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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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SCHEDULE TO/A
(Rule 14d-100)
Tender Offer Statement
Under Section 14(d)(1) or 13(e)(1) of the
Securities Exchange Act of 1934
Amendment No. 2
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U.S. Foodservice
(Name of Subject Company)
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Koninklijke Ahold N.V. (Royal Ahold)
Snow Acquisition, Inc.
(Names of Filing Persons)
Common Stock, par value $.01 per share
(Title of Class of Securities)
90331R101
(CUSIP Number of Class of Securities)
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Ton van Tielraden, Esq.
Koninklijke Ahold N.V.
Albert Heijnweg 1
1507 EH Zaandam
The Netherlands
011-31-75-659-9111
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications on Behalf of Filing Persons)
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Copies to:
John M. Reiss, Esq.
Oliver C. Brahmst, Esq.
White & Case LLP
1155 Avenue of the Americas
New York, New York 10036
(212) 819-8200
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[ ] Check the box if the filing relates solely to preliminary communications
made before the commencement of a tender offer.
Check the appropriate boxes below to designate any transactions to which the
statement relates:
[ X ] third-party tender offer subject to Rule 14d-1.
[ ] issuer tender offer subject to Rule 13e-4.
[ ] going-private transaction subject to Rule 13e-3.
[ ] amendment to Schedule 13D under Rule 13d-2.
Check the following box if the filing is a final amendment reporting the results
of the tender offer: [ ]
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<PAGE>
This Amendment No. 2 amends and supplements the Tender Offer Statement on
Schedule TO filed on March 13, 2000, as amended, relating to the offer by Snow
Acquisition, Inc. (the "Purchaser"), a Delaware corporation, and an indirect
wholly owned subsidiary of Koninklijke Ahold N.V. ("Parent"), a public company
with limited liability incorporated under the laws of The Netherlands with its
corporate seat in Zaandam (Municipality Zaanstad), The Netherlands, to purchase
all of the issued and outstanding shares of Common Stock, par value $.01 per
share, of U.S. Foodservice (the "Company"), including the associated preferred
stock purchase rights issued pursuant to the Amended and Restated Rights
Agreement, dated as of October 4, 1999, and amended as of March 6, 2000, by and
between the Company and ChaseMellon Shareholder Services, L.L.C., as Rights
Agent (such common stock and preferred stock purchase rights are referred to
herein together as the "Common Stock"), at a price of $26.00 per share of Common
Stock, net to the seller in cash, without interest thereon, upon the terms and
subject to the conditions set forth in the Offer to Purchase, dated March 13,
2000 (the "Offer to Purchase"), and in the related Letter of Transmittal (which,
as they may be amended and supplemented from time to time, together constitute
the "Offer").
Item 7. Source and Amount of Funds or Other Consideration.
Item 7 is hereby amended to add at the end thereof the following:
Section 9-"Source and Amount of Funds" of the Offer to Purchase is
amended in its entirety to read as follows:
"The Offer is not conditioned upon any financing
arrangements. The amount of funds required by the Purchaser to
purchase all of the outstanding shares of Common Stock pursuant to
the Offer and to pay related fees and expenses is expected to be
approximately $2.83 billion. The Purchaser intends to obtain such
funds through a combination of loans from and/or capital
contributions by Croesus, Inc., a Delaware corporation, and an
indirect wholly owned subsidiary of Parent ("Croesus"). Croesus
currently intends to obtain the necessary funds for such capital
contribution by borrowing under the EUR 4.4 billion Multicurrency
Stand-By Bridge Revolving Credit Agreement, dated March 31, 2000,
among Parent and Croesus as Borrowers, Parent as Guarantor, the
Purchaser, ABN AMRO Bank N.V. and Chase Manhattan Plc. as
Arrangers, ABN AMRO Bank N.V. as Facility Agent, and certain other
financial institutions (as the same may be amended, modified or
supplemented, from time to time, the "Credit Facility").
The Credit Facility provides for an unsecured stand-by revolving
loan facility in an aggregate amount of up to EUR 4.4 billion. The
Credit Facility will be used by Croesus and Parent, or other
affiliates, for the purpose of financing the acquisition of the
shares of Common Stock and paying all fees and expenses in
connection therewith and the financing of another acquisition
unrelated to the Offer. Advances under the Credit Facility will
bear interest at an aggregate rate per annum equal to (i) the Euro
Interbank Offered Rate (EURIBOR) for advances denominated in Euros
and the London Interbank Offered Rate (LIBOR) for advances
denominated in any other currency, (ii) a margin of 40 basis
points until June 29, 2000, and a margin thereafter to be agreed
upon by Croesus and the Arrangers, but in no event greater than 90
basis points and (iii) the cost of compliance with any applicable
reserve asset requirements and financial services authority fees.
Croesus will be obligated to pay an additional fee equal to two
basis points on any outstanding drawings on the Credit Facility on
or after June 1, 2000. Croesus will also be obligated to pay an
additional fee on any outstanding drawings on the Credit Facility
should any class of long-term senior, unsecured liability
securities issued by Parent be rated below a certain level by
certain rating agencies. In the event that the Credit Facility is
outstanding after June 30, 2000, the Arrangers may syndicate the
Credit Facility and Croesus has agreed to pay a further fee at
such time. The Credit Facility will mature on December 29, 2000.
The Credit Facility contains certain financial covenants and
certain restrictions on, among other things, the creation of
liens. Parent has agreed to guarantee the performance of the
terms, conditions and covenants on the part of Croesus under the
Credit Facility. The Credit Facility also contains certain events
of default including (i) the liquidation or bankruptcy of Parent,
Croesus or any of Parent's material subsidiaries, (ii) changes in
the character of its business and (iii) the lease, sale or
disposition of all or any substantial part of its assets. In
addition, Croesus has agreed to pay the Facility Agent certain
fees and to reimburse the Facility Agent for certain expenses and
to provide certain indemnities, as is customary for commitments of
the type described therein.
The foregoing summary of the source and amount of funds is
qualified in its entirety by reference to the text of the Credit
Facility, a copy of which has been filed as Exhibit (b)(1) to the
Tender Offer Statement on Schedule TO relating to the Offer which
the Purchaser has filed with the Commission (the "Schedule TO").
The Credit Facility may be inspected at, and a copy may be
obtained from, the same places and in the manner set forth in
Section 7-"Certain Information Concerning the Company". There are
currently no alternative financing arrangements in the event the
primary financing becomes unavailable.
The margin regulations promulgated by the Federal Reserve
Board place restrictions on the amount of credit that may be
extended for the purpose of purchasing margin stock (including the
shares of Common Stock) if such credit is secured directly or
indirectly by margin stock. The Purchaser believes that the
financing of the acquisition of the shares of Common Stock will
not be subject to the margin regulations.
Based on publicly available information, Parent estimates
that approximately $838 million may be necessary to repay or
purchase existing long-term and short-term indebtedness of the
Company which may be required to be repaid or purchased by reason
of the consummation of the Offer. The Company currently intends to
request that certain of the lenders of such indebtedness waive the
provisions in the documents relating to such indebtedness which
would require such repayment or purchase. To the extent the
Company is unable to obtain any such waivers, Parent currently
intends to provide the Company, through a combination of loans and
capital contributions, with the necessary funds to repay or
purchase such indebtedness from the incurrence of debt by Parent
under existing credit facilities."
Item 12. Material to be Filed as Exhibits.
Item 12 is hereby amended and supplemented by adding the following:
(b)(1) EUR 4,400,000,000 Multicurrency Stand-By Bridge Revolving Credit
Agreement, dated March 31, 2000, among Parent and Croesus, Inc.
as Borrowers, Parent as Guarantor, the Purchaser, ABN AMRO Bank
N.V. and Chase Manhattan Plc. as Arrangers, ABN AMRO Bank N.V. as
Facility Agent, and certain other financial institutions.
<PAGE>
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and correct.
Dated: March 31, 2000 Koninklijke Ahold N.V.
By: /s/ Robert G. Tobin
--------------------------------
Name: Robert G. Tobin
Title: Executive Vice President
Dated: March 31, 2000 Snow Acquisition, Inc.
By: /s/ Robert G. Tobin
--------------------------------
Name: Robert G. Tobin
Title: President
EUR 4,400,000,000
MULTICURRENCY STAND-BY BRIDGE REVOLVING CREDIT AGREEMENT
between
KONINKLIJKE AHOLD N.V.
and
CROESUS, INC.
as Borrowers
SNOW ACQUISITION, INC.
as Purchaser
KONINKLIJKE AHOLD N.V.
as Guarantor
ABN AMRO BANK N.V.
CHASE MANHATTAN PLC
as Arrangers
ABN AMRO BANK N.V.
as Facility Agent
and
OTHERS
Clifford Chance
Amsterdam
<PAGE>
CONTENTS
Clause Page No.
PART 1
DEFINITIONS AND INTERPRETATION
1. Definitions and Interpretation.......................................1
PART 2
THE FACILITY; ADDITIONAL BORROWERS
2. The Facility........................................................17
PART 3
UTILISATION OF THE MULTICURRENCY STAND-BY BRIDGE REVOLVING
CREDIT FACILITY
3. Utilisation of the Facility.........................................19
PART 4
INTEREST
4. Interest on Advances................................................25
PART 5
REPAYMENT AND CANCELLATION
5. Repayment of Advances...............................................26
6. Cancellation........................................................26
PART 6
RISK ALLOCATION
7. Taxes...............................................................28
8. Tax Receipts........................................................29
9. Increased Costs.....................................................29
10. Mitigation..........................................................30
11. Market Disruption...................................................31
PART 7
REPRESENTATIONS, WARRANTIES, UNDERTAKINGS AND EVENTS OF DEFAULT
12. Representations and Warranties......................................32
13. Undertakings........................................................37
14. Events of Default...................................................43
PART 8
GUARANTEE
15. Guarantee and Indemnity.............................................47
PART 9
DEFAULT INTEREST AND INDEMNITY
16. Default Interest and Indemnity......................................50
PART 10
PAYMENTS
17. Currency of Account and Payment.....................................52
18. Payments............................................................52
19. Set-off.............................................................54
20. Sharing.............................................................54
PART 11
AGENCY PROVISIONS
21. Fees................................................................56
22. Costs and Expenses..................................................56
PART 12
AGENCY PROVISIONS
23. The Facility Agent, the Arrangers and the Banks.....................59
PART 13
ASSIGNMENTS AND TRANSFERS
24. Assignments and Transfers...........................................64
PART 14
MISCELLANEOUS
25. Calculations and Evidence of Debt...................................67
26. Remedies and Waivers, Partial Invalidity............................68
27. Amendments..........................................................68
28. Notices.............................................................69
PART 15
LAW AND JURISDICTION
29. Law and Jurisdiction................................................71
THE SCHEDULES
The First Schedule : The Banks
The Second Schedule : Form of Transfer Certificate
The Third Schedule : Condition Precedent Documents
The Fourth Schedule : Utilisation Request
The Fifth Schedule : Material Subsidiaries
The Sixth Schedule : Opinion of Borrowers' Netherlands and
United States Counsel
The Seventh Schedule : Supplemental Agreement
<PAGE>
THIS AGREEMENT is made on 31 March, 2000
BETWEEN:
(1) KONINKLIJKE AHOLD N.V. as borrower and guarantor (the "Guarantor" or the
"Principal Company");
(2) CROESUS, INC. ("Croesus") as borrower (together with the Principal Company,
the "Borrowers" and each a "Borrower");
(3) SNOW ACQUISITION, INC. ("Snow");
(4) ABN AMRO BANK N.V., and CHASE MANHATTAN PLC as arrangers (the "Arrangers");
(5) ABN AMRO BANK N.V. as Facility Agent (the "Facility Agent"); and
(6) THE BANKS (as defined below).
IT IS AGREED as follows:
PART 1
DEFINITIONS AND INTERPRETATION
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS In this Agreement:
"Additional Borrower" means a wholly-owned direct or indirect subsidiary of the
Principal Company which, with the prior written consent of the Facility Agent
acting on the instructions of the Banks, has become an Additional Borrower
pursuant to and in accordance with the provisions of Clause 2.5 (Nomination of
Additional Borrowers) and Clause 2.6 (Accession of Additional Borrowers).
"Advance" means, save as otherwise provided herein, an advance made or to be
made by the Banks hereunder.
"Available Commitment" means, in relation to a Bank at any time and save as
otherwise provided herein, its Commitment at such time less the aggregate of its
portions of the Euro Amounts of the Advances which are then outstanding at such
time provided that such amount shall not be less than zero.
"Available Facility" means, at any time, the aggregate of the Available
Commitments at such time.
"Banks" means:
(a) any financial institution named in Part 1 of the First Schedule (The
Banks) (other than one which has ceased to be a party hereto in accordance
with the terms hereof); and
(b) any financial institution which has become a party hereto in accordance
with the provisions of Clause 24.4 (Assignments by Banks) or Clause 24.5
(Transfers by Banks).
"Canica" means a limited liability company incorporated under the laws of
Norway, Reg. No. 938701237.
"Code" means the United States Internal Revenue Code of 1986, as amended.
"Commitment" means, in relation to a Bank at any time and save as otherwise
provided herein, the amount set opposite its name in Part 1 of the First
Schedule (The Banks).
"Employee Plan" shall mean an "employee pension benefit plan" as defined in
Section 3(2) of ERISA, other than a Multiemployer Plan, which is maintained for,
or under which contributions are made on behalf of, employees of any Obligor,
Material US Subsidiary or any ERISA Affiliate.
"EMU" means Economic and Monetary Union as contemplated in the Treaty on
European Union.
"EMU Legislation" means legislative measures of the European Union for the
introduction of, changeover to or operation of the euro in one or more member
states, being in part legislative measures to implement the third stage of EMU.
"Environment" means:
(a) land including any natural or man-made structures;
(b) water including ground waters and waters in drains and sewers; and
(c) air including air within buildings and other natural or man-made structures
above or below ground.
"Environmental Laws" means all and any applicable laws, including common law,
statute and subordinate legislation, European Community Regulations and
Directives and judgments and decisions, laws and regulations including those of
the United States of America and any state or locality therein, including
notices, orders and circulars, of any court or authority competent to make such
judgment or decision, compliance with which is mandatory for any member of the
Group in any jurisdiction with regard to:
(a) the pollution or protection of the Environment:
(b) harm to the health of humans, animals or plants including laws relating to
public and workers' health and safety;
(c) emissions, discharges or releases into the Environment of chemicals or any
other pollutants or contaminants or industrial, radioactive, dangerous,
toxic or hazardous substances or wastes (whether in solid, semi-solid,
liquid or gaseous form and including noise and genetically-modified
organisms; or
(d) the manufacture, processing, use, treatment, storage, distribution,
disposal, transport or handling of the substances or wastes described in
(c) above;
"Environmental Permits" means all and any permits, licences, consents,
approvals, certificates, qualifications, specifications, registrations and other
authorisations including any conditions which attach to any of the foregoing and
the filing of all notifications, reports and assessments required under
Environmental Laws for the operation of any business or for the sale, use,
ownership, leasing, or operation of any real property.
"ERISA" means the United States Employee Retirement Income Security Act of 1974,
as amended, and the rules and regulations thereunder.
"ERISA Affiliate" shall mean any person that for the purposes of Title I and
Title IV of ERISA and Section 412 of the Code is a member of any Obligor's (or
any Material US Subsidiary's) controlled group, or under common control with any
Obligor (or Material US Subsidiary), within the meaning of Section 414 (b) and
(c) of the Code and the regulations promulgated and rulings issued thereunder.
"ERISA Event" shall mean (i) (A) any reportable event, as defined in Section
4043(c) of ERISA with respect to an Employee Plan, as to which PBGC has not by
regulation waived the requirement of Section 4043(a) of ERISA that it be
notified within thirty days of the occurrence of such event (provided that a
failure to meet the minimum funding standard of Section 412 of the Code or
Section 302 of ERISA shall be a reportable event for the purposes of this
sub-paragraph (i) regardless of the issuance of any waivers in accordance with
Section 412(d) of the Code); or (B) the requirements of subsection (1) of
Section 4043(b) of ERISA (without regard to subsection (2) of such Section) are
met with respect to a contributing sponsor, as defined in Section 4001(a)(13) of
ERISA, of an Employee Plan and an event described in paragraph (9), (10), (11),
(12) or (13) of Section 4043(c) of ERISA is reasonably expected to occur with
respect to such Employee Plan within the following 30 days; (ii) the filing
under Section 4041(c) of ERISA of a notice of intent to terminate any Employee
Plan or the termination of any Employee Plan under Section 4042 of ERISA by the
PBGC, or the appointment of a trustee to administer any Employee Plan under
Section 4042 of ERISA; (iii) the failure to make a required contribution to any
Employee Plan that would result in the imposition of a lien under Section 412
(n) of the Code or Section 302 (f) of ERISA; and (iv) an engagement in a
non-exempt prohibited transaction within the meaning of Section 4795 of the Code
or Section 406 of ERISA.
"EURIBOR" means, in relation to any amount to be advanced to, or owing by, an
Obligor hereunder in euro on which interest for a given period is to accrue:
(a) the percentage rate per annum equal to the offered quotation which appears
on the page of the Telerate Screen which displays an average rate of the
Banking Federation of the European Union for the euro (being currently page
248) for such period at or about 11.00 a.m. (Amsterdam time) on the
Quotation Date for such period, or if such page or such service is not or
shall cease to be available or relevant, such other page or such other
service for the purpose of displaying an average rate of the Banking
Federation of the European Union as the Facility Agent, after consultation
with the Banks and the Principal Company, shall select; or
(b) if no such quotation for the euro for the relevant period is displayed and
the Facility Agent has not selected an alternative service on which a
quotation is displayed, the arithmetic mean (rounded upwards to four
decimal places) of the rates (as notified to the Facility Agent) at which
each of the Reference Banks was offering to prime banks in the relevant
interbank market deposits in the euro of an equivalent amount or euros for
such amount and for such period at or about 11.00 a.m. (Amsterdam time) on
the Quotation Date for such period.
"Euro Amount" means:
(a) in relation to any Advance, its Original Euro Amount as reduced by the
proportion (if any) of such Advance which has been repaid; and
(b) in relation to the Loan, the aggregate of the Euro Amounts of the
outstanding Advances.
"Event of Default" means any of those circumstances specified in Clause 14
(Events of Default).
"Exchange Act" means the Securities Exchange Act of 1934.
"Facility" means the multicurrency stand-by bridge revolving credit facility
granted to the Borrowers in this Agreement.
"Facility Office" means, in relation to the Facility Agent or any Bank, the
office identified with its signature below (or, in the case of a Transferee, at
the end of the Transfer Certificate to which it is a party as Transferee) or
such other office as it may from time to time select.
"Final Maturity Date" means 29 December 2000.
"Finance Documents" means this Agreement (as supplemented by any Supplemental
Agreement) and each Supplemental Agreement.
"Group" means the Principal Company and its subsidiaries for the time being
including, after the US Acquisition Date, US Target and its subsidiaries and,
after the ICA Completion Date, ICA Ahold and its subsidiaries.
"ICA" means ICA AB, a public limited liability company incorporated under the
laws of Sweden.
"ICA Ahold" means ICA Ahold Holding AB, a limited liability company incorporated
under the laws of Sweden Reg. No. 556582-1559.
"ICA Advance" means an Advance made or to be made for the purposes set out in
Clause 2.2(b).
"ICA Completion Date" means April 26, 2000 or otherwise such later date which
will occur within seven (7) business days after the day when all conditions
precedent for the completion of the ICA Transaction shall have been fulfilled.
"ICA Framework Agreement" means the Framework Agreement dated 24 February 2000
between the Principal Company, IFAB, IF, Canica and ICA Ahold.
"ICA Group" means ICA Ahold and its subsidiaries for the time being.
"ICA Merger" means the merger to take place between ICA Ahold and ICA after the
date hereof.
"ICA Minimum Condition" means the condition to the ICA Tender Offer that ICA
Ahold shall have acquired and shall hold more than 90 per cent. of the shares
and the voting rights in ICA.
"ICA Tender Offer" means the tender offer made by ICA Ahold to all B and C
shareholders in ICA pursuant to the ICA Tender Offer Document.
"ICA Tender Offer Document" means the offer document issued on 9 March 2000
containing the ICA Tender Offer and the IFAB Invitation.
"ICA Transaction" means:
(a) the purchase for cash by the Principal Company from:
(i) IFAB of 904,143 B shares in ICA and 822,392 C shares in ICA; and
(ii) Canica of 1,534,255 B shares in ICA
and the sale of such shares to ICA Ahold;
(b) the subscription by the Principal Company for 2,500,000 new shares in ICA
Ahold;
(c) the subscription by Canica for 1,000,000 new shares in ICA Ahold;
(d) the making of a cash contribution to ICA Ahold by the Principal Company of
an amount up to SEK 12,563,389,347.39;
(e) the subscription by ICA Ahold for 3,200,000 new shares in ICA;
(f) the making of the ICA Tender Offer by ICA Ahold;
(g) the making by ICA retailers holding C shares in ICA of a reinvestment of
the proceeds received from them as a result of acceptance of the Tender
Offer in new shares in IFAB pursuant to the IFAB Invitation; and
(h) the payment by ICA of a dividend of approximately SEK 103.57 per share (or
SEK 3,500,000,000 in total) to the shareholders of ICA as at the date of
the ICA Framework Agreement
all in accordance with and pursuant to the ICA Transaction Documents.
"ICA Transaction Documents" means the Framework Agreement, the ICA Tender Offer
Document, each agreement, document or instrument referred to in the Framework
Agreement to which any of the parties to the Framework Agreement is a party and
all documents, instruments and agreements executed and delivered in connection
therewith or as required thereunder.
"IF" means ICA Forbundet, a Swedish non-profit organisation, Reg. No.
802001-5577.
"IFAB" means ICA Forbundet Invest AB, a public limited liability company
incorporated under the laws of Sweden, Reg. No. 556048-2837.
"IFAB Invitation" means the invitation to ICA shareholders to subscribe for
shares in IFAB as more particularly set out in the ICA Tender Offer Document.
"Information Memorandum" means the document concerning the Obligors which, at
their request and on their behalf, may be prepared in relation to this
transaction and distributed by the Arrangers to selected banks prior to the
Syndication Date in connection with the primary syndication of the Facilities.
"Instructing Group" means:
(a) whilst no Advances are outstanding hereunder, a Bank or group of Banks
whose Commitments at such time (or, if each Bank's Commitment has been
reduced to zero, did immediately before such reduction to zero) amount in
aggregate to more than sixty-six and two thirds per cent. of the Total
Commitments at such time; or
(b) at any time that there are one or more Advances outstanding hereunder, a
Bank or group of Banks to whom more than sixty-six and two thirds per
cent. of the Euro Amount of the Loan at such time is owed.
"IRS" means the United States Internal Revenue Service.
"Letter of Transmittal" means the form of letter of transmittal filed as Exhibit
(a)(2) to the Schedule TO which may be amended from time to time in accordance
with the terms hereof.
"LIBOR" means, in relation to any Advance or unpaid sum (other than any Advance
or unpaid sum denominated in euro):
(a) the rate per annum which is the offered rate (if any) appearing on the
relevant page of the Telerate Screen which displays British Bankers'
Association Settlement Rates for deposits in the relevant interbank market
for the specified period denominated in the currency in which such Advance
or unpaid sum is to be or is denominated during the specified period at or
about 11.00 a.m. (London time) on the Quotation Date for the specified
period; or
(b) in the event no such rate can be determined for the specified period in
accordance with (a) above, the rate per annum determined by the Facility
Agent to be equal to the arithmetic mean (rounded upwards to four decimal
places) of the rates (as notified to the Facility Agent) at which each of
the Reference Banks was offering to prime banks in the relevant interbank
market deposits in the currency in which such Advance or unpaid sum is to
be or is denominated for the specified period at or about 11.00 a.m.
(London time) on the Quotation Date for such period
and for the purposes of this definition, "specified period" means the Term of
such Advance or, as the case may be, the period in respect of which LIBOR falls
to be determined in relation to such unpaid sum.
"Loan" means the aggregate principal amount for the time being outstanding
hereunder.
"Margin" means 0.40 per cent. per annum provided that:
(a) if the Arrangers decide, in accordance with Clause 24.9 (Syndication), to
undertake a primary syndication of the Facility or any Advances are
outstanding on or after 30 June 2000 the Arrangers and the Principal
Company shall negotiate in good faith with a view to agreeing an increase
in the Margin provided that if no such agreement is reached by 31 May 2000
the Margin shall, on and as from 30 June 2000, be 0.90 per cent. per
annum; and
(b) if, at any time, the Principal Company's Moody's Rating falls to Baa1 or
lower or the Principal Company's S&P Rating falls to BBB+ or lower or
there is no Moody's Rating or S&P Rating applicable to the Principal
Company, the Margin at such time shall be increased by 0.125 per cent. per
annum.
"Margin Stock" has the meaning assigned that term in Regulation U of the Board
of Governors of the Federal Reserve System of the United States (or any
successor) as in effect from time to time.
"Material Subsidiary" means, at any time:
(a) any subsidiary (including, for the accordance of doubt, any indirect
subsidiary) of the Principal Company the net sales of which, as detailed
in its most recently published audited financial statements, exceed ten
per cent. (10%) of the consolidated net sales of the Group taken as a
whole as detailed in the most recently published audited consolidated
financial statements of the Principal Company; and
(b) each other subsidiary of the Principal Company specified from time to time
by the Principal Company (which, at the date hereof and without limitation
to the foregoing, are the companies listed in the Fifth Schedule).
"Material US Subsidiary" means (a) US Target and (b) any Material Subsidiary
which is incorporated under the laws of the United States or any state thereof.
"Moody's Rating" means the most recently announced rating from time to time of
Moody's Investors Service, Inc. assigned to any class of long-term senior,
unsecured liability securities issued by the Principal Company, as to which no
letter of credit, guaranty or third party credit support is in place, regardless
of whether all or any part of such liability has been issued at the time such
rating was issued.
"Multiemployer Plan" means a multiemployer plan (as defined in Section
4001(a)(3) of ERISA) maintained or contributed to for employees of (i) any
Obligor or (ii) any ERISA Affiliate.
"Obligors" means the Borrowers and the Guarantor.
"Offer to Purchase for Cash" means the document entitled "Offer to Purchase for
Cash All of the Outstanding Shares of Common Stock (including the Associated
Preferred Stock Purchase Rights) of U.S. Foodservice" which was filed as Exhibit
(a)(1) to the Schedule TO as amended from time to time in accordance with the
terms hereof, which was filed as Exhibit (a)(1) to the Schedule TO filed by the
Principal Company and Ahold USA Acquisition on 13 March, 2000 with the SEC
pursuant to Section 14(d)(1) of the Exchange Act with respect to the US Tender
Offer.
"Optional Currency" means dollars.
"Original Euro Amount" means, in relation to an Advance, the amount thereof
requested in the Utilisation Request relating thereto as the same may be reduced
pursuant to Clause 3.6 (Reduction of Available Commitment)) or, if such Advance
is not denominated in euro, the equivalent of such amount (as the same may be so
reduced) in euro, calculated as at the date of such Utilisation Request.
"Original Financial Statements" means:
(i) in relation to the Principal Company, its audited consolidated
financial statements for its financial year ended 28 December 1998;
and
(ii) in relation to each Additional Borrower, its most recently published
audited financial statements as at the date it becomes an Additional
Borrower hereunder.
"Participating Member State" means each state so described in any EMU
Legislation.
"Participation" in relation to a Bank at any time means the aggregate of such
Bank's Available Commitment at such time and its share of the Euro Amount of the
Loan at such time;
"PBGC" means the United States Pension Benefit Guaranty Corporation or any
successor thereto under ERISA.
"Potential Event of Default" means any event which could or would become (with
the passage of time, the giving of notice, the making of any determination
hereunder or any combination thereof) an Event of Default.
"Proportion" means, in relation to a Bank:
(a) whilst no Advances are outstanding hereunder, the proportion borne by its
Commitment to the Total Commitments (or, if the Total Commitments are then
zero, by its Commitment to the Total Commitments immediately prior to
their reduction to zero); or
(b) whilst at least one Advance is outstanding hereunder, the proportion borne
by its share of the Euro Amount of the Loan to the Euro Amount of the
Loan.
"Quotation Date" means, in relation to any period for which the relevant
interbank rate is to be determined hereunder, the day on which quotations would
ordinarily be given by prime banks in the relevant interbank market for deposits
in the currency in relation to which such rate is to be determined for delivery
on the first day of that period provided that, if, for any such period,
quotations would ordinarily be given on more than one date, the Quotation Date
for that period shall be the last of those dates.
"Reference Banks" means, for the purposes of determining:
(a) EURIBOR, the principal Amsterdam office of ABN AMRO Bank N.V. and the
principal London office of The Chase Manhattan Bank; and
(b) LIBOR, the principal London offices of ABN AMRO Bank N.V. and The Chase
Manhattan Bank
or, in either case, such other bank or banks as may from time to time be agreed
between the Principal Company and the Facility Agent.
"Regulation Costs" means, in relation to the portion of any Advance made by a
Bank to a US Borrower (or deposits maintained by a Bank to fund such an
Advance), the amount (if any) certified by such Bank to be the cost to it of
complying with the Regulations (or any similar reserve requirements) in respect
of that Advance or those deposits.
"Regulations" mean any regulations of the Board of Governors of the Federal
Reserve System of the United States from time to time in force.
"Repayment Date" means, in relation to any Advance, the last day of the Term
thereof or such earlier date upon which such Advance is required to be repaid
pursuant hereto.
"Reserve Costs" means, in relation to any Bank and in respect of any Term for an
Advance, the cost to such Bank of compliance with the requirements of (a) the
Bank of England and/or the Financial Services Authority (or, in either case, any
other authority which replaces all or any of its functions) or (b) the European
Central Bank (any such cost, for the purposes of this Agreement, to be
represented by the percentage rate notified by the relevant Bank to the Facility
Agent prior to the last day of the relevant Term).
"Schedule TO" means the Schedule TO filed by the Principal Company and Snow on
13 March, 2000 with the SEC pursuant to Section 14(d)(1) of the Exchange Act
with respect to the US Tender Offer together with all amendments and supplements
thereto in accordance with the terms of this Agreement.
"SEC" means the United States Securities and Exchange Commission.
"S&P Rating" means the most recently announced rating from time to time of
Standard & Poor's Rating Group (a division of McGraw Hill, Inc., a New York
corporation) assigned to any class of long-term senior, unsecured liability
securities issues by the Principal Company, as to which no letter of credit,
guaranty or third party credit support is in place, regardless of whether all or
any part of such liability has been issued at the time such rating was issued.
"Substantial" means equal to or greater than 10 per cent. of the relevant amount
as disclosed by the latest audited consolidated balance sheet or, as the case
may be, profit and loss account of the Group.
"Supplemental Agreement" means any agreement entered into by the parties hereto
with any Additional Borrower (in its capacity as an Additional Obligor) pursuant
to Clause 2.5 (Nomination of Additional Borrowers) and to Clause 2.8 (Original
Borrower's Authority) substantially in the form set out in the Seventh Schedule
(Supplemental Agreement for Additional Borrowers) or such other form as the
Principal Company and the Facility Agent shall agree.
"Syndication Date" means the day specified by the Arrangers as the day on which
primary syndication of the Facilities is completed.
"Tendered ICA Shares" means the shares in ICA which are tendered pursuant to the
ICA Tender Offer and not withdrawn or any acceptance in relation thereto shall
not have been revoked.
"Tendered US Shares" means the US Target Shares which are tendered pursuant to
the US Tender Offer and not withdrawn prior to the expiration of the US Tender
Offer.
"Term" means, save as otherwise provided herein, in relation to any Advance, the
period for which such Advance is borrowed (as specified in the Utilisation
Request relating thereto).
"Total Commitments" means the aggregate for the time being of the Banks'
Commitments.
"Transfer Certificate" means a certificate substantially in the form set out in
the Second Schedule (Form of Transfer Certificate) signed by a Bank and a
Transferee whereby:
(a) such Bank seeks to procure the transfer to such Transferee of all or a
part of such Bank's rights, benefits and obligations hereunder as
contemplated in Clause 24.3 (Assignments and Transfers by Banks); and
(b) such Transferee undertakes to perform the obligations it will assume as a
result of delivery of such certificate to the Facility Agent as is
contemplated in Clause 24.5 (Transfers by Banks).
"Transfer Date" means, in relation to any Transfer Certificate, the date for the
making of the transfer as specified in the schedule to such Transfer
Certificate.
"Transferee" means a bank or other financial institution to which a Bank seeks
to transfer all or part of such Bank's rights, benefits and obligations
hereunder.
"Treaty on European Union" means the Treaty of Rome of 25 March 1957, as amended
by the Single European Act 1986 and the Maastricht Treaty (which was signed at
Maastricht on 7 February 1992 and came into force on 1 November 1993).
"United States" and "US" means the United States of America (including the
District of Columbia), its territories, possessions and other areas subject to
the jurisdiction of the United States of America.
"US Acquisition" means (a) the purchase for cash by Snow of the US Target Shares
pursuant to the Offer to Purchase for Cash and (b) the US Merger.
"US Acquisition Date" means the date upon which Snow consummates the purchase of
the US Target Shares subject to the US Tender Offer.
"US Advance" means an Advance made or to be made for the purposes set out in
Clause 2.2 (a).
"US Borrower" means any Material Subsidiary which has been incorporated under
the laws of the United States or any state thereof.
"US Merger" means the merger to take place between Snow and US Target after the
date hereof pursuant to the US Merger Document.
"US Merger Document" means the Agreement and Plan of Merger by and among the
Principal Company, Snow and US Target dated 7 March 2000.
"US Minimum Condition" shall have the meaning given to it in the US Merger
Document.
"US Obligor" means any Obligor incorporated under the laws of the United States
or any state thereof.
"US Target" means U.S. Foodservice, a corporation organised and existing
under the laws of the State of Delaware.
"US Target Group" means US Target and its subsidiaries for the time being.
"US Target Shares" means the Shares (as defined in the US Merger Document).
"US Tender Offer" means the tender offer made by the Principal Company and Snow
in respect of the US Target Shares for the purposes of the US Acquisition
pursuant to the Offer to Purchase for Cash.
"US Tender Offer Documents" means the Schedule TO, including the form of Offer
to Purchase for Cash and the form of Letter of Transmittal set forth in the
exhibits thereto, including any other amendments prior to the date hereof that
(i) relate only to (a) an extension of time during which the Offer to Purchase
for Cash remains outstanding, (b) the status of discussions with the appropriate
authorities in relation to an anti-trust regulatory clearance, (c) the results
of the US Tender Offer or (d) the filing of this Agreement as an Exhibit to the
Schedule TO or (ii) are approved by the Facility Agent in accordance with the
terms hereof.
"US Transaction Documents" means the US Tender Offer Documents, the US Merger
Document and all documents, instruments and agreements executed and delivered in
connection therewith or as required thereunder.
"Utilisation" means a utilisation of the Facility hereunder.
"Utilisation Date" means the date of a Utilisation, being the date on which the
Advance in respect thereof is to be made.
"Utilisation Request" means a notice substantially in the form set out in the
Fourth Schedule (Utilisation Request).
"Withdrawal Liability" has the meaning given to such term under Part I of
Subtitle E of Title IV of ERISA.
1.2 INTERPRETATION Any reference in this Agreement to:
the "Facility Agent" or any "Bank" in any capacity hereunder shall be construed
so as to include its and any subsequent successors, Transferees and assigns in
accordance with their respective interests;
any "affiliate" of any person is a reference to a holding company or a
subsidiary, or a subsidiary of a holding company, of such person;
any "applicable law" shall be construed so as to include all present and future
applicable laws, statutes, regulations, codes, treaties, conventions, judgments,
awards, determinations or decrees;
"borrowed money" means, in respect of any person:
(i) money borrowed or raised and premiums (if any) and capitalised interest
in respect thereof;
(ii) the principal and premiums (if any) and capitalised interest in respect
of any debenture, bond, note, loan stock or similar instrument;
(iii) liabilities in respect of any letter of credit, acceptance credit, bill
discounting or note purchase facility and any receivables purchase,
factoring or discounting arrangement;
(iv) rental or hire payments under leases or hire purchase agreements (whether
in respect of land, machinery, equipment or otherwise) entered into
primarily for the purpose of raising finance;
(v) the deferred purchase price of assets or services in respect of
transactions which have the commercial effect of borrowing or which
otherwise finance its or the Group's operations or capital requirements
(except any such arrangements entered into in the ordinary and usual
course of trading and having a term not exceeding 90 days from the date
on which the liability was originally incurred);
(vi) liabilities in respect of any foreign exchange agreement, currency or
interest purchase or swap transactions or similar arrangements;
(vii) all obligations to purchase, redeem, retire, defease or otherwise acquire
for value any share capital of any person or any warrants, rights or
options to acquire such share capital in respect of transactions which
have the commercial effect of borrowing or which otherwise finance its or
the Group's operations or capital requirements;
(viii) any other transactions having the commercial effect of borrowing entered
into by any person to finance its operations or capital requirements; and
(ix) all indebtedness for borrowed money of other persons referred to in
paragraphs (i) to (viii) above guaranteed directly or indirectly in any
manner by such person, or having the commercial effect of being
guaranteed directly or indirectly by such person by virtue of an
agreement (a) to pay or purchase such indebtedness for borrowed money or
to advance or supply funds for the payment or purchase of such
indebtedness for borrowed money, (b) to purchase or lease (as lessee)
property, or to purchase services, primarily for the purpose of enabling
the debtor to make payments of such indebtedness for borrowed money, (c)
to supply funds to or in any other manner invest in the debtor (including
any agreement to pay for property of services irrespective of whether
such property is received or such services are rendered) or (d) otherwise
to assure any person to whom indebtedness for borrowed money is owed
against loss with respect thereto;
a "business day" shall be construed as a reference to a day (other than a
Saturday or Sunday) on which banks are generally open for business in:
(a) Amsterdam;
(b) London; and
(c) if such reference relates to the date for the payment of any sum
denominated in the Optional Currency, New York;
a "Clause" shall, subject to any contrary indication, be construed as a
reference to a clause hereof;
an "encumbrance" means any mortgage, pledge, lien (other than a lien arising
solely by operation of law in the ordinary course of business), charge,
assignment, hypothecation, security interest or other encumbrance or charge by
way of security or any title retention right (other than in the ordinary course
of trading), preferential right (other than a preferential right accorded to
creditors on a liquidation solely by operation of law) or trust arrangement or
other agreement or arrangement the effect of any of which is the creation of
security;
the "equivalent" on any given date in one currency (the "first currency") of an
amount denominated in another currency (the "second currency") is a reference to
the amount of the first currency which could be purchased with the amount of the
second currency at the spot rate of exchange quoted by the Facility Agent at or
about 12.00 (noon) London time on such date for the purchase of the first
currency with the second currency;
a "holding company" of a company or corporation shall be construed as a
reference to any company or corporation of which the first-mentioned company or
corporation is a subsidiary;
"indebtedness" shall be construed so as to include any obligation (whether
incurred as principal or as surety) for the payment or repayment of money,
whether present or future, actual or contingent;
a "month" is a reference to a period starting on one day in a calendar month and
ending on the numerically corresponding day in the next succeeding calendar
month save that, where any such period would otherwise end on a day which is not
a business day, it shall end on the next succeeding business day, unless that
day falls in the calendar month succeeding that in which it would otherwise have
ended, in which case it shall end on the immediately preceding business day
provided that, if a period starts on the last business day in a calendar month
or if there is no numerically corresponding day in the month in which that
period ends, that period shall end on the last business day in that later month;
"net assets" shall be construed as a reference to the difference between (a) the
aggregate of the current assets (including but not limited to Cash and cash
Equivalents, Receivables and Inventories) and fixed assets (including but not
limited to Total Net Tangible Fixed Assets, Loan Receivables, Investments in
unconsolidated subsidiaries and affiliates and Intangible Assets) of the
Principal Company and (b) the aggregate of the current liabilities (including
but not limited to Loans payable, Taxes payable, Accounts payable, Accrued
expenses and Other current liabilities) and long term liabilities (including but
not limited to Subordinated loans, Other loans, Capitalised lease commitments,
Deferred income taxes and Other provisions) of the Principal Company in each
case as reported in the latest consolidated balance sheet of the Principal
Company delivered pursuant to Clause 13(i)(a) (Undertakings);
a "person" shall be construed as a reference to any person, firm, company,
corporation, government, state or agency of a state or any association or
partnership (whether or not having separate legal personality) of two or more of
the foregoing;
the "relevant interbank market" is a reference to:
(a) in relation to the euro, the European interbank market; or
(b) in relation to any other currency, the London interbank market;
the "relevant interbank rate" is a reference to:
(a) in relation to the euro, EURIBOR; or
(b) in relation to any other currency, LIBOR;
a "subsidiary" of the Principal Company means a company which is a subsidiary of
the Principal Company within the meaning of Article 24a of Book 2 of the Dutch
Civil Code and which is a company which is consolidated in the consolidated
financial statements of the Principal Company;
a "subsidiary" of a company or corporation other than the Principal Company
shall be construed as a reference to any company or corporation:
(a) which is controlled, directly or indirectly, by the first-mentioned company
or corporation;
(b) more than half the issued share capital of which is beneficially owned,
directly or indirectly, by the first-mentioned company or corporation; or
(c) which is a subsidiary of another subsidiary of the first-mentioned company
or corporation
and, for these purposes, a company or corporation shall be treated as being
controlled by another if that other company or corporation is able to direct its
affairs and/or to control the composition of its board of directors or
equivalent body;
"tax" shall be construed so as to include any tax, levy, impost, duty or other
charge of a similar nature (including, without limitation, any penalty or
interest payable in connection with any failure to pay or any delay in paying
any of the same);
"VAT" shall be construed as a reference to value added tax including any similar
tax which may be imposed in place thereof from time to time;
a "wholly-owned subsidiary" of a company or corporation shall be construed as a
reference to any company or corporation which has no other shareholder except
that company or corporation and/or that other company's or corporation's wholly
owned subsidiaries or persons acting on behalf of that other company or
corporation or its wholly-owned subsidiaries; and
the "winding-up", "dissolution" or "administration" of a company or corporation
shall be construed so as to include bankruptcy (faillissement), moratorium
(surseance van betaling) and any equivalent or analogous proceedings under the
law of the jurisdiction in which such company or corporation is incorporated or
any jurisdiction in which such company or corporation carries on business
including the seeking of liquidation, winding-up, reorganisation, dissolution,
administration, arrangement, adjustment, protection or relief of debtors.
1.3 CURRENCY SYMBOLS "$" and "dollars" denote lawful currency of the United
States of America, "euro" or "euros" means the single currency unit of
Participating Member States and "euro unit" or "euro units" means the currency
unit of the euro.
1.4 AGREEMENTS, DOCUMENTS AND STATUTES Save where the contrary is indicated,
any reference in this Agreement to:
(a) this Agreement or any other agreement or document shall be construed as a
reference to this Agreement or, as the case may be, such other agreement
or document as the same may have been, or may from time to time be,
amended, varied, novated or supplemented without breach of this Agreement;
(b) a statute shall be construed as a reference to such statute as the same
may have been, or may from time to time be, amended or re-enacted; and
(c) a time of day shall be construed as a reference to London time.
1.5 HEADINGS Clause, Part and Schedule headings are for ease of reference only.
<PAGE>
PART 2
THE FACILITY; ADDITIONAL BORROWERS
2. THE FACILITY
2.1 GRANT OF THE FACILITY The Banks grant to the Borrowers, upon the terms and
subject to the conditions hereof, a multicurrency stand-by bridge revolving
credit facility in an aggregate amount of EUR 4,400,000,000 or its equivalent
from time to time in the Optional Currency.
2.2 PURPOSE AND APPLICATION The Facility is intended for the following
purposes:
(a) the financing of payments to be made by Snow for the purposes of the US
Acquisition; and
(b) the financing of payments to be made by the Principal Company in order to
finance the ICA Transaction.
Accordingly, each Borrower shall apply all amounts raised hereunder in or
towards such purposes. No portion of the proceeds of any borrowing under this
Agreement shall be used by the Principal Company or any of its subsidiaries in
any manner that would cause the borrowing or the application of such proceeds to
violate any of the Regulations or to violate the Exchange Act, in each case as
in effect on the date or dates of such borrowing and such use of proceeds.
2.3 CONDITION PRECEDENT DOCUMENTS None of the Borrowers may deliver any
Utilisation Request hereunder unless the Facility Agent has confirmed to the
Principal Company and the Banks that it has received all of the documents listed
in Part A the Third Schedule (Condition Precedent Documents) each, in form and
substance, satisfactory to the Facility Agent and that each of the other
conditions referred to therein have been met to the satisfaction of the Facility
Agent. Furthermore, none of the Borrowers may deliver any Utilisation Request
hereunder in respect of a US Advance or an ICA Advance unless the Facility Agent
has confirmed to the Principal Company and the Banks that it has received all of
the documents listed in Part B of the Third Schedule (Conditions Precedent to US
Advances) or Part C of the Third Schedule (Conditions Precedent to ICA Advances)
respectively each, in form and substance, satisfactory to the Facility Agent and
that each of the other conditions referred to therein have been met to the
satisfaction of the Facility Agent.
2.4 BANKS' OBLIGATIONS SEVERAL The obligations of each Bank hereunder are
several and do not constitute a joint estate (gemeenschap). The failure by a
Bank to perform its obligations hereunder shall not affect the obligations of
any Obligor towards any other party hereto nor shall any other party be liable
for the failure by such Bank to perform its obligations hereunder. The amounts
outstanding at any time hereunder from a Borrower to any of the parties hereto
shall, subject as otherwise provided herein, be a separate and independent debt
and each such party shall, subject to the terms of this Agreement, be entitled
to protect and enforce its individual rights arising out of this Agreement
independently of any other party and it shall not be necessary for any party
hereto to be joined as an additional party in any proceedings for this purpose.
2.5 NOMINATION OF ADDITIONAL BORROWERS Subject to having obtained the prior
written consent of the Facility Agent (which shall not be unreasonably withheld
or delayed) the Principal Company may from time to time designate any of its
wholly-owned subsidiaries as an Additional Borrower. If the Principal Company so
designates any such subsidiary or subsidiaries, the Principal Company shall
promptly deliver or cause to be delivered to the Facility Agent a Supplemental
Agreement duly executed by the parties thereto.
2.6 ACCESSION OF ADDITIONAL BORROWERS Promptly on receipt by it of each of the
conditions precedent specified in any Supplemental Agreement, the Facility Agent
will confirm to the relevant Additional Borrower, the Principal Company and the
Banks that it has received such documents and whether or not each is, in form
and substance, satisfactory to it. Upon delivery to the Facility Agent of any
Supplemental Agreement and subject to the Facility Agent having confirmed to the
relevant Additional Borrower, the Principal Company and the Banks that it has
received, in form and substance satisfactory to it, each of the conditions
precedent specified therein, this Agreement shall thenceforth be read and
construed as if each subsidiary of the Principal Company which is a party to the
Supplemental Agreement as an Additional Borrower were a party hereto having all
the rights and obligations of a Borrower. Accordingly all references in any
Finance Document to (a) any "Additional Borrower", "Borrower", "Obligor" or any
derivative term, shall be treated as including a reference to any such
subsidiary becoming a party hereto in the manner contemplated above; and (b)
this Agreement, shall be treated as a reference to this Agreement as
supplemented by such Supplemental Agreement and all previous Supplemental
Agreements to the intent that this Agreement, such Supplemental Agreement and
all previous Supplemental Agreements shall be read and construed together as one
single agreement.
2.7 FACILITY AGENT'S AUTHORITY Each of the Arrangers and the Banks irrevocably
authorises the Facility Agent to execute any Supplemental Agreement on its
behalf. The Facility Agent shall promptly notify each of the Banks of the
execution by it of any Supplemental Agreement.
2.8 ORIGINAL BORROWER'S AUTHORITY Each of the Obligors (other than the Principal
Company) irrevocably authorises the Principal Company to designate any of its
subsidiaries as an Additional Borrower pursuant to Clause 2.5 (Nomination of
Additional Borrowers) and irrevocably authorises the Principal Company to
execute on its behalf any Supplemental Agreement in relation thereto.
<PAGE>
PART 3
UTILISATION OF THE MULTICURRENCY STAND-BY BRIDGE REVOLVING
CREDIT FACILITY
3. UTILISATION OF THE FACILITY
3.1 DELIVERY OF UTILISATION REQUEST FOR ADVANCES Save as otherwise provided
herein, a Borrower may from time to time request the making of an Advance under
the Facility by the delivery to the Facility Agent not more than eight business
days nor, at any time prior to the Syndication Date, later than 8.00 a.m. on the
second business day or, at any time thereafter, not later than:
(a) three business days; or
(b) in the case of an Advance denominated in the Optional Currency, four
business days
before the proposed date for the making of such Advance, of a duly completed
Utilisation Request therefor.
3.2 UTILISATION DETAILS Each Utilisation Request delivered to the Facility Agent
pursuant to Clause 3.1 (Delivery of Utilisation Request for Advances) shall be
irrevocable and shall specify:
(a) the proposed date (which shall be a business day falling after 31
March 2000 and before the Final Maturity Date) for the making of the
relevant Advance;
(b) the currency of denomination of the proposed Advance which shall be
euro or the Optional Currency;
(c) the amount of the proposed Advance, which shall be an amount of not
less than EUR 25,000,000 (or, if the Advance is to be denominated in
the Optional Currency, such comparable and convenient amount thereof
as the Facility Agent may from time to time specify) and the Euro
Amount of which shall not exceed the Available Facility adjusted to
take account of:
(i) any reduction in the Commitment of a Bank scheduled to be made
prior to the commencement of the Term in respect of the
proposed Advance; and
(ii) the Euro Amounts of any Advances which are scheduled to be
made or repaid on or before the date of drawdown of the
proposed Advance;
(d) the proposed Term of the proposed Advance, which shall be a period of
one, two, three or six months or such other period not exceeding
twelve months as the Banks may agree in each case ending on a business
day falling on or before the Final Maturity Date provided that, prior
to the Syndication Date, no Term shall have a duration which extends
beyond the Syndication Date and each Term which begins after 1 June
2000 but prior to the Syndication Date shall have a duration of one
week (or, if less, such duration necessary to ensure that such Term
shall end on the Syndication Date); and
(e) the account to which the proceeds of the proposed Advance are to be
paid.
3.3 MAKING OF ADVANCES If a Borrower requests an Advance in accordance with the
provisions of this Clause 3 and, on the proposed date for the making of such
Advance:
(a) none of the events mentioned in Clause 11(a) and (b) (Market
Disruption) shall have occurred;
(b) the Euro Amount of such Advance does not exceed the Available
Facility adjusted to take account of:
(i) any reduction in the Commitment of a Bank scheduled to be made
on such proposed date for the making of such Advance; and
(ii) the Euro Amounts of any Advances which are scheduled to be
made or repaid on such proposed date for the making of such
Advance;
(c) to give effect to such request would not result in more than ten
Advances being outstanding;
(d) either:
(i) no Event of Default or Potential Event of Default has occurred
and is continuing or would result from the making of such
Advance; and
(ii) the representations set out in Clause 12 (Representations and
Warranties) which are to be repeated pursuant to the relevant
Utilisation Request are true on and as of the proposed date for
the making of such Advance and would continue to be true
immediately following the making of the relevant Advance and the
application of the proceeds thereof in meeting the purpose for
the making of such Advance (as if references therein to Original
Financial Statements were references to the most recent set of
annual consolidated audited financial statements delivered by the
Principal Company to the Facility Agent pursuant to Clause
13(i)(a))
or each of the Banks agrees, notwithstanding any matter
mentioned at (i) or (ii) above, to participate in the making
of such Advance; and
(e) in the case of a US Advance:
(i) no event of default or potential event of default, howsoever
described (which has not been waived in accordance with its
terms) has occurred for any reason or would result from the
making of such Advance in relation to borrowed money of any
member of the US Target Group or all such borrowed money shall
be refinanced upon the making of the first US Advance
hereunder;
(ii) the Tendered US Shares satisfying the US Minimum Condition
shall have been validly tendered to Snow, shall be free and
clear of all encumbrances and shall be available for purchase
in accordance with the terms and conditions set forth in the
US Tender Offer Documents and Snow shall be obliged to pay the
purchase price for the Tendered US Shares;
(iii) no court or governmental or regulatory agency, body or
authority shall have issued any permanent or temporary
injunction or other order or decree or passed any law, rule or
regulation, prohibiting or delaying consummation of the US
Tender Offer or the US Merger and the transactions
contemplated by the US Transaction Documents or making the US
Tender Offer, the US Merger or any such transaction illegal;
(iv) Snow (i) shall have acquired (or shall acquire simultaneously
with or immediately after the making of such US Advance) US
Target Shares satisfying the US Minimum Condition; (ii) upon
such acquisition, shall hold such shares free and clear of all
liens, encumbrances, options, rights and restrictions and;
(iii) upon such acquisition, shall be entitled to vote such
shares without restriction (including, without limitation,
restrictions imposed by section 203 of the Delaware
Corporation Law);
(v) none of the conditions to the US Tender Offer as set out in
clause (iii) of Section 14 of the Offer to Purchase for Cash
shall have occurred or be continuing and the Rights Agreement
shall have been amended as contemplated by section 4.21 of the
US Merger Document;
(vi) the making of such US Advance and the use of proceeds thereof
by the Principal Company and its subsidiaries shall not
contravene any law or regulations of any jurisdiction,
including, without limitation, the Regulations;
(vii) each of the US Transaction Documents shall be in full force
and effect and no provision of any of the US Transaction
Documents shall have been amended, supplemented, waived or
otherwise modified in any material respect since the date upon
which the US Tender Offer was commenced without the prior
written consent of the Facility Agent except as permitted by
the terms of this Agreement; and
(viii) all necessary approvals, consents and authorisations for the
making of the US Acquisition and the consummation of each of
the transactions contemplated by the US Transaction Documents
shall have been obtained or given and all applicable waiting
periods (including, without limitation, that under the
Hart-Scott Rodino Antitrust Improvements Act of 1976, as
amended, of the United States) shall have expired without any
action being taken or threatened by any competent authority
which would restrain, prevent or otherwise impose adverse
conditions on the US Tender Offer, the US Merger or the
financing thereof. No action, request for stay, petition for
review or rehearing, reconsideration, or appeal with respect
to any of the foregoing shall be pending, and the time for any
applicable agency to take action to set aside its consent on
its own motion shall have expired,
(f) in the case of an ICA Advance:
(i) no event of default or potential event of default, howsoever
described (which has not been waived in accordance with its
terms) has occurred for any reason or would result from the
making of such Advance in relation to borrowed money of any
member of the ICA Group or all such borrowed money shall be
refinanced upon the making of the first ICA Advance hereunder;
(ii) the Tendered ICA Shares satisfying the ICA Minimum Condition
shall have been validly tendered to ICA Ahold, shall be free
and clear of all encumbrances and restrictions to purchase
imposed by applicable law or otherwise and shall be available
for purchase in accordance with the terms and conditions set
forth in the ICA Transaction Documents and ICA Ahold shall be
obliged to pay the purchase price for the Tendered ICA Shares;
(iii) no court or governmental or regulatory agency, body or
authority shall have issued any permanent or temporary
injunction or other order or decree or passed any law, rule or
regulation, prohibiting or delaying consummation of the ICA
Tender Offer, the IFAB Invitation or the ICA Merger and the
transactions contemplated by the ICA Transaction Documents or
making the ICA Tender Offer, the IFAB Invitation or the ICA
Merger or any such transaction illegal;
(iv) ICA Ahold (i) shall have acquired (or shall acquire
simultaneously with or immediately after the making of such
ICA Advance) ICA shares satisfying the ICA Minimum Condition;
(ii) upon such acquisition, shall hold such shares free and
clear of all liens, encumbrances, options, rights and
restrictions and; (iii) upon such acquisition, shall be
entitled to vote such shares without restriction;
(v) all of the conditions precedent to the ICA Transaction as set
out in clause 5 of the Framework Agreement shall have been met
without amendment or waiver other than in accordance with the
terms hereof;
(vi) the making of such ICA Advance and the use of proceeds thereof
by the Principal Company and its subsidiaries shall not
contravene any law or regulations of any jurisdiction;
(vii) each of the ICA Transaction Documents shall be in full force
and effect and no provision of any of the ICA Transaction
Documents shall have been amended, supplemented, waived or
otherwise modified in any material respect since the date upon
which the ICA Tender Offer was commenced without the prior
written consent of the Facility Agent except as permitted by
the terms of this Agreement; and
(viii) all necessary approvals, consents and authorisations for the
making of the ICA Transaction and the consummation of each of
the transactions contemplated by the ICA Transaction Documents
shall have been obtained or given and all applicable waiting
periods shall have expired without any action being taken or
threatened by any competent authority which would restrain,
prevent or otherwise impose adverse conditions on the ICA
Tender Offer, the IFAB Invitation, the ICA Merger or the
financing thereof. No action, request for stay, petition for
review or rehearing, reconsideration, or appeal with respect
to any of the foregoing shall be pending, and the time for any
applicable agency to take action to set aside its consent on
its own motion shall have expired;
(ix) there shall not have occurred, since 31 December 1999, a
material adverse change in the business or financial condition
of ICA
then:
(1) in relation to any Advance to be made after the Syndication Date,
the Facility Agent shall, no later than 4.00 p.m. (London time) on
the third business day prior to the proposed Utilisation Date,
notify each Bank by telefax or by telephone (with confirmation to
follow by telefax) at its Facility Office of the amount of such
Advance, the amount of such Bank's participation therein and the
period for which such Advance is to be made;
(2) each Bank shall, no later than 12.00 noon (local time for the
financial centre of the relevant currency) on such proposed
Utilisation Date make its portion of such Advance available to the
Facility Agent in the relevant currency, in accordance with Clause
18 (Payments); and
(3) the Facility Agent shall, no later than 4.00 p.m. (local time for
the financial centre of the relevant currency) on such proposed
Utilisation Date, make such Advance available to the relevant
Borrower in accordance with but subject to Clause 18 (Payments).
3.4 FACILITY OFFICE Each Bank will participate in each Advance made pursuant to
this Clause 3 through its Facility Office specified in relation to Advances in
the proportion borne by its Available Commitment to the Available Facility
immediately prior to the making of that Advance.
3.5 REDUCTION OF AVAILABLE COMMITMENT If a Bank's Commitment is reduced in
accordance with the terms hereof after the Facility Agent has received the
Utilisation Request for an Advance and such reduction was not taken into account
pursuant to paragraph (c) (i) of Clause 3.2 (Utilisation Details), then both the
Original Euro Amount and the actual amount of that Advance shall be reduced
accordingly.
<PAGE>
PART 4
INTEREST
4. INTEREST ON ADVANCES
4.1 RATE OF INTEREST The rate of interest applicable to an Advance from time to
time during the Term of such Advance shall be the rate per annum determined by
the Facility Agent to be the sum (i) the Margin at such time, (ii) the relevant
interbank rate and (iii) (in relation to that portion of such Advance made
available by any Bank which is subject to Reserve Costs) such Reserve Costs for
such Term.
4.2 NOTIFICATION The Facility Agent shall promptly notify the relevant Borrower
and each Bank of each determination made by it pursuant to this Clause 4.
4.3 PAYMENT OF INTEREST On the Repayment Date relating to each Advance (and if
such Advance has a Term which exceeds six months, at the end of each successive
six monthly period of such Term) the relevant Borrower shall pay accrued
interest on that Advance.
<PAGE>
PART 5
REPAYMENT AND CANCELLATION
5. REPAYMENT OF ADVANCES
5.1 REPAYMENT Each Borrower shall repay each Advance made to it in full on the
Repayment Date relating thereto.
5.2 PREPAYMENT A Borrower may, subject to Clause 16.4 (Broken Periods), if it
gives to the Facility Agent not less than fifteen days' prior written notice to
that effect, prepay the whole of any Advance. Any notice of prepayment shall be
irrevocable, shall specify the date upon which such prepayment is to be made and
the amount of such prepayment and shall oblige such Borrower to make such
prepayment on such date.
5.3 REPAYMENT OF A BANK'S SHARE OF THE LOAN If any Bank claims indemnification
from a Borrower under Clause 7 (Taxes) or Clause 9 (Increased Costs) and within
thirty days thereafter the Facility Agent receives from such Borrower at least
ten days' prior written notice (which shall be irrevocable) of such Borrower's
intention to repay such Bank's share of any Advance, such Borrower shall,
subject to Clause 16.4 (Broken Periods), repay such Bank's portion of such
Advance.
5.4 REDUCTION OF COMMITMENTS A Bank for whose account a repayment is to be made
under Clause 5.3 (Repayment of a Bank's Share of the Loan) shall not be obliged
to make any Advances hereunder on or after the date upon which the Facility
Agent receives a Borrower's notice of its intention to repay such Bank's share
of any Advance, on which date such Bank's Available Commitment shall be reduced
to zero.
5.5 REPAYMENT METHOD None of the Borrowers shall repay all or any part of any
Advance outstanding hereunder except at the times and in the manner expressly
provided herein but shall, save as provided herein, be entitled to reborrow any
amount repaid.
5.6 MANDATORY PREPAYMENT Subject to Clause 16.4 (Broken Periods), the Principal
Company shall procure that an amount equal to the proceeds from the issue of any
securities in the bond or the national or international capital markets or any
shares or other equity-related or quasi-equity instrument by any member of the
Group (after deducting fees and out of pocket expenses incurred by such member
of the Group due to such issue) is promptly applied towards the repayment of the
Loan within 3 business days of receipt by any member of the Group of such
proceeds whereupon the Facility shall be cancelled in an amount equal to such
proceeds.
6. CANCELLATION
6.1 CANCELLATION The Principal Company may, by giving to the Facility Agent not
less than ten (or, at any time prior to the Syndication Date, five) days' prior
written notice to that effect, cancel the whole or any part (being an amount of
not less than EUR 100,000,000 and an integral multiple of EUR 20,000,000) of the
Total Commitments. Any such cancellation shall reduce the Commitment of each
Bank rateably.
6.2 IRREVOCABLE INSTRUCTION Any notice of cancellation given by the Principal
Company pursuant to Clause 6.1 (Cancellation) shall be irrevocable and shall
specify the date upon which such cancellation is to be made and the amount of
such cancellation.
6.3 NOTICE The Facility Agent shall promptly notify each of the Banks of any
notice of cancellation received by it from the Borrower pursuant to Clause 6.1
(Cancellation).
6.4 CANCELLATION OF COMMITMENT If any Bank claims indemnification from the
Principal Company under Clause 7 (Taxes) or Clause 9 (Increased Costs), the
Principal Company may, whilst the relevant circumstances continue and by not
less than fifteen days' prior written notice to the Facility Agent (which notice
shall be irrevocable), cancel such Bank's Commitment whereupon such Bank shall
cease to be obliged to make Advances and its Commitment shall be reduced to
zero.
<PAGE>
PART 6
RISK ALLOCATION
7. TAXES
7.1 TAX GROSS-UP All payments to be made by any Obligor to any person hereunder
shall be made free and clear of and without deduction for or on account of tax
unless such Obligor is required to make such a payment subject to the deduction
or withholding of tax, in which case the sum payable by such Obligor in respect
of which such deduction or withholding is required to be made shall be increased
to the extent necessary to ensure that, after the making of the required
deduction or withholding, such person receives and retains (free from any
liability in respect of any such deduction or withholding) a net sum equal to
the sum which it would have received and so retained had no such deduction or
withholding been made or required to be made.
7.2 TAX INDEMNITY Without prejudice to the provisions of Clause 7.1 (Tax
Gross-Up), if any person or the Facility Agent on its behalf is required to make
any payment on account of tax or otherwise (not being a tax imposed on the net
income of any Facility Office by the jurisdiction in which it is incorporated or
in which such Facility Office is located) on or in relation to any sum received
or receivable hereunder by such person or the Facility Agent on its behalf
(including, without limitation, any sum received or receivable under this Clause
7) or any liability in respect of any such payment is asserted, imposed, levied
or assessed against such person or the Facility Agent on its behalf, the
Principal Company shall, upon demand of the Facility Agent, promptly indemnify
such person against such payment or liability, together with any interest,
penalties and expenses payable or incurred in connection therewith.
7.3 CLAIMS BY BANKS Any person intending to make a demand pursuant to Clause 7.2
(Tax Indemnity) shall notify the Principal Company (through the Facility Agent
in the case of a Bank) in reasonable detail of the event by reason of which it
is entitled to do so provided that nothing herein shall require such person to
disclose any confidential information relating to the organisation of its
affairs.
7.4 U.S. WITHHOLDING TAXES The Facility Agent and each Bank that is not
incorporated under the laws of the United States of America or a state thereof
which is or will be a lender to Croesus agrees that it will deliver to Croesus
(and, in the case of a Bank, to the Facility Agent) within ten business days of
the date hereof two duly completed copies of United States Internal Revenue
Service Form 1001 or 4224 or successor applicable form, as the case may be. Each
such Bank and the Facility Agent also agrees to deliver to Croesus (and, in the
case of a Bank, to the Facility Agent) two further copies of said Form 1001 or
4224 or successor applicable forms or other manner of certification, as the case
may be, on or before the date that any such form expires or becomes obsolete or
promptly after the occurrence of any event requiring a change in the most recent
form previously delivered by it to Croesus (and, if applicable, the Facility
Agent) and such extensions or renewals thereof as may reasonably be requested by
Croesus or the Facility Agent, unless in any such case an event (including,
without limitation, any change in treaty, law or regulation) has occurred prior
to the date on which any such delivery would otherwise be required which renders
all such forms inapplicable or which would prevent such Bank or the Facility
Agent from duly completing and delivering any such form with respect to it and
such Bank or the Facility Agent so advises Croesus and (in the case of any Bank)
the Facility Agent. Each such Bank and the Facility Agent shall certify that it
is entitled to receive payments from Croesus under this Agreement without
deduction or withholding of any United States federal income taxes.
8. TAX RECEIPTS
8.1 NOTIFICATION OF REQUIREMENT TO DEDUCT TAX If, at any time, any Obligor is
required by law to make any deduction or withholding from any sum payable by it
hereunder (or if thereafter there is any change in the rates at which or the
manner in which such deductions or withholdings are calculated), such Obligor
shall promptly notify the Facility Agent upon becoming aware of the same.
8.2 EVIDENCE OF PAYMENT OF TAX If any Obligor makes any payment hereunder in
respect of which it is required to make any deduction or withholding, it shall
pay the full amount required to be deducted or withheld to the relevant taxation
or other authority within the time allowed for such payment under applicable law
and shall deliver to the Facility Agent for each Bank, within thirty days after
it has made such payment to the applicable authority, an original receipt (or a
certified copy thereof) issued by such authority (if any) or other written
evidence of payment as such Obligor can provide evidencing the payment to such
authority of all amounts so required to be deducted or withheld in respect of
that Bank's share of such payment.
9. INCREASED COSTS
9.1 INCREASED COSTS If, by reason of (i) any change in law or in its
interpretation or administration and/or (ii) compliance with any request from or
requirement of any central bank or other fiscal, monetary or other authority
(including, without limitation, a request or requirement which affects the
manner in which a Bank or any holding company of such Bank is required to or
does maintain capital resources having regard to such Bank's obligations
hereunder and to amounts owing to it hereunder):
(a) a Bank or any holding company of such Bank incurs a cost as a result
of such Bank's having entered into and/or performing its obligations
under this Agreement and/or assuming or maintaining a commitment or
performing its obligations (including its obligation to make
Advances under this Agreement and/or its participating in or making
one or more Advances;
(b) a Bank or any holding company of such Bank is unable to obtain the
rate of return on its overall capital which it would have been able
to obtain but for such Bank's having entered into and/or performing
its obligations and/or assuming or maintaining a commitment under
this Agreement;
(c) there is any increase in the cost to a Bank or any holding company
of such Bank of funding or maintaining all or any of the advances
comprised in a class of advances formed by or including the Advances
made or to be made by such Bank hereunder; or
(d) a Bank or any holding company of such Bank becomes liable to make
any payment on account of tax or otherwise (not being a tax imposed
on the net income of such holding company or any Facility Office of
such Bank by the jurisdiction in which it is incorporated or in
which such Facility Office is located) on or calculated by reference
to the amount of the Advances made or to be made by such Bank
hereunder and/or to any sum received or receivable by it hereunder,
then the Principal Company shall, from time to time on demand of the Facility
Agent, promptly pay to the Facility Agent for the account of that Bank amounts
sufficient to indemnify that Bank or any such holding company against, as the
case may be, (1) such cost, (2) such reduction in such rate of return (or such
proportion of such reduction as is, in the opinion of that Bank, attributable to
its obligations hereunder), (3) such increased cost (or such proportion of such
increased cost as is, in the opinion of that Bank, attributable to its funding
or maintaining Advances or (4) such liability.
9.2 INCREASED COST CLAIMS A Bank intending to make a claim pursuant to Clause
9.1 (Increased Costs) shall notify the Facility Agent in reasonable detail of
the event by reason of which it is entitled to do so, whereupon the Facility
Agent shall notify the Principal Company thereof provided that nothing herein
shall require such Bank to disclose any confidential information relating to the
organisation of its affairs.
9.3 ILLEGALITY If, at any time, it is unlawful for a Bank to maintain its
Commitment or to make, fund or allow to remain outstanding all or any of the
Advances made or to be made by it hereunder then that Bank shall, promptly after
becoming aware of the same, deliver to the Principal Company through the
Facility Agent a notice to that effect and:
(a) such Bank shall not thereafter be obliged to make any Advances and
the amount of its Commitment shall be immediately reduced to zero;
and
(b) if the Facility Agent on behalf of such Bank so requires, the
Principal Company shall procure that the relevant Borrower or
Borrowers shall on such date as the Facility Agent shall have
specified repay such Bank's share of any outstanding Advances
together with accrued interest thereon and all other amounts owing
to such Bank hereunder.
9.4 REGULATION COSTS Each relevant Borrower shall, within seven days of demand
by any Bank (through the Facility Agent), pay to that Bank the amount of any
Regulation Costs actually incurred by that Bank in respect of any Advance made
by it to that Borrower. Any such demand shall contain reasonable details of the
calculation of the relevant Regulation Costs.
10. MITIGATION
If, in respect of any Bank, circumstances arise which would or would upon the
giving of notice result in:
(a) the reduction of its Commitment to zero pursuant to Clause 9.3
(Illegality);
(b) an increase in the amount of any payment to be made to it or for its
account pursuant to Clause 7.1 (Tax Gross-Up); or
(c) a claim for indemnification pursuant to Clause 7.2 (Tax Indemnity)
or Clause 9.1 (Increased Costs),
then, without in any way limiting, reducing or otherwise qualifying the rights
of such Bank or the obligations of any Borrower under any of the Clauses
referred to in (a), (b) or (c) above such Bank shall promptly upon becoming
aware of the same notify the Facility Agent thereof and, in consultation with
the Facility Agent and the Borrower and to the extent that it can do so without
prejudice to its own position, take reasonable steps to mitigate the effects of
such circumstances including the transfer of its Facility Office provided that
such Bank shall be under no obligation to take any such action if, in the
opinion of such Bank, to do so might have any material adverse effect upon its
business, operations or financial condition.
11. MARKET DISRUPTION
If, in relation to any Advance:
(a) the Facility Agent determines that at 11.00 a.m. on the Quotation
Date for such Advance (i) there is no screen rate quote for the
relevant interbank rate and (ii) none or only one of the Reference
Banks was offering to prime banks in the relevant interbank market
deposits in the currency requested for such Advance for the proposed
duration of the Term thereof; or
(b) before the close of business in London on the Quotation Date for
such Term the Facility Agent has been notified by a Bank or each of
a group of Banks to whom in aggregate thirty-five per cent. or more
of the Euro Amount of the Loan is (or, if such Advance were then
made, would be) owed that the rate at which such deposits were being
so offered does not accurately reflect the cost to it of obtaining
such deposits,
then, notwithstanding the provisions of Clause 4 (Interest on Advances):
(i) the Facility Agent shall notify the other parties hereto of
such event;
(ii) such Advance shall not be made; and
(iii) if the Facility Agent so requires, within five days of such
notification the Facility Agent and the Principal Company shall
enter into negotiations in good faith with a view to agreeing a
substitute basis for determining the rates of interest which may be
applicable to Advances in the future and any such substitute basis
that is agreed shall take effect in accordance with its terms and be
binding on each party hereto provided that the Facility Agent may
not agree any such substitute basis without the prior consent of
each Bank.
<PAGE>
PART 7
REPRESENTATIONS, WARRANTIES, UNDERTAKINGS AND EVENTS OF DEFAULT
12. REPRESENTATIONS AND WARRANTIES
12.1 REPRESENTATIONS AND WARRANTIES Each Obligor and Snow represents and
warrants to the Facility Agent and each of the Banks for itself, unless
otherwise indicated, that:
(i) (in the case of the Principal Company) it is a public company
with limited liability ("naamloze vennootschap") duly
incorporated and validly existing under the laws of The
Netherlands, (in the case of Snow and Croesus) it is a
corporation duly organised and in good standing under the laws
of the State of Delaware and the laws of the United States of
America and (in the case of any Additional Borrower) it is a
corporation duly organised and in good standing under the laws
of its jurisdiction of incorporation and has the corporate power
and authority to own its property and assets and to carry on its
business as it is now being conducted;
(ii) it has the corporate power to enter into and perform the Finance
Documents, the US Merger Document and the ICA Transaction
Documents to which it is expressed to be a party and the
transactions contemplated hereby and thereby and to borrow and
has taken all necessary actions to authorise the borrowing of
Advances upon the terms and conditions of this Agreement and to
authorise the execution, delivery and performance of each of the
Finance Documents, the US Transaction Documents and the ICA
Transaction Documents to which it is expressed to be a party in
accordance with its terms;
(iii) each of the Finance Documents, the US Merger Document and the
ICA Transaction Documents to which it is expressed to be a party
(or to which it becomes a party or in relation to which any
rights or obligations thereunder are assigned to or assumed by
it) constitutes and will at all times constitute its legal,
valid and binding obligations, enforceable in accordance with
its terms subject to any legal limitations arising as a result
of any applicable laws relating to bankruptcy or insolvency or
equivalent proceedings;
(iv) its indebtedness under this Agreement is its direct,
unconditional and general indebtedness and ranks, and will at
all times rank, pari passu with all other unsecured indebtedness
and liabilities (actual or contingent) (with the exception of
any indebtedness and liabilities preferred by law and deferred
or subordinated indebtedness) issued, created or assumed now or
in the future or for which it is now or may at any time in the
future otherwise be or become responsible;
(v) its Original Financial Statements (copies of which have been
provided to each of the Banks) were prepared in accordance with
accounting principles generally accepted in The Netherlands (in
the case of the Principal Company) and its jurisdiction of
incorporation (in the case of any Additional Borrower) and
fairly present its condition and (in the case of the Principal
Company) that of the Group, at such date and its results and (in
the case of the Principal Company) the results of the Group for
such year; there has been no material adverse change in its
financial position or in the financial position of the Group
taken as a whole, since that date which might have a material
adverse effect on its or ICA Ahold's or ICA's ability to perform
its obligations under any of the Finance Documents, the US
Merger Document or the ICA Transaction Documents to which it is
expressed to be a party, and such accounts included all
significant liabilities (including contingent liabilities);
(vi) since the date on which its Original Financial Statements were
prepared there has been no material adverse change in its (or,
in the case of the Principal Company, the Group's) financial or
trading condition or prospects which could have a material
adverse effect on its, ICA Ahold's or ICA's ability to perform
or comply with its obligations under this Agreement, the US
Transaction Documents or the ICA Transaction Documents;
(vii) no Event of Default or Potential Event of Default has occurred
and is continuing unremedied, nor will any Event of Default or
Potential Event of Default result from the making of any
Advance;
(viii) its execution, delivery and performance of the Finance
Documents, the US Merger Document and the ICA Transaction
Documents to which it is expressed to be a party, the borrowing
of Advances and the use of the proceeds thereof do not and will
not violate in any respect any provisions of (i) any applicable
law or judgement of The Netherlands, the US, Delaware, Sweden,
its jurisdiction of incorporation or any other relevant
jurisdiction, or (ii) any mortgage contract other undertaking or
instrument to which it is a party or which is binding upon it or
any of its assets and does not and will not result in the
creation or imposition of any encumbrance on any of its assets
pursuant to the provisions of any such mortgage, contract or
other undertaking or instrument;
(ix) no litigation, arbitration or administrative proceedings are
presently current or pending or, to the best of its knowledge
threatened, which would or might have a material adverse effect
on its, ICA Ahold's or ICA's ability to perform its obligations
under this Agreement, under any of the US Transaction Documents
or under the ICA Transaction Documents;
(x) all acts, conditions and things required to be done, fulfilled
and performed in order (a) to enable it lawfully to enter into,
exercise its rights under and perform and comply with the
obligations expressed to be assumed by it in the Finance
Documents, the US Merger Document and the ICA Transaction
Documents to which it is expressed to be party (or to which it
becomes a party or in relation to which any rights or
obligations thereunder are assigned to or assumed to or assumed
by it), (b) to ensure that the obligations expressed to be
assumed by it in the Finance Documents, the US Merger Document
and the ICA Transaction Documents to which it is expressed to be
party (or to which it becomes a party or in relation to which
any rights or obligations thereunder are assigned to or assumed
to or assumed by it) are legal, valid and binding and (c) to
make the Finance Documents, the US Merger Document and the ICA
Transaction Documents to which it is expressed to be party (or
to which it becomes a party or in relation to which any rights
or obligations thereunder are assigned to or assumed to or
assumed by it) admissible in evidence in its jurisdiction of
incorporation have been done, fulfilled and performed;
(xi) no member of the Group, the ICA Group or, to the best of its
knowledge, the US Target Group is in breach of or in default
under any agreement in respect of borrowed money which exceeds
$25,000,000 (or its equivalent) (save, in respect of any
guarantees, where liability under such guarantee is being
contested by an Obligor or Material Subsidiary in good faith) to
which it is a party or which is binding on it or any of its
assets;
(xii) all of the written information supplied by it to the Facility
Agent, the Arrangers and the Banks in connection herewith, with
the Information Memorandum or with any of the ICA Transaction
Documents or the US Transaction Documents is true, complete and
accurate in all material respects and it is not aware of any
material facts or circumstances that have not been disclosed to
the Facility Agent, the Arrangers and the Banks and which might,
if disclosed, adversely affect the decision of a person
considering whether or not to provide finance to it (provided
that, to the extent that this representation and warranty
relates to the Information Memorandum, such representation and
warranty shall be made or given on the date on which the
Information Memorandum is approved by the Principal Company);
(xiii) neither it nor any of its subsidiaries has taken any corporate
action nor have any other steps been taken or legal proceedings
been started or (to the best of its knowledge and belief)
threatened against it or any of its subsidiaries for its
winding-up, dissolution, administration or re-organisation or
for the appointment of a receiver, administrator, administrative
receiver, trustee or similar officer of it or of any or all of
its assets or revenues;
(xiv) it is conducting, in all material respects, its business and
operations in compliance with all laws and regulations and all
directives of governmental authorities having the force of law
applicable or relevant to it;
(xv) it owns and has good and marketable title to all of its property
except where the failure to have such good and marketable title
would not reasonably be expected to have a material adverse
effect on it;
(xvi) to the best of its knowledge except as disclosed in the Company
disclosure letter as referenced in the US Merger Document, it
and each member of the Group, the ICA Group and the US Target
Group is in compliance in all material respects with all
Environmental Laws and it has obtained, and will at all times
obtain, and is in compliance in all material respects with all
Environmental Permits;
(xvii) to the best of its knowledge, there are no circumstances which
have led, or could lead, to a competent authority or a third
party taking any action or making a claim under any
Environmental Laws including the requirement to clean up any
contaminated land or the revocation, suspension, variation or
non-renewal of any Environmental Permits or to any member of the
Group, the ICA Group or the US Target Group having to take
action to avert the possibility of any such action or claim
which action or claim would have a material adverse effect on
the Group;
(xviii) the aggregate liabilities of each Obligor, each Material US
Subsidiary and the ERISA Affiliates to all Multiemployer Plans
in the event of a complete withdrawal therefrom, as of the close
of the most recent fiscal year of each such Multiemployer Plan
ended prior to the date hereof, would not have a material
adverse effect upon the financial condition of such Obligor or
Material US Subsidiary; each Employee Plan is in compliance in
all material respects in form and operation with ERISA and the
Code except for any instance of non-compliance that would not
have a material adverse effect upon the financial condition of
any Obligor; except as disclosed, each Employee Plan which is
intended to be qualified under Section 401(a) of the Code has
received a favourable determination letter from the IRS to be so
qualified as to form, and, to the knowledge of any Obligor,
nothing has occurred since the date of such determination that
would adversely affect such determination except as disclosed;
the fair market value of the assets of each Employee Plan
subject to Title IV of ERISA is at least equal to the present
value of the "benefit liabilities" (within the meaning of
Section 4001(a)(16) of ERISA) under such Employee Plan
determined using the actuarial assumptions and method used by
the actuary to such Employee Plan in its most recent valuation
of such Employee Plan; there are no actions, suits or claims
pending against or with respect to any Employee Plan (other than
routine claims for benefits) which would cause any Obligor or
any Material US Subsidiary to incur a material liability or to
the knowledge of any Obligor or such Material US Subsidiary,
which could reasonably be expected to be asserted against or
with respect to any Employee Plan that would have a material
adverse effect upon the financial condition of any Obligor; each
of the US Target, the Obligors and the ERISA Affiliates has made
all material contributions to or under each such Employee Plan,
or any contract or agreement requiring contribution to any
Employee Plan, except for any failure to make such contributions
that would not have a material adverse effect upon the financial
condition of the Obligors; no Obligor, US Material Subsidiary or
ERISA Affiliate has ceased operations at a facility so as to
become subject to the provisions of Section 4062(e) of ERISA,
withdrawn as a substantial employer so as to become subject to
the provisions of Section 4063 of ERISA or ceased making
contributions to any Employee Plan subject to Section 4064(a) of
ERISA to which it made contributions each in a manner that would
have a material adverse effect upon the financial condition of
the Obligors; and no Obligor, Material US Subsidiary or ERISA
Affiliate has incurred or reasonably expects to incur any
material liability to PBGC other than for premiums under Section
4007 of ERISA that would have a material adverse effect upon the
financial condition of any Obligor;
(xix) the borrowings made hereunder will not violate, or give rise to
a violation of, any of the Regulations. No member of the Group
or any agent acting in their behalf has taken or will take any
action which would cause this Agreement or any of the documents
or instruments delivered pursuant hereto, any borrowing
hereunder or use of proceeds thereof to violate any Regulation
or to violate the Exchange Act or any applicable US federal or
state securities laws;
(xx) no member of the Group is subject to regulation under the United
States Public Utility Holding Company Act of 1935, the United
States Federal Power Act or the United States Investment Company
Act of 1940 or to any United States federal or state statute or
regulation limiting its ability to incur indebtedness; no
Obligor is an "investment company", or an "affiliated person"
of, or "promoter" or "principal underwriter" for, an "investment
company," as such terms are defined in the U.S. Investment
Company Act of 1940 (15 U.S.C. Sections 80a-1. et seq.); and
none of the transactions contemplated by this Agreement will
violate such Act;
(xxi) each material representation made by any of the Obligors
contained in each US Transaction Document and each ICA
Transaction Document is true and each material representation
made by any other party to each US Transaction Document and each
ICA Transaction Document is, to the best of its knowledge, true;
(xxii) no Obligor is in material breach under any US Transaction
Document or ICA Transaction Document and no other party to any
US Transaction Document or ICA Transaction Document is, to the
best of its knowledge, in material breach thereunder;
(xxiii) each material permit, license, approval and consent required in
relation to any of the US Transaction Documents or the ICA
Transaction Documents has been given or obtained and is in full
force and effect and no event has occurred which permits (or
with the passage of time would permit) the revocation or
termination of any such permit, license, approval or consent or
the imposition of any restriction thereon;
(xxiv) each of the US Merger Documents and the ICA Transaction
Documents is in full force and effect and there has been no
amendment, variation, revision or waiver of the terms of the US
Tender Offer as set out in the Offer to Purchase for Cash since
the date upon which the US Tender Offer was commenced or of the
terms of the ICA Tender Offer or the ICA Transaction as set out
in the ICA Offer Document or the Framework Agreement since the
date upon which the ICA Tender Offer was commenced or the date
of the Framework Agreement except as contemplated by this
Agreement (including pursuant to paragraph (r) of Clause 13) and
no provision of any US Transaction Document or ICA Transaction
Document has been amended, supplemented, waived, revised or
otherwise modified in any material respect without the prior
written consent of the Facility Agent.
13. UNDERTAKINGS
Each of the Borrowers and Snow (unless otherwise specified) undertakes that from
and after the date hereof and until all sums due and to become due from the
Borrowers under this Agreement have been paid or repaid and the Facility shall
no longer exist:
(a) (i) the Principal Company will deliver to the Facility Agent and each
of the Banks as soon as the same are available (and in any event no
later than 180 days after the end of the relevant financial year):
(1) its audited consolidated (and unconsolidated to the
extent that any Bank shall have to comply with any
regulations imposed on it in relation to the provision
of financial information by the Principal Company)
profit and loss account for such financial year and its
audited consolidated (and unconsolidated to the extent
that any Bank shall have to comply with any regulations
imposed on it in relation to the provision of financial
information by the Principal Company) balance sheet as
at the end of such financial year prepared in conformity
with generally accepted accounting principles in The
Netherlands applied on a basis consistent with those of
the preceding financial year, or if not prepared on a
consistent basis, containing or accompanied by an
adequate explanation of the consequences of any such
inconsistency;
(2) if the Arrangers decide to undertake a primary
syndication of the Facility in accordance with Clause
24.9 (Syndication), the audited consolidated financial
statements of each of ICA and US Target for such
financial year prepared in conformity with generally
accepted accounting principles in Sweden (in the case of
ICA) or the United States of America (in the case of US
Target) applied on a basis consistent with those of the
preceding financial year, or if not prepared on a
consistent basis, containing or accompanied by an
adequate explanation of the consequences of any such
inconsistency;
(ii) the Principal Company will promptly send to the Facility Agent
and each of the Banks two copies of any interim report or
accounts or any other notice or communication sent by it to its
shareholders in their capacity as such or to any stock exchange
on which its shares are listed;
(iii) it will forthwith upon a request to that effect, provide the
Facility Agent with such additional financial information or
other information as the Facility Agent or any Bank through the
Facility Agent may from time to time reasonably require
(including, without limitation, information that the Facility
Agent or any Bank may reasonably require in order to determine
the ratios referred to in Clause 13(g) in respect of any
financial period) and upon receipt of a written request to that
effect from the Facility Agent, confirm to the Facility Agent
that, save as previously notified to the Facility Agent or as
notified in such confirmation, no Event of Default or Potential
Event of Default has occurred;
(iv) on the Syndication Date it will furnish the Facility Agent with
a certificate to the effect that the representations and
warranties set out in Clause 12 (Representations and Warranties)
hereof are true and accurate on and as of that time as if made
at that time;
(v) without prejudice to Clause 13(a)(ii), the Principal Company
will as soon as possible after the end of each quarter of each
financial year (but in no event later than 90 days after the end
of the relevant quarter of such financial year) furnish the
Facility Agent in sufficient copies for the Banks with its
interim report in respect of such financial quarter, such
interim report to contain such information as may be required to
enable the Facility Agent and the Banks to calculate the ratios
contained in Clause 13(g) as at or during the four quarter
period ending on (as the case may be) the last day of the
relevant quarter of such financial year and a duly signed
certificate by one of its duly authorised officers stating that
the covenants set out in Clause 13(g) were complied with during
the four quarter period ending at the end of such quarter;
(b) it will promptly give written notice to the Facility Agent of any
Event of Default and of any Potential Event of Default or of the
occurrence of any such event in relation to a subsidiary as if the
references to Borrower in Clause 14 (Events of Default) were
references to a subsidiary and if, in such latter case, such event
could have a material adverse affect on its, ICA Ahold's or ICA's
ability to perform its obligations under this Agreement or under any
of the US Transaction Documents or the ICA Transaction Documents, at
the same time informing the Facility Agent of any action taken or
proposed to be taken by it in connection therewith;
(c) it will not without the Banks' prior written consent create or permit
to be created or to subsist and will ensure that none of its
subsidiaries will without the Banks' prior written consent create or
permit to be created or to subsist any encumbrance on or over the
whole or any part of its assets (present or future), provided however
that the Banks hereby consent to (i) encumbrances to secure
indebtedness for borrowed money to be created or to subsist over
assets and revenues not in excess of 15% of the total consolidated net
assets of the Group according to the audited consolidated financial
statements of the Group most recently delivered to the Facility Agent
pursuant to Clause 13(a)(i), and (ii) encumbrances created or
consented to by any member of the Group prior to the date of this
Agreement provided that the Principal Company has notified the
Facility Agent in writing of such encumbrances providing to the
Facility Agent full details thereof, such notice to be received by the
Facility Agent not later than the date hereof;
(d) it will, if the consent (other than the consent granted pursuant to
sub-clause (c)) of the Banks is required pursuant to sub-clause (c)
above and such consent is forthcoming in relation to any encumbrance,
create to the satisfaction of the Banks in favour of the Banks (or the
Facility Agent on behalf of the Banks) the same encumbrance or such
other encumbrance or encumbrances as the Banks in their absolute
discretion shall deem not materially less beneficial to them than the
encumbrance in respect of which such consent is given to secure, in
each case, all sums due and to become due from any Obligor under this
Agreement provided that the foregoing shall not apply to any Margin
Stock;
(e) it will forthwith notify the Facility Agent of any litigation or
administrative or arbitration proceedings in or by any court,
tribunal, arbitrator or governmental or municipal authority in
process, pending or threatened against any member of the Group or any
of their respective assets which might have a material adverse effect
on its, ICA Ahold's or ICA's ability to perform its obligations under
any of this Agreement, the ICA Transaction Documents and the US
Transaction Documents;
(f) it will use its best endeavours to obtain and maintain, and the
Principal Company shall cause Snow, Croesus, ICA Ahold and ICA to
obtain and maintain, all authorisations, approvals, consents, licenses
and exemptions and it will, and the Principal Company shall cause
Snow, Croesus, ICA Ahold and ICA to, make all necessary filings and
registrations as may be required under any applicable law (which
expression shall include, without limitation, the Regulations and
applicable federal and state securities laws) to enable it to perform
its obligations under each Finance Document and to enable it to
perform its obligations under each ICA Transaction Document and each
US Transaction Document, or required for the validity or
enforceability of each Finance Document, ICA Transaction Document and
US Transaction Document and will comply with the terms of the same;
and
(g) the Principal Company will ensure at all times the consolidated
financial condition of the Group, as evidenced by the Principal
Company's most recent audited annual consolidated financial statements
(adjusted to take account of any changes in circumstances which occur
after the date as of which such audited annual consolidated financial
statements were prepared), shall be such that the ratio of operating
earnings before income taxes plus Net Interest Expense to Net Interest
Expense determined on a rolling four quarter average basis is not less
than 3.00:1.00.
The expressions used in this Clause 13(g) shall have the meanings
attributed thereto in the consolidated financial statements of the
Group (which shall comply with Clause 13(a) and shall be construed in
accordance with generally accepted accounting principles in The
Netherlands) but so that "Net Interest Expense" shall equal interest
expense minus interest income.
Finally, "determined on a rolling four quarter average basis", means
in relation to the ratio referred to above, such ratio tested at the
end of each Quarterly Financial Period by taking the average of such
ratios calculated for each of such Quarterly Financial Period and the
three immediately preceding Quarterly Financial Periods where
"Quarterly Financial Period" means a financial quarter of a financial
year of the Principal Company;
(h) procure that each member of the Group maintains insurances on and in
relation to its business and assets with reputable underwriters or
insurance companies against such risks and to such extent as is usual
for companies carrying on a business such as that carried on by such
member of the Group whose practice is not to self insure;
(i) it shall and shall ensure that each of its subsidiaries shall comply,
in all material respects, with all Environmental Laws and
Environmental Permits applicable from time to time to all or any part
of its business or assets;
(j) it shall and shall ensure that each of its subsidiaries shall not
allow any circumstances to arise which could lead to a competent
authority or a third party taking action or making a claim under any
Environmental Laws including the requirement to clean up any
contaminated land or the revocation, suspension, variation or
non-renewal of any Environmental Permits or to it or any such
subsidiary having to take action to avert the possibility of any such
action or claim which action or claim would have a material adverse
effect on the Group;
(k) within four days of the receipt of notice of the same, give full
particulars (and if requested a copy of any written particulars
received by the relevant member of the Group) to the Facility Agent of
any material notice, order, direction, designation, resolution or
proposal having application to all or any part of the its business or
assets or that of any of its subsidiaries or to the area in which such
business or assets are situate or to any real property owned, leased,
used or operated by any member of the Group given or made by any
planning authority or other public body or authority whatsoever under
or by virtue of Environmental Laws or any other statutory power
whatsoever or in pursuance of the powers conferred by any other
statute whatsoever;
(l) if so required by the Facility Agent, without delay and at the cost of
the Principal Company, take all reasonable or necessary steps to
comply with any such notice or order referred to in Clause 13(k) above
and at the request of any Bank, without delay and at the cost of the
Principal Company, make or join with the Facility Agent in making such
objection or objections or representations against or in respect of
any proposal for such a notice or order as the Facility Agent shall
deem expedient;
(m) it shall provide all relevant information reasonably requested
(including information on its current business and its prospective
future business) to the Arrangers in relation to this Agreement and
any transaction contemplated hereby;
(n) it shall ensure that all information provided pursuant to 13(m) above
is true and accurate;
(o) it shall not and shall procure that ICA Ahold and ICA shall not:
(i) amend, vary or revise in any material respect the US Tender
Offer, the ICA Tender Offer, any US Transaction Document or
any ICA Transaction Document without the prior written consent
of the Facility Agent; or
(ii) waive, in whole or in part, any of the conditions of the US
Tender Offer, the ICA tender Offer, any US Transaction
Document or any ICA Transaction Document or permit any
termination of the US Merger Document or the ICA Merger
without the prior written consent of the Facility Agent;
(p) it shall and it shall ensure (in relation to the US Tender Offer and
the US Transaction Documents) that Snow shall and (in relation to the
ICA Transaction) that ICA Ahold and ICA shall:
(i) have made the US Tender Offer on the terms detailed in the
Offer to Purchase for Cash and the other US Transaction
Documents or the ICA Tender Offer on the terms detailed in the
ICA Tender Offer Document and the Framework Agreement;
(ii) in relation to the US Tender Offer and the ICA Transaction,
comply in all material respects with all relevant laws and
regulations and all requirements of relevant regulatory
authorities (including, without limitation, the Regulations
and applicable federal and state securities laws);
(iii) make available to the Facility Agent without delay all US
Transaction Documents and all publicity material, press
releases and other documents submitted or filed with the SEC
or published in relation to the US Tender Offer by or on
behalf of Snow and, at the request of the Facility Agent,
provide the Facility Agent with any material information in
the possession of Snow relating to the US Tender Offer or in
its possession or the possession of ICA Ahold or ICA in
relation to the ICA Transaction as the Facility Agent may
reasonably request;
(q) it shall use reasonable endeavours to ensure that no publicity
material, press releases or other documents in relation to the US
Tender Offer or the ICA Transaction are published or released by it or
on behalf of Snow or its or their advisers which refer to any of the
Facility Agent, the Arranger or the Banks, the Facility Agreement or
the Facility unless such reference and the context in which it appears
have previously been approved by the Facility Agent and the Banks
(such approval not to be unreasonably withheld or delayed) and the
Facility Agent and the Banks shall not withhold such approval if (i)
such publication or release is required by law or (ii) related to the
filing of this Agreement as an exhibit to Schedule TO;
(r) as far as possible, it shall promptly consult with the Facility Agent
before taking any action in connection with the US Tender Offer or the
ICA Transaction (other than effecting amendments that (i) relate only
to (a) an extension of time during which the Offer to Purchase for
Cash remains outstanding, (b) discussions with the appropriate
authorities relating to an anti-trust regulatory clearance or (c) the
results of the US Tender Offer) or (d) relate to the filing of this
Agreement as an exhibit to the Schedule TO, in particular (without
limitation) before taking any of the actions referred to above;
(s) after the US Tender Offer is consummated, it shall as soon as
reasonably practicable accept for payment and pay for all of the
Tendered US Shares in accordance with the terms of the US Tender Offer
and applicable laws (including, without limitation, the Regulations
and applicable federal and state securities laws);
(t) as soon as possible after US Target becomes a subsidiary of the
Principal Company, it will (a) review the composition of the board of
directors of US Target so as to ensure that it controls such board and
(b) consummate the US Merger;
(u) it shall notify the Facility Agent on a regular basis (and in any
event upon the request of the Facility Agent) of the number of US
Target Shares tendered in connection with the US Tender Offer, notify
the Facility Agent (if requested by the Facility Agent) of any
information furnished to the Antitrust Division of the Department of
Justice of the United States of America (the "Antitrust Division")
and/or the Federal Trade Commission and/or the applicable State
Attorneys General and keep the Facility Agent informed of the details
of all discussions held by the Principal Company, Snow and/or US
Target with the Antitrust Division and/or the Federal Trade Commission
until such time as the US Tender Offer either is withdrawn, lapses or
is consummated;
(v) it shall notify the Facility Agent on a regular basis (and in any
event upon the request of the Facility Agent) of all discussions held
by the Principal Company, ICA Ahold, IFAB, Canica or ICA with any
relevant authority in connection with the ICA Transaction until such
time as the ICA Transaction is withdrawn, lapses or is consummated;
(w) it shall, and shall cause each of its subsidiaries to, comply with the
terms of the US Transaction Documents and the ICA Transaction
Documents.
Nothing contained in this Agreement shall restrict the ability of the Principal
Company or any of its subsidiaries from selling, pledging or otherwise disposing
of any assets which, at the time in question, constitute Margin Stock, or cause
or enable any one or more Banks to cause any or all of the Advances or other
payment obligations owed by the Principal Company hereunder to become due and
payable or enable any one or more of the Banks to take any of the actions
specified in Clause 14.1(a) or (b) below solely as a result of any such sale,
pledge or disposition.
14. EVENTS OF DEFAULT
14.1 EVENTS OF DEFAULT If:
(i) any Obligor fails to pay any principal, interest or other sum on
the day of the same becoming due and payable pursuant to this
Agreement;
(ii) any representation, warranty or statement made or (deemed to be)
repeated by any Obligor or Snow in this Agreement or in any
certificate, statement or other document contemplated hereby to
the extent provided by or for and on behalf of the Obligors proves
to be untrue or incorrect in a respect which is, in the opinion of
an Instructing Group, material at the time such certificate
statement or document is made or repeated (or deemed to be made or
repeated) or expressed or any representation or warranty of any
party to any US Transaction Document or ICA Transaction Document
proves to be incorrect or misleading in any material respect at
the time it is made or repeated (or deemed to be repeated); or
(iii) any Obligor or Snow defaults in the due performance or observance
of any undertaking or obligation on its part contained in or
pursuant to this Agreement and, if such default is capable of
remedy, the same shall not have been remedied to the satisfaction
of the Facility Agent (after consultation with an Instructing
Group,) within fourteen days thereafter or any party to any US
Transaction Document or any ICA Transaction Document fails to
perform or comply with, in either case in any material respect,
any obligation, agreement or covenant to be performed or complied
with under any US Transaction Document or ICA Transaction Document
which shall include, for the avoidance of doubt but without
limitation, a repudiation by any party to any US Transaction
Document or ICA Transaction Document of such US Transaction
Document or ICA Transaction Document; or
(iv) there shall have occurred the liquidation of any of the Obligors,
Snow, US Target, ICA Ahold, ICA or any Material Subsidiary or any
order is made or resolution, law or regulation passed or other
action taken (including the making of any application to any court
or other relevant authority) for or with a view to the liquidation
of any Obligor, US Target, ICA Ahold, ICA or any Material
Subsidiary or any Obligor, US Target, ICA Ahold, ICA or any
Material Subsidiary shall otherwise enter into liquidation
(excluding, for the avoidance of doubt, the consummation of the
ICA Merger or of the US Merger in accordance with the US Merger
Document); or
(v) any Obligor, Snow, US Target, ICA Ahold, ICA or any Material
Subsidiary petitions or applies to any court, tribunal or other
body or authority for the appointment of, or there shall otherwise
be appointed, any administrator, bewindvoerder, receiver,
liquidator, curator, sequestrator, trustee or other similar
officer of any Obligor, Snow, US Target, ICA Ahold, ICA or any
Material Subsidiary or of all or any part of the assets of any
Obligor, Snow, US Target, ICA Ahold, ICA or any Material
Subsidiary; or
(vi) any Obligor, Snow, US Target, ICA Ahold, ICA or any Material
Subsidiary applies for a (temporary) moratorium or suspension of
payments or for an arrangement with its creditors or for any
proceedings or arrangement by which the assets of any Obligor,
Snow, US Target, ICA Ahold, ICA or any Material Subsidiary are
submitted to the control of its creditors or any Obligor, Snow, US
Target, ICA Ahold, ICA or any Material Subsidiary otherwise
threatens, proposes or declares any moratorium on its debts or any
class of its debts; or
(vii) any Obligor, Snow, US Target, ICA Ahold, ICA or any Material
Subsidiary becomes, or is declared by any competent authority to
be, insolvent or admits in writing its inability to pay its debts
as they fall due or is or becomes subject to or applies for any
bankruptcy proceedings or starts negotiations with its creditors
for a restructuring of its debt; or
(viii) any Obligor or Snow without the written consent of the Facility
Agent on behalf of the Banks ceases or threatens to cease its
business as presently conducted or if any Obligor or any other
member of the Group sells, leases, transfers or otherwise disposes
of the whole or any Substantial part of its assets exceeding a
value equalling a Substantial part of the assets on a consolidated
basis of the Principal Company whether by one transaction or a
series of related transactions without the prior written consent
of the Banks; or
(ix) any other indebtedness of any Obligor, Snow, US Target, ICA Ahold,
ICA or any Material Subsidiary for or in respect of any borrowed
moneys which, when aggregated with the amount of all other
borrowed monies to which this Clause 14.1(ix) applies, exceed
$25,000,000 (or its equivalent) (save, in respect of any
guarantee, where liability under such guarantee is being contested
by such Obligor, Snow, US Target, ICA Ahold, ICA or any Material
Subsidiary in good faith) is not paid when due for payment (or
within any stated applicable period of grace) or is found not to
have been so paid or becomes due and payable or capable of being
declared due and payable prior to its stated date of payment or,
if payable on demand, shall not be paid when demanded; or
(x) any Obligor, Snow, US Target, ICA Ahold, ICA or any Material
Subsidiary defaults under any mortgage, charge, pledge, lien or
other encumbrance or other security interest upon the whole or any
part of the assets of such Obligor, Snow, US Target, ICA Ahold,
ICA or any Material Subsidiary and the same accordingly becomes
enforceable; or
(xi) all or any Substantial part of the assets of any Obligor, Snow, US
Target, ICA Ahold, ICA or any Material Subsidiary are attached or
distrained upon or becomes subject to any order or court or other
process for execution and such attachment, distraint, order or
process remains in effect and not discharged for 30 days; or
(xii) any consent of the Dutch authorities or the authorities of any
other relevant jurisdiction required for the validity,
enforceability or legality of this Agreement or any of the ICA
Transaction Documents or the US Transaction Documents or the
performance hereof or thereof ceases to be or is not for any
reason in full force and effect or such performance becomes
unlawful or the obligations of any Borrower or Snow under this
Agreement or of any other party to any ICA Transaction Document or
US Transaction Document are not or cease to be legal, valid,
binding or enforceable; or
(xiii) the whole or any part of the assets, revenues or share capital of
any Obligor, Snow, US Target, ICA Ahold, ICA or any Material
Subsidiary having a value which, when aggregated with the value of
all other assets to which this Clause 14.1(xiii) applies, equals
or exceeds 15% of the consolidated net assets of the Principal
Company, is expropriated or nationalised by any government; or
(xiv) any US Obligor or Snow shall (i) file a petition to take advantage
of any insolvency act; (ii) file a petition or answer seeking
reorganisation or arrangement or similar relief under the Federal
Bankruptcy Code or any other applicable law or statute of the
United States or any state; or (iii) by appropriate proceedings of
the board of directors, or the general or limited partners or
other governing body of any US Obligor or Snow, authorize the
filing of any such petition, making of such assignment or
commencement of such a proceeding; or
(xv) in respect of any US Obligor or Snow a court of competent
jurisdiction shall enter an order, judgment or decree appointing a
custodian, receiver, trustee, liquidator or conservator of any US
Obligor or Snow or of the whole or any substantial part of its
properties, or approve a petition filed against any US Obligor or
Snow seeking reorganization or arrangement or similar relief under
the Federal Bankruptcy Code or any other applicable law or statute
of the United States or any state; or if, under the provisions of
any other law for the relief or aid of debtors, a court of
competent jurisdiction shall assume custody or control of any US
Obligor or Snow or of the whole or any substantial part of its
properties; or if there is commenced against any US Obligor or
Snow any proceeding for any of the foregoing relief and such
proceeding or petition remains undismissed for a period of sixty
days; or if any US Obligor or Snow by any act indicates its
consent to or approval of any such proceeding or petition; or
(xvi) with respect to any Obligor, Snow, any Material US Subsidiary or
any ERISA Affiliate thereof, an ERISA Event shall occur with
respect to an Employee Plan and there shall result from such ERISA
Event a liability which, individually or in the aggregate, has a
material adverse effect upon the financial condition of such
Obligor, Snow or Material US Subsidiary; or
(xvii) the US Merger shall not have been consummated pursuant to the
terms set forth in the Offer to Purchase for Cash within six
months from the date hereof,
then, and in any such case and at any time thereafter, the Facility Agent may
(and, if so instructed by an Instructing Group, shall) by written notice to the
Borrowers:
(a) declare the Advances to be immediately due and payable (in the case
of an Event of Default specified in paragraphs (i) - (xi), and
(xiii) - (xvii) above) or due and payable within seven days of
demand of the Facility Agent (in any other case) (whereupon the same
shall become so payable together with accrued interest thereon and
any other sums then owed by any Obligor hereunder) or declare the
Advances to be due and payable on demand of the Facility Agent;
and/or
(b) declare that the Facility shall be cancelled, whereupon the same
shall be cancelled and the Commitment of each Bank shall be reduced
to zero
(provided, however, that notwithstanding the above, if there shall occur an
Event of Default under Clause 14.1(xiv) or Clause 14.1(xv) then the obligations
of the Banks to lend hereunder shall automatically terminate and any and all of
the Advances and other obligations shall be immediately due and payable without
any action by the Facility Agent or any Bank).
14.2 FACILITIES DUE ON DEMAND If, pursuant to Clause 14.1 (Events of Default),
the Facility Agent declares the Advances to be due and payable on demand of the
Facility Agent, then, and at any time thereafter, the Facility Agent may (and,
if so instructed by an Instructing Group, shall) by written notice to the
Borrowers call for repayment of the Advances on such date as it may specify in
such notice (whereupon the same shall become due and payable on such date
together with, in the case of payments in respect of Advances, accrued interest
thereon and any other sums then owed by the Obligors hereunder) or withdraw its
declaration with effect from such date as it may specify in such notice.
<PAGE>
PART 8
GUARANTEE
15. GUARANTEE AND INDEMNITY
15.1 GUARANTEE The Principal Company irrevocably and unconditionally guarantees
to the Facility Agent, the Arrangers and the Banks the due and punctual
observance and performance of all the terms, conditions and covenants on the
part of each other Obligor under this Agreement and agrees to pay to the
Facility Agent for its account or for the account of the Banks and the Arrangers
from time to time on demand any and every sum or sums of money which any such
other Obligor is at any time liable to pay to the Facility Agent, the Arrangers
and the Banks or any of them under or pursuant to this Agreement and which has
become due and payable but has not been paid at the time such demand is made.
15.2 INDEMNITY The Principal Company irrevocably and unconditionally agrees as a
primary obligation to indemnify the Facility Agent, the Arrangers and the Banks
from time to time on demand by the Facility Agent from and against any loss
incurred by the Facility Agent, the Arrangers and the Banks or any of them as a
result of any of the obligations of any other Obligor under or pursuant to this
Agreement being or becoming void, voidable, unenforceable or ineffective as
against such Obligor for any reason whatsoever, whether or not known to the
Facility Agent, the Arrangers and the Banks or any of them or any other person,
the amount of such loss being the amount which the person or persons suffering
it would otherwise have been entitled to recover from such Obligor.
15.3 ADDITIONAL SECURITY The obligations of the Guarantor herein contained shall
be in addition to and independent of every other security which the Facility
Agent, the Arrangers and the Banks or any of them may at any time hold in
respect of any obligations of any Obligor hereunder.
15.4 CONTINUING OBLIGATIONS The obligations of the Guarantor herein contained
shall constitute and be continuing obligations notwithstanding any settlement of
account or other matter or thing whatsoever and shall not be considered
satisfied by any intermediate payment or satisfaction of all or any of the
obligations of any Obligor under this Agreement and shall continue in full force
and effect until final payment in full of all amounts owing by each Obligor
hereunder and total satisfaction of all the Obligors' actual and contingent
obligations hereunder.
15.5 OBLIGATIONS NOT DISCHARGED Neither the obligations of the Guarantor herein
contained nor the rights, powers and remedies conferred in respect of the
Guarantor upon the Facility Agent, the Arrangers and the Banks or any of them by
this Agreement or by law shall be discharged, impaired or otherwise affected by:
(a) the winding-up, dissolution, administration or re-organisation of
any other Obligor or any other person or any change in its status,
function, control or ownership;
(b) any of the obligations of any other Obligor or any other person
hereunder or under any other security taken in respect of any of its
obligations hereunder being or becoming illegal, invalid,
unenforceable or ineffective in any respect;
(c) time or other indulgence being granted or agreed to be granted to
any other Obligor in respect of its obligations hereunder or under
any such other security;
(d) any amendment to, or any variation, waiver or release of, any
obligation of any other Obligor hereunder or under any such other
security;
(e) any failure to take, or fully to take, any security contemplated
hereby or otherwise agreed to be taken in respect of any other
Obligor's obligations hereunder;
(f) any failure to realise or fully to realise the value of, or any
release, discharge, exchange or substitution of, any security taken
in respect of any other Obligor's obligations hereunder; or
(g) any other act, event or omission which, but for this Clause 15.7,
might operate to discharge, impair or otherwise affect any of the
obligations of such Obligor herein contained or any of the rights,
powers or remedies conferred upon the Facility Agent, the Arrangers
and the Banks or any of them by this Agreement or by law.
15.6 SETTLEMENT CONDITIONAL Any settlement or discharge between the Guarantor
and the Facility Agent, the Arrangers and the Banks or any of them shall be
conditional upon no security or payment to the Facility Agent, the Arrangers and
the Banks or any of them by any Obligor or any other person on behalf of such
Obligor being avoided or reduced by virtue of any provisions or enactments
relating to bankruptcy, insolvency, liquidation or similar laws of general
application for the time being in force and, if any such security or payment is
so avoided or reduced, the Facility Agent, the Arrangers and the Banks shall
each be entitled to recover the value or amount of such security or payment from
the Guarantor subsequently as if such settlement or discharge had not occurred.
15.7 EXERCISE OF RIGHTS Neither the Facility Agent, the Arrangers and the Banks
nor any of them shall be obliged before exercising any of the rights, powers or
remedies conferred upon them in respect of the Guarantor by this Agreement or by
law:
(a) to make any demand of any other Obligor;
(b) to take any action or obtain judgment in any court against any other
Obligor;
(c) to make or file any claim or proof in a winding-up or dissolution of
any other Obligor; or
(d) to enforce or seek to enforce any other security taken in respect of
any of the obligations of any other Obligor hereunder.
15.8 DEFERRAL OF BORROWERS' RIGHTS The Guarantor agrees that, so long as any
amounts are or may be owed by any other Obligor hereunder or any other Borrower
is under any actual or contingent obligations hereunder, the Guarantor shall not
exercise any rights which it may at any time have by reason of performance by it
of its obligations hereunder:
(a) to be indemnified by any other Obligor; and/or
(b) to claim any contribution from any other Obligor or any other
guarantor of any other Obligor's obligations hereunder; and/or
(c) to take the benefit (in whole or in part and whether by way of
subrogation or otherwise) of any rights of the Facility Agent, the
Arrangers and the Banks hereunder or of any other security taken
pursuant to, or in connection with, this Agreement by all or any of
the Facility Agent, the Arrangers and the Banks.
15.9 SUSPENSE ACCOUNTS All moneys received, recovered or realised by a Bank by
virtue of Clause 15.1 (Guarantee) or Clause 15.2 (Indemnity) may, in that Bank's
discretion, be credited to a suspense or impersonal account and may be held in
such account for so long as such Bank thinks fit pending the application from
time to time (as such Bank may think fit) of such moneys in or towards the
payment and discharge of any amounts owing by any of the Obligors to such Bank
hereunder.
<PAGE>
PART 9
DEFAULT INTEREST AND INDEMNITY
16. DEFAULT INTEREST AND INDEMNITY
16.1 DEFAULT INTEREST PERIODS If any sum due and payable by any of the Obligors
hereunder is not paid on the due date therefor in accordance with the provisions
of Clause 18 (Payments) or if any sum due and payable by any of the Obligors
under any judgment of any court in connection herewith is not paid on the date
of such judgment, the period beginning on such due date or, as the case may be,
the date of such judgment and ending on the date upon which the obligation of
such Obligor to pay such sum (the balance thereof for the time being unpaid
being herein referred to as an "unpaid sum") is discharged shall be divided into
successive periods, each of which (other than the first) shall start on the last
day of the preceding such period shall be of such duration (not exceeding three
months) as the Facility Agent may select (except as otherwise provided in this
Clause 16).
16.2 DEFAULT INTEREST During each such period relating thereto as is mentioned
in Clause 16.1 (Default Interest Periods) an unpaid sum referred to in Clause
16.1 shall bear interest at the rate per annum which is the sum from time to
time of two per cent., the Margin and the relevant interbank rate determined in
respect of such unpaid sum for such period provided that:
(a) if, for any such period, the relevant interbank rate cannot be
determined, the rate of interest applicable to each part of any
unpaid sum owed to any Bank shall be the sum from time to time of
two per cent., the Margin and the rate per annum (rounded upwards
to the nearest four decimal places) notified (together with
reasonable evidence that such rate is applicable) by such Bank to
the Facility Agent (who shall notify the Borrower thereof) before
the last day of such period to be that which expresses as a
percentage rate per annum the cost to it of funding from whatever
source it may select its portion of such unpaid sum for such
period; and
(b) if such unpaid sum is all or part of an Advance which became due
and payable on a day other than the last day of the Term thereof,
the first such period applicable thereto shall be of a duration
equal to the unexpired portion of that Term and the rate of
interest applicable thereto from time to time during such period
shall be that which exceeds by two per cent. the rate which would
have been applicable to it had it not so fallen due.
16.3 PAYMENT OF DEFAULT INTEREST Any interest which shall have accrued under
Clause 16.2 (Default Interest) in respect of any sum shall be due and payable
and shall be paid by the Obligor owing such sum at the end of the period by
reference to which it is calculated or on such other date or dates as the
Facility Agent may specify by written notice to such Obligor.
16.4 BROKEN PERIODS If any Bank or the Facility Agent on its behalf receives or
recovers all or any part of an Advance made by such Bank otherwise than on the
last day of the Term thereof, the Obligor to whom such Advance was made shall
pay to the Facility Agent on demand for account of such Bank an amount equal to
the amount (if any) by which (a) the additional interest which would have been
payable on the amount so received or recovered had it been received or recovered
on the last day of the Term thereof exceeds (b) the amount of interest which in
the opinion of the Facility Agent would have been payable to the Facility Agent
on the last day of the Term thereof in respect of a deposit in the currency of
the amount so received or recovered equal to the amount so received or recovered
placed by it with a prime bank in London for a period starting on the third
business day following the date of such receipt or recovery and ending on the
last day of the Term thereof.
16.5 THE PRINCIPAL COMPANY'S INDEMNITY The Principal Company undertakes to
indemnify:
(a) each of the Facility Agent, the Arrangers and the Banks against any
cost, claim, loss, expense (including legal fees) or liability
together with any VAT thereon, which any of them may sustain or
incur as a consequence of the occurrence of any Event of Default or
any payment default by any of the Obligors hereunder;
(b) the Facility Agent against any loss it may suffer as a result of its
entering into, or performing, any foreign exchange contract for the
purposes of Part 10; and
(c) each Bank against any loss it may suffer as a result of its funding
an Advance requested by any of the Borrowers hereunder but not made
by reason of the operation of any one or more of the provisions
hereof.
16.6 UNPAID SUMS AS ADVANCES Any unpaid sum shall (for the purposes of this
Clause 16 and Clause 9.1 (Increased Costs)) be treated as an advance and
accordingly in this Clause 16 and Clause 9.1 (Increased Costs) the term
"Advance" includes any unpaid sum and "Term", in relation to an unpaid sum,
includes each such period relating thereto as is mentioned in Clause 16.1
(Default Interest Periods).
<PAGE>
PART 10
PAYMENTS
17. CURRENCY OF ACCOUNT AND PAYMENT
17.1 CURRENCY OF ACCOUNT The euro is the currency of account and payment for
each and every sum at any time due from any of the Obligors hereunder provided
that:
(a) each repayment of an Advance or a part thereof shall be made in the
currency in which such Advance is denominated at the time of that
repayment;
(b) each payment of interest shall be made in the currency in which the
sum in respect of which such interest is payable is denominated;
(c) each payment in respect of costs and expenses shall be made in the
currency in which the same were incurred;
(d) each payment pursuant to Clause 7.2 (Tax Indemnity) or Clause 9.1
(Increased Costs) shall be made in the currency specified by the
party claiming thereunder; and
(e) any amount expressed to be payable in a currency other than euro
shall be paid in that other currency.
17.2 CURRENCY INDEMNITY If any sum due from any of the Obligors under this
Agreement or any order or judgment given or made in relation hereto has to be
converted from the currency (the "first currency") in which the same is payable
hereunder or under such order or judgment into another currency (the "second
currency") for the purpose of (a) making or filing a claim or proof against such
Obligor, (b) obtaining an order or judgment in any court or other tribunal or
(c) enforcing any order or judgment given or made in relation hereto or if any
such sum is paid in the second currency, the Principal Company shall indemnify
and hold harmless each of the persons to whom such sum is due from and against
any loss suffered as a result of any discrepancy between (i) the rate of
exchange used for such purpose to convert the sum in question from the first
currency into the second currency and (ii) the rate or rates of exchange at
which such person may in the ordinary course of business purchase the first
currency with the second currency upon receipt of a sum paid to it in
satisfaction, in whole or in part, of any such order, judgment, claim or proof.
18. PAYMENTS
18.1 PAYMENTS TO THE FACILITY AGENT On each date on which this Agreement
requires an amount to be paid by an Obligor or a Bank, such Obligor or, as the
case may be, such Bank shall make the same available to the Facility Agent for
value on the due date at such time and in such funds and to such account with
such bank as the Facility Agent shall specify from time to time. Any payment
received by the Facility Agent from any of the Borrowers in accordance with the
foregoing shall, without prejudice to the Facility Agent's or any Bank's right
to reclaim or reassert its rights to payment from such Borrower of any amount
which the Facility Agent and such Bank is required to repay to such Borrower for
any reason, constitute fulfilment by the Borrower of its obligation to make such
payment hereunder.
18.2 ALTERNATIVE PAYMENT ARRANGEMENTS If, at any time, it shall become
impracticable (by reason of any action of any governmental authority or any
change in law, exchange control regulations or any similar event) for any or all
of the Obligors to make any payments hereunder in the manner specified in Clause
18.1 (Payments to the Facility Agent), then such Obligor may agree with each or
any of the Banks alternative arrangements for the payment direct to such Bank of
amounts due to such Bank hereunder provided that, in the absence of any such
agreement with any Bank, such Obligor shall be obliged to make all payments due
to such Bank in the manner specified herein. Upon reaching such agreement such
Obligor and such Bank shall immediately notify the Facility Agent thereof and
shall thereafter promptly notify the Facility Agent of all payments made direct
to such Bank.
18.3 PAYMENTS BY THE FACILITY AGENT Save as otherwise provided herein, each
payment received by the Facility Agent for the account of another person
pursuant to Clause 18.1 (Payments to the Facility Agent) shall:
(a) in the case of a payment received for the account of any Obligor,
be made available by the Facility Agent to such Obligor by
application:
(i) first, in or towards payment (on the date, and in the
currency and funds, of receipt) of any amount then due from
such Obligor hereunder to the person from whom the amount
was so received or in or towards the purchase of any amount
of any currency to be so applied; and
(ii) secondly, in or towards payment (on the date, and in the
currency and funds, of receipt) to such account with such
bank in the principal financial centre of the country of
the currency of such payment as such Obligor shall have
previously notified to the Facility Agent for this purpose;
and
(b) in the case of any other payment, be made available by the
Facility Agent to the person for whose account such payment was
received (in the case of a Bank, for the account of its relevant
Facility Office) for value the same day by transfer to such
account of such person with such bank in the principal financial
centre of the country of the currency of such payment as such
person shall have previously notified to the Facility Agent.
18.4 NO SET-OFF All payments required to be made by any of the Obligors
hereunder shall be calculated without reference to any set-off or counterclaim
and shall be made free and clear of and without any deduction for or on account
of any set-off or counterclaim.
18.5 CLAWBACK Where a sum is to be paid hereunder to the Facility Agent for
account of another person, the Facility Agent shall not be obliged to make the
same available to that other person or to enter into or perform any exchange
contract in connection therewith until it has been able to establish to its
satisfaction that it has actually received such sum, but if it does so and it
proves to be the case that it had not actually received such sum, then the
person to whom such sum or the proceeds of such exchange contract were so made
available shall on request refund the same to the Facility Agent together with
an amount sufficient to indemnify the Facility Agent against any cost or loss it
may have suffered or incurred by reason of its having paid out such sum or the
proceeds of such exchange contract prior to its having received such sum.
18.6 APPLICATION OF PAYMENTS The Facility Agent and each Bank shall apply any
amount received by it hereunder:
(i) first, in payment of all costs and expenses required to be
reimbursed by the Principal Company hereunder;
(ii) secondly, in payment of all accrued but unpaid fees;
(iii) thirdly, in payment of all accrued but unpaid default interest;
(iv) fourthly, in payment of all accrued but unpaid interest (other
than default interest); and
(v) fifthly, in payment of any unpaid principal.
19. SET-OFF
19.1 CONTRACTUAL SET-OFF Each of the Obligors authorises each Bank to apply and
each Bank shall be entitled to set-off any credit balance to which such Obligor
is entitled on any account of such Obligor with that Bank in satisfaction of any
sum due and payable from such Obligor to such Bank hereunder but unpaid; for
this purpose, each Bank is authorised to purchase with the moneys standing to
the credit of any such account such other currencies as may be necessary to
effect such application.
19.2 SET-OFF NOT MANDATORY No Bank shall be obliged to exercise any right given
to it by Clause 19.1 (Contractual Set-off).
20. SHARING
20.1 REDISTRIBUTION OF PAYMENTS Subject to Clause 20.3 (Recoveries Through Legal
Proceedings), if, at any time, the proportion which any Bank (a "Recovering
Bank") has received or recovered (whether by payment, the exercise of a right of
set-off or combination of accounts or otherwise) in respect of its portion of
any payment (a "relevant payment") to be made under this Agreement by any of the
Obligors for account of such Recovering Bank and one or more other Banks is
greater (the portion of such receipt or recovery giving rise to such excess
proportion being herein called an "excess amount") than the proportion thereof
so received or recovered by the Bank or Banks so receiving or recovering the
smallest proportion thereof, then:
(a) such Recovering Bank shall pay to the Facility Agent an amount equal
to such excess amount;
(b) there shall thereupon fall due from such Obligor to such Recovering
Bank an amount equal to the amount paid out by such Recovering Bank
pursuant to paragraph (a) above, the amount so due being, for the
purposes hereof, treated as if it were an unpaid part of such
Recovering Bank's portion of such relevant payment; and
(c) the Facility Agent shall treat the amount received by it from such
Recovering Bank pursuant to paragraph (a) above as if such amount
had been received by it from such Obligor in respect of such
relevant payment and shall pay the same to the persons entitled
thereto (including such Recovering Bank) pro rata to their
respective entitlements thereto,
provided that to the extent that any excess amount is attributable to a payment
to a Bank pursuant to paragraph (a)(i) of Clause 18.3 (Payments by the Facility
Agent) such portion of such excess amount as is so attributable shall not be
required to be shared pursuant hereto.
20.2 REPAYABLE RECOVERIES If any sum (a "relevant sum") received or recovered by
a Recovering Bank in respect of any amount owing to it by any of the Obligors
becomes repayable and is repaid by such Recovering Bank, then:
(a) each Bank which has received a share of such relevant sum by
reason of the implementation of Clause 20.1 (Redistribution of
Payments) shall, upon request of the Facility Agent, pay to the
Facility Agent for account of such Recovering Bank an amount equal
to its share of such relevant sum together with such amount (if
any) as is necessary to reimburse the Recovering Bank the
appropriate proportion of any interest it shall have been obliged
to pay when repaying such relevant sum to the relevant Obligor as
aforesaid; and
(b) there shall thereupon fall due from such Obligor to each such Bank
an amount equal to the amount paid out by it pursuant to paragraph
(a) above, the amount so due being, for the purposes hereof,
treated as if it were the sum payable to such Bank against which
such Bank's share of such relevant sum was applied.
20.3 RECOVERIES THROUGH LEGAL PROCEEDINGS If any Bank shall commence any action
or proceeding in any court to enforce its rights hereunder after consultation
with the other Banks and, as a result thereof or in connection therewith, shall
receive any excess amount (as defined in Clause 20.1 (Redistribution of
Payments)), then such Bank shall not be required to share any portion of such
excess amount with any Bank which has the legal right to, but does not, join in
such action or proceeding or commence and diligently prosecute a separate action
or proceeding to enforce its rights in another court.
<PAGE>
PART 11
FEES, COSTS AND EXPENSES
21. FEES
21.1 COMMITMENT FEE The Principal Company shall pay to the Facility Agent for
account of each Bank a commitment fee on the amount of the Total Commitments
from time to time during the period (the "relevant period") beginning on 23
February 2000 and ending on the Final Maturity Date, such commitment fee to be
calculated at the rate of 0.15 per cent. per annum and to be payable in arrear
on the last day of each successive period of three months which ends during the
relevant period and on the Final Maturity Date or the date upon which the Total
Commitments shall have been reduced to zero, if earlier.
21.2 STRUCTURING FEE The Principal Company shall pay to the Facility Agent for
the account of the Arrangers and the Banks the fee specified under the heading
"Structuring Fee" in the "Summary of Terms and Conditions" relating to this
Agreement sent by the Arrangers to the Principal Company and dated 23 February
2000 at the times, and in the amounts, specified therein.
21.3 AGENCY FEE In case the Syndication Date occurs the Principal Company shall
pay to the Facility Agent for its own account the agency fees specified in the
letter of even date herewith from the Facility Agent to the Principal Company at
the times, and in the amounts, specified in such letter.
21.4 SYNDICATION FEE The Principal Company shall pay to the Facility Agent for
the account of the Arrangers and the Banks any fee which the Principal Company
agrees to pay in accordance with Clause 24.9 (Syndication) at the times and in
the amounts so agreed.
22. COSTS AND EXPENSES
22.1 TRANSACTION EXPENSES The Principal Company shall, on demand of the Facility
Agent, reimburse each of the Facility Agent and the Arrangers for all reasonable
legal and out-of-pocket costs and expenses (including printing and publicity
costs) together with any VAT thereon incurred by it in connection with the
negotiation, preparation and execution of this Agreement and the completion of
the transactions herein contemplated and the syndication of the Facility.
22.2 PRESERVATION AND ENFORCEMENT OF RIGHTS The Principal Company shall, from
time to time on demand of the Facility Agent, reimburse each of the Facility
Agent, the Arrangers and the Banks for all costs and expenses (including legal
fees) together with any VAT thereon incurred in or in connection with the
preservation and/or enforcement of any of the rights of any of the Facility
Agent, the Arrangers and the Banks under this Agreement.
22.3 STAMP TAXES The Principal Company shall pay all stamp, registration and
other taxes to which this Agreement is or at any time may be subject and shall,
from time to time on demand of the Facility Agent, indemnify each of the
Facility Agent, the Arrangers and the Banks against any liabilities, costs,
claims and expenses resulting from any failure to pay or any delay in paying any
such tax.
22.4 AGENT'S COSTS The Principal Company shall, from time to time on demand of
the Facility Agent (and without prejudice to the provisions of Clause 22.2
(Preservation and Enforcement of Rights) and Clause 27.2 (Amendment Costs))
compensate the Facility Agent at such daily and/or hourly rates as the Facility
Agent shall from time to time reasonably determine for the time and expenditure,
all costs and expenses (including telephone, fax, copying, travel and personnel
costs) incurred by the Facility Agent in connection with its taking such action
as it may deem appropriate or in complying with any instructions from an
Instructing Group or any request by the Borrowers or any of them in connection
with:
(a) the granting or proposed granting of any waiver or consent
requested hereunder by the Borrowers or any of them;
(b) any actual, potential or suspected breach by the Borrowers or any
of them of its obligations hereunder;
(c) the occurrence of any event which is an Event of Default or a
Potential Event of Default; or
(d) any amendment or proposed amendment hereto requested by the
Borrowers or any of them.
22.5 BANKS' LIABILITIES FOR COSTS If the Principal Company fails to perform any
of its obligations under this Clause 22, each Bank shall, in its Proportion,
indemnify each of the Facility Agent and the Arrangers against any loss incurred
by either of them as a result of such failure and the Principal Company shall
forthwith reimburse each Bank for any payment made by it pursuant to this Clause
22.5.
22.6 INDEMNIFICATION BY THE PRINCIPAL COMPANY The Principal Company agrees to
and hereby does indemnify and hold harmless the Facility Agent and each Bank and
their respective affiliates, directors, officers, agent and employees and each
other person, if any controlling them or any of their affiliates within the
meaning of either Section 15 of the Securities Act of 1933, as amended or
Section 20(a) of the Exchange Act (each, "Indemnified Party") from and against
any and all losses, claims, damages, costs, expenses (including reasonable
counsel fees and disbursements) and liabilities which may be incurred by or
asserted against such Indemnified Party resulting from any actual or threatened
legal actions or proceedings arising out of the Commitments, the financings
contemplated hereby, the US Tender Offer, any transaction contemplated by any of
the US Transaction Documents or their role in connection therewith whether or
not they or any other Indemnified Party is named as a party to any such legal
action or proceeding ("Claims"). The Principal Company will not, however, be
responsible to any Indemnified Party hereunder for any claims to the extent that
any such Claim shall have arisen out of or resulted from actions taken or
omitted to be taken by such Indemnified Party which constitutes the gross
negligence or wilful misconduct of such Indemnified Party ("Excluded Claims").
Each Indemnified Party shall give the Principal Company prompt written notice of
any Claim setting forth a description of those elements of the claim of which
such Indemnified Party has knowledge. The Principal Company shall have the right
at any time during which a Claim is pending to select counsel to defend and
settle any Claims for which the Principal Company is an indemnitor hereunder. In
any other case, the Indemnified Party shall have the right to select counsel and
control the defence of any Claims to the extent provided for herein; provided,
however, that no Indemnified Party shall settle any claim as to which it is
controlling the defence without the Principal Company's consent, which consent
shall not be unreasonably withheld. With respect to any Claim for which the
Principal Company is entitled to select counsel, each Indemnified Party shall
have the right, at its expense, to participate in the defence of such Claim.
<PAGE>
PART 12
AGENCY PROVISIONS
23. THE FACILITY AGENT, THE ARRANGERS AND THE BANKS
23.1 APPOINTMENT OF THE FACILITY AGENT Each of the Arrangers and the Banks
hereby appoints the Facility Agent to act as its agent in connection herewith
and authorises the Facility Agent to exercise such rights, powers, authorities
and discretions as are specifically delegated to the Facility Agent by the terms
hereof together with all such rights, powers, authorities and discretions as are
reasonably incidental thereto.
23.2 FACILITY AGENT'S DISCRETIONS The Facility Agent may:
(a) assume that:
(i) any representation made by any of the Borrowers in
connection herewith is true;
(ii) no Event of Default or Potential Event of Default has
occurred;
(iii) none of the Borrowers is in breach of or default under its
obligations hereunder or under any of the US Transaction
Documents; and
(iv) any right, power, authority or discretion vested herein
upon an Instructing Group, the Banks or any other person or
group of persons has not been exercised
unless the Facility Agent has, in its capacity as agent hereunder,
actual knowledge of or received actual notice to the contrary from
any other party hereto;
(b) assume that the Facility Office of each Bank is that identified
with its signature below (or, in the case of a Transferee, at the
end of the Transfer Certificate to which it is a party as
Transferee) until it has received from such Bank a notice
designating some other office of such Bank to replace any such
Facility Office and act upon any such notice until the same is
superseded by a further such notice;
(c) engage and pay for the advice or services of any lawyers,
accountants, surveyors or other experts whose advice or services
may to it seem necessary, expedient or desirable and rely upon any
advice so obtained;
(d) rely as to any matters of fact which might reasonably be expected
to be within the knowledge of any of the Obligors upon a
certificate signed by or on behalf of such Obligor;
(e) rely upon any communication or document believed by it to be
genuine;
(f) refrain from exercising any right, power or discretion vested in
it as agent hereunder unless and until instructed by an
Instructing Group as to whether or not such right, power or
discretion is to be exercised and, if it is to be exercised, as to
the manner in which it should be exercised; and
(g) refrain from acting in accordance with any instructions of an
Instructing Group to begin any legal action or proceeding arising
out of or in connection with this Agreement until it shall have
received such security as it may require (whether by way of
payment in advance or otherwise) for all costs, claims, losses,
expenses (including legal fees) and liabilities together with any
VAT thereon which it will or may expend or incur in complying with
such instructions.
23.3 FACILITY AGENT'S OBLIGATIONS The Facility Agent shall:
(a) promptly inform each Bank of the contents of any notice or document
received by it in its capacity as Facility Agent from any of the
Obligors hereunder;
(b) promptly notify each Bank of the occurrence of any Event of Default
or any default by any of the Borrowers or any other party in the due
performance of or compliance with its obligations under this
Agreement or under any Transaction Document of which the Facility
Agent has actual knowledge or received actual notice from any other
party hereto;
(c) save as otherwise provided herein, act as agent hereunder in
accordance with any instructions given to it by an Instructing
Group, which instructions shall be binding on the Arrangers and all
of the Banks; and
(d) if so instructed by an Instructing Group, refrain from exercising
any right, power or discretion vested in it as agent hereunder
unless such right, power or discretion is vested in the Facility
Agent in its individual capacity hereunder or is a right, power or
discretion that may be exercised against the Arrangers, the Banks or
any of them.
23.4 EXCLUDED OBLIGATIONS Notwithstanding anything to the contrary expressed
or implied herein, neither the Facility Agent nor any of the Arrangers shall:
(a) be bound to enquire as to:
(i) whether or not any representation made by any of the
Borrowers in connection herewith is true;
(ii) the occurrence or otherwise of any Event of Default or
Potential Event of Default;
(iii) the performance by any of the Borrowers of its obligations
hereunder or under any Transaction Document; or
(iv) any breach of or default by any of the Borrowers of or
under its obligations hereunder or under any Transaction
Document;
(b) be bound to account to any Bank for any sum or the profit element
of any sum received by it for its own account;
(c) be bound to disclose to any other person any information relating
to any member of the Group if such disclosure would or might in
its opinion constitute a breach of any law or regulation or be
otherwise actionable at the suit of any person; or
(d) be under any obligations or fiduciary duties other than those for
which express provision is made herein.
23.5 INDEMNIFICATION Each Bank shall, in its Proportion, from time to time on
demand by the Facility Agent, indemnify the Facility Agent, against any and all
costs, claims, losses, expenses (including legal fees) and liabilities together
with any VAT thereon which the Facility Agent may incur in acting in its
capacity as facility agent hereunder to the extent the same are not paid by any
of the Obligors and the Principal Company shall, on first demand of such Bank,
reimburse such Bank in full for any monies paid out by it pursuant to this
Clause 23.5. Each Bank shall, following any payment made by it under this Clause
23.5, be entitled to recover from the Facility Agent any amount which it
establishes has been paid by it to the Facility Agent pursuant to this Clause
23.5 in respect of costs, claims, losses, expenses (including legal fees) and
liabilities incurred by the Facility Agent as a result of the Facility Agent's
own gross negligence or wilful misconduct in acting in its capacity as facility
agent hereunder.
23.6 EXCLUSION OF LIABILITIES None of the Facility Agent and the Arrangers
accepts any responsibility for the accuracy and/or completeness of any
information supplied by any of the Borrowers in connection herewith or for the
legality, validity, effectiveness, adequacy or enforceability of this Agreement
and none of the Facility Agent and the Arrangers shall be under any liability as
a result of taking or omitting to take any action in relation to this Agreement,
save in the case of gross negligence or wilful misconduct.
23.7 NO ACTIONS Each of the Banks agrees that it will not assert or seek to
assert against any director, officer or employee of the Facility Agent or any
Arranger any claim it might have against any of them in respect of the matters
referred to in Clause 23.6 (Exclusion of Liabilities).
23.8 BUSINESS WITH THE GROUP Each of the Facility Agent and the Arrangers may
accept deposits from, lend money to and generally engage in any kind of banking
or other business with any member of the Group.
23.9 RESIGNATION The Facility Agent may resign its appointment hereunder at any
time without assigning any reason therefor by giving not less than thirty days'
prior written notice to that effect to each of the other parties hereto provided
that no such resignation shall be effective until a successor for the Facility
Agent is appointed in accordance with the succeeding provisions of this Clause
23.
23.10 REMOVAL OF FACILITY AGENT An Instructing Group may remove the Facility
Agent from its appointment hereunder as Facility Agent at any time by giving not
less than thirty days' prior written notice to that effect to each of the other
parties hereto provided that no such removal shall be effective until a
successor for the Facility Agent is appointed in accordance with the succeeding
provisions of this Clause 23.
23.11 SUCCESSOR FACILITY AGENT If the Facility Agent gives notice of its
resignation pursuant to Clause 23.9 (Resignation), then any reputable and
experienced bank or other financial institution may be appointed as a successor
to the Facility Agent by an Instructing Group during the period of such notice
but, if no such successor is so appointed, the Facility Agent may appoint such a
successor itself.
23.12 NEW FACILITY AGENT If an Instructing Group removes the Facility Agent from
its appointment hereunder pursuant to Clause 23.10 (Removal of Facility Agent),
then any reputable and experienced bank or other financial institution may be
appointed, after consultation with the Principal Company, as a successor to the
Facility Agent by an Instructing Group.
23.13 RIGHTS AND OBLIGATIONS If a successor to the Facility Agent is appointed
under the provisions of Clause 23.11 (Successor Facility Agent) or Clause 23.12
(New Facility Agent), then (a) the retiring Facility Agent shall be discharged
from any further obligation hereunder but shall remain entitled to the benefit
of the provisions of this Clause 23 and (b) its successor and each of the other
parties hereto shall have the same rights and obligations amongst themselves as
they would have had if such successor had been a party hereto.
23.14 OWN RESPONSIBILITY It is understood and agreed by each Bank that it has
itself been, and will continue to be, solely responsible for making its own
independent appraisal of and investigations into the financial condition,
creditworthiness, condition, affairs, status and nature of each Borrower and the
Group and, accordingly, each Bank warrants to each of the Facility Agent and the
Arrangers that it has not relied on and will not hereafter rely on any of the
Facility Agent and the Arrangers:
(a) to check or enquire on its behalf into the adequacy, accuracy or
completeness of any information provided by any of the Borrowers in
connection with this Agreement or the transactions herein
contemplated (whether or not such information has been or is
hereafter circulated to such Bank by the Facility Agent or any
Arranger); or
(b) to assess or keep under review on its behalf the financial
condition, creditworthiness, condition, affairs, status or nature of
any member of the Group.
23.15 SEPARATION OF DEPARTMENTS In acting as Facility Agent and/or Arranger for
the Banks, the agency department of each of the Facility Agent and the Arrangers
shall be treated as a separate entity from any other of its divisions or
departments and, notwithstanding the foregoing provisions of this Clause 23, in
the event that the Facility Agent or, as the case may be, an Arranger should act
for any member of the Group in any capacity in relation to any other matter, any
information given by such member of the Group to the Facility Agent or, as the
case may be, such Arranger in such other capacity may be treated as confidential
by the Facility Agent or, as the case may be, such Arranger and shall not
constitute actual knowledge of any matter for the purposes of Clause 23.2.
23.16 CONFIDENTIAL INFORMATION Notwithstanding anything to the contrary
expressed or implied herein and without prejudice to the provisions of Clause
23.14 (Separation of Departments), the Facility Agent shall not as between
itself and the Banks be bound to disclose to any Bank or other person any
information which is supplied by any member of the Group to the Facility Agent
in its capacity as facility agent hereunder for the Banks and which is
identified by such member of the Group at the time it is so supplied as being
confidential information provided that the consent of the relevant member of the
Group to such disclosure shall not be required in relation to any information
which in the opinion of the Facility Agent relates to an Event of Default or
Potential Event of Default or in respect of which the Banks have given a
confidentiality undertaking in a form satisfactory to the Facility Agent and the
relevant member of the Group.
<PAGE>
PART 13
ASSIGNMENTS AND TRANSFERS
24. ASSIGNMENTS AND TRANSFERS
24.1 BINDING AGREEMENT This Agreement shall be binding upon and enure to the
benefit of each party hereto and its or any subsequent successors (including,
without limitation, any entity which assumes the rights and obligations of any
party hereto by operation of the law of the jurisdiction of incorporation or
domicile of such party), Transferees and assigns.
24.2 NO ASSIGNMENTS AND TRANSFERS BY THE OBLIGORS None of the Obligors shall be
entitled to assign or transfer all or any of its rights, benefits and
obligations hereunder.
24.3 ASSIGNMENT AND TRANSFERS BY BANKS Any Bank may, at any time, assign all or
(subject to the proviso below) any of its rights and benefits hereunder or
transfer in accordance with Clause 24.5 all or any of its rights, benefits and
obligations hereunder (i) to any holding company, any of its wholly-owned
subsidiaries or any affiliate, (ii) in connection with primary syndication of
the Facility, (iii) to any other Bank or (iv) with the prior written consent of
the Principal Company (not to be unreasonably withheld or delayed) to any other
person provided that (without prejudice to a Bank's right to assign and/or
transfer all of its rights, benefits and obligations hereunder in accordance
with this Clause 24.3) a Bank shall be entitled to assign and/or transfer part
of its Participation hereunder only in an amount equal to or exceeding EUR
10,000,000 and then only if it retains a Participation of not less than EUR
10,000,000. Any Bank which assigns all or any of its rights and benefits
hereunder or transfers in accordance with Clause 24.5 all or any of its rights,
benefits and obligations hereunder to any other Bank shall notify the Principal
Company thereof.
24.4 ASSIGNMENTS BY BANKS If any Bank assigns all or any of its rights and
benefits hereunder in accordance with Clause 24.3 (Assignments and Transfers by
Banks), then, unless and until the assignee has agreed with the Principal
Company, the Facility Agent, the Arrangers and the other Banks that it shall be
under the same obligations towards each of them as it would have been under if
it had been an original party hereto as a Bank (whereupon such assignee shall
become a party hereto as a "Bank"), the Facility Agent, the Arrangers and the
other Banks shall not be obliged to recognise such assignee as having the rights
against each of them which it would have had if it had been such a party hereto.
The Assignee shall be responsible for giving notice of the assignment to the
relevant Obligors.
24.5 TRANSFERS BY BANKS If any Bank wishes to transfer all or any of its rights,
benefits and/or obligations hereunder as contemplated in Clause 24.3
(Assignments and Transfers by Banks), then such transfer may be effected by the
delivery to and signature by the Facility Agent on behalf of the Obligors (and
each of the Obligors hereby irrevocably appoints the Facility Agent as its agent
for the purposes of such delivery and signature of any Transfer Certificate) of
a duly completed and duly executed Transfer Certificate in which event it is
hereby irrevocably agreed by each of the Obligors in advance that, on the later
of the Transfer Date specified in such Transfer Certificate and the fifth
business day after (or such earlier business day endorsed by the Facility Agent
on such Transfer Certificate falling on or after) the date of delivery of such
Transfer Certificate to and signature by the Facility Agent on behalf of the
Obligors (which signature the Facility Agent agrees to complete promptly upon
receipt of the relevant Transfer Certificate in accordance with this Clause 24):
(a) to the extent that in such Transfer Certificate the Bank party
thereto seeks to transfer its rights, benefits and obligations
hereunder each of the Obligors and such Bank shall be released from
further obligations towards one another hereunder and their
respective rights against one another shall be cancelled (such
rights, benefits and obligations being referred to in this Clause
24.5 as "discharged rights and obligations");
(b) each of the Obligors and the Transferee party thereto shall assume
obligations towards one another and/or acquire rights against one
another which differ from such discharged rights and obligations
only insofar as such Obligor and such Transferee have assumed and/or
acquired the same in place of such Obligor and such Bank;
(c) the Facility Agent, the Arrangers, such Transferee and the other
Banks shall acquire the same rights and benefits and assume the same
obligations between themselves as they would have acquired and
assumed had such Transferee been an original party hereto as a Bank
with the rights, benefits and/or obligations acquired or assumed by
it as a result of such transfer; and
(d) such Transferee shall become a party hereto as a "Bank" and will
also be deemed to have appointed the Facility Agent as its agent in
accordance with the terms of this Agreement.
Receipt of a Transfer Certificate by the Facility Agent shall also constitute
notice to the Obligors as required by Dutch law and each party hereto hereby
irrevocably authorises and instructs the Facility Agent to receive each such
notice on its behalf and irrevocably agrees that each such notice to be given to
such party may be given to the Facility Agent as representative of such party.
24.6 TRANSFER FEE On the date upon which a transfer takes effect pursuant to
Clause 24.5 (Transfers by Banks) the Transferee in respect of such transfer
shall pay to the Facility Agent for its own account a transfer fee of EUR 1,500.
All costs of any transfer of any Bank's rights, benefits and obligations
hereunder to any Transferee (including, without limitation, any stamp duty)
shall be for the account of such Bank.
24.7 COOPERATION AND AUTHORISATION Each of the parties hereto hereby (i) in
advance cooperates (werkt mee aan) any transfer purported to be effected by
means of a duly executed Transfer Certificate delivered to the Facility Agent
and (ii) irrevocably authorises and instructs the Facility Agent to accept any
Transfer Certificate and/or notice thereof on its behalf.
24.8 EXCESS AMOUNTS If any Bank assigns or transfers any of its rights, benefits
and obligations hereunder or changes its Facility Office and there arises (by
reason of circumstances existing at the date of such assignment or transfer or
which are not existing at such date but which are scheduled to take effect or in
respect of which there is a general consensus that they will take effect after
the date thereof) an obligation on the part of a Borrower to such Bank or its
assignee or transferee or any other person any amount in excess of the amount it
would have been obliged to pay but for such assignment, transfer or change, then
such Borrower shall not be obliged to pay the amount of such excess.
24.9 DISCLOSURE OF INFORMATION Any Bank may disclose to any actual or potential
assignee or Transferee or to any person who may otherwise enter into contractual
relations with such Bank in relation to this Agreement such information about
the Borrowers and the Group as such Bank shall consider appropriate and each
Bank shall also be entitled to disclose any such information:
(i) if required by applicable law or applicable regulations of any
relevant supervising authorities;
(ii) in connection with any legal proceedings taken against any of the
Obligors in connection with this Agreement;
(iii) to any of its auditors or legal counsel; or
(iv) which is in the public domain.
24.10 SYNDICATION The Principal Company hereby acknowledges its obligations set
out under the heading "Syndication Strategy" in the Syndication Mandate Latter
relating to the Summary Terms and Conditions related to the Facility dated 23
February 2000 (including, without limitation, in relation to providing
assistance with syndication of the Facility and to negotiating in good faith to
agree an appropriate arrangement fee and pricing, as well as a review of the
structuring elements of the Facility reflecting prevailing market conditions to
ensure a successful syndication, all as set out in such Syndication Mandate
Letter and such Summary Terms and Conditions). In addition, the Principal
Company agrees to procure the assistance of relevant officers of the Principal
Company in the preparation and approval of the Information Memorandum, shall
provide to the Arrangers all information deemed reasonably necessary by the
Arrangers to prepare such Information Memorandum and shall expeditiously review
and provide its approval of the Information Memorandum.
24.11 CLEAR MARKET The Principal Company agrees that, prior to the Syndication
Date, no member of the Group shall engage any person (other than the Arrangers)
or otherwise enter in to the national loan or capital markets or otherwise
respond to any proposal made to any member of the Group for any kind of loan,
note or bond issue in which any member of the Group is borrower or guarantor
without the prior written consent of the Arrangers.
<PAGE>
PART 14
MISCELLANEOUS
25. CALCULATIONS AND EVIDENCE OF DEBT
25.1 BASIS OF ACCRUAL Interest and the facility fee shall accrue from day to day
and shall be calculated on the basis of a year of 360 days (or, if market
practice differs, in accordance with market practice) and the actual number of
days elapsed.
25.2 QUOTATIONS If on any occasion a Reference Bank or Bank fails to supply the
Facility Agent with a quotation required of it under the foregoing provisions of
this Agreement, the rate for which such quotation was required shall be
determined from those quotations which are supplied to the Facility Agent.
25.3 EVIDENCE OF DEBT Each Bank shall maintain in accordance with its usual
practice accounts evidencing the amounts from time to time lent by and owing to
it hereunder.
25.4 CONTROL ACCOUNTS The Facility Agent shall maintain on its books a control
account or accounts in which shall be recorded (a) the amount of any Advance
made or arising hereunder (and the name of the Bank to whom such sum relates and
each Bank's share therein), (b) the amount of all principal, interest and other
sums due or to become due from any of the Borrowers to any of the Banks
hereunder and each Bank's share therein and (c) the amount of any sum received
or recovered by the Facility Agent hereunder and each Bank's share therein. The
Facility Agent shall, upon request of any Borrower, deliver to such Borrower
statements of the accounts referred to in this Clause 25.4.
25.5 PRIMA FACIE EVIDENCE In any legal action or proceeding arising out of or in
connection with this Agreement, the entries made in the accounts maintained
pursuant to Clause 25.3 (Evidence of Debt) and Clause 25.4 (Control Accounts)
shall be prima facie evidence of the existence and amounts of the obligations of
the Borrowers therein recorded.
25.6 CERTIFICATES OF BANKS A certificate of a Bank as to (a) the amount by which
a sum payable to it hereunder is to be increased under Clause 7.1 (Tax Gross-up)
or (b) the amount for the time being required to indemnify it against any such
cost, payment or liability as is mentioned in Clause 7.2 (Tax Indemnity) or
Clause 9.1 (Increased Costs) or Clause 16.4 (Broken Periods) or Clause 17.2
(Currency Indemnity) shall be conclusive evidence for the purposes of this
Agreement save in the case of manifest error.
25.7 FACILITY AGENT'S CERTIFICATES A certificate of the Facility Agent as to the
amount at any time due from any Borrower hereunder or the amount which, but for
any of the obligations of any Borrower hereunder being or becoming void,
voidable, unenforceable or ineffective, at any time would have been due from
such Borrower hereunder shall, in the absence of manifest error, be conclusive
for the purposes of Part 8 (Guarantee).
25.8 COUNTERPARTS This Agreement may be executed in any number of counterparts
and by different parties on separate counterparts, each of which when so
executed and delivered shall be an original but all counterparts together shall
constitute one and the same instrument.
26. REMEDIES AND WAIVERS, PARTIAL INVALIDITY
26.1 REMEDIES AND WAIVERS No failure to exercise, nor any delay in exercising,
on the part of any party hereto, any right or remedy hereunder shall operate as
a waiver thereof, nor shall any single or partial exercise of any right or
remedy prevent any further or other exercise thereof or the exercise of any
other right or remedy. The rights and remedies herein provided are cumulative
and not exclusive of any rights or remedies provided by law.
26.2 PARTIAL INVALIDITY If, at any time, any provision hereof is or becomes
illegal, invalid or unenforceable in any respect under the law of any
jurisdiction, neither the legality, validity or enforceability of the remaining
provisions hereof nor the legality, validity or enforceability of such provision
under the law of any other jurisdiction shall in any way be affected or impaired
thereby.
27. AMENDMENTS
27.1 AMENDMENTS With the prior written consent of an Instructing Group, the
Facility Agent and the Principal Company may from time to time enter into
written amendments, supplements or modifications hereto for the purpose of
adding any provisions to this Agreement or changing in any manner the rights of
all or any of the Facility Agent, the Arrangers and the Banks or of any Obligor
hereunder, and, at the request of the Principal Company with the prior consent
of an Instructing Group, the Facility Agent on behalf of the Arrangers and the
Banks may execute and deliver to the Principal Company a written instrument
waiving prospectively or retrospectively, on such terms and conditions as the
Facility Agent may specify in such instrument, any of the requirements of this
Agreement or any Event of Default or Potential Event of Default and its
consequences provided, however, that:
(i) no such waiver and no such amendment, supplement or modification
shall without the prior consent of all the Banks:
(a) amend or modify the definitions of Additional Borrower,
Instructing Group, Margin or Final Maturity Date;
(b) amend, modify or waive any provision which requires the prior
written consent of the Banks, Clause 21 (Fees), Clause 24.2
(No Assignments and Transfers by the
Obligors) or this Clause 27;
(c) change the principal or currency of any Advance or extend the
Term thereof;
(d) decrease the amount of, or change the currency of or extend
the date for any payment of interest, fees or any other amount
payable to all or any of the Facility Agent, the Arrangers and
the Banks hereunder;
(e) increase the amount of the Total Commitments; or
(f) release any Guarantor from all or any of its obligations
hereunder;
(ii) notwithstanding any other provision hereof, the Facility Agent shall
not be obliged to agree to any such waiver, amendment, supplement or
modification if the same would:
(a) amend, modify or waive any provision of this
Clause 27; or
(b) otherwise amend, modify or waive any of the Facility Agent's
or the Arrangers' rights hereunder or subject the Facility
Agent or, as the case may be, any Arranger to any additional
obligations hereunder; and
(iii) the Facility Agent shall promptly notify the Banks of any written
amendments, supplements or modifications hereto which have been made
with the consent of an Instructing Group and the Borrower.
27.2 AMENDMENT COSTS If the Principal Company requests any amendment,
supplement, modification or waiver in accordance with Clause 27.1, then the
Principal Company shall, on demand of the Facility Agent, reimburse the Facility
Agent for all reasonable costs and expenses (including reasonable legal fees)
together with any VAT thereon incurred by the Facility Agent in the negotiation,
preparation and execution of any written instrument contemplated by Clause 27.1.
28. NOTICES
28.1 COMMUNICATIONS IN WRITING Each communication to be made hereunder shall be
made in writing but, unless otherwise stated, may be made by telefax or letter
provided that the Borrowers shall indemnify each of the Facility Agent, the
Arrangers and the Banks against any cost, claims, loss, expense (including legal
fees) or liability together with any VAT thereon which any of them may sustain
or incur as a consequence of any telefax communication originating from any
Borrower not being actually received by or delivered to the intended recipient
thereof or any telefax communication purporting to originate from any Borrower
being made or delivered fraudulently.
28.2 DELIVERY Any communication or document (unless made by telefax or
telephone) to be made or delivered by one person to another pursuant to this
Agreement shall (unless that other person has by fifteen days' written notice to
the Facility Agent specified another address) be made or delivered to that other
person at the address identified with its signature below (or, in the case of a
Transferee, at the end of the Transfer Certificate to which it is a party as
Transferee) and shall be deemed to have been made or delivered when left at that
address or (as the case may be) ten days after being deposited in the post
postage prepaid in an envelope addressed to it at that address provided that:
(i) any communication or document to be made or delivered to the
Facility Agent shall be effective only when received by the
Facility Agent and then only if the same is expressly marked for
the attention of the department or officer identified with the
Facility Agent's signature below (or such other department or
officer as the Facility Agent shall from time to time specify for
this purpose); and
(ii) any communication or document to be made or delivered to any Bank
having more than one Facility Office shall (unless such Bank has
by fifteen days' written notice to the Facility Agent specified
another address) be made or delivered to such Bank at the address
identified with its signature below (or, in the case of a
Transferee, at the end of the Transfer Certificate to which it is
a party as Transferee) as its main Facility Office.
28.3 COMMUNICATIONS BY TELEPHONE OR TELEFAX Where any provision of this
Agreement specifically contemplates telephone or telefax communication made by
one person to another, such communication shall be made to that other person at
the relevant telephone number specified by it from time to time for the purpose
and shall be deemed to have been received when made (in the case of any
communication by telephone) or when transmission of such telefax communication
has been completed (in the case of any telecommunication by telefax). Each such
telefax communication, if made to the Facility Agent by a Borrower shall be
signed by the person or persons authorised by such Borrower in the certificate
delivered pursuant to the Third Schedule and shall be expressed to be for the
attention of the department or officer whose name has been notified for the time
being for that purpose by the Facility Agent to such Borrower.
28.4 ENGLISH LANGUAGE Each communication and document made or delivered by one
party to another pursuant to this Agreement shall be in the English language or
accompanied by a translation thereof into English certified (by an officer of
the person making or delivering the same) as being a true and accurate
translation thereof.
28.5 COUNTERPARTS This Agreement may be executed in any number of counterparts
and by different parties hereto on separate counterparts each of which, when
executed and delivered, shall constitute an original, but all the counterparts
shall together constitute but one and the same instrument.
<PAGE>
PART 15
LAW AND JURISDICTION
29. LAW AND JURISDICTION
29.1 DUTCH LAW This Agreement shall be governed by, and shall be construed in
accordance with, the law of The Netherlands.
29.2 DUTCH COURTS Each of the Obligors irrevocably agrees for the benefit of
each of the Facility Agent, the Arrangers and the Banks that the competent
courts of Amsterdam, The Netherlands shall have jurisdiction to hear and
determine any suit, action or Proceeding, and to settle any Disputes and, for
such purposes, irrevocably submits to the jurisdiction of such courts.
29.3 NEW YORK COURTS Each of the Obligors irrevocably agrees that the courts of
the State of New York and the courts of the United States of America, in each
case sitting in the County of New York, shall have jurisdiction to hear and
determine any Proceedings and to settle any Disputes and, for such purposes,
irrevocably submits to the jurisdiction of such courts.
29.4 APPROPRIATE FORUM Each of the parties irrevocably waives any objection
which it might now or hereafter have to the courts referred to in Clause 29.2
(Dutch Courts) and Clause 29.3 (New York Courts) being nominated as the forum to
hear and determine any Proceedings and to settle any Disputes and agrees not to
claim that any such court is not a convenient or appropriate forum.
29.5 SERVICE OF PROCESS Each of the Obligors agrees that the process by which
any suit, action or proceeding is begun may be served on it by being delivered,
in connection with any suit, action or proceeding in New York, to CT Corporation
System at 1633 Broadway, New York, N.Y. 10019, United States of America. If the
appointment of the person mentioned in this Clause 29.5 ceases to be effective
each Obligor shall immediately appoint a further person in New York to accept
service of process on its behalf in New York and, failing such appointment
within 15 days, the Facility Agent shall be entitled to appoint such a person by
notice to such Obligor. Nothing contained herein shall affect the right to serve
process in any other manner permitted by law.
29.6 NON-EXCLUSIVE SUBMISSIONS The submission to the jurisdiction of the courts
referred to in Clause 29.2 (Dutch Courts) and Clause 29.3 (New York Courts)
shall not (and shall not be construed so as to) limit the right of the Facility
Agent, the Arrangers and the Banks or any of them to take Proceedings against
any of the Obligors in any other court of competent jurisdiction nor shall the
taking of Proceedings in any one or more jurisdictions preclude the taking of
Proceedings in any other jurisdiction (whether concurrently or not) if and to
the extent permitted by applicable law.
29.7 CONSENT TO ENFORCEMENT Each of the Obligors hereby consents generally in
respect of any Proceedings to the giving of any relief or the issue of any
process in connection with such Proceedings including, without limitation, the
making, enforcement or execution against any property whatsoever (irrespective
of its use or intended use) of any order or judgment which may be made or given
in such Proceedings.
29.8 WAIVER OF IMMUNITY To the extent that any of the Obligors may in any
jurisdiction claim for itself or its assets immunity from suit, execution,
attachment (whether in aid of execution, before judgment or otherwise) or other
legal process and to the extent that in any such jurisdiction there may be
attributed to itself or its assets such immunity (whether or not claimed), such
Obligor hereby irrevocably agrees and shall be obliged for the purposes of this
Agreement not to claim and hereby irrevocably waives such immunity to the full
extent permitted by the laws of such jurisdiction and, in particular, to the
intent that in any Proceedings taken in New York the foregoing waiver of
immunity shall have effect under and be construed in accordance with the United
States Foreign Sovereign Immunities Act of 1976.
AS WITNESS the hands of the duly authorised representatives of the parties
hereto the day and year first before written.
<PAGE>
THE FIRST SCHEDULE
The Banks
Bank Commitment (EUR)
ABN AMRO Bank N.V. [2,200,000,000]
The Chase Manhattan Bank [2,200,000,000]
<PAGE>
THE SECOND SCHEDULE
Form of Transfer Certificate
To: ABN AMRO Bank N.V.
TRANSFER CERTIFICATE
relating to the agreement (as from time to time amended, varied, novated or
supplemented, the "Facility Agreement") dated [ ] March 2000 whereby a EUR
4,400,000,000 multicurrency stand-by bridge revolving credit facility was made
available to Koninklijke Ahold N.V. and Snow Acquisition, Inc., as borrowers by
a group of banks on whose behalf ABN AMRO Bank N.V. acted as Facility Agent in
connection therewith.
1. Terms defined in the Facility Agreement shall, subject to any contrary
indication, have the same meanings herein. The terms Bank and Transferee are
defined in the schedule hereto.
2. The Bank (a) confirms that the details in the schedule hereto under the
heading "Bank's Commitment" and "Advances" accurately summarises its Commitment
and/or, as the case may be, its participation in and the Term and Repayment Date
of one or more existing Advances and (b) requests the Transferee to accept and
procure the transfer to the Transferee of the portion specified in the schedule
hereto of, as the case may be, its Commitment and/or its participation in such
Advance(s) by counter-signing and delivering this Transfer Certificate to the
Facility Agent at its address for the service of notices specified in the
Facility Agreement.
3. The Transferee and the Bank hereby confirm that any consents referred to in
Clause 24.3 (Assignments and Transfers by Banks) have been obtained and hereby
request the Facility Agent to accept this Transfer Certificate as being
delivered to the Facility Agent pursuant to and for the purposes of Clause 24.5
(Transfers by Banks) of the Facility Agreement so as to (i) constitute a notice
of assignment (cessie) and notice of take-over of obligations (schuldoverneming)
and (ii) take effect in accordance with the terms thereof on the Transfer Date
or on such later date as may be determined in accordance with the terms thereof.
4. The Transferee confirms that it has received a copy of the Facility Agreement
together with such other information as it has required in connection with this
transaction and that it has not relied and will not hereafter rely on the Bank
to check or enquire on its behalf into the legality, validity, effectiveness,
adequacy, accuracy or completeness of any such information and further agrees
that it has not relied and will not rely on the Bank to assess or keep under
review on its behalf the financial condition, creditworthiness, condition,
affairs, status or nature of any of the Borrowers or the Group.
5. The Transferee hereby undertakes with the Bank and each of the other parties
to the Facility Agreement that it will perform in accordance with their terms
all those obligations which by the terms of the Facility Agreement will be
assumed by it after delivery of this Transfer Certificate to the Facility Agent
and satisfaction of the conditions (if any) subject to which this Transfer
Certificate is expressed to take effect.
6. The Bank makes no representation or warranty and assumes no responsibility
with respect to the legality, validity, effectiveness, adequacy or
enforceability of the Facility Agreement or any document relating thereto and
assumes no responsibility for the financial condition of any of the Borrowers or
for the performance and observance by such Borrower of any of its obligations
under the Facility Agreement or any document relating thereto and any and all
such conditions and warranties, whether express or implied by law or otherwise,
are hereby excluded.
7. The Bank hereby gives notice that nothing herein or in the Facility Agreement
(or any document relating thereto) shall oblige the Bank to (a) accept a
re-transfer from the Transferee of the whole or any part of its rights, benefits
and/or obligations under the Facility Agreement transferred pursuant hereto or
(b) support any losses directly or indirectly sustained or incurred by the
Transferee for any reason whatsoever including the non-performance by any of the
Borrowers or any other party to the Facility Agreement (or any document relating
thereto) of its obligations under any such document. The Transferee hereby
acknowledges the absence of any such obligation as is referred to in (a) or (b)
above.
8. The schedule to this certificate and the administration details of the
Transferee attached hereto form an integral part of this certificate.
9. This Transfer Certificate and the rights and obligations of the parties
hereunder shall be governed by and construed in accordance with Dutch law.
<PAGE>
AS WITNESS the hands of the duly authorised representatives of the parties
hereto the day and year first before written.
[Transferor Bank] [Transferee Bank]
By:
By:
Date:
Date:
We hereby acknowledge the contents of this Transfer Certificate.
KONINKLIJKE AHOLD N.V.
By:
Date:
For acceptance:
[Facility Agent] as agent for and on behalf of the Obligors
By:
Date:
Administrative Details of Transferee
Address:
Contact name:
Account for Payments:
Telex: [ ]
Telephone: [ ]
Telefax: [ ]
<PAGE>
THE SCHEDULE
DEED OF ASSIGNMENT AND DEBT TAKE-OVER DEED
(Cessieakte en akte van schuldoverneming)
I. Facility Agreement
[A. The Bank hereby assigns (cedeert hierbij) to the Transferee, which
assignment is hereby accepted by the Transferee, all rights and benefits under
and pursuant to the Facility Agreement as set out hereafter in this Schedule in
relation to the amounts transferred. This assignment includes all security
interests and ancillary rights pertaining to the assigned rights and benefits.
The Transferee hereby furthermore assumes by means of take-over debt
(schuldoverneming) (i) the obligations of the Bank vis-a-vis any other party to
the Facility Agreement insofar as such obligations pertain to such assigned
rights and benefits (and which would have been obligations of the Transferee if
it had been an original party to the Facility Agreement and (ii) such other
obligations of the Bank as set out hereafter in this Schedule.
1. Bank:
2. Transferee:
3. Transfer/Assumption Date:
4. Commitment:
Bank's Commitment Portion Transferred
5. Advance(s):
Term and Repayment Portion Transferred
Date of Advance(s)
6. Other obligations assumed:]
[OR]
[B. The Transferee hereby assumed by means of take-over debt (schuldoverneming)
the obligations of the Bank under and pursuant to the Facility Agreement
vis-a-vis any other party to the Facility Agreement as set out hereafter in this
Schedule in relation to the amounts transferred and other assumed obligations
(and which would have been obligations of the Transferee if it had been an
original party to the Facility Agreement). The Bank hereby assigns (cedeert
hierbij) to the Transferee, which assignment is hereby accepted by the
Transferee, all rights and benefits insofar as such rights and benefits pertain
to such assumed obligations (and which would have been rights and benefits of
the Transferee if it had been an original party to the Facility Agreement). This
assignment includes all security interests and ancillary rights pertaining to
the assigned rights and benefits.
1. Bank:
2. Transferee:
3. Transfer/Assumption Date:
4. Commitment:
Bank's Commitment Portion Transferred
5. Advance(s):
Term and Repayment Portion Transferred
Date of Advance(s)
6. Other obligations assumed:]
II. Deed of Assignment and Take-over of Debt
This Schedule, being an integral part of the Transfer Certificate, constitutes a
deed of assignment (cessieakte) and a deed of take-over of debt (akte van
schuldoverneming).
<PAGE>
THE THIRD SCHEDULE
Part A
Condition Precedent Documents
1. In relation to each of the Obligors:
(a) a copy, certified as a true copy by a duly authorised officer of
such Obligor (being, in the case of the Principal Company, the
Secretary to the Executive Board), of the constitutional documents
of such Borrower and (in the case of the Principal Company) an
extract from the relevant Chamber of Commerce;
(b) a copy, certified as a true copy by a duly authorised officer of
such Obligor, of a board resolution of such Obligor and (in the case
of the Principal Company) such resolutions of the board of managing
directors of the Principal Company, the supervisory board of the
Principal Company (Raad van Commissarissen) and the works' council
of the Principal Company (Ondernemingsraad) as may be required
pursuant to Dutch law by Dutch Counsel to the Banks approving the
execution, delivery and performance of this Agreement and the terms
and conditions hereof and authorising a named person or persons to
sign this Agreement and any documents to be delivered by such
Obligor pursuant hereto (or, in the case of such requirement to the
extent that it relates to the works' council of the Principal
Company, a certificate of the in-house general counsel of the
Principal Company stating that they have notified the central works'
council of the Principal Company (Ondernemingsraad) of the entering
into by the Principal Company of this Agreement and the transactions
contemplated hereby and have sought the advice of the central works'
council in accordance with article 25 of the Works' Council Act
("Wet op de ondernemingsraden")); and
(c) a certificate of a duly authorised officer of such Obligor setting
out the names and signatures of the persons authorised to sign, on
behalf of such Obligor, this Agreement and any documents to be
delivered by such Obligor pursuant hereto.
2. A copy, certified as a true copy by or on behalf of the Principal Company,
of each such law, decree, consent, licence, approval, registration or
declaration as is, in the opinion of counsel to the Banks, necessary to
render this Agreement legal, valid, binding and enforceable, to make this
Agreement admissible in evidence in each Obligor's jurisdiction of
incorporation and to enable each of the Obligors to perform its
obligations hereunder.
3. An opinion of Clifford Chance, counsel to the Facility Agent, in
substantially the form distributed to the Banks prior to the execution
hereof.
4. An opinion of the Principal Company's in-house Counsel.
5. An opinion of White & Case, counsel to Snow and Croesus.
6. A copy, certified as a true copy by a duly authorised officer of each
Borrower, of the Original Financial Statements of such Borrower and a
copy, certified a true copy by a duly authorised officer of the Principal
Company of the most recently published audited consolidated financial
statements of ICA and US Target.
7. Evidence that each of the process agents referred to in Clause 29.6
(Service of Process) has agreed to act as the agent of the Obligors for
the service of process in New York.
8. Certificate of Incorporation, certified by the secretary of state of
Delaware, and by-laws of Snow and Croesus, certified by the secretary of
Snow or Croesus (as the case may be).
9. Evidence of existence and good standing of Snow and Croesus from the State
of Delaware.
<PAGE>
THE THIRD SCHEDULE
Part B
Conditions Precedent to US Advances
1. Copies, certified as true by a duly authorised officer of the Principal
Company, of each of the US Transaction Documents duly executed or issued
by each of the parties thereto.
2. Certificate of Incorporation, certified by the secretary of state of
Delaware, and by-laws of US Target, certified by the secretary of US
Target.
3. Evidence of existence and good standing of US Target from the State of
Delaware.
<PAGE>
THE THIRD SCHEDULE
Part C
Conditions Precedent to ICA Advances
1. An opinion of [ ], Swedish counsel to the [Facility Agent/Principal
Company, in a form satisfactory to the Facility Agent.
2. Copies, certified as true by a duly authorised officer of the Principal
Company, of each of the ICA Transaction Documents duly executed or issued
by each of the parties thereto.
<PAGE>
THE FOURTH SCHEDULE
Utilisation Request
From: [Name of Borrower]
To: The Facility Agent
Dated:
Dear Sirs,
1. We refer to the agreement (as from time to time amended, varied, novated or
supplemented, the "Facility Agreement") dated [ ] March 2000 and made between
Koninklijke Ahold N.V. as borrower and guarantor, [Snow Acquisition, Inc.] and
[ ] as borrower[s], ABN AMRO Bank N.V. and Chase Manhattan plc as arrangers,
ABN AMRO Bank N.V. as Facility Agent and the financial institutions named
therein as banks. Terms defined in the Facility Agreement shall have the same
meaning in this notice.
2. We hereby give you notice that, pursuant to the Facility Agreement, we wish
the Banks to make an Advance as follows:
(a) Currency and Amount:
(b) Utilisation Date:
(c) Term;
[3. If it is not possible, pursuant to Clause 3.3 (Banks' Agreement to Optional
Currency) of the Facility Agreement, for the Advance to be made in the currency
specified, we would wish the Advance to be denominated in euro.][Only retain if
Advance is requested in the Optional Currency]
[3./4.] We confirm that, at the date hereof, the representations set out in
Clause 12 of the Facility Agreement are true provided that each reference to
"Original Financial Statements" therein shall be deemed to be a reference to
each most recent set of annual audited financial statements delivered by any
Borrower to the Facility Agent pursuant to Clause 13 and, to the extent that the
representation and warranty contained in Clause 12(xii) relates to the
Information Memorandum, this confirmation shall be given only in relation to the
facts and circumstances which existed on the date on which the Information
Memorandum shall be or was approved by the Principal Company).
[4/5.] The proceeds of this Utilisation should be credited to [insert account
details]
Yours faithfully
..............................
for and on behalf of
[NAME OF BORROWER]
<PAGE>
THE FIFTH SCHEDULE
Material Subsidiaries
Albert Heijn B.V.
BI LO, Inc.
Giant Food Stores, Inc.
Ahold Vastgoed B.V.
Tops Markets, Inc.
Schuitema N.V.
The Stop & Shop Companies, Inc.
Giant Food, Inc. (Landover, Maryland)
<PAGE>
THE SIXTH SCHEDULE
Opinion of Borrowers' Netherlands and United States Counsel
<PAGE>
THE SEVENTH SCHEDULE
Supplemental Agreement for Additional Borrowers
THIS SUPPLEMENTAL AGREEMENT is made on [ ] 200[ ]
BETWEEN:
(1) KONINKLIJKE AHOLD N.V. (the "Principal Company");
(2) [Additional Borrower(s)] (the "Additional Borrower(s)"); and
(3) [ABN AMRO] on behalf of itself as facility agent and on behalf of the
Arrangers and the Banks.
WHEREAS:
(1) By an agreement (together with the supplemental agreements referred to in
(2) below, the "Facility Agreement") dated [ ] March 2000 and made between
the Principal Company, Croesus, Inc., Snow Acquisition, Inc., the
Arrangers, the Facility Agent and the Banks the Principal Company and
Croesus were granted facilities in the maximum amount of EUR
4,400,000,000.
(2) The agreement referred to in (1) above has been supplemented by the
following agreements:
[List Supplemental Agreements]
NOW IT IS HEREBY AGREED as follows:
1. Interpretation
Save as otherwise defined herein, terms defined in the Facility Agreement shall
bear the same meaning herein.
2. Additional Borrower(s)
With effect as from the date that the Facility Agent confirms to the Principal
Company that it has received, in form and substance satisfactory to it [in
relation to each Additional Borrower], each of the conditions precedent
documents specified in Clause 3, the Facility Agreement shall henceforth be read
and construed as if the [each] Additional Borrower were party to the Facility
Agreement having all the rights and obligations of an Additional Borrower and an
Obligor. Accordingly all references in any Finance Document to (a) any
"Additional Borrower" or "Obligor" shall be treated as including a reference to
the [such] Additional Borrower and (b) the Facility Agreement shall be treated
as a reference to the Facility Agreement as supplemented by this Agreement to
the intent that this Agreement and the Facility Agreement shall be read and
construed together as one single agreement.
3. Conditions Precedent
The following are the conditions precedent referred to in Clause 2 which are
required to be delivered to the Facility Agent in relation to the [each]
Additional Borrower:
(a) a copy, certified a true and up-to-date copy by a duly authorised
officer of the [such] Additional Borrower, of the Memorandum and
Articles of Association [or other constitutional documents] of the
[such] Additional Borrower together with its most recent audited
annual financial statements;
(b) a copy, certified a true copy by a duly authorised officer of the
[such] Additional Borrower, of all corporate and other resolutions
of the [such] Additional Borrower required for the approval of the
execution, delivery and performance of this Agreement and the
performance of the obligations to be assumed pursuant hereto by the
[such] Additional Borrower under the Facility Agreement and
authorising a named person or persons to sign this Agreement and any
documents to be delivered by the [such] Additional Borrower pursuant
hereto or thereto and to operate the Facility on behalf of the
[such] Additional Borrower;
(c) a certificate of a duly authorised officer of the [such] Additional
Borrower setting out the names and signatures of the persons
authorised to sign, on behalf of the [such] Additional Borrower,
this Agreement and any documents to be delivered by the [such]
Additional Borrower pursuant hereto or to the Facility Agreement and
a certificate as to the names of any persons authorised to give
telex or telephone instructions in relation to the operation of the
Facility on behalf of the [such] Additional Borrower as contemplated
by paragraph (b) above;
(d) a copy, certified a true copy by a duly authorised officer of the
[such] Additional Borrower, of each such law, decree, consent,
licence, approval, registration or declaration as is necessary to
render this Agreement and the Facility Agreement legal, valid and
binding as against the [such] Additional Borrower in accordance with
their respective terms, to make this Agreement and the Facility
Agreement admissible in evidence against the [such] Additional
Borrower in the [such] Additional Borrower's country of
incorporation and to enable the [such] Additional Borrower to
perform its obligations hereunder and thereunder;
(e) a copy, certified a true and up-to-date copy by an Authorised
Signatory of the Principal Company, of the Memorandum and Articles
of Association of the Principal Company/a letter from an Authorised
Signatory of the Principal Company confirming that there has been no
change in the Memorandum and Articles of Association of the
Principal Company since the same were last delivered to the Facility
Agent;
(f) a copy, certified a true copy by an Authorised Signatory of the
Principal Company, of all resolutions required for the approval of
the execution, delivery and performance of this Agreement and
confirming that its board resolution referred to in paragraph 2 of
the Third Schedule of the Facility Agreement has not been revoked,
varied or amended;
(g) written evidence that [ ] has agreed to act as the agent of
the [such] Additional Borrower for the service of process in England
and that [ ] has agreed to act as the agent of the [such]
Additional Borrower for the service of process in New York;
(h) an opinion of counsel to the Facility Agent and the Banks, in a form
satisfactory to them;
(i) an opinion of counsel to the Additional Borrower, in a form
satisfactory to the Facility Agent and the Banks;
(j) written evidence of the consent of the Facility Agent and the Banks
to the [such] Additional Borrower being designated by the Principal
Company as such; and
(k) if requested by the Facility Agent, on the basis of regulations
applicable to any Bank requiring the provision of financial
information, the most recent added financial statements or written
confirmation than there is no requirement to produce such
statements.
4. Representations
The [Each] Additional Borrower hereby represents as if the representations set
out in Clause 12 of the Facility Agreement were set out in full in this
Agreement.
5. Covenant
To the extent that any Bank shall have to comply with any regulations imposed on
it in relation to the provision of financial information by the Additional
Borrower, the Additional Borrower shall supply the Facility Agent with its most
recent audited consolidated financial statement or if such statement do not
exist then the Additional Borrower shall supply the Facility Agent with written
confirmation stating that it is not required to produce such statements.
6. Counterparts
This Agreement may be signed in counterparts, all of which taken together shall
constitute a single agreement.
7. Law
This Agreement shall be governed by, and construed in accordance with, Dutch
law.
AS WITNESS the hands of the duly authorised representatives of the parties
hereto the day and year first before written.
KONINKLIJKE AHOLD N.V.
By :
Address :
[NAME OF ADDITIONAL BORROWER]
By :
Address :
[Chase/ABN AMRO]
By :
Address :
<PAGE>
The Obligors
KONINKLIJKE AHOLD N.V.
By: /s/ C.H. van der Hoeven
Address: Albert Heijnweg 1
1507 EH Zaandam
The Netherlands
Attention: Treasury
Telephone: + 31 75 659 56 35
Fax: + 31 75 659 83 59
CROESUS, INC.
By: /s/ Daniel C. Tiedge
Address: 1013 Center Road
Wilmington, DE 19805
United States of America
Attention: Ernie J. Smith
Telephone: + 1 800 927 9800/703 961 6000
Fax: + 1 703 961 6051
SNOW ACQUISITION, INC.
By: /s/ Robert G. Tobin
Address: 1013 Center Road
Wilmington, DE 19805
United States of America
Attention: Ernie J. Smith
Telephone: + 1 800 927 9800/703 961 6000
Fax: + 1 703 961 6051
The Arrangers
ABN AMRO BANK N.V.
By: /s/ Peter Nulink
/s/ Willem Nagtglas Versteeg
Address: Regional Head Office
Global Clients
Herengracht 595
Postbus 90
1000 AB Amsterdam
CHASE MANHATTAN PLC
By: /s/ Karen Simon
Address: 125 London Wall
London EC2Y 5AJ
United Kingdom
The Facility Agent
ABN AMRO BANK N.V.
By: /s/ Peter Nulink
/s/ Willem Nagtglas Versteeg
Address: Agency Services/PAC HQ 4131
P.O. Box 283
1000 EA Amsterdam
The Netherlands
Attention: Rob Slabbers
Telephone: +31 20 628 7460
Fax: +31 20 628 7716
The Banks
ABN AMRO BANK N.V.
By: /s/ Peter Nulink
/s/ Willem Nagtglas Versteeg
Credit Matters
Address: Regional Head Office
Global Clients
Herengracht 595
Postbus 90
1000 AB Amsterdam
Attention: Ben Kalkman/Geert van Reisen
Telephone: + 31 20 629 3020
Fax: + 31 20 628 7755
Operational Matters
Address: Foreign Credit Services (HQ 4132)
Gustav Mahlerlaan 10
1000 EA Amsterdam
The Netherlands
Attention: Anita Wiggers/Ruud Farenhorst
Telephone: + 31 20 628 4965
Fax: + 31 20 628 1286
<PAGE>
THE CHASE MANHATTAN BANK
By: /s/ Gerard Harte
Address: 125 London Wall
London EC2Y 5AJ
United Kingdom
Credit Matters
Attention: Sapna Kotechna
Telephone: + 44 20 7 777 1481
Fax: + 44 20 7 777 4783
Operational Matters
Attention: Edwin Grospe
Telephone: + 1 718 242 9330
Fax: + 1 718 242 7021
