRs evidencing ADSs and the deposit of Common Shares in
respect thereof in accordance with the provisions of the Deposit Agreement,
such ADRs will be duly and validly issued and the persons in whose names
the ADRs are registered will be entitled to the rights specified therein
and in the Deposit Agreement; and the Deposit Agreement and the ADRs
conform in all material respects to the descriptions thereof contained in
the Prospectus.
(j) All dividends and other distributions declared and payable on the
shares of capital stock of the Company may under the current laws and
regulations of The Netherlands be paid to the Depositary in Dutch Guilders
and may be converted into foreign currency that may be freely transferred
out of The Netherlands without the necessity of obtaining any consents,
approvals, authorizations, orders, registrations, clearances and
qualification of or with any court or governmental agency or body or
authorities of any exchange on which the Shares or ADSs are listed and
admitted for trading (hereinafter referred to as a "Governmental Agency")
having jurisdiction over the Company or any of its subsidiaries or any of
their properties (hereinafter referred to as "Governmental Authorizations")
in The Netherlands except as otherwise set forth in the Prospectus.
(k) The issue and sale of the Shares to be sold by the Company under
the Terms Agreement referred to in Section 3 and the deposit of the Common
Shares with the Depositary against issuance of the ADRs evidencing the ADSs
and the compliance by the Company with all of the provisions of this
Agreement, such Terms Agreement and the Deposit Agreement and the
consummation of the transactions herein and therein contemplated will not
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any material indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company or any of the Significant Subsidiaries is a party or by
which the Company or any of the Significant Subsidiaries is bound or to
which any of the property or assets of the Company or any of the
Significant Subsidiaries is subject, nor will such action result in any
violation of the provisions of the Articles of Association of the Company
or any statute or any order, rule or regulation of any Governmental Agency
having jurisdiction over the Company or any of the Significant Subsidiaries
or any of their properties; and no Governmental Authorizations are required
for the issue and sale of the Offered Shares, for the deposit of the Common
Shares with the Depositary against issuance of ADRs evidencing the ADSs to
be delivered or the consummation by the Company of the transactions
contemplated by this Agreement and the Terms Agreement referred to in
Section 3, except (A) the registration under the Act of the Shares and the
ADSs, (B) the listing of the Shares on the AEX and the SE and of the ADSs
on the NYSE, (C) such Governmental Authorizations as have been duly
obtained and are in full force and effect and copies of which have been
furnished to you and (D) such Governmental Authorizations as may be
required under state securities or Blue Sky laws or any laws of
jurisdictions outside The Netherlands and the United States in connection
with the purchase and distribution of the Offered Shares by or for the
account of the Underwriters.
(l) No stamp or other issuance or transfer taxes or duties are payable
by or on behalf of the Underwriters to The Netherlands or any political
subdivision or taxing authority thereof or therein in connection with (A)
the deposit with the Depositary of Common Shares by the Company against the
issuance of ADRs evidencing ADSs, (B) the sale and delivery by the Company
of the Offered Shares to or for the respective accounts of the Underwriters
or (C) the sale and delivery outside The Netherlands by the Underwriters of
the Offered Shares to the initial purchasers thereof, in each case in the
manner contemplated in this Agreement and the Terms Agreement.
(m) No capital gains, income or withholding taxes are payable by or on
behalf of the Underwriters to The Netherlands or to any political
subdivision or taxing authority thereof or therein in connection with (x)
the deposit with the Depositary of Common Shares by the Company against the
issuance of ADRs evidencing ADSs, (y) the sale and delivery by the Company
of the Offered Shares to or for the respective accounts of the Underwriters
or (z) the sale and delivery outside The Netherlands by the Underwriters of
the Offered Shares to the initial purchasers thereof in the manner
contemplated in this Agreement and the Terms Agreement, provided that: (1)
the Underwriter is not a resident or deemed resident of The Netherlands;
(2) the Underwriter does not have an enterprise which in its entirety or in
part carries on business in The Netherlands through a permanent
establishment or permanent representative to which or to whom the Shares or
ADSs are attributable, or to which or to whom the Shares or ADSs belong;
and (3) the Underwriter does not and will not, as a result of the
transactions referred to in clauses (x), (y) and/or (z) referred to above,
have a substantial interest or deemed substantial interest as defined in
Article 20a of the Dutch Income Tax Act in the share capital of the Company
or, in the event that there is such an interest, such interest belongs to
the business of an enterprise.
(n) Neither the Company nor any of its majority-owned subsidiaries has
taken, directly or indirectly, any action which was designed to or which
has constituted or which might reasonably be expected to cause or result in
stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Offered Shares; provided, however,
that this provision shall not apply to stabilization or other activities
conducted by the Underwriters or on their behalf, as described in the
Prospectus.
(o) The statements set forth in the Prospectus under the captions
"Description of Share Capital" and "Description of American Depositary
Receipts", insofar as they purport to constitute a summary of the terms of
the capital stock of the Company and the ADSs, respectively, and under the
caption "Taxation--U.S. Taxation", insofar as they purport to describe the
provisions of the laws referred to therein or to provisions of documents
therein described, are accurate, complete and fair in all material
respects.
(p) The statements set forth in the Prospectus under the caption
"Taxation--Netherlands Taxation" insofar as they relate to matters of Dutch
tax law or regulation or to provisions of documents therein described, are
true and accurate in all material respects.
(q) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of the
Significant Subsidiaries is a party or of which any property of the Company
or any of the Significant Subsidiaries is the subject which are reasonably
likely, individually or in the aggregate, to have a material adverse effect
on the current or future consolidated financial position, shareholders'
equity or results of operations of the Company and its subsidiaries taken
as a whole; and, to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by any Governmental Agency or
threatened by others.
(r) The Company is not and, after giving effect to the offering and
sale of the Offered Shares, will not be an "investment company" or an
entity "controlled" by an "investment company", as such terms are defined
in the Investment Company Act of 1940, as amended (the "Investment Company
Act").
(s) The Company and each of the Significant Subsidiaries have all
licenses, franchises, permits, authorizations, approvals and orders and
other concessions of and from all Governmental Agencies that are necessary
to own or lease their properties and conduct their businesses as described
in the Prospectus except for such licenses, franchises, permits,
authorizations, approvals and orders the failure to obtain which
individually or in the aggregate, will not have a material adverse effect
on the general affairs, consolidated financial position or results of
operation of the Company and its subsidiaries taken as a whole.
(t) The Company is not a Passive Foreign Investment Company ("PFIC")
within the meaning of Section 1297 of the United States Internal Revenue
Code of 1986, as amended.
(u) Deloitte & Touche, Registeraccountants, who have certified certain
financial statements of the Company and its subsidiaries, are independent
public accountants as required by the Act and the Rules and Regulations.
3. Purchase and Offering of Firm Shares. The obligation of the Company
to issue and sell any Firm Shares, the obligation of the Underwriters to
purchase the Firm Shares, and, if applicable, the Company's granting to the
Underwriters of an option to purchase any Option Shares, will be set forth in a
Terms Agreement (the "Terms Agreement") which shall be in the form of an
executed writing (which may be handwritten), and may be evidenced by an exchange
of telegraphic or any other rapid transmission device designed to produce a
written record of communications transmitted at the time the Company determines
to sell the Firm Shares. The Terms Agreement will incorporate by reference the
provisions of this Agreement, except as otherwise provided therein, and will
specify the following: the firm or firms which will be Underwriters; the names
of any Representatives; the aggregate amount of the Firm Shares, and, if
applicable, the Option Shares; the terms of any option granted by the Company to
the Underwriters to purchase Option Shares; the amount of Firm Shares to be
purchased by each Underwriter; the initial public offering price of the Offered
Shares; the purchase price to be paid by the Underwriters; and whether the
Underwriters have the right to take delivery of the Offered Shares in the form
of ADSs and, if so, the terms for exercise thereof. The Terms Agreement will
also specify the place of delivery and payment for the Offered Shares and any
details of the terms of offering that should be reflected in the prospectus
supplement relating to the offering of the Offered Shares.
The time and date of delivery and payment of the Firm Shares will be
the time and date specified in the Terms Agreement, or such other time not later
than seven full business days thereafter as the Representatives and the Company
agree as the time for payment and delivery of the Firm Shares (such time and
date, being herein and in the Terms Agreement referred to as the "Firm Closing
Date"). The time and date of delivery and payment of some or all of the Option
Shares, if any, will be the time and date specified by the Underwriters as
provided in the Terms Agreement, which may be the Firm Closing Date, but shall
not be more than seven business days after the exercise of the option nor in any
event prior to the Firm Closing Date (such time and date being herein and in the
Terms Agreement referred to as the "Option Closing Date"). As used herein and in
the Terms Agreement, the term "Closing Date" means, with respect to the Firm
Shares, the Firm Closing Date and, with respect to the Option Shares, the Option
Closing Date.
The obligations of the Underwriters to purchase the Offered Shares
will be several and not joint. It is understood that the Underwriters propose to
offer the Offered Shares for sale as set forth in the Prospectus. The Offered
Shares delivered to the Underwriters on the Closing Date will be issued by
book-entry credit to the account or accounts in a qualified institution as
specified by the Representatives or, if pursuant to the Terms Agreement the
Underwriters have the right to elect to take delivery of the Offered Shares in
the form of ADSs and the Representatives have exercised such right as provided
in the Terms Agreement, then the relevant ADSs will be in definitive form and
will be in such denominations and registered in such names as the Underwriters
may request.
4. Certain Agreements of the Company. The Company agrees with the
several Underwriters that it will furnish to ________________, counsel for the
Underwriters, one copy of the Registration Statement relating to the Shares and
one copy of the ADS Registration Statement, in each case including all exhibits,
in the form in which each became effective and of all amendments thereto and
that, in connection with each offering of Offered Shares:
(a) The Company will prepare the Prospectus in a form approved by the
Representatives and will file the Prospectus with the Commission pursuant
to and in accordance with Rule 424(b) under the Act not later than the
Commission's close of business on the second business day following
execution and delivery of the Terms Agreement referred to in Section 3 and
will make no further amendment to the Registration Statement or amendment
or supplement to the Prospectus (other than those relating solely to an
offering of securities other than the Offered Securities) prior to the Firm
Closing Date or, if later, the Option Closing Date which in any case shall
be disapproved by the Representatives promptly after reasonable notice
thereof.
(b) During the time when a prospectus relating to the Offered Shares
is required to be delivered under the Act, (i) the Company will advise the
Representatives, promptly after it receives notice thereof, of the time
when any amendment to the Registration Statement has been filed or becomes
effective or any supplement to the Prospectus or any amended Prospectus has
been filed (other than those relating solely to an offering of securities
other than the Offered Securities) and furnish the Representatives copies
thereof; (ii) the Company will file promptly all reports required to be
filed by the Company with the Commission pursuant to Section 13(a), 13(c),
14(d) or 15(d) of the Exchange Act subsequent to the date of the
Prospectus; (iii) the Company will advise the Representatives promptly of
any request by the Commission for the amending or supplementing of the
Registration Statement or of any part thereof or for additional information
(other than solely in respect of an offering of securities other than the
Offered Shares), and will advise the Representatives promptly of the
institution by the Commission of any stop order proceedings in respect of
the Registration Statement or of any part thereof and will use its best
efforts to prevent the issuance of any such stop order and to obtain as
soon as possible its lifting, if issued; and (iv) the Company will advise
the Representatives promptly of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Offered Shares for sale in any jurisdiction or the initiation or threat of
any proceeding for such purpose.
(c) If, at any time when a prospectus relating to the Offered Shares
is required to be delivered under the Act, any event occurs as a result of
which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made when such Prospectus is delivered, not
misleading, or if for any other reason it is necessary at any time to amend
or supplement the Prospectus or to file under the Exchange Act any document
to be incorporated by reference in the Prospectus in order to comply with
the Act or the Exchange Act, the Company promptly will notify the
Representatives and at the Representatives' request file such document and
prepare and furnish without charge to each Underwriter and to any dealer in
securities as many copies as the Representatives may from time to time
reasonably request of an amended Prospectus or a supplement to the
Prospectus, or the document that will be filed under the Exchange Act so as
to be incorporated by reference in the Prospectus, which will correct such
statement or omission or effect such compliance, provided, that in case any
Underwriter is required to deliver a prospectus in connection with sales of
any of the Offered Shares or ADSs at any time nine months or more after the
time of issue of the Prospectus, upon the Representatives' request but at
the expense of such Underwriter, the Company promptly will prepare and
deliver to such Underwriter as many copies as the Representatives may
request of an amended or supplemented Prospectus complying with Section
10(a)(3) of the Act. Neither the Representatives' consent to, nor the
Underwriters' delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 5.
(d) If necessary, the Company will promptly from time to time take
such action as the Representatives may reasonably request to qualify the
Offered Shares for offering and sale under the securities laws of such
jurisdictions as the Representatives may request and to comply with such
laws as to permit the continuance of sales and dealings therein in such
jurisdictions for so long as may be necessary to complete the distribution
of the Offered Shares, provided that in connection therewith the Company
shall not be required to qualify as a foreign corporation or to file a
general or unlimited consent to process in any jurisdiction.
(e) The Company will make generally available to its security holders
as soon as practicable, but in any event not later than eighteen months
after the effective date of the Registration Statement (as defined in Rule
158(c) under the Act), an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a) of
the Act and the Rules and Regulations (including, at the option of the
Company, Rule 158 under the Act).
(f) The Company will furnish to the Representatives copies of the
Registration Statement, including all exhibits, any Preliminary Prospectus
and the Prospectus and during the time when a prospectus relating to the
Offered Shares is required to be delivered under the Act, all amendments
and supplements to such documents (other than those solely relating to an
offering of securities other than the Offered Shares), in each case as soon
as available and in such quantities as are reasonably requested.
(g) The Company will pay or cause to be paid the following: (i) the
fees, disbursements and expenses of the Company's counsel and accountants
in connection with the registration of the Shares and the ADSs under the
Act and all other expenses in connection with the preparation, printing and
filing of the Registration Statement, the ADS Registration Statement, any
Preliminary Prospectus and the Prospectus and amendments and supplements
thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) the cost of printing any Agreement among
Underwriters, any Selling Agreements, this Agreement, any Terms Agreement,
the Deposit Agreement, any Blue Sky Memorandum and any other documents in
connection with the offering, purchase, sale and delivery of the Offered
Shares; (iii) if applicable, all reasonable expenses in connection with the
qualification of the Offered Shares for offering and sale under state
securities laws, including the reasonable fees and disbursements of counsel
for the Underwriters in connection with any Blue Sky Memorandum; (iv) any
filing fees incident to, and the reasonable fees and disbursements of
counsel for the Underwriters in connection with, any required review by the
National Association of Securities Dealers, Inc. of the terms of the sale
of the Offered Shares; (v) the cost of preparing the Offered Shares; (vi)
the fees and expenses in connection with the listing of the Offered Shares
on the AEX, the SE and any stock exchange on which the Shares are listed
and the ADSs on the NYSE; (vii) the fees and expenses of any transfer agent
relating to the Offered Shares; (viii) the fees and expenses (including
fees and disbursements of counsel), if any, of the Depositary and any
custodian appointed under the Deposit Agreement, other than the fees and
expenses to be paid by holders of ADSs (other than the Underwriters in
connection with the initial purchase of ADSs, if any, pursuant to a Terms
Agreement referred to in Section 3); (ix) the fees and expenses of the
Authorized Agent (as defined in Section 12); (x) except as provided below,
all stamp or transfer taxes, if any, arising as a result of the deposit by
the Company of the Common Shares with the Depositary, if applicable, and
the issuance and delivery of the ADRs evidencing ADSs in exchange therefor
by the Depositary to the Company, of the sale and delivery of the Offered
Shares by the Company to or for the account of the Underwriters and by the
Underwriters to each other and to or for the account of the initial
purchasers thereof in the manner contemplated hereunder; and (xi) all other
costs and expenses incident to the performance of its obligations hereunder
which are not otherwise specifically provided for in this Section;
provided, however, that, the Underwriters will pay all of their own costs
and expenses, including the fees of their counsel, travel expenses,
transfer taxes (other than any imposed by The Netherlands or any political
subdivision or taxing authority thereof or therein) on resale of any of the
Offered Shares by them and any advertising expenses incurred in connection
with the transactions contemplated hereby.
(h) If and to the extent so provided in the Terms Agreement referred
to in Section 3, the Company, for the period therein provided, will not,
directly or indirectly, sell, contract to sell or otherwise dispose of
certain of its securities as specified in such Terms Agreement.
(i) To the extent required by applicable law, to make available to its
shareholders as soon as practicable after the end of each fiscal year an
annual report (in English) (including a balance sheet and statements of
income, stockholders' equity and cash flows of the Company and its
consolidated subsidiaries certified by independent public accountants and
prepared in conformity with generally accepted accounting principles in The
Netherlands ("Dutch GAAP"), together with a reconciliation of net income
and total stockholders' equity to generally accepted accounting principles
in the U.S. and, as soon as practicable after the end of each of the first
three quarters of each fiscal year (beginning with the fiscal quarter
ending after the Firm Closing Date), consolidated summary financial
information of the Company and its consolidated subsidiaries for such
quarter in reasonable detail prepared in accordance with Dutch GAAP.
(j) To use the net proceeds received by it from the sale of the
Offered Shares pursuant to this Agreement and the Terms Agreement referred
to in Section 3 in the manner specified in the Prospectus under the caption
"Use of Proceeds."
(k) If the Underwriters have the right under the Terms Agreement
referred to in Section 3 to take delivery of the Offered Shares in the form
of Shares or ADSs and if they have elected to take delivery of some or all
of the Offered Shares in the form of ADSs, prior to the relevant Closing
Date, the Company will deposit the relevant Common Shares with the
Depositary in accordance with the provisions of the Deposit Agreement and
otherwise will comply with the Deposit Agreement so that ADRs evidencing
the requisite number of ADSs will be executed (and, if applicable,
countersigned) and issued by the Depositary against receipt of such Common
Shares and delivered to the Underwriters on the Closing Date.
(l) Until 30 days after the Firm Closing Date, the Company will not
take (and will cause its subsidiaries not to take), directly or indirectly,
any action which is designed to or which constitutes or which might
reasonably be expected to cause or result in stabilization or manipulation
of the price of the Shares.
(m) The Company will use its reasonable best efforts to list, subject
to notice of issuance, the Shares on the AEX, and the SE and, if
applicable, the ADSs on the NYSE.
5. Conditions of the Obligations of the Underwriters. The obligations
of the several Underwriters to purchase and pay for the Firm Shares on the Firm
Closing Date and the Option Shares on the Option Closing Date will be subject,
in their discretion, to the truth and accuracy of the representations and
warranties on the part of the Company herein at and as of the applicable Closing
Date, to the truth and accuracy of the written statements of Company officers
made pursuant to the provisions hereof at and as of the applicable Closing Date,
to the performance by the Company of its obligations hereunder and to the
following additional conditions precedent:
(a) The Representatives shall have received a letter, dated the
applicable Closing Date, of Deloitte & Touche, Registeraccountants, in form
and substance satisfactory to the Representatives, to the effect set forth
in Annex B hereto.
(b) The Prospectus shall have been filed with the Commission pursuant
to Rule 424(b) of the Act within the applicable time period prescribed for
such filing by the Rules and Regulations and in accordance with Section
4(a) of this Agreement. No stop order suspending the effectiveness of the
Registration Statement or the ADS Registration Statement or of any part
thereof shall have been issued and no proceedings for that purpose shall
have been instituted or shall have been threatened by the Commission. All
requests for additional information on the part of the Commission shall
have been complied with to the Representatives' reasonable satisfaction.
(c) Subsequent to the execution of the Terms Agreement, there shall
not have occurred (i) any downgrading in the rating of any debt securities
of the Company by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) of the Rules and
Regulations), or any public announcement that any such organization has
under surveillance or review its rating of any debt securities of the
Company, with possible negative implications; (ii) any suspension for more
than two hours or material limitation in trading in securities generally on
the NYSE or the AEX; (iii) any suspension for more than two hours or
material limitation in trading in the Company's securities on the NYSE or
the AEX; (iv) any general moratorium on commercial banking activities in
New York or Amsterdam declared by the relevant authorities; (v) a change or
development involving a prospective change in Dutch taxation affecting the
Company, the Shares or the ADSs or the transfer thereof or the imposition
of exchange controls by the United States or The Netherlands, or any
outbreak or escalation of hostilities in which the United States or The
Netherlands is involved, any declaration of war or a national emergency by
the United States or The Netherlands, if the effect of any such event
specified in this clause (v) in the judgment of the Representatives, makes
it impracticable or inadvisable to proceed with the public offering or the
delivery of the Offered Shares being delivered at the relevant Closing Date
on the terms and in the manner contemplated in the Prospectus; or (vi) the
occurrence of any material adverse change in the existing financial,
political or economic conditions in the United States, The Netherlands or
elsewhere which, in the judgment of the Representatives, would materially
and adversely affect the financial markets or the market for the Offered
Shares and other equity securities.
(d) (i) Neither the Company nor any of the Significant Subsidiaries
shall have sustained since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus any loss
or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth
or contemplated in the Prospectus, and (ii) since the respective dates as
of which information is given in the Prospectus there shall not have been
any change in the capital stock or consolidated long-term debt of the
Company or any change, or any development involving a prospective change,
in or affecting the general affairs, financial position, shareholders'
equity or results of operations of the Company and its subsidiaries taken
as a whole or the officers and directors of the Company, otherwise than as
set forth or contemplated in the Prospectus, the effect of which, in any
such case described in clause (i) or (ii), is in the judgment of the
Representatives, after consultation with the Company if practicable, so
material and adverse to the Company and its subsidiaries taken as a whole
as to make it impracticable or inadvisable to proceed with the public
offering or the delivery of the Offered Shares being delivered at the
Closing Date on the terms and in the manner contemplated in the Prospectus.
(e) The Representatives shall have received an opinion, dated the
relevant Closing Date, of White & Case LLP, counsel for the Company, to the
effect that:
(i) If the Representatives elect pursuant to the Terms Agreement
to take delivery of some or all of the Offered Shares in the form of
ADSs, assuming (x) due authorization, execution and delivery by the
Company under Dutch law of the Deposit Agreement, (y) due
authorization, execution and delivery of the Deposit Agreement by the
Depositary and (z) that each of the Depositary and (under Dutch law)
the Company has full power, authority and legal right to enter into
and perform its obligations thereunder, the Deposit Agreement
constitutes a valid and legally binding agreement of the Company,
enforceable in accordance with its terms, subject to bankruptcy,
insolvency, reorganization and other similar laws relating to or
affecting creditors' rights generally and to general principles of
equity (regardless of whether the issue of enforceability is
considered in a proceeding in equity or at law);
(ii) If the Representatives elect pursuant to the Terms Agreement
to take delivery of some or all of the Offered Shares in the form of
ADSs, upon due issuance by the Depositary of a master ADR (the "Master
ADR") evidencing ADSs being delivered on the Closing Date against the
deposit of Common Shares to be deposited by the Company in respect
thereof in accordance with the provisions of the Deposit Agreement,
such Master ADR with respect to such Common Shares will be duly and
validly issued and the person in whose name the Master ADR is
registered will be entitled to the rights specified therein and in the
Deposit Agreement;
(iii)Under the laws of the State of New York relating to personal
jurisdiction, the Company has, pursuant to Section 12 of this
Agreement, validly and irrevocably submitted to the personal
jurisdiction of any state or federal court located in the Borough of
Manhattan, The City of New York, New York (each a "New York Court") in
any action arising out of or relating to the Terms Agreement
(including the provisions of this Agreement) or the transactions
contemplated thereby or hereby, has validly and irrevocably waived any
objection to the venue of a proceeding in any such court, and has
validly and irrevocably appointed the Authorized Agent (as defined
herein) as its authorized agent for the purpose described in Section
12; and service of process effected on such agent in the manner set
forth in Section 12 will be effective to confer valid personal
jurisdiction over the Company in the New York Courts; provided,
however, that such counsel need express no opinion as to whether a
Federal court sitting in New York would have jurisdiction in a suit,
action or proceeding against the Company brought by one or more
plaintiffs who are not United States nationals or residents;
(iv) No consent, approval, authorization or order of, or
registration or qualification with, any Federal or New York court or
governmental agency or body is required for the issue and sale of the
Offered Shares or the consummation by the Company of the transactions
contemplated by the Terms Agreement (including the provisions of this
Agreement), except the registration under the Act of the Shares and
the ADSs, and such consents, approvals, authorizations, registrations
or qualifications as may be required under state securities or Blue
Sky laws in connection with the purchase and distribution of the
Offered Shares by the Underwriters (as to which such counsel need
express no opinion);
(v) The statements set forth in the Prospectus under the caption
"Description of American Depositary Receipts Relating to Shares of
Royal Ahold", insofar as they purport to constitute a summary of the
terms of the ADRs, fairly summarize in all material respects the terms
of the Deposit Agreement and the ADRs and the agreements set forth
therein;
(vi) The statements set forth in the Prospectus under the caption
"Taxation--U.S. Taxation", to the extent they constitute matters of
United States federal income tax law and legal conclusions with
respect thereto, are accurate in all material respects;
(vii)The Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in
the Investment Company Act;
(viii) The documents incorporated by reference in the Prospectus
or any further amendment or supplement thereto made by the Company
prior to the relevant Closing Date (other than the financial
statements and related schedules and other financial and statistical
data included or incorporated by reference therein or omitted
therefrom, as to which such counsel need express no opinion), when
they were filed with the Commission, appeared on their face to comply
as to form in all material respects with the requirements of the
Exchange Act and the rules and regulations of the Commission
thereunder; and
(ix) The Registration Statement relating to the Offered Shares,
as of its effective date, the ADS Registration Statement, as of its
effective date, the Registration Statement, the ADS Registration
Statement and the Prospectus, as of the date of the Terms Agreement
(other than the financial statements and related schedules and other
financial and statistical data included or incorporated by reference
therein or omitted therefrom and other than the Trustees' Statements
of Eligibility on Form T-1, as to which such counsel need express no
opinion) appeared on their face to comply as to form in all material
respects with the requirements of the Act and the Rules and
Regulations thereunder; nothing has come to such counsel's attention
which causes it to believe that the Registration Statement relating to
the Shares, as of its effective date, the ADS Registration Statement,
as of its effective date, or the Prospectus, as of the date of the
Terms Agreement (other than, in each case, the financial statements
and related schedules and other financial and statistical data
included or incorporated by reference therein or omitted therefrom, as
to which such counsel need express no opinion), contained any untrue
statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements
therein (in the case of the Prospectus, in light of the circumstances
under which they were made) not misleading or that the Prospectus, as
amended or supplemented as of the relevant Closing Date, as of such
Closing Date (other than the financial statements and related
schedules and other financial and statistical data included or
incorporated by reference therein or omitted therefrom and other than
the Trustees' Statements of Eligibility on Form T-1, as to which such
counsel need express no opinion) contains an untrue statement of a
material fact or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; it being understood that such counsel may
state that they do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the
Registration Statement, the ADS Registration Statement or the
Prospectus, except for those referred to in subsection (v) or (vi) of
this Section 5(e).
In rendering such opinion, such counsel may state that they express no
opinion as to the laws other than the Federal law of the United States and
the law of the State of New York.
(f) The Representatives shall have received an opinion dated the
Closing Date, from the General Counsel or the Vice President Legal Affairs
of the Company, to the effect that:
(i) Nothing has come to such counsel's attention that causes such
counsel to believe that any of the documents incorporated by reference
in the Prospectus and any further amendment or supplement thereto made
by the Company prior to the Closing Date (other than the financial
statements and related schedules and other financial and statistical
data included or incorporated by reference therein or omitted
therefrom, as to which such counsel need express no opinion), when it
was filed with the Commission, contained an untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein, in light
of the circumstances under which they were made when such documents
were so filed, not misleading; and
(ii) Nothing has come to such counsel's attention which causes
such counsel to believe that the Registration Statement relating to
the Shares, as of its effective date, the ADSs Registration Statement,
as of its effective date, the Registration Statement, the ADS
Registration Statement and the Prospectus, as of the date of the Terms
Agreement (other than, in each case, the financial statements and
related schedules and other financial and statistical data included or
incorporated by reference therein or omitted therefrom and other than
the Trustees' Statements of Eligibility on Form T-1, as to which such
counsel need express no opinion) contained an untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein (in the
case of the Prospectus, in light of the circumstances under which they
were made) not misleading or that the Prospectus, as amended or
supplemented as of the relevant Closing Date, as of such Closing Date
(other than the financial statements and related schedules and other
financial and statistical data included or incorporated by reference
therein or omitted therefrom, as to which such counsel need express no
opinion) contains an untrue statement of a material fact or omits to
state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(g) The Representatives shall have received an opinion, dated the
relevant Closing Date, of De Brauw Blackstone Westbroek N.V., Dutch counsel
for the Company, to the effect that:
(i) The Company has been duly incorporated and is validly
existing under the law of The Netherlands as a legal entity in the
form of a "naamloze vennootschap" (a public company with limited
liability).
(ii) The Company has an authorized share capital as set forth in
the Prospectus.
(iii)The Offered Shares have been duly authorized and validly
issued by the Company in accordance with the laws of The Netherlands
and the provisions of the Articles of Association applicable thereto
and are fully paid and non-assessable. Pursuant to the Articles of
Association and the laws of The Netherlands, the Offered Shares may be
freely issued by the Company to or for the account of the several
Underwriters and the initial subscribers thereof in the manner
contemplated in the Terms Agreement (including the provisions of this
Agreement).
(iv) The Company has the corporate power and corporate authority
to enter into and perform the obligations on its part to be performed
under the Terms Agreement (including the provisions of this
Agreement). The Company has the corporate power and corporate
authority to conduct its business as described in the Prospectus.
(v) This Agreement and the Terms Agreement have been duly
executed and delivered by the Company.
(vi) The execution and delivery by the Company of this Agreement
and the Terms Agreement and the performance by the Company of its
obligations hereunder and thereunder and the execution, delivery and
filing by or in the name of the Company of the Registration Statement
and the ADS Registration Statement have been duly authorized by the
Company.
(vii)The choice of New York law as the law expressed to be
governing the Terms Agreement (including the provisions of this
Agreement) will be recognized as the law governing the Terms Agreement
(including the provisions of this Agreement) and accordingly the
courts of The Netherlands should apply New York law as the law
expressed to be governing the Terms Agreement (including the
provisions of this Agreement).
(viii) The issue and sale by the Company of the Offered Shares,
the compliance by the Company with the provisions under the Terms
Agreement (including the provisions of this Agreement) and the
consummation of the transactions contemplated therein and herein do
not violate any provisions of the law of The Netherlands or the
Articles of Association.
(ix) In order to ensure the legality, validity, enforceability or
admissibility in evidence of the Terms Agreement (including the
provisions of this Agreement), it is not necessary that the Terms
Agreement (including the provisions of this Agreement) be filed,
recorded or enrolled with any public authority, governmental agency or
governmental department of The Netherlands (excluding, for the
avoidance of doubt, a court in connection with legal proceedings
insofar as the enforceability and admissibility in evidence are
concerned), or that any stamp, registration or similar tax or charge
be paid in The Netherlands, except for certain court fees in
connection with legal proceedings.
(x) The submission to the jurisdiction of any United States
Federal court or state court sitting in the Borough of Manhattan, the
City of New York, State of New York, and the irrevocable waiver of any
objection to the laying of venue of a proceeding in such court and of
any immunity to jurisdiction of such court, to which it is or may
become entitled, will, according to the courts of The Netherlands duly
applying New York law as the law governing the Terms Agreement
(including the provisions of this Agreement) (including such
submission and waiver), be valid and binding on the Company.
(xi) All authorizations, consents or approvals of, or
registrations or filings with, any governmental department or
regulatory authority of or within The Netherlands which are required
for the issue and sale of the Offered Shares by the Company or the
consummation by the Company of the transactions contemplated under the
Terms Agreement (including the provisions of this Agreement) have been
obtained or made and are in full force and effect. No authorization,
license, consent or approval of any governmental department or
regulatory authority of or within The Netherlands is required to
effect dividend payments in United States dollars on any of the
Shares.
(xii)The statements set forth in the Prospectus under the
captions (if applicable) "Limitations on Enforcement of U.S. Laws
Against Royal Ahold, Its Management, and Others", "Management", and
"Description of Share Capital" to the extent that such statements are
statements as to matters of the law of The Netherlands or the Articles
of Association are correct in all material respects, and the Offered
Shares conform to the description of the Shares as referred to in such
statements and to the Articles of Association.
(xiii) The Corporate Executive Board of the Company has in its
resolutions referred to above in Section 2(g) validly resolved to
exclude the pre-emptive rights of shareholders in respect of the issue
of the Offered Shares by the Company, the Corporate Executive Board of
the Company has the authority to adopt such resolutions, and no other
action is required to exclude such pre-emptive rights.
In rendering such opinions, such counsel may state that with respect
to all matters of United States federal and New York law they have relied upon
the opinions of United States counsel for the Company delivered pursuant to
paragraph (e) of this Section 5.
(h) The Representatives shall have received an opinion, dated the
relevant Closing Date, of ___________, Dutch tax counsel for the Company,
to the effect that:
(i) No stamp or other issuance or transfer taxes or duties are
payable by or on behalf of the Underwriters to The Netherlands or to
any political subdivision or taxing authority thereof or therein in
connection with (x) the deposit with the Depositary of Common Shares
by the Company against the issuance of ADRs evidencing the ADSs (y)
the sale and delivery by the Company of the Offered Shares to or for
the respective accounts of the Underwriters or (z) the sale and
delivery outside The Netherlands by the Underwriters of the Offered
Shares to the initial purchasers thereof, in each case in the manner
contemplated in this Agreement and the Terms Agreement;
(ii) No capital gains, income or withholding taxes are payable by
or on behalf of the Underwriters to The Netherlands or to any
political subdivision or taxing authority thereof or therein in
connection with (x) the deposit with the Share Depositary of Offered
Shares by the Company against the issuance of ADRs evidencing the
ADSs, (y) the sale and delivery by the Company of the Offered Shares
to or for the respective accounts of the Underwriters or (z) the sale
and delivery outside The Netherlands by the Underwriters of the
Offered Shares to the initial purchasers thereof in the manner
contemplated in this Agreement and the Terms Agreement, provided that:
(1) the Underwriter is not a resident or deemed resident of The
Netherlands; (2) the Underwriter does not have an enterprise which in
its entirety or in part carries on business in The Netherlands through
a permanent establishment or permanent representative to which or to
whom the Offered Shares or ADSs are attributable, or to which or to
whom the Offered Shares or ADSs belong; and (3) the Underwriter does
not and will not, as a result of the transactions referred to in
clauses (x), (y), and/or (z) above, have a substantial interest or
deemed substantial interest as defined in Article 20a of the Dutch
Income Tax Act in the share capital of the Company or, in the event
that there is such an interest, such interest belong to the business
of an enterprise;
(iii) The statements set forth in the Prospectus under the
caption "Taxation--Netherlands Taxation" insofar as they relate to
matters of Dutch tax law or regulation or to provisions of documents
therein described, are true and accurate in all material respects.
(i) If the Representatives elect pursuant to the Terms Agreement to
take delivery of some or all of the Offered Shares in the form of ADSs, the
Representatives shall have received an opinion, dated the relevant Closing
Date, of Counsel for the Depositary, in form and substance satisfactory to
the Representatives, to the effect that:
(i) The Deposit Agreement has been duly authorized, executed and
delivered by the Depositary and constitutes a valid and legally
binding obligation of the Depositary and is enforceable in accordance
with its terms, except insofar as enforceability may be limited by (a)
applicable bankruptcy, insolvency, moratorium and other laws relating
to creditors' rights generally and (b) general principles of equity
(whether considered in an action at law or in equity); and
(ii) When ADRs evidencing ADSs are issued in accordance with the
Deposit Agreement against the deposit, pursuant to the terms of the
Deposit Agreement, of duly authorized, validly issued, fully paid and
nonassessable Common Shares of the Company, the preemptive rights, if
any, with respect to which have been validly waived or exercised, such
ADRs will be validly issued and will entitle the holders thereof to
the rights specified therein and in the Deposit Agreement;
In rendering such opinion, such counsel may state that they express no
opinion as to the laws of any jurisdiction outside the United States.
(j) The Representatives shall have received from their U.S. counsel
such opinion or opinions, dated the relevant Closing Date, with respect to
the validity of the Offered Shares, the Registration Statement, the ADS
Registration Statement, the Prospectus and such other related matters as
the Underwriters may reasonably require, and the Company shall have
furnished to such counsel such documents as they may reasonably request for
the purpose of enabling them to pass upon such matters.
(k) The Offered Shares to be sold by the Company at such Closing Date
shall have been duly listed and admitted for trading on the AEX, and the SE
and, if applicable, the ADSs to be sold by the Company at the relevant
Closing Date shall have been duly listed on the NYSE.
(l) If the Representatives elect pursuant to the Terms Agreement to
take delivery of some or all of the Offered Shares in the form of ADSs, the
Depositary shall have furnished or caused to be furnished to the
Representatives at the relevant Closing Date certificates reasonably
satisfactory to the Representatives evidencing the deposit with it of the
Common Shares being so deposited against issuance of ADRs evidencing the
ADSs to be delivered by the Company at such Closing Date, and the
execution, countersignature (if applicable), issuance and delivery of ADRs
evidencing such ADSs pursuant to the Deposit Agreement.
(m) The Representatives shall have received a certificate, dated the
Closing Date, of two officers of the Company reasonably satisfactory to the
Representatives in which such officers shall state that, to their
knowledge, the representations and warranties of the Company in this
Agreement and in the Terms Agreement referred to in Section 3, if
applicable, are true and correct at and as of the Closing Date, that the
Company has complied with all agreements and satisfied all conditions on
its part to be performed or satisfied hereunder at or prior to the Closing
Date, that no stop order suspending the effectiveness of the Registration
Statement or of any part thereof has been issued and no proceedings for
that purpose have been instituted by the Commission, that, subsequent to
the date of the most recent financial statements in the Prospectus, there
has been no material adverse change in the financial position or results of
operations of the Company and its subsidiaries taken as a whole except as
set forth in or contemplated by the Prospectus or as described in such
certificate, and shall cover such other matters as the Representatives may
reasonably request.
The Company will furnish the Representatives with such conformed
copies of such opinions, certificates, letters and documents as they reasonably
request.
6. Indemnification and Contribution. (a) The Company will indemnify
and hold harmless each Underwriter against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
any Preliminary Prospectus, the Registration Statement, the Prospectus, the ADS
Registration Statement, or any amendment or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, and will reimburse each Underwriter for any legal or other
expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim, as such expenses are
incurred; provided, however, that the Company will not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement in or omission
or alleged omission from any of such documents in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
through the Representatives expressly for use therein; and provided, further,
that the Company shall not be liable to any Underwriter under the indemnity
agreement in this subsection (a) with respect to any Preliminary Prospectus to
the extent that any such loss, claim, damage or liability of such Underwriter
results from the fact that such Underwriter sold Shares or ADSs to a person to
whom there was not sent or given, at or prior to the written confirmation of
such sale, a copy of the Prospectus or the Prospectus as then amended or
supplemented in any case where such delivery is required by the Act if the
Company has previously furnished copies thereof in sufficient quantity to such
Underwriter as required by Section 4(f) and the loss, claim, damage or liability
of such Underwriter results from an untrue statement or omission of a material
fact contained in a Preliminary Prospectus which was corrected in the Prospectus
or the Prospectus as then amended, modified or supplemented.
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in any Preliminary Prospectus, the Registration Statement, the
Prospectus, the ADS Registration Statement or any amendment or supplement
thereto, or arise out of or are based upon the omission or the alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, in each case to the extent, but only
to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in any of such documents in reliance upon
and in conformity with written information furnished to the Company by such
Underwriter through the Representatives expressly for use therein, and will
reimburse the Company for any legal or other expenses reasonably incurred by the
Company in connection with investigating or defending any such action or claim
as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the indemnifying
party under this Section, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under this Section. In case any such action is brought against any indemnified
party and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and to the extent
that it may wish, jointly with any other indemnifying party similarly notified,
to assume the defense thereof, with counsel satisfactory to such indemnified
party (who shall not, except with the consent of the indemnified party, be
counsel to the indemnifying party), and after notice from the indemnifying party
to such indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
Section for any legal expenses of other counsel or any other expenses, in each
case subsequently incurred by such indemnified party, in connection with the
defense thereof other than reasonable costs of investigation. No indemnifying
party shall be liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent, the indemnifying party agrees
to indemnify the indemnified party from and against any loss or liability by
reason of such settlement. No indemnifying party shall, without the written
consent of the indemnified party, effect the settlement or compromise of, or
consent to the entry of any judgment with respect to, any pending or threatened
action or claim in respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified party is an actual or potential
party to such action or claim) unless such settlement, compromise or judgment
(i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act, by or
on behalf of any indemnified party.
(d) If the indemnification provided for in this Section is unavailable
(other than as a result of (i) the provisos contained in subsection (a) or (ii)
the failure of the indemnified party to give notice to the indemnifying party as
required under subsection (c) hereof) or insufficient to hold harmless an
indemnified party under subsection (a) or (b) above in respect of any losses,
claims, damages or liabilities (or actions in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is appropriate
to reflect the relative benefits received by the Company on the one hand and by
the Underwriters on the other from the offering of the Offered Shares. If,
however, the allocation provided by the immediately preceding sentence is not
permitted by applicable law, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and of the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriters on the other shall be deemed to be
in the same proportion as the total net proceeds from the offering of the
Offered Shares purchased under the Terms Agreement (before deducting expenses)
received by the Company bear to the total underwriting discounts and commissions
received by the Underwriters with respect to the Offered Shares purchased under
the Terms Agreement, in each case as set forth in the table on the cover page of
the Prospectus. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or the Underwriters on the
other and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The Company
and the Underwriters agree that it would not be just and equitable if
contributions pursuant to this subsection (d) were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (d). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any action or claim which is the subject of this subsection (d). Notwithstanding
the provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Offered Shares underwritten by it and distributed to the public were offered
to the public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters'obligations in this subsection (d) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Company under this Section shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section shall be in addition to any liability which the
respective Underwriters may otherwise have and shall extend, upon the same terms
and conditions, to each director of the Company, to each officer of the Company
who has signed the Registration Statement and to each person, if any, who
controls the Company within the meaning of the Act.
7. Default of Underwriters. (a) If any Underwriter shall default in
its obligation to purchase the Offered Shares which it has agreed to purchase
under the Terms Agreement relating to such Offered Shares, the Representatives
may in their discretion arrange for themselves or another party or other parties
to purchase such Offered Shares on the terms contained herein and therein. If
within thirty-six hours after such default by any Underwriter the
Representatives do not arrange for the purchase of such Offered Shares, then the
Company shall be entitled to a further period of thirty-six hours within which
to procure another party or other parties satisfactory to the Representatives to
purchase such Offered Shares on such terms. In the event that, within the
respective prescribed periods, the Representatives notify the Company that they
have so arranged for the purchase of the Offered Shares, or the Company notifies
the Representatives that it has so arranged for the purchase of such Offered
Shares, the Representatives or the Company shall have the right to postpone the
Closing Date for the Offered Shares for a period of not more than seven days, in
order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus as amended or supplemented, or in any
other documents or arrangements, and the Company agrees to file promptly any
amendments or supplements to the Registration Statement or the Prospectus which
may thereby be made necessary. The term "Underwriter" as used in this Agreement
shall include any person substituted under this section with like effect as if
such person had originally been a party to the Terms Agreement with respect to
such Offered Shares.
(b) If, after giving effect to any arrangements for the purchase of
the Offered Shares of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate number of such Offered Shares which remains unpurchased does not
exceed one-eleventh of the aggregate number of the Offered Shares to be
purchased at such Closing Date, then the Company shall have the right to require
each non-defaulting Underwriter to purchase on the applicable Closing Date the
number of Offered Shares which such Underwriter agreed to purchase at such
Closing Date under the Terms Agreement relating to such Offered Shares and, in
addition, to require each non-defaulting Underwriter to purchase its pro rata
share (based on the amount of Offered Shares which such Underwriter agreed to
purchase under such Terms Agreement at such Closing Date) of the Offered Shares
of such defaulting Underwriter or Underwriters for which such arrangements have
not been made; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
(c) If, after giving effect to any arrangements for the purchase of
the Offered Shares of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate number of Offered Shares which remains unpurchased exceeds
one-eleventh of the aggregate number of the Offered Shares to be purchased at
such Closing Date, or if the Company shall not exercise the right described in
subsection (b) above to require non-defaulting Underwriters to purchase Offered
Shares of a defaulting Underwriter or Underwriters, then the Terms Agreement
relating to such Offered Shares (or, with respect to the Option Closing Date,
the obligations of the Underwriters to purchase, and of the Company to sell, the
Option Shares) shall thereupon terminate, without liability on the part of any
non-defaulting Underwriter or the Company, except for the expenses to be borne
by the Company and the Underwriters as provided in Section 4(g) and the
indemnity and contribution agreements in Section 6; but nothing herein shall
relieve a defaulting Underwriter from liability for its default.
8. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and of the several Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation, or statement as to the results thereof, made by or on behalf
of any Underwriter, the Company or any of their respective representatives,
officers or directors or any controlling person and will survive delivery of and
payment for the Offered Shares. If the Terms Agreement is terminated pursuant to
Section 7 or if for any reason the purchase of the Offered Shares by the
Underwriters under the Terms Agreement is not consummated, the Company shall
remain responsible for the expenses to be paid or reimbursed by it pursuant to
Section 4(g) and the respective obligations of the Company and the Underwriters
pursuant to Section 6 shall remain in effect. If the purchase of the Offered
Shares by the Underwriters is not consummated for any reason, other than solely
because of the termination of the Terms Agreement pursuant to Section 7 or the
occurrence of any event specified in clause (ii), (iv), (v) or (vi) of Section
5(c), the Company will reimburse the Underwriters for all out-of-pocket expenses
approved in writing by you, including fees and disbursements of counsel,
reasonably incurred by them in connection with the offering of the Offered
Shares, but the Company shall be under no further liability to any Underwriter
except as provided in Section 4(g) and Section 6.
9. Notices. All statements, requests, notices and agreements hereunder
shall be in writing and if to the Underwriters shall be sufficient in all
respects, if delivered or sent by first class mail, telex, or facsimile
transmission (confirmed in writing by overnight courier sent on the day of such
facsimile transmission) to the address of the Representatives as set forth in
the Terms Agreement; and if to the Company shall be sufficient in all respects
if delivered or sent by air mail, telex, or facsimile transmission (confirmed in
writing by overnight courier sent on the day of such facsimile transmission) to
the address of the Company set forth in the Registration Statement, Attention:
Secretary. Any such statements, requests, notices or agreements shall have
effect upon receipt thereof.
10. Successors. This Agreement will inure solely to the benefit of and
be binding upon the Company and such Underwriters as are identified in Terms
Agreements and their respective officers and directors and controlling persons
referred to in Sections 6 and 8, and the respective heirs, executors,
administrators, successors and assigns, and no other person will acquire or have
any right or obligation hereunder or by virtue of this Agreement. No purchaser
of any of the Offered Shares from any Underwriter shall be deemed a successor or
assign by reason merely of such purchase.
11. Representatives. In all dealings under any Terms Agreement and
hereunder, the Representatives shall act on behalf of each of the Underwriters,
and the parties hereto shall be entitled to act and rely upon any statement,
request, notice or agreement on behalf of any Underwriter made or given by the
Representatives.
12. Submission to Jurisdiction. Each of the parties hereto irrevocably
(i) agrees that any legal suit, action or proceeding arising out of or based
upon a Terms Agreement (including the provisions of this Agreement) or the
transactions contemplated thereby or hereby may be instituted in any New York
Court, (ii) waives, to the fullest extent permitted by applicable law, any
objection which it may now or hereafter have to the laying of venue of any such
proceeding and (iii) submits to the exclusive jurisdiction of such courts in any
such suit, action or proceeding. The Company has appointed Ahold U.S.A., Inc.,
One Atlanta Plaza, 950 East Paces Ferry Road, Suite 2575, Atlanta, Georgia
30326, as its authorized agent (the "Authorized Agent") upon whom process may be
served in any such action arising out of or based on any such Terms Agreement
(including the provisions of this Agreement) or the transactions contemplated
hereby or thereby which may be instituted in any New York Court by any
Underwriter or by any person who controls any Underwriter, expressly consents to
the jurisdiction of any such court in respect of any such action, and waives any
other requirements of or objections to personal jurisdiction with respect
thereto. Such appointment shall be irrevocable. The Company represents and
warrants that the Authorized Agent has agreed to act as such agent for service
of process and agrees to take any and all action, including the filing of any
and all documents and instruments, that may be necessary to continue such
appointment in full force and effect as aforesaid. Service of process upon the
Authorized Agent and written notice of such service to the Company shall be
deemed, in every respect, effective service of process upon the Company.
13. Judgment Currency. In respect of any judgment or order given or
made for any amount due hereunder in United States dollars that is expressed and
paid in a currency (the "judgment currency") other than United States dollars,
the Company will indemnify each Underwriter against any loss incurred by such
Underwriter as a result of any variation as between (i) the rate of exchange at
which the United States dollar amount is converted into the judgment currency
for the purpose of such judgment or order and (ii) the rate of exchange at which
an Underwriter is able to purchase United States dollars with the amount of the
judgment currency actually received by such Underwriter. The foregoing indemnity
shall constitute a separate and independent obligation of the Company and shall
continue in full force and effect notwithstanding any such judgment or order as
aforesaid. The term "rate of exchange" shall include any premiums and costs of
exchange payable in connection with the purchase of or conversion into United
States dollars.
14. Time of Essence. Time shall be of the essence of each Terms
Agreement. As used herein the term "business day" shall mean any day when the
Commission's office in Washington, D.C. is open for business.
15. GOVERNING LAW. THIS AGREEMENT AND EACH TERMS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
16. Counterparts. This Agreement and each Terms Agreement may be
executed by any one or more of the parties hereto and thereto in any number of
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same instrument.
* * *
<PAGE>
If the foregoing is in accordance with your understanding, please sign
and return three counterparts hereof.
Very truly yours,
KONINKLIJKE AHOLD N.V.
By___________________________
Name:
Title:
Accepted as of the date hereof:
[Names of Underwriters]
By: [Representatives]
By______________________
Name:
Title:
On behalf of each of the Underwriters
<PAGE>
ANNEX A
KONINKLIJKE AHOLD N.V.
COMMON SHARES
TERMS AGREEMENT
--------- , ----
[Names and Addresses of
Representatives]
Ladies and Gentlemen:
1. Introductory
Koninklijke Ahold N.V. (Royal Ahold), a public company with limited
liability organized under the laws of The Netherlands, and with its corporate
seat in Zaandam (municipality Zaanstad), The Netherlands (the "Company"),
proposes, subject to the terms and conditions stated herein and in the
Underwriting Agreement, dated _________ __, ____ (the "Underwriting Agreement"),
between the Company on the one hand and __________________, on the other hand,
to issue and sell to the Underwriters named in Schedule I hereto (the
"Underwriters") the number of common shares, par value NLG 0.50 per share, of
the Company (the "Common Shares") specified in Schedule II hereto. Except to the
extent explicitly provided otherwise herein, each of the provisions of the
Underwriting Agreement is incorporated herein by reference in its entirety, and
shall be deemed to be a part of this Terms Agreement to the same extent as if
such provisions had been set forth in full herein; and each of the
representations and warranties set forth therein shall be deemed to have been
made at and as of the date of this Terms Agreement, except that, if this Terms
Agreement and the Underwriting Agreement are dated different dates, each
representation and warranty with respect to the Prospectus in Section 2 of the
Underwriting Agreement shall be deemed to be a representation and warranty as of
the date of the Underwriting Agreement in relation to the Prospectus (as therein
defined) and also a representation and warranty as of the date of this Terms
Agreement in relation to the Prospectus as amended or supplemented relating to
the Common Shares which are the subject of this Terms Agreement. Each reference
to the Representatives herein and in the provisions of the Underwriting
Agreement so incorporated by reference shall be deemed to refer to you. Unless
otherwise defined herein, terms defined in the Underwriting Agreement are used
herein as therein defined. The Representatives designated to act on behalf of
each of the Underwriters of Common Shares are set forth in Schedule II hereto.
Subject to the terms and conditions set forth herein, in Schedule II
hereto and in the Underwriting Agreement incorporated herein by reference, the
Company agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company, at
the time and place and at a purchase price to the Underwriters set forth in
Schedule II hereto, the number of Firm Shares set forth opposite the name of
such Underwriter in Schedule I hereto.
2. Purchase and Offering of Securities
[Subject to the terms and conditions set forth herein, in Schedule II
hereto and in the Underwriting Agreement incorporated herein by reference, the
Company hereby grants an option to the Underwriters, severally and not jointly,
to purchase in the aggregate up to the number of Option Shares set forth on
Schedule II at the same purchase price as shall be applicable to the Firm
Shares. The option hereby granted will expire __ days after the date hereof and
may be exercised, in whole or in part at one time, only for the purpose of
covering over-allotments that may be made in connection with the offering and
distribution of the Firm Shares. Such option may be exercised upon written
notice by the Representatives to the Company setting forth the number of Option
Shares as to which the several Underwriters are exercising the option and the
Option Closing Date. If the option is exercised as to all or any portion of the
Option Shares, the Option Shares as to which the option is exercised shall be
purchased by each Underwriter, severally and not jointly, in the proportion that
the number of Firm Shares set forth opposite the name of such Underwriter in
Schedule I bears to the total number of Firm Shares, subject to such adjustments
as you, in your discretion, shall make to eliminate any sales or purchases of
fractional Offered Shares. No Option Shares shall be sold or delivered unless
the Firm Shares previously have been, or simultaneously are, sold and delivered.
The right to purchase the Option Shares or any portion thereof may be
surrendered and terminated at any time before the exercise thereof upon written
notice by the Representatives to the Company.]
[With respect to all or a portion of the Common Shares to be purchased
and sold by the several Underwriters, the Representatives may elect to have ADSs
delivered and paid for hereunder in lieu of, and in satisfaction of, the
Company's obligation to sell to the several Underwriters and the several
Underwriters' obligations to purchase, Common Shares. Notice of such election
shall be given by the Representatives to the Company at least two business days
prior to the relevant Closing Date (the "Notification Time"). The number of ADSs
to be purchased by the Underwriters as a result of the making of such election
shall be adjusted by the Representatives so as to eliminate any fractional ADSs
and the purchase price for any ADSs so delivered as a result of making such
election shall be the purchase price per ADS set out in Schedule II hereto
Except as the context may otherwise require, references hereinafter to the
Common Shares shall include all of the Common Shares, whether in the form of
Common Shares or ADSs.
If the foregoing is in accordance with your understanding, please sign
and return to us _______ counterparts hereof, and upon acceptance hereof by you,
on behalf of the Underwriters, this Terms Agreement and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement between each of the Underwriters
and the Company. [It is understood that your acceptance of this letter on behalf
of each of the Underwriters is or will be pursuant to the authority set forth in
a form of Agreement among Underwriters, the form of which shall be supplied to
the Company upon request, but without warranty on your part (other than as to
yourselves) as to the authority of the signers thereof.]
Very truly yours,
KONINKLIJKE AHOLD N.V.
By___________________________
Name:
Title:
Accepted as of the date hereof:
[Names of Underwriters]
By: [Representatives]
By______________________
Name:
Title:
On behalf of each of the Underwriters
<PAGE>
SCHEDULE I
Number of
Firm Shares
Underwriter to be Purchased
------------
Total....................... ============
<PAGE>
SCHEDULE II
TITLE OF SECURITIES: Common Shares/ADSs
DEPOSITARY:
AGGREGATE NUMBER OF FIRM SHARES:
AGGREGATE NUMBER OF OPTION SHARES:
PRICE TO PUBLIC:
[$]___________ per Share
[$]___________ per ADS
PURCHASE PRICE PAID BY UNDERWRITERS:
[$]___________ per Share
[$]___________ per ADS
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
[Federal funds]
[New York Clearinghouse funds]
FIRM CLOSING DATE:
[Time and date], ____
CLOSING LOCATION:
BLACKOUT PERIOD:
[None]
[For a period beginning at the time of execution of the Terms
Agreement and ending [90] days thereafter, the Company will
not, directly or indirectly, without the prior written consent
of the Representatives, offer, sell, contract to sell or
otherwise dispose of for value Common Shares, ADSs or
securities representing, convertible into or exchangeable for,
or any rights to purchase or acquire, Common Shares or ADSs,
other than (1) pursuant to the Terms Agreement, (2) Shares
issued pursuant to a stock dividend, (3) Shares or options for
Shares issued to officers and employees of the Company or any
of its subsidiaries under any stock plan existing at the time
of execution of the Terms Agreement or any future such plan,
or any Shares issued upon exercise of any such options, or (4)
Shares issued upon the exercise of any options or other
securities exercisable for Shares, or the conversion or
exchange of convertible or exchangeable securities, in each
case, outstanding at the time of execution of the Terms
Agreement; provided, however, it is understood and agreed
that, notwithstanding the foregoing, the Company may announce
an offering of Common Shares and/or ADSs in connection with an
acquisition or similar corporate transaction and may engage in
negotiations with prospective underwriters and others in
connection with such offering.
[Insert terms, if other than as above]
NAMES AND ADDRESSES OF REPRESENTATIVES:
ADDRESS FOR NOTICES, ETC.:
<PAGE>
ANNEX B
DESCRIPTION OF COMFORT LETTER
Pursuant to Section 5(a) of the Underwriting Agreement, the
accountants shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect to
the Company and its subsidiaries within the meaning of the Securities Act
of 1933, as amended, (the "Act") and the applicable published rules and
regulations thereunder;
(ii) In their opinion, the financial statements and any supplementary
financial information and schedules (and, if applicable, financial
forecasts and/or pro forma financial information) examined by them and
included or incorporated by reference in the Registration Statement or the
Prospectus comply as to form in all material respects with the applicable
accounting requirements of the Act or the Securities Exchange Act, of 1934,
as amended (the "Exchange Act"), as applicable, and the related published
rules and regulations thereunder; and, if applicable, they have made a
review in accordance with standards established by the American Institute
of Certified Public Accountants of the consolidated interim financial
statements, selected financial data, pro forma financial information,
financial forecast and/or condensed financial statements derived from
audited financial statements of the Company for the periods specified in
such letter, as indicated in their reports thereon, copies of which have
been furnished to the representatives of the Underwriters (the
"Representatives");
(iii) They have made a review in accordance with standards established
by the American Institute of Certified Public Accountants of the unaudited
condensed consolidated statements of income, consolidated balance sheets
and consolidated statements of cash flows included in the Company's reports
on Form 6-K incorporated by reference into the Prospectus and, if
applicable, included in the Prospectus, as indicated in their reports
thereon; and on the basis of specified procedures including inquiries of
officials of the Company who have responsibility for financial and
accounting matters regarding whether the unaudited condensed consolidated
financial statements referred to in paragraph (vi)(A)(i) below comply as to
form in all material respects with the applicable accounting requirements
of the Act and the Exchange Act and the related published rules and
regulations, nothing came to their attention that caused them to believe
that the unaudited condensed consolidated financial statements do not
comply as to form in all material respects with the applicable accounting
requirements of the Act and the Exchange Act and the related published
rules and regulations;
(iv) The unaudited selected financial information with respect to the
consolidated results of operations and financial position of the Company
for the five most recent fiscal years included or incorporated by reference
in Item 8 of the Company's Annual Report on Form 20-F for the most recent
fiscal year and, if applicable, included, in the Prospectus agrees with the
corresponding amounts (after restatement where applicable) in the audited
consolidated financial statements for such five fiscal years which were
included or incorporated by reference in the Company's Annual Reports on
Form 20-F for such fiscal years;
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K and on
the basis of limited procedures specified in such letter nothing came to
their attention as a result of the foregoing procedures that caused them to
believe that this information does not conform in all material respects
with the disclosure requirements of Items 8 and 11 of Form 20-F and of
Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available interim
financial statements of the Company and its subsidiaries, inspection of the
minute books of the Company and its subsidiaries since the date of the
latest audited financial statements incorporated by reference in the
Prospectus and, if applicable, included in the Prospectus, inquiries of
officials of the Company and its subsidiaries responsible for financial and
accounting matters and such other inquiries and procedures as may be
specified in such letter, nothing came to their attention that caused them
to believe that:
(A) (i) the unaudited condensed consolidated statements of
income, consolidated balance sheets and consolidated statements of
cash flows included or incorporated by reference in a report on Form
6-K incorporated by reference in the Prospectus and, if applicable,
included in the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the Exchange
Act and the related published rules and regulations, or (ii) any
material modifications should be made to the unaudited condensed
consolidated statements of income, consolidated balance sheets and
consolidated statements of cash flows or included in a report on Form
6-K incorporated by reference in the Prospectus, for them to be in
conformity with generally accepted accounting principles;
(B) any other unaudited income statement data and balance sheet
items incorporated by reference in the Prospectus do not agree with
the corresponding items in the unaudited consolidated financial
statements from which such data and items were derived, and any such
unaudited data and items were not determined on a basis substantially
consistent with the basis for the corresponding amounts in the audited
consolidated financial statements included or incorporated by
reference in the Company's Annual Report on Form 20-F for the fiscal
year ended __________;
(C) the unaudited financial statements which were not included in
the Prospectus or incorporated by reference therein but from which
were derived the unaudited condensed financial statements referred to
in Clause (A) and any unaudited income statement data and balance
sheet items included in the Prospectus or incorporated by reference
therein and referred to in Clause (B) were not determined on a basis
substantially consistent with the basis for the audited financial
statements included or incorporated by reference in the Company's
Annual Report on Form 20-F for the fiscal year ended December 29,
1996;
(D) any unaudited pro forma consolidated condensed financial
statements incorporated by reference in the Prospectus and, if
applicable, included in the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of the
Act and the published rules and regulations thereunder or the pro
forma adjustments have not been properly applied to the historical
amounts in the compilation of those statements;
(E) as of a specified date not more than five days prior to the
date of such letter, there have been any changes in the consolidated
capital stock (other than issuances of capital stock upon exercise of
options and stock appreciation rights, upon earn-outs of performance
shares and upon conversions of convertible securities, in each case
which were outstanding on the date of the latest balance sheet
incorporated by reference in the Prospectus or, if applicable,
included in the Prospectus) or any increase in the consolidated
long-term debt of the Company and its subsidiaries, or any decreases
in consolidated net current assets or stockholders' equity or other
items specified by the Representatives, or any increases in any items
specified by the Representatives, in each case as compared with
amounts shown in the latest balance sheet incorporated by reference in
the Prospectus or, if applicable, included in the Prospectus, except
in each case for changes, increases or decreases which the Prospectus
discloses have occurred or may occur or which are described in such
letter; and
(F) for the period from the date of the latest financial
statements included or incorporated by reference in the Prospectus to
the specified date referred to in Clause (E) there were any decreases
in consolidated net revenues or operating profit or the total or per
share amounts of consolidated net income or other items specified by
the Representatives, or any increases in any items specified by the
Representatives in each case as compared with the comparable period of
the preceding year and with any other period of corresponding length
specified by the Representatives, except in each case for increases or
decreases which the Prospectus discloses have occurred or may occur or
which are described in such letter; and
(vii) In addition to the examination referred to in their report(s)
incorporated by reference in the Prospectus and the limited procedures,
inspection of minute books, inquiries and other procedures referred to in
paragraphs (iii) and (vi) above, they have carried out certain specified
procedures, not constituting an examination in accordance with generally
accepted auditing standards, with respect to certain amounts, percentages
and financial information specified by the Representatives which are
derived from the general accounting records of the Company and its
subsidiaries, which appear in the Prospectus (excluding documents
incorporated by reference) or in Part II of, or in exhibits and schedules
to, the Registration Statement specified by the Representatives or in
documents incorporated by reference in the Prospectus specified by the
Representatives, and have compared certain of such amounts, percentages and
financial information with the accounting records of the Company and its
subsidiaries and have found them to be in agreement.
KONINKLIJKE AHOLD N.V.
Debt Securities
Underwriting Agreement
----------------------
-------------, ----
Ladies and Gentlemen:
1. Introductory. Koninklijke Ahold N.V. (Royal Ahold), a public
company with limited liability organized under the laws of The Netherlands, and
with its corporate seat in Zaandam (municipality Zaanstad), The Netherlands (the
"Company"), proposes to issue and sell from time to time certain of its debt
securities registered under the registration statement referred to in Section
2(a) (the "Debt Securities"). Debt Securities may be convertible into common
shares of the Company, par value NLG 0.50 per share ("Common Shares"). The Debt
Securities will be issued under an indenture, dated as of __________, _____ (the
"Indenture"), between the Company and ______________________, as Trustee (the
"Trustee"), in one or more series, which series may vary as to interest rates,
maturities, redemption provisions, selling prices and, in the case of Debt
Securities that are convertible at the option of holders into Common Shares
("Convertible Debt Securities"), conversion prices and the terms and conditions
relating to such conversion rights, and other terms, with all such terms for any
particular series of the Debt Securities being determined at the time of sale.
Particular series of the Debt Securities will be sold pursuant to a
Terms Agreement referred to in Section 3 in the form of Annex A attached hereto,
for resale in accordance with the terms of offering determined at the time of
sale. The Debt Securities involved in any such offering are hereinafter referred
to as the "Securities". The firm or firms which agree to purchase the Securities
are hereinafter referred to as the "Underwriters" of such Securities, and the
representative or representatives of the Underwriters, if any, specified in a
Terms Agreement referred to in Section 3 are hereinafter referred to as the
"Representatives"; provided, however, that if the Terms Agreement does not
specify any representative of the Underwriters, the term "Representatives", as
used in this Agreement (other than in the second sentence of Section 3) shall
mean the Underwriters.
Pursuant to the Terms Agreement referred to in Section 3, the
Underwriters may have the right to elect to take delivery of some or all of the
Securities in the form of Debt Securities or in the form of American Depositary
Notes (the "ADNs"). The ADNs are to be issued pursuant to an amended and
restated deposit agreement specified in the Terms Agreement (the "Deposit
Agreement"), among the Company, the depositary specified in the Terms Agreement
(the "Depositary"), and the registered holders from time to time of the American
Depositary Note Receipts (the "ADNRs") issued by the Depositary and evidencing
the ADNs. Each ADN will initially represent the right to receive Debt Securities
deposited pursuant to the Deposit Agreement in the principal amount specified in
the Terms Agreement. Except as the context may otherwise require, references to
"Securities" shall include Debt Securities in the form of ADNs. In the case of
Debt Securities that are Convertible Debt Securities, if so specified in the
Terms Agreement referred to in Section 3, such Debt Securities may be
convertible into Common Shares.
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, each Underwriter that:
(a) A registration statement on Forms F-3 and S-3 (Nos. 333-71383 and
333-71383-01), including a prospectus relating to the Debt Securities, has
been filed with the Securities and Exchange Commission (the "Commission")
and has been declared effective by the Commission. The various parts of
such registration statement, as amended at the time of the execution of the
Terms Agreement referred to in Section 3, including all exhibits thereto
(but excluding the Trustees' Statements of Eligibility on Form T-1) and the
documents incorporated by reference in the prospectus contained in such
registration statement at the time of execution of the Terms Agreement
referred to in Section 3, are hereinafter collectively referred to as the
"Registration Statement"; any prospectus included in the Registration
Statement at the time it became effective or in any post-effective
amendment thereto filed prior to the time of execution of the Terms
Agreement referred to in Section 3 at the time such amendment became
effective or filed with the Commission pursuant to and in accordance with
Rule 424(b) ("Rule 424(b)") of the rules and regulations of the Commission
(the "Rules and Regulations") under the Securities Act of 1933, as amended
(the "Act"), prior to the time of the execution of the Terms Agreement
referred to in Section 3, as supplemented by a preliminary prospectus
supplement reflecting the proposed terms of the offering of the Securities
that is filed with the Commission pursuant to and in accordance with Rule
424(b) prior to the time of the execution of the Terms Agreement referred
to in Section 3, including all material incorporated therein by reference,
is hereinafter referred to as a "Preliminary Prospectus", and the
prospectus included in the Registration Statement, as supplemented by a
prospectus supplement as contemplated by Section 3 to reflect the terms of
the offering of the Securities, as first filed with the Commission pursuant
to and in accordance with Rule 424(b) including all material incorporated
by reference therein, is hereinafter referred to as the "Prospectus". Any
reference to any amendment or supplement to any Preliminary Prospectus or
the Prospectus shall be deemed to refer to and include any documents filed
after the date of such Preliminary Prospectus or Prospectus, as the case
may be, under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and incorporated by reference in such Prospectus or
Preliminary Prospectus, as the case may be. No stop order suspending the
effectiveness of the Registration Statement or preventing or suspending the
use of any Preliminary Prospectus or the Prospectus has been issued and no
proceeding for that purpose has been instituted or, to the knowledge of the
Company, threatened by the Commission.
(b) The Registration Statement relating to the Debt Securities, on the
effective date thereof, and any Preliminary Prospectus, as of its date,
conformed in all material respects to the requirements of the Act and the
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), and
the rules and regulations of the Commission thereunder and did not include
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading, and the Registration Statement and the Prospectus, on the
date of the Terms Agreement referred to in Section 3, will conform in all
material respects to the requirements of the Act, the Trust Indenture Act
and the rules and regulations of the Commission thereunder, and neither of
such documents will include any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to
make the statements therein (in the case of the Prospectus, in light of the
circumstances under which they were made) not misleading, except that the
foregoing representations do not apply to statements in or omissions from
any of such documents based upon written information furnished to the
Company by any Underwriter specifically for use therein.
(c) The documents incorporated by reference into the Prospectus, when
they were filed with the Commission, conformed in all material respects to
the requirements of the Exchange Act and the rules and regulations
thereunder, and none of such documents when so filed included any untrue
statement of a material fact or omitted to state any material fact required
to be stated therein or necessary to make the statements therein not
misleading, and each document, if any, hereafter filed and so incorporated
by reference in the Prospectus and any further amendment or supplement
thereto (other than documents incorporated by reference therein relating
solely to an offering of securities other than the Securities) when such
documents are filed with the Commission will conform in all material
respects to the requirements of the Exchange Act and the rules and
regulations of the Commission thereunder and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading, except that the foregoing representations do not apply to
statements in or omissions from any of such documents based upon written
information furnished to the Company by any Underwriter specifically for
use therein.
(d) If, pursuant to the Terms Agreement referred to in Section 3, the
Underwriters have the right to take delivery of some or all of the Debt
Securities in the form of ADNs, a registration statement on Form F-6 (No.
333-9378) in respect of the ADNs has been filed with the Commission and has
been declared effective by the Commission; no stop order suspending the
effectiveness of such registration statement has been issued and no
proceeding for that purpose has been initiated or, to the knowledge of the
Company, threatened by the Commission (the various parts of such
registration statement, including all exhibits thereto, each as amended at
the time of the Terms Agreement referred to in Section 3, being hereinafter
called the "ADN Registration Statement"); the ADN Registration Statement
when it became effective conformed, and any further amendment thereto when
it becomes effective will conform, in all material respects to the
requirements of the Act and the Rules and Regulations; the ADN Registration
Statement when it became effective did not, and any further amendment
thereto when it becomes effective will not, contain an untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and, on
the date of any Terms Agreement referred to in Section 3, the ADN
Registration Statement will conform in all material respects to the
requirements of the Act and the Rules and Regulations and it will not
include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading.
(e) Neither the Company nor any of the Significant Subsidiaries (as
defined below) has sustained since the date of the latest audited financial
statements included in the Prospectus or incorporated by reference therein,
any loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, in either case
material to the Company and its subsidiaries taken as a whole and otherwise
than as set forth or contemplated in the Prospectus; and, since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, there has not been any change in the capital
stock or consolidated long-term debt of the Company or any material adverse
change, or any development involving a prospective material adverse change,
in or affecting the general affairs, financial position, shareholders'
equity or results of operations of the Company and its subsidiaries taken
as a whole or the officers and directors of the Company, otherwise than as
set forth or contemplated in the Prospectus. As used in this Agreement, the
term "Significant Subsidiary" refers to Albert Heijn B.V., BI-LO Inc.,
Giant Food Stores, Inc., Ahold Vastgoed B.V., Tops Markets, Inc., Giant
Food Inc. and The Stop & Shop Companies, Inc.
(f) The Company has been duly incorporated and is validly existing
under the laws of The Netherlands as a legal entity in the form of a
"naamloze vennootschap" (a public company with limited liability), with
corporate power and corporate authority to own or lease its properties and
conduct its business as described in the Prospectus, and has been duly
qualified as a foreign corporation for the transaction of business and is
in good standing (where applicable) under the laws of each other
jurisdiction in which it owns or leases properties or conducts any business
so as to require such qualification, or is subject to no material liability
or disability by reason of the failure to be so qualified in any such
jurisdiction; and each Significant Subsidiary has been duly incorporated
and is validly existing as a corporation in good standing (where
applicable) under the laws of its jurisdiction of incorporation.
(g) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued, and are fully paid and
non-assessable; all of the issued shares of capital stock of each
Significant Subsidiary have been duly and validly authorized and issued,
are fully paid and non-assessable and are owned directly or indirectly by
the Company, free and clear of all liens, encumbrances, equities or claims;
in the case of Debt Securities that are Convertible Debt Securities, the
holders of outstanding shares of capital stock of the Company will not be
entitled to preemptive or other rights to acquire the Common Shares
issuable upon conversion thereof, such rights (if applicable) having been
excluded by resolution of the Corporate Executive Board which has been
approved by the Supervisory Board in accordance with the Articles of
Association of the Company, the Corporate Executive Board being entitled to
exclude such rights with respect to Common Shares by authorization of the
general meeting of shareholders.
(h) The Securities to be issued and sold by the Company to the
Underwriters under the Terms Agreement referred to in Section 3 have been
duly and validly authorized and, when the Securities are issued,
authenticated and delivered in accordance with the provisions of the
Indenture and pursuant to such Terms Agreement against payment therefor as
provided therein, will constitute valid and legally binding instruments,
enforceable in accordance with their terms, subject, as to enforceability,
to bankruptcy, insolvency, reorganization and similar laws of general
applicability relating to or affecting creditors' rights and to general
principles of equity; the Securities conform in all material respects to
the description thereof contained in the Prospectus.
(i) If, pursuant to the Terms Agreement referred to in Section 3, the
Underwriters have the right to take delivery of some or all of the
Securities in the form of ADNs, the Deposit Agreement has been duly
authorized, executed and delivered by the Company and, assuming due
authorization, execution and delivery by the Depositary, constitutes a
valid and legally binding agreement of the Company, enforceable in
accordance with its terms, subject, as to enforceability, to bankruptcy,
insolvency, reorganization and similar laws of general applicability
relating to or affecting creditors' rights and to general principles of
equity; upon issuance by the Depositary of ADNRs evidencing ADNs and the
deposit of Debt Securities in respect thereof in accordance with the
provisions of the Deposit Agreement, such ADNRs will be duly and validly
issued and the persons in whose names the ADNRs are registered will be
entitled to the rights specified therein and in the Deposit Agreement; and
the Deposit Agreement and the ADNRs conform in all material respects to the
descriptions thereof contained in the Prospectus.
(j) The Indenture has been duly qualified under the Trust Indenture
Act and has been duly authorized, executed and delivered by the Company
and, assuming due authorization, execution and delivery by the Trustee,
constitutes a valid and legally binding agreement of the Company,
enforceable in accordance with its terms, subject, as to enforceability, to
bankruptcy, insolvency, reorganization and similar laws of general
applicability relating to or affecting creditors' rights and to general
principles of equity; the Indenture conforms in all material respects to
the descriptions thereof contained in the Prospectus.
(k) If the Debt Securities are Convertible Debt Securities, the Common
Shares initially issuable upon conversion thereof (i) will have been duly
and validly authorized, (ii) when such Common Shares are issued and
delivered upon such conversion, will be duly and validly issued, provided
that upon conversion pursuant to the terms thereof at least the nominal
value of such Common Shares and any premium is paid up, and fully paid and
non-assessable and will conform to the description of the Common Shares
contained in the Prospectus, and (iii) when such Common Shares are issued
and delivered, may be freely deposited with the depositary for the Common
Shares against issuance of American depositary receipts evidencing American
depositary shares, as provided in the Deposit Agreement, dated January 20,
1998 among the Company, the Bank of New York, as depositary and all owners
and beneficial owners from time to time of the American depositary receipts
issued thereunder.
(l) The issue and sale of the Securities to be sold by the Company
under the Terms Agreement referred to in Section 3, the issuance of Common
Shares (if the Debt Securities include Convertible Debt Securities) and, if
applicable, the deposit of the Debt Securities with the Depositary against
issuance of ADNRs evidencing the ADNs and the compliance by the Company
with all of the provisions of such Securities, this Agreement, such Terms
Agreement, the Indenture and, if applicable, the Deposit Agreement and the
consummation of the transactions herein and therein contemplated will not
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any material indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company or any of the Significant Subsidiaries is a party or by
which the Company or any of the Significant Subsidiaries is bound or to
which any of the property or assets of the Company or any of the
Significant Subsidiaries is subject, nor will such action result in any
violation of the provisions of the Articles of Association of the Company
or any statute or any order, rule or regulation of any Governmental Agency
having jurisdiction over the Company or any of the Significant Subsidiaries
or any of their properties; and no Governmental Authorizations are required
for the issue and sale of the Securities or, if applicable, for the deposit
of the Debt Securities with the Depositary against issuance of ADNRs
evidencing ADNs to be delivered or the consummation by the Company of the
transactions contemplated by this Agreement, the Terms Agreement referred
to in Section 3 and the Indenture, except (A) the registration under the
Act of the Securities and, if applicable, the ADNs, (B) such Governmental
Authorizations as have been duly obtained and are in full force and effect
and copies of which have been furnished to you and (C) such Governmental
Authorizations as may be required under state securities or Blue Sky laws
or any laws of jurisdictions outside The Netherlands and the United States
in connection with the purchase and distribution of the Securities by or
for the account of the Underwriters.
(m) Neither the Company nor any of its majority-owned subsidiaries has
taken, directly or indirectly, any action which was designed to or which
has constituted or which might reasonably be expected to cause or result in
stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Securities; provided, however, that
this provision shall not apply to stabilization or other activities
conducted by the Underwriters or on their behalf, as described in the
Prospectus.
(n) No stamp or other issuance or transfer taxes or duties are payable
by or on behalf of the Underwriters to The Netherlands or to any political
subdivision or taxing authority thereof or therein in connection with (x)
if applicable, the deposit with the Depositary of Debt Securities by the
Company against issuance of ADNRs evidencing ADNs, (y) the sale and
delivery by the Company of the Securities to or for the respective accounts
of the Underwriters or (z) the sale and delivery outside The Netherlands by
the Underwriters of the Securities to the initial purchasers thereof in the
manner contemplated in this Agreement, the Terms Agreement and the
Indenture and no withholding on account of any Dutch taxes is required with
respect to payments made to holders of the Securities as provided therein
and in the Indenture.
(o) No capital gains, income, or withholding taxes are payable by or
on behalf of the Underwriters to The Netherlands or to any political
subdivision or taxing authority thereof or therein in connection with (x)
if applicable, the deposit with the Depositary of Debt Securities by the
Company against issuance of ADNRs evidencing ADNs, (y) the sale and
delivery by the Company of the Securities to or for the respective accounts
of the Underwriters or (z) the sale and delivery outside The Netherlands by
the Underwriters of the Securities to the initial purchasers thereof in the
manner contemplated in this Agreement and the Terms Agreement, provided
that: (1) the Underwriter is not a resident or deemed resident of The
Netherlands; (2) the Underwriter does not have an enterprise which in its
entirety or in part carries on business in The Netherlands through a
permanent establishment or permanent representative to which or to whom the
Securities or ADNs are attributable, or to which or to whom the Securities
or ADNs belong; and (3) the Underwriter does not and will not, as a result
of the transactions referred to in clauses (x), (y) and/or (z) referred to
above, have a substantial interest or deemed substantial interest as
defined in Article 20a of the Dutch Income Tax Act in the share capital of
the Company or, in the event that there is such an interest, such interest
belongs to the business of an enterprise.
(p) The statements set forth in the Prospectus under the caption
"Taxation--U.S. Taxation" and, if applicable, "Description of American
Depositary Receipts Relating to Notes of Royal Ahold", insofar as they
purport to describe the provisions of the laws referred to therein or to
provisions of documents therein described, are accurate, complete and fair
in all material respects.
(q) The statements set forth in the Prospectus under the caption
"Taxation--Netherlands Taxation" insofar as they relate to matters of Dutch
tax law or regulation or to provisions of documents therein described, are
true and accurate in all material respects.
(r) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any of
its subsidiaries is the subject which are reasonably likely, individually
or in the aggregate, to have a material adverse effect on the current or
future consolidated financial position, shareholders' equity or results of
operations of the Company and its subsidiaries taken as a whole; and, to
the best of the Company's knowledge, no such proceedings are threatened or
contemplated by any Governmental Agency or threatened by others.
(s) The Company is not and, after giving effect to the offering and
sale of the Securities, will not be an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment Company Act").
(t) The Company and each of its subsidiaries have all licenses,
franchises, permits, authorizations, approvals and orders and other
concessions of and from all Governmental Agencies that are necessary to own
or lease their properties and conduct their businesses as described in the
Prospectus except for such licenses, franchises, permits, authorizations,
approvals and orders the failure to obtain which individually or in the
aggregate, will not have a material adverse effect on the general affairs,
consolidated financial position or results of operation of the Company and
its subsidiaries taken as a whole.
(u) The Company is not a Passive Foreign Investment Company ("PFIC")
within the meaning of Section 1297 of the United States Internal Revenue
Code of 1986, as amended.
(v) Deloitte & Touche, Registeraccountants, who have certified certain
financial statements of the Company and its subsidiaries, are independent
public accountants as required by the Act and the Rules and Regulations.
3. Purchase and Offering of Securities. The obligation of the Company
to issue and sell any Securities, the obligation of the Underwriters to purchase
the Securities will be set forth in a Terms Agreement (the "Terms Agreement")
which shall be in the form of an executed writing (which may be handwritten),
and may be evidenced by an exchange of telegraphic or any other rapid
transmission device designed to produce a written record of communications
transmitted at the time the Company determines to sell the Securities. The Terms
Agreement will incorporate by reference the provisions of this Agreement, except
as otherwise provided therein, and will specify the following: the firm or firms
which will be Underwriters; the names of any Representatives; the aggregate
principal amount of the Securities; the principal amount of Securities to be
purchased by each Underwriter; the initial public offering price of the
Securities; the purchase price to be paid by the Underwriters, the terms of the
Securities not already specified in the Indenture, including, but not limited
to, dates of payment and rate of interest, if any, maturity, any redemption or
repayment provisions and any sinking fund requirements, and whether the
Underwriters have the right to take delivery of some or all of the Securities in
the form of ADNs and, if so, the terms for exercise thereof. The Terms Agreement
will also specify the place of delivery and payment for the Securities and any
details of the terms of offering that should be reflected in the prospectus
supplement relating to the offering of the Securities.
The time and date of delivery and payment of the Securities will be
the time and date specified in the Terms Agreement, or such other time not later
than seven full business days thereafter as the Representatives and the Company
agree as the time for payment and delivery of the Securities (such time and
date, being herein and in the Terms Agreement referred to as the "Closing
Date").
The obligations of the Underwriters to purchase the Securities will be
several and not joint. It is understood that the Underwriters propose to offer
the Securities for sale as set forth in the Prospectus. The Securities delivered
to the Underwriters on the Closing Date will be in definitive fully registered
form, in such denominations and registered in such names as the Underwriters may
request.
4. Certain Agreements of the Company. The Company agrees with the
several Underwriters that it will furnish to ________, counsel for the
Underwriters, one copy of the Registration Statement relating to the Debt
Securities and, if the Underwriters have the right to elect to take delivery of
some or all of the Securities in the form of ADNs, one copy of the ADN
Registration Statement, including all exhibits, in the form in which each became
effective and of all amendments thereto and that, in connection with each
offering of Securities:
(a) The Company will prepare the Prospectus in a form approved by the
Representatives and will file the Prospectus with the Commission pursuant
to and in accordance with Rule 424(b) under the Act not later than the
Commission's close of business on the second business day following
execution and delivery of the Terms Agreement referred to in Section 3 and
will make no further amendment to the Registration Statement or amendment
or supplement to the Prospectus (other than those relating solely to an
offering of securities other than the Securities) prior to the Closing Date
which in any case shall be disapproved by the Representatives promptly
after reasonable notice thereof.
(b) During the time when a prospectus relating to the Securities is
required to be delivered under the Act, (i) the Company will advise the
Representatives, promptly after it receives notice thereof, of the time
when any amendment to the Registration Statement has been filed or becomes
effective or any supplement to the Prospectus or any amended Prospectus has
been filed (other than those relating solely to an offering of securities
other than the Securities) and furnish the Representatives copies thereof;
(ii) the Company will file promptly all reports required to be filed by the
Company with the Commission pursuant to Section 13(a), 13(c), 14(d) or
15(d) of the Exchange Act subsequent to the date of the Prospectus; (iii)
the Company will advise the Representatives promptly of any request by the
Commission for the amending or supplementing of the Registration Statement
or of any part thereof or for additional information (other than solely in
respect of an offering of securities other than the Securities), and will
advise the Representatives promptly of the institution by the Commission of
any stop order proceedings in respect of the Registration Statement or of
any part thereof and will use its best efforts to prevent the issuance of
any such stop order and to obtain as soon as possible its lifting, if
issued; and (iv) the Company will advise the Representatives promptly of
the receipt by the Company of any notification with respect to the
suspension of the qualification of the Securities for sale in any
jurisdiction or the initiation or threat of any proceeding for such
purpose.
(c) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of
which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made when such Prospectus is delivered, not
misleading, or if for any other reason it is necessary at any time to amend
or supplement the Prospectus or to file under the Exchange Act any document
to be incorporated by reference in the Prospectus in order to comply with
the Act, the Trust Indenture Act or the Exchange Act, the Company promptly
will notify the Representatives and at the Representatives' request file
such document and prepare and furnish without charge to each Underwriter
and to any dealer in securities as many copies as the Representatives may
from time to time reasonably request of an amended Prospectus or a
supplement to the Prospectus, or the document that will be filed under the
Exchange Act so as to be incorporated by reference in the Prospectus, which
will correct such statement or omission or effect such compliance,
provided, that in case any Underwriter is required to deliver a prospectus
in connection with sales of any of the Securities or, if applicable, ADNs
at any time nine months or more after the time of issue of the Prospectus,
upon the Representatives' request but at the expense of such Underwriter,
the Company promptly will prepare and deliver to such Underwriter as many
copies as the Representatives may request of an amended or supplemented
Prospectus complying with Section 10(a)(3) of the Act. Neither the
Representatives' consent to, nor the Underwriters' delivery of, any such
amendment or supplement shall constitute a waiver of any of the conditions
set forth in Section 5.
(d) If necessary, the Company will promptly from time to time take
such action as the Representatives may reasonably request to qualify the
Securities for offering and sale and to determine their eligibility for
investment under the securities laws of such jurisdictions as the
Representatives may request and to comply with such laws as to permit the
continuance of sales and dealings therein in such jurisdictions for so long
as may be necessary to complete the distribution of the Securities,
provided that in connection therewith the Company shall not be required to
qualify as a foreign corporation or to file a general or unlimited consent
to process in any jurisdiction.
(e) The Company will make generally available to its security holders
as soon as practicable, but in any event not later than eighteen months
after the effective date of the Registration Statement (as defined in Rule
158(c) under the Act), an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a) of
the Act and the Rules and Regulations (including, at the option of the
Company, Rule 158 under the Act).
(f) The Company will furnish to the Representatives copies of the
Registration Statement, including all exhibits, any Preliminary Prospectus
and the Prospectus and during the time when a prospectus relating to the
Securities is required to be delivered under the Act, all amendments and
supplements to such documents (other than those solely relating to an
offering of securities other than the Securities), in each case as soon as
available and in such quantities as are reasonably requested.
(g) The Company will pay or cause to be paid the following: (i) the
fees, disbursements and expenses of the Company's counsel and accountants
in connection with the registration of the Debt Securities and, if
applicable, the ADNs under the Act and all other expenses in connection
with the preparation, printing and filing of the Registration Statement,
the ADN Registration Statement (if applicable), any Preliminary Prospectus
and the Prospectus and amendments and supplements thereto and the mailing
and delivering of copies thereof to the Underwriters and dealers; (ii) the
cost of printing any Agreement among Underwriters, any Selling Agreements,
this Agreement, any Terms Agreement, the Deposit Agreement (if applicable),
the Indenture, any Blue Sky Memorandum, Legal Investment Survey and any
other documents in connection with the offering, purchase, sale and
delivery of the Securities; (iii) if applicable, all reasonable expenses in
connection with the qualification of the Securities for offering and sale
under state securities laws as provided in Section 4(d), including the
reasonable fees and disbursements of counsel for the Underwriters in
connection with any Blue Sky Memorandum or Legal Investment Survey; (iv)
any fees charged by securities rating services for rating the Securities;
(v) the cost of preparing the Securities; (vi) the fees and expenses
(including fees and disbursements of counsel) of the Trustee under the
Indenture; (vii) the fees and expenses of the Authorized Agent (as defined
in Section 12); (viii) if applicable, the fees and expenses (including fees
and disbursements of counsel), if any, of the Depositary and any custodian
appointed under the Deposit Agreement, other than the fees and expenses to
be paid by holders of ADNs (other than the Underwriters in connection with
the initial purchase of ADNs, if any, pursuant to a Terms Agreement
referred to in Section 3); (ix) if applicable, except as provided below,
all stamp or transfer taxes, if any, arising as a result of the deposit by
the Company of the Debt Securities with the Depositary, if applicable, and
the issuance and delivery of the ADNRs evidencing ADNs in exchange therefor
by the Depositary to the Company, of the sale and delivery of the Debt
Securities by the Company to or for the account of the Underwriters and by
the Underwriters to each other and to or for the account of the initial
purchasers thereof in the manner contemplated hereunder; and (x) all other
costs and expenses incident to the performance of its obligations hereunder
which are not otherwise specifically provided for in this Section;
provided, however, that, the Underwriters will pay all of their own costs
and expenses, including the fees of their counsel, travel expenses and any
advertising expenses incurred in connection with the transactions
contemplated hereby.
(h) To use the net proceeds received by it from the sale of the
Securities pursuant to this Agreement and the Terms Agreement referred to
in Section 3 in the manner specified in the Prospectus under the caption
"Use of Proceeds".
(i) If the Underwriters have the right under the Terms Agreement
referred to in Section 3 to take delivery of some or all of the Securities
in the form of ADNs and if they have elected to take delivery of some or
all of the Securities in the form of ADNs, prior to the relevant Closing
Date, the Company will deposit the relevant Debt Securities with the
Depositary in accordance with the provisions of the Deposit Agreement and
otherwise will comply with the Deposit Agreement so that ADNRs evidencing
the requisite number of ADNs will be executed (and, if applicable,
countersigned) and issued by the Depositary against receipt of such Debt
Securities and delivered to the Underwriters on the Closing Date.
5. Conditions of the Obligations of the Underwriters. The obligations
of the several Underwriters to purchase and pay for the Securities on the
Closing Date will be subject, in their discretion, to the truth and accuracy of
the representations and warranties on the part of the Company herein at and as
of the Closing Date, to the truth and accuracy of the written statements of
Company officers made pursuant to the provisions hereof at and as of the Closing
Date, to the performance by the Company of its obligations hereunder and to the
following additional conditions precedent:
(a) The Representatives shall have received a letter, dated the
Closing Date, of Deloitte & Touche, Registeraccountants, in form and
substance satisfactory to the Representatives, to the effect set forth in
Annex B hereto.
(b) The Prospectus shall have been filed with the Commission pursuant
to Rule 424(b) of the Act within the applicable time period prescribed for
such filing by the Rules and Regulations and in accordance with Section
4(a) of this Agreement. No stop order suspending the effectiveness of the
Registration Statement or, if applicable, the ADN Registration Statement or
of any part thereof shall have been issued and no proceedings for that
purpose shall have been instituted or shall have been threatened by the
Commission. All requests for additional information on the part of the
Commission shall have been complied with to the Representatives' reasonable
satisfaction.
(c) Subsequent to the execution of the Terms Agreement, there shall
not have occurred (i) any downgrading in the rating of any debt securities
of the Company by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) of the Rules and
Regulations), or any public announcement that any such organization has
under surveillance or review its rating of any debt securities of the
Company, with possible negative implications; (ii) any suspension for more
than two hours or material limitation in trading in securities generally on
the New York Stock Exchange or the AEX-Stock Exchange; (iii) any suspension
for more than two hours or material limitation in trading in the Company's
securities on the New York Stock Exchange or the AEX-Stock Exchange; (iv)
any general moratorium on commercial banking activities in New York or
Amsterdam declared by the relevant authorities; (v) any outbreak or
escalation of hostilities in which the United States or The Netherlands is
involved, any declaration of war or a national emergency by the United
States or The Netherlands, if the effect of any such event specified in
this clause (v) in the judgment of the Representatives, makes it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Securities being delivered at the Closing Date on the terms
and in the manner contemplated in the Prospectus; or (vi) the occurrence of
any material adverse change in the existing financial, political or
economic conditions in the United States, The Netherlands or elsewhere
which, in the judgment of the Representatives, would materially and
adversely affect the financial markets or the market for the Securities and
other convertible debt (if the Debt Securities include Convertible Debt
Securities) or other debt securities.
(d) (i) Neither the Company nor any of the Significant Subsidiaries
shall have sustained since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus any loss
or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth
or contemplated in the Prospectus, and (ii) since the respective dates as
of which information is given in the Prospectus there shall not have been
any change in the capital stock or consolidated long-term debt of the
Company or any change, or any development involving a prospective change,
in or affecting the general affairs, financial position, shareholders'
equity or results of operations of the Company and its subsidiaries taken
as a whole or the officers and directors of the Company, otherwise than as
set forth or contemplated in the Prospectus, the effect of which, in any
such case described in clause (i) or (ii), is in the judgment of the
Representatives, after consultation with the Company if practicable, so
material and adverse to the Company and its subsidiaries taken as a whole
as to make it impracticable or inadvisable to proceed with the public
offering or the delivery of the Securities being delivered at the Closing
Date on the terms and in the manner contemplated in the Prospectus.
(e) The Representatives shall have received an opinion, dated the
Closing Date, of White & Case LLP, counsel for the Company, to the effect
that:
(i) If the Representatives pursuant to the Terms Agreement have
the right to elect to take delivery of some or all of the Securities
in the form of ADNs, assuming (x) due authorization, execution and
delivery by the Company under Dutch law of the Deposit Agreement and
the Indenture, (y) due authorization, execution and delivery of the
Deposit Agreement and the Indenture by the Depositary and the Trustee,
respectively, and (z) that each of the Depositary, the Trustee and
(under Dutch law) the Company has full power, authority and legal
right to enter into and perform its obligations thereunder, that each
of the Deposit Agreement and the Indenture constitutes a valid and
legally binding agreement of the Company, enforceable in accordance
with its terms, subject to bankruptcy, insolvency, reorganization and
other similar laws relating to or affecting creditors' rights
generally and to general principles of equity (regardless of whether
the issue of enforceability is considered in a proceeding in equity or
at law);
(ii) If the Representatives pursuant to the Terms Agreement have
the right to elect to take delivery of some or all of the Securities
in the form of ADNs, upon due issuance by the Depositary of a master
ADNR (the "Master ADNR") evidencing ADNs being delivered on the
Closing Date against the deposit of Securities to be deposited by the
Company in respect thereof in accordance with the provisions of the
Deposit Agreement, such Master ADNR with respect to such Securities
will be duly and validly issued and the person in whose name the
Master ADNR is registered will be entitled to the rights specified
therein and in the Deposit Agreement;
(iii) The Indenture has been duly qualified under the Trust
Indenture Act;
(iv) Assuming due authorization, execution and issuance by the
Company under Dutch law of the Securities, the Securities constitute
valid and legally binding obligations of the Company, enforceable in
accordance with their terms, except as the enforceability thereof may
be limited by applicable bankruptcy, insolvency, reorganization or
other similar laws affecting the enforcement of creditors' rights
generally, or to general principles of equity (regardless of whether
the issue of enforceability is considered in a proceeding in equity or
at law);
(v) The Securities have been duly authenticated in the manner
provided in the Indenture, are entitled to the benefits provided by
the Indenture, and conform in all material respects to the description
of the Debt Securities contained in the Prospectus;
(vi) Under the laws of the State of New York relating to personal
jurisdiction, the Company has, pursuant to Section 12 of this
Agreement and Section 11.12 of the Indenture, validly and irrevocably
submitted to the personal jurisdiction of any state or federal court
located in the Borough of Manhattan, The City of New York, New York
(each a "New York Court") in any action arising out of or relating to
the Terms Agreement (including the provisions of this Agreement), the
Securities or the Indenture, as the case may be, or the transactions
contemplated thereby or hereby, has validly and irrevocably waived any
objection to the venue of a proceeding in any such court, and has
validly and irrevocably appointed the Authorized Agent (as defined
herein) as its authorized agent for the purpose described in Section
12; and service of process effected on such agent in the manner set
forth in Section 12 will be effective to confer valid personal
jurisdiction over the Company in the New York Courts; provided,
however, that such counsel need express no opinion as to whether a
Federal court sitting in New York would have jurisdiction in a suit,
action or proceeding against the Company brought by one or more
plaintiffs who are not United States nationals or residents;
(vii) No consent, approval, authorization or order of, or
registration or qualification with, any Federal or New York court or
governmental agency or body is required for the issue and sale of the
Securities or, if the Debt Securities include Convertible Debt
Securities, the issuance of Common Shares upon conversion thereof, or
the consummation by the Company of the transactions contemplated by
the Terms Agreement (including the provisions of this Agreement) or
the Indenture, except the registration under the Act of the Securities
and, if applicable, the ADNs, and such consents, approvals,
authorizations, registrations or qualifications as have been obtained
and made and such as may be required under state securities or Blue
Sky laws in connection with the purchase and distribution of the
Securities by the Underwriters (as to which such counsel need express
no opinion);
(viii) If the Representatives pursuant to the Terms Agreement
have the right to elect to take delivery of some or all of the
Securities in the form of ADNs, the statements set forth in the
Prospectus under the caption "Description of American Depositary
Receipts Relating to Notes of Royal Ahold", insofar as they purport to
constitute a summary of the terms of the ADNs, fairly summarize in all
material respects the terms of the Deposit Agreement and the ADNs and
the agreements set forth therein;
(ix) The statements set forth in the Prospectus under the caption
"Description of Debt Securities of Royal Ahold", insofar as they
purport to constitute a summary of the terms of the Securities, fairly
summarize in all material respects the terms thereof;
(x) The statements set forth in the Prospectus under the caption
"Taxation--U.S. Taxation", to the extent they constitute matters of
United States Federal income tax law and legal conclusions with
respect thereto, are accurate in all material respects;
(xi) The Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in
the Investment Company Act;
(xii) The documents incorporated by reference in the Prospectus
or any further amendment or supplement thereto made by the Company
prior to the relevant Closing Date (other than the financial
statements and related schedules and other financial and statistical
data included or incorporated by reference therein or omitted
therefrom, as to which such counsel need express no opinion), when
they were filed with the Commission, appeared on their face to comply
as to form in all material respects with the requirements of the
Exchange Act and the rules and regulations of the Commission
thereunder;
(xiii) The Registration Statement relating to the Securities, as
of its effective date, the ADN Registration Statement (if applicable),
as of its effective date, the Registration Statement, the ADN
Registration Statement (if applicable) and the Prospectus, as of the
date of the Terms Agreement (other than the financial statements and
related schedules and other financial and statistical data included or
incorporated by reference therein or omitted therefrom and other than
the Trustees' Statements of Eligibility on Form T-1, as to which such
counsel need express no opinion) appeared on their face to comply as
to form in all material respects with the requirements of the Act, the
Trust Indenture Act and the rules and regulations of the Commission
thereunder; nothing has come to such counsel's attention which causes
it to believe that the Registration Statement relating to the
Securities, as of its effective date, the ADN Registration Statement
(if applicable), as of its effective date, or the Prospectus, as of
the date of the Terms Agreement (other than, in each case, the
financial statements and related schedules and other financial and
statistical data included or incorporated by reference therein or
omitted therefrom and other than the Trustees' Statements of
Eligibility on Form T-1, as to which such counsel need express no
opinion), contained any untrue statement of a material fact or omitted
to state any material fact required to be stated therein or necessary
to make the statements therein (in the case of the Prospectus, in
light of the circumstances under which they were made) not misleading
or that the Prospectus, as amended or supplemented as of the Closing
Date, as of the Closing Date (other than the financial statements and
related schedules and other financial and statistical data included or
incorporated by reference therein or omitted therefrom, as to which
such counsel need express no opinion) contains an untrue statement of
a material fact or omits to state a material fact necessary to make
the statements therein, in the light of the circumstances under which
they were made, not misleading; it being understood that such counsel
may state that they do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the
Registration Statement, the ADN Registration Statement (if applicable)
or the Prospectus, except for those referred to in subsection (vi) or
(vii) of this Section 5(e).
In rendering such opinion, such counsel may state that they express no
opinion as to the laws other than the Federal securities law of the United
States and the law of the State of New York.
(f) The Representatives shall have received an opinion dated the
Closing Date, from the General Counsel or the Vice President Legal Affairs
of the Company, to the effect that:
(i) Nothing has come to such counsel's attention that causes such
counsel to believe that any of the documents incorporated by reference
in the Prospectus and any further amendment or supplement thereto made
by the Company prior to the Closing Date (other than the financial
statements and related schedules and other financial and statistical
data included or incorporated by reference therein or omitted
therefrom, as to which such counsel need express no opinion), when it
was filed with the Commission, contained an untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein, in light
of the circumstances under which they were made when such documents
were so filed, not misleading; and
(ii) Nothing has come to such counsel's attention which causes
such counsel to believe that the Registration Statement relating to
the Securities, as of its effective date, the ADN Registration
Statement (if applicable), as of its effective date, the Registration
Statement, the ADN Registration Statement (if applicable) and the
Prospectus, as of the date of the Terms Agreement (other than, in each
case, the financial statements and related schedules and other
financial and statistical data included or incorporated by reference
therein or omitted therefrom and other than the Trustees' Statements
of Eligibility on Form T-1, as to which such counsel need express no
opinion) contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to
make the statements therein (in the case of the Prospectus, in light
of the circumstances under which they were made) not misleading or
that the Prospectus, as amended or supplemented as of the Closing
Date, as of the Closing Date (other than the financial statements and
related schedules and other financial and statistical data included or
incorporated by reference therein or omitted therefrom, as to which
such counsel need express no opinion) contains an untrue statement of
a material fact or omits to state a material fact necessary to make
the statements therein, in the light of the circumstances under which
they were made, not misleading.
(iii) The execution, delivery and filing by or in the name of the
Company of the Registration Statement have been duly authorized by the
Company.
In rendering such opinion, such counsel may state that they express no
opinion as to the laws other than the laws of The Netherlands.
(g) The Representatives shall have received an opinion, dated the
Closing Date, of De Brauw Blackstone Westbroek N.V., Dutch counsel for the
Company, to the effect that:
(i) The Company has been duly incorporated and is validly
existing under the law of The Netherlands as a legal entity in the
form of a "naamloze vennootschap" (a public company with limited
liability).
(ii) This Agreement, the Terms Agreement and the Indenture have
been duly executed and delivered by the Company.
(iii) If the Debt Securities include Convertible Debt Securities,
the Common Shares initially issuable upon conversion thereof have been
duly authorized and, when such Common Shares are issued and delivered
upon such conversion, will be validly issued by the Company in
accordance with the laws of The Netherlands and the provisions of the
Articles of Association applicable thereto and will be fully paid and
non-assessable. Pursuant to the Articles of Association and the laws
of The Netherlands, the Common Shares initially issuable upon
conversion thereof may be freely issued by the Company to or for the
account of the holders of the Debt Securities converting the same in
the manner contemplated by the Indenture.
(iv) The Company has the corporate power and corporate authority
to execute and deliver and perform the obligations on its part to be
performed under the Terms Agreement (including the provisions of this
Agreement), the Indenture and the Securities and to authorize, issue
and sell the Securities. The Company has the corporate power and
corporate authority to conduct its business as described in the
Prospectus.
(v) The execution and delivery by the Company of this Agreement,
the Terms Agreement and the Indenture and the execution, issuance and
delivery of the Securities, and the performance by the Company of its
obligations hereunder and thereunder and the execution, delivery and
filing by or in the name of the Company of the Registration Statement
and the ADN Registration Statement (if applicable) have been duly
authorized by the Company.
(vi) The choice of New York law as the law expressed to be
governing the Terms Agreement (including the provisions of this
Agreement), the Indenture and the Securities will be recognized as the
law governing the Terms Agreement (including the provisions of this
Agreement), the Indenture and the Securities and accordingly the
courts of The Netherlands should apply New York law as the law
expressed to be governing the Terms Agreement (including the
provisions of this Agreement), the Indenture and the Securities.
(vii) The issue and sale by the Company of the Securities, if the
Debt Securities include Convertible Debt Securities, the issue by the
Company of the Common Shares upon conversion thereof, the compliance
by the Company with the provisions under the Terms Agreement
(including the provisions of this Agreement), the Indenture and the
Securities, and the consummation of the transactions contemplated
therein and herein, do not violate any provisions of the law of The
Netherlands or the Articles of Association.
(viii) In order to ensure the legality, validity, enforceability
or admissibility in evidence of the Terms Agreement (including the
provisions of this Agreement), the Indenture and the Securities, it is
not necessary that the Terms Agreement (including the provisions of
this Agreement), the Indenture or the Securities be filed, recorded or
enrolled with any public authority, governmental agency or
governmental department of The Netherlands (excluding, for the
avoidance of doubt, a court in connection with legal proceedings
insofar as the enforceability and admissibility in evidence are
concerned), or that any stamp, registration or similar tax or charge
be paid in The Netherlands, except for certain court fees in
connection with legal proceedings.
(ix) The submission to the jurisdiction of any United States
Federal court or state court sitting in the Borough of Manhattan, the
City of New York, State of New York, and the irrevocable waiver of any
objection to the laying of venue of a proceeding in such court and of
any immunity to jurisdiction of such court, to which it is or may
become entitled, will, according to the courts of The Netherlands duly
applying New York law as the law governing the Terms Agreement
(including the provisions of this Agreement) (including such
submission and waiver), the Indenture and the Securities, as the case
may be, be valid and binding on the Company.
(x) All authorizations, consents or approvals of, or
registrations or filings with, any governmental department or
regulatory authority of or within The Netherlands which are required
for the issue and sale of the Securities by the Company or the
consummation by the Company of the transactions contemplated under the
Terms Agreement (including the provisions of this Agreement) and the
Indenture have been obtained or made and are in full force and effect.
(xi) The statements set forth in the Prospectus under the
captions (if applicable) "Limitations on Enforcement of U.S. Laws
Against Royal Ahold, Its Management, and Others", "Management" and
"Description of Debt Securities" to the extent that such statements
are statements as to matters of the law of The Netherlands or the
Articles of Association are correct in all material respects.
(xii) If the Debt Securities include Convertible Debt Securities,
the Corporate Executive Board of the Company has in its resolutions
referred to above in Section 2(g) validly resolved to exclude the
preemptive rights of shareholders in respect of the issue of the
Common Shares by the Company, the Corporate Executive Board of the
Company has the authority to adopt such resolutions, and no other
action is required to exclude such preemptive rights.
In rendering such opinions, such counsel may state that with respect
to all matters of United States federal and New York law they have relied
upon the opinions of United States counsel for the Company delivered
pursuant to paragraph (e) of this Section 5.
(h) The Representatives shall have received an opinion, dated the
Closing Date, of ___________, Dutch tax counsel for the Company, to the
effect that:
(i) No stamp or other issuance or transfer taxes or duties are
payable by or on behalf of the Underwriters to The Netherlands or to
any political subdivision or taxing authority thereof or therein in
connection with (x) if applicable, the deposit with the Depositary of
Securities by the Company against the issuance of ADNRs evidencing the
ADNs, (y) the sale and delivery by the Company of the Securities to or
for the respective accounts of the Underwriters or (z) the sale and
delivery outside The Netherlands by the Underwriters of the Securities
to the initial purchasers thereof, in each case in the manner
contemplated in this Agreement and the Terms Agreement;
(ii) No capital gains, income or withholdings taxes are payable
by or on behalf of the Underwriters to The Netherlands or to any
political subdivision or taxing authority thereof or therein in
connection with (x) if applicable, the deposit with the Depositary of
Securities by the Company against the issuance of ADNRs evidencing the
ADNs, (y) the sale and delivery by the Company of the Securities to or
for the respective accounts of the Underwriters or (z) the sale and
delivery outside The Netherlands by the Underwriters of the Securities
to the initial purchasers thereof in the manner contemplated in this
Agreement and the Terms Agreement, provided that: (1) the Underwriter
is not a resident or deemed resident of The Netherlands; (2) the
Underwriter does not have an enterprise which in its entirety or in
part carries on business in The Netherlands through a permanent
establishment or permanent representative to which or to whom the
Securities or ADNs are attributable, or to which or to whom the
Securities or ADNs belong; and (3) the Underwriter does not and will
not, as a result of the transactions referred to in clauses (x), (y),
and/or (z) above, have a substantial interest or deemed substantial
interest as defined in Article 20a of the Dutch Income Tax Act in the
share capital of the Company or, in the event that there is such an
interest, such interest belong to the business of an enterprise.
(iii) The statements set forth in the Prospectus under the
caption "Taxation--Netherlands Taxation" insofar as they relate to
matters of Dutch tax law or regulation or to provisions of documents
therein described, are true and accurate in all material respects.
(i) If the Representatives pursuant to the Terms Agreement have the
right to elect to take delivery of some or all of the Securities in the
form of ADNs, the Representatives shall have received an opinion, dated the
relevant Closing Date, of Counsel for the Depositary, in form and substance
reasonably satisfactory to the Representatives, to the effect that:
(i) The Deposit Agreement has been duly authorized, executed and
delivered by the Depositary and constitutes a valid and legally
binding obligation of the Depositary and is enforceable in accordance
with its terms, except insofar as enforceability may be limited by (a)
applicable bankruptcy, insolvency, moratorium and other laws relating
to creditors' rights generally and (b) general principles of equity
(whether considered in an action at law or in equity); and
(ii) When ADNRs evidencing ADNs are issued in accordance with the
Deposit Agreement against the deposit, pursuant to the terms of the
Deposit Agreement, of duly authorized and validly issued Securities,
such ADNRs will be validly issued and will entitle the holders thereof
to the rights specified therein and in the Deposit Agreement;
In rendering such opinion, such counsel may state that they express no
opinion as to the laws of any jurisdiction outside the United States and as
to the indemnification provisions of the Deposit Agreement.
(j) The Representatives shall have received from their U.S. counsel
such opinion or opinions, dated the Closing Date, with respect to the
validity of the Securities, the Registration Statement, the ADN
Registration Statement (if applicable), the Prospectus and such other
related matters as the Underwriters may reasonably require, and the Company
shall have furnished to such counsel such documents as they may reasonably
request for the purpose of enabling them to pass upon such matters.
(k) If the Representatives have the right to elect pursuant to the
Terms Agreement to take delivery of some or all of the Securities in the
form of ADNs, the Depositary shall have furnished or caused to be furnished
to the Representatives at the relevant Closing Date certificates
satisfactory to the Representatives evidencing the deposit with it of the
Securities being so deposited against issuance of ADNRs evidencing the ADNs
to be delivered by the Company at such Closing Date, and the execution,
countersignature (if applicable), issuance and delivery of ADNRs evidencing
such ADNs pursuant to the Deposit Agreement.
(l) The Representatives shall have received a certificate, dated the
Closing Date, of two officers of the Company reasonably satisfactory to the
Representatives in which such officers shall state that, to their
knowledge, the representations and warranties of the Company in this
Agreement and in the Terms Agreement referred to in Section 3, if
applicable, are true and correct at and as of the Closing Date, that the
Company has complied with all agreements and satisfied all conditions on
its part to be performed or satisfied hereunder at or prior to the Closing
Date, that no stop order suspending the effectiveness of the Registration
Statement or of any part thereof has been issued and no proceedings for
that purpose have been instituted by the Commission, that, subsequent to
the date of the most recent financial statements in the Prospectus, there
has been no material adverse change in the financial position or results of
operations of the Company and its subsidiaries taken as a whole except as
set forth in or contemplated by the Prospectus or as described in such
certificate, and shall cover such other matters as the Representatives may
reasonably request.
The Company will furnish the Representatives with such conformed copies
of such opinions, certificates, letters and documents as they reasonably
request.
6. Indemnification and Contribution. (a) The Company will indemnify
and hold harmless each Underwriter against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
any Preliminary Prospectus, the Registration Statement, the Prospectus, the ADN
Registration Statement (if applicable) or any amendment or supplement thereto,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse each Underwriter for any
legal or other expenses reasonably incurred by such Underwriter in connection
with investigating or defending any such action or claim, as such expenses are
incurred; provided, however, that the Company will not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement in or omission
or alleged omission from any of such documents in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
through the Representatives expressly for use therein; and provided, further,
that the Company shall not be liable to any Underwriter under the indemnity
agreement in this subsection (a) with respect to any Preliminary Prospectus to
the extent that any such loss, claim, damage or liability of such Underwriter
results from the fact that such Underwriter sold Securities to a person to whom
there was not sent or given, at or prior to the written confirmation of such
sale, a copy of the Prospectus or the Prospectus as then amended or supplemented
in any case where such delivery is required by the Act if the Company has
previously furnished copies thereof in sufficient quantity to such Underwriter
as required by Section 4(f) and the loss, claim, damage or liability of such
Underwriter results from an untrue statement or omission of a material fact
contained in a Preliminary Prospectus which was corrected in the Prospectus or
the Prospectus as then amended, modified or supplemented.
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in any Preliminary Prospectus, the Registration Statement, the
Prospectus, the ADN Registration Statement (if applicable) or any amendment or
supplement thereto, or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in any of such documents in
reliance upon and in conformity with written information furnished to the
Company by such Underwriter through the Representatives expressly for use
therein, and will reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating or defending
any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the indemnifying
party under this Section, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under this Section. In case any such action is brought against any indemnified
party and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and to the extent
that it may wish, jointly with any other indemnifying party similarly notified,
to assume the defense thereof, with counsel satisfactory to such indemnified
party (who shall not, except with the consent of the indemnified party, be
counsel to the indemnifying party), and after notice from the indemnifying party
to such indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
Section for any legal expenses of other counsel or any other expenses, in each
case subsequently incurred by such indemnified party, in connection with the
defense thereof other than reasonable costs of investigation. No indemnifying
party shall be liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent, the indemnifying party agrees
to indemnify the indemnified party from and against any loss or liability by
reason of such settlement. No indemnifying party shall, without the written
consent of the indemnified party, effect the settlement or compromise of, or
consent to the entry of any judgment with respect to, any pending or threatened
action or claim in respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified party is an actual or potential
party to such action or claim) unless such settlement, compromise or judgment
(i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act, by or
on behalf of any indemnified party.
(d) If the indemnification provided for in this Section is unavailable
(other than as a result of (i) the provisos contained in subsection (a) or (ii)
the failure of the indemnified party to give notice to the indemnifying party as
required under subsection (c) hereof) or insufficient to hold harmless an
indemnified party under subsection (a) or (b) above in respect of any losses,
claims, damages or liabilities (or actions in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is appropriate
to reflect the relative benefits received by the Company on the one hand and by
the Underwriters on the other from the offering of the Securities. If, however,
the allocation provided by the immediately preceding sentence is not permitted
by applicable law, then each indemnifying party shall contribute to such amount
paid or payable by such indemnified party in such proportion as is appropriate
to reflect not only such relative benefits but also the relative fault of the
Company on the one hand and of the Underwriters on the other in connection with
the statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Securities
purchased under the Terms Agreement (before deducting expenses) received by the
Company bear to the total underwriting discounts and commissions received by the
Underwriters with respect to the Securities purchased under the Terms Agreement,
in each case as set forth in the table on the cover page of the Prospectus. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Company on the one hand or the Underwriters on the other and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The Company and the Underwriters
agree that it would not be just and equitable if contributions pursuant to this
subsection (d) were determined by pro rata allocation (even if the Underwriters
were treated as one entity for such purpose) or any other method of allocation
which does not take account of the equitable considerations referred to above in
this subsection (d). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to above in this subsection (d) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any action or claim which is the
subject of this subsection (d). Notwithstanding the provisions of this
subsection (d), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations and not joint.
(e) The obligations of the Company under this Section shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section shall be in addition to any liability which the
respective Underwriters may otherwise have and shall extend, upon the same terms
and conditions, to each director of the Company, to each officer of the Company
who has signed the Registration Statement and to each person, if any, who
controls the Company within the meaning of the Act.
7. Default of Underwriters. (a) If any Underwriter shall default in
its obligation to purchase the Securities which it has agreed to purchase under
the Terms Agreement relating to such Securities, the Representatives may in
their discretion arrange for themselves or another party or other parties to
purchase such Securities on the terms contained herein and therein. If within
thirty-six hours after such default by any Underwriter the Representatives do
not arrange for the purchase of such Securities, then the Company shall be
entitled to a further period of thirty-six hours within which to procure another
party or other parties satisfactory to the Representatives to purchase such
Securities on such terms. In the event that, within the respective prescribed
periods, the Representatives notify the Company that they have so arranged for
the purchase of the Securities, or the Company notifies the Representatives that
it has so arranged for the purchase of such Securities, the Representatives or
the Company shall have the right to postpone the Closing Date for the Securities
for a period of not more than seven days, in order to effect whatever changes
may thereby be made necessary in the Registration Statement or the Prospectus as
amended or supplemented, or in any other documents or arrangements, and the
Company agrees to file promptly any amendments or supplements to the
Registration Statement or the Prospectus which may thereby be made necessary.
The term "Underwriter" as used in this Agreement shall include any person
substituted under this section with like effect as if such person had originally
been a party to the Terms Agreement with respect to such Securities.
(b) If, after giving effect to any arrangements for the purchase of
the Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of such Securities which remains unpurchased does not
exceed one-eleventh of the aggregate principal amount of the Securities to be
purchased at such Closing Date, then the Company shall have the right to require
each non-defaulting Underwriter to purchase on the applicable Closing Date the
principal amount of Securities which such Underwriter agreed to purchase at such
Closing Date under the Terms Agreement relating to such Securities and, in
addition, to require each non-defaulting Underwriter to purchase its pro rata
share (based on the principal amount of Securities which such Underwriter agreed
to purchase under such Terms Agreement at such Closing Date) of the Securities
of such defaulting Underwriter or Underwriters for which such arrangements have
not been made; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
(c) If, after giving effect to any arrangements for the purchase of
the Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of Securities which remains unpurchased exceeds
one-eleventh of the aggregate principal amount of the Securities to be purchased
at such Closing Date, or if the Company shall not exercise the right described
in subsection (b) above to require non-defaulting Underwriters to purchase
Securities of a defaulting Underwriter or Underwriters, then the Terms Agreement
relating to such Securities shall thereupon terminate, without liability on the
part of any non-defaulting Underwriter or the Company, except for the expenses
to be borne by the Company and the Underwriters as provided in Section 4(g) and
the indemnity and contribution agreements in Section 6; but nothing herein shall
relieve a defaulting Underwriter from liability for its default.
8. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and of the several Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation, or statement as to the results thereof, made by or on behalf
of any Underwriter, the Company or any of their respective representatives,
officers or directors or any controlling person and will survive delivery of and
payment for the Securities. If the Terms Agreement is terminated pursuant to
Section 7 or if for any reason the purchase of the Securities by the
Underwriters under the Terms Agreement is not consummated, the Company shall
remain responsible for the expenses to be paid or reimbursed by it pursuant to
Section 4(g) and the respective obligations of the Company and the Underwriters
pursuant to Section 6 shall remain in effect. If the purchase of the Securities
by the Underwriters is not consummated for any reason, other than solely because
of the termination of the Terms Agreement pursuant to Section 7 or the
occurrence of any event specified in clause (ii), (iv), (v) or (vi) of Section
5(c), the Company will reimburse the Underwriters for all out-of-pocket expenses
approved in writing by you, including fees and disbursements of counsel,
reasonably incurred by them in connection with the offering of the Securities,
but the Company shall be under no further liability to any Underwriter except as
provided in Section 4(g) and Section 6.
9. Notices. All statements, requests, notices and agreements hereunder
shall be in writing and if to the Underwriters shall be sufficient in all
respects, if delivered or sent by first class mail, telex, or facsimile
transmission (confirmed in writing by overnight courier sent on the day of such
facsimile transmission) to the address of the Representatives as set forth in
the Terms Agreement; and if to the Company shall be sufficient in all respects
if delivered or sent by mail, telex, or facsimile transmission (confirmed in
writing by overnight courier sent on the day of such facsimile transmission) to
the address of the Company set forth in the Registration Statement, Attention:
Secretary. Any such statements, requests, notices or agreements shall have
effect upon receipt thereof.
10. Successors. This Agreement will inure solely to the benefit of and
be binding upon the Company and such Underwriters as are identified in Terms
Agreements and their respective officers and directors and controlling persons
referred to in Sections 6 and 8, and the respective heirs, executors,
administrators, successors and assigns, and no other person will acquire or have
any right or obligation hereunder or by virtue of this Agreement. No purchaser
of any of the Securities from any Underwriter shall be deemed a successor or
assign by reason merely of such purchase.
11. Representatives. In all dealings under any Terms Agreement and
hereunder, the Representatives shall act on behalf of each of the Underwriters,
and the parties hereto shall be entitled to act and rely upon any statement,
request, notice or agreement on behalf of any Underwriter made or given by the
Representatives.
12. Submission to Jurisdiction. Each of the parties hereto irrevocably
(i) agrees that any legal suit, action or proceeding arising out of or based
upon a Terms Agreement (including the provisions of this Agreement) or the
transactions contemplated thereby or hereby may be instituted in any New York
Court, (ii) waives, to the fullest extent permitted by applicable law, any
objection which it may now or hereafter have to the laying of venue of any such
proceeding and (iii) submits to the exclusive jurisdiction of such courts in any
such suit, action or proceeding. The Company has appointed Ahold U.S.A., Inc.,
One Atlanta Plaza, 950 East Paces Ferry Road, Suite 2575, Atlanta, Georgia
30326, as its authorized agent (the "Authorized Agent") upon whom process may be
served in any such action arising out of or based on any such Terms Agreement
(including the provisions of this Agreement) or the transactions contemplated
hereby or thereby which may be instituted in any New York Court by any
Underwriter or by any person who controls any Underwriter, expressly consents to
the jurisdiction of any such court in respect of any such action, and waives any
other requirements of or objections to personal jurisdiction with respect
thereto. Such appointment shall be irrevocable. The Company represents and
warrants that the Authorized Agent has agreed to act as such agent for service
of process and agrees to take any and all action, including the filing of any
and all documents and instruments, that may be necessary to continue such
appointment in full force and effect as aforesaid. Service of process upon the
Authorized Agent and written notice of such service to the Company shall be
deemed, in every respect, effective service of process upon the Company.
13. Judgment Currency. In respect of any judgment or order given or
made for any amount due hereunder in United States dollars that is expressed and
paid in a currency (the "judgment currency") other than United States dollars,
the Company will indemnify each Underwriter against any loss incurred by such
Underwriter as a result of any variation as between (i) the rate of exchange at
which the United States dollar amount is converted into the judgment currency
for the purpose of such judgment or order and (ii) the rate of exchange at which
an Underwriter is able to purchase United States dollars with the amount of the
judgment currency actually received by such Underwriter. The foregoing indemnity
shall constitute a separate and independent obligation of the Company and shall
continue in full force and effect notwithstanding any such judgment or order as
aforesaid. The term "rate of exchange" shall include any premiums and costs of
exchange payable in connection with the purchase of or conversion into United
States dollars.
14. Time of Essence. Time shall be of the essence of each Terms
Agreement. As used herein the term "business day" shall mean any day when the
Commission's office in Washington, D.C. is open for business.
15. GOVERNING LAW. THIS AGREEMENT AND EACH TERMS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
16. Counterparts. This Agreement and each Terms Agreement may be
executed by any one or more of the parties hereto and thereto in any number of
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same instrument.
If the foregoing is in accordance with your understanding, please sign
and return three counterparts hereof.
Very truly yours,
KONINKLIJKE AHOLD N.V.
By_________________________
Name:
Title:
Accepted as of the date hereof:
[Names of Underwriters]
By: [Representatives]
By:___________________________
Name:
Title:
On behalf of each of the Underwriters
<PAGE>
Annex A
KONINKLIJKE AHOLD N.V.
DEBT SECURITIES
TERMS AGREEMENT
---------------
--------- , ----
[Names and Addresses of Representatives]
Ladies and Gentlemen:
Koninklijke Ahold N.V. (Royal Ahold), a public company with limited
liability organized under the laws of The Netherlands, and with its corporate
seat in Zaandam (municipality Zaanstad), The Netherlands (the "Company"),
proposes, subject to the terms and conditions stated herein and in the
Underwriting Agreement, dated _________ __, ____ (the "Underwriting Agreement"),
between the Company on the one hand and __________________, on the other hand,
to issue and sell to the Underwriters named in Schedule I hereto (the
"Underwriters") the debt securities, of the Company specified in Schedule II
hereto (the "Securities"). Except to the extent explicitly provided otherwise
herein, each of the provisions of the Underwriting Agreement is incorporated
herein by reference in its entirety, and shall be deemed to be a part of this
Terms Agreement to the same extent as if such provisions had been set forth in
full herein; and each of the representations and warranties set forth therein
shall be deemed to have been made at and as of the date of this Terms Agreement,
except that, if this Terms Agreement and the Underwriting Agreement are dated
different dates, each representation and warranty with respect to the Prospectus
in Section 2 of the Underwriting Agreement shall be deemed to be a
representation and warranty as of the date of the Underwriting Agreement in
relation to the Prospectus (as therein defined) and also a representation and
warranty as of the date of this Terms Agreement in relation to the Prospectus as
amended or supplemented relating to the Securities which are the subject of this
Terms Agreement. Each reference to the Representatives herein and in the
provisions of the Underwriting Agreement so incorporated by reference shall be
deemed to refer to you. Unless otherwise defined herein, terms defined in the
Underwriting Agreement are used herein as therein defined. The Representatives
designated to act on behalf of each of the Underwriters of Securities are set
forth in Schedule II hereto.
Subject to the terms and conditions set forth herein, in Schedule II
hereto and in the Underwriting Agreement incorporated herein by reference, the
Company agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company, at
the time and place and at a purchase price to the Underwriters set forth in
Schedule II hereto, the principal amount of Securities set forth opposite the
name of such Underwriter in Schedule I hereto.
[With respect to all or a portion of the Securities to be purchased
and sold by the several Underwriters, the Representatives may elect to have ADNs
delivered and paid for hereunder in lieu of, and in satisfaction of, the
Company's obligation to sell to the several Underwriters and the several
Underwriters' obligations to purchase, Securities. Notice of such election shall
be given by the Representatives to the Company at least two business days prior
to the relevant Closing Date (the "Notification Time"). The number of ADNs to be
purchased by the Underwriters as a result of the making of such election shall
be adjusted by the Representatives so as to eliminate any fractional ADNs and
the purchase price for any ADNs so delivered as a result of making such election
shall be the purchase price per ADN set out in Schedule II hereto. Except as the
context may otherwise require, references hereinafter to the Securities shall
include Securities in the form of ADNs.
If the foregoing is in accordance with your understanding, please sign
and return to us _______ counterparts hereof, and upon acceptance hereof by you,
on behalf of the Underwriters, this Terms Agreement and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement between each of the Underwriters
and the Company. It is understood that your acceptance of this letter on behalf
of each of the Underwriters is or will be pursuant to the authority set forth in
a form of Agreement among Underwriters, the form of which shall be supplied to
the Company upon request, but without warranty on your part (other than as to
yourselves) as to the authority of the signers thereof.
Very truly yours,
KONINKLIJKE AHOLD N.V.
By_________________________
Name:
Title:
Accepted as of the date hereof:
By:_________________________
On behalf of each of the Underwriters
<PAGE>
SCHEDULE I
----------
Principal Amount of
Underwriter Securities to be Purchased
----------- --------------------------
----------------
Total........................................ ================
<PAGE>
Schedule II
-----------
TITLE OF SECURITIES:
[ %] [Floating Rate] [Zero Coupon] [Notes] [Debentures] due
AGGREGATE PRINCIPAL AMOUNT:
$_________________
PRICE TO PUBLIC:
_____% of the principal amount of the Securities, plus accrued interest [,
if any,] from _________ to __________ [and accrued amortization, if any,
from __________ to ____________]
[If Securities may be issued in form of ADNs ___
may not be in $___________ Per ADN]
PURCHASE PRICE BY UNDERWRITERS:
_____% of the principal amount of the Securities, plus accrued interest
[,if any,] from _________ to __________ [and accrued amortization, if any,
from __________ to ____________]
[If Securities may be issued in form of ADNs ___
may not be in $___________ Per ADN]
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
[Federal funds] [NY clearinghouse]
RANKING [SENIOR] [SUBORDINATED]
INDENTURE:
Indenture, dated as of __________, [, as supplemented by ________,] between
the Company and [if senior debt securities -- The Chase Manhattan Bank] [if
subordinated debt securities - The Bank of New York], as Trustee
MATURITY:
INTEREST RATE:
[ %] [Zero Coupon] [See Floating Rate Provisions]
[If Securities may be issued in form of ADNs ___ Depositary for ADNs:
__________________________, pursuant to a Deposit Agreement dated as of
_______________, ___]
INTEREST PAYMENT DATES:
[months and dates]
REDEMPTION PROVISIONS:
The Securities may be redeemed, in whole but not in part, at the option of
the Company at their principal amount, together with accrued interest
thereon to the date of redemption, if as a result of any change in, or
amendment to, the laws or regulations of The Netherlands which becomes
effective after the date of the Indenture, the Company becomes, or will
become obligated to pay any Additional Amounts (as defined in the
Indenture) in respect of the Securities.
[No other provisions for redemption]
[The Securities may be redeemed, otherwise than through the sinking fund,
in whole or in part at the option of the Company, in the amount of $ _____
or an integral multiple thereof, on or after _________, _________ at the
following redemption prices (expressed in percentages of principal amount):
If [redeemed on or before _________, ___ %, and if] redeemed during the
12-month period beginning ___________,
Year Redemption
---- Price
-----
and thereafter at 100% of principal amount, together in each case with
accrued interest to the redemption date]
[on any interest payment date falling on or after ____________,
___________, at the election of the Company, at a redemption price equal to
the principal amount thereof, plus accrued interest to the date of
redemption].
[Other possible redemption provisions, such as mandatory redemption upon
occurrence of certain events]
[Restriction on refunding]
SINKING FUND PROVISIONS:
[No sinking fund provisions]
[The Securities are entitled to the benefit of a sinking fund to retire $
_______ principal amount of Securities on ______ in each of the years _____
through ____ at 100% of their principal amount plus accrued interest] [,
together with [cumulative] [non-cumulative] redemptions at the option of
the Company to retire an additional $ _________ principal amount of
Securities in the years ____ through ____ at 100% of their principal amount
plus accrued interest.]
[IF SECURITIES ARE EXTENDABLE DEBT SECURITIES, INSERT--
EXTENDABLE PROVISIONS:
Securities are repayable on ______, _____ [insert date and years], at the
option of the holder, at their principal amount with accrued interest.
Initial annual interest rate will be ___%, and thereafter annual interest
rate will be adjusted on ______, and _______ to a rate not less than ___ %
of the effective annual interest rate on U.S. Treasury obligations with
_________-year maturities as of the [insert date 15 days prior to maturity
date] prior to such [insert maturity date].]
[IF SECURITIES ARE FLOATING RATE DEBT SECURITIES, INSERT--
FLOATING RATE PROVISIONS:
Initial annual interest rate will be __% through ____________ [and
thereafter will be adjusted [monthly] [on each _____, ________, and
___________] [to an annual rate of ______ % above the average rate for
______ -year [month] [securities] [certificates of deposit] issued by
_________ and ___________________ [insert names of banks].] [and the annual
interest rate [thereafter] [from ______________ through ____________] will
be the interest yield equivalent of the weekly average per annum market
discount rate for _____-month Treasury bills plus ___% of Interest
Differential (the excess, if any, of (i) then current weekly average per
annum secondary market yield for ______-month certificates of deposit over
(ii) then current interest yield equivalent of the weekly average per annum
market discount rate for ______-month Treasury bills); [from _________ and
thereafter the rate will be the then current interest yield equivalent plus
____ % of Interest Differential].]
CLOSING DATE:
[Time and date]
CLOSING LOCATION:
NAMES AND ADDRESSES OF REPRESENTATIVES:
ADDRESS FOR NOTICES, ETC.:
[Other Terms]<F1>
- ---------------------
<F1> A description of particular tax, accounting or other unusual features of
the Securities should be set forth, or referenced to an attached and
accompanying description, if necessary to the issuer's understanding of the
transaction contemplated. Such a description might appropriately be in the
form in which such features will be described in the Prospectus for the
offering.
<PAGE>
ANNEX B
-------
DESCRIPTION OF COMFORT LETTER
Pursuant to Section 5(a) of the Underwriting Agreement, the
accountants shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect to
the Company and its subsidiaries within the meaning of the Securities Act
of 1933, as amended, (the "Act") and the applicable published rules and
regulations thereunder;
(ii) In their opinion, the financial statements and any supplementary
financial information and schedules (and, if applicable, financial
forecasts and/or pro forma financial information) examined by them and
included or incorporated by reference in the Registration Statement or the
Prospectus comply as to form in all material respects with the applicable
accounting requirements of the Act or the Securities Exchange Act, of 1934,
as amended (the "Exchange Act"), as applicable, and the related published
rules and regulations thereunder; and, if applicable, they have made a
review in accordance with standards established by the American Institute
of Certified Public Accountants of the consolidated interim financial
statements, selected financial data, pro forma financial information,
financial forecast and/or condensed financial statements derived from
audited financial statements of the Company for the periods specified in
such letter, as indicated in their reports thereon, copies of which have
been furnished to the representatives of the Underwriters (the
"Representatives");
(iii) They have made a review in accordance with standards established
by the American Institute of Certified Public Accountants of the unaudited
condensed consolidated statements of income, consolidated balance sheets
and consolidated statements of cash flows included in the Company's reports
on Form 6-K incorporated by reference into the Prospectus and, if
applicable, included in the Prospectus, as indicated in their reports
thereon; and on the basis of specified procedures including inquiries of
officials of the Company who have responsibility for financial and
accounting matters regarding whether the unaudited condensed consolidated
financial statements referred to in paragraph (vi)(A)(i) below comply as to
form in all material respects with the applicable accounting requirements
of the Act and the Exchange Act and the related published rules and
regulations, nothing came to their attention that caused them to believe
that the unaudited condensed consolidated financial statements do not
comply as to form in all material respects with the applicable accounting
requirements of the Act and the Exchange Act and the related published
rules and regulations;
(iv) The unaudited selected financial information with respect to the
consolidated results of operations and financial position of the Company
for the five most recent fiscal years included or incorporated by reference
in Item 8 of the Company's Annual Report on Form 20-F for the most recent
fiscal year and, if applicable, included, in the Prospectus agrees with the
corresponding amounts (after restatement where applicable) in the audited
consolidated financial statements for such five fiscal years which were
included or incorporated by reference in the Company's Annual Reports on
Form 20-F for such fiscal years;
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K and on
the basis of limited procedures specified in such letter nothing came to
their attention as a result of the foregoing procedures that caused them to
believe that this information does not conform in all material respects
with the disclosure requirements of Items 8 and 11 of Form 20-F and of
Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available interim
financial statements of the Company and its subsidiaries, inspection of the
minute books of the Company and its subsidiaries since the date of the
latest audited financial statements incorporated by reference in the
Prospectus and, if applicable, included in the Prospectus, inquiries of
officials of the Company and its subsidiaries responsible for financial and
accounting matters and such other inquiries and procedures as may be
specified in such letter, nothing came to their attention that caused them
to believe that:
(A) (i) the unaudited condensed consolidated statements of
income, consolidated balance sheets and consolidated statements of
cash flows included or incorporated by reference in a report on Form
6-K incorporated by reference in the Prospectus and, if applicable,
included in the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the Exchange
Act and the related published rules and regulations, or (ii) any
material modifications should be made to the unaudited condensed
consolidated statements of income, consolidated balance sheets and
consolidated statements of cash flows or included in a report on Form
6-K incorporated by reference in the Prospectus, for them to be in
conformity with generally accepted accounting principles;
(B) any other unaudited income statement data and balance sheet
items incorporated by reference in the Prospectus do not agree with
the corresponding items in the unaudited consolidated financial
statements from which such data and items were derived, and any such
unaudited data and items were not determined on a basis substantially
consistent with the basis for the corresponding amounts in the audited
consolidated financial statements included or incorporated by
reference in the Company's Annual Report on Form 20-F for the fiscal
year ended _______;
(C) the unaudited financial statements which were not included in
the Prospectus or incorporated by reference therein but from which
were derived the unaudited condensed financial statements referred to
in Clause (A) and any unaudited income statement data and balance
sheet items included in the Prospectus or incorporated by reference
therein and referred to in Clause (B) were not determined on a basis
substantially consistent with the basis for the audited financial
statements included or incorporated by reference in the Company's
Annual Report on Form 20-F for the fiscal year ended December 29,
1996;
(D) any unaudited pro forma consolidated condensed financial
statements incorporated by reference in the Prospectus and, if
applicable, included in the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of the
Act and the published rules and regulations thereunder or the pro
forma adjustments have not been properly applied to the historical
amounts in the compilation of those statements;
(E) as of a specified date not more than five days prior to the
date of such letter, there have been any changes in the consolidated
capital stock (other than issuances of capital stock upon exercise of
options and stock appreciation rights, upon earn-outs of performance
shares and upon conversions of convertible securities, in each case
which were outstanding on the date of the latest balance sheet
incorporated by reference in the Prospectus or, if applicable,
included in the Prospectus) or any increase in the consolidated
long-term debt of the Company and its subsidiaries, or any decreases
in consolidated net current assets or stockholders' equity or other
items specified by the Representatives, or any increases in any items
specified by the Representatives, in each case as compared with
amounts shown in the latest balance sheet incorporated by reference in
the Prospectus or, if applicable, included in the Prospectus, except
in each case for changes, increases or decreases which the Prospectus
discloses have occurred or may occur or which are described in such
letter; and
(F) for the period from the date of the latest financial
statements included or incorporated by reference in the Prospectus to
the specified date referred to in Clause (E) there were any decreases
in consolidated net revenues or operating profit or the total or per
share amounts of consolidated net income or other items specified by
the Representatives, or any increases in any items specified by the
Representatives in each case as compared with the comparable period of
the preceding year and with any other period of corresponding length
specified by the Representatives, except in each case for increases or
decreases which the Prospectus discloses have occurred or may occur or
which are described in such letter; and
(vii) In addition to the examination referred to in their report(s)
incorporated by reference in the Prospectus and the limited procedures,
inspection of minute books, inquiries and other procedures referred to in
paragraphs (iii) and (vi) above, they have carried out certain specified
procedures, not constituting an examination in accordance with generally
accepted auditing standards, with respect to certain amounts, percentages
and financial information specified by the Representatives which are
derived from the general accounting records of the Company and its
subsidiaries, which appear in the Prospectus (excluding documents
incorporated by reference) or in Part II of, or in exhibits and schedules
to, the Registration Statement specified by the Representatives or in
documents incorporated by reference in the Prospectus specified by the
Representatives, and have compared certain of such amounts, percentages and
financial information with the accounting records of the Company and its
subsidiaries and have found them to be in agreement.
AHOLD FINANCE U.S.A., INC., ISSUER
KONINKLIJKE AHOLD N.V., GUARANTOR
Debt Securities
Underwriting Agreement
April 23, 1999
Ladies and Gentlemen:
1. Introductory. Ahold Finance U.S.A., Inc., a corporation organized
under the laws of the State of Delaware, the United States of America (the
"Company"), proposes to issue and sell from time to time certain of its debt
securities (the "Debt Securities"). Payment of principal of, and interest, if
any, and premium, if any, on the Debt Securities will be unconditionally
guaranteed by Koninklijke Ahold N.V. (Royal Ahold), a public company with
limited liability organized under the laws of The Netherlands, and with its
corporate seat in Zaandam (municipality Zaanstad), The Netherlands, as Guarantor
(the "Guarantor"), pursuant to the terms and conditions of the guaranty issued
under the Indenture (as defined below) (the "Guaranty"). The Debt Securities may
be convertible into common shares of the Guarantor (as defined below), par value
NLG 0.50 per share ("Common Shares"). The Debt Securities will be issued under
an indenture, dated as of April 29, 1999 (the "Indenture"), between the Company,
the Guarantor, and The Chase Manhattan Bank, as trustee (the "Trustee"), in one
or more series, which series may vary as to interest rates, maturities,
redemption provisions, selling prices and in the case of Debt Securities that
are convertible at the option of holders into Common Shares ("Convertible Debt
Securities"), conversion prices and the terms and conditions relating to such
conversion rights and other terms, with all such terms for any particular series
of the Debt Securities being determined at the time of sale. The issuance and
sale of Debt Securities and the Guaranty have been registered under the
registration statement referred to in Section 2(a).
Particular series of the Debt Securities will be sold pursuant to a
Terms Agreement referred to in Section 3 in the form of Annex A attached hereto,
for resale in accordance with the terms of offering determined at the time of
sale. The Debt Securities involved in any such offering are hereinafter referred
to as the "Offered Debt Securities". The Offered Debt Securities and related
Guaranty are hereunder referred to as the "Securities". The firm or firms which
agree to purchase the Securities are hereinafter referred to as the
"Underwriters" of such Securities, and the representative or representatives of
the Underwriters, if any, specified in a Terms Agreement referred to in Section
3 are hereinafter referred to as the "Representatives"; provided, however, that
if the Terms Agreement does not specify any representative of the Underwriters,
the term "Representatives", as used in this Agreement (other than in the second
sentence of Section 3) shall mean the Underwriters.
2. Representations and Warranties of the Company. The Company and the
Guarantor, jointly and severally, represent and warrant to, and agree with, each
Underwriter that:
(a) A registration statement on Forms F-3 and S-3 (No. 333-71383 and
333-71383-01), including a prospectus relating to the Debt Securities and
the Guaranty, has been filed with the Securities and Exchange Commission
(the "Commission") and has been declared effective by the Commission. The
various parts of such registration statement, as amended at the time of the
execution of the Terms Agreement referred to in Section 3, including all
exhibits thereto (but excluding the Trustee's Statements of Eligibility on
Form T-1) and the documents incorporated by reference in the prospectus
contained in such registration statement at the time of execution of the
Terms Agreement referred to in Section 3, are hereinafter collectively
referred to as the "Registration Statement"; any prospectus included in the
Registration Statement at the time it became effective or in any
post-effective amendment thereto filed prior to the time of execution of
the Terms Agreement referred to in Section 3 at the time such amendment
became effective or filed with the Commission pursuant to and in accordance
with Rule 424(b) ("Rule 424(b)") of the rules and regulations of the
Commission (the "Rules and Regulations") under the Securities Act of 1933,
as amended (the "Act"), prior to the time of the execution of the Terms
Agreement referred to in Section 3, as supplemented by a preliminary
prospectus supplement reflecting the proposed terms of the offering of the
Securities that is filed with the Commission pursuant to and in accordance
with Rule 424(b) prior to the time of the execution of the Terms Agreement
referred to in Section 3, including all material incorporated therein by
reference, is hereinafter referred to as a "Preliminary Prospectus", and
the prospectus included in the Registration Statement, as supplemented by a
prospectus supplement as contemplated by Section 3 to reflect the terms of
the offering of the Securities, as first filed with the Commission pursuant
to and in accordance with Rule 424(b) including all material incorporated
by reference therein, is hereinafter referred to as the "Prospectus". Any
reference to any amendment or supplement to any Preliminary Prospectus or
the Prospectus shall be deemed to refer to and include any documents filed
after the date of such Preliminary Prospectus or Prospectus, as the case
may be, under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and incorporated by reference in such Prospectus or
Preliminary Prospectus, as the case may be. No stop order suspending the
effectiveness of the Registration Statement or preventing or suspending the
use of any Preliminary Prospectus or the Prospectus has been issued and no
proceeding for that purpose has been instituted or, to the knowledge of the
Company or the Guarantor, threatened by the Commission.
(b) The Registration Statement relating to the Debt Securities and the
Guaranty, on the effective date thereof, and any Preliminary Prospectus, as
of its date, conformed in all material respects to the requirements of the
Act and the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act"), and the rules and regulations of the Commission thereunder and did
not include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, and the Registration Statement and the
Prospectus, on the date of the Terms Agreement referred to in Section 3,
will conform in all material respects to the requirements of the Act, the
Trust Indenture Act and the rules and regulations of the Commission
thereunder, and neither of such documents will include any untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein (in the case of the
Prospectus, in light of the circumstances under which they were made) not
misleading, except that the foregoing representations do not apply to
statements in or omissions from any of such documents based upon written
information furnished to the Company by any Underwriter specifically for
use therein.
(c) The documents incorporated by reference into the Prospectus, when
they were filed with the Commission, conformed in all material respects to
the requirements of the Exchange Act and the rules and regulations
thereunder, and none of such documents when so filed included any untrue
statement of a material fact or omitted to state any material fact required
to be stated therein or necessary to make the statements therein not
misleading, and each document, if any, hereafter filed and so incorporated
by reference in the Prospectus and any further amendment or supplement
thereto (other than documents incorporated by reference therein relating
solely to an offering of securities other than the Securities) when such
documents are filed with the Commission will conform in all material
respects to the requirements of the Exchange Act and the rules and
regulations of the Commission thereunder and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading, except that the foregoing representations do not apply to
statements in or omissions from any of such documents based upon written
information furnished to the Company by any Underwriter specifically for
use therein.
(d) Neither the Guarantor nor any of the Significant Subsidiaries (as
defined below) has sustained since the date of the latest audited financial
statements included in the Prospectus or incorporated by reference therein,
any loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, in either case
material to the Guarantor and its subsidiaries taken as a whole, and
otherwise than as set forth or contemplated in the Prospectus; and, since
the respective dates as of which information is given in the Registration
Statement and the Prospectus, there has not been any change in the capital
stock or consolidated long-term debt of the Guarantor or any material
adverse change, or any development involving a prospective material adverse
change, in or affecting the general affairs, financial position,
shareholders' equity or results of operations of the Guarantor and its
subsidiaries taken as a whole or the members of the Executive Board of the
Guarantor, otherwise than as set forth or contemplated in the Prospectus.
As used in this Agreement, the term "subsidiaries" means any corporation or
other entity of which at least a majority of the outstanding stock or other
ownership interests having by the terms thereof ordinary voting power for
the election of directors, managers or trustees of such corporation or
other entity or other persons performing similar functions (irrespective of
whether or not at the time stock or other ownership interests of any other
class or classes of such corporation or other entity shall have or might
have voting power by reason of the happening of any contingency) is at the
time directly or indirectly owned, or controlled by the Company or the
Guarantor or by one or more other subsidiaries, or by the Company or the
Guarantor and one or more other subsidiaries, or which is otherwise
consolidated by the Guarantor in its consolidated financial statements. As
used in this Agreement, the term "Significant Subsidiary" refers to Albert
Heijn B.V., BI-LO Inc., Giant Food Stores, Inc., Ahold Vastgoed B.V., Tops
Markets, Inc., Giant Food Inc. and The Stop & Shop Companies, Inc.
(e) Each of the Company and the Guarantor has been duly incorporated
and is validly existing under the laws of its jurisdiction of
incorporation, with corporate power and corporate authority to own or lease
its properties and conduct its business as described in the Prospectus, and
has been duly qualified as a foreign corporation for the transaction of
business and is in good standing (where applicable) under the laws of each
other jurisdiction in which it owns or leases properties or conducts any
business so as to require such qualification, or is subject to no material
liability or disability by reason of the failure to be so qualified in any
such jurisdiction; and each Significant Subsidiary has been duly
incorporated and is validly existing as a corporation in good standing
(where applicable) under the laws of its jurisdiction of incorporation.
(f) Each of the Company and the Guarantor has an authorized
capitalization as set forth in the Prospectus, and all of the issued shares
of capital stock of the Guarantor have been duly and validly authorized and
issued, and are fully paid and non-assessable; all of the issued shares of
capital stock of each Significant Subsidiary and of the Company have been
duly and validly authorized and issued, are fully paid and non-assessable
and are owned directly or indirectly by the Guarantor, free and clear of
all liens, encumbrances, equities or claims; in the case of Debt Securities
that are Convertible Debt Securities, the holders of outstanding shares of
capital stock of the Guarantor will not be entitled to preemptive or other
rights to acquire the Common Shares issuable upon conversion thereof, such
rights (if applicable) having been excluded by resolution of the Corporate
Executive Board of the Guarantor which has been approved by the Supervisory
Board of the Guarantor in accordance with the Articles of Association of
the Guarantor, the Corporate Executive Board being entitled to exclude such
rights with respect to Common Shares by authorization of the general
meeting of shareholders;
(g) The Offered Debt Securities to be issued and sold by the Company
to the Underwriters under the Terms Agreement referred to in Section 3 have
been duly and validly authorized by the Company and, when such Offered Debt
Securities are issued, authenticated and delivered in accordance with the
provisions of the Indenture and pursuant to such Terms Agreement against
payment therefor as provided therein, will constitute valid and legally
binding instruments, enforceable in accordance with their terms, subject,
as to enforceability, to bankruptcy, insolvency, reorganization and similar
laws of general applicability relating to or affecting creditors' rights
and to general principles of equity; such Offered Debt Securities conform
in all material respects to the description thereof contained in the
Prospectus.
(h) The Guaranty endorsed upon the Offered Debt Securities has been
duly and validly authorized by the Guarantor and, when such Offered Debt
Securities are issued, authenticated and delivered in accordance with the
provisions of the Indenture and pursuant to the Terms Agreement referred to
in Section 3, will constitute the valid and legally binding obligation of
the Guarantor, enforceable in accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of
creditors' rights generally and to general principles of equity, regardless
of whether the issue of enforceability is considered in a proceeding in
equity or at law; the Guaranty conforms in all material respects to the
description thereof contained in the Prospectus.
(i) The Indenture has been duly qualified under the Trust Indenture
Act and has been duly authorized, executed and delivered by the Company and
the Guarantor and, assuming due authorization, execution and delivery by
the Trustee, constitutes a valid and legally binding agreement of the
Company and the Guarantor, enforceable in accordance with its terms,
subject, as to enforceability, to bankruptcy, insolvency, reorganization
and similar laws of general applicability relating to or affecting
creditors' rights and to general principles of equity, regardless of
whether the issue of enforceability is considered in a proceeding in equity
or at law; the Indenture conforms in all material respects to the
description thereof contained in the Prospectus.
(j) If the Offered Debt Securities are Convertible Debt Securities,
the Common Shares initially issuable upon conversion thereof (i) will have
been duly and validly authorized, (ii) when such Common Shares are issued
and delivered upon such conversion, will be duly and validly issued,
provided that upon conversion pursuant to the terms thereof at least the
nominal value of such Common Shares and any premium is paid up, and fully
paid and non-assessable and will conform to the description of the Common
Shares contained in the Prospectus, and (iii) when such Common Shares are
issued and delivered, may be freely deposited with the depositary for such
Common Shares against issuance of American depositary receipts evidencing
American depositary shares, as provided in the Deposit Agreement, dated
January 20, 1998 among the Guarantor, The Bank of New York, as depositary,
and the registered holders from time to time of the American depositary
receipts.
(k) The issue and sale of the Securities to be sold by the Company
under the Terms Agreement referred to in Section 3, the endorsement of the
Guaranty upon the Offered Debt Securities by the Guarantor, the issuance of
Common Shares (if the Offered Debt Securities include Convertible Debt
Securities), and the compliance by the Company and the Guarantor with all
of the provisions of such Securities, such Guaranty, this Agreement, such
Terms Agreement, the Indenture and the consummation of the transactions
herein and therein contemplated will not conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute a
default under, any material indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company, the
Guarantor or any of the Significant Subsidiaries is a party or by which the
Company, the Guarantor or any of the Significant Subsidiaries is bound or
to which any of the property or assets of the Company, the Guarantor or any
of the Significant Subsidiaries is subject, nor will such action result in
any violation of the provisions of the constituent documents of the Company
or the Guarantor or any of the Significant Subsidiaries or any statute or
any order, rule or regulation of any Governmental Agency having
jurisdiction over the Company, the Guarantor or any of the Significant
Subsidiaries or any of their properties; and no Governmental Authorizations
are required for the issue and sale of the Securities or the consummation
by the Company and the Guarantor of the transactions contemplated by this
Agreement, the Terms Agreement referred to in Section 3 and the Indenture,
except (A) the registration under the Act of the Securities, (B) such
Governmental Authorizations as have been duly obtained and are in full
force and effect and copies of which have been furnished to you and (C)
such Governmental Authorizations as may be required under state securities
or Blue Sky laws or any laws of jurisdictions outside The Netherlands and
the United States in connection with the purchase and distribution of the
Securities by or for the account of the Underwriters.
(l) Neither the Guarantor nor any of its subsidiaries has taken,
directly or indirectly, any action which was designed to or which has
constituted or which might reasonably be expected to cause or result in
stabilization or manipulation of the price of any security of the Company
or the Guarantor to facilitate the sale or resale of the Securities;
provided, however, that this provision shall not apply to stabilization or
other activities conducted by the Underwriters or on their behalf, as
described in the Prospectus.
(m) The statements set forth in the Prospectus under the caption
"Taxation--U.S. Taxation", insofar as they constitute matters of United
States federal income tax law or legal conclusions with respect thereto,
are accurate in all material respects.
(n) The statements set forth in the Prospectus under the caption
"Taxation--Netherlands Taxation" insofar as they relate to matters of Dutch
tax law or regulation or to provisions of documents therein described, are
true and accurate in all material respects.
(o) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Guarantor or any of the
Significant Subsidiaries is a party or of which any property of the
Guarantor or any of the Significant Subsidiaries is the subject which are
reasonably likely, individually or in the aggregate, to have a material
adverse effect on the current or future consolidated financial position,
shareholders' equity or results of operations of the Guarantor and its
subsidiaries taken as a whole; and, to the best of the Guarantor's
knowledge, no such proceedings are threatened or contemplated by any
Governmental Agency or threatened by others.
(p) Neither the Company nor the Guarantor is and, after giving effect
to the offering and sale of the Securities, will be an "investment company"
or an entity "controlled" by an "investment company", as such terms are
defined in the Investment Company Act of 1940, as amended (the "Investment
Company Act").
(q) The Guarantor and each of its Significant Subsidiaries have all
licenses, franchises, permits, authorizations, approvals and orders and
other concessions of and from all Governmental Agencies that are necessary
to own or lease their properties and conduct their businesses as described
in the Prospectus except for such licenses, franchises, permits,
authorizations, approvals and orders the failure to obtain which
individually or in the aggregate, will not have a material adverse effect
on the general affairs, consolidated financial position or results of
operation of the Guarantor and its subsidiaries taken as a whole.
(r) The Guarantor is not a Passive Foreign Investment Company ("PFIC")
within the meaning of Section 1297 of the United States Internal Revenue
Code of 1986, as amended.
(s) Deloitte & Touche, Registeraccountants, who have certified certain
financial statements of the Guarantor and its subsidiaries, are independent
public accountants as required by the Act and the Rules and Regulations.
3. Purchase and Offering of Securities. The obligation of the Company
to issue and sell any Offered Debt Securities, the obligation of the Guarantor
to guaranty such Offered Debt Securities and the obligation of the Underwriters
to purchase the Securities will be set forth in a Terms Agreement (the "Terms
Agreement") which shall be in the form of an executed writing (which may be
handwritten), and may be evidenced by an exchange of telegraphic or any other
rapid transmission device designed to produce a written record of communications
transmitted at the time the Company determines to sell the Securities. The Terms
Agreement will incorporate by reference the provisions of this Agreement, except
as otherwise provided therein, and will specify the following: the firm or firms
which will be Underwriters; the names of any Representatives; the aggregate
principal amount of the Offered Debt Securities; the principal amount of Offered
Debt Securities to be purchased by each Underwriter; the initial public offering
price of the Offered Debt Securities; the purchase price to be paid by the
Underwriters, the terms of the Offered Debt Securities not already specified in
the Indenture, including, but not limited to, dates of payment and rate of
interest, if any, maturity, any redemption or repayment provisions and any
sinking fund requirements. The Terms Agreement will also specify the place of
delivery and payment for the Securities and any details of the terms of offering
that should be reflected in the prospectus supplement relating to the offering
of the Securities.
The time and date of delivery and payment of the Securities will be
the time and date specified in the Terms Agreement, or such other time not later
than seven full business days thereafter as the Representatives, the Company and
the Guarantor agree as the time for payment and delivery of the Securities (such
time and date, being herein and in the Terms Agreement referred to as the
"Closing Date").
The obligations of the Underwriters to purchase the Securities will be
several and not joint. It is understood that the Underwriters propose to offer
the Securities for sale as set forth in the Prospectus. The Offered Debt
Securities delivered to the Underwriters on the Closing Date will be in
definitive fully registered form, in such denominations and registered in such
names as the Underwriters may request.
4. Certain Agreements of the Guarantor and the Company. Each of the
Guarantor and the Company, jointly and severally, agrees with the several
Underwriters that it will furnish to counsel for the Underwriters one copy of
the Registration Statement relating to the Debt Securities and the Guaranty,
including all exhibits, in the form in which each became effective and of all
amendments thereto and that, in connection with each offering of Securities:
(a) The Company and the Guarantor will prepare the Prospectus in a
form approved by the Representatives and will file the Prospectus with the
Commission pursuant to and in accordance with Rule 424(b) under the Act not
later than the Commission's close of business on the second business day
following execution and delivery of the Terms Agreement referred to in
Section 3 and will make no further amendment to the Registration Statement
or amendment or supplement to the Prospectus (other than those relating
solely to an offering of securities other than the Securities) prior to the
Closing Date or which in any case shall be disapproved by the
Representatives promptly after reasonable notice thereof and receipt by the
Representatives of copies of such proposed amendment or supplement.
(b) During the time when a prospectus relating to the Securities is
required to be delivered under the Act, (i) the Company or Guarantor will
advise the Representatives, promptly after it receives notice thereof, of
the time when any amendment to the Registration Statement has been filed or
becomes effective or any supplement to the Prospectus or any amended
Prospectus has been filed (other than those relating solely to an offering
of securities other than the Securities) and furnish the Representatives
copies thereof; (ii) the Guarantor will file promptly all reports required
to be filed by the Guarantor with the Commission pursuant to Section 13(a),
13(c), 14(d) or 15(d) of the Exchange Act subsequent to the date of the
Prospectus; (iii) the Company will advise the Representatives promptly of
any request by the Commission for the amending or supplementing of the
Registration Statement or of any part thereof or for additional information
(other than solely in respect of an offering of securities other than the
Securities), and will advise the Representatives promptly of the
institution by the Commission of any stop order proceedings in respect of
the Registration Statement or of any part thereof and will use its best
efforts to prevent the issuance of any such stop order and to obtain as
soon as possible its lifting, if issued; and (iv) the Company or the
Guarantor will advise the Representatives promptly of the receipt by the
Company or the Guarantor of any notification with respect to the suspension
of the qualification of the Securities for sale in any jurisdiction or the
initiation or threat of any proceeding for such purpose.
(c) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of
which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made when such Prospectus is delivered, not
misleading, or if for any other reason it is necessary at any time to amend
or supplement the Prospectus or to file under the Exchange Act any document
to be incorporated by reference in the Prospectus in order to comply with
the Act, the Trust Indenture Act or the Exchange Act, the Company and the
Guarantor promptly will notify the Representatives and at the
Representatives' request file such document and prepare and furnish without
charge to each Underwriter and to any dealer in securities as many copies
as the Representatives may from time to time reasonably request of an
amended Prospectus or a supplement to the Prospectus, or the document that
will be filed under the Exchange Act so as to be incorporated by reference
in the Prospectus, which will correct such statement or omission or effect
such compliance, provided, that in case any Underwriter is required to
deliver a prospectus in connection with sales of any of the Securities at
any time nine months or more after the time of issue of the Prospectus,
upon the Representatives' request but at the expense of such Underwriter,
the Company and the Guarantor promptly will prepare and deliver to such
Underwriter as many copies as the Representatives may request of an amended
or supplemented Prospectus complying with Section 10(a)(3) of the Act.
Neither the Representatives' consent to, nor the Underwriters' delivery of,
any such amendment or supplement shall constitute a waiver of any of the
conditions set forth in Section 5.
(d) If necessary, the Company and the Guarantor will promptly from
time to time take such action as the Representatives may reasonably request
to qualify the Securities for offering and sale and to determine their
eligibility for investment under the securities laws of such jurisdictions
as the Representatives may request and to comply with such laws as to
permit the continuance of sales and dealings therein in such jurisdictions
for so long as may be necessary to complete the distribution of the
Securities, provided that in connection therewith neither the Company nor
the Guarantor shall be required to qualify as a foreign corporation or to
file a general or unlimited consent to process in any jurisdiction.
(e) The Guarantor will make generally available to its security
holders as soon as practicable, but in any event not later than eighteen
months after the effective date of the Registration Statement (as defined
in Rule 158(c) under the Act), an earnings statement of the Guarantor and
its subsidiaries (which need not be audited) complying with Section 11(a)
of the Act and the Rules and Regulations (including, at the option of the
Guarantor, Rule 158 under the Act).
(f) The Company and the Guarantor will furnish to the Representatives
copies of the Registration Statement, including all exhibits, any
Preliminary Prospectus and the Prospectus and during the time when a
prospectus relating to the Securities is required to be delivered under the
Act, all amendments and supplements to such documents (other than those
solely relating to an offering of securities other than the Securities), in
each case as soon as available and in such quantities as are reasonably
requested.
(g) The Company and the Guarantor will pay or cause to be paid the
following: (i) the fees, disbursements and expenses of the Company's and
Guarantor's counsel and accountants in connection with the registration of
the Debt Securities under the Act and all other expenses in connection with
the preparation, printing and filing of the Registration Statement, any
Preliminary Prospectus and the Prospectus and amendments and supplements
thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) the cost of printing any Agreement among
Underwriters, any Selling Agreements, this Agreement, any Terms Agreement,
the Indenture, any Blue Sky Memorandum, Legal Investment Survey and any
other documents in connection with the offering, purchase, sale and
delivery of the Securities; (iii) if applicable, all reasonable expenses in
connection with the qualification of the Securities for offering and sale
under state securities laws as provided in Section 4(d), including the
reasonable fees and disbursements of counsel for the Underwriters in
connection with any Blue Sky Memorandum or Legal Investment Survey; (iv)
any fees charged by securities rating services for rating the Securities;
(v) the cost of preparing the Securities; (vi) the fees and expenses
(including fees and disbursements of counsel) of the Trustee under the
Indenture; (vii) the fees and expenses of the Authorized Agent (as defined
in Section 12); (viii) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise
specifically provided for in this Section; provided, however, that, the
Underwriters will pay all of their own costs and expenses, including the
fees of their counsel, travel expenses and any advertising expenses
incurred in connection with the transactions contemplated hereby.
(h) The Company and the Guarantor will use the net proceeds received
by the Company from the sale of the Securities pursuant to this Agreement
and the Terms Agreement referred to in Section 3 in the manner specified in
the Prospectus under the caption "Use of Proceeds".
5. Conditions of the Obligations of the Underwriters. The obligations
of the several Underwriters to purchase and pay for the Securities on the
Closing Date will be subject, in their discretion, to the truth and accuracy of
the representations and warranties on the part of the Company and the Guarantor
herein at and as of the Closing Date, to the truth and accuracy of the written
statements of the officers of the Company and Guarantor made pursuant to the
provisions hereof at and as of the Closing Date, to the performance by each of
the Company and the Guarantor of its obligations hereunder and to the following
additional conditions precedent:
(a) The Representatives shall have received a letter, dated the
Closing Date, of Deloitte & Touche, Registeraccountants, in form and
substance satisfactory to the Representatives, to the effect set forth in
Annex B hereto.
(b) The Prospectus shall have been filed with the Commission pursuant
to Rule 424(b) of the Act within the applicable time period prescribed for
such filing by the Rules and Regulations and in accordance with Section
4(a) of this Agreement. No stop order suspending the effectiveness of the
Registration Statement or of any part thereof shall have been issued and no
proceedings for that purpose shall have been instituted or shall have been
threatened by the Commission. All requests for additional information on
the part of the Commission shall have been complied with to the
Representatives' reasonable satisfaction.
(c) Subsequent to the execution of the Terms Agreement, there shall
not have occurred (i) any downgrading in the rating of any debt securities
of the Company or the Guarantor by any "nationally recognized statistical
rating organization" (as defined for purposes of Rule 436(g) of the Rules
and Regulations), or any public announcement that any such organization has
under surveillance or review its rating of any debt securities of the
Company or the Guarantor, with possible negative implications; (ii) any
suspension for more than two hours or material limitation in trading in
securities generally on the New York Stock Exchange or the AEX-Stock
Exchange or in the over-the-counter market in New York; (iii) any
suspension for more than two hours or material limitation in trading in the
Guarantor's securities on the New York Stock Exchange or the AEX-Stock
Exchange or in the over-the-counter market in New York; (iv) any general
moratorium on commercial banking activities in New York or Amsterdam
declared by the relevant authorities; (v) any outbreak or escalation of
hostilities in which the United States or The Netherlands is involved, any
declaration of war or a national emergency by the United States or The
Netherlands, if the effect of any such event specified in this clause (v)
in the judgment of the Representatives, makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Securities being delivered at the Closing Date on the terms and in the
manner contemplated in the Prospectus; or (vi) the occurrence of any
material adverse change in the existing financial, political or economic
conditions in the United States and The Netherlands or elsewhere which, in
the judgment of the Representatives, would materially and adversely affect
the financial markets or the market for the Securities and other
convertible debt (if the Debt Securities include Convertible Debt
Securities) or other debt securities.
(d) (i) Neither the Guarantor nor any of the Significant Subsidiaries
shall have sustained since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus any loss
or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth
or contemplated in the Prospectus, and (ii) since the respective dates as
of which information is given in the Prospectus there shall not have been
any change in the capital stock or consolidated long-term debt of the
Guarantor or any change, or any development involving a prospective change,
in or affecting the general affairs, financial position, shareholders'
equity or results of operations of the Guarantor and its subsidiaries taken
as a whole or the officers and directors of the Guarantor, otherwise than
as set forth or contemplated in the Prospectus, the effect of which, in any
such case described in clause (i) or (ii), is in the judgment of the
Representatives, after consultation with the Guarantor if practicable, so
material and adverse to the Guarantor and its subsidiaries taken as a whole
as to make it impracticable or inadvisable to proceed with the public
offering or the delivery of the Securities being delivered at the Closing
Date on the terms and in the manner contemplated in the Prospectus.
(e) The Underwriters shall have received an opinion, in form and
substance reasonably satisfactory to the Representatives, dated the Closing
Date, of White & Case LLP, counsel for the Company and the Guarantor, to
the effect that:
(i) The Company has been duly incorporated and is validly
existing under the laws of the State of Delaware;
(ii) This Agreement and the Terms Agreement and the Indenture
have been duly executed and delivered by the Company;
(iii) The Company has the corporate power and corporate authority
to execute and deliver and perform the obligations on its part to be
performed under the Terms Agreement (including the provisions of this
Agreement), the Indenture and the Securities and to authorize, issue
and sell the Offered Debt Securities. The Company has the corporate
power and corporate authority to conduct its business as described in
the Prospectus;
(iv) The execution and delivery by the Company of this Agreement,
the Terms Agreement and the Indenture and the performance by the
Company of its obligations hereunder and thereunder and the execution,
delivery and filing by or in the name of the Company of the
Registration Statement have been duly authorized by the Company;
(v) The issue and sale by the Company of the Securities, the
compliance by the Company with the provisions under the Terms
Agreement (including the provisions of this Agreement), the Indenture
and the Offered Debt Securities, and the consummation of the
transactions contemplated therein and herein, do not violate any
provisions of the Company's Certificate of Incorporation or By-laws;
(vi) Assuming (x) due authorization, execution and delivery by
the Guarantor under Dutch law of the Indenture, (y) due authorization,
execution and delivery of the Indenture by the Trustee and (z) that
each of the Trustee and the Guarantor has full power, authority and
legal right to enter into and perform its obligations thereunder, the
Indenture constitutes a valid and legally binding agreement of each of
the Company and the Guarantor, enforceable against the Company and the
Guarantor in accordance with its terms, subject to bankruptcy,
insolvency, reorganization and other similar laws relating to or
affecting creditors' rights generally and to general principles of
equity (regardless of whether the issue of enforceability is
considered in a proceeding in equity or at law), provided that, if the
Offered Debt Securities are subordinated debt securities, such counsel
may state that they express no opinion as to the provisions of such
Securities relating to the subordination of the Guaranty which are
expressed to be governed by and construed in accordance with the laws
of The Netherlands;
(vii) The Indenture has been duly qualified under the Trust
Indenture Act;
(viii) The Offered Debt Securities have been duly executed and
delivered by the Company and constitute valid and legally binding
obligations of the Company, enforceable against the Company in
accordance with their terms, except as the enforceability thereof may
be limited by applicable bankruptcy, insolvency, reorganization or
other similar laws affecting the enforcement of creditors' rights
generally, or to general principles of equity (regardless of whether
the issue of enforceability is considered in a proceeding in equity or
at law);
(ix) The Offered Debt Securities have been duly authenticated in
the manner provided in the Indenture, are entitled to the benefits
provided by the Indenture and conform in all material respects to the
description of the Offered Debt Securities contained in the
Prospectus;
(x) Assuming due authorization, execution and delivery by the
Guarantor under Dutch law of the Guaranty, the Guaranty constitutes a
valid and legally binding obligation of the Guarantor, enforceable in
accordance with its terms, except as the enforceability thereof may be
limited by applicable bankruptcy, insolvency, reorganization or other
similar laws affecting the enforcement of creditors' rights generally,
or to general principles of equity (regardless of whether the issue of
enforceability is considered in a proceeding in equity or at law),
provided that, if the Offered Debt Securities are subordinated debt
securities, such counsel may state that they express no opinion as to
the provisions of such Securities relating to the subordination of the
Guaranty which are expressed to be governed by and construed in
accordance with the laws of The Netherlands;
(xi) The Guaranty has been duly endorsed upon the Offered Debt
Securities in the manner provided in the Indenture, and the holders
are entitled to the benefits of the Guaranty as provided in the
Indenture; the Guaranty conforms in all material respects to the
description of the Guaranty contained in the Prospectus;
(xii) Under the laws of the State of New York relating to
personal jurisdiction, the Guarantor has, pursuant to Section 12 of
this Agreement and Section 13.12 of the Indenture, validly and
irrevocably submitted to the personal jurisdiction of any state or
federal court located in the Borough of Manhattan, The City of New
York, New York (each a "New York Court") in any action arising out of
or relating to the Terms Agreement (including the provisions of this
Agreement), the Offered Debt Securities, the Guaranty or the
Indenture, as the case may be, or the transactions contemplated
thereby or hereby, has validly and irrevocably waived any objection to
the venue of a proceeding in any such court, and has validly and
irrevocably appointed the Authorized Agent (as defined herein) as its
authorized agent for the purpose described in Section 12; and service
of process effected on such agent in the manner set forth in Section
12 will be effective to confer valid personal jurisdiction over the
Guarantor in the New York Courts; provided, however, that such counsel
need express no opinion as to whether a Federal court sitting in New
York would have jurisdiction in a suit, action or proceeding against
the Guarantor brought by one or more plaintiffs who are not United
States nationals or residents;
(xiii) No consent, approval, authorization or order of, or
registration or qualification with, any Federal or New York court or
governmental agency or body is required for the issue and sale of the
Offered Debt Securities or, if the Offered Debt Securities include
Convertible Debt Securities, the issuance of Common Shares upon
conversion thereof, or the consummation by the Company and the
Guarantor of the transactions contemplated by the Terms Agreement
(including the provisions of this Agreement) or the Indenture, except
the registration under the Act of the Securities and such consents,
approvals, authorizations, registrations or qualifications as have
been obtained and made and such as may be required under state
securities or Blue Sky laws in connection with the purchase and
distribution of the Offered Debt Securities by the Underwriters (as to
which such counsel need express no opinion);
(xiv) The statements set forth in the Prospectus under the
caption "Description of the Notes" and "Description of Guaranteed Debt
Securities of Ahold Finance and Guarantees of Royal Ahold", insofar as
they purport to constitute a summary of the terms of the Securities,
fairly summarize in all material respects the terms thereof;
(xv) The statements set forth in the Prospectus under the caption
"Taxation--U.S. Taxation", to the extent they constitute matters of
United States federal income tax law or legal conclusions with respect
thereto, are accurate in all material respects;
(xvi) Neither the Guarantor nor the Company is an "investment
company" or an entity "controlled" by an "investment company," as such
terms are defined in the Investment Company Act;
(xvii) The documents incorporated by reference in the Prospectus
or any further amendment or supplement thereto made by the Company or
the Guarantor prior to the relevant Closing Date (other than the
financial statements and related schedules and other financial and
statistical data included or incorporated by reference therein or
omitted therefrom, as to which such counsel need express no opinion),
when they were filed with the Commission, appeared on their face to
comply as to form in all material respects with the requirements of
the Exchange Act and the rules and regulations of the Commission
thereunder; and
(xviii) The Registration Statement relating to the Securities, as
of its effective date, the Registration Statement, and the Prospectus,
as of the date of the Terms Agreement (other than the financial
statements and related schedules and other financial and statistical
data included or incorporated by reference therein or omitted
therefrom and other than the Trustee's Statement of Eligibility on
Form T-1, as to which such counsel need express no opinion) appeared
on their face to comply as to form in all material respects with the
requirements of the Act, the Trust Indenture Act and the rules and
regulations of the Commission thereunder; nothing has come to such
counsel's attention which causes it to believe that the Registration
Statement relating to the Securities, as of its effective date, or the
Prospectus, as of the date of the Terms Agreement (other than, in each
case, the financial statements and related schedules and other
financial and statistical data included or incorporated by reference
therein or omitted therefrom and other than the Trustee's Statement of
Eligibility on Form T-1, as to which such counsel need express no
opinion), contained any untrue statement of a material fact or omitted
to state any material fact required to be stated therein or necessary
to make the statements therein (in the case of the Prospectus, in
light of the circumstances under which they were made) not misleading
or that the Prospectus, as amended or supplemented as of the Closing
Date, as of the Closing Date (other than the financial statements and
related schedules and other financial and statistical data included or
incorporated by reference therein or omitted therefrom, as to which
such counsel need express no opinion) contains an untrue statement of
a material fact or omits to state a material fact necessary to make
the statements therein, in the light of the circumstances under which
they were made, not misleading; and such counsel does not know of any
contracts or other documents of a character required to be filed as an
exhibit to the Registration Statement that are not so filed as
required; it being understood that such counsel may state that they do
not assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement, or
the Prospectus, except for those referred to in subsection (xv) or
(xvi) of this Section 5(e).
In rendering such opinion, such counsel may state that they express no
opinion as to the laws other than the Federal securities law of the United
States and the law of the State of New York.
(f) The Underwriters shall have received an opinion, in form and
substance reasonably satisfactory to the Representatives, dated the Closing
Date, from the General Counsel or the Vice President Legal Affairs of the
Guarantor, to the effect that:
(i) Nothing has come to such counsel's attention that causes such
counsel to believe that any of the documents incorporated by reference
in the Prospectus and any further amendment or supplement thereto made
by the Company or the Guarantor prior to the Closing Date (other than
the financial statements and related schedules and other financial and
statistical data included or incorporated by reference therein or
omitted therefrom, as to which such counsel need express no opinion),
when it was filed with the Commission, contained an untrue statement
of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein, in light
of the circumstances under which they were made when such documents
were so filed, not misleading;
(ii) Nothing has come to such counsel's attention which causes
such counsel to believe that the Registration Statement relating to
the Securities, as of its effective date, the Registration Statement
and the Prospectus, as of the date of the Terms Agreement (other than,
in each case, the financial statements and related schedules and other
financial and statistical data included or incorporated by reference
therein or omitted therefrom and other than the Trustee's Statement of
Eligibility on Form T-1, as to which such counsel need express no
opinion) contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to
make the statements therein (in the case of the Prospectus, in light
of the circumstances under which they were made) not misleading or
that the Prospectus, as amended or supplemented as of the Closing
Date, as of the Closing Date (other than the financial statements and
related schedules and other financial and statistical data included or
incorporated by reference therein or omitted therefrom, as to which
such counsel need express no opinion) contains an untrue statement of
a material fact or omits to state a material fact necessary to make
the statements therein, in the light of the circumstances under which
they were made, not misleading.
(iii) The execution, delivery and filing by or in the name of the
Company and the Guarantor of the Registration Statement have been duly
authorized by the Company and the Guarantor.
In rendering such opinion, such counsel may state that they express no
opinion as to the laws other than the laws of The Netherlands.
(g) The Underwriters shall have received an opinion, in form and
substance reasonably satisfactory to the Representatives, dated the Closing
Date, of De Brauw Blackstone Westbroek N.V., Dutch counsel for the
Guarantor, to the effect that:
(i) The Guarantor has been duly incorporated and is validly
existing under the law of The Netherlands as a legal entity in the
form of a "naamloze vennootschap" (a public company with limited
liability);
(ii) This Agreement, the Terms Agreement, the Indenture, the
Guaranty and the endorsement of the Guaranty on the Offered Debt
Securities have been duly executed and delivered by the Guarantor;
(iii) If the Offered Debt Securities include Convertible Debt
Securities, the Common Shares have been duly authorized and, when such
Common Shares are issued and delivered upon such conversion, will be
validly issued by the Guarantor in accordance with the laws of The
Netherlands and the provisions of the Articles of Association
applicable thereto and will be fully paid and non-assessable. Pursuant
to the Articles of Association and the laws of The Netherlands, the
Common Shares may be freely issued by the Guarantor to or for the
account of the holders of the Offered Debt Securities converting the
same in the manner contemplated by the Indenture;
(iv) The Guarantor has the corporate power and corporate
authority to execute and deliver and perform the obligations on its
part to be performed under the Terms Agreement (including the
provisions of this Agreement), the Indenture and the Guaranty and to
authorize and issue the Guaranty. The Guarantor has the corporate
power and corporate authority to conduct its business as described in
the Prospectus;
(v) The execution and delivery by the Guarantor of this
Agreement, the Terms Agreement, the Indenture, the Guaranty and the
endorsement of the Guaranty on the Offered Debt Securities, and the
performance by the Guarantor of its obligations hereunder and
thereunder and the execution, delivery and filing by or in the name of
the Guarantor of the Registration Statement have been duly authorized
by the Guarantor;
(vi) The choice of New York law as the law expressed to be
governing the Terms Agreement (including the provisions of this
Agreement), the Indenture and the Guaranty will be recognized as the
law governing the Terms Agreement (including the provisions of this
Agreement), the Indenture and the Guaranty and accordingly the courts
of The Netherlands should apply New York law as the law expressed to
be governing the Terms Agreement (including the provisions of this
Agreement), the Indenture and the Guaranty;
(vii) If the Offered Debt Securities are subordinated debt
securities, the provisions of the Indenture relating to the
subordination of the Guaranty are valid and binding under the law of
The Netherlands to which they are expressed to be subject;
(viii) The execution and delivery by the Guarantor of the Terms
Agreement (including the provisions of this Agreement), the Indenture
the Guaranty and the endorsement of the Guaranty on the Offered Debt
Securities and the consummation of the transactions contemplated
therein and herein, do not violate any provisions of the law of The
Netherlands or the Articles of Association;
(ix) In order to ensure the legality, validity, enforceability or
admissibility in evidence of the Terms Agreement (including the
provisions of this Agreement), the Indenture, the Guaranty and the
endorsement of the Guaranty on the Offered Debt Securities, it is not
necessary that the Terms Agreement (including the provisions of this
Agreement), the Indenture or the Guaranty be filed, recorded or
enrolled with any public authority, governmental agency or
governmental department of The Netherlands (excluding, for the
avoidance of doubt, a court in connection with legal proceedings
insofar as the enforceability and admissibility in evidence are
concerned), or that any stamp, registration or similar tax or charge
be paid in The Netherlands, except for certain court fees in
connection with legal proceedings;
(x) The submission to the jurisdiction of any United States
Federal court or state court sitting in the Borough of Manhattan, the
City of New York, State of New York, and the irrevocable waiver of any
objection to the laying of venue of a proceeding in such court and of
any immunity to jurisdiction of such court, to which it is or may
become entitled, will, according to the courts of The Netherlands duly
applying New York law as the law governing the Terms Agreement
(including the provisions of this Agreement) (including such
submission and waiver), the Indenture and the Guaranty, as the case
may be, be valid and binding on the Guarantor;
(xi) All authorizations, consents or approvals of, or
registrations or filings with, any governmental department or
regulatory authority of or within The Netherlands which are required
for the execution and delivery of the Guaranty, the Indenture and the
Terms Agreement (including the provisions of this Agreement) by the
Guarantor or the consummation by the Guarantor of the transactions
contemplated under the Terms Agreement (including the provisions of
this Agreement) and the Indenture have been obtained or made and are
in full force and effect;
(xii) The statements set forth in the Prospectus under the
captions (if applicable) "Limitations on Enforcement of U.S. Laws
Against Royal Ahold, its Management, and Others" and "Management," to
the extent that such statements are statements as to matters of the
law of The Netherlands or the Articles of Association of the Guarantor
are correct in all material respects; and
(xiii) If the Offered Debt Securities include Convertible Debt
Securities, the Corporate Executive Board of the Guarantor has in its
resolutions referred to above in Section 2(f) validly resolved to
exclude the preemptive rights of shareholders in respect of the issue
of the Common Shares by the Guarantor, the Corporate Executive Board
of the Guarantor has the authority to adopt such resolutions, and no
other action is required to exclude such preemptive rights.
In rendering such opinions, such counsel may state that with respect
to all matters of United States federal and New York law they have relied
upon the opinions of United States counsel for the Guarantor and the
Company delivered pursuant to paragraph (e) of this Section 5.
(h) The Underwriters shall have received an opinion, in form and
substance reasonably satisfactory to the Representatives, dated the Closing
Date, of KPMG Meijburg & Co., Dutch tax counsel for the Guarantor, to the
effect that the statements set forth in the Prospectus under the caption
"Taxation--Netherlands Taxation" insofar as they relate to matters of Dutch
tax law or regulation or to provisions of documents therein described, are
true and accurate in all material respects.
(i) The Underwriters shall have received from their U.S. counsel such
opinion or opinions, dated the Closing Date, with respect to the validity
of the Offered Debt Securities and the Guaranty, the Registration
Statement, the Prospectus and such other related matters as the
Underwriters may reasonably require, and the Company and the Guarantor
shall have furnished to such counsel such documents as they may reasonably
request for the purpose of enabling them to pass upon such matters.
(j) The Underwriters shall have received a certificate, dated the
Closing Date, of two officers of the Guarantor reasonably satisfactory to
the Representatives in which such officers shall state that, to their
knowledge, after reasonable investigation the representations and
warranties of the Company and the Guarantor in this Agreement and in the
Terms Agreement referred to in Section 3, if applicable, are true and
correct at and as of the Closing Date, that each of the Company and the
Guarantor has complied with all agreements and satisfied all conditions on
its part to be performed or satisfied hereunder at or prior to the Closing
Date, that no stop order suspending the effectiveness of the Registration
Statement or of any part thereof has been issued and no proceedings for
that purpose have been instituted by the Commission, that, subsequent to
the date of the most recent financial statements in the Prospectus, there
has been no material adverse change in the financial position or results of
operations of the Guarantor and its subsidiaries taken as a whole except as
set forth in or contemplated by the Prospectus or as described in such
certificate, and shall cover such other matters as the Representatives may
reasonably request.
The Company and the Guarantor will furnish the Representatives with
such conformed copies of such opinions, certificates, letters and documents
as they reasonably request.
6. Indemnification and Contribution. (a) Each of the Company and the
Guarantor will, jointly and severally, indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Preliminary Prospectus,
the Registration Statement, the Prospectus, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and will reimburse each Underwriter for
any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such action or claim, as such
expenses are incurred; provided, however, that neither the Company nor the
Guarantor will be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement in or omission or alleged omission from any of such
documents in reliance upon and in conformity with written information furnished
to the Company or the Guarantor by any Underwriter through the Representatives
expressly for use therein; and provided, further, that neither the Company nor
the Guarantor shall be liable to any Underwriter under the indemnity agreement
in this subsection (a) with respect to any Preliminary Prospectus to the extent
that any such loss, claim, damage or liability of such Underwriter results from
the fact that such Underwriter sold Securities to a person to whom there was not
sent or given, at or prior to the written confirmation of such sale, a copy of
the Prospectus or the Prospectus as then amended or supplemented in any case
where such delivery is required by the Act if the Company or the Guarantor has
previously furnished copies thereof in sufficient quantity to such Underwriter
as required by Section 4(f) and the loss, claim, damage or liability of such
Underwriter results from an untrue statement or omission of a material fact
contained in a Preliminary Prospectus which was corrected in the Prospectus or
the Prospectus as then amended, modified or supplemented.
(b) Each Underwriter will indemnify and hold harmless the Company and
the Guarantor against any losses, claims, damages or liabilities to which the
Company or the Guarantor may become subject, under the Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in any Preliminary Prospectus, the Registration
Statement, the Prospectus or any amendment or supplement thereto, or arise out
of or are based upon the omission or the alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in any of such documents in reliance upon and in conformity
with written information furnished to the Company or the Guarantor by such
Underwriter through the Representatives expressly for use therein, and will
reimburse the Company and the Guarantor for any legal or other expenses
reasonably incurred by the Company or the Guarantor in connection with
investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the indemnifying
party under this Section, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under paragraphs (a) and (b) of this Section, and will not relieve it from any
liability which it may have to any indemnified party unless the indemnifying
party forfeits substantial rights and defenses as a result thereof. In case any
such action is brought against any indemnified party and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein, and to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party will
not be liable to such indemnified party under this Section for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation. No indemnifying party shall be liable
for any settlement of any proceeding effected without its written consent, but
if settled with such consent, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement. No indemnifying party shall, without the written consent of the
indemnified party, effect the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action or claim
in respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to such
action or claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability arising out of
such action or claim and (ii) does not include a statement as to or an admission
of fault, culpability or a failure to act, by or on behalf of any indemnified
party.
(d) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or actions
in respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received
by the Company and the Guarantor on the one hand and by the Underwriters on the
other from the offering of the Securities. If, however, the allocation provided
by the immediately preceding sentence is not permitted by applicable law, then
each indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company and the Guarantor
on the one hand and of the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company and the
Guarantor on the one hand and the Underwriters on the other shall be deemed to
be in the same proportion as the total net proceeds from the offering of the
Securities purchased under the Terms Agreement (before deducting expenses)
received by the Company and the Guarantor bear to the total underwriting
discounts and commissions received by the Underwriters with respect to the
Securities purchased under the Terms Agreement, in each case as set forth in the
table on the cover page of the Prospectus. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company and the Guarantor
on the one hand or the Underwriters on the other and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The Company, the Guarantor and the
Underwriters agree that it would not be just and equitable if contributions
pursuant to this subsection (d) were determined by pro rata allocation (even if
the Underwriters were treated as one entity for such purpose) or any other
method of allocation which does not take account of the equitable considerations
referred to above in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to above in this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any action or
claim which is the subject of this subsection (d). Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Securities underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (d) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Company and the Guarantor under this
Section shall be in addition to any liability which the Company and the
Guarantor may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Underwriter within the
meaning of the Act; and the obligations of the Underwriters under this Section
shall be in addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to each
director of the Company or the Guarantor, to each officer of the Company or the
Guarantor who has signed the Registration Statement and to each person, if any,
who controls the Company or the Guarantor within the meaning of the Act.
7. Default of Underwriters. (a) If any Underwriter shall default in
its obligation to purchase the Securities which it has agreed to purchase under
the Terms Agreement relating to such Securities, the Representatives may in
their discretion arrange for themselves or another party or other parties to
purchase such Securities on the terms contained herein and therein. If within
thirty-six hours after such default by any Underwriter the Representatives do
not arrange for the purchase of such Securities, then the Company shall be
entitled to a further period of thirty-six hours within which to procure another
party or other parties satisfactory to the Representatives to purchase such
Securities on such terms. In the event that, within the respective prescribed
periods, the Representatives notify the Company that they have so arranged for
the purchase of the Securities, or the Company notifies the Representatives that
it has so arranged for the purchase of such Securities, the Representatives or
the Company shall have the right to postpone the Closing Date for the Securities
for a period of not more than seven days, in order to effect whatever changes
may thereby be made necessary in the Registration Statement or the Prospectus as
amended or supplemented, or in any other documents or arrangements, and the
Company and the Guarantor agree to file promptly any amendments or supplements
to the Registration Statement or the Prospectus which may thereby be made
necessary. The term "Underwriter" as used in this Agreement shall include any
person substituted under this section with like effect as if such person had
originally been a party to the Terms Agreement with respect to such Securities.
(b) If, after giving effect to any arrangements for the purchase of
the Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of such Securities which remains unpurchased does not
exceed one-eleventh of the aggregate principal amount of the Offered Debt
Securities to be purchased at such Closing Date, then the Company shall have the
right to require each non-defaulting Underwriter to purchase on the applicable
Closing Date the principal amount of Offered Debt Securities which such
Underwriter agreed to purchase at such Closing Date under the Terms Agreement
relating to such Offered Debt Securities and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the
principal amount of Offered Debt Securities which such Underwriter agreed to
purchase under such Terms Agreement at such Closing Date) of the Offered Debt
Securities of such defaulting Underwriter or Underwriters for which such
arrangements have not been made; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of
the Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of Offered Debt Securities which remains unpurchased
exceeds one-eleventh of the aggregate principal amount of the Offered Debt
Securities to be purchased at such Closing Date, or if the Company shall not
exercise the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Offered Debt Securities of a defaulting Underwriter or
Underwriters, then the Terms Agreement relating to such Offered Debt Securities
shall thereupon terminate, without liability on the part of any non-defaulting
Underwriter, the Company or the Guarantor, except for the expenses to be borne
by the Company, the Guarantor and the Underwriters as provided in Section 4(g)
and the indemnity and contribution agreements in Section 6; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
8. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company, the Guarantor or their officers and of the several Underwriters set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation, or statement as to the results thereof,
made by or on behalf of any Underwriter, the Company, the Guarantor or any of
their respective representatives, officers or directors or any controlling
person and will survive delivery of and payment for the Securities. If the Terms
Agreement is terminated pursuant to Section 7 or if for any reason the purchase
of the Securities by the Underwriters under the Terms Agreement is not
consummated, the Company, and the Guarantor shall remain responsible for the
expenses to be paid or reimbursed by them pursuant to Section 4(g) and the
respective obligations of the Company, the Guarantor and the Underwriters
pursuant to Section 6 shall remain in effect. If the purchase of the Securities
by the Underwriters is not consummated for any reason, other than solely because
of the termination of the Terms Agreement pursuant to Section 7 or the
occurrence of any event specified in clause (ii), (iv), (v) or (vi) of Section
5(c), the Company and the Guarantor will reimburse the Underwriters for all
out-of-pocket expenses approved in writing by you, including fees and
disbursements of counsel, reasonably incurred by them in connection with the
offering of the Securities, but the Company and the Guarantor shall be under no
further liability to any Underwriter except as provided in Section 4(g) and
Section 6.
9. Notices. All statements, requests, notices and agreements hereunder
shall be in writing and if to the Underwriters shall be sufficient in all
respects, if delivered or sent by first class mail, telex, or facsimile
transmission (confirmed in writing by overnight courier sent on the day of such
facsimile transmission) to the address of the Representatives as set forth in
the Terms Agreement; and if to the Company or the Guarantor shall be sufficient
in all respects if delivered or sent by first class mail (air mail, in the case
of the Guarantor), telex, or facsimile transmission (confirmed in writing by
overnight courier sent on the day of such facsimile transmission) to the address
of the Company or the Guarantor, respectively, set forth in the Registration
Statement. Notices to the Company shall be sent to the attention of the
President, with a copy to the Treasurer of the Guarantor at the address set
forth in the Registration Statement; and notices to the Guarantor shall be sent
to the attention of the Treasurer at such address. Any such statements,
requests, notices or agreements shall have effect upon receipt thereof.
10. Successors. This Agreement will inure solely to the benefit of and
be binding upon the Company, the Guarantor and such Underwriters as are
identified in Terms Agreements and their respective officers and directors and
controlling persons referred to in Sections 6 and 8, and the respective heirs,
executors, administrators, successors and assigns, and no other person will
acquire or have any right or obligation hereunder or by virtue of this
Agreement. No purchaser of any of the Securities from any Underwriter shall be
deemed a successor or assign by reason merely of such purchase.
11. Representatives. In all dealings under any Terms Agreement and
hereunder, the Representatives shall act on behalf of each of the Underwriters,
and the parties hereto shall be entitled to act and rely upon any statement,
request, notice or agreement on behalf of any Underwriter made or given by the
Representatives.
12. Submission to Jurisdiction. Each of the parties hereto irrevocably
(i) agrees that any legal suit, action or proceeding arising out of or based
upon a Terms Agreement (including the provisions of this Agreement) or the
transactions contemplated thereby or hereby may be instituted in any New York
Court, (ii) waives, to the fullest extent permitted by applicable law, any
objection which it may now or hereafter have to the laying of venue of any such
proceeding and (iii) submits to the exclusive jurisdiction of such courts in any
such suit, action or proceeding. The Guarantor has appointed Ahold U.S.A., Inc.,
One Atlanta Plaza, 950 East Paces Ferry Road, Suite 2575, Atlanta, Georgia 30326
as its authorized agent (the "Authorized Agent") upon whom process may be served
in any such action arising out of or based on any such Terms Agreement
(including the provisions of this Agreement) or the transactions contemplated
hereby or thereby which may be instituted in any New York Court by any
Underwriter or by any person who controls any Underwriter, expressly consents to
the jurisdiction of any such court in respect of any such action, and waives any
other requirements of or objections to personal jurisdiction with respect
thereto. Such appointment shall be irrevocable. The Guarantor represents and
warrants that the Authorized Agent has agreed to act as such agent for service
of process and agrees to take any and all action, including the filing of any
and all documents and instruments, that may be necessary to continue such
appointment in full force and effect as aforesaid. Service of process upon the
Authorized Agent and written notice of such service to the Guarantor shall be
deemed, in every respect, effective service of process upon the Guarantor.
13. Judgment Currency. In respect of any judgment or order given or
made for any amount due hereunder in United States dollars that is expressed and
paid in a currency (the "judgment currency") other than United States dollars,
the Company and the Guarantor will indemnify each Underwriter against any loss
incurred by such Underwriter as a result of any variation as between (i) the
rate of exchange at which the United States dollar amount is converted into the
judgment currency for the purpose of such judgment or order and (ii) the rate of
exchange at which an Underwriter is able to purchase United States dollars with
the amount of the judgment currency actually received by such Underwriter. The
foregoing indemnity shall constitute a separate and independent obligation of
the Company and the Guarantor and shall continue in full force and effect
notwithstanding any such judgment or order as aforesaid. The term "rate of
exchange" shall include any premiums and costs of exchange payable in connection
with the purchase of or conversion into United States dollars.
14. Time of Essence. Time shall be of the essence of each Terms
Agreement. As used herein the term "business day" shall mean any day when the
Commission's office in Washington, D.C. is open for business.
15. GOVERNING LAW. THIS AGREEMENT AND EACH TERMS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
16. Counterparts. This Agreement and each Terms Agreement may be
executed by any one or more of the parties hereto and thereto in any number of
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same instrument.
<PAGE>
If the foregoing is in accordance with your understanding, please sign
and return three counterparts hereof.
Very truly yours,
AHOLD FINANCE U.S.A., INC.
By /s/ Robert G. Tobin
--------------------------
Name: Robert G. Tobin
Title: Chairman, Board of
Directors
KONINKLIJKE AHOLD N.V.
By /s/ A.M. Meurs
--------------------------
Name: A.M. Meurs
Title: Executive Vice President
and CFO
Accepted as of the date hereof:
By: J.P. MORGAN SECURITIES INC.
By /s/ Robert Nordlinger
--------------------------
Name: Robert Nordlinger
Title: Vice President
By: CHASE SECURITIES INC.
By /s/ Therese Esperdy
--------------------------
Name: Therese Esperdy
Title: MD
On behalf of each of the Underwriters
<PAGE>
ANNEX A
AHOLD FINANCE U.S.A., INC., ISSUER
KONINKLIJKE AHOLD N.V., GUARANTOR
DEBT SECURITIES
TERMS AGREEMENT
---------, ----
[Names and Addresses of Representatives]
Ladies and Gentlemen:
Ahold Finance U.S.A., Inc., a corporation organized under the laws of
the State of Delaware, the United States of America (the "Company"), proposes,
subject to the terms and conditions stated herein and in the Underwriting
Agreement, dated April 23, 1999 (the "Underwriting Agreement"), between the
Company and Koninklijke Ahold N.V., a public company with limited liability
organized under the laws of The Netherlands, and with its corporate seat in
Zaandam (municipality Zaanstad), The Netherlands (the "Guarantor"), on the one
hand and __________________, on the other hand, to issue and sell to the
Underwriters named in Schedule I hereto (the "Underwriters") the debt securities
of the Company specified in Schedule II hereto (the "Offered Debt Securities").
Payment of principal of, and interest, if any, and premium, if any, on the Debt
Securities will be unconditionally guaranteed by the Guarantor pursuant to the
terms and conditions of the guaranty issued under the Indenture (the
"Guaranty"). The Offered Debt Securites and related Guaranty are hereafter
referred to as the "Securities". Except to the extent explicitly provided
otherwise herein, each of the provisions of the Underwriting Agreement is
incorporated herein by reference in its entirety, and shall be deemed to be a
part of this Terms Agreement to the same extent as if such provisions had been
set forth in full herein; and each of the representations and warranties set
forth therein shall be deemed to have been made at and as of the date of this
Terms Agreement, except that, if this Terms Agreement and the Underwriting
Agreement are dated different dates, each representation and warranty with
respect to the Prospectus in Section 2 of the Underwriting Agreement shall be
deemed to be a representation and warranty as of the date of the Underwriting
Agreement in relation to the Prospectus (as therein defined) and also a
representation and warranty as of the date of this Terms Agreement in relation
to the Prospectus as amended or supplemented relating to the Securities which
are the subject of this Terms Agreement. Each reference to the Representatives
herein and in the provisions of the Underwriting Agreement so incorporated by
reference shall be deemed to refer to you. Unless otherwise defined herein,
terms defined in the Underwriting Agreement are used herein as therein defined.
The Representatives designated to act on behalf of each of the Underwriters of
Securities are set forth in Schedule II hereto.
Subject to the terms and conditions set forth herein, in Schedule II
hereto and in the Underwriting Agreement incorporated herein by reference, the
Company agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company, at
the time and place and at a purchase price to the Underwriters set forth in
Schedule II hereto, the principal amount of Securities set forth opposite the
name of such Underwriter in Schedule I hereto, and the Guarantor agrees,
pursuant to the terms and conditions set forth in the Indenture, to endorse the
Guaranty on such Securities.
If the foregoing is in accordance with your understanding, please sign
and return to us _______ counterparts hereof, and upon acceptance hereof by you,
on behalf of the Underwriters, this Terms Agreement and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement among each of the Underwriters,
the Company and the Guarantor. It is understood that your acceptance of this
letter on behalf of each of the Underwriters is or will be pursuant to the
authority set forth in a form of Agreement among Underwriters, the form of which
shall be supplied to the Company and the Guarantor upon request, but without
warranty on your part (other than as to yourselves) as to the authority of the
signers thereof.
* * *
<PAGE>
Very truly yours,
AHOLD FINANCE U.S.A., INC.
By__________________________
Name:
Title:
KONINKLIJKE AHOLD N.V.
By__________________________
Name:
Title:
Accepted as of the date hereof:
By ___________________________
On behalf of each of the Underwriters
<PAGE>
SCHEDULE I
PRINCIPAL AMOUNT OF SECURITIES TO
UNDERWRITER BE PURCHASED
----------
Total............................................. ==========
<PAGE>
SCHEDULE II
TITLE OF SECURITIES:
[Registered] [ %] [Floating Rate] [Zero Coupon] Guaranteed [Notes]
[Debentures] due
AGGREGATE PRINCIPAL AMOUNT:
$------------
PRICE TO PUBLIC:
_____% of the principal amount of the Securities, plus accrued
interest [, if any,] from _________ to __________ [and accrued
amortization, if any, from __________ to ____________]
PURCHASE PRICE BY UNDERWRITERS:
_____% of the principal amount of the Securities, plus accrued
interest [,if any,] from _________ to __________ [and accrued
amortization, if any, from __________ to ____________]
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
[Federal funds]
RANKING: [Senior] [Subordinated]
INDENTURE:
Indenture, dated as of __________, [, as supplemented by ________,]
between the Company and [if senior debt securities -- The Chase
Manhattan Bank] [if subordinated debt securities - The Bank of New
York], as Trustee
MATURITY:
INTEREST RATE:
[ %] [Zero Coupon] [See Floating Rate Provisions]
INTEREST PAYMENT DATES:
[months and dates]
REDEMPTION PROVISIONS:
The Securities may be redeemed, in whole but not in part, at the
option of the Company at their principal amount, together with accrued
interest thereon to the date of redemption, if as a result of any
change in, or amendment to, the laws or regulations of The Netherlands
which becomes effective after the date of the Indenture, the Guarantor
becomes, or will become obligated to pay any Additional Amounts (as
defined in the Indenture) with respect to any payments made pursuant
to the Guaranty.
[No other provisions for redemption]
[The Securities may be redeemed, otherwise than through the sinking
fund, in whole or in part at the option of the Company, in the amount
of $ _____ or an integral multiple thereof, on or after _________,
_________ at the following redemption prices (expressed in percentages
of principal amount): If [redeemed on or before _________, ___ %, and
if] redeemed during the 12-month period beginning ___________,
Year Redemption
Price
and thereafter at 100% of principal amount, together in each case with
accrued interest to the redemption date]
[on any interest payment date falling on or after ____________,
___________, at the election of the Company, at a redemption price
equal to the principal amount thereof, plus accrued interest to the
date of redemption].
[Other possible redemption provisions, such as mandatory redemption
upon occurrence of certain events]
[Restriction on refunding]
SINKING FUND PROVISIONS:
[No sinking fund provisions]
[The Securities are entitled to the benefit of a sinking fund to
retire $ _______ principal amount of Securities on ______ in each of
the years _____ through ____ at 100% of their principal amount plus
accrued interest] [, together with [cumulative] [non-cumulative]
redemptions at the option of the Company to retire an additional
$ _________ principal amount of Securities in the years ____ through
____ at 100% of their principal amount plus accrued interest.]
[IF SECURITIES ARE EXTENDABLE DEBT SECURITIES, INSERT--
EXTENDABLE PROVISIONS:
Securities are repayable on ______, _____ [insert date and years], at
the option of the holder, at their principal amount with accrued
interest. Initial annual interest rate will be ___%, and thereafter
annual interest rate will be adjusted on ______, and _______ to a rate
not less than ___ % of the effective annual interest rate on U.S.
Treasury obligations with _________-year maturities as of the [insert
date 15 days prior to maturity date] prior to such [insert maturity
date].]
[IF SECURITIES ARE FLOATING RATE DEBT SECURITIES, INSERT--
FLOATING RATE PROVISIONS:
Initial annual interest rate will be __% through ____________ [and
thereafter will be adjusted [monthly] [on each _____, ________, and
___________] [to an annual rate of ______ % above the average rate for
______ -year [month] [securities] [certificates of deposit] issued by
_________ and ___________________ [insert names of banks].] [and the
annual interest rate [thereafter] [from ______________ through
____________] will be the interest yield equivalent of the weekly
average per annum market discount rate for _____-month Treasury bills
plus ___% of Interest Differential (the excess, if any, of (i) then
current weekly average per annum secondary market yield for
______-month certificates of deposit over (ii) then current interest
yield equivalent of the weekly average per annum market discount rate
for ______-month Treasury bills); [from _________ and thereafter the
rate will be the then current interest yield equivalent plus ____ % of
Interest Differential].]
CLOSING DATE:
[Time and date]
CLOSING LOCATION:
NAMES AND ADDRESSES OF REPRESENTATIVES:
ADDRESS FOR NOTICES, ETC.:
[Other Terms]1
1 A description of particular tax, accounting or other unusual features of the
Securities should be set forth, or referenced to an attached and accompanying
description, if necessary to the issuer's understanding of the transaction
contemplated. Such a description might appropriately be in the form in which
such features will be described in the Prospectus for the offering.
<PAGE>
ANNEX B
-------
DESCRIPTION OF COMFORT LETTER
Pursuant to Section 5(a) of the Underwriting Agreement, the
accountants shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect to
the Guarantor and its subsidiaries within the meaning of the Securities Act
of 1933, as amended, (the "Act") and the applicable published rules and
regulations thereunder;
(ii) In their opinion, the financial statements and any supplementary
financial information and schedules (and, if applicable, financial
forecasts and/or pro forma financial information) examined by them and
included or incorporated by reference in the Registration Statement or the
Prospectus comply as to form in all material respects with the applicable
accounting requirements of the Act or the Securities Exchange Act, of 1934,
as amended (the "Exchange Act"), as applicable, and the related published
rules and regulations thereunder; and, if applicable, they have made a
review in accordance with standards established by the American Institute
of Certified Public Accountants of the consolidated interim financial
statements, selected financial data, pro forma financial information,
financial forecast and/or condensed financial statements derived from
audited financial statements of the Guarantor for the periods specified in
such letter, as indicated in their reports thereon, copies of which have
been furnished to the representatives of the Underwriters (the
"Representatives");
(iii) They have made a review in accordance with standards established
by the American Institute of Certified Public Accountants of the unaudited
condensed consolidated statements of income, consolidated balance sheets
and consolidated statements of cash flows included in the Guarantor's
reports on Form 6-K incorporated by reference into the Prospectus and, if
applicable, included in the Prospectus, as indicated in their reports
thereon; and on the basis of specified procedures including inquiries of
officials of the Guarantor who have responsibility for financial and
accounting matters regarding whether the unaudited condensed consolidated
financial statements referred to in paragraph (vi)(A)(i) below comply as to
form in all material respects with the applicable accounting requirements
of the Act and the Exchange Act and the related published rules and
regulations, nothing came to their attention that caused them to believe
that the unaudited condensed consolidated financial statements do not
comply as to form in all material respects with the applicable accounting
requirements of the Act and the Exchange Act and the related published
rules and regulations;
(iv) The unaudited selected financial information with respect to the
consolidated results of operations and financial position of the Guarantor
for the five most recent fiscal years included or incorporated by reference
in Item 8 of the Guarantor's Annual Report on Form 20-F for the most recent
fiscal year and, if applicable, included, in the Prospectus agrees with the
corresponding amounts (after restatement where applicable) in the audited
consolidated financial statements for such five fiscal years which were
included or incorporated by reference in the Guarantor's Annual Reports on
Form 20-F for such fiscal years;
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K and on
the basis of limited procedures specified in such letter nothing came to
their attention as a result of the foregoing procedures that caused them to
believe that this information does not conform in all material respects
with the disclosure requirements of Items 8 and 11 of Form 20-F and of
Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available interim
financial statements of the Guarantor and its subsidiaries, inspection of
the minute books of the Guarantor and its subsidiaries since the date of
the latest audited financial statements incorporated by reference in the
Prospectus and, if applicable, included in the Prospectus, inquiries of
officials of the Guarantor and its subsidiaries responsible for financial
and accounting matters and such other inquiries and procedures as may be
specified in such letter, nothing came to their attention that caused them
to believe that:
(A) (i) the unaudited condensed consolidated statements of
income, consolidated balance sheets and consolidated statements of
cash flows included or incorporated by reference in a report on Form
6-K incorporated by reference in the Prospectus and, if applicable,
included in the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the Exchange
Act and the related published rules and regulations, or (ii) any
material modifications should be made to the unaudited condensed
consolidated statements of income, consolidated balance sheets and
consolidated statements of cash flows or included in a report on Form
6-K incorporated by reference in the Prospectus, for them to be in
conformity with generally accepted accounting principles;
(B) any other unaudited income statement data and balance sheet
items incorporated by reference in the Prospectus do not agree with
the corresponding items in the unaudited consolidated financial
statements from which such data and items were derived, and any such
unaudited data and items were not determined on a basis substantially
consistent with the basis for the corresponding amounts in the audited
consolidated financial statements included or incorporated by
reference in the Guarantor's Annual Report on Form 20-F for the fiscal
year ended _______;
(C) the unaudited financial statements which were not included in
the Prospectus or incorporated by reference therein but from which
were derived the unaudited condensed financial statements referred to
in Clause (A) and any unaudited income statement data and balance
sheet items included in the Prospectus or incorporated by reference
therein and referred to in Clause (B) were not determined on a basis
substantially consistent with the basis for the audited financial
statements included or incorporated by reference in the Guarantor's
Annual Report on Form 20-F for the fiscal year ended December 29,
1996;
(D) any unaudited pro forma consolidated condensed financial
statements incorporated by reference in the Prospectus and, if
applicable, included in the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of the
Act and the published rules and regulations thereunder or the pro
forma adjustments have not been properly applied to the historical
amounts in the compilation of those statements;
(E) as of a specified date not more than five days prior to the
date of such letter, there have been any changes in the consolidated
capital stock (other than issuances of capital stock upon exercise of
options and stock appreciation rights, upon earn-outs of performance
shares and upon conversions of convertible securities, in each case
which were outstanding on the date of the latest balance sheet
incorporated by reference in the Prospectus or, if applicable,
included in the Prospectus) or any increase in the consolidated
long-term debt of the Guarantor and its subsidiaries, or any decreases
in consolidated net current assets or stockholders' equity or other
items specified by the Representatives, or any increases in any items
specified by the Representatives, in each case as compared with
amounts shown in the latest balance sheet incorporated by reference in
the Prospectus or, if applicable, included in the Prospectus, except
in each case for changes, increases or decreases which the Prospectus
discloses have occurred or may occur or which are described in such
letter; and
(F) for the period from the date of the latest financial
statements included or incorporated by reference in the Prospectus to
the specified date referred to in Clause (E) there were any decreases
in consolidated net revenues or operating profit or the total or per
share amounts of consolidated net income or other items specified by
the Representatives, or any increases in any items specified by the
Representatives in each case as compared with the comparable period of
the preceding year and with any other period of corresponding length
specified by the Representatives, except in each case for increases or
decreases which the Prospectus discloses have occurred or may occur or
which are described in such letter; and
(vii) In addition to the examination referred to in their report(s)
incorporated by reference in the Prospectus and the limited procedures,
inspection of minute books, inquiries and other procedures referred to in
paragraphs (iii) and (vi) above, they have carried out certain specified
procedures, not constituting an examination in accordance with generally
accepted auditing standards, with respect to certain amounts, percentages
and financial information specified by the Representatives which are
derived from the general accounting records of the Guarantor and its
subsidiaries, which appear in the Prospectus (excluding documents
incorporated by reference) or in Part II of, or in exhibits and schedules
to, the Registration Statement specified by the Representatives or in
documents incorporated by reference in the Prospectus specified by the
Representatives, and have compared certain of such amounts, percentages and
financial information with the accounting records of the Guarantor and its
subsidiaries and have found them to be in agreement.
<PAGE>
AHOLD FINANCE U.S.A., INC., ISSUER
KONINKLIJKE AHOLD N.V., GUARANTOR
DEBT SECURITIES
TERMS AGREEMENT
April 23, 1999
Chase Securities Inc.
270 Park Avenue, 8th Floor
New York, NY 10017
J.P. Morgan Securities Inc.
60 Wall Street
New York, NY 10260-0060
Ladies and Gentlemen:
Ahold Finance U.S.A., Inc., a corporation organized under the laws of
the State of Delaware, the United States of America (the "Company"), proposes,
subject to the terms and conditions stated herein and in the Underwriting
Agreement, dated April 23, 1999 (the "Underwriting Agreement"), between the
Company and Koninklijke Ahold N.V., a public company with limited liability
organized under the laws of The Netherlands, and with its corporate seat in
Zaandam (municipality Zaanstad), The Netherlands (the "Guarantor"), on the one
hand and the Underwriters named in Schedule I hereto (the "Underwriters"), on
the other hand, to issue and sell to the Underwriters the debt securities of the
Company specified in Schedule II hereto (the "Offered Debt Securities"). Payment
of principal of, and interest, if any, and premium, if any, on the Debt
Securities will be unconditionally guaranteed by the Guarantor pursuant to the
terms and conditions of the guaranty issued under the Indenture (the
"Guaranty"). The Offered Debt Securites and related Guaranty are hereafter
referred to as the "Securities". Except to the extent explicitly provided
otherwise herein, each of the provisions of the Underwriting Agreement is
incorporated herein by reference in its entirety, and shall be deemed to be a
part of this Terms Agreement to the same extent as if such provisions had been
set forth in full herein; and each of the representations and warranties set
forth therein shall be deemed to have been made at and as of the date of this
Terms Agreement, except that, if this Terms Agreement and the Underwriting
Agreement are dated different dates, each representation and warranty with
respect to the Prospectus in Section 2 of the Underwriting Agreement shall be
deemed to be a representation and warranty as of the date of the Underwriting
Agreement in relation to the Prospectus (as therein defined) and also a
representation and warranty as of the date of this Terms Agreement in relation
to the Prospectus as amended or supplemented relating to the Securities which
are the subject of this Terms Agreement. Each reference to the Representatives
herein and in the provisions of the Underwriting Agreement so incorporated by
reference shall be deemed to refer to you. Unless otherwise defined herein,
terms defined in the Underwriting Agreement are used herein as therein defined.
The Representatives designated to act on behalf of each of the Underwriters of
Securities are set forth in Schedule II hereto.
Subject to the terms and conditions set forth herein, in Schedule II
hereto and in the Underwriting Agreement incorporated herein by reference, the
Company agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company, at
the time and place and at a purchase price to the Underwriters set forth in
Schedule II hereto, the principal amount of Securities set forth opposite the
name of such Underwriter in Schedule I hereto, and the Guarantor agrees,
pursuant to the terms and conditions set forth in the Indenture, to endorse the
Guaranty on such Securities.
If the foregoing is in accordance with your understanding, please sign
and return to us ten counterparts hereof, and upon acceptance hereof by you, on
behalf of the Underwriters, this Terms Agreement and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement among each of the Underwriters,
the Company and the Guarantor. It is understood that your acceptance of this
letter on behalf of each of the Underwriters is or will be pursuant to the
authority set forth in a form of Agreement among Underwriters, the form of which
shall be supplied to the Company and the Guarantor upon request, but without
warranty on your part (other than as to yourselves) as to the authority of the
signers thereof.
* * *
<PAGE>
Very truly yours,
AHOLD FINANCE U.S.A., INC.
By /s/ Robert G. Tobin
--------------------------
Name: Robert G. Tobin
Title: Chairman, Board of
Directors
KONINKLIJKE AHOLD N.V.
By /s/ A.M. Meurs
--------------------------
Name: A.M. Meurs
Title: Executive Vice President
and CFO
Accepted as of the date hereof:
By: J.P. MORGAN SECURITIES INC.
By /s/ Robert Nordlinger
--------------------------
Name: Robert Nordlinger
Title: Vice President
By: CHASE SECURITIES INC.
By /s/ Therese Esperdy
--------------------------
Name: Therese Esperdy
Title: MD
On behalf of each of the Underwriters
<PAGE>
SCHEDULE I
6 1/4% GUARANTEED NOTES DUE 2009
PRINCIPAL AMOUNT OF SECURITIES TO
UNDERWRITER BE PURCHASED
Chase Securites Inc. ......................... $ 200,000,000
J.P. Morgan Securities Inc. .................. 200,000,000
ABN AMRO Incorporated......................... 50,000,000
Goldman, Sachs & Co. ......................... 50,000,000
-------------
Total............................... $ 500,000,000
=============
6 7/8% GUARANTEED NOTES DUE 2029
PRINCIPAL AMOUNT OF SECURITIES TO
UNDERWRITER BE PURCHASED
Chase Securites Inc. ......................... $ 200,000,000
J.P. Morgan Securities Inc. .................. 200,000,000
ABN AMRO Incorporated......................... 50,000,000
Goldman, Sachs & Co. ......................... 50,000,000
-------------
Total................................ $ 500,000,000
=============
<PAGE>
SCHEDULE II
TITLE OF SECURITIES:
6 1/4% Guaranteed Notes due 2009
6 7/8% Guaranteed Notes due 2029
AGGREGATE PRINCIPAL AMOUNT:
$ 500,000,000 of 6 1/4% Guaranteed Notes due 2009
$ 500,000,000 of 6 7/8% Guaranteed Notes due 2029
PRICE TO PUBLIC:
99.180% of the principal amount of 6 1/4% Guaranteed Notes due 2009,
plus accrued interest, if any, from April 29, 1999 to the date of
delivery
99.196% of the principal amount of 6 7/8% Guaranteed Notes due 2029,
plus accrued interest, if any, from April 29, 1999 to the date of
delivery
PURCHASE PRICE BY UNDERWRITERS:
98.530% of the principal amount of 6 1/4% Guaranteed Notes due 2009,
plus accrued interest, if any, from April 29, 1999 to the date of
delivery
98.321% of the principal amount of 6 7/8% Guaranteed Notes due 2029,
plus accrued interest, if any, from April 29, 1999 to the date of
delivery
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
Federal funds
RANKING:
Senior
INDENTURE:
Indenture, dated as of April 29, 1999, between the Company and The
Chase Manhattan Bank, as Trustee
MATURITY:
6 1/4% Guaranteed Notes due 2009: May 1, 2009
6 7/8% Guaranteed Notes due 2029: May 1, 2029
INTEREST RATE:
6 1/4% Guaranteed Notes due 2009: 6 1/4%
6 7/8% Guaranteed Notes due 2029: 6 7/8%
INTEREST PAYMENT DATES:
6 1/4% Guaranteed Notes due 2009: May 1 and November 1 6 7/8%
Guaranteed Notes due 2029: May 1 and November 1
REDEMPTION PROVISIONS:
The 6 1/4% Guaranteed Notes due 2009 and the 6 7/8% Guaranteed Notes
due 2029 may be redeemed, in each case as a whole series but not in
part, at the option of the Company at their principal amount, together
with accrued interest thereon to the date of redemption, if as a result
of any change in, or amendment to, the laws or regulations of The
Netherlands, or change in the application or official interpretation of
such laws or regulations, which becomes effective after the date of
issuance of the Securities, the Guarantor becomes, or will become
obligated to pay any Additional Amounts (as defined in the Indenture)
with respect to any payments made pursuant to the Guaranty.
The 6 1/4% Guaranteed Notes due 2009 and the 6 7/8% Guaranteed Notes
due 2029 may be redeemed, in each case as a whole series but not in
part, at any time, at the option of the Company, upon not less than 30
nor more than 60 days' notice as provided in the Notes, at a redemption
price of 100% of the principal amount of the Notes to be redeemed,
together with accrued and unpaid interest to the redemption date, if
any, plus a Make-Whole Premium, calculated as described in the
applicable Notes.
SINKING FUND PROVISIONS:
No sinking fund provisions.
CLOSING DATE:
9:00 am New York time on April 29, 1999
CLOSING LOCATION:
Clearly, Gottlieb, Steen & Hamilton
One Liberty Plaza
New York, NY 10006
NAMES AND ADDRESSES OF REPRESENTATIVES:
Chase Securities Inc.
270 Park Avenue, 8th Floor
New York, NY 10017
J.P. Morgan Securities Inc.
60 Wall Street
New York, NY 10260-0060
ADDRESS FOR NOTICES, ETC.:
Chase Securities Inc.
270 Park Avenue, 8th Floor
New York, NY 10017
J.P. Morgan Securities Inc.
60 Wall Street
New York, NY 10260-0060
OTHER TERMS:
The letter described in Section 5(a) of the Underwriting Agreement is
to be delivered at the time of execution of the Underwriting Agreement.
A second letter will be delivered on the Closing Date, confirming that
the statements set forth in the letter described in such Sections 5(a)
are correct as of the Closing Date.
KONINKLIJKE AHOLD N.V.
AND
THE CHASE MANHATTAN BANK,
TRUSTEE
INDENTURE
Dated as of [ ]
-----------
SENIOR DEBT SECURITIES
<PAGE>
KONINKLIJKE AHOLD N.V.
AND
THE CHASE MANHATTAN BANK,
TRUSTEE
INDENTURE
Dated as of [ ]
-----------
The following table shows the location in this Indenture of provisions
inserted pursuant to sections 310 through 318(a) inclusive of the Trust
Indenture Act of 1939, as amended.
TIA Section Indenture Section
310 (a) (1) 5.7
(a) (2) 5.7
(b) 5.7, 5.8
313 (a) 5.11
(b) 5.11
(c) 5.11
314 (a) 3.8, 3.9(b)
(c) (1) 13.5
(c) (2) 13.5
(c) (3) 13.5
(e) 13.5
315 (a) (2) 5.1, 5.6
317 (a) 4.2
(b) 3.3(a)
318 (a) 13.11
- -----------------
Note: This table shall not, for any purpose, be deemed to be a part of this
Indenture.
<PAGE>
TABLE OF CONTENTS
<TABLE>
Page
----
<S> <C>
ARTICLE ONE DEFINITIONS............................................................................................1
SECTION 1.1 Certain Terms Defined.........................................................................1
ARTICLE TWO SECURITIES.............................................................................................8
SECTION 2.1 Forms Generally...............................................................................8
SECTION 2.2 Form of Face of Security......................................................................9
SECTION 2.3 Form of Reverse of Security..................................................................12
SECTION 2.4 Form of Trustees Certificate of Authentication...............................................17
SECTION 2.5 Amount Unlimited; Issuable in Series.........................................................17
SECTION 2.6 Authentication and Delivery of Securities....................................................20
SECTION 2.7 Execution of Securities......................................................................21
SECTION 2.8 Certificate of Authentication................................................................21
SECTION 2.9 Denomination and Date of Securities; Payments of Interest....................................21
SECTION 2.10 Registration, Transfer and Exchange.........................................................22
SECTION 2.11 Mutilated, Defaced, Destroyed, Lost and Stolen Securities...................................25
SECTION 2.12 Cancellation of Securities Paid, etc........................................................26
SECTION 2.13 Temporary Securities........................................................................26
SECTION 2.14 CUSIP Numbers...............................................................................26
SECTION 2.15 Form of Election to Convert.................................................................27
ARTICLE THREE COVENANTS OF THE ISSUER.............................................................................28
SECTION 3.1 Payment of Principal and Interest............................................................28
SECTION 3.2 Offices for Payments, etc....................................................................29
SECTION 3.3 Paying Agents................................................................................29
SECTION 3.4 Limitation on Liens..........................................................................30
SECTION 3.5 Limitation on Sales and Leasebacks...........................................................32
SECTION 3.6 Notice of Default............................................................................32
SECTION 3.7 Calculation of Original Issue Discount.......................................................33
SECTION 3.8 Reports......................................................................................33
SECTION 3.9 Compliance Certificates......................................................................33
SECTION 3.10 Payment of Additional Amounts...............................................................33
ARTICLE FOUR REMEDIES OF THE TRUSTEE AND SECURITYHOLDERSON EVENT OF DEFAULT.......................................34
SECTION 4.1 Events of Default............................................................................34
SECTION 4.2 Payment of Securities on Default; Suit Therefor..............................................37
SECTION 4.3 Application of Moneys Collected by Trustee...................................................39
SECTION 4.4 Proceedings by Trustee.......................................................................39
SECTION 4.5 Restoration of Rights on Abandonment of Proceedings..........................................40
SECTION 4.6 Proceedings by Securityholders...............................................................40
SECTION 4.7 Remedies Cumulative and Continuing...........................................................40
SECTION 4.8 Control by Securityholders...................................................................41
SECTION 4.9 Waiver of Past Defaults......................................................................41
ARTICLE FIVE CONCERNING THE TRUSTEE...............................................................................42
SECTION 5.1 Reliance on Documents, Opinions, etc.; No Requirement for Expenditure of Own Funds...........42
SECTION 5.2 No Responsibility for Recitals, etc..........................................................43
SECTION 5.3 Trustee and Agents May Hold Securities.......................................................43
SECTION 5.4 Moneys to Be Held in Trust...................................................................43
SECTION 5.5 Compensation and Expenses of Trustee.........................................................44
SECTION 5.6 Right of Trustee to Rely on Officers Certificate, etc........................................44
SECTION 5.7 Eligibility of Trustee.......................................................................44
SECTION 5.8 Resignation or Removal of Trustee; Appointment of Successor Trustee..........................45
SECTION 5.9 Acceptance of Appointment by Successor Trustee...............................................46
SECTION 5.10 Merger, Conversion, Consolidation or Succession to Business of Trustee......................47
SECTION 5.11 Reports by Trustee to Securityholders.......................................................47
ARTICLE SIX CONCERNING THE SECURITYHOLDERS........................................................................47
SECTION 6.1 Action by Securityholders....................................................................47
SECTION 6.2 Proof of Execution by Securityholders........................................................49
SECTION 6.3 Holders to Be Treated as Owners..............................................................49
SECTION 6.4 Securities Owned by Issuer Deemed Not Outstanding............................................49
SECTION 6.5 Right of Revocation of Action Taken..........................................................50
SECTION 6.6 Securityholders Meetings; Purposes...........................................................50
SECTION 6.7 Call of Meetings by Trustee..................................................................50
SECTION 6.8 Call of Meetings by Issuer or Securityholders................................................51
SECTION 6.9 Qualifications for Voting....................................................................51
SECTION 6.10 Quorum; Adjourned Meetings..................................................................51
SECTION 6.11 Regulations.................................................................................52
SECTION 6.12 Voting......................................................................................52
SECTION 6.13 No Delay of Rights by Meeting...............................................................53
SECTION 6.14 Written Consent in Lieu of Meeting..........................................................53
ARTICLE SEVEN SUPPLEMENTAL INDENTURES.............................................................................53
SECTION 7.1 Supplemental Indentures Without Consent of Securityholders...................................53
SECTION 7.2 Supplemental Indentures With Consent of Securityholders......................................55
SECTION 7.3 Effect of Supplemental Indenture.............................................................56
SECTION 7.4 Certain Documents to Be Given to Trustee.....................................................56
SECTION 7.5 Notation on Securities.......................................................................56
ARTICLE EIGHT CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE...................................................57
SECTION 8.1 Issuer May Consolidate, etc., on Certain Terms...............................................57
SECTION 8.2 Successor Entity to Be Substituted...........................................................57
SECTION 8.3 Opinion of Counsel and Officers Certificate to Be Given to Trustee...........................58
ARTICLE NINE SATISFACTION AND DISCHARGE OF INDENTURE;UNCLAIMED MONEYS.............................................58
SECTION 9.1 Satisfaction and Discharge of Indenture......................................................58
SECTION 9.2 Application by Trustee of Funds Deposited for Payment of Securities..........................59
SECTION 9.3 Repayment of Moneys Held by Paying Agent.....................................................59
SECTION 9.4 Return of Moneys Held by Trustee and Paying Agent Unclaimed for Two Years....................59
SECTION 9.5 Issuers Option to Effect Defeasance or Covenant Defeasance...................................59
SECTION 9.6 Defeasance and Discharge.....................................................................59
SECTION 9.7 Covenant Defeasance..........................................................................60
SECTION 9.8 Conditions to Defeasance or Covenant Defeasance..............................................60
SECTION 9.9 Deposited Money and U.S. Government Obligations to Be Held in Trust; Other
Miscellaneous Provisions.....................................................................62
ARTICLE TEN REDEMPTION OF SECURITIES AND SINKING FUNDS............................................................62
SECTION 10.1 Applicability of Article....................................................................62
SECTION 10.2 Notice of Redemption; Selection of Securities...............................................62
SECTION 10.3 Payment of Securities Called for Redemption.................................................64
SECTION 10.4 Conversion Arrangement on Call for Redemption...............................................64
SECTION 10.5 Exclusion of Certain Securities from Eligibility for Selection for Redemption...............65
SECTION 10.6 Mandatory and Optional Sinking Funds........................................................65
SECTION 10.7 Redemption for Tax Reasons..................................................................68
ARTICLE ELEVEN CONVERSION OF SECURITIES...........................................................................69
SECTION 11.1 Conversion of Securities....................................................................69
SECTION 11.2 Issuance of Shares on Conversion............................................................70
SECTION 11.3 No Adjustment for Interest or Dividends.....................................................70
SECTION 11.4 Adjustment of Conversion Price..............................................................71
SECTION 11.5 No Fractional Shares To Be Issued...........................................................74
SECTION 11.6 Preservation of Conversion Rights upon Consolidation, Merger, Sale or Similar Event.........75
SECTION 11.7 Notice to Holders of Securities Prior to Taking Certain Types of Action.....................75
SECTION 11.8 Covenant to Reserve Shares for Issuance on Conversion of Securities.........................76
SECTION 11.9 Compliance with Governmental Requirements...................................................76
SECTION 11.10 Payment of Taxes upon Certificates for Common Shares Issued upon Conversion................76
SECTION 11.11 Trustees Duties with Respect to Conversion Provisions......................................77
ARTICLE TWELVE MISCELLANEOUS PROVISIONS...........................................................................77
SECTION 12.1 Incorporators, Stockholders, Officers, Members of the Executive Board and Members
Supervisory Board of Issuer Exempt from Individual Liability................................77
SECTION 12.2 Provisions of Indenture for the Sole Benefit of Parties and Securityholders.................77
SECTION 12.3 Successors and Assigns of Issuer Bound by Indenture.........................................78
SECTION 12.4 Notices and Demands on Issuer, Trustee and Securityholders..................................78
SECTION 12.5 Officers Certificates and Opinions of Counsel; Statements to Be Contained Therein...........78
SECTION 12.6 Official Acts by Successor Entity...........................................................79
SECTION 12.7 Payments Due on Saturdays, Sundays and Legal Holidays.......................................79
SECTION 12.8 NEW YORK LAW TO GOVERN......................................................................80
SECTION 12.9 Counterparts................................................................................80
SECTION 12.10 Effect of Headings.........................................................................80
SECTION 12.11 Conflict with Trust Indenture Act..........................................................80
SECTION 12.12 Submission to Jurisdiction.................................................................80
SECTION 12.13 Severability...............................................................................80
</TABLE>
<PAGE>
THIS INDENTURE, dated as of [ ] between KONINKLIJKE AHOLD N.V., a
company organized under the laws of The Netherlands with its corporate seat in
Zaandam (municipality Zaanstad), The Netherlands (the "Issuer"), and The Chase
Manhattan Bank, a New York banking corporation (the "Trustee").
W I T N E S S E T H :
WHEREAS, the Issuer has duly authorized the execution and delivery of
this Indenture for the issuance from time to time of its unsecured bonds,
debentures, notes and other evidences of indebtedness to be issued in one or
more series (the "Securities") up to such principal amount or amounts and
denominated in United States dollars or foreign currency or units or composites
of two or more thereof as may from time to time be authorized in accordance with
the terms of this Indenture and to provide, among other things, for the
authentication, delivery and administration thereof, the Issuer has duly
authorized the execution and delivery of this Indenture; and
WHEREAS, all things necessary to make this Indenture, when executed
and delivered by the parties hereto, a valid indenture and agreement according
to its terms, have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities
by the Holders thereof, the Issuer and the Trustee mutually covenant and agree
for the equal and proportionate benefit of the respective Holders from time to
time of the Securities as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.1 Certain Terms Defined. The following terms (except as
herein otherwise expressly provided or unless the context otherwise clearly
requires) for all purposes of this Indenture and of any indenture supplemental
hereto shall have the respective meanings specified in this Section. All other
terms used in this Indenture that are defined in the Trust Indenture Act of
1939, as amended to the date of this Indenture as originally executed, or the
definitions of which in the Securities Act of 1933, as amended to the date of
this Indenture as originally executed, are referred to in the Trust Indenture
Act of 1939 (except as herein otherwise expressly provided or unless the context
otherwise clearly requires), shall have the meanings assigned to such terms in
said Trust Indenture Act and in said Securities Act as in force at the date of
this Indenture. All accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles (whether or not such is indicated herein), and, except as otherwise
herein expressly provided, the term "generally accepted accounting principles"
with respect to any computation required or permitted hereunder shall mean such
accounting principles as are generally accepted in The Netherlands at the date
of such computation. The words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision. The terms defined in this
Article have the meanings assigned to them in this Article and include the
plural as well as the singular.
"Additional Amounts" has the meaning specified in Section 3.10.
"AEX-Stock Exchange" means the Amsterdam Stock Exchange.
"American Depositary Receipts" or "ADRs" shall mean American
Depositary Receipts issued by the Common Shares Depositary evidencing American
Depositary Shares.
"American Depositary Shares" or "ADSs" shall mean the securities
representing the interest in the Common Shares deposited with the Common Shares
Depositary.
"Attributable Debt" means, as to any particular lease under which any
person is at the time liable, at any date as of which the amount thereof is to
be determined, the total net amount of rent required to be paid by such person
under such lease during the remaining term thereof, discounted from the
respective due dates thereof to such date at the rate of interest per annum
implicit in the terms of such lease (as determined by any two of the following:
the president, any executive vice president or the secretary of such person)
compounded semi-annually. The net amount of rent required to be paid under any
such lease for any such period shall be the amount of the rent payable by the
lessee with respect to such period, after excluding amounts required to be paid
on account of maintenance and repairs, insurance, taxes, assessments, water
rates and similar charges. In the case of any lease which is terminable by the
lessee upon the payment of a penalty, such net amount shall also include the
amount of such penalty, but no rent shall be considered as required to be paid
under such lease subsequent to the first date upon which it may be so
terminated.
"Average Closing Price" means the arithmetic average of the official
closing price per Common Share quoted on the AEX-Stock Exchange for each Stock
Exchange Trading Day during the Relevant Period.
"Business Day" means, except as otherwise provided pursuant to Section
2.5 for Securities of any series, any day that is not a Saturday or Sunday and
that is not a day on which banking institutions in The Netherlands or in the
Borough of Manhattan, City and State of New York are generally authorized or
obligated by law to close in the relevant place of payment.
"Cash Dividend" has the meaning specified in Section 11.4.
"Closing Price" on any day means the official closing price per Common
Share quoted on the AEX-Stock Exchange for such day.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or if at any time
after the execution and delivery of this Indenture such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act of 1939, then the body performing such duties on such date.
"Common Shares" means the common shares, par value NLG 0.50 per common
share, of the Issuer, as designated on the date hereof, and all shares resulting
from any reclassification of such common shares.
"Common Shares Depositary" shall mean The Bank of New York, a New York
banking corporation, as depositary, or any successor as such depositary pursuant
to a Deposit Agreement dated January 20, 1998 among the Issuer, the Bank of New
York and all owners and beneficial owners from time to time of ADRs issued
thereunder.
"Consolidated Net Tangible Assets" means the aggregate amount of
assets of the Issuer and its Subsidiaries (less applicable reserves and other
properly deductible items) after deducting therefrom (a) all current liabilities
(excluding any thereof which are by their terms extendible or renewable at the
option of the obligor thereon to a time more than 12 months after the time as of
which the amount thereof is being computed and excluding current maturities of
long-term indebtedness and capital lease obligations) and (b) all goodwill, all
as shown in the most recent consolidated balance sheet of the Issuer and its
Subsidiaries computed in accordance with generally accepted accounting
principles.
"Conversion Agent" has the meaning specified in Section 3.2.
"Conversion Price" means the price at which the Securities shall be
convertible into Shares, such price to be established pursuant to Section 2.5
and to be subject to adjustment as provided in Section 11.4.
"Conversion Shares" has the meaning specified in Section 11.2.
"Corporate Trust Office" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered.
"covenant defeasance" and "defeasance" have the meanings assigned to
such terms, respectively, by Sections 9.7 and 9.6.
"Debt" has the meaning set forth in Section 3.4.
"Depositary" means, with respect to the Securities of any series or
tranche issuable or issued in the form of one or more Global Securities, the
person designated as Depositary for such Global Securities by the Issuer
pursuant to Section 2.6 until a successor Depositary shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Depositary" shall mean or include each person who is then a Depositary for such
Global Securities, and if at any time there is more than one person designated
as Depositary for Global Securities of a particular series or tranche,
"Depositary", as used with respect to the Securities of such series or tranche,
means the Depositary with respect to the particular Global Security or
Securities.
"Dollar", "U.S.$" means the coin or currency of the United States of
America as at the time of payment is legal tender for the payment of public and
private debts.
"Effective Date" means (i) any day on which Common Shares shall trade
on the AEX-Stock Exchange excluding the relevant right or entitlement relating
to an event giving rise to an adjustment of the Conversion Price or (ii) if the
foregoing provision is not applicable, the date on which the relevant event is
announced by the Issuer or, if no such announcement is made, the date the
relevant issue is made.
"euro" means the currency introduced on January 1, 1999 at the start
of the third stage of economic and monetary union pursuant to the treaty
establishing the European Community.
"Event of Default" means any event or condition specified as such in
Section 4.1.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Executive Board" means the Executive Board ("Raad van Bestuur") of
the Issuer.
"Extraordinary Dividend" means the amount by which the Total Current
Dividend exceeds the Cash Dividends paid or declared on the Common Shares for
the fiscal year of the Issuer immediately preceding the Effective Date.
"Funded Debt" means all indebtedness for money borrowed having a
maturity of more than 12 months from the date as of which the amount thereof is
to be determined or having a maturity of less than 12 months but by its terms
being renewable or extendable beyond 12 months from such date at the option of
the borrower.
"Global Security" means a Security evidencing all or a part of a
series or tranche of Securities, issued to the Depositary for such series or
tranche, as the case may be, in accordance with Section 2.6 and bearing the
legend prescribed in Section 2.6.
"Holder", "Holder of Securities", "Securityholder" or other similar
terms means a person in whose name a Security is registered in the Register.
"Indenture" means this instrument as originally executed and delivered
or, if amended or supplemented as herein provided, as so amended and/or
supplemented from time to time, and shall include (i) for all purposes of this
instrument and any supplemental indenture, the provisions of the Trust Indenture
Act of 1939 that are deemed to be a part of and govern this instrument and any
such supplemental indenture, respectively, and (ii) the forms and terms of
particular series of Securities established as contemplated hereunder.
"interest" means, when used with respect to a non-interest bearing
Security, interest payable after the principal thereof has become due and
payable whether at maturity, by declaration of acceleration, by call for
redemption, pursuant to a sinking fund or otherwise.
"Issuer" means Koninklijke Ahold N.V., a company organized under the
laws of The Netherlands with its corporate seat in Zaandam (municipality
Zaanstad), The Netherlands, until any successor company shall have become such
pursuant to Article Eight and thereafter "Issuer" shall mean such successor
except as otherwise provided in Section 8.2.
"mandatory sinking fund payment" has the meaning set forth in Section
10.6.
"Market Exchange Rate" has the meaning set forth in Section 6.1.
"Market Price" on any day means the arithmetic mean of the Closing
Prices quoted for the Common Shares on the AEX-Stock Exchange for the ten
consecutive Stock Exchange Trading Days ending on the earlier of such day and
the Stock Exchange Trading Day immediately preceding the Effective Date.
"Mortgage" or "Mortgages" has the meaning set forth in Section 3.4.
"New York Location" means the location in the Borough of Manhattan,
The City of New York, at which at any particular time the Trustee receives and
redelivers Securities.
"Officers' Certificate" when used with respect to the Issuer, means a
certificate signed by any two of the following: the president, any executive
vice president or the secretary of the Issuer and delivered to the Trustee. Each
such certificate shall include the statements required by the Trust Indenture
Act of 1939 or as provided for in Section 12.5, if and to the extent required
hereby.
"Opinion of Counsel" means an opinion in writing signed by legal
counsel who may be an employee of or counsel to the Issuer. Each such opinion
shall include the statements required by the Trust Indenture Act of 1939 or as
provided for in Section 12.5, if and to the extent required hereby.
"optional sinking fund payment" has the meaning set forth in Section
10.6.
"original issue date" of any Security (or portion thereof) means the
earlier of (a) the date of such Security or (b) the date of any Security (or
portion thereof) for which such Security was issued (directly or indirectly) on
registration of transfer, exchange or substitution.
"Original Issue Discount Security" means any Security that provides
for an amount less than the principal amount thereof to be due and payable upon
redemption or a declaration of acceleration of the maturity thereof pursuant to
Section 4.1.
"Outstanding" (except as otherwise required by the Trust Indenture Act
of 1939), when used with reference to Securities, shall, subject to the
provisions of Section 6.4, mean, as of any particular time, all Securities
theretofore authenticated and delivered by the Trustee under this Indenture,
except
(a) Securities theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(b) Securities, or portions thereof, which have become due and for the
payment or redemption of which moneys in the necessary amount shall have
been theretofore deposited in trust with the Trustee or with any paying
agent (other than the Issuer) or shall have been set aside, segregated and
held in trust by the Issuer for the Holders of such Securities (if the
Issuer shall act as its own paying agent); and
(c) Securities in lieu of or in substitution for which other
Securities shall have been authenticated and delivered pursuant to the
terms of Section 2.11, or which shall have been paid pursuant to Section
2.11.
In determining whether the Holders of the requisite principal amount
of Outstanding Securities of any or all series have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, the principal
amount that shall be deemed to be Outstanding for such purposes in the case of
an Original Issue Discount Security or (unless as otherwise established pursuant
to Section 2.5) in the case of a Security which provides that an amount other
than the face amount thereof will or may be payable upon the maturity thereof or
a declaration of acceleration of the maturity thereof shall be the amount of the
principal thereof that would be due and payable as of the date of such
determination upon a declaration of acceleration of the maturity thereof
pursuant to Section 4.1.
"Overdue Rate" means, unless otherwise specified in the Securities of
any series, the same rate as the rate of interest specified in the Securities of
such series or, in the case of a series of Original Issue Discount Securities,
the Yield to Maturity of such series of Securities.
"person" means any individual, corporation, partnership, joint
venture, association, joint stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"principal" whenever used with reference to the Securities or any
Security or any portion thereof, shall be deemed to include "and premium, if
any".
"record date" has the meaning set forth in Section 2.9.
"Register" has the meaning set forth in Section 2.10.
"Relevant Period" means the period beginning on the first Stock
Exchange Trading day after the Effective Date for the first Cash Dividend
aggregated in the Total Current Dividend, and ending on the Stock Exchange
Trading Day immediately preceding the Effective Date for the Cash Dividend which
caused the adjustment to the Conversion Price; provided, however, that if there
were no Cash Dividends in the 365 consecutive day period prior to this Effective
Date, the Relevant Period will be the entire period of the 365 consecutive days.
"Resolution" means a resolution of the Executive Board, including
without limitation any such resolution by which or pursuant to which any series
of Securities is authorized and established pursuant to Section 2.5.
"Responsible Officer", when used with respect to the Trustee, means
the chairman of the board of directors, any vice chairman of the board of
directors, the chairman of the trust committee, the chairman of the executive
committee, any vice chairman of the executive committee, the president, any vice
president, the cashier, the secretary, the treasurer, any senior trust officer,
trust officer, any assistant trust officer, any assistant vice president, any
assistant cashier, any assistant secretary, any assistant treasurer, or any
other officer or assistant officer of the Trustee customarily performing
functions similar to those performed by the persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred
because of his knowledge of and familiarity with the particular subject.
"sale and leaseback transaction" has the meaning set forth in Section
3.5.
"Securities Act" means the Securities Act of 1933, as amended.
"Security" or "Securities" (except as otherwise required by the Trust
Indenture Act of 1939) has the meaning stated in the first recital of this
Indenture or means any Securities that have been issued, authenticated and
delivered under this Indenture, as the context may require.
"Security registrar" has the meaning set forth in Section 2.10.
"series", as used in the definitions of "Indenture" and "Overdue Rate"
in this Section 1.1 and as used in Section 2.5 (except as used in the first
sentence of the second paragraph thereof and in the first and last sentences of
the third paragraph thereof), 2.9, 2.10, 2.11, 2.13, 3.1, 3.2, 3.3 (except as
used in the fourth paragraph thereof), 10.1, 10.2, 10.3 and 10.5, means
"tranche" for any Securities of a series of Securities consisting of more than
one tranche.
"Shares" means Common Shares and/or American Depositary Shares.
"sinking fund payment date" has the meaning set forth in Section 10.6.
"Specified Currency" has the meaning set forth in Section 6.1.
"Stock Exchange Trading Day" means a day that AEX-Stock Exchange is
open for trading.
"Subsidiary" means any corporation or other entity of which at least a
majority of the outstanding stock or other ownership interests having by the
terms thereof ordinary voting power for the election of directors, managers or
trustees of such corporation or other entity or other persons performing similar
functions (irrespective of whether or not at the time stock or other ownership
interests of any other class or classes of such corporation or other entity
shall have or might have voting power by reason of the happening of any
contingency) is at the time directly or indirectly owned, or controlled by the
Issuer, or by one or more other Subsidiaries, or by the Issuer and one or more
other Subsidiaries.
"Tax Redemption Date" has the meaning set forth in Section 10.7.
"Total Current Dividend" has the meaning specified in Section 11.4.
"tranche" means all Securities of the same series having the same
original issue date, interest rate, maturity, repayment and redemption
provisions.
"Trust Indenture Act of 1939" (except as otherwise provided in
Sections 7.1 and 7.2) means the Trust Indenture Act of 1939, as amended, as in
force at the date as of which this Indenture was originally executed; provided,
however, that in the event the Trust Indenture Act of 1939 is amended after such
date, "Trust Indenture Act of 1939" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
"Trustee" means the person identified as "Trustee" in the first
paragraph hereof and, subject to the provisions of Article Five, shall also
include any successor trustee. If pursuant to the provisions of this Indenture
there shall be at any time more than one Trustee hereunder, the term "Trustee"
as used with respect to Securities of any series shall mean the Trustee or
Trustees with respect to the Securities of that series.
"U.S. Government Obligations" has the meaning set forth in Section
9.8.
"vice president", when used with respect to the Trustee, means any
vice president, whether or not designated by a number or a word or words added
before or after the title of "vice president".
"Yield to Maturity" means, in the case of any Original Issue Discount
Security, the yield to maturity specified in such Security or in a Resolution
relating thereto.
ARTICLE TWO
SECURITIES
SECTION 2.1 Forms Generally. The Securities of each series shall be
substantially in the form set forth in this Article, or in such other form as
shall be established by or pursuant to a Resolution or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture and may have imprinted or otherwise reproduced thereon such letters,
numbers or other marks of identification and such legends or endorsements as may
be required to comply with any applicable law, rule or regulation or with the
rules of any securities exchange or as may, consistent with the provisions of
this Indenture, be determined by the officers executing such Securities, as
evidenced by their execution of the Securities. In the case of Securities of any
series that are denominated in a coin or currency (including composite
currencies or currency units) that is, or may be, replaced by the euro, the form
of such Securities may contain such insertions, omissions, substitutions and
other variations as may be deemed appropriate or required.
The definitive Securities shall be printed, lithographed or engraved
on steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
In the case of Securities of any series that are convertible at the
option of Holders into Shares, the form of election to convert shall be
substantially in the form set forth in Section 2.15, or in such other form as
shall be established by or pursuant to a Resolution or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture and may be imprinted or otherwise reproduced on the Securities of such
series.
SECTION 2.2 Form of Face of Security. [If the Security is an Original
Issue Discount Security, insert any legend required by the Internal Revenue Code
of 1986, as amended and the regulations thereunder.]
No.___________________
U.S.$_________________ CUSIP No.__________________
KONINKLIJKE AHOLD N.V.
[Insert Designation of Series]
Koninklijke Ahold N.V., a company duly organized and existing under
the laws of The Netherlands with its corporate seat in Zaandam (municipality
Zaanstad), The Netherlands (herein called the "Issuer"), for value received,
hereby promises to pay to ________, or registered assigns, the principal sum of
____________________ on _______________ [if the Security is to bear interest
prior to maturity, insert--, and to pay interest thereon [[insert as
applicable--annually or semi-annually or quarterly]] on [[insert appropriate
interest payment dates]] (the "Interest Payment Dates") in each year, commencing
_____________, [insert--at the rate of __% per annum or, if applicable, insert
the method for determining the adjustable, floating or other form of variable
interest rate borne by the Securities] until the principal hereof is paid or
made available for payment [if applicable, insert --, and (to the extent that
the payment of such interest shall be legally enforceable) at the rate of __%
per annum on any overdue principal and premium, if any, and on any overdue
installment of interest]. Notwithstanding the foregoing, this Security shall
bear interest from the most recent Interest Payment Date to which interest in
respect hereof has been paid or duly provided for, unless (i) the date hereof is
such an Interest Payment Date, in which case from the date hereof, or (ii) no
interest has been paid on this Security, in which case from ____________;
provided, however, that if the Issuer shall default in the payment of interest
due on the date hereof, then this Security shall bear interest from the next
preceding Interest Payment Date to which interest has been paid or, if no
interest has been paid on this Security from __________. [If the Issuer has the
right to deliver Common Shares in payment, in whole or in part, of the principal
and accrued interest due at maturity, insert applicable provisions.]
Notwithstanding the foregoing, if the date hereof is after the _________ [insert
if applicable - or __________] (whether or not a Business Day) (the "Record
Date"), [insert if applicable - as the case may be,] next preceding an Interest
Payment Date and before such Interest Payment Date, this Security shall bear
interest from such Interest Payment Date; provided, however, that if the Issuer
shall default in the payment of interest due on such Interest Payment Date, then
this Security shall bear interest from the next preceding Interest Payment Date
to which interest has been paid or, if no interest has been paid on this
Security, from _________. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, subject to certain exceptions
provided in the Indenture referred to on the reverse hereof, be paid to the
person in whose name this Security is registered at the close of business on the
Record Date next preceding such Interest Payment Date. Unless otherwise
specified for the Security pursuant to Section 2.5, insert - [Interest on this
Security will be computed and paid on the basis of a 360-day year of twelve
30-day months.]
[If the Security is not to bear interest prior to maturity,
insert--The principal of this Security shall not bear interest except in the
case of a default in payment of principal upon acceleration, upon redemption or
at maturity and in such case the overdue principal of this Security shall bear
interest at the rate of __% per annum (to the extent that the payment of such
interest shall be legally enforceable), which shall accrue from the date of such
default in payment to the date payment of such principal has been made or duly
provided for. Interest on any overdue principal shall be payable on demand. Any
such interest on any overdue principal that is not so paid on demand shall bear
interest at the rate of __% per annum (to the extent that the payment of such
interest shall be legally enforceable), which shall accrue from the date of such
demand for payment to the date payment of such interest has been made or duly
provided for, and such interest shall also be payable on demand.]
All payments in respect of the Securities, including, without
limitation, payments of principal [if the Security is to bear interest prior to
maturity, insert -- interest, if any, and] premium, if any, shall be made by the
Issuer without withholding or deduction for or on account of any present or
future taxes, duties, levies, or other governmental charges of whatever nature
in effect on the date of the Indenture or imposed or established in the future
by or on behalf of The Netherlands or any authority in The Netherlands
("Taxes"). In the event any such Taxes are so imposed or established, the Issuer
shall pay such additional amounts ("Additional Amounts") as may be necessary in
order that the net amounts receivable by each Holder after any payment,
withholding or deduction in respect of such Taxes shall equal the respective
amounts of principal [if the Security, if any, is to bear interest prior to
maturity, insert --, interest and] premium, if any, which would have been
receivable in respect of the Securities in the absence of such payment,
withholding or deduction; except that no such Additional Amounts will be payable
with respect to any payment on any Security to, or to a third party on behalf
of, a Holder for or on account of any such Taxes whatever that have been imposed
by reason of (i) the Holder being a resident or deemed a resident of The
Netherlands or having some connection with The Netherlands (including, but not
limited to, the situation where a Holder carries on business in The Netherlands
through a permanent establishment or permanent representative in The
Netherlands) other than the mere holding of such Security or the receipt of
principal, interest, if any, or premium, if any, in respect thereof; (ii) the
presentation by the Holder of a Security for payment on a date more than thirty
(30) days after the date on which such payment became due and payable or the
date on which payment thereof is duly provided for, whichever occurs later;
(iii) any estate, inheritance, gift, sales, transfer or personal property tax or
any similar tax, assessment or governmental charge; (iv) any tax, assessment or
other governmental charge which is payable otherwise than by withholding from
payments on or in respect of any Security; or (v) any combination of items (i),
(ii), (iii) or (iv). Furthermore, no Additional Amounts shall be paid with
respect to any payment on this Security to a Holder that is a fiduciary or
partnership or other than the sole beneficial owner of such payment to the
extent that a beneficiary or settlor with respect to such fiduciary or a member
of such partnership or beneficial owner would not have been entitled to receive
the Additional Amounts had such beneficiary, settlor, member or beneficial owner
been the Holder.
Whenever in this Security or in the Indenture there is a reference, in
any context, to the payment of the principal of [if the Security is to bear
interest prior to maturity, insert -- or interest on], or in respect of, any
Security, such payment shall be deemed to include the payment of Additional
Amounts to the extent that, in such context, Additional Amounts are, were or
would be payable in respect of such payment pursuant to the provisions hereof or
thereof and express mention of the payment of Additional Amounts (if applicable)
in any provision hereof shall not be construed as excluding Additional Amounts
in those provisions hereof where such express mention is not made.
Payment of the principal of and [if applicable, insert--any such]
interest on this Security will be made at the office or agency of the Issuer
maintained for that purpose in [insert the places of payment], in [insert the
currency or currencies of payment]; provided, however, that at the option of the
Issuer payment of interest may be made by check mailed to the address of the
person entitled thereto as such address shall appear in the Security register.
[If the Security is an extendible security, insert--The Securities of
this series are subject to repayment on [insert provisions with respect to
repayment date or dates] at the option of the Holders thereof exercisable on or
before the _________________, but not prior to the _______________ preceding
such ____________, at a repayment price equal to the principal amount thereof to
be repaid, together with interest payable thereon to the repayment date, as
described on the reverse side hereof.]
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by the manual signature of one of
its authorized signatories, this Security shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, this instrument has been duly executed in the name
of the Issuer.
KONINKLIJKE AHOLD N.V.
By___________________________
Attest:
___________________________
SECTION 2.3 Form of Reverse of Security.
KONINKLIJKE AHOLD N.V.
This Security is one of a duly authorized issue of securities of the
Issuer (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of [ ] (herein called the "Indenture"),
between the Issuer and The Chase Manhattan Bank, a New York banking corporation,
as Trustee (herein called the "Trustee"), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, obligations, duties and immunities thereunder of
the Issuer, the Trustee and the Holders of the Securities and of the terms upon
which the Securities are, and are to be, authenticated and delivered. This
Security is one of the series designated on the face hereof [if applicable,
insert--limited in aggregate principal amount to _________]. The separate series
of Securities may be issued in various aggregate principal amounts, may mature
at different times, may bear interest, if any, at different rates, may be
subject to different redemption provisions (if any), may be subject to different
sinking or purchase funds (if any), may have different conversion provisions (if
any), may be subject to different repayment provisions (if any), may be subject
to different covenants and Events of Default and may otherwise vary as in the
Indenture provided. The Indenture further provides that the Securities of a
single series may be issued at various times, with different maturity dates, may
bear interest, if any, at different rates, may be subject to different
redemption provisions (if any), may be subject to different sinking or purchase
funds (if any) and may be subject to different repayment provisions (if any).
If at any time subsequent to the issuance of the Securities of this
series as a result of any change in, or amendment to, the laws or regulations of
The Netherlands or of any political subdivision thereof or any authority therein
or thereof having power to tax or as a result of any change in the application
or official interpretation of such laws or regulations, the Issuer becomes, or
will become, obligated to pay any Additional Amounts and such obligations cannot
be avoided by the Issuer taking reasonable measures available to it, then the
Securities of this series will be redeemable as a whole (but not in part), at
the option of the Issuer, at any time upon not less than thirty (30) nor more
than sixty (60) days' notice given to the Holders at their principal amount [if
the Security is to bear interest prior to maturity, insert--together with
accrued interest thereon, if any,] [if the Security is an Original Issue
Discount Security, insert appropriate provision.] (and any Additional Amounts
payable with respect thereto) to the date fixed for redemption (the "Tax
Redemption Date"). In order to effect a redemption of Securities of this series
as described in this paragraph, the Issuer shall deliver to the Trustee at least
forty-five (45) days prior to the Tax Redemption Date: (i) a written notice
stating that the Securities of this series are to be redeemed as a whole and
(ii) an opinion of independent legal counsel of recognized standing to the
effect that the Issuer has or will become obligated to pay Additional Amounts as
a result of any such change or amendment. No notice of redemption may be given
earlier than ninety (90) days prior to the earliest date on which the Issuer
would be obligated to pay such Additional Amounts were a payment in respect of
the Securities of this series then due. The notice shall additionally specify
the Tax Redemption Date and all other information necessary to the publication
and mailing by the Trustee of notices of such redemption. The Trustee shall be
entitled to rely conclusively upon the information so furnished by the Issuer in
such notice and shall be under no duty to check the accuracy or completeness
thereof. Such notice shall be irrevocable and upon its delivery the Issuer shall
be obligated to make the payment or payments referred to therein to the Trustee.
[If applicable, insert--The Securities of this series are subject to
redemption upon not less than 30 nor more than 60 days' notice by mail, [[if
applicable, insert --(1) on ______ in any year commencing with the year ______
and ending with the year ____ through operation of the sinking fund for this
series (as more fully described in the next succeeding paragraph) at [[insert
either--a redemption price equal to 100% of the principal amount of the
Securities to be redeemed or the redemption prices for redemption through
operation of the sinking fund (expressed as percentages of the principal amount)
set forth in the table below,]], and (2)]] at any time [[if applicable,
insert--on or after ________]], as a whole or in part, at the election of the
Issuer, at the [[insert either--following redemption prices or redemption prices
for redemption otherwise than through operation of the sinking fund]] (expressed
as percentages of the principal amount): if redeemed [[if applicable, insert--on
or before ________, __%, and if redeemed]] during the 12-month period beginning
________ of the years indicated,
<TABLE>
<S> <C> <C>
Redemption Price For Redemption [[if [[If applicable, insert -- Price For
applicable, insert -- Redemption Otherwise Than
Through Operation of the Sinking Through Operation of the Sinking
Year Fund]] Fund]]
</TABLE>
and thereafter at a redemption price equal to __% of the principal amount
thereof, together in the case of any such redemption (whether through operation
of the sinking fund or otherwise) with accrued interest to the date fixed for
redemption, but interest installments maturing on or prior to such redemption
date will be payable to the Holders of such Securities of record at the close of
business on the relevant Record Dates referred to on the face hereof, all as
provided in the Indenture.]
[If applicable, insert--The sinking fund for this series provides for
the redemption on ________ in each year beginning with the year ____ and ending
with the year ____ of [[not less than]] U.S.$________ [[("mandatory sinking fund
payments") and not more than U.S.$________]] aggregate principal amount of
Securities of this series.] [If applicable, insert--Securities of this series
acquired or redeemed by the Issuer otherwise than through [[mandatory]] sinking
fund payments [[if applicable, insert--and Securities of this series surrendered
to the Issuer for conversion]] may be credited against subsequent [[mandatory]]
sinking fund payments otherwise required to be made.]
[If applicable, insert--Notwithstanding the foregoing, the Issuer may
not, prior to ________, redeem any Securities of this series as contemplated by
[[Clause (2) of]] the [[second]] preceding paragraph as a part of, or in
anticipation of, any refunding operation by the application, directly or
indirectly, of moneys borrowed having an interest cost to the Issuer (calculated
in accordance with generally accepted financial practice) of less than __% per
annum.]
[If applicable, insert--Partial redemptions must be in an amount not
less than [U.S.$]______________ principal amount of Securities.]
[If applicable, insert--In the event of redemption of this Security in
part only, a new Security or Securities of this series for the unredeemed
portion hereof having the same interest rate and maturity as this Security will
be issued in the name of the Holder hereof upon the cancellation hereof.]
[If the Holders have the right to cause the Issuer to redeem, purchase
or repay in certain circumstances the Security prior to maturity, insert
applicable provisions.]
[If the Security is convertible at the option of the Holder, insert--
Subject to the provisions of the Indenture, the Holder hereof has the right, at
his option at any time until the close of business of the third Business Day (as
hereinafter defined) preceding the maturity date hereof (except that, in case
this Security shall be called for redemption before maturity, such right shall
terminate in respect of this Security at the close of business on the third
Business Day preceding the date fixed for redemption of this Security unless the
Issuer shall default in payment due upon such redemption), to convert this
Security (or any portion hereof which is [[insert minimum denomination]] or an
integral multiple thereof) into fully paid and nonassessable Common Shares of
the Issuer, or American Depositary Shares evidencing such Common Shares ("ADSs"
and, together with such Common Shares, "Shares"), at the initial Conversion
Price of [[U.S.$]]_________ per Common Share, subject to such adjustment, if
any, of the Conversion Price and the securities or other property issuable upon
conversion as may be required by the provisions of the Indenture, but only upon
surrender of this Security to the Trustee or to the Conversion Agent for
surrender to the Issuer in accordance with the instructions on file with the
Conversion Agent, accompanied by a written notice of election to convert, which
shall be substantially in the Form of Election to Convert contained in the
Indenture, and (if required by the Issuer) by an instrument or instruments of
transfer, in form satisfactory to the Issuer and the Conversion Agent, duly
executed by the Holder or by his attorney duly authorized in writing.]
[If the Security is subject to mandatory conversion or conversion at
the option of the Issuer, insert applicable provisions.]
[If the Security is convertible into Shares, insert--No payment or
adjustment is to be made on conversion of this Security for interest accrued
hereon or for dividends on Common Shares issued on conversion or on Common
Shares underlying ADSs issued on conversion; provided, however, that if this
Security is surrendered for conversion after the Record Date for a payment of
interest and on or before the Interest Payment Date, then, notwithstanding such
conversion, the interest falling due to such Interest Payment Date will be paid
to the person in whose name this Security is registered at the close of business
on such Record Date and any Security surrendered for conversion during the
period from the close of business on any Record Date to the opening of business
on the corresponding Interest Payment Date must be accompanied by payment of an
amount equal to the interest payable on such Interest Payment Date. No
fractional Shares shall be issuable upon any conversion, but in lieu thereof the
Issuer shall make an adjustment therefor in cash as provided in the Indenture.]
[If the Security is not an Original Issue Discount Security,
insert--If an Event of Default with respect to Securities of this series shall
occur and be continuing, then the Trustee or the Holders of not less than 25% in
aggregate principal amount (calculated as provided in the Indenture) of the
Securities of this series then Outstanding may declare the principal of the
Securities of this series and accrued interest thereon, if any, to be due and
payable in the manner and with the effect provided in the Indenture.] [If the
Security is an Original Issue Discount Security, insert--If an Event of Default
with respect to Securities of this series shall occur and be continuing, then
the Trustee or the Holders of not less than 25% in aggregate principal amount
(calculated as provided in the Indenture) of the Securities of this series then
Outstanding may declare an amount of principal of the Securities of this series
due and payable in the manner and with the effect provided in the Indenture.
Such amount shall be equal to [[insert formula for determining the amount]].]
[If the Security is an extendible security, insert --The Securities of
this series are subject to repayment in whole, or in part, on [insert month, day
and years], in increments of _______ or multiples of _______ in excess of
______, provided that the portion of the principal amount of any Security of
this series not being repaid shall be at least _____, at the option of the
Holder thereof at a repayment price equal to the principal amount thereof to be
repaid, together with interest payable thereon to the repayment date. For this
Security to be repaid at the option of the Holder, the Trustee must receive at
the Corporate Trust Office or the New York Location, on or before the [insert
month and day] or, if such [insert month and day] is not a day other than a day
on which banking institutions in The Netherlands or in the Borough of Manhattan,
the City and State of New York are authorized or required by law or regulation
to close (a "Business Day"), the next succeeding Business Day, but not earlier
than the [insert month and day] prior to the [insert month and day] on which the
repayment price will be paid (i) this Security, with the form entitled "Option
to Elect Repayment" below duly completed, or (ii) a facsimile transmission or
letter from a member of a national securities exchange or the National
Association of Securities Dealers, Inc. or a commercial bank or trust company in
the United States of America setting forth the name of the Holder of this
Security, the principal amount of the Security, the amount of such Security to
be repaid, a statement that the option to elect repayment is being made thereby
and a guarantee that the Security to be repaid with the form entitled "Option to
Elect Repayment" on the reverse thereof duly completed will be received by the
Issuer no later than five Business Days after the date of such facsimile
transmission or letter, and such Security and form duly completed are received
by the Issuer by such fifth Business Day. Either form of notice duly received on
or before the [insert month and day] preceding any such [insert month and day]
shall be irrevocable. All questions as to the validity, eligibility (including
time of receipt) and acceptance of any Securities of this series for repayment
will be determined by the Issuer, whose determination shall be final and
binding.]
The Indenture permits, with certain exceptions as therein provided,
the amendment or supplementing thereof and the modification of the rights and
obligations of the Issuer and the rights of the Holders of the Securities of
each series to be affected under the Indenture at any time by the Issuer and the
Trustee with the consent of the Holders of not less than a majority in aggregate
principal amount (calculated as provided in the Indenture) of the Securities at
the time Outstanding of all series to be affected (all such series voting as a
single class). The Indenture also contains provisions permitting the Holders of
not less than a majority in aggregate principal amount (calculated as provided
in the Indenture) of the Securities of any series at the time Outstanding, on
behalf of the Holders of all Securities of such series, to waive certain past
defaults or Events of Default under the Indenture and the consequences of any
such defaults or Events of Default. Any such consent or waiver (unless revoked
as provided in the Indenture) shall be conclusive and binding upon any Holder
and upon all future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest, if any, on
this Security at the times, place and rate, if any, and in the coin or currency,
herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
register, upon due presentment of this Security for registration of transfer at
the office or agency of the Issuer in any place where the principal of and
interest, if any, on this Security are payable, duly endorsed by, or accompanied
by a written instrument of transfer in form satisfactory to the Issuer and the
Security registrar duly executed by the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities of this series,
having the same interest rate and maturity and bearing interest from the same
date as this Security, of any authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of ________ and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Securities of this series are exchangeable for a like aggregate principal
amount of Securities of this series of a different authorized denomination
having the same interest rate and maturity and bearing interest from the same
date as such Securities, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Issuer may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to registration of transfer of this Security in the Security
register, the Issuer, the Trustee and any agent of the Issuer or the Trustee may
treat the person in whose name this Security is registered as the owner hereof
for all purposes, whether or not this Security be overdue and notwithstanding
any notation of ownership or other writing thereon, and neither the Issuer, the
Trustee nor any such agent shall be affected by notice to the contrary. All
payments made to or upon the order of such registered Holder, shall, to the
extent of the sum or sums paid, effectually satisfy and discharge liability for
monies payable on this Security.
No recourse for the payment of the principal of or interest, if any,
on this Security, or for any claim based hereon or otherwise in respect hereof,
and no recourse under or upon any obligation, covenant or agreement of the
Issuer in the Indenture or any indenture supplemental thereto or in any
Security, or because of the creation of any indebtedness represented thereby,
shall be had against any incorporator, stockholder, official, member or deputy
member of the Executive Board or member or deputy member of the supervisory
board, as such, past, present or future, of the Issuer or of any successor
entity, either directly or through the Issuer or any successor corporation,
whether by virtue of any constitution, statute or rule of law or by the
enforcement of any assessment or penalty or otherwise, all such liability being,
by the acceptance hereof and as part of the consideration for the issue hereof,
expressly waived and released.
All terms used in this Security and not otherwise defined herein which
are defined in the Indenture shall have the meanings assigned to them in the
Indenture, except with respect to authorization, execution and delivery by the
Issuer.
This Security shall be governed by and construed in accordance with
the laws of the State of New York.
SECTION 2.4 Form of Trustee's Certificate of Authentication. The
Trustee's certificate of authentication on all Securities shall be in
substantially the following form:
This is one of the Securities of the series designated herein and
referred to in the within-mentioned Indenture.
Dated:
The Chase Manhattan Bank, as Trustee
By__________________________________
Authorized Signatory
SECTION 2.5 Amount Unlimited; Issuable in Series. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series, each of which may
consist of one or more tranches. There shall be established in or pursuant to a
Resolution, a copy of which, certified by the secretary of the Issuer, shall be
delivered to the Trustee, or established in one or more indentures supplemental
hereto, prior to the issuance of Securities of a particular series,
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities of
the series that may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 2.10, 2.11, 2.13 or 10.3);
(3) the date or dates on which the principal of the Securities of the
series is payable;
(4) the rate or rates at which the Securities of the series shall bear
interest, if any, or the method by which such rate or rates (including the
Overdue Rate) shall be determined, the date or dates from which such
interest shall accrue or the method by which such date or dates may be
determined, the interest payment dates on which such interest shall be
payable and the record dates for the determination of Holders to whom
interest is payable;
(5) the place or places where the principal and any interest on
Securities of the series shall be payable;
(6) the price or prices at which, the period or periods within which
and the terms and conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option of the Issuer, pursuant to any
sinking fund or otherwise;
(7) the obligation, if any, of the Issuer to redeem, purchase or repay
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the price or prices at
which, the period or periods within which and the terms and conditions upon
which Securities of the series shall be redeemed, purchased or repaid, in
whole or in part, pursuant to such obligation;
(8) the price or prices at which, the period or periods within which
and the terms and conditions upon which Securities of the series may be
repaid, in whole or in part, at the option of the Holder thereof;
(9) if the Securities of the series are to be convertible into Shares,
the period or periods within which, the Conversion Price or Prices at which
(and the adjustments to be made thereto, if otherwise than as provided in
Section 11.4)) and the terms and conditions upon which the Securities of
the series may be converted, in whole or in part, into Shares, whether such
conversion is mandatory, at the option of Holders of the Securities of the
series or at the option of the Issuer and the identity of any Conversion
Agent for Securities of the series if other than or in addition to the
Trustee;
(10) if other than Dollars, the coin or currency (including composite
currencies or currency units) in which the Securities of the series shall
be denominated and, if different, the coin or currency (including composite
currencies or currency units) in which payment of the principal of and/or
interest on the Securities of the series shall be payable, and if such coin
or currency (including composite currencies or currency units) is replaced
by the euro, the provisions to effect such replacement;
(11) if the principal of and/or interest on the Securities of the
series are to be payable, at the election of the Issuer or a Holder
thereof, in a coin or currency (including composite currencies or currency
units) other than that in which the Securities are stated to be payable,
the period or periods within which, and the terms and conditions upon
which, such election may be made;
(12) if the amount of payments of principal of and/or interest on the
Securities of the series may be determined with reference to an index based
on a coin or currency (including composite currencies or currency units)
other than that in which the Securities are stated to be payable or with
reference to any other index, the manner in which such amounts shall be
determined;
(13) if other than denominations of U.S.$1,000 (or if the Securities
are denominated in a currency other than Dollars or in a composite
currency, 1,000 units of such other currency, composite currency or other
currency unit) and any multiple thereof, the denominations in which
Securities of the series shall be issuable;
(14) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the maturity thereof pursuant to Section 4.1
or provable in any action or proceeding pursuant to Section 4.2;
(15) if the Securities of the series are Original Issue Discount
Securities, the price at which and the date on which Securities of the
series are to be issued and the Yield to Maturity at the time of issuance
of such series;
(16) if the Securities of the series are to be issued in the form of
one or more Global Securities, the name of the Depositary for such Global
Security or Securities or the nominee of such Depositary;
(17) if the principal of and/or interest on the Securities of the
series are to be payable (whether upon redemption or maturity), at the
election of the Issuer, in Common Shares, the period or periods within
which, or dates on which, and the terms and conditions upon which, such
election may be made:
(18) CUSIP and/or ISIN/CINS numbers for Securities of the series; and
(19) any other terms of the series which are not inconsistent with
this Indenture.
In the case of Securities of a series issued in tranches, all
Securities of any one tranche shall be substantially identical, except as to
denomination. Except as provided in the preceding sentence, all Securities of
any one series shall be substantially identical except as to denomination,
interest rate and maturity and except as may otherwise be provided in or
pursuant to such Resolution or in any such indenture supplemental hereto. The
applicable Resolution or the applicable supplemental indenture may provide that
Securities of any particular series may be issued at various times, with
different maturities and redemption and repayment provisions (if any) and
bearing interest at different rates, but shall for all purposes under this
Indenture, including, but not limited to, voting and Events of Default, be
treated as Securities of a single series.
Except as otherwise specified pursuant to this Section 2.5 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
SECTION 2.6 Authentication and Delivery of Securities. At any time and
from time to time after the execution and delivery of this Indenture, the Issuer
may deliver Securities of any series executed by the Issuer to the Trustee for
authentication, and the Trustee shall thereupon authenticate and make available
for delivery such Securities to or upon the written order of the Issuer, signed
by any two of the following: the president, any executive vice president or the
secretary of the Issuer, without any further action by the Issuer. In
authenticating such Securities and accepting the additional responsibilities
under this Indenture in relation to such Securities the Trustee shall be
entitled to receive, and (subject to the requirements of the Trust Indenture Act
of 1939) shall be fully protected in relying upon:
(1) a copy of any Resolution or Resolutions relating to such series,
certified by the secretary of the Issuer;
(2) an executed supplemental indenture, if any, relating thereto;
(3) an Officers' Certificate setting forth the form and terms of the
Securities as required pursuant to Sections 2.1 and 2.5, respectively, and
prepared in accordance with the requirements of the Trust Indenture Act of
1939 and Section 12.5;
(4) an Opinion of Counsel, prepared in accordance with the
requirements of the Trust Indenture Act of 1939 and Section 12.5, which
shall state that (i) if the form of such Securities has been established by
or pursuant to a Resolution as permitted by Section 2.1, that such form or
forms, as the case may be, have been established in conformity with the
provisions of this Indenture, and that the terms of such Securities have
been established by or pursuant to a Resolution as permitted by Section 2.5
in conformity with the provisions of this Indenture and that the
authentication and delivery of such Securities by the Trustee is authorized
under the provisions of this Indenture and (ii) that such Securities, when
authenticated and delivered by the Trustee and issued by the Issuer in the
manner and subject to any conditions specified in such Opinion of Counsel
will constitute valid and legally binding obligations of the Issuer,
enforceable in accordance with their terms, except as the enforceability
thereof may be limited by bankruptcy, insolvency, reorganization or other
similar laws affecting the enforcement of creditors' rights generally and
to general principles of equity regardless of whether the issue of
enforceability is considered in a proceeding in equity or at law.
The Trustee shall have the right to decline to authenticate and
deliver any Securities under this Section if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken by the Issuer or
if the Trustee in good faith by its board of directors or board of trustees,
executive committee, or a trust committee of directors or trustees and/or
Responsible Officers shall determine that such action would expose the Trustee
to personal liability to existing Holders or would adversely affect the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
The Trustee shall not be required to authenticate Securities
denominated in a coin or currency other than that of the United States of
America if the Trustee reasonably determines that such Securities impose duties
or obligations on the Trustee which the Trustee is not able or reasonably
willing to accept; provided that the Trustee, upon the request of the Issuer,
will resign as Trustee with respect to Securities of any series as to which such
a determination is made, prior to the issuance of such Securities, and will
comply with the request of the Issuer to execute and deliver a supplemental
indenture appointing a successor Trustee pursuant to Section 7.1.
If the Issuer shall establish pursuant to Section 2.5 that the
Securities of a series or a tranche are to be issued in the form of one or more
Global Securities, then the Issuer shall execute and the Trustee shall, in
accordance with this Section and the order of the Issuer with respect to such
series, authenticate and deliver one or more Global Securities that (i) shall
represent and shall be denominated in an amount equal to the aggregate principal
amount of all of the Securities of such series or such tranche, as the case may
be, issued and not yet canceled, (ii) shall be registered in the name of the
Depositary for such Global Security or Securities or the nominee of such
Depositary, (iii) shall be delivered by the Trustee to such Depositary or
pursuant to such Depositary's instructions and (iv) shall bear such legend, if
any, as shall be required by the Depositary.
Each Depositary of a Global Security designated pursuant to Section
2.5 must, at the time of its designation and at all times while it serves as
Depositary hereunder, be a clearing agency registered under the Exchange Act and
any other applicable statute or regulation.
SECTION 2.7 Execution of Securities. The Securities shall be signed in
the name of the Issuer by its president and any executive vice president of the
Issuer. Such signatures may be the manual or facsimile signatures of the present
or any future such officers. Typographical and other minor errors or defects in
any such reproduction of any such signature shall not affect the validity or
enforceability of any Security that has been duly authenticated and delivered by
the Trustee.
In case any officer of the Issuer who shall have signed any of the
Securities shall cease to be such officer before the Security so signed shall be
authenticated and delivered by the Trustee or disposed of by the Issuer, such
Security nevertheless may be authenticated and delivered or disposed of as
though the person who signed such Security had not ceased to be such officer of
the Issuer; and any Security may be signed in the name of the Issuer by such
persons as, at the actual date of the execution of such Security, shall be the
proper officers of the Issuer, although at the date of the execution and
delivery of this Indenture any such person was not such an officer.
SECTION 2.8 Certificate of Authentication. Unless a certificate of
authentication substantially in the form hereinbefore recited set forth on a
Security has been executed by the Trustee by the manual signature of one of its
authorized signatories, such Security shall not be entitled to the benefits of
this Indenture or be valid or obligatory for any purpose. Such certificate by
the Trustee upon any Security executed by the Issuer shall be conclusive
evidence that the Security so authenticated has been duly authenticated and
delivered hereunder and that the Holder is entitled to the benefits of this
Indenture.
SECTION 2.9 Denomination and Date of Securities; Payments of Interest.
The Securities of each series shall be issuable as registered Securities without
coupons and in denominations as shall be specified as contemplated by Section
2.5. In the absence of any such specification with respect to the Securities of
any series, the Securities of such series shall be issuable in denominations of
U.S.$1,000 (or, if such Securities are denominated in a currency other than U.S.
dollars or in a composite currency, 1,000 units of such other currency or
composite currency) and any multiple thereof. The Securities of each series
shall be numbered, lettered or otherwise distinguished in such manner or in
accordance with such plan as the officers of the Issuer executing the same may
determine with the approval of the Trustee as evidenced by the execution and
authentication thereof.
Each Security shall be dated the date of its authentication, shall
bear interest, if any, from the date, and shall be payable on the dates, in each
case, which shall be specified as contemplated by Section 2.5.
Except as otherwise specified for a particular series pursuant to
Section 2.5, the person in whose name any Security of any series is registered
at the close of business on any record date (as hereinafter defined) applicable
to a particular series with respect to any interest payment date for such series
shall be entitled to receive the interest, if any, payable on such interest
payment date notwithstanding the cancellation of such Security upon any
registration of any transfer or exchange of such Security subsequent to the
record date and prior to such interest payment date, except if and to the extent
the Issuer shall default in the payment of the interest due on such interest
payment date for such series, in which case such defaulted interest shall be
paid to the persons in whose names Outstanding Securities of such series are
registered at the close of business on a subsequent record date (which shall be
not less than five days prior to the date of payment of such defaulted interest)
established by notice given by mail by or on behalf of the Issuer to the Holders
of Securities not less than 15 days preceding such subsequent record date. The
term "record date" as used with respect to any interest payment date (except a
date for payment of defaulted interest) shall mean the date specified as such in
the terms of the Securities of any particular series, or, if no such date is so
specified, if such interest payment date is the first day of a calendar month,
the fifteenth day of the next preceding calendar month or, if such interest
payment date is the fifteenth day of a calendar month, the first day of such
calendar month, whether or not such record date is a Business Day.
SECTION 2.10 Registration, Transfer and Exchange. The Issuer will
keep, either at the office or agency designated and maintained by the Issuer for
such purpose in the Borough of Manhattan, The City of New York, in accordance
with the provisions of Section 3.2, or at any of such other offices or agencies
as may be designated and maintained in accordance with the provisions of Section
3.2, a register or registers in which, subject to such reasonable regulations as
it may prescribe, it will register, and will register the transfer of,
Securities of a series as in this Article provided. Such register shall be in
written form in the English language or in any other form capable of being
converted into such form within a reasonable time. At all reasonable times such
register or registers shall be open for inspection by the Trustee and any
Security registrar (as defined below) other than the Trustee.
Upon due presentation for registration of transfer of any Security of
any series at any such office or agency to be maintained for the purpose as
provided in Section 3.2, the Issuer shall execute and the Trustee shall
authenticate and make available for delivery in the name of the transferee or
transferees a new Security or Securities of the same series in authorized
denominations for a like aggregate principal amount and having the same interest
rate, maturity and repayment and redemption provisions.
Any Security or Securities of any series (other than a Global
Security, except as set forth below) may be exchanged for a Security or
Securities of the same series in other authorized denominations, in an equal
aggregate principal amount and having the same interest rate, maturity,
redemption and repayment provisions. Securities of any series to be exchanged
shall be surrendered at any office or agency to be maintained by the Issuer for
the purpose as provided in Section 3.2, and the Issuer shall execute and the
Trustee shall authenticate and make available for delivery in exchange therefor
the Security or Securities of the same series and having the same interest rate,
maturity and repayment and redemption provisions which the Securityholder making
the exchange shall be entitled to receive, bearing numbers or other
distinguishing symbols not contemporaneously outstanding. Each person designated
by the Issuer pursuant to the provisions of Section 3.2 as a person authorized
to register and register transfer of the Security is sometimes herein referred
to as a "Security registrar".
The Issuer will at all times designate one person (who may be the
Issuer and who need not be a Security registrar) to act as repository of a
master list of names and addresses of the Holders of the Securities (the
"Register"). The Trustee shall act as such repository unless and until some
other person is, by written notice from the Issuer to the Trustee and each
Security registrar, designated by the Issuer to act as such. The Issuer shall
cause each Security registrar to furnish to such repository, on a current basis,
such information as to all registrations of transfer and exchanges effected by
such registrar, as may be necessary to enable such repository to maintain the
Register on as current a basis as is practicable.
No person shall at any time be designated as or act as a Security
registrar unless such person is at such time empowered under applicable law to
act as such and duly registered to act as such under and to the extent required
by applicable law and regulations.
All Securities presented for registration of transfer, exchange,
redemption or payment shall (if so required by the Issuer or the Trustee) be
duly endorsed by, or be accompanied by a written instrument or instruments of
transfer or exchange in form satisfactory to the Issuer and the Trustee duly
executed by, the Securityholder or his attorney duly authorized in writing.
The Issuer may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any exchange or
registration of transfer of Securities, other than exchanges pursuant to Section
2.13, 7.5 or 10.3 not involving any registration of transfer. No service charge
shall be made for any such transaction.
The Issuer shall not be required to exchange or register a transfer of
(a) any Securities of any series for a period of 15 days next preceding the
selection of Securities of that series to be redeemed, or (b) any Securities
selected, called or being called for redemption or surrendered for repayment in
whole or in part except, in the case of any Security to be redeemed or repaid in
part, the portion thereof not so to be redeemed or repaid.
Notwithstanding any other provision of this Section 2.10, unless and
until it is exchanged in whole or in part for Securities in definitive
registered form, a Global Security representing all or a portion of the
Securities of a series may not be transferred except as a whole by the
Depositary for such series to a nominee of such Depositary or by a nominee of
such Depositary to such Depositary or another nominee of such Depositary or by
such Depositary or any such nominee to a successor Depositary for such series or
a nominee of such successor Depositary.
If at any time the Depositary for any Securities of a series
represented by one or more Global Securities notifies the Issuer that it is
unwilling or unable to continue as Depositary for such Securities or if at any
time the Depositary for such Securities shall no longer be eligible under
Section 2.6, the Issuer shall appoint a successor Depositary with respect to
such Securities. If a successor Depositary for such Securities is not appointed
by the Issuer within 90 days after the Issuer receives such notice or becomes
aware of such ineligibility, the Issuer's election pursuant to Section 2.5 that
such Securities be represented by one or more Global Securities shall no longer
be effective and the Issuer will execute, and the Trustee, upon receipt of an
Officers' Certificate for the authentication and delivery of definitive
Securities of such series, will authenticate and make available for delivery
definitive Securities of the same series, in any authorized denominations, in an
aggregate principal amount equal to the principal amount of the Global Security
or Securities representing such Securities, in exchange for such Global Security
or Securities.
The Issuer may at any time, and in its sole discretion, determine that
Securities issued in the form of one or more Global Securities shall no longer
be represented by a Global Security or Securities. In such event the Issuer will
execute, and the Trustee, upon receipt of an Officers' Certificate for the
authentication and delivery of definitive Securities, will authenticate and make
available for delivery definitive Securities of the same series, in any
authorized denominations, in an aggregate principal amount equal to the
principal amount of the Global Security or Securities, in exchange for such
Global Security or Securities.
If specified by the Issuer pursuant to Section 2.5 with respect to
Securities represented by a Global Security, the Depositary for such Global
Security may surrender such Global Security in exchange in whole or in part for
definitive Securities of the same series on such terms as are acceptable to the
Issuer and such Depositary. Thereupon, the Issuer shall execute, and the Trustee
shall authenticate and make available for delivery, without service charge:
(i) to the person specified by such Depositary, a new Security or
Securities of the same series, of any authorized denominations as requested
by such person, in an aggregate principal amount equal to and in exchange
for such person's beneficial interest in the Global Security; and
(ii) to such Depositary a new Global Security in a denomination equal
to the difference, if any, between the principal amount of the surrendered
Global Security and the aggregate principal amount of Securities
authenticated and delivered pursuant to clause (i) above.
Upon the exchange of a Global Security for definitive Securities, in
authorized denominations, such Global Security shall be canceled by the Trustee
or an agent of the Issuer or the Trustee. Definitive Securities issued in
exchange for a Global Security pursuant to this Section 2.10 shall be registered
in such names and in such authorized denominations as the Depositary for such
Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee or an agent of the Issuer
or the Trustee. The Trustee or such agent shall make such Securities available
for delivery to or as directed by the persons in whose names such Securities are
so registered.
SECTION 2.11 Mutilated, Defaced, Destroyed, Lost and Stolen
Securities. In case any temporary or definitive Security shall become mutilated,
defaced or be destroyed, lost or stolen and, in the absence of notice to the
Issuer or the Trustee that any destroyed, lost or stolen Security has been
acquired by a bona fide purchaser, the Issuer may in its discretion execute and
the Trustee shall authenticate and make available for delivery, a new Security
of the same series and of like tenor, bearing a number or other distinguishing
symbol not contemporaneously Outstanding, in exchange and substitution for the
mutilated or defaced Security, or in lieu of and substitution for the Security
so destroyed, lost or stolen. In every case the applicant for a substitute
Security shall furnish to the Issuer and to the Trustee (and any agent of the
Issuer or Trustee, if requested by the Issuer) such security or indemnity as may
be required by them to indemnify and defend and to save each of them harmless
and, in every case of destruction, loss or theft, evidence to their satisfaction
of the destruction, loss or theft of such Security and of the ownership thereof.
Upon the issuance of any substitute Security, the Issuer may require
the payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto and any other expenses (including the
fees and expenses of the Trustee) connected therewith.
In case any Security that has matured or is about to mature or has
been called for redemption in full shall become mutilated or defaced or be
destroyed, lost or stolen, the Issuer in its discretion may instead of issuing a
substitute Security, pay or authorize the payment of the same (without surrender
thereof except in the case of a mutilated or defaced Security), if the applicant
for such payment shall furnish to the Issuer and to the Trustee (and any agent
of the Issuer or Trustee, if requested by the Issuer) such security or indemnity
as any of them may require to indemnify and defend and to save each of them
harmless, and, in every case of destruction, loss or theft, evidence to their
satisfaction of the destruction, loss or theft of such Security and of the
ownership thereof.
Every substituted Security of any series issued pursuant to the
provisions of this Section by virtue of the fact that any such Security is
destroyed, lost or stolen shall constitute an additional contractual obligation
of the Issuer, whether or not the destroyed, lost or stolen Security shall be at
any time enforceable by anyone and shall be entitled to all the benefits of (but
shall be subject to all the limitations of rights set forth in) this Indenture
equally and proportionately with any and all other Securities of such series
duly authenticated and delivered hereunder. All Securities shall be held and
owned upon the express condition that, to the extent permitted by law, the
foregoing provisions are exclusive with respect to the replacement or payment of
mutilated, defaced or destroyed, lost or stolen Securities and shall preclude
any and all other rights or remedies notwithstanding any law or statute existing
or hereafter enacted to the contrary with respect to the replacement or payment
of negotiable instruments or other securities without their surrender.
SECTION 2.12 Cancellation of Securities Paid, etc. All Securities
surrendered for the purpose of payment, redemption, registration of transfer,
conversion or exchange, or for credit against any payment in respect of a
sinking or analogous fund, if surrendered to the Issuer, any Security registrar,
any paying agent, the Conversion Agent or any other agent of the Issuer or any
agent of the Trustee, shall be delivered to the Trustee and promptly canceled by
it or, if surrendered to the Trustee, shall be promptly canceled by it; and no
Securities shall be issued in lieu thereof except as expressly permitted by any
of the provisions of this Indenture. The Trustee shall deliver canceled
Securities to the Issuer. If the Issuer shall acquire any of the Securities,
such acquisition shall not operate as a redemption or satisfaction of the
indebtedness represented by such Securities unless and until the same are
delivered to the Trustee for cancellation.
SECTION 2.13 Temporary Securities. Pending the preparation of
definitive Securities for any series, the Issuer may execute and the Trustee
shall authenticate and make available for delivery temporary Securities for such
series (printed, lithographed, typewritten or otherwise reproduced). Temporary
Securities of any series shall be issuable as registered Securities without
coupons, in any authorized denomination, and substantially in the form of the
definitive Securities of such series in lieu of which they are issued but with
such omissions, insertions and variations as may be appropriate for temporary
Securities, all as may be determined by the Issuer. Temporary Securities may
contain such reference to any provisions of this Indenture as may be
appropriate. Every temporary Security shall be authenticated by the Trustee upon
the same conditions and in substantially the same manner, and with like effect,
as the definitive Securities in lieu of which they are issued. Without
unreasonable delay, and in no case more than 60 days after the issuance of such
temporary Securities, the Issuer shall execute and shall furnish definitive
Securities of such series and thereupon temporary Securities of such series may
be surrendered in exchange therefor without charge at each office or agency to
be maintained by the Issuer for that purpose pursuant to Section 3.2, and the
Trustee shall authenticate and make available for delivery in exchange for such
temporary Securities of such series a like aggregate principal amount of
definitive Securities of the same series of authorized denominations having the
same interest rate, maturity and redemption and repayment provisions, and
bearing interest from the same date as such temporary Securities. Until so
exchanged, the temporary Securities of any series shall be entitled to the same
benefits under this Indenture as definitive Securities of the same series
authenticated and delivered hereunder.
SECTION 2.14 CUSIP Numbers. The Issuer in issuing the Securities may
use "CUSIP" or "ISIN" numbers (if then generally in use), and, if so, the
Trustee shall use "CUSIP" or "ISIN" numbers in notices of redemption as a
convenience to Securityholders; provided that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any defect in or
omission of such numbers.
SECTION 2.15 Form of Election to Convert. The notice of conversion to
be delivered by a Holder to the Conversion Agent in connection with the
conversion of Securities of any series that are convertible into Shares shall be
in substantially the following form, with such appropriate insertions,
omissions, substitutions and other variations as are deemed necessary or
appropriate by the Issuer or the Trustee:
Notice of Conversion
The undersigned Holder of the Securities specified below hereby
irrevocably exercises the option to convert such Securities, or the aggregate
principal amount thereof specified below, into Common Shares of the Issuer or
American Depositary Shares evidencing such Common Shares ("ADSs" and, together
with such Common Shares, the "Shares"), as indicated below, in accordance with
the terms of the Securities and the Indenture dated as of _______, ____ (the
"Indenture") between Koninklijke Ahold N.V. and The Chase Manhattan Bank, as
Trustee, and directs that (i) if such Holder is electing to receive Common
Shares, the Common Shares issuable and deliverable upon conversion be delivered
to such Holder through Nederlands Centraal Instituut voor Giraal Effectenverkeer
and (ii) if such Holder elects to receive ADSs, the American Depositary Receipts
evidencing such ADSs issuable and deliverable on conversion be issued in the
name of and delivered to the undersigned unless otherwise indicated below and,
in either case, any check in payment for fractional Shares be issued in the name
of and delivered to the undersigned unless a different name has been indicated
below. If ADSs are to be issued in the name of a person other than the
undersigned, the undersigned has paid all transfer taxes payable with respect
thereto. All capitalized terms used herein and not defined herein shall have the
meanings specified in the Indenture.
Dated:
---------------------------
Signature (for Conversion only)
Title of Securities:
Certificate Number(s)
(if applicable):
Aggregate Principal Amount
Represented:1
1 Unless otherwise specified, a Holder will be deemed to be converting the
entire principal amount of the Securities delivered.
Principal Amount to be
Converted:2
2 Certificate registered in the name of the Holder will be issued in the
principal amount of the Securities not converted, unless otherwise
provided.
Indicate Shares to be issued:
(_) Common Shares
(_) American Depositary Shares
If ADSs are to be received and
are to be issued otherwise
than to Holder:
- -------------------------
Please print name and address
If check for fractional Shares to be issued otherwise than to Holder:
- -------------------------
Please print name and address
Please print name and address of Holder
- ------------------------
- ------------------------
Signature Guarantee: ______________________
ARTICLE THREE
COVENANTS OF THE ISSUER
SECTION 3.1 Payment of Principal and Interest. The Issuer covenants
and agrees for the benefit of each series of Securities that it will duly and
punctually pay or cause to be paid the principal of and interest, if any, on
each of the Securities of such series at the place or places, at the respective
times and in the manner provided in such Securities, but in no event later than
10 a.m., New York time, on the respective payment date. The Issuer shall request
that the bank, through which any such payment is to be made, agree to supply to
the Trustee two Business Days prior to the due date for any such payment an
irrevocable confirmation (by tested telefax or authenticated SWIFT MT 100
Message) of its intention to make such payment. Except as otherwise provided
pursuant to Section 2.5 for Securities of any series, each installment of
interest on the Securities of any series may be paid by mailing checks for such
interest payable to the person entitled thereto as such addresses shall appear
in the Register.
SECTION 3.2 Offices for Payments, etc. So long as any of the
Securities remain outstanding, the Issuer will designate and maintain in the
Borough of Manhattan, The City of New York, for each series: (a) an office or
agency where the Securities may be presented for payment, (b) if the Securities
of such series are convertible into Shares, an office or agency where the
Securities may be presented for conversion into Shares (hereinafter the
"Conversion Agent", which term shall include any additional Conversion Agents as
may be appointed by the Issuer), (c) an office or agency where the Securities
may be presented for registration of transfer and for exchange as in this
Indenture provided and (d) an office or agency where notices and demands to or
upon the Issuer in respect of the Securities or of this Indenture may be served.
In addition to such office or offices or agency or agencies, the Issuer may from
time to time designate and maintain one or more additional offices or agencies
within or outside the Borough of Manhattan, The City of New York, where the
Securities of that series may be presented for payment or for registration of
transfer or for exchange, and the Issuer may from time to time rescind such
designation, as it may deem desirable or expedient. The Issuer will give to the
Trustee written notice of the location of any such office or agency and of any
change of location thereof. The Issuer hereby designates the New York Location
and the Corporate Trust Office as the initial offices to be maintained by it for
such purposes. In case the Issuer shall fail to maintain any such office or
agency or shall fail to give such notice of the location or of any change in the
location thereof, presentations and demands may be made and notices may be
served at the Corporate Trust Office and the Issuer appoints the Trustee as its
agent to receive all such presentations, surrenders, notices and demands.
SECTION 3.3 Paying Agents. Whenever the Issuer shall appoint a paying
agent or agents other than the Trustee with respect to the Securities of any
series, it will cause each such paying agent to execute and deliver to the
Trustee an instrument in which each such paying agent shall agree with the
Trustee, subject to the provisions of this Section,
(a) that it will hold all sums received by it as such agent for the
payment of the principal of or interest, if any, on the Securities of such
series (whether such sums have been paid to it by the Issuer or by any
other obligor on the Securities of such series) in trust for the benefit of
the persons entitled thereto until such sums shall be paid to such persons
or otherwise disposed of as herein provided,
(b) that it will give the Trustee written notice of any default by the
Issuer (or by any other obligor on the Securities of such series) to make
any payment of the principal of or interest, if any, on the Securities of
such series when the same shall be due and payable, and
(c) that, at any time during the continuance of any such default
referred to in clause (b) above, upon the written request of the Trustee,
it will forthwith pay to the Trustee all sums so held in trust by such
paying agent.
Whenever the Issuer shall have one or more paying agents with respect
to Securities of any series, it will, prior to each due date of the principal of
or interest, if any, on the Securities of such series, deposit with a designated
paying agent a sum sufficient to pay such principal or interest, if any, so
becoming due, such sum to be held in trust for the benefit of the persons
entitled to such principal or interest, if any, and (unless such paying agent is
the Trustee) the Issuer will promptly notify the Trustee of any failure to take
such action.
If the Issuer shall act as its own paying agent with respect to the
Securities of any series, it will, on or before each due date of the principal
of or interest, if any, on the Securities of such series, set aside, segregate
and hold in trust for the benefit of the persons entitled to such principal and
interest, if any, a sum sufficient to pay such principal or interest, if any, so
becoming due until such sums shall be paid to such persons or otherwise disposed
of as herein provided. The Issuer will promptly notify the Trustee of any
failure to take such action.
Anything in this Section to the contrary notwithstanding, the Issuer
may at any time, for the purpose of obtaining a satisfaction and discharge with
respect to one or more or all series of Securities hereunder, or for any other
reason, pay or cause to be paid to the Trustee all sums held in trust for any
such series by the Issuer or any paying agent hereunder, as required by this
Section, such sums to be held by the Trustee upon the trusts herein contained.
Anything in this Section to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section is subject to the
provisions of Sections 9.3 and 9.4.
SECTION 3.4 Limitation on Liens. The Issuer will not itself, and will
not permit any Subsidiary to, incur, issue, assume or guarantee any indebtedness
for money borrowed or any other indebtedness evidenced by notes, bonds,
debentures or other similar evidences of indebtedness for money borrowed
(hereinafter in this Section and in Section 3.5 called "Debt") secured by pledge
of, or mortgage, deed of trust or other lien on, the whole or any part of its,
or any such Subsidiary's, as the case may be, undertakings, assets (including
shares of stock or Debt) or revenues, present or future (such pledges,
mortgages, deeds of trust and other liens being hereinafter in this Section and
in Section 3.5 called "Mortgage" or "Mortgages"), without effectively providing
that the Securities of all series (together with, if the Issuer shall so
determine, any other Debt of the Issuer or such Subsidiary then existing or
thereafter created which is not subordinate to the Securities) shall be secured
equally and ratably with (or prior to) such secured Debt, so long as such
secured Debt shall be so secured, unless, after giving effect thereto, the
aggregate principal amount of all such secured Debt which would otherwise be
prohibited, plus all Attributable Debt of the Issuer and its Subsidiaries in
respect of sale and leaseback transactions (as defined in Section 3.5) which
would otherwise be prohibited by Section 3.5 would not exceed the greater of (i)
U.S.$750,000,000 or (ii) the sum of 15% of Consolidated Net Tangible Assets;
provided, that this Section shall not apply to, and there shall be excluded from
secured Debt in any computation under this Section, Debt secured by:
(a) Mortgages on property of, or on any shares of stock or Debt of,
any corporation existing at the time such corporation becomes a Subsidiary;
(b) Mortgages to secure indebtedness of any Subsidiary to the Issuer
or to another Subsidiary;
(c) Mortgages for taxes, assessments or governmental charges or levies
in each case (i) not then due and delinquent or (ii) the validity of which
is being contested in good faith by appropriate proceedings, and
materialmen's, mechanics', carriers', workmen's, repairmen's, landlord's or
other like Mortgages, or deposits to obtain the release of such Mortgages;
(d) Mortgages arising under an order of attachment or distraint or
similar legal process so long as the execution or enforcement thereof is
effectively stayed and the claims secured thereby are being contested in
good faith;
(e) Mortgages to secure public or statutory obligations or to secure
payment of workmen's compensation or to secure performance in connection
with tenders, leases of real property, bids or contracts or to secure (or
in lieu of) surety or appeal bonds and Mortgages made in the ordinary
course of business for similar purposes;
(f) Mortgages on property (including any lease which should be
capitalized on the lessee's balance sheet in accordance with generally
accepted accounting principles), shares of stock or Debt existing at the
time of acquisition thereof (including acquisition through merger or
consolidation or through purchase or transfer of the properties of a
corporation as an entirety or substantially as an entirety) or to secure
the payment of all or any part of the purchase price or construction cost
or improvement cost thereof or to secure any Debt incurred prior to, at the
time of, or within one year after, the acquisition of such property or
shares or Debt or the completion of any such construction (including any
improvements on an existing property) or the commencement of commercial
operation of such property, whichever is later, for the purpose of
financing all or any part of the purchase price or construction cost
thereof;
(g) Mortgages to secure guarantees arising in connection with the
sale, discount, guarantee or pledge of notes, chattel mortgages, leases,
accounts receivable, trade acceptances and other paper arising, in the
ordinary course of business, out of installment or conditional sales to or
by, or transactions involving title retention with, distributors, dealers
or other customers, or merchandise, equipment or services;
(h) Mortgages existing at the date of this Indenture; and
(i) Any extension, renewal or replacement (or successive extensions,
renewals or replacements), as a whole or in part, of any Mortgage referred
to in the foregoing clauses (a) to (h), inclusive; provided, that (i) such
extension, renewal or replacement Mortgage shall be limited to all or a
part of the same property, shares of stock or Debt that secured the
Mortgage extended, renewed or replaced (plus improvements on such property)
and (ii) the Debt secured by such Mortgage at such time is not increased.
SECTION 3.5 Limitation on Sales and Leasebacks. The Issuer will not
itself, and it will not permit any Subsidiary to, enter into any arrangement
with any bank, insurance company or other lender or investor (not including the
Issuer or any Subsidiary) or to which any such lender or investor is a party,
providing for the leasing by the Issuer or any such Subsidiary for a period,
including renewals, in excess of three years, of any property, whether owned by
the Issuer or such Subsidiary as of the date of this Indenture or thereafter
acquired which has been or is to be sold or transferred more than 270 days after
the acquisition thereof or after the completion of construction and commencement
of full operation thereof, by the Issuer or any such Subsidiary to such lender
or investor or to any person to whom funds have been or are to be advanced by
such lender or investor on the security of such property (herein referred to as
a "sale and leaseback transaction") unless either:
(a) the Issuer or such Subsidiary could create Debt secured by a
Mortgage on the property to be leased back in an amount equal to the
Attributable Debt with respect to such sale and leaseback transaction
without equally and ratably securing the Securities of all series pursuant
to Section 3.4, or
(b) the Issuer within 180 days after the sale or transfer shall have
been made by the Issuer or by any such Subsidiary, applies an amount equal
to the greater of (i) the net proceeds of the sale of the property sold and
leased back pursuant to such arrangement or (ii) the fair market value of
the property so sold and leased back at the time of entering into such
arrangement (as determined by any two of the following: the president, any
executive vice president or the secretary of the Issuer) to (x) the
purchase of property, facilities or equipment (other than the property,
facilities or equipment involved in such sale) having a value at least
equal to the net proceeds of such sale or (y) the retirement of Funded Debt
of the Issuer or any Subsidiary; provided, that the amount required to be
applied to the retirement of Funded Debt of the Issuer or any Subsidiary
shall be reduced by (i) the principal amount of any Securities of any
series (or, if the Securities of any series are Original Issue Discount
Securities, such portion of the principal amount as may be due and payable
with respect to Securities of such series pursuant to a declaration in
accordance with Section 4.1 or, if the Securities of any series provide
that an amount other than the face thereof will or may be payable upon the
maturity thereof or a declaration of acceleration of the maturity thereof,
such amount as may be due and payable with respect to Securities of such
series pursuant to a declaration in accordance with Section 4.1) delivered
within 180 days after such sale or transfer to the Trustee for retirement
and cancellation, and (ii) the principal amount of Funded Debt, other than
the Securities of any series, voluntarily retired by the Issuer or any
Subsidiary within 180 days after such sale or transfer. Notwithstanding the
foregoing, no retirement referred to in clause (b) of the preceding
sentence may be effected by payment at maturity or pursuant to any
mandatory sinking fund payment or any mandatory prepayment provision.
SECTION 3.6 Notice of Default. The Issuer shall file with the Trustee
written notice of the occurrence of any default or Event of Default within five
Business Days of any officer becoming aware of any such default or Event of
Default.
SECTION 3.7 Calculation of Original Issue Discount. The Issuer shall
file with the Trustee promptly at the end of each calendar year a written notice
specifying the amount of original issue discount (including daily rates and
accrual periods) accrued on Outstanding Securities as of the end of such year
and such other specific information relating to such original issue discount as
may then be required under the Internal Revenue Code of 1986, as amended from
time to time.
SECTION 3.8 Reports. The Issuer shall comply with the provisions of
ss. 314(a) of the Trust Indenture Act of 1939 and shall file with the Trustee
within 45 days after it files them with the Commission and in any event no later
than 180 days after the end of the respective fiscal quarter, copies of its
annual report and of the information, documents and other reports (or copies of
such portions of any of the foregoing as the Commission may by rules and
regulations prescribe) which the Issuer is required to file with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act, as amended.
SECTION 3.9 Compliance Certificates. (a) On or before April 15 in each
year (commencing with the first April 15 which is not less than 60 days
following the first date of issuance of Securities of any series under this
Indenture), the Issuer will file with the Trustee a brief certificate, signed by
the principal executive officer, the principal financial officer, or the
principal accounting officer of the Issuer, stating whether or not the signer
has knowledge of any default by the Issuer in the performance or fulfillment of
any covenant, agreement, or condition contained in this Indenture, and, if so,
specifying each such default of which the signer has knowledge, the nature
thereof, and what action, if any, has been taken and is proposed to be taken to
cure such default. For purposes of this paragraph, such compliance shall be
determined without regard to any period of grace or requirement of notice
provided under this Indenture.
(b) The Issuer also shall comply with the other provisions of
ss.314(a) of the Trust Indenture Act of 1939.
SECTION 3.10 Payment of Additional Amounts. All payments in respect of
the Securities, including, without limitation, payments of principal, interest,
if any, and premium, if any, shall be made by the Issuer without withholding or
deduction for or on account of any present or future taxes, duties, levies, or
other governmental charges of whatever nature in effect on the date of the
Indenture or imposed or established in the future by or on behalf of The
Netherlands or any authority in The Netherlands ("Taxes"). In the event any such
Taxes are so imposed or established, the Issuer shall pay such additional
amounts ("Additional Amounts") as may be necessary in order that the net amounts
receivable by each Holder after any payment, withholding or deduction in respect
of such Taxes shall equal the respective amounts of principal, interest, if any,
and premium, if any, which would have been receivable in respect of the
Securities in the absence of such payment, withholding or deduction; except that
no such Additional Amounts will be payable with respect to any payment on any
Security to, or to a third party on behalf of, a Holder for or on account of any
such Taxes whatever that have been imposed by reason of (i) the Holder being a
resident or deemed a resident of The Netherlands or having some connection with
The Netherlands (including, but not limited to, the situation where a Holder
carries on business in The Netherlands through a permanent establishment or
permanent representative in The Netherlands) other than the mere holding of such
Security or the receipt of principal, interest, if any, or premium, if any, in
respect thereof; (ii) the presentation by the Holder of a Security for payment
on a date more than thirty (30) days after the date on which such payment became
due and payable or the date on which payment thereof is duly provided for,
whichever occurs later; (iii) any estate, inheritance, gift, sales, transfer or
personal property tax or any similar tax, assessment or governmental charge;
(iv) any tax, assessment or other governmental charge which is payable otherwise
than by withholding from payments on or in respect of any Security; or (v) any
combination of items (i), (ii), (iii) or (iv). Furthermore, no Additional
Amounts shall be paid with respect to any payment on a Security to a Holder that
is a fiduciary or partnership or other than the sole beneficial owner of such
payment to the extent that a beneficiary or settlor with respect to such
fiduciary or a member of such partnership or beneficial owner would not have
been entitled to receive the Additional Amounts had such beneficiary, settlor,
member or beneficial owner been the Holder.
Whenever in this Indenture or the Securities there is a reference, in
any context, to the payment of the principal of or interest, if any, on, or in
respect of, any Security, such payment shall be deemed to include the payment of
Additional Amounts provided for in this Section to the extent that, in such
context, Additional Amounts are, were or would be payable in respect of such
payment pursuant to the provisions of such Section and express mention of the
payment of Additional Amounts (if applicable) in any provision hereof shall not
be construed as excluding Additional Amounts in those provisions hereof where
such express mention is not made.
ARTICLE FOUR
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 4.1 Events of Default. "Event of Default" with respect to
Securities of a particular series wherever used herein, means any one of the
following events and such other events as may be established with respect to the
Securities of such series as contemplated by Section 2.5, continued for the
period of time, if any, and after the giving of notice, if any, designated in
this Indenture or as may be established with respect to such Securities as
contemplated by Section 2.5, as the case may be, unless such event is either
inapplicable or is specifically deleted or modified in, or pursuant to, the
applicable Resolution or in the supplemental indenture under which such series
of Securities is issued, as the case may be, as contemplated by Section 2.5:
(a) default in the payment of any installment of interest or any
Additional Amounts, if any, upon any of the Securities of such series as
and when the same shall become due and payable, and continuance of such
default for a period of 30 days; or
(b) default in the payment of the principal of (and premium, if any,
on) any of the Securities of such series as and when the same shall become
due and payable either at maturity, upon redemption, by declaration or
otherwise; or
(c) default in the payment of any sinking fund installment as and when
the same shall become due and payable by the terms of the Securities of
such series; or
(d) failure on the part of the Issuer duly to observe or perform any
other of the covenants or agreements on the part of the Issuer in respect
of the Securities of such series contained in this Indenture (other than a
covenant or agreement in respect of the Securities of such series a default
in the performance of which or a breach of which is elsewhere in this
Section specifically addressed), and continuance of such default or breach
for a period of 90 days after there has been given, by registered or
certified mail, to the Issuer by the Trustee or to the Issuer and the
Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities of such series, a written notice specifying such
default or breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
(e) the Issuer or any Subsidiary of the Issuer shall either (A)
default in the payment of the principal of, or interest, if any, on any
note, bond, coupon or other instrument evidencing indebtedness for money
borrowed in an aggregate principal amount of U.S.$50,000,000 or more, other
than the Securities of such series, issued, assumed or guaranteed by it,
when and as the same shall become due and payable, if such default shall
continue for more than the period of grace, if any, originally applicable
thereto and the time for payment of such amount has not been effectively
extended, or (B) default in the observance of any other terms and
conditions relating to any such indebtedness for money borrowed, if the
effect of such default is to cause such indebtedness to become due prior to
its stated maturity; or
(f) there shall have occurred the dissolution and liquidation
(ontbinding en vereffening) of the Issuer 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 dissolution and liquidation of the Issuer or the Issuer
shall otherwise enter into liquidation; or
(g) the Issuer 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, custodian,
liquidator, curator, sequestrator, trustee or other similar officer of the
Issuer or of all or any part of the assets of the Issuer; or
(h) the Issuer applies for a moratorium or suspension of payments
(surseance van betaling) or for an arrangement with its creditors or for
any proceedings or arrangement by which the assets of the Issuer are
submitted to the control of its creditors or the Issuer otherwise
threatens, proposes or declares any moratorium on its debts or any class of
its debts; or
(i) the Issuer becomes, or is declared by any competent authority to
be, bankrupt (failliet) or admits in writing its inability to pay its debts
as they fall due or is or becomes subject to or applies for protection in
any bankruptcy proceedings (faillissement).
If an Event of Default with respect to any series of Securities at the
time Outstanding occurs and is continuing, then, and in each and every such
case, unless the principal of all of the Securities of such series shall have
already become due and payable, either the Trustee or the Holders of not less
than 25% in aggregate principal amount of the Outstanding Securities of such
series, by notice in writing to the Issuer (and to the Trustee if given by
Securityholders), may declare the entire principal amount (or, if the Securities
of such series are Original Issue Discount Securities, such portion of the
principal as may be specified in the terms of such series or if so provided
pursuant to Section 2.5 for Securities of any series, such other amount as is
specified pursuant thereto) of all of the Securities of such series and the
interest accrued thereon, if any, to be due and payable immediately, and upon
any such declaration the same shall become immediately due and payable.
The foregoing provisions, however, are subject to the condition that
if, at any time after the principal (or, if the Securities are Original Issue
Discount Securities, such portion of the principal as may be specified in the
terms thereof or if so provided pursuant to Section 2.5 for Securities of any
series, such other amount as is specified pursuant thereto) of the Securities of
any series shall have been so declared due and payable, and before any judgment
or decree for the payment of the moneys due shall have been obtained or entered
as hereinafter provided,
(a) the Issuer shall pay or shall deposit with the Trustee a sum
sufficient to pay all matured installments of interest, if any, upon all
the Securities of such series and the principal of any and all Securities
of such series which shall have become due otherwise than by such
declaration of acceleration (with interest upon such principal and, to the
extent that payment of such interest is enforceable under applicable law,
on overdue installments of interest, if any, at the Overdue Rate applicable
to such series to the date of such payment or deposit), and all amounts
payable to the Trustee pursuant to Section 5.5, and
(b) any and all Events of Default under the Indenture with respect to
such series of Securities other than the non-payment of the principal of
such Securities which shall have become due by such declaration of
acceleration, shall have been cured, waived or otherwise remedied as
provided herein or provision shall have been made therefor to the
satisfaction of the Trustee,
then and in every such case the Holders of not less than a majority in aggregate
principal amount of the Securities of such series then Outstanding, by written
notice to the Issuer and to the Trustee, may rescind and annul such declaration
and its consequences with respect to such series, but no such rescission and
annulment shall extend to or shall affect any subsequent default or shall impair
any right consequent thereon.
For all purposes under this Indenture, if a portion of the principal
of any Original Issue Discount Securities shall have been accelerated and
declared due and payable pursuant to the provisions hereof, then, from and after
such declaration, unless such declaration has been rescinded and annulled, the
principal amount of such Original Issue Discount Securities shall be deemed, for
all purposes hereunder, to be such portion of the principal thereof as shall be
due and payable as a result of such acceleration, and payment of such portion of
the principal thereof as shall be due and payable as a result of such
acceleration, together with interest, if any, thereon and all other amounts
owing thereunder, shall constitute payment in full of such Original Issue
Discount Securities. If the Securities of any series provide the amount other
than the face amount thereof will be payable upon the maturity thereof or a
declaration of acceleration of the maturity thereof, for purposes of this
Section 4.1 the principal amount of such Securities shall be deemed to be such
amount as shall be due and payable upon the acceleration of the maturity
thereof, except as may otherwise be provided with respect to such Securities
pursuant to Section 2.5.
SECTION 4.2 Payment of Securities on Default; Suit Therefor. The
Issuer covenants that (a) in case a default shall be made in the payment of any
installment of interest on any of the Securities of any series as and when such
interest shall have become due and payable, and such default shall have
continued for a period of 30 days or (b) in case a default shall be made in the
payment of the principal of any of the Securities of any series as and when the
same shall have become due and payable, whether upon maturity of the Securities
of such series or upon redemption or by declaration or otherwise, or (c) in case
of a default in the making or satisfaction of any sinking fund payment or
analogous obligation when the same becomes due by the terms of the Securities of
any series -- then, upon demand of the Trustee, the Issuer will pay to the
Trustee for the benefit of the Holders of the Securities of such series the
whole amount then due and payable on all Securities of such series for principal
and interest, if any, as the case may be (with interest to the date of such
payment upon the overdue principal and, to the extent that payment of such
interest is enforceable under applicable law, on overdue installments of
interest, if any, at the Overdue Rate applicable to Securities of such series);
and in addition thereto, such further amount as shall be sufficient to cover the
costs and expenses of collection, and any further amounts payable to the Trustee
pursuant to Section 5.5.
Until such demand is made by the Trustee, the Issuer may pay the
principal of and interest, if any, on the Securities of any series to the
registered Holders, whether or not the principal of and interest, if any, on the
Securities of such series be overdue.
In case the Issuer shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any action or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceedings to judgment or final decree, and may enforce any such
judgment or final decree against the Issuer or other obligor upon such
Securities and collect in the manner provided by law out of the property of the
Issuer or other obligor upon such Securities, wherever situated, the moneys
adjudged or decreed to be payable.
In case there shall be pending proceedings for the liquidation, for
the bankruptcy or for the reorganization of the Issuer or any other obligor upon
the Securities of any series under applicable law, or in case an administrator,
bewindvoerder, receiver, custodian, liquidator, curator, sequestrator, trustee
or other similar officer shall have been appointed for or taken possession of
the Issuer or of all or any part of the assets of the Issuer or any such
obligor, or in case of any other similar judicial proceedings relative to the
Issuer or other obligor upon the Securities of any series, or to the creditors
or property of the Issuer or such other obligor, the Trustee, irrespective of
whether the principal of any Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the Trustee
shall have made any demand pursuant to the provisions of this Section, shall be
entitled and empowered, by intervention in such proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount of
principal (or, if the Securities of any series are Original Issue Discount
Securities or if the Securities of any series provide that an amount other
than the face thereof will or may be payable upon maturity thereof or upon
a declaration of acceleration thereof, such amount as may be due and
payable with respect to such series pursuant to a declaration in accordance
with Section 4.1) and interest, if any, owing and unpaid in respect of the
Securities of any series, and, in case of any judicial proceedings, to file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim
for any amounts payable to the Trustee pursuant to Section 5.5) and of the
Securityholders allowed in any judicial proceedings relating to the Issuer
or other obligor upon the Securities of any series, or to the creditors or
property of the Issuer or such other obligor,
(b) unless prohibited by applicable law and regulations, to vote on
behalf of the Holders of the Securities of any series in any election of a
trustee or a standby trustee in arrangement, reorganization, liquidation or
other bankruptcy or insolvency proceedings or of a person performing
similar functions in comparable proceedings, and
(c) to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute all amounts received with
respect to the claims of the Securityholders and of the Trustee on their
behalf (after deduction of costs and expenses of collection, and any
further amounts payable to the Trustee pursuant to Section 5.5 and incurred
by it up to the date of distribution); and any administrator,
bewindvoerder, receiver, custodian, liquidator, curator, sequestrator,
trustee or other similar officer is hereby authorized by each of the
Securityholders to make payments to the Trustee, and, in the event that the
Trustee shall consent to the making of payments directly to the
Securityholders, to pay to the Trustee costs and expenses of collection,
and any further amounts payable to the Trustee pursuant to Section 5.5 and
incurred by it up to the date of distribution.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or vote for or accept or adopt on behalf of any
Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities of any series or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Securityholder in any such proceeding except, as aforesaid, to vote for the
election of a trustee in bankruptcy or similar person.
All rights of action and of asserting claims under this Indenture, or
under the Securities of any series, may be enforced by the Trustee without the
possession of any of the Securities of such series or the production thereof on
any trial or other proceedings relative thereto, and any such action or
proceedings instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment, shall be for the
ratable benefit of the Holders of the Securities in respect of which such action
was taken.
In any proceedings brought by the Trustee (and also any proceedings in
which a declaratory judgment of a court may be sought as to the interpretation
or construction of any provision of this Indenture to which the Trustee shall be
a party) the Trustee shall be held to represent all the Holders of the
Securities to which such proceedings relate, and it shall not be necessary to
make any Holders of such Securities parties to any such proceedings.
SECTION 4.3 Application of Moneys Collected by Trustee. Any moneys
collected by the Trustee pursuant to this Article shall be applied in the
following order at the date or dates fixed by the Trustee and, in the case of
distribution of such moneys on account of principal or interest, upon
presentation of the several Securities in respect of which moneys have been
collected and stamping (or otherwise noting) thereon the payment, or issuing
Securities in reduced principal amounts in exchange for the presented Securities
of like series (or, in the case of Securities of a series issued in more than
one tranche, of the same tranche) and tenor if only partially paid, or upon
surrender thereof if fully paid:
FIRST: To the payment of amounts due to the Trustee pursuant to
Section 5.5;
SECOND: In case the principal of the Outstanding Securities in respect
of which moneys have been collected shall not have become and be then due
and payable, to the payment of interest, if any, on the Securities in
default in the order of the maturity of the installments of such interest,
with interest (to the extent that such interest has been collected by the
Trustee and to the extent permitted by applicable law) upon the overdue
installments of interest at the Overdue Rate applicable to such Securities,
such payments to be made ratably to the persons entitled thereto, without
discrimination or preference;
THIRD: In case the principal of the Outstanding Securities in respect
of which moneys have been collected shall have become and shall be then due
and payable by declaration or otherwise, to the payment of the whole amount
then owing and unpaid upon such Securities for principal and interest, if
any, with interest upon the overdue principal, and (to the extent that such
interest has been collected by the Trustee and to the extent permitted by
applicable law) upon overdue installments of interest, if any, at the
Overdue Rate applicable to such Securities; and in case such moneys shall
be insufficient to pay in full the whole amount so due and unpaid upon such
Securities, then to the payment of such principal and interest, if any,
without preference or priority of principal over interest, if any, or of
interest, if any, over principal, or of any installment of interest, if
any, over any other installment of interest, if any, or of any Security
over any other Security, ratably to the aggregate of such principal and
accrued and unpaid interest, if any; and
FOURTH: To the payment of the remainder, if any, to the Issuer.
SECTION 4.4 Proceedings by Trustee. In case an Event of Default
hereunder has occurred, has not been waived and is continuing, the Trustee may
in its discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either at law or in
equity or otherwise, whether for the specific enforcement of any covenant or
agreement contained in this Indenture or in aid of the exercise of any power
granted in this Indenture or to enforce any other legal or equitable right
vested in the Trustee by this Indenture or by law.
SECTION 4.5 Restoration of Rights on Abandonment of Proceedings. In
case the Trustee or any Securityholder shall have proceeded to enforce any right
under this Indenture and such proceedings shall have been discontinued or
abandoned for any reason, or shall have been determined adversely to the Trustee
or to such Securityholder, then and in every such case the Issuer, the
Securityholder and the Trustee shall, subject to any determination in such
proceeding, be restored severally and respectively to their former positions and
rights hereunder, and all rights, remedies and powers of the Issuer, the Trustee
and the Securityholders shall continue as though no such proceedings had been
taken.
SECTION 4.6 Proceedings by Securityholders. No Holder of any Security
of any series shall have any right by virtue or by availing of any provision of
this Indenture to institute any action or proceeding at law or in equity or in
bankruptcy, moratorium of payments, liquidation or otherwise upon or under or
with respect to this Indenture, or for the appointment of an administrator,
bewindvoerder, receiver, custodian, liquidator, curator, sequestrator, trustee
or other similar officer or for any other remedy hereunder, unless such Holder
previously shall have given to the Trustee written notice of default with
respect to Securities of such series and of the continuance thereof, as
hereinbefore provided, and unless also the Holders of not less than 25% in
aggregate principal amount of the Securities of such series then Outstanding
shall have made written request upon the Trustee to institute such action, suit
or proceedings in its own name as Trustee hereunder and shall have offered to
the Trustee such reasonable indemnity as it may require against the costs,
expenses and liabilities to be incurred therein or thereby and the Trustee for
60 days after its receipt of such notice, request and offer of indemnity shall
have neglected or refused to institute any such action, suit or proceeding and
no direction inconsistent with such written request shall have been given to the
Trustee pursuant to Section 4.8 during such 60 day period; it being understood
and intended, and being expressly covenanted by the taker and Holder of every
Security with every other taker and Holder and the Trustee, that no one or more
Holders of any Securities shall have any right in any manner whatever by virtue
or by availing of any provision of this Indenture to affect, disturb or
prejudice the rights of any other Holder of Securities, or to obtain or seek to
obtain priority over or preference to any other Holder or to enforce any right
under this Indenture, except in the manner herein provided and for the equal,
ratable and common benefit of all Holders of Securities of the applicable
series. For the protection and enforcement of the provisions of this Section,
each and every Securityholder and the Trustee shall be entitled to such relief
as can be given either at law or in equity.
SECTION 4.7 Remedies Cumulative and Continuing. Except as provided in
Section 4.6, no right or remedy herein conferred upon or reserved to the Trustee
or to the Securityholders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
No delay or omission of the Trustee or of any Securityholder to
exercise any right or power accruing upon any Event of Default occurring and
continuing as aforesaid shall impair any such right or power or shall be
construed to be a waiver of any such Event of Default or an acquiescence
therein; and, subject to Section 4.6, every power and remedy given by this
Indenture or by law to the Trustee or to the Securityholders of any or all
series, as the case may be, may be exercised from time to time, and as often as
shall be deemed expedient, by the Trustee or by the Securityholders of such
series or all series, as the case may be.
SECTION 4.8 Control by Securityholders. The Holders of not less than a
majority in aggregate principal amount of the Securities of each series affected
at the time Outstanding (with each such series voting separately as a class)
shall have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred on the Trustee by this Indenture with respect to Securities of
such series. Notwithstanding any of the foregoing, no such direction shall be
otherwise than in accordance with law and the provisions of this Indenture and
(subject to the requirements of the Trust Indenture Act of 1939) the Trustee
shall have the right to decline to follow any such direction if the Trustee,
being advised by counsel, shall determine that the action or proceeding so
directed may not lawfully be taken or would be prejudicial to the Holders of
such Securities not taking part in such direction, or the Holders of the
Securities of any other series, or if the Trustee in good faith by its board of
directors, the executive committee or a trust committee of directors or
Responsible Officers of the Trustee shall determine that the action or
proceedings so directed would involve the Trustee in personal liability.
Nothing in this Indenture shall impair the right of the Trustee in its
discretion to take any action deemed proper by the Trustee and which is not
inconsistent with such direction or directions by Securityholders.
SECTION 4.9 Waiver of Past Defaults. Prior to the declaration of the
acceleration of the maturity of the Securities of any particular series the
Holders of not less than a majority in aggregate principal amount of the
Securities of such particular series at the time Outstanding may on behalf of
the Holders of all the Securities of such particular series waive any past
default or Event of Default with respect to such particular series and its
consequences, except a default in respect of a covenant or provision hereof
which cannot be modified or amended without the consent of the Holder of each
Outstanding Security affected as provided in Section 7.2. In the case of any
such waiver, the Issuer, the Trustee and the Holders of the Securities of each
series affected shall be restored to their former positions and rights
hereunder, respectively; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon.
Upon any such waiver, such default shall cease to exist and be deemed
to have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured, and not to have occurred for every
purpose of this Indenture.
ARTICLE FIVE
CONCERNING THE TRUSTEE
SECTION 5.1 Reliance on Documents, Opinions, etc.; No Requirement for
Expenditure of Own Funds. Subject to the provisions of the Trust Indenture Act
of 1939:
(a) prior to the occurrence of an Event of Default hereunder and after
the curing or waiving of all Events of Default, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, in the absence of bad faith on the part of
the Trustee, upon certificates, notices or opinions conforming to the
requirements of this Indenture; but in the case of any such certificates,
notices or opinions which by any provision hereof are specifically required
to be furnished to the Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not they conform to the
requirements of this Indenture (but need not confirm or investigate the
accuracy of mathematical calculations or other facts stated therein);
(b) any request, direction, order or demand of the Issuer mentioned
herein shall be sufficiently evidenced by an Officers' Certificate (unless
other evidence in respect thereof be herein specifically prescribed); and
any Resolution may be evidenced to the Trustee by a copy thereof certified
by the secretary of the Issuer;
(c) the Trustee may consult with counsel and any advice of such
counsel or Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted to be taken
by it hereunder in good faith and in accordance with such advice or Opinion
of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders pursuant to the provisions of this
Indenture, unless such Securityholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred therein or thereby;
(e) prior to the occurrence of an Event of Default hereunder and after
the curing or waiving of all Events of Default, the Trustee shall not be
bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, bond, direction, note or other paper or document
unless requested in writing so to do by the Holders of not less than a
majority in aggregate principal amount of the Securities of any series
affected then Outstanding; provided that, if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities likely
to be incurred by it in the making of such investigation is, in the opinion
of the Trustee, not reasonably assured to the Trustee by the security
afforded to it by the terms of this Indenture, the Trustee may require
reasonable indemnity against such expenses or liabilities as a condition to
proceeding; and the reasonable expenses of every such investigation shall
be paid by the Issuer or, if paid by the Trustee, shall be repaid by the
Issuer upon demand;
(f) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys not regularly in its employ and the Trustee shall not be
responsible for any misconduct or negligence on the part of any such agent
or attorney appointed with due care by it hereunder; and
(g) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties.
None of the provisions contained in this Indenture shall be construed
as requiring the Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties or in the
exercise of any of its rights or powers if there shall be reasonable grounds for
believing that the repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it. Whether or not therein
expressly so provided, every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee shall be
subject to the requirements of the Trust Indenture Act of 1939.
SECTION 5.2 No Responsibility for Recitals, etc. The recitals
contained herein and in the Securities, except the Trustee's certificates of
authentication, shall be taken as the statements of the Issuer, and the Trustee
assumes no responsibility for the correctness of the same. The Trustee makes no
representation as to the validity or sufficiency of this Indenture or of the
Securities, provided that the Trustee shall not be relieved of its duty to
authenticate Securities only as authorized by this Indenture. The Trustee shall
not be accountable for the use or application by the Issuer of any of the
Securities or of the proceeds thereof.
SECTION 5.3 Trustee and Agents May Hold Securities. The Trustee or any
agent of the Issuer or the Trustee, in its individual or any other capacity, may
become the owner or pledgee of Securities with the same rights it would have if
it were not the Trustee or such agent and, subject to the requirements of the
Trust Indenture Act of 1939, may otherwise deal with the Issuer and receive,
collect, hold and retain collections from the Issuer with the same rights it
would have if it were not the Trustee or such agent.
SECTION 5.4 Moneys to Be Held in Trust. Subject to the provisions of
Sections 9.3 and 9.4, all moneys received by the Trustee or any paying agent,
all money and U.S. Government Obligations deposited with the Trustee pursuant to
Section 9.8 and all money received by the Trustee in respect of U.S. Government
Obligations deposited with the Trustee pursuant to Section 9.8, shall, until
used or applied as herein provided, be held in trust for the purposes for which
they were received, but need not be segregated from other funds except to the
extent required by mandatory provisions of law. Neither the Trustee nor any
paying agent shall be under any liability for interest on any moneys received by
it hereunder, except such as it may agree in writing with the Issuer to pay
thereon. So long as no Event of Default shall have occurred and be continuing,
all interest allowed on any such moneys shall be paid from time to time upon the
written order of the Issuer signed by one of its officers, who is one of the
officers who may sign an Officers' Certificate.
SECTION 5.5 Compensation and Expenses of Trustee. The Issuer covenants
and agrees to pay to the Trustee from time to time, and the Trustee shall be
entitled to, such compensation as shall be agreed to from time to time in
writing by the Issuer and the Trustee (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an express trust)
and, except as otherwise expressly provided, the Issuer will pay or reimburse
the Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by or on behalf of it in accordance with any of the
provisions of this Indenture (including the reasonable compensation and the
expenses and disbursements of its counsel and of all persons not regularly in
its employ) except any such expense, disbursement or advance as may arise from
its negligence or bad faith. The Issuer also covenants to indemnify the Trustee
for, and to hold it harmless against, any and all loss, liability, damage, claim
or expense, including taxes (other than taxes based on the income, gains, wealth
or similar criteria of the Trustee) incurred without negligence or bad faith on
its part, arising out of or in connection with the acceptance or administration
of this Indenture or the trusts hereunder and its duties hereunder, including
the costs and expenses of defending itself against any claim of liability in the
premises. The obligations of the Issuer under this Section to compensate and
indemnify the Trustee and to pay or reimburse the Trustee for expenses,
disbursements and advances shall constitute additional indebtedness hereunder
and shall survive the satisfaction and discharge of this Indenture. Such
additional indebtedness shall be secured by a lien prior to that of the
Securities upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the benefit of the Holders of particular
Securities.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 4.1(f), (g), (h) or (i), the
expenses (including the reasonable fees and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable bankruptcy, insolvency, reorganization or
other similar laws.
SECTION 5.6 Right of Trustee to Rely on Officers' Certificate, etc.
Subject to the requirements of the Trust Indenture Act of 1939, whenever in the
administration of the trusts of this Indenture the Trustee shall deem it
necessary or desirable that a matter be proved or established prior to taking or
suffering or omitting any action to be taken hereunder, such matter (unless
other evidence in respect thereof be herein specifically prescribed) may, in the
absence of negligence or bad faith on the part of the Trustee, be deemed to be
conclusively proved and established by an Officers' Certificate delivered to the
Trustee, and such certificate, in the absence of negligence or bad faith on the
part of the Trustee, shall be full warrant to the Trustee for any action taken,
suffered or omitted by it under the provisions of this Indenture upon the faith
thereof.
SECTION 5.7 Eligibility of Trustee. The Trustee for each series of
Securities hereunder shall at all times be a corporation which complies with the
requirements of the Trust Indenture Act of 1939, having a combined capital and
surplus of at least U.S.$50,000,000. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such corporation at any time shall
be deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time the Trustee shall cease to
be eligible in accordance with the provisions of this Section, the Trustee shall
resign immediately in the manner and with the effect specified in Section 5.8.
SECTION 5.8 Resignation or Removal of Trustee; Appointment of
Successor Trustee. (a) The Trustee, or any trustee or trustees hereafter
appointed, may at any time resign with respect to one or more or all series of
Securities by giving written notice of resignation to the Issuer. Upon receiving
such notice of resignation, the Issuer shall promptly appoint a successor
trustee or trustees with respect to the applicable series by written instrument
in duplicate, executed by authority of the Executive Board, one copy of which
instrument shall be delivered to the resigning Trustee and one copy to the
successor trustee or trustees. If no successor trustee shall have been so
appointed with respect to any series and have accepted appointment within 30
days after the mailing of such notice of resignation, the resigning trustee may
petition any court of competent jurisdiction for the appointment of a successor
trustee, or any Securityholder who has been a bona fide Holder of a Security or
Securities of the applicable series for at least six months may, subject to the
requirements of the Trust Indenture Act of 1939, on behalf of himself and all
others similarly situated, petition any such court for the appointment of a
successor trustee. Such court may thereupon, after such notice, if any, as it
may deem proper and prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall cease to be eligible in accordance with the
provisions of Section 5.7 with respect to any series of Securities and
shall fail to resign after written request therefor by the Issuer or
by any Securityholder; or
(ii) the Trustee shall become incapable of acting with respect to
any series of Securities, or shall be adjudged a bankrupt or
insolvent, or a receiver or liquidator of the Trustee or of its
property shall be appointed, or any public officer shall take charge
or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation;
then, in any such case, the Issuer by Resolution may remove the Trustee with
respect to the applicable series of Securities (or all series, if required) and
appoint a successor trustee for such series by written instrument, in duplicate,
executed by authority of the Executive Board, one copy of which instrument shall
be delivered to the Trustee so removed and one copy to the successor trustee,
or, subject to the requirements of the Trust Indenture Act of 1939, any
Securityholder who has been a bona fide Holder of a Security or Securities of
such series for at least six months may on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor trustee with respect to such
series. Such court may thereupon, after such notice, if any, as it may deem
proper and prescribe, remove the Trustee and appoint a successor trustee with
respect to such series.
(c) The Holders of a majority in aggregate principal amount of the
Securities of any series at the time Outstanding may at any time remove the
Trustee with respect to Securities of such series and appoint a successor
trustee with respect to the Securities of such series by delivering to the
Trustee so removed, to the successor trustee so appointed and to the Issuer the
evidence provided for in Section 6.1 of the action in that regard taken by the
Securityholders.
(d) Any resignation or removal of the Trustee with respect to any
series and any appointment of a successor trustee with respect to such series
pursuant to any of the provisions of this Section 5.8 shall become effective
upon acceptance of appointment by the successor trustee as provided in Section
5.9.
SECTION 5.9 Acceptance of Appointment by Successor Trustee. Any
successor trustee appointed as provided in Section 5.8 shall execute,
acknowledge and deliver to the Issuer and to its predecessor Trustee an
instrument accepting such appointment hereunder, and thereupon the resignation
or removal of the predecessor Trustee with respect to all or any applicable
series shall become effective and such successor trustee, without any further
act, deed or conveyance, shall become vested with all rights, powers, duties and
obligations with respect to such series of its predecessor hereunder, with like
effect as if originally named as trustee for such series hereunder; but,
nevertheless, on the written request of the Issuer or of the successor trustee,
upon payment (or due provision therefor) of any amounts then due it pursuant to
Section 5.5, the predecessor Trustee ceasing to act shall, subject to Section
9.4, pay over to the successor trustee all moneys at the time held by it
hereunder and shall execute and deliver an instrument transferring to such
successor trustee all such rights, powers, duties and obligations. Upon request
of any such successor trustee, the Issuer shall execute any and all instruments
in writing for more fully and certainly vesting in and confirming to such
successor trustee all such rights and powers. Any trustee ceasing to act shall,
nevertheless, retain a lien upon all property or funds held or collected by such
trustee to secure any amounts then due it pursuant to the provisions of Section
5.5.
If a successor trustee is appointed with respect to the Securities of
one or more (but not all) series, the Issuer, the predecessor Trustee and each
successor trustee with respect to the Securities of any applicable series shall
execute and deliver an indenture supplemental hereto which shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of the predecessor Trustee with respect to the
Securities of any series as to which the predecessor Trustee is not retiring
shall continue to be vested in the predecessor Trustee, and shall add to or
change any of the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by more than one
trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such trustees co-trustees of the same trust and that
each such trustee shall be trustee of a trust or trusts hereunder separate and
apart from any trust or trusts hereunder administered by any other such trustee.
No successor trustee with respect to any series of Securities shall
accept appointment as provided in this Section 5.9 unless at the time of such
acceptance such successor trustee shall, with respect to such series, be
qualified under the provisions of the Trust Indenture Act of 1939 and eligible
under the provisions of Section 5.7.
Upon acceptance of appointment by any successor trustee as provided in
this Section 5.9, the Issuer shall mail notice thereof to the Holders of
Securities of any series for which such successor trustee is acting as trustee
at their last addresses as they shall appear in the Register. If the Issuer
fails to mail such notice within ten days after acceptance of appointment by the
successor trustee, the successor trustee shall cause such notice to be mailed at
the Issuer's expense.
SECTION 5.10 Merger, Conversion, Consolidation or Succession to
Business of Trustee. Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided, that such
corporation shall be qualified under the provisions of the Trust Indenture Act
of 1939 and eligible under the provisions of Section 5.7, without the execution
or filing of any paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Securities of any series shall have
been authenticated but not delivered, any such successor to the Trustee by
merger, conversion or consolidation may adopt the certificate of authentication
of any predecessor Trustee and deliver such Securities so authenticated; and, in
case at that time any of the Securities of any series shall not have been
authenticated, any successor to the Trustee may authenticate such Securities
either in the name of such successor to the Trustee or, if such successor to the
Trustee is a successor by merger, conversion or consolidation, in the name of
any predecessor hereunder; and in all such cases such certificate shall have the
full force which the certificate of the Trustee shall have as provided anywhere
in the Securities of such series or in this Indenture.
SECTION 5.11 Reports by Trustee to Securityholders. Within 60 days
after March 15 in each year, beginning with the March 15 following the date of
this Indenture, the Trustee shall mail to the Securityholders a brief report
dated as of such reporting date in compliance with ss. 313(a) of the Trust
Indenture Act of 1939. The Trustee also shall comply with ss. 313(b) of the
Trust Indenture Act of 1939. The Trustee shall also transmit by mail all reports
as required by ss. 313(c) of the Trust Indenture Act of 1939. The Issuer shall
promptly notify the Trustee when the Securities are listed on any stock
exchange.
ARTICLE SIX
CONCERNING THE SECURITYHOLDERS
SECTION 6.1 Action by Securityholders. Whenever in this Indenture it
is provided that the Holders of a specified percentage in aggregate principal
amount of the Securities of any or all series may take any action (including the
making of any demand or request, the giving of any notice, consent or waiver or
the taking of any other action) the fact that at the time of taking any such
action the Holders of such specified percentage have joined therein may be
evidenced (a) by any instrument or any number of instruments of similar tenor
executed by such Securityholders in person or by agent or proxy appointed in
writing, or (b) by the record of such Holders of Securities voting in favor
thereof at any meeting of such Securityholders duly called and held in
accordance with the provisions of this Article, or (c) by a combination of such
instrument or instruments and any such record of such a meeting of such
Securityholders; and, except as herein otherwise expressly provided, such action
shall become effective when such instrument or instruments and/or such record
are delivered to the Trustee. Proof of execution of any instrument or of a
writing appointing any such agent or proxy shall be sufficient for any purpose
of this Indenture and (subject to the requirements of the Trust Indenture Act of
1939 and Section 5.1) conclusive in favor of the Trustee and the Issuer, if made
in the manner provided in this Article.
In determining whether the Holders of the requisite principal amount
of Outstanding Securities of any or all series have taken any action (including
the making of any demand or request), the giving of any notice, consent or
waiver (or the taking of any other action) hereunder and in determining voting
rights of any Holder of a Security hereunder (i) the principal amount of
Original Issue Discount Securities that shall be deemed to be Outstanding for
such purposes shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon a declaration of acceleration
of the maturity thereof pursuant to Section 4.1, (ii) in the case of Securities
which provide that an amount other than the face amount thereof will or may be
payable upon the maturity thereof or upon a declaration of acceleration of the
maturity thereof, the principal amount of such Securities that shall be deemed
to be Outstanding for such purposes shall be the amount that would be due and
payable in respect of such Securities as of the date of such determination upon
a declaration of acceleration of the maturity thereof pursuant to Section 4.1,
and (iii) the principal amount of any Security, the principal amount of which is
denominated in a currency other than U.S. dollars or in units of currencies or
in a composite currency (the "Specified Currency") shall be deemed to be that
amount of U.S. dollars which could have been obtained by the face amount of such
Specified Currency at the Market Exchange Rate. For purposes of this Section
6.1, "Market Exchange Rate" means, unless otherwise specified for a Specified
Currency with respect to any series of the Notes pursuant to Section 2.5, the
noon U.S. dollar buying rate in New York City for cable transfers of the
Specified Currency published by the Federal Reserve Bank of New York.
All decisions and determinations of the Trustee regarding the Market
Exchange Rate or any alternative determination provided for in the preceding
paragraph shall be in its sole discretion and shall, in the absence of manifest
error, be conclusive to the extent permitted by law for all purposes and
irrevocably binding upon the Issuer and all Securityholders.
If the Issuer shall solicit from the Securityholders any demand,
request, notice, consent, waiver or the taking of any other action (other than
in accordance with the Securityholders voting provisions set forth in Sections
6.6 through 6.14 of this Article), the Issuer may, at its option, by a
Resolution, fix in advance a record date for the determination of Holders
entitled to give such demand, request, notice, consent or waiver or to take such
other action, but the Issuer shall have no obligation to do so. If such a record
date is fixed, such demand, request, notice, consent, waiver or such other
action may be given before or after the record date, but only the
Securityholders of record at the close of business on the record date shall be
deemed to be Holders for the purposes of determining whether Holders of the
requisite percentage of Securities Outstanding have authorized or agreed or
consented to such demand, request, notice, consent, waiver or taking of any
other action, and for that purpose the Securities Outstanding shall be computed
as of the record date; provided, that no such demand, request, notice, consent,
waiver or taking of any other action by the Holders on the record date shall be
deemed effective unless it shall become effective pursuant to the provisions of
this Indenture not later than six months after the record date.
SECTION 6.2 Proof of Execution by Securityholders. Subject to the
requirements of the Trust Indenture Act of 1939 and Sections 5.1 and 6.11, proof
of the execution of any instrument by a Securityholder or his agent or proxy
shall be sufficient if made in accordance with such reasonable rules and
regulations as is necessary or as may be prescribed by the Trustee or in such
manner as shall be satisfactory to the Trustee. The ownership of Securities
shall be proved by the Register or by a certificate of the person designated by
the Issuer to keep the Register and to act as repository in accordance with the
provisions of Section 2.10.
The record of any Securityholders' meeting shall be proved in the
manner provided in Section 6.12.
SECTION 6.3 Holders to Be Treated as Owners. The Issuer, the Trustee
and any agent of the Issuer or the Trustee may deem and treat the person in
whose name any Security shall be registered in the Register for such series as
the absolute owner of such Security (whether or not such Security shall be
overdue and notwithstanding any notation of ownership or other writing thereon)
for the purpose of receiving payment of or on account of the principal of and,
subject to the provisions of this Indenture, interest, if any, on such Security
and for all other purposes; and none of the Issuer, the Trustee or any agent of
the Issuer or the Trustee shall be affected by any notice to the contrary. All
such payments so made to any such person, or upon his order, shall be valid,
and, to the extent of the sum or sums so paid, effectual to satisfy and
discharge the liability for moneys payable upon any such Security.
SECTION 6.4 Securities Owned by Issuer Deemed Not Outstanding. In
determining whether the Holders of the requisite aggregate principal amount of
Outstanding Securities of any or all series have concurred in any demand,
request, notice, direction, consent or waiver under this Indenture, Securities
which are owned by the Issuer or any other obligor on the Securities with
respect to which such determination is being made or by any person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Issuer or any other obligor on the Securities with respect to
which such determination is being made shall be disregarded and deemed not to be
Outstanding for the purpose of any such determination, except that for the
purpose of determining whether the Trustee shall be protected in relying on any
such demand, request, notice, direction, consent or waiver only Securities which
the Trustee actually knows are so owned shall be so disregarded. Securities so
owned which have been pledged in good faith may be regarded as Outstanding for
purposes of this Section 6.4 if the pledgee establishes to the satisfaction of
the Trustee the pledgee's right so to act with respect to such Securities and
that the pledgee is not the Issuer or any other obligor upon the Securities or
any person directly or indirectly controlling or controlled by or under direct
or indirect common control with the Issuer or any other obligor on the
Securities. In case of a dispute as to such right, the advice of counsel shall
be full protection in respect of any decision made by the Trustee in accordance
with such advice. Upon request of the Trustee, the Issuer shall furnish to the
Trustee promptly an Officers' Certificate listing and identifying all
Securities, if any, known by the Issuer to be owned or held by or for the
account of any of the above-described persons; and, subject to the requirements
of the Trust Indenture Act of 1939 and Section 5.1, the Trustee shall, in the
absence of manifest error, accept such Officers' Certificate as conclusive
evidence of the facts therein set forth and of the fact that all Securities not
listed therein are Outstanding for the purpose of any such determination.
SECTION 6.5 Right of Revocation of Action Taken. At any time prior to
(but not after) the evidencing to the Trustee, as provided in Section 6.1, of
the taking of any action by the Holders of the percentage in aggregate principal
amount of the Securities of any or all series, as the case may be, specified in
this Indenture in connection with such action, any Holder of a Security the
serial number or other distinguishing symbol of which is shown by the evidence
to be included among the serial numbers or other distinguishing symbols of the
Securities the Holders of which have consented to such action may, by filing
written notice at the Corporate Trust Office and upon proof of holding as
provided in this Article, revoke such action so far as concerns such Security.
Except as aforesaid any such action taken by the Holder of any Security shall be
conclusive and binding upon such Holder and upon all future Holders and owners
of such Security and of any Securities issued in exchange or substitution
therefor, irrespective of whether or not any notation in regard thereto is made
upon any such Security. Any action taken by the Holders of the percentage in
aggregate principal amount of the Securities of any or all series, as the case
may be, specified in this Indenture in connection with such action shall be
conclusively binding upon the Issuer, the Trustee and the Holders of all the
Securities affected by such action.
SECTION 6.6 Securityholders' Meetings; Purposes. A meeting of Holders
of Securities of any series or all series, as the case may be, may be called at
any time and from time to time pursuant to the provisions of this Article Six
for any of the following purposes:
(1) to give any notice to the Issuer or to the Trustee, or to
give any directions to the Trustee, or to consent to the waiving of
any default or Event of Default hereunder and its consequences, or to
take any other action authorized to be taken by Securityholders
pursuant to any of the provisions of Article Four;
(2) to remove the Trustee and nominate a successor trustee
pursuant to the provisions of Article Five;
(3) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 7.2; or
(4) to take any other action authorized to be taken by or on
behalf of the Holders of any specified aggregate principal amount of
the Securities of any series or all series, as the case may be, under
any other provision of this Indenture or under applicable law.
SECTION 6.7 Call of Meetings by Trustee. The Trustee may at any time
call a meeting of Holders of Securities of any series or all series, as the case
may be, to take any action specified in Section 6.6, to be held at such time and
at such place in the Borough of Manhattan, The City of New York, or other
location, as the Trustee shall determine. Notice of every meeting of the Holders
of Securities of any series or all series, as the case may be, setting forth the
time and the place of such meeting and in general terms the action proposed to
be taken at such meeting, shall be mailed to Holders of Outstanding Securities
of each series affected at their addresses as they shall appear in the Register
as of a date not more than 15 days prior to the mailing of such notice. Such
notice shall be mailed not less than 20 nor more than 90 days prior to the date
fixed for the meeting.
Any meeting of the Holders of Securities of any series or all series,
as the case may be, shall be valid without notice if the Holders of all
Securities of any series then Outstanding are present in person or by proxy, or,
if notice is waived before or after the meeting by the Holders of all Securities
of any series outstanding, and if the Issuer and the Trustee are either present
by duly authorized representatives or have, before or after the meeting waived
notice.
SECTION 6.8 Call of Meetings by Issuer or Securityholders. In case at
any time the Issuer, pursuant to a Resolution, or the Holders of at least 10% in
aggregate principal amount of the Securities then Outstanding of any or all
series, as the case may be, shall have requested the Trustee to call a meeting
of the Holders of Securities of such series or all series, as the case may be,
by written request setting forth in reasonable detail the action proposed to be
taken at the meeting, and the Trustee shall not have mailed the notice of such
meeting within 20 days after receipt of such request, then the Issuer or such
Securityholders, in the amount specified above, may determine the time and the
place in said Borough of Manhattan for such meeting and may call such meeting to
take any action authorized in Section 6.6, by mailing notice thereof as provided
in Section 6.7.
SECTION 6.9 Qualifications for Voting. To be entitled to vote at any
meeting of Securityholders a person shall (a) be a Holder of one or more
Securities with respect to which such meeting is being held or (b) be a person
appointed by an instrument in writing as proxy by a Holder of one or more such
Securities. The only persons who shall be entitled to be present or to speak at
any meeting of Securityholders shall be the persons entitled to vote at such
meeting and their counsel and any representatives of the Trustee and its counsel
and any representatives of the Issuer and its counsel.
SECTION 6.10 Quorum; Adjourned Meetings. The persons entitled to vote
a majority in aggregate principal amount of the Securities of the relevant
series at the time Outstanding shall constitute a quorum for the transaction of
all business specified in Section 6.6. No business shall be transacted in the
absence of a quorum (determined as provided in this Section 6.10). In the
absence of a quorum within 30 minutes after the time appointed for any such
meeting, the meeting shall, if convened at the request of the Holders of
Securities (as provided in Section 6.8), be dissolved. In any other case the
meeting shall be adjourned for a period of not less than ten days as determined
by the chairman of the meeting. In the absence of a quorum at any such adjourned
meeting, such adjourned meeting shall be further adjourned for a period of not
less than ten days as determined by the chairman of the meeting. Notice of the
reconvening of any adjourned meeting shall be given as provided in Section 6.7,
except that such notice must be mailed not less than five days prior to the date
on which the meeting is scheduled to be reconvened.
Any Holder of a Security who has executed in person or by proxy and
delivered to the Trustee an instrument in writing complying with the provisions
of Section 6.2 shall be deemed to be present for the purposes of determining a
quorum and be deemed to have voted; provided, that such Holder of a Security
shall be considered as present or voting only with respect to the matters
covered by such instrument in writing.
SECTION 6.11 Regulations. Notwithstanding any other provisions of this
Indenture, the Trustee may make such reasonable regulations as is necessary or
as it may deem advisable for any meeting of Securityholders, in regard to proof
of the holding of Securities and of the appointment of proxies, and in regard to
the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as is necessary or
as it shall determine.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the Issuer
or by Securityholders as provided in Section 6.8, in which case the Issuer or
the Securityholders calling the meeting, as the case may be, shall in like
manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by the vote of the Holders of a
majority of the principal amount of the Outstanding Securities present at the
meeting.
Subject to the provisions of Section 6.4, at any meeting each Holder
of Securities with respect to which such meeting is being held or proxy shall be
entitled to one vote for each U.S.$1,000 (or if any Securities are denominated
in a currency other than U.S. dollars or in units of currencies or in a
composite currency, the equivalent of U.S.$1,000 in the applicable currency,
units of currencies or composite currency calculated using the market Exchange
Rate) principal amount (or in the case of Original Issue Discount Securities or,
in the case of Securities which provide that an amount other than the face
amount thereof will or may be payable upon the maturity thereof or upon a
declaration of acceleration of the maturity thereof, such principal amount to be
determined as provided in the definition of "Outstanding" in Section 1.1) of
such Securities held or represented by him; provided, however, that no vote
shall be cast or counted at any meeting in respect of any such Security
challenged as not Outstanding and ruled by the chairman of the meeting to be not
Outstanding. The chairman of the meeting shall have no right to vote other than
by virtue of such Securities held by him or instruments in writing as aforesaid
duly designating him as the person to vote on behalf of other such
Securityholders. Any meeting of Holders of Securities with respect to which a
meeting was duly called pursuant to the provisions of Section 6.7 or 6.8 may be
adjourned from time to time by the Holders of a majority of the principal amount
of the Outstanding Securities present, whether or not constituting a quorum, and
the meeting may be held as so adjourned without further notice.
SECTION 6.12 Voting. The vote upon any resolution submitted to any
meeting of Holders of Securities with respect to which such meeting is being
held shall be by written ballots on which shall be subscribed the signatures of
such Holders of Securities or of their representatives by proxy and the
principal amount (in the case of Original Issue Discount Securities or, in the
case of Securities which provide that an amount other than the face amount
thereof will or may be payable upon the maturity thereof or upon a declaration
of acceleration of the maturity thereof, such principal amount to be determined
as provided in the definition of "Outstanding" in Section 1.1) and number or
numbers or other distinguishing symbol or symbols of such Securities held or
represented by them. The permanent chairman of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the meeting for or against
any resolution and who shall make and file with the secretary of the meeting
their verified written reports in duplicate of all votes cast at the meeting. A
record in duplicate of the proceedings of each meeting of Securityholders shall
be prepared by the secretary of the meeting and there shall be attached to said
record the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more persons having knowledge of the
facts setting forth a copy of the notice of the meeting and showing that said
notice was mailed as provided in Section 6.7. The record shall show the
principal amount of the Securities (in the case of Original Issue Discount
Securities or, in the case of Securities which provide that an amount other than
the face amount thereof will or may be payable upon the maturity thereof or upon
a declaration of acceleration of the maturity thereof, such principal amount to
be determined as provided in the definition of "Outstanding" in Section 1.1)
voting in favor of or against any resolution. The record shall be signed and
verified by the affidavits of the permanent chairman and secretary of the
meeting and one of the duplicates shall be delivered to the Issuer and the other
to the Trustee to be preserved by the Trustee, the latter to have attached
thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
SECTION 6.13 No Delay of Rights by Meeting. Nothing in this Article
Six shall be deemed or construed to authorize or permit, by reason of any call
of a meeting of Securityholders of any or all series or any rights expressly or
impliedly conferred hereunder to make such call, any hindrance or delay in the
exercise of any right or rights conferred upon or reserved to the Trustee or to
the Securityholders of any or all such series under any of the provisions of
this Indenture or of the Securities.
SECTION 6.14 Written Consent in Lieu of Meeting. The written
authorization or consent by the Holders of the requisite percentage in aggregate
principal amount of Outstanding Securities of one or more series herein
provided, entitled to vote at any such meeting, evidenced as provided in Section
6.1 and filed with the Trustee, shall be effective in lieu of a meeting of the
Holders of Securities of such series, with respect to any matter provided for in
this Article Six.
ARTICLE SEVEN
SUPPLEMENTAL INDENTURES
SECTION 7.1 Supplemental Indentures Without Consent of
Securityholders. The Issuer, when authorized by, or pursuant to a Resolution,
and the Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto (which shall conform to the provisions of the
Trust Indenture Act of 1939 as in force at the date of the execution thereof)
for one or more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the
Trustee as security for the Securities of one or more series any
property or assets;
(b) to evidence the succession of another entity to the Issuer,
or successive successions, and the assumption by the successor entity
of the covenants, agreements, rights and obligations of the Issuer
pursuant to Article Eight;
(c) to add to the covenants of the Issuer such further covenants,
restrictions, conditions or provisions as the Issuer shall consider to
be for the benefit of the Holders of one or more series of Securities
(and if such covenants, restrictions, conditions or provisions are to
be for the benefit of less than all series of Securities, stating that
such covenants, restrictions, conditions or provisions are expressly
being included solely for the benefit of such series) or to surrender
any right or power herein conferred upon the Issuer;
(d) to add additional Events of Default and to provide with
respect thereto for any particular periods of grace after default
(which may be shorter or longer than that allowed in the case of other
defaults) or for immediate enforcement upon such default or for any
limitation of the remedies available to the Trustee upon such default;
(e) to provide for the issuance under this Indenture of
Securities in bearer form (including Securities registrable as to
principal only) with or without interest coupons and to provide for
exchangeability of such Securities with the Securities of the same
series or tranche, as the case may be, issued hereunder in fully
registered form and to make all appropriate changes for such purpose;
(f) to cure any ambiguity or to correct or supplement any
provision contained herein, in the Securities of any series or in any
supplemental indenture which may be defective or inconsistent with any
other provision contained herein or in any supplemental indenture; or
to change or eliminate any provision or to make such other provisions
in regard to matters or questions arising under this Indenture or
under any supplemental indenture as the Issuer may deem necessary or
desirable and which shall not adversely affect the interests of the
Holders of the Securities at the time Outstanding;
(g) to establish the form or terms of Securities of any series as
permitted by Sections 2.1 and 2.5; or
(h) to evidence and provide for the acceptance of appointment
hereunder by a successor trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one trustee,
pursuant to the requirements of Section 5.9.
Upon the request of the Issuer, accompanied by a copy of a Resolution
certified by the secretary of the Issuer authorizing the execution of any such
supplemental indenture, the Trustee shall join with the Issuer in the execution
of any such supplemental indenture, to make any further appropriate agreements
and stipulations which may be therein contained and to accept the conveyance,
transfer, assignment, mortgage or pledge of any property thereunder, but the
Trustee shall not be obligated to (but may in its discretion) enter into any
such supplemental indenture which adversely affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this
Section may be executed by the Issuer and the Trustee without the consent of the
Holders of any of the Securities at the time Outstanding, notwithstanding any of
the provisions of Section 7.2.
SECTION 7.2 Supplemental Indentures With Consent of Securityholders.
With the consent (evidenced as provided in Article Six) of the Holders of not
less than a majority in aggregate principal amount of the Securities of all
series affected by such supplemental indenture (all such series voting as a
single class) at the time Outstanding, the Issuer, when authorized by, or
pursuant to a Resolution, and the Trustee may, from time to time and at any
time, enter into an indenture or indentures supplemental hereto (which shall
conform to the provisions of the Trust Indenture Act of 1939 as in force at the
date of execution thereof) for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or
of any supplemental indenture or of modifying in any manner the rights and
obligations of the Issuer or the rights of the Holders of the Securities of all
such series; provided, that no such supplemental indenture shall (a) extend the
fixed maturity of any Security, or reduce the principal amount thereof, or
reduce the rate or extend the time of payment of interest thereon, or reduce any
Additional Amount payable thereon, or reduce any amount payable on redemption or
reduce the Overdue Rate thereof or make the principal thereof or interest
thereon payable in any coin or currency other than that provided in the Security
or reduce the amount of the principal of an Original Issue Discount Security (or
a Security that provides that an amount other than the face amount thereof will
or may be payable upon a declaration of acceleration of the maturity thereof)
that would be due and payable upon an acceleration of the maturity thereof
pursuant to Section 4.1 or the amount thereof provable in any action or
proceeding pursuant to Section 4.2, or impair, if the Securities provide
therefor, any right of repayment at the option of the Securityholder, or alter
adversely or eliminate the right, if any, of a Holder of a Security to convert
the same into Shares at the Conversion Price set forth therein or upon the terms
provided in this Indenture, or impair the right to institute suit for the
enforcement of any such payment on or after the maturity thereof (or, in case of
redemption, on or after the redemption date), or for the enforcement of the
conversion of any Security that is convertible at the option of a Holder thereof
into Shares without the consent of the Holder of each Security so affected, or
(b) reduce the aforesaid percentage of Securities the consent of the Holders of
which is required for any such supplemental indenture, without the consent of
the Holders of each Security so affected.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Securityholders of such series with respect to such covenant
or provision, shall be deemed not to affect the rights under this Indenture of
the Securityholders of any other series. The preceding sentence shall not,
however, raise any inference as to whether or not a particular series is
affected by any supplemental indenture not referred to in such sentence.
Upon the request of the Issuer, accompanied by a copy of a Resolution
certified by the secretary of the Issuer authorizing the execution of any such
supplemental indenture, and upon the filing with the Trustee of evidence of the
consent of Securityholders as aforesaid and other documents, if any, required by
Section 6.1, the Trustee shall join with the Issuer in the execution of such
supplemental indenture unless such supplemental indenture adversely affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise, in
which case the Trustee may in its discretion, but shall not be obligated to,
enter into such supplemental indenture.
It shall not be necessary for the consent of the Securityholders under
this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution by the Issuer and the Trustee of any
supplemental indenture pursuant to the provisions of this Section 7.2, the
Issuer shall mail a notice thereof to the Holders of Securities of each series
affected thereby at their addresses as they shall appear in the Register,
setting forth in general terms the substance of such supplemental indenture. Any
failure of the Issuer to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such supplemental
indenture.
SECTION 7.3 Effect of Supplemental Indenture. Upon the execution of
any supplemental indenture pursuant to the provisions hereof, this Indenture
shall be and be deemed to be modified and amended in accordance therewith and
the respective rights, limitations of rights, obligations, duties and immunities
under this Indenture of the Trustee, the Issuer and the Holders of Securities of
each series affected thereby shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications and amendments,
and all the terms and conditions of any such supplemental indenture shall be and
be deemed to be part of the terms and conditions of this Indenture for any and
all purposes.
SECTION 7.4 Certain Documents to Be Given to Trustee. The Trustee,
subject to the requirements of the Trust Indenture Act of 1939 and Section 5.1,
may receive an Officers' Certificate and an Opinion of Counsel as conclusive
evidence that any supplemental indenture executed pursuant to this Article Seven
complies with the requirements of this Article Seven.
SECTION 7.5 Notation on Securities. Securities of any series
authenticated and delivered after the execution of any supplemental indenture
pursuant to the provisions of this Article Seven may bear a notation in form
approved by the Trustee for such series as to any matter provided for by such
supplemental indenture or as to any action taken at any such meeting. If the
Issuer or the Trustee shall so determine, new Securities of any series so
modified as to conform, in the opinion of the Trustee and the Issuer, to any
modification of this Indenture contained in any such supplemental indenture may
be prepared and executed by the Issuer, authenticated by the Trustee and
delivered in exchange for the Securities of such series then Outstanding.
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
SECTION 8.1 Issuer May Consolidate, etc., on Certain Terms. Nothing
contained in this Indenture or in any of the Securities shall prevent any
consolidation or merger of the Issuer with or into any other entity or entities
(whether or not affiliated with the Issuer), or successive consolidations or
mergers in which the Issuer or its successor or successors shall be a party or
parties, or shall prevent any sale, conveyance or lease of all or substantially
all the property of the Issuer, to any other entity (whether or not affiliated
with the Issuer) authorized to acquire and operate the same; provided, however,
and the Issuer hereby covenants and agrees, that upon any such consolidation,
merger, sale, conveyance or lease, (i) the due and punctual payment of the
principal of and interest, if any, on all of the Securities, according to their
tenor, and the due and punctual performance and observance of all of the
covenants and conditions of this Indenture to be performed by the Issuer
(including, without limitation, the terms, covenants and conditions contained in
Section 11.6), shall be expressly assumed, by supplemental indenture
satisfactory in form to the Trustee, executed and delivered to the Trustee by
the entity (if other than the Issuer) formed by such consolidation, or into
which the Issuer shall have been merged, or by the entity which shall have
acquired or leased such property and (ii) the Issuer or such successor entity,
as the case may be, shall not, immediately after such merger or consolidation,
or such sale, conveyance or lease, be in default in the performance of any such
covenant or condition.
SECTION 8.2 Successor Entity to Be Substituted. In case of any
consolidation, merger, sale, conveyance or lease referred to in Section 8.1 and
upon the assumption by the successor entity, by supplemental indenture, executed
and delivered to the Trustee and satisfactory in form to the Trustee, of the due
and punctual payment of the principal of and interest, if any, on all of the
Securities and the due and punctual performance of all of the covenants and
conditions of this Indenture to be performed by the Issuer, such successor
entity shall succeed to and be substituted for the Issuer, with the same effect
as if it had been named herein as the party of the first part. Such successor
entity thereupon may cause to be signed, and may issue in its own name any or
all of the Securities issuable hereunder which theretofore shall not have been
signed by the Issuer and delivered to the Trustee; and, upon the order of such
successor entity instead of the Issuer and subject to all the terms, conditions
and limitations in this Indenture prescribed, the Trustee shall authenticate and
shall deliver any Securities which previously shall have been signed and
delivered by the officers of the Issuer to the Trustee for authentication, and
any Securities which such successor entity thereafter shall cause to be signed
and delivered to the Trustee for that purpose. All the Securities of any series
so issued shall in all respects have the same legal rank and benefit under this
Indenture as the Securities of the same series theretofore or thereafter issued
in accordance with the terms of this Indenture as though all of such Securities
had been issued at the date of the execution hereof. In the event of any such
sale or conveyance, but not any such lease, the Issuer or any successor entity
which shall theretofore have become such in the manner described in this Article
Eight shall be discharged from all obligations and covenants under this
Indenture and the Securities and may be dissolved and liquidated.
In case of any such consolidation, merger, sale, conveyance or lease,
such changes in phraseology and form (but not in substance) may be made in the
Securities thereafter to be issued as may be appropriate.
SECTION 8.3 Opinion of Counsel and Officers' Certificate to Be Given
to Trustee. The Trustee, subject to the requirements of the Trust Indenture Act
of 1939 and Section 5.1, may receive an Opinion of Counsel and Officers'
Certificate as conclusive evidence that any such consolidation, merger, sale,
conveyance or lease and any such assumption complies with the provisions of this
Article Eight.
ARTICLE NINE
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 9.1 Satisfaction and Discharge of Indenture. If at any time
(a) the Issuer shall have paid or caused to be paid the principal of and
interest on all the Securities of any particular series Outstanding hereunder
(other than Securities which have been mutilated, defaced, destroyed, lost or
stolen and which have been replaced or paid as provided in Section 2.11 or in
lieu of or in substitution for which other Securities shall have been
authenticated and delivered) as and when the same shall have become due and
payable, or (b) the Issuer shall have delivered to the Trustee for cancellation
all Securities of such series theretofore authenticated (other than any
Securities of such series which shall have been mutilated, defaced, destroyed,
lost or stolen and which shall have been replaced or paid as provided in Section
2.11 or in lieu of or in substitution for which other Securities shall have been
authenticated and delivered) and not theretofore canceled, or (c)(i) all the
Securities of such series not theretofore canceled or delivered to the Trustee
for cancellation shall have become due and payable, or are by their terms to
become due and payable within one year or are to be called for redemption within
one year under arrangements satisfactory to the Trustee for the giving of notice
of redemption, and (ii) the Issuer shall have irrevocably deposited or caused to
be deposited with the Trustee as trust funds the entire amount in cash (other
than moneys repaid by the Trustee or any paying agent to the Issuer in
accordance with Section 9.4) sufficient to pay at maturity or upon redemption
all Securities of such series not theretofore delivered to the Trustee for
cancellation (other than any Securities of such series which shall have been
mutilated, defaced, destroyed, lost or stolen which have been replaced or paid
as provided in Section 2.11 or in lieu of or in substitution for which other
Securities shall have been authenticated and delivered), including principal and
interest, if any, due or to become due to such date of maturity or the date
fixed for redemption, as the case may be, and if, in any such case, the Issuer
shall also pay or cause to be paid all other sums payable hereunder by the
Issuer with respect to Securities of such series, then this Indenture shall
cease to be of further effect with respect to Securities of such series (except
as to (i) rights of registration of transfer and exchange, and the Issuer's
right of optional redemption, (ii) substitution of mutilated, defaced,
destroyed, lost or stolen Securities, (iii) rights of Securityholders to receive
payments of principal thereof and interest, if any, thereon, and remaining
rights of the Securityholders to receive mandatory sinking fund payments, if
any, (iv) the rights, obligations and immunities of the Trustee hereunder,
including its rights under Section 5.5, (v) rights of conversion, if any, and
(vi) the rights of the Securityholders of such series as beneficiaries hereof
with respect to the property so deposited with the Trustee payable to all or any
of them), and the Trustee, on demand of the Issuer accompanied by an Officers'
Certificate and an Opinion of Counsel and at the cost and expense of the Issuer,
shall execute proper instruments acknowledging such satisfaction of and
discharging this Indenture with respect to such series.
SECTION 9.2 Application by Trustee of Funds Deposited for Payment of
Securities. Subject to Section 9.4, all moneys deposited with the Trustee
pursuant to Section 9.1 shall be held in trust and applied by it to the payment,
either directly or through any paying agent (including the Issuer acting as its
own paying agent), to the Holders of the particular Securities of such series
for the payment or redemption of which such moneys have been deposited with the
Trustee, of all sums due and to become due thereon for principal and interest,
if any.
SECTION 9.3 Repayment of Moneys Held by Paying Agent. In connection
with the satisfaction and discharge of this Indenture with respect to Securities
of any series, all moneys then held by any paying agent, other than the Trustee,
under the provisions of this Indenture with respect to such series of Securities
shall, upon demand of the Issuer, be repaid to it or paid to the Trustee and
thereupon such paying agent shall be released from all further liability with
respect to such moneys.
SECTION 9.4 Return of Moneys Held by Trustee and Paying Agent
Unclaimed for Two Years. Any moneys deposited with or paid to the Trustee or any
paying agent for the payment of the principal of or interest, if any, on any
Security of any series and not applied but remaining unclaimed for two years
after the date upon which such principal or interest, as the case may be, shall
have become due and payable, shall, upon the written request of the Issuer and
unless otherwise required by mandatory provisions of applicable escheat or
abandoned or unclaimed property law, be repaid to the Issuer by the Trustee for
such series or such paying agent, and the Holder of such Security of such series
shall, unless otherwise required by mandatory provisions of applicable escheat
or abandoned or unclaimed property laws, thereafter look only to the Issuer for
any payment which such Holder may be entitled to collect.
SECTION 9.5 Issuer's Option to Effect Defeasance or Covenant
Defeasance. The Issuer may at its option by or pursuant to a Resolution, at any
time, with respect to the Securities of any series, elect to have either Section
9.6 or Section 9.7 applied to the Outstanding Securities of such series upon
compliance with the conditions set forth below.
SECTION 9.6 Defeasance and Discharge. Upon the Issuer's exercise of
its option to utilize the provisions of this Section 9.6 and upon compliance
with Section 9.8, the Issuer shall be deemed to have been discharged from its
obligations with respect to the Outstanding Securities of such series on the
date the conditions set forth below are satisfied (hereinafter, "defeasance").
For this purpose, such defeasance means that the Issuer shall be deemed to have
paid and discharged the entire indebtedness represented by the Outstanding
Securities of such series and to have satisfied all its other obligations under
such Securities and this Indenture insofar as such Securities are concerned (and
the Trustee, at the expense of the Issuer, shall execute proper instruments
acknowledging the same), except for the following which shall survive until
otherwise terminated or discharged hereunder: (a) the rights of Holders of
Outstanding Securities of such series to receive, solely from the trust fund
described in Section 9.8 and as more fully set forth in such Section, payments
in respect of the principal of and interest on such Securities when such
payments are due, (b) the Issuer's obligations with respect to such Securities
under Sections 2.10, 2.11, 2.13, 3.2 and 3.3, (c) the rights, powers, trusts,
duties, and immunities of the Trustee under Sections 2.11, 2.12, 2.13, 4.3, 5.5
and 9.4, and otherwise the duty of the Trustee to authenticate Securities of
such series issued on registration of transfer or exchange, (d) the conversion
rights, if any, of Holders of Outstanding Securities of such series and the
Issuer's obligations, if any, with respect thereto under Article Eleven, and (e)
this Article Nine. Subject to compliance with this Article Nine, the Issuer may
exercise its option under this Section 9.6 notwithstanding the prior exercise of
its option under Section 9.7 with respect to the Securities of such series.
SECTION 9.7 Covenant Defeasance. Upon the Issuer's exercise of its
option to utilize the provisions of this Section 9.7 and upon compliance with
Section 9.8, the Issuer shall be released from its obligations under Sections
3.4 and 3.5 with respect to the Outstanding Securities of such series on and
after the date the conditions set forth below are satisfied (hereinafter,
"covenant defeasance"). For this purpose, such covenant defeasance means that,
with respect to the Outstanding Securities of such series, the Issuer may omit
to comply with and shall have no liability in respect of any term, condition or
limitation set forth in any such Section with respect to it, whether directly or
indirectly by reason of any reference elsewhere herein to any such Section or by
reason of any reference in any such Section (including under Section 4.1(d)) to
any other provision herein or in any other document, but the remainder of this
Indenture and such Securities shall be unaffected thereby.
SECTION 9.8 Conditions to Defeasance or Covenant Defeasance. The
following shall be the conditions to application of either Section 9.6 or
Section 9.7 to the Outstanding Securities of such series:
(a) The Issuer shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the
requirements of Section 5.7 who shall agree to comply with the
provisions of this Article Nine applicable to it) as trust funds in
trust for the purpose of making the following payments, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of such Securities, (A) money in an amount, or (B) U.S.
Government Obligations which through the scheduled payment of
principal and interest in respect thereof in accordance with their
terms will provide, not later than one day before the due date of any
payment, money in an amount, or (C) a combination thereof, sufficient,
in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to
the Trustee, to pay and discharge, and which shall be applied by the
Trustee (or other qualifying trustee) to pay and discharge, (i) the
principal of and each installment of principal of and interest on the
Outstanding Securities of such series on the stated maturity of such
principal or installment of principal or interest and (ii) any
mandatory sinking fund payments or analogous payments applicable to
the Outstanding Securities of such series on the day on which such
payments are due and payable in accordance with the terms of this
Indenture and of such Securities. For this purpose, "U.S. Government
Obligations" means securities that are (x) direct obligations of the
United States of America for the payment of which its full faith and
credit is pledged or (y) obligations of a person controlled or
supervised by and acting as an agency or instrumentality of the United
States of America the payment of which is unconditionally guaranteed
as a full faith and credit obligation by the United States of America,
which, in either case, are not callable or redeemable at the option of
the issuer thereof, and shall also include a depositary receipt issued
by a bank (as defined in Section 3(a)(2) of the Securities Act) as
custodian with respect to any such U.S. Government Obligation or a
specific payment of principal of or interest on any such U.S.
Government Obligation held by such custodian for the account of the
Holder of such depositary receipt, provided, that (except as required
by law) such custodian is not authorized to make any deduction from
the amount payable to the Holder of such depositary receipt from any
amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of principal of or interest on the
U.S. Government Obligation evidenced by such depositary receipt.
(b) No Event of Default or event which with notice or lapse of
time or both would become an Event of Default with respect to the
Securities of such series shall have occurred and be continuing on the
date of such deposit.
(c) Such defeasance or covenant defeasance shall not cause the
Trustee for the Securities of such series to have a conflicting
interest for purposes of the Trust Indenture Act of 1939 with respect
to any Securities of the Issuer.
(d) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture
or any other agreement or instrument to which the Issuer is a party or
by which it is bound.
(e) Such defeasance or covenant defeasance shall not cause any
Securities of such series then listed on any registered national
securities exchange under the Exchange Act, as amended, to be
delisted.
(f) In the case of an election under Section 9.6, the Issuer
shall have delivered to the Trustee an Opinion of Counsel (who may be
counsel to the Issuer) stating that (x) the Issuer has received from,
or there has been published by, the Internal Revenue Service a ruling,
or (y) since the date of this Indenture there has been a change in the
applicable U.S. federal income tax law, in either case to the effect
that, and based thereon such opinion shall confirm that, the Holders
of the Outstanding Securities of such series will not recognize
income, gain or loss for U.S. federal income tax purposes as a result
of such defeasance and will be subject to U.S. federal income tax on
the same amounts, in the same manner and at the same times as would
have been the case if such defeasance had not occurred.
(g) In the case of an election under Section 9.7, the Issuer
shall have delivered to the Trustee an Opinion of Counsel (who may be
counsel to the Issuer) to the effect that the Holders of the
Outstanding Securities of such series will not recognize income, gain
or loss for U.S federal income tax purposes as a result of such
covenant defeasance and will be subject to U.S. federal income tax on
the same amounts, in the same manner and at the same times as would
have been the case if such covenant defeasance had not occurred.
(h) The Issuer shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to either the defeasance
under Section 9.6 or the covenant defeasance under Section 9.7 (as the
case may be) have been complied with.
SECTION 9.9 Deposited Money and U.S. Government Obligations to Be Held
in Trust; Other Miscellaneous Provisions. Subject to the provisions of Section
9.4, all money and U.S. Government Obligations (including the proceeds thereof)
deposited with the Trustee (or other qualifying trustee -- collectively, for
purposes of this Section 9.9, the "Trustee") pursuant to Section 9.8 in respect
of the Outstanding Securities of such series shall be held in trust and applied
by the Trustee, in accordance with the provisions of such Securities and this
Indenture, to the payment, either directly or through any paying agent
(including the Issuer acting as its own paying agent) as the Trustee may
determine, to the Holders of such Securities, of all sums due and to become due
thereon in respect of principal and interest, but such money need not be
segregated from other funds except to the extent required by law.
The Issuer shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 9.8 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of the Outstanding Securities of such series.
Anything in this Article Nine to the contrary notwithstanding, the
Trustee shall deliver or pay to the Issuer from time to time upon the Issuer's
written request any money or U.S. Government Obligations held by it as provided
in Section 9.8 which, in the written opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect an equivalent defeasance or covenant
defeasance.
ARTICLE TEN
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 10.1 Applicability of Article. The provisions of this Article
shall be applicable to the Securities of any series which are redeemable before
their maturity and to any sinking fund for the retirement of Securities of a
series except as otherwise specified as contemplated by Section 2.5 for
Securities of such series.
SECTION 10.2 Notice of Redemption; Selection of Securities. In case
the Issuer shall desire to exercise any right to redeem all or any part of the
Securities of any series in accordance with their terms, the Issuer shall fix a
date for redemption and shall notify the Trustee in writing, at least 45 days
before such redemption date. The Issuer, or at the request and at the expense of
the Issuer, the Trustee, shall mail a notice of such redemption, at least 30
days and not more than 60 days prior to the date fixed for redemption, to the
Holders of Securities of such series so to be redeemed in whole or in part at
their last addresses as they shall appear in the Register. Any notice which is
mailed in the manner herein provided shall be conclusively presumed to have been
duly given, whether or not the Holder receives the notice. Failure to give
notice by mail, or any defect in the notice, to the Holder of any Security of a
series designated for redemption as a whole or in part shall not affect the
validity of the proceedings for the redemption of any other Security of such
series.
The notice of redemption to each such Holder shall specify the CUSIP
number of the Securities of such series, if any, the date fixed for redemption,
the redemption price, the place or places of payment, if the Securities of such
series are convertible at the option of the Holder into Shares, the Conversion
Price, the place or places of conversion, that, unless otherwise provided
pursuant to Section 2.5 for Securities of such series, Securities called for
redemption may be converted at any time before the close of business on the
third Business Day prior to the date fixed for redemption and if not converted
prior to the close of business on such date, the right of conversion will be
lost and that Holders who want to convert Securities must satisfy the
requirements set forth in the terms thereof, that payment will be made upon
presentation and surrender of such Securities, that any interest accrued to the
date fixed for redemption will be paid as specified in such notice and that on
and after said date any interest thereon or on the portions thereof to be
redeemed will cease to accrue. If less than all of the Outstanding Securities of
a series are to be redeemed, the notice of redemption shall specify the number
or numbers or distinguishing symbol or symbols of the Securities to be redeemed.
In case any Security of a series is to be redeemed in part only the notice of
redemption shall state the portion of the principal amount thereof to be
redeemed and shall state that on and after the date fixed for redemption, upon
surrender of such Security, a new Security or Securities of such series in
principal amount equal to the unredeemed portion thereof will be issued.
Prior to the redemption date specified in the notice of redemption
given as provided in this Section, the Issuer will deposit with the Trustee or
with one or more paying agents (or, if the Issuer is acting as its own paying
agent, segregate and hold in trust as required by the Trust Indenture Act of
1939) an amount of money (in the currency or units of currencies or composite
currency in which the Securities so called for redemption are denominated or an
appropriate equivalent thereof) sufficient to redeem on the redemption date all
the Securities of such series or portions thereof so called for redemption at
the appropriate redemption price, together with accrued interest to the date
fixed for redemption. If less than all the Outstanding Securities of a series
are to be redeemed (or less than the full principal amount of each Security in
such series is to be redeemed), the Issuer will deliver to the Trustee at least
60 days prior to the date fixed for redemption (or such shorter period if
acceptable to the Trustee) an Officers' Certificate stating the aggregate
principal amount of Securities to be redeemed and, if the Trustee is not acting
as the repository of the Register for such series, a current list of all
Outstanding Securities of such series.
If less than all the Outstanding Securities of a series are to be
redeemed, the Trustee shall select, in such manner as it shall deem appropriate
and fair, Securities of such series to be redeemed in whole or in part; however,
if less than all the Securities of any series with differing issue dates,
interest rates and stated maturities are to be redeemed, the Issuer in its sole
discretion shall select the particular Securities to be redeemed and shall
notify the Trustee in writing thereof at least 45 days prior to the relevant
redemption date. Except as otherwise specified for Securities of a particular
series pursuant to Section 2.5, Securities may be redeemed in part in amounts
equal to the minimum authorized denomination for Securities of such series or
any multiple thereof. The Trustee shall promptly notify the Issuer in writing of
the Securities of such series selected for redemption and, in the case of any
Securities of such series selected for partial redemption, the principal amount
thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities of any series
shall relate, in the case of any Security redeemed or to be redeemed only in
part, to the portion of the principal amount of such Security which has been or
is to be redeemed.
SECTION 10.3 Payment of Securities Called for Redemption. If notice of
redemption has been given as provided in Section 10.2, the Securities or
portions of Securities specified in such notice shall become due and payable on
the date and at the place or places stated in such notice at the applicable
redemption price, together with interest accrued to the date fixed for
redemption, and on and after said date (unless the Issuer shall default in the
payment of such Securities or portions thereof at the redemption price, together
with interest accrued to said date) interest on the Securities or portions of
Securities so called for redemption shall cease to accrue and, except as
provided in Sections 5.4 and 9.4, such Securities shall cease from and after the
date fixed for redemption to be entitled to any benefit or security under this
Indenture, and the Holders of such Securities shall have no right in respect of
such Securities except the right to receive the redemption price thereof and
unpaid interest to the date fixed for redemption. On presentation and surrender
of such Securities at a place of payment specified in said notice, said
Securities or the specified portions thereof shall be paid and redeemed by the
Issuer at the applicable redemption price, together with interest accrued
thereon to the date fixed for redemption; provided, that if the date fixed for
redemption is an interest payment date, the interest due on that date shall be
payable to the Holders of such Securities registered as such on the relevant
record date according to their terms.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal thereof so to be redeemed shall,
until paid or duly provided for, bear interest from the date fixed for
redemption at the Overdue Rate applicable to such series.
Upon presentation of any Security redeemed in part only, the Issuer
shall execute and the Trustee shall authenticate and make available for delivery
to or on the order of the Holder thereof, at the expense of the Issuer, a new
Security or Securities of such series, of authorized denominations, in principal
amount equal to the unredeemed portion of the Security so presented.
SECTION 10.4 Conversion Arrangement on Call for Redemption. If in
connection with any redemption of Securities of any series with respect to which
the Holders have the right to convert such Securities into Shares, the Holders
thereof do not elect to convert such Securities, the Issuer may arrange for the
purchase and conversion of such Securities by an agreement with one or more
investment banking firms or other purchasers to purchase such Securities by
paying to the Trustee in trust for the Holders, not later than the close of
three Business Days prior to the date fixed for redemption, an amount not less
than the applicable redemption price, together with interest accrued to the date
fixed for redemption, of such Securities. Notwithstanding anything to the
contrary contained in this Article Ten, the obligation of the Issuer to pay the
redemption price of such Securities, together with interest accrued to the date
fixed for redemption, shall be deemed to be satisfied and discharged to the
extent such amount is so paid by such purchasers to the Trustee in trust for the
Holders. If such an agreement is made, any Securities not duly surrendered for
conversion by the Holders thereof may, at the option of the Issuer, be deemed,
to the fullest extent permitted by law, to have been acquired by such purchasers
from such Holders and (notwithstanding anything to the contrary contained in
Article Eleven) surrendered by such purchasers for conversion, all as of
immediately prior to the close of business on the date fixed for redemption,
subject to payment by the purchasers as specified above. The Trustee shall hold
and dispose of any such amount paid to it in the same manner as it would moneys
deposited with it by the Issuer for the redemption of Securities. Without the
Trustee's prior written consent, no arrangement between the Issuer and such
purchasers for the purchase and conversion of any Securities shall increase or
otherwise affect any of the powers, duties, responsibilities or obligations of
the Trustee as set forth in this Indenture, and the Issuer agrees to indemnify
the Trustee from, and hold it harmless against, any and all loss, liability,
claim, damage or expense arising out of or in connection with any such
arrangement for the purchase and conversion of any Securities between the Issuer
and such purchasers, including the costs and expenses incurred by the Trustee
and its counsel in the defense of any claim or liability arising out of or in
connection with the exercise or performance of any of its powers, duties,
responsibilities or obligations under this Indenture.
SECTION 10.5 Exclusion of Certain Securities from Eligibility for
Selection for Redemption. Securities shall be excluded from eligibility for
selection for redemption if they are identified by registration and certificate
number or other distinguishing symbol in a written statement signed by an
authorized officer of the Issuer and delivered to the Trustee at least 10 days
prior to the date on which Securities are to be selected for redemption as being
owned of record and beneficially by, and not pledged or hypothecated by, either
(a) the Issuer or (b) an entity specifically identified in such written
statement directly or indirectly controlling or controlled by or under direct or
indirect common control with the Issuer.
SECTION 10.6 Mandatory and Optional Sinking Funds. The minimum amount
of any sinking fund payment provided for by the terms of Securities of any
series is herein referred to as a "mandatory sinking fund payment", and any
payment in excess of such minimum amount provided for by the terms of Securities
of any series is herein referred to as an "optional sinking fund payment". The
date on which a sinking fund payment is to be made is herein referred to as the
"sinking fund payment date".
In lieu of making all or any part of any mandatory sinking fund
payment with respect to any series of Securities in cash, the Issuer may at its
option (a) deliver to the Trustee Securities of such series theretofore
purchased or otherwise acquired (except upon redemption pursuant to the
mandatory sinking fund) by the Issuer or receive credit for Securities of such
series (not previously so credited) theretofore purchased or otherwise acquired
(except as aforesaid) by the Issuer and delivered to the Trustee for
cancellation pursuant to Section 2.12, (b) receive credit for optional sinking
fund payments (not previously so credited) made pursuant to this Section, (c)
receive credit for Securities of such series (not previously so credited) that
have been surrendered to the Issuer for conversion, or (d) receive credit for
Securities of such series (not previously so credited) redeemed by the Issuer
through any optional redemption provision contained in the terms of Securities
of such series. Securities so delivered or credited shall be received or
credited by the Trustee at the sinking fund redemption price specified in such
Securities, and the amount of such mandatory sinking fund payment shall be
reduced accordingly.
On or before the sixtieth day next preceding each sinking fund payment
date for any series of Securities, the Issuer will deliver to the Trustee a
certificate of the Issuer (which need not contain the statements required by the
Trust Indenture Act of 1939) signed by an officer of the Issuer who is one of
the officers authorized to sign an Officers' Certificate (a) specifying the
portion, if any, of the mandatory sinking fund payment to be satisfied by
payment of cash and the portion, if any, to be satisfied by credit of Securities
of such series, (b) stating that none of such Securities has theretofore been so
credited, (c) stating that no Event of Default with respect to such series has
occurred (which has not been waived or cured) and is continuing and (d) stating
whether or not the Issuer intends to exercise its right to make an optional
sinking fund payment with respect to such series and, if so, specifying the
amount of such optional sinking fund payment which the Issuer intends to pay on
or before the next succeeding sinking fund payment date. Any Securities of such
series to be credited and required to be delivered to the Trustee in order for
the Issuer to be entitled to credit therefor as aforesaid which have not
theretofore been delivered to the Trustee shall be delivered for cancellation
pursuant to Section 2.12 to the Trustee with such certificate. Such certificate
shall be irrevocable and upon its receipt by the Trustee the Issuer shall become
obligated to make all the cash payments or payments therein referred to, if any
(which cash may be deposited with the Trustee or with one or more paying agents
or, if the Issuer is acting as its own paying agent, segregated and held in
trust as required by the Trust Indenture Act of 1939), on or before the next
succeeding sinking fund payment date. Failure of the Issuer, on or before any
such sixtieth day, to deliver such certificate and Securities specified in this
paragraph, if any, shall not constitute a default but shall constitute, on and
as of such date, the irrevocable election of the Issuer (i) that the mandatory
sinking fund payment for such series due on the next succeeding sinking fund
payment date shall be paid entirely in cash without the option to deliver or
credit Securities of such series in respect thereof and (ii) that the Issuer
will make no optional sinking fund payment with respect to such series as
provided in this Section.
If the sinking fund payment or payments (mandatory or optional or
both) to be made in cash on the next succeeding sinking fund payment date plus
any unused balance of any preceding sinking fund payments made in cash shall
exceed U.S.$100,000 or, if payments on Securities of such series are to be made
in a currency other than Dollars or in units or composites of two or more
currencies, the equivalent thereof (based upon the Market Exchange Rate on the
sixtieth day preceding the relevant sinking fund payment date or if the Market
Exchange Rate is not available for such date, the immediately preceding date for
which the Market Exchange Rate is available) in the relevant currency or unit or
composite currency (or such other amount as is specified for a particular series
of Securities pursuant to Section 2.5), or a lesser sum if the Issuer shall so
request, with respect to the Securities of any particular series, such cash
shall be applied by the Trustee (or by the Issuer if the Issuer is acting as its
own paying agent) on the sinking fund payment date on which such payment is made
(or, if such payment is made before a sinking fund payment date, on the next
sinking fund payment date following the date of such payment) to the redemption
of such Securities at the sinking fund redemption price specified in such
Securities for operation of the sinking fund together with accrued interest, if
any, to the date fixed for redemption. If such amount shall be U.S.$100,000 or,
if payments on Securities of such series are to be made in a currency other than
Dollars or in units or composites of two more currencies, the equivalent thereof
(based upon the Market Exchange Rate on the sixtieth day preceding the relevant
sinking fund payment date or if the Market Exchange Rate is not available for
such date, the immediately preceding date for which the Market Exchange Rate is
available) in the relevant currency or unit or composite currency (or such other
amount as is specified for the particular series pursuant to Section 2.5), or
less and the Issuer makes no such request then it shall be carried over until a
sum in excess of U.S.$100,000, or the equivalent thereof in the relevant
currency or unit or composite currency, is available.
The Trustee shall select, in the manner provided in Section 10.2, for
redemption on such sinking fund payment date, Securities of such series with
respect to which cash payment of the applicable sinking fund redemption price
will be made and shall (if requested in writing by the Issuer) inform the Issuer
of the serial numbers or other distinguishing symbols of the Securities of such
series (or portions thereof) so selected. If the Trustee shall be required to
select Securities of any series for the sinking fund and is not acting as
repository of the Register for such series, at least 60 days prior to the
sinking fund payment date the Issuer shall furnish to the Trustee a current list
of all Outstanding Securities of such series. Securities of any series which are
(a) owned by the Issuer or an entity actually known by the Trustee to be
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Issuer, as shown by the Register, and not known to the
Trustee to have been pledged or hypothecated by the Issuer or any such entity or
(b) identified in an Officers' Certificate at least 60 days prior to the sinking
fund payment date as being beneficially owned by, and not pledged or
hypothecated by, the Issuer or an entity directly or indirectly controlling or
controlled by or under direct or indirect common control with the Issuer, shall
be excluded from Securities of such series eligible for selection for
redemption. The Trustee, in the name and at the expense of the Issuer (or the
Issuer, if it shall so notify the Trustee in writing) shall cause notice of
redemption of the Securities of such series to be given in substantially the
manner provided in Section 10.2, except that the notice of redemption shall also
state that the Securities are being redeemed by operation of the sinking fund
(and with the effect provided in Section 10.3) for the redemption of Securities
of such series which, if applicable, is in part at the option of the Issuer.
The amount of any sinking fund payments not so applied or allocated by
the Trustee (or by the Issuer if the Issuer is acting as its own paying agent)
to the redemption of Securities of such series shall be added to the next cash
sinking fund payment received by the Trustee (or if the Issuer is acting as its
own paying agent, segregated and held in trust as required by the Trust
Indenture Act of 1939) for such series and, together with such payment (or such
amount so segregated), shall be applied in accordance with the provisions of
this Section 10.6. Any and all sinking fund moneys held by the Trustee (or if
the Issuer is acting as its own paying agent, segregated and held in trust as
required by the Trust Indenture Act of 1939) on the stated maturity date of the
Securities of any particular series (or earlier, if such maturity is
accelerated), which are not held for the payment or redemption of particular
Securities of such series shall be applied by the Trustee (or by the Issuer if
the Issuer is acting as its own paying agent), together with other moneys, if
necessary, sufficient for the purpose, to the payment of the principal of, and
interest on, the Securities of such series at maturity.
On or before each sinking fund payment date, the Issuer shall pay to
the Trustee in cash (or if the Issuer is acting as its own paying agent will
segregate and hold in trust as required by the Trust Indenture Act of 1939) or
shall otherwise provide for the payment of all interest accrued to the date
fixed for redemption on Securities (or portions thereof) to be redeemed on such
sinking fund payment date.
Neither the Issuer nor the Trustee shall redeem or cause to be
redeemed any Securities of a series with sinking fund moneys or mail any notice
of redemption of Securities for such series by operation of the sinking fund
during the continuance of a default in payment of interest, if any, on such
Securities or of any Event of Default (other than an Event of Default occurring
as a consequence of this paragraph, with respect to such Securities) except
that, where the mailing of notice of redemption of any Securities shall
theretofore have been made, the Trustee (or the Issuer if the Issuer is acting
as its own paying agent) shall redeem or cause to be redeemed such Securities,
provided that it shall have received from the Issuer (or the Issuer shall have
segregated) a sum sufficient for such redemption. Except as aforesaid, any
moneys in the sinking fund for such series at the time when any such default or
Event of Default shall occur, and any moneys thereafter paid into the sinking
fund, shall, during the continuance of such default or Event of Default, be
deemed to have been collected under Article Four and held for the payment of all
such Securities. Notwithstanding anything in the foregoing to the contrary, in
case such default or Event of Default shall have been waived as provided in
Section 4.9 or the default or Event of Default cured on or before the sixtieth
day preceding the sinking fund payment date in any year, such moneys shall
thereafter be applied on the next succeeding sinking fund payment date in
accordance with this Section 10.6 to the redemption of such Securities.
SECTION 10.7 Redemption for Tax Reasons. If at any time after the date
of issuance of Securities of any series pursuant to this Indenture as a result
of any change in, or amendment to, the laws or regulations of The Netherlands or
of any political subdivision thereof or any authority therein or thereof having
power to tax or as a result of any change in the application or official
interpretation of such laws or regulations, which change or amendment becomes
effective after the date of such issuance, the Issuer becomes, or will become,
obligated to pay any Additional Amounts and such obligations cannot be avoided
by the Issuer taking reasonable measures available to it, then the Securities of
such series will be redeemable as a whole (but not in part), at the option of
the Issuer, at any time upon not less than thirty (30) nor more than sixty (60)
days' notice given to the Holders at their principal amount together with
accrued interest thereon (and any Additional Amounts Payable with respect
thereto) to the date fixed for redemption (the "Tax Redemption Date"). The
Issuer will also pay to the Holders of Securities of such series on the Tax
Redemption Date any Additional Amounts which would otherwise be payable. In
order to effect a redemption of Securities of any such series as described in
this paragraph, the Issuer shall deliver to the Trustee at least forty-five (45)
days prior to the Tax Redemption Date: (i) a written notice stating that the
Securities of this series are to be redeemed as a whole and (ii) an opinion of
independent legal counsel of recognized standing to the effect that the Issuer
has or will become obligated to pay Additional Amounts as a result of any such
change or amendment. No notice of redemption may be given earlier than ninety
(90) days prior to the earliest date on which the Issuer would be obligated to
pay such Additional Amounts were a payment in respect of the Securities of such
series then due. The notice shall additionally specify the Tax Redemption Date
and all other information necessary to the publication and mailing by the
Trustee of notices of such redemption. The Trustee shall be entitled to rely
conclusively upon the information so furnished by the Issuer in such notice and
shall be under no duty to check the accuracy or completeness thereof. Such
notice shall be irrevocable and upon its delivery the Issuer shall be obligated
to make the payment or payments referred to therein to the Trustee.
ARTICLE ELEVEN
CONVERSION OF SECURITIES
SECTION 11.1 Conversion of Securities. In connection with Securities
of any series that are convertible into Shares, each such Security (or any
portion thereof which is, unless otherwise specified as contemplated by Section
2.5 for Securities of any series, U.S.$1,000 or an integral multiple thereof)
shall be convertible into Common Shares or American Depositary Shares as
specified pursuant to Section 2.5 for Securities of such series, in accordance
with its terms and (except as otherwise specified pursuant to Section 2.5 for
Securities of such series) in accordance with this Article Eleven at any time
until the close of business on the third Business Day preceding the maturity
date of the Securities of such series or in case such Security shall have been
called for redemption, then in respect of such Security until (unless the Issuer
shall default in payment due upon the redemption thereof) the close of business
on the third Business Day preceding the date fixed for redemption, unless
otherwise specified as contemplated by Section 2.5 for Securities of such
series.
The initial Conversion Price at which a Security of any series is
convertible shall be set forth in or established pursuant to a Resolution or
supplemental indenture contemplated by Section 2.5.
Any such Security that is convertible at the option of the Holder
thereof shall be so converted upon surrender to the Trustee or the Conversion
Agent for surrender to the Issuer in accordance with the instructions on file
with the Trustee and the Conversion Agent, at any time during usual business
hours at the office or agency to be maintained by the Issuer in accordance with
the provisions of Section 3.2, accompanied by a written notice of election to
convert as provided in Section 11.2 and, if so required by the Issuer, by a
written instrument or instruments of transfer in form satisfactory to the Issuer
and the Conversion Agent duly executed by the Holder or his attorney duly
authorized in writing. Any such Security that is convertible otherwise than at
the option of the Holder thereof shall be so converted as specified pursuant to
Section 2.5 for Securities of such series. The Issuer covenants to effect such
conversion by procuring the issuance of Shares and payment of cash in lieu of
fractional shares in exchange for and in consideration of delivery to it of the
Securities. For convenience, the conversion of principal of any Security or
Securities pursuant to this Article Eleven is hereinafter sometimes referred to
as the conversion of such Security or Securities. All Securities surrendered for
conversion shall, if surrendered to the Issuer or the Conversion Agent, be
delivered to the Trustee for cancellation and canceled by it as provided in
Section 2.11 (except as otherwise provided therein). Any Security surrendered
for conversion shall not thereafter be convertible.
SECTION 11.2 Issuance of Shares on Conversion. As promptly as
practicable after the surrender as herein provided of any Security or Securities
for conversion, the Issuer shall deliver or cause to be delivered at its office
or agency to or upon the written order of the Holder of the Security or
Securities so surrendered, either, as requested by the Holder, the number of
duly authorized, validly issued, fully paid and nonassessable Common Shares into
which such Security or Securities may be converted in accordance with the
provisions of this Article Eleven or an ADR evidencing ADSs which represents
such number of Common Shares (such Common Shares or ADSs being referred to in
this Article Eleven as the "Conversion Shares"). Prior to delivery of such
Conversion Shares upon conversion of a Security at the option of a Holder, the
Issuer shall require a written notice, which shall be substantially in the Form
of Election to Convert as provided for in Section 2.15, to be delivered to its
office or agency from the Holder of the Security or Securities so surrendered
stating that the Holder irrevocably elects to convert such Security or
Securities for Common Shares or ADSs, as specified in such notice. Such
conversion notice once given shall be irrevocable and may not be withdrawn
without the consent in writing of the Issuer. The Issuer or any Conversion Agent
on its behalf, may reject any incomplete or incorrect conversion notice. All
costs and expenses incurred or caused by an incomplete or incorrect notice shall
be for the account of the relevant Holder.
If the Holder is electing to receive ADSs upon such conversion, such
notice shall also state the name or names (with address or addresses) in which
the ADR evidencing such ADSs are to be issued. Such conversion shall be deemed
to have been made at the close of business on the date that such Security or
Securities shall have been surrendered for conversion and such notice shall have
been received by the Issuer, and the rights of the Holder of such Security as a
Holder shall cease at such time. The person or persons entitled to receive the
Conversion Shares upon conversion of such Security or Securities shall be
treated for all purposes as having become the holder or holders of such
Conversion Shares at such time and such conversion shall be at the Conversion
Price for such series of Securities in effect at such time; provided, however,
in the case of a Holder electing to receive ADSs upon such conversion, that no
such surrender on any date when the transfer books of the Common Share
Depositary shall be closed shall be effective to constitute the person or
persons entitled to receive such ADSs upon such conversion as the record holder
or holders of such ADSs on such date, but such surrender shall be effective to
constitute the person or persons entitled to receive such ADSs as the record
holder or holders thereof for all purposes at the close of business on the next
succeeding day on which such transfer books are open; such conversion shall be
at the Conversion Price in effect on the date that such Security or Securities
shall have been surrendered for conversion, as if the transfer books of the
Common Share Depositary had not been closed.
Upon conversion of any Security which is converted in part only, the
Issuer shall execute and the Trustee shall authenticate and make available for
delivery to or on the order of the holder thereof, at the expense of the Issuer,
a new Security or Security of authorized denominations in a principal amount
equal to the unconverted portion of such Security.
SECTION 11.3 No Adjustment for Interest or Dividends. No payment or
adjustment in respect of interest on the Securities or dividends on the
Conversion Shares shall be made upon the conversion of any Security or
Securities; provided, however, that if a Security or Securities or any portion
thereof shall be converted subsequent to any record date and on or prior to the
next succeeding interest payment date, the interest falling due on such interest
payment date shall be payable on such interest payment date notwithstanding such
conversion, and such interest (whether or not punctually paid or duly provided
for) shall be paid to the person in whose name such Security is registered at
the close of business on such record date and Securities surrendered for
conversion during the period from the close of business on any record date to
the opening of business on the corresponding interest payment date must be
accompanied by payment of any amount equal to the interest payable on such
interest payment date.
SECTION 11.4 Adjustment of Conversion Price. Except as may otherwise
be established pursuant to Section 2.5 with respect to a particular series of
Securities, the Conversion Price in effect at any time for any series of
Securities that is convertible into Shares shall be subject to adjustment as
follows:
(a) If the Issuer shall, after the original issue date of such series
of Securities, (i) pay a dividend or make a distribution on its Common Shares in
the form of Common Shares (including, for the avoidance of doubt, a dividend or
distribution that permits the recipient to elect between cash and Common
Shares), (ii) split its outstanding Common Shares into a greater number of
Common Shares or (iii) consolidate its outstanding Common Shares into a lesser
number of Common Shares, the Conversion Price shall be adjusted (with effect
from the Effective Date of such event) in accordance with the following formula:
A = P x X
-----
Y
where:
"A" shall mean the adjusted Conversion Price;
"P" shall mean the Conversion Price prior to the adjustment;
"X" shall mean the number of Common Shares outstanding
immediately prior to the happening of
the relevant event; and
"Y" shall mean the number of Common Shares outstanding
immediately after the happening of the relevant event.
(b) If the Issuer or any of its Subsidiaries shall, after the original
issue date of such Securities, issue
(i) to all or substantially all holders of Common Shares, any
rights to purchase or subscribe for Common Shares or other securities
which are convertible into or exchangeable for Common Shares or
warrants or other rights to purchase or subscribe for Common Shares;
or
(ii) Common Shares or other securities or rights which are
convertible into or exchangeable for Common Shares or warrants or
other rights to purchase or subscribe for Common Shares (other than
issuances covered by (a) of this Section 11.4);
and the purchase, subscription, conversion, exchange or other issue price per
Common Share (taking into account the consideration, if any, received by the
Issuer in respect of an issuance covered by clause (ii) above) is below the
Market Price on the date of announcement of such issuance (or in the case of
(ii) above, below 95% of the Market Price on such date), the Conversion Price
shall be adjusted (with effect from the Effective Date of such event) in
accordance with the following formula:
A = P x (S + f)
-------
(S + a)
where:
"A" and "P" shall have the same meanings as in paragraph (a) of
this Section 11.4;
"S" shall mean the number of Common Shares outstanding on the
date of the announcement of such event;
"f" shall mean the number of additional Common Shares which the
aggregate purchase, subscription, conversion, exchange or other price
(taking into account the consideration received by the Issuer in
respect of an issuance covered by (ii) above) would purchase at the
Market Price; and
"a" shall mean the number of additional Common Shares which are
issued or are initially issuable pursuant to the other securities or
rights that are the subject of the issue.
(c) In case the Issuer shall issue or distribute, as the case may be,
after the original issue date of such series of Securities, to all or
substantially all holders of Common Shares any securities (other than as
described in paragraph (a) or (b) above) or assets (other than cash dividends or
dividends in kind in accordance with applicable laws) in each case declared and
paid in the ordinary course of the Issuer's operations (but, for the avoidance
of doubt, including any dividend, or portion thereof, which constitutes a
redemption of Common Share capital as part of a reduction in nominal value of
the Common Shares) or any rights to acquire such securities or assets, the
Conversion Price shall be adjusted (with effect from the Effective Date of such
event) in accordance with the following formula:
A = P x (M - d)
-------
M
where:
"A" and "P" shall have the same meanings as in paragraph (a) of
this Section 11.4;
"M" shall mean the Market Price on the date on which such issue
or distribution, as the case may be, shall be made; and
"d" shall mean the fair market value (as determined by the
Executive Board which determination shall be conclusive as of the date
on which such issue or distribution, as the case may be, shall be
made) of such portion of securities or assets or rights to acquire any
of the foregoing as is attributable to one Common Share.
(d) If the Issuer shall issue or distribute, after the original issue
date of such series of Securities, an Extraordinary Dividend, the Conversion
Price shall be adjusted (with effect from the Effective Date of such event) in
accordance with the following formula:
A = P x (M - e)
-------
M
where:
"A", "P" and "M" have the same meaning as in paragraph (c) of
this Section 11.4; and
"e" shall mean the Extraordinary Dividend;
For purpose of this paragraph (d), an Extraordinary Dividend
shall have occurred if, at the Effective Date, the aggregate amount of
(x) any cash dividends (prior to the deduction of any withholding tax
plus any corporate tax attributable to such dividend (a "Cash
Dividend")) paid or declared by the Issuer on the Common Shares and
(y) all other Cash Dividends paid or declared on the Common Shares in
the 365 consecutive day period prior to the Effective Date (such
aggregate of (x) and (y) being the "Total Current Dividend"), equals
or exceeds on a per Common Share basis 5% of the Average Closing Price
of the Common Shares during the Relevant Period. For the avoidance of
doubt, all values are on a per Common Share basis.
(e) If the Issuer determines (after consultation with the Trustee)
that an adjustment should be made to the Conversion Price, the Issuer shall, if
the effect of the adjustment is to reduce the Conversion Price, make such
adjustments as it determines is fair and reasonable.
(f) Notwithstanding anything in this Section 11.4 to the contrary, the
Conversion Price may not be reduced so that, on exchange and conversion, Common
Shares would be issued at a discount to their par value. Except in the case of a
consolidation of Common Shares as provided in paragraph (a) of this Section
11.4, in no event shall the Conversion Price be increased as a result of any
adjustment.
(g) Except as otherwise may be specified for any series of Securities
pursuant to Section 2.5, all calculations under this Section 11.4 shall be made
to the nearest cent or to the nearest one-hundredth of a Common Share, as the
case may be. If any doubt shall arise as to the appropriate adjustment to the
Conversion Price, a certificate of the auditors of the Issuer at the time shall
be conclusive and binding on all concerned save in the case of manifest error.
(h) No adjustment in the Conversion Price shall be required unless
such adjustment would require a change of at least 1% in the Conversion Price
then in effect; provided, however, that any adjustments which by reason of this
paragraph are not required to be made and any amount by which the Conversion
Price shall be rounded shall be carried forward and taken into account in any
subsequent adjustment.
(i) No adjustment in the Conversion Price shall be required for a
change in the par value of the Common Shares.
(j) Notwithstanding anything herein to the contrary, no adjustment
will be made to the Conversion Price where Common Shares or other securities or
options, warrants or other rights to subscribe for or purchase Common Shares or
other securities are issued to employees (including directors holding executive
office) of the Issuer or of any Subsidiary or associated company of the Issuer
pursuant to any stock option programs or similar arrangements for employees.
(k) If a conversion date shall fall prior to the Effective Date of an
event requiring adjustment of the Conversion Price in circumstances where the
delivery of Shares in respect of the exercise of the relevant conversion right
falls on or after such Effective Date, the Issuer shall issue to the relevant
Holder such additional number of Shares to which such Holder would have been
entitled had the relevant conversion date fallen immediately following such
Effective Date.
(l) Whenever the Conversion Price of any series is adjusted, as herein
provided, the Issuer shall promptly file with the Trustee and with the
Conversion Agent a certificate of the Chief Financial Officer or Treasurer of
the Issuer setting forth the Conversion Price after such adjustment and setting
forth a brief statement of the facts requiring such adjustment and a computation
thereof. Such certificate shall be conclusive evidence of the correctness of
such adjustment. Neither the Trustee nor any Conversion Agent shall be under any
duty or responsibility with respect to any such certificate or any facts or
computations set forth therein, except to exhibit said certificate from time to
time to any Holder of Securities desiring to inspect the same. The Trustee, at
the expense of the Issuer, shall cause notice setting forth the Conversion Price
to be mailed, first-class postage prepaid, to each Holder of Securities of such
series at the address of such Holder as it appears in the Register or in such
other manner as shall be specified pursuant to Section 2.5 for Securities of
such series.
SECTION 11.5 No Fractional Shares To Be Issued. No fractional
Conversion Shares shall be issued upon conversions of Securities. If more than
one Security of any series shall be surrendered for conversion at one time by
the same Holder, the number of full shares which shall be issuable upon
conversion thereof shall be computed on the basis of the aggregate principal
amount of the Securities of such series so surrendered. Instead of a fraction of
a Conversion Share which would otherwise be issuable upon conversion of any
Security or Securities (or specified portions thereof), the Issuer shall pay a
cash adjustment in respect of such fraction of a share in an amount equal to the
same fractional interest of the Closing Price of Common Shares on the Stock
Exchange Trading Day next preceding the day of conversion.
SECTION 11.6 Preservation of Conversion Rights upon Consolidation,
Merger, Sale or Similar Event. In the event that the Issuer shall be a party to
(i) any consolidation of the Issuer with, or merger of the Issuer into, any
other person, any merger of another person into the Issuer (other than a
consolidation or merger which does not result in a conversion, exchange or
cancellation of outstanding Common Shares of the Issuer) or (ii) any sale or
transfer of assets of the Issuer or similar event which, in any such case will
result in a reclassification or change of the Common Shares (other than a change
in the nominal value or by a split or consolidation of Common Shares), the
corporation or person formed by such consolidation or resulting from such merger
or which shall have acquired such assets, as the case may be, shall execute and
deliver to the Trustee a supplemental indenture providing that the Holder of
each Security then Outstanding shall have the right thereafter to convert such
Security into the kind and amount of Common Shares, other securities, cash and
other assets receivable upon such consolidation, merger, sale or similar event
by a holder of the number of Common Shares into which such Security might have
been converted immediately prior to such consolidation, merger, sale or similar
event. In any such event, the Conversion Price shall be appropriately allocated
to such Common Shares, other securities cash or other assets. Such supplemental
indenture shall provide for adjustments which shall be as nearly equivalent as
may be practicable to the adjustments provided for in this Article Eleven.
Neither the Trustee nor any Conversion Agent shall be under any responsibility
to determine the correctness of any provision contained in any such supplemental
indenture relating either to the kind or amount of shares or other securities or
property receivable by Holders of Securities upon the conversion of their
Securities after any such consolidation, merger, sale or transfer, or to any
adjustment to be made with respect thereto and, subject to the provisions of
Section 5.1, may accept the signing of such supplemental indenture by such
corporation or person as conclusive evidence of the correctness of any such
provisions. The above provisions of this Section 11.6 shall similarly apply to
any successive consolidation, merger, sale or similar event.
SECTION 11.7 Notice to Holders of Securities Prior to Taking Certain
Types of Action.
In case:
(a) the Issuer shall authorize the distribution to all or
substantially all holders of its Common Shares of assets (other than
cash dividends or other distributions paid out of funds legally
available therefor and the dividends payable in shares for which
adjustment is made pursuant to Section 11.4); or
(b) the Issuer shall authorize the granting to all holders of its
Common Shares of rights or securities to subscribe for or purchase any
shares of its capital of any class; or
(c) of any consolidation or merger to which the Issuer is a party
and for which approval of any shareholders of the Issuer is required,
or of the sale or conveyance of all or substantially all of the
Issuer's assets or property to another company; or
(d) of the voluntary or involuntary liquidation, dissolution or
winding up of the Issuer;
then the Issuer shall cause to be filed with the Trustee and the Conversion
Agent, at least 15 days prior to the applicable record date hereinafter
specified, a notice stating (i) the date as of which the holders of Common
Shares shall be entitled to receive such distribution, rights or securities, or
(ii) the date on which such consolidation, merger, sale, conveyance,
dissolution, liquidation or winding up is expected to become effective, and the
date as of which it is expected that holders of Common Shares shall be entitled
to exchange their Common Shares for securities, cash or other assets deliverable
upon such consolidation, merger, sale, similar event, dissolution, liquidation
or winding-up. The failure to give the notice required by this Section 11.7 or
any defect therein shall not affect the legality or validity of the proceedings
described in paragraphs (a), (b), (c) or (d) of this Section 11.7. Such notice,
at the expense of the Issuer, shall be mailed by the Trustee, first-class
postage prepaid, to each Holder of Securities that are convertible into Common
Shares of the Issuer at the address of such Holder as it appears in the
Register.
SECTION 11.8 Covenant to Reserve Shares for Issuance on Conversion of
Securities. The Issuer covenants that it will at all times reserve and keep
available, in the case of Securities of any series that are convertible into
Common Shares, out of the aggregate of its authorized but unissued Common Shares
and its issued Common Shares held in its treasury, free from pre-emptive rights,
solely for the purpose of issue upon conversion of Securities as herein
provided, such number of Common Shares as shall then be issuable upon the
conversion of all Outstanding Securities of such series. For the purpose of this
Section, the full number of Common Shares issuable upon the conversion of all
Outstanding Securities of such series shall be computed as if at the time of
such computation all Outstanding Securities of such series were held by a single
Holder. The Issuer shall from time to time, in accordance with the laws of The
Netherlands, increase the authorized amount of its Common Shares if at any time
the aggregate of the authorized amount of its Common Shares remaining unissued
and its issued shares of Common Shares held in its treasury (other than any such
shares reserved for issuance in any other connection) shall not be sufficient to
permit the conversion of all Securities of such series at the time outstanding.
The Issuer covenants that all Common Shares which shall be so issuable shall,
when issued, be duly and validly issued common shares of its authorized share
capital, and shall be fully paid and nonassessable, free of all liens and
charges and not subject to preemptive rights and that, upon conversion, the
appropriate capital accounts of the Issuer will be duly credited.
SECTION 11.9 Compliance with Governmental Requirements. The Issuer
covenants that if any Common Shares required to be reserved for purposes of
conversion of Securities hereunder require registration with or approval of any
governmental authority under any Dutch law or United States Federal or state
law, or any Dutch or United States national securities exchange, before such
Common Shares may be issued upon conversion, the Issuer will use its best
efforts to cause such shares to be duly registered or approved, as the case may
be.
SECTION 11.10 Payment of Taxes upon Certificates for Common Shares
Issued upon Conversion. The issuance of Shares upon the conversion of Securities
shall be made without charge to the converting Holders for any tax in respect of
such issuance, and in the case of Holders who elect to receive Common Shares,
such Common Shares shall be issued in bearer form and in the case of Holders who
elect to receive ADSs, the ADR evidencing such ADSs shall be issued in the
respective names of or in such names as may be directed by such Holders;
provided, however, that the Issuer shall not be required to pay any tax which
may be payable in respect of any transfer involved in the issuance and delivery
of any ADR in a name other than that of the Holder of the Security converted,
and none of the Issuer, the Conversion Agent or the Share Depositary shall be
required to issue or deliver such ADR unless or until the person or persons
requesting the issuance thereof shall have paid to the Issuer the amount of such
tax or shall have established to the satisfaction of the Issuer that such tax
has been paid.
SECTION 11.11 Trustee's Duties with Respect to Conversion Provisions.
The Trustee, subject to the provisions of Section 5.1, and any Conversion Agent
shall not at any time be under any duty or responsibility to any Holder to
determine whether any facts exist which may require any adjustment of the
conversion rate, or with respect to the nature or extent of any such adjustment
when made, or with respect to the method employed, or herein or in any
supplemental indenture provided to be employed, in making the same. Neither the
Trustee nor any Conversion Agent shall be accountable with respect to the
registration under securities laws, listing, validity or value (or the kind or
amount) of any Conversion Shares, or of any other securities or property, which
may at any time be issued or delivered upon the conversion of any Security; and
neither the Trustee nor any Conversion Agent makes any representation with
respect thereto. Neither the Trustee nor any Conversion Agent shall be
responsible for any failure of the Issuer to make any cash payment or to issue,
transfer or deliver any shares or share certificates or other securities or
property upon the surrender of any Security for the purpose of conversion; and
the Trustee, subject to the provisions of Section 5.1, and any Conversion Agent
shall not be responsible for any failure of the Issuer to comply with any of the
covenants of the Issuer contained in this Article Eleven. Each Conversion Agent
(other than the Issuer or an affiliate of the Issuer) shall have the same
protection under this Article Eleven as the Trustee.
ARTICLE TWELVE
MISCELLANEOUS PROVISIONS
SECTION 12.1 Incorporators, Stockholders, Officers, Members of the
Executive Board and Members Supervisory Board of Issuer Exempt from Individual
Liability. No recourse under or upon any obligation, covenant or agreement
contained in this Indenture, or in any Security, or because of any indebtedness
evidenced thereby, shall be had against any incorporator, as such or against any
past, present or future stockholder, officer, member or deputy member of the
Executive Board, or member or deputy member of the supervisory board of the
Issuer, as such, or of any successor, either directly or through the Issuer or
any successor, under any rule of law, statute or constitutional provision or by
the enforcement of any assessment or by any legal or equitable proceeding or
otherwise, all such liability being expressly waived and released by the
acceptance of the Securities by the Holders thereof and as part of the
consideration for the issue of the Securities.
SECTION 12.2 Provisions of Indenture for the Sole Benefit of Parties
and Securityholders. Nothing in this Indenture or in the Securities, expressed
or implied, shall give or be construed to give to any person, other than the
parties hereto and their successors and assigns and the Holders of the
Securities, any legal or equitable right, remedy or claim under this Indenture
or under any covenant, condition or provision herein contained, all such
covenants and provisions being for the sole benefit of the parties hereto and
their successors and of the Holders of the Securities.
SECTION 12.3 Successors and Assigns of Issuer Bound by Indenture. All
the covenants, stipulations, promises and agreements in this Indenture contained
by the Issuer shall bind its successors and assigns, whether or not so
expressed.
SECTION 12.4 Notices and Demands on Issuer, Trustee and
Securityholders. Any notice or demand which by any provision of this Indenture
is required or permitted to be given or served by the Trustee or by the Holders
of Securities to or on the Issuer may be given or served by being deposited
postage prepaid, first-class mail, in a post office letter box (except as
otherwise specifically provided herein) addressed (until another address of the
Issuer is furnished by the Issuer to the Trustee) to Koninklijke Ahold N.V.,
Albert Heijnweg 1, 1507 EH Zaandam, The Netherlands, Attention: Treasurer. Any
notice, direction, request or demand by the Issuer or any Securityholder to or
upon the Trustee shall be deemed to have been sufficiently given or made, for
all purposes, if given or made in writing at its Corporate Trust Office.
Where this Indenture provides for notice to Securityholders, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Securityholder
entitled thereto, at his last address as it appears in the Register. In any case
where notice to Securityholders is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed, to any particular
Securityholder shall affect the sufficiency of such notice with respect to other
Securityholders. Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Securityholders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver. Notwithstanding anything to the
contrary elsewhere in this Indenture as to the giving of notice, any other form
of written notice is sufficient, if received.
In case, by reason of the suspension of or irregularities in regular
mail service, it shall be impracticable to mail notice to the Issuer and
Securityholders when such notice is required to be given pursuant to any
provision of this Indenture, then notwithstanding anything to the contrary
elsewhere in this Indenture as to the giving of notice, any manner of giving
such notice as shall be satisfactory to the Trustee shall be deemed to be a
sufficient giving of such notice.
SECTION 12.5 Officers' Certificates and Opinions of Counsel;
Statements to Be Contained Therein. Upon any application or demand by the Issuer
to the Trustee to take any action under any of the provisions of this Indenture,
the Issuer shall furnish to the Trustee an Officers' Certificate stating that
all conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with and an Opinion of Counsel stating that
in the opinion of such counsel all such conditions precedent have been complied
with, except that in the case of any such application or demand as to which the
furnishing of such documents is specifically required by any provision of this
Indenture relating to such particular application or demand, no additional
certificate or opinion need be furnished.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture shall include (a) a statement that the person
making such certificate or opinion has read such covenant or condition, (b) a
brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion
are based, (c) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with and (d) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the Issuer may
be based, insofar as it relates to legal matters, upon a certificate or opinion
of or representations by counsel, unless such officer knows that the certificate
or opinion or representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are erroneous. Any
certificate, statement or opinion of counsel may be based, insofar as it relates
to factual matters or information which is in the possession of the Issuer, upon
the certificate, statement or opinion of or representations by an officer or
officers of the Issuer, unless such counsel knows that the certificate,
statement or opinion or representations with respect to the matters upon which
his certificate, statement or opinion may be based as aforesaid are erroneous.
Any certificate, statement or opinion of an officer of the Issuer or
of counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Issuer, unless such officer or counsel, as the
case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with the Trustee shall contain a statement that such firm is
independent.
SECTION 12.6 Official Acts by Successor Entity. Any act or proceeding
by any provision of this Indenture authorized or required to be done or
performed by any board, committee or officer of the Issuer shall and may be done
and performed with like force and effect by the like board, committee or officer
of any entity that shall at the time be the lawful sole successor of the Issuer.
SECTION 12.7 Payments Due on Saturdays, Sundays and Legal Holidays.
Except as may be provided pursuant to Section 2.5 with respect to any series or
tranche, if the date of maturity of interest on or principal of the Securities
of any series or the date fixed for redemption or repayment of any such Security
shall not be a Business Day, then payment of such interest, if any, or principal
need not be made on such date, but may be made on the next succeeding Business
Day with the same force and effect as if made on the date of maturity or the
date fixed for redemption or repayment, and no interest shall accrue for the
period from and after such date.
SECTION 12.8 NEW YORK LAW TO GOVERN. THIS INDENTURE AND EACH SECURITY
SHALL BE DEEMED TO BE A CONTRACT UNDER THE LAWS OF THE STATE OF NEW YORK, AND
FOR ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF SUCH STATE.
SECTION 12.9 Counterparts. This Indenture may be executed in any
number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
SECTION 12.10 Effect of Headings. The Article and Section headings
herein and the Table of Contents are for convenience of reference only, are not
to be considered a part hereof and shall not affect the construction hereof.
SECTION 12.11 Conflict with Trust Indenture Act. If any provision
hereof limits, qualifies or conflicts with a provision of the Trust Indenture
Act of 1939 that is required under such Act to be a part of and govern this
Indenture, the latter provisions shall control. If any provision of this
Indenture modifies or excludes any provision of the Trust Indenture Act of 1939
that may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or to be excluded, as the case may be.
SECTION 12.12 Submission to Jurisdiction. The Issuer (a) agrees that
any legal suit, action or proceeding arising out of or based upon the Indenture
or the Securities may be instituted in any state or U.S. federal court in the
State and County of New York, the Borough of Manhattan, United States of
America, (b) waives, to the extent it may effectively do so, any objection which
it may have now or hereafter to the laying of the venue of any such suit, action
or proceeding, and (c) irrevocably submits to the jurisdiction of any such court
in any such suit, action or proceeding. The Issuer hereby designates Ahold
U.S.A., Inc. as the Issuer's authorized agent to accept and acknowledge on its
behalf service of any and all process which may be served in any such suit,
action or proceeding in any such court and agrees that service of process upon
said agent at its office at One Atlanta Plaza, 950 East Paces Road, Suite 2575,
Atlanta, Georgia 30326, U.S.A., and written notice of said service to the
Issuer, mailed or delivered to it, at Albert Heijnweg 1, 1507 EH Zaandam, The
Netherlands, Attention: Treasurer, shall be deemed in every respect effective
service of process upon the Issuer in any such suit, action or proceeding and
shall be taken and held to be valid personal service upon the Issuer, whether or
not the Issuer shall then be doing, or at any time shall have done, business
within the State of New York, and that any such service of process shall be of
the same force and validity as if service were made upon it according to the
laws governing the validity and requirements of such service in such State, and
waives all claim of error by reason of any such service. Neither such
appointment nor such acceptance of jurisdiction shall be interpreted to include
actions brought under the United States federal securities laws. Said
designation and appointment shall be irrevocable until the earlier of the date
on which no Securities remain Outstanding or the date that this Indenture shall
have been satisfied and discharged in accordance with Article Nine.
SECTION 12.13 Severability. In case any provision in this Indenture or
in the Securities shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, all as of [ ].
KONINKLIJKE AHOLD N.V.
By_________________________
Name:
Title:
Attest:
By_________________________
Name:
Title:
THE CHASE MANHATTAN BANK,
as Trustee
By_________________________
Name:
Title:
Attest:
By_________________________
Name:
Title:
AHOLD FINANCE U.S.A., INC., as Issuer
KONINKLIJKE AHOLD N.V., as Guarantor
AND
THE CHASE MANHATTAN BANK, as Trustee
INDENTURE
Dated as of April 29, 1999
-----------
GUARANTEED SENIOR DEBT SECURITIES
<PAGE>
AHOLD FINANCE U.S.A., INC., as Issuer
KONINKLIJKE AHOLD N.V., as Guarantor
AND
THE CHASE MANHATTAN BANK,
TRUSTEE
INDENTURE
Dated as of
April 29, 1999
The following table shows the location in this Indenture of provisions
inserted pursuant to sections 310 through 318(a) inclusive of the Trust
Indenture Act of 1939, as amended.
TIA Section Indenture Section
- ----------- -----------------
310 (a) (1) 5.7
(a) (2) 5.7
(b) 5.7, 5.8
313 (a) 5.11
(b) 5.11
(c) 5.11
314 (a) 3.8, 3.9(b)
(c) (1) 13.5
(c) (2) 13.5
(c) (3) 13.5
(e) 13.5
315 (a) (2) 5.1, 5.6
317 (a) 4.2
(b) 3.3(a)
318 (a) 13.11
________________
Note: This table shall not, for any purpose, be deemed to be a part of this
Indenture.
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TABLE OF CONTENTS
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ARTICLE ONE DEFINITIONS............................................................................................1
SECTION 1.1 Certain Terms Defined.........................................................................1
ARTICLE TWO SECURITIES.............................................................................................9
SECTION 2.1 Forms Generally...............................................................................9
SECTION 2.2 Form of Face of Security......................................................................9
SECTION 2.3 Form of Reverse of Security..................................................................12
SECTION 2.4 Form of Notation on Security Relating to Guaranty............................................17
SECTION 2.5 Form of Trustees Certificate of Authentication...............................................20
SECTION 2.6 Amount Unlimited; Issuable in Series.........................................................20
SECTION 2.7 Authentication and Delivery of Securities....................................................22
SECTION 2.8 Execution of Securities......................................................................24
SECTION 2.9 Certificate of Authentication................................................................24
SECTION 2.10 Execution and Delivery of Guaranty..........................................................24
SECTION 2.11 Denomination and Date of Securities; Payments of Interest...................................25
SECTION 2.12 Registration, Transfer and Exchange.........................................................26
SECTION 2.13 Mutilated, Defaced, Destroyed, Lost and Stolen Securities...................................28
SECTION 2.14 Cancellation of Securities Paid, etc........................................................29
SECTION 2.15 Assumption by Guarantor.....................................................................29
SECTION 2.16 Temporary Securities........................................................................30
SECTION 2.17 CUSIP Numbers...............................................................................30
SECTION 2.18 Form of Election to Convert.................................................................30
ARTICLE THREE COVENANTS OF THE ISSUER AND THE GUARANTOR...........................................................32
SECTION 3.1 Payment of Principal and Interest............................................................32
SECTION 3.2 Offices for Payments, etc....................................................................32
SECTION 3.3 Paying Agents................................................................................33
SECTION 3.4 Limitation on Liens..........................................................................34
SECTION 3.5 Limitation on Sales and Leasebacks...........................................................35
SECTION 3.6 Notice of Default............................................................................36
SECTION 3.7 Calculation of Original Issue Discount.......................................................36
SECTION 3.8 Reports......................................................................................36
SECTION 3.9 Compliance Certificates......................................................................37
ARTICLE FOUR REMEDIES OF THE TRUSTEE AND SECURITYHOLDERSON EVENT OF DEFAULT.......................................37
SECTION 4.1 Events of Default............................................................................37
SECTION 4.2 Payment of Securities on Default; Suit Therefor..............................................40
SECTION 4.3 Application of Moneys Collected by Trustee...................................................42
SECTION 4.4 Proceedings by Trustee.......................................................................43
SECTION 4.5 Restoration of Rights on Abandonment of Proceedings..........................................43
SECTION 4.6 Proceedings by Securityholders...............................................................44
SECTION 4.7 Remedies Cumulative and Continuing...........................................................44
SECTION 4.8 Control by Securityholders...................................................................44
SECTION 4.9 Waiver of Past Defaults......................................................................45
ARTICLE FIVE CONCERNING THE TRUSTEE...............................................................................45
SECTION 5.1 Reliance on Documents, Opinions, etc.; No Requirement for Expenditure of Own Funds...........45
SECTION 5.2 No Responsibility for Recitals, etc..........................................................47
SECTION 5.3 Trustee and Agents May Hold Securities.......................................................47
SECTION 5.4 Moneys to Be Held in Trust...................................................................47
SECTION 5.5 Compensation and Expenses of Trustee.........................................................47
SECTION 5.6 Right of Trustee to Rely on Officers Certificate, etc........................................48
SECTION 5.7 Eligibility of Trustee.......................................................................48
SECTION 5.8 Resignation or Removal of Trustee; Appointment of Successor Trustee..........................48
SECTION 5.9 Acceptance of Appointment by Successor Trustee...............................................50
SECTION 5.10 Merger, Conversion, Consolidation or Succession to Business of Trustee......................50
SECTION 5.11 Reports by Trustee to Securityholders.......................................................51
ARTICLE SIX CONCERNING THE SECURITYHOLDERS........................................................................51
SECTION 6.1 Action by Securityholders....................................................................51
SECTION 6.2 Proof of Execution by Securityholders........................................................52
SECTION 6.3 Holders to Be Treated as Owners..............................................................53
SECTION 6.4 Securities Owned by Issuer Deemed Not Outstanding............................................53
SECTION 6.5 Right of Revocation of Action Taken..........................................................53
SECTION 6.6 Securityholders Meetings; Purposes...........................................................54
SECTION 6.7 Call of Meetings by Trustee..................................................................54
SECTION 6.8 Call of Meetings by Issuer, Guarantor or Securityholders.....................................55
SECTION 6.9 Qualifications for Voting....................................................................55
SECTION 6.10 Quorum; Adjourned Meetings..................................................................55
SECTION 6.11 Regulations.................................................................................56
SECTION 6.12 Voting......................................................................................56
SECTION 6.13 No Delay of Rights by Meeting...............................................................57
SECTION 6.14 Written Consent in Lieu of Meeting..........................................................57
ARTICLE SEVEN SUPPLEMENTAL INDENTURES.............................................................................57
SECTION 7.1 Supplemental Indentures Without Consent of Securityholders...................................57
SECTION 7.2 Supplemental Indentures With Consent of Securityholders......................................59
SECTION 7.3 Effect of Supplemental Indenture.............................................................60
SECTION 7.4 Certain Documents to Be Given to Trustee.....................................................60
SECTION 7.5 Notation on Securities.......................................................................60
ARTICLE EIGHT CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE...................................................61
SECTION 8.1 Issuer and Guarantor May Consolidate, etc., on Certain Terms.................................61
SECTION 8.2 Successor Entity to Be Substituted...........................................................62
SECTION 8.3 Opinion of Counsel and Officers Certificate to Be Given to Trustee...........................63
ARTICLE NINE SATISFACTION AND DISCHARGE OF INDENTURE;UNCLAIMED MONEYS.............................................63
SECTION 9.1 Satisfaction and Discharge of Indenture......................................................63
SECTION 9.2 Funds Deposited with Trustee for Payment of Securities.......................................64
SECTION 9.3 Repayment of Moneys Held by Paying Agent.....................................................64
SECTION 9.4 Return of Moneys Held by Trustee and Paying Agent Unclaimed for Two Years....................64
SECTION 9.5 Option to Effect Defeasance or Covenant Defeasance...........................................64
SECTION 9.6 Defeasance and Discharge.....................................................................64
SECTION 9.7 Covenant Defeasance..........................................................................65
SECTION 9.8 Conditions to Defeasance or Covenant Defeasance..............................................65
SECTION 9.9 Deposited Money and U.S. Government Obligations to Be Heldin Trust; Other
Miscellaneous Provisions.....................................................................67
ARTICLE TEN REDEMPTION OF SECURITIES AND SINKING FUNDS............................................................67
SECTION 10.1 Applicability of Article....................................................................67
SECTION 10.2 Notice of Redemption; Selection of Securities...............................................68
SECTION 10.3 Payment of Securities Called for Redemption.................................................69
SECTION 10.4 Conversion Arrangement on Call for Redemption...............................................70
SECTION 10.5 Exclusion of Certain Securities from Eligibility for Selection for Redemption...............70
SECTION 10.6 Mandatory and Optional Sinking Funds........................................................70
SECTION 10.7 Redemption for Tax Reasons..................................................................73
ARTICLE ELEVEN CONVERSION OF SECURITIES...........................................................................74
SECTION 11.1 Conversion of Securities....................................................................74
SECTION 11.2 Issuance of Parent Shares on Conversion.....................................................75
SECTION 11.3 No Adjustment for Interest or Dividends.....................................................76
SECTION 11.4 Adjustment of Conversion Price..............................................................76
SECTION 11.5 No Fractional Parent Shares To Be Issued....................................................80
SECTION 11.6 Preservation of Conversion Rights upon Consolidation, Merger, Sale or Similar Event.........80
SECTION 11.7 Notice to Holders of Securities Prior to Taking Certain Types of Action.....................81
SECTION 11.8 Covenant to Reserve Parent Common Shares for Issuance on Conversion of Securities...........81
SECTION 11.9 Compliance with Governmental Requirements...................................................82
SECTION 11.10 Payment of Taxes upon Certificates for Parent Common Shares Issued upon Conversion.........82
SECTION 11.11 Trustees Duties with Respect to Conversion Provisions......................................82
ARTICLE TWELVE GUARANTY OF SECURITIES.............................................................................83
SECTION 12.1 Guaranty....................................................................................83
SECTION 12.2 Representation and Warranty.................................................................85
SECTION 12.3 Subrogation.................................................................................85
ARTICLE THIRTEEN MISCELLANEOUS PROVISIONS.........................................................................85
SECTION 13.1 Incorporators, Shareholders, Officers, Directors, Members of the Executive Board
and Supervisory Board Exempt from Individual Liability................................... ..85
SECTION 13.2 Provisions of Indenture for the Sole Benefit of Parties and Securityholders.................85
SECTION 13.3 Successors and Assigns of Issuer and Guarantor Bound by Indenture...........................86
SECTION 13.4 Notices and Demands on Issuer, Guarantor, Trustee and Securityholders.......................86
SECTION 13.5 Officers Certificates and Opinions of Counsel; Statements to Be Contained Therein...........86
SECTION 13.6 Official Acts by Successor Entity...........................................................87
SECTION 13.7 Payments Due on Saturdays, Sundays and Legal Holidays.......................................87
SECTION 13.8 NEW YORK LAW TO GOVERN......................................................................88
SECTION 13.9 Counterparts................................................................................88
SECTION 13.10 Effect of Headings.........................................................................88
SECTION 13.11 Conflict with Trust Indenture Act..........................................................88
SECTION 13.12 Submission to Jurisdiction.................................................................88
SECTION 13.13 Severability...............................................................................89
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THIS INDENTURE, dated as of April 29, 1999 among AHOLD FINANCE U.S.A.,
INC., a corporation organized under the laws of the State of Delaware, United
States as issuer (the "Issuer"), KONINKLIJKE AHOLD N.V., a company organized
under the laws of The Netherlands with its corporate seat in Zaandam
(municipality Zaanstad), The Netherlands as guarantor (the "Guarantor"), and The
Chase Manhattan Bank, a New York banking corporation, as trustee (the
"Trustee").
W I T N E S S E T H :
WHEREAS, the Issuer has duly authorized the execution and delivery of
this Indenture for the issuance from time to time of its unsecured bonds,
debentures, notes and other evidences of indebtedness to be issued in one or
more series (the "Securities") up to such principal amount or amounts and
denominated in United States dollars or foreign currency or units or composites
of two or more thereof as may from time to time be authorized in accordance with
the terms of this Indenture and to provide, among other things, for the
authentication, delivery and administration thereof, the Issuer has duly
authorized the execution and delivery of this Indenture;
WHEREAS, the Guarantor has duly authorized the execution and delivery
of this Indenture and deems it appropriate from time to time to issue its
guaranty of the Securities on the terms herein provided; and
WHEREAS, all things necessary to make this Indenture, when executed
and delivered by the parties hereto, a valid indenture and agreement according
to its terms, have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities
by the Holders thereof, the Issuer, the Guarantor and the Trustee mutually
covenant and agree for the equal and proportionate benefit of the respective
Holders from time to time of the Securities as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.1 Certain Terms Defined. The following terms (except as
herein otherwise expressly provided or unless the context otherwise clearly
requires) for all purposes of this Indenture and of any indenture supplemental
hereto shall have the respective meanings specified in this Section. All other
terms used in this Indenture that are defined in the Trust Indenture Act of
1939, as amended to the date of this Indenture as originally executed, or the
definitions of which in the Securities Act of 1933, as amended to the date of
this Indenture as originally executed, are referred to in the Trust Indenture
Act of 1939 (except as herein otherwise expressly provided or unless the context
otherwise clearly requires), shall have the meanings assigned to such terms in
said Trust Indenture Act and in said Securities Act as in force at the date of
this Indenture. All accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles (whether or not such is indicated herein), and, except as otherwise
herein expressly provided, the term "generally accepted accounting principles"
with respect to any computation required or permitted hereunder shall mean such
accounting principles as are generally accepted in The Netherlands at the date
of such computation. The words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision. The terms defined in this
Article have the meanings assigned to them in this Article and include the
plural as well as the singular.
"Additional Amounts" has the meaning specified in Section 12.1.
"AEX-Stock Exchange" means the Amsterdam Stock Exchange.
"Attributable Debt" means, as to any particular lease under which any
person is at the time liable, at any date as of which the amount thereof is to
be determined, the total net amount of rent required to be paid by such person
under such lease during the remaining term thereof, discounted from the
respective due dates thereof to such date at the rate of interest per annum
implicit in the terms of such lease (as determined by any two of the following:
the president, any vice president or the secretary of such person) compounded
semi-annually. The net amount of rent required to be paid under any such lease
for any such period shall be the amount of the rent payable by the lessee with
respect to such period, after excluding amounts required to be paid on account
of maintenance and repairs, insurance, taxes, assessments, water rates and
similar charges. In the case of any lease which is terminable by the lessee upon
the payment of a penalty, such net amount shall also include the amount of such
penalty, but no rent shall be considered as required to be paid under such lease
subsequent to the first date upon which it may be so terminated.
"Average Closing Price" means the arithmetic average of the official
closing price per Parent Common Share quoted on the AEX-Stock Exchange for each
Stock Exchange Trading Day during the Relevant Period.
"Bankruptcy Law" means Title 11, United States Code, or any similar
U.S. Federal, state or local law for the relief of debtors or any comparable or
similar foreign laws relating to bankruptcy, receivership, liquidation,
dissolution or similar proceeding.
"Board of Directors" means the Board of Directors of the Issuer or any
duly authorized committee thereof.
"Business Day" means, except as otherwise provided pursuant to Section
2.6 for Securities of any series, any day that is not a Saturday or Sunday and
that is not a day on which banking institutions in The Netherlands or in the
Borough of Manhattan, City and State of New York are generally authorized or
obligated by law to close in the relevant place of payment.
"Cash Dividend" has the meaning specified in Section 11.4.
"Closing Price" on any day means the official closing price per Parent
Common Share quoted on the AEX-Stock Exchange for such day.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or if at any time
after the execution and delivery of this Indenture such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act of 1939, then the body performing such duties on such date.
"Consolidated Net Tangible Assets" means the aggregate amount of
assets of the Guarantor and its Subsidiaries (less applicable reserves and other
properly deductible items) after deducting therefrom (a) all current liabilities
(excluding any thereof which are by their terms extendible or renewable at the
option of the obligor thereon to a time more than 12 months after the time as of
which the amount thereof is being computed and excluding current maturities of
long-term indebtedness and capital lease obligations) and (b) all goodwill, all
as shown in the most recent consolidated balance sheet of the Guarantor and its
Subsidiaries computed in accordance with generally accepted accounting
principles.
"Conversion Agent" has the meaning specified in Section 3.2.
"Conversion Price" means the price at which the Securities shall be
convertible into Parent Common Shares, such price to be established pursuant to
Section 2.6 and to be subject to adjustment as provided in Section 11.4.
"Corporate Trust Office" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered.
"covenant defeasance" and "defeasance" have the meanings assigned to
such terms, respectively, by Sections 9.7 and 9.6.
"Custodian" means any receiver, trustee, assignee, liquidator,
custodian or similar official under any Bankruptcy Law.
"Debt" has the meaning set forth in Section 3.4.
"Depositary" means, with respect to the Securities of any series or
tranche issuable or issued in the form of one or more Global Securities, the
person designated as Depositary for such Global Securities by the Issuer
pursuant to Section 2.7 until a successor Depositary shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Depositary" shall mean or include each person who is then a Depositary for such
Global Securities, and if at any time there is more than one person designated
as Depositary for Global Securities of a particular series or tranche,
"Depositary", as used with respect to the Securities of such series or tranche,
means the Depositary with respect to the particular Global Security or
Securities.
"Dollar", "U.S.$" means the coin or currency of the United States of
America as at the time of payment is legal tender for the payment of public and
private debts.
"Effective Date" means (i) any day on which Parent Common Shares shall
trade on the AEX-Stock Exchange excluding the relevant right or entitlement
relating to an event giving rise to an adjustment of the Conversion Price or
(ii) if the foregoing provision is not applicable, the date on which the
relevant event is announced by the Guarantor or, if no such announcement is
made, the date the relevant issue is made.
"euro" means the currency introduced on January 1, 1999 at the start
of the third stage of economic and monetary union pursuant to the treaty
establishing the European Community.
"Event of Default" means any event or condition specified as such in
Section 4.1.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Executive Board" means the Executive Board ("Raad van Bestuur") of
the Guarantor.
"Extraordinary Dividend" means the amount by which the Total Current
Dividend exceeds the Cash Dividends paid or declared on the Parent Common Shares
for the fiscal year of the Guarantor immediately preceding the Effective Date.
"Funded Debt" means all indebtedness for money borrowed having a
maturity of more than 12 months from the date as of which the amount thereof is
to be determined or having a maturity of less than 12 months but by its terms
being renewable or extendable beyond 12 months from such date at the option of
the borrower.
"Global Security" means a Security evidencing all or a part of a
series or tranche of Securities, issued to the Depositary for such series or
tranche, as the case may be, in accordance with Section 2.7 and bearing the
legend prescribed in Section 2.7.
"guarantee" means any obligation, contingent or otherwise, of any
person directly or indirectly guarantying any indebtedness of any other person
and any obligation, direct or indirect, contingent or otherwise, of such person
(i) to purchase or pay (or advance or supply funds for the purchase or payment
of) such indebtedness of such other person (whether arising by virtue of
partnership arrangements, or by agreement to keep-well, to purchase assets,
goods, securities or services, to take-or-pay, or to maintain financial
statement conditions or otherwise) or (ii) entered into for purposes of assuring
in any other manner the obligee of such indebtedness of the payment thereof or
to protect such obligee against loss in respect thereof (in whole or in part);
provided, however, that the term "guarantee" shall not include endorsements for
collection or deposit in the ordinary course of business. The term "guarantee"
used as a verb has a corresponding meaning.
"Guarantor" means Koninklijke Ahold N.V., a company organized under
the laws of The Netherlands with its corporate seat in Zaandam (municipality
Zaanstad), The Netherlands.
"Guaranty" means the agreement of the Guarantor set forth in Article
Twelve and as endorsed (substantially in the form set forth in Section 2.4) on
each Security authenticated and delivered hereunder.
"Holder", "Holder of Securities", "Securityholder" or other similar
terms means a person in whose name a Security is registered in the Register.
"Indenture" means this instrument as originally executed and delivered
or, if amended or supplemented as herein provided, as so amended and/or
supplemented from time to time, and shall include (i) for all purposes of this
instrument and any supplemental indenture, the provisions of the Trust Indenture
Act of 1939 that are deemed to be a part of and govern this instrument and any
such supplemental indenture, respectively, and (ii) the forms and terms of
particular series of Securities established as contemplated hereunder.
"interest" means, when used with respect to a non-interest bearing
Security, interest payable after the principal thereof has become due and
payable whether at maturity, by declaration of acceleration, by call for
redemption, pursuant to a sinking fund or otherwise.
"Issuer" means Ahold Finance U.S.A., Inc., a corporation organized
under the laws of the State of Delaware, until any successor company shall have
become such pursuant to Article Eight and thereafter "Issuer" shall mean such
successor except as otherwise provided in Section 8.2.
"mandatory sinking fund payment" has the meaning set forth in Section
10.6.
"Market Exchange Rate" has the meaning set forth in Section 6.1.
"Market Price" on any day means the arithmetic mean of the Closing
Prices quoted for the Parent Common Shares on the AEX-Stock Exchange for the ten
consecutive Stock Exchange Trading Days ending on the earlier of such day and
the Stock Exchange Trading Day immediately preceding the Effective Date.
"Mortgage" or "Mortgages" has the meaning set forth in Section 3.4.
"New York Location" means the location in the Borough of Manhattan,
The City of New York, at which at any particular time the Trustee receives and
redelivers Securities.
"Officers' Certificate" means a certificate signed by (1) in the case
of the Issuer, any two of the following: the president or any vice president of
the Issuer and (2) in the case of the Guarantor, any two of the following: the
president, any executive vice president or the secretary of the Guarantor, and,
in each case, delivered to the Trustee. Each such certificate shall include the
statements required by the Trust Indenture Act of 1939 or as provided for in
Section 13.5, if and to the extent required hereby.
"Opinion of Counsel" means an opinion in writing signed by legal
counsel who may be an employee of or counsel to the Issuer, the Guarantor or any
other Subsidiary. Each such opinion shall include the statements required by the
Trust Indenture Act of 1939 or as provided for in Section 13.5, if and to the
extent required hereby.
"optional sinking fund payment" has the meaning set forth in Section
10.6.
"original issue date" of any Security (or portion thereof) means the
earlier of (a) the date of such Security or (b) the date of any Security (or
portion thereof) for which such Security was issued (directly or indirectly) on
registration of transfer, exchange or substitution.
"Original Issue Discount Security" means any Security that provides
for an amount less than the principal amount thereof to be due and payable upon
redemption or a declaration of acceleration of the maturity thereof pursuant to
Section 4.1.
"Outstanding" (except as otherwise required by the Trust Indenture Act
of 1939), when used with reference to Securities, shall, subject to the
provisions of Section 6.4, mean, as of any particular time, all Securities
theretofore authenticated and delivered by the Trustee under this Indenture,
except
(a) Securities theretofore canceled by the Trustee or delivered
to the Trustee for cancellation;
(b) Securities, or portions thereof, which have become due
and for the payment or redemption of which moneys in the
necessary amount shall have been theretofore deposited in trust
with the Trustee or with any paying agent (other than the Issuer)
or shall have been set aside, segregated and held in trust by the
Issuer for the Holders of such Securities (if the Issuer shall
act as its own paying agent); and
(c) Securities in lieu of or in substitution for which other
Securities shall have been authenticated and delivered pursuant
to the terms of Section 2.13, or which shall have been paid
pursuant to Section 2.13.
In determining whether the Holders of the requisite principal amount
of Outstanding Securities of any or all series have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, the principal
amount that shall be deemed to be Outstanding for such purposes in the case of
an Original Issue Discount Security or (unless as otherwise established pursuant
to Section 2.6) in the case of a Security which provides that an amount other
than the face amount thereof will or may be payable upon the maturity thereof or
a declaration of acceleration of the maturity thereof shall be the amount of the
principal thereof that would be due and payable as of the date of such
determination upon a declaration of acceleration of the maturity thereof
pursuant to Section 4.1.
"Overdue Rate" means, unless otherwise specified in the Securities of
any series, the same rate as the rate of interest specified in the Securities of
such series or, in the case of a series of Original Issue Discount Securities,
the Yield to Maturity of such series of Securities.
"Parent American Depositary Receipts" or "Parent ADRs" shall mean
American depositary receipts issued by the Parent Common Shares Depositary
evidencing Parent American Depositary Shares.
"Parent American Depositary Shares" or "Parent ADSs" shall mean the
securities representing the interest in the Parent Common Shares deposited with
the Parent Common Shares Depositary.
"Parent Common Shares" means the common shares, par value NLG 0.50 per
common share, of the Guarantor, as designated on the date hereof, and all shares
resulting from any reclassification of such common shares.
"Parent Common Shares Depositary" shall mean The Bank of New York, a
New York banking corporation, as depositary, or any successor as such
depositary, under the Deposit Agreement dated as of January 20, 1998, among the
Guarantor, the Bank of New York and all owners and beneficial owners from time
to time of ADRs issued thereunder.
"Parent Conversion Shares" has the meaning specified in Section 11.2.
"Parent Shares" means Parent Common Shares and/or Parent American
Depositary Shares.
"person" means any individual, corporation, partnership, joint
venture, association, joint stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"principal" whenever used with reference to the Securities or any
Security or any portion thereof, shall be deemed to include "and premium, if
any".
"record date" has the meaning set forth in Section 2.11.
"Register" has the meaning set forth in Section 2.12.
"Relevant Period" means the period beginning on the first Stock
Exchange Trading day after the Effective Date for the first Cash Dividend
aggregated in the Total Current Dividend, and ending on the Stock Exchange
Trading Day immediately preceding the Effective Date for the Cash Dividend which
caused the adjustment to the Conversion Price; provided, however, that if there
were no Cash Dividends in the 365 consecutive day period prior to this Effective
Date, the Relevant Period will be the entire period of the 365 consecutive days.
"Resolution" means (1) with respect to the Issuer, a resolution of the
Board of Directors of the Issuer or any committee thereof, or (2) with respect
to the Guarantor, a resolution of the Executive Board of the Guarantor,
including, without limitation, any such resolution by which or pursuant to which
any series of Securities is authorized and established pursuant to Section 2.6.
"Responsible Officer", when used with respect to the Trustee, means
the chairman of the board of directors, any vice chairman of the board of
directors, the chairman of the trust committee, the chairman of the executive
committee, any vice chairman of the executive committee, the president, any vice
president, the cashier, the secretary, the treasurer, any senior trust officer,
trust officer, any assistant trust officer, any assistant vice president, any
assistant cashier, any assistant secretary, any assistant treasurer, or any
other officer or assistant officer of the Trustee customarily performing
functions similar to those performed by the persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred
because of his knowledge of and familiarity with the particular subject.
"sale and leaseback transaction" has the meaning set forth in Section
3.5.
"Securities Act" means the Securities Act of 1933, as amended.
"Security" or "Securities" (except as otherwise required by the Trust
Indenture Act of 1939) has the meaning stated in the first recital of this
Indenture or means any Securities that have been issued, authenticated and
delivered under this Indenture, as the context may require.
"Security registrar" has the meaning set forth in Section 2.12.
"series", as used in the definitions of "Indenture" and "Overdue Rate"
in this Section 1.1 and as used in Section 2.6 (except as used in the first
sentence of the second paragraph thereof and in the first and last sentences of
the third paragraph thereof), 2.9, 2.10, 2.11, 2.13, 3.1, 3.2, 3.3 (except as
used in the fourth paragraph thereof), 10.1, 10.2, 10.3, 10.4 and 10.6, means
"tranche" for any Securities of a series of Securities consisting of more than
one tranche.
"sinking fund payment date" has the meaning set forth in Section 10.6.
"Specified Currency" has the meaning set forth in Section 6.1.
"Stock Exchange Trading Day" means a day that AEX-Stock Exchange is
open for trading.
"Subsidiary" means any corporation or other entity of which at least a
majority of the outstanding stock or other ownership interests having by the
terms thereof ordinary voting power for the election of directors, managers or
trustees of such corporation or other entity or other persons performing similar
functions (irrespective of whether or not at the time stock or other ownership
interests of any other class or classes of such corporation or other entity
shall have or might have voting power by reason of the happening of any
contingency) is at the time directly or indirectly owned, or controlled by the
Issuer or the Guarantor or by one or more other Subsidiaries, or by the Issuer
or the Guarantor and one or more other Subsidiaries.
"Tax Redemption Date" has the meaning set forth in Section 10.7.
"Total Current Dividend" has the meaning specified in Section 11.4.
"tranche" means all Securities of the same series having the same
original issue date, interest rate, maturity, repayment and redemption
provisions.
"Trust Indenture Act of 1939" (except as otherwise provided in
Sections 7.1 and 7.2) means the Trust Indenture Act of 1939, as amended, as in
force at the date as of which this Indenture was originally executed; provided,
however, that in the event the Trust Indenture Act of 1939 is amended after such
date, "Trust Indenture Act of 1939" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
"Trustee" means the person identified as "Trustee" in the first
paragraph hereof and, subject to the provisions of Article Five, shall also
include any successor trustee. If pursuant to the provisions of this Indenture
there shall be at any time more than one Trustee hereunder, the term "Trustee"
as used with respect to Securities of any series shall mean the Trustee or
Trustees with respect to the Securities of that series.
"U.S. Government Obligations" has the meaning set forth in Section
9.8.
"vice president", when used with respect to the Trustee, means any
vice president, whether or not designated by a number or a word or words added
before or after the title of "vice president".
"Yield to Maturity" means, in the case of any Original Issue Discount
Security, the yield to maturity specified in such Security or in a Resolution
relating thereto.
ARTICLE TWO
SECURITIES
SECTION 2.1 Forms Generally. The Securities of each series shall be
substantially in the form set forth in this Article, or in such other form as
shall be established by or pursuant to a Resolution or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture and may have imprinted or otherwise reproduced thereon such letters,
numbers or other marks of identification and such legends or endorsements as may
be required to comply with any applicable law, rule or regulation or with the
rules of any securities exchange or as may, consistent with the provisions of
this Indenture, be determined by the officers executing such Securities, as
evidenced by their execution of the Securities. In the case of Securities of any
series that are denominated in a coin or currency (including composite
currencies or currency units) that is, or may be, replaced by the euro, the form
of such Securities may contain such insertions, omissions, substitutions and
other variations as may be deemed appropriate or required.
The definitive Securities shall be printed, lithographed or engraved
on steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
In the case of Securities of any series that are convertible at the
option of Holders into Parent Shares, the form of election to convert shall be
substantially in the form set forth in Section 2.18, or in such other form as
shall be established by or pursuant to a Resolution or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture and may be imprinted or otherwise reproduced on the Securities of such
series.
SECTION 2.2 Form of Face of Security. [If the Security is an Original
Issue Discount Security, insert any legend required by the Internal Revenue Code
of 1986, as amended and the regulations thereunder.]
No.______________________
U.S.$____________________ CUSIP No.____________________
AHOLD FINANCE U.S.A., INC.
[Insert Designation of Series]
Ahold Finance U.S.A., Inc., a company duly organized and existing
under the laws of the State of Delaware (herein called the "Issuer"), for value
received, hereby promises to pay to ________, or registered assigns, the
principal sum of ____________________ on _______________ [if the Security is to
bear interest prior to maturity, insert--, and to pay interest thereon [[insert
as applicable--annually or semi-annually or quarterly]] on [[insert appropriate
interest payment dates]] (the "Interest Payment Dates") in each year, commencing
_____________, [insert--at the rate of __% per annum or, if applicable, insert
the method for determining the adjustable, floating or other form of variable
interest rate borne by the Securities] until the principal hereof is paid or
made available for payment [if applicable, insert --, and (to the extent that
the payment of such interest shall be legally enforceable) at the rate of __%
per annum on any overdue principal and premium, if any, and on any overdue
installment of interest]. Notwithstanding the foregoing, this Security shall
bear interest from the most recent Interest Payment Date to which interest in
respect hereof has been paid or duly provided for, unless (i) the date hereof is
such an Interest Payment Date, in which case from the date hereof, or (ii) no
interest has been paid on this Security, in which case from ____________;
provided, however, that if the Issuer shall default in the payment of interest
due on the date hereof, then this Security shall bear interest from the next
preceding Interest Payment Date to which Interest has been paid or, if no
interest has been paid on this Security from __________. [If the Issuer has the
right to deliver Parent Common Shares in payment, in whole or in part, of the
principal and accrued interest due at maturity, insert applicable provisions.]
Notwithstanding the foregoing, if the date hereof is after the _________ [insert
if applicable--or __________] (whether or not a Business Day) (the "Record
Date") [insert if applicable, as the case may be,] next preceding an Interest
Payment Date and before such Interest Payment Date, this Security shall bear
interest from such Interest Payment Date; provided, however, that if the Issuer
shall default in the payment of interest due on such Interest Payment Date, then
this Security shall bear interest from the next preceding Interest Payment Date
to which interest has been paid or, if no interest has been paid on this
Security, from _________. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, subject to certain exceptions
provided in the Indenture referred to on the reverse hereof, be paid to the
person in whose name this Security is registered at the close of business on the
Record Date next preceding such Interest Payment Date. Unless otherwise
specified for the Security pursuant to Section 2.6, insert - [Interest on this
Security will be computed and paid on the basis of a 360-day year of twelve
30-day months.]
[If the Security is not to bear interest prior to maturity,
insert--The principal of this Security shall not bear interest except in the
case of a default in payment of principal upon acceleration, upon redemption or
at maturity and in such case the overdue principal of this Security shall bear
interest at the rate of __% per annum (to the extent that the payment of such
interest shall be legally enforceable), which shall accrue from the date of such
default in payment to the date payment of such principal has been made or duly
provided for. Interest on any overdue principal shall be payable on demand. Any
such interest on any overdue principal that is not so paid on demand shall bear
interest at the rate of __% per annum (to the extent that the payment of such
interest shall be legally enforceable), which shall accrue from the date of such
demand for payment to the date payment of such interest has been made or duly
provided for, and such interest shall also be payable on demand.]
To secure the due and punctual payment of the principal and additional
interest [If the Security is to bear interest prior to maturity, insert--and
interest], if any, on the Securities of this series and all other amounts
payable by the Issuer under the Indenture and the Securities when and as the
same shall be due and payable, whether at maturity, by acceleration or
otherwise, according to the terms of the Securities and the Indenture,
Koninklijke Ahold N.V. (the "Guarantor") has unconditionally guaranteed the
Securities pursuant to the terms of the Guaranty endorsed hereon and in the
Indenture referred to on the reverse hereof (the "Guaranty"). [If the Security
is convertible into Parent Shares at the option of the Holder, insert -- In
addition, the Guarantor has irrevocably and unconditionally guaranteed to the
Holder of this Security the conversion of this Security in accordance with the
terms of the Indenture, when this Security is presented for conversion in
accordance therewith.]
Payment of the principal of and [if applicable, insert -- any such]
interest on this Security will be made at the office or agency of the Issuer
maintained for that purpose in [insert the places of payment], in [insert the
currency or currencies of payment]; provided, however, that at the option of the
Issuer payment of interest may be made by check mailed to the address of the
person entitled thereto as such address shall appear in the Security register.
[If the Security is an extendible security, insert--The Securities of
this series are subject to repayment on [insert provisions with respect to
repayment date or dates] at the option of the Holders thereof exercisable on or
before the _________________, but not prior to the _______________ preceding
such ____________, at a repayment price equal to the principal amount thereof to
be repaid, together with interest payable thereon to the repayment date, as
described on the reverse side hereof.]
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by the manual signature of one of
its authorized signatories, this Security shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, this instrument has been duly executed in the name
of the Issuer.
AHOLD FINANCE U.S.A., INC.
By_________________________
Attest:
_____________________________
SECTION 2.3 Form of Reverse of Security.
AHOLD FINANCE U.S.A., INC.
This Security is one of a duly authorized issue of securities of the
Issuer (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of [ ], (herein called the "Indenture"),
among the Issuer, the Guarantor and The Chase Manhattan Bank, a New York banking
corporation, as Trustee (herein called the "Trustee"), to which Indenture and
all indentures supplemental thereto reference is hereby made for a statement of
the respective rights, limitations of rights, obligations, duties and immunities
thereunder of the Issuer, the Guarantor, the Trustee and the Holders of the
Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof [if applicable, insert--limited in aggregate principal amount to
_________]. The separate series of Securities may be issued in various aggregate
principal amounts, may mature at different times, may bear interest, if any, at
different rates, may be subject to different redemption provisions (if any), may
be subject to different sinking or purchase funds (if any), may have different
conversion provisions (if any), may be subject to different repayment provisions
(if any), may be subject to different covenants and Events of Default and may
otherwise vary as in the Indenture provided. The Indenture further provides that
the Securities of a single series may be issued at various times, with different
maturity dates, may bear interest, if any, at different rates, may be subject to
different redemption provisions (if any), may be subject to different sinking or
purchase funds (if any) and may be subject to different repayment provisions (if
any).
If at any time subsequent to the issuance of the Securities of this
series as a result of any change in, or amendment to, the laws or regulations of
The Netherlands or of any political subdivision thereof or any authority therein
or thereof having power to tax or as a result of any change in the application
or official interpretation of such laws or regulations, the Guarantor becomes,
or will become, obligated to pay any Additional Amounts with respect to any
payments that it may be required to make pursuant to the Guaranty and such
obligations cannot be avoided by the Issuer or the Guarantor taking reasonable
measures available to either of them, then the Securities of this series will be
redeemable as a whole (but not in part), at the option of the Issuer, at any
time upon not less than thirty (30) nor more than sixty (60) days' notice given
to the Holders at their principal amount [if the Security is to bear interest
prior to maturity, insert--together with accrued interest thereon, if any,] [if
the Security is an Original Issue Discount Security, insert appropriate
provision.] to the date fixed for redemption (the "Tax Redemption Date"). In
order to effect a redemption of Securities of this series as described in this
paragraph, the Issuer shall deliver to the Trustee at least forty-five (45) days
prior to the Tax Redemption Date: (i) a written notice stating that the
Securities of this series are to be redeemed as a whole and (ii) an opinion of
independent legal counsel of recognized standing to the effect that the
Guarantor has or will become obligated to pay Additional Amounts with respect to
any payments which it may be required to make pursuant to the Guaranty as a
result of any such change or amendment. No notice of redemption may be given
earlier than ninety (90) days prior to the earliest date on which the Guarantor
would be obligated to pay such Additional Amounts were a payment in respect of
the Guaranty of the Securities of this series then due. The notice shall
additionally specify the Tax Redemption Date and all other information necessary
to the publication and mailing by the Trustee of notices of such redemption. The
Trustee shall be entitled to rely conclusively upon the information so furnished
by the Issuer and the Guarantor in such notice and shall be under no duty to
check the accuracy or completeness thereof. Such notice shall be irrevocable and
upon its delivery the Guarantor shall be obligated to make the payment or
payments referred to therein to the Trustee.
[If applicable, insert--The Securities of this series are subject to
redemption upon not less than 30 nor more than 60 days' notice by mail, [[if
applicable, insert --(1) on ______ in any year commencing with the year ______
and ending with the year ____ through operation of the sinking fund for this
series (as more fully described in the next succeeding paragraph) at [[insert
either--a redemption price equal to 100% of the principal amount of the
Securities to be redeemed or the redemption prices for redemption through
operation of the sinking fund (expressed as percentages of the principal amount)
set forth in the table below,]], and (2)]] at any time [[if applicable,
insert--on or after ________]], as a whole or in part, at the election of the
Issuer, at the [[insert either--following redemption prices or redemption prices
for redemption otherwise than through operation of the sinking fund]] (expressed
as percentages of the principal amount): if redeemed [[if applicable, insert--on
or before ________, __%, and if redeemed]] during the 12-month period beginning
________ of the years indicated,
Redemption Price For Redemption [[If applicable, insert -- Price
[[if applicable, insert -- For Redemption Otherwise Than
Through Operation of the Through Operation of the Sinking
Year Sinking Fund]] Fund]]
- ---- ------------ ----
and thereafter at a redemption price equal to __% of the principal amount
thereof, together in the case of any such redemption (whether through operation
of the sinking fund or otherwise) with accrued interest to the date fixed for
redemption, but interest installments maturing on or prior to such redemption
date will be payable to the Holders of such Securities of record at the close of
business on the relevant Record Dates referred to on the face hereof, all as
provided in the Indenture.]
[If applicable, insert--The sinking fund for this series provides for
the redemption on ________ in each year beginning with the year ____ and ending
with the year ____ of [[not less than]] U.S.$________ [[("mandatory sinking fund
payments") and not more than U.S.$________]] aggregate principal amount of
Securities of this series.] [If applicable, insert--Securities of this series
acquired or redeemed by the Issuer otherwise than through [[mandatory]] sinking
fund payments [[if applicable, insert--and Securities of this series surrendered
to the Issuer for conversion]] may be credited against subsequent [[mandatory]]
sinking fund payments otherwise required to be made.]
[If applicable, insert--Notwithstanding the foregoing, the Issuer may
not, prior to ________, redeem any Securities of this series as contemplated by
[[Clause (2) of]] the [[second]] preceding paragraph as a part of, or in
anticipation of, any refunding operation by the application, directly or
indirectly, of moneys borrowed having an interest cost to the Issuer (calculated
in accordance with generally accepted financial practice) of less than __% per
annum.]
[If applicable, insert--Partial redemptions must be in an amount not
less than [U.S.$]______________ principal amount of Securities.]
[If applicable, insert--In the event of redemption of this Security in
part only, a new Security or Securities of this series for the unredeemed
portion hereof having the same interest rate and maturity as this Security will
be issued in the name of the Holder hereof upon the cancellation hereof.]
[If the Holders have the right to cause the Issuer to redeem, purchase
or repay in certain circumstances the Security prior to maturity, insert
applicable provisions.]
[If the Security is convertible at the option of the Holder, insert--
Subject to the provisions of the Indenture, the Holder hereof has the right, at
his option at any time until the close of business of the third Business Day (as
hereinafter defined) preceding the maturity date hereof (except that, in case
this Security shall be called for redemption before maturity, such right shall
terminate in respect of this Security at the close of business on the third
Business Day preceding the date fixed for redemption of this Security unless the
Issuer shall default in payment due upon such redemption), to convert this
Security (or any portion hereof which is [[insert minimum denomination]] or an
integral multiple thereof) into fully paid and nonassessable Common Shares of
the Guarantor ("Parent Common Shares"), or American Depositary Shares evidencing
such Parent Common Shares ("Parent ADSs" and, together with such Parent Common
Shares, "Parent Shares"), at the initial Conversion Price of [[U.S.$]]_______
per Parent Common Share, subject to such adjustment, if any, of the Conversion
Price and the securities or other property issuable upon conversion as may be
required by the provisions of the Indenture, but only upon surrender of this
Security to the Trustee or to the Conversion Agent for surrender to the Issuer
or the Guarantor in accordance with the instructions on file with the Conversion
Agent, accompanied by a written notice of election to convert, which shall be
substantially in the Form of Election to Convert contained in the Indenture, and
(if required by the Issuer or the Guarantor) by an instrument or instruments of
transfer, in form satisfactory to the Issuer, the Guarantor and the Conversion
Agent, duly executed by the Holder or by his attorney duly authorized in
writing.]
[If the Security is subject to mandatory conversion or conversion at
the option of the Issuer, insert applicable provisions.]
[If the Security is convertible into Parent Shares, insert--No payment
or adjustment is to be made on conversion of this Security for interest accrued
hereon or for dividends on Parent Common Shares issued on conversion or on
Parent Common Shares underlying Parent ADSs issued on conversion; provided,
however, that if this Security is surrendered for conversion after the Record
Date for a payment of interest and on or before the Interest Payment Date, then,
notwithstanding such conversion, the interest falling due to such Interest
Payment Date will be paid to the person in whose name this Security is
registered at the close of business on such Record Date and any Security
surrendered for conversion during the period from the close of business on any
Record Date to the opening of business on the corresponding Interest Payment
Date must be accompanied by payment of an amount equal to the interest payable
on such Interest Payment Date. No fractional Parent Shares shall be issuable
upon any conversion, but in lieu thereof the Guarantor shall make an adjustment
therefor in cash as provided in the Indenture.]
[If the Security is not an Original Issue Discount Security,
insert--If an Event of Default with respect to Securities of this series shall
occur and be continuing, then the Trustee or the Holders of not less than 25% in
aggregate principal amount (calculated as provided in the Indenture) of the
Securities of this series then Outstanding may declare the principal of the
Securities of this series and accrued interest thereon, if any, to be due and
payable in the manner and with the effect provided in the Indenture.] [If the
Security is an Original Issue Discount Security, insert--If an Event of Default
with respect to Securities of this series shall occur and be continuing, then
the Trustee or the Holders of not less than 25% in aggregate principal amount
(calculated as provided in the Indenture) of the Securities of this series then
Outstanding may declare an amount of principal of the Securities of this series
due and payable in the manner and with the effect provided in the Indenture.
Such amount shall be equal to [[insert formula for determining the amount]].]
[If the Security is an extendible security, insert --The Securities of
this series are subject to repayment in whole, or in part, on [insert month, day
and years], in increments of _______ or multiples of _______ in excess of
______, provided that the portion of the principal amount of any Security of
this series not being repaid shall be at least _____, at the option of the
Holder thereof at a repayment price equal to the principal amount thereof to be
repaid, together with interest payable thereon to the repayment date. For this
Security to be repaid at the option of the Holder, the Trustee must receive at
the Corporate Trust Office or the New York Location, on or before the [insert
month and day] or, if such [insert month and day] is not a day other than a day
on which banking institutions in The Netherlands or in the Borough of Manhattan,
the City and State of New York are authorized or required by law or regulation
to close (a "Business Day"), the next succeeding Business Day, but not earlier
than the [insert month and day] prior to the [insert month and day] on which the
repayment price will be paid (i) this Security, with the form entitled "Option
to Elect Repayment" below duly completed, or (ii) a facsimile transmission or
letter from a member of a national securities exchange or the National
Association of Securities Dealers, Inc. or a commercial bank or trust company in
the United States of America setting forth the name of the Holder of this
Security, the principal amount of the Security, the amount of such Security to
be repaid, a statement that the option to elect repayment is being made thereby
and a guarantee that the Security to be repaid with the form entitled "Option to
Elect Repayment" on the reverse thereof duly completed will be received by the
Issuer no later than five Business Days after the date of such facsimile
transmission or letter, and such Security and form duly completed are received
by the Issuer by such fifth Business Day. Either form of notice duly received on
or before the [insert month and day] preceding any such [insert month and day]
shall be irrevocable. All questions as to the validity, eligibility (including
time of receipt) and acceptance of any Securities of this series for repayment
will be determined by the Issuer, whose determination shall be final and
binding.]
The Indenture permits, with certain exceptions as therein provided,
the amendment or supplementing thereof and the modification of the rights and
obligations of the Issuer and the Guarantor and the rights of the Holders of the
Securities of each series to be affected under the Indenture at any time by the
Issuer, the Guarantor and the Trustee with the consent of the Holders of not
less than a majority in aggregate principal amount (calculated as provided in
the Indenture) of the Securities at the time Outstanding of all series to be
affected (all such series voting as a single class). The Indenture also contains
provisions permitting the Holders of not less than a majority in aggregate
principal amount (calculated as provided in the Indenture) of the Securities of
any series at the time Outstanding, on behalf of the Holders of all Securities
of such series, to waive certain past defaults or Events of Default under the
Indenture and the consequences of any such defaults or Events of Default. Any
such consent or waiver (unless revoked as provided in the Indenture) shall be
conclusive and binding upon any Holder and upon all future Holders of this
Security and of any Security issued upon the registration of transfer hereof or
in exchange heretofore or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest, if any, on
this Security at the times, place and rate, if any, and in the coin or currency,
herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
register, upon due presentment of this Security for registration of transfer at
the office or agency of the Issuer in any place where the principal of and
interest, if any, on this Security are payable, duly endorsed by, or accompanied
by a written instrument of transfer in form satisfactory to the Issuer and the
Security registrar duly executed by the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities of this series,
having the same interest rate and maturity and bearing interest from the same
date as this Security, of any authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of ________ and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Securities of this series are exchangeable for a like aggregate principal
amount of Securities of this series of a different authorized denomination
having the same interest rate and maturity and bearing interest from the same
date as such Securities, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Issuer may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to registration of transfer of this Security in the Security
register, the Issuer, the Guarantor, the Trustee and any agent of the Issuer,
the Guarantor or the Trustee may treat the person in whose name this Security is
registered as the owner hereof for all purposes, whether or not this Security be
overdue and notwithstanding any notation of ownership or other writing thereon,
and none of the Issuer, the Guarantor, the Trustee nor any such agent shall be
affected by notice to the contrary. All payments made to or upon the order of
such registered Holder, shall, to the extent of the sum or sums paid,
effectually satisfy and discharge liability for monies payable on this Security.
No recourse for the payment of the principal of or interest, if any,
on this Security, or for payment pursuant to the Guaranty or for any claim based
hereon or otherwise in respect hereof, and no recourse under or upon any
obligation, covenant or agreement of the Issuer or the Guarantor in the
Indenture or any indenture supplemental thereto or in any Security, or because
of the creation of any indebtedness represented thereby, shall be had against
any incorporator, shareholder, officer, official, member or deputy member of the
Executive Board or member or deputy member of the supervisory board of the
Guarantor or any successor entity, as such, past, present or future, or against
any incorporator, shareholder, officer or member of the Board of Directors of
the Issuer or of any successor entity, as such, past, present or future, either
directly or through the Issuer or the Guarantor, as the case may be, or any
successor corporation, whether by virtue of any constitution, statute or rule of
law or by the enforcement of any assessment or penalty or otherwise, all such
liability being, by the acceptance hereof and as part of the consideration for
the issue hereof, expressly waived and released.
All terms used in this Security and not otherwise defined herein which
are defined in the Indenture shall have the meanings assigned to them in the
Indenture, except with respect to authorization, execution and delivery by the
Issuer.
This Security shall be governed by and construed in accordance with
the laws of the State of New York.
SECTION 2.4 Form of Notation on Security Relating to Guaranty.
GUARANTY
Koninklijke Ahold N.V., a company organized under the laws of The
Netherlands with its corporate seat in Zaandam (municipality Zaanstad), The
Netherlands (the "Guarantor"), FOR VALUE RECEIVED, hereby irrevocably and
unconditionally guarantees to the Holder of the Security upon which this
Guaranty is endorsed, the due and punctual payment of the principal, premium, if
any, and interest, if any, on the Security upon which this Guaranty is endorsed,
when and as the same shall become due and payable, subject to any applicable
grace period, whether on the date of maturity, by acceleration or upon
redemption pursuant to Article Ten of the Indenture referred to in the Security
on which this Guaranty is endorsed or otherwise. All payments under this
Guaranty shall be made in [insert relevant currency].
[If the Security is convertible at the option of the Holder, insert --
The Guarantor hereby also irrevocably and unconditionally guarantees to the
Holder of the Security upon which this Guaranty is endorsed the conversion of
such Security into Parent Shares when presented for conversion in accordance
with the terms of the Indenture.
All payments made pursuant to this Guaranty, including, without
limitation, payments of principal [if the Security is to bear interest prior to
maturity, insert --, interest, if any,] and premium, if any, in respect of the
Security on which this Guaranty is endorsed, shall be made by the Guarantor
without withholding or deduction for or on account of any present or future
taxes, duties, levies, or other governmental charges of whatever nature in
effect on the date of the Indenture or imposed or established in the future by
or on behalf of The Netherlands or any authority in The Netherlands ("Taxes").
In the event any such Taxes are so imposed or established, the Guarantor shall
pay such additional amounts ("Additional Amounts") as may be necessary in order
that the net amounts receivable by each Holder after any payment, withholding or
deduction in respect of such Taxes shall equal the respective amounts of
principal [if the Security is to bear interest prior to maturity, insert --,
interest] and premium, if any, which would have been receivable in respect of
the Security on which this Guaranty is endorsed in the absence of such payment,
withholding or deduction; except that no such Additional Amounts will be payable
with respect to any payment under this Guaranty to, or to a third party on
behalf of, a Holder for or on account of any such Taxes whatever that have been
imposed by reason of (i) the Holder being a resident or deemed a resident of The
Netherlands or having some connection with The Netherlands (including, but not
limited to, the Holder carrying on business in The Netherlands through a
permanent establishment or permanent representative in The Netherlands) other
than the mere holding of such Security or the receipt of principal, interest, if
any, or premium, if any, in respect thereof; (ii) the presentation by the Holder
of the Security on which this Guaranty is endorsed for payment on a date more
than thirty (30) days after the date on which such payment became due and
payable or the date on which payment thereof is duly provided for and notice
thereof is given to the Holders by the Guarantor in accordance with Section
12.4, whichever occurs later (except to the extent that a Holder would have been
entitled to Additional Amounts on presenting the same for payment on the last
day of such period of thirty (30) days); (iii) any estate, inheritance, gift,
sales, transfer or personal property tax or any similar tax, assessment or
governmental charge; (iv) any tax, assessment or other governmental charge which
is payable otherwise than by withholding from payments on or in respect of the
Security on which this Guaranty is endorsed; or (v) any combination of items
(i), (ii), (iii) or (iv). Furthermore, no Additional Amounts shall be paid with
respect to any payment on this Security to a Holder that is a fiduciary or
partnership or other than the sole beneficial owner of such payment to the
extent that a beneficiary or settlor with respect to such fiduciary or a member
of such partnership or beneficial owner would not have been entitled to receive
the Additional Amounts had such beneficiary, settlor, member or beneficial owner
been the Holder.
The obligations of the Guarantor to the Holders of Securities and to
the Trustee pursuant to this Guaranty and the Indenture, and the rights of the
Guarantor with respect thereto, are expressly set forth in Article Twelve of the
Indenture and reference is hereby made to the Indenture for the precise terms of
this Guaranty, which are incorporated herein by reference and made a part
thereof.
No shareholder, officer, official or member of the Executive Board or
the supervisory board of the Guarantor, as such, past, present or future of the
Guarantor shall have any liability under this Guaranty by reason of his, her or
its status as such shareholder, officer, or member of the Executive Board or the
supervisory board.
The Guarantor hereby agrees that its obligations hereunder and under
Article Twelve of the Indenture shall be as principal obligor and not merely as
surety, and shall be unconditional, irrevocable and absolute, irrespective of
the validity, regularity or enforceability of the Security on which this
Guaranty is endorsed or the Indenture, the absence of any action to enforce the
same, any waiver or consent by the Holder of such Security with respect to any
provisions thereof, the recovery of any judgment against the Issuer, any action
to enforce the same, or any other circumstance which might otherwise constitute
a legal or equitable discharge or defense of a guarantor. The Guarantor hereby
waives diligence, presentment, demand of payment, filing of claims with a court
in the event of insolvency or bankruptcy of the Issuer, any right to require a
proceeding first against the Issuer, protest or notice with respect to such
Security or indebtedness evidenced thereby, and all demands whatsoever and
covenants that this Guaranty will not be discharged except by complete
performance of the obligations of the Guarantor contained in the Indenture and
in this Guaranty.
The Guarantor shall be subrogated to all rights of the Holder of the
Security on which this Guaranty is endorsed against the Issuer in respect to any
amounts paid by the Guarantor pursuant to the provisions of this Guaranty as and
to the extent provided in Article Twelve of the Indenture.
This Guaranty shall not be valid or obligatory for any purpose until
the certificate of authentication on the Security upon which this Guaranty is
endorsed shall have been executed by the Trustee under the Indenture by the
manual signature of one of its authorized signatories.
This Guaranty shall be governed by and construed in accordance with
the laws of the State of New York.
Capitalized terms used herein and not otherwise defined herein have
the meanings specified in the Indenture.
IN WITNESS WHEREOF this instrument has been duly executed in the name
of the Guarantor.
KONINKLIJKE AHOLD N.V.
By_________________________
Name:
Title:
SECTION 2.5 Form of Trustee's Certificate of Authentication. The
Trustee's certificate of authentication on all Securities shall be in
substantially the following form:
This is one of the Securities of the series designated herein and
referred to in the within-mentioned Indenture.
Dated:
The Chase Manhattan Bank, as Trustee
By__________________________________
Authorized Signatory
SECTION 2.6 Amount Unlimited; Issuable in Series. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series, each of which may
consist of one or more tranches. There shall be established in or pursuant to a
Resolution, a copy of which, certified by the secretary of the Issuer, shall be
delivered to the Trustee, or established in one or more indentures supplemental
hereto, prior to the issuance of Securities of a particular series,
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities of
the series that may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 2.11, 2.12, 2.13 or 10.3);
(3) the date or dates on which the principal of the Securities of the
series is payable;
(4) the rate or rates at which the Securities of the series shall bear
interest, if any, or the method by which such rate or rates (including the
Overdue Rate) shall be determined, the date or dates from which such
interest shall accrue or the method by which such date or dates may be
determined, the interest payment dates on which such interest shall be
payable and the record dates for the determination of Holders to whom
interest is payable;
(5) the place or places where the principal and any interest on
Securities of the series shall be payable;
(6) the price or prices at which, the period or periods within which
and the terms and conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option of the Issuer, pursuant to any
sinking fund or otherwise;
(7) the obligation, if any, of the Issuer to redeem, purchase or repay
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the price or prices at
which, the period or periods within which and the terms and conditions upon
which Securities of the series shall be redeemed, purchased or repaid, in
whole or in part, pursuant to such obligation;
(8) the price or prices at which, the period or periods within which
and the terms and conditions upon which Securities of the series may be
repaid, in whole or in part, at the option of the Holder thereof;
(9) if the Securities of the series are to be convertible into Parent
Shares, the period or periods within which, the Conversion Price or Prices
at which (and the adjustments to be made thereto, if otherwise than as
provided in Section 11.4)) and the terms and conditions upon which the
Securities of the series may be converted, in whole or in part, into Parent
Shares, whether such conversion is mandatory, at the option of Holders of
the Securities of the series or at the option of the Issuer and the
identity of any Conversion Agent for Securities of the series if other than
or in addition to the Trustee;
(10) if other than Dollars, the coin or currency (including composite
currencies or currency units) in which the Securities of the series shall
be denominated and, if different, the coin or currency (including composite
currencies or currency units) in which payment of the principal of and/or
interest on the Securities of the series shall be payable, and if such coin
or currency (including composite currencies or currency units) is replaced
by the euro, the provisions to effect such replacement;
(11) if the principal of and/or interest on the Securities of the
series are to be payable, at the election of the Issuer or a Holder
thereof, in a coin or currency (including composite currencies or currency
units) other than that in which the Securities are stated to be payable,
the period or periods within which, and the terms and conditions upon
which, such election may be made;
(12) if the amount of payments of principal of and/or interest on the
Securities of the series may be determined with reference to an index based
on a coin or currency (including composite currencies or currency units)
other than that in which the Securities are stated to be payable or with
reference to any other index, the manner in which such amounts shall be
determined;
(13) if other than denominations of U.S.$1,000 (or if the Securities
are denominated in a currency other than Dollars or in a composite
currency, 1,000 units of such other currency, composite currency or other
currency unit) and any multiple thereof, the denominations in which
Securities of the series shall be issuable;
(14) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the maturity thereof pursuant to Section 4.1
or provable in any action or proceeding pursuant to Section 4.2;
(15) if the Securities of the series are Original Issue Discount
Securities, the price at which and the date on which Securities of the
series are to be issued and the Yield to Maturity at the time of issuance
of such series;
(16) if the Securities of the series are to be issued in the form of
one or more Global Securities, the name of the Depositary for such Global
Security or Securities or the nominee of such Depositary;
(17) if the principal of and/or interest on the Securities of the
series are to be payable (whether upon redemption or maturity), at the
election of the Issuer, in Parent Common Shares, the period or periods
within which, or dates on which, and the terms and conditions upon which,
such election may be made:
(18) CUSIP and/or ISIN/CINS numbers for Securities of the series; and
(19) any other terms of the series which are not inconsistent with
this Indenture.
In the case of Securities of a series issued in tranches, all
Securities of any one tranche shall be substantially identical, except as to
denomination. Except as provided in the preceding sentence, all Securities of
any one series shall be substantially identical except as to denomination,
interest rate and maturity and except as may otherwise be provided in or
pursuant to such Resolution or in any such indenture supplemental hereto. The
applicable Resolution or the applicable supplemental indenture may provide that
Securities of any particular series may be issued at various times, with
different maturities and redemption and repayment provisions (if any) and
bearing interest at different rates, but shall for all purposes under this
Indenture, including, but not limited to, voting and Events of Default, be
treated as Securities of a single series.
Except as otherwise specified pursuant to this Section 2.6 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
SECTION 2.7 Authentication and Delivery of Securities. At any time and
from time to time after the execution and delivery of this Indenture, the Issuer
may deliver Securities of any series executed by the Issuer to the Trustee for
authentication, with, in each case, the Guaranty endorsed thereon executed by
the Guarantor, and the Trustee shall thereupon authenticate and make available
for delivery such Securities to or upon the written order of the Issuer, signed
by any two of the following: the president, any executive vice president or the
secretary of the Issuer, without any further action by the Issuer. In
authenticating such Securities and accepting the additional responsibilities
under this Indenture in relation to such Securities the Trustee shall be
entitled to receive, and (subject to the requirements of the Trust Indenture Act
of 1939) shall be fully protected in relying upon:
(1) a copy of any Resolution or Resolutions relating to such series,
certified by the secretary of each of the Issuer and the Guarantor;
(2) an executed supplemental indenture, if any, relating thereto;
(3) an Officers' Certificate of the Issuer setting forth the form and
terms of the Securities as required pursuant to Sections 2.1 and 2.5,
respectively, and prepared in accordance with the requirements of the Trust
Indenture Act of 1939 and Section 13.5;
(4) an Opinion of Counsel, prepared in accordance with the
requirements of the Trust Indenture Act of 1939 and Section 13.5, which
shall state that (i) if the form of such Securities has been established by
or pursuant to a Resolution of the Issuer as permitted by Section 2.1, that
such form or forms, as the case may be, have been established in conformity
with the provisions of this Indenture, and that the terms of such
Securities have been established by or pursuant to a Resolution of the
Issuer as permitted by Section 2.6 in conformity with the provisions of
this Indenture and that the authentication and delivery of such Securities
by the Trustee is authorized under the provisions of this Indenture and
(ii) that such Securities, when authenticated and delivered by the Trustee
and issued by the Issuer in the manner and subject to any conditions
specified in such Opinion of Counsel will constitute valid and legally
binding obligations of the Issuer, enforceable in accordance with their
terms, except as the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting the enforcement
of creditors' rights generally and to general principles of equity
regardless of whether the issue of enforceability is considered in a
proceeding in equity or at law; and
(5) an Opinion of Counsel, prepared in accordance with the
requirements of the Trust Indenture Act of 1939 and Section 13.5, which
shall state that the Guaranty endorsed upon such Securities, when such
Securities are authenticated and delivered by the Trustee and issued by the
Issuer in the manner and subject to any conditions specified in such
Opinion of Counsel will constitute the valid and legally binding obligation
of the Guarantor, enforceable in accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of
creditors' rights generally and to general principles of equity, regardless
of whether the issue of enforceability is considered in a proceeding in
equity or at law.
The Trustee shall have the right to decline to authenticate and
deliver any Securities under this Section if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken by the Issuer or
if the Trustee in good faith by its board of directors or board of trustees,
executive committee, or a trust committee of directors or trustees and/or
Responsible Officers shall determine that such action would expose the Trustee
to personal liability to existing Holders or would adversely affect the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
The Trustee shall not be required to authenticate Securities
denominated in a coin or currency other than that of the United States of
America if the Trustee reasonably determines that such Securities impose duties
or obligations on the Trustee which the Trustee is not able or reasonably
willing to accept; provided that the Trustee, upon the request of the Issuer,
will resign as Trustee with respect to Securities of any series as to which such
a determination is made, prior to the issuance of such Securities, and will
comply with the request of the Issuer to execute and deliver a supplemental
indenture appointing a successor Trustee pursuant to Section 7.1.
If the Issuer shall establish pursuant to Section 2.6 that the
Securities of a series or a tranche are to be issued in the form of one or more
Global Securities, then the Issuer shall execute and the Trustee shall, in
accordance with this Section and the order of the Issuer with respect to such
series, authenticate and deliver one or more Global Securities, in each case
with the Guaranty endorsed thereon executed by the Guarantor, that (i) shall
represent and shall be denominated in an amount equal to the aggregate principal
amount of all of the Securities of such series or such tranche, as the case may
be, issued and not yet canceled, (ii) shall be registered in the name of the
Depositary for such Global Security or Securities or the nominee of such
Depositary, (iii) shall be delivered by the Trustee to such Depositary or
pursuant to such Depositary's instructions and (iv) shall bear such legend, if
any, as shall be required by the Depositary.
Each Depositary of a Global Security designated pursuant to Section
2.6 must, at the time of its designation and at all times while it serves as
Depositary hereunder, be a clearing agency registered under the Exchange Act and
any other applicable statute or regulation.
SECTION 2.8 Execution of Securities. The Securities shall be signed in
the name of the Issuer by its president or any vice president of the Issuer.
Such signatures may be the manual or facsimile signatures of the present or any
future such officers. Typographical and other minor errors or defects in any
such reproduction of any such signature shall not affect the validity or
enforceability of any Security that has been duly authenticated and delivered by
the Trustee.
In case any officer of the Issuer who shall have signed any of the
Securities shall cease to be such officer before the Security so signed shall be
authenticated and delivered by the Trustee or disposed of by the Issuer, such
Security nevertheless may be authenticated and delivered or disposed of as
though the person who signed such Security had not ceased to be such officer of
the Issuer; and any Security may be signed in the name of the Issuer by such
persons as, at the actual date of the execution of such Security, shall be the
proper officers of the Issuer, although at the date of the execution and
delivery of this Indenture any such person was not such an officer.
SECTION 2.9 Certificate of Authentication. Unless a certificate of
authentication substantially in the form hereinbefore recited set forth on a
Security has been executed by the Trustee by the manual signature of one of its
authorized signatories, such Security shall not be entitled to any benefits
under this Indenture and neither such Security nor the Guaranty endorsed thereon
shall be valid or obligatory for any purpose. Such certificate by the Trustee
upon any Security executed by the Issuer shall be conclusive evidence that the
Security so authenticated has been duly authenticated and delivered hereunder
and that the Holder is entitled to the benefits of this Indenture.
SECTION 2.10 Execution and Delivery of Guaranty. To evidence the
Guaranty to the Securityholders hereunder, the Guaranty, substantially in the
form provided in Section 2.4, shall be endorsed on each Security authenticated
and delivered hereunder. The Guaranty endorsed upon each such Security shall be
signed in the name of the Guarantor by the president or any executive vice
president of the Guarantor. Such signature may be the manual or facsimile
signature of the present or any future such officers. Typographical and other
minor errors or defects in any such reproduction of any such signature shall not
affect the validity or enforceability of the Guaranty endorsed upon any Security
that has been duly authenticated and delivered by the Trustee.
In case any officer of the Guarantor who shall have signed any
Guaranty shall cease to hold such office before the Security on which such
Guaranty is endorsed shall be authenticated and delivered by the Trustee or
disposed of by the Issuer, such Security nevertheless may be authenticated and
delivered or disposed of as though the person who signed such Guaranty had not
ceased to hold such office of the Guarantor; and the Guaranty on any Security
may be signed in the name of the Guarantor by such persons as, at the actual
date of the execution of such Guaranty, shall be the proper officers of the
Guarantor, although at the date of the execution and delivery of this Indenture
any such person was not such an officer.
SECTION 2.11 Denomination and Date of Securities; Payments of
Interest. The Securities of each series shall be issuable as registered
Securities without coupons and in denominations as shall be specified as
contemplated by Section 2.6. In the absence of any such specification with
respect to the Securities of any series, the Securities of such series shall be
issuable in denominations of U.S.$1,000 (or, if such Securities are denominated
in a currency other than U.S. dollars or in a composite currency, 1,000 units of
such other currency or composite currency) and any multiple thereof. The
Securities of each series shall be numbered, lettered or otherwise distinguished
in such manner or in accordance with such plan as the officers of the Issuer
executing the same may determine with the approval of a Responsible Officer of
the Trustee as evidenced by the execution and authentication thereof.
Each Security shall be dated the date of its authentication, shall
bear interest, if any, from the date, and shall be payable on the dates, in each
case, which shall be specified as contemplated by Section 2.6.
Except as otherwise specified for a particular series pursuant to
Section 2.6, the person in whose name any Security of any series is registered
at the close of business on any record date (as hereinafter defined) applicable
to a particular series with respect to any interest payment date for such series
shall be entitled to receive the interest, if any, payable on such interest
payment date notwithstanding the cancellation of such Security upon any
registration of any transfer or exchange of such Security subsequent to the
record date and prior to such interest payment date, except if and to the extent
the Issuer shall default in the payment of the interest due on such interest
payment date for such series, in which case such defaulted interest shall be
paid to the persons in whose names Outstanding Securities of such series are
registered at the close of business on a subsequent record date (which shall be
not less than five days prior to the date of payment of such defaulted interest)
established by notice given by mail by or on behalf of the Issuer to the Holders
of Securities not less than 15 days preceding such subsequent record date. The
term "record date" as used with respect to any interest payment date (except a
date for payment of defaulted interest) shall mean the date specified as such in
the terms of the Securities of any particular series, or, if no such date is so
specified, if such interest payment date is the first day of a calendar month,
the fifteenth day of the next preceding calendar month or, if such interest
payment date is the fifteenth day of a calendar month, the first day of such
calendar month, whether or not such record date is a Business Day.
SECTION 2.12 Registration, Transfer and Exchange. The Issuer will
keep, either at the office or agency designated and maintained by the Issuer for
such purpose in the Borough of Manhattan, The City of New York, in accordance
with the provisions of Section 3.2, or at any of such other offices or agencies
as may be designated and maintained in accordance with the provisions of Section
3.2, a register or registers in which, subject to such reasonable regulations as
it may prescribe, it will register, and will register the transfer of,
Securities of a series as in this Article provided. Such register shall be in
written form in the English language or in any other form capable of being
converted into such form within a reasonable time. At all reasonable times such
register or registers shall be open for inspection by the Trustee and any
Security registrar (as defined below) other than the Trustee.
Upon due presentation for registration of transfer of any Security of
any series at any such office or agency to be maintained for the purpose as
provided in Section 3.2, the Issuer shall execute (in each case with the
Guaranty endorsed thereon executed by the Guarantor) and the Trustee shall
authenticate and make available for delivery in the name of the transferee or
transferees a new Security or Securities of the same series in authorized
denominations for a like aggregate principal amount and having the same interest
rate, maturity and repayment and redemption provisions.
Any Security or Securities of any series (other than a Global
Security, except as set forth below) may be exchanged for a Security or
Securities of the same series in other authorized denominations, in an equal
aggregate principal amount and having the same interest rate, maturity,
redemption and repayment provisions. Securities of any series to be exchanged
shall be surrendered at any office or agency to be maintained by the Issuer for
the purpose as provided in Section 3.2, and the Issuer shall execute (in each
case with the Guaranty endorsed thereon executed by the Guarantor) and the
Trustee shall authenticate and make available for delivery in exchange therefor
the Security or Securities of the same series and having the same interest rate,
maturity and repayment and redemption provisions which the Securityholder making
the exchange shall be entitled to receive, bearing numbers or other
distinguishing symbols not contemporaneously outstanding. Each person designated
by the Issuer pursuant to the provisions of Section 3.2 as a person authorized
to register, and register transfer of, the Security is sometimes herein referred
to as a "Security registrar".
The Issuer will at all times designate one person (who may be the
Issuer and who need not be a Security registrar) to act as repository of a
master list of names and addresses of the Holders of the Securities (the
"Register"). The Trustee shall act as such repository unless and until some
other person is, by written notice from the Issuer to the Trustee and each
Security registrar, designated by the Issuer to act as such. The Issuer shall
cause each Security registrar to furnish to such repository, on a current basis,
such information as to all registrations of transfer and exchanges effected by
such registrar, as may be necessary to enable such repository to maintain the
Register on as current a basis as is practicable.
No person shall at any time be designated as or act as a Security
registrar unless such person is at such time empowered under applicable law to
act as such and duly registered to act as such under and to the extent required
by applicable law and regulations.
All Securities presented for registration of transfer, exchange,
redemption or payment shall (if so required by the Issuer or the Trustee) be
duly endorsed by, or be accompanied by a written instrument or instruments of
transfer or exchange in form satisfactory to the Issuer and the Trustee duly
executed by, the Securityholder or his attorney duly authorized in writing.
The Issuer may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any exchange or
registration of transfer of Securities, other than exchanges pursuant to Section
2.15, 7.5 or 10.3 not involving any registration of transfer. No service charge
shall be made for any such transaction.
The Issuer shall not be required to exchange or register a transfer of
(a) any Securities of any series for a period of 15 days next preceding the
selection of Securities of that series to be redeemed, or (b) any Securities
selected, called or being called for redemption or surrendered for repayment in
whole or in part except, in the case of any Security to be redeemed or repaid in
part, the portion thereof not so to be redeemed or repaid.
Notwithstanding any other provision of this Section 2.12, unless and
until it is exchanged in whole or in part for Securities in definitive
registered form, a Global Security representing all or a portion of the
Securities of a series may not be transferred except as a whole by the
Depositary for such series to a nominee of such Depositary or by a nominee of
such Depositary to such Depositary or another nominee of such Depositary or by
such Depositary or any such nominee to a successor Depositary for such series or
a nominee of such successor Depositary.
If at any time the Depositary for any Securities of a series
represented by one or more Global Securities notifies the Issuer that it is
unwilling or unable to continue as Depositary for such Securities or if at any
time the Depositary for such Securities shall no longer be eligible under
Section 2.7, the Issuer shall appoint a successor Depositary with respect to
such Securities. If a successor Depositary for such Securities is not appointed
by the Issuer within 90 days after the Issuer receives such notice or becomes
aware of such ineligibility, the Issuer's election pursuant to Section 2.6 that
such Securities be represented by one or more Global Securities shall no longer
be effective and the Issuer will execute, and the Trustee, upon receipt of an
Officers' Certificate for the authentication and delivery of definitive
Securities of such series, will authenticate and make available for delivery
definitive Securities of the same series, in any authorized denominations, in an
aggregate principal amount equal to the principal amount of the Global Security
or Securities representing such Securities, in exchange for such Global Security
or Securities.
The Issuer may at any time, and in its sole discretion, determine that
Securities issued in the form of one or more Global Securities shall no longer
be represented by a Global Security or Securities. In such event the Issuer will
execute, and the Trustee, upon receipt of an Officers' Certificate for the
authentication and delivery of definitive Securities, will authenticate and make
available for delivery definitive Securities of the same series, in any
authorized denominations, in an aggregate principal amount equal to the
principal amount of the Global Security or Securities, in exchange for such
Global Security or Securities.
If specified by the Issuer pursuant to Section 2.6 with respect to
Securities represented by a Global Security, the Depositary for such Global
Security may surrender such Global Security in exchange in whole or in part for
definitive Securities of the same series on such terms as are acceptable to the
Issuer and such Depositary. Thereupon, the Issuer shall execute, (in each case
with the Guaranty endorsed thereon executed by the Guarantor) and the Trustee
shall authenticate and make available for delivery, without service charge:
(i) to the person specified by such Depositary, a new Security or
Securities of the same series, of any authorized denominations as requested
by such person, in an aggregate principal amount equal to and in exchange
for such person's beneficial interest in the Global Security; and
(ii) to such Depositary a new Global Security in a denomination equal
to the difference, if any, between the principal amount of the surrendered
Global Security and the aggregate principal amount of Securities
authenticated and delivered pursuant to clause (i) above.
Upon the exchange of a Global Security for definitive Securities, in
authorized denominations, such Global Security shall be canceled by the Trustee
or an agent of the Issuer, the Guarantor or the Trustee. Definitive Securities
issued in exchange for a Global Security pursuant to this Section 2.12 shall be
registered in such names and in such authorized denominations as the Depositary
for such Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee or an agent of the Issuer,
the Guarantor or the Trustee. The Trustee or such agent shall make such
Securities available for delivery to or as directed by the persons in whose
names such Securities are so registered.
SECTION 2.13 Mutilated, Defaced, Destroyed, Lost and Stolen
Securities. In case any temporary or definitive Security shall become mutilated,
defaced or be destroyed, lost or stolen and, in the absence of notice to the
Issuer or the Trustee that any destroyed, lost or stolen Security has been
acquired by a bona fide purchaser, the Issuer may in its discretion execute
(with the Guaranty endorsed thereon executed by the Guarantor) and the Trustee
shall authenticate and make available for delivery, a new Security of the same
series and of like tenor, bearing a number or other distinguishing symbol not
contemporaneously Outstanding, in exchange and substitution for the mutilated or
defaced Security, or in lieu of and substitution for the Security so destroyed,
lost or stolen. In every case the applicant for a substitute Security shall
furnish to the Issuer, the Guarantor and the Trustee (and any agent of the
Issuer, the Guarantor or Trustee, if requested by the Issuer or the Guarantor)
such security or indemnity as may be required by them to indemnify and defend
and to save each of them harmless and, in every case of destruction, loss or
theft, evidence to their satisfaction of the destruction, loss or theft of such
Security and of the ownership thereof.
Upon the issuance of any substitute Security, the Issuer may require
the payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto and any other expenses (including the
fees and expenses of the Trustee) connected therewith.
In case any Security that has matured or is about to mature or has
been called for redemption in full shall become mutilated or defaced or be
destroyed, lost or stolen, the Issuer in its discretion may instead of issuing a
substitute Security, pay or authorize the payment of the same (without surrender
thereof except in the case of a mutilated or defaced Security), if the applicant
for such payment shall furnish to the Issuer, the Guarantor and the Trustee (and
any agent of the Issuer, the Guarantor or the Trustee, if requested by the
Issuer or the Guarantor) such security or indemnity as any of them may require
to indemnify and defend and to save each of them harmless, and, in every case of
destruction, loss or theft, evidence to their satisfaction of the destruction,
loss or theft of such Security and of the ownership thereof.
Every substituted Security of any series, and the Guaranty endorsed
thereon, issued pursuant to the provisions of this Section by virtue of the fact
that any such Security is destroyed, lost or stolen shall constitute an
additional contractual obligation of the Issuer and the Guarantor, respectively,
whether or not the destroyed, lost or stolen Security shall be at any time
enforceable by anyone and shall be entitled to all the benefits of (but shall be
subject to all the limitations of rights set forth in) this Indenture equally
and proportionately with any and all other Securities of such series duly
authenticated and delivered hereunder. All Securities shall be held and owned
upon the express condition that, to the extent permitted by law, the foregoing
provisions are exclusive with respect to the replacement or payment of
mutilated, defaced or destroyed, lost or stolen Securities and shall preclude
any and all other rights or remedies notwithstanding any law or statute existing
or hereafter enacted to the contrary with respect to the replacement or payment
of negotiable instruments or other securities without their surrender.
SECTION 2.14 Cancellation of Securities Paid, etc. All Securities
surrendered for the purpose of payment, redemption, registration of transfer,
conversion or exchange, or for credit against any payment in respect of a
sinking or analogous fund, if surrendered to the Issuer, any Security registrar,
any paying agent, the Conversion Agent or any other agent of the Issuer or any
agent of the Trustee, shall be delivered to the Trustee and promptly canceled by
it or, if surrendered to the Trustee, shall be promptly canceled by it; and no
Securities shall be issued in lieu thereof except as expressly permitted by any
of the provisions of this Indenture. The Trustee shall deliver canceled
Securities to the Issuer. If the Issuer shall acquire any of the Securities,
such acquisition shall not operate as a redemption or satisfaction of the
indebtedness represented by such Securities unless and until the same are
delivered to the Trustee for cancellation.
SECTION 2.15 Assumption by Guarantor. The Guarantor may, without the
consent of the Securityholders, assume all of the covenants, agreements, rights
and obligations of the Issuer hereunder with respect to any series of Securities
and under the Securities of such series if, after giving effect to such
assumption, no Event of Default shall have occurred and be continuing. Upon such
an assumption, the Guarantor shall execute a supplemental indenture evidencing
its assumption of all such rights and obligations of the Issuer and the Issuer
shall be released from its liabilities hereunder and under such Securities as
obligor on the Securities of such series.
SECTION 2.16 Temporary Securities. Pending the preparation of
definitive Securities for any series, the Issuer may execute (with the Guaranty
endorsed thereon executed by the Guarantor), and the Trustee shall authenticate
and make available for delivery temporary Securities for such series (printed,
lithographed, typewritten or otherwise reproduced). Temporary Securities of any
series shall be issuable as registered Securities without coupons, in any
authorized denomination, and substantially in the form of the definitive
Securities of such series in lieu of which they are issued but with such
omissions, insertions and variations as may be appropriate for temporary
Securities, all as may be determined by the Issuer and the Guarantor. Temporary
Securities may contain such reference to any provisions of this Indenture as may
be appropriate. Every temporary Security shall be authenticated by the Trustee
upon the same conditions and in substantially the same manner, and with like
effect, as the definitive Securities in lieu of which they are issued. Without
unreasonable delay, and in no case more than 60 days after the issuance of such
temporary Securities, the Issuer shall execute definitive Securities of such
series and the Issuer shall furnish (with, in each case, the Guaranty endorsed
thereon executed by the Guarantor) such definitive securities and thereupon
temporary Securities of such series may be surrendered in exchange therefor
without charge at each office or agency to be maintained by the Issuer for that
purpose pursuant to Section 3.2, and the Trustee shall authenticate and make
available for delivery in exchange for such temporary Securities of such series
a like aggregate principal amount of definitive Securities of the same series of
authorized denominations having the same interest rate, maturity and redemption
and repayment provisions, and bearing interest from the same date as such
temporary Securities. Until so exchanged, the temporary Securities of any series
shall be entitled to the same benefits under this Indenture as definitive
Securities of the same series authenticated and delivered hereunder.
SECTION 2.17 CUSIP Numbers. The Issuer in issuing the Securities may
use "CUSIP" or "ISIN" numbers (if then generally in use), and, if so, the
Trustee shall use "CUSIP" or "ISIN" numbers in notices of redemption as a
convenience to Securityholders; provided that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any defect in or
omission of such numbers.
SECTION 2.18 Form of Election to Convert. The notice of conversion to
be delivered by a Holder to the Conversion Agent in connection with the
conversion of Securities of any series that are convertible into Parent Shares
shall be in substantially the following form, with such appropriate insertions,
omissions, substitutions and other variations as are deemed necessary or
appropriate by the Guarantor or the Trustee:
NOTICE OF CONVERSION
The undersigned Holder of the Securities specified below hereby
irrevocably exercises the option to convert such Securities, or the aggregate
principal amount thereof specified below, into Common Shares of the Guarantor
("Parent Common Shares") or American Depositary Shares evidencing such Parent
Common Shares ("Parent ADSs" and, together with such Parent Common Shares, the
"Parent Shares"), as indicated below, in accordance with the terms of the
Securities and the Indenture dated as of _______, (the "Indenture") among Ahold
Finance U.S.A., Inc., as Issuer, Koninklijke Ahold N.V., as Guarantor, and The
Chase Manhattan Bank, as Trustee, and directs that (i) if such Holder is
electing to receive Parent Common Shares, the Parent Common Shares issuable and
deliverable upon conversion be delivered to such Holder through Nederlands
Centraal Instituut voor Giraal Effectenverkeer and (ii) if such Holder elects to
receive Parent ADSs, the Parent American Depositary Receipts evidencing such
Parent ADSs issuable and deliverable on conversion be issued in the name of and
delivered to the undersigned unless otherwise indicated below and, in either
case, any check in payment for fractional Parent Shares be issued in the name of
and delivered to the undersigned unless a different name has been indicated
below. If Parent ADSs are to be issued in the name of a person other than the
undersigned, the undersigned has paid all transfer taxes payable with respect
thereto. All capitalized terms used herein and not defined herein shall have the
meanings specified in the Indenture.
Dated:
------------------------------
Signature (for Conversion only)
Title of Securities:
Certificate Number(s)
(if applicable):
Aggregate Principal Amount
Represented:(1)
Principal Amount to be
Converted:(2)
(1) Unless otherwise specified, a Holder will be deemed to be converting the
entire principal amount of the Securities delivered.
(2) Certificate registered in the name of the Holder will be issued in the
principal amount of the Securities not converted, unless otherwise
provided.
Indicate Parent Shares to be issued:
(_) Parent Common Shares
(_) Parent American Depositary Shares
If ADSs are to be received and
are to be issued otherwise
than to Holder:
- -----------------------------
Please print name and address
If check for fractional Parent Shares to be issued otherwise than to Holder:
- -----------------------------
Please print name and address
Please print name and address of Holder
- -----------------------------
- -----------------------------
Signature Guarantee: ________________________
ARTICLE THREE
COVENANTS OF THE ISSUER AND THE GUARANTOR
SECTION 3.1 Payment of Principal and Interest. The Issuer covenants
and agrees for the benefit of each series of Securities that it will duly and
punctually pay or cause to be paid the principal of and interest, if any, on
each of the Securities of such series at the place or places, at the respective
times and in the manner provided in such Securities, but in no event later than
10 a.m., New York time, on the respective payment date. The Issuer shall request
that the bank, through which any such payment is to be made, agree to supply to
the Trustee two Business Days prior to the due date for any such payment an
irrevocable confirmation (by tested telefax or authenticated SWIFT MT 100
Message) of its intention to make such payment. Except as otherwise provided
pursuant to Section 2.6 for Securities of any series, each installment of
interest on the Securities of any series may be paid by mailing checks for such
interest payable to the person entitled thereto as such addresses shall appear
in the Register.
SECTION 3.2 Offices for Payments, etc. So long as any of the
Securities remain outstanding, the Issuer will designate and maintain in the
Borough of Manhattan, The City of New York, for each series: (a) an office or
agency where the Securities may be presented for payment, (b) if the Securities
of such series are convertible into Parent Shares, an office or agency where the
Securities may be presented for conversion into Parent Shares (hereinafter the
"Conversion Agent", which term shall include any additional Conversion Agents as
may be appointed by the Issuer), (c) an office or agency where the Securities
may be presented for registration of transfer and for exchange as in this
Indenture provided and (d) an office or agency where notices and demands to or
upon the Issuer in respect of the Securities or of this Indenture may be served.
In addition to such office or offices or agency or agencies, the Issuer may from
time to time designate and maintain one or more additional offices or agencies
within or outside the Borough of Manhattan, The City of New York, where the
Securities of that series may be presented for payment or for registration of
transfer or for exchange, and the Issuer may from time to time rescind such
designation, as it may deem desirable or expedient. The Issuer will give to the
Trustee written notice of the location of any such office or agency and of any
change of location thereof. The Issuer hereby designates the New York Location
and the Corporate Trust Office as the initial offices to be maintained by it for
such purposes. In case the Issuer shall fail to maintain any such office or
agency or shall fail to give such notice of the location or of any change in the
location thereof, presentations and demands may be made and notices may be
served at the Corporate Trust Office and the Issuer appoints the Trustee as its
agent to receive all such presentations, surrenders, notices and demands.
SECTION 3.3 Paying Agents. Whenever the Issuer shall appoint a paying
agent or agents other than the Trustee with respect to the Securities of any
series, it will cause each such paying agent to execute and deliver to the
Trustee an instrument in which each such paying agent shall agree with the
Trustee, subject to the provisions of this Section,
(a) that it will hold all sums received by it as such agent for the
payment of the principal of or interest, if any, on the Securities of such
series (whether such sums have been paid to it by the Issuer or by any
other obligor on the Securities of such series) in trust for the benefit of
the persons entitled thereto until such sums shall be paid to such persons
or otherwise disposed of as herein provided,
(b) that it will give the Trustee written notice of any default by the
Issuer (or by any other obligor on the Securities of such series) to make
any payment of the principal of or interest, if any, on the Securities of
such series when the same shall be due and payable, and
(c) that, at any time during the continuance of any such default
referred to in clause (b) above, upon the written request of the Trustee,
it will forthwith pay to the Trustee all sums so held in trust by such
paying agent.
Whenever the Issuer shall have one or more paying agents with respect
to Securities of any series, it will, prior to each due date of the principal of
or interest, if any, on the Securities of such series, deposit with a designated
paying agent a sum sufficient to pay such principal or interest, if any, so
becoming due, such sum to be held in trust for the benefit of the persons
entitled to such principal or interest, if any, and (unless such paying agent is
the Trustee) the Issuer will promptly notify the Trustee of any failure to take
such action.
If the Issuer shall act as its own paying agent with respect to the
Securities of any series, it will, on or before each due date of the principal
of or interest, if any, on the Securities of such series, set aside, segregate
and hold in trust for the benefit of the persons entitled to such principal and
interest, if any, a sum sufficient to pay such principal or interest, if any, so
becoming due until such sums shall be paid to such persons or otherwise disposed
of as herein provided. The Issuer will promptly notify the Trustee of any
failure to take such action.
Anything in this Section to the contrary notwithstanding, the Issuer
may at any time, for the purpose of obtaining a satisfaction and discharge with
respect to one or more or all series of Securities hereunder, or for any other
reason, pay or cause to be paid to the Trustee all sums held in trust for any
such series by the Issuer or any paying agent hereunder, as required by this
Section, such sums to be held by the Trustee upon the trusts herein contained.
Anything in this Section to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section is subject to the
provisions of Sections 9.3 and 9.4.
SECTION 3.4 Limitation on Liens. The Guarantor will not itself, and
will not permit any Subsidiary to, incur, issue, assume or guarantee any
indebtedness for money borrowed or any other indebtedness evidenced by notes,
bonds, debentures or other similar evidences of indebtedness for money borrowed
(hereinafter in this Section and in Section 3.5 called "Debt") secured by pledge
of, or mortgage, deed of trust or other lien on, the whole or any part of its,
or any such Subsidiary's, as the case may be, undertakings, assets (including
shares of stock or Debt) or revenues, present or future (such pledges,
mortgages, deeds of trust and other liens being hereinafter in this Section and
in Section 3.5 called "Mortgage" or "Mortgages"), without effectively providing
that the Securities of all series (together with, if the Guarantor shall so
determine, any other Debt of the Guarantor or such Subsidiary then existing or
thereafter created which is not subordinate to the Securities) shall be secured
equally and ratably with (or prior to) such secured Debt, so long as such
secured Debt shall be so secured, unless, after giving effect thereto, the
aggregate principal amount of all such secured Debt which would otherwise be
prohibited, plus all Attributable Debt of the Guarantor and its Subsidiaries in
respect of sale and leaseback transactions (as defined in Section 3.5) which
would otherwise be prohibited by Section 3.5 would not exceed the greater of (i)
U.S.$750,000,000 or (ii) the sum of 15% of Consolidated Net Tangible Assets;
provided, that this Section shall not apply to, and there shall be excluded from
secured Debt in any computation under this Section, Debt secured by:
(a) Mortgages on property of, or on any shares of stock or Debt of,
any corporation existing at the time such corporation becomes a Subsidiary;
(b) Mortgages to secure indebtedness of any Subsidiary to the
Guarantor or to another Subsidiary;
(c) Mortgages for taxes, assessments or governmental charges or levies
in each case (i) not then due and delinquent or (ii) the validity of which
is being contested in good faith by appropriate proceedings, and
materialmen's, mechanics', carriers', workmen's, repairmen's, landlord's or
other like Mortgages, or deposits to obtain the release of such Mortgages;
(d) Mortgages arising under an order of attachment or distraint or
similar legal process so long as the execution or enforcement thereof is
effectively stayed and the claims secured thereby are being contested in
good faith;
(e) Mortgages to secure public or statutory obligations or to secure
payment of workmen's compensation or to secure performance in connection
with tenders, leases of real property, bids or contracts or to secure (or
in lieu of) surety or appeal bonds and Mortgages made in the ordinary
course of business for similar purposes;
(f) Mortgages on property (including any lease which should be
capitalized on the lessee's balance sheet in accordance with generally
accepted accounting principles), shares of stock or Debt existing at the
time of acquisition thereof (including acquisition through merger or
consolidation or through purchase or transfer of the properties of a
corporation as an entirety or substantially as an entirety) or to secure
the payment of all or any part of the purchase price or construction cost
or improvement cost thereof or to secure any Debt incurred prior to, at the
time of, or within one year after, the acquisition of such property or
shares or Debt or the completion of any such construction (including any
improvements on an existing property) or the commencement of commercial
operation of such property, whichever is later, for the purpose of
financing all or any part of the purchase price or construction cost
thereof;
(g) Mortgages to secure guarantees arising in connection with the
sale, discount, guarantee or pledge of notes, chattel mortgages, leases,
accounts receivable, trade acceptances and other paper arising, in the
ordinary course of business, out of installment or conditional sales to or
by, or transactions involving title retention with, distributors, dealers
or other customers, or merchandise, equipment or services;
(h) Mortgages existing at the date of this Indenture; and
(i) Any extension, renewal or replacement (or successive extensions,
renewals or replacements), as a whole or in part, of any Mortgage referred
to in the foregoing clauses (a) to (h), inclusive; provided, that (i) such
extension, renewal or replacement Mortgage shall be limited to all or a
part of the same property, shares of stock or Debt that secured the
Mortgage extended, renewed or replaced (plus improvements on such property)
and (ii) the Debt secured by such Mortgage at such time is not increased.
SECTION 3.5 Limitation on Sales and Leasebacks. The Guarantor will not
itself, and it will not permit any Subsidiary to, enter into any arrangement
with any bank, insurance company or other lender or investor (not including the
Guarantor or any Subsidiary) or to which any such lender or investor is a party,
providing for the leasing by the Guarantor or any such Subsidiary for a period,
including renewals, in excess of three years, of any property, whether owned by
the Guarantor or such Subsidiary as of the date of this Indenture or thereafter
acquired which has been or is to be sold or transferred more than 270 days after
the acquisition thereof or after the completion of construction and commencement
of full operation thereof, by the Guarantor or any such Subsidiary to such
lender or investor or to any person to whom funds have been or are to be
advanced by such lender or investor on the security of such property (herein
referred to as a "sale and leaseback transaction") unless either:
(a) the Guarantor or such Subsidiary could create Debt secured by a
Mortgage on the property to be leased back in an amount equal to the
Attributable Debt with respect to such sale and leaseback transaction
without equally and ratably securing the Securities of all series pursuant
to Section 3.4, or
(b) the Guarantor within 180 days after the sale or transfer shall
have been made by the Guarantor or by any such Subsidiary, applies an
amount equal to the greater of (i) the net proceeds of the sale of the
property sold and leased back pursuant to such arrangement or (ii) the fair
market value of the property so sold and leased back at the time of
entering into such arrangement (as determined by any two of the following:
the president, any executive vice president or the secretary of the
Guarantor) to (x) the purchase of property, facilities or equipment (other
than the property, facilities or equipment involved in such sale) having a
value at least equal to the net proceeds of such sale or (y) the retirement
of Funded Debt of the Guarantor or any Subsidiary; provided, that the
amount required to be applied to the retirement of Funded Debt of the
Guarantor or any Subsidiary shall be reduced by (i) the principal amount of
any Securities of any series (or, if the Securities of any series are
Original Issue Discount Securities, such portion of the principal amount as
may be due and payable with respect to Securities of such series pursuant
to a declaration in accordance with Section 4.1 or, if the Securities of
any series provide that an amount other than the face thereof will or may
be payable upon the maturity thereof or a declaration of acceleration of
the maturity thereof, such amount as may be due and payable with respect to
Securities of such series pursuant to a declaration in accordance with
Section 4.1) delivered within 180 days after such sale or transfer to the
Trustee for retirement and cancellation, and (ii) the principal amount of
Funded Debt, other than the Securities of any series, voluntarily retired
by the Guarantor or any Subsidiary within 180 days after such sale or
transfer. Notwithstanding the foregoing, no retirement referred to in
clause (b) of the preceding sentence may be effected by payment at maturity
or pursuant to any mandatory sinking fund payment or any mandatory
prepayment provision.
SECTION 3.6 Notice of Default. The Issuer and the Guarantor shall file
with the Trustee written notice of the occurrence of any default or Event of
Default within five Business Days of any officer of the Issuer or the Guarantor
becoming aware of any such default or Event of Default.
SECTION 3.7 Calculation of Original Issue Discount. The Issuer shall
file with the Trustee promptly at the end of each calendar year a written notice
specifying the amount of original issue discount (including daily rates and
accrual periods) accrued on Outstanding Securities as of the end of such year
and such other specific information relating to such original issue discount as
may then be required under the Internal Revenue Code of 1986, as amended from
time to time.
SECTION 3.8 Reports. Each of the Issuer and the Guarantor shall comply
with the provisions of ss. 314(a) of the Trust Indenture Act of 1939. The
Guarantor shall file with the Trustee within 45 days after it files them with
the Commission and in any event no later than 180 days after the end of the
respective fiscal quarter, copies of its annual report and of the information,
documents and other reports (or copies of such portions of any of the foregoing
as the Commission may by rules and regulations prescribe) which the Guarantor is
required to file with the Commission pursuant to Section 13 or 15(d) of the
Exchange Act.
SECTION 3.9 Compliance Certificates. (a) On or before April 15 in each
year (commencing with the first April 15 which is not less than 60 days
following the first date of issuance of Securities of any series under this
Indenture), each of the Issuer and the Guarantor will file with the Trustee a
brief certificate, signed by its principal executive officer, principal
financial officer or principal accounting officer, stating whether or not the
signer has knowledge of any default by the Issuer or the Guarantor,
respectively, in the performance or fulfillment of any covenant, agreement, or
condition contained in this Indenture, and, if so, specifying each such default
of which the signer has knowledge, the nature thereof, and what action, if any,
has been taken and is proposed to be taken to cure such default. For purposes of
this paragraph, such compliance shall be determined without regard to any period
of grace or requirement of notice provided under this Indenture.
(b) The Issuer and the Guarantor also shall comply with the other
provisions of ss. 314(a) of the Trust Indenture Act of 1939.
ARTICLE FOUR
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 4.1 Events of Default. "Event of Default" with respect to
Securities of a particular series wherever used herein, means any one of the
following events and such other events as may be established with respect to the
Securities of such series as contemplated by Section 2.6, continued for the
period of time, if any, and after the giving of notice, if any, designated in
this Indenture or as may be established with respect to such Securities as
contemplated by Section 2.6, as the case may be, unless such event is either
inapplicable or is specifically deleted or modified in, or pursuant to, the
applicable Resolution or in the supplemental indenture under which such series
of Securities is issued, as the case may be, as contemplated by Section 2.6:
(a) default in the payment of any installment of interest on the
Securities of such series or any Additional Amounts under the Guaranty
relating to the Securities of such series as and when the same shall become
due and payable, and continuance of such default for a period of 30 days;
or
(b) default in the payment of the principal of (and premium, if any,
on) any of the Securities of such series as and when the same shall become
due and payable either at maturity, upon redemption, by declaration or
otherwise; or
(c) default in the payment of any sinking fund installment as and when
the same shall become due and payable by the terms of the Securities of
such series; or
(d) failure on the part of the Issuer or the Guarantor duly to observe
or perform any other of the covenants or agreements on the part of the
Issuer or the Guarantor, as the case may be, in respect of the Securities
of such series contained in this Indenture (other than a covenant or
agreement in respect of the Securities of such series a default in the
performance of which or a breach of which is elsewhere in this Section
specifically addressed), and continuance of such default or breach for a
period of 90 days after there has been given, by registered or certified
mail, to the Issuer and the Guarantor, by the Trustee, or to the Issuer,
the Guarantor and the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Securities of such series, a written notice
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
(e) the Issuer or the Guarantor or any Subsidiary shall either (A)
default in the payment of the principal of, or interest, if any, on, any
note, bond, coupon or other instrument evidencing indebtedness for money
borrowed in an aggregate principal amount of U.S.$50,000,000 or more, other
than the Securities of such series, issued, assumed or guaranteed by it,
when and as the same shall become due and payable, if such default shall
continue for more than the period of grace, if any, originally applicable
thereto and the time for payment of such amount has not been effectively
extended, or (B) default in the observance of any other terms and
conditions relating to any such indebtedness for money borrowed, if the
effect of such default is to cause such indebtedness to become due prior to
its stated maturity; or
(f) the Issuer pursuant to or within the meaning of any Bankruptcy
Law:
(i) commences a voluntary case; or
(ii) consents to the entry of an order for relief against it in
an involuntary case; or
(iii) consents to the appointment of a Custodian of it or for any
substantial part of its property; or
(iv) makes a general assignment for the benefit of its creditors;
or
(v) ceases or suspends generally payments of its debts or
announces an intention so to do or is (or is deemed for the purposes
of any law applicable to it to be) unable to pay its debts as they
fall due, or makes a general assignment for the benefit of or a
composition with its creditors generally or a moratorium is declared
in respect of any of its indebtedness; or
(g) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(i) is for relief against the Issuer in an involuntary case; or
(ii) appoints a Custodian of the Issuer or for any substantial
part of its property; or
(iii)orders the winding up or liquidation of the Issuer; or
(iv) orders any execution of distress in respect of any material
liability to be levied against the Issuer or an encumbrancer takes
possession of the whole or any material part of, the property,
undertaking, or assets of the Issuer,
and the order or decree remains unstayed and in effect for 60 days; or
(h) there shall have occurred the dissolution and liquidation
(ontbinding en vereffening) of the Guarantor 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 dissolution and liquidation of the Guarantor or the
Guarantor shall otherwise enter into liquidation; or
(i) the Guarantor 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 Guarantor or of all
or any part of the assets of the Guarantor; or
(j) the Guarantor applies for a moratorium or suspension of payments
(surseance van betaling) or for an arrangement with its creditors or for
any proceedings or arrangement by which the assets of the Guarantor are
submitted to the control of its creditors or the Guarantor otherwise
threatens, proposes or declares any moratorium on its debts or any class of
its debts; or
(k) the Guarantor becomes, or is declared by any competent authority
to be, bankrupt (failliet) or admits in writing its inability to pay its
debts as they fall due or is or becomes subject to or applies for
protection in any bankruptcy proceedings (faillissement); or
(l) the Guaranty ceases to be in full force and effect (except as
contemplated by the terms thereof) or the Guarantor denies or disaffirms
its obligations under the Guaranty.
If an Event of Default with respect to any series of Securities at the
time Outstanding occurs and is continuing, then, and in each and every such
case, unless the principal of all of the Securities of such series shall have
already become due and payable, either the Trustee or the Holders of not less
than 25% in aggregate principal amount of the Outstanding Securities of such
series, by notice in writing to the Issuer and the Guarantor (and to the Trustee
if given by Securityholders), may declare the entire principal amount (or, if
the Securities of such series are Original Issue Discount Securities, such
portion of the principal as may be specified in the terms of such series or if
so provided pursuant to Section 2.6 for Securities of any series, such other
amount as is specified pursuant thereto) of all of the Securities of such series
and the interest accrued thereon, if any, to be due and payable immediately, and
upon any such declaration the same shall become immediately due and payable.
The foregoing provisions, however, are subject to the condition that
if, at any time after the principal (or, if the Securities are Original Issue
Discount Securities, such portion of the principal as may be specified in the
terms thereof or if so provided pursuant to Section 2.6 for Securities of any
series, such other amount as is specified pursuant thereto) of the Securities of
any series shall have been so declared due and payable, and before any judgment
or decree for the payment of the moneys due shall have been obtained or entered
as hereinafter provided,
(a) the Issuer or the Guarantor shall pay or shall deposit with the
Trustee a sum sufficient to pay all matured installments of interest, if
any, upon all the Securities of such series and the principal of any and
all Securities of such series which shall have become due otherwise than by
such declaration of acceleration (with interest upon such principal and, to
the extent that payment of such interest is enforceable under applicable
law, on overdue installments of interest, if any, at the Overdue Rate
applicable to such series to the date of such payment or deposit), and all
amounts payable to the Trustee pursuant to Section 5.5, and
(b) any and all Events of Default under the Indenture with respect to
such series of Securities other than the non-payment of the principal of
such Securities which shall have become due by such declaration of
acceleration, shall have been cured, waived or otherwise remedied as
provided herein or provision shall have been made therefor to the
satisfaction of the Trustee,
then and in every such case the Holders of not less than a majority in aggregate
principal amount of the Securities of such series then Outstanding, by written
notice to the Issuer, the Guarantor and the Trustee, may rescind and annul such
declaration and its consequences with respect to such series, but no such
rescission and annulment shall extend to or shall affect any subsequent default
or shall impair any right consequent thereon.
For all purposes under this Indenture, if a portion of the principal
of any Original Issue Discount Securities shall have been accelerated and
declared due and payable pursuant to the provisions hereof, then, from and after
such declaration, unless such declaration has been rescinded and annulled, the
principal amount of such Original Issue Discount Securities shall be deemed, for
all purposes hereunder, to be such portion of the principal thereof as shall be
due and payable as a result of such acceleration, and payment of such portion of
the principal thereof as shall be due and payable as a result of such
acceleration, together with interest, if any, thereon and all other amounts
owing thereunder, shall constitute payment in full of such Original Issue
Discount Securities. If the Securities of any series provide the amount other
than the face amount thereof will be payable upon the maturity thereof or a
declaration of acceleration of the maturity thereof, for purposes of this
Section 4.1 the principal amount of such Securities shall be deemed to be such
amount as shall be due and payable upon the acceleration of the maturity
thereof, except as may otherwise be provided with respect to such Securities
pursuant to Section 2.6.
SECTION 4.2 Payment of Securities on Default; Suit Therefor. The
Issuer covenants that (a) in case a default shall be made in the payment of any
installment of interest on any of the Securities of any series as and when such
interest shall have become due and payable, and such default shall have
continued for a period of 30 days or (b) in case a default shall be made in the
payment of the principal of any of the Securities of any series as and when the
same shall have become due and payable, whether upon maturity of the Securities
of such series or upon redemption or by declaration or otherwise, or (c) in case
of a default in the making or satisfaction of any sinking fund payment or
analogous obligation when the same becomes due by the terms of the Securities of
any series -- then, upon demand of the Trustee, the Issuer will pay to the
Trustee for the benefit of the Holders of the Securities of such series the
whole amount then due and payable on all Securities of such series for principal
and interest, if any, as the case may be (with interest to the date of such
payment upon the overdue principal and, to the extent that payment of such
interest is enforceable under applicable law, on overdue installments of
interest, if any, at the Overdue Rate applicable to Securities of such series);
and in addition thereto, such further amount as shall be sufficient to cover the
costs and expenses of collection, and any further amounts payable to the Trustee
pursuant to Section 5.5.
Until such demand is made by the Trustee, the Issuer may pay the
principal of and interest, if any, on the Securities of any series to the
registered Holders, whether or not the principal of and interest, if any, on the
Securities of such series be overdue.
In case the Issuer shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any action or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceedings to judgment or final decree, and may enforce any such
judgment or final decree against the Issuer or other obligor upon such
Securities and collect in the manner provided by law out of the property of the
Issuer or other obligor upon such Securities, wherever situated, the moneys
adjudged or decreed to be payable.
In case there shall be pending proceedings for the liquidation, for
the bankruptcy or for the reorganization of the Issuer, the Guarantor or any
other obligor upon the Securities of any series under applicable law, or in case
an administrator, bewindvoerder, Custodian, curator, sequestrator, trustee or
other similar officer shall have been appointed for or taken possession of the
Issuer or the Guarantor or of all or any part of the assets of the Issuer, the
Guarantor or any such obligor, or in case of any other similar judicial
proceedings relative to the Issuer, the Guarantor or other obligor upon the
Securities of any series, or to the creditors or property of the Issuer, the
Guarantor or such other obligor, the Trustee, irrespective of whether the
principal of any Securities shall then be due and payable as therein expressed
or by declaration or otherwise and irrespective of whether the Trustee shall
have made any demand pursuant to the provisions of this Section, shall be
entitled and empowered, by intervention in such proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount of
principal (or, if the Securities of any series are Original Issue Discount
Securities or if the Securities of any series provide that an amount other
than the face thereof will or may be payable upon maturity thereof or upon
a declaration of acceleration thereof, such amount as may be due and
payable with respect to such series pursuant to a declaration in accordance
with Section 4.1) and interest, if any, owing and unpaid in respect of the
Securities of any series, and, in case of any judicial proceedings, to file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim
for any amounts payable to the Trustee pursuant to Section 5.5) and of the
Securityholders allowed in any judicial proceedings relating to the Issuer,
the Guarantor or other obligor upon the Securities of any series, or to the
creditors or property of the Issuer, the Guarantor or such other obligor,
(b) unless prohibited by applicable law and regulations, to vote on
behalf of the Holders of the Securities of any series in any election of a
trustee or a standby trustee in arrangement, reorganization, liquidation or
other bankruptcy or insolvency proceedings or of a person performing
similar functions in comparable proceedings, and
(c) to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute all amounts received with
respect to the claims of the Securityholders and of the Trustee on their
behalf (after deduction of costs and expenses of collection, and any
further amounts payable to the Trustee pursuant to Section 5.5 and incurred
by it up to the date of distribution); and any administrator,
bewindvoerder, Custodian, curator, sequestrator, trustee or other similar
officer is hereby authorized by each of the Securityholders to make
payments to the Trustee, and, in the event that the Trustee shall consent
to the making of payments directly to the Securityholders, to pay to the
Trustee costs and expenses of collection, and any further amounts payable
to the Trustee pursuant to Section 5.5 and incurred by it up to the date of
distribution.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or vote for or accept or adopt on behalf of any
Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities of any series or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Securityholder in any such proceeding except, as aforesaid, to vote for the
election of a trustee in bankruptcy or similar person.
All rights of action and of asserting claims under this Indenture, or
under the Securities of any series, may be enforced by the Trustee without the
possession of any of the Securities of such series or the production thereof on
any trial or other proceedings relative thereto, and any such action or
proceedings instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment, shall be for the
ratable benefit of the Holders of the Securities in respect of which such action
was taken.
In any proceedings brought by the Trustee (and also any proceedings in
which a declaratory judgment of a court may be sought as to the interpretation
or construction of any provision of this Indenture to which the Trustee shall be
a party) the Trustee shall be held to represent all the Holders of the
Securities to which such proceedings relate, and it shall not be necessary to
make any Holders of such Securities parties to any such proceedings.
SECTION 4.3 Application of Moneys Collected by Trustee. Any moneys
collected by the Trustee pursuant to this Article shall be applied in the
following order at the date or dates fixed by the Trustee and, in the case of
distribution of such moneys on account of principal or interest, upon
presentation of the several Securities in respect of which moneys have been
collected and stamping (or otherwise noting) thereon the payment, or issuing
Securities in reduced principal amounts in exchange for the presented Securities
of like series (or, in the case of Securities of a series issued in more than
one tranche, of the same tranche) and tenor if only partially paid, or upon
surrender thereof if fully paid:
FIRST: To the payment of amounts due to the Trustee pursuant to
Section 5.5;
SECOND: In case the principal of the Outstanding Securities in respect
of which moneys have been collected shall not have become and be then due
and payable, to the payment of interest, if any, on the Securities in
default in the order of the maturity of the installments of such interest,
with interest (to the extent that such interest has been collected by the
Trustee and to the extent permitted by applicable law) upon the overdue
installments of interest at the Overdue Rate applicable to such Securities,
such payments to be made ratably to the persons entitled thereto, without
discrimination or preference;
THIRD: In case the principal of the Outstanding Securities in respect
of which moneys have been collected shall have become and shall be then due
and payable by declaration or otherwise, to the payment of the whole amount
then owing and unpaid upon such Securities for principal and interest, if
any, with interest upon the overdue principal, and (to the extent that such
interest has been collected by the Trustee and to the extent permitted by
applicable law) upon overdue installments of interest, if any, at the
Overdue Rate applicable to such Securities; and in case such moneys shall
be insufficient to pay in full the whole amount so due and unpaid upon such
Securities, then to the payment of such principal and interest, if any,
without preference or priority of principal over interest, if any, or of
interest, if any, over principal, or of any installment of interest, if
any, over any other installment of interest, if any, or of any Security
over any other Security, ratably to the aggregate of such principal and
accrued and unpaid interest, if any; and
FOURTH: To the payment of the remainder, if any, to the Issuer or, to
the extent that such moneys were provided by the Guarantor, to the
Guarantor, their respective successors and assigns.
SECTION 4.4 Proceedings by Trustee. In case an Event of Default
hereunder has occurred, has not been waived and is continuing, the Trustee may
in its discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either at law or in
equity or otherwise, whether for the specific enforcement of any covenant or
agreement contained in this Indenture or in aid of the exercise of any power
granted in this Indenture or to enforce any other legal or equitable right
vested in the Trustee by this Indenture or by law.
SECTION 4.5 Restoration of Rights on Abandonment of Proceedings. In
case the Trustee or any Securityholder shall have proceeded to enforce any right
under this Indenture and such proceedings shall have been discontinued or
abandoned for any reason, or shall have been determined adversely to the Trustee
or to such Securityholder, then and in every such case the Issuer, the
Guarantor, the Securityholder and the Trustee shall, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions and rights hereunder, and all rights, remedies and powers
of the Issuer, the Guarantor, the Trustee and the Securityholders shall continue
as though no such proceedings had been taken.
SECTION 4.6 Proceedings by Securityholders. No Holder of any Security
of any series shall have any right by virtue or by availing of any provision of
this Indenture to institute any action or proceeding at law or in equity or in
bankruptcy, moratorium of payments, liquidation or otherwise upon or under or
with respect to this Indenture, or for the appointment of an administrator,
bewindvoerder, Custodian, curator, sequestrator, or other similar officer or for
any other remedy hereunder, unless such Holder previously shall have given to
the Trustee written notice of default with respect to Securities of such series
and of the continuance thereof, as hereinbefore provided, and unless also the
Holders of not less than 25% in aggregate principal amount of the Securities of
such series then Outstanding shall have made written request upon the Trustee to
institute such action, suit or proceedings in its own name as Trustee hereunder
and shall have offered to the Trustee such reasonable indemnity as it may
require against the costs, expenses and liabilities to be incurred therein or
thereby and the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity shall have neglected or refused to institute any such
action, suit or proceeding and no direction inconsistent with such written
request shall have been given to the Trustee pursuant to Section 4.8 during such
60 day period; it being understood and intended, and being expressly covenanted
by the taker and Holder of every Security with every other taker and Holder and
the Trustee, that no one or more Holders of any Securities shall have any right
in any manner whatever by virtue or by availing of any provision of this
Indenture to affect, disturb or prejudice the rights of any other Holder of
Securities, or to obtain or seek to obtain priority over or preference to any
other Holder or to enforce any right under this Indenture, except in the manner
herein provided and for the equal, ratable and common benefit of all Holders of
Securities of the applicable series. For the protection and enforcement of the
provisions of this Section, each and every Securityholder and the Trustee shall
be entitled to such relief as can be given either at law or in equity.
SECTION 4.7 Remedies Cumulative and Continuing. Except as provided in
Section 4.6, no right or remedy herein conferred upon or reserved to the Trustee
or to the Securityholders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
No delay or omission of the Trustee or of any Securityholder to
exercise any right or power accruing upon any Event of Default occurring and
continuing as aforesaid shall impair any such right or power or shall be
construed to be a waiver of any such Event of Default or an acquiescence
therein; and, subject to Section 4.6, every power and remedy given by this
Indenture or by law to the Trustee or to the Securityholders of any or all
series, as the case may be, may be exercised from time to time, and as often as
shall be deemed expedient, by the Trustee or by the Securityholders of such
series or all series, as the case may be.
SECTION 4.8 Control by Securityholders. The Holders of not less than a
majority in aggregate principal amount of the Securities of each series affected
at the time Outstanding (with each such series voting separately as a class)
shall have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred on the Trustee by this Indenture with respect to Securities of
such series. Notwithstanding any of the foregoing, no such direction shall be
otherwise than in accordance with law and the provisions of this Indenture and
(subject to the requirements of the Trust Indenture Act of 1939) the Trustee
shall have the right to decline to follow any such direction if the Trustee,
being advised by counsel, shall determine that the action or proceeding so
directed may not lawfully be taken or would be prejudicial to the Holders of
such Securities not taking part in such direction, or the Holders of the
Securities of any other series, or if the Trustee in good faith by its board of
directors, the executive committee or a trust committee of directors or
Responsible Officers of the Trustee shall determine that the action or
proceedings so directed would involve the Trustee in personal liability.
Nothing in this Indenture shall impair the right of the Trustee in its
discretion to take any action deemed proper by the Trustee and which is not
inconsistent with such direction or directions by Securityholders.
SECTION 4.9 Waiver of Past Defaults. Prior to the declaration of the
acceleration of the maturity of the Securities of any particular series the
Holders of not less than a majority in aggregate principal amount of the
Securities of such particular series at the time Outstanding may on behalf of
the Holders of all the Securities of such particular series waive any past
default or Event of Default with respect to such particular series and its
consequences, except a default in respect of a covenant or provision hereof
which cannot be modified or amended without the consent of the Holder of each
Outstanding Security affected as provided in Section 7.2. In the case of any
such waiver, the Issuer, the Guarantor, the Trustee and the Holders of the
Securities of each series affected shall be restored to their former positions
and rights hereunder, respectively; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
Upon any such waiver, such default shall cease to exist and be deemed
to have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured, and not to have occurred for every
purpose of this Indenture.
ARTICLE FIVE
CONCERNING THE TRUSTEE
SECTION 5.1 Reliance on Documents, Opinions, etc.; No Requirement for
Expenditure of Own Funds. Subject to the provisions of the Trust Indenture Act
of 1939:
(a) prior to the occurrence of an Event of Default hereunder and after
the curing or waiving of all Events of Default, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, in the absence of bad faith on the part of
the Trustee, upon certificates, notices or opinions conforming to the
requirements of this Indenture; but in the case of any such certificates,
notices or opinions which by any provision hereof are specifically required
to be furnished to the Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not they conform to the
requirements of this Indenture (but need not confirm or investigate the
accuracy of mathematical calculations or other facts stated therein);
(b) any request, direction, order or demand of the Issuer and the
Guarantor mentioned herein shall be sufficiently evidenced by an Officers'
Certificate (unless other evidence in respect thereof be herein
specifically prescribed); and any Resolution may be evidenced to the
Trustee by a copy thereof certified by the secretary of the Issuer or the
Guarantor, as applicable;
(c) the Trustee may consult with counsel and any advice of such
counsel or Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted to be taken
by it hereunder in good faith and in accordance with such advice or Opinion
of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders pursuant to the provisions of this
Indenture, unless such Securityholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred therein or thereby;
(e) prior to the occurrence of an Event of Default hereunder and after
the curing or waiving of all Events of Default, the Trustee shall not be
bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, bond, direction, note or other paper or document
unless requested in writing so to do by the Holders of not less than a
majority in aggregate principal amount of the Securities of any series
affected then Outstanding; provided that, if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities likely
to be incurred by it in the making of such investigation is, in the opinion
of the Trustee, not reasonably assured to the Trustee by the security
afforded to it by the terms of this Indenture, the Trustee may require
reasonable indemnity against such expenses or liabilities as a condition to
proceeding; and the reasonable expenses of every such investigation shall
be paid by the Issuer or the Guarantor or, if paid by the Trustee, shall be
repaid by the Issuer or the Guarantor upon demand;
(f) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys not regularly in its employ and the Trustee shall not be
responsible for any misconduct or negligence on the part of any such agent
or attorney appointed with due care by it hereunder; and
(g) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties.
None of the provisions contained in this Indenture shall be construed
as requiring the Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties or in the
exercise of any of its rights or powers if there shall be reasonable grounds for
believing that the repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it. Whether or not therein
expressly so provided, every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee shall be
subject to the requirements of the Trust Indenture Act of 1939.
SECTION 5.2 No Responsibility for Recitals, etc. The recitals
contained herein and in the Securities, except the Trustee's certificates of
authentication, shall be taken as the statements of the Issuer, and the Trustee
assumes no responsibility for the correctness of the same. The Trustee makes no
representation as to the validity or sufficiency of this Indenture or of the
Securities, provided that the Trustee shall not be relieved of its duty to
authenticate Securities only as authorized by this Indenture. The Trustee shall
not be accountable for the use or application by the Issuer of any of the
Securities or of the proceeds thereof.
SECTION 5.3 Trustee and Agents May Hold Securities. The Trustee or any
agent of the Issuer, the Guarantor or the Trustee, in its individual or any
other capacity, may become the owner or pledgee of Securities with the same
rights it would have if it were not the Trustee or such agent and, subject to
the requirements of the Trust Indenture Act of 1939, may otherwise deal with the
Issuer and receive, collect, hold and retain collections from the Issuer with
the same rights it would have if it were not the Trustee or such agent.
SECTION 5.4 Moneys to Be Held in Trust. Subject to the provisions of
Sections 9.3 and 9.4, all moneys received by the Trustee or any paying agent,
all money and U.S. Government Obligations deposited with the Trustee pursuant to
Section 9.8 and all money received by the Trustee in respect of U.S. Government
Obligations deposited with the Trustee pursuant to Section 9.8, shall, until
used or applied as herein provided, be held in trust for the purposes for which
they were received, but need not be segregated from other funds except to the
extent required by mandatory provisions of law. Neither the Trustee nor any
paying agent shall be under any liability for interest on any moneys received by
it hereunder, except such as it may agree in writing with the Issuer to pay
thereon. So long as no Event of Default shall have occurred and be continuing,
all interest allowed on any such moneys shall be paid from time to time upon the
written order of the Issuer signed by one of its officers, who is one of the
officers who may sign an Officers' Certificate.
SECTION 5.5 Compensation and Expenses of Trustee. The Issuer and the
Guarantor covenant and agree to pay to the Trustee from time to time, and the
Trustee shall be entitled to, such compensation as shall be agreed to from time
to time in writing by the Issuer and the Guarantor and the Trustee (which shall
not be limited by any provision of law in regard to the compensation of a
trustee of an express trust) and, except as otherwise expressly provided, the
Issuer or the Guarantor will pay or reimburse the Trustee upon its request for
all reasonable expenses, disbursements and advances incurred or made by or on
behalf of it in accordance with any of the provisions of this Indenture
(including the reasonable compensation and the expenses and disbursements of its
counsel and of all persons not regularly in its employ) except any such expense,
disbursement or advance as may arise from its negligence or bad faith. The
Issuer and the Guarantor also covenant to indemnify the Trustee for, and to hold
it harmless against, any and all loss, liability, damage, claim or expense,
including taxes (other than taxes based on the income, gains, wealth or similar
criteria of the Trustee) incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or administration of this
Indenture or the trusts hereunder and its duties hereunder, including the costs
and expenses of defending itself against any claim of liability in the premises.
The obligations of the Issuer and the Guarantor under this Section to compensate
and indemnify the Trustee and to pay or reimburse the Trustee for expenses,
disbursements and advances shall constitute additional indebtedness hereunder
and shall survive the satisfaction and discharge of this Indenture. Such
additional indebtedness shall be secured by a lien prior to that of the
Securities upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the benefit of the Holders of particular
Securities.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 4.1(f), (g), (h), (i), (j) or (k)
the expenses (including the reasonable fees and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable bankruptcy, insolvency, reorganization or
other similar laws.
SECTION 5.6 Right of Trustee to Rely on Officers' Certificate, etc.
Subject to the requirements of the Trust Indenture Act of 1939, whenever in the
administration of the trusts of this Indenture the Trustee shall deem it
necessary or desirable that a matter be proved or established prior to taking or
suffering or omitting any action to be taken hereunder, such matter (unless
other evidence in respect thereof be herein specifically prescribed) may, in the
absence of negligence or bad faith on the part of the Trustee, be deemed to be
conclusively proved and established by an Officers' Certificate delivered to the
Trustee, and such certificate, in the absence of negligence or bad faith on the
part of the Trustee, shall be full warrant to the Trustee for any action taken,
suffered or omitted by it under the provisions of this Indenture upon the faith
thereof.
SECTION 5.7 Eligibility of Trustee. The Trustee for each series of
Securities hereunder shall at all times be a corporation which complies with the
requirements of the Trust Indenture Act of 1939, having a combined capital and
surplus of at least U.S.$50,000,000. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such corporation at any time shall
be deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time the Trustee shall cease to
be eligible in accordance with the provisions of this Section, the Trustee shall
resign immediately in the manner and with the effect specified in Section 5.8.
SECTION 5.8 Resignation or Removal of Trustee; Appointment of
Successor Trustee. (a) The Trustee, or any trustee or trustees hereafter
appointed, may at any time resign with respect to one or more or all series of
Securities by giving written notice of resignation to the Issuer and the
Guarantor. Upon receiving such notice of resignation, the Issuer shall promptly
appoint a successor trustee or trustees with respect to the applicable series by
written instrument in duplicate, executed by authority of the Board of
Directors, one copy of which instrument shall be delivered to the resigning
Trustee and one copy to the successor trustee or trustees. If no successor
trustee shall have been so appointed with respect to any series and have
accepted appointment within 30 days after the mailing of such notice of
resignation, the resigning trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee, or any Securityholder
who has been a bona fide Holder of a Security or Securities of the applicable
series for at least six months may, subject to the requirements of the Trust
Indenture Act of 1939, on behalf of himself and all others similarly situated,
petition any such court for the appointment of a successor trustee. Such court
may thereupon, after such notice, if any, as it may deem proper and prescribe,
appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall cease to be eligible in accordance with the
provisions of Section 5.7 with respect to any series of Securities and
shall fail to resign after written request therefor by the Issuer or
the Guarantor or by any Securityholder; or
(ii) the Trustee shall become incapable of acting with respect to
any series of Securities, or shall be adjudged a bankrupt or
insolvent, or a receiver or liquidator of the Trustee or of its
property shall be appointed, or any public officer shall take charge
or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation;
then, in any such case, the Issuer by Resolution may remove the Trustee with
respect to the applicable series of Securities (or all series, if required) and
appoint a successor trustee for such series by written instrument, in duplicate,
executed by authority of the Board of Directors, one copy of which instrument
shall be delivered to the Trustee so removed and one copy to the successor
trustee, or, subject to the requirements of the Trust Indenture Act of 1939, any
Securityholder who has been a bona fide Holder of a Security or Securities of
such series for at least six months may on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor trustee with respect to such
series. Such court may thereupon, after such notice, if any, as it may deem
proper and prescribe, remove the Trustee and appoint a successor trustee with
respect to such series.
(c) The Holders of a majority in aggregate principal amount of the
Securities of any series at the time Outstanding may at any time remove the
Trustee with respect to Securities of such series and appoint a successor
trustee with respect to the Securities of such series by delivering to the
Trustee so removed, to the successor trustee so appointed and to the Issuer and
the Guarantor the evidence provided for in Section 6.1 of the action in that
regard taken by the Securityholders.
(d) Any resignation or removal of the Trustee with respect to any
series and any appointment of a successor trustee with respect to such series
pursuant to any of the provisions of this Section 5.8 shall become effective
upon acceptance of appointment by the successor trustee as provided in Section
5.9.
SECTION 5.9 Acceptance of Appointment by Successor Trustee. Any
successor trustee appointed as provided in Section 5.8 shall execute,
acknowledge and deliver to the Issuer, the Guarantor and its predecessor Trustee
an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor Trustee with respect to all or any
applicable series shall become effective and such successor trustee, without any
further act, deed or conveyance, shall become vested with all rights, powers,
duties and obligations with respect to such series of its predecessor hereunder,
with like effect as if originally named as trustee for such series hereunder;
but, nevertheless, on the written request of the Issuer, the Guarantor or the
successor trustee, upon payment (or due provision therefor) of any amounts then
due it pursuant to Section 5.5, the predecessor Trustee ceasing to act shall,
subject to Section 9.4, pay over to the successor trustee all moneys at the time
held by it hereunder and shall execute and deliver an instrument transferring to
such successor trustee all such rights, powers, duties and obligations. Upon
request of any such successor trustee, the Issuer shall execute any and all
instruments in writing for more fully and certainly vesting in and confirming to
such successor trustee all such rights and powers. Any trustee ceasing to act
shall, nevertheless, retain a lien upon all property or funds held or collected
by such trustee to secure any amounts then due it pursuant to the provisions of
Section 5.5.
If a successor trustee is appointed with respect to the Securities of
one or more (but not all) series, the Issuer, the Guarantor, the predecessor
Trustee and each successor trustee with respect to the Securities of any
applicable series shall execute and deliver an indenture supplemental hereto
which shall contain such provisions as shall be deemed necessary or desirable to
confirm that all the rights, powers, trusts and duties of the predecessor
Trustee with respect to the Securities of any series as to which the predecessor
Trustee is not retiring shall continue to be vested in the predecessor Trustee,
and shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such trustees co-trustees of the
same trust and that each such trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such trustee.
No successor trustee with respect to any series of Securities shall
accept appointment as provided in this Section 5.9 unless at the time of such
acceptance such successor trustee shall, with respect to such series, be
qualified under the provisions of the Trust Indenture Act of 1939 and eligible
under the provisions of Section 5.7.
Upon acceptance of appointment by any successor trustee as provided in
this Section 5.9, the Issuer shall mail notice thereof to the Holders of
Securities of any series for which such successor trustee is acting as trustee
at their last addresses as they shall appear in the Register. If the Issuer
fails to mail such notice within ten days after acceptance of appointment by the
successor trustee, the successor trustee shall cause such notice to be mailed at
the Issuer's expense.
SECTION 5.10 Merger, Conversion, Consolidation or Succession to
Business of Trustee. Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided, that such
corporation shall be qualified under the provisions of the Trust Indenture Act
of 1939 and eligible under the provisions of Section 5.7, without the execution
or filing of any paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Securities of any series shall have
been authenticated but not delivered, any such successor to the Trustee by
merger, conversion or consolidation may adopt the certificate of authentication
of any predecessor Trustee and deliver such Securities so authenticated; and, in
case at that time any of the Securities of any series shall not have been
authenticated, any successor to the Trustee may authenticate such Securities
either in the name of such successor to the Trustee or, if such successor to the
Trustee is a successor by merger, conversion or consolidation, in the name of
any predecessor hereunder; and in all such cases such certificate shall have the
full force which the certificate of the Trustee shall have as provided anywhere
in the Securities of such series or in this Indenture.
SECTION 5.11 Reports by Trustee to Securityholders. Within 60 days
after March 15 in each year, beginning with the March 15 following the date of
this Indenture, the Trustee shall mail to the Securityholders a brief report
dated as of such reporting date in compliance with ss. 313(a) of the Trust
Indenture Act of 1939. The Trustee also shall comply with ss. 313(b) of the
Trust Indenture Act of 1939. The Trustee shall also transmit by mail all reports
as required by ss. 313(c) of the Trust Indenture Act of 1939. The Issuer shall
promptly notify the Trustee when the Securities are listed on any stock
exchange.
ARTICLE SIX
CONCERNING THE SECURITYHOLDERS
SECTION 6.1 Action by Securityholders. Whenever in this Indenture it
is provided that the Holders of a specified percentage in aggregate principal
amount of the Securities of any or all series may take any action (including the
making of any demand or request, the giving of any notice, consent or waiver or
the taking of any other action) the fact that at the time of taking any such
action the Holders of such specified percentage have joined therein may be
evidenced (a) by any instrument or any number of instruments of similar tenor
executed by such Securityholders in person or by agent or proxy appointed in
writing, or (b) by the record of such Holders of Securities voting in favor
thereof at any meeting of such Securityholders duly called and held in
accordance with the provisions of this Article, or (c) by a combination of such
instrument or instruments and any such record of such a meeting of such
Securityholders; and, except as herein otherwise expressly provided, such action
shall become effective when such instrument or instruments and/or such record
are delivered to the Trustee. Proof of execution of any instrument or of a
writing appointing any such agent or proxy shall be sufficient for any purpose
of this Indenture and (subject to the requirements of the Trust Indenture Act of
1939 and Section 5.1) conclusive in favor of the Trustee, the Issuer and the
Guarantor, if made in the manner provided in this Article.
In determining whether the Holders of the requisite principal amount
of Outstanding Securities of any or all series have taken any action (including
the making of any demand or request), the giving of any notice, consent or
waiver (or the taking of any other action) hereunder and in determining voting
rights of any Holder of a Security hereunder (i) the principal amount of
Original Issue Discount Securities that shall be deemed to be Outstanding for
such purposes shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon a declaration of acceleration
of the maturity thereof pursuant to Section 4.1, (ii) in the case of Securities
which provide that an amount other than the face amount thereof will or may be
payable upon the maturity thereof or upon a declaration of acceleration of the
maturity thereof, the principal amount of such Securities that shall be deemed
to be Outstanding for such purposes shall be the amount that would be due and
payable in respect of such Securities as of the date of such determination upon
a declaration of acceleration of the maturity thereof pursuant to Section 4.1,
and (iii) the principal amount of any Security, the principal amount of which is
denominated in a currency other than U.S. dollars or in units of currencies or
in a composite currency (the "Specified Currency") shall be deemed to be that
amount of U.S. dollars which could have been obtained by the face amount of such
Specified Currency at the Market Exchange Rate. For purposes of this Section
6.1, "Market Exchange Rate" means, unless otherwise specified for a Specified
Currency with respect to any series of the Notes pursuant to Section 2.6, the
noon U.S. dollar buying rate in New York City for cable transfers of the
Specified Currency published by the Federal Reserve Bank of New York.
All decisions and determinations of the Trustee regarding the Market
Exchange Rate or any alternative determination provided for in the preceding
paragraph shall be in its sole discretion and shall, in the absence of manifest
error, be conclusive to the extent permitted by law for all purposes and
irrevocably binding upon the Issuer, the Guarantor and all Securityholders.
If the Issuer shall solicit from the Securityholders any demand,
request, notice, consent, waiver or the taking of any other action (other than
in accordance with the Securityholders voting provisions set forth in Sections
6.6 through 6.14 of this Article), the Issuer may, at its option, by a
Resolution, fix in advance a record date for the determination of Holders
entitled to give such demand, request, notice, consent or waiver or to take such
other action, but the Issuer shall have no obligation to do so. If such a record
date is fixed, such demand, request, notice, consent, waiver or such other
action may be given before or after the record date, but only the
Securityholders of record at the close of business on the record date shall be
deemed to be Holders for the purposes of determining whether Holders of the
requisite percentage of Securities Outstanding have authorized or agreed or
consented to such demand, request, notice, consent, waiver or taking of any
other action, and for that purpose the Securities Outstanding shall be computed
as of the record date; provided, that no such demand, request, notice, consent,
waiver or taking of any other action by the Holders on the record date shall be
deemed effective unless it shall become effective pursuant to the provisions of
this Indenture not later than six months after the record date.
SECTION 6.2 Proof of Execution by Securityholders. Subject to the
requirements of the Trust Indenture Act of 1939 and Sections 5.1 and 6.11, proof
of the execution of any instrument by a Securityholder or his agent or proxy
shall be sufficient if made in accordance with such reasonable rules and
regulations as is necessary or as may be prescribed by the Trustee or in such
manner as shall be satisfactory to the Trustee. The ownership of Securities
shall be proved by the Register or by a certificate of the person designated by
the Issuer to keep the Register and to act as repository in accordance with the
provisions of Section 2.12.
The record of any Securityholders' meeting shall be proved in the
manner provided in Section 6.12.
SECTION 6.3 Holders to Be Treated as Owners. The Issuer, the
Guarantor, the Trustee and any agent of the Issuer, the Guarantor or the Trustee
may deem and treat the person in whose name any Security shall be registered in
the Register for such series as the absolute owner of such Security (whether or
not such Security shall be overdue and notwithstanding any notation of ownership
or other writing thereon) for the purpose of receiving payment of or on account
of the principal of and, subject to the provisions of this Indenture, interest,
if any, on such Security and for all other purposes; and none of the Issuer, the
Guarantor, the Trustee or any agent of the Issuer, the Guarantor, or the Trustee
shall be affected by any notice to the contrary. All such payments so made to
any such person, or upon his order, shall be valid, and, to the extent of the
sum or sums so paid, effectual to satisfy and discharge the liability for moneys
payable upon any such Security.
SECTION 6.4 Securities Owned by Issuer Deemed Not Outstanding. In
determining whether the Holders of the requisite aggregate principal amount of
Outstanding Securities of any or all series have concurred in any demand,
request, notice, direction, consent or waiver under this Indenture, Securities
which are owned by the Issuer, the Guarantor or any other obligor on the
Securities with respect to which such determination is being made or by any
person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Issuer, the Guarantor or any other obligor on
the Securities with respect to which such determination is being made shall be
disregarded and deemed not to be Outstanding for the purpose of any such
determination, except that for the purpose of determining whether the Trustee
shall be protected in relying on any such demand, request, notice, direction,
consent or waiver only Securities which the Trustee actually knows are so owned
shall be so disregarded. Securities so owned which have been pledged in good
faith may be regarded as Outstanding for purposes of this Section 6.4 if the
pledgee establishes to the satisfaction of the Trustee the pledgee's right so to
act with respect to such Securities and that the pledgee is not the Issuer, the
Guarantor or any other obligor upon the Securities or any person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Issuer or any other obligor on the Securities. In case of a
dispute as to such right, the advice of counsel shall be full protection in
respect of any decision made by the Trustee in accordance with such advice. Upon
request of the Trustee, the Issuer shall furnish to the Trustee promptly an
Officers' Certificate listing and identifying all Securities, if any, known by
the Issuer to be owned or held by or for the account of any of the
above-described persons; and, subject to the requirements of the Trust Indenture
Act of 1939 and Section 5.1, the Trustee shall, in the absence of manifest
error, accept such Officers' Certificate as conclusive evidence of the facts
therein set forth and of the fact that all Securities not listed therein are
Outstanding for the purpose of any such determination.
SECTION 6.5 Right of Revocation of Action Taken. At any time prior to
(but not after) the evidencing to the Trustee, as provided in Section 6.1, of
the taking of any action by the Holders of the percentage in aggregate principal
amount of the Securities of any or all series, as the case may be, specified in
this Indenture in connection with such action, any Holder of a Security the
serial number or other distinguishing symbol of which is shown by the evidence
to be included among the serial numbers or other distinguishing symbols of the
Securities the Holders of which have consented to such action may, by filing
written notice at the Corporate Trust Office and upon proof of holding as
provided in this Article, revoke such action so far as concerns such Security.
Except as aforesaid any such action taken by the Holder of any Security shall be
conclusive and binding upon such Holder and upon all future Holders and owners
of such Security and of any Securities issued in exchange or substitution
therefor, irrespective of whether or not any notation in regard thereto is made
upon any such Security. Any action taken by the Holders of the percentage in
aggregate principal amount of the Securities of any or all series, as the case
may be, specified in this Indenture in connection with such action shall be
conclusively binding upon the Issuer, the Guarantor, the Trustee and the Holders
of all the Securities affected by such action.
SECTION 6.6 Securityholders' Meetings; Purposes. A meeting of Holders
of Securities of any series or all series, as the case may be, may be called at
any time and from time to time pursuant to the provisions of this Article Six
for any of the following purposes:
(1) to give any notice to the Issuer, the Guarantor or to the
Trustee, or to give any directions to the Trustee, or to consent to
the waiving of any default or Event of Default hereunder and its
consequences, or to take any other action authorized to be taken by
Securityholders pursuant to any of the provisions of Article Four;
(2) to remove the Trustee and nominate a successor trustee
pursuant to the provisions of Article Five;
(3) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 7.2; or
(4) to take any other action authorized to be taken by or on
behalf of the Holders of any specified aggregate principal amount of
the Securities of any series or all series, as the case may be, under
any other provision of this Indenture or under applicable law.
SECTION 6.7 Call of Meetings by Trustee. The Trustee may at any time
call a meeting of Holders of Securities of any series or all series, as the case
may be, to take any action specified in Section 6.6, to be held at such time and
at such place in the Borough of Manhattan, The City of New York, or other
location, as the Trustee shall determine. Notice of every meeting of the Holders
of Securities of any series or all series, as the case may be, setting forth the
time and the place of such meeting and in general terms the action proposed to
be taken at such meeting, shall be mailed to Holders of Outstanding Securities
of each series affected at their addresses as they shall appear in the Register
as of a date not more than 15 days prior to the mailing of such notice. Such
notice shall be mailed not less than 20 nor more than 90 days prior to the date
fixed for the meeting.
Any meeting of the Holders of Securities of any series or all series,
as the case may be, shall be valid without notice if the Holders of all
Securities of any series then Outstanding are present in person or by proxy, or,
if notice is waived before or after the meeting by the Holders of all Securities
of any series outstanding, and if the Issuer, the Guarantor and the Trustee are
either present by duly authorized representatives or have, before or after the
meeting waived notice.
SECTION 6.8 Call of Meetings by Issuer, Guarantor or Securityholders.
In case at any time the Issuer or the Guarantor, pursuant to a Resolution, or
the Holders of at least 10% in aggregate principal amount of the Securities then
Outstanding of any or all series, as the case may be, shall have requested the
Trustee to call a meeting of the Holders of Securities of such series or all
series, as the case may be, by written request setting forth in reasonable
detail the action proposed to be taken at the meeting, and the Trustee shall not
have mailed the notice of such meeting within 20 days after receipt of such
request, then the Issuer, the Guarantor or such Securityholders, in the amount
specified above, may determine the time and the place in said Borough of
Manhattan for such meeting and may call such meeting to take any action
authorized in Section 6.6, by mailing notice thereof as provided in Section 6.7.
SECTION 6.9 Qualifications for Voting. To be entitled to vote at any
meeting of Securityholders a person shall (a) be a Holder of one or more
Securities with respect to which such meeting is being held or (b) be a person
appointed by an instrument in writing as proxy by a Holder of one or more such
Securities. The only persons who shall be entitled to be present or to speak at
any meeting of Securityholders shall be the persons entitled to vote at such
meeting and their counsel, any representatives of the Trustee and its counsel
and any representatives of the Issuer and the Guarantor and their respective
counsel.
SECTION 6.10 Quorum; Adjourned Meetings. The persons entitled to vote
a majority in aggregate principal amount of the Securities of the relevant
series at the time Outstanding shall constitute a quorum for the transaction of
all business specified in Section 6.6. No business shall be transacted in the
absence of a quorum (determined as provided in this Section 6.10). In the
absence of a quorum within 30 minutes after the time appointed for any such
meeting, the meeting shall, if convened at the request of the Holders of
Securities (as provided in Section 6.8), be dissolved. In any other case the
meeting shall be adjourned for a period of not less than ten days as determined
by the chairman of the meeting. In the absence of a quorum at any such adjourned
meeting, such adjourned meeting shall be further adjourned for a period of not
less than ten days as determined by the chairman of the meeting. Notice of the
reconvening of any adjourned meeting shall be given as provided in Section 6.7,
except that such notice must be mailed not less than five days prior to the date
on which the meeting is scheduled to be reconvened.
Any Holder of a Security who has executed in person or by proxy and
delivered to the Trustee an instrument in writing complying with the provisions
of Section 6.2 shall be deemed to be present for the purposes of determining a
quorum and be deemed to have voted; provided, that such Holder of a Security
shall be considered as present or voting only with respect to the matters
covered by such instrument in writing.
SECTION 6.11 Regulations. Notwithstanding any other provisions of this
Indenture, the Trustee may make such reasonable regulations as is necessary or
as it may deem advisable for any meeting of Securityholders, in regard to proof
of the holding of Securities and of the appointment of proxies, and in regard to
the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as is necessary or
as it shall determine.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Issuer, the Guarantor, or by Securityholders as provided in Section 6.8, in
which case the Issuer, the Guarantor or the Securityholders calling the meeting,
as the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be elected by
the vote of the Holders of a majority of the principal amount of the Outstanding
Securities present at the meeting.
Subject to the provisions of Section 6.4, at any meeting each Holder
of Securities with respect to which such meeting is being held or proxy shall be
entitled to one vote for each U.S.$1,000 (or if any Securities are denominated
in a currency other than U.S. dollars or in units of currencies or in a
composite currency, the equivalent of U.S.$1,000 in the applicable currency,
units of currencies or composite currency calculated using the market Exchange
Rate) principal amount (or in the case of Original Issue Discount Securities or,
in the case of Securities which provide that an amount other than the face
amount thereof will or may be payable upon the maturity thereof or upon a
declaration of acceleration of the maturity thereof, such principal amount to be
determined as provided in the definition of "Outstanding" in Section 1.1) of
such Securities held or represented by him; provided, however, that no vote
shall be cast or counted at any meeting in respect of any such Security
challenged as not Outstanding and ruled by the chairman of the meeting to be not
Outstanding. The chairman of the meeting shall have no right to vote other than
by virtue of such Securities held by him or instruments in writing as aforesaid
duly designating him as the person to vote on behalf of other such
Securityholders. Any meeting of Holders of Securities with respect to which a
meeting was duly called pursuant to the provisions of Section 6.7 or 6.8 may be
adjourned from time to time by the Holders of a majority of the principal amount
of the Outstanding Securities present, whether or not constituting a quorum, and
the meeting may be held as so adjourned without further notice.
SECTION 6.12 Voting. The vote upon any resolution submitted to any
meeting of Holders of Securities with respect to which such meeting is being
held shall be by written ballots on which shall be subscribed the signatures of
such Holders of Securities or of their representatives by proxy and the
principal amount (in the case of Original Issue Discount Securities or, in the
case of Securities which provide that an amount other than the face amount
thereof will or may be payable upon the maturity thereof or upon a declaration
of acceleration of the maturity thereof, such principal amount to be determined
as provided in the definition of "Outstanding" in Section 1.1) and number or
numbers or other distinguishing symbol or symbols of such Securities held or
represented by them. The permanent chairman of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the meeting for or against
any resolution and who shall make and file with the secretary of the meeting
their verified written reports in duplicate of all votes cast at the meeting. A
record in duplicate of the proceedings of each meeting of Securityholders shall
be prepared by the secretary of the meeting and there shall be attached to said
record the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more persons having knowledge of the
facts setting forth a copy of the notice of the meeting and showing that said
notice was mailed as provided in Section 6.7. The record shall show the
principal amount of the Securities (in the case of Original Issue Discount
Securities or, in the case of Securities which provide that an amount other than
the face amount thereof will or may be payable upon the maturity thereof or upon
a declaration of acceleration of the maturity thereof, such principal amount to
be determined as provided in the definition of "Outstanding" in Section 1.1)
voting in favor of or against any resolution. The record shall be signed and
verified by the affidavits of the permanent chairman and secretary of the
meeting and one of the duplicates shall be delivered to the Issuer and the other
to the Trustee to be preserved by the Trustee, the latter to have attached
thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
SECTION 6.13 No Delay of Rights by Meeting. Nothing in this Article
Six shall be deemed or construed to authorize or permit, by reason of any call
of a meeting of Securityholders of any or all series or any rights expressly or
impliedly conferred hereunder to make such call, any hindrance or delay in the
exercise of any right or rights conferred upon or reserved to the Issuer, the
Guarantor, the Trustee or to the Securityholders of any or all such series under
any of the provisions of this Indenture or of the Securities.
SECTION 6.14 Written Consent in Lieu of Meeting. The written
authorization or consent by the Holders of the requisite percentage in aggregate
principal amount of Outstanding Securities of one or more series herein
provided, entitled to vote at any such meeting, evidenced as provided in Section
6.1 and filed with the Trustee, shall be effective in lieu of a meeting of the
Holders of Securities of such series, with respect to any matter provided for in
this Article Six.
ARTICLE SEVEN
SUPPLEMENTAL INDENTURES
SECTION 7.1 Supplemental Indentures Without Consent of
Securityholders. The Issuer and the Guarantor, each when authorized by, or
pursuant to a Resolution, and the Trustee may from time to time and at any time
enter into an indenture or indentures supplemental hereto (which shall conform
to the provisions of the Trust Indenture Act of 1939 as in force at the date of
the execution thereof) for one or more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the Trustee as
security for the Securities of one or more series any property or assets;
(b) to evidence the succession of another entity to the Issuer or the
Guarantor, or successive successions, and the assumption by the successor
entity of the covenants, agreements, rights and obligations of the Issuer
or the Guarantor, as the case may be, pursuant to Article Eight;
(c) to add to the covenants of the Issuer or the Guarantor such
further covenants, restrictions, conditions or provisions as the Issuer or
the Guarantor shall consider to be for the benefit of the Holders of one or
more series of Securities (and if such covenants, restrictions, conditions
or provisions are to be for the benefit of less than all series of
Securities, stating that such covenants, restrictions, conditions or
provisions are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the Issuer
or the Guarantor;
(d) to add additional Events of Default and to provide with respect
thereto for any particular periods of grace after default (which may be
shorter or longer than that allowed in the case of other defaults) or for
immediate enforcement upon such default or for any limitation of the
remedies available to the Trustee upon such default;
(e) to provide for the assumption by the Guarantor of the covenants,
agreements, rights and obligations of the Issuer pursuant to Section 2.15;
(f) to provide for the issuance under this Indenture of Securities in
bearer form (including Securities registrable as to principal only) with or
without interest coupons and to provide for exchangeability of such
Securities with the Securities of the same series or tranche, as the case
may be, issued hereunder in fully registered form and to make all
appropriate changes for such purpose;
(g) to cure any ambiguity or to correct or supplement any provision
contained herein, in the Securities of any series or in the Guaranty or in
any supplemental indenture which may be defective or inconsistent with any
other provision contained herein or in any supplemental indenture; or to
change or eliminate any provision or to make such other provisions in
regard to matters or questions arising under this Indenture or under any
supplemental indenture as the Issuer or the Guarantor may deem necessary or
desirable and which shall not adversely affect the interests of the Holders
of the Securities at the time Outstanding;
(h) to establish the form or terms of Securities of any series as
permitted by Sections 2.1 and 2.5; or
(i) to evidence and provide for the acceptance of appointment
hereunder by a successor trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one trustee, pursuant to the requirements
of Section 5.9.
Upon the request of the Issuer and the Guarantor, accompanied by
copies of the Resolutions authorizing the execution of any such supplemental
indenture certified by the secretaries of each of the Issuer and the Guarantor,
the Trustee shall join with the Issuer and the Guarantor in the execution of any
such supplemental indenture, to make any further appropriate agreements and
stipulations which may be therein contained and to accept the conveyance,
transfer, assignment, mortgage or pledge of any property thereunder, but the
Trustee shall not be obligated to (but may in its discretion) enter into any
such supplemental indenture which adversely affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this
Section may be executed by the Issuer, the Guarantor and the Trustee without the
consent of the Holders of any of the Securities at the time Outstanding,
notwithstanding any of the provisions of Section 7.2.
SECTION 7.2 Supplemental Indentures With Consent of Securityholders.
With the consent (evidenced as provided in Article Six) of the Holders of not
less than a majority in aggregate principal amount of the Securities of all
series affected by such supplemental indenture (all such series voting as a
single class) at the time Outstanding, the Issuer and the Guarantor, each when
authorized by, or pursuant to a Resolution, and the Trustee may, from time to
time and at any time, enter into an indenture or indentures supplemental hereto
(which shall conform to the provisions of the Trust Indenture Act of 1939 as in
force at the date of execution thereof) for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of this
Indenture or of any supplemental indenture or of modifying in any manner the
rights and obligations of the Issuer or the Guarantor or the rights of the
Holders of the Securities of all such series; provided, that no such
supplemental indenture shall (a) extend the fixed maturity of any Security, or
reduce the principal amount thereof, or reduce the rate or extend the time of
payment of interest thereon, or reduce any Additional Amount payable thereon, or
reduce any amount payable on redemption or reduce the Overdue Rate thereof or
make the principal thereof or interest thereon payable in any coin or currency
other than that provided in the Security or reduce the amount of the principal
of an Original Issue Discount Security (or a Security that provides that an
amount other than the face amount thereof will or may be payable upon a
declaration of acceleration of the maturity thereof) that would be due and
payable upon an acceleration of the maturity thereof pursuant to Section 4.1 or
the amount thereof provable in any action or proceeding pursuant to Section 4.2,
or impair, if the Securities provide therefor, any right of repayment at the
option of the Securityholder, or alter adversely or eliminate the right, if any,
of a Holder of a Security to convert the same into Parent Shares at the
Conversion Price set forth therein or upon the terms provided in this Indenture,
or impair the right to institute suit for the enforcement of any such payment on
or after the maturity thereof (or, in case of redemption, on or after the
redemption date), or for the enforcement of the conversion of any Security that
is convertible at the option of a Holder thereof into Parent Shares without the
consent of the Holder of each Security so affected, (b) reduce the aforesaid
percentage of Securities the consent of the Holders of which is required for any
such supplemental indenture, without the consent of the Holders of each Security
so affected or (c) modify any of the provisions of Article Twelve in a manner
adverse to the Holders of the Securities.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Securityholders of such series with respect to such covenant
or provision, shall be deemed not to affect the rights under this Indenture of
the Securityholders of any other series. The preceding sentence shall not,
however, raise any inference as to whether or not a particular series is
affected by any supplemental indenture not referred to in such sentence.
Upon the request of the Issuer and the Guarantor, accompanied by
copies of the Resolutions authorizing the execution of any such supplemental
indenture certified by the secretaries of each of the Issuer and the Guarantor,
and upon the filing with the Trustee of evidence of the consent of
Securityholders as aforesaid and other documents, if any, required by Section
6.1, the Trustee shall join with the Issuer and the Guarantor in the execution
of such supplemental indenture unless such supplemental indenture adversely
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion, but shall not be
obligated to, enter into such supplemental indenture.
It shall not be necessary for the consent of the Securityholders under
this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution by the Issuer, the Guarantor and the
Trustee of any supplemental indenture pursuant to the provisions of this Section
7.2, the Issuer shall mail a notice thereof to the Holders of Securities of each
series affected thereby at their addresses as they shall appear in the Register,
setting forth in general terms the substance of such supplemental indenture. Any
failure of the Issuer to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such supplemental
indenture.
SECTION 7.3 Effect of Supplemental Indenture. Upon the execution of
any supplemental indenture pursuant to the provisions hereof, this Indenture
shall be and be deemed to be modified and amended in accordance therewith and
the respective rights, limitations of rights, obligations, duties and immunities
under this Indenture of the Trustee, the Issuer, the Guarantor and the Holders
of Securities of each series affected thereby shall thereafter be determined,
exercised and enforced hereunder subject in all respects to such modifications
and amendments, and all the terms and conditions of any such supplemental
indenture shall be and be deemed to be part of the terms and conditions of this
Indenture for any and all purposes.
SECTION 7.4 Certain Documents to Be Given to Trustee. The Trustee,
subject to the requirements of the Trust Indenture Act of 1939 and Section 5.1,
may receive an Officers' Certificate and an Opinion of Counsel as conclusive
evidence that any supplemental indenture executed pursuant to this Article Seven
complies with the requirements of this Article Seven.
SECTION 7.5 Notation on Securities. Securities of any series
authenticated and delivered after the execution of any supplemental indenture
pursuant to the provisions of this Article Seven may bear a notation in form
approved by the Trustee for such series as to any matter provided for by such
supplemental indenture or as to any action taken at any such meeting. If the
Issuer or the Trustee shall so determine, new Securities of any series so
modified as to conform, in the opinion of the Trustee and the Issuer, to any
modification of this Indenture contained in any such supplemental indenture may
be prepared and executed (with the Guaranty endorsed thereon executed by the
Guarantor) by the Issuer, authenticated by the Trustee and delivered in exchange
for the Securities of such series then Outstanding.
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
SECTION 8.1 Issuer and Guarantor May Consolidate, etc., on Certain
Terms. (a) Nothing contained in this Indenture or in any of the Securities shall
prevent any consolidation or merger of the Issuer with or into any other entity
or entities (whether or not affiliated with the Issuer), or successive
consolidations or mergers in which the Issuer or its successor or successors
shall be a party or parties, or shall prevent any sale, conveyance or lease of
all or substantially all the property of the Issuer, to any other entity
(whether or not affiliated with the Issuer) authorized to acquire and operate
the same; provided, however, and the Issuer hereby covenants and agrees, that
upon any such consolidation, merger, sale, conveyance or lease, (i) the due and
punctual payment of the principal of and interest, if any, on all of the
Securities, according to their tenor, and the due and punctual performance and
observance of all of the covenants and conditions of this Indenture to be
performed by the Issuer (including, without limitation, the terms, covenants and
conditions contained in Section 11.6), shall be expressly assumed, by
supplemental indenture satisfactory in form to the Trustee, executed and
delivered to the Trustee by the entity (if other than the Issuer) formed by such
consolidation, or into which the Issuer shall have been merged, or by the entity
which shall have acquired or leased such property and (ii) the Issuer or such
successor entity, as the case may be, shall not, immediately after such merger
or consolidation, or such sale, conveyance or lease, be in default in the
performance of any such covenant or condition.
(b) Nothing contained in this Indenture or in any of the Securities
shall prevent any consolidation or merger of the Guarantor with or into any
other entity or entities (whether or not affiliated with the Guarantor), or
successive consolidations or mergers in which the Guarantor or the successor or
successors shall be a party or parties, or shall prevent any sale, conveyance or
lease of all or substantially all the property of the Guarantor to any other
entity (whether or not affiliated with the Guarantor) authorized to acquire and
operate the same; provided, however, and the Guarantor hereby covenants and
agrees, that upon any such consolidation, merger, sale, conveyance or lease, (i)
the due and punctual performance and observance of all of the covenants and
conditions of this Indenture to be performed by the Guarantor and under the
Guaranty shall be expressly assumed, by supplemental indenture satisfactory in
form to the Trustee, executed and delivered to the Trustee by the entity (if
other than the Guarantor) formed by such consolidation, or into which the
Guarantor shall have been merged, or by the entity which shall have acquired or
leased such property and (ii) the Guarantor or such successor entity, as the
case may be, shall not, immediately after such merger or consolidation, or such
sale, conveyance or lease, be in default in the performance of any such covenant
or condition.
SECTION 8.2 Successor Entity to Be Substituted. (a) In case of any
consolidation, merger, sale, conveyance or lease referred to in Section 8.1 and
upon the assumption by the successor entity, by supplemental indenture, executed
and delivered to the Trustee and satisfactory in form to the Trustee, of, in the
case of Section 8.1(a), the due and punctual payment of the principal of and
interest, if any, on all of the Securities and the due and punctual performance
of all of the covenants and conditions of this Indenture to be performed by the
Issuer or, in the case of Section 8.1(b), the due and punctual performance of
all covenants and conditions of this Indenture be performed by the Guarantor and
under the Guaranty, such successor entity shall succeed to and be substituted
for the Issuer or the Guarantor, as applicable, with the same effect as if it
had been named herein as the party of the first part. In case of any such
consolidation, merger, sale, conveyance or lease, such changes in phraseology
and form (but not in substance) may be made in the Securities thereafter to be
issued as may be appropriate.
(b) In the case of a successor entity to the Issuer, such successor
entity thereupon may cause to be signed, and may issue in its own name any or
all of the Securities issuable hereunder which theretofore shall not have been
signed by the Issuer and delivered to the Trustee; and, upon the order of such
successor entity instead of the Issuer and subject to all the terms, conditions
and limitations in this Indenture prescribed, the Trustee shall authenticate and
shall deliver any Securities which previously shall have been signed and
delivered by an officer of the Issuer to the Trustee for authentication, and any
Securities which such successor entity thereafter shall cause to be signed and
delivered to the Trustee for that purpose. All the Securities of any series so
issued shall in all respects have the same legal rank and benefit under this
Indenture as the Securities of the same series theretofore or thereafter issued
in accordance with the terms of this Indenture as though all of such Securities
had been issued at the date of the execution hereof. In the event of any such
sale or conveyance, but not any such lease, the Issuer or any successor entity
which shall theretofore have become such in the manner described in this Article
Eight shall be discharged from all obligations and covenants under this
Indenture and the Securities and may be dissolved and liquidated.
(c) In the case of a successor entity to the Guarantor, such successor
entity thereupon may cause to be signed, and may issue in its own name the
Guaranty with respect to any or all of the Securities issuable hereunder which
theretofore shall not have been signed by the Guarantor and delivered to the
Trustee; and, upon the order of such successor entity instead of the Guarantor
and subject to all the terms, conditions and limitations in this Indenture
prescribed, the Trustee shall authenticate and shall deliver any Securities on
which the Guaranty is endorsed which previously shall have been signed and
delivered by an officer of the Guarantor to the Trustee for authentication, and
any Securities on which the Guaranty is endorsed which such successor entity
thereafter shall cause to be signed and delivered to the Trustee for that
purpose. Any such Guaranty with respect to Securities of any series shall in all
respects have the same legal rank and benefit under this Indenture as the
Guaranty with respect to Securities of the same series theretofore or thereafter
issued in accordance with the terms of this Indenture as though all of such
Securities had been issued at the date of the execution hereof. In the event of
any such sale or conveyance referred to in Section 8.1, but not any lease
referred to in such Section, the Guarantor or any successor entity which shall
theretofore have become such in the manner described in this Article Eight shall
be discharged from all obligations and covenants under this Indenture and the
Guaranty and may be dissolved and liquidated.
SECTION 8.3 Opinion of Counsel and Officers' Certificate to Be Given
to Trustee. The Trustee, subject to the requirements of the Trust Indenture Act
of 1939 and Section 5.1, may receive an Opinion of Counsel and Officers'
Certificate as conclusive evidence that any such consolidation, merger, sale,
conveyance or lease and any such assumption complies with the provisions of this
Article Eight.
ARTICLE NINE
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 9.1 Satisfaction and Discharge of Indenture. If at any time
(a) the Issuer or the Guarantor shall have paid or caused to be paid the
principal of and interest on all the Securities of any particular series
Outstanding hereunder (other than Securities which have been mutilated, defaced,
destroyed, lost or stolen and which have been replaced or paid as provided in
Section 2.13 or in lieu of or in substitution for which other Securities shall
have been authenticated and delivered) as and when the same shall have become
due and payable, or (b) the Issuer or the Guarantor shall have delivered to the
Trustee for cancellation all Securities of such series theretofore authenticated
(other than any Securities of such series which shall have been mutilated,
defaced, destroyed, lost or stolen and which shall have been replaced or paid as
provided in Section 2.13 or in lieu of or in substitution for which other
Securities shall have been authenticated and delivered) and not theretofore
canceled, or (c)(i) all the Securities of such series not theretofore canceled
or delivered to the Trustee for cancellation shall have become due and payable,
or are by their terms to become due and payable within one year or are to be
called for redemption within one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption, and (ii) the Issuer or the
Guarantor shall have irrevocably deposited or caused to be deposited with the
Trustee as trust funds the entire amount in cash (other than moneys repaid by
the Trustee or any paying agent to the Issuer or the Guarantor in accordance
with Section 9.4) sufficient to pay at maturity or upon redemption all
Securities of such series not theretofore delivered to the Trustee for
cancellation (other than any Securities of such series which shall have been
mutilated, defaced, destroyed, lost or stolen which have been replaced or paid
as provided in Section 2.13 or in lieu of or in substitution for which other
Securities shall have been authenticated and delivered), including principal and
interest, if any, due or to become due to such date of maturity or the date
fixed for redemption, as the case may be, and if, in any such case, the Issuer
or the Guarantor shall also pay or cause to be paid all other sums payable
hereunder by the Issuer or the Guarantor with respect to Securities of such
series, then this Indenture shall cease to be of further effect with respect to
Securities of such series (except as to (i) rights of registration of transfer
and exchange, and the Issuer's right of optional redemption, (ii) substitution
of mutilated, defaced, destroyed, lost or stolen Securities, (iii) rights of
Securityholders to receive payments of principal thereof and interest, if any,
thereon, and remaining rights of the Securityholders to receive mandatory
sinking fund payments, if any, (iv) the rights, obligations and immunities of
the Trustee hereunder, including its rights under Section 5.5, (v) rights of
conversion, if any, and (vi) the rights of the Securityholders of such series as
beneficiaries hereof with respect to the property so deposited with the Trustee
payable to all or any of them), and the Trustee, on demand of the Issuer
accompanied by an Officers' Certificate and an Opinion of Counsel and at the
cost and expense of the Issuer, shall execute proper instruments acknowledging
such satisfaction of and discharging this Indenture with respect to such series.
SECTION 9.2 Funds Deposited with Trustee for Payment of Securities.
Subject to Section 9.4, all moneys deposited with the Trustee pursuant to
Section 9.1 shall be held in trust and applied by it to the payment, either
directly or through any paying agent (including the Issuer acting as its own
paying agent), to the Holders of the particular Securities of such series for
the payment or redemption of which such moneys have been deposited with the
Trustee, of all sums due and to become due thereon for principal and interest,
if any.
SECTION 9.3 Repayment of Moneys Held by Paying Agent. In connection
with the satisfaction and discharge of this Indenture with respect to Securities
of any series, all moneys then held by any paying agent, other than the Trustee,
under the provisions of this Indenture with respect to such series of Securities
shall, upon demand of the Issuer or the Guarantor, be repaid to the Issuer or,
to the extent that such moneys were deposited by it, the Guarantor, or paid to
the Trustee, and thereupon such paying agent shall be released from all further
liability with respect to such moneys.
SECTION 9.4 Return of Moneys Held by Trustee and Paying Agent
Unclaimed for Two Years. Any moneys deposited with or paid to the Trustee or any
paying agent for the payment of the principal of or interest, if any, on any
Security of any series and not applied but remaining unclaimed for two years
after the date upon which such principal or interest, as the case may be, shall
have become due and payable, shall, upon the written request of the Issuer or
the Guarantor and unless otherwise required by mandatory provisions of
applicable escheat or abandoned or unclaimed property law, be repaid to the
Issuer or, to the extent that such moneys were deposited by it, the Guarantor,
as the case may be by the Trustee for such series or such paying agent, and the
Holder of such Security of such series shall, unless otherwise required by
mandatory provisions of applicable escheat or abandoned or unclaimed property
laws, thereafter look only to the Issuer for any payment which such Holder may
be entitled to collect.
SECTION 9.5 Option to Effect Defeasance or Covenant Defeasance. The
Issuer or the Guarantor may at its option by or pursuant to a Resolution, at any
time, with respect to the Securities of any series, elect to have either Section
9.6 or Section 9.7 applied to the Outstanding Securities of such series upon
compliance with the conditions set forth below.
SECTION 9.6 Defeasance and Discharge. Upon the Issuer's or the
Guarantor's exercise of its option to utilize the provisions of this Section 9.6
and upon compliance with Section 9.8, the Issuer and the Guarantor shall be
deemed to have been discharged from their obligations with respect to the
Outstanding Securities of such series, and the Guarantor shall be deemed to have
been discharged from its obligations under the Guaranty with respect to such
Outstanding Securities, in each case on the date the conditions set forth below
are satisfied (hereinafter, "defeasance"). For this purpose, such defeasance
means that the Issuer shall be deemed to have paid and discharged the entire
indebtedness represented by the Outstanding Securities of such series and to
have satisfied all its other obligations under such Securities and this
Indenture insofar as such Securities are concerned and the Guarantor shall be
deemed to have discharged all of its obligations under the Guaranty (and the
Trustee, at the expense of the Issuer, shall execute proper instruments
acknowledging the same), except for the following which shall survive until
otherwise terminated or discharged hereunder: (a) the rights of Holders of
Outstanding Securities of such series to receive, solely from the trust fund
described in Section 9.8 and as more fully set forth in such Section, payments
in respect of the principal of and interest on such Securities when such
payments are due, (b) the obligations of the Issuer and the Guarantor with
respect to such Securities under Sections 2.12, 2.13, 2.16, 3.2 and 3.3, (c) the
rights, powers, trusts, duties, and immunities of the Trustee under Sections
2.13, 2.14, 2.16, 4.3, 5.5 and 9.4, and otherwise the duty of the Trustee to
authenticate Securities of such series issued on registration of transfer or
exchange, (d) the conversion rights, if any, of Holders of Outstanding
Securities of such series and the obligations of the Issuer and the Guarantor,
if any, with respect thereto under Article Eleven, and (e) this Article Nine.
Subject to compliance with this Article Nine, the Issuer or the Guarantor may
exercise its option under this Section 9.6 notwithstanding the prior exercise of
its option under Section 9.7 with respect to the Securities of such series.
SECTION 9.7 Covenant Defeasance. Upon the Issuer's or the Guarantor's
exercise of its option to utilize the provisions of this Section 9.7 and upon
compliance with Section 9.8, the Issuer and the Guarantor shall be released from
their respective obligations, if any, under Sections 3.4 and 3.5 with respect to
the Outstanding Securities of such series on and after the date the conditions
set forth below are satisfied (hereinafter, "covenant defeasance"). For this
purpose, such covenant defeasance means that, with respect to the Outstanding
Securities of such series, the Issuer and the Guarantor may omit to comply with
and shall have no liability in respect of any term, condition or limitation set
forth in any such Section with respect to it, whether directly or indirectly by
reason of any reference elsewhere herein to any such Section (including under
Section 4.1(d)) or by reason of any reference in any such Section to any other
provision herein or in any other document, but the remainder of this Indenture
and such Securities shall be unaffected thereby.
SECTION 9.8 Conditions to Defeasance or Covenant Defeasance. The
following shall be the conditions to application of either Section 9.6 or
Section 9.7 to the Outstanding Securities of such series:
(a) The Issuer or the Guarantor shall irrevocably have deposited or
caused to be deposited with the Trustee (or another trustee satisfying the
requirements of Section 5.7 who shall agree to comply with the provisions
of this Article Nine applicable to it) as trust funds in trust for the
purpose of making the following payments, specifically pledged as security
for, and dedicated solely to, the benefit of the Holders of such
Securities, (A) money in an amount, or (B) U.S. Government Obligations
which through the scheduled payment of principal and interest in respect
thereof in accordance with their terms will provide, not later than one day
before the due date of any payment, money in an amount, or (C) a
combination thereof, sufficient, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which shall be
applied by the Trustee (or other qualifying trustee) to pay and discharge,
(i) the principal of and each installment of principal of and interest on
the Outstanding Securities of such series on the stated maturity of such
principal or installment of principal or interest and (ii) any mandatory
sinking fund payments or analogous payments applicable to the Outstanding
Securities of such series on the day on which such payments are due and
payable in accordance with the terms of this Indenture and of such
Securities. For this purpose, "U.S. Government Obligations" means
securities that are (x) direct obligations of the United States of America
for the payment of which its full faith and credit is pledged or (y)
obligations of a person controlled or supervised by and acting as an agency
or instrumentality of the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the
United States of America, which, in either case, are not callable or
redeemable at the option of the issuer thereof, and shall also include a
depositary receipt issued by a bank (as defined in Section 3(a)(2) of the
Securities Act) as Custodian with respect to any such U.S. Government
Obligation or a specific payment of principal of or interest on any such
U.S. Government Obligation held by such Custodian for the account of the
Holder of such depositary receipt, provided, that (except as required by
law) such Custodian is not authorized to make any deduction from the amount
payable to the Holder of such depositary receipt from any amount received
by the Custodian in respect of the U.S. Government Obligation or the
specific payment of principal of or interest on the U.S. Government
Obligation evidenced by such depositary receipt.
(b) No Event of Default or event which with notice or lapse of time or
both would become an Event of Default with respect to the Securities of
such series shall have occurred and be continuing on the date of such
deposit.
(c) Such defeasance or covenant defeasance shall not cause the Trustee
for the Securities of such series to have a conflicting interest for
purposes of the Trust Indenture Act of 1939 with respect to any Securities
of the Issuer.
(d) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or
any other agreement or instrument to which the Issuer or the Guarantor is a
party or by which it is bound.
(e) Such defeasance or covenant defeasance shall not cause any
Securities of such series then listed on any registered national securities
exchange under the Exchange Act, to be delisted.
(f) In the case of an election under Section 9.6, the Issuer or the
Guarantor shall have delivered to the Trustee an Opinion of Counsel (who
may be counsel to the Issuer or the Guarantor) stating that (x) the Issuer
or the Guarantor has received from, or there has been published by, the
Internal Revenue Service a ruling, or (y) since the date of this Indenture
there has been a change in the applicable U.S. federal income tax law, in
either case to the effect that, and based thereon such opinion shall
confirm that, the Holders of the Outstanding Securities of such series will
not recognize income, gain or loss for U.S. federal income tax purposes as
a result of such defeasance and will be subject to U.S. federal income tax
on the same amounts, in the same manner and at the same times as would have
been the case if such defeasance had not occurred.
(g) In the case of an election under Section 9.7, the Issuer or the
Guarantor shall have delivered to the Trustee an Opinion of Counsel (who
may be counsel to the Issuer or the Guarantor) to the effect that the
Holders of the Outstanding Securities of such series will not recognize
income, gain or loss for U.S federal income tax purposes as a result of
such covenant defeasance and will be subject to U.S. federal income tax on
the same amounts, in the same manner and at the same times as would have
been the case if such covenant defeasance had not occurred.
(h) The Issuer or the Guarantor shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to either the defeasance under
Section 9.6 or the covenant defeasance under Section 9.7 (as the case may
be) have been complied with.
SECTION 9.9 Deposited Money and U.S. Government Obligations to Be Held
in Trust; Other Miscellaneous Provisions. Subject to the provisions of Section
9.4, all money and U.S. Government Obligations (including the proceeds thereof)
deposited with the Trustee (or other qualifying trustee -- collectively, for
purposes of this Section 9.9, the "Trustee") pursuant to Section 9.8 in respect
of the Outstanding Securities of such series shall be held in trust and applied
by the Trustee, in accordance with the provisions of such Securities and this
Indenture, to the payment, either directly or through any paying agent
(including the Issuer acting as its own paying agent) as the Trustee may
determine, to the Holders of such Securities, of all sums due and to become due
thereon in respect of principal and interest, but such money need not be
segregated from other funds except to the extent required by law.
The Issuer and the Guarantor shall pay and indemnify the Trustee
against any tax, fee or other charge imposed on or assessed against the U.S.
Government Obligations deposited pursuant to Section 9.8 or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the Outstanding
Securities of such series.
Anything in this Article Nine to the contrary notwithstanding, the
Trustee shall deliver or pay to the Issuer or the Guarantor, as applicable, from
time to time upon the Issuer's or the Guarantor's written request any money or
U.S. Government Obligations held by it as provided in Section 9.8 which, in the
written opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be required to be
deposited to effect an equivalent defeasance or covenant defeasance.
ARTICLE TEN
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 10.1 Applicability of Article. The provisions of this Article
shall be applicable to the Securities of any series which are redeemable before
their maturity and to any sinking fund for the retirement of Securities of a
series except as otherwise specified as contemplated by Section 2.6 for
Securities of such series.
SECTION 10.2 Notice of Redemption; Selection of Securities. In case
the Issuer shall desire to exercise any right to redeem all or any part of the
Securities of any series in accordance with their terms, the Issuer shall fix a
date for redemption and shall notify the Trustee in writing, at least 45 days
before such redemption date. The Issuer, or at the request and at the expense of
the Issuer, the Trustee, shall mail a notice of such redemption, at least 30
days and not more than 60 days prior to the date fixed for redemption, to the
Holders of Securities of such series so to be redeemed in whole or in part at
their last addresses as they shall appear in the Register. Any notice which is
mailed in the manner herein provided shall be conclusively presumed to have been
duly given, whether or not the Holder receives the notice. Failure to give
notice by mail, or any defect in the notice, to the Holder of any Security of a
series designated for redemption as a whole or in part shall not affect the
validity of the proceedings for the redemption of any other Security of such
series.
The notice of redemption to each such Holder shall specify the CUSIP
number of the Securities of such series, if any, the date fixed for redemption,
the redemption price, the place or places of payment, if the Securities of such
series are convertible at the option of the Holder into Parent Shares, the
Conversion Price, the place or places of conversion, that, unless otherwise
provided pursuant to Section 2.6 for Securities of such series, Securities
called for redemption may be converted at any time before the close of business
on the third Business Day prior to the date fixed for redemption and if not
converted prior to the close of business on such date, the right of conversion
will be lost and that Holders who want to convert Securities must satisfy the
requirements set forth in the terms thereof, that payment will be made upon
presentation and surrender of such Securities, that any interest accrued to the
date fixed for redemption will be paid as specified in such notice and that on
and after said date any interest thereon or on the portions thereof to be
redeemed will cease to accrue. If less than all of the Outstanding Securities of
a series are to be redeemed, the notice of redemption shall specify the number
or numbers or distinguishing symbol or symbols of the Securities to be redeemed.
In case any Security of a series is to be redeemed in part only the notice of
redemption shall state the portion of the principal amount thereof to be
redeemed and shall state that on and after the date fixed for redemption, upon
surrender of such Security, a new Security or Securities of such series in
principal amount equal to the unredeemed portion thereof will be issued.
Prior to the redemption date specified in the notice of redemption
given as provided in this Section, the Issuer or the Guarantor will deposit with
the Trustee or with one or more paying agents (or, if the Issuer is acting as
its own paying agent, segregate and hold in trust as required by the Trust
Indenture Act of 1939) an amount of money (in the currency or units of
currencies or composite currency in which the Securities so called for
redemption are denominated or an appropriate equivalent thereof) sufficient to
redeem on the redemption date all the Securities of such series or portions
thereof so called for redemption at the appropriate redemption price, together
with accrued interest to the date fixed for redemption. If less than all the
Outstanding Securities of a series are to be redeemed (or less than the full
principal amount of each Security in such series is to be redeemed), the Issuer
or the Guarantor will deliver to the Trustee at least 60 days prior to the date
fixed for redemption (or such shorter period if acceptable to the Trustee) an
Officers' Certificate stating the aggregate principal amount of Securities to be
redeemed and, if the Trustee is not acting as the repository of the Register for
such series, a current list of all Outstanding Securities of such series.
If less than all the Outstanding Securities of a series are to be
redeemed, the Trustee shall select, in such manner as it shall deem appropriate
and fair, Securities of such series to be redeemed in whole or in part; however,
if less than all the Securities of any series with differing issue dates,
interest rates and stated maturities are to be redeemed, the Issuer or the
Guarantor in its sole discretion shall select the particular Securities to be
redeemed and shall notify the Trustee in writing thereof at least 45 days prior
to the relevant redemption date. Except as otherwise specified for Securities of
a particular series pursuant to Section 2.6, Securities may be redeemed in part
in amounts equal to the minimum authorized denomination for Securities of such
series or any multiple thereof. The Trustee shall promptly notify the Issuer and
the Guarantor in writing of the Securities of such series selected for
redemption and, in the case of any Securities of such series selected for
partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities of any series
shall relate, in the case of any Security redeemed or to be redeemed only in
part, to the portion of the principal amount of such Security which has been or
is to be redeemed.
SECTION 10.3 Payment of Securities Called for Redemption. If notice of
redemption has been given as provided in Section 10.2, the Securities or
portions of Securities specified in such notice shall become due and payable on
the date and at the place or places stated in such notice at the applicable
redemption price, together with interest accrued to the date fixed for
redemption, and on and after said date (unless the Issuer shall default in the
payment of such Securities or portions thereof at the redemption price, together
with interest accrued to said date) interest on the Securities or portions of
Securities so called for redemption shall cease to accrue and, except as
provided in Sections 5.4 and 9.4, such Securities shall cease from and after the
date fixed for redemption to be entitled to any benefit or security under this
Indenture, and the Holders of such Securities shall have no right in respect of
such Securities except the right to receive the redemption price thereof and
unpaid interest to the date fixed for redemption. On presentation and surrender
of such Securities at a place of payment specified in said notice, said
Securities or the specified portions thereof shall be paid and redeemed by the
Issuer at the applicable redemption price, together with interest accrued
thereon to the date fixed for redemption; provided, that if the date fixed for
redemption is an interest payment date, the interest due on that date shall be
payable to the Holders of such Securities registered as such on the relevant
record date according to their terms.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal thereof so to be redeemed shall,
until paid or duly provided for, bear interest from the date fixed for
redemption at the Overdue Rate applicable to such series.
Upon presentation of any Security redeemed in part only, the Issuer
shall execute (in each case with the Guaranty endorsed thereon executed by the
Guarantor) and the Trustee shall authenticate and make available for delivery to
or on the order of the Holder thereof, at the expense of the Issuer, a new
Security or Securities of such series, of authorized denominations, in principal
amount equal to the unredeemed portion of the Security so presented.
SECTION 10.4 Conversion Arrangement on Call for Redemption. If in
connection with any redemption of Securities of any series with respect to which
the Holders have the right to convert such Securities into Parent Shares, the
Holders thereof do not elect to convert such Securities, the Issuer or the
Guarantor may arrange for the purchase and conversion of such Securities by an
agreement with one or more investment banking firms or other purchasers to
purchase such Securities by paying to the Trustee in trust for the Holders, not
later than the close of three Business Days prior to the date fixed for
redemption, an amount not less than the applicable redemption price, together
with interest accrued to the date fixed for redemption, of such Securities.
Notwithstanding anything to the contrary contained in this Article Ten, the
obligation of the Issuer to pay the redemption price of such Securities,
together with interest accrued to the date fixed for redemption, shall be deemed
to be satisfied and discharged to the extent such amount is so paid by such
purchasers to the Trustee in trust for the Holders. If such an agreement is
made, any Securities not duly surrendered for conversion by the Holders thereof
may, at the option of the Issuer or the Guarantor, as the case may be, be
deemed, to the fullest extent permitted by law, to have been acquired by such
purchasers from such Holders and (notwithstanding anything to the contrary
contained in Article Eleven) surrendered by such purchasers for conversion, all
as of immediately prior to the close of business on the date fixed for
redemption, subject to payment by the purchasers as specified above. The Trustee
shall hold and dispose of any such amount paid to it in the same manner as it
would moneys deposited with it by the Issuer for the redemption of Securities.
Without the Trustee's prior written consent, no arrangement between the Issuer
or the Guarantor and such purchasers for the purchase and conversion of any
Securities shall increase or otherwise affect any of the powers, duties,
responsibilities or obligations of the Trustee as set forth in this Indenture,
and the Issuer and the Guarantor agree to indemnify the Trustee from, and hold
it harmless against, any and all loss, liability, claim, damage or expense
arising out of or in connection with any such arrangement for the purchase and
conversion of any Securities between the Issuer or the Guarantor and such
purchasers, including the costs and expenses incurred by the Trustee and its
counsel in the defense of any claim or liability arising out of or in connection
with the exercise or performance of any of its powers, duties, responsibilities
or obligations under this Indenture.
SECTION 10.5 Exclusion of Certain Securities from Eligibility for
Selection for Redemption. Securities shall be excluded from eligibility for
selection for redemption if they are identified by registration and certificate
number or other distinguishing symbol in a written statement signed by an
authorized officer of the Issuer and delivered to the Trustee at least 10 days
prior to the date on which Securities are to be selected for redemption as being
owned of record and beneficially by, and not pledged or hypothecated by, either
(a) the Issuer or the Guarantor, or (b) an entity specifically identified in
such written statement directly or indirectly controlling or controlled by or
under direct or indirect common control with the Issuer or the Guarantor.
SECTION 10.6 Mandatory and Optional Sinking Funds. The minimum amount
of any sinking fund payment provided for by the terms of Securities of any
series is herein referred to as a "mandatory sinking fund payment", and any
payment in excess of such minimum amount provided for by the terms of Securities
of any series is herein referred to as an "optional sinking fund payment". The
date on which a sinking fund payment is to be made is herein referred to as the
"sinking fund payment date".
In lieu of making all or any part of any mandatory sinking fund
payment with respect to any series of Securities in cash, the Issuer may at its
option (a) deliver to the Trustee Securities of such series theretofore
purchased or otherwise acquired (except upon redemption pursuant to the
mandatory sinking fund) or receive credit for Securities of such series by the
Issuer (not previously so credited) theretofore purchased or otherwise acquired
(except as aforesaid) and delivered to the Trustee for cancellation pursuant to
Section 2.14, (b) receive credit for optional sinking fund payments (not
previously so credited) made pursuant to this Section, (c) receive credit for
Securities of such series (not previously so credited) that have been
surrendered to the Issuer for conversion, or (d) receive credit for Securities
of such series (not previously so credited) redeemed by the Issuer through any
optional redemption provision contained in the terms of Securities of such
series. Securities so delivered or credited shall be received or credited by the
Trustee at the sinking fund redemption price specified in such Securities, and
the amount of such mandatory sinking fund payment shall be reduced accordingly.
On or before the sixtieth day next preceding each sinking fund payment
date for any series of Securities, the Issuer will deliver to the Trustee a
certificate of the Issuer (which need not contain the statements required by the
Trust Indenture Act of 1939) signed by an officer of the Issuer who is one of
the officers authorized to sign an Officers' Certificate, (a) specifying the
portion, if any, of the mandatory sinking fund payment to be satisfied by
payment of cash and the portion, if any, to be satisfied by credit of Securities
of such series, (b) stating that none of such Securities has theretofore been so
credited, (c) stating that no Event of Default with respect to such series has
occurred (which has not been waived or cured) and is continuing and (d) stating
whether or not the Issuer intends to exercise its right to make an optional
sinking fund payment with respect to such series and, if so, specifying the
amount of such optional sinking fund payment which the Issuer intends to pay on
or before the next succeeding sinking fund payment date. Any Securities of such
series to be credited and required to be delivered to the Trustee in order for
the Issuer to be entitled to credit therefor as aforesaid which have not
theretofore been delivered to the Trustee shall be delivered for cancellation
pursuant to Section 2.14 to the Trustee with such certificate. Such certificate
shall be irrevocable and upon its receipt by the Trustee the Issuer shall become
obligated to make all the cash payments or payments therein referred to, if any
(which cash may be deposited with the Trustee or with one or more paying agents
or, if the Issuer is acting as its own paying agent, segregated and held in
trust as required by the Trust Indenture Act of 1939), on or before the next
succeeding sinking fund payment date. Failure of the Issuer, on or before any
such sixtieth day, to deliver such certificate and Securities specified in this
paragraph, if any, shall not constitute a default but shall constitute, on and
as of such date, the irrevocable election of the Issuer (i) that the mandatory
sinking fund payment for such series due on the next succeeding sinking fund
payment date shall be paid entirely in cash without the option to deliver or
credit Securities of such series in respect thereof and (ii) that the Issuer
will make no optional sinking fund payment with respect to such series as
provided in this Section.
If the sinking fund payment or payments (mandatory or optional or
both) to be made in cash on the next succeeding sinking fund payment date plus
any unused balance of any preceding sinking fund payments made in cash shall
exceed U.S.$100,000 or, if payments on Securities of such series are to be made
in a currency other than Dollars or in units or composites of two or more
currencies, the equivalent thereof (based upon the Market Exchange Rate on the
sixtieth day preceding the relevant sinking fund payment date or if the Market
Exchange Rate is not available for such date, the immediately preceding date for
which the Market Exchange Rate is available) in the relevant currency or unit or
composite currency (or such other amount as is specified for a particular series
of Securities pursuant to Section 2.6), or a lesser sum if the Issuer shall so
request, with respect to the Securities of any particular series, such cash
shall be applied by the Trustee (or by the Issuer if the Issuer is acting as its
own paying agent) on the sinking fund payment date on which such payment is made
(or, if such payment is made before a sinking fund payment date, on the next
sinking fund payment date following the date of such payment) to the redemption
of such Securities at the sinking fund redemption price specified in such
Securities for operation of the sinking fund together with accrued interest, if
any, to the date fixed for redemption. If such amount shall be U.S.$100,000 or,
if payments on Securities of such series are to be made in a currency other than
Dollars or in units or composites of two more currencies, the equivalent thereof
(based upon the Market Exchange Rate on the sixtieth day preceding the relevant
sinking fund payment date or if the Market Exchange Rate is not available for
such date, the immediately preceding date for which the Market Exchange Rate is
available) in the relevant currency or unit or composite currency (or such other
amount as is specified for the particular series pursuant to Section 2.6), or
less and the Issuer makes no such request then it shall be carried over until a
sum in excess of U.S.$100,000, or the equivalent thereof in the relevant
currency or unit or composite currency, is available.
The Trustee shall select, in the manner provided in Section 10.2, for
redemption on such sinking fund payment date, Securities of such series with
respect to which cash payment of the applicable sinking fund redemption price
will be made and shall (if requested in writing by the Issuer) inform the Issuer
of the serial numbers or other distinguishing symbols of the Securities of such
series (or portions thereof) so selected. If the Trustee shall be required to
select Securities of any series for the sinking fund and is not acting as
repository of the Register for such series, at least 60 days prior to the
sinking fund payment date the Issuer shall furnish to the Trustee a current list
of all Outstanding Securities of such series. Securities of any series which are
(a) owned by the Issuer, the Guarantor or an entity actually known by the
Trustee to be directly or indirectly controlling or controlled by or under
direct or indirect common control with the Issuer, as shown by the Register, and
not known to the Trustee to have been pledged or hypothecated by the Issuer the
Guarantor or any such entity or (b) identified in an Officers' Certificate at
least 60 days prior to the sinking fund payment date as being beneficially owned
by, and not pledged or hypothecated by, the Issuer, the Guarantor or an entity
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Issuer or the Guarantor, shall be excluded from
Securities of such series eligible for selection for redemption. The Trustee, in
the name and at the expense of the Issuer (or the Issuer, if it shall so notify
the Trustee in writing) shall cause notice of redemption of the Securities of
such series to be given in substantially the manner provided in Section 10.2,
except that the notice of redemption shall also state that the Securities are
being redeemed by operation of the sinking fund (and with the effect provided in
Section 10.3) for the redemption of Securities of such series which, if
applicable, is in part at the option of the Issuer.
The amount of any sinking fund payments not so applied or allocated by
the Trustee (or by the Issuer if the Issuer is acting as its own paying agent)
to the redemption of Securities of such series shall be added to the next cash
sinking fund payment received by the Trustee (or if the Issuer is acting as its
own paying agent, segregated and held in trust as required by the Trust
Indenture Act of 1939) for such series and, together with such payment (or such
amount so segregated), shall be applied in accordance with the provisions of
this Section 10.6. Any and all sinking fund moneys held by the Trustee (or if
the Issuer is acting as its own paying agent, segregated and held in trust as
required by the Trust Indenture Act of 1939) on the stated maturity date of the
Securities of any particular series (or earlier, if such maturity is
accelerated), which are not held for the payment or redemption of particular
Securities of such series shall be applied by the Trustee (or by the Issuer if
the Issuer is acting as its own paying agent), together with other moneys, if
necessary, sufficient for the purpose, to the payment of the principal of, and
interest on, the Securities of such series at maturity.
On or before each sinking fund payment date, the Issuer shall pay to
the Trustee in cash (or if the Issuer is acting as its own paying agent will
segregate and hold in trust as required by the Trust Indenture Act of 1939) or
shall otherwise provide for the payment of all interest accrued to the date
fixed for redemption on Securities (or portions thereof) to be redeemed on such
sinking fund payment date.
Neither the Issuer nor the Trustee shall redeem or cause to be
redeemed any Securities of a series with sinking fund moneys or mail any notice
of redemption of Securities for such series by operation of the sinking fund
during the continuance of a default in payment of interest, if any, on such
Securities or of any Event of Default (other than an Event of Default occurring
as a consequence of this paragraph, with respect to such Securities) except
that, where the mailing of notice of redemption of any Securities shall
theretofore have been made, the Trustee (or the Issuer if the Issuer is acting
as its own paying agent) shall redeem or cause to be redeemed such Securities,
provided that it shall have received from the Issuer (or the Issuer shall have
segregated) a sum sufficient for such redemption. Except as aforesaid, any
moneys in the sinking fund for such series at the time when any such default or
Event of Default shall occur, and any moneys thereafter paid into the sinking
fund, shall, during the continuance of such default or Event of Default, be
deemed to have been collected under Article Four and held for the payment of all
such Securities. Notwithstanding anything in the foregoing to the contrary, in
case such default or Event of Default shall have been waived as provided in
Section 4.9 or the default or Event of Default cured on or before the sixtieth
day preceding the sinking fund payment date in any year, such moneys shall
thereafter be applied on the next succeeding sinking fund payment date in
accordance with this Section 10.6 to the redemption of such Securities.
SECTION 10.7 Redemption for Tax Reasons. If at any time after the date
of issuance of Securities of any series pursuant to this Indenture as a result
of any change in, or amendment to, the laws or regulations of The Netherlands or
of any political subdivision thereof or any authority therein or thereof having
power to tax or as a result of any change in the application or official
interpretation of such laws or regulations, which change or amendment becomes
effective after the date of such issuance, the Guarantor becomes, or will
become, obligated to pay any Additional Amounts with respect to any payments
that it may be required to make pursuant to the Guaranty with respect to
Securities of any series and such obligations cannot be avoided by the Issuer or
the Guarantor taking reasonable measures available to either of them, then the
Securities of such series will be redeemable as a whole (but not in part), at
the option of the Issuer, at any time upon not less than thirty (30) nor more
than sixty (60) days' notice given to the Holders at their principal amount
together with accrued interest thereon (and any Additional Amounts Payable with
respect thereto) to the date fixed for redemption (the "Tax Redemption Date").
The Guarantor will also pay to the Holders of Securities of such series on the
Tax Redemption Date any Additional Amounts which would otherwise be payable. In
order to effect a redemption of Securities of any such series as described in
this paragraph, the Issuer and the Guarantor shall deliver to the Trustee at
least forty-five (45) days prior to the Tax Redemption Date: (i) a written
notice stating that the Securities of this series are to be redeemed as a whole
and (ii) an opinion of independent legal counsel of recognized standing to the
effect that the Guarantor has or will become obligated to pay Additional Amounts
with respect to any payments that it may be required to make pursuant to such
Guaranty as a result of any such change or amendment. No notice of redemption
may be given earlier than ninety (90) days prior to the earliest date on which
the Guarantor would be obligated to pay such Additional Amounts were a payment
in respect of the Securities of such series then due. The notice shall
additionally specify the Tax Redemption Date and all other information necessary
to the publication and mailing by the Trustee of notices of such redemption. The
Trustee shall be entitled to rely conclusively upon the information so furnished
by the Issuer and the Guarantor in such notice and shall be under no duty to
check the accuracy or completeness thereof. Such notice shall be irrevocable and
upon its delivery the Guarantor shall be obligated to make the payment or
payments referred to therein to the Trustee.
ARTICLE ELEVEN
CONVERSION OF SECURITIES
SECTION 11.1 Conversion of Securities. In connection with Securities
of any series that are convertible into Parent Shares, each such Security (or
any portion thereof which is, unless otherwise specified as contemplated by
Section 2.6 for Securities of any series, U.S.$1,000 or an integral multiple
thereof) shall be convertible into Parent Common Shares or Parent American
Depositary Shares as specified pursuant to Section 2.6 for Securities of such
series, in accordance with its terms and (except as otherwise specified pursuant
to Section 2.6 for Securities of such series) in accordance with this Article
Eleven at any time until the close of business on the third Business Day
preceding the maturity date of the Securities of such series or in case such
Security shall have been called for redemption, then in respect of such Security
until (unless the Issuer shall default in payment due upon the redemption
thereof) the close of business on the third Business Day preceding the date
fixed for redemption, unless otherwise specified as contemplated by Section 2.6
for Securities of such series.
The initial Conversion Price at which a Security of any series is
convertible shall be set forth in or established pursuant to a Resolution of the
Issuer or the Guarantor or supplemental indenture contemplated by Section 2.6.
Any such Security that is convertible at the option of the Holder
thereof shall be so converted upon surrender to the Trustee or the Conversion
Agent for surrender to the Issuer or the Guarantor in accordance with the
instructions on file with the Trustee and the Conversion Agent, at any time
during usual business hours at the office or agency to be maintained by the
Issuer in accordance with the provisions of Section 3.2, accompanied by a
written notice of election to convert as provided in Section 11.2 and, if so
required by the Issuer or the Guarantor, by a written instrument or instruments
of transfer in form satisfactory to the Issuer, the Guarantor and the Conversion
Agent duly executed by the Holder or his attorney duly authorized in writing.
Any such Security that is convertible otherwise than at the option of the Holder
thereof shall be so converted as specified pursuant to Section 2.6 for
Securities of such series. The Issuer and the Guarantor covenant to effect such
conversion by procuring the issuance of Parent Shares and payment of cash in
lieu of fractional Parent Shares in exchange for and in consideration of
delivery to it of the Securities. For convenience, the conversion of principal
of any Security or Securities pursuant to this Article Eleven is hereinafter
sometimes referred to as the conversion of such Security or Securities. All
Securities surrendered for conversion shall, if surrendered to the Issuer, the
Guarantor or the Conversion Agent, be delivered to the Trustee for cancellation
and canceled by it as provided in Section 2.13 (except as otherwise provided
therein). Any Security surrendered for conversion shall not thereafter be
convertible.
SECTION 11.2 Issuance of Parent Shares on Conversion. As promptly as
practicable after the surrender as herein provided of any Security or Securities
for conversion, the Issuer (or the Guarantor if it has delivered to the Trustee
an agreement between the Company and the Guarantor which is then in effect that
the Guarantor shall effect the conversion of the Securities) shall deliver or
cause to be delivered at its office or agency to or upon the written order of
the Holder of the Security or Securities so surrendered, either, as requested by
the Holder, the number of duly authorized, validly issued, fully paid and
nonassessable Parent Common Shares into which such Security or Securities may be
converted in accordance with the provisions of this Article Eleven or a Parent
ADR evidencing Parent ADSs which represents such number of Parent Common Shares
(such Parent Common Shares or Parent ADSs being referred to in this Article
Eleven as the "Parent Conversion Shares"). Prior to delivery of such Parent
Conversion Shares upon conversion of a Security at the option of a Holder, the
Issuer or the Guarantor, as the case may be, shall require a written notice,
which shall be substantially in the Form of Election to Convert as provided for
in Section 2.17, to be delivered to its office or agency from the Holder of the
Security or Securities so surrendered stating that the Holder irrevocably elects
to convert such Security or Securities for Parent Common Shares or Parent ADSs,
as specified in such notice. Such conversion notice once given shall be
irrevocable and may not be withdrawn without the consent in writing of the
Issuer or the Guarantor. The Issuer, the Guarantor or any Conversion Agent on
each of their behalf, may reject any incomplete or incorrect conversion notice.
All costs and expenses incurred or caused by an incomplete or incorrect notice
shall be for the account of the relevant Holder.
If the Holder is electing to receive Parent ADSs upon such conversion,
such notice shall also state the name or names (with address or addresses) in
which the Parent ADR evidencing such Parent ADSs are to be issued. Such
conversion shall be deemed to have been made at the close of business on the
date that such Security or Securities shall have been surrendered for conversion
and such notice shall have been received by the Issuer or the Guarantor, and the
rights of the Holder of such Security as a Holder shall cease at such time. The
person or persons entitled to receive the Parent Conversion Shares upon
conversion of such Security or Securities shall be treated for all purposes as
having become the holder or holders of such Parent Conversion Shares at such
time and such conversion shall be at the Conversion Price for such series of
Securities in effect at such time; provided, however, in the case of a Holder
electing to receive Parent ADSs upon such conversion, that no such surrender on
any date when the transfer books of the Parent Common Share Depositary shall be
closed shall be effective to constitute the person or persons entitled to
receive such Parent ADSs upon such conversion as the record holder or holders of
such Parent ADSs on such date, but such surrender shall be effective to
constitute the person or persons entitled to receive such Parent ADSs as the
record holder or holders thereof for all purposes at the close of business on
the next succeeding day on which such transfer books are open; such conversion
shall be at the Conversion Price in effect on the date that such Security or
Securities shall have been surrendered for conversion, as if the transfer books
of the Parent Common Share Depositary had not been closed.
Upon conversion of any Security which is converted in part only, the
Issuer shall execute and the Trustee shall authenticate and make available for
delivery to or on the order of the holder thereof, at the expense of the Issuer,
a new Security or Security of authorized denominations in a principal amount
equal to the unconverted portion of such Security.
SECTION 11.3 No Adjustment for Interest or Dividends. No payment or
adjustment in respect of interest on the Securities or dividends on the Parent
Conversion Shares shall be made upon the conversion of any Security or
Securities; provided, however, that if a Security or Securities or any portion
thereof shall be converted subsequent to any record date and on or prior to the
next succeeding interest payment date, the interest falling due on such interest
payment date shall be payable on such interest payment date notwithstanding such
conversion, and such interest (whether or not punctually paid or duly provided
for) shall be paid to the person in whose name such Security is registered at
the close of business on such record date and Securities surrendered for
conversion during the period from the close of business on any record date to
the opening of business on the corresponding interest payment date must be
accompanied by payment of any amount equal to the interest payable on such
interest payment date.
SECTION 11.4 Adjustment of Conversion Price. Except as may otherwise
be established pursuant to Section 2.6 with respect to a particular series of
Securities, the Conversion Price in effect at any time for any series of
Securities that is convertible into Parent Shares shall be subject to adjustment
as follows:
(a) If the Guarantor shall, after the original issue date of such
series of Securities, (i) pay a dividend or make a distribution on its Parent
Common Shares in the form of Parent Common Shares (including, for the avoidance
of doubt, a dividend or distribution that permits the recipient to elect between
cash and Parent Common Shares), (ii) split its outstanding Parent Common Shares
into a greater number of Parent Common Shares or (iii) consolidate its
outstanding Parent Common Shares into a lesser number of Parent Common Shares,
the Conversion Price shall be adjusted (with effect from the Effective Date of
such event) in accordance with the following formula:
A = P x X
-----
Y
where:
"A" shall mean the adjusted Conversion Price;
"P" shall mean the Conversion Price prior to the adjustment;
"X" shall mean the number of Parent Common Shares outstanding
immediately prior to the happening of the relevant event; and
"Y" shall mean the number of Parent Common Shares outstanding
immediately after the happening of the relevant event.
(b) If the Guarantor or any of its Subsidiaries shall, after the
original issue date of such Securities, issue
(i) to all or substantially all holders of Parent Common Shares, any
rights to purchase or subscribe for Parent Common Shares or other
securities which are convertible into or exchangeable for Parent Common
Shares or warrants or other rights to purchase or subscribe for Parent
Common Shares; or
(ii) Parent Common Shares or other securities or rights which are
convertible into or exchangeable for Parent Common Shares or warrants or
other rights to purchase or subscribe for Parent Common Shares (other than
issuances covered by (a) of this Section 11.4);
and the purchase, subscription, conversion, exchange or other issue price per
Parent Common Share (taking into account the consideration, if any, received by
the Guarantor in respect of an issuance covered by clause (ii) above) is below
the Market Price on the date of announcement of such issuance (or in the case of
(ii) above, below 95% of the Market Price on such date), the Conversion Price
shall be adjusted (with effect from the Effective Date of such event) in
accordance with the following formula:
A = P x (S + f)
-------
(S + a)
where:
"A" and "P" shall have the same meanings as in paragraph (a) of this
Section 11.4;
"S" shall mean the number of Parent Common Shares outstanding on the
date of the announcement of such event;
"f" shall mean the number of additional Parent Common Shares which the
aggregate purchase, subscription, conversion, exchange or other price
(taking into account the consideration received by the Guarantor in respect
of an issuance covered by (ii) above) would purchase at the Market Price;
and
"a" shall mean the number of additional Parent Common Shares which are
issued or are initially issuable pursuant to the other securities or rights
that are the subject of the issue.
(c) In case the Guarantor shall issue or distribute, as the case may
be, after the original issue date of such series of Securities, to all or
substantially all holders of Parent Common Shares any securities (other than as
described in paragraph (a) or (b) above) or assets (other than cash dividends or
dividends in kind in accordance with applicable laws) in each case declared and
paid in the ordinary course of the Guarantor's operations (but, for the
avoidance of doubt, including any dividend, or portion thereof, which
constitutes a redemption of Parent Common Share capital as part of a reduction
in nominal value of the Parent Common Shares) or any rights to acquire such
securities or assets, the Conversion Price shall be adjusted (with effect from
the Effective Date of such event) in accordance with the following formula:
A = P x (M - d)
-------
M
where:
"A" and "P" shall have the same meanings as in paragraph (a) of this
Section 11.4;
"M" shall mean the Market Price on the date on which such issue or
distribution, as the case may be, shall be made; and
"d" shall mean the fair market value (as determined by the Executive
Board, which determination shall be conclusive as of the date on which such
issue or distribution, as the case may be, shall be made) of such portion
of securities or assets or rights to acquire any of the foregoing as is
attributable to one Parent Common Share.
(d) If the Guarantor shall issue or distribute, after the original
issue date of such series of Securities, an Extraordinary Dividend, the
Conversion Price shall be adjusted (with effect from the Effective Date of such
event) in accordance with the following formula:
A = P x (M - e)
-------
M
where:
"A", "P" and "M" have the same meaning as in paragraph (c) of this
Section 11.4; and
"e" shall mean the Extraordinary Dividend;
For purpose of this paragraph (d), an Extraordinary Dividend shall
have occurred if, at the Effective Date, the aggregate amount of (x) any
cash dividends (prior to the deduction of any withholding tax plus any
corporate tax attributable to such dividend (a "Cash Dividend")) paid or
declared by the Guarantor on the Parent Common Shares and (y) all other
Cash Dividends paid or declared on the Parent Common Shares in the 365
consecutive day period prior to the Effective Date (such aggregate of (x)
and (y) being the "Total Current Dividend"), equals or exceeds on a per
Parent Common Share basis 5% of the Average Closing Price of the Parent
Common Shares during the Relevant Period. For the avoidance of doubt, all
values are on a per Parent Common Share basis.
(e) If the Guarantor determines (after consultation with the Trustee)
that an adjustment should be made to the Conversion Price, the Guarantor shall,
if the effect of the adjustment is to reduce the Conversion Price, make such
adjustments as it determines is fair and reasonable.
(f) Notwithstanding anything in this Section 11.4 to the contrary, the
Conversion Price may not be reduced so that, on exchange and conversion, Parent
Common Shares would be issued at a discount to their par value. Except in the
case of a consolidation of Parent Common Shares as provided in paragraph (a) of
this Section 11.4, in no event shall the Conversion Price be increased as a
result of any adjustment.
(g) Except as otherwise may be specified for any series of Securities
pursuant to Section 2.6, all calculations under this Section 11.4 shall be made
to the nearest cent or to the nearest one-hundredth of a Parent Common Share, as
the case may be. If any doubt shall arise as to the appropriate adjustment to
the Conversion Price, a certificate of the auditors of the Guarantor at the time
shall be conclusive and binding on all concerned save in the case of manifest
error.
(h) No adjustment in the Conversion Price shall be required unless
such adjustment would require a change of at least 1% in the Conversion Price
then in effect; provided, however, that any adjustments which by reason of this
paragraph are not required to be made and any amount by which the Conversion
Price shall be rounded shall be carried forward and taken into account in any
subsequent adjustment.
(i) No adjustment in the Conversion Price shall be required for a
change in the par value of the Parent Common Shares.
(j) Notwithstanding anything herein to the contrary, no adjustment
will be made to the Conversion Price where Parent Common Shares or other
securities or options, warrants or other rights to subscribe for or purchase
Parent Common Shares or other securities are issued to employees (including
directors holding executive office) of the Guarantor or of any Subsidiary or
associated company of the Guarantor pursuant to any stock option programs or
similar arrangements for employees.
(k) If a conversion date shall fall prior to the Effective Date of an
event requiring adjustment of the Conversion Price in circumstances where the
delivery of Parent Shares in respect of the exercise of the relevant conversion
right falls on or after such Effective Date, the Guarantor shall issue to the
relevant Holder such additional number of Parent Shares to which such Holder
would have been entitled had the relevant conversion date fallen immediately
following such Effective Date.
(l) Whenever the Conversion Price of any series is adjusted, as herein
provided, the Guarantor shall promptly file with the Trustee and with the
Conversion Agent a certificate of the Chief Financial Officer or Treasurer of
the Guarantor setting forth the Conversion Price after such adjustment and
setting forth a brief statement of the facts requiring such adjustment and a
computation thereof. Such certificate shall be conclusive evidence of the
correctness of such adjustment. Neither the Trustee nor any Conversion Agent
shall be under any duty or responsibility with respect to any such certificate
or any facts or computations set forth therein, except to exhibit said
certificate from time to time to any Holder of Securities desiring to inspect
the same. The Trustee, at the expense of the Guarantor, shall cause notice
setting forth the Conversion Price to be mailed, first-class postage prepaid, to
each Holder of Securities of such series at the address of such Holder as it
appears in the Register or in such other manner as shall be specified pursuant
to Section 2.6 for Securities of such series.
SECTION 11.5 No Fractional Parent Shares To Be Issued. No fractional
Parent Conversion Shares shall be issued upon conversions of Securities. If more
than one Security of any series shall be surrendered for conversion at one time
by the same Holder, the number of full Parent Shares which shall be issuable
upon conversion thereof shall be computed on the basis of the aggregate
principal amount of the Securities of such series so surrendered. Instead of a
fraction of a Parent Conversion Share which would otherwise be issuable upon
conversion of any Security or Securities (or specified portions thereof), the
Guarantor shall pay a cash adjustment in respect of such fraction of a Parent
Share in an amount equal to the same fractional interest of the Closing Price of
Parent Common Shares on the Stock Exchange Trading Day next preceding the day of
conversion.
SECTION 11.6 Preservation of Conversion Rights upon Consolidation,
Merger, Sale or Similar Event. In the event that the Guarantor shall be a party
to (i) any consolidation of the Guarantor with, or merger of the Guarantor into,
any other person, any merger of another person into the Guarantor (other than a
consolidation or merger which does not result in a conversion, exchange or
cancellation of outstanding Parent Common Shares of the Guarantor) or (ii) any
sale or transfer of assets of the Guarantor or similar event which, in any such
case will result in a reclassification or change of the Parent Common Shares
(other than a change in the nominal value or by a split or consolidation of
Parent Common Shares), the corporation or person formed by such consolidation or
resulting from such merger or which shall have acquired such assets, as the case
may be, shall execute and deliver to the Trustee a supplemental indenture
providing that the Holder of each Security then Outstanding shall have the right
thereafter to convert such Security into the kind and amount of Parent Common
Shares, other securities, cash and other assets receivable upon such
consolidation, merger, sale or similar event by a holder of the number of Parent
Common Shares into which such Security might have been converted immediately
prior to such consolidation, merger, sale or similar event. In any such event,
the Conversion Price shall be appropriately allocated to such Parent Common
Shares, other securities cash or other assets. Such supplemental indenture shall
provide for adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Article Eleven. Neither the
Trustee nor any Conversion Agent shall be under any responsibility to determine
the correctness of any provision contained in any such supplemental indenture
relating either to the kind or amount of shares or other securities or property
receivable by Holders of Securities upon the conversion of their Securities
after any such consolidation, merger, sale or transfer, or to any adjustment to
be made with respect thereto and, subject to the provisions of Section 5.1, may
accept the signing of such supplemental indenture by such corporation or person
as conclusive evidence of the correctness of any such provisions. The above
provisions of this Section 11.6 shall similarly apply to any successive
consolidation, merger, sale or similar event.
SECTION 11.7 Notice to Holders of Securities Prior to Taking Certain
Types of Action.
In case:
(a) the Guarantor shall authorize the distribution to all or
substantially all holders of Parent Common Shares of assets (other than
cash dividends or other distributions paid out of funds legally available
therefor and the dividends payable in shares for which adjustment is made
pursuant to Section 11.4); or
(b) the Guarantor shall authorize the granting to all holders of its
Parent Common Shares of rights or securities to subscribe for or purchase
any shares of its capital of any class; or
(c) of any consolidation or merger to which the Guarantor is a party
and for which approval of any shareholders of the Guarantor is required, or
of the sale or conveyance of all or substantially all of the Guarantor's
assets or property to another company; or
(d) of the voluntary or involuntary liquidation, dissolution or
winding up of the Guarantor;
then the Guarantor shall cause to be filed with the Trustee and the Conversion
Agent, at least 15 days prior to the applicable record date hereinafter
specified, a notice stating (i) the date as of which the holders of Parent
Common Shares shall be entitled to receive such distribution, rights or
securities, or (ii) the date on which such consolidation, merger, sale,
conveyance, dissolution, liquidation or winding up is expected to become
effective, and the date as of which it is expected that holders of Parent Common
Shares shall be entitled to exchange their Parent Common Shares for securities,
cash or other assets deliverable upon such consolidation, merger, sale, similar
event, dissolution, liquidation or winding-up. The failure to give the notice
required by this Section 11.7 or any defect therein shall not affect the
legality or validity of the proceedings described in paragraphs (a), (b), (c) or
(d) of this Section 11.7. Such notice, at the expense of the Guarantor, shall be
mailed by the Trustee, first-class postage prepaid, to each Holder of Securities
that are convertible into Parent Common Shares of the Guarantor at the address
of such Holder as it appears in the Register.
SECTION 11.8 Covenant to Reserve Parent Common Shares for Issuance on
Conversion of Securities. The Guarantor covenants that it will at all times
reserve and keep available, in the case of Securities of any series that are
convertible into Parent Common Shares, out of the aggregate of its authorized
but unissued Parent Common Shares and its issued Parent Common Shares held in
its treasury, free from pre-emptive rights, solely for the purpose of issue upon
conversion of Securities as herein provided, such number of Parent Common Shares
as shall then be issuable upon the conversion of all Outstanding Securities of
such series. For the purpose of this Section, the full number of Parent Common
Shares issuable upon the conversion of all Outstanding Securities of such series
shall be computed as if at the time of such computation all Outstanding
Securities of such series were held by a single Holder. The Guarantor shall from
time to time, in accordance with the laws of The Netherlands, increase the
authorized amount of its Parent Common Shares if at any time the aggregate of
the authorized amount of its Parent Common Shares remaining unissued and its
issued shares of Parent Common Shares held in its treasury (other than any such
shares reserved for issuance in any other connection) shall not be sufficient to
permit the conversion of all Securities of such series at the time outstanding.
The Guarantor covenants that all Parent Common Shares which shall be so issuable
shall, when issued, be duly and validly issued common shares of its authorized
share capital, and shall be fully paid and nonassessable, free of all liens and
charges and not subject to preemptive rights and that, upon conversion, the
appropriate capital accounts of the Guarantor will be duly credited.
SECTION 11.9 Compliance with Governmental Requirements. The Guarantor
covenants that if any Parent Common Shares required to be reserved for purposes
of conversion of Securities hereunder require registration with or approval of
any governmental authority under any Dutch law or United States Federal or state
law, or any Dutch or United States national securities exchange, before such
Parent Common Shares may be issued upon conversion, the Guarantor will use its
best efforts to cause such shares to be duly registered or approved, as the case
may be.
SECTION 11.10 Payment of Taxes upon Certificates for Parent Common
Shares Issued upon Conversion. The issuance of Parent Shares upon the conversion
of Securities shall be made without charge to the converting Holders for any tax
in respect of such issuance, and in the case of Holders who elect to receive
Parent Common Shares, such Parent Common Shares shall be issued in bearer form
and in the case of Holders who elect to receive Parent ADSs, the Parent ADR
evidencing such Parent ADSs shall be issued in the respective names of or in
such names as may be directed by such Holders; provided, however, that neither
the Issuer nor the Guarantor shall be required to pay any tax which may be
payable in respect of any transfer involved in the issuance and delivery of any
Parent ADR in a name other than that of the Holder of the Security converted,
and none of the Issuer, the Conversion Agent, the Guarantor or the Parent Common
Share Depositary shall be required to issue or deliver such Parent ADR unless or
until the person or persons requesting the issuance thereof shall have paid to
the Issuer or the Guarantor, as the case may be, the amount of such tax or shall
have established to the satisfaction of the Issuer or the Guarantor, as the case
may be, that such tax has been paid.
SECTION 11.11 Trustee's Duties with Respect to Conversion Provisions.
The Trustee, subject to the provisions of Section 5.1, and any Conversion Agent
shall not at any time be under any duty or responsibility to any Holder to
determine whether any facts exist which may require any adjustment of the
conversion rate, or with respect to the nature or extent of any such adjustment
when made, or with respect to the method employed, or herein or in any
supplemental indenture provided to be employed, in making the same. Neither the
Trustee nor any Conversion Agent shall be accountable with respect to the
registration under securities laws, listing, validity or value (or the kind or
amount) of any Parent Conversion Shares, or of any other securities or property,
which may at any time be issued or delivered upon the conversion of any
Security; and neither the Trustee nor any Conversion Agent makes any
representation with respect thereto. Neither the Trustee nor any Conversion
Agent shall be responsible for any failure of the Issuer or the Guarantor to
make any cash payment or to issue, transfer or deliver any shares or share
certificates or other securities or property upon the surrender of any Security
for the purpose of conversion; and the Trustee, subject to the provisions of
Section 5.1, and any Conversion Agent shall not be responsible for any failure
of the Issuer or the Guarantor to comply with any of the covenants of the Issuer
or the Guarantor contained in this Article Eleven. Each Conversion Agent (other
than the Issuer, the Guarantor or any affiliate thereof) shall have the same
protection under this Article Eleven as the Trustee.
ARTICLE TWELVE
GUARANTY OF SECURITIES
SECTION 12.1 Guaranty (a) The Guarantor hereby irrevocably and
unconditionally guarantees as hereinafter provided to each Holder of a Security
of any series authenticated and delivered by the Trustee, and to the Trustee,
the due and punctual payment of the principal of, premium, if any, and interest,
if any, on such Security, when and as the same shall become due and payable,
subject to any applicable grace period, whether on the date of maturity, by
acceleration or upon redemption pursuant to Article Ten or otherwise, according
to the terms of such Security and this Indenture. In addition, the Guarantor
irrevocably and unconditionally guarantees to the Holder of any Security of any
series authenticated and delivered by the Trustee that is convertible into
Parent Shares, and to the Trustee, the conversion of such Security in accordance
with the terms of Article Eleven when such Security is presented for conversion
in accordance with Article Eleven.
(b) All payments by the Guarantor under the Guaranty with respect to
any Security of any series, including, without limitation, payments of
principal, interest, if any, and premium, if any, shall be made by the Guarantor
without withholding or deduction for or on account of any present or future
taxes, duties, levies, or other governmental charges of whatever nature in
effect on the date of the Indenture or imposed or established in the future by
or on behalf of The Netherlands or any authority in The Netherlands ("Taxes").
In the event any such Taxes are so imposed or established, the Guarantor shall
pay such additional amounts ("Additional Amounts") as may be necessary in order
that the net amounts receivable by each Holder after any payment, withholding or
deduction in respect of such Taxes shall equal the respective amounts of
principal, interest, if any, and premium, if any, which would have been
receivable in respect of the Securities of any series in the absence of such
payment, withholding or deduction; except that no such Additional Amounts will
be payable with respect to any payment under the Guaranty to, or to a third
party on behalf of, a Holder for or on account of any such Taxes whatever that
have been imposed by reason of (i) the Holder being a resident or deemed a
resident of The Netherlands or having some connection with The Netherlands
(including, but not limited to, a Holder carrying on business in The Netherlands
through a permanent establishment or permanent representative in The
Netherlands) other than the mere holding of such Security or the receipt of
principal, interest, if any, or premium, if any, in respect thereof; (ii) the
presentation by the Holder of a Security on which the Guaranty is endorsed for
payment on a date more than thirty (30) days after the date on which such
payment became due and payable or the date on which payment thereof is duly
provided for and notice thereof is given to the Holders by the Guarantor in
accordance with Section 12.4, whichever occurs later (except to the extent that
a Holder would have been entitled to Additional Amounts on presenting the same
for payment on the last day of such period of thirty (30) days); (iii) any
estate, inheritance, gift, sales, transfer or personal property tax or any
similar tax, assessment or governmental charge; (iv) any tax, assessment or
other governmental charge which is payable otherwise than by withholding from
payments on or in respect of a Security of any series; or (v) any combination of
items (i), (ii), (iii) or (iv). Furthermore, no Additional Amounts shall be paid
with respect to any payment on a Security of any series to a Holder that is a
fiduciary or partnership or other than the sole beneficial owner of such payment
to the extent that a beneficiary or settlor with respect to such fiduciary or a
member of such partnership or beneficial owner would not have been entitled to
receive the Additional Amounts had such beneficiary, settlor, member or
beneficial owner been the Holder.
Whenever in this Indenture or the Securities there is a reference, in
any context, to any payment under the Guaranty such payment shall be deemed to
include the payment of Additional Amounts provided for in this Section to the
extent that, in such context, Additional Amounts are, were or would be payable
in respect of such payment pursuant to the provisions of such Section and
express mention of the payment of Additional Amounts (if applicable) in any
provision hereof shall not be construed as excluding Additional Amounts in those
provisions hereof where such express mention is not made.
(c) The Guarantor hereby agrees that its obligations hereunder shall
be as principal obligor and not merely as surety, and shall be unconditional,
irrevocable and absolute, irrespective of the validity, regularity or
enforceability of the Securities of any series or this Indenture, the absence of
any action to enforce the same, any waiver or consent by any Holder of the
Securities of any series with respect to any provisions hereof or thereof, the
recovery of any judgment against the Issuer, any action to enforce the same or
any other circumstance which might otherwise constitute a legal or equitable
discharge or defense of a guarantor.
(d) The Guarantor hereby waives diligence, presentment, demand of
payment, filing of claims with a court in the event of insolvency or bankruptcy
of the Issuer, any right to require a proceeding first against the Issuer,
protest, notice with respect to the Security on which this Guaranty is endorsed
or the indebtedness evidenced thereby, and all demands whatsoever and covenants
that the Guaranty not be discharged except by complete performance of the
obligations of the Guarantor contained in the Securities and this Indenture. If
any Securityholder or the Trustee is required by any court or otherwise to
return to the Issuer, the Guarantor, any Custodian or other similar official
acting in relation to the Issuer or the Guarantor, any amount paid by the Issuer
or the Guarantor to the Trustee or such Securityholder, the Guaranty to the
extent theretofore discharged, shall be reinstated in full force and effect.
(e) The Guarantor agrees to pay any and all costs and expenses
(including reasonable attorneys' fees and expenses) incurred by the Trustee or
any Holders in enforcing any rights under the Guaranty.
(f) The Guarantor hereby waives, in favor of the Holders and the
Trustee, any and all of its rights, protections, privileges and defenses
provided by any applicable law to a guarantor and waives any right of set-off
which the Guarantor may have against the Holder of a Security in respect of any
amounts which are or may become payable by the Holder of a Security to the
Issuer.
SECTION 12.2 Representation and Warranty. The Guarantor hereby
represents and warrants that all acts, conditions and things required to be done
and performed and to have happened precedent to the creation and issuance of the
Guaranty and the Indemnity, and to constitute the same legal, valid and binding
obligations of the Guarantor enforceable in accordance with their respective
terms, have been done and performed and have happened in compliance with all
applicable laws.
SECTION 12.3 Subrogation. The Guarantor will be subrogated to all
rights of Holders of Securities of any series on which the Guaranty is endorsed
against the Issuer in respect of any amount paid by the Guarantor pursuant to
the Guaranty with respect to Securities of such series; provided, however, that
the Guarantor shall not, without the consent of the Holders of all of the
Securities of such series, be entitled to enforce, or to receive any payments
arising out of or based upon, such right of subrogation until the principal of
and premium, if any, and interest, if any, on all of the Securities of such
series shall be paid in full or payment thereof shall have been provided for in
accordance with this Indenture.
ARTICLE THIRTEEN
MISCELLANEOUS PROVISIONS
SECTION 13.1 Incorporators, Shareholders, Officers, Directors, Members
of the Executive Board and Supervisory Board Exempt from Individual Liability.
No recourse under or upon any obligation, covenant or agreement contained in
this Indenture, or in any Security, or because of any indebtedness evidenced
thereby, shall be had against any incorporator, as such or against any past,
present or future shareholder, officer or director of the Issuer, shareholder,
officer, member or deputy member of the Executive Board, or member or deputy
member of the supervisory board of the Guarantor, as such, or of any successor,
either directly or through the Issuer, the Guarantor or any successor, under any
rule of law, statute or constitutional provision or by the enforcement of any
assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance of the
Securities by the Holders thereof and as part of the consideration for the issue
of the Securities.
SECTION 13.2 Provisions of Indenture for the Sole Benefit of Parties
and Securityholders. Nothing in this Indenture or in the Securities, expressed
or implied, shall give or be construed to give to any person, other than the
parties hereto and their successors and assigns and the Holders of the
Securities, any legal or equitable right, remedy or claim under this Indenture
or under any covenant, condition or provision herein contained, all such
covenants and provisions being for the sole benefit of the parties hereto and
their successors and of the Holders of the Securities.
SECTION 13.3 Successors and Assigns of Issuer and Guarantor Bound by
Indenture. All the covenants, stipulations, promises and agreements in this
Indenture contained by the Issuer and the Guarantor shall bind each of their
successors and assigns, whether or not so expressed.
SECTION 13.4 Notices and Demands on Issuer, Guarantor, Trustee and
Securityholders. Any notice or demand which by any provision of this Indenture
is required or permitted to be given or served by the Trustee or by the Holders
of Securities to or on the Issuer may be given or served by being deposited
postage prepaid, first-class mail, in a post office letter box (except as
otherwise specifically provided herein) addressed (until another address of the
Issuer is furnished by the Issuer to the Trustee) to Ahold Finance U.S.A., Inc.,
One Atlanta Plaza, 950 East Paces Ferry Road, Suite 2575, Atlanta, Georgia
30326, U.S.A., Attention: Chief Financial Officer. Any notice or demand which by
any provision of this Indenture is required or permitted to be given or served
by the Trustee or by the Holders of Securities to or on the Guarantor may be
given or served by being deposited postage prepaid, first-class mail, in a post
office letter box (except as otherwise specifically provided herein) addressed
(until another address of the Guarantor is furnished by the Guarantor to the
Trustee) to, Albert Heijnweg 1, 1507 EH Zaandam, The Netherlands, Attention:
Treasurer. Any notice, direction, request or demand by the Issuer, the Guarantor
or any Securityholder to or upon the Trustee shall be deemed to have been
sufficiently given or made, for all purposes, if given or made in writing at its
Corporate Trust Office.
Where this Indenture provides for notice to Securityholders, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Securityholder
entitled thereto, at his last address as it appears in the Register. In any case
where notice to Securityholders is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed, to any particular
Securityholder shall affect the sufficiency of such notice with respect to other
Securityholders. Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Securityholders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver. Notwithstanding anything to the
contrary elsewhere in this Indenture as to the giving of notice, any other form
of written notice is sufficient, if received.
In case, by reason of the suspension of or irregularities in regular
mail service, it shall be impracticable to mail notice to the Issuer, the
Guarantor or Securityholders when such notice is required to be given pursuant
to any provision of this Indenture, then notwithstanding anything to the
contrary elsewhere in this Indenture as to the giving of notice, any manner of
giving such notice as shall be satisfactory to the Trustee shall be deemed to be
a sufficient giving of such notice.
SECTION 13.5 Officers' Certificates and Opinions of Counsel;
Statements to Be Contained Therein. Upon any application or demand by the Issuer
or the Guarantor to the Trustee to take any action under any of the provisions
of this Indenture, the Issuer or the Guarantor, as the case may be, shall
furnish to the Trustee an Officers' Certificate stating that all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent have been complied with,
except that in the case of any such application or demand as to which the
furnishing of such documents is specifically required by any provision of this
Indenture relating to such particular application or demand, no additional
certificate or opinion need be furnished.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture shall include (a) a statement that the person
making such certificate or opinion has read such covenant or condition, (b) a
brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion
are based, (c) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with and (d) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the Issuer or
the Guarantor may be based, insofar as it relates to legal matters, upon a
certificate or opinion of or representations by counsel, unless such officer
knows that the certificate or opinion or representations with respect to the
matters upon which his certificate, statement or opinion may be based as
aforesaid are erroneous. Any certificate, statement or opinion of counsel may be
based, insofar as it relates to factual matters or information which is in the
possession of the Issuer or the Guarantor, upon the certificate, statement or
opinion of or representations by an officer or officers of the Issuer or the
Guarantor, unless such counsel knows that the certificate, statement or opinion
or representations with respect to the matters upon which his certificate,
statement or opinion may be based as aforesaid are erroneous.
Any certificate, statement or opinion of an officer of the Issuer or
the Guarantor or of counsel may be based, insofar as it relates to accounting
matters, upon a certificate or opinion of or representations by an accountant or
firm of accountants in the employ of the Issuer or the Guarantor, unless such
officer or counsel, as the case may be, knows that the certificate or opinion or
representations with respect to the accounting matters upon which his
certificate, statement or opinion may be based as aforesaid are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with the Trustee shall contain a statement that such firm is
independent.
SECTION 13.6 Official Acts by Successor Entity. Any act or proceeding
by any provision of this Indenture authorized or required to be done or
performed by any board, committee or officer of the Issuer or the Guarantor
shall and may be done and performed with like force and effect by the like
board, committee or officer of any entity that shall at the time be the lawful
sole successor of the Issuer or the Guarantor, as the case may be.
SECTION 13.7 Payments Due on Saturdays, Sundays and Legal Holidays.
Except as may be provided pursuant to Section 2.6 with respect to any series or
tranche, if the date of maturity of interest on or principal of the Securities
of any series or the date fixed for redemption or repayment of any such Security
shall not be a Business Day, then payment of such interest, if any, or principal
need not be made on such date, but may be made on the next succeeding Business
Day with the same force and effect as if made on the date of maturity or the
date fixed for redemption or repayment, and no interest shall accrue for the
period from and after such date.
SECTION 13.8 NEW YORK LAW TO GOVERN. THIS INDENTURE, INCLUDING THE
GUARANTY, AND EACH SECURITY AND THE ENDORSEMENT OF THE GUARANTY THEREON SHALL BE
DEEMED TO BE A CONTRACT UNDER THE LAWS OF THE STATE OF NEW YORK, AND FOR ALL
PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF SUCH STATE.
SECTION 13.9 Counterparts. This Indenture may be executed in any
number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
SECTION 13.10 Effect of Headings. The Article and Section headings
herein and the Table of Contents are for convenience of reference only, are not
to be considered a part hereof and shall not affect the construction hereof.
SECTION 13.11 Conflict with Trust Indenture Act. If any provision
hereof limits, qualifies or conflicts with a provision of the Trust Indenture
Act of 1939 that is required under such Act to be a part of and govern this
Indenture, the latter provisions shall control. If any provision of this
Indenture modifies or excludes any provision of the Trust Indenture Act of 1939
that may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or to be excluded, as the case may be.
SECTION 13.12 Submission to Jurisdiction. Each of the Issuer and the
Guarantor (a) agrees that any legal suit, action or proceeding arising out of or
based upon this Indenture, the Securities or the Guaranty may be instituted in
any state or U.S. federal court in the State and County of New York, the Borough
of Manhattan, United States of America, (b) waives, to the extent it may
effectively do so, any objection which it may have now or hereafter to the
laying of the venue of any such suit, action or proceeding, and (c) irrevocably
submits to the jurisdiction of any such court in any such suit, action or
proceeding. The Guarantor hereby designates Ahold U.S.A., Inc. as its authorized
agent to accept and acknowledge on its behalf service of any and all process
which may be served in any such suit, action or proceeding in any such court and
agrees that service of process upon said agent at its office at One Atlanta
Plaza, 950 East Paces Ferry Road, Suite 2575, Atlanta, Georgia 30326, U.S.A.,
Attention: Chief Executive Officer and written notice of said service to the
Guarantor, mailed or delivered to it at Albert Heijnweg 1, 1507 EH Zaandam, The
Netherlands, Attention: Treasurer, shall be deemed in every respect effective
service of process upon the Guarantor in any such suit, action or proceeding and
shall be taken and held to be valid personal service upon the Guarantor whether
or not the Guarantor shall then be doing, or at any time shall have done,
business within the State of New York, and that any such service of process
shall be of the same force and validity as if service were made upon it
according to the laws governing the validity and requirements of such service in
such State, and waives all claim of error by reason of any such service. Neither
such appointment nor such acceptance of jurisdiction shall be interpreted to
include actions brought under the United States federal securities laws. Said
designation and appointment shall be irrevocable until the earlier of the date
on which no Securities remain Outstanding or the date that this Indenture shall
have been satisfied and discharged in accordance with Article Nine.
SECTION 13.13 Severability. In case any provision in this Indenture or
in the Securities or the Guaranty shall be invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, all as of April 29, 1999.
AHOLD FINANCE U.S.A., INC.
By /s/ E.J. Smith
-------------------------
Name: Ernie Smith
Title: Vice President
Attest:
By /s/ Brian Fields
--------------------------
Name: Brian Fields
Title: Vice President
KONINKLIJKE AHOLD N.V.
By /s/ A.M. Meurs
-------------------------
Name: A.M. Meurs
Title: Executive Vice
President and CFO
THE CHASE MANHATTAN BANK,
as Trustee
By /s/ Janet Robinson
-------------------------
Name: Janet Robinson
Title: Second Vice
President
Attest:
By /s/ Ian W. Sterling
--------------------------
Name: Ian W. Sterling
Title: Associate
AHOLD FINANCE U.S.A., INC., as Issuer
KONINKLIJKE AHOLD N.V., as Guarantor,
AND
THE BANK OF NEW YORK, as Trustee
SUBORDINATED DEBT INDENTURE
Dated as of [ ]
------------
GUARANTEED SUBORDINATED DEBT SECURITIES
<PAGE>
AHOLD FINANCE U.S.A., INC.
KONINKLIJKE AHOLD N.V.
AND
THE BANK OF NEW YORK,
TRUSTEE
SUBORDINATED INDENTURE
Dated as of [___________],
------------
The following table shows the location in this Indenture of provisions
inserted pursuant to sections 310 through 318(a) inclusive of the Trust
Indenture Act of 1939, as amended.
TIA Section Indenture Section
- ----------- -----------------
310 (a) (1) 5.7
(a) (2) 5.7
(b) 5.7, 5.8
313 (a) 5.11
(b) 5.11
(c) 5.11
314 (a) 3.8, 3.9(b)
(c) (1) 13.5
(c) (2) 13.5
(c) (3) 13.5
(e) 13.5
315 (a) (2) 5.1, 5.6
317 (a) 4.2
(b) 3.3(a)
318 (a) 13.11
__________________
Note: This table shall not, for any purpose, be deemed to be a part of this
Indenture.
<PAGE>
TABLE OF CONTENTS
<TABLE>
Page
----
<S> <C>
ARTICLE ONE DEFINITIONS...........................................................................................1
SECTION 1.1 Certain Terms Defined.........................................................................1
ARTICLE TWO SECURITIES...........................................................................................10
SECTION 2.1 Forms Generally..............................................................................10
SECTION 2.2 Form of Face of Security.....................................................................10
SECTION 2.3 Form of Reverse of Security..................................................................13
SECTION 2.4 Form of Notation on Security Relating to Guaranty............................................19
SECTION 2.5 Form of Trustees Certificate of Authentication...............................................21
SECTION 2.6 Amount Unlimited; Issuable in Series; Ranking................................................21
SECTION 2.7 Authentication and Delivery of Securities....................................................24
SECTION 2.8 Execution of Securities......................................................................26
SECTION 2.9 Certificate of Authentication................................................................26
SECTION 2.10 Execution and Delivery of Guaranty..........................................................26
SECTION 2.11 Denomination and Date of Securities; Payments of Interest...................................26
SECTION 2.12 Registration, Transfer and Exchange.........................................................27
SECTION 2.13 Mutilated, Defaced, Destroyed, Lost and Stolen Securities...................................30
SECTION 2.14 Cancellation of Securities Paid, etc........................................................31
SECTION 2.15 Assumption by Guarantor.....................................................................31
SECTION 2.16 Temporary Securities........................................................................31
SECTION 2.17 CUSIP Numbers...............................................................................32
SECTION 2.18 Form of Election to Convert.................................................................32
ARTICLE THREE COVENANTS OF THE ISSUER AND THE GUARANTOR..........................................................34
SECTION 3.1 Payment of Principal and Interest............................................................34
SECTION 3.2 Offices for Payments, etc....................................................................34
SECTION 3.3 Paying Agents................................................................................34
SECTION 3.4 Limitation on Liens..........................................................................35
SECTION 3.5 Notice of Default............................................................................36
SECTION 3.6 Calculation of Original Issue Discount.......................................................36
SECTION 3.7 Reports......................................................................................36
SECTION 3.8 Compliance Certificates......................................................................36
ARTICLE FOUR REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT.....................................37
SECTION 4.1 Events of Default............................................................................37
SECTION 4.2 Payment of Securities on Default; Suit Therefor..............................................40
SECTION 4.3 Application of Moneys Collected by Trustee...................................................42
SECTION 4.4 Proceedings by Trustee.......................................................................43
SECTION 4.5 Restoration of Rights on Abandonment of Proceedings..........................................43
SECTION 4.6 Proceedings by Securityholders...............................................................44
SECTION 4.7 Remedies Cumulative and Continuing...........................................................44
SECTION 4.8 Control by Securityholders...................................................................44
SECTION 4.9 Waiver of Past Defaults......................................................................45
ARTICLE FIVE CONCERNING THE TRUSTEE..............................................................................45
SECTION 5.1 Reliance on Documents, Opinions, etc.; No Requirement for Expenditure of Own Funds...........45
SECTION 5.2 No Responsibility for Recitals, etc..........................................................47
SECTION 5.3 Trustee and Agents May Hold Securities.......................................................47
SECTION 5.4 Moneys to Be Held in Trust...................................................................47
SECTION 5.5 Compensation and Expenses of Trustee.........................................................47
SECTION 5.6 Right of Trustee to Rely on Officers Certificate, etc........................................48
SECTION 5.7 Eligibility of Trustee.......................................................................48
SECTION 5.8 Resignation or Removal of Trustee; Appointment of Successor Trustee..........................48
SECTION 5.9 Acceptance of Appointment by Successor Trustee...............................................50
SECTION 5.10 Merger, Conversion, Consolidation or Succession to Business of Trustee......................51
SECTION 5.11 Reports by Trustee to Securityholders.......................................................51
SECTION 5.12 Trustees Application for Instructions from the Issuer.......................................51
ARTICLE SIX CONCERNING THE SECURITYHOLDERS.......................................................................52
SECTION 6.1 Action by Securityholders....................................................................52
SECTION 6.2 Proof of Execution by Securityholders........................................................53
SECTION 6.3 Holders to Be Treated as Owners..............................................................53
SECTION 6.4 Securities Owned by Issuer Deemed Not Outstanding............................................53
SECTION 6.5 Right of Revocation of Action Taken..........................................................54
SECTION 6.6 Securityholders Meetings; Purposes...........................................................54
SECTION 6.7 Call of Meetings by Trustee..................................................................55
SECTION 6.8 Call of Meetings by Issuer, Guarantor or Securityholders.....................................55
SECTION 6.9 Qualifications for Voting....................................................................55
SECTION 6.10 Quorum; Adjourned Meetings..................................................................56
SECTION 6.11 Regulations.................................................................................56
SECTION 6.12 Voting......................................................................................57
SECTION 6.13 No Delay of Rights by Meeting...............................................................57
SECTION 6.14 Written Consent in Lieu of Meeting..........................................................57
ARTICLE SEVEN SUPPLEMENTAL INDENTURES............................................................................58
SECTION 7.1 Supplemental Indentures Without Consent of Securityholders...................................58
SECTION 7.2 Supplemental Indentures With Consent of Securityholders......................................59
SECTION 7.3 Effect of Supplemental Indenture.............................................................60
SECTION 7.4 Certain Documents to Be Given to Trustee.....................................................61
SECTION 7.5 Notation on Securities.......................................................................61
ARTICLE EIGHT CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE..................................................61
SECTION 8.1 Issuer and Guarantor May Consolidate, etc., on Certain Terms.................................61
SECTION 8.2 Successor Entity to Be Substituted...........................................................62
SECTION 8.3 Opinion of Counsel and Officers Certificate to Be Given to Trustee...........................63
ARTICLE NINE SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS...........................................63
SECTION 9.1 Satisfaction and Discharge of Indenture......................................................63
SECTION 9.2 Funds Deposited with Trustee for Payment of Securities.......................................64
SECTION 9.3 Repayment of Moneys Held by Paying Agent.....................................................64
SECTION 9.4 Return of Moneys Held by Trustee and Paying Agent Unclaimed for Two Years....................64
SECTION 9.5 Option to Effect Defeasance or Covenant Defeasance...........................................65
SECTION 9.6 Defeasance and Discharge.....................................................................65
SECTION 9.7 Covenant Defeasance..........................................................................65
SECTION 9.8 Conditions to Defeasance or Covenant Defeasance..............................................66
SECTION 9.9 Deposited Money and U.S. Government Obligations to Be Held in Trust; Other
Miscellaneous Provisions.....................................................................67
ARTICLE TEN REDEMPTION OF SECURITIES AND SINKING FUNDS...........................................................68
SECTION 10.1 Applicability of Article....................................................................68
SECTION 10.2 Notice of Redemption; Selection of Securities...............................................68
SECTION 10.3 Payment of Securities Called for Redemption.................................................69
SECTION 10.4 Conversion Arrangement on Call for Redemption...............................................70
SECTION 10.5 Exclusion of Certain Securities from Eligibility for Selection for Redemption...............71
SECTION 10.6 Mandatory and Optional Sinking Funds........................................................71
SECTION 10.7 Redemption for Tax Reasons..................................................................74
ARTICLE ELEVEN CONVERSION OF SECURITIES..........................................................................74
SECTION 11.1 Conversion of Securities....................................................................74
SECTION 11.2 Issuance of Parent Shares on Conversion.....................................................75
SECTION 11.3 No Adjustment for Interest or Dividends.....................................................76
SECTION 11.4 Adjustment of Conversion Price..............................................................77
SECTION 11.5 No Fractional Parent Shares To Be Issued....................................................80
SECTION 11.6 Preservation of Conversion Rights upon Consolidation, Merger, Sale or Similar Event.........81
SECTION 11.7 Notice to Holders of Securities Prior to Taking Certain Types of Action.....................81
SECTION 11.8 Covenant to Reserve Parent Common Shares for Issuance on Conversion of Securities...........82
SECTION 11.9 Compliance with Governmental Requirements...................................................82
SECTION 11.10 Payment of Taxes upon Certificates for Parent Common Shares Issued upon Conversion.........83
SECTION 11.11 Trustees Duties with Respect to Conversion Provisions......................................83
ARTICLE TWELVE SUBORDINATION OF SECURITIES.......................................................................83
SECTION 12.1 Securities Subordinate to Issuer Senior Indebtedness........................................83
SECTION 12.2 Payment Over of Proceeds Upon Dissolution, etc..............................................84
SECTION 12.3 Payment Permitted if No Dissolution, Bankruptcy or .........................................85
SECTION 12.4 Subrogation to Rights of Holders of Issuer Senior Indebtedness..............................85
SECTION 12.5 Provisions Solely to Define Relative Rights.................................................85
SECTION 12.6 Trustee to Effectuate Subordination.........................................................86
SECTION 12.7 No Waiver of Subordination Provisions.......................................................86
SECTION 12.8 Notice to Trustee...........................................................................86
SECTION 12.9 Reliance on Judicial Order or Certificate of Liquidating Agent..............................87
SECTION 12.10 Rights of Trustee as a Holder of Issuer Senior Indebtedness; Preservation
of Trustees Rights.........................................................................87
SECTION 12.11 Article Applicable to Paying Agents........................................................87
SECTION 12.12 Not to Prevent Events of Default...........................................................88
SECTION 12.13 Securities Senior to Issuer Subordinated Indebtedness......................................88
SECTION 12.14 Certain Issuances Deemed Payment...........................................................88
SECTION 12.15 Trustee Not Fiduciary for Holders of Issuer Senior Indebtedness............................88
ARTICLE THIRTEEN GUARANTY OF SECURITIES..........................................................................88
SECTION 13.1 Guaranty....................................................................................88
SECTION 13.2 Representation and Warranty.................................................................90
SECTION 13.3 Subrogation.................................................................................90
SECTION 13.4 Guaranty Subordinate to Guarantor Senior Indebtedness.......................................91
SECTION 13.5 Payment Over of Proceeds Upon Dissolution, etc..............................................91
SECTION 13.6 Payment Permitted if No Dissolution, Bankruptcy or Moratorium...............................92
SECTION 13.7 Subrogation to Rights of Holders of Guarantor Senior Indebtedness...........................92
SECTION 13.8 Provisions Solely to Define Relative Rights.................................................92
SECTION 13.9 Trustee to Effectuate Subordination.........................................................93
SECTION 13.10 No Waiver of Subordination Provisions......................................................93
SECTION 13.11 Notice to Trustee..........................................................................93
SECTION 13.12 Reliance on Judicial Order or Certificate of Liquidating Agent.............................94
SECTION 13.13 Rights of Trustee as a Holder of Guarantor Senior Indebtedness; Preservation
of Trustees Rights.........................................................................94
SECTION 13.14 Not to Prevent Events of Default...........................................................95
SECTION 13.15 Securities Senior to Guarantor Subordinated Indebtedness...................................95
SECTION 13.16 Certain Conversions Deemed Payment.........................................................95
SECTION 13.17 Trustee Not Fiduciary for Holders of Guarantor Senior Indebtedness.........................95
ARTICLE FOURTEEN MISCELLANEOUS PROVISIONS........................................................................96
SECTION 14.1 Incorporators, Shareholders, Officers, Directors, Members of the Executive Board
and Supervisory Board Exempt from Individual Liability......................................96
SECTION 14.2 Provisions of Indenture for the Sole Benefit of Parties and Securityholders.................96
SECTION 14.3 Successors and Assigns of Issuer and Guarantor Bound by Indenture...........................96
SECTION 14.4 Notices and Demands on Issuer, Guarantor, Trustee and Securityholders.......................96
SECTION 14.5 Officers Certificates and Opinions of Counsel; Statements to Be Contained Therein...........97
SECTION 14.6 Official Acts by Successor Entity...........................................................98
SECTION 14.7 Payments Due on Saturdays, Sundays and Legal Holidays.......................................98
SECTION 14.8 NEW YORK LAW TO GOVERN......................................................................98
SECTION 14.9 Counterparts................................................................................98
SECTION 14.10 Effect of Headings.........................................................................99
SECTION 14.11 Conflict with Trust Indenture Act..........................................................99
SECTION 14.12 Submission to Jurisdiction.................................................................99
SECTION 14.13 Severability...............................................................................99
</TABLE>
<PAGE>
THIS SUBORDINATED DEBT INDENTURE, dated as of _____________, among
AHOLD FINANCE U.S.A., INC., a Delaware company (the "Issuer"), KONINKLIJKE AHOLD
N.V., a company organized under the laws of The Netherlands with its corporate
seat in Zaandam (municipality Zaanstad), The Netherlands (the "Guarantor"), and
The Bank of New York, a New York banking corporation (the "Trustee").
W I T N E S S E T H :
WHEREAS, the Issuer has duly authorized the execution and delivery of
this Indenture for the issuance from time to time of its unsecured bonds,
debentures, notes and other evidences of indebtedness to be issued in one or
more series (the "Securities") up to such principal amount or amounts and
denominated in United States dollars or foreign currency or units or composites
of two or more thereof as may from time to time be authorized in accordance with
the terms of this Indenture, which Securities shall be subordinated in right of
payment to all Issuer Senior Indebtedness of the Issuer, pursuant to Article
Twelve hereof, and to provide, among other things, for the authentication,
delivery and administration thereof, the Issuer has duly authorized the
execution and delivery of this Indenture;
WHEREAS, the Guarantor has duly authorized the execution and delivery
of this Indenture and deems it appropriate from time to time to issue its
guaranty on a subordinated basis of the Securities on the terms herein provided;
and
WHEREAS, all things necessary to make this Indenture, when executed
and delivered by the parties hereto, a valid indenture and agreement according
to its terms, have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities
by the Holders thereof, the Issuer, the Guarantor and the Trustee mutually
covenant and agree for the equal and proportionate benefit of the respective
Holders from time to time of the Securities as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.1 Certain Terms Defined. The following terms (except as
herein otherwise expressly provided or unless the context otherwise clearly
requires) for all purposes of this Indenture and of any indenture supplemental
hereto shall have the respective meanings specified in this Section. All other
terms used in this Indenture that are defined in the Trust Indenture Act of
1939, as amended to the date of this Indenture as originally executed, or the
definitions of which in the Securities Act of 1933, as amended to the date of
this Indenture as originally executed, are referred to in the Trust Indenture
Act of 1939 (except as herein otherwise expressly provided or unless the context
otherwise clearly requires), shall have the meanings assigned to such terms in
said Trust Indenture Act and in said Securities Act as in force at the date of
this Indenture. All accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles (whether or not such is indicated herein), and, except as otherwise
herein expressly provided, the term "generally accepted accounting principles"
with respect to any computation required or permitted hereunder shall mean such
accounting principles as are generally accepted in The Netherlands at the date
of such computation. The words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision. The terms defined in this
Article have the meanings assigned to them in this Article and include the
plural as well as the singular.
"Additional Amounts" has the meaning specified in Section 13.1(b).
"AEX-Stock Exchange" means the Amsterdam Stock Exchange.
"Average Closing Price" means the arithmetic average of the official
closing price per Parent Common Share quoted on the AEX-Stock Exchange for each
Stock Exchange Trading Day during the Relevant Period.
"Bankruptcy Law" means Title 11, United States Code, or any similar
U.S. Federal, state or local law for the relief of debtors or any comparable or
similar foreign laws relating to bankruptcy, receivership, liquidation,
dissolution or similar proceeding.
"Board of Directors" means the Board of Directors of the Issuer or any
duly authorized committee thereof.
"Borrowed Moneys" means any indebtedness for borrowed money with an
original maturity of 12 months or more, the aggregate principal amount of which
is greater than U.S.$100,000,000 or the equivalent thereof in any other currency
or currencies.
"Business Day" means, except as otherwise provided pursuant to Section
2.6 for Securities of any series, any day that is not a Saturday or Sunday and
that is not a day on which banking institutions in The Netherlands or in the
Borough of Manhattan, City and State of New York are generally authorized or
obligated by law to close in the relevant place of payment.
"Cash Dividend" has the meaning specified in Section 11.4.
"Closing Price" on any day means the official closing price per Parent
Common Share quoted on the AEX-Stock Exchange for such day.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or if at any time
after the execution and delivery of this Indenture such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act of 1939, then the body performing such duties on such date.
"Conversion Agent" has the meaning specified in Section 3.2.
"Conversion Price" means the price at which the Securities shall be
convertible into Parent Common Shares, such price to be established pursuant to
Section 2.6 and to be subject to adjustment as provided in Section 11.4.
"Corporate Trust Office" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office at the date hereof is located at 101
Barclay Street, Floor 21 West, New York, NY 10286, Attention: Corporate Trust
Administration.
"covenant defeasance" and "defeasance" have the meanings assigned to
such terms, respectively, by Sections 9.7 and 9.6.
"Custodian" means any receiver, trustee, assignee, liquidator,
custodian or similar official under any Bankruptcy Law.
"Depositary" means, with respect to the Securities of any series or
tranche issuable or issued in the form of one or more Global Securities, the
person designated as Depositary for such Global Securities by the Issuer
pursuant to Section 2.7 until a successor Depositary shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Depositary" shall mean or include each person who is then a Depositary for such
Global Securities, and if at any time there is more than one person designated
as Depositary for Global Securities of a particular series or tranche,
"Depositary", as used with respect to the Securities of such series or tranche,
means the Depositary with respect to the particular Global Security or
Securities.
"Dollar", "U.S.$" means the coin or currency of the United States of
America as at the time of payment is legal tender for the payment of public and
private debts.
"Effective Date" means (i) any day on which Parent Common Shares shall
trade on the AEX-Stock Exchange excluding the relevant right or entitlement
relating to an event giving rise to an adjustment of the Conversion Price or
(ii) if the foregoing provision is not applicable, the date on which the
relevant event is announced by the Guarantor or, if no such announcement is
made, the date the relevant issue is made.
"euro" means the currency introduced on January 1, 1999 at the start
of the third stage of economic and monetary union pursuant to the treaty
establishing the European Community.
"Event of Default" means any event or condition specified as such in
Section 4.1.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Executive Board" means the Executive Board ("Raad van Bestuur") of
the Guarantor.
"Extraordinary Dividend" means the amount by which the Total Current
Dividend exceeds the Cash Dividends paid or declared on the Parent Common Shares
for the fiscal year of the Guarantor immediately preceding the Effective Date.
"Global Security" means a Security evidencing all or a part of a
series or tranche of Securities, issued to the Depositary for such series or
tranche, as the case may be, in accordance with Section 2.7 and bearing the
legend prescribed in Section 2.7.
"guarantee" means any obligation, contingent or otherwise, of any
person directly or indirectly guarantying any indebtedness of any other person
and any obligation, direct or indirect, contingent or otherwise, of such person
(i) to purchase or pay (or advance or supply funds for the purchase or payment
of) such indebtedness of such other person (whether arising by virtue of
partnership arrangements, or by agreement to keep-well, to purchase assets,
goods, securities or services, to take-or-pay, or to maintain financial
statement conditions or otherwise) or (ii) entered into for purposes of assuring
in any other manner the obligee of such indebtedness of the payment thereof or
to protect such obligee against loss in respect thereof (in whole or in part);
provided, however, that the term "guarantee" shall not include endorsements for
collection or deposit in the ordinary course of business. The term "guarantee"
used as a verb has a corresponding meaning.
"Guarantor" means Koninklijke Ahold N.V., a company organized under
the laws of The Netherlands with its corporate seat in Zaandam (municipality
Zaanstad), The Netherlands.
"Guarantor Senior Indebtedness" means the principal of and premium, if
any, and interest on any Indebtedness of the Guarantor currently outstanding or
to be issued after the date of this Indenture unless by the terms of the
instrument creating or evidencing such Indebtedness it is not senior in right of
payment to the Guarantor's obligations under the Guaranty; provided, however,
that "Guaranty Senior Indebtedness" shall not include (1) the Guarantor's 7 5/8%
Subordinated Bonds 1993 due 2000, (2) the Guarantor's 5.875% Subordinated Bonds
1997 due December 19, 2005, (3) the Guarantor's outstanding 6 3/4% Subordinated
Bonds due August 24, 2003, (4) the Guarantor's outstanding 3% Convertible
Subordinated Notes due September 30, 2003 and (5) any subordinated loans of the
Guarantor issued after the date of this Indenture.
"Guarantor Subordinated Indebtedness" means all the principal,
premium, if any, accrued and unpaid interest (including interest accruing on or
after the filing of any petition in bankruptcy or for reorganization relating to
the Guarantor whether or not a claim for post-filing interest is allowed in such
proceeding) of Indebtedness of the Guarantor, whether any such Indebtedness
exists as of the date of this Indenture or shall thereafter be created,
incurred, assumed or guaranteed by the Guarantor, which by its terms is
expressly subordinated in right of payment to the Guarantor's obligations under
the Guaranty.
"Guaranty" means the agreement of the Guarantor set forth in Article
Thirteen and as endorsed (substantially in the form set forth in Section 2.4) on
each Security authenticated and delivered hereunder.
"Holder", "Holder of Securities", "Securityholder" or other similar
terms means a person in whose name a Security is registered in the Register.
"Indebtedness" means all indebtedness for money that is created,
assumed, incurred or guaranteed in any manner by the Issuer or the Guarantor or
for which the Issuer or the Guarantor is otherwise responsible or liable.
"Indenture" means this instrument as originally executed and delivered
or, if amended or supplemented as herein provided, as so amended and/or
supplemented from time to time, and shall include (i) for all purposes of this
instrument and any supplemental indenture, the provisions of the Trust Indenture
Act of 1939 that are deemed to be a part of and govern this instrument and any
such supplemental indenture, respectively, and (ii) the forms and terms of
particular series of Securities established as contemplated hereunder.
"interest" means, when used with respect to a non-interest bearing
Security, interest payable after the principal thereof has become due and
payable whether at maturity, by declaration of acceleration, by call for
redemption, pursuant to a sinking fund or otherwise.
"Issuer" means Ahold Finance U.S.A., Inc., a corporation organized
under the laws of the State of Delaware, until any successor company shall have
become such pursuant to Article Eight and thereafter "Issuer" shall mean such
successor except as otherwise provided in Section 8.2.
"Issuer Senior Indebtedness" means the principal of and premium, if
any, and interest on any Indebtedness of the Issuer currently outstanding or to
be issued after the date of this Indenture unless by the terms of the instrument
creating or evidencing such Indebtedness it is not senior in right of payment to
the Securities; provided, however, that "Issuer Senior Indebtedness" shall not
include any Indebtedness of the Issuer that is subordinated in right of payment
to any other Indebtedness of the Issuer.
"Issuer Subordinated Indebtedness" means all the principal, premium,
if any, accrued and unpaid interest (including interest accruing on or after the
filing of any petition in bankruptcy or for reorganization relating to the
Issuer whether or not a claim for post-filing interest is allowed in such
proceeding) of Indebtedness of the Issuer, whether any such Indebtedness exists
as of the date of this Indenture or shall thereafter be created, incurred,
assumed or guaranteed by the Issuer, which by its terms is expressly
subordinated in right of payment to the Securities.
"Major Subsidiaries" means any company or entity of which the
Guarantor directly or indirectly has control and of which the total assets
exceed 10% of the consolidated assets of the Guarantor.
"mandatory sinking fund payment" has the meaning set forth in Section
10.6.
"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.
"Market Exchange Rate" has the meaning set forth in Section 6.1.
"Market Price" on any day means the arithmetic mean of the Closing
Prices quoted for the Parent Common Shares on the AEX-Stock Exchange for the ten
consecutive Stock Exchange Trading Days ending on the earlier of such day and
the Stock Exchange Trading Day immediately preceding the Effective Date.
"New York Location" means the location in the Borough of Manhattan,
The City of New York, at which at any particular time the Trustee receives and
redelivers Securities.
"Officers' Certificate" means a certificate signed by (1) in the case
of the Issuer, any two of the following: the president or any vice president of
the Issuer and (2) in the case of the Guarantor, any two of the following: the
president, any executive vice president or the secretary of the Guarantor and,
in each case, delivered to the Trustee. Each such certificate shall include the
statements required by the Trust Indenture Act of 1939 or as provided for in
Section 14.5, if and to the extent required hereby.
"Opinion of Counsel" means an opinion in writing signed by legal
counsel who may be an employee of or counsel to the Issuer, the Guarantor or any
Subsidiary. Each such opinion shall include the statements required by the Trust
Indenture Act of 1939 or as provided for in Section 14.5, if and to the extent
required hereby.
"optional sinking fund payment" has the meaning set forth in Section
10.6.
"original issue date" of any Security (or portion thereof) means the
earlier of (a) the date of such Security or (b) the date of any Security (or
portion thereof) for which such Security was issued (directly or indirectly) on
registration of transfer, exchange or substitution.
"Original Issue Discount Security" means any Security that provides
for an amount less than the principal amount thereof to be due and payable upon
redemption or a declaration of acceleration of the maturity thereof pursuant to
Section 4.1.
"Outstanding" (except as otherwise required by the Trust Indenture Act
of 1939), when used with reference to Securities, shall, subject to the
provisions of Section 6.4, mean, as of any particular time, all Securities
theretofore authenticated and delivered by the Trustee under this Indenture,
except
(a) Securities theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(b) Securities, or portions thereof, which have become due and for the
payment or redemption of which moneys in the necessary amount shall have
been theretofore deposited in trust with the Trustee or with any paying
agent (other than the Issuer) or shall have been set aside, segregated and
held in trust by the Issuer for the Holders of such Securities (if the
Issuer shall act as its own paying agent); and
(c) Securities in lieu of or in substitution for which other
Securities shall have been authenticated and delivered pursuant to the
terms of Section 2.13, or which shall have been paid pursuant to Section
2.13.
In determining whether the Holders of the requisite principal amount
of Outstanding Securities of any or all series have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, the principal
amount that shall be deemed to be Outstanding for such purposes in the case of
an Original Issue Discount Security or (unless as otherwise established pursuant
to Section 2.6) in the case of a Security which provides that an amount other
than the face amount thereof will or may be payable upon the maturity thereof or
a declaration of acceleration of the maturity thereof shall be the amount of the
principal thereof that would be due and payable as of the date of such
determination upon a declaration of acceleration of the maturity thereof
pursuant to Section 4.1.
"Overdue Rate" means, unless otherwise specified in the Securities of
any series, the same rate as the rate of interest specified in the Securities of
such series or, in the case of a series of Original Issue Discount Securities,
the Yield to Maturity of such series of Securities.
"Parent American Depositary Receipts" or "Parent ADRs" shall mean
American depositary receipts issued by the Parent Common Shares Depositary
evidencing Parent American Depositary Shares.
"Parent American Depositary Shares" or "Parent ADSs" shall mean the
securities representing the interest in the Parent Common Shares deposited with
the Parent Common Shares Depositary.
"Parent Common Shares" means the common shares, par value NLG 0.50 per
common share, of the Guarantor, as designated on the date hereof, and all shares
resulting from any reclassification of such common shares.
"Parent Common Shares Depositary" shall mean The Bank of New York, a
New York banking corporation, as depositary, or any successor as such
depositary, under the Deposit Agreement dated as of January 20, 1998, among the
Guarantor, the Bank of New York and all owners and beneficial owners from time
to time of ADRs issued thereunder.
"Parent Conversion Shares" has the meaning specified in Section 11.2.
"Parent Shares" means Parent Common Shares and/or Parent American
Depositary Shares.
"person" means any individual, corporation, partnership, joint
venture, association, joint stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"principal" whenever used with reference to the Securities or any
Security or any portion thereof, shall be deemed to include "and premium, if
any".
"Private Debt" means loans, debts, guarantees and/or other obligations
of the Guarantor in excess of 30% of the total consolidated fixed assets of the
Guarantor and its Subsidiaries, not being Public Debt.
"Public Debt" means any loan, debt, guarantee or other obligation of
the Guarantor represented by or securing bonds, notes, debentures or other
publicly issued debt securities which are, or are capable of being, traded or
listed on any stock exchange or other organized financial market.
"record date" has the meaning set forth in Section 2.11.
"Register" has the meaning set forth in Section 2.12.
"Relevant Period" means the period beginning on the first Stock
Exchange Trading day after the Effective Date for the first Cash Dividend
aggregated in the Total Current Dividend, and ending on the Stock Exchange
Trading Day immediately preceding the Effective Date for the Cash Dividend which
caused the adjustment to the Conversion Price; provided, however, that if there
were no Cash Dividends in the 365 consecutive day period prior to this Effective
Date, the Relevant Period will be the entire period of the 365 consecutive days.
"Representative" means the indenture trustee or other trustee, agent
or representative for an issue of Issuer Senior Indebtedness or Guarantor Senior
Indebtedness, as applicable, or, in the case of any Issuer Senior Indebtedness
or Guarantor Senior Indebtedness for which there is no indenture trustee, other
trustee, agent or representative, any holder of such Issuer Senior Indebtedness
or Guarantor Senior Indebtedness.
"Resolution" means (1) with respect to the Issuer, a resolution of the
Board of Directors of the Issuer or any committee thereof or (2) with respect to
the Guarantor, a resolution of the Executive Board of the Guarantor, including,
without limitation, any such resolution by which or pursuant to which any series
of Securities is authorized and established pursuant to Section 2.6.
"Responsible Officer", when used with respect to the Trustee, means
any vice president, the treasurer, any senior trust officer, trust officer, any
assistant trust officer, any assistant vice president, any assistant treasurer,
or any other officer or assistant officer of the Trustee customarily performing
functions similar to those performed by the persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred
because of his knowledge of and familiarity with the particular subject.
"Securities Act" means the Securities Act of 1933, as amended.
"Security" or "Securities" (except as otherwise required by the Trust
Indenture Act of 1939) has the meaning stated in the first recital of this
Indenture or means any Securities that have been issued, authenticated and
delivered under this Indenture, as the context may require.
"Security registrar" has the meaning set forth in Section 2.12.
"series", as used in the definitions of "Indenture" and "Overdue Rate"
in this Section 1.1 and as used in Section 2.6 (except as used in the first
sentence of the second paragraph thereof and in the first and last sentences of
the third paragraph thereof), 2.7, 2.11, 2.12, 2.13, 3.1, 3.2, 3.3 (except as
used in the fourth paragraph thereof), 10.1, 10.2, 10.3, 10.4 and 10.6, means
"tranche" for any Securities of a series of Securities consisting of more than
one tranche.
"sinking fund payment date" has the meaning set forth in Section 10.6.
"Specified Currency" has the meaning set forth in Section 6.1.
"Stock Exchange Trading Day" means a day that AEX-Stock Exchange is
open for trading.
"Subsidiary" means any corporation or other entity of which at least a
majority of the outstanding stock or other ownership interests having by the
terms thereof ordinary voting power for the election of directors, managers or
trustees of such corporation or other entity or other persons performing similar
functions (irrespective of whether or not at the time stock or other ownership
interests of any other class or classes of such corporation or other entity
shall have or might have voting power by reason of the happening of any
contingency) is at the time directly or indirectly owned, or controlled by the
Issuer or the Guarantor or by one or more other Subsidiaries, or by the Issuer
or the Guarantor and one or more other Subsidiaries.
"Tax Redemption Date" has the meaning set forth in Section 10.7.
"Total Current Dividend" has the meaning specified in Section 11.4.
"tranche" means all Securities of the same series having the same
original issue date, interest rate, maturity, repayment and redemption
provisions.
"Trust Indenture Act of 1939" (except as otherwise provided in
Sections 7.1 and 7.2) means the Trust Indenture Act of 1939, as amended, as in
force at the date as of which this Indenture was originally executed; provided,
however, that in the event the Trust Indenture Act of 1939 is amended after such
date, "Trust Indenture Act of 1939" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
"Trustee" means the person identified as "Trustee" in the first
paragraph hereof and, subject to the provisions of Article Five, shall also
include any successor trustee. If pursuant to the provisions of this Indenture
there shall be at any time more than one Trustee hereunder, the term "Trustee"
as used with respect to Securities of any series shall mean the Trustee or
Trustees with respect to the Securities of that series.
"U.S. Government Obligations" has the meaning set forth in Section
9.8.
"vice president", when used with respect to the Trustee, means any
vice president, whether or not designated by a number or a word or words added
before or after the title of "vice president".
"Yield to Maturity" means, in the case of any Original Issue Discount
Security, the yield to maturity specified in such Security or in a Resolution
relating thereto.
ARTICLE TWO
SECURITIES
SECTION 2.1 Forms Generally. The Securities of each series shall be
substantially in the form set forth in this Article, or in such other form as
shall be established by or pursuant to a Resolution or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture and may have imprinted or otherwise reproduced thereon such letters,
numbers or other marks of identification and such legends or endorsements as may
be required to comply with any applicable law, rule or regulation or with the
rules of any securities exchange or as may, consistent with the provisions of
this Indenture, be determined by the officers executing such Securities, as
evidenced by their execution of the Securities. In the case of Securities of any
series that are denominated in a coin or currency (including composite
currencies or currency units) that is, or may be, replaced by the euro, the form
of such Securities may contain such insertions, omissions, substitutions and
other variations as may be deemed appropriate or required.
The definitive Securities shall be printed, lithographed or engraved
on steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
In the case of Securities of any series that are convertible at the
option of Holders into Parent Shares, the form of election to convert shall be
substantially in the form set forth in Section 2.18, or in such other form as
shall be established by or pursuant to a Resolution or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture and may be imprinted or otherwise reproduced on the Securities of such
series.
SECTION 2.2 Form of Face of Security. [If the Security is an Original
Issue Discount Security, insert any legend required by the Internal Revenue Code
of 1986, as amended and the regulations thereunder.]
<PAGE>
No.
[U.S.$]_____________ CUSIP No. ________
AHOLD FINANCE U.S.A., INC.
[Insert Designation of Series]
Ahold Finance U.S.A., Inc., a company duly organized and existing
under the laws of the State of Delaware (herein called the "Issuer"), for value
received, hereby promises to pay to ________, or registered assigns, the
principal sum of _______________ on _______________ [if the Security is to bear
interest prior to maturity, insert--, and to pay interest thereon [[insert as
applicable--annually or semi-annually or quarterly]] on [[insert appropriate
interest payment dates]] (the "Interest Payment Dates") in each year, commencing
_____________, [insert--at the rate of __% per annum or, if applicable, insert
the method for determining the adjustable, floating or other form of variable
interest rate borne by the Securities] until the principal hereof is paid or
made available for payment [if applicable, insert --, and (to the extent that
the payment of such interest shall be legally enforceable) at the rate of __%
per annum on any overdue principal and premium, if any, and on any overdue
installment of interest]. Notwithstanding the foregoing, this Security shall
bear interest from the most recent Interest Payment Date to which interest in
respect hereof has been paid or duly provided for, unless (i) the date hereof is
such an Interest Payment Date, in which case from the date hereof, or (ii) no
interest has been paid on this Security, in which case from ____________;
provided, however, that if the Issuer shall default in the payment of interest
due on the date hereof, then this Security shall bear interest from the next
preceding Interest Payment Date to which Interest has been paid or, if no
interest has been paid on this Security from __________. [If the Issuer has the
right to deliver Parent Common Shares in payment, in whole or in part, of the
principal and accrued interest due at maturity, insert applicable provisions.]
Notwithstanding the foregoing, if the date hereof is after the _________ [insert
if applicable--or __________] (whether or not a Business Day) (the "Record
Date") [insert if applicable, as the case may be,] next preceding an Interest
Payment Date and before such Interest Payment Date, this Security shall bear
interest from such Interest Payment Date; provided, however, that if the Issuer
shall default in the payment of interest due on such Interest Payment Date, then
this Security shall bear interest from the next preceding Interest Payment Date
to which interest has been paid or, if no interest has been paid on this
Security, from _________. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, subject to certain exceptions
provided in the Indenture referred to on the reverse hereof, be paid to the
person in whose name this Security is registered at the close of business on the
Record Date next preceding such Interest Payment Date. Unless otherwise
specified for the Security pursuant to Section 2.6, insert - [Interest on this
Security will be computed and paid on the basis of a 360-day year of twelve
30-day months.]
[If the Security is not to bear interest prior to maturity,
insert--The principal of this Security shall not bear interest except in the
case of a default in payment of principal upon acceleration, upon redemption or
at maturity and in such case the overdue principal of this Security shall bear
interest at the rate of __% per annum (to the extent that the payment of such
interest shall be legally enforceable), which shall accrue from the date of such
default in payment to the date payment of such principal has been made or duly
provided for. Interest on any overdue principal shall be payable on demand. Any
such interest on any overdue principal that is not so paid on demand shall bear
interest at the rate of __% per annum (to the extent that the payment of such
interest shall be legally enforceable), which shall accrue from the date of such
demand for payment to the date payment of such interest has been made or duly
provided for, and such interest shall also be payable on demand.]
To secure the due and punctual payment of the principal and additional
interest [If the Security is to bear interest prior to maturity, insert--and
interest], if any, on the Securities of this series and all other amounts
payable by the Issuer under the Indenture and the Securities when and as the
same shall be due and payable, whether at maturity, by acceleration or
otherwise, according to the terms of the Securities and the Indenture,
Koninklijke Ahold N.V. (the "Guarantor") has unconditionally guaranteed the
Securities pursuant to the terms of the Guaranty endorsed hereon and in the
Indenture referred to on the reverse hereof (the "Guaranty"). [If the Security
is convertible into Parent Shares at the option of the Holder, insert -- In
addition, the Guarantor has irrevocably and unconditionally guaranteed to the
Holder of this Security the conversion of this Security in accordance with the
terms of the Indenture, when this Security is presented for conversion in
accordance therewith.]
Payment of the principal of and [if applicable, insert--any such]
interest on this Security will be made at the office or agency of the Issuer
maintained for that purpose in [insert the places of payment], in [insert the
currency or currencies of payment]; provided, however, that at the option of the
Issuer payment of interest may be made by check mailed to the address of the
person entitled thereto as such address shall appear in the Security register.
[If the Security is an extendible security, insert--The Securities of
this series are subject to repayment on [insert provisions with respect to
repayment date or dates] at the option of the Holders thereof exercisable on or
before the _________________, but not prior to the _______________ preceding
such ____________, at a repayment price equal to the principal amount thereof to
be repaid, together with interest payable thereon to the repayment date, as
described on the reverse side hereof.]
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by the manual signature of one of
its authorized signatories, this Security shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, this instrument has been duly executed in the name
of the Issuer.
AHOLD FINANCE U.S.A., INC.
By____________________________
Attest: ______________________________
SECTION 2.3 Form of Reverse of Security.
AHOLD FINANCE U.S.A., INC.
This Security is one of a duly authorized issue of securities of the
Issuer (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of [ ], (herein called the "Indenture"),
among the Issuer, the Guarantor and The Bank of New York, a New York banking
corporation, as Trustee (herein called the "Trustee"), to which Indenture and
all indentures supplemental thereto reference is hereby made for a statement of
the respective rights, limitations of rights, obligations, duties and immunities
thereunder of the Issuer, the Guarantor, the Trustee and the Holders of the
Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof [if applicable, insert--limited in aggregate principal amount to
_________]. The separate series of Securities may be issued in various aggregate
principal amounts, may mature at different times, may bear interest, if any, at
different rates, may be subject to different redemption provisions (if any), may
be subject to different sinking or purchase funds (if any), may have different
conversion provisions (if any), may be subject to different repayment provisions
(if any), may be subject to different covenants and Events of Default and may
otherwise vary as in the Indenture provided. The Indenture further provides that
the Securities of a single series may be issued at various times, with different
maturity dates, may bear interest, if any, at different rates, may be subject to
different redemption provisions (if any), may be subject to different sinking or
purchase funds (if any) and may be subject to different repayment provisions (if
any).
If at any time subsequent to the issuance of the Securities of this
series as a result of any change in, or amendment to, the laws or regulations of
The Netherlands or of any political subdivision thereof or any authority therein
or thereof having power to tax or as a result of any change in the application
or official interpretation of such laws or regulations, the Guarantor becomes,
or will become, obligated to pay any Additional Amounts with respect to any
payments that it may be required to make pursuant to the Guaranty and such
obligations cannot be avoided by the Issuer or the Guarantor taking reasonable
measures available to either of them, then the Securities of this series will be
redeemable as a whole (but not in part), at the option of the Issuer, at any
time upon not less than thirty (30) nor more than sixty (60) days' notice given
to the Holders at their principal amount [if the Security is to bear interest
prior to maturity, insert--together with accrued interest thereon, if any,] [if
the Security is an Original Issue Discount Security, insert appropriate
provision.] to the date fixed for redemption (the "Tax Redemption Date"). In
order to effect a redemption of Securities of this series as described in this
paragraph, the Issuer shall deliver to the Trustee at least forty-five (45) days
prior to the Tax Redemption Date: (i) a written notice stating that the
Securities of this series are to be redeemed as a whole and (ii) an opinion of
independent legal counsel of recognized standing to the effect that the
Guarantor has or will become obligated to pay Additional Amounts with respect to
any payments which it may be required to make pursuant to the Guaranty as a
result of any such change or amendment. No notice of redemption may be given
earlier than ninety (90) days prior to the earliest date on which the Guarantor
would be obligated to pay such Additional Amounts were a payment in respect of
the Guaranty of the Securities of this series then due. The notice shall
additionally specify the Tax Redemption Date and all other information necessary
to the publication and mailing by the Trustee of notices of such redemption. The
Trustee shall be entitled to rely conclusively upon the information so furnished
by the Issuer and the Guarantor in such notice and shall be under no duty to
check the accuracy or completeness thereof. Such notice shall be irrevocable and
upon its delivery the Guarantor shall be obligated to make the payment or
payments referred to therein to the Trustee.
[If applicable, insert--The Securities of this series are subject to
redemption upon not less than 30 nor more than 60 days' notice by mail, [[if
applicable, insert --(1) on ______ in any year commencing with the year ______
and ending with the year ____ through operation of the sinking fund for this
series (as more fully described in the next succeeding paragraph) at [[insert
either--a redemption price equal to 100% of the principal amount of the
Securities to be redeemed or the redemption prices for redemption through
operation of the sinking fund (expressed as percentages of the principal amount)
set forth in the table below,]], and (2)]] at any time [[if applicable,
insert--on or after ________]], as a whole or in part, at the election of the
Issuer, at the [[insert either--following redemption prices or redemption prices
for redemption otherwise than through operation of the sinking fund]] (expressed
as percentages of the principal amount): if redeemed [[if applicable, insert--on
or before ________, __%, and if redeemed]] during the 12-month period beginning
________ of the years indicated,
[[If applicable,
Redemption Price insert --
for Redemption Price For
[[if applicable, Redemption
insert -- Otherwise Than
Through Operation Through Operation
of the of the
Year Sinking Fund]] Sinking Fund]]
---- ------------ ------------
and thereafter at a redemption price equal to __% of the principal amount
thereof, together in the case of any such redemption (whether through operation
of the sinking fund or otherwise) with accrued interest to the date fixed for
redemption, but interest installments maturing on or prior to such redemption
date will be payable to the Holders of such Securities of record at the close of
business on the relevant Record Dates referred to on the face hereof, all as
provided in the Indenture.]
[If applicable, insert--The sinking fund for this series provides for
the redemption on ________ in each year beginning with the year ____ and ending
with the year ____ of [[not less than]] U.S.$________ [[("mandatory sinking fund
payments") and not more than [U.S.$]________]] aggregate principal amount of
Securities of this series.] [If applicable, insert--Securities of this series
acquired or redeemed by the Issuer otherwise than through [[mandatory]] sinking
fund payments [[if applicable, insert--and Securities of this series surrendered
to the Issuer for conversion]] may be credited against subsequent [[mandatory]]
sinking fund payments otherwise required to be made.]
[If applicable, insert--Notwithstanding the foregoing, the Issuer may
not, prior to ________, redeem any Securities of this series as contemplated by
[[Clause (2) of]] the [[second]] preceding paragraph as a part of, or in
anticipation of, any refunding operation by the application, directly or
indirectly, of moneys borrowed having an interest cost to the Issuer (calculated
in accordance with generally accepted financial practice) of less than __% per
annum.]
[If applicable, insert--Partial redemptions must be in an amount not
less than [U.S.$]______________ principal amount of Securities.]
[If applicable, insert--In the event of redemption of this Security in
part only, a new Security or Securities of this series for the unredeemed
portion hereof having the same interest rate and maturity as this Security will
be issued in the name of the Holder hereof upon the cancellation hereof.]
[If the Holders have the right to cause the Issuer to redeem, purchase
or repay in certain circumstances the Security prior to maturity, insert
applicable provisions.]
[If the Security is convertible at the option of the Holder, insert--
Subject to the provisions of the Indenture, the Holder hereof has the right, at
his option at any time until the close of business of the third Business Day (as
hereinafter defined) preceding the maturity date hereof (except that, in case
this Security shall be called for redemption before maturity, such right shall
terminate in respect of this Security at the close of business on the third
Business Day preceding the date fixed for redemption of this Security unless the
Issuer shall default in payment due upon such redemption), to convert this
Security (or any portion hereof which is [[insert minimum denomination]] or an
integral multiple thereof) into fully paid and nonassessable Common Shares of
the Guarantor ("Parent Common Shares"), or American Depositary Shares evidencing
such Parent Common Shares ("Parent ADSs" and, together with such Parent Common
Shares, "Parent Shares"), at the initial Conversion Price of [[U.S.$]]______ per
Parent Common Share, subject to such adjustment, if any, of the Conversion Price
and the securities or other property issuable upon conversion as may be required
by the provisions of the Indenture, but only upon surrender of this Security to
the Trustee or to the Conversion Agent for surrender to the Issuer or the
Guarantor in accordance with the instructions on file with the Conversion Agent,
accompanied by a written notice of election to convert, which shall be
substantially in the Form of Election to Convert contained in the Indenture, and
(if required by the Issuer or the Guarantor) by an instrument or instruments of
transfer, in form satisfactory to the Issuer, the Guarantor and the Conversion
Agent, duly executed by the Holder or by his attorney duly authorized in
writing.]
[If the Security is subject to mandatory conversion or conversion at
the option of the Issuer, insert applicable provisions.]
[If the Security is convertible into Parent Shares, insert--No payment
or adjustment is to be made on conversion of this Security for interest accrued
hereon or for dividends on Parent Common Shares issued on conversion or on
Parent Common Shares underlying Parent ADSs issued on conversion; provided,
however, that if this Security is surrendered for conversion after the Record
Date for a payment of interest and on or before the Interest Payment Date, then,
notwithstanding such conversion, the interest falling due to such Interest
Payment Date will be paid to the person in whose name this Security is
registered at the close of business on such Record Date and any Security
surrendered for conversion during the period from the close of business on any
Record Date to the opening of business on the corresponding Interest Payment
Date must be accompanied by payment of an amount equal to the interest payable
on such Interest Payment Date. No fractional Parent Shares shall be issuable
upon any conversion, but in lieu thereof the Guarantor shall make an adjustment
therefor in cash as provided in the Indenture.]
[If the Security is not an Original Issue Discount Security,
insert--If an Event of Default with respect to Securities of this series shall
occur and be continuing, then the Trustee or the Holders of not less than 25% in
aggregate principal amount (calculated as provided in the Indenture) of the
Securities of this series then Outstanding may declare the principal of the
Securities of this series and accrued interest thereon, if any, to be due and
payable in the manner and with the effect provided in the Indenture.] [If the
Security is an Original Issue Discount Security, insert--If an Event of Default
with respect to Securities of this series shall occur and be continuing, then
the Trustee or the Holders of not less than 25% in aggregate principal amount
(calculated as provided in the Indenture) of the Securities of this series then
Outstanding may declare an amount of principal of the Securities of this series
due and payable in the manner and with the effect provided in the Indenture.
Such amount shall be equal to [[insert formula for determining the amount]].]
[If the Security is an extendible security, insert --The Securities of
this series are subject to repayment in whole, or in part, on [insert month, day
and years], in increments of _______ or multiples of _______ in excess of
______, provided that the portion of the principal amount of any Security of
this series not being repaid shall be at least _____, at the option of the
Holder thereof at a repayment price equal to the principal amount thereof to be
repaid, together with interest payable thereon to the repayment date. For this
Security to be repaid at the option of the Holder, the Trustee must receive at
the Corporate Trust Office or the New York Location, on or before the [insert
month and day] or, if such [insert month and day] is not a day other than a day
on which banking institutions in The Netherlands or in the Borough of Manhattan,
the City and State of New York are authorized or required by law or regulation
to close (a "Business Day"), the next succeeding Business Day, but not earlier
than the [insert month and day] prior to the [insert month and day] on which the
repayment price will be paid (i) this Security, with the form entitled "Option
to Elect Repayment" below duly completed, or (ii) a facsimile transmission or
letter from a member of a national securities exchange or the National
Association of Securities Dealers, Inc. or a commercial bank or trust company in
the United States of America setting forth the name of the Holder of this
Security, the principal amount of the Security, the amount of such Security to
be repaid, a statement that the option to elect repayment is being made thereby
and a guarantee that the Security to be repaid with the form entitled "Option to
Elect Repayment" on the reverse thereof duly completed will be received by the
Issuer no later than five Business Days after the date of such facsimile
transmission or letter, and such Security and form duly completed are received
by the Issuer by such fifth Business Day. Either form of notice duly received on
or before the [insert month and day] preceding any such [insert month and day]
shall be irrevocable. All questions as to the validity, eligibility (including
time of receipt) and acceptance of any Securities of this series for repayment
will be determined by the Issuer, whose determination shall be final and
binding.]
The Securities are subordinated in right of payment, in the manner and
to the extent set forth in the Indenture, to the prior payment in full of all
Issuer Senior Indebtedness of the Issuer whether outstanding on the date of the
Indenture or thereafter created, incurred, assumed or guaranteed. Each Holder by
his acceptance hereof agrees to be bound by such provisions and authorizes and
expressly directs the Trustee, on his behalf, to take such action as may be
necessary or appropriate to effectuate the subordination provided for in the
Indenture and appoints the Trustee his attorney-in-fact for such purpose.
The Indenture permits, with certain exceptions as therein provided,
the amendment or supplementing thereof and the modification of the rights and
obligations of the Issuer and the Guarantor and the rights of the Holders of the
Securities of each series to be affected under the Indenture at any time by the
Issuer, the Guarantor and the Trustee with the consent of the Holders of not
less than a majority in aggregate principal amount (calculated as provided in
the Indenture) of the Securities at the time Outstanding of all series to be
affected (all such series voting as a single class). The Indenture also contains
provisions permitting the Holders of not less than a majority in aggregate
principal amount (calculated as provided in the Indenture) of the Securities of
any series at the time Outstanding, on behalf of the Holders of all Securities
of such series, to waive certain past defaults or Events of Default under the
Indenture and the consequences of any such defaults or Events of Default. Any
such consent or waiver (unless revoked as provided in the Indenture) shall be
conclusive and binding upon any Holder and upon all future Holders of this
Security and of any Security issued upon the registration of transfer hereof or
in exchange herefor or in lieu hereof, whether or not notation of such consent
or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest, if any, on
this Security at the times, place and rate, if any, and in the coin or currency,
herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
register, upon due presentment of this Security for registration of transfer at
the office or agency of the Issuer in any place where the principal of and
interest, if any, on this Security are payable, duly endorsed by, or accompanied
by a written instrument of transfer in form satisfactory to the Issuer and the
Security registrar duly executed by the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities of this series,
having the same interest rate and maturity and bearing interest from the same
date as this Security, of any authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of ________ and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Securities of this series are exchangeable for a like aggregate principal
amount of Securities of this series of a different authorized denomination
having the same interest rate and maturity and bearing interest from the same
date as such Securities, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Issuer may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to registration of transfer of this Security in the Security
register, the Issuer, the Guarantor, the Trustee and any agent of the Issuer,
the Guarantor or the Trustee may treat the person in whose name this Security is
registered as the owner hereof for all purposes, whether or not this Security be
overdue and notwithstanding any notation of ownership or other writing thereon,
and none of the Issuer, the Guarantor, the Trustee nor any such agent shall be
affected by notice to the contrary. All payments made to or upon the order of
such registered Holder, shall, to the extent of the sum or sums paid,
effectually satisfy and discharge liability for monies payable on this Security.
No recourse for the payment of the principal of or interest, if any,
on this Security, or for payment pursuant to the Guaranty or for any claim based
hereon or otherwise in respect hereof, and no recourse under or upon any
obligation, covenant or agreement of the Issuer or the Guarantor in the
Indenture or any indenture supplemental thereto or in any Security, or because
of the creation of any indebtedness represented thereby, shall be had against
any incorporator, shareholder, officer, official, member or deputy member of the
Executive Board or member or deputy member of the supervisory board of the
Guarantor or any successor entity, as such, past, present or future, or against
any incorporator, shareholder, officer or member of the Board of Directors of
the Issuer or of any successor entity, as such, past, present or future, either
directly or through the Issuer or the Guarantor, as the case may be, or any
successor corporation, whether by virtue of any constitution, statute or rule of
law or by the enforcement of any assessment or penalty or otherwise, all such
liability being, by the acceptance hereof and as part of the consideration for
the issue hereof, expressly waived and released.
All terms used in this Security and not otherwise defined herein which
are defined in the Indenture shall have the meanings assigned to them in the
Indenture, except with respect to authorization, execution and delivery by the
Issuer.
This Security shall be governed by and construed in accordance with
the laws of the State of New York.
SECTION 2.4 Form of Notation on Security Relating to Guaranty
GUARANTY
Koninklijke Ahold N.V., a company organized under the laws of The
Netherlands with its corporate seat in Zaandam (municipality Zaanstad), The
Netherlands (the "Guarantor"), FOR VALUE RECEIVED, hereby irrevocably and
unconditionally guarantees on a subordinated basis to the Holder of the Security
upon which this Guaranty is endorsed, the due and punctual payment of the
principal, premium, if any, and interest, if any, on the Security upon which
this Guaranty is endorsed, when and as the same shall become due and payable,
subject to any applicable grace period, whether on the date of maturity, by
acceleration or upon redemption pursuant to Article Ten of the Indenture
referred to in the Security on which this Guaranty is endorsed or otherwise. All
payments under this Guaranty shall be made in [insert relevant currency].
[If the Security is convertible at the option of the Holder, insert --
The Guarantor hereby also irrevocably and unconditionally guarantees to the
Holder of the Security upon which this Guaranty is endorsed the conversion of
such Security into Parent Shares when presented for conversion in accordance
with the terms of the Indenture.
All payments made pursuant to this Guaranty, including, without
limitation, payments of principal [if the Security is to bear interest prior to
maturity, insert -- interest, if any,] and premium, if any, in respect of the
Security on which this Guaranty is endorsed, shall be made by the Guarantor
without withholding or deduction for or on account of any present or future
taxes, duties, levies, or other governmental charges of whatever nature in
effect on the date of the Indenture or imposed or established in the future by
or on behalf of The Netherlands or any authority in The Netherlands ("Taxes").
In the event any such Taxes are so imposed or established, the Guarantor shall
pay such additional amounts ("Additional Amounts") as may be necessary in order
that the net amounts receivable by each Holder after any payment, withholding or
deduction in respect of such Taxes shall equal the respective amounts of
principal [if the Security is to bear interest prior to maturity, insert --,
interest] and premium, if any, which would have been receivable in respect of
the Security on which this Guaranty is endorsed in the absence of such payment,
withholding or deduction; except that no such Additional Amounts will be payable
with respect to any payment under this Guaranty to, or to a third party on
behalf of, a Holder for or on account of any such Taxes whatever that have been
imposed by reason of (i) the Holder being a resident or deemed a resident of The
Netherlands or having some connection with The Netherlands (including, but not
limited to, the Holder carrying on business in The Netherlands through a
permanent establishment or permanent representative in The Netherlands) other
than the mere holding of such Security or the receipt of principal, interest, if
any, or premium, if any, in respect thereof; (ii) the presentation by the Holder
of the Security on which this Guaranty is endorsed for payment on a date more
than thirty (30) days after the date on which such payment became due and
payable or the date on which payment thereof is duly provided for, whichever
occurs later; (iii) any estate, inheritance, gift, sales, transfer or personal
property tax or any similar tax, assessment or governmental charge; (iv) any
tax, assessment or other governmental charge which is payable otherwise than by
withholding from payments on or in respect of the Security on which this
Guaranty is endorsed; or (v) any combination of items (i), (ii), (iii) or (iv).
Furthermore, no Additional Amounts shall be paid with respect to any payment on
this Security to a Holder that is a fiduciary or partnership or other than the
sole beneficial owner of such payment to the extent that a beneficiary or
settlor with respect to such fiduciary or a member of such partnership or
beneficial owner would not have been entitled to receive the Additional Amounts
had such beneficiary, settlor, member or beneficial owner been the Holder.
This Guaranty is, to the extent and in the manner set forth in Article
Thirteen of the Indenture, subordinated in right of payment to the prior payment
in full of all Guarantor Senior Indebtedness (as defined in the Indenture)
whether outstanding on the date hereof or hereafter created, incurred, assumed
or guaranteed, and each Holder of the Security upon which this Guaranty is
endorsed, by accepting the same, agrees to and shall be bound by such
provisions.
The obligations of the Guarantor to the Holders of Securities and to
the Trustee pursuant to this Guaranty and the Indenture, and the rights of the
Guarantor with respect thereto, are expressly set forth in Article Thirteen of
the Indenture and reference is hereby made to the Indenture for the precise
terms of this Guaranty, which are incorporated herein by reference and made a
part thereof.
No shareholder, officer, official or member of the Executive Board or
the supervisory board of the Guarantor, as such, past, present or future of the
Guarantor shall have any liability under this Guaranty by reason of his, her or
its status as such shareholder, officer, or member of the Executive Board or the
supervisory board.
The Guarantor hereby agrees that its obligations hereunder and under
Article Thirteen of the Indenture shall be as principal obligor and not merely
as surety, and shall be unconditional, irrevocable and absolute, irrespective of
the validity, regularity or enforceability of the Security on which this
Guaranty is endorsed or the Indenture, the absence of any action to enforce the
same, any waiver or consent by the Holder of such Security with respect to any
provisions thereof, the recovery of any judgment against the Issuer, any action
to enforce the same, or any other circumstance which might otherwise constitute
a legal or equitable discharge or defense of a guarantor. The Guarantor hereby
waives diligence, presentment, demand of payment, filing of claims with a court
in the event of insolvency or bankruptcy of the Issuer, any right to require a
proceeding first against the Issuer, protest or notice with respect to such
Security or indebtedness evidenced thereby, and all demands whatsoever and
covenants that this Guaranty will not be discharged except by complete
performance of the obligations of the Guarantor contained in the Indenture and
in this Guaranty.
The Guarantor shall be subrogated to all rights of the Holder of the
Security on which this Guaranty is endorsed against the Issuer in respect to any
amounts paid by the Guarantor pursuant to the provisions of this Guaranty as and
to the extent provided in Article Thirteen of the Indenture.
This Guaranty shall not be valid or obligatory for any purpose until
the certificate of authentication on the Security upon which this Guaranty is
endorsed shall have been executed by the Trustee under the Indenture by the
manual signature of one of its authorized signatories.
This Guaranty shall be governed by and construed in accordance with
the laws of the State of New York, except for the provisions relating to the
subordination of this Guaranty, which shall be governed by and construed in
accordance with the laws of The Netherlands.
Capitalized terms used herein and not otherwise defined herein have
the meanings specified in the Indenture.
IN WITNESS WHEREOF this instrument has been duly executed in the name
of the Guarantor.
KONINKLIJKE AHOLD N.V.
By:___________________
Name:
Title:
SECTION 2.5 Form of Trustee's Certificate of Authentication. The
Trustee's certificate of authentication on all Securities shall be in
substantially the following form:
This is one of the Securities of the series designated herein and
referred to in the within-mentioned Indenture.
Dated: The Bank of New York,
as Trustee
By___________________________
Authorized Signatory
SECTION 2.6 Amount Unlimited; Issuable in Series; Ranking. The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series, each of which may
consist of one or more tranches. There shall be established in or pursuant to a
Resolution, a copy of which, certified by the secretary of the Issuer, shall be
delivered to the Trustee, or established in one or more indentures supplemental
hereto, prior to the issuance of Securities of a particular series,
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities of
the series that may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 2.11, 2.12, 2.13 or 10.3);
(3) the date or dates on which the principal of the Securities of the
series is payable;
(4) the rate or rates at which the Securities of the series shall bear
interest, if any, or the method by which such rate or rates (including the
Overdue Rate) shall be determined, the date or dates from which such
interest shall accrue or the method by which such date or dates may be
determined, the interest payment dates on which such interest shall be
payable and the record dates for the determination of Holders to whom
interest is payable;
(5) the place or places where the principal and any interest on
Securities of the series shall be payable;
(6) the price or prices at which, the period or periods within which
and the terms and conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option of the Issuer, pursuant to any
sinking fund or otherwise;
(7) the obligation, if any, of the Issuer to redeem, purchase or repay
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the price or prices at
which, the period or periods within which and the terms and conditions upon
which Securities of the series shall be redeemed, purchased or repaid, in
whole or in part, pursuant to such obligation;
(8) the price or prices at which, the period or periods within which
and the terms and conditions upon which Securities of the series may be
repaid, in whole or in part, at the option of the Holder thereof;
(9) if the Securities of the series are to be convertible into Parent
Shares, the period or periods within which, the Conversion Price or Prices
at which (and the adjustments to be made thereto, if otherwise than as
provided in Section 11.4)) and the terms and conditions upon which the
Securities of the series may be converted, in whole or in part, into Parent
Shares, whether such conversion is mandatory, at the option of Holders of
the Securities of the series or at the option of the Issuer and the
identity of any Conversion Agent for Securities of the series if other than
or in addition to the Trustee;
(10) if other than Dollars, the coin or currency (including composite
currencies or currency units) in which the Securities of the series shall
be denominated and, if different, the coin or currency (including composite
currencies or currency units) in which payment of the principal of and/or
interest on the Securities of the series shall be payable, and if such coin
or currency (including composite currencies or currency units) is replaced
by the euro, the provisions to effect such replacement;
(11) if the principal of and/or interest on the Securities of the
series are to be payable, at the election of the Issuer or a Holder
thereof, in a coin or currency (including composite currencies or currency
units) other than that in which the Securities are stated to be payable,
the period or periods within which, and the terms and conditions upon
which, such election may be made;
(12) if the amount of payments of principal of and/or interest on the
Securities of the series may be determined with reference to an index based
on a coin or currency (including composite currencies or currency units)
other than that in which the Securities are stated to be payable or with
reference to any other index, the manner in which such amounts shall be
determined;
(13) if other than denominations of U.S.$1,000 (or if the Securities
are denominated in a currency other than Dollars or in a composite
currency, 1,000 units of such other currency, composite currency or other
currency unit) and any multiple thereof, the denominations in which
Securities of the series shall be issuable;
(14) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the maturity thereof pursuant to Section 4.1
or provable in any action or proceeding pursuant to Section 4.2;
(15) if the Securities of the series are Original Issue Discount
Securities, the price at which and the date on which Securities of the
series are to be issued and the Yield to Maturity at the time of issuance
of such series;
(16) if the Securities of the series are to be issued in the form of
one or more Global Securities, the name of the Depositary for such Global
Security or Securities or the nominee of such Depositary;
(17) if the principal of and/or interest on the Securities of the
series are to be payable (whether upon redemption or maturity), at the
election of the Issuer, in Parent Common Shares, the period or periods
within which, or dates on which, and the terms and conditions upon which,
such election may be made:
(18) CUSIP and/or ISIN/CINS numbers for Securities of the series; and
(19) any other terms of the series which are not inconsistent with
this Indenture.
In the case of Securities of a series issued in tranches, all
Securities of any one tranche shall be substantially identical, except as to
denomination. Except as provided in the preceding sentence, all Securities of
any one series shall be substantially identical except as to denomination,
interest rate and maturity and except as may otherwise be provided in or
pursuant to such Resolution or in any such indenture supplemental hereto. The
applicable Resolution or the applicable supplemental indenture may provide that
Securities of any particular series may be issued at various times, with
different maturities and redemption and repayment provisions (if any) and
bearing interest at different rates, but shall for all purposes under this
Indenture, including, but not limited to, voting and Events of Default, be
treated as Securities of a single series.
Except as otherwise specified pursuant to this Section 2.6 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
The Securities of any series will be subordinated in right of payment
to all Issuer Senior Indebtedness of the Issuer as provided in Article Twelve
hereof. The Securities of any series will rank pari passu without any preference
among themselves and with all other present and future unsecured and equally
subordinated obligations of the Issuer.
SECTION 2.7 Authentication and Delivery of Securities. At any time and
from time to time after the execution and delivery of this Indenture, the Issuer
may deliver Securities of any series executed by the Issuer to the Trustee for
authentication, with, in each case, the Guaranty endorsed thereon executed by
the Guarantor and the Trustee shall thereupon authenticate and make available
for delivery such Securities to or upon the written order of the Issuer, signed
by any two of the following: the president, any executive vice president or the
secretary of the Issuer, without any further action by the Issuer. In
authenticating such Securities and accepting the additional responsibilities
under this Indenture in relation to such Securities the Trustee shall be
entitled to receive, and (subject to the requirements of the Trust Indenture Act
of 1939) shall be fully protected in conclusively relying upon:
(1) a copy of any Resolution or Resolutions relating to such series,
certified by the secretary of each of the Issuer and the Guarantor;
(2) an executed supplemental indenture, if any, relating thereto;
(3) an Officers' Certificate of the Issuer setting forth the form and
terms of the Securities as required pursuant to Sections 2.1 and 2.5,
respectively, and prepared in accordance with the requirements of the Trust
Indenture Act of 1939 and Section 14.5;
(4) an Opinion of Counsel, prepared in accordance with the
requirements of the Trust Indenture Act of 1939 and Section 14.5, which
shall state that (i) if the form of such Securities has been established by
or pursuant to a Resolution of the Issuer as permitted by Section 2.1, that
such form or forms, as the case may be, have been established in conformity
with the provisions of this Indenture, and that the terms of such
Securities have been established by or pursuant to a Resolution of the
Issuer as permitted by Section 2.6 in conformity with the provisions of
this Indenture and that the authentication and delivery of such Securities
by the Trustee is authorized under the provisions of this Indenture and
(ii) that such Securities, when authenticated and delivered by the Trustee
and issued by the Issuer in the manner and subject to any conditions
specified in such Opinion of Counsel will constitute valid and legally
binding obligations of the Issuer, enforceable in accordance with their
terms, except as the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting the enforcement
of creditors' rights generally and to general principles of equity
regardless of whether the issue of enforceability is considered in a
proceeding in equity or at law; and
(5) an Opinion of Counsel, prepared in accordance with the
requirements of the Trust Indenture Act of 1939 and Section 13.5, which
shall state that the Guaranty endorsed upon such Securities, when such
Securities are authenticated and delivered by the Trustee and issued by the
Issuer in the manner and subject to any conditions specified in such
Opinion of Counsel, will constitute the valid and legally binding
obligation of the Guarantor, enforceable in accordance with its terms,
except as the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting the enforcement
of creditors' rights generally and to general principles of equity,
regardless of whether the issue of enforceability is considered in a
proceeding in equity or at law.
The Trustee shall have the right to decline to authenticate and
deliver any Securities under this Section if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken by the Issuer or
if the Trustee in good faith by its board of directors or board of trustees,
executive committee, or a trust committee of directors or trustees and/or
Responsible Officers shall determine that such action would expose the Trustee
to liability to existing Holders or would adversely affect the Trustee's own
rights, duties or immunities under this Indenture or otherwise.
The Trustee shall not be required to authenticate Securities
denominated in a coin or currency other than that of the United States of
America if the Trustee reasonably determines that such Securities impose duties
or obligations on the Trustee which the Trustee is not able or reasonably
willing to accept; provided that the Trustee, upon the request of the Issuer,
will resign as Trustee with respect to Securities of any series as to which such
a determination is made, prior to the issuance of such Securities, and will
comply with the request of the Issuer to execute and deliver a supplemental
indenture appointing a successor Trustee pursuant to Section 7.1.
If the Issuer shall establish pursuant to Section 2.6 that the
Securities of a series or a tranche are to be issued in the form of one or more
Global Securities, then the Issuer shall execute and the Trustee shall, in
accordance with this Section and the order of the Issuer with respect to such
series, authenticate and deliver one or more Global Securities, in each case
with the Guaranty endorsed thereon executed by the Guarantor, that (i) shall
represent and shall be denominated in an amount equal to the aggregate principal
amount of all of the Securities of such series or such tranche, as the case may
be, issued and not yet canceled, (ii) shall be registered in the name of the
Depositary for such Global Security or Securities or the nominee of such
Depositary, (iii) shall be delivered by the Trustee to such Depositary or
pursuant to such Depositary's instructions and (iv) shall bear such legend, if
any, as shall be required by the Depositary.
Each Depositary of a Global Security designated pursuant to Section
2.6 must, at the time of its designation and at all times while it serves as
Depositary hereunder, be a clearing agency registered under the Exchange Act and
any other applicable statute or regulation.
SECTION 2.8 Execution of Securities. The Securities shall be signed in
the name of the Issuer by its president or any vice president of the Issuer.
Such signatures may be the manual or facsimile signatures of the present or any
future such officers. Typographical and other minor errors or defects in any
such reproduction of any such signature shall not affect the validity or
enforceability of any Security that has been duly authenticated and delivered by
the Trustee.
In case any officer of the Issuer who shall have signed any of the
Securities shall cease to be such officer before the Security so signed shall be
authenticated and delivered by the Trustee or disposed of by the Issuer, such
Security nevertheless may be authenticated and delivered or disposed of as
though the person who signed such Security had not ceased to be such officer of
the Issuer; and any Security may be signed in the name of the Issuer by such
persons as, at the actual date of the execution of such Security, shall be the
proper officers of the Issuer, although at the date of the execution and
delivery of this Indenture any such person was not such an officer.
SECTION 2.9 Certificate of Authentication. Unless a certificate of
authentication, substantially in the form hereinbefore recited set forth on a
Security has been executed by the Trustee by the manual signature of one of its
authorized signatories, such Security shall not be entitled to any benefits
under this Indenture and neither such Security nor the Guaranty endorsed thereon
shall be valid or obligatory for any purpose. Such certificate by the Trustee
upon any Security executed by the Issuer shall be conclusive evidence that the
Security so authenticated has been duly authenticated and delivered hereunder
and that the Holder is entitled to the benefits of this Indenture.
SECTION 2.10 Execution and Delivery of Guaranty. To evidence the
Guaranty to the Securityholders hereunder, the Guaranty, substantially in the
form provided in Section 2.4, shall be endorsed on each Security authenticated
and delivered hereunder. The Guaranty endorsed upon each such Security shall be
signed in the name of the Guarantor by the president or any executive vice
president of the Guarantor. Such signature may be the manual or facsimile
signature of the present or any future such officers. Typographical and other
minor errors or defects in any such reproduction of any such signature shall not
affect the validity or enforceability of the Guaranty endorsed upon any Security
that has been duly authenticated and delivered by the Trustee.
In case any officer of the Guarantor who shall have signed any
Guaranty shall cease to hold such office before the Security on which such
Guaranty is endorsed shall be authenticated and delivered by the Trustee or
disposed of by the Issuer, such Security nevertheless may be authenticated and
delivered or disposed of as though the person who signed such Guaranty had not
ceased to hold such office of the Guarantor; and the Guaranty on any Security
may be signed in the name of the Guarantor by such persons as, at the actual
date of the execution of such Guaranty, shall be the proper officers of the
Guarantor, although at the date of the execution and delivery of this Indenture
any such person was not such an officer.
SECTION 2.11 Denomination and Date of Securities; Payments of
Interest. The Securities of each series shall be issuable as registered
Securities without coupons and in denominations as shall be specified as
contemplated by Section 2.6. In the absence of any such specification with
respect to the Securities of any series, the Securities of such series shall be
issuable in denominations of U.S.$1,000 (or, if such Securities are denominated
in a currency other than U.S. dollars or in a composite currency, 1,000 units of
such other currency or composite currency) and any multiple thereof. The
Securities of each series shall be numbered, lettered or otherwise distinguished
in such manner or in accordance with such plan as the officers of the Issuer
executing the same may determine with the approval of a Responsible Officer of
the Trustee as evidenced by the execution and authentication thereof.
Each Security shall be dated the date of its authentication, shall
bear interest, if any, from the date, and shall be payable on the dates, in each
case, which shall be specified as contemplated by Section 2.6.
Except as otherwise specified for a particular series pursuant to
Section 2.6, the person in whose name any Security of any series is registered
at the close of business on any record date (as hereinafter defined) applicable
to a particular series with respect to any interest payment date for such series
shall be entitled to receive the interest, if any, payable on such interest
payment date notwithstanding the cancellation of such Security upon any
registration of any transfer or exchange of such Security subsequent to the
record date and prior to such interest payment date, except if and to the extent
the Issuer shall default in the payment of the interest due on such interest
payment date for such series, in which case such defaulted interest shall be
paid to the persons in whose names Outstanding Securities of such series are
registered at the close of business on a subsequent record date (which shall be
not less than five days prior to the date of payment of such defaulted interest)
established by notice given by mail by or on behalf of the Issuer to the Holders
of Securities not less than 15 days preceding such subsequent record date. The
term "record date" as used with respect to any interest payment date (except a
date for payment of defaulted interest) shall mean the date specified as such in
the terms of the Securities of any particular series, or, if no such date is so
specified, if such interest payment date is the first day of a calendar month,
the fifteenth day of the next preceding calendar month or, if such interest
payment date is the fifteenth day of a calendar month, the first day of such
calendar month, whether or not such record date is a Business Day.
SECTION 2.12 Registration, Transfer and Exchange. The Issuer will
keep, either at the office or agency designated and maintained by the Issuer for
such purpose in the Borough of Manhattan, The City of New York, in accordance
with the provisions of Section 3.2, or at any of such other offices or agencies
as may be designated and maintained in accordance with the provisions of Section
3.2, a register or registers in which, subject to such reasonable regulations as
it may prescribe, it will register, and will register the transfer of,
Securities of a series as in this Article provided. Such register shall be in
written form in the English language or in any other form capable of being
converted into such form within a reasonable time. At all reasonable times such
register or registers shall be open for inspection by the Trustee and any
Security registrar (as defined below) other than the Trustee.
Upon due presentation for registration of transfer of any Security of
any series at any such office or agency to be maintained for the purpose as
provided in Section 3.2, the Issuer shall execute (in each case with the
Guaranty endorsed thereon executed by the Guarantor) and the Trustee shall
authenticate and make available for delivery in the name of the transferee or
transferees a new Security or Securities of the same series in authorized
denominations for a like aggregate principal amount and having the same interest
rate, maturity and repayment and redemption provisions.
Any Security or Securities of any series (other than a Global
Security, except as set forth below) may be exchanged for a Security or
Securities of the same series in other authorized denominations, in an equal
aggregate principal amount and having the same interest rate, maturity,
redemption and repayment provisions. Securities of any series to be exchanged
shall be surrendered at any office or agency to be maintained by the Issuer for
the purpose as provided in Section 3.2, and the Issuer shall execute (in each
case with the Guaranty endorsed thereon executed by the Guarantor) and the
Trustee shall authenticate and make available for delivery in exchange therefor
the Security or Securities of the same series and having the same interest rate,
maturity and repayment and redemption provisions which the Securityholder making
the exchange shall be entitled to receive, bearing numbers or other
distinguishing symbols not contemporaneously outstanding. Each person designated
by the Issuer pursuant to the provisions of Section 3.2 as a person authorized
to register, and register transfer of, the Security is sometimes herein referred
to as a "Security registrar".
The Issuer will at all times designate one person (who may be the
Issuer and who need not be a Security registrar) to act as repository of a
master list of names and addresses of the Holders of the Securities (the
"Register"). The Trustee shall act as such repository unless and until some
other person is, by written notice from the Issuer to the Trustee and each
Security registrar, designated by the Issuer to act as such. The Issuer shall
cause each Security registrar to furnish to such repository, on a current basis,
such information as to all registrations of transfer and exchanges effected by
such registrar, as may be necessary to enable such repository to maintain the
Register on as current a basis as is practicable.
No person shall at any time be designated as or act as a Security
registrar unless such person is at such time empowered under applicable law to
act as such and duly registered to act as such under and to the extent required
by applicable law and regulations.
All Securities presented for registration of transfer, exchange,
redemption or payment shall (if so required by the Issuer or the Trustee) be
duly endorsed by, or be accompanied by a written instrument or instruments of
transfer or exchange in form satisfactory to the Issuer and the Trustee duly
executed by, the Securityholder or his attorney duly authorized in writing.
The Issuer may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any exchange or
registration of transfer of Securities, other than exchanges pursuant to Section
2.15, 7.5 or 10.3 not involving any registration of transfer. No service charge
shall be made for any such transaction.
The Issuer shall not be required to exchange or register a transfer of
(a) any Securities of any series for a period of 15 days next preceding the
selection of Securities of that series to be redeemed, or (b) any Securities
selected, called or being called for redemption or surrendered for repayment in
whole or in part except, in the case of any Security to be redeemed or repaid in
part, the portion thereof not so to be redeemed or repaid.
Notwithstanding any other provision of this Section 2.12, unless and
until it is exchanged in whole or in part for Securities in definitive
registered form, a Global Security representing all or a portion of the
Securities of a series may not be transferred except as a whole by the
Depositary for such series to a nominee of such Depositary or by a nominee of
such Depositary to such Depositary or another nominee of such Depositary or by
such Depositary or any such nominee to a successor Depositary for such series or
a nominee of such successor Depositary.
If at any time the Depositary for any Securities of a series
represented by one or more Global Securities notifies the Issuer that it is
unwilling or unable to continue as Depositary for such Securities or if at any
time the Depositary for such Securities shall no longer be eligible under
Section 2.7, the Issuer shall appoint a successor Depositary with respect to
such Securities. If a successor Depositary for such Securities is not appointed
by the Issuer within 90 days after the Issuer receives such notice or becomes
aware of such ineligibility, the Issuer's election pursuant to Section 2.6 that
such Securities be represented by one or more Global Securities shall no longer
be effective and the Issuer will execute, and the Trustee, upon receipt of an
Officers' Certificate for the authentication and delivery of definitive
Securities of such series, will authenticate and make available for delivery
definitive Securities of the same series, in any authorized denominations, in an
aggregate principal amount equal to the principal amount of the Global Security
or Securities representing such Securities, in exchange for such Global Security
or Securities.
The Issuer may at any time, and in its sole discretion, determine that
Securities issued in the form of one or more Global Securities shall no longer
be represented by a Global Security or Securities. In such event the Issuer will
execute, and the Trustee, upon receipt of an Officers' Certificate for the
authentication and delivery of definitive Securities, will authenticate and make
available for delivery definitive Securities of the same series, in any
authorized denominations, in an aggregate principal amount equal to the
principal amount of the Global Security or Securities, in exchange for such
Global Security or Securities.
If specified by the Issuer pursuant to Section 2.6 with respect to
Securities represented by a Global Security, the Depositary for such Global
Security may surrender such Global Security in exchange in whole or in part for
definitive Securities of the same series on such terms as are acceptable to the
Issuer and such Depositary. Thereupon, the Issuer shall execute, with the
Guaranty thereon executed by the Guarantor, and the Trustee shall authenticate
and make available for delivery, without service charge:
(i) to the person specified by such Depositary, a new Security or
Securities of the same series, of any authorized denominations as requested
by such person, in an aggregate principal amount equal to and in exchange
for such person's beneficial interest in the Global Security; and
(ii) to such Depositary a new Global Security in a denomination equal
to the difference, if any, between the principal amount of the surrendered
Global Security and the aggregate principal amount of Securities
authenticated and delivered pursuant to clause (i) above.
Upon the exchange of a Global Security for definitive Securities, in
authorized denominations, such Global Security shall be canceled by the Trustee
or an agent of the Issuer, the Guarantor or the Trustee. Definitive Securities
issued in exchange for a Global Security pursuant to this Section 2.12 shall be
registered in such names and in such authorized denominations as the Depositary
for such Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee or an agent of the Issuer,
the Guarantor or the Trustee. The Trustee or such agent shall make such
Securities available for delivery to or as directed by the persons in whose
names such Securities are so registered.
SECTION 2.13 Mutilated, Defaced, Destroyed, Lost and Stolen
Securities. In case any temporary or definitive Security shall become mutilated,
defaced or be destroyed, lost or stolen and, in the absence of notice to the
Issuer or the Trustee that any destroyed, lost or stolen Security has been
acquired by a bona fide purchaser, the Issuer may in its discretion execute
(with the Guaranty endorsed thereon executed by the Guarantor) and the Trustee
shall authenticate and make available for delivery, a new Security of the same
series and of like tenor, bearing a number or other distinguishing symbol not
contemporaneously Outstanding, in exchange and substitution for the mutilated or
defaced Security, or in lieu of and substitution for the Security so destroyed,
lost or stolen. In every case the applicant for a substitute Security shall
furnish to the Issuer, the Guarantor and the Trustee (and any agent of the
Issuer, the Guarantor or Trustee, if requested in writing by the Issuer or the
Guarantor) such security or indemnity as may be required by them to indemnify
and defend and to save each of them harmless and, in every case of destruction,
loss or theft, evidence to their satisfaction of the destruction, loss or theft
of such Security and of the ownership thereof.
Upon the issuance of any substitute Security, the Issuer may require
the payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto and any other expenses (including the
fees and expenses of the Trustee) connected therewith.
In case any Security that has matured or is about to mature or has
been called for redemption in full shall become mutilated or defaced or be
destroyed, lost or stolen, the Issuer in its discretion may instead of issuing a
substitute Security, pay or authorize the payment of the same (without surrender
thereof except in the case of a mutilated or defaced Security), if the applicant
for such payment shall furnish to the Issuer, the Guarantor and the Trustee (and
any agent of the Issuer, the Guarantor or Trustee, if requested by the Issuer or
the Guarantor) such security or indemnity as any of them may require to
indemnify and defend and to save each of them harmless, and, in every case of
destruction, loss or theft, evidence to their satisfaction of the destruction,
loss or theft of such Security and of the ownership thereof.
Every substituted Security of any series and the Guaranty endorsed
thereon issued pursuant to the provisions of this Section by virtue of the fact
that any such Security is destroyed, lost or stolen shall constitute an
additional contractual obligation of the Issuer and the Guarantor, respectively,
whether or not the destroyed, lost or stolen Security shall be at any time
enforceable by anyone and shall be entitled to all the benefits of (but shall be
subject to all the limitations of rights set forth in) this Indenture equally
and proportionately with any and all other Securities of such series duly
authenticated and delivered hereunder. All Securities shall be held and owned
upon the express condition that, to the extent permitted by law, the foregoing
provisions are exclusive with respect to the replacement or payment of
mutilated, defaced or destroyed, lost or stolen Securities and shall preclude
any and all other rights or remedies notwithstanding any law or statute existing
or hereafter enacted to the contrary with respect to the replacement or payment
of negotiable instruments or other securities without their surrender.
SECTION 2.14 Cancellation of Securities Paid, etc. All Securities
surrendered for the purpose of payment, redemption, registration of transfer,
conversion or exchange, or for credit against any payment in respect of a
sinking or analogous fund, if surrendered to the Issuer, any Security registrar,
any paying agent, the Conversion Agent or any other agent of the Issuer or any
agent of the Trustee, shall be delivered to the Trustee and promptly canceled by
it or, if surrendered to the Trustee, shall be promptly canceled by it; and no
Securities shall be issued in lieu thereof except as expressly permitted by any
of the provisions of this Indenture. The Trustee shall deliver canceled
Securities to the Issuer. If the Issuer shall acquire any of the Securities,
such acquisition shall not operate as a redemption or satisfaction of the
indebtedness represented by such Securities unless and until the same are
delivered to the Trustee for cancellation.
SECTION 2.15 Assumption by Guarantor. The Guarantor may, without the
consent of the Securityholders, assume all of the covenants, agreements, rights
and obligations of the Issuer hereunder with respect to any series of Securities
and under the Securities of such series if, after giving effect to such
assumption, no Event of Default shall have occurred and be continuing. Upon such
an assumption, the Guarantor shall execute a supplemental indenture evidencing
its assumption of all such rights and obligations of the Issuer and the Issuer
shall be released from its liabilities hereunder and under such Securities as
obligor on the Securities of such series.
SECTION 2.16 Temporary Securities. Pending the preparation of
definitive Securities for any series, the Issuer may execute (with the Guaranty
endorsed thereon executed by the Guarantor), and the Trustee shall authenticate
and make available for delivery temporary Securities for such series (printed,
lithographed, typewritten or otherwise reproduced). Temporary Securities of any
series shall be issuable as registered Securities without coupons, in any
authorized denomination, and substantially in the form of the definitive
Securities of such series in lieu of which they are issued but with such
omissions, insertions and variations as may be appropriate for temporary
Securities, all as may be determined by the Issuer and the Guarantor. Temporary
Securities may contain such reference to any provisions of this Indenture as may
be appropriate. Every temporary Security shall be authenticated by the Trustee
upon the same conditions and in substantially the same manner, and with like
effect, as the definitive Securities in lieu of which they are issued. Without
unreasonable delay, and in no case more than 60 days after the issuance of such
temporary Securities, the Issuer shall execute definitive Securities of such
series and the Issuer shall furnish (with, in each case, the Guaranty endorsed
thereon executed by the Guarantor) such definitive securities and thereupon
temporary Securities of such series may be surrendered in exchange therefor
without charge at each office or agency to be maintained by the Issuer for that
purpose pursuant to Section 3.2, and the Trustee shall authenticate and make
available for delivery in exchange for such temporary Securities of such series
a like aggregate principal amount of definitive Securities of the same series of
authorized denominations having the same interest rate, maturity and redemption
and repayment provisions, and bearing interest from the same date as such
temporary Securities. Until so exchanged, the temporary Securities of any series
shall be entitled to the same benefits under this Indenture as definitive
Securities of the same series authenticated and delivered hereunder.
SECTION 2.17 CUSIP Numbers. The Issuer in issuing the Securities may
use "CUSIP" or "ISIN" numbers (if then generally in use), and, if so, the
Trustee shall use "CUSIP" or "ISIN" numbers in notices of redemption as a
convenience to Securityholders; provided that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any defect in or
omission of such numbers. The Issuer shall promptly notify the Trustee of any
change in the CUSIP or ISIN numbers.
SECTION 2.18 Form of Election to Convert. The notice of conversion to
be delivered by a Holder to the Conversion Agent in connection with the
conversion of Securities of any series that are convertible into Parent Shares
shall be in substantially the following form, with such appropriate insertions,
omissions, substitutions and other variations as are deemed necessary or
appropriate by the Guarantor or the Trustee:
NOTICE OF CONVERSION
The undersigned Holder of the Securities specified below hereby
irrevocably exercises the option to convert such Securities, or the aggregate
principal amount thereof specified below, into Common Shares of the Guarantor
("Parent Common Shares") or American Depositary Shares evidencing such Parent
Common Shares ("Parent ADSs" and, together with such Parent Common Shares, the
"Parent Shares"), as indicated below, in accordance with the terms of the
Securities and the Indenture dated as of _______, (the "Indenture") among Ahold
Finance U.S.A., Inc., as Issuer, Koninklijke Ahold N.V., as Guarantor, and The
Bank of New York, as Trustee, and directs that (i) if such Holder is electing to
receive Parent Common Shares, the Parent Common Shares issuable and deliverable
upon conversion be delivered to such Holder through Nederlands Centraal
Instituut voor Giraal Effectenverkeer and (ii) if such Holder elects to receive
Parent ADSs, the Parent American Depositary Receipts evidencing such Parent ADSs
issuable and deliverable on conversion be issued in the name of and delivered to
the undersigned unless otherwise indicated below and, in either case, any check
in payment for fractional Parent Shares be issued in the name of and delivered
to the undersigned unless a different name has been indicated below. If Parent
ADSs are to be issued in the name of a person other than the undersigned, the
undersigned has paid all transfer taxes payable with respect thereto. All
capitalized terms used herein and not defined herein shall have the meanings
specified in the Indenture.
Dated:
-------------------------------
Signature (for Conversion only)
Title of Securities:
Certificate Number(s)
(if applicable):
Aggregate Principal Amount
Represented:(1)
Principal Amount to be
Converted:(2)
(1) Unless otherwise specified, a Holder will be deemed to be converting the
entire principal amount of the
Securities delivered.
(2) Certificate registered in the name of the Holder will be issued in the
principal amount of the Securities not converted, unless otherwise
provided.
Indicate Parent Shares to be issued:
(_) Parent Common Shares
(_) Parent American Depositary Shares
If ADSs are to be received and
are to be issued otherwise
than to Holder:
- -------------------------
Please print name and address
If check for fractional Parent Shares to be issued otherwise than to Holder:
- -------------------------
Please print name and address
Please print name and address of Holder
- ------------------------
- ------------------------
Signature Guarantee: ________________________
ARTICLE THREE
COVENANTS OF THE ISSUER AND THE GUARANTOR
SECTION 3.1 Payment of Principal and Interest. The Issuer covenants
and agrees for the benefit of each series of Securities that it will duly and
punctually pay or cause to be paid the principal of and interest, if any, on
each of the Securities of such series at the place or places, at the respective
times and in the manner provided in such Securities, but in no event later than
10 a.m., New York time, on the respective payment date. The Issuer shall request
that the bank, through which any such payment is to be made, agree to supply to
the Trustee two Business Days prior to the due date for any such payment an
irrevocable confirmation (by tested telefax or authenticated SWIFT MT 100
Message) of its intention to make such payment. Except as otherwise provided
pursuant to Section 2.6 for Securities of any series, each installment of
interest on the Securities of any series may be paid by mailing checks for such
interest payable to the person entitled thereto as such addresses shall appear
in the Register.
SECTION 3.2 Offices for Payments, etc. So long as any of the
Securities remain outstanding, the Issuer will designate and maintain in the
Borough of Manhattan, The City of New York, for each series: (a) an office or
agency where the Securities may be presented for payment, (b) if the Securities
of such series are convertible into Parent Shares, an office or agency where the
Securities may be presented for conversion into Parent Shares (hereinafter the
"Conversion Agent", which term shall include any additional Conversion Agents as
may be appointed by the Issuer), (c) an office or agency where the Securities
may be presented for registration of transfer and for exchange as in this
Indenture provided and (d) an office or agency where notices and demands to or
upon the Issuer in respect of the Securities or of this Indenture may be served.
In addition to such office or offices or agency or agencies, the Issuer may from
time to time designate and maintain one or more additional offices or agencies
within or outside the Borough of Manhattan, The City of New York, where the
Securities of that series may be presented for payment or for registration of
transfer or for exchange, and the Issuer may from time to time rescind such
designation, as it may deem desirable or expedient. The Issuer will give to the
Trustee written notice of the location of any such office or agency and of any
change of location thereof. The Issuer hereby designates the New York Location
and the Corporate Trust Office as the initial offices to be maintained by it for
such purposes. In case the Issuer shall fail to maintain any such office or
agency or shall fail to give such notice of the location or of any change in the
location thereof, presentations and demands may be made and notices may be
served at the Corporate Trust Office and the Issuer appoints the Trustee as its
agent to receive all such presentations, surrenders, notices and demands.
SECTION 3.3 Paying Agents. Whenever the Issuer shall appoint a paying
agent or agents other than the Trustee with respect to the Securities of any
series, it will cause each such paying agent to execute and deliver to the
Trustee an instrument in which each such paying agent shall agree with the
Trustee, subject to the provisions of this Section,
(a) that it will hold all sums received by it as such agent for the
payment of the principal of or interest, if any, on the Securities of such
series (whether such sums have been paid to it by the Issuer or by any
other obligor on the Securities of such series) in trust for the benefit of
the persons entitled thereto until such sums shall be paid to such persons
or otherwise disposed of as herein provided,
(b) that it will give the Trustee written notice of any default by the
Issuer (or by any other obligor on the Securities of such series) to make
any payment of the principal of or interest, if any, on the Securities of
such series when the same shall be due and payable, and
(c) that, at any time during the continuance of any such default
referred to in clause (b) above, upon the written request of the Trustee,
it will forthwith pay to the Trustee all sums so held in trust by such
paying agent.
Whenever the Issuer shall have one or more paying agents with respect
to Securities of any series, it will, prior to each due date of the principal of
or interest, if any, on the Securities of such series, deposit with a designated
paying agent a sum sufficient to pay such principal or interest, if any, so
becoming due, such sum to be held in trust for the benefit of the persons
entitled to such principal or interest, if any, and (unless such paying agent is
the Trustee) the Issuer will promptly notify a Responsible Officer of the
Trustee of any failure to take such action.
If the Issuer shall act as its own paying agent with respect to the
Securities of any series, it will, on or before each due date of the principal
of or interest, if any, on the Securities of such series, set aside, segregate
and hold in trust for the benefit of the persons entitled to such principal and
interest, if any, a sum sufficient to pay such principal or interest, if any, so
becoming due until such sums shall be paid to such persons or otherwise disposed
of as herein provided. The Issuer will promptly notify a Responsible Officer of
the Trustee of any failure to take such action.
Anything in this Section to the contrary notwithstanding, the Issuer
may at any time, for the purpose of obtaining a satisfaction and discharge with
respect to one or more or all series of Securities hereunder, or for any other
reason, pay or cause to be paid to the Trustee all sums held in trust for any
such series by the Issuer or any paying agent hereunder, as required by this
Section, such sums to be held by the Trustee upon the trusts herein contained.
Anything in this Section to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section is subject to the
provisions of Sections 9.3 and 9.4.
SECTION 3.4 Limitation on Liens. The Guarantor covenants and agrees
for the benefit of each series of Securities that, so long as any Securities of
any series remain outstanding, neither the Guarantor nor any of its Subsidiaries
will secure any Public Debt or Private Debt, now or hereafter existing, by any
lien, pledge or other charge upon any of its present or future assets or
revenues. The foregoing shall not apply to (i) any security arising solely by
mandatory operation of law, (ii) any security over assets existing at the time
of acquisition thereof, (iii) any security comprised within the assets of any
company merged with the Guarantor or any of its Subsidiaries where such security
is created prior to the date of such merger, (iv) any security over assets
pursuant to the general terms and conditions of a bank (for example, in the form
prepared by the Dutch Bankers Association (Algemene Bankvoorwaarden)), if and in
so far as applicable, (v) any guarantee issued by the Guarantor or any of its
Subsidiaries in the ordinary course of its business and (vi) any security upon
any Margin Stock. Any guarantee issued by the Guarantor or any of its
Subsidiaries other than in the ordinary course of its business that is secured
as aforesaid after the prior written consent thereto of a Responsible Officer of
the Trustee has been obtained.
SECTION 3.5 Notice of Default. The Issuer and the Guarantor shall file
with a Responsible Officer of the Trustee written notice of the occurrence of
any default, Event of Default or event which, with notice or the lapse of time
or both, would constitute an Event of Default, setting forth the details of such
default, Event of Default or event which, with notice or the lapse of time or
both, would constitute an Event of Default, within five Business Days of any
officer of the Issuer or the Guarantor becoming aware of any such default or
Event of Default.
SECTION 3.6 Calculation of Original Issue Discount. The Issuer shall
file with the Trustee promptly at the end of each calendar year a written notice
specifying the amount of original issue discount (including daily rates and
accrual periods) accrued on Outstanding Securities as of the end of such year
and such other specific information relating to such original issue discount as
may then be required under the Internal Revenue Code of 1986, as amended from
time to time.
SECTION 3.7 Reports. Each of the Issuer and the Guarantor shall comply
with the provisions of ss. 314(a) of the Trust Indenture Act of 1939. The
Guarantor shall file with the Trustee within 45 days after it files them with
the Commission and in any event no later than 180 days after the end of the
respective fiscal quarter, copies of its annual report and of the information,
documents and other reports (or copies of such portions of any of the foregoing
as the Commission may by rules and regulations prescribe) which the Guarantor is
required to file with the Commission pursuant to Section 13 or 15(d) of the
Exchange Act. Delivery of such reports, information and documents to the Trustee
is for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Issuer's or the
Guarantor's compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officers' Certificates).
SECTION 3.8 Compliance Certificates. (a) On or before April 15 in each
year (commencing with the first April 15 which is not less than 60 days
following the first date of issuance of Securities of any series under this
Indenture), each of the Issuer and the Guarantor will file with a Responsible
Officer of the Trustee a brief certificate, signed by its principal executive
officer, principal financial officer or principal accounting officer, stating
whether or not the signer has knowledge of any default by the Issuer or the
Guarantor, respectively, in the performance or fulfillment of any covenant,
agreement, or condition contained in this Indenture, and, if so, specifying each
such default of which the signer has knowledge, the nature thereof, and what
action, if any, has been taken and is proposed to be taken to cure such default.
For purposes of this paragraph, such compliance shall be determined without
regard to any period of grace or requirement of notice provided under this
Indenture.
(b) The Issuer and the Guarantor also shall comply with the other
provisions of ss. 314(a) of the Trust Indenture Act of 1939.
ARTICLE FOUR
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
SECTION 4.1 Events of Default. "Event of Default" with respect to
Securities of a particular series wherever used herein, means any one of the
following events and such other events as may be established with respect to the
Securities of such series as contemplated by Section 2.6, continued for the
period of time, if any, and after the giving of notice, if any, designated in
this Indenture or as may be established with respect to such Securities as
contemplated by Section 2.6, as the case may be, unless such event is either
inapplicable or is specifically deleted or modified in, or pursuant to, the
applicable Resolution or in the supplemental indenture under which such series
of Securities is issued, as the case may be, as contemplated by Section 2.6:
(a) default in the payment of any installment of interest on the
Securities of such series or any Additional Amounts under the Guaranty
relating to the Securities of such series as and when the same shall become
due and payable, and continuance of such default for a period of 30 days;
or
(b) default in the payment of the principal of (and premium, if any,
on) any of the Securities of such series as and when the same shall become
due and payable either at maturity, upon redemption, by declaration or
otherwise and the continuance of such default for a period of 30 days; or
(c) default in the payment of any sinking fund installment as and when
the same shall become due and payable by the terms of the Securities of
such series and the continuance of such default for a period of 30 days; or
(d) default in the performance of any other of the covenants or
agreements on the part of the Issuer or the Guarantor in respect of the
Securities of such series contained in this Indenture and, if such default
is capable of being remedied, the continuance of such default for a period
of 30 days after there has been given, by registered or certified mail, to
the Issuer and the Guarantor by the Trustee or to the Issuer, the Guarantor
and a Responsible Officer of the Trustee by the Holders of at least 25% in
principal amount of the Outstanding Securities of such series, a written
notice specifying such default and requiring it to be remedied and stating
that such notice is a "Notice of Default" hereunder; or
(e) the Issuer or the Guarantor or one or more of the Major
Subsidiaries defaults in the payment of the principal of, or interest on,
any other obligation in respect of Borrowed Moneys of, assumed or
guaranteed by, the Issuer or the Guarantor and/or one or more of the Major
Subsidiaries, as the case may be, when and as the same shall become due and
payable, if such default shall continue for more than the period of grace,
if any, applicable thereto and the time for payment of such interest, or
principal, has not been effectively extended, or if any obligation in
respect of Borrowed Moneys of, or assumed or guaranteed by, the Issuer or
the Guarantor and/or one or more of the Major Subsidiaries shall have
become repayable before the due date thereof as a result of acceleration of
maturity by reason of the occurrence of any event of default thereunder;
provided that if such obligation in respect of Borrowed Moneys is held by
any Holder (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 Issuer or the Guarantor or one or more of
its Subsidiaries in complying with a restriction contained in the
documentation governing such obligation on the ability of the Issuer or the
Guarantor 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 an Event of Default; or
(f) the Issuer pursuant to or within the meaning of any Bankruptcy
Law:
(i) commences a voluntary case; or
(ii) consents to the entry of an order for relief against it in
an involuntary case; or
(iii) consents to the appointment of a Custodian of it or for any
substantial part of its property; or
(iv) makes a general assignment for the benefit of its creditors;
or
(v) ceases or suspends generally payments of its debts or
announces an intention so to do or is (or is deemed for the purposes
of any law applicable to it to be) unable to pay its debts as they
fall due, or makes a general assignment for the benefit of or a
composition with its creditors generally or a moratorium is declared
in respect of any of its Indebtedness; or
(g) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(i) is for relief against the Issuer in an involuntary case; or
(ii) appoints a Custodian of the Issuer or for any substantial
part of its property; or
(iii) orders the winding up or liquidation of the Issuer; or
(iv) orders any execution of distress in respect of any material
liability to be levied against the Issuer or an encumbrancer takes
possession of the whole or any material part of, the property,
undertaking, or assets of the Issuer,
and the order or decree remains unstayed and in effect for 60 days; or
(h) there shall have occurred the dissolution and liquidation
(ontbinding en vereffening) of the Guarantor 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 dissolution and liquidation of
the Guarantor or the Guarantor shall otherwise enter into liquidation;
or
(i) the Guarantor 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 Guarantor or of all or any part of the assets of the Guarantor; or
(j) the Guarantor applies for a moratorium or suspension of
payments (surseance van betaling) or for an arrangement with its
creditors or for any proceedings or arrangement by which the assets of
the Guarantor are submitted to the control of its creditors or the
Guarantor otherwise threatens, proposes or declares any moratorium on
its debts or any class of its debts; or
(k) the Guarantor becomes, or is declared by any competent
authority to be, bankrupt (failliet) or admits in writing its
inability to pay its debts as they fall due or is or becomes subject
to or applies for protection in any bankruptcy proceedings
(faillissement); or
(l) the Guaranty ceases to be in full force and effect (except as
contemplated by the terms thereof) or the Guarantor denies or
disaffirms its obligations under the Guaranty.
If an Event of Default with respect to any series of Securities at the
time Outstanding occurs and is continuing, then, and in each and every such
case, unless the principal of all of the Securities of such series shall have
already become due and payable, either the Trustee or the Holders of not less
than 25% in aggregate principal amount of the Outstanding Securities of such
series, by notice in writing to the Issuer and the Guarantor (and to the Trustee
if given by Securityholders), may declare the entire principal amount (or, if
the Securities of such series are Original Issue Discount Securities, such
portion of the principal as may be specified in the terms of such series or if
so provided pursuant to Section 2.6 for Securities of any series, such other
amount as is specified pursuant thereto) of all of the Securities of such series
and the interest accrued thereon, if any, to be due and payable immediately, and
upon any such declaration the same shall become immediately due and payable;
provided, however, that the payment of the principal of and premium, if any, and
interest, if any, on the Securities of such series shall remain subordinated to
the extent provided in Article Twelve hereof, and the Guarantor's obligations
under the Guaranty shall remain subordinated to the extent provided in Article
Thirteen hereof.
The foregoing provisions, however, are subject to the condition that
if, at any time after the principal (or, if the Securities are Original Issue
Discount Securities, such portion of the principal as may be specified in the
terms thereof or if so provided pursuant to Section 2.6 for Securities of any
series, such other amount as is specified pursuant thereto) of the Securities of
any series shall have been so declared due and payable, and before any judgment
or decree for the payment of the moneys due shall have been obtained or entered
as hereinafter provided,
(a) the Issuer or the Guarantor shall pay or shall deposit with the
Trustee a sum sufficient to pay all matured installments of interest, if
any, upon all the Securities of such series and the principal of any and
all Securities of such series which shall have become due otherwise than by
such declaration of acceleration (with interest upon such principal and, to
the extent that payment of such interest is enforceable under applicable
law, on overdue installments of interest, if any, at the Overdue Rate
applicable to such series to the date of such payment or deposit), and all
amounts payable to the Trustee pursuant to Section 5.5, and
(b) any and all Events of Default under the Indenture with respect to
such series of Securities other than the non-payment of the principal of
such Securities which shall have become due by such declaration of
acceleration, shall have been cured, waived or otherwise remedied as
provided herein or provision shall have been made therefor to the
satisfaction of the Trustee,
then and in every such case the Holders of not less than a majority in aggregate
principal amount of the Securities of such series then Outstanding, by written
notice to the Issuer, the Guarantor and the Trustee, may rescind and annul such
declaration and its consequences with respect to such series, but no such
rescission and annulment shall extend to or shall affect any subsequent default
or shall impair any right consequent thereon.
For all purposes under this Indenture, if a portion of the principal
of any Original Issue Discount Securities shall have been accelerated and
declared due and payable pursuant to the provisions hereof, then, from and after
such declaration, unless such declaration has been rescinded and annulled, the
principal amount of such Original Issue Discount Securities shall be deemed, for
all purposes hereunder, to be such portion of the principal thereof as shall be
due and payable as a result of such acceleration, and payment of such portion of
the principal thereof as shall be due and payable as a result of such
acceleration, together with interest, if any, thereon and all other amounts
owing thereunder, shall constitute payment in full of such Original Issue
Discount Securities. If the Securities of any series provide the amount other
than the face amount thereof will be payable upon the maturity thereof or a
declaration of acceleration of the maturity thereof, for purposes of this
Section 4.1 the principal amount of such Securities shall be deemed to be such
amount as shall be due and payable upon the acceleration of the maturity
thereof, except as may otherwise be provided with respect to such Securities
pursuant to Section 2.6.
SECTION 4.2 Payment of Securities on Default; Suit Therefor. The
Issuer covenants that (a) in case a default shall be made in the payment of any
installment of interest on any of the Securities of any series as and when such
interest shall have become due and payable, and such default shall have
continued for a period of 30 days or (b) in case a default shall be made in the
payment of the principal of any of the Securities of any series as and when the
same shall have become due and payable, whether upon maturity of the Securities
of such series or upon redemption or by declaration or otherwise, or (c) in case
of a default in the making or satisfaction of any sinking fund payment or
analogous obligation when the same becomes due by the terms of the Securities of
any series -- then, upon demand of the Trustee, the Issuer will pay to the
Trustee for the benefit of the Holders of the Securities of such series the
whole amount then due and payable on all Securities of such series for principal
and interest, if any, as the case may be (with interest to the date of such
payment upon the overdue principal and, to the extent that payment of such
interest is enforceable under applicable law, on overdue installments of
interest, if any, at the Overdue Rate applicable to Securities of such series);
and in addition thereto, such further amount as shall be sufficient to cover the
costs and expenses of collection, and any further amounts payable to the Trustee
and its agents and counsel pursuant to Section 5.5.
Until such demand is made by the Trustee, the Issuer may pay the
principal of and interest, if any, on the Securities of any series to the
registered Holders, whether or not the principal of and interest, if any, on the
Securities of such series be overdue.
In case the Issuer shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any action or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceedings to judgment or final decree, and may enforce any such
judgment or final decree against the Issuer or other obligor upon such
Securities and collect in the manner provided by law out of the property of the
Issuer or other obligor upon such Securities, wherever situated, the moneys
adjudged or decreed to be payable.
In case there shall be pending proceedings for the liquidation, for
the bankruptcy or for the reorganization of the Issuer the Guarantor or any
other obligor upon the Securities of any series under applicable law, or in case
an administrator, bewindvoerder, Custodian, curator, sequestrator or other
similar officer shall have been appointed for or taken possession of the Issuer
or the Guarantor or of all or any part of the assets of the Issuer, the
Guarantor or any such obligor, or in case of any other similar judicial
proceedings relative to the Issuer, the Guarantor or other obligor upon the
Securities of any series, or to the creditors or property of the Issuer, the
Guarantor or such other obligor, the Trustee, irrespective of whether the
principal of any Securities shall then be due and payable as therein expressed
or by declaration or otherwise and irrespective of whether the Trustee shall
have made any demand pursuant to the provisions of this Section, shall be
entitled and empowered, by intervention in such proceedings or otherwise,
subject to the provisions of Article Twelve and Article Thirteen hereof:
(a) to file and prove a claim or claims for the whole amount of
principal (or, if the Securities of any series are Original Issue Discount
Securities or if the Securities of any series provide that an amount other
than the face thereof will or may be payable upon maturity thereof or upon
a declaration of acceleration thereof, such amount as may be due and
payable with respect to such series pursuant to a declaration in accordance
with Section 4.1) and interest, if any, owing and unpaid in respect of the
Securities of any series, and, in case of any judicial proceedings, to file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim
for any amounts payable to the Trustee pursuant to Section 5.5) and of the
Securityholders allowed in any judicial proceedings relating to the Issuer,
the Guarantor or other obligor upon the Securities of any series, or to the
creditors or property of the Issuer the Guarantor or such other obligor,
(b) unless prohibited by applicable law and regulations, to vote on
behalf of the Holders of the Securities of any series in any election of a
trustee or a standby trustee in arrangement, reorganization, liquidation or
other bankruptcy or insolvency proceedings or of a person performing
similar functions in comparable proceedings, and
(c) to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute all amounts received with
respect to the claims of the Securityholders and of the Trustee on their
behalf (after deduction of costs and expenses of collection, and any
further amounts payable to the Trustee pursuant to Section 5.5 and incurred
by it up to the date of distribution); and any administrator,
bewindvoerder, Custodian, curator, sequestrator, trustee or other similar
officer is hereby authorized by each of the Securityholders to make
payments to the Trustee, and, in the event that the Trustee shall consent
to the making of payments directly to the Securityholders, to pay to the
Trustee costs and expenses of collection, and any further amounts payable
to the Trustee pursuant to Section 5.5 and incurred by it up to the date of
distribution.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or vote for or accept or adopt on behalf of any
Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities of any series or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Securityholder in any such proceeding except, as aforesaid, to vote for the
election of a trustee in bankruptcy or similar person.
All rights of action and of asserting claims under this Indenture, or
under the Securities of any series, may be enforced by the Trustee without the
possession of any of the Securities of such series or the production thereof on
any trial or other proceedings relative thereto, and any such action or
proceedings instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment, shall be for the
ratable benefit of the Holders of the Securities in respect of which such action
was taken.
In any proceedings brought by the Trustee (and also any proceedings in
which a declaratory judgment of a court may be sought as to the interpretation
or construction of any provision of this Indenture to which the Trustee shall be
a party) the Trustee shall be held to represent all the Holders of the
Securities to which such proceedings relate, and it shall not be necessary to
make any Holders of such Securities parties to any such proceedings.
SECTION 4.3 Application of Moneys Collected by Trustee. Subject to the
provisions of Article Twelve and Article Thirteen hereof, any moneys collected
by the Trustee pursuant to this Article shall be applied in the following order
at the date or dates fixed by the Trustee and, in the case of distribution of
such moneys on account of principal or interest, upon presentation of the
several Securities in respect of which moneys have been collected and stamping
(or otherwise noting) thereon the payment, or issuing Securities in reduced
principal amounts in exchange for the presented Securities of like series (or,
in the case of Securities of a series issued in more than one tranche, of the
same tranche) and tenor if only partially paid, or upon surrender thereof if
fully paid:
FIRST: To the payment of amounts due to the Trustee pursuant to
Section 5.5;
SECOND: In case the principal of the Outstanding Securities in respect
of which moneys have been collected shall not have become and be then due
and payable, to the payment of interest, if any, on the Securities in
default in the order of the maturity of the installments of such interest,
with interest (to the extent that such interest has been collected by the
Trustee and to the extent permitted by applicable law) upon the overdue
installments of interest at the Overdue Rate applicable to such Securities,
such payments to be made ratably to the persons entitled thereto, without
discrimination or preference;
THIRD: In case the principal of the Outstanding Securities in respect
of which moneys have been collected shall have become and shall be then due
and payable by declaration or otherwise, to the payment of the whole amount
then owing and unpaid upon such Securities for principal and interest, if
any, with interest upon the overdue principal, and (to the extent that such
interest has been collected by the Trustee and to the extent permitted by
applicable law) upon overdue installments of interest, if any, at the
Overdue Rate applicable to such Securities; and in case such moneys shall
be insufficient to pay in full the whole amount so due and unpaid upon such
Securities, then to the payment of such principal and interest, if any,
without preference or priority of principal over interest, if any, or of
interest, if any, over principal, or of any installment of interest, if
any, over any other installment of interest, if any, or of any Security
over any other Security, ratably to the aggregate of such principal and
accrued and unpaid interest, if any; and
FOURTH: To the payment of the remainder, if any, to the Issuer or, to
the extent that such moneys were provided by the Guarantor, to the
Guarantor (as directed by it in an Officers' Certificate delivered to a
Responsible Officer of the Trustee), their respective successors and
assigns.
SECTION 4.4 Proceedings by Trustee. In case an Event of Default
hereunder has occurred, has not been waived and is continuing, the Trustee may
in its discretion proceed to protect and enforce the rights vested in it by this
Indenture by such judicial proceedings as are necessary to protect and enforce
any of such rights, either at law or in equity or otherwise, whether for the
specific enforcement of any covenant or agreement contained in this Indenture or
in aid of the exercise of any power granted in this Indenture or to enforce any
other legal or equitable right vested in the Trustee by this Indenture or by
law.
SECTION 4.5 Restoration of Rights on Abandonment of Proceedings. In
case the Trustee or any Securityholder shall have proceeded to enforce any right
under this Indenture and such proceedings shall have been discontinued or
abandoned for any reason, or shall have been determined adversely to the Trustee
or to such Securityholder, then and in every such case the Issuer, the
Guarantor, the Securityholder and the Trustee shall, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions and rights hereunder, and all rights, remedies and powers
of the Issuer, the Guarantor, the Trustee and the Securityholders shall continue
as though no such proceedings had been taken.
SECTION 4.6 Proceedings by Securityholders. No Holder of any Security
of any series shall have any right by virtue or by availing of any provision of
this Indenture to institute any action or proceeding at law or in equity or in
bankruptcy, moratorium of payments, liquidation or otherwise upon or under or
with respect to this Indenture, or for the appointment of an administrator,
bewindvoerder, Custodian, curator, sequestrator, or other similar officer or for
any other remedy hereunder, unless such Holder previously shall have given to
the Trustee written notice of default with respect to Securities of such series
and of the continuance thereof, as hereinbefore provided, and unless also the
Holders of not less than 25% in aggregate principal amount of the Securities of
such series then Outstanding shall have made written request upon the Trustee to
institute such action, suit or proceedings in its own name as Trustee hereunder
and shall have offered to the Trustee such indemnity as it may require against
the costs, expenses and liabilities to be incurred therein or thereby and the
Trustee for 60 days after its receipt of such notice, request and offer of
indemnity shall have neglected or refused to institute any such action, suit or
proceeding and no direction inconsistent with such written request shall have
been given to the Trustee pursuant to Section 4.8 during such 60 day period; it
being understood and intended, and being expressly covenanted by the taker and
Holder of every Security with every other taker and Holder and the Trustee, that
no one or more Holders of any Securities shall have any right in any manner
whatever by virtue or by availing of any provision of this Indenture to affect,
disturb or prejudice the rights of any other Holder of Securities, or to obtain
or seek to obtain priority over or preference to any other Holder or to enforce
any right under this Indenture, except in the manner herein provided and for the
equal, ratable and common benefit of all Holders of Securities of the applicable
series. For the protection and enforcement of the provisions of this Section,
each and every Securityholder and the Trustee shall be entitled to such relief
as can be given either at law or in equity.
SECTION 4.7 Remedies Cumulative and Continuing. Except as provided in
Section 4.6, no right or remedy herein conferred upon or reserved to the Trustee
or to the Securityholders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
No delay or omission of the Trustee or of any Securityholder to
exercise any right or power accruing upon any Event of Default occurring and
continuing as aforesaid shall impair any such right or power or shall be
construed to be a waiver of any such Event of Default or an acquiescence
therein; and, subject to Section 4.6, every power and remedy given by this
Indenture or by law to the Trustee or to the Securityholders of any or all
series, as the case may be, may be exercised from time to time, and as often as
shall be deemed expedient, by the Trustee or by the Securityholders of such
series or all series, as the case may be.
SECTION 4.8 Control by Securityholders. The Holders of not less than a
majority in aggregate principal amount of the Securities of each series affected
at the time Outstanding (with each such series voting separately as a class)
shall have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred on the Trustee by this Indenture with respect to Securities of
such series. Notwithstanding any of the foregoing, no such direction shall be
otherwise than in accordance with law and the provisions of this Indenture and
(subject to the requirements of the Trust Indenture Act of 1939) the Trustee
shall have the right to decline to follow any such direction if the Trustee,
being advised by counsel, shall determine that the action or proceeding so
directed may not lawfully be taken or would be prejudicial to the Holders of
such Securities not taking part in such direction, or the Holders of the
Securities of any other series, or if the Trustee in good faith by its board of
directors, the executive committee or a trust committee of directors or
Responsible Officers of the Trustee shall determine that the action or
proceedings so directed would involve the Trustee in liability.
Nothing in this Indenture shall impair the right of the Trustee in its
discretion to take any action deemed proper by the Trustee and which is not
inconsistent with such direction or directions by Securityholders.
SECTION 4.9 Waiver of Past Defaults. Prior to the declaration of the
acceleration of the maturity of the Securities of any particular series the
Holders of not less than a majority in aggregate principal amount of the
Securities of such particular series at the time Outstanding may on behalf of
the Holders of all the Securities of such particular series waive any past
default or Event of Default with respect to such particular series and its
consequences, except a default in respect of a covenant or provision hereof
which cannot be modified or amended without the consent of the Holder of each
Outstanding Security affected as provided in Section 7.2. In the case of any
such waiver, the Issuer, the Guarantor, the Trustee and the Holders of the
Securities of each series affected shall be restored to their former positions
and rights hereunder, respectively; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
Upon any such waiver, such default shall cease to exist and be deemed
to have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured, and not to have occurred for every
purpose of this Indenture.
ARTICLE FIVE
CONCERNING THE TRUSTEE
SECTION 5.1 Reliance on Documents, Opinions, etc.; No Requirement for
Expenditure of Own Funds. Subject to the provisions of the Trust Indenture Act
of 1939:
(a) prior to the occurrence of an Event of Default hereunder and after
the curing or waiving of all Events of Default, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, in the absence of bad faith on the part of
the Trustee, upon certificates, notices or opinions conforming to the
requirements of this Indenture; but in the case of any such certificates,
notices or opinions which by any provision hereof are specifically required
to be furnished to the Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not they conform to the
requirements of this Indenture (but need not confirm or investigate the
accuracy of mathematical calculations or other facts stated therein);
(b) any request, direction, order or demand of the Issuer and the
Guarantor mentioned herein shall be sufficiently evidenced by an Officers'
Certificate (unless other evidence in respect thereof be herein
specifically prescribed); and any Resolution may be evidenced to the
Trustee by a copy thereof certified by the secretary of the Issuer or the
Guarantor, as applicable;
(c) the Trustee may consult with counsel of its own selection and any
advice of such counsel or Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted to be taken by it hereunder in good faith and in accordance with
such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders pursuant to the provisions of this
Indenture, unless such Securityholders shall have offered to the Trustee
security or indemnity reasonably satisfactory to it against the costs,
expenses and liabilities which might be incurred therein or thereby;
(e) prior to the occurrence of an Event of Default hereunder and after
the curing or waiving of all Events of Default, the Trustee shall not be
bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, bond, direction, note or other paper or document
unless requested in writing so to do by the Holders of not less than a
majority in aggregate principal amount of the Securities of any series
affected then Outstanding; provided that, if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities likely
to be incurred by it in the making of such investigation is, in the opinion
of the Trustee, not reasonably assured to the Trustee by the security
afforded to it by the terms of this Indenture, the Trustee may require
indemnity satisfactory to it against such expenses or liabilities as a
condition to proceeding; and the expenses of every such investigation shall
be paid by the Issuer or the Guarantor or, if paid by the Trustee, shall be
repaid by the Issuer or the Guarantor upon demand;
(f) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys not regularly in its employ and the Trustee shall not be
responsible for any misconduct or negligence on the part of any such agent
or attorney appointed with due care by it hereunder; and
(g) the Trustee may conclusively rely and shall be fully protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or
other paper or document (whether in its original or facsimile form)
believed by it to be genuine and to have been signed or presented by the
proper party or parties.
None of the provisions contained in this Indenture shall be construed
as requiring the Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties or in the
exercise of any of its rights or powers if there shall be reasonable grounds for
believing that the repayment of such funds or indemnity reasonably satisfactory
to it against such risk or liability is not reasonably assured to it. Whether or
not therein expressly so provided, every provision of this Indenture relating to
the conduct or affecting the liability of or affording protection to the Trustee
shall be subject to the requirements of the Trust Indenture Act of 1939.
SECTION 5.2 No Responsibility for Recitals, etc. The recitals
contained herein and in the Securities, except the Trustee's certificates of
authentication, shall be taken as the statements of the Issuer, and the Trustee
assumes no responsibility for the correctness of the same. The Trustee makes no
representation as to the validity or sufficiency of this Indenture or of the
Securities, provided that the Trustee shall not be relieved of its duty to
authenticate Securities only as authorized by this Indenture. The Trustee shall
not be accountable for the use or application by the Issuer of any of the
Securities or of the proceeds thereof.
SECTION 5.3 Trustee and Agents May Hold Securities. The Trustee or any
agent of the Issuer, the Guarantor or the Trustee, in its individual or any
other capacity, may become the owner or pledgee of Securities with the same
rights it would have if it were not the Trustee or such agent and, subject to
the requirements of the Trust Indenture Act of 1939, may otherwise deal with the
Issuer and receive, collect, hold and retain collections from the Issuer with
the same rights it would have if it were not the Trustee or such agent.
SECTION 5.4 Moneys to Be Held in Trust. Subject to the provisions of
Sections 9.3 and 9.4, all moneys received by the Trustee or any paying agent,
all money and U.S. Government Obligations deposited with the Trustee pursuant to
Section 9.8 and all money received by the Trustee in respect of U.S. Government
Obligations deposited with the Trustee pursuant to Section 9.8, shall, until
used or applied as herein provided, be held in trust for the purposes for which
they were received, but need not be segregated from other funds except to the
extent required by mandatory provisions of law. Neither the Trustee nor any
paying agent shall be under any liability for interest on any moneys received by
it hereunder, except such as it may agree in writing with the Issuer to pay
thereon. So long as no Event of Default shall have occurred and be continuing,
all interest allowed on any such moneys shall be paid from time to time upon the
written order of the Issuer signed by one of its officers, who is one of the
officers who may sign an Officers' Certificate.
SECTION 5.5 Compensation and Expenses of Trustee. The Issuer and the
Guarantor covenant and agree to pay to the Trustee from time to time, and the
Trustee shall be entitled to, such compensation as shall be agreed to from time
to time in writing by the Issuer, the Guarantor and the Trustee (which shall not
be limited by any provision of law in regard to the compensation of a trustee of
an express trust) and, except as otherwise expressly provided, the Issuer or the
Guarantor will pay or reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by or on behalf of it in
accordance with any of the provisions of this Indenture (including the
reasonable compensation and the expenses and disbursements of its counsel and of
all persons not regularly in its employ) except any such expense, disbursement
or advance as may arise from its negligence or willful misconduct. The Issuer
and the Guarantor also covenant and agree to fully indemnify the Trustee and any
predecessor Trustee for, and to hold them harmless against, any and all loss,
liability, damage, claim or expense, including taxes (other than taxes based on
the income, gains, wealth or similar criteria of the Trustee) incurred without
negligence or willful misconduct on its part, arising out of or in connection
with the acceptance or administration of this Indenture or the trusts hereunder
and its duties hereunder, including the costs and expenses of defending itself
against any claim of liability in the premises. The obligations of the Issuer
and the Guarantor under this Section to compensate and indemnify the Trustee and
its agents and counsel and to pay or reimburse the Trustee for expenses,
disbursements and advances shall constitute additional indebtedness hereunder
and shall survive the satisfaction and discharge of this Indenture. Such
additional indebtedness shall be secured by a lien prior to that of the
Securities upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the benefit of the Holders of particular
Securities.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 4.1(f), (g), (h), (i), (j) or (k),
the expenses (including the reasonable fees and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable bankruptcy, insolvency, reorganization or
other similar laws.
SECTION 5.6 Right of Trustee to Rely on Officers' Certificate, etc.
Subject to the requirements of the Trust Indenture Act of 1939, whenever in the
administration of the trusts of this Indenture the Trustee shall deem it
necessary or desirable that a matter be proved or established prior to taking or
suffering or omitting any action to be taken hereunder, such matter (unless
other evidence in respect thereof be herein specifically prescribed) may, in the
absence of negligence or bad faith on the part of the Trustee, be deemed to be
conclusively proved and established by an Officers' Certificate delivered to the
Trustee, and such certificate, in the absence of negligence or bad faith on the
part of the Trustee, shall be full warrant to the Trustee for any action taken,
suffered or omitted by it under the provisions of this Indenture.
SECTION 5.7 Eligibility of Trustee. The Trustee for each series of
Securities hereunder shall at all times be a corporation which complies with the
requirements of the Trust Indenture Act of 1939, having a combined capital and
surplus of at least U.S.$50,000,000. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such corporation at any time shall
be deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time the Trustee shall cease to
be eligible in accordance with the provisions of this Section, the Trustee shall
resign immediately in the manner and with the effect specified in Section 5.8.
SECTION 5.8 Resignation or Removal of Trustee; Appointment of
Successor Trustee. (a) The Trustee, or any trustee or trustees hereafter
appointed, may at any time resign with respect to one or more or all series of
Securities by giving written notice of resignation to the Issuer and the
Guarantor. Upon receiving such notice of resignation, the Issuer shall promptly
appoint a successor trustee or trustees with respect to the applicable series by
written instrument in duplicate, executed by authority of the Board of
Directors, one copy of which instrument shall be delivered to the resigning
Trustee and one copy to the successor trustee or trustees. If no successor
trustee shall have been so appointed with respect to any series and have
accepted appointment within 30 days after the mailing of such notice of
resignation, the resigning trustee may petition, at the expense of the Issuer,
any court of competent jurisdiction for the appointment of a successor trustee,
or any Securityholder who has been a bona fide Holder of a Security or
Securities of the applicable series for at least six months may, subject to the
requirements of the Trust Indenture Act of 1939, on behalf of himself and all
others similarly situated, petition any such court for the appointment of a
successor trustee. Such court may thereupon, after such notice, if any, as it
may deem proper and prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall cease to be eligible in accordance with the
provisions of Section 5.7 with respect to any series of Securities and
shall fail to resign after written request therefor by the Issuer or the
Guarantor or by any Securityholder; or
(ii) the Trustee shall become incapable of acting with respect to any
series of Securities, or shall be adjudged a bankrupt or insolvent, or a
receiver or liquidator of the Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation;
then, in any such case, the Issuer by Resolution may remove the Trustee with
respect to the applicable series of Securities (or all series, if required) and
appoint a successor trustee for such series by written instrument, in duplicate,
executed by authority of the Board of Directors, one copy of which instrument
shall be delivered to the Trustee so removed and one copy to the successor
trustee, or, subject to the requirements of the Trust Indenture Act of 1939, any
Securityholder who has been a bona fide Holder of a Security or Securities of
such series for at least six months may on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor trustee with respect to such
series. Such court may thereupon, after such notice, if any, as it may deem
proper and prescribe, remove the Trustee and appoint a successor trustee with
respect to such series.
(c) The Holders of a majority in aggregate principal amount of the
Securities of any series at the time Outstanding may at any time remove the
Trustee with respect to Securities of such series and appoint a successor
trustee with respect to the Securities of such series by delivering to the
Trustee so removed, to the successor trustee so appointed and to the Issuer and
the Guarantor the evidence provided for in Section 6.1 of the action in that
regard taken by the Securityholders. If no successor trustee shall have been so
appointed with respect to any series and shall have accepted appointment within
30 days after the mailing of such notice of removal, the removed Trustee may
petition at the expense of the Issuer any court of competent jurisdiction for
the appointment of a successor trustee, or any Securityholder who has been a
bona fide Holder of a Security or Securities of the applicable series for at
least six months may, subject to the requirements of the Trust Indenture Act of
1939, on behalf of himself and all others similarly situated, petition any such
court for the appointment of a successor trustee. Such court may thereupon,
after such notice, if any, as it may deem proper and prescribe, appoint a
successor trustee.
(d) Any resignation or removal of the Trustee with respect to any
series and any appointment of a successor trustee with respect to such series
pursuant to any of the provisions of this Section 5.8 shall become effective
upon acceptance of appointment by the successor trustee as provided in Section
5.9.
SECTION 5.9 Acceptance of Appointment by Successor Trustee. Any
successor trustee appointed as provided in Section 5.8 shall execute,
acknowledge and deliver to the Issuer, the Guarantor and its predecessor Trustee
an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor Trustee with respect to all or any
applicable series shall become effective and such successor trustee, without any
further act, deed or conveyance, shall become vested with all rights, powers,
duties and obligations with respect to such series of its predecessor hereunder,
with like effect as if originally named as trustee for such series hereunder;
but, nevertheless, on the written request of the Issuer, the Guarantor or the
successor trustee, upon payment of any amounts then due to it and its agents and
counsel, pursuant to Section 5.5, the predecessor Trustee ceasing to act shall,
subject to Section 9.4, pay over to the successor trustee all moneys at the time
held by it hereunder and shall execute and deliver an instrument transferring to
such successor trustee all such rights, powers, duties and obligations. Upon
request of any such successor trustee, the Issuer shall execute any and all
instruments in writing for more fully and certainly vesting in and confirming to
such successor trustee all such rights and powers. Any trustee ceasing to act
shall, nevertheless, retain a lien upon all property or funds held or collected
by such trustee to secure any amounts then due it pursuant to the provisions of
Section 5.5.
If a successor trustee is appointed with respect to the Securities of
one or more (but not all) series, the Issuer, the Guarantor, the predecessor
Trustee and each successor trustee with respect to the Securities of any
applicable series shall execute and deliver an indenture supplemental hereto
which shall contain such provisions to confirm that all the rights, powers,
trusts and duties of the predecessor Trustee with respect to the Securities of
any series as to which the predecessor Trustee is not retiring shall continue to
be vested in the predecessor Trustee, and shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such trustees co-trustees of the same trust and that each such
trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such trustee.
No successor trustee with respect to any series of Securities shall
accept appointment as provided in this Section 5.9 unless at the time of such
acceptance such successor trustee shall, with respect to such series, be
qualified under the provisions of the Trust Indenture Act of 1939 and eligible
under the provisions of Section 5.7.
Upon acceptance of appointment by any successor trustee as provided in
this Section 5.9, the Issuer shall mail notice thereof to the Holders of
Securities of any series for which such successor trustee is acting as trustee
at their last addresses as they shall appear in the Register. If the Issuer
fails to mail such notice within ten days after acceptance of appointment by the
successor trustee, the successor trustee shall cause such notice to be mailed at
the Issuer's expense.
SECTION 5.10 Merger, Conversion, Consolidation or Succession to
Business of Trustee. Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided, that such
corporation shall be qualified under the provisions of the Trust Indenture Act
of 1939 and eligible under the provisions of Section 5.7, without the execution
or filing of any paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Securities of any series shall have
been authenticated but not delivered, any such successor to the Trustee by
merger, conversion or consolidation may adopt the certificate of authentication
of any predecessor Trustee and deliver such Securities so authenticated; and, in
case at that time any of the Securities of any series shall not have been
authenticated, any successor to the Trustee may authenticate such Securities
either in the name of such successor to the Trustee or, if such successor to the
Trustee is a successor by merger, conversion or consolidation, in the name of
any predecessor hereunder; and in all such cases such certificate shall have the
full force which the certificate of the Trustee shall have as provided anywhere
in the Securities of such series or in this Indenture.
SECTION 5.11 Reports by Trustee to Securityholders. Within 60 days
after January 15 in each year, beginning with the January 15 following the date
of this Indenture, the Trustee shall mail to the Securityholders a brief report
dated as of such reporting date in compliance with ss. 313(a) of the Trust
Indenture Act of 1939. The Trustee also shall comply with ss. 313(b) of the
Trust Indenture Act of 1939. The Trustee shall also transmit by mail all reports
as required by ss. 313(c) of the Trust Indenture Act of 1939. The Issuer shall
promptly notify the Trustee when the Securities are listed on any stock
exchange.
SECTION 5.12 Trustee's Application for Instructions from the Issuer.
Any application by the Trustee for written instructions from the Issuer may, at
the option of the Trustee, set forth in writing any action proposed to be taken
or omitted by the Trustee under this Indenture and the date on and/or after
which such action shall be taken or such omission shall be effective. The
Trustee shall not be liable for any action taken by, or omission of, the Trustee
in accordance with a proposal included in such application on or after the date
specified in such application (which date shall not be less than three Business
Days after the date any officer of the Issuer actually receives such
application, unless any such officer shall have consented in writing to any
earlier date) unless prior to taking any such action (or the effective date in
the case of an omission), the Trustee shall have received written instructions
in response to such application specifying the action to be taken or omitted.
ARTICLE SIX
CONCERNING THE SECURITYHOLDERS
SECTION 6.1 Action by Securityholders. Whenever in this Indenture it
is provided that the Holders of a specified percentage in aggregate principal
amount of the Securities of any or all series may take any action (including the
making of any demand or request, the giving of any notice, consent or waiver or
the taking of any other action) the fact that at the time of taking any such
action the Holders of such specified percentage have joined therein may be
evidenced (a) by any instrument or any number of instruments of similar tenor
executed by such Securityholders in person or by agent or proxy appointed in
writing, or (b) by the record of such Holders of Securities voting in favor
thereof at any meeting of such Securityholders duly called and held in
accordance with the provisions of this Article, or (c) by a combination of such
instrument or instruments and any such record of such a meeting of such
Securityholders; and, except as herein otherwise expressly provided, such action
shall become effective when such instrument or instruments and/or such record
are delivered to the Trustee. Proof of execution of any instrument or of a
writing appointing any such agent or proxy shall be sufficient for any purpose
of this Indenture and (subject to the requirements of the Trust Indenture Act of
1939 and Section 5.1) conclusive in favor of the Trustee, the Issuer and the
Guarantor, if made in the manner provided in this Article.
In determining whether the Holders of the requisite principal amount
of Outstanding Securities of any or all series have taken any action (including
the making of any demand or request), the giving of any notice, consent or
waiver (or the taking of any other action) hereunder and in determining voting
rights of any Holder of a Security hereunder (i) the principal amount of
Original Issue Discount Securities that shall be deemed to be Outstanding for
such purposes shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon a declaration of acceleration
of the maturity thereof pursuant to Section 4.1, (ii) in the case of Securities
which provide that an amount other than the face amount thereof will or may be
payable upon the maturity thereof or upon a declaration of acceleration of the
maturity thereof, the principal amount of such Securities that shall be deemed
to be Outstanding for such purposes shall be the amount that would be due and
payable in respect of such Securities as of the date of such determination upon
a declaration of acceleration of the maturity thereof pursuant to Section 4.1,
and (iii) the principal amount of any Security, the principal amount of which is
denominated in a currency other than U.S. dollars or in units of currencies or
in a composite currency (the "Specified Currency") shall be deemed to be that
amount of U.S. dollars which could have been obtained by the face amount of such
Specified Currency at the Market Exchange Rate. For purposes of this Section
6.1, "Market Exchange Rate" means, unless otherwise specified for a Specified
Currency with respect to any series of the Notes pursuant to Section 2.6, the
noon U.S. dollar buying rate in New York City for cable transfers of the
Specified Currency published by the Federal Reserve Bank of New York.
All decisions and determinations of the Trustee regarding the Market
Exchange Rate or any alternative determination provided for in the preceding
paragraph shall be in its sole discretion and shall, in the absence of manifest
error, be conclusive to the extent permitted by law for all purposes and
irrevocably binding upon the Issuer, the Guarantor and all Securityholders.
If the Issuer shall solicit from the Securityholders any demand,
request, notice, consent, waiver or the taking of any other action (other than
in accordance with the Securityholders voting provisions set forth in Sections
6.6 through 6.14 of this Article), the Issuer may, at its option, by a
Resolution, fix in advance a record date for the determination of Holders
entitled to give such demand, request, notice, consent or waiver or to take such
other action, but the Issuer shall have no obligation to do so. If such a record
date is fixed, such demand, request, notice, consent, waiver or such other
action may be given before or after the record date, but only the
Securityholders of record at the close of business on the record date shall be
deemed to be Holders for the purposes of determining whether Holders of the
requisite percentage of Securities Outstanding have authorized or agreed or
consented to such demand, request, notice, consent, waiver or taking of any
other action, and for that purpose the Securities Outstanding shall be computed
as of the record date; provided, that no such demand, request, notice, consent,
waiver or taking of any other action by the Holders on the record date shall be
deemed effective unless it shall become effective pursuant to the provisions of
this Indenture not later than six months after the record date.
SECTION 6.2 Proof of Execution by Securityholders. Subject to the
requirements of the Trust Indenture Act of 1939 and Sections 5.1 and 6.11, proof
of the execution of any instrument by a Securityholder or his agent or proxy
shall be sufficient if made in accordance with such reasonable rules and
regulations as is necessary or as may be prescribed by the Trustee or in such
manner as shall be satisfactory to the Trustee. The ownership of Securities
shall be proved by the Register or by a certificate of the person designated by
the Issuer to keep the Register and to act as repository in accordance with the
provisions of Section 2.12.
The record of any Securityholders' meeting shall be proved in the
manner provided in Section 6.12.
SECTION 6.3 Holders to Be Treated as Owners. The Issuer, the
Guarantor, the Trustee and any agent of the Issuer, the Guarantor or the Trustee
may deem and treat the person in whose name any Security shall be registered in
the Register for such series as the absolute owner of such Security (whether or
not such Security shall be overdue and notwithstanding any notation of ownership
or other writing thereon) for the purpose of receiving payment of or on account
of the principal of and, subject to the provisions of this Indenture, interest,
if any, on such Security and for all other purposes; and none of the Issuer, the
Guarantor, the Trustee or any agent of the Issuer, the Guarantor or the Trustee
shall be affected by any notice to the contrary. All such payments so made to
any such person, or upon his order, shall be valid, and, to the extent of the
sum or sums so paid, effectual to satisfy and discharge the liability for moneys
payable upon any such Security.
SECTION 6.4 Securities Owned by Issuer Deemed Not Outstanding. In
determining whether the Holders of the requisite aggregate principal amount of
Outstanding Securities of any or all series have concurred in any demand,
request, notice, direction, consent or waiver under this Indenture, Securities
which are owned by the Issuer, the Guarantor or any other obligor on the
Securities with respect to which such determination is being made or by any
person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Issuer, the Guarantor or any other obligor on
the Securities with respect to which such determination is being made shall be
disregarded and deemed not to be Outstanding for the purpose of any such
determination, except that for the purpose of determining whether the Trustee
shall be protected in relying on any such demand, request, notice, direction,
consent or waiver only Securities which a Responsible Officer of the Trustee
actually knows are so owned shall be so disregarded. Securities so owned which
have been pledged in good faith may be regarded as Outstanding for purposes of
this Section 6.4 if the pledgee establishes to the satisfaction of the Trustee
the pledgee's right so to act with respect to such Securities and that the
pledgee is not the Issuer, the Guarantor or any other obligor upon the
Securities or any person directly or indirectly controlling or controlled by or
under direct or indirect common control with the Issuer or any other obligor on
the Securities. In case of a dispute as to such right, the advice of counsel
shall be full protection in respect of any decision made by the Trustee in
accordance with such advice. Upon request of the Trustee, the Issuer shall
furnish to the Trustee promptly an Officers' Certificate listing and identifying
all Securities, if any, known by the Issuer to be owned or held by or for the
account of any of the above-described persons; and, subject to the requirements
of the Trust Indenture Act of 1939 and Section 5.1, the Trustee shall, in the
absence of manifest error, accept such Officers' Certificate as conclusive
evidence of the facts therein set forth and of the fact that all Securities not
listed therein are Outstanding for the purpose of any such determination.
SECTION 6.5 Right of Revocation of Action Taken. At any time prior to
(but not after) the evidencing to the Trustee, as provided in Section 6.1, of
the taking of any action by the Holders of the percentage in aggregate principal
amount of the Securities of any or all series, as the case may be, specified in
this Indenture in connection with such action, any Holder of a Security the
serial number or other distinguishing symbol of which is shown by the evidence
to be included among the serial numbers or other distinguishing symbols of the
Securities the Holders of which have consented to such action may, by filing
written notice to a Responsible Officer at the Corporate Trust Office and upon
proof of holding as provided in this Article, revoke such action so far as
concerns such Security. Except as aforesaid any such action taken by the Holder
of any Security shall be conclusive and binding upon such Holder and upon all
future Holders and owners of such Security and of any Securities issued in
exchange or substitution therefor, irrespective of whether or not any notation
in regard thereto is made upon any such Security. Any action taken by the
Holders of the percentage in aggregate principal amount of the Securities of any
or all series, as the case may be, specified in this Indenture in connection
with such action shall be conclusively binding upon the Issuer, the Guarantor,
the Trustee and the Holders of all the Securities affected by such action.
SECTION 6.6 Securityholders' Meetings; Purposes. A meeting of Holders
of Securities of any series or all series, as the case may be, may be called at
any time and from time to time pursuant to the provisions of this Article Six
for any of the following purposes:
(1) to give any notice to the Issuer, the Guarantor or to the Trustee,
or to give any directions to the Trustee, or to consent to the waiving of
any default or Event of Default hereunder and its consequences, or to take
any other action authorized to be taken by Securityholders pursuant to any
of the provisions of Article Four;
(2) to remove the Trustee and nominate a successor trustee pursuant to
the provisions of Article Five;
(3) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 7.2; or
(4) to take any other action authorized to be taken by or on behalf of
the Holders of any specified aggregate principal amount of the Securities
of any series or all series, as the case may be, under any other provision
of this Indenture or under applicable law.
SECTION 6.7 Call of Meetings by Trustee. The Trustee may at any time
call a meeting of Holders of Securities of any series or all series, as the case
may be, to take any action specified in Section 6.6, to be held at such time and
at such place in the Borough of Manhattan, The City of New York, or other
location, as the Trustee shall determine. Notice of every meeting of the Holders
of Securities of any series or all series, as the case may be, setting forth the
time and the place of such meeting and in general terms the action proposed to
be taken at such meeting, shall be mailed to Holders of Outstanding Securities
of each series affected at their addresses as they shall appear in the Register
as of a date not more than 15 days prior to the mailing of such notice. Such
notice shall be mailed not less than 20 nor more than 90 days prior to the date
fixed for the meeting.
Any meeting of the Holders of Securities of any series or all series,
as the case may be, shall be valid without notice if the Holders of all
Securities of any series then Outstanding are present in person or by proxy, or,
if notice is waived before or after the meeting by the Holders of all Securities
of any series outstanding, and if the Issuer, the Guarantor and the Trustee are
either present by duly authorized representatives or have, before or after the
meeting waived notice.
SECTION 6.8 Call of Meetings by Issuer, Guarantor or Securityholders.
In case at any time the Issuer or the Guarantor, pursuant to a Resolution, or
the Holders of at least 10% in aggregate principal amount of the Securities then
Outstanding of any or all series, as the case may be, shall have requested the
Trustee to call a meeting of the Holders of Securities of such series or all
series, as the case may be, by written request setting forth in reasonable
detail the action proposed to be taken at the meeting, and the Trustee shall not
have mailed the notice of such meeting within 20 days after receipt of such
request, then the Issuer, the Guarantor or such Securityholders, in the amount
specified above, may determine the time and the place in said Borough of
Manhattan for such meeting and may call such meeting to take any action
authorized in Section 6.6, by mailing notice thereof as provided in Section 6.7.
SECTION 6.9 Qualifications for Voting. To be entitled to vote at any
meeting of Securityholders a person shall (a) be a Holder of one or more
Securities with respect to which such meeting is being held or (b) be a person
appointed by an instrument in writing as proxy by a Holder of one or more such
Securities. The only persons who shall be entitled to be present or to speak at
any meeting of Securityholders shall be the persons entitled to vote at such
meeting and their counsel, any representatives of the Trustee and its counsel
and any representatives of the Issuer and the Guarantor and their respective
counsel.
SECTION 6.10 Quorum; Adjourned Meetings. The persons entitled to vote
a majority in aggregate principal amount of the Securities of the relevant
series at the time Outstanding shall constitute a quorum for the transaction of
all business specified in Section 6.6. No business shall be transacted in the
absence of a quorum (determined as provided in this Section 6.10). In the
absence of a quorum within 30 minutes after the time appointed for any such
meeting, the meeting shall, if convened at the request of the Holders of
Securities (as provided in Section 6.8), be dissolved. In any other case the
meeting shall be adjourned for a period of not less than ten days as determined
by the chairman of the meeting. In the absence of a quorum at any such adjourned
meeting, such adjourned meeting shall be further adjourned for a period of not
less than ten days as determined by the chairman of the meeting. Notice of the
reconvening of any adjourned meeting shall be given as provided in Section 6.7,
except that such notice must be mailed not less than five days prior to the date
on which the meeting is scheduled to be reconvened.
Any Holder of a Security who has executed in person or by proxy and
delivered to the Trustee an instrument in writing complying with the provisions
of Section 6.2 shall be deemed to be present for the purposes of determining a
quorum and be deemed to have voted; provided, that such Holder of a Security
shall be considered as present or voting only with respect to the matters
covered by such instrument in writing.
SECTION 6.11 Regulations. Notwithstanding any other provisions of this
Indenture, the Trustee may make such reasonable regulations as is necessary or
as it may deem advisable for any meeting of Securityholders, in regard to proof
of the holding of Securities and of the appointment of proxies, and in regard to
the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as is necessary or
as it shall determine.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Issuer, the Guarantor or by Securityholders as provided in Section 6.8, in which
case the Issuer, the Guarantor or the Securityholders calling the meeting, as
the case may be, shall in like manner appoint a temporary chairman. A permanent
chairman and a permanent secretary of the meeting shall be elected by the vote
of the Holders of a majority of the principal amount of the Outstanding
Securities present at the meeting.
Subject to the provisions of Section 6.4, at any meeting each Holder
of Securities with respect to which such meeting is being held or proxy shall be
entitled to one vote for each U.S.$1,000 (or if any Securities are denominated
in a currency other than U.S. dollars or in units of currencies or in a
composite currency, the equivalent of U.S.$1,000 in the applicable currency,
units of currencies or composite currency calculated using the market Exchange
Rate) principal amount (or in the case of Original Issue Discount Securities or,
in the case of Securities which provide that an amount other than the face
amount thereof will or may be payable upon the maturity thereof or upon a
declaration of acceleration of the maturity thereof, such principal amount to be
determined as provided in the definition of "Outstanding" in Section 1.1) of
such Securities held or represented by him; provided, however, that no vote
shall be cast or counted at any meeting in respect of any such Security
challenged as not Outstanding and ruled by the chairman of the meeting to be not
Outstanding. The chairman of the meeting shall have no right to vote other than
by virtue of such Securities held by him or instruments in writing as aforesaid
duly designating him as the person to vote on behalf of other such
Securityholders. Any meeting of Holders of Securities with respect to which a
meeting was duly called pursuant to the provisions of Section 6.7 or 6.8 may be
adjourned from time to time by the Holders of a majority of the principal amount
of the Outstanding Securities present, whether or not constituting a quorum, and
the meeting may be held as so adjourned without further notice.
SECTION 6.12 Voting. The vote upon any resolution submitted to any
meeting of Holders of Securities with respect to which such meeting is being
held shall be by written ballots on which shall be subscribed the signatures of
such Holders of Securities or of their representatives by proxy and the
principal amount (in the case of Original Issue Discount Securities or, in the
case of Securities which provide that an amount other than the face amount
thereof will or may be payable upon the maturity thereof or upon a declaration
of acceleration of the maturity thereof, such principal amount to be determined
as provided in the definition of "Outstanding" in Section 1.1) and number or
numbers or other distinguishing symbol or symbols of such Securities held or
represented by them. The permanent chairman of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the meeting for or against
any resolution and who shall make and file with the secretary of the meeting
their verified written reports in duplicate of all votes cast at the meeting. A
record in duplicate of the proceedings of each meeting of Securityholders shall
be prepared by the secretary of the meeting and there shall be attached to said
record the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more persons having knowledge of the
facts setting forth a copy of the notice of the meeting and showing that said
notice was mailed as provided in Section 6.7. The record shall show the
principal amount of the Securities (in the case of Original Issue Discount
Securities or, in the case of Securities which provide that an amount other than
the face amount thereof will or may be payable upon the maturity thereof or upon
a declaration of acceleration of the maturity thereof, such principal amount to
be determined as provided in the definition of "Outstanding" in Section 1.1)
voting in favor of or against any resolution. The record shall be signed and
verified by the affidavits of the permanent chairman and secretary of the
meeting and one of the duplicates shall be delivered to the Issuer and the other
to the Trustee to be preserved by the Trustee, the latter to have attached
thereto the ballots voted at the meeting. Any record so signed and verified
shall be conclusive evidence of the matters therein stated.
SECTION 6.13 No Delay of Rights by Meeting. Nothing in this Article
Six shall be deemed or construed to authorize or permit, by reason of any call
of a meeting of Securityholders of any or all series or any rights expressly or
impliedly conferred hereunder to make such call, any hindrance or delay in the
exercise of any right or rights conferred upon or reserved to the Issuer, the
Guarantor, the Trustee or the Securityholders of any or all such series under
any of the provisions of this Indenture or of the Securities.
SECTION 6.14 Written Consent in Lieu of Meeting. The written
authorization or consent by the Holders of the requisite percentage in aggregate
principal amount of Outstanding Securities of one or more series herein
provided, entitled to vote at any such meeting, evidenced as provided in Section
6.1 and filed with the Trustee, shall be effective in lieu of a meeting of the
Holders of Securities of such series, with respect to any matter provided for in
this Article Six.
ARTICLE SEVEN
SUPPLEMENTAL INDENTURES
SECTION 7.1 Supplemental Indentures Without Consent of
Securityholders. The Issuer and the Guarantor, each when authorized by, or
pursuant to a Resolution, and the Trustee may from time to time and at any time
enter into an indenture or indentures supplemental hereto (which shall conform
to the provisions of the Trust Indenture Act of 1939 as in force at the date of
the execution thereof) for one or more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the Trustee as
security for the Securities of one or more series any property or assets;
(b) to evidence the succession of another entity to the Issuer or the
Guarantor, or successive successions, and the assumption by the successor
entity of the covenants, agreements, rights and obligations of the Issuer
or the Guarantor, as the case may be, pursuant to Article Eight;
(c) to add to the covenants of the Issuer or the Guarantor such
further covenants, restrictions, conditions or provisions as the Issuer or
the Guarantor shall consider to be for the benefit of the Holders of one or
more series of Securities (and if such covenants, restrictions, conditions
or provisions are to be for the benefit of less than all series of
Securities, stating that such covenants, restrictions, conditions or
provisions are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the Issuer
or the Guarantor;
(d) to add additional Events of Default and to provide with respect
thereto for any particular periods of grace after default (which may be
shorter or longer than that allowed in the case of other defaults) or for
immediate enforcement upon such default or for any limitation of the
remedies available to the Trustee upon such default;
(e) to provide for the assumption by the Guarantor of the covenants,
agreements, rights and obligations of the Issuer pursuant to Section 2.15;
(f) to provide for the issuance under this Indenture of Securities in
bearer form (including Securities registrable as to principal only) with or
without interest coupons and to provide for exchangeability of such
Securities with the Securities of the same series or tranche, as the case
may be, issued hereunder in fully registered form and to make all
appropriate changes for such purpose;
(g) to cure any ambiguity or to correct or supplement any provision
contained herein, in the Securities of any series or in the Guaranty or in
any supplemental indenture which may be defective or inconsistent with any
other provision contained herein or in any supplemental indenture; or to
change or eliminate any provision or to make such other provisions in
regard to matters or questions arising under this Indenture or under any
supplemental indenture as the Issuer or the Guarantor may deem necessary or
desirable and which shall not adversely affect the interests of the Holders
of the Securities at the time Outstanding;
(h) to establish the form or terms of Securities of any series as
permitted by Sections 2.1 and 2.5; or
(i) to evidence and provide for the acceptance of appointment
hereunder by a successor trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one trustee, pursuant to the requirements
of Section 5.9.
Upon the request of the Issuer and the Guarantor, accompanied by
copies of the Resolutions authorizing the execution of any such supplemental
indenture certified by the secretaries of each of the Issuer and the Guarantor,
the Trustee shall join with the Issuer and the Guarantor in the execution of any
such supplemental indenture, to make any further appropriate agreements and
stipulations which may be therein contained and to accept the conveyance,
transfer, assignment, mortgage or pledge of any property thereunder, but the
Trustee shall not be obligated to (but may in its discretion) enter into any
such supplemental indenture which adversely affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this
Section may be executed by the Issuer, the Guarantor and the Trustee without the
consent of the Holders of any of the Securities at the time Outstanding,
notwithstanding any of the provisions of Section 7.2.
SECTION 7.2 Supplemental Indentures With Consent of Securityholders.
With the consent (evidenced as provided in Article Six) of the Holders of not
less than a majority in aggregate principal amount of the Securities of all
series affected by such supplemental indenture (all such series voting as a
single class) at the time Outstanding, the Issuer and the Guarantor, each when
authorized by, or pursuant to a Resolution, and the Trustee may, from time to
time and at any time, enter into an indenture or indentures supplemental hereto
(which shall conform to the provisions of the Trust Indenture Act of 1939 as in
force at the date of execution thereof) for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of this
Indenture or of any supplemental indenture or of modifying in any manner the
rights and obligations of the Issuer or the Guarantor or the rights of the
Holders of the Securities of all such series; provided, that no such
supplemental indenture shall (a) extend the fixed maturity of any Security, or
reduce the principal amount thereof, or reduce the rate or extend the time of
payment of interest thereon, or reduce any Additional Amount payable thereon, or
reduce any amount payable on redemption or reduce the Overdue Rate thereof or
make the principal thereof or interest thereon payable in any coin or currency
other than that provided in the Security or reduce the amount of the principal
of an Original Issue Discount Security (or a Security that provides that an
amount other than the face amount thereof will or may be payable upon a
declaration of acceleration of the maturity thereof) that would be due and
payable upon an acceleration of the maturity thereof pursuant to Section 4.1 or
the amount thereof provable in any action or proceeding pursuant to Section 4.2,
or impair, if the Securities provide therefor, any right of repayment at the
option of the Securityholder, or alter adversely or eliminate the right, if any,
of a Holder of a Security to convert the same into Parent Shares at the
Conversion Price set forth therein or upon the terms provided in this Indenture,
or impair the right to institute suit for the enforcement of any such payment on
or after the maturity thereof (or, in case of redemption, on or after the
redemption date), or for the enforcement of the conversion of any Security that
is convertible at the option of a Holder thereof into Parent Shares without the
consent of the Holder of each Security so affected, (b) reduce the aforesaid
percentage of Securities the consent of the Holders of which is required for any
such supplemental indenture, without the consent of the Holders of each Security
so affected or (c) modify any of the provisions of Articles Twelve or Thirteen
in a manner adverse to the Holders of the Securities.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Securityholders of such series with respect to such covenant
or provision, shall be deemed not to affect the rights under this Indenture of
the Securityholders of any other series. The preceding sentence shall not,
however, raise any inference as to whether or not a particular series is
affected by any supplemental indenture not referred to in such sentence.
Upon the request of the Issuer and the Guarantor, accompanied by
copies of the Resolutions authorizing the execution of any such supplemental
indenture certified by the secretaries of each of the Issuer and the Guarantor,
and upon the filing with the Trustee of evidence of the consent of
Securityholders as aforesaid and other documents, if any, required by Section
6.1, the Trustee shall join with the Issuer and the Guarantor in the execution
of such supplemental indenture unless such supplemental indenture adversely
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion, but shall not be
obligated to, enter into such supplemental indenture.
It shall not be necessary for the consent of the Securityholders under
this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution by the Issuer, the Guarantor and the
Trustee of any supplemental indenture pursuant to the provisions of this Section
7.2, the Issuer shall mail a notice thereof to the Holders of Securities of each
series affected thereby at their addresses as they shall appear in the Register,
setting forth in general terms the substance of such supplemental indenture. Any
failure of the Issuer to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such supplemental
indenture.
SECTION 7.3 Effect of Supplemental Indenture. Upon the execution of
any supplemental indenture pursuant to the provisions hereof, this Indenture
shall be and be deemed to be modified and amended in accordance therewith and
the respective rights, limitations of rights, obligations, duties and immunities
under this Indenture of the Trustee, the Issuer, the Guarantor and the Holders
of Securities of each series affected thereby shall thereafter be determined,
exercised and enforced hereunder subject in all respects to such modifications
and amendments, and all the terms and conditions of any such supplemental
indenture shall be and be deemed to be part of the terms and conditions of this
Indenture for any and all purposes.
SECTION 7.4 Certain Documents to Be Given to Trustee. The Trustee,
subject to the requirements of the Trust Indenture Act of 1939 and Section 5.1,
shall receive an Officers' Certificate and an Opinion of Counsel as conclusive
evidence that any supplemental indenture executed pursuant to this Article Seven
complies with the requirements of this Article Seven.
SECTION 7.5 Notation on Securities. Securities of any series
authenticated and delivered after the execution of any supplemental indenture
pursuant to the provisions of this Article Seven may bear a notation in form
satisfactory to the Trustee for such series as to any matter provided for by
such supplemental indenture or as to any action taken at any such meeting. If
the Issuer or the Trustee shall so determine, new Securities of any series so
modified as to conform, in the opinion of the Trustee and the Issuer, to any
modification of this Indenture contained in any such supplemental indenture may
be prepared and executed (with the Guaranty endorsed thereon executed by the
Guarantor) by the Issuer, authenticated by the Trustee and delivered in exchange
for the Securities of such series then Outstanding.
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
SECTION 8.1 Issuer and Guarantor May Consolidate, etc., on Certain
Terms. (a) Nothing contained in this Indenture or in any of the Securities shall
prevent any consolidation or merger of the Issuer with or into any other entity
or entities (whether or not affiliated with the Issuer), or successive
consolidations or mergers in which the Issuer or its successor or successors
shall be a party or parties, or shall prevent any sale, conveyance or lease of
all or substantially all the property of the Issuer, to any other entity
(whether or not affiliated with the Issuer) authorized to acquire and operate
the same; provided, however, and the Issuer hereby covenants and agrees, that
upon any such consolidation, merger, sale, conveyance or lease, (i) the due and
punctual payment of the principal of and interest, if any, on all of the
Securities, according to their tenor, and the due and punctual performance and
observance of all of the covenants and conditions of this Indenture to be
performed by the Issuer (including, without limitation, the terms, covenants and
conditions contained in Section 11.6), shall be expressly assumed, by
supplemental indenture satisfactory in form to the Trustee, executed and
delivered to the Trustee by the entity (if other than the Issuer) formed by such
consolidation, or into which the Issuer shall have been merged, or by the entity
which shall have acquired or leased such property and (ii) the Issuer or such
successor entity, as the case may be, shall not, immediately after such merger
or consolidation, or such sale, conveyance or lease, be in default in the
performance of any such covenant or condition.
(b) Nothing contained in this Indenture or in any of the Securities
shall prevent any consolidation or merger of the Guarantor with or into any
other entity or entities (whether or not affiliated with the Guarantor), or
successive consolidations or mergers in which the Guarantor or the successor or
successors shall be a party or parties, or shall prevent any sale, conveyance or
lease of all or substantially all the property of the Guarantor to any other
entity (whether or not affiliated with the Guarantor) authorized to acquire and
operate the same; provided, however, and the Guarantor hereby covenants and
agrees, that upon any such consolidation, merger, sale, conveyance or lease (i)
the due and punctual performance and observance of all of the covenants and
conditions of this Indenture to be performed by the Guarantor and under the
Guaranty shall be expressly assumed, by supplemental indenture satisfactory in
form to the Trustee, executed and delivered to the Trustee by the entity (if
other than the Guarantor) formed by such consolidation, or into which the
Guarantor shall have been merged, or by the entity which shall have acquired or
leased such property and (ii) the Guarantor or such successor entity, as the
case may be, shall not, immediately after such merger or consolidation, or such
sale, conveyance or lease, be in default in the performance of any such covenant
or condition.
SECTION 8.2 Successor Entity to Be Substituted. (a) In case of any
consolidation, merger, sale, conveyance or lease referred to in Section 8.1 and
upon the assumption by the successor entity, by supplemental indenture, executed
and delivered to the Trustee and satisfactory in form to the Trustee, of, in the
case of Section 8.1(a), the due and punctual payment of the principal of and
interest, if any, on all of the Securities and the due and punctual performance
of all of the covenants and conditions of this Indenture to be performed by the
Issuer or, in the case of Section 8.1(b), the due and punctual performance of
all covenants and conditions of this Indenture be performed by the Guarantor and
under the Guaranty such successor entity shall succeed to and be substituted for
the Issuer or the Guarantor, as applicable, with the same effect as if it had
been named herein as the party of the first part. In case of any such
consolidation, merger, sale, conveyance or lease, such changes in phraseology
and form (but not in substance) may be made in the Securities thereafter to be
issued as may be appropriate.
(b) In the case of a successor entity to the Issuer, such successor
entity thereupon may cause to be signed, and may issue in its own name any or
all of the Securities issuable hereunder which theretofore shall not have been
signed by the Issuer and delivered to the Trustee; and, upon the order of such
successor entity instead of the Issuer and subject to all the terms, conditions
and limitations in this Indenture prescribed, the Trustee shall authenticate and
shall deliver any Securities which previously shall have been signed and
delivered by an officer of the Issuer to the Trustee for authentication, and any
Securities which such successor entity thereafter shall cause to be signed and
delivered to the Trustee for that purpose. All the Securities of any series so
issued shall in all respects have the same legal rank and benefit under this
Indenture as the Securities of the same series theretofore or thereafter issued
in accordance with the terms of this Indenture as though all of such Securities
had been issued at the date of the execution hereof. In the event of any such
sale or conveyance, but not any such lease, the Issuer or any successor entity
which shall theretofore have become such in the manner described in this Article
Eight shall be discharged from all obligations and covenants under this
Indenture and the Securities and may be dissolved and liquidated.
(c) In the case of a successor entity to the Guarantor, such successor
entity thereupon may cause to be signed, and may issue in its own name the
Guaranty with respect to any or all of the Securities issuable hereunder which
theretofore shall not have been signed by the Guarantor and delivered to the
Trustee; and, upon the order of such successor entity instead of the Guarantor
and subject to all the terms, conditions and limitations in this Indenture
prescribed, the Trustee shall authenticate and shall deliver any Securities on
which the Guaranty is endorsed which previously shall have been signed and
delivered by an officer of the Guarantor to the Trustee for authentication, and
any Securities on which the Guaranty is endorsed which such successor entity
thereafter shall cause to be signed and delivered to the Trustee for that
purpose. Any such Guaranty with respect to Securities of any series shall in all
respects have the same legal rank and benefit under this Indenture as the
Guaranty with respect to Securities of the same series theretofore or thereafter
issued in accordance with the terms of this Indenture as though all of such
Securities had been issued at the date of the execution hereof. In the event of
any such sale or conveyance, referred to in Section 8.1, but not any lease
referred to in such Section, the Guarantor or any successor entity which shall
theretofore have become such in the manner described in this Article Eight shall
be discharged from all obligations and covenants under this Indenture and the
Guaranty and may be dissolved and liquidated.
SECTION 8.3 Opinion of Counsel and Officers' Certificate to Be Given
to Trustee. The Trustee, subject to the requirements of the Trust Indenture Act
of 1939 and Section 5.1, shall receive an Opinion of Counsel and Officers'
Certificate as conclusive evidence that any such consolidation, merger, sale,
conveyance or lease and any such assumption complies with the provisions of this
Article Eight.
ARTICLE NINE
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
SECTION 9.1 Satisfaction and Discharge of Indenture. If at any time
(a) the Issuer or the Guarantor shall have paid or caused to be paid the
principal of and interest on all the Securities of any particular series
Outstanding hereunder (other than Securities which have been mutilated, defaced,
destroyed, lost or stolen and which have been replaced or paid as provided in
Section 2.13 or in lieu of or in substitution for which other Securities shall
have been authenticated and delivered) as and when the same shall have become
due and payable, or (b) the Issuer or the Guarantor shall have delivered to the
Trustee for cancellation all Securities of such series theretofore authenticated
(other than any Securities of such series which shall have been mutilated,
defaced, destroyed, lost or stolen and which shall have been replaced or paid as
provided in Section 2.13 or in lieu of or in substitution for which other
Securities shall have been authenticated and delivered) and not theretofore
canceled, or (c)(i) all the Securities of such series not theretofore canceled
or delivered to the Trustee for cancellation shall have become due and payable,
or are by their terms to become due and payable within one year or are to be
called for redemption within one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption, and (ii) the Issuer or the
Guarantor shall have irrevocably deposited or caused to be deposited with the
Trustee as trust funds the entire amount in cash (other than moneys repaid by
the Trustee or any paying agent to the Issuer or the Guarantor in accordance
with Section 9.4) sufficient to pay at maturity or upon redemption all
Securities of such series not theretofore delivered to the Trustee for
cancellation (other than any Securities of such series which shall have been
mutilated, defaced, destroyed, lost or stolen which have been replaced or paid
as provided in Section 2.13 or in lieu of or in substitution for which other
Securities shall have been authenticated and delivered), including principal and
interest, if any, due or to become due to such date of maturity or the date
fixed for redemption, as the case may be, and if, in any such case, the Issuer
or the Guarantor shall also pay or cause to be paid all other sums payable
hereunder by the Issuer or the Guarantor with respect to Securities of such
series, then this Indenture shall cease to be of further effect with respect to
Securities of such series (except as to (i) rights of registration of transfer
and exchange, and the Issuer's right of optional redemption, (ii) substitution
of mutilated, defaced, destroyed, lost or stolen Securities, (iii) rights of
Securityholders to receive payments of principal thereof and interest, if any,
thereon, and remaining rights of the Securityholders to receive mandatory
sinking fund payments, if any, (iv) the rights, obligations and immunities of
the Trustee hereunder, including its rights under Section 5.5, (v) rights of
conversion, if any, and (vi) the rights of the Securityholders of such series as
beneficiaries hereof with respect to the property so deposited with the Trustee
payable to all or any of them), and the Trustee, on demand of the Issuer
accompanied by an Officers' Certificate and an Opinion of Counsel and at the
cost and expense of the Issuer, shall execute proper instruments acknowledging
such satisfaction of and discharging this Indenture with respect to such series.
SECTION 9.2 Funds Deposited with Trustee for Payment of Securities.
Subject to Section 9.4, all moneys deposited with the Trustee pursuant to
Section 9.1 shall be held in trust and applied by it to the payment, either
directly or through any paying agent (including the Issuer acting as its own
paying agent), to the Holders of the particular Securities of such series for
the payment or redemption of which such moneys have been deposited with the
Trustee, of all sums due and to become due thereon for principal and interest,
if any.
SECTION 9.3 Repayment of Moneys Held by Paying Agent. In connection
with the satisfaction and discharge of this Indenture with respect to Securities
of any series, all moneys then held by any paying agent, other than the Trustee,
under the provisions of this Indenture with respect to such series of Securities
shall, upon demand of the Issuer or the Guarantor, be repaid to the Issuer or,
to the extent that such moneys were deposited by it, the Guarantor, or paid to
the Trustee, and thereupon such paying agent shall be released from all further
liability with respect to such moneys.
SECTION 9.4 Return of Moneys Held by Trustee and Paying Agent
Unclaimed for Two Years. Any moneys deposited with or paid to the Trustee or any
paying agent for the payment of the principal of or interest, if any, on any
Security of any series and not applied but remaining unclaimed for two years
after the date upon which such principal or interest, as the case may be, shall
have become due and payable, shall, upon the written request of the Issuer or
the Guarantor and unless otherwise required by mandatory provisions of
applicable escheat or abandoned or unclaimed property law, be repaid to the
Issuer, or, to the extent that such moneys were deposited by it, the Guarantor
by the Trustee for such series or such paying agent, and the Holder of such
Security of such series shall, unless otherwise required by mandatory provisions
of applicable escheat or abandoned or unclaimed property laws, thereafter look
only to the Issuer for any payment which such Holder may be entitled to collect.
SECTION 9.5" Option to Effect Defeasance or Covenant Defeasance. The
Issuer or the Guarantor may at its option by or pursuant to a Resolution, at any
time, with respect to the Securities of any series, elect to have either Section
9.6 or Section 9.7 applied to the Outstanding Securities of such series upon
compliance with the conditions set forth below.
SECTION 9.6 Defeasance and Discharge. Upon the Issuer's or the
Guarantor's exercise of its option to utilize the provisions of this Section 9.6
and upon compliance with Section 9.8, the Issuer and the Guarantor shall be
deemed to have been discharged from their obligations with respect to the
Outstanding Securities of such series, and the Guarantor shall be deemed to have
been discharged from its obligations under the Guaranty with respect to such
Outstanding Securities, in each case on the date the conditions set forth below
are satisfied (hereinafter, "defeasance"). For this purpose, such defeasance
means that the Issuer shall be deemed to have paid and discharged the entire
indebtedness represented by the Outstanding Securities of such series and to
have satisfied all its other obligations under such Securities and this
Indenture insofar as such Securities are concerned and the Guarantor shall be
deemed to have discharged all of its obligations under the Guaranty (and the
Trustee, at the expense of the Issuer, shall execute proper instruments
acknowledging the same), except for the following which shall survive until
otherwise terminated or discharged hereunder: (a) the rights of Holders of
Outstanding Securities of such series to receive, solely from the trust fund
described in Section 9.8 and as more fully set forth in such Section, payments
in respect of the principal of and interest on such Securities when such
payments are due, (b) the obligations of the Issuer and the Guarantor with
respect to such Securities under Sections 2.12, 2.13, 2.16, 3.2 and 3.3, (c) the
rights, powers, trusts, duties, and immunities of the Trustee under Sections
2.13, 2.14, 2.16, 4.3, 5.5 and 9.4, and otherwise the duty of the Trustee to
authenticate Securities of such series issued on registration of transfer or
exchange, (d) the conversion rights, if any, of Holders of Outstanding
Securities of such series and the obligations of the Issuer and the Guarantor,
if any, with respect thereto under Article Eleven, and (e) this Article Nine.
Subject to compliance with this Article Nine, the Issuer or the Guarantor may
exercise its option under this Section 9.6 notwithstanding the prior exercise of
its option under Section 9.7 with respect to the Securities of such series.
SECTION 9.7 Covenant Defeasance. Upon the Issuer's or the Guarantor's
exercise of its option to utilize the provisions of this Section 9.7 and upon
compliance with Section 9.8, the Issuer and the Guarantor shall be released from
their respective obligations, if any, under Sections 3.4 and 3.5 with respect to
the Outstanding Securities of such series on and after the date the conditions
set forth below are satisfied (hereinafter, "covenant defeasance"). For this
purpose, such covenant defeasance means that, with respect to the Outstanding
Securities of such series, the Issuer and the Guarantor may omit to comply with
and shall have no liability in respect of any term, condition or limitation set
forth in any such Section with respect to it, whether directly or indirectly by
reason of any reference elsewhere herein to any such Section (including under
Section 4.1(d)) or by reason of any reference in any such Section to other
provision herein or in any other document, but the remainder of this Indenture
and any such Securities shall be unaffected thereby.
SECTION 9.8 Conditions to Defeasance or Covenant Defeasance. The
following shall be the conditions to application of either Section 9.6 or
Section 9.7 to the Outstanding Securities of such series:
(a) The Issuer or the Guarantor shall irrevocably have deposited or
caused to be deposited with the Trustee (or another trustee satisfying the
requirements of Section 5.7 who shall agree to comply with the provisions
of this Article Nine applicable to it) as trust funds in trust for the
purpose of making the following payments, specifically pledged as security
for, and dedicated solely to, the benefit of the Holders of such
Securities, (A) money in an amount, or (B) U.S. Government Obligations
which through the scheduled payment of principal and interest in respect
thereof in accordance with their terms will provide, not later than one day
before the due date of any payment, money in an amount, or (C) a
combination thereof, sufficient, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which shall be
applied by the Trustee (or other qualifying trustee) to pay and discharge,
(i) the principal of and each installment of principal of and interest on
the Outstanding Securities of such series on the stated maturity of such
principal or installment of principal or interest and (ii) any mandatory
sinking fund payments or analogous payments applicable to the Outstanding
Securities of such series on the day on which such payments are due and
payable in accordance with the terms of this Indenture and of such
Securities. For this purpose, "U.S. Government Obligations" means
securities that are (x) direct obligations of the United States of America
for the payment of which its full faith and credit is pledged or (y)
obligations of a person controlled or supervised by and acting as an agency
or instrumentality of the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the
United States of America, which, in either case, are not callable or
redeemable at the option of the issuer thereof, and shall also include a
depositary receipt issued by a bank (as defined in Section 3(a)(2) of the
Securities Act) as Custodian with respect to any such U.S. Government
Obligation or a specific payment of principal of or interest on any such
U.S. Government Obligation held by such Custodian for the account of the
Holder of such depositary receipt, provided, that (except as required by
law) such Custodian is not authorized to make any deduction from the amount
payable to the Holder of such depositary receipt from any amount received
by the Custodian in respect of the U.S. Government Obligation or the
specific payment of principal of or interest on the U.S. Government
Obligation evidenced by such depositary receipt.
(b) No Event of Default or event which with notice or lapse of time or
both would become an Event of Default with respect to the Securities of
such series shall have occurred and be continuing on the date of such
deposit.
(c) Such defeasance or covenant defeasance shall not cause the Trustee
for the Securities of such series to have a conflicting interest for
purposes of the Trust Indenture Act of 1939 with respect to any Securities
of the Issuer.
(d) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or
any other agreement or instrument to which the Issuer or the Guarantor is a
party or by which it is bound.
(e) Such defeasance or covenant defeasance shall not cause any
Securities of such series then listed on any registered national securities
exchange under the Exchange Act, to be delisted.
(f) In the case of an election under Section 9.6, the Issuer or the
Guarantor shall have delivered to the Trustee an Opinion of Counsel (who
may be counsel to the Issuer or the Guarantor) stating that (x) the Issuer
or the Guarantor has received from, or there has been published by, the
Internal Revenue Service a ruling, or (y) since the date of this Indenture
there has been a change in the applicable U.S. federal income tax law, in
either case to the effect that, and based thereon such opinion shall
confirm that, the Holders of the Outstanding Securities of such series will
not recognize income, gain or loss for U.S. federal income tax purposes as
a result of such defeasance and will be subject to U.S. federal income tax
on the same amounts, in the same manner and at the same times as would have
been the case if such defeasance had not occurred.
(g) In the case of an election under Section 9.7, the Issuer or the
Guarantor shall have delivered to the Trustee an Opinion of Counsel (who
may be counsel to the Issuer or the Guarantor) to the effect that the
Holders of the Outstanding Securities of such series will not recognize
income, gain or loss for U.S federal income tax purposes as a result of
such covenant defeasance and will be subject to U.S. federal income tax on
the same amounts, in the same manner and at the same times as would have
been the case if such covenant defeasance had not occurred.
(h) The Issuer or the Guarantor shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to either the defeasance under
Section 9.6 or the covenant defeasance under Section 9.7 (as the case may
be) have been complied with.
SECTION 9.9 Deposited Money and U.S. Government Obligations to Be Held
in Trust; Other Miscellaneous Provisions. Subject to the provisions of Section
9.4, all money and U.S. Government Obligations (including the proceeds thereof)
deposited with the Trustee (or other qualifying trustee -- collectively, for
purposes of this Section 9.9, the "Trustee") pursuant to Section 9.8 in respect
of the Outstanding Securities of such series shall be held in trust and applied
by the Trustee, in accordance with the provisions of such Securities and this
Indenture (including the subordination provisions thereof and hereof), to the
payment, either directly or through any paying agent (including the Issuer
acting as its own paying agent) as the Trustee may determine, to the Holders of
such Securities, of all sums due and to become due thereon in respect of
principal and interest, but such money need not be segregated from other funds
except to the extent required by law.
The Issuer and the Guarantor shall pay and indemnify the Trustee
against any tax, fee or other charge imposed on or assessed against the U.S.
Government Obligations deposited pursuant to Section 9.8 or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the Outstanding
Securities of such series.
Anything in this Article Nine to the contrary notwithstanding, the
Trustee shall deliver or pay to the Issuer or the Guarantor, as applicable, from
time to time upon the Issuer's or the Guarantor's written request any money or
U.S. Government Obligations held by it as provided in Section 9.8 which, in the
written opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be required to be
deposited to effect an equivalent defeasance or covenant defeasance.
ARTICLE TEN
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 10.1 Applicability of Article. The provisions of this Article
shall be applicable to the Securities of any series which are redeemable before
their maturity and to any sinking fund for the retirement of Securities of a
series except as otherwise specified as contemplated by Section 2.6 for
Securities of such series.
SECTION 10.2 Notice of Redemption; Selection of Securities. In case
the Issuer shall desire to exercise any right to redeem all or any part of the
Securities of any series in accordance with their terms, the Issuer shall fix a
date for redemption and shall notify the Trustee in writing, at least 45 days
before such redemption date. The Issuer, or at the request and at the expense of
the Issuer, the Trustee, shall mail a notice of such redemption, at least 30
days and not more than 60 days prior to the date fixed for redemption, to the
Holders of Securities of such series so to be redeemed in whole or in part at
their last addresses as they shall appear in the Register. Any notice which is
mailed in the manner herein provided shall be conclusively presumed to have been
duly given, whether or not the Holder receives the notice. Failure to give
notice by mail, or any defect in the notice, to the Holder of any Security of a
series designated for redemption as a whole or in part shall not affect the
validity of the proceedings for the redemption of any other Security of such
series.
The notice of redemption to each such Holder shall specify the CUSIP
number of the Securities of such series, if any, the date fixed for redemption,
the redemption price, the place or places of payment, if the Securities of such
series are convertible at the option of the Holder into Parent Shares, the
Conversion Price, the place or places of conversion, that, unless otherwise
provided pursuant to Section 2.6 for Securities of such series, Securities
called for redemption may be converted at any time before the close of business
on the third Business Day prior to the date fixed for redemption and if not
converted prior to the close of business on such date, the right of conversion
will be lost and that Holders who want to convert Securities must satisfy the
requirements set forth in the terms thereof, that payment will be made upon
presentation and surrender of such Securities, that any interest accrued to the
date fixed for redemption will be paid as specified in such notice and that on
and after said date any interest thereon or on the portions thereof to be
redeemed will cease to accrue. If less than all of the Outstanding Securities of
a series are to be redeemed, the notice of redemption shall specify the number
or numbers or distinguishing symbol or symbols of the Securities to be redeemed.
In case any Security of a series is to be redeemed in part only the notice of
redemption shall state the portion of the principal amount thereof to be
redeemed and shall state that on and after the date fixed for redemption, upon
surrender of such Security, a new Security or Securities of such series in
principal amount equal to the unredeemed portion thereof will be issued.
Prior to the redemption date specified in the notice of redemption
given as provided in this Section, the Issuer or the Guarantor will deposit with
the Trustee or with one or more paying agents (or, if the Issuer is acting as
its own paying agent, segregate and hold in trust as required by the Trust
Indenture Act of 1939) an amount of money (in the currency or units of
currencies or composite currency in which the Securities so called for
redemption are denominated or an appropriate equivalent thereof) sufficient to
redeem on the redemption date all the Securities of such series or portions
thereof so called for redemption at the appropriate redemption price, together
with accrued interest to the date fixed for redemption. If less than all the
Outstanding Securities of a series are to be redeemed (or less than the full
principal amount of each Security in such series is to be redeemed), the Issuer
or the Guarantor will deliver to the Trustee at least 60 days prior to the date
fixed for redemption (or such shorter period if acceptable to the Trustee) an
Officers' Certificate stating the aggregate principal amount of Securities to be
redeemed and, if the Trustee is not acting as the repository of the Register for
such series, a current list of all Outstanding Securities of such series.
If less than all the Outstanding Securities of a series are to be
redeemed, the Trustee shall select, in such manner as it shall deem appropriate,
Securities of such series to be redeemed in whole or in part; however, if less
than all the Securities of any series with differing issue dates, interest rates
and stated maturities are to be redeemed, the Issuer or the Guarantor in its
sole discretion shall select the particular Securities to be redeemed and shall
notify the Trustee in writing thereof at least 45 days prior to the relevant
redemption date. Except as otherwise specified for Securities of a particular
series pursuant to Section 2.6, Securities may be redeemed in part in amounts
equal to the minimum authorized denomination for Securities of such series or
any multiple thereof. The Trustee shall promptly notify the Issuer and the
Guarantor in writing of the Securities of such series selected for redemption
and, in the case of any Securities of such series selected for partial
redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities of any series
shall relate, in the case of any Security redeemed or to be redeemed only in
part, to the portion of the principal amount of such Security which has been or
is to be redeemed.
SECTION 10.3 Payment of Securities Called for Redemption. If notice of
redemption has been given as provided in Section 10.2, the Securities or
portions of Securities specified in such notice shall become due and payable on
the date and at the place or places stated in such notice at the applicable
redemption price, together with interest accrued to the date fixed for
redemption, and on and after said date (unless the Issuer shall default in the
payment of such Securities or portions thereof at the redemption price, together
with interest accrued to said date) interest on the Securities or portions of
Securities so called for redemption shall cease to accrue and, except as
provided in Sections 5.4 and 9.4, such Securities shall cease from and after the
date fixed for redemption to be entitled to any benefit or security under this
Indenture, and the Holders of such Securities shall have no right in respect of
such Securities except the right to receive the redemption price thereof and
unpaid interest to the date fixed for redemption. On presentation and surrender
of such Securities at a place of payment specified in said notice, said
Securities or the specified portions thereof shall be paid and redeemed by the
Issuer at the applicable redemption price, together with interest accrued
thereon to the date fixed for redemption; provided, that if the date fixed for
redemption is an interest payment date, the interest due on that date shall be
payable to the Holders of such Securities registered as such on the relevant
record date according to their terms.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal thereof so to be redeemed shall,
until paid or duly provided for, bear interest from the date fixed for
redemption at the Overdue Rate applicable to such series.
Upon presentation of any Security redeemed in part only, the Issuer
shall execute (in each case with the Guaranty endorsed thereon executed by the
Guarantor) and the Trustee shall authenticate and make available for delivery to
or on the order of the Holder thereof, at the expense of the Issuer, a new
Security or Securities of such series, of authorized denominations, in principal
amount equal to the unredeemed portion of the Security so presented.
SECTION 10.4 Conversion Arrangement on Call for Redemption. If in
connection with any redemption of Securities of any series with respect to which
the Holders have the right to convert such Securities into Parent Shares, the
Holders thereof do not elect to convert such Securities, the Issuer or the
Guarantor may arrange for the purchase and conversion of such Securities by an
agreement with one or more investment banking firms or other purchasers to
purchase such Securities by paying to the Trustee in trust for the Holders, not
later than the close of three Business Days prior to the date fixed for
redemption, an amount not less than the applicable redemption price, together
with interest accrued to the date fixed for redemption, of such Securities.
Notwithstanding anything to the contrary contained in this Article Ten, the
obligation of the Issuer to pay the redemption price of such Securities,
together with interest accrued to the date fixed for redemption, shall be deemed
to be satisfied and discharged to the extent such amount is so paid by such
purchasers to the Trustee in trust for the Holders. If such an agreement is
made, any Securities not duly surrendered for conversion by the Holders thereof
may, at the option of the Issuer or the Guarantor, as the case may be, be
deemed, to the fullest extent permitted by law, to have been acquired by such
purchasers from such Holders and (notwithstanding anything to the contrary
contained in Article Eleven) surrendered by such purchasers for conversion, all
as of immediately prior to the close of business on the date fixed for
redemption, subject to payment by the purchasers as specified above. The Trustee
shall hold and dispose of any such amount paid to it in the same manner as it
would moneys deposited with it by the Issuer for the redemption of Securities.
Without the Trustee's prior written consent, no arrangement between the Issuer
or the Guarantor and such purchasers for the purchase and conversion of any
Securities shall increase or otherwise affect any of the powers, duties,
responsibilities or obligations of the Trustee as set forth in this Indenture,
and the Issuer and the Guarantor agree to indemnify the Trustee from, and hold
it harmless against, any and all loss, liability, claim, damage or expense
arising out of or in connection with any such arrangement for the purchase and
conversion of any Securities between the Issuer or the Guarantor and such
purchasers to which the Trustee has not consented in writing, including the
costs and expenses incurred by the Trustee and its counsel in the defense of any
claim or liability arising out of or in connection with the exercise or
performance of any of its powers, duties, responsibilities or obligations under
this Indenture.
SECTION 10.5 Exclusion of Certain Securities from Eligibility for
Selection for Redemption. Securities shall be excluded from eligibility for
selection for redemption if they are identified by registration and certificate
number or other distinguishing symbol in a written statement signed by an
authorized officer of the Issuer and delivered to the Trustee at least 10 days
prior to the date on which Securities are to be selected for redemption as being
owned of record and beneficially by, and not pledged or hypothecated by, either
(a) the Issuer or the Guarantor or (b) an entity specifically identified in such
written statement directly or indirectly controlling or controlled by or under
direct or indirect common control with the Issuer or the Guarantor.
SECTION 10.6 Mandatory and Optional Sinking Funds. The minimum amount
of any sinking fund payment provided for by the terms of Securities of any
series is herein referred to as a "mandatory sinking fund payment", and any
payment in excess of such minimum amount provided for by the terms of Securities
of any series is herein referred to as an "optional sinking fund payment". The
date on which a sinking fund payment is to be made is herein referred to as the
"sinking fund payment date".
In lieu of making all or any part of any mandatory sinking fund
payment with respect to any series of Securities in cash, the Issuer may at its
option (a) deliver to the Trustee Securities of such series theretofore
purchased or otherwise acquired (except upon redemption pursuant to the
mandatory sinking fund) or receive credit for Securities of such series by the
Issuer (not previously so credited) theretofore purchased or otherwise acquired
(except as aforesaid) and delivered to the Trustee for cancellation pursuant to
Section 2.14, (b) receive credit for optional sinking fund payments (not
previously so credited) made pursuant to this Section, (c) receive credit for
Securities of such series (not previously so credited) that have been
surrendered to the Issuer for conversion, or (d) receive credit for Securities
of such series (not previously so credited) redeemed by the Issuer through any
optional redemption provision contained in the terms of Securities of such
series. Securities so delivered or credited shall be received or credited by the
Trustee at the sinking fund redemption price specified in such Securities, and
the amount of such mandatory sinking fund payment shall be reduced accordingly.
On or before the sixtieth day next preceding each sinking fund payment
date for any series of Securities, the Issuer will deliver to the Trustee a
certificate of the Issuer (which need not contain the statements required by the
Trust Indenture Act of 1939) signed by an officer of the Issuer who is one of
the officers authorized to sign an Officers' Certificate, (a) specifying the
portion, if any, of the mandatory sinking fund payment to be satisfied by
payment of cash and the portion, if any, to be satisfied by credit of Securities
of such series, (b) stating that none of such Securities has theretofore been so
credited, (c) stating that no Event of Default with respect to such series has
occurred (which has not been waived or cured) and is continuing and (d) stating
whether or not the Issuer intends to exercise its right to make an optional
sinking fund payment with respect to such series and, if so, specifying the
amount of such optional sinking fund payment which the Issuer intends to pay on
or before the next succeeding sinking fund payment date. Any Securities of such
series to be credited and required to be delivered to the Trustee in order for
the Issuer to be entitled to credit therefor as aforesaid which have not
theretofore been delivered to the Trustee shall be delivered for cancellation
pursuant to Section 2.14 to the Trustee with such certificate. Such certificate
shall be irrevocable and upon its receipt by the Trustee the Issuer shall become
obligated to make all the cash payments or payments therein referred to, if any
(which cash may be deposited with the Trustee or with one or more paying agents
or, if the Issuer is acting as its own paying agent, segregated and held in
trust as required by the Trust Indenture Act of 1939), on or before the next
succeeding sinking fund payment date. Failure of the Issuer, on or before any
such sixtieth day, to deliver such certificate and Securities specified in this
paragraph, if any, shall not constitute a default but shall constitute, on and
as of such date, the irrevocable election of the Issuer (i) that the mandatory
sinking fund payment for such series due on the next succeeding sinking fund
payment date shall be paid entirely in cash without the option to deliver or
credit Securities of such series in respect thereof and (ii) that the Issuer
will make no optional sinking fund payment with respect to such series as
provided in this Section. If the sinking fund payment or payments (mandatory or
optional or both) to be made in cash on the next succeeding sinking fund payment
date plus any unused balance of any preceding sinking fund payments made in cash
shall exceed U.S.$100,000 or, if payments on Securities of such series are to be
made in a currency other than Dollars or in units or composites of two more
currencies, the equivalent thereof (based upon the Market Exchange Rate on the
sixtieth day preceding the relevant sinking fund payment date or if the Market
Exchange Rate is not available for such date, the immediately preceding date for
which the Market Exchange Rate is available) in the relevant currency or unit or
composite currency (or such other amount as is specified for a particular series
of Securities pursuant to Section 2.6), or a lesser sum if the Issuer shall so
request, with respect to the Securities of any particular series, such cash
shall be applied by the Trustee (or by the Issuer if the Issuer is acting as its
own paying agent) on the sinking fund payment date on which such payment is made
(or, if such payment is made before a sinking fund payment date, on the next
sinking fund payment date following the date of such payment) to the redemption
of such Securities at the sinking fund redemption price specified in such
Securities for operation of the sinking fund together with accrued interest, if
any, to the date fixed for redemption. If such amount shall be U.S.$100,000 or,
if payments on Securities of such series are to be made in a currency other than
Dollars or in units or composites of two more currencies, the equivalent thereof
(based upon the Market Exchange Rate on the sixtieth day preceding the relevant
sinking fund payment date or if the Market Exchange Rate is not available for
such date, the immediately preceding date for which the Market Exchange Rate is
available) in the relevant currency or unit or composite currency (or such other
amount as is specified for the particular series pursuant to Section 2.6), or
less and the Issuer makes no such request then it shall be carried over until a
sum in excess of U.S.$100,000, or the equivalent thereof in the relevant
currency or unit or composite currency, is available.
The Trustee shall select, in the manner provided in Section 10.2, for
redemption on such sinking fund payment date, Securities of such series with
respect to which cash payment of the applicable sinking fund redemption price
will be made and shall (if requested in writing by the Issuer) inform the Issuer
of the serial numbers or other distinguishing symbols of the Securities of such
series (or portions thereof) so selected. If the Trustee shall be required to
select Securities of any series for the sinking fund and is not acting as
repository of the Register for such series, at least 60 days prior to the
sinking fund payment date the Issuer shall furnish to the Trustee a current list
of all Outstanding Securities of such series. Securities of any series which are
(a) owned by the Issuer, the Guarantor or an entity actually known by the
Trustee to be directly or indirectly controlling or controlled by or under
direct or indirect common control with the Issuer, as shown by the Register, and
not known to the Trustee to have been pledged or hypothecated by the Issuer, the
Guarantor or any such entity or (b) identified in an Officers' Certificate at
least 60 days prior to the sinking fund payment date as being beneficially owned
by, and not pledged or hypothecated by, the Issuer, the Guarantor or an entity
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Issuer or the Guarantor, shall be excluded from
Securities of such series eligible for selection for redemption. The Trustee, in
the name and at the expense of the Issuer (or the Issuer, if it shall so notify
the Trustee in writing) shall cause notice of redemption of the Securities of
such series to be given in substantially the manner provided in Section 10.2,
except that the notice of redemption shall also state that the Securities are
being redeemed by operation of the sinking fund (and with the effect provided in
Section 10.3) for the redemption of Securities of such series which, if
applicable, is in part at the option of the Issuer.
The amount of any sinking fund payments not so applied or allocated by
the Trustee (or by the Issuer if the Issuer is acting as its own paying agent)
to the redemption of Securities of such series shall be added to the next cash
sinking fund payment received by the Trustee (or if the Issuer is acting as its
own paying agent, segregated and held in trust as required by the Trust
Indenture Act of 1939) for such series and, together with such payment (or such
amount so segregated), shall be applied in accordance with the provisions of
this Section 10.6. Any and all sinking fund moneys held by the Trustee (or if
the Issuer is acting as its own paying agent, segregated and held in trust as
required by the Trust Indenture Act of 1939) on the stated maturity date of the
Securities of any particular series (or earlier, if such maturity is
accelerated), which are not held for the payment or redemption of particular
Securities of such series shall be applied by the Trustee (or by the Issuer if
the Issuer is acting as its own paying agent), together with other moneys, if
necessary, sufficient for the purpose, to the payment of the principal of, and
interest on, the Securities of such series at maturity.
On or before each sinking fund payment date, the Issuer shall pay to
the Trustee in cash (or if the Issuer is acting as its own paying agent will
segregate and hold in trust as required by the Trust Indenture Act of 1939) or
shall otherwise provide for the payment of all interest accrued to the date
fixed for redemption on Securities (or portions thereof) to be redeemed on such
sinking fund payment date.
Neither the Issuer nor the Trustee shall redeem or cause to be
redeemed any Securities of a series with sinking fund moneys or mail any notice
of redemption of Securities for such series by operation of the sinking fund
during the continuance of a default in payment of interest, if any, on such
Securities or of any Event of Default (other than an Event of Default occurring
as a consequence of this paragraph, with respect to such Securities) except
that, where the mailing of notice of redemption of any Securities shall
theretofore have been made, the Trustee (or the Issuer if the Issuer is acting
as its own paying agent) shall redeem or cause to be redeemed such Securities,
provided that it shall have received from the Issuer (or the Issuer shall have
segregated) a sum sufficient for such redemption. Except as aforesaid, any
moneys in the sinking fund for such series at the time when any such default or
Event of Default shall occur, and any moneys thereafter paid into the sinking
fund, shall, during the continuance of such default or Event of Default, be
deemed to have been collected under Article Four and held for the payment of all
such Securities. Notwithstanding anything in the foregoing to the contrary, in
case such default or Event of Default shall have been waived as provided in
Section 4.9 or the default or Event of Default cured on or before the sixtieth
day preceding the sinking fund payment date in any year, such moneys shall
thereafter be applied on the next succeeding sinking fund payment date in
accordance with this Section 10.6 to the redemption of such Securities.
SECTION 10.7 Redemption for Tax Reasons. If at any time after the date
of issuance of Securities of any series pursuant to this Indenture as a result
of any change in, or amendment to, the laws or regulations of The Netherlands or
of any political subdivision thereof or any authority therein or thereof having
power to tax or as a result of any change in the application or official
interpretation of such laws or regulations, which change or amendment becomes
effective after the date of such issuance, the Guarantor becomes, or will
become, obligated to pay any Additional Amounts with respect to any payments
that it may be required to make pursuant to the Guaranty with respect to
Securities of any series and such obligations cannot be avoided by the Issuer or
the Guarantor taking reasonable measures available to either of them, then the
Securities of such series will be redeemable as a whole (but not in part), at
the option of the Issuer, at any time upon not less than thirty (30) nor more
than sixty (60) days' notice given to the Holders at their principal amount
together with accrued interest thereon (and any Additional Amounts Payable with
respect thereto) to the date fixed for redemption (the "Tax Redemption Date").
In order to effect a redemption of Securities of any such series as described in
this paragraph, the Issuer and the Guarantor shall deliver to the Trustee at
least forty-five (45) days prior to the Tax Redemption Date: (i) a written
notice stating that the Securities of this series are to be redeemed as a whole
and (ii) an opinion of independent legal counsel of recognized standing to the
effect that the Guarantor has or will become obligated to pay Additional Amounts
with respect to any payments that it may be required to make pursuant to such
Guaranty as a result of any such change or amendment. No notice of redemption
may be given earlier than ninety (90) days prior to the earliest date on which
the Guarantor would be obligated to pay such Additional Amounts were a payment
in respect of the Securities of such series then due. The notice shall
additionally specify the Tax Redemption Date and all other information necessary
to the publication and mailing by the Trustee of notices of such redemption. The
Trustee shall be entitled to rely conclusively upon the information so furnished
by the Issuer and the Guarantor in such notice and shall be under no duty to
check the accuracy or completeness thereof. Such notice shall be irrevocable.
ARTICLE ELEVEN
CONVERSION OF SECURITIES
SECTION 11.1 Conversion of Securities. In connection with Securities
of any series that are convertible into Parent Shares, each such Security (or
any portion thereof which is, unless otherwise specified as contemplated by
Section 2.6 for Securities of any series, U.S.$1,000 or an integral multiple
thereof) shall be convertible into Parent Common Shares or Parent American
Depositary Shares as specified pursuant to Section 2.6 for Securities of such
series, in accordance with its terms and (except as otherwise specified pursuant
to Section 2.6 for Securities of such series) in accordance with this Article
Eleven at any time until the close of business on the third Business Day
preceding the maturity date of the Securities of such series or in case such
Security shall have been called for redemption, then in respect of such Security
until (unless the Issuer shall default in payment due upon the redemption
thereof) the close of business on the third Business Day preceding the date
fixed for redemption, unless otherwise specified as contemplated by Section 2.6
for Securities of such series.
The initial Conversion Price at which a Security of any series is
convertible shall be set forth in or established pursuant to a Resolution of the
Issuer or the Guarantor or supplemental indenture contemplated by Section 2.6.
Any such Security that is convertible at the option of the Holder
thereof shall be so converted upon surrender to the Trustee or the Conversion
Agent for surrender to the Issuer or the Guarantor in accordance with the
instructions on file with the Trustee and the Conversion Agent, at any time
during usual business hours at the office or agency to be maintained by the
Issuer in accordance with the provisions of Section 3.2, accompanied by a
written notice of election to convert as provided in Section 11.2 and, if so
required by the Issuer or the Guarantor, by a written instrument or instruments
of transfer in form satisfactory to the Issuer, the Guarantor and the Conversion
Agent duly executed by the Holder or his attorney duly authorized in writing.
Any such Security that is convertible otherwise than at the option of the Holder
thereof shall be so converted as specified pursuant to Section 2.6 for
Securities of such series. The Issuer and the Guarantor covenant to effect such
conversion by procuring the issuance of Parent Shares and payment of cash in
lieu of fractional Parent Shares in exchange for and in consideration of
delivery to it of the Securities. For convenience, the conversion of principal
of any Security or Securities pursuant to this Article Eleven is hereinafter
sometimes referred to as the conversion of such Security or Securities. All
Securities surrendered for conversion shall, if surrendered to the Issuer, the
Guarantor or the Conversion Agent, be delivered to the Trustee for cancellation
and canceled by it as provided in Section 2.13 (except as otherwise provided
therein). Any Security surrendered for conversion shall not thereafter be
convertible.
SECTION 11.2 Issuance of Parent Shares on Conversion. As promptly as
practicable after the surrender as herein provided of any Security or Securities
for conversion, the Issuer (or the Guarantor if it has delivered to the Trustee
an agreement between the Company and the Guarantor which is then in effect that
the Guarantor shall effect the conversion of the Securities) shall deliver or
cause to be delivered at its office or agency to or upon the written order of
the Holder of the Security or Securities so surrendered, either, as requested by
the Holder, the number of duly authorized, validly issued, fully paid and
nonassessable Parent Common Shares into which such Security or Securities may be
converted in accordance with the provisions of this Article Eleven or a Parent
ADR evidencing Parent ADSs which represents such number of Parent Common Shares
(such Parent Common Shares or Parent ADSs being referred to in this Article
Eleven as the "Parent Conversion Shares"). Prior to delivery of such Parent
Conversion Shares upon conversion of a Security at the option of a Holder, the
Issuer or the Guarantor, as the case may be, shall require a written notice,
which shall be substantially in the Form of Election to Convert as provided for
in Section 2.17, to be delivered to its office or agency from the Holder of the
Security or Securities so surrendered stating that the Holder irrevocably elects
to convert such Security or Securities for Parent Common Shares or Parent ADSs,
as specified in such notice. Such conversion notice once given shall be
irrevocable and may not be withdrawn without the consent in writing of the
Issuer or the Guarantor. The Issuer, the Guarantor or any Conversion Agent on
any of their behalf, may reject any incomplete or incorrect conversion notice.
All costs and expenses incurred or caused by an incomplete or incorrect notice
shall be for the account of the relevant Holder.
If the Holder is electing to receive Parent ADSs upon such conversion,
such notice shall also state the name or names (with address or addresses) in
which the Parent ADR evidencing such Parent ADSs are to be issued. Such
conversion shall be deemed to have been made at the close of business on the
date that such Security or Securities shall have been surrendered for conversion
and such notice shall have been received by the Issuer, and the rights of the
Holder of such Security as a Holder shall cease at such time. The person or
persons entitled to receive the Parent Conversion Shares upon conversion of such
Security or Securities shall be treated for all purposes as having become the
holder or holders of such Parent Conversion Shares at such time and such
conversion shall be at the Conversion Price for such series of Securities in
effect at such time; provided, however, in the case of a Holder electing to
receive Parent ADSs upon such conversion, that no such surrender on any date
when the transfer books of the Parent Common Share Depositary shall be closed
shall be effective to constitute the person or persons entitled to receive such
Parent ADSs upon such conversion as the record holder or holders of such Parent
ADSs on such date, but such surrender shall be effective to constitute the
person or persons entitled to receive such Parent ADSs as the record holder or
holders thereof for all purposes at the close of business on the next succeeding
day on which such transfer books are open; such conversion shall be at the
Conversion Price in effect on the date that such Security or Securities shall
have been surrendered for conversion, as if the transfer books of the Parent
Common Share Depositary had not been closed.
Upon conversion of any Security which is converted in part only, the
Issuer shall execute and the Trustee shall authenticate and make available for
delivery to or on the order of the holder thereof, at the expense of the Issuer,
a new Security or Security of authorized denominations in a principal amount
equal to the unconverted portion of such Security.
SECTION 11.3 No Adjustment for Interest or Dividends. No payment or
adjustment in respect of interest on the Securities or dividends on the Parent
Conversion Shares shall be made upon the conversion of any Security or
Securities; provided, however, that if a Security or Securities or any portion
thereof shall be converted subsequent to any record date and on or prior to the
next succeeding interest payment date, the interest falling due on such interest
payment date shall be payable on such interest payment date notwithstanding such
conversion, and such interest (whether or not punctually paid or duly provided
for) shall be paid to the person in whose name such Security is registered at
the close of business on such record date and Securities surrendered for
conversion during the period from the close of business on any record date to
the opening of business on the corresponding interest payment date must be
accompanied by payment of any amount equal to the interest payable on such
interest payment date.
SECTION 11.4 Adjustment of Conversion Price. Except as may otherwise
be established pursuant to Section 2.6 with respect to a particular series of
Securities, the Conversion Price in effect at any time for any series of
Securities that is convertible into Parent Shares shall be subject to adjustment
as follows:
(a) If the Guarantor shall, after the original issue date of such
series of Securities, (i) pay a dividend or make a distribution on its Parent
Common Shares in the form of Parent Common Shares (including, for the avoidance
of doubt, a dividend or distribution that permits the recipient to elect between
cash and Parent Common Shares), (ii) split its outstanding Parent Common Shares
into a greater number of Parent Common Shares or (iii) consolidate its
outstanding Parent Common Shares into a lesser number of Parent Common Shares,
the Conversion Price shall be adjusted (with effect from the Effective Date of
such event) in accordance with the following formula:
A = P x X
---
Y
where:
"A" shall mean the adjusted Conversion Price;
"P" shall mean the Conversion Price prior to the adjustment;
"X" shall mean the number of Parent Common Shares outstanding
immediately prior to the happening of the relevant event; and
"Y" shall mean the number of Parent Common Shares outstanding
immediately after the happening of the relevant event.
(b) If the Guarantor or any of its Subsidiaries shall, after the
original issue date of such Securities, issue
(i) to all or substantially all holders of Parent Common Shares, any
rights to purchase or subscribe for Parent Common Shares or other
securities which are convertible into or exchangeable for Parent Common
Shares or warrants or other rights to purchase or subscribe for Parent
Common Shares; or
(ii) Parent Common Shares or other securities or rights which are
convertible into or exchangeable for Parent Common Shares or warrants or
other rights to purchase or subscribe for Parent Common Shares (other than
issuances covered by (a) of this Section 11.4);
and the purchase, subscription, conversion, exchange or other issue price per
Parent Common Share (taking into account the consideration, if any, received by
the Guarantor in respect of an issuance covered by clause (ii) above) is below
the Market Price on the date of announcement of such issuance (or in the case of
(ii) above, below 95% of the Market Price on such date), the Conversion Price
shall be adjusted (with effect from the Effective Date of such event) in
accordance with the following formula:
A = P x (S + f)
-------
(S + a)
where:
"A" and "P" shall have the same meanings as in paragraph (a) of this
Section 11.4;
"S" shall mean the number of Parent Common Shares outstanding on the
date of the announcement of such event;
"f" shall mean the number of additional Parent Common Shares which the
aggregate purchase, subscription, conversion, exchange or other price
(taking into account the consideration received by the Guarantor in respect
of an issuance covered by (ii) above) would purchase at the Market Price;
and
"a" shall mean the number of additional Parent Common Shares which are
issued or are initially issuable pursuant to the other securities or rights
that are the subject of the issue.
(c) In case the Guarantor shall issue or distribute, as the case may
be, after the original issue date of such series of Securities, to all or
substantially all holders of Parent Common Shares any securities (other than as
described in paragraph (a) or (b) above) or assets (other than cash dividends or
dividends in kind in accordance with applicable laws) in each case declared and
paid in the ordinary course of the Guarantor's operations (but, for the
avoidance of doubt, including any dividend, or portion thereof, which
constitutes a redemption of Parent Common Share capital as part of a reduction
in nominal value of the Parent Common Shares) or any rights to acquire such
securities or assets, the Conversion Price shall be adjusted (with effect from
the Effective Date of such event) in accordance with the following formula:
A = P x (M - d)
-------
M
where:
"A" and "P" shall have the same meanings as in paragraph (a) of this
Section 11.4;
"M" shall mean the Market Price on the date on which such issue or
distribution, as the case may be, shall be made; and
"d" shall mean the fair market value (as determined by the Executive
Board, which determination shall be conclusive as of the date on which such
issue or distribution, as the case may be, shall be made) of such portion
of securities or assets or rights to acquire any of the foregoing as is
attributable to one Parent Common Share.
(d) If the Guarantor shall issue or distribute, after the original
issue date of such series of Securities, an Extraordinary Dividend, the
Conversion Price shall be adjusted (with effect from the Effective Date of such
event) in accordance with the following formula:
A = P x (M - e)
-------
M
where:
"A", "P" and "M" have the same meaning as in paragraph (c) of this
Section 11.4; and
"e" shall mean the Extraordinary Dividend;
For purpose of this paragraph (d), an Extraordinary Dividend shall
have occurred if, at the Effective Date, the aggregate amount of (x) any
cash dividends (prior to the deduction of any withholding tax plus any
corporate tax attributable to such dividend (a "Cash Dividend")) paid or
declared by the Guarantor on the Parent Common Shares and (y) all other
Cash Dividends paid or declared on the Parent Common Shares in the 365
consecutive day period prior to the Effective Date (such aggregate of (x)
and (y) being the "Total Current Dividend"), equals or exceeds on a per
Parent Common Share basis 5% of the Average Closing Price of the Parent
Common Shares during the Relevant Period. For the avoidance of doubt, all
values are on a per Parent Common Share basis.
(e) If the Guarantor determines (after consultation with the Trustee)
that an adjustment should be made to the Conversion Price, the Guarantor shall,
if the effect of the adjustment is to reduce the Conversion Price, make such
adjustments as it determines is fair and reasonable.
(f) Notwithstanding anything in this Section 11.4 to the contrary, the
Conversion Price may not be reduced so that, on exchange and conversion, Parent
Common Shares would be issued at a discount to their par value. Except in the
case of a consolidation of Parent Common Shares as provided in paragraph (a) of
this Section 11.4, in no event shall the Conversion Price be increased as a
result of any adjustment.
(g) Except as otherwise may be specified for any series of Securities
pursuant to Section 2.6, all calculations under this Section 11.4 shall be made
to the nearest cent or to the nearest one-hundredth of a Parent Common Share, as
the case may be. If any doubt shall arise as to the appropriate adjustment to
the Conversion Price, a certificate of the auditors of the Guarantor at the time
shall be conclusive and binding on all concerned save in the case of manifest
error.
(h) No adjustment in the Conversion Price shall be required unless
such adjustment would require a change of at least 1% in the Conversion Price
then in effect; provided, however, that any adjustments which by reason of this
paragraph are not required to be made and any amount by which the Conversion
Price shall be rounded shall be carried forward and taken into account in any
subsequent adjustment.
(i) No adjustment in the Conversion Price shall be required for a
change in the par value of the Parent Common Shares.
(j) Notwithstanding anything herein to the contrary, no adjustment
will be made to the Conversion Price where Parent Common Shares or other
securities or options, warrants or other rights to subscribe for or purchase
Parent Common Shares or other securities are issued to employees (including
directors holding executive office) of the Guarantor or of any Subsidiary or
associated company of the Guarantor pursuant to any stock option programs or
similar arrangements for employees.
(k) If a conversion date shall fall prior to the Effective Date of an
event requiring adjustment of the Conversion Price in circumstances where the
delivery of Parent Shares in respect of the exercise of the relevant conversion
right falls on or after such Effective Date, the Guarantor shall issue to the
relevant Holder such additional number of Parent Shares to which such Holder
would have been entitled had the relevant conversion date fallen immediately
following such Effective Date.
(l) Whenever the Conversion Price of any series is adjusted, as herein
provided, the Guarantor shall promptly file with the Trustee and with the
Conversion Agent a certificate of the Chief Financial Officer or Treasurer of
the Guarantor setting forth the Conversion Price after such adjustment and
setting forth a brief statement of the facts requiring such adjustment and a
computation thereof. Such certificate shall be conclusive evidence of the
correctness of such adjustment. Neither the Trustee nor any Conversion Agent
shall be under any duty or responsibility with respect to any such certificate
or any facts or computations set forth therein, except to exhibit said
certificate from time to time to any Holder of Securities desiring to inspect
the same. The Trustee, at the expense of the Guarantor, shall cause notice
setting forth the Conversion Price to be mailed, first-class postage prepaid, to
each Holder of Securities of such series at the address of such Holder as it
appears in the Register or in such other manner as shall be specified pursuant
to Section 2.6 for Securities of such series.
SECTION 11.5 No Fractional Parent Shares To Be Issued. No fractional
Parent Conversion Shares shall be issued upon conversions of Securities. If more
than one Security of any series shall be surrendered for conversion at one time
by the same Holder, the number of full Parent Shares which shall be issuable
upon conversion thereof shall be computed on the basis of the aggregate
principal amount of the Securities of such series so surrendered. Instead of a
fraction of a Parent Conversion Share which would otherwise be issuable upon
conversion of any Security or Securities (or specified portions thereof), the
Guarantor shall pay a cash adjustment in respect of such fraction of a Parent
Share in an amount equal to the same fractional interest of the Closing Price of
Parent Common Shares on the Stock Exchange Trading Day next preceding the day of
conversion.
SECTION 11.6 Preservation of Conversion Rights upon Consolidation,
Merger, Sale or Similar Event. In the event that the Guarantor shall be a party
to (i) any consolidation of the Guarantor with, or merger of the Guarantor into,
any other person, any merger of another person into the Guarantor (other than a
consolidation or merger which does not result in a conversion, exchange or
cancellation of outstanding Parent Common Shares of the Guarantor) or (ii) any
sale or transfer of assets of the Guarantor or similar event which, in any such
case will result in a reclassification or change of the Parent Common Shares
(other than a change in the nominal value or by a split or consolidation of
Parent Common Shares), the corporation or person formed by such consolidation or
resulting from such merger or which shall have acquired such assets, as the case
may be, shall execute and deliver to the Trustee a supplemental indenture
providing that the Holder of each Security then Outstanding shall have the right
thereafter to convert such Security into the kind and amount of Parent Common
Shares, other securities, cash and other assets receivable upon such
consolidation, merger, sale or similar event by a holder of the number of Parent
Common Shares into which such Security might have been converted immediately
prior to such consolidation, merger, sale or similar event. In any such event,
the Conversion Price shall be appropriately allocated to such Parent Common
Shares, other securities cash or other assets. Such supplemental indenture shall
provide for adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Article Eleven. Neither the
Trustee nor any Conversion Agent shall be under any responsibility to determine
the correctness of any provision contained in any such supplemental indenture
relating either to the kind or amount of shares or other securities or property
receivable by Holders of Securities upon the conversion of their Securities
after any such consolidation, merger, sale or transfer, or to any adjustment to
be made with respect thereto and, subject to the provisions of Section 5.1, may
accept the signing of such supplemental indenture by such corporation or person
as conclusive evidence of the correctness of any such provisions. The above
provisions of this Section 11.6 shall similarly apply to any successive
consolidation, merger, sale or similar event.
SECTION 11.7 Notice to Holders of Securities Prior to Taking Certain
Types of Action.
In case:
(a) the Guarantor shall authorize the distribution to all or
substantially all holders of Parent Common Shares of assets (other than
cash dividends or other distributions paid out of funds legally available
therefor and the dividends payable in shares for which adjustment is made
pursuant to Section 11.4); or
(b) the Guarantor shall authorize the granting to all holders of its
Parent Common Shares of rights or securities to subscribe for or purchase
any shares of its capital of any class; or
(c) of any consolidation or merger to which the Guarantor is a
party and for which approval of any shareholders of the Guarantor is
required, or of the sale or conveyance of all or substantially all of
the Guarantor's assets or property to another company; or
(d) of the voluntary or involuntary liquidation, dissolution or
winding up of the Guarantor;
then the Guarantor shall cause to be filed with the Trustee and the Conversion
Agent, at least 15 days prior to the applicable record date hereinafter
specified, a notice stating (i) the date as of which the holders of Parent
Common Shares shall be entitled to receive such distribution, rights or
securities, or (ii) the date on which such consolidation, merger, sale,
conveyance, dissolution, liquidation or winding up is expected to become
effective, and the date as of which it is expected that holders of Parent Common
Shares shall be entitled to exchange their Parent Common Shares for securities,
cash or other assets deliverable upon such consolidation, merger, sale, similar
event, dissolution, liquidation or winding-up. The failure to give the notice
required by this Section 11.7 or any defect therein shall not affect the
legality or validity of the proceedings described in paragraphs (a), (b), (c) or
(d) of this Section 11.7. Such notice, at the expense of the Guarantor, shall be
mailed by the Trustee, first-class postage prepaid, to each Holder of Securities
that are convertible into Parent Common Shares of the Guarantor at the address
of such Holder as it appears in the Register.
SECTION 11.8 Covenant to Reserve Parent Common Shares for Issuance on
Conversion of Securities. The Guarantor covenants that it will at all times
reserve and keep available, in the case of Securities of any series that are
convertible into Parent Common Shares, out of the aggregate of its authorized
but unissued Parent Common Shares and its issued Parent Common Shares held in
its treasury, free from pre-emptive rights, solely for the purpose of issue upon
conversion of Securities as herein provided, such number of Parent Common Shares
as shall then be issuable upon the conversion of all Outstanding Securities of
such series. For the purpose of this Section, the full number of Parent Common
Shares issuable upon the conversion of all Outstanding Securities of such series
shall be computed as if at the time of such computation all Outstanding
Securities of such series were held by a single Holder. The Guarantor shall from
time to time, in accordance with the laws of The Netherlands, increase the
authorized amount of its Parent Common Shares if at any time the aggregate of
the authorized amount of its Parent Common Shares remaining unissued and its
issued shares of Parent Common Shares held in its treasury (other than any such
shares reserved for issuance in any other connection) shall not be sufficient to
permit the conversion of all Securities of such series at the time outstanding.
The Guarantor covenants that all Parent Common Shares which shall be so issuable
shall, when issued, be duly and validly issued common shares of its authorized
share capital, and shall be fully paid and nonassessable, free of all liens and
charges and not subject to preemptive rights and that, upon conversion, the
appropriate capital accounts of the Guarantor will be duly credited.
SECTION 11.9 Compliance with Governmental Requirements. The Guarantor
covenants that if any Parent Common Shares required to be reserved for purposes
of conversion of Securities hereunder require registration with or approval of
any governmental authority under any Dutch law or United States Federal or state
law, or any Dutch or United States national securities exchange, before such
Parent Common Shares may be issued upon conversion, the Guarantor will use its
best efforts to cause such shares to be duly registered or approved, as the case
may be.
SECTION 11.10 Payment of Taxes upon Certificates for Parent Common
Shares Issued upon Conversion. The issuance of Parent Shares upon the conversion
of Securities shall be made without charge to the converting Holders for any tax
in respect of such issuance, and in the case of Holders who elect to receive
Parent Common Shares, such Parent Common Shares shall be issued in bearer form
and in the case of Holders who elect to receive Parent ADSs, the Parent ADR
evidencing such Parent ADSs shall be issued in the respective names of or in
such names as may be directed by such Holders; provided, however, that neither
the Issuer nor the Guarantor shall be required to pay any tax which may be
payable in respect of any transfer involved in the issuance and delivery of any
Parent ADR in a name other than that of the Holder of the Security converted,
and none of the Issuer, the Conversion Agent, the Guarantor or the Parent Common
Share Depositary shall be required to issue or deliver such Parent ADR unless or
until the person or persons requesting the issuance thereof shall have paid to
the Issuer or the Guarantor, as the case may be, the amount of such tax or shall
have established to the satisfaction of the Issuer or the Guarantor, as the case
may be, that such tax has been paid.
SECTION 11.11 Trustee's Duties with Respect to Conversion Provisions.
The Trustee, subject to the provisions of Section 5.1, and any Conversion Agent
shall not at any time be under any duty or responsibility to any Holder to
determine whether any facts exist which may require any adjustment of the
conversion rate, or with respect to the nature or extent of any such adjustment
when made, or with respect to the method employed, or herein or in any
supplemental indenture provided to be employed, in making the same. Neither the
Trustee nor any Conversion Agent shall be accountable with respect to the
registration under securities laws, listing, validity or value (or the kind or
amount) of any Parent Conversion Shares, or of any other securities or property,
which may at any time be issued or delivered upon the conversion of any
Security; and neither the Trustee nor any Conversion Agent makes any
representation with respect thereto. Neither the Trustee nor any Conversion
Agent shall be responsible for any failure of the Issuer or the Guarantor to
make any cash payment or to issue, transfer or deliver any shares or share
certificates or other securities or property upon the surrender of any Security
for the purpose of conversion; and the Trustee, subject to the provisions of
Section 5.1, and any Conversion Agent shall not be responsible for any failure
of the Issuer or the Guarantor to comply with any of the covenants of the Issuer
or the Guarantor contained in this Article Eleven. Each Conversion Agent (other
than the Issuer, the Guarantor or any affiliate thereof) shall have the same
protection under this Article Eleven as the Trustee.
ARTICLE TWELVE
SUBORDINATION OF SECURITIES
SECTION 12.1 Securities Subordinate to Issuer Senior Indebtedness. The
Issuer covenants and agrees, and the Trustee and each Holder of a Security, by
its acceptance thereof, likewise covenant and agree, that all Securities shall
be issued subject to the provisions of this Article Twelve; and each person
holding any Security, whether upon original issue or upon transfer, assignment
or exchange thereof, accepts and agrees that all payments of principal of and
premium, if any, and interest, if any, on each and all of the Securities shall
to the extent and in the manner hereinafter set forth in this Article Twelve be
subordinated in right of payment to the prior payment in full of all Issuer
Senior Indebtedness of the Issuer whether outstanding on the date hereof or
hereafter created, incurred, assumed or guaranteed.
SECTION 12.2 Payment Over of Proceeds Upon Dissolution, etc. (a) Upon
any dissolution and liquidation of the Issuer, whether voluntary or involuntary,
or in bankruptcy, insolvency, reorganization, receivership or similar proceeding
relating to the Issuer, all principal, premium, if any, and interest, if any,
due upon all Issuer Senior Indebtedness shall first be paid in full, or
provision shall be made for such payment, in cash or cash equivalents, before
the Holders or the Trustee on behalf of the Holders shall be entitled to receive
any payment by the Issuer on account of principal of or premium, if any, or
interest, if any, on the Securities, or any payment to acquire any of the
Securities for cash, property or securities, or any distribution with respect to
the Securities of any cash, property or securities. Before any payment may be
made by, or on behalf of, the Issuer on any of the Securities upon any
dissolution and liquidation of the Issuer, whether voluntary or involuntary, or
in bankruptcy, insolvency, reorganization, receivership or similar proceeding
relating to the Issuer, any payment or distribution of assets or securities of
the Issuer of any kind or character, whether in cash, property or securities, to
which the Holders or the Trustee on behalf of the Holders would be entitled,
except for the provisions of this Article Twelve, shall be made by the Issuer or
by any Custodian or other similar officer of the Issuer or other similar person
making such payment or distribution, or by the Holders or the Trustee if
received by them or it, directly to the holders of Issuer Senior Indebtedness
(pro rata to such holders on the basis of the respective amounts of Issuer
Senior Indebtedness held by such holders) or their Representatives, to the
extent necessary to pay all such Issuer Senior Indebtedness in full, in cash or
cash equivalents after giving effect to any concurrent payment, distribution or
provision therefor to or for the holders of such Issuer Senior Indebtedness.
(b) In the event that, notwithstanding the foregoing provision
prohibiting such payment or distribution, any payment or distribution of assets
or securities of the Issuer of any kind or character, whether in cash, property
or securities, shall be received by the Trustee or any Holder at a time when
such payment or distribution is prohibited by Clause (a) above before all Issuer
Senior Indebtedness is paid in full, in cash or cash equivalents, or payment
thereof provided for, and such fact shall have been made known to such Holder or
Trustee, as the case may be, such payment or distribution shall be received and
held in trust for the benefit of, and shall be paid over or delivered to, any
administrator, receiver, liquidator, curator, sequestrator, trustee, other
similar officer of the Issuer or other person making payment or distribution of
assets of the Issuer for application to the payment of all Issuer Senior
Indebtedness remaining unpaid until all such Issuer Senior Indebtedness has been
paid in full, in cash or cash equivalents, or payment thereof provided for,
after giving effect to any concurrent payment, distribution or provision
therefor to or for the holders of such Issuer Senior Indebtedness.
(c) The consolidation of the Issuer with, or the merger of the Issuer
with or into, another entity or the liquidation of the Issuer following the
sale, conveyance, transfer, lease or other disposition of all or substantially
all of its property and assets to another entity upon the terms and conditions
provided in Article Eight shall not be deemed a liquidation for the purposes of
this Section 12.2 if such other entity shall, as a part of such consolidation,
merger, sale, conveyance, transfer, lease or other disposition, comply with the
conditions stated in Article Eight.
SECTION 12.3 Payment Permitted if No Dissolution, Bankruptcy or
Insolvency. Nothing contained in this Article Twelve or elsewhere in this
Indenture shall prevent (i) the Issuer, except under the conditions described in
Section 12.2 of this Indenture, from making payments of principal of, premium,
if any, and interest, if any, on the Securities, or from depositing with the
Trustee any money for such payments, or (ii) the application by the Trustee of
any money deposited with it for the purpose of making such payment of principal
of, premium, if any, and interest, if any, on the Securities to the Holders
entitled thereto, if, at the time such application by the Trustee, it did not
have actual knowledge that such payment would have been prohibited by the
provisions of this Article Twelve.
SECTION 12.4 Subrogation to Rights of Holders of Issuer Senior
Indebtedness. (a) Subject to the payment in full of all Issuer Senior
Indebtedness, in cash or cash equivalents, the Holders of the Securities shall
be subrogated to the rights of the holders of such Issuer Senior Indebtedness to
receive payments and distributions of cash, property and securities applicable
to the Issuer Senior Indebtedness until the principal of and premium, if any,
and interest, if any, on the Securities shall be paid in full. For purposes of
such subrogation, no payments or distributions to the holders of Issuer Senior
Indebtedness of any cash, property or securities to which the Holders of the
Securities or the Trustee would be entitled except for the provisions of this
Article Twelve, and no payments pursuant to the provisions of this Article
Twelve to the holders of Issuer Senior Indebtedness by Holders or the Trustee,
shall, as among the Issuer, its creditors other than holders of Issuer Senior
Indebtedness, and the Holders, be deemed to be a payment or distribution by the
Issuer to or on account of the Issuer Senior Indebtedness.
(b) If any payment or distribution to which the Holders would
otherwise have been entitled but for the provisions of this Article Twelve shall
have been applied, pursuant to the provisions of this Article Twelve, to the
payment of all amounts payable under Issuer Senior Indebtedness, then, and in
such case, the Holders shall be entitled to receive from the holders of such
Issuer Senior Indebtedness any payments or distributions received by such
holders of Issuer Senior Indebtedness in excess of the amount required to make
payment in full of amounts payable under such Issuer Senior Indebtedness.
SECTION 12.5 Provisions Solely to Define Relative Rights. The
provisions of this Article Twelve are and are intended solely for the purpose of
defining the relative rights of the Holders of the Securities on the one hand
and the holders of Issuer Senior Indebtedness on the other hand. Nothing
contained in this Article Twelve or elsewhere in this Indenture or in the
Securities is intended to or shall (a) impair, as among the Issuer, its
creditors other than holders of Issuer Senior Indebtedness and the Holders of
the Securities, the obligation of the Issuer, which is absolute and
unconditional, to pay to the Holders of the Securities the principal of and
premium, if any, and interest, if any, on the Securities as and when the same
shall become due and payable in accordance with their terms; or (b) affect the
relative rights against the Issuer of the Holders of the Securities and
creditors of the Issuer other than the holders of Issuer Senior Indebtedness; or
(c) prevent the Trustee or the Holder of any Security from exercising all
remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article Twelve of the
holders of Issuer Senior Indebtedness (1) in any liquidation of the Issuer,
whether voluntary or involuntary, or bankruptcy, insolvency, reorganization,
receivership, or similar proceeding relating to the Issuer as referred to in
Section 12.2, to receive, pursuant to and in accordance with such Section, cash,
property and securities otherwise payable or deliverable to the Trustee or such
Holder, or (2) under the conditions specified in Section 12.3, to prevent any
payment prohibited by such Section.
SECTION 12.6 Trustee to Effectuate Subordination. Each Holder of a
Security by his acceptance thereof authorizes and directs the Trustee on his
behalf to take such action as is necessary or as may be necessary or appropriate
to effectuate the subordination provided in this Article Twelve.
SECTION 12.7 No Waiver of Subordination Provisions. No right of any
present or future holder of any Issuer Senior Indebtedness or any agent or
Representative therefor to enforce subordination as provided in this Article
Twelve shall at any time in any way be prejudiced or impaired by any act or
failure to act on the part of the Issuer or by any act or failure to act, in
good faith, by any such holder or its agent or Representative, or by any
non-compliance by the Issuer with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof any such holder or any agent or
Representative therefor may have or be otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Issuer Senior Indebtedness may, at any time and from time to
time, without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the Holders of the Securities
and without impairing or releasing the subordination provided in this Article
Twelve or the obligations hereunder of the Holders of the Securities to the
holders of Issuer Senior Indebtedness, do any one or more of the following: (a)
change the manner, place or terms of payment or extend the time of payment of,
or renew or alter, Issuer Senior Indebtedness or any instrument evidencing the
same or any agreement under which Issuer Senior Indebtedness is outstanding; (b)
sell, exchange, release or otherwise deal with any property pledged, mortgaged
or otherwise securing Issuer Senior Indebtedness; (c) release any person liable
in any manner for the payment or collection of Issuer Senior Indebtedness; and
(d) exercise or refrain from exercising any rights or remedies against the
Issuer and any other person.
SECTION 12.8 Notice to Trustee. The Issuer shall give prompt written
notice to the Trustee of any liquidation, reorganization, insolvency,
bankruptcy, receivership or other proceeding which would prohibit the making of
any payment to or by the Trustee in respect of the Securities. Notwithstanding
the provisions of this Article Twelve or any other provision of this Indenture,
the Trustee shall not be charged with knowledge of the existence of any facts
which would prohibit the making of any payment to or by the Trustee in respect
of the Securities, unless and until a Responsible Officer of the Trustee shall
have received written notice thereof from the Representative of the holders of
such Issuer Senior Indebtedness; and, prior to the receipt of any such written
notice, the Trustee, subject to the provisions of Section 5.1, shall be entitled
in all respects to assume that no such facts exist; provided, however, that if
the Trustee shall not have received the notice provided for in this Section at
least three Business Days prior to the date upon which by the terms hereof any
money may become payable for any purpose (including, without limitation, the
payment of the principal of and premium, if any or interest, if any, on any
Security), then, anything herein contained to the contrary notwithstanding, the
Trustee shall have full power and authority to receive such money and to apply
the same to the purpose for which such money was received and shall not be
affected by any notice to the contrary which may be received by it within three
Business Days prior to such date.
Subject to the provisions of Section 5.1, the Trustee shall be
entitled to conclusively rely on the delivery to it of a written notice by a
person representing himself to be a Representative of holders of Issuer Senior
Indebtedness to establish that such notice has been given by a Representative.
In the event that the Trustee determines in good faith that further evidence is
required with respect to the right of any person as a holder of Issuer Senior
Indebtedness to participate in any payment or distribution pursuant to this
Article Twelve, the Trustee may request that such person furnish evidence to the
satisfaction of the Trustee as to the amount of Issuer Senior Indebtedness held
by such person, the extent to which such person is entitled to participate in
such payment or distribution and any other facts pertinent to the rights of such
person under this Article Twelve, and if such evidence is not furnished, the
Trustee may defer any such payment pending judicial determination as to the
right of such person to receive such payment.
SECTION 12.9 Reliance on Judicial Order or Certificate of Liquidating
Agent. Upon any payment or distribution of assets of the Issuer referred to in
this Article Twelve, the Trustee, subject to the provisions of Section 5.1, and
the Holders of the Securities shall be entitled to conclusively rely upon any
order or decree entered by a court of competent jurisdiction in which any
proceedings of the nature referred to in Section 12.2 are pending, or a
certificate of the Custodian, other similar officer of the Issuer or other
person making such payment or distribution, delivered to the Trustee or to the
Holders of Securities, for the purpose of ascertaining the persons entitled to
participate in such payment or distribution, the holders of Issuer Senior
Indebtedness and other indebtedness of the Issuer, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article Twelve.
SECTION 12.10 Rights of Trustee as a Holder of Issuer Senior
Indebtedness; Preservation of Trustee's Rights. The Trustee in its individual
capacity shall be entitled to all the rights set forth in this Article Twelve
with respect to any Issuer Senior Indebtedness which may at any time be held by
it, to the same extent as any other holder of Issuer Senior Indebtedness, and
nothing in this Indenture shall deprive the Trustee of any of its rights as such
holder.
Nothing in this Article shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 5.5.
SECTION 12.11 Article Applicable to Paying Agents. In case at any time
any paying agent other than the Trustee shall have been appointed by the Issuer
and be then acting hereunder, the term "Trustee" as used in this Article shall
in such case (unless the context otherwise requires) be construed as extending
to and including such Paying Agent within its meaning as fully for all intents
and purposes as if such paying agent were named in this Article in addition to
or in place of the Trustee.
SECTION 12.12 Not to Prevent Events of Default. The failure to make a
payment on account of principal of or premium, if any, or interest, if any, on
the Securities by reason of any provision of this Article Twelve will not be
construed as suspending the rights of the Holders to accelerate the maturity of
the Securities pursuant to Article Four.
SECTION 12.13 Securities Senior to Issuer Subordinated Indebtedness.
The Indebtedness represented by the Securities will be senior and prior in right
of payment to all Issuer Subordinated Indebtedness, to the extent and in the
manner provided in such Issuer Subordinated Indebtedness.
SECTION 12.14 Certain Issuances Deemed Payment. For purposes of this
Article Twelve only, (a) the issuance and delivery of (1) junior securities in
respect of any Security of any series or (2) Parent Shares upon conversion of a
Security of any series in accordance with Article Eleven shall not be deemed to
constitute a payment or distribution on account of the principal of or premium,
if any, or interest, if any, on such Security or on account of the purchase or
other acquisition of such Security, and (b) the payment, issuance or delivery of
cash, property or securities (other than junior securities) in respect of a
Security of any series shall be deemed to constitute payment on account of
principal of such Security. For the purposes of this Section, the term "junior
securities" means (a) shares of any class of the Issuer and (b) securities of
the Issuer which are subordinated in right of payment to all Issuer Senior
Indebtedness which may be outstanding at the time of issuance or delivery of
such securities to substantially the same extent as, or to a greater extent
than, the Securities are so subordinated as provided in this Article Twelve.
Nothing contained in this Article Twelve or elsewhere in this Indenture or in
the Securities is intended to or shall impair, as among the Issuer, the
Guarantor, the creditors of either of them other than holders of Issuer Senior
Indebtedness and the Holders of the Securities, the right, which is absolute and
unconditional, of the Holder of any Security to convert such Security in
accordance with Article Eleven.
SECTION 12.15 Trustee Not Fiduciary for Holders of Issuer Senior
Indebtedness. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Issuer Senior Indebtedness and shall not be liable to any such
Holders if the Trustee shall in good faith mistakenly pays over or distributes
to Holders of Securities or to the Issuer or to any other person cash, property
or securities to which any holders of Issuer Senior Indebtedness shall be
entitled by this Article or otherwise. The Trustee undertakes to perform or to
observe only such of its covenants or obligations as are specifically set forth
in this Article Twelve and no implied covenants or obligations with respect to
holders of Issuer Senior Indebtedness shall be read into this Indenture against
the Trustee.
ARTICLE THIRTEEN
GUARANTY OF SECURITIES
SECTION 13.1 Guaranty. (a) The Guarantor hereby irrevocably and
unconditionally guarantees on a subordinated basis as hereinafter provided to
each Holder of a Security of any series authenticated and delivered by the
Trustee, and to the Trustee, the due and punctual payment of the principal of,
premium, if any, and interest, if any, on such Security, when and as the same
shall become due and payable, subject to any applicable grace period, whether on
the date of maturity, by acceleration or upon redemption pursuant to Article Ten
or otherwise, according to the terms of such Security and this Indenture. In
addition, the Guarantor irrevocably and unconditionally guarantees to the Holder
of any Security of any series authenticated and delivered by the Trustee that is
convertible into Parent Shares, and to the Trustee, the conversion of such
Security in accordance with the terms of Article Eleven when such Security is
presented for conversion in accordance with Article Eleven.
(b) All payments by the Guarantor under the Guaranty with respect to
any Security of any series, including, without limitation, payments of
principal, interest, if any, and premium, if any, shall be made by the Guarantor
without withholding or deduction for or on account of any present or future
taxes, duties, levies, or other governmental charges of whatever nature in
effect on the date of the Indenture or imposed or established in the future by
or on behalf of The Netherlands or any authority in The Netherlands ("Taxes").
In the event any such Taxes are so imposed or established, the Guarantor shall
pay such additional amounts ("Additional Amounts") as may be necessary in order
that the net amounts receivable by each Holder after any payment, withholding or
deduction in respect of such Taxes shall equal the respective amounts of
principal, interest, if any, and premium, if any, which would have been
receivable in respect of the Securities of any series in the absence of such
payment, withholding or deduction; except that no such Additional Amounts will
be payable with respect to any payment under the Guaranty to, or to a third
party on behalf of, a Holder for or on account of any such Taxes whatever that
have been imposed by reason of (i) the Holder being a resident or deemed a
resident of The Netherlands or having some connection with The Netherlands
(including, but not limited to, a Holder carrying on business in The Netherlands
through a permanent establishment or permanent representative in The
Netherlands) other than the mere holding of such Security or the receipt of
principal, interest, if any, or premium, if any, in respect thereof; (ii) the
presentation by the Holder of a Security of any series for payment on a date
more than thirty (30) days after the date on which such payment became due and
payable or the date on which payment thereof is duly provided for, whichever
occurs later; (iii) any estate, inheritance, gift, sales, transfer or personal
property tax or any similar tax, assessment or governmental charge; (iv) any
tax, assessment or other governmental charge which is payable otherwise than by
withholding from payments on or in respect of a Security of any series; or (v)
any combination of items (i), (ii), (iii) or (iv). Furthermore, no Additional
Amounts shall be paid with respect to any payment on a Security of any series to
a Holder that is a fiduciary or partnership or other than the sole beneficial
owner of such payment to the extent that a beneficiary or settlor with respect
to such fiduciary or a member of such partnership or beneficial owner would not
have been entitled to receive the Additional Amounts had such beneficiary,
settlor, member or beneficial owner been the Holder.
Whenever in this Indenture or the Securities there is a reference, in
any context, to any payment under the Guaranty, such payment shall be deemed to
include the payment of Additional Amounts provided for in this Section to the
extent that, in such context, Additional Amounts are, were or would be payable
in respect of such payment pursuant to the provisions of such Section and
express mention of the payment of Additional Amounts (if applicable) in any
provision hereof shall not be construed as excluding Additional Amounts in those
provisions hereof where such express mention is not made.
(c) The Guarantor hereby agrees that its obligations hereunder shall
be as principal obligor and not merely as surety, and shall be unconditional,
irrevocable and absolute, irrespective of the validity, regularity or
enforceability of the Securities of any series or this Indenture, the absence of
any action to enforce the same, any waiver or consent by any Holder of the
Securities of any series with respect to any provisions hereof or thereof, the
recovery of any judgment against the Issuer, any action to enforce the same or
any other circumstance which might otherwise constitute a legal or equitable
discharge or defense of a guarantor.
(d) The Guarantor hereby waives diligence, presentment, demand of
payment, filing of claims with a court in the event of insolvency or bankruptcy
of the Issuer, any right to require a proceeding first against the Issuer,
protest, notice with respect to the Security on which this Guaranty is endorsed
or the indebtedness evidenced thereby, and all demands whatsoever and covenants
that the Guaranty not be discharged except by complete performance of the
obligations of the Guarantor contained in the Securities and this Indenture. If
any Securityholder or the Trustee is required by any court or otherwise to
return to the Issuer, the Guarantor, any Custodian or other similar official
acting in relation to the Issuer or the Guarantor, any amount paid by the Issuer
or the Guarantor to the Trustee or such Securityholder, the Guaranty to the
extent theretofore discharged, shall be reinstated in full force and effect. The
Guarantor agrees that as between the Guarantor and the Holders of the Securities
or the Trustee, any payment made on the Securities or to the Trustee by the
Issuer or out of its assets which, pursuant to Article Twelve, is required to
paid over to the Holders of the Issuer Senior Indebtedness, shall not constitute
a payment on the Securities or to the Trustee but, instead, should be treated
for all purposes of this Article as though such payment had not been made by the
Issuer or out of its assets.
(e) The Guarantor agrees to pay any and all costs and expenses
(including reasonable attorneys' fees and expenses) incurred by the Trustee or
any Holders in enforcing any rights under the Guaranty.
(f) The Guarantor hereby waives, in favor of the Holders and the
Trustee, any and all of its rights, protections, privileges and defenses
provided by any applicable law to a guarantor and waives any right of set-off
which the Guarantor may have against the Holder of a Security in respect of any
amounts which are or may become payable by the Holder of a Security to the
Issuer.
SECTION 13.2 Representation and Warranty. The Guarantor hereby
represents and warrants that all acts, conditions and things required to be done
and performed and to have happened precedent to the creation and issuance of the
Guaranty and the Indemnity, and to constitute the same legal, valid and binding
obligations of the Guarantor enforceable in accordance with their respective
terms, have been done and performed and have happened in compliance with all
applicable laws.
SECTION 13.3 Subrogation. The Guarantor will be subrogated to all
rights of Holders of Securities of any series on which the Guaranty is endorsed
against the Issuer in respect of any amount paid by the Guarantor pursuant to
the Guaranty with respect to Securities of such series; provided, however, that
the Guarantor shall not, without the consent of the Holders of all of the
Securities of such series, be entitled to enforce, or to receive any payments
arising out of or based upon, such right of subrogation until the principal of
and premium, if any, and interest, if any, on all of the Securities of such
series shall be paid in full or payment thereof shall have been provided for in
accordance with this Indenture.
SECTION 13.4 Guaranty Subordinate to Guarantor Senior Indebtedness.
The Guaranty shall, to the extent and in the manner set forth in this Article
Thirteen, be subordinated in right of payment to the prior payment in full of
all Guarantor Senior Indebtedness whether outstanding on the date hereof or
hereafter created, incurred, assumed or guaranteed.
SECTION 13.5 Payment Over of Proceeds Upon Dissolution, etc. (a) Upon
any dissolution and liquidation (ontbinding en vereffening) of the Guarantor,
whether voluntary or involuntary, or in bankruptcy (faillissement), insolvency,
moratorium, receivership or suspension of payments (surseance van betaling), all
principal, premium, if any, and interest, if any, due upon all Guarantor Senior
Indebtedness shall first be paid in full, or provision shall be made for such
payment, in cash or cash equivalents, before the Holders or the Trustee on
behalf of the Holders shall be entitled to receive any payment by the Guarantor
pursuant to the Guaranty. Before any payment may be made by, or on behalf of,
the Guarantor pursuant to the Guaranty upon any liquidation of the Guarantor,
whether voluntary or involuntary, or in bankruptcy (faillissement), insolvency,
moratorium of payments (surseance van betaling), receivership, suspension of
payments, any payment or distribution of assets or securities of the Guarantor
of any kind or character, whether in cash, property or securities, to which the
Holders or the Trustee on behalf of the Holders would be entitled, except for
the provisions of this Article Thirteen, shall be made by the Guarantor or by
any administrator, bewindvoerder, receiver, liquidator, curator, sequestrator,
trustee, other similar officer of the Guarantor or other similar person making
such payment or distribution, or by the Holders or the Trustee if received by
them or it, directly to the holders of Guarantor Senior Indebtedness (pro rata
to such holders on the basis of the respective amounts of Guarantor Senior
Indebtedness held by such holders) or their Representatives, to the extent
necessary to pay all such Guarantor Senior Indebtedness in full, in cash or cash
equivalents after giving effect to any concurrent payment, distribution or
provision therefor to or for the holders of such Guarantor Senior Indebtedness.
(b) In the event that, notwithstanding the foregoing provision
prohibiting such payment or distribution, any payment or distribution of assets
or securities of the Guarantor of any kind or character, whether in cash,
property or securities, shall be received by the Trustee or any Holder at a time
when such payment or distribution is prohibited by Clause (a) above before all
Guarantor Senior Indebtedness is paid in full, in cash or cash equivalents, or
payment thereof provided for, and such fact shall have been made known to such
Holder or Trustee, as the case may be, such payment or distribution shall be
received and held in trust for the benefit of, and shall be paid over or
delivered to, any administrator, bewindvoerder, receiver, liquidator, curator,
sequestrator, trustee, other similar officer of the Guarantor or other person
making payment or distribution of assets of the Guarantor for application to the
payment of all Guarantor Senior Indebtedness remaining unpaid until all such
Guarantor Senior Indebtedness has been paid in full, in cash or cash
equivalents, or payment thereof provided for, after giving effect to any
concurrent payment, distribution or provision therefor to or for the holders of
such Guarantor Senior Indebtedness.
(c) The consolidation of the Guarantor with, or the merger of the
Guarantor with or into, another entity or the liquidation of the Guarantor
following the sale, conveyance, transfer, lease or other disposition of all or
substantially all of its property and assets to another entity upon the terms
and conditions provided in Article Eight shall not be deemed a liquidation for
the purposes of this Section 13.5 if such other entity shall, as a part of such
consolidation, merger, sale, conveyance, transfer, lease or other disposition,
comply with the conditions stated in Article Eight.
SECTION 13.6 Payment Permitted if No Dissolution, Bankruptcy or
Moratorium. Nothing contained in this Article Thirteen or elsewhere in this
Indenture shall prevent (i) the Guarantor, except under the conditions described
in Section 13.4 of this Indenture, from making payments pursuant to the
Guarantor, or from depositing with the Trustee any money for such payments, or
(ii) the application by the Trustee of any money deposited with it for the
purpose of making such payment of principal of, premium, if any, and interest,
if any, pursuant to the Guarantor to the Holders entitled thereto, if, at the
time such application by the Trustee, it did not have actual knowledge that such
payment would have been prohibited by the provisions of this Article Thirteen.
SECTION 13.7 Subrogation to Rights of Holders of Guarantor Senior
Indebtedness. (a) Subject to the payment in full of all Guarantor Senior
Indebtedness, in cash or cash equivalents, the Holders of the Securities shall
be subrogated to the rights of the holders of such Guarantor Senior Indebtedness
to receive payments and distributions of cash, property and securities
applicable to the Guarantor Senior Indebtedness until the principal of and
premium, if any, and interest, if any, on the Securities shall be paid in full.
For purposes of such subrogation, no payments or distributions to the holders of
Guarantor Senior Indebtedness of any cash, property or securities to which the
Holders of the Securities or the Trustee would be entitled except for the
provisions of this Article Thirteen, and no payments pursuant to the provisions
of this Article Thirteen to the holders of Guarantor Senior Indebtedness by
Holders or the Trustee, shall, as among the Guarantor, its creditors other than
holders of Guarantor Senior Indebtedness, and the Holders, be deemed to be a
payment or distribution by the Guarantor to or on account of the Guarantor
Senior Indebtedness.
(b) If any payment or distribution to which the Holders would
otherwise have been entitled but for the provisions of this Article Thirteen
shall have been applied, pursuant to the provisions of this Article Thirteen, to
the payment of all amounts payable under Guarantor Senior Indebtedness, then,
and in such case, the Holders shall be entitled to receive from the holders of
such Guarantor Senior Indebtedness any payments or distributions received by
such holders of Guarantor Senior Indebtedness in excess of the amount required
to make payment in full of amounts payable under such Guarantor Senior
Indebtedness.
SECTION 13.8 Provisions Solely to Define Relative Rights. The
provisions of this Article Thirteen are and are intended solely for the purpose
of defining the relative rights of the Holders of the Securities on the one hand
and the holders of Guarantor Senior Indebtedness on the other hand. Nothing
contained in this Article Thirteen or elsewhere in this Indenture or in the
Securities is intended to or shall (a) impair, as among the Guarantor, its
creditors other than holders of Guarantor Senior Indebtedness and the Holders of
the Securities of each series issued hereunder, the obligation of the Guarantor,
which is absolute and unconditional, to pay the Holders pursuant to the Guaranty
with respect to the Securities of such series; or (b) affect the relative rights
against the Guarantor of the Holders of the Securities and creditors of the
Guarantor other than the holders of Guarantor Senior Indebtedness; or (c)
prevent the Trustee or the Holder of any Security from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture, subject
to the rights, if any, under this Article Thirteen of the holders of Guarantor
Senior Indebtedness (1) in any liquidation of the Guarantor, whether voluntary
or involuntary, or bankruptcy, (faillissement) insolvency, moratorium of
payments (surseance van betaling), receivership or suspension of payments, as
referred to in Section 13.4, to receive, pursuant to and in accordance with such
Section, cash, property and securities otherwise payable or deliverable to the
Trustee or such Holder, or (2) under the conditions specified in Section 13.6,
to prevent any payment prohibited by such Section.
SECTION 13.9 Trustee to Effectuate Subordination. Each Holder of a
Security by his acceptance thereof authorizes and directs the Trustee on his
behalf to take such action as is necessary or as may be necessary or appropriate
to effectuate the subordination provided in this Article Thirteen.
SECTION 13.10 No Waiver of Subordination Provisions. No right of any
present or future holder of any Guarantor Senior Indebtedness or any agent or
Representative therefor to enforce subordination as provided in this Article
Thirteen shall at any time in any way be prejudiced or impaired by any act or
failure to act on the part of the Guarantor or by any act or failure to act, in
good faith, by any such holder or its agent or Representative, or by any
non-compliance by the Guarantor with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof any such holder or any agent or
Representative therefor may have or be otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Guarantor Senior Indebtedness may, at any time and from time to
time, without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the Holders of the Securities
and without impairing or releasing the subordination provided in this Article
Thirteen or the obligations hereunder of the Holders of the Securities to the
holders of Guarantor Senior Indebtedness, do any one or more of the following:
(a) change the manner, place or terms of payment or extend the time of payment
of, or renew or alter, Guarantor Senior Indebtedness or any instrument
evidencing the same or any agreement under which Guarantor Senior Indebtedness
is outstanding; (b) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing Guarantor Senior Indebtedness; (c)
release any person liable in any manner for the payment or collection of
Guarantor Senior Indebtedness; and (d) exercise or refrain from exercising any
rights or remedies against the Guarantor and any other person.
SECTION 13.11 Notice to Trustee. The Guarantor shall give prompt
written notice to the Trustee of any liquidation, moratorium, insolvency,
bankruptcy, receivership or other proceeding which would prohibit the making of
any payment to or by the Trustee in respect of the Securities. Notwithstanding
the provisions of this Article Thirteen or any other provision of this
Indenture, the Trustee shall not be charged with knowledge of the existence of
any facts which would prohibit the making of any payment to or by the Trustee in
respect of the Guaranty, unless and until a Responsible Officer of the Trustee
shall have received written notice thereof from the Representative of the
holders of such Guarantor Senior Indebtedness; and, prior to the receipt of any
such written notice, the Trustee, subject to the provisions of Section 5.1,
shall be entitled in all respects to assume that no such facts exist; provided,
however, that if the Trustee shall not have received the notice provided for in
this Section at least three Business Days prior to the date upon which by the
terms hereof any money may become payable for any purpose (including, without
limitation, the payment pursuant to the Guaranty of the principal of and
premium, if any or interest, if any, on any Security), then, anything herein
contained to the contrary notwithstanding, the Trustee shall have full power and
authority to receive such money and to apply the same to the purpose for which
such money was received and shall not be affected by any notice to the contrary
which may be received by it within three Business Days prior to such date.
Subject to the provisions of Section 5.1, the Trustee shall be
entitled to conclusively rely on the delivery to it of a written notice by a
person representing himself to be a Representative of holders of Guarantor
Senior Indebtedness to establish that such notice has been given by a
Representative. In the event that the Trustee determines in good faith that
further evidence is required with respect to the right of any person as a holder
of Guarantor Senior Indebtedness to participate in any payment or distribution
pursuant to this Article Thirteen, the Trustee may request that such person
furnish evidence to the satisfaction of the Trustee as to the amount of
Guarantor Senior Indebtedness held by such person, the extent to which such
person is entitled to participate in such payment or distribution and any other
facts pertinent to the rights of such person under this Article Thirteen, and if
such evidence is not furnished, the Trustee may defer any such payment pending
judicial determination as to the right of such person to receive such payment.
SECTION 13.12 Reliance on Judicial Order or Certificate of Liquidating
Agent. Upon any payment or distribution of assets of the Guarantor referred to
in this Article Thirteen, the Trustee, subject to the provisions of Section 5.1,
and the Holders of the Securities shall be entitled to conclusively rely upon
any order or decree entered by a court of competent jurisdiction in which any
proceedings of the nature referred to in Section 13.4 are pending, or a
certificate of the administrator, bewindvoerder, receiver, liquidator, curator,
sequestrator, trustee, other similar officer of the Guarantor or other person
making such payment or distribution, delivered to the Trustee or to the Holders
of Securities, for the purpose of ascertaining the persons entitled to
participate in such payment or distribution, the holders of Guarantor Senior
Indebtedness and other indebtedness of the Guarantor, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article Thirteen.
SECTION 13.13 Rights of Trustee as a Holder of Guarantor Senior
Indebtedness; Preservation of Trustee's Rights. The Trustee in its individual
capacity shall be entitled to all the rights set forth in this Article Thirteen
with respect to any Guarantor Senior Indebtedness which may at any time be held
by it, to the same extent as any other holder of Guarantor Senior Indebtedness,
and nothing in this Indenture shall deprive the Trustee of any of its rights as
such holder.
Nothing in this Article shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 5.5.
SECTION 13.14 Not to Prevent Events of
Default. The failure to make a payment on account of principal of or premium, if
any, or interest, if any, on the Securities pursuant to the Guaranty by reason
of any provision of this Article Thirteen will not be construed as suspending
the rights of the Holders to accelerate the maturity of the Securities pursuant
to Article Four.
SECTION 13.15 Securities Senior to Guarantor Subordinated
Indebtedness. The obligations under the Guaranty will be senior and prior in
right of payment to all Guarantor Subordinated Indebtedness, to the extent and
in the manner provided in such Guarantor Subordinated Indebtedness.
SECTION 13.16 Certain Conversions Deemed Payment. For purposes of
Section 13.4 only, (a) the issuance and delivery of junior securities in respect
of any Security of any series or upon conversion of such Security in accordance
with Article Eleven shall not be deemed to constitute a payment or distribution
pursuant to the Guaranty on account of the principal of or premium, if any, or
interest, if any, on Securities or on account of the purchase or other
acquisition of Securities, and (2) the payment, issuance or delivery of cash,
property or securities (other than junior securities) in respect of a Security
shall be deemed to constitute payment pursuant to the Guaranty on account of
principal of such Security. For the purposes of this Section, the term "junior
securities" means (a) shares of any class of the Guarantor and (b) securities of
the Guarantor which are subordinated in right of payment to all Guarantor Senior
Indebtedness which may be outstanding at the time of issuance or delivery of
such securities to substantially the same extent as, or to a greater extent
than, the Guaranty is so subordinated as provided in this Article Thirteen.
Nothing contained in this Article Thirteen or elsewhere in this Indenture or in
the Securities or the Guaranty is intended to or shall impair, as among the
Guarantor, its creditors other than holders of Guarantor Senior Indebtedness and
the Holders of the Securities, the right, which is absolute and unconditional,
of the Holder of any Security to convert such Security in accordance with
Article Eleven.
SECTION 13.17 Trustee Not Fiduciary for Holders of Guarantor Senior
Indebtedness. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Guarantor Senior Indebtedness and shall not be liable to any such
Holders if the Trustee shall in good faith mistakenly pays over or distributes
to Holders of Securities or to the Guarantor or to any other person cash,
property or securities to which any holders of Guarantor Senior Indebtedness
shall be entitled by this Article or otherwise. The Trustee undertakes to
perform or to observe only such of its covenants or obligations as are
specifically set forth in this Article Thirteen and no implied covenants or
obligations with respect to holders of Guarantor Senior Indebtedness shall be
read into this Indenture against the Trustee.
ARTICLE FOURTEEN
MISCELLANEOUS PROVISIONS
SECTION 14.1 Incorporators, Shareholders, Officers, Directors, Members
of the Executive Board and Supervisory Board Exempt from Individual Liability.
No recourse under or upon any obligation, covenant or agreement contained in
this Indenture, or in any Security, or because of any indebtedness evidenced
thereby, shall be had against any incorporator, as such or against any past,
present or future shareholder, officer or director of the Issuer, shareholder,
officer, member or deputy member of the Executive Board, or member or deputy
member of the supervisory board of the Guarantor, as such, or of any successor,
either directly or through the Issuer, the Guarantor or any successor, under any
rule of law, statute or constitutional provision or by the enforcement of any
assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance of the
Securities by the Holders thereof and as part of the consideration for the issue
of the Securities.
SECTION 14.2 Provisions of Indenture for the Sole Benefit of Parties
and Securityholders. Nothing in this Indenture or in the Securities, expressed
or implied, shall give or be construed to give to any person, other than the
parties hereto and their successors and assigns and the Holders of the
Securities, any legal or equitable right, remedy or claim under this Indenture
or under any covenant, condition or provision herein contained, all such
covenants and provisions being for the sole benefit of the parties hereto and
their successors and of the Holders of the Securities.
SECTION 14.3 Successors and Assigns of Issuer and Guarantor Bound by
Indenture. All the covenants, stipulations, promises and agreements in this
Indenture contained by the Issuer and the Guarantor shall bind each of their
successors and assigns, whether or not so expressed.
SECTION 14.4 Notices and Demands on Issuer, Guarantor, Trustee and
Securityholders. Any notice or demand which by any provision of this Indenture
is required or permitted to be given or served by the Trustee or by the Holders
of Securities to or on the Issuer may be given or served by being deposited
postage prepaid, first-class mail, in a post office letter box (except as
otherwise specifically provided herein) addressed (until another address of the
Issuer is furnished by the Issuer to the Trustee) to Ahold Finance U.S.A., Inc.,
One Atlanta Plaza, 950 East Paces Ferry Road, Suite 2575, Atlanta, Georgia
30326, U.S.A., Attention: Chief Financial Officer. Any notice or demand which by
any provision of this Indenture is required or permitted to be given or served
by the Trustee or by the Holders of Securities to or on the Guarantor may be
given or served by being deposited postage prepaid, first-class mail, in a post
office letter box (except as otherwise specifically provided herein) addressed
(until another address of the Guarantor is furnished by the Guarantor to the
Trustee) to, Albert Heijnweg 1, 1507 EH Zaandam, The Netherlands, Attention:
Treasurer. Any notice, direction, request or demand by the Issuer, the Guarantor
or any Securityholder to or upon the Trustee shall be deemed to have been
sufficiently given or made, for all purposes, if given or made in writing at its
Corporate Trust Office.
Where this Indenture provides for notice to Securityholders, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Securityholder
entitled thereto, at his last address as it appears in the Register. In any case
where notice to Securityholders is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed, to any particular
Securityholder shall affect the sufficiency of such notice with respect to other
Securityholders. Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Securityholders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver. Notwithstanding anything to the
contrary elsewhere in this Indenture as to the giving of notice, any other form
of written notice is sufficient, if received.
In case, by reason of the suspension of or irregularities in regular
mail service, it shall be impracticable to mail notice to the Issuer, the
Guarantor or Securityholders when such notice is required to be given pursuant
to any provision of this Indenture, then notwithstanding anything to the
contrary elsewhere in this Indenture as to the giving of notice, any manner of
giving such notice as shall be satisfactory to the Trustee shall be deemed to be
a sufficient giving of such notice.
SECTION 14.5 Officers' Certificates and Opinions of Counsel;
Statements to Be Contained Therein. Upon any application or demand by the Issuer
or the Guarantor to the Trustee to take any action under any of the provisions
of this Indenture, the Issuer or the Guarantor, as the case may be, shall
furnish to the Trustee an Officers' Certificate stating that all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent have been complied with,
except that in the case of any such application or demand as to which the
furnishing of such documents is specifically required by any provision of this
Indenture relating to such particular application or demand, no additional
certificate or opinion need be furnished.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture shall include (a) a statement that the person
making such certificate or opinion has read such covenant or condition, (b) a
brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion
are based, (c) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with and (d) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the Issuer or
the Guarantor may be based, insofar as it relates to legal matters, upon a
certificate or opinion of or representations by counsel, unless such officer
knows that the certificate or opinion or representations with respect to the
matters upon which his certificate, statement or opinion may be based as
aforesaid are erroneous. Any certificate, statement or opinion of counsel may be
based, insofar as it relates to factual matters or information which is in the
possession of the Issuer or the Guarantor, upon the certificate, statement or
opinion of or representations by an officer or officers of the Issuer or the
Guarantor, unless such counsel knows that the certificate, statement or opinion
or representations with respect to the matters upon which his certificate,
statement or opinion may be based as aforesaid are erroneous.
Any certificate, statement or opinion of an officer of the Issuer or
the Guarantor or of counsel may be based, insofar as it relates to accounting
matters, upon a certificate or opinion of or representations by an accountant or
firm of accountants in the employ of the Issuer or the Guarantor, unless such
officer or counsel, as the case may be, knows that the certificate or opinion or
representations with respect to the accounting matters upon which his
certificate, statement or opinion may be based as aforesaid are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with the Trustee shall contain a statement that such firm is
independent.
SECTION 14.6 Official Acts by Successor Entity. Any act or proceeding
by any provision of this Indenture authorized or required to be done or
performed by any board, committee or officer of the Issuer or the Guarantor
shall and may be done and performed with like force and effect by the like
board, committee or officer of any entity that shall at the time be the lawful
sole successor of the Issuer or the Guarantor, as the case may be.
SECTION 4.7 Payments Due on Saturdays, Sundays and Legal Holidays.
Except as may be provided pursuant to Section 2.6 with respect to any series or
tranche, if the date of maturity of interest on or principal of the Securities
of any series or the date fixed for redemption or repayment of any such Security
shall not be a Business Day, then payment of such interest, if any, or principal
need not be made on such date, but may be made on the next succeeding Business
Day with the same force and effect as if made on the date of maturity or the
date fixed for redemption or repayment, and no interest shall accrue for the
period from and after such date.
SECTION 14.8 NEW YORK LAW TO GOVERN. THIS INDENTURE, INCLUDING THE
GUARANTY, AND EACH SECURITY AND THE ENDORSEMENT OF THE GUARANTY THEREON SHALL BE
DEEMED TO BE A CONTRACT UNDER THE LAWS OF THE STATE OF NEW YORK, AND FOR ALL
PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF SUCH STATE, EXCEPT
FOR THE PROVISIONS CONTAINED HEREIN OR THEREIN RELATING TO THE SUBORDINATION OF
THE GUARANTY WHICH SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE NETHERLANDS.
SECTION 14.9 Counterparts. This Indenture may be executed in any
number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
SECTION 14.10 Effect of Headings. The Article and Section headings
herein and the Table of Contents are for convenience of reference only, are not
to be considered a part hereof and shall not affect the construction hereof.
SECTION 14.11 Conflict with Trust Indenture Act. If any provision
hereof limits, qualifies or conflicts with a provision of the Trust Indenture
Act of 1939 that is required under such Act to be a part of and govern this
Indenture, the latter provisions shall control. If any provision of this
Indenture modifies or excludes any provision of the Trust Indenture Act of 1939
that may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or to be excluded, as the case may be.
SECTION 14.12 Submission to Jurisdiction. Each of the Issuer and the
Guarantor (a) agrees that any legal suit, action or proceeding arising out of or
based upon this Indenture, the Securities or the Guaranty may be instituted in
any state or U.S. federal court in the State and County of New York, the Borough
of Manhattan, United States of America, (b) waives, to the extent it may
effectively do so, any objection which it may have now or hereafter to the
laying of the venue of any such suit, action or proceeding, and (c) irrevocably
submits to the jurisdiction of any such court in any such suit, action or
proceeding. The Guarantor hereby designates Ahold U.S.A., Inc., as its
authorized agent to accept and acknowledge on its behalf service of any and all
process which may be served in any such suit, action or proceeding in any such
court and agrees that service of process upon said agent at its office at One
Atlanta Plaza, 950 East Paces Ferry Road, Suite 2575, Atlanta, Georgia 30326,
U.S.A., Attention: Chief Executive Officer, and written notice of said service
mailed or delivered to it at Albert Heijnweg 1, 1507 EH Zaandam, The
Netherlands, Attention: Treasurer, shall be deemed in every respect effective
service of process upon the Guarantor in any such suit, action or proceeding and
shall be taken and held to be valid personal service upon the Guarantor whether
or not the Guarantor shall then be doing, or at any time shall have done,
business within the State of New York, and that any such service of process
shall be of the same force and validity as if service were made upon it
according to the laws governing the validity and requirements of such service in
such State, and waives all claim of error by reason of any such service. Neither
such appointment nor such acceptance of jurisdiction shall be interpreted to
include actions brought under the United States federal securities laws. Said
designation and appointment shall be irrevocable until the earlier of the date
on which no Securities remain Outstanding or the date that this Indenture shall
have been satisfied and discharged in accordance with Article Nine.
SECTION 14.13 Severability. In case any provision in this Indenture or
in the Securities or the Guaranty shall be invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, all as of [ ].
AHOLD FINANCE U.S.A., INC.
By_________________________
Name:
Title:
KONINKLIJKE AHOLD N.V.
By_________________________
Name:
Title:
THE BANK OF NEW YORK
as Trustee
By_________________________
Name:
Title:
AHOLD FINANCE U.S.A., INC., as Issuer
KONINKLIJKE AHOLD N.V., as Guarantor
and
THE CHASE MANHATTAN BANK, as Trustee
INDENTURE SUPPLEMENT
Dated as of April 29, 1999
to
INDENTURE
Dated as of April 29, 1999
6 1/4% Guaranteed Senior Notes Due 2009
6 7/8% Guaranteed Senior Notes Due 2029
<PAGE>
This Indenture Supplement (the "Indenture Supplement") dated as of
April 29, 1999 under that certain Indenture (as defined in the first recital)
among AHOLD FINANCE U.S.A., INC. a corporation organized under the laws of the
State of Delaware, as issuer (the "Issuer"), KONINKLIJKE AHOLD N.V., a company
organized under the laws of The Netherlands with its corporate seat in Zaandam
(municipality Zaanstad), The Netherlands, as guarantor (the "Guarantor"), and
THE CHASE MANHATTAN BANK, a New York banking corporation, as trustee (the
"Trustee").
WHEREAS the Issuer, the Guarantor and the Trustee are parties to that
certain Indenture dated as of April 29,1999 (the "Indenture");
WHEREAS, Section 2.6 of the Indenture provides, among other things,
that the Issuer, the Guarantor and the Trustee may enter into an indenture
supplemental to the Indenture for the purpose of authorizing a series of
Securities and to specify terms of such series of Securities;
WHEREAS , the Issuer has duly authorized the creation of series of 6
1/4% Guaranteed Senior Notes due 2009 and series of 67/8% Guaranteed Senior
Notes due 2029, as provided hereto;
WHEREAS, the Issuer, the Guarantor and the Trustee are executing and
delivering this Indenture Supplement in order to provide for both such series of
Guaranteed Senior Notes;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Issuer, the Guarantor and the
Trustee hereby agree as follows:
SECTION 1. Definitions. Terms used herein and not otherwise defined
herein shall have the meanings set forth in the Indenture. All references to
"Sections" shall be to the sections of this Indenture Supplement unless
otherwise provided herein.
SECTION 2. Creation of Series 1999-A and Series 1999-B. There is
hereby created for issuance under this Indenture Supplement a series of
Securities designated 6 1/4% Guaranteed Senior Notes due 2009 (the "Series
1999-A Notes") and a series of Securities designated 67/8% Guaranteed Senior
Notes due 2029 (the "Series 1999-B Notes", and together with the Series 1999-A
Notes, the "Notes").
As provided in Section 2.6 of the Indenture, the following terms of
such Series 1999-A Notes and Series 1999-B Notes are established hereby:
(1) the title of the Series 1999-A Notes shall be 6 1/4% Guaranteed
Senior Notes due 2009; the title of the Series 1999-B Notes shall be 67/8%
Guaranteed Senior Notes due 2029;
(2) the Series 1999-A Notes shall be limited initially to an aggregate
principal amount of $500 million. The Series 1999-B Notes shall be limited
initially to an aggregate principal amount of $500 million. The Issuer may
from time to time, without the consent of the Holders, create and issue
additional Notes pursuant to the Indenture, having the same terms and
conditions under the Indenture in all respects as the applicable Notes (or
in all respects save for the date for and amount of the first payment of
interest thereon), and guaranteed by the Guarantor to the same extent in
all respects as the applicable Notes so that the additional Notes are
consolidated with and form a single series with the previously outstanding
applicable Notes;
(3) the principal of the Series 1999-A Notes and the Series 1999-B
Notes shall be paid at maturity on May 1, 2009 and May 1, 2029,
respectively;
(4) the Series 1999-A Notes and the Series 1999-B Notes will bear
interest at the rate of 6 1/4% per annum and 67/8% per annum, respectively;
the interest payment dates shall be May 1 and November 1 of each year,
commencing November 1, 1999, and the record date for the determination of
Holders to whom interest is payable shall be the close of business of April
15 and October 15 of each year; interest shall accrue from April 29, 1999;
(5) principal and interest on the Notes shall be payable at the
Corporate Trust Office;
(6) the Series 1999-A Notes and the Series 1999-B Notes shall be
redeemable at the option of the Issuer, in whole but not in part with
respect to an applicable series, if the Guarantor becomes obligated to pay
Additional Amounts to the Holders of the applicable Notes as a result of
certain changes in the tax laws of The Netherlands, as provided in Section
10.7 of the Indenture;
(7) the Series 1999-A Notes and the Series 1999-B Notes also shall be
redeemable at the option of the Issuer as provided in Section 4;
(8) the Notes are to be issued in the form of one or more Global
Securities as provided in Section 3;
(9) the CUSIP number for the Series 1999-A Notes is 008685AA7; the
CUSIP number for the Series 1999-B Notes is 008685AB5 ; and
(10) the Series 1999-A Notes and the Series 1999-B Notes may be issued
at various times, but all Notes of each series shall otherwise be
identical, except for denomination.
SECTION 3. Global Security. (a) Each of the Series 1999-A Notes and
the Series 1999-B Notes will be issued in the form of a Global Security
registered in the name of Cede & Co., as nominee for DTC, which shall function
as Depositary until such time as a successor is appointed pursuant to the
Indenture. Notes will not be issuable in definitive bearer form or, except in
the circumstances described in Section 2.7 of the Indenture, in definitive
registered form. Except as set forth herein, a Global Security may be
transferred, in whole, but not in part, only to a nominee of the Depositary or
to a successor of the Depositary or its nominee.
(b) Interests in the Global Securities will be exchangeable in whole
(without change to any Holder) for Note certificates only. In such
circumstances, the relevant Global Security shall be exchanged in full for Note
certificates, in accordance with the terms of the Indenture, and the Issuer
will, at the cost of the Issuer (but against such indemnity as the Trustee may
require in respect of any tax, fee, assessment, charge or other duty of whatever
nature which may be levied or imposed in connection with such exchange), cause
sufficient definitive Note certificates to be executed and delivered to the
Trustee for completion, authentication and dispatch to the relevant beneficial
owners within 30 days of the relevant event. A person having an interest in a
Global Security must provide the Issuer and the Trustee with a written order
containing instructions and such other information as the Issuer and the Trustee
may require to complete, execute and deliver such definitive Note certificates.
(c) Notwithstanding the provisions of Section 3.1 of the Indenture to
the contrary, as long as any Notes are evidenced by a Global Security, each
payment of interest on such Notes will be paid by the Trustee or the relevant
paying agent by wire transfer to the Depositary or its nominee.
SECTION 4. Optional Redemption. (a) The Issuer shall have the right to
redeem the Series 1999-A Notes and the Series 1999-B Notes, in each case as a
whole series but not in part, at any time, upon not less than 30 nor more than
60 days' notice as provided in the Notes, at a redemption price of 100% of the
principal amount of the Notes to be redeemed, together with accrued and unpaid
interest to the redemption date, if any, plus the applicable Make-Whole Premium
thereon.
(b) The applicable Make-Whole Premium for any Note to be redeemed
shall be equal to (x) the sum of the present values of all of the remaining
scheduled payments of principal and interest from the redemption date to the
respective due dates for such payments until maturity of such Note computed on a
semi-annual basis by discounting such payments (assuming a 360-day year
consisting of twelve 30-day months) using a rate equal to the Adjusted Treasury
Rate (as defined below) plus 15 basis points less (y) the principal amount of
such Note plus accrued and unpaid interest to the redemption date; provided that
if (x) is less than (y), the Make-Whole Premium shall equal zero.
The term "Adjusted Treasury Rate" shall mean, with respect to any
redemption date, the rate per annum equal to the semi-annual equivalent yield to
maturity of the Comparable Treasury Issue, assuming a price for the comparable
treasury issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such redemption date.
The term "Comparable Treasury Issue" shall mean the United States
Treasury security selected by J.P. Morgan Securities Inc. as having a maturity
comparable to the remaining term of the Notes to be redeemed that would be
utilized at the time of selection and in accordance with customary financial
practice, in pricing new issues of corporate debt securities of comparable
maturity to the remaining term of such Notes.
The term "Comparable Treasury Price" shall mean, with respect to any
redemption date, (i) the average of the Reference Treasury Dealer Quotations for
such redemption date, after excluding the highest and lowest of such Reference
Treasury Dealer Quotations, or (ii) if the Trustee obtains fewer than three such
Reference Treasury Dealer Quotations, the average of such quotations.
The term "Reference Treasury Dealer" shall mean (1) J.P. Morgan
Securities Inc. and its respective successors; provided, however, that if the
foregoing shall cease to be a primary U.S. government securities dealer in New
York City (a "Primary Treasury Dealer"), the Issuer shall substitute therefor
another Primary Treasury Dealer; and (2) any other Primary Treasury Dealer
selected by the Issuer.
The term "Reference Treasury Dealer Quotations" shall mean, with
respect to each Reference Treasury Dealer and any redemption date, the average,
as determined by the Issuer, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal amount)
quoted in writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m.
on the third business day preceding such redemption date.
(c) From and after the redemption date, if money for the redemption of
the Notes called for redemption shall have been made available as provided in
the Indenture and the Notes called for redemption on the redemption date, such
Notes shall cease to bear interest, and the only right of the Holders of such
Notes shall be to receive payment of the redemption price and all unpaid
interest accrued to the date of redemption.
SECTION 5. Notices. Notwithstanding anything in the Indenture to the
contrary, notices to the Holders shall be given by delivery of the relevant
notice, so long as Notes are in the form of Global Security, to the Depositary
for communication by it to its participants.
SECTION 6. Modification and Ratification of Indenture. As supplemented
and modified by this Indenture Supplement, the Indenture is in all respects
ratified and confirmed, and the Indenture as so supplemented and modified by
this Indenture Supplement shall be read, taken and construed as one and the same
instrument.
SECTION 7. Counterparts. This Indenture Supplement may be executed in
any number of counterparts, each of which so executed shall be deemed to be an
original but all of which shall together constitute but one and the same
instrument.
SECTION 8. Governing Law. As provided in Section 13.8 of the
Indenture, this Indenture Supplement and each Note shall be construed in
accordance with the laws the State of New York.
* * *
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
Supplement to be duly executed, all as of April 29, 1999.
AHOLD FINANCE U.S.A., INC.
By /s/ E.J. Smith
-------------------------
Name: Ernie Smith
Title: Vice President
Attest:
By /s/ Brian Fields
-------------------------
Name: Brian Fields
Title: Vice President
KONINKLIJKE AHOLD N.V.
By /s/ A.M. Meurs
-------------------------
Name: A.M. Meurs
Title: Executive Vice
President and CFO
THE CHASE MANHATTAN BANK,
as Trustee
By /s/ Janet Robinson
-------------------------
Name: Janet Robinson
Title: Second Vice
President
Attest:
By /s/ Ian W. Sterling
-------------------------
Name: Ian W. Sterling
Title: Associate
April 15, 1999
31 75 6595720
AHOLD FILES DEBT SECURITIES IN US
Up to USD 1 billion to refinance existing debt
Zaandam, The Netherlands, April 15, 1999 - Royal Ahold, the international food
retailer, announced today the filing of a preliminary prospectus supplement with
the US Securities and Exchange Commission (SEC) for the sale of up to USD 1
billion of senior unsecured debt securities in the US. The securities will be
issued by Ahold's indirect wholly-owned subsidiary Ahold Finance U.S.A., Inc.
and will be fully and unconditionally guaranteed by Ahold.
The offering, pursuant to Ahold's USD 3 billion shelf registration statement of
January 28, 1999, is expected to include a medium-term tranche and a long-term
tranche. The proceeds will be used to refinance existing debt. Ahold Finance
expects the securities will be offered during the week of April 19, 1999. Chase
Securities Inc. and J.P. Morgan & Co. will act as joint book-running managers
and ABN AMRO Inc. and Goldman, Sachs & Co. will act as co-managers.
Royal Ahold is a rapidly growing international food retailer with leading
supermarket companies in the United States, Europe, Latin America and Asia. The
company operates more than 3,600 supermarkets, hypermarkets and specialty stores
and had 1998 sales of USD 30.9 billion. In the United States Ahold is the
leading supermarket operator along the eastern seaboard with more than 1,000
stores in five operating companies: Stop & Shop, Giant-Landover, Giant-Carlisle,
Tops and BI-LO. Sales in the US totaled USD 16.2 billion in 1998. In March 1999
Ahold announced its intention to acquire Pathmark Stores, Inc. with sales of USD
3.7 billion and 132 supermarkets in the New York metropolitan area.
A copy of the preliminary prospectus supplement and related prospectus may be
obtained from Ahold Investor Relations, tel.: +31 75 659 5648.
Ahold Public Relations: +31 75 659 5720
- --------------------------------------------------------------------------------
Royal Ahold press releases may contain `forward-looking statements'. Actual
results may differ from such statements as they may have been influenced by
factors beyond the company's ability to control.
