EXHIBIT 99(c)
____________, 2001
EXCHANGE AGENT AGREEMENT
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The Bank of New York
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Attention: Corporate Trust Administration
Ladies and Gentlemen:
Delhaize America, Inc. a North Carolina corporation (the "Company")
proposes to make an offer (the "Exchange Offer") to exchange all of its
outstanding $600,000,000 aggregate principal amount of 7.375% notes due 2006,
$1,100,000,000 aggregate principal amount of 8.125% notes due 2011 and
$900,000,000 aggregate principal amount of 9.000% debentures due 2031
(collectively, the "Old Securities") for its $600,000,000 aggregate principal
amount of 7.375% notes due 2006, $1,100,000,000 aggregate principal amount of
8.125% notes due 2011 and $900,000,000 aggregate principal amount of 9.000%
debentures due 2031 (collectively, the "New Securities"). The terms and
conditions of the Exchange Offer as currently contemplated are set forth in a
prospectus included in the Company's registration statement of Form S-4, as it
may be amended from time to time, filed with the Securities and Exchange
Commission and proposed to be distributed to all record holders of the Old
Securities, dated _________, 2001 (the "Prospectus"), proposed to be distributed
to all record holders of the Old Securities. The Old Securities and the New
Securities are collectively referred to herein as the "Securities".
The Company hereby appoints The Bank of New York to act as exchange agent
(the "Exchange Agent") in connection with the Exchange Offer. References
hereinafter to "you" shall refer to The Bank of New York.
The Exchange Offer is expected to be commenced by the Company on or about
_____________, 2001. The Letter of Transmittal accompanying the Prospectus (or
in the case of book-entry securities, the Automated Tender Offer Program
("ATOP") of the Book-Entry Transfer Facility (as defined below)) is to be used
by the holders of the Old Securities to accept the Exchange Offer and contains
instructions with respect to the delivery of certificates for Old Securities
tendered in connection therewith.
The Exchange Offer shall expire at 5:00 p.m., New York City time, on
_________, 2001 or on such subsequent date or time to which the Company may
extend the Exchange Offer (the "Expiration Date"). Subject to the terms and
conditions set forth in the Prospectus, the Company expressly reserves the right
to extend the Exchange Offer from time to time and may extend the Exchange Offer
by giving oral (confirmed in writing) or written notice to you before 9:00 a.m.,
New York City time, on the business day following the previously scheduled
Expiration Date.
The Company expressly reserves the right, in its sole discretion, to amend
or terminate the Exchange Offer, and not to accept for exchange any Old
Securities not theretofore accepted for exchange, upon the occurrence of any of
the conditions of the Exchange Offer specified in the Prospectus under the
caption "The Exchange Offer--Conditions to the Exchange Offer." The Company will
give oral (confirmed in writing) or written notice of any amendment, termination
or nonacceptance to you as promptly as practicable.
In carrying out your duties as Exchange Agent, you are to act in accordance
with the following instructions:
1. You will perform such duties and only such duties as are specifically
set forth in the section of the Prospectus captioned "The Exchange Offer", in
the Letter of Transmittal accompanying the Prospectus, or as specifically set
forth herein; provided, however, that in no way will your general duty to act in
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good faith and without gross negligence or willful misconduct be discharged by
the foregoing.
2. You will establish a book-entry account with respect to the Old
Securities at The Depository Trust Company (the "Book-Entry Transfer Facility")
for purposes of the Exchange Offer within two business days after the date of
the Prospectus, and any financial institution that is a participant in the
Book-Entry Transfer Facility's systems may, until the Expiration Date, make
book-entry delivery of the Old Securities by causing the Book-Entry Transfer
Facility to transfer such Old Securities into your account in accordance with
the Book-Entry Transfer Facility's procedure for such transfer.
3. You are to examine each of the Letters of Transmittal and certificates
for Old Securities (or confirmations of book-entry transfer of Old Securities
into your account at the Book-Entry Transfer Facility) and any other documents
delivered or mailed to you by or for holders of the Old Securities to ascertain
whether: (i) the Letters of Transmittal, certificates and any such other
documents are duly executed and properly completed in accordance with
instructions set forth therein (ii) the Old Securities have otherwise been
properly tendered and (iii) the Old Securities tendered in part are tendered in
denominations of $1,000 and integral multiples thereof. In each case where the
Letter of Transmittal or any other document has been improperly completed or
executed or any of the certificates for Old Securities are not in proper form
for transfer or some other irregularity in connection with the acceptance of the
Exchange Offer exists,
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you will endeavor to inform the presenters of the need for fulfillment of all
requirements and to take any other action as may be reasonably necessary or
advisable to cause such irregularity to be corrected.
4. With the approval of the President, Senior Vice President, Executive
Vice President, or any Vice President, Secretary or Assistant Secretary of the
Company (such approval, if given orally, to be confirmed in writing) or any
other party designated in writing, by such an officer, you are authorized to
waive any irregularities in connection with any tender of Old Securities
pursuant to the Exchange Offer.
5. Tenders of Old Securities may be made only as set forth in the Letter of
Transmittal and in the section of the Prospectus captioned "The Exchange Offer
--Procedures for Tendering" and Old Securities shall be considered properly
tendered to you only when tendered in accordance with the procedures set forth
therein.
Notwithstanding the provisions of this Section 5, Old Securities which the
President, Senior Vice President, Executive Vice President, or any Vice
President, Secretary or Assistant Secretary of the Company shall approve as
having been properly tendered shall be considered to be properly tendered (such
approval, if given orally, shall be confirmed in writing). New Securities are to
be issued in exchange for Old Securities pursuant to the Exchange Offer only (i)
against deposit with you prior to the Expiration Date or, in the case of a
tender in accordance with the guaranteed delivery procedures outlined in the
Letter of Transmittal, within three business days after the Expiration Date of
the Exchange Offer, together with executed Letters of Transmittal and Notices of
Guaranteed Delivery or (ii) in the event that the holder is a participant in the
Book-Entry Transfer Facility's system, by the utilization of ATOP and receipt of
any evidence required by the Exchange Offer.
6. You shall advise the Company with respect to any Old Securities received
subsequent to the Expiration Date and accept its instructions with respect to
disposition of such Old Securities.
7. You shall accept tenders:
(a) in cases where the Old Securities are registered in two or more
names only if signed by all named holders;
(b) in cases where the signing person (as indicated on the Letter of
Transmittal) is acting in a fiduciary or a representative capacity only when
proper evidence of his or her authority so to act is submitted; and
(c) from persons other than the registered holder of Old Securities,
provided that customary transfer requirements, including payment of any
applicable transfer taxes, are fulfilled.
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You shall accept partial tenders of Old Securities where so indicated and
as permitted in the Letter of Transmittal and deliver certificates for Old
Securities to the registrar for the Old Securities for split-up and return any
untendered Old Securities to the holder (or such other person as may be
designated in the Letter of Transmittal) as promptly as practicable after
expiration or termination of the Exchange Offer.
8. Upon satisfaction or waiver of all of the conditions to the Exchange
Offer, the Company will notify you (such notice, if given orally, to be promptly
confirmed in writing) of its acceptance, promptly after the Expiration Date, of
all Old Securities properly tendered and you, on behalf of the Company, will
exchange such Old Securities for New Securities and cause such Old Securities to
be cancelled. Delivery of New Securities will be made on behalf of the Company
by you at the rate of $1,000 principal amount of New Securities for each $1,000
principal amount of the corresponding series of Old Securities tendered promptly
after notice (such notice if given orally, to be promptly confirmed in writing)
of acceptance of said Old Securities by the Company; provided, however, that in
all cases, Old Securities tendered pursuant to the Exchange Offer will be
exchanged only after timely receipt by you of certificates for such Old
Securities (or confirmation of book-entry transfer into your account at the
Book-Entry Transfer Facility), a properly completed and duly executed Letter of
Transmittal (or facsimile thereof) with any required signature guarantees and
any other required documents. Unless otherwise instructed by the Company in
writing, you shall issue New Securities only in denominations of $1,000 or any
integral multiple thereof.
9. Tenders pursuant to the Exchange Offer are irrevocable, except that,
subject to the terms and upon the conditions set forth in the Prospectus and the
Letter of Transmittal, Old Securities tendered pursuant to the Exchange Offer
may be withdrawn at any time prior to the Expiration Date in accordance with the
terms of the Exchange Offer procedures for tendering.
10. The Company shall not be required to exchange any Old Securities
tendered if any of the conditions set forth in the Exchange Offer are not met.
Notice of any decision by the Company not to exchange any Old Securities
tendered shall be given (if given orally, to be promptly confirmed in writing)
by the Company to you.
11. If, pursuant to the Exchange Offer, the Company does not accept for
exchange all or part of the Old Securities tendered because of an invalid
tender, the occurrence of certain other events set forth in the Prospectus under
the caption "The Exchange Offer--Conditions to the Exchange Offer" or otherwise,
you shall as soon as practicable after the expiration or termination of the
Exchange Offer return those certificates for unaccepted Old Securities (or
effect appropriate book-entry transfer), together with any related required
documents and the Letters of Transmittal relating thereto that are in your
possession, to the persons who deposited them (or effected such book-entry
transfer).
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12. All certificates for reissued Old Securities, unaccepted Old Securities
or for New Securities shall be forwarded by first-class mail.
13. As soon as practicable after the Expiration Date, you shall arrange for
cancellation of the Old Securities submitted to you or returned by the
Book-Entry Transfer Facility in connection with ATOP. Such Old Securities shall
be cancelled and disposed of by you in your customary manner.
14. You are not authorized to pay or offer to pay any concessions,
commissions or solicitation fees to any broker, dealer, bank or other persons or
to engage or utilize any person to solicit tenders.
15. As Exchange Agent hereunder you:
(a) shall not be liable for any action or omission to act unless the
same constitutes your own negligence, willful misconduct or bad faith, and in no
event shall you be liable to a securityholder, the Company or any third party
for special, indirect or consequential damages, or lost profits, arising in
connection with this Agreement.
(b) shall have no duties or obligations other than those specifically
set forth herein or as may be subsequently agreed to in writing between you and
the Company;
(c) will be regarded as making no representations and having no
responsibilities as to the validity, sufficiency, value or genuineness of any of
the certificates or the Old Securities represented thereby deposited with you
pursuant to the Exchange Offer, and will not be required to and will make no
representation as to the validity, value or genuineness of the Exchange Offer;
(d) shall not be obligated to take any legal action hereunder which
might in your reasonable judgment involve any expense or liability, unless you
shall have been furnished with reasonable indemnity;
(e) may reasonably rely on and shall be protected in acting in reliance
upon any certificate, instrument, opinion, notice, letter, telegram or other
document or security delivered to you and reasonably believed by you to be
genuine and to have been signed or presented by the proper person or persons;
(f) may reasonably act upon any tender, statement, request, document,
agreement, certificate or other instrument whatsoever not only as to its due
execution and validity and effectiveness of its provisions, but also as to the
truth and accuracy of any information contained therein, which you shall in good
faith believe to be genuine or to have been signed or presented by the proper
person or persons;
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(g) may rely upon and shall be protected in acting upon written or oral
instructions from any authorized officer of the Company;
(h) may consult with counsel of your selection with respect to any
questions relating to your duties and responsibilities, and the advice or
opinion of such counsel shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted to be taken by you hereunder
in good faith and in accordance with the advice or opinion of such counsel; and
(i) shall not advise any person tendering Old Securities pursuant to
the Exchange Offer as to the wisdom of making such tender or as to the market
value or decline or appreciation in market value of any Old Securities or as to
the market value of the New Securities;
provided, however, that in no way will your general duty to act in good faith
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and without gross negligence or willful misconduct be limited by the foregoing.
16. You shall take such action as may from time to time be requested by the
Company or its counsel (and such other action as you may reasonably deem
appropriate) to furnish copies of the Prospectus, Letter of Transmittal and the
Notice of Guaranteed Delivery (as defined in the Prospectus) or such other forms
as may be approved from time to time by the Company, to all persons requesting
such documents and to accept and comply with telephone requests for information
relating to the Exchange Offer, provided that such information shall relate only
to the procedures for accepting (or withdrawing from) the Exchange Offer. The
Company will furnish you with copies of such documents at your request. All
other requests for information relating to the Exchange Offer shall be directed
to the Company, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇.
17. You shall advise by facsimile transmission ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, the
Company's Executive Vice President and General Counsel (telephone no. (704)
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as the Company may request, daily (and more frequently during the week
immediately preceding the Expiration Date and if otherwise requested) up to and
including the Expiration Date, as to the number of Old Securities which have
been tendered pursuant to the Exchange Offer and the items received by you
pursuant to the Exchange Offer and this Agreement, separately reporting and
giving cumulative totals as to items properly received and items improperly
received. In addition, you will also inform, and cooperate in making available
to, the Company or any such other person or persons upon oral request made from
time to time prior to the Expiration Date of such other information as they may
reasonably request. Such cooperation shall include, without limitation, the
granting by you to the Company and such persons as the Company may request of
access to those persons on your staff who are responsible for receiving tenders,
in order to ensure that immediately prior to the Expiration Date the Company
shall have received information in sufficient detail to enable it to decide
whether to extend the Exchange
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Offer. You shall prepare a final list of all persons whose tenders were
accepted, the aggregate principal amount of Old Securities tendered, the
aggregate principal amount of Old Securities accepted and the identity of any
DTC Participant and their DTC number, and deliver said list to the Company.
18. Letters of Transmittal, Book-Entry Confirmations and Notices of
Guaranteed Delivery shall be stamped by you as to the date and time of receipt
thereof and shall be preserved by you for a period of time at least equal to the
period of time you preserve other records pertaining to the transfer of
securities. You shall dispose of unused Letters of Transmittal and other surplus
materials by returning them to the Company.
19. For services rendered as Exchange Agent hereunder, you shall be
entitled to such compensation as set forth on Schedule I attached hereto. The
provisions of this section shall survive the termination of this Agreement.
20. You hereby expressly waive any lien, encumbrance, or right of set-off
whatsoever that you may have with respect to any funds deposited with you by
reasons of amounts, if any, borrowed by the Company or any of its subsidiaries
or affiliates pursuant to any loan or credit agreement with you or for
compensation owed to you hereunder or under any other agreement.
21. You hereby acknowledge receipt of the Prospectus and the form of Letter
of Transmittal and further acknowledge that you have examined each of them. Any
inconsistency between this Agreement, on the one hand, and the Prospectus and
the Letter of Transmittal (as they may be amended from time to time), on the
other hand, shall be resolved in favor of the latter two documents, except with
respect to your duties, liabilities and indemnification as Exchange Agent, which
shall be controlled by the agreement.
22. The Company covenants and agrees to fully indemnify and hold you
harmless in your capacity as Exchange Agent hereunder against any and all loss,
liability, cost or expense, including reasonable attorneys' fees and expenses,
incurred without gross negligence, willful misconduct or bad faith on your part,
arising out of or in connection with any act, omission, delay or refusal made by
you in reliance upon any signature, endorsement, assignment, certificate, order,
request, notice, instruction or other instrument or document reasonably believed
by you to be valid, genuine and sufficient and in accepting any tender or
effecting any transfer of Old Securities reasonably believed by you in good
faith to be authorized, and in delaying or refusing in good faith to accept any
tenders or effect any transfer of Old Securities. In no case shall the Company
be liable under this indemnity with respect to any claim against you unless the
Company is notified by you, by letter or facsimile confirmed by letter, of the
written assertion of a claim against you or of any other action commenced
against you, promptly after you shall have received any such written assertion
or written notice of commencement of action. The Company shall be entitled to
participate, at its own
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expense, in the defense of any such claim or other action and, if the Company so
elects, the Company shall assume the defense of any suit brought to enforce any
such claim. In the event that the Company shall assume the defense of any such
suit, the Company shall not be liable for the fees and expenses of any
additional counsel thereafter retained by you, so long as the Company shall
retain counsel satisfactory to you to defend such suit, and so long as you have
not determined, in your reasonable judgment, that a conflict of interest exists
between you and the Company.
23. You shall arrange to comply with all requirements under the tax laws of
the United States, including those relating to missing Tax Identification
Numbers, and shall file any appropriate reports with the Internal Revenue
Service.
24. You shall deliver or cause to be delivered, in a timely manner to each
governmental authority to which any transfer taxes are payable in respect of the
exchange of Old Securities, the Company's check in the amount of all transfer
taxes so payable; provided, however, that you shall reimburse the Company for
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amounts refunded to you in respect of the payment of any such transfer taxes, at
such time as such refund is received by you.
25. This Agreement and your appointment as Exchange Agent hereunder shall
be construed and enforced in accordance with the laws of the State of New York
applicable to agreements made and to be performed entirely within such state,
and without regard to conflicts of law principles, and shall inure to the
benefit of, and the obligations created hereby shall be binding upon, the
successors and assigns of each of the parties hereto. Nothing in this Agreement,
express or implied, is intended to or shall confer upon any other person any
right, benefit or remedy of any nature whatsoever under or by reason of this
Agreement. Without limitation of the foregoing, the parties hereto expressly
agree that no holder of Old Securities or New Securities shall have any right,
benefit or remedy of any nature whatsoever under or by reason of this Agreement.
26. This Agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original and all of which together shall
constitute one and the same agreement.
27. In case any provision of this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
28. This Agreement shall not be deemed or construed to be modified,
amended, rescinded, cancelled or waived, in whole or in part, except by a
written instrument signed by a duly authorized representative of the party to be
charged. This Agreement may not be modified orally.
29. Unless otherwise provided herein, all notices, requests and other
communications to any party hereunder shall be in writing (including facsimile
or similar
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writing) and shall be given to such party, addressed to it, at its address or
telecopy number set forth below:
If to the Company:
Delhaize America, Inc.
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Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Executive Vice President and General Counsel
If to the Exchange Agent:
The Bank of New York
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Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Trust
Administration
30. At the written request of the Company or its counsel you shall notify
tendering holders of Old Securities in the event of any extension, termination
or amendment of the Exchange Offer. In the event of any such termination, you
will cause the return of all tendered Old Securities to the persons entitled
thereto, at the request and expense of the Company, in accordance with the terms
of this Agreement.
31. Unless terminated earlier by the parties hereto, this Agreement shall
terminate 90 days following the Expiration Date. Notwithstanding the foregoing,
Sections 18, 19, 22 and 24 shall survive the termination of this Agreement. Upon
any termination of this Agreement, you shall promptly deliver to the Company any
certificates for Securities, funds or property then held by you as Exchange
Agent under this Agreement.
32. This Agreement shall be binding and effective as of the date hereof.
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Please acknowledge receipt of this Agreement and confirm the arrangements
herein provided by signing and returning the enclosed copy.
DELHAIZE AMERICA, INC.
By:
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Name:
Title:
Accepted as of the date
first above written:
THE BANK OF NEW YORK, as Exchange Agent
By:
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Name:
Title:
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SCHEDULE I
COMPENSATION OF EXCHANGE AGENT:
[$5,000] PLUS $500 PER EXTENSION OF OFFER
PLUS OUT-OF POCKET EXPENSES, INCLUDING,
WITHOUT LIMITATION, REASONABLE LEGAL FEES AND
EXPENSES.