Exhibit 1.1
EXECUTION COPY
AHOLD LEASE U.S.A., INC., Issuer
KONINKLIJKE AHOLD N.V., Guarantor
US $564,385,000
Ahold Lease Pass Through Certificates, Series 2001-A-1 and Series 0000-X-0
Xxxxxxxx Xxxxxxxxx
Xxx Xxxx, Xxx Xxxx
January 26, 2001
Xxxxxxx Xxxxx Xxxxxx Inc.
Xxxxxx Xxxxxxx & Co. Incorporated
c/o Xxxxxxx Xxxxx Barney Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Koninklijke Ahold N.V. (Royal Ahold), a public company with limited
liability organized under the laws of The Netherlands, and with its corporate
seat in Zaandam (municipality Zaanstad), The Netherlands ("Royal Ahold"), and
Ahold Lease U.S.A., Inc., a corporation organized under the laws of the State of
Delaware (the "Company"), propose, subject to the terms and conditions stated
herein, that First Union National Bank, acting not in its individual capacity
but solely as trustee (in its capacity as such trustee, the "Pass Through
Trustee") under each of the Pass Through Trust Agreements (the "Pass Through
Trust Agreements") to be dated as of February 12, 2001 among the Company and the
Pass Through Trusts, will issue and sell to Xxxxxxx Xxxxx Xxxxxx Inc.
("Salomon") and Xxxxxx Xxxxxxx & Co. Incorporated ("Xxxxxx Xxxxxxx")
(collectively, the "Initial Purchasers"), US $313,665,000 fully accreted
aggregate principal amount of 7.82% Ahold Lease Pass Through Certificates,
Series 2001-A-1 (the "Series A-1 Securities"), and US $250,720,000 fully
accreted aggregate principal amount of 8.62% Ahold Lease Pass Through
Certificates, Series 2001-A-2 (the "Series A-2 Securities" and, together with
the Series A-1 Securities, the "Securities"). The Securities have the benefit of
a Registration Rights Agreement (the "Registration Rights Agreement"), dated as
of January 26, 2001, among Royal Ahold, the Company and the Initial Purchasers,
pursuant to which Royal Ahold and the Company have agreed (1) to file with the
Securities and Exchange Commission (the "Commission") a registration statement
with respect to an exchange offer for the
Securities and (2) under certain circumstances, to register the Securities and,
if applicable, the Royal Ahold Guarantees (as defined below) under the Act
subject to the terms and conditions therein specified. The term Initial
Purchasers shall mean either the singular or plural as the context requires. The
use of the neuter in this Agreement shall include the feminine and masculine
wherever appropriate.
The property of the Pass Through Trusts will initially consist of
notes (the "Notes") which will be issued on a nonrecourse basis under 46
separate indentures (as amended or supplemented, the "Indentures"), each to be
dated as of February 12, 2001, between a related lessor under a leveraged lease
transaction (each, a "Lessor") and First Union National Bank, as indenture
trustee (in such capacity, the "Indenture Trustee").
The proceeds from the sale of the Notes will be used to finance a
portion of the purchase price paid by the Lessors for the purchase of interests
in the Leased Property. Pursuant to each of the Guarantees each dated as of
January 26, 2001 (collectively, the "Royal Ahold Guarantees") made by Royal
Ahold with respect to each related Lease, Royal Ahold will unconditionally
guarantee the payment when due of each and every obligation of the Company under
the related Lease.
Unless otherwise defined in this Agreement, capitalized terms have
the meanings specified or referred to in the Pass Through Trust Agreements and
Appendix A of two separate Participation Agreements, each dated as of January
26, 2001 (the "Participation Agreements"), whether expressly referred to therein
or by reference to another document. Certain terms used herein are defined in
Section 21 hereof.
The sale of the Securities to the Initial Purchasers will be made
without registration of the Securities under the Act in reliance upon exemptions
from the registration requirements of the Act.
In connection with the sale of the Securities, Royal Ahold and the
Company have prepared a preliminary offering memorandum, dated November 10, 2000
(including any and all exhibits thereto and any information incorporated by
reference therein, the "Preliminary Memorandum"), and a final offering
memorandum, dated January 26, 2001 (as amended or supplemented at the Execution
Time, including any and all exhibits thereto and any information incorporated by
reference therein, the "Final Memorandum"). For purposes of this Agreement, the
Preliminary Memorandum and the Final Memorandum shall include any documents or
portions thereof incorporated by reference therein as set forth under "Available
Information" included therein. Each of the Preliminary Memorandum and the Final
Memorandum sets forth certain information concerning Royal Ahold, the Company
and the Securities. Each of Royal Ahold and the Company hereby confirms that it
has authorized the use of the Preliminary Memorandum and the Final Memorandum
and any amendment or supplement thereto in connection with the offer and sale of
the Securities by the Initial Purchasers. Unless stated to the contrary, any
references herein to the terms "amend," "amendment" or "supplement" with respect
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to the Final Memorandum shall be deemed to refer to and include any information
filed under the Exchange Act, subsequent to the Execution Time which is
incorporated by reference therein.
1. Representations and Warranties of Royal Ahold and the Company.
Royal Ahold and the Company, jointly and severally, represent and warrant to,
and agree with, each Initial Purchaser that:
(a) The Preliminary Memorandum, at the date thereof, did not contain
any untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading. The Final Memorandum at the
Execution Time did not, and as amended or supplemented as of the Closing
Date will not, contain any untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided, however, that neither Royal Ahold nor the Company makes any
representation or warranty as to the information contained in or omitted
from the Preliminary Memorandum or the Final Memorandum, as amended or
supplemented, if applicable, in reliance upon and in conformity with
information relating to such Initial Purchasers furnished in writing to
Royal Ahold or the Company by or on behalf of the Initial Purchasers
specifically for inclusion therein.
(b) The documents incorporated by reference into the Final
Memorandum, when they were filed with the Commission, conformed in all
material respects to the requirements of the Exchange Act and the rules and
regulations thereunder, and none of such documents when so filed included
any untrue statement of a material fact or omitted to state any material
fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, and each document, if any, hereafter filed and incorporated by
reference in the Final Memorandum and any further amendment or supplement
thereto (other than documents incorporated therein relating solely to an
offering of securities other than the Securities), when such documents are
filed with the Commission will conform in all material respects to the
requirements of the Exchange Act and the rules and regulations of the
Commission thereunder and will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, except
that the foregoing representations do not apply to statements in or
omissions from any of such documents based upon written information
furnished to Royal Ahold or the Company by any Initial Purchaser
specifically for use therein.
(c) Neither Royal Ahold nor the Company nor any of their Affiliates,
nor any person acting on behalf of Royal Ahold or the Company or any of
their Affiliates has, directly or indirectly, made offers or sales of any
security, or solicited offers to buy any security, under circumstances that
would require the registration of the Securities under
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the Act, provided, however, no representation is made with respect to the
Initial Purchasers or any of their Affiliates.
(d) Neither Royal Ahold nor the Company nor any of their Affiliates,
nor any person acting on behalf of Royal Ahold or the Company or any of
their Affiliates (provided, however, no representation is made with respect
to the Initial Purchasers or any of their Affiliates) (i) has, within the
six-month period prior to the date hereof, offered or sold in the United
States to any U.S. person (as such terms are defined in Regulation S under
the Securities Act ("Regulation S")) the Securities or any security of the
same class or series as the Securities required to be integrated with the
issuance of the Securities or (ii) has offered or will offer or sell the
Securities in the United States by means of any form of general
solicitation or general advertising (within the meaning of Regulation D).
(e) The Securities satisfy the eligibility requirements of Rule
144A(d)(3) under the Act.
(f) Neither Royal Ahold nor the Company, nor any of their
Affiliates, nor any person acting on behalf of Royal Ahold or the Company
has engaged in any directed selling efforts with respect to the Securities,
and each of them has complied with the offering restrictions requirement of
Regulation S. Terms used in this paragraph have the meanings given to them
by Regulation S.
(g) Neither Royal Ahold nor the Company is, nor, after giving effect
to the offering and sale of the Securities, will be an "investment company"
or an entity "controlled" by an "investment company" as such terms are
defined in the Investment Company Act of 1940, as amended (the "Investment
Company Act").
(h) Royal Ahold is subject to the reporting requirements of Section
13 or Section 15(d) of the Exchange Act. The Company is not currently
subject to the reporting requirements of Section 13 or Section 15(d) of the
Exchange Act and will not be subject to such reporting requirements prior
to the registration of the Securities pursuant to the Registration Rights
Agreement.
(i) Neither Royal Ahold nor the Company nor any of their Affiliates
has paid or agreed to pay to any person any compensation for soliciting
another to purchase any Securities (except as contemplated by this
Agreement).
(j) Neither Royal Ahold nor the Company has taken, directly or
indirectly, any action which was designed to or which has constituted or
which might reasonably be expected to cause or to result in stabilization
or manipulation of the price of any security of Royal Ahold or the Company
to facilitate the sale or resale of the Securities; provided, however, that
this provision shall not apply to stabilization or other activities
conducted by the Initial Purchasers or on their behalf.
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(k) Each of Royal Ahold and the Company has been duly incorporated
and is validly existing under the laws of its jurisdiction of
incorporation, with corporate power and corporate authority to own or lease
its properties and conduct its business as described in the Final
Memorandum, and has been duly qualified as a foreign corporation for the
transaction of business and is in good standing (where applicable) under
the laws of each other jurisdiction in which it owns or leases properties
or conducts any business so as to require such qualification, or is subject
to no material liability or disability by reason of the failure to be so
qualified in any such jurisdiction; and each Significant Subsidiary has
been duly incorporated and is validly existing as a corporation in good
standing (where applicable) under the laws of its jurisdiction of
incorporation.
(l) Each of Royal Ahold and the Company has an authorized
capitalization as set forth in the Final Memorandum, and all of the issued
shares of capital stock of Royal Ahold have been duly and validly
authorized and issued, and are fully paid and non-assessable; all of the
issued shares of capital stock of each Significant Subsidiary and of the
Company have been duly and validly authorized and issued, are fully paid
and non-assessable and are owned directly or indirectly by Royal Ahold,
free and clear of all liens, encumbrances, equities or claims.
(m) The statements in the Final Memorandum under the headings
"Certain ERISA Considerations", "Description of the Pass Through
Certificates" and "Exchange Offer; Registration Rights" fairly summarize
the matters therein described.
(n) The compliance by Royal Ahold and the Company, as the case may
be, with all of the provisions of this Agreement, the Pass Through Trust
Agreements, the Royal Ahold Guarantees, the Registration Rights Agreement
and each of the other Operative Agreements to which they are a party and
the consummation of the transactions herein and therein contemplated does
not, and will not, as the case may be, conflict with or result in a breach
or violation of any of the terms or provisions of, or constitute a default
under, any material indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which Royal Ahold, the Company or any of
the Significant Subsidiaries is a party or by which Royal Ahold, the
Company or any of the Significant Subsidiaries is bound or to which any of
the property or assets of Royal Ahold, the Company or any of the
Significant Subsidiaries is subject, nor does, nor will, as the case may
be, such action result in any violation of the provisions of the
constituent documents of Royal Ahold, the Company or any of the Significant
Subsidiaries or any statute or any order, rule or regulation of any
Governmental Agency having jurisdiction over Royal Ahold, the Company or
any of the Significant Subsidiaries or any of their properties; and no
Governmental Authorizations are required for the issue and sale of the
Securities or the consummation by Royal Ahold and the Company of the
transactions contemplated by this Agreement, the Pass Through Trust
Agreements, the Royal Ahold Guarantees, the Registration Rights Agreement
or any of the other Operative Agreements to which Royal Ahold or the
Company is, or will be, a party, except (A) such Governmental
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Authorizations as have been duly obtained and are in full force and effect
and copies of which have been furnished to you and (B) such Governmental
Authorizations as may be required under state securities or Blue Sky laws
or any laws of jurisdictions outside The Netherlands and the United States
in connection with the purchase and distribution of the Securities by or
for the account of the Initial Purchasers.
(o) This Agreement has been duly authorized, executed and delivered
by each of Royal Ahold and the Company.
(p) The Pass Through Trust Agreements have been duly authorized,
executed and delivered by the Company and, assuming due authorization,
execution and delivery by the Pass Through Trustee, constitute valid and
legally binding agreements of the Company, enforceable in accordance with
their terms, subject, as to enforceability, to bankruptcy, insolvency,
reorganization and similar laws of general applicability relating to or
affecting creditors' rights and to general principles of equity, regardless
of whether the issue of enforceability is considered in a proceeding in
equity or at law.
(q) The Registration Rights Agreement has been duly authorized,
executed and delivered by each of Royal Ahold and the Company and, assuming
due authorization, execution and delivery by the Initial Purchasers
constitutes a valid and legally binding agreement of each of Royal Ahold
and the Company, enforceable in accordance with its terms, subject, as to
enforceability, to bankruptcy, insolvency, reorganization and similar laws
of general applicability relating to or affecting creditors' rights and to
general principles of equity, regardless of whether the issue of
enforceability is considered in a proceeding in equity or at law.
(r) Each of the other Operative Agreements to which Royal Ahold or
the Company is or will be a party has been duly authorized by Royal Ahold
or the Company, as applicable, and, when executed by the authorized
officers or attorneys-in-fact of Royal Ahold or the Company (assuming the
due authorization, execution and delivery thereof by the other parties
thereto) and delivered by Royal Ahold or the Company, as the case may be,
will constitute a valid and legally binding agreement of Royal Ahold or the
Company, as applicable, enforceable in accordance with its terms, subject,
as to enforceability, to bankruptcy, insolvency, reorganization and similar
laws of general applicability relating to or affecting creditors' rights
and to general principles of equity, regardless of whether the issue of
enforceability is considered in a proceeding in equity or at law.
(s) Assuming the due authorization of the Securities by the Pass
Through Trustee, the Securities, when issued, authenticated and delivered
by the Pass Through Trustee in accordance with the provisions of the Pass
Through Trust Agreements against payment therefor by the Initial Purchasers
as provided in this Agreement, will constitute valid and legally binding
instruments of the Pass Through Trustee entitled to the benefits of the
Pass Through Trust Agreements, subject, as to enforceability, to
bankruptcy,
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insolvency, reorganization and similar laws of general applicability
relating to or affecting creditors' rights and to general principles of
equity. The Securities conform in all material respects to the description
thereof contained the Final Memorandum.
(t) Neither Royal Ahold, nor the Company nor any of the Significant
Subsidiaries has sustained since the date of the latest audited financial
statements included in the Final Memorandum or incorporated by reference
therein, any loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from any
labor dispute or court or governmental action, order or decree, in either
case material to Royal Ahold and its Subsidiaries, taken as a whole, and
otherwise than as set forth or contemplated in the Final Memorandum; and,
since the respective dates as of which information is given in the Final
Memorandum, there has not been any change in the capital stock or
consolidated long-term debt of Royal Ahold or the Company or any material
adverse change, or any development involving a prospective material adverse
change, in or affecting the general affairs, financial position,
shareholders' equity or results of operations of Royal Ahold or any of its
Subsidiaries taken as a whole or the members of the Supervisory Board or
the Corporate Executive Board of Royal Ahold otherwise than as set forth or
contemplated in the Final Memorandum.
(u) Other than as set forth or incorporated by reference in the
Final Memorandum, there are no legal or governmental proceedings pending to
which Royal Ahold, the Company or any of the Significant Subsidiaries is
subject which are reasonably likely, individually or in the aggregate, to
have a material adverse effect on the current or future consolidated
financial position, shareholders' equity or results of operations of Royal
Ahold and its Subsidiaries, taken as a whole; and, to the best of Royal
Ahold's and the Company's knowledge, no such proceedings are threatened or
contemplated by any Governmental Agency or threatened by others.
(v) Each of Royal Ahold and its Subsidiaries and the Company owns or
leases all such properties as are necessary to perform their respective
obligations under the Operative Agreements.
(w) Deloitte & Touche, Accountants, who have certified certain
financial statements of Royal Ahold and its consolidated Subsidiaries are
independent public accountants as required by the Act and the applicable
published rules and regulations thereunder.
(x) There are no stamp or other issuance of transfer taxes or duties
or other similar fees or charges under the laws of the United States or The
Netherlands required to be paid in connection with the execution and
delivery by Royal Ahold of this Agreement or the Royal Ahold Guarantees.
(y) The statements set forth in the Final Memorandum under the
caption "Certain Federal Income Tax Consequences," insofar as they
constitute matters of United
8
States federal income tax law or legal conclusions with respect thereto,
are accurate in all material respects.
(z) Each of Royal Ahold, its Significant Subsidiaries and the
Company has all licenses, franchises, permits, authorizations, approvals
and orders and other concessions of and from all Governmental Agencies that
are necessary to own or lease their properties and conduct their businesses
as described in the Final Memorandum, except to the extent that the failure
to obtain such licenses, franchises, permits, authorizations, approvals and
orders, will not, individually or in the aggregate, have a material adverse
effect on the general affairs, consolidated financial position or results
of operation of Royal Ahold and its Subsidiaries, taken as a whole.
Any certificate signed by any officer of Royal Ahold or the Company,
as the case may be, and delivered to the Initial Purchasers or counsel for the
Initial Purchasers in connection with the offering of the Securities shall be
deemed a representation and warranty by Royal Ahold and the Company as to
matters covered thereby, to each Initial Purchaser.
2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth and upon
satisfaction of the conditions precedent in the Pass Through Trust Agreements,
the Company agrees to deliver a request pursuant to Section 2.01 of each of the
Pass Through Trust Agreements and to cause the Pass Through Trustee to sell to
each Initial Purchaser, and each Initial Purchaser agrees, severally and not
jointly, to purchase from the Pass Through Trustee the principal amount of
Securities set forth opposite such Initial Purchaser's name in Schedule I
hereto, at a purchase price of 97.061% of the principal amount of the Series A-1
Securities and at a purchase price of 96.771% of the principal amount of the
Series A-2 Securities.
3. Delivery and Payment. Delivery of and payment for the Securities
shall be made at 10:00 A.M., New York City time, on February 12, 2001, or at
such time on such later date as the Initial Purchasers shall designate, which
date and time may be postponed by agreement between the Initial Purchasers,
Royal Ahold and the Company or as provided in Section 9 hereof (such date and
time of delivery and payment for the Securities being herein called the "Closing
Date"). Delivery of the Securities shall be made to the Initial Purchasers for
the respective accounts of the several Initial Purchasers against payment by the
several Initial Purchasers of the purchase price thereof to or upon the order of
the Pass Through Trustee by wire transfer payable in same-day funds to the
account specified by the Pass Through Trustee. Delivery of the Securities shall
be made through the facilities of The Depository Trust Company, except sales to
institutions that are "accredited investors" or unless the Initial Purchasers
shall otherwise instruct.
As compensation to the Initial Purchasers, the Company and Royal
Ahold shall pay or cause to be paid to Salomon for the accounts of the Initial
Purchasers the amount of US $4,938,369, which amount shall be allocated among
the Initial Purchasers in the manner determined by the Initial Purchasers. Such
payment shall be made simultaneously with the
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payment by the Initial Purchasers of the purchase price of the Securities and
shall be made by wire transfer of immediately available funds.
4. Offering by Initial Purchasers. Each Initial Purchaser, severally
and not jointly, represents and warrants to and agrees with Royal Ahold and the
Company that:
(a) It is an "accredited investor" within the meaning of
Regulation D.
(b) It has not offered or sold, and will not offer or sell, any
Securities except (i) to those it reasonably believes to be qualified
institutional buyers (as defined in Rule 144A under the Act) and that, in
connection with each such sale, it has taken or will take reasonable steps
to ensure that the purchaser of such Securities is aware that such sale is
being made in reliance on Rule 144A; (ii) to other institutional
"accredited investors" (as defined in Rule 501(a)(1), (2), (3) or (7) of
Regulation D) who provide to it and to the Company and Royal Ahold a letter
in the form of Exhibit A hereto; or (iii) in accordance with the
restrictions set forth in Exhibit B hereto.
(c) Neither it nor any person acting on its behalf has made or will
make offers or sales of the Securities in the United States by means of any
form of general solicitation or general advertising (within the meaning of
Regulation D) in the United States.
5. Agreements. Each of Royal Ahold and the Company agrees with each
Initial Purchaser that:
(a) Royal Ahold and the Company will furnish to each Initial
Purchaser and to counsel for the Initial Purchasers, without charge, during
the period referred to in paragraph (c) below, as many copies of the Final
Memorandum and any amendments and supplements thereto as it may reasonably
request.
(b) Royal Ahold and the Company will not amend or supplement the
Final Memorandum, other than by filing documents under the Exchange Act
that are incorporated by reference therein, if such proposed amendment or
supplement is disapproved by the Initial Purchasers promptly after
reasonable notice thereof; provided, however, that, prior to the completion
of the distribution of the Securities by the Initial Purchasers (as
determined by the Initial Purchasers and promptly notified to Royal Ahold
and the Company), Royal Ahold will not file any document under the Exchange
Act that is incorporated by reference in the Final Memorandum unless Royal
Ahold and the Company have furnished the Initial Purchasers with a copy of
such document for their review.
(c) If at any time prior to the completion of the distribution of
the Securities by the Initial Purchasers (as determined by the Initial
Purchasers and promptly notified to Royal Ahold and the Company), any event
occurs as a result of which the Final Memorandum, as then amended or
supplemented, would include any untrue statement of a material fact or omit
to state any material fact necessary to make the statements therein, in
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the light of the circumstances under which they were made, not misleading,
or if it should be necessary to amend or supplement the Final Memorandum to
comply with applicable law, Royal Ahold and the Company promptly (i) will
notify the Initial Purchasers of any such event; (ii) subject to the
requirements of paragraph (b) of this Section 5, will prepare, at their own
expense, an amendment or supplement that will correct such statement or
omission or effect such compliance; and (iii) will supply any supplemented
or amended Final Memorandum to the several Initial Purchasers and counsel
for the Initial Purchasers without charge in such quantities as you may
reasonably request.
(d) Royal Ahold and the Company will arrange, if necessary, for the
qualification of the Securities for sale by the Initial Purchasers under
the laws of such jurisdictions as the Initial Purchasers may designate and
will maintain such qualifications in effect so long as required for the
sale of the Securities; provided that in no event shall Royal Ahold or the
Company be obligated to qualify to do business in any jurisdiction where it
is not now so qualified or to file a general or unlimited consent to
process in any jurisdiction or to take any action that would subject it to
service of process in suits, other than those arising out of the offering
or sale of the Securities, in any jurisdiction where it is not now so
subject. Royal Ahold and the Company will promptly advise the Initial
Purchasers of the receipt by Royal Ahold or the Company of any notification
with respect to the suspension of the qualification of the Securities for
sale in any jurisdiction or the initiation or threatening of any proceeding
for such purpose.
(e) Royal Ahold and the Company will not, and will not permit any of
their Subsidiaries to, resell any Securities (other than Securities issued
pursuant to a registration statement in accordance with the Registration
Rights Agreement) that have been acquired by any of them.
(f) Neither Royal Ahold nor the Company, nor any of their
Affiliates, nor any person acting on its or their behalf will, directly or
indirectly, make offers or sales of any security, or solicit offers to buy
any security, under circumstances that would require the registration of
the Securities under the Act; provided, however, that this provision shall
not apply to such activities conducted by the Initial Purchasers or on
their behalf.
(g) Neither Royal Ahold nor the Company, nor any of their
Affiliates, nor any person acting on its or their behalf will engage in any
form of general solicitation or general advertising (within the meaning of
Regulation D) in connection with any offer or sale of the Securities in the
United States that would require the registration of the Securities under
the Act; provided, however, that this provision shall not apply to such
activities conducted by the Initial Purchasers or on their behalf.
(h) So long as any of the Securities are "restricted securities"
within the meaning of Rule 144(a)(3) under the Act, Royal Ahold and the
Company will, during any period in which they are not subject to Section 13
or 15(d) of the Exchange Act or they are not
11
exempt from such reporting requirements pursuant to and in compliance with
Rule 12g3-2(b) under the Exchange Act, provide to each holder of such
restricted securities and to each prospective purchaser (as designated by
such holder) of such restricted securities, upon the request of such holder
or prospective purchaser, any information required to be provided by Rule
144A(d)(4) under the Act. This covenant is intended to be for the benefit
of the holders, and the prospective purchasers designated by such holders,
from time to time of such restricted securities.
(i) Neither Royal Ahold, the Company, nor any of their Affiliates,
nor any person acting on its or their behalf will engage in any directed
selling efforts with respect to the Securities, and each of them will
comply with the offering restrictions requirement of Regulation S. Terms
used in this paragraph have the meanings given to them by Regulation S;
provided, however, that this provision shall not apply to such activities
conducted by the Initial Purchasers or on their behalf.
(j) Royal Ahold and the Company will cooperate with the Initial
Purchasers and use their reasonable efforts to permit the Securities to be
eligible for clearance and settlement through The Depository Trust Company.
(k) Royal Ahold and the Company will not take, directly or
indirectly, any action designed to or which constitutes or which might
reasonably be expected to cause or result in stabilization or manipulation
of the price of any security of Royal Ahold or the Company to facilitate
the sale or resale of the Securities; provided, however, that this
provision shall not apply to stabilization or other activities conducted by
the Initial Purchasers or on their behalf.
(l) Royal Ahold and the Company agree to pay or cause to be paid the
costs and expenses relating to the following matters: (i) the preparation
of this Agreement, the Pass Through Trust Agreements, the Royal Ahold
Guarantees, the Registration Rights Agreement and the other Operative
Agreements, the issuance of the Securities and, as applicable, the New
Securities (as defined in the Registration Rights Agreement) and the fees
of the Pass Through Trustee, the Indenture Trustee and their respective
counsel; (ii) the printing (or reproduction) and delivery (including
postage, air freight charges and charges for counting and packaging) of
such copies of the Preliminary Memorandum and Final Memorandum, and all
amendments or supplements to either of them, as may, in each case, be
reasonably requested for use in connection with the offering and sale of
the Securities and, as applicable, the New Securities (as defined in the
Registration Rights Agreement); (iii) the preparation, printing,
authentication, issuance and delivery of certificates for the Securities
and, as applicable, the New Securities (as defined in the Registration
Rights Agreement), including any stamp or transfer taxes in connection with
the original issuance and sale of the Securities and, as applicable, the
New Securities (as defined in the Registration Rights Agreement); (iv) the
printing (or reproduction) and delivery of this Agreement, the Pass Through
Trust Agreements, the Royal Ahold
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Guarantees, the Registration Rights Agreement and all other Operative
Agreements, any blue sky memorandum and all other agreements or documents
printed (or reproduced) and delivered in connection with the offering of
the Securities; (v) any registration or qualification of the Securities for
offer and sale under the securities or blue sky laws of the several states
(including filing fees and the reasonable fees and expenses of counsel for
the Initial Purchasers relating to such registration and qualification);
(vi) the transportation and other expenses incurred by or on behalf of
representatives of Royal Ahold and the Company in connection with
presentations to prospective purchasers of the Securities; (vii) the fees
and expenses of the accountants of Royal Ahold and the Company and the fees
and expenses of counsel (including local and special counsel) for Royal
Ahold and the Company and (viii) all other costs and expenses incident to
the performance by Royal Ahold and the Company of their obligations
hereunder; provided, in the case of clauses (i) to (viii) above, that the
legal fees and expenses of counsel to the Initial Purchasers that the
Company and Royal Ahold shall be required to pay shall not exceed US
$300,000. Royal Ahold and the Company will also pay or reimburse the
Initial Purchasers (to the extent incurred by them) for all reasonable
travel expenses of the Initial Purchasers and subject to the limitations
provided in the proviso in the preceding sentence any other reasonable
expenses of the Initial Purchasers incurred in connection with the
transactions contemplated by this Agreement and the other Operative
Agreements.
(m) During the period of two years after the Closing Date, neither
Royal Ahold nor the Company will become an open-end investment company,
unit investment trust or face-amount certificate company that is or is
required to be registered under Section 8 of the Investment Company Act and
neither Royal Ahold nor the Company is or will become a closed-end
investment company required to be registered, but not registered under the
Investment Company Act.
(n) Royal Ahold and the Company will use the net proceeds received
from the transactions contemplated by this Agreement in the manner
specified in the Final Memorandum under the caption "Use of Proceeds".
6. Conditions to the Obligations of the Initial Purchasers. The
obligations of the Initial Purchasers to purchase the Securities shall be
subject to the accuracy of the representations and warranties on the part of
Royal Ahold and the Company contained herein at the Execution Time and the
Closing Date, to the accuracy of the statements of Royal Ahold and the Company
made in any certificates pursuant to the provisions hereof, to the performance
by Royal Ahold and the Company of their obligations hereunder and to the
following additional conditions:
(a) Royal Ahold and the Company shall have requested and caused
White & Case LLP, counsel for Royal Ahold and the Company, to furnish to
the Initial Purchasers its opinion, dated the Closing Date and addressed to
the Initial Purchasers, in form and substance reasonably satisfactory to
the Initial Purchasers and counsel to the Initial Purchasers.
13
(b) The Initial Purchasers shall have received an opinion, dated the
Closing Date, from each of the General Counsel or the Senior Legal Counsel
of Royal Ahold and De Brauw, Blackstone, Westbroek, N.V., special counsel
to Royal Ahold, in form and substance reasonably satisfactory to the
Initial Purchasers and counsel to the Initial Purchasers.
(c) The Initial Purchasers shall have received opinions with respect
to local real estate issues from each of Xxxxxxx Xxxxx Xxxxxxx & Xxxxxxxxx,
LLP, Xxxxxx, Xxxxxxx & Xxxxxx, P.C. and Murtha, Cullina, Xxxxxxx & Xxxxxx
LLP, dated the Closing Date, each in form and substance reasonably
satisfactory to the Initial Purchasers and counsel to the Initial
Purchasers.
(d) The Initial Purchasers shall have received an opinion, dated the
Closing Date, from Winston & Xxxxxx, counsel to the Owner Participants, in
form and substance reasonably satisfactory to the Initial Purchasers and
counsel to the Initial Purchasers.
(e) The Initial Purchasers shall have received an opinion, dated the
Closing Date, from Winston & Xxxxxx, counsel to the Lessors, in form and
substance reasonably satisfactory to the Initial Purchasers and counsel to
the Initial Purchasers.
(f) The Initial Purchasers shall have received an opinion, dated the
Closing Date, from counsel to the Sellers reasonably acceptable to the
Initial Purchasers and counsel to the Initial Purchasers, which is in form
and substance reasonably satisfactory to the Initial Purchasers and counsel
to the Initial Purchasers.
(g) The Initial Purchasers shall have received an opinion, dated the
Closing Date, from Xxxxx & Xxx Xxxxx, PLLC, counsel to the Pass Through
Trustee and the Indenture Trustee, in form and substance reasonably
satisfactory to the Initial Purchasers and counsel to the Initial
Purchasers.
(h) The Initial Purchasers shall have received an opinion, dated the
Closing Date, from Xxxxxx Xxxx & Xxxxxx LLP, counsel to the Remainderman,
in form and substance reasonably satisfactory to the Initial Purchasers and
counsel to the Initial Purchasers.
(i) The Initial Purchasers shall have received from Milbank, Tweed,
Xxxxxx & XxXxxx LLP, counsel for the Initial Purchasers, such opinion or
opinions, dated the Closing Date and addressed to the Initial Purchasers,
with respect to the issuance and sale of the Securities, the Pass Through
Trust Agreements, the Registration Rights Agreement, the Final Memorandum
(as amended or supplemented at the Closing Date) and other related matters
as the Initial Purchasers may reasonably require, and Royal Ahold and the
Company shall have furnished to such counsel such documents as they request
for the purpose of enabling them to pass upon such matters.
14
(j) The Company shall have furnished to the Initial Purchasers a
certificate of the Company, signed by two executive officers of the
Company, dated the Closing Date, to the effect that to their knowledge,
after reasonable investigation, the representations and warranties of the
Company in this Agreement are true and correct in all material respects on
and as of the Closing Date with the same effect as if made on the Closing
Date, and the Company has complied with all the agreements and satisfied
all the conditions on its part to be performed or satisfied hereunder at or
prior to the Closing Date.
(k) Royal Ahold shall have furnished to the Initial Purchasers a
certificate of Royal Ahold, signed by two executive officers of Royal
Ahold, dated the Closing Date, to the effect that, to their knowledge after
reasonable investigation:
(i) the representations and warranties of Royal Ahold in this
Agreement are true and correct in all material respects on and as of
the Closing Date with the same effect as if made on the Closing
Date, and Royal Ahold has complied with all the agreements and
satisfied all the conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date; and
(ii) since the date of the most recent financial statements
included or incorporated by reference in the Final Memorandum
(exclusive of any amendment or supplement thereto), there has been
no material adverse change in the financial position or results of
operations of Royal Ahold and its Subsidiaries, taken as a whole,
except as set forth in or contemplated by the Final Memorandum
(exclusive of any amendment or supplement thereto).
(l) At the Execution Time and at the Closing Date, Royal Ahold and
the Company shall have requested and caused Deloitte & Touche, Accountants
to furnish to the Initial Purchasers letters, dated respectively as of the
Execution Time and as of the Closing Date, in form and substance
satisfactory to the Initial Purchasers, concerning the financial
information with respect to Royal Ahold and the Company set forth or
incorporated by reference in the Final Memorandum and confirming that they
are independent accountants within the meaning of the Act and the Exchange
Act and the applicable rules and regulations thereunder. References to the
Final Memorandum in this Section 6(l) include any amendment or supplement
thereto at the date of the letter.
(m) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Final Memorandum, there shall not have
been (i) any change in the capital stock or consolidated long-term debt of
Royal Ahold or any change, or any development involving a prospective
change, in or affecting the general affairs, financial position,
shareholders' equity or results of operations of Royal Ahold and its
subsidiaries taken as a whole, except as set forth in or contemplated in
the Final Memorandum (exclusive of any amendment or supplement thereto),
the effect of which, in any case
15
referred to in clause (i) or (ii) above, is, in the judgment of the Initial
Purchasers, after consultation with Royal Ahold if practical, so material
and adverse as to make it impractical or inadvisable to market the
Securities as contemplated by the Final Memorandum (exclusive of any
amendment or supplement thereto).
(n) The Securities shall have been accepted for clearance and
settlement through The Depository Trust Company, Euroclear and Clearstream,
as applicable.
(o) Subsequent to the Execution Time, there shall not have been any
decrease in the rating of any of Royal Ahold's debt securities by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act) or any public announcement that any
such organization has under surveillance or review its rating of any debt
securities of Royal Ahold, with possible negative implications.
(p) Prior to the Closing Date, Royal Ahold and the Company shall
have furnished to the Initial Purchasers such further information,
certificates and documents as the Initial Purchasers may reasonably
request.
(q) Royal Ahold, the Company and you shall have entered into the
Registration Rights Agreement and the Initial Purchasers shall have
received counterparts, conformed as executed, thereof and of each Operative
Agreement or other document entered into by Royal Ahold and the Company in
connection with the transactions contemplated by this Agreement.
(r) There shall exist at and as of the Closing Date no conditions
that would constitute an Event of Default under the Pass Through Trust
Agreements, a Lease Event of Default under any Lease or an Indenture Event
of Default under any Indenture (or an event that with notice or the lapse
of time, or both, would constitute an Event of Default, Lease Event of
Default or Indenture Event of Default).
(s) (i) Xxxxx'x Investors Services, Inc. ("Moody's") shall have
delivered to Royal Ahold and the Company and the Initial Purchasers a final
rating letter, setting forth a rating of Baa1 with respect to the
Securities and (ii) Standard & Poor's Ratings Services ("S&P") shall have
delivered to Royal Ahold and the Company and the Initial Purchasers a final
rating letter, setting forth a rating of BBB+ with respect to the
Securities.
(t) Each of Royal Ahold and the Company shall have furnished to the
Initial Purchasers (i) a copy of the resolutions of its Corporate Executive
Board (in the case of Royal Ahold) or Board of Directors (in the case of
the Company) or committees thereof, certified by an authorized officer of
such entity as of the Closing Date, duly authorizing the execution,
delivery and performance of this Agreement and each other Operative
Agreement to which it is or will be a party and any other documents
executed by or on behalf of it in connection with the transactions
contemplated thereby; (ii) certified copies of its organizational
documents; and (iii), if applicable, certified copies of
powers-of-
16
attorney, if any pursuant to which officers of such entity shall execute
this Agreement and each other Operative Agreement to which it is or will be
a party and any other documents executed by or on behalf of it in
connection with the transactions contemplated thereby.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Initial Purchasers and counsel for the Initial Purchasers,
this Agreement and all obligations of the Initial Purchasers hereunder may be
canceled at, or at any time prior to, the Closing Date by the Initial
Purchasers. Notice of such cancellation shall be given to Royal Ahold and the
Company in writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 will be
delivered at the New York office of White & Case LLP, on the Closing Date.
7. Reimbursement of Expenses. If the sale of the Securities provided
for herein is not consummated because any condition to the obligations of the
Initial Purchasers set forth in Section 6 hereof is not satisfied, because of
any termination pursuant to Section 10 hereof or because of any refusal,
inability or failure on the part of Royal Ahold or the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the Initial Purchasers, Royal Ahold or the Company will
reimburse the Initial Purchasers severally through Salomon on demand for all
out-of-pocket expenses (including reasonable expenses of counsel and up to US
$300,000 of reasonable fees and expenses of counsel) that shall have been
incurred by them in connection with the proposed purchase and sale of the
Securities.
8. Indemnification and Contribution. (a) Each of the Company and
Royal Ahold will, jointly and severally, indemnify and hold harmless each
Initial Purchaser, the directors, officers, employees and agents of each such
Initial Purchaser and each person who controls any such Initial Purchaser within
the meaning of either the Act or the Exchange Act, against any losses, claims,
damages or liabilities, joint or several, to which they or any of them may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Memorandum, the Final Memorandum, or any amendment
or supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse each
indemnified party under the indemnity agreement in this subsection (a) for any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim, as such
expenses are incurred; provided, however, that neither the Company nor Royal
Ahold will be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement in or omission or alleged omission from any of such
documents in reliance upon and in conformity with written information furnished
17
to the Company or Royal Ahold by or on behalf of any Initial Purchaser expressly
for use therein; and provided, further, that neither the Company nor Royal Ahold
shall be liable to any indemnified party under the indemnity agreement in this
subsection (a) with respect to any Preliminary Memorandum to the extent that any
such loss, claim, damage or liability results from the fact that an Initial
Purchaser sold Securities to a person to whom there was not sent or given, at or
prior to the written confirmation of such sale, a copy of the Final Memorandum
or the Final Memorandum as then amended or supplemented in any case where such
delivery is required by the Act if the Company or Royal Ahold has previously
furnished copies thereof in sufficient quantity to such Initial Purchaser as
required by Section 5(a) and the loss, claim, damage or liability results from
an untrue statement or omission of a material fact contained in a Preliminary
Memorandum which was corrected in the Final Memorandum or the Final Memorandum
as then amended, modified or supplemented.
(b) Each Initial Purchaser will, severally and not jointly,
indemnify and hold harmless the Company and Royal Ahold, the members of the
Supervisory Board and the Corporate Executive Board (in the case of Royal
Ahold), the directors (in the case of the Company), officers, employees and
agents of the Company and Royal Ahold and each person who controls any such
person within the meaning of the Act or the Exchange Act, against any losses,
claims, damages or liabilities to which they or any of them may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
any Preliminary Memorandum, the Final Memorandum or any amendment or supplement
thereto, or arise out of or are based upon the omission or the alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, in each case to the extent, but only
to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in any of such documents in reliance upon
and in conformity with written information furnished to the Company or Royal
Ahold by or on behalf of such Initial Purchaser expressly for use therein, and
will reimburse such indemnified party for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such action
or claim as such expenses are incurred. Royal Ahold and the Company acknowledge
that the statements set forth in the last paragraph of the cover page regarding
delivery of the Securities and the legend in bold letters and under the heading
"Plan of Distribution", the paragraph related to stabilization, syndicate
covering transactions and penalty bids in the Preliminary Memorandum and the
Final Memorandum, constitute the only information furnished in writing by or on
behalf of the Initial Purchasers for inclusion in the Preliminary Memorandum or
the Final Memorandum (or any amendment or supplement thereto).
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 8, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under paragraphs (a) and (b) of this Section 8, and will not relieve it from any
liability which
18
it may have to any indemnified party unless the indemnifying party forfeits
substantial rights and defenses as a result thereof. In case any such action is
brought against any indemnified party and it notifies the indemnifying party of
the commencement thereof, the indemnifying party will be entitled to participate
therein, and to the extent that it may wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except with the consent
of the indemnified party, be counsel to the indemnifying party), and after
notice from the indemnifying party to such indemnified party of its election so
to assume the defense thereof, the indemnifying party will not be liable to such
indemnified party under this Section 8 for any legal expenses of other counsel
or any other expenses, in each case subsequently incurred by such indemnified
party, in connection with the defense thereof other than reasonable costs of
investigation, except as set forth below. Notwithstanding the foregoing, the
indemnified party shall have the right to employ separate counsel (including
local counsel) to represent the indemnified party and their respective
controlling persons who may be subject to liability arising out of any claim in
respect of which indemnity may be sought by the indemnified party against the
indemnifying party under this Section 8, and the indemnifying party shall bear
the reasonable fees, costs and expenses of such separate counsel if (i) the use
of counsel chosen by the indemnifying party to represent the indemnified party
would present such counsel with a conflict of interest; (ii) the actual or
potential defendants in, or targets of, any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded (based on advice of counsel) that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party; (iii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after notice of the institution of such action; or (iv) the indemnifying
party shall authorize the indemnified party to employ separate counsel at the
expense of the indemnifying party; it being understood, however, that the
indemnifying party shall not, in connection with any one such claim or action or
separate but substantially similar or related claims or actions in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the fees and expenses of more than one separate firm of attorneys
(together with appropriate local counsel) at any time for all indemnified
parties. No indemnifying party shall be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent the indemnifying party agrees to indemnify the indemnified party from
and against any loss or liability by reason of such settlement. No indemnifying
party shall, without the written consent of the indemnified party, effect the
settlement or compromise of, or consent to the entry of any judgment with
respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of such action
or claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any indemnified party.
19
(d) If the indemnification provided for in this Section 8 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company and Royal Ahold on the one hand and by
the Initial Purchasers on the other from the offering of the Securities. If,
however, the allocation provided by the immediately preceding sentence is not
permitted by applicable law, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company and Royal Ahold on the one hand and of the Initial
Purchasers on the other hand in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities (or actions in
respect thereof), as well as any other relevant equitable considerations. The
relative benefits received by the Company and Royal Ahold on the one hand shall
be deemed to be equal to the total net proceeds from the offering of the
Securities purchased under this Agreement (before deducting expenses) received
by the Company and Royal Ahold and the relative benefits received by the Initial
Purchasers on the other hand shall be deemed to be equal to the total purchase
discounts and commissions with respect to the Securities purchased under this
Agreement. The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company and Royal Ahold on the one hand or the Initial
Purchasers on the other hand and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such untrue statement or
omission. The Company, Royal Ahold and the Initial Purchasers agree that it
would not be just and equitable if contribution pursuant to this subsection (d)
were determined by pro rata allocation (even if the Initial Purchasers were
treated as one entity for such purpose) or any other method of allocation which
does not take account of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of this
subsection (d). Notwithstanding the provisions of this subsection (d), no
Initial Purchaser shall be required to contribute any amount in excess of the
amount by which the total price at which the Securities purchased by it and
distributed exceeds the amount of any damages which such Initial Purchaser has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Initial Purchasers' obligations in this subsection (d) to
contribute are several in proportion to their respective purchase obligations
and not joint.
(e) The obligations of the Company and Royal Ahold under this
Section 8 shall be in addition to any liability which the Company and Royal
Ahold may otherwise have and shall
20
extend, upon the same terms and conditions, to each person, if any, who controls
any Initial Purchaser within the meaning of the Act and the Exchange Act; and
the obligations of the Initial Purchasers under this Section 8 shall be in
addition to any liability which the respective Initial Purchasers may otherwise
have and shall extend, upon the same terms and conditions, to each director of
the Company or Royal Ahold and to each person, if any, who controls the Company
or Royal Ahold within the meaning of the Act.
9. Default by an Initial Purchaser. If any one or more Initial
Purchasers shall fail to purchase and pay for any of the Securities agreed to be
purchased by such Initial Purchaser hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Initial Purchasers shall be obligated severally to take
up and pay for (in the respective proportions which the principal amount of
Securities set forth opposite their names in Schedule I hereto bears to the
aggregate principal amount of Securities set forth opposite the names of all the
remaining Initial Purchasers) the Securities which the defaulting Initial
Purchaser or Initial Purchasers agreed but failed to purchase; provided,
however, that in the event that the aggregate principal amount of Securities
which the defaulting Initial Purchaser or Initial Purchasers agreed but failed
to purchase shall exceed 10% of the aggregate principal amount of Securities set
forth in Schedule I hereto, the remaining Initial Purchasers shall have the
right to arrange for themselves or other parties to purchase all, but shall not
be under any obligation to purchase any, of the Securities. If within 36 hours
after such default by either Initial Purchaser the other Initial Purchaser does
not arrange for the purchase of such Securities, then the Company and Royal
Ahold shall be entitled to a further period of 36 hours within which to procure
another party or other parties satisfactory to the nondefaulting Initial
Purchaser to purchase such Securities on such terms; provided if arrangements
satisfactory to you, Royal Ahold and the Company for the purchase of such
Securities by the nondefaulting Initial Purchasers or other persons are not made
within 12 hours after such default, this Agreement will terminate without
liability to any nondefaulting Initial Purchaser, Royal Ahold or the Company. In
the event that, within the respective prescribed periods, the nondefaulting
Initial Purchaser notifies the Company that it has so arranged for the purchase
of the Securities, or Royal Ahold or the Company notifies such Initial Purchaser
that it has so arranged for the purchase of such Securities, the nondefaulting
Initial Purchaser, Royal Ahold or the Company shall have the right to postpone
the Closing Date for the Securities for a period of not more than seven days, in
order to effect whatever changes may thereby be made necessary in the Final
Memorandum or in any other documents or arrangements. As used in this Agreement,
the term "Initial Purchaser" includes any person substituted for an Initial
Purchaser under this Section 9. Nothing contained in this Agreement shall
relieve any defaulting Initial Purchaser of its liability, if any, to Royal
Ahold, the Company or any nondefaulting Initial Purchaser for damages occasioned
by its default hereunder.
10. Termination. This Agreement shall be subject to termination in
the absolute discretion of the Initial Purchasers, by notice given to Royal
Ahold and the Company prior to delivery of and payment for the Securities, if at
any time prior to such time (i) trading in Royal Ahold's securities shall have
been suspended by the Commission or the Official Segment of
21
Euronext Amsterdam N.V.'s stock market (the "Amsterdam Exchanges") or trading in
securities generally on the New York Stock Exchange or the Amsterdam Exchanges
shall have been suspended or limited or minimum prices shall have been
established on any such exchanges; (ii) a banking moratorium shall have been
declared either by Federal or New York State authorities; (iii) there shall have
occurred any outbreak or escalation of hostilities in which the United States or
The Netherlands is involved, declaration by the United States of a national
emergency or war the effect of which on financial markets is such as to make it,
in the judgment of the Initial Purchasers, impracticable or inadvisable to
proceed with the offering or delivery of the Securities as contemplated by the
Final Memorandum (exclusive of any amendment or supplement thereto) or (iv)
there shall have occurred any material adverse change in the existing financial,
political or economic conditions in the United States and The Netherlands or
elsewhere which, in the judgment of the Initial Purchasers, would materially and
adversely affect the financial markets or the market for the Securities or debt
securities.
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of
Royal Ahold, the Company or their officers and of the Initial Purchasers set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf of the Initial
Purchasers or Royal Ahold or the Company or any of the officers, members of the
Supervisory Board and the Corporate Executive Board (in the case of Royal
Ahold), directors (in the case of the Company and the Initial Purchasers) or
controlling persons referred to in Section 8 hereof, and will survive delivery
of and payment for the Securities. The provisions of Sections 7 and 8 hereof
shall survive the termination or cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Initial Purchasers, will be
mailed, delivered or telefaxed to the Xxxxxxx Xxxxx Xxxxxx General Counsel (fax
no.: (000) 000-0000) and confirmed to the General Counsel, Xxxxxxx Xxxxx Barney
at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000; or, if sent to Royal Ahold,
will be mailed, delivered or telefaxed to 011-31-75-659-8366 and confirmed to it
at Xxxxxx Xxxxxxxx 0, 0000 XX Xxxxxxx, Xxx Xxxxxxxxxxx, attention of the Legal
Department, or, if to the Company, will be mailed, delivered or telefaxed to
0-000-000-0000 and confirmed to it c/o Ahold USA, Inc., 00000 Xxxxxxxx Xxxxx,
Xxxxxxxxx, Xxxxxxxx 00000, attention of the Legal Department; provided, however
that any notice to an Initial Purchaser pursuant to Section 8 will be mailed,
delivered or telegraphed and confirmed to such Initial Purchaser.
13. Successors. This Agreement will inure solely to the benefit of
and be binding upon the parties hereto and their respective successors and the
officers, members of the Supervisory Board and the Corporate Executive Board (in
the case of Royal Ahold), directors (in the case of the Company and the Initial
Purchasers) and controlling persons referred to in Section 8 hereof, and, except
as expressly set forth in Section 5(h) hereof, no other person will have any
right or obligation hereunder. No purchaser of any of the Securities from any
Initial Purchaser shall be deemed a successor or assign by reason merely of such
purchase.
22
14. Jurisdiction. Royal Ahold and the Company agree that any suit,
action or proceeding against Royal Ahold or the Company brought by any Initial
Purchaser, the directors, officers, employees and agents of any Initial
Purchaser, or by any person who controls any Initial Purchaser, arising out of
or based upon this Agreement or the transactions contemplated hereby may be
instituted in the United States District Court for the Southern District of the
State of New York or the Supreme Court of the State of New York for New York
County, and waives any objection which it may now or hereafter have to the
laying of venue of any such proceeding, and irrevocably submits to the
nonexclusive jurisdiction of such courts in any suit, action or proceeding.
Royal Ahold has appointed Ahold U.S.A., Inc., 00000 Xxxxxxxx Xxxxx, Xxxxxxxxx,
Xxxxxxxx 00000 as its authorized agent (the "Authorized Agent") upon whom
process may be served in any suit, action or proceeding arising out of or based
upon this Agreement or the transactions contemplated herein which may be
instituted in the United States District Court for the Southern District of the
State of New York or the Supreme Court of the State of New York for New York
County, by any Initial Purchaser, the directors, officers, employees and agents
of any Initial Purchaser, or by any person who controls any Initial Purchaser,
and expressly accepts the nonexclusive jurisdiction of any such court in respect
of any such suit, action or proceeding. Royal Ahold hereby represents and
warrants that the Authorized Agent has accepted such appointment and has agreed
to act as said agent for service of process, and Royal Ahold agrees to take any
and all action, including the filing of any and all documents that may be
necessary to continue such appointment in full force and effect as aforesaid.
Service of process upon the Authorized Agent shall be deemed, in every respect,
effective service of process upon Royal Ahold. Notwithstanding the foregoing,
any action arising out of or based upon this Agreement may be instituted by any
Initial Purchaser, the directors, officers, employees and agents of any Initial
Purchaser, or by any person who controls any Initial Purchaser, in any court of
competent jurisdiction in The Netherlands.
15. Applicable Law. This Agreement will be governed by and construed
in accordance with the laws of the State of New York applicable to contracts
made and to be performed within the State of New York.
16. Currency. Each reference in this Agreement to U.S. dollars (the
"relevant currency") is of the essence. To the fullest extent permitted by law,
the obligations of Royal Ahold and the Company in respect of any amount due
under this Agreement will, notwithstanding any payment in any other currency
(whether pursuant to a judgment or otherwise), be discharged only to the extent
of the amount in the relevant currency that the party entitled to receive such
payment may, in accordance with its normal procedures, purchase with the sum
paid in such other currency (after any premium and costs of exchange) on the
Business Day immediately following the day on which such party receives such
payment. If the amount in the relevant currency that may be so purchased for any
reason falls short of the amount originally due, Royal Ahold and the Company
will pay such additional amounts, in the relevant currency, as may be necessary
to compensate for the shortfall. Any obligation of Royal Ahold or the Company
not discharged by such payment will, to the fullest extent permitted by
applicable law, be due as a separate and
23
independent obligation and, until discharged as provided herein, will continue
in full force and effect.
17. Waiver of Immunity. To the extent that either Royal Ahold or the
Company has or hereafter may acquire any immunity (sovereign or otherwise) from
any legal action, suit or proceeding, from jurisdiction of any court or from
set-off or any legal process (whether service or notice, attachment in aid or
otherwise) with respect to itself or any of its property, Royal Ahold and the
Company hereby irrevocably waive and agree not to plead or claim such immunity
in respect of their obligations under this Agreement.
18. Representation of Initial Purchasers. You will act for the
several Initial Purchasers in connection with this purchase, and any action
under this Agreement taken by you jointly or by Salomon or Xxxxxx Xxxxxxx
individually will be binding upon all the Initial Purchasers.
19. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
20. Headings. The section headings used herein are for convenience
only and shall not affect the construction hereof.
21. Definitions. The terms which follow, when used in this
Agreement, shall have the meanings indicated.
"Affiliate" shall have the meaning specified in Rule 501(b) of
Regulation D.
"Act" shall mean the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder.
"Business Day" shall mean any day other than a Saturday, a Sunday or
a legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in The City of New York.
"Commission" shall mean the Securities and Exchange Commission.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
"Governmental Agency" shall mean any court or governmental agency or
body or authorities of any exchange on which the securities of Royal Ahold or
any of its Affiliates are listed and admitted for trading.
24
"Governmental Authorization" shall mean any consents, approvals,
authorizations, orders, registrations, clearances and qualification of or with
any Governmental Agency having jurisdiction over the Company, Royal Ahold or any
of their Affiliates or any of their properties.
"Investment Company Act" shall mean the Investment Company Act of
1940, as amended, and the rules and regulations of the Commission thereunder.
"Regulation D" shall mean Regulation D under the Act.
"Regulation S" shall mean Regulation S under the Act.
"Significant Subsidiary" refers to Xxxxxx Xxxxx B.V., BI-LO Inc.,
Giant Food Stores, Inc., Ahold Vastgoed B.V., Tops Markets, Inc., Giant Food
Inc., U.S. Foodservice, ICA Ahold Holding AB and The Stop & Shop Companies, Inc.
"Subsidiaries" means any corporation or other entity of which at
least a majority of the outstanding stock or other ownership interests having by
the terms thereof ordinary voting power for the election of directors, managers
or trustees of such corporation or other entity or other persons performing
similar functions (irrespective of whether or not at the time stock or other
ownership interests of any other class or classes of such corporation or other
entity shall have or might have voting power by reason of the happening of any
contingency) is at the time directly or indirectly owned, or controlled by the
Company or Royal Ahold or by one or more other Subsidiaries, or by the Company
or Royal Ahold and one or more other Subsidiaries, or which is otherwise
consolidated by Royal Ahold in its consolidated financial statements.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended, and the rules and regulations of the Commission promulgated thereunder.
25
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this Agreement and your acceptance shall represent a binding agreement between
the Company, Royal Ahold and the several Initial Purchasers.
Very truly yours,
AHOLD LEASE U.S.A., INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
KONINKLIJKE AHOLD N.V.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Attorney-In-Fact
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
Xxxxxxx Xxxxx Xxxxxx Inc.
Xxxxxx Xxxxxxx & Co. Incorporated
By: Xxxxxxx Xxxxx Barney Inc.
By: /s/ Xxxxx Xxxxx
-----------------------------
Name: Xxxxx Xxxxx
Title: Director
26
SCHEDULE I
Initial Purchasers Principal Amount of
Securities to be Purchased
----------------------------------------
Series 2001-A-1 Series 2001-A-2
--------------- ---------------
Xxxxxxx Xxxxx Xxxxxx Inc.................................... US $156,833,000 US $125,360,000
Xxxxxx Xxxxxxx & Co. Incorporated........................... 156,832,000 125,360,000
--------------- ---------------
Total............................. US $313,665,000 US $250,720,000
EXHIBIT A
FORM OF PURCHASER LETTER
(INSTITUTIONAL ACCREDITED INVESTOR CERTIFICATES)
Xxxxxxx Xxxxx Barney Inc.
Xxxxxx Xxxxxxx & Co. Incorporated
c/o Xxxxxxx Xxxxx Barney Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Ahold Lease U.S.A., Inc.
00000 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
First Union National Bank
000 Xxxxx Xxxxx Xxxxxx
00xx Xxxxx
Xxxxxxxxx, XX 00000-0000
Re: Purchase of % Ahold Lease 2001-A Pass Through
Certificates, Series A - due
Ladies and Gentlemen:
This letter is delivered by us in connection with our purchase of the series of
pass through certificates referenced above in an amount of US $ (the
"Securities"). Terms used but not defined herein have the meanings ascribed
thereto in the Pass Through Trust Agreement, Series A - , dated as of
February 12, 2001 (the "Pass Through Trust Agreement"), between Ahold Lease
U.S.A., Inc. (the "Company") and First Union National Bank, as pass through
trustee (the "Pass Through Trustee"), for the benefit of the holders of the pass
through certificates issued thereunder.
In connection with such purchase, we hereby confirm that:
1. We understand that the Securities are not being and will not be
registered under the Securities Act of 1933, as amended (the "Act"), or
the securities laws of any state or any other jurisdiction, and are
being sold to us in a transaction that is exempt from the registration
requirements of the Act and such securities laws.
2. We acknowledge that we have received a copy of the Offering Memorandum
dated January 26, 2001 relating to the Securities (the "Final
Memorandum") and that we have reviewed the Final Memorandum and that we
have had the opportunity to ask questions and receive answers
concerning the terms and conditions of the transactions contemplated by
the Final Memorandum and that we have had access to such finance and
other information we have deemed necessary concerning the Company,
Royal Ahold and the Securities or any other matter relevant to our
decision to purchase the
2
Securities. We acknowledge that we have read and agree with the matters
stated in the section entitled "Notice to Investors" in the Final
Memorandum.
3. We acknowledge that none of the Company, Royal Ahold or the initial
purchasers (as identified in the Final Memorandum) or any person acting
on behalf of the Company, Royal Ahold or the initial purchasers has
made any representation to us with respect to the Company, Royal Ahold
or the offer or sale of any Securities, other than information
contained in the Final Memorandum.
4. We have such knowledge and experience in financial and business matters
as to be capable of evaluating the merits and risks of an investment in
the Securities, and we are (and any account for which we are purchasing
under paragraph 5 below is) an institution that is an "accredited
investor" (as defined in Rule 501(a)(1), (2), (3) or (7) of Regulation
D under the Act) able to bear the economic risk of our or its
investment in the Securities and can afford the complete loss of such
investment.
5. We are acquiring the Securities for our own account (or for accounts as
to which we exercise sole investment discretion and have authority to
make, and do make, the statements contained in this letter) and with
neither a view to any distribution of the Securities nor any present
intention of offering or selling any of the Securities, subject,
nevertheless, to the understanding that the disposition of our property
will at all times be and remain within our control.
6. We agree that the Securities may not be reoffered, resold, pledged or
otherwise transferred except:
(A) (i) to a person whom we reasonably believe is a "qualified
institutional buyer" within the meaning of Rule 144A of the Act in
a transaction meeting the requirements of Rule 144A;
(ii) to an institution that is an "accredited investor" within
the meaning of Rule 501(a)(1) (2), (3) or (7) of Regulation D under
the Act in a transaction exempt from the registration requirements
of the Act (upon delivery to the Pass Through Trustee or the
Company of an opinion of counsel experienced in securities law
matters to such effect and such other documentation as the Pass
Through Trustee and the Company may request);
(iii) in an offshore transaction meeting the requirements of
Rule 903 or 904 of Regulation S under the Act;
(iv) pursuant to an exemption from registration under the Act
provided by Rule 144 under the Act, if available;
(v) pursuant to an effective registration statement under the
Act; or
3
(vi) to the Company or any affiliate (as defined in Rule
501(b) of Regulation D under the Act) of the Company; and
(B) in each of the foregoing cases, in accordance with any
applicable securities laws of any State of the United States.
7. We understand as follows:
(a) the Securities will be in registered form only and that
any certificates delivered to us in respect of the Securities will
bear a legend substantially to the following effect:
"This certificate has not been registered under the United States
Securities Act of 1933, as amended (the "Securities Act"). You, the
holder hereof, by purchasing this certificate, agree that this
certificate may not be resold, pledged or otherwise transferred
other than (1) to a person whom the transferor reasonably believes
is a qualified institutional buyer within the meaning of Rule 144A
of the Securities Act in a transaction meeting the requirements of
Rule 144A, (2) in an offshore transaction meeting the requirements
of Rule 903 or Rule 904 of Regulation S under the Securities Act,
(3) to an institution that is an "accredited investor" as defined
in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the
Securities Act in a transaction exempt from the registration
requirements of the Securities Act (upon delivery to the Pass
Through Trustee and Ahold Lease U.S.A., Inc. of an opinion of
counsel and other documentation as the Pass Through Trustee or
Ahold Lease U.S.A., Inc. may request), (4) pursuant to an effective
registration statement under the Securities Act, (5) pursuant to an
exemption from registration under the Securities Act provided by
Rule 144 (if applicable) under the Securities Act, or (6) to Ahold
Lease U.S.A., Inc. or any affiliate (as defined in Rule 501(b) of
Regulation D under the Securities Act) of Ahold Lease U.S.A., Inc.,
and in each of the foregoing cases, in accordance with any
applicable securities laws of any State of the United States" and
(b) fully registered, definitive certificates will be issued
without the foregoing legend only in the event of a disposition of
the Securities in accordance with the provisions of subsections
(iv), (v) and (vi) of paragraph 6 above, or at our request at such
time as we would be permitted to dispose of them in accordance with
Rule 144(k) under the Act (upon delivery of such opinions or other
documentation as the Pass Through Trustee or the Company may
request).
8. In the event that we purchase any of the Securities, we will acquire
Securities having a minimum purchase price of not less than US $100,000
for our own account or for any separate account for which we are
acting.
4
9. We hereby undertake to be bound by the terms and conditions of the Pass
Through Trust Agreement in our capacity as an owner of the Securities
in all respects as if we were a signatory thereto. This undertaking is
made for the benefit of the certificate registrar, the Pass Through
Trustee and all holders of the Securities present and future.
10. We will not sell or otherwise transfer any portion of the Securities,
except in compliance with the Pass Through Trust Agreement (including
the provisions thereof requiring delivery of a purchase letter
containing a representation that the transferee is an "accredited
investor" as described above and such other certifications, opinions of
counsel or other information as the Pass Through Trustee or the Company
requires to confirm that such sale or transfer is being made pursuant
to an exemption from, or in a transaction not subject to, the
registration requirements of the Act) and in compliance with the
provisions hereof.
11. Either (1) we are neither an employee benefit plan, within the meaning
of Section 3(3) of the Employee Retirement Income Security Act of 1974,
as amended ("ERISA"), which is subject to Title I of ERISA, nor any
plan, within the meaning of Section 4975(e)(1) of the Internal Revenue
Code of 1986, as amended (the "Code"), which is subject to Section 4975
of the Code, nor any entity whose underlying assets include "plan
assets" by reason of any such employee benefit plan's or plan's
investment in the entity (each of the foregoing a "Plan") and we are
not acquiring or holding the Securities or any interest therein on
behalf of, or with the assets of, a Plan or (2) our purchase, holding
and disposition of the Securities or interest therein is exempt from
the prohibited transaction restrictions of ERISA and the Code pursuant
to one or more applicable statutory or administrative prohibited
transaction exemptions.
We acknowledge that the addressees hereof and others will rely on our
confirmations, acknowledgments and agreements set forth herein. The Pass Through
Trustee and the Company are irrevocably authorized to produce this letter or a
copy hereof to any interested party in any administrative or legal proceeding or
official inquiry with respect to the matters covered hereby. THIS LETTER WILL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
Very truly yours,
[Name of Purchaser]
By:
---------------------------------------
---------------------------------------
Name:
Title:
Dated:
5
Securities to be Purchased
EXHIBIT B
Selling Restrictions for Offers and
Sales outside the United States
-------------------------------
(1)(a) The Securities have not been registered under the Securities Act
of 1933 (the "Act") and may not be offered or sold within the United States or
to, or for the account or benefit of, U.S. persons except in accordance with
Regulation S under the Act or pursuant to an exemption from the registration
requirements of the Act. Each Initial Purchaser represents and agrees that,
except as otherwise permitted by Section 4(b)(i) or (ii) of the Agreement to
which this is an exhibit, it has not offered or sold the Securities, and will
not offer or sell the Securities in the United States or to, or for the account
or benefit of, U.S. persons, (i) as part of their distribution at any time; or
(ii) otherwise until 40 days after the later of the commencement of the offering
and the Closing Date (such period, the "Distribution Compliance Period").
Accordingly, each Initial Purchaser represents and agrees that neither it, nor
any of its affiliates nor any person acting on its or their behalf has engaged
or will engage in any directed selling efforts with respect to the Securities,
and that it and they have complied and will comply with the offering
restrictions requirement of Regulation S. Each Initial Purchaser agrees that, at
or prior to the confirmation of sale of Securities (other than a sale of
Securities pursuant to Section 4(b)(i) or (ii) of the Agreement to which this is
an exhibit), it shall have sent to each distributor, dealer or person receiving
a selling concession, fee or other remuneration that purchases Securities from
it during the Distribution Compliance Period a confirmation or notice to
substantially the following effect:
"The Securities covered hereby have not been registered under
the U.S. Securities Act of 1933 (the "Act") and may not be offered
or sold within the United States or to, or for the account or
benefit of, U.S. persons (i) as part of their distribution at any
time or (ii) otherwise until 40 days after the later of the
commencement of the offering and February 12, 2001, except in
either case in accordance with Rule 144A or an institutional
accredited investor pursuant to an exemption from registration
under the Act. Terms used above have the meanings given to them by
Regulation S."
(b) Each Initial Purchaser also represents and agrees that it has not
entered and will not enter into any contractual arrangement with any distributor
with respect to the distribution of the Securities, except with its Affiliates
or with the prior written consent of the Company.
(c) Terms used in this section and not otherwise defined in the
Agreement have the meanings given to them by Regulation S.
(2) Each Initial Purchaser severally represents and agrees that (i) it
has not offered or sold and prior to the date six months after the date of issue
of the Securities will not offer or sell any Securities to persons in the United
Kingdom except to persons whose ordinary activities involve them in acquiring,
holding, managing or disposing of investments (as principal or agent) for the
purposes of their businesses or otherwise in circumstances which have not
resulted and will not result in an offer to the public in the United Kingdom
within the meaning of the Public Offers of Securities Regulations 1995; (ii) it
has complied and will comply with all applicable
provisions of the Financial Services Xxx 0000 with respect to anything done by
it in relation to the Securities in, from or otherwise involving the United
Kingdom; and (iii) it has only issued or passed on and will only issue or pass
on in the United Kingdom any document received by it in connection with the
issue of the Securities to a person who is of a kind described in Article 11(3)
of the Financial Services Xxx 0000 (Investment Advertisements) (Exemptions)
Order 1996 (as amended) or is a person to whom such document may otherwise
lawfully be issued or passed on.
(3) Each Initial Purchaser understands that no action has been taken to
permit a public offering of the Securities in any jurisdiction outside the
United States where action would be required for such purpose. Each of the
Initial Purchasers agrees that it will not offer, sell, or deliver any of the
Securities in any jurisdiction outside the United States, except under
circumstances that will result in compliance with the applicable laws thereof
and in the manner contemplated by the Final Memorandum, and that it will take
whatever action is required to permit its purchase and resale of the Securities
in such jurisdiction.
