-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, MoePaVvtRBD2zoo9SaEv9cvr9NkTTFqDjidiRbrI/OYEoFnEc1ZYWMejj4b5AkZx X2f8U68ai7a8rN7mXIzjRw== 0001193125-09-011718.txt : 20090127 0001193125-09-011718.hdr.sgml : 20090127 20090127101903 ACCESSION NUMBER: 0001193125-09-011718 CONFORMED SUBMISSION TYPE: F-3ASR PUBLIC DOCUMENT COUNT: 17 FILED AS OF DATE: 20090127 DATE AS OF CHANGE: 20090127 EFFECTIVENESS DATE: 20090127 FILER: COMPANY DATA: COMPANY CONFORMED NAME: HANNAFORD BROTHERS CO CENTRAL INDEX KEY: 0000045379 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-GROCERY STORES [5411] IRS NUMBER: 010085930 STATE OF INCORPORATION: ME FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: F-3ASR SEC ACT: 1933 Act SEC FILE NUMBER: 333-156957-02 FILM NUMBER: 09546931 BUSINESS ADDRESS: STREET 1: 145 PLEASANT HILL RD CITY: SCARBOROUGH STATE: ME ZIP: 04074 BUSINESS PHONE: 2078832911 FILER: COMPANY DATA: COMPANY CONFORMED NAME: DELHAIZE GROUP CENTRAL INDEX KEY: 0000930309 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-GROCERY STORES [5411] IRS NUMBER: 980226019 STATE OF INCORPORATION: C9 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: F-3ASR SEC ACT: 1933 Act SEC FILE NUMBER: 333-156957 FILM NUMBER: 09546929 BUSINESS ADDRESS: STREET 1: RUE OSSEGHEMSTRAAT 53 CITY: BRUSSELS STATE: C9 ZIP: 1080 BUSINESS PHONE: 011-32-2-412-2111 MAIL ADDRESS: STREET 1: RUE OSSEGHEMSTRAAT 53 CITY: BRUSSELS STATE: C9 ZIP: 1080 FORMER COMPANY: FORMER CONFORMED NAME: DELHAIZE BROTHERS & CO THE LION ESTABLISHMENT DATE OF NAME CHANGE: 20010326 FILER: COMPANY DATA: COMPANY CONFORMED NAME: DELHAIZE AMERICA INC CENTRAL INDEX KEY: 0000037912 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-GROCERY STORES [5411] IRS NUMBER: 560660192 STATE OF INCORPORATION: NC FISCAL YEAR END: 0102 FILING VALUES: FORM TYPE: F-3ASR SEC ACT: 1933 Act SEC FILE NUMBER: 333-156957-01 FILM NUMBER: 09546930 BUSINESS ADDRESS: STREET 1: PO BOX 1330 STREET 2: 2110 EXECUTIVE DR CITY: SALISBURY STATE: NC ZIP: 28145 BUSINESS PHONE: 7046338250 MAIL ADDRESS: STREET 1: PO BOX 1330 STREET 2: 2110 EXECUTIVE DR CITY: SALISBURY STATE: NC ZIP: 28145 FORMER COMPANY: FORMER CONFORMED NAME: FOOD LION INC DATE OF NAME CHANGE: 19920703 FORMER COMPANY: FORMER CONFORMED NAME: FOOD TOWN STORES INC DATE OF NAME CHANGE: 19830510 FILER: COMPANY DATA: COMPANY CONFORMED NAME: KASH N KARRY FOOD STORES, INC. CENTRAL INDEX KEY: 0000842913 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-GROCERY STORES [5411] IRS NUMBER: 954161591 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: F-3ASR SEC ACT: 1933 Act SEC FILE NUMBER: 333-156957-13 FILM NUMBER: 09546942 BUSINESS ADDRESS: STREET 1: 3801 SUGAR PALM DRIVE CITY: TAMPA STATE: FL ZIP: 33619 BUSINESS PHONE: 8136201139 MAIL ADDRESS: STREET 1: 3801 SUGAR PALM DRIVE CITY: TAMPA STATE: FL ZIP: 33619 FORMER COMPANY: FORMER CONFORMED NAME: KASH N KARRY FOOD STORES INC DATE OF NAME CHANGE: 19920703 FILER: COMPANY DATA: COMPANY CONFORMED NAME: MARTINS FOOD OF SOUTH BURLINGTON INC CENTRAL INDEX KEY: 0000851600 IRS NUMBER: 030222879 STATE OF INCORPORATION: VT FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: F-3ASR SEC ACT: 1933 Act SEC FILE NUMBER: 333-156957-03 FILM NUMBER: 09546932 BUSINESS ADDRESS: STREET 1: 145 PLEASANT HILL ROAD CITY: SCARBOROUGH STATE: ME ZIP: 04074 BUSINESS PHONE: (207) 885-3071 MAIL ADDRESS: STREET 1: P. O. BOX 1000 CITY: PORTLAND STATE: ME ZIP: 04104 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Hannaford Procurement Corp. CENTRAL INDEX KEY: 0001396132 IRS NUMBER: 010512080 STATE OF INCORPORATION: ME FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: F-3ASR SEC ACT: 1933 Act SEC FILE NUMBER: 333-156957-08 FILM NUMBER: 09546937 BUSINESS ADDRESS: STREET 1: 145 PLEASANT HILL ROAD CITY: SCARBOROUGH STATE: ME ZIP: 04074 BUSINESS PHONE: (207) 885-3071 MAIL ADDRESS: STREET 1: P.O. BOX 1000 CITY: PORTLAND STATE: ME ZIP: 04104 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Hannaford Licensing Corp. CENTRAL INDEX KEY: 0001396133 IRS NUMBER: 010512079 STATE OF INCORPORATION: ME FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: F-3ASR SEC ACT: 1933 Act SEC FILE NUMBER: 333-156957-04 FILM NUMBER: 09546933 BUSINESS ADDRESS: STREET 1: 145 PLEASANT HILL ROAD CITY: SCARBOROUGH STATE: ME ZIP: 04074 BUSINESS PHONE: (207) 885-3071 MAIL ADDRESS: STREET 1: P.O. BOX 1000 CITY: PORTLAND STATE: ME ZIP: 04104 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Hannbro CO CENTRAL INDEX KEY: 0001396134 IRS NUMBER: 010531895 STATE OF INCORPORATION: ME FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: F-3ASR SEC ACT: 1933 Act SEC FILE NUMBER: 333-156957-10 FILM NUMBER: 09546939 BUSINESS ADDRESS: STREET 1: 145 PLEASANT HILL ROAD CITY: SCARBOROUGH STATE: ME ZIP: 04074 BUSINESS PHONE: (207) 885-3071 MAIL ADDRESS: STREET 1: P.O. BOX 1000 CITY: PORTLAND STATE: ME ZIP: 04104 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Boney Wilson & Sons, Inc. CENTRAL INDEX KEY: 0001396135 IRS NUMBER: 560709778 STATE OF INCORPORATION: NC FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: F-3ASR SEC ACT: 1933 Act SEC FILE NUMBER: 333-156957-07 FILM NUMBER: 09546936 BUSINESS ADDRESS: STREET 1: 145 PLEASANT HILL ROAD CITY: SCARBOROUGH STATE: ME ZIP: 04074 BUSINESS PHONE: (207) 885-3071 MAIL ADDRESS: STREET 1: P.O. BOX 1000 CITY: PORTLAND STATE: ME ZIP: 04104 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Victory Distributors, Inc. CENTRAL INDEX KEY: 0001396136 IRS NUMBER: 042440100 STATE OF INCORPORATION: MA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: F-3ASR SEC ACT: 1933 Act SEC FILE NUMBER: 333-156957-05 FILM NUMBER: 09546934 BUSINESS ADDRESS: STREET 1: 145 PLEASANT HILL ROAD CITY: SCARBOROUGH STATE: ME ZIP: 04074 BUSINESS PHONE: (207) 885-3071 MAIL ADDRESS: STREET 1: P.O. BOX 1000 CITY: PORTLAND STATE: ME ZIP: 04104 FILER: COMPANY DATA: COMPANY CONFORMED NAME: J. H. Harvey Co., LLC CENTRAL INDEX KEY: 0001396137 IRS NUMBER: 050582869 STATE OF INCORPORATION: GA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: F-3ASR SEC ACT: 1933 Act SEC FILE NUMBER: 333-156957-06 FILM NUMBER: 09546935 BUSINESS ADDRESS: STREET 1: P.O. BOX 1330 STREET 2: 2110 EXECUTIVE DRIVE CITY: SALISBURY STATE: NC ZIP: 28145 BUSINESS PHONE: 704-633-8250 MAIL ADDRESS: STREET 1: P.O. BOX 1330 STREET 2: 2110 EXECUTIVE DRIVE CITY: SALISBURY STATE: NC ZIP: 28145 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Risk Management Services, Inc. CENTRAL INDEX KEY: 0001396138 IRS NUMBER: 550660192 STATE OF INCORPORATION: NC FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: F-3ASR SEC ACT: 1933 Act SEC FILE NUMBER: 333-156957-11 FILM NUMBER: 09546940 BUSINESS ADDRESS: STREET 1: P.O. BOX 1330 STREET 2: 2110 EXECUTIVE DRIVE CITY: SALISBURY STATE: NC ZIP: 28145 BUSINESS PHONE: (704) 633-8250 MAIL ADDRESS: STREET 1: P.O. BOX 1330 STREET 2: 2110 EXECUTIVE DRIVE CITY: SALISBURY STATE: NC ZIP: 28145 FILER: COMPANY DATA: COMPANY CONFORMED NAME: FL Food Lion, Inc. CENTRAL INDEX KEY: 0001396139 IRS NUMBER: 562051565 STATE OF INCORPORATION: FL FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: F-3ASR SEC ACT: 1933 Act SEC FILE NUMBER: 333-156957-12 FILM NUMBER: 09546941 BUSINESS ADDRESS: STREET 1: P.O. BOX 1330 STREET 2: 2110 EXECUTIVE DRIVE CITY: SALISBURY STATE: NC ZIP: 28145 BUSINESS PHONE: (704) 633-8250 MAIL ADDRESS: STREET 1: P.O. BOX 1330 STREET 2: 2110 EXECUTIVE DRIVE CITY: SALISBURY STATE: NC ZIP: 28145 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Food Lion, LLC CENTRAL INDEX KEY: 0001396140 IRS NUMBER: 562173154 STATE OF INCORPORATION: NC FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: F-3ASR SEC ACT: 1933 Act SEC FILE NUMBER: 333-156957-14 FILM NUMBER: 09546943 BUSINESS ADDRESS: STREET 1: P.O. BOX 1330 STREET 2: 2110 EXECUTIVE DRIVE CITY: SALISBURY STATE: NC ZIP: 28145 BUSINESS PHONE: (704) 633-8250 MAIL ADDRESS: STREET 1: P.O. BOX 1330 STREET 2: 2110 EXECUTIVE DRIVE CITY: SALISBURY STATE: NC ZIP: 28145 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Shop 'n Save-Mass, Inc. CENTRAL INDEX KEY: 0001396353 IRS NUMBER: 043022931 STATE OF INCORPORATION: MA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: F-3ASR SEC ACT: 1933 Act SEC FILE NUMBER: 333-156957-09 FILM NUMBER: 09546938 BUSINESS ADDRESS: STREET 1: 145 PLEASANT HILL ROAD CITY: SCARBOROUGH STATE: ME ZIP: 04074 BUSINESS PHONE: (207) 885-3071 MAIL ADDRESS: STREET 1: P.O. BOX 1000 CITY: PORTLAND STATE: ME ZIP: 04104 F-3ASR 1 df3asr.htm FORM F-3ASR Form F-3ASR
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As filed with the Securities and Exchange Commission on January 27, 2009

Registration No. 333-            

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORMS F-3* and S-3*

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

 

Etablissements Delhaize Frères et Cie “Le Lion” (Groupe Delhaize)

(Exact Name of Registrant as Specified in its Charter)**

Delhaize Brothers and Co. “The Lion” (Delhaize Group)

(Translation of Registrant’s Name Into English)

 

 

** The registrant’s charter (articles of association) specifies the registrant’s name in French, Dutch and English.

 

Belgium   

Square Marie Curie 40

1070 Brussels Belgium

(32) 2 412 22 11

  98-0226019

(State or other jurisdiction

of incorporation or organization)

   (Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)  

(I.R.S. Employer

Identification Number)

G. Linn Evans

Delhaize America, Inc.

2110 Executive Drive

Salisbury, North Carolina 28147

(704) 633-8250

(Name, address, including zip code, and telephone number, including area code, of agent for service of process)

 

 

Please send copies of all communications to:

J. Steven Patterson

Hunton & Williams LLP

1900 K Street, N.W.

Washington, DC 20006-1109

(202) 955-1500

 

 

Approximate date of commencement of proposed sale to the public: From time to time after the effective date of this registration statement.

If only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box.  ¨

If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box.  x

If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  ¨

If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  ¨

If this Form is a registration statement pursuant to General Instruction I.C. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box.  x

If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.C. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box.  ¨

CALCULATION OF REGISTRATION FEE

 

 

 

Title of each class of

securities to be registered

 

Amount

to be
registered

 

Proposed maximum

aggregate price
per unit (1)

  Proposed maximum
aggregate
offering price
  Amount of
registration fee

Debt Securities

  (1)   (1)   (1)   (1)(2)

Guarantees of Debt Securities (3)

  (4)       (4)

 

 

(1) An indeterminate aggregate offering price or amount of debt securities is being registered and may from time to time be offered at indeterminate prices.
(2) The Registrants have elected to rely on Rule 456(b) and Rule 457(r) under the Securities Act, as amended, to defer payment of the registration fee.
(3) Any debt securities offered will be unconditionally guaranteed, on a joint and several basis, by certain subsidiaries on a senior unsecured basis. No separate consideration will be paid in respect of these guarantees. See inside facing page for the registrant guarantors.
(4) Pursuant to Rule 457(n) under the Securities Act, no registration fee is required with respect to the guarantees.


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Table of Additional Registrants

 

Name

 

State or Other

Jurisdiction of Incorporation

 

I.R.S. Employer

Identification No.

Delhaize America, Inc. (1)

  North Carolina   56-0660192

Food Lion, LLC (1)

  North Carolina   56-2173154

Hannaford Bros. Co. (2)

  Maine   01-0085930

Kash n’ Karry Food Stores, Inc. (3)

  Delaware   95-4161591

FL Food Lion, Inc. (1)

  Florida   56-2051565

Risk Management Services, Inc. (1)

  North Carolina   55-0660192

Hannbro Company (4)

  Maine   01-0531895

Martin’s Foods of South Burlington, Inc. (4)

  Vermont   03-0222879

Shop ‘n Save-Mass., Inc. (4)

  Massachusetts   04-3022931

Hannaford Procurement Corp. (4)

  Maine   01-0512080

Boney Wilson & Sons, Inc. (4)

  North Carolina   56-0709778

J.H. Harvey Co., LLC (1)

  Georgia   05-0582869

Hannaford Licensing Corp. (4)

  Maine   01-0512079

Victory Distributors, Inc. (4)

  Massachusetts   04-2440100

 

(1) The address and telephone number of the principal executive offices of these registrants are P.O. Box 1330, 2110 Executive Drive, Salisbury, North Carolina 28145-1330, (704) 633-8250.

 

(2) The address and telephone number of the principal executive offices of this registrant are 145 Pleasant Hill Road, Scarborough, Maine 04074, (207) 883-2911.

 

(3) The address and telephone number of the principal executive offices of this registrant are 3801 Sugar Palm Drive, Tampa Florida 33619, (813) 620-1139.

 

(4) The address and telephone number of the principal executive offices of these registrants are 145 Pleasant Hill Road, Scarborough, Maine 04074, (207) 885-3071.

 

* This registration statement comprises a filing on Form F-3 with respect to the securities of Etablissements Delhaize Frères et Cie “Le Lion” (Groupe Delhaize) and a filing on Form S-3 with respect to the securities of all other registrants.

 

 

 


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PROSPECTUS

LOGO

Debt Securities

We may from time to time offer to sell, in one or more classes or series, and in amounts, at prices and on terms to be set forth in one or more supplements to this prospectus, our debt securities.

The debt securities that we may issue may consist of debentures, notes or other types of debt. We will provide specific terms of these securities in supplements to this prospectus. You should read this prospectus and any supplement carefully before you invest.

The debt securities that we may issue will benefit from the Cross Guarantee Agreement among our company, Delhaize America and substantially all of Delhaize America’s subsidiaries. See “Description of Guarantees—Cross Guarantee Agreement.”

Investing in the debt securities involves risks. See “Risk Factors” beginning on page 6.

Neither the Securities and Exchange Commission, any state securities commission nor any non-U.S. securities authority has approved or disapproved of these securities or determined that this prospectus is accurate or complete. Any representation to the contrary is a criminal offense.

The date of this prospectus is January 27, 2009.


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You should rely only on the information contained in this prospectus or to which we have referred you. We have not authorized anyone to provide you with information that is different. This prospectus may only be used where it is legal to sell these securities and may only be used for the purposes for which it has been published. The information in this prospectus may only be accurate on the date of this prospectus.

TABLE OF CONTENTS

 

     Page

About this Prospectus

   1

Where You Can Find More Information

   2

Special Note Regarding Forward-Looking Statements

   4

Our Company

   5

Risk Factors

   6

Ratio of Earnings to Fixed Charges

   7

Use of Proceeds

   8

Description of Debt Securities

   9

Description of Guarantees

   26

Book-Entry, Form, Clearance and Settlement

   29

Tax Considerations

   31

ERISA Considerations

   39

Plan of Distribution

   40

Enforcement of Civil Liabilities

   41

Legal Matters

   42

Experts

   42

 

i


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ABOUT THIS PROSPECTUS

References to “Delhaize Group” and to “our company”, “we”, “us” and “our” in this prospectus are to Delhaize Group and its consolidated subsidiaries, unless the context otherwise requires. References to “Delhaize America” in this prospectus are to Delhaize America, Inc.

This prospectus is part of a registration statement that we filed with the Securities and Exchange Commission (the “SEC”) utilizing a “shelf” registration process. Under this shelf registration process, we may sell any combination of the securities described in this prospectus in one or more offerings in amounts and with prices and other terms to be determined. This prospectus provides you with a general description of the securities we may offer. Each time we sell securities, we will provide a prospectus supplement that will contain specific information about the terms of that offering. The prospectus supplement may also add, update or change information contained in this prospectus. You should read both this prospectus and any prospectus supplement together with additional information described under the next heading “Where You Can Find More Information.” If the terms of your debt securities vary between the prospectus supplement and this prospectus, you should rely on the different information in the prospectus supplement.

The information set out in relation to sections of this prospectus describing clearing and settlement arrangements, including the section entitled “Book-Entry, Form, Clearance and Settlement”, is subject to any change or reinterpretation of the rules, regulations and procedures of The Depository Trust Company or its nominee (“DTC”), Euroclear Bank SA/NV (“Euroclear”) or Clearstream Banking, société anonyme (“Clearstream”) currently in effect. While we accept responsibility for accurately summarizing the information concerning DTC, Euroclear and Clearstream, we accept no other responsibility in respect of such information. In addition, the exhibits to the registration statement and the documents we incorporate by reference contain the full text of certain contracts and other important documents summarized in this prospectus. Since these summaries may not contain all the information that you may find important in deciding whether to purchase securities we may offer, you should review the full text of those documents. All such summaries are qualified in their entirety by such reference. Copies of documents referred to herein will be made available to prospective investors upon request to us.

 

1


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WHERE YOU CAN FIND MORE INFORMATION

We are subject to the reporting requirements of the U.S. Securities Exchange Act of 1934 (the “Exchange Act”), applicable to a foreign private issuer and file periodic reports and other information with the SEC. This information may be read and copied at the Public Reference Room of the SEC at 100 F Street, N.E., Washington, D.C. 20549. Information regarding the operation of the Public Reference Room may be obtained by calling the SEC at 1-800-SEC-0330. The material may also be accessed electronically by means of the SEC’s home page on the Internet at http://www.sec.gov.

Our ordinary shares are listed under the symbol “DELB” on the regulated market Eurolist by Euronext Brussels. Our American Depositary Shares, referred to as ADSs, evidenced by American Depositary Receipts, referred to as ADRs, each representing one ordinary share, are listed on the New York Stock Exchange under the symbol “DEG.” You can consult reports and other information about us that we have filed pursuant to the rules of the New York Stock Exchange at such exchange.

The SEC allows us to incorporate by reference the information we file with them, which means that:

 

   

incorporated documents are considered part of this prospectus;

 

   

we can disclose important information to you by referring to those documents; and

 

   

information that we file with the SEC in the future and incorporate by reference herein will automatically update and supersede information in this prospectus and information previously incorporated by reference herein.

The information that we incorporate by reference is an important part of this prospectus.

Each document incorporated by reference is current only as of the date of such document, and the incorporation by reference of such documents shall not create any implication that there has been no change in the affairs of Delhaize Group since the date thereof or that the information contained therein is current as of any time subsequent to its date. Any statement contained in such incorporated documents shall be deemed to be modified or superseded for the purpose of this prospectus to the extent that a subsequent statement contained in another document we incorporate by reference at a later date modifies or supersedes that statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this prospectus.

We incorporate by reference the documents listed below:

 

   

our Annual Report on Form 20–F for the year ended December 31, 2007 filed with the SEC on June 27, 2008;

 

   

our report on Form 6-K/A furnished to the SEC on January 27, 2009 (relating to our results for the nine months ended September 30, 2008) and our report on Form 6-K furnished to the SEC on January 20, 2009 (relating to our revenues for the three months and full year ended on December 31, 2008), except in each case for references therein to any non-GAAP financial measure as such term is defined in Regulation G under the Exchange Act;

 

   

any future annual reports that we may file on Form 20-F prior to the termination of any offering contemplated by this prospectus; and

 

   

any future reports on Form 6-K (or portions thereof) that we indicate are incorporated by reference into this prospectus.

 

2


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You can obtain copies of any of the documents incorporated by reference from us or the SEC. Documents incorporated by reference are available without charge, excluding all exhibits unless an exhibit has been specifically incorporated by reference herein. You may obtain Delhaize Group documents incorporated by reference herein, at no cost, by requesting them in writing or by telephone at the following address and telephone number:

Delhaize Group

Attention: Investor Relations

Square Marie Curie 40

1070 Brussels

Belgium

011-32-2-412-21-51

 

3


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SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS

This prospectus and any prospectus supplement and the documents incorporated by reference into this prospectus and any prospectus supplement contain both historical and forward-looking statements. All statements other than statements of historical fact are, or may be deemed to be, forward-looking statements within the meaning of the U.S. Private Securities Litigation Reform Act of 1995. These forward-looking statements are not based on historical facts, but rather reflect our current expectations concerning future results and events. These forward-looking statements generally can be identified by the use of statements that include phrases such as “believe”, “expect”, “anticipate”, “intend”, “plan”, “foresee”, “likely”, “will” or other similar words or phrases. Similarly, statements that describe our objectives, plans or goals are or may be forward-looking statements. These forward-looking statements involve known and unknown risks, uncertainties and other factors which may cause our actual results, performance or achievements to be different from any future results, performance and achievements expressed or implied by these statements. You should review carefully all information, including the financial statements and the notes to the financial statements, included or incorporated by reference into this prospectus and any prospectus supplement.

In addition to the risk factors described below or in any prospectus supplement under the heading “Risk Factors”, the following important factors could affect future results, causing these results to differ materially from those expressed in our forward-looking statements:

 

   

changes in the general economy or in the primary markets of our company;

 

   

changes in consumer spending;

 

   

competitive factors;

 

   

the nature and extent of continued consolidation in the supermarket industry;

 

   

adverse determination with respect to litigation or other claims;

 

   

inability to develop new stores or to remodel stores as rapidly as planned;

 

   

stability of product costs;

 

   

supply or quality control problems with vendors;

 

   

the resolution of uncertain tax positions;

 

   

the ability to achieve satisfactory operating results in all geographic areas where we operate;

 

   

labor costs, including benefit plan costs and severance payments, or labor disputes that may arise from time to time;

 

   

legislative, regulatory, tax, accounting or judicial developments;

 

   

the cost and stability of fuel, energy and other power sources;

 

   

adverse developments with regard to food and drug safety and quality issues or concerns that may arise;

 

   

loss of a key member of senior management;

 

   

data security or other information technology issues that may arise;

 

   

adverse weather conditions; and

 

   

the availability and terms of financing, including interest rates and our ability to issue debt or to borrow under our lines of credit as a result of current conditions in the financial markets.

These factors and the other risk factors described in this prospectus or in any prospectus supplement or incorporated by reference in this prospectus or in any prospectus supplement are not necessarily all of the important factors that could cause actual results to differ materially from those expressed in any of our forward-looking statements. Other unknown or unpredictable factors also could harm our future results. The forward-looking statements included in this prospectus are made only as of the date of this prospectus and we cannot assure you that projected results or events will be achieved.

 

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OUR COMPANY

We are a food retailer headquartered in Belgium that operates in seven countries and on three continents—North America, Europe and Asia. At the end of 2008, our sales network, which includes directly operated, affiliated and franchised stores, consisted of 2,673 stores. Our primary store format consists of food retail supermarkets, which represent approximately 95% of our sales network by number of stores. Our sales network also includes other store formats such as limited-surface proximity stores and specialty stores that sell pet products. We engage in food retailing, food wholesaling to stores in our sales network and non-food retailing of pet products, health and beauty products, prescriptions and other household and personal products.

Delhaize Group SA’s principal executive offices are located at Square Marie Curie 40, 1070 Brussels, Belgium. Our telephone number at that location is +32 2 412 22 11. Our Internet address is www.delhaizegroup.com. The information on our website is not a part of this prospectus.

 

5


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RISK FACTORS

You should carefully consider the specific risks set forth under the caption “Risk Factors” in any applicable prospectus supplement and under the caption “Risk Factors” in our most recent Annual Report on Form 20-F, incorporated into this prospectus by reference, as updated by our subsequent filings or submissions under the Exchange Act. You should consider carefully those risk factors together with all of the other information included and incorporated by reference in this prospectus before you decide to purchase our securities.

 

6


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RATIO OF EARNINGS TO FIXED CHARGES

The following table contains our consolidated ratio of earnings to fixed charges for the periods indicated. You should read these ratios in connection with our consolidated financial statements, including the notes to those statements, incorporated by reference in this prospectus.

 

    Nine Months
Ended
September 30,
   Year Ended December 31,

Other Data

  2008
EUR
   2007
EUR
   2007
EUR
   2006
EUR
   2005
EUR
   2004
EUR
   2003
EUR

Consolidated Ratio of Earnings to Fixed Charges (1)

  3.21x    2.61x    2.81x    2.79x    2.53x    2.47x    2.23x

 

(1) See Exhibit 12.1 for the calculation of the ratio of earnings to fixed charges.

 

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USE OF PROCEEDS

We intend to use the net proceeds we receive from the issuance of the debt securities offered under this prospectus for general corporate purposes, unless otherwise specified in the prospectus supplement relating to a specific issue of debt securities. General corporate purposes may include, but are not limited to, financing and operating activities, capital expenditures, acquisitions, maintenance of our assets and refinancing our existing indebtedness.

 

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DESCRIPTION OF DEBT SECURITIES

This prospectus describes certain general terms and provisions of our debt securities. When we offer to sell a particular series of debt securities, we will describe the specific terms of the series in a supplement to this prospectus. We will also indicate in the supplement whether the general terms and provisions described in this prospectus apply to a particular series of debt securities. Unless otherwise specified in a supplement to this prospectus, the debt securities will be our direct, unsecured obligations and will rank equally with all of our other unsecured and unsubordinated indebtedness. Definitions of certain terms used in this Description of Debt Securities may be found under the heading “Certain Definitions”.

We will issue debt securities under an indenture, as amended, between the Issuer and The Bank of New York Mellon, as trustee or another trustee identified in the prospectus supplement. The indenture contains provisions which define the rights of Holders. In addition, the indenture governs the obligations of the Issuer under the debt securities. The terms of the debt securities include those stated in the indenture and those made part of the indenture by reference to the Trust Indenture Act (as defined below). Upon the effectiveness of a registration statement with respect to the debt securities, the indenture will be qualified under the Trust Indenture Act, and the terms of the debt securities will include those made part of the indenture by reference to the Trust Indenture Act.

The following description is meant to be only a summary of certain provisions of the indenture and the deposit agreement between our company and The Bank of New York Mellon, as CDI Depositary for debt securities (the “Deposit Agreement”). It does not restate the terms of the indenture or the Deposit Agreement in their entirety. We have filed the form of indenture and Deposit Agreement with the SEC as exhibits to this registration statement. You are urged to carefully read the indenture and the Deposit Agreement as those documents, and not this description, govern your rights as Holders of the debt securities.

In this summary description of the debt securities, unless we state otherwise or the context clearly indicates otherwise, all references to “Issuer” mean Delhaize Brothers and Co. “The Lion” (Delhaize Group).

Overview of the Debt Securities

Unless we inform you otherwise in the applicable prospectus supplement, any series of debt securities will, upon issuance:

 

   

be senior unsecured obligations of the Issuer;

 

   

rank equally in right of payment with all existing and future senior unsecured Indebtedness of the Issuer;

 

   

be senior in right of payment to all existing and future Subordinated Obligations of the Issuer;

 

   

be effectively subordinated to all existing and future secured Indebtedness of the Issuer and its Subsidiaries to the extent of the value of the assets securing such Indebtedness (other than to the extent that such assets also secure the debt securities on an equal and ratable basis);

 

   

benefit from the Cross Guarantee Agreement among the Issuer, Delhaize America, which is a Subsidiary of the Issuer, and substantially all of Delhaize America’s Subsidiaries; and

 

   

be effectively subordinated to all existing and future Indebtedness of Subsidiaries of the Issuer that are not Cross Guarantors.

Terms

The prospectus supplement relating to any series of debt securities being offered will include specific terms relating to the offering. These terms will include some or all of the following:

 

   

the total principal amount of the debt securities of the series offered and any limit on the future issuance of additional securities of that series;

 

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the date or dates on which the principal of and any premium on the debt securities will be payable or any formula or other method by which such date or dates will be determined;

 

   

any interest rate, which may be fixed or variable, the date from which interest will accrue, interest payment dates and record dates for interest payments;

 

   

the place or places where payments on the debt securities will be payable and any change regarding agents;

 

   

any changes or additions to provisions for optional or mandatory redemption, extension, purchase or early repayment;

 

   

the minimum denominations of the debt securities;

 

   

if other than United States dollars, the currency in which principal, premium, if any, and interest will be paid;

 

   

if the amount of payments of principal, premium; if any, or interest on the debt securities may be determined by reference to a formula or an index, the manner in which that amount will be determined;

 

   

if other than the entire principal amount, the portion of the debt securities that would be payable upon acceleration of the maturity of the debt securities;

 

   

the form of debt securities, the depositaries to be used for global securities, the legends to be placed on debt securities and the circumstances in which a global security may be exchanged for certified (physical) securities;

 

   

the terms of conversion or exchange, if applicable;

 

   

any addition to or change in the covenants or events of default to which we will be subject with respect to the debt securities;

 

   

any changes or additions to circumstances in which any additional amounts with respect to the debt securities will be payable;

 

   

any changes to our right to defease the debt securities; and

 

   

any other terms of the debt securities not inconsistent with the indenture.

The Issuer may sell the debt securities at a discount, which may be substantial, below their stated principal amount. These debt securities may bear no interest or interest at a rate that at the time of issuance is below market rates.

If material to a particular series of securities and not already described in this prospectus, we will describe in the prospectus supplement the restrictions, elections, tax consequences, specific terms and other information relating to those debt securities.

Cross Guarantee Agreement

The Issuer has entered into a Cross Guarantee Agreement, dated as of May 21, 2007 (the “Cross Guarantee Agreement”), with Delhaize America and substantially all of Delhaize America’s Subsidiaries, under which each company party to the agreement guarantees fully and unconditionally, jointly and severally, Issuer existing financial indebtedness, Delhaize America existing financial indebtedness, specific financial indebtedness of two European Subsidiaries of the Issuer and all future unsubordinated financial indebtedness of the parties to the agreement. The parties to the Cross Guarantee Agreement (the “Cross Guarantors”) on the date of this prospectus were the Issuer, Delhaize America, Inc., Food Lion, LLC, Hannaford Bros. Co., Kash N’ Karry Food Stores, Inc., FL Food Lion, Inc., Risk Management Services, Inc., Hannbro Company, Martin’s Foods of South Burlington, Inc., Shop’N Save-Mass., Inc., Hannaford Procurement Corp., Boney Wilson & Sons, Inc., J.H. Harvey Co., LLC, Hannaford Licensing Corp., and Victory Distributors, Inc.

 

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For more information on the Cross Guarantee Agreement, see “Description of Guarantees—Cross Guarantee Agreement”. Information with respect to the Subsidiaries of the Issuer that are Cross Guarantors is included in the notes to the Issuer’s consolidated annual financial statements incorporated by reference in this prospectus.

In the event of a bankruptcy, liquidation or reorganization of any Subsidiary of the Issuer that is not a Cross Guarantor, that Subsidiary will pay the holders of its debt and its trade creditors before it will be able to distribute any of its assets to the Issuer, after which distribution the assets would be available to support the Issuer’s obligations under its debt securities or the obligations of Cross Guarantors under the Cross Guarantee Agreement. Holders of existing and future secured indebtedness of the Cross Guarantors will have claims with respect to the assets constituting collateral for such secured indebtedness that are superior to the claims under the Cross Guarantee Agreement.

Certain Releases of Guarantees

Under the terms and conditions of the indenture and the Cross Guarantee Agreement, unless we inform you otherwise in the applicable prospectus supplement, for so long as any debt security issued under the indenture remains outstanding, all guarantees made by a Cross Guarantor under the Cross Guarantee Agreement in respect to the debt securities and the indenture will be released and discharged, upon a sale, exchange, transfer or other disposition in a transaction or series of transactions over a twelve-month period (any such sale, exchange, transfer or other disposition in a transaction or series of transactions over a twelve-month period, a “Disposition”) to any Person that is not Delhaize Group or a Subsidiary of Delhaize Group of all of the capital stock, or all or substantially all of the assets, of such Cross Guarantor, if as a result of which such Cross Guarantor ceases to be a Subsidiary of Delhaize Group; provided, that such Disposition otherwise complies with the terms and conditions of the indenture. With respect to a Disposition of such capital stock of, or a Disposition of such assets of, a Cross Guarantor that is a Major Subsidiary, to the extent the Disposition does not constitute a Change of Control (as defined in the applicable prospectus supplement), the Issuer has covenanted and agreed in the indenture that no Cross Guarantor that is a Major Subsidiary shall be released under the Cross Guarantee Agreement in respect to the debt securities and such indenture if after giving effect to such Disposition, Moody’s and Standard & Poor’s shall lower the credit rating of debt securities of any series directly as a result of such Disposition. “Major Subsidiary” means a Subsidiary, the assets of which represent greater than 25% of the assets of the Issuer and the Issuer’s Subsidiaries on a consolidated basis, according to the financial statements for its own most recently completed fiscal year.

Merger, Consolidation or Transfer of All or Substantially All Assets

Under the terms of the indenture, the Issuer generally would be permitted to merge or consolidate with another company and would also be permitted to transfer or lease all or substantially all of its assets to another person. However, unless we inform you otherwise in the applicable prospectus supplement, the Issuer may not take any of these actions unless all of the following conditions are met:

 

  (1) the person with which the Issuer would merge or consolidate or to which the Issuer would transfer or lease all or substantially all of its assets must assume all of the Issuer’s obligations with respect to the debt securities, and, in each case, the indenture;

 

  (2) the merger, consolidation or transfer or lease of assets must not cause an Event of Default (as defined below), including any event that would be an Event of Default if the notice or time requirements were disregarded; and

 

  (3) the Issuer must deliver specified certificates and documents to the Trustee.

 

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Payments of Additional Amounts

All payments made under or with respect to the debt securities of any series shall be made free and clear of, and without withholding or deduction for or on account of, any present or future tax, duty, levy, impost, assessment or other governmental charge (including related penalties, interest and other liabilities) (hereinafter, “Taxes”) imposed or levied by or on behalf of the government of the Kingdom of Belgium or any political subdivision or any authority or agency therein or thereof having power to tax, or any other jurisdiction in which the Issuer is organized or is otherwise resident for tax purposes, or any jurisdiction from or through which payment is made (each, a “Relevant Taxing Jurisdiction”), unless the Issuer is required to withhold or deduct Taxes by law or by the interpretation or administration thereof.

Unless we inform you otherwise in the applicable prospectus supplement, if the Issuer is so required to withhold or deduct any amount for or on account of Taxes imposed by a Relevant Taxing Jurisdiction from any payment made under or with respect to the debt securities of such series, the Issuer shall pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by the Holders and beneficial owners of the debt securities of such series (including Additional Amounts) after such withholding or deduction will not be less than the amount the Holders and beneficial owners of the debt securities of such series would have received if such Taxes had not been withheld or deducted; provided, however, that the foregoing obligation to pay Additional Amounts does not apply to:

 

  (1) any Taxes which would not have been imposed but for (a) the existence of any present or former connection between such Holder (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of a power over, such Holder, if such Holder is an estate, trust, partnership, limited liability company or corporation) and the Relevant Taxing Jurisdiction including, without limitation, such Holder (or such fiduciary, settlor, beneficiary, member, shareholder or possessor) being or having been a citizen or resident thereof or being or having been present or engaged in trade or business therein or having or having had a permanent establishment therein or (b) the presentation of a note (where presentation is required) for payment on a date more than 30 days after (x) the date on which such payment became due and payable or (y) the date on which payment thereof is duly provided for, whichever occurs later;

 

  (2) any estate, inheritance, gift, sales, excise, transfer, personal property tax or similar tax, assessment or other governmental charge;

 

  (3) any Taxes which are payable otherwise than by withholding from payments of (or in respect of) principal of, or any interest on, the debt securities of such series;

 

  (4) any Taxes that are imposed or withheld by reason of the failure to comply by the Holder or the beneficial owner of a debt security of such series with a request by the Issuer addressed to the Holder or such beneficial owner (A) to provide information concerning the nationality, residence or identity of the Holder or such beneficial owner or (B) to make any declaration or other similar claim or satisfy any information or reporting requirement, which, in the case of (A) or (B), is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such Taxes;

 

  (5) any Taxes that are required to be withheld or deducted on a payment to an individual pursuant to European Union Council Directive 2003/48/EC regarding the taxation of savings income or any law implementing or complying with, or introduced in order to conform to, such Directive;

 

  (6) any Taxes that are required to be withheld or deducted on a payment to or on behalf of a Holder, who, at the time of such payment or withholding, was not an Eligible Investor for reasons within such Holder’s control. An Eligible Investor for the purposes of this section means any investor which is referred to in Article 4 of the Royal Decree of May 26, 1994 on the deduction of withholding tax and which holds the debt securities of such series in an exempt securities account in the X/N System; or

 

  (7) any combination of items (1), (2), (3), (4), (5) and (6) above.

 

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The Issuer also will not be required to pay Additional Amounts:

 

  (a) if the payment could have been made without deduction or withholding if the beneficiary of the payment had presented the debt security of such series for payment within 30 days after the date on which such payment or such debt security became due and payable or the date on which payment thereof is duly provided for, whichever is later (except to the extent that the Holders or beneficial owners of the debt securities of such series would have been entitled to Additional Amounts had the debt security of such series been presented on the last day of the 30-day period);

 

  (b) with respect to any payment of principal of (or premium, if any, on) or interest on such debt security to any Holder who is a fiduciary or partnership or any Person other than the sole beneficial owner of such payment, to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such a partnership or the beneficial owner of such payment would not have been entitled to the Additional Amounts had such beneficiary, settlor, member or beneficial owner been the actual Holder of such debt security; or

 

  (c) if the debt security of such series is presented for payment by or on behalf of a Holder or beneficial owner who would be able to avoid a withholding or deduction by presenting the relevant debt security to another paying agent in a Member State.

If the Issuer will be obligated to pay Additional Amounts with respect to any payment under or with respect to the debt securities of any series, the Issuer will deliver to the Trustee at least 30 days prior to the date of that payment (unless the obligation to pay Additional Amounts arises after the 30th day prior to that payment date, in which case the Issuer shall notify the Trustee promptly thereafter) an Officers’ Certificate stating the fact that Additional Amounts will be payable and the amount so payable. The Officers’ Certificate must also set forth any other information necessary to enable the paying agent to pay Additional Amounts to Holders of the debt securities of such series on the relevant payment date.

Upon request, the Issuer will provide the Trustee with official receipts or other documentation satisfactory to the Trustee evidencing the payment of the Taxes with respect to which Additional Amounts are paid.

Whenever in this “Description of Debt Securities” there is mentioned, in any context:

 

   

the payment of principal;

 

   

purchase prices in connection with a purchase of debt securities of any series;

 

   

interest; or

 

   

any other amount payable on or with respect to any of the debt securities of any series,

that reference shall be deemed to include payment of Additional Amounts provided for in this section to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.

The Issuer will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in any jurisdiction from the execution, delivery, enforcement or registration of the debt securities of any series, the indenture or any other related document or instrument, or the receipt of any payments with respect to the debt securities of any series, excluding taxes, charges or similar levies imposed by any jurisdiction outside of Belgium, the jurisdiction of incorporation of any successor to the Issuer or any jurisdiction in which a paying agent is located, and the Issuer will agree to indemnify the Holders or the Trustee for any such taxes paid by the Holders or the Trustee.

The term “Holder” is defined below under the heading “Certain Definitions”. The term “beneficial owner of the debt securities” means the true owner of the debt securities, even though title to the debt securities may be registered in another name.

 

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The preceding provisions will survive any termination, defeasance or discharge of the indenture and shall apply mutatis mutandis to any jurisdiction in which any successor to the Issuer is organized or any political subdivision or taxing authority or agency thereof or therein.

Optional Redemption for Tax Reasons

Unless we inform you otherwise in the applicable prospectus supplement, the Issuer may, at its option, redeem the debt securities of any series in whole, but not in part, at any time upon giving not less than 30 nor more than 60 days’ notice to the Holders of the debt securities of such series (which notice shall be irrevocable), at a redemption price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon, if any, to the redemption date (a “Tax Redemption Date”) and all Additional Amounts, if any, that will become due on the Tax Redemption Date as a result of such redemption or otherwise (subject, if applicable, to the right of the Holders of the debt securities of such series of record on the relevant record date to receive interest due on the relevant interest payment date), if the Issuer determines that (1) on the occasion of the next payment due in respect of the debt securities of such series, it would be required to pay Additional Amounts and (2) the payment obligation cannot be avoided by the Issuer taking reasonable measures available to it (including making payment through a paying agent located in another jurisdiction), as a result of:

 

  (A) any change in, or amendment to, the laws or treaties (or any regulations, protocols or rulings promulgated thereunder) of Belgium or any other Relevant Taxing Jurisdiction affecting taxation, which change or amendment becomes effective on or after the date of first issuance for such series of debt securities;

 

  (B) any change in position regarding the application, administration or interpretation of such laws, treaties, regulations or rulings (including a holding, judgment or order by a court of competent jurisdiction), which change, amendment, application or interpretation becomes effective on or after the date of first issuance for such series of debt securities; or

 

  (C) the issuance of definitive debt securities of such series due to:

 

  (i) the National Bank of Belgium, or NBB, ceasing to operate the X/N System and a successor is not able to be appointed by the Issuer within 15 days of the notification;

 

  (ii) the notification by each of Euroclear and Clearstream that it is unwilling or unable to continue to act as, or ceases to be, a clearing agency in respect of the debt securities of such series and a successor is not able to be appointed by the Issuer within 15 days of such notification;

 

  (iii) DTC notifies the Issuer that it is unwilling or unable to continue to act as depository or ceases to be a clearing agency registered under the Exchange Act and, in either case, a successor depository is not appointed by the CDI depositary at the Issuer’s request within 15 days of such notification; or

 

  (iv) if the CDI depositary is at any time unwilling or unable to continue as CDI depositary and a successor CDI depositary is not appointed by the Issuer within 15 days of such notification.

See “Book-Entry, Form, Clearance and Settlement”.

The notice of redemption may not be given earlier than 120 days prior to the earliest date on which the Issuer would be obligated to make a payment or withholding if a payment in respect of the debt securities of such series were then due. Prior to the publication or, where relevant, mailing of any notice of redemption of the debt securities of such series pursuant to the foregoing, the Issuer will deliver to the Trustee an Officers’ Certificate and an opinion of an independent legal counsel of internationally recognized standing to the effect that the circumstances referred to above exist. The Trustee shall accept, and shall be entitled to rely upon, the Officers’ Certificate and opinion as sufficient evidence of the satisfaction of the conditions precedent described above, in which event it shall be conclusive and binding on the Holders of the debt securities of such series.

 

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Selection

If the Issuer partially redeems the debt securities of any series, the Trustee will select the debt securities to be redeemed on a pro rata basis, by lot or by such other method as the Trustee shall deem to be fair and appropriate.

No debt security of any series in aggregate principal amount of $2,000 or less will be redeemed in part. If the Issuer redeems any debt security in part only, the notice of redemption relating to such debt security shall state the portion of the principal amount thereof to be redeemed. On and after the redemption date, interest will cease to accrue on debt securities or portions thereof called for redemption so long as there has been deposited with any paying agent funds sufficient to pay any accrued and unpaid interest, if any, on the debt securities to be redeemed.

Ranking

The debt securities will be senior unsecured indebtedness of the Issuer, will rank equally in right of payment with all existing and future senior unsecured Indebtedness of the Issuer and will be senior in right of payment to all existing and future Subordinated Obligations of the Issuer. The debt securities also will be effectively subordinated to any secured Indebtedness of the Issuer and its Subsidiaries to the extent of the value of the assets securing such indebtedness (other than to the extent that such assets also secure the debt securities on an equal and ratable basis).

The ability of the Issuer to service its Indebtedness, including the debt securities, is dependent in part upon the earnings of its Subsidiaries and the ability of those Subsidiaries to distribute those earnings as dividends, loans or other payments to the Issuer. In particular, the ability of its Subsidiaries to transfer funds to the Issuer (in the form of cash dividends, loans, advances or otherwise) may be limited by financial assistance rules, corporate benefit laws, banking or other regulations. For example, under company law, the Issuer’s Subsidiaries are generally prohibited from paying dividends except out of profits legally available for distribution. If these restrictions are applied to the Subsidiaries of the Issuer, then the Issuer would not be able to use the earnings of those Subsidiaries to make payments on the debt securities to the extent that such earnings cannot otherwise be paid lawfully to the Issuer (directly or through Subsidiaries of the Issuer).

The Issuer currently conducts part of its operations through its Subsidiaries. Creditors, including trade creditors, and preferred shareholders, if any, of such Subsidiaries generally will have priority with respect to the assets and earnings of such Subsidiaries over the claims of creditors of the Issuer, including Holders of the debt securities, except to the extent such Subsidiaries are Cross Guarantors. The debt securities, therefore, will be effectively subordinated to the claims of creditors, including trade creditors, and preferred shareholders, if any, of Subsidiaries of the Issuer, except to the extent such Subsidiaries are Cross Guarantors.

Reports by the Issuer

The Issuer, pursuant to Section 314(a) of the Trust Indenture Act, shall:

 

  (1) file with the Trustee, within 15 days after the Issuer has filed the same with the SEC, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the SEC may from time to time by rules and regulations prescribe) which the Issuer may be required to file with the SEC pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended; or, if the Issuer is not required to file information, documents or reports pursuant to either of said Sections, then it shall file with the Trustee, in accordance with rules and regulations prescribed from time to time by the SEC, such of the supplementary and periodic information, documents and reports which may be required pursuant to Section 13 of the Securities Exchange Act of 1934, as amended, in respect of a security listed and registered on a national securities exchange as may be prescribed from time to time in such rules and regulations;

 

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  (2) file with the Trustee and the SEC, in accordance with rules and regulations prescribed from time to time by the SEC such additional information, documents and reports with respect to compliance by the Issuer with the conditions and covenants of the indenture as may be required from time to time by such rules and regulations; and

 

  (3) transmit by mail to all holders of debt securities within 30 days after the filing thereof with the Trustee, in the manner and to the extent provided in Section 313(c) of the Trust Indenture Act, such summaries of any information, documents and reports required to be filed by the Issuer pursuant to paragraph (1) and (2) above as may be required by rules and regulations prescribed from time to time by the SEC.

Events of Default

Unless we inform you otherwise in the applicable prospectus supplement, each of the following is an event of default (an “Event of Default”) with respect to a particular series of debt securities:

 

  (1) a default for 30 days in any payment of interest on any debt security of such series issued under the indenture when due and payable;

 

  (2) a default in the payment of principal of any debt security of such series issued under the indenture at its Stated Maturity, upon required redemption or repurchase or otherwise;

 

  (3) the failure by any Cross Guarantor to perform any covenant set forth in the Cross Guarantee Agreement applicable to such Cross Guarantor or the repudiation by any Cross Guarantor of its obligations under its Cross Guarantee Agreement other than in compliance with the terms thereof, in each case for 30 days after the Issuer receives written notice from the Trustee, or the Cross Guarantee Agreement fails to be in full force and effect for any reason;

 

  (4) the failure by the Issuer for 30 days after it receives written notice from the Trustee to comply with any one or more of its obligations under the debt securities of such series (other than as specifically provided for otherwise in this summary of Events of Default);

 

  (5) default by the Issuer or any Material Subsidiary in the due payment of any other Indebtedness having a minimum aggregate amount of 2% of the Issuer’s Consolidated Capitalization (or its equivalent in any other freely convertible currency or currencies) of the Issuer or any Material Subsidiary or assumed by or guaranteed by the Issuer or any Material Subsidiary, and, provided, that any such default has not been cured within the period of grace contractually agreed upon or subsequently agreed to for such payment, or in the event that any such Indebtedness shall have become repayable before the due date thereof as a result of acceleration of maturity by reason of the occurrence of any event of default thereunder, unless in any such case such Indebtedness is contested in good faith (the “cross-acceleration provision”); provided, that if any such default is cured or waived or any such acceleration rescinded, or such Indebtedness is repaid, within a period of 10 days from the continuation of such default beyond the applicable grace period or the occurrence of such acceleration, as the case may be, such Event of Default and any consequential acceleration of the debt securities shall be automatically rescinded, so long as such rescission does not conflict with any judgment or decree;

 

  (6) if a court shall enter a decree or order for relief in respect of the Issuer or any Material Subsidiary in an involuntary case under any applicable bankruptcy, insolvency, or other similar law now or hereafter in effect (including the Belgian Bankruptcy Law of 8 August 1997 and the Belgian Law of 17 July 1997 on judicial composition (concordat judiciaire/gerechtelijk akoord)), or appointing a receiver, liquidator, sequestrator (or other similar official) of the Issuer or any Material Subsidiary or for any substantial part of any of their property, or ordering the winding up or liquidation of their affairs, and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days (the “bankruptcy provisions”);

 

  (7)

if the Issuer or any Material Subsidiary shall commence a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect (including the Belgian Bankruptcy Law of 8 August 1997 and the Belgian Law of 17 July 1997 on judicial composition (concordat judiciaire/gerechtelijk akoord)), or shall consent to the entry of an order for relief in an

 

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involuntary case under any such law, or shall consent to the appointment of or taking possession by a receiver, liquidator, sequestrator (or other similar official) of the Issuer or any Material Subsidiary or for any substantial part of any of their property, or shall make any general assignment for the benefit of creditors, or shall take any corporate action in furtherance of any of the foregoing (the “winding up provisions”); or

 

  (8) any other Event of Default provided with respect to debt securities of such series and described in the applicable prospectus supplement.

If an Event of Default with respect to a particular series of debt securities (other than as a result of the bankruptcy provisions or the winding up provisions) occurs and is continuing, the Trustee or the Holders of at least 25% in aggregate principal amount of the then outstanding debt securities of such series issued under the indenture governing such debt securities by notice to the Issuer may declare the principal of and accrued but unpaid interest on all the debt securities of each series issued under the indenture to be due and payable. Upon such a declaration, such principal and interest will be due and payable immediately. If an Event of Default with respect to any series of debt securities occurs as a result of the bankruptcy provisions or the winding up provisions, the unpaid principal of and interest on all the debt securities of each series will become immediately due and payable without any declaration or other act on the part of the Trustee or any Holders. Under certain circumstances, the Holders of a majority in aggregate principal amount of the then outstanding debt securities of the relevant series may rescind any such acceleration with respect to the debt securities issued under the indenture governing such debt securities and its consequences. No such rescission shall affect any subsequent default with respect to the debt securities of such series or impair any rights consequent thereto.

Subject to the provisions of the indenture relating to the duties of the Trustee, in case an Event of Default occurs and is continuing, the Trustee will be under no obligation to exercise any of the rights or powers under the indenture at the request or direction of any of the Holders of the debt securities unless the Trustee has been offered an indemnity or security satisfactory to the Trustee against any loss, liability or expense. Except to enforce the right to receive payment of principal, premium (if any) or interest when due, no Holder of any debt securities of a particular series may pursue any remedy with respect to the debt securities of such series or the indenture unless:

 

  (1) such Holder has previously given the Trustee notice that an Event of Default is continuing with respect to such series;

 

  (2) Holders of at least 25% in aggregate principal amount of the then outstanding debt securities of such series have requested the Trustee in writing to pursue the remedy;

 

  (3) the Trustee has been offered security or indemnity satisfactory to the Trustee against any loss, liability or expense;

 

  (4) the Trustee has not complied with such request within 60 days after the receipt of the request and the offer of security or indemnity satisfactory to the Trustee; and

 

  (5) the Holders of a majority in aggregate principal amount of the then outstanding debt securities of such series have not given the Trustee a direction inconsistent with such request within such 60-day period.

Subject to certain restrictions, the Holders of a majority in aggregate outstanding principal amount of the then outstanding debt securities of a particular series may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or of exercising any trust or power conferred on the Trustee with respect to such series. The Trustee, however, may refuse to follow any direction that the Trustee determines (after consultation with counsel) conflicts with law or the relevant indenture or that the Trustee determines is unduly prejudicial to the rights of any other Holder of such series or that may involve the Trustee in personal liability. Prior to taking any action under the relevant indenture, the Trustee will be entitled to indemnification satisfactory to it in its sole discretion against all losses and expenses caused by taking or not taking such action.

If a Default with respect to debt securities of any series occurs and is continuing and is known to the Trustee, the Trustee must transmit to each Holder of debt securities of such series notice of the Default within the earlier of 90 days after such Default occurs or 30 days after it is known to a Trust Officer or written notice of it is

 

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received by the Trustee. Except in the case of a Default in the payment of principal of, interest on or Additional Amounts in respect of any debt security of such series (including payments pursuant to the redemption provisions of such debt security), the Trustee may withhold notice if and so long as a committee of its Trust Officers in good faith determines that withholding notice is in the interests of the Holders of the debt securities of such series. In addition, the Issuer will be required to deliver to the Trustee, within 120 days after the end of each fiscal year, a certificate indicating whether the signers thereof know of any Default that occurred during the previous year. The Issuer will also be required to deliver to the Trustee, within 30 days after the occurrence thereof, written notice of any event which would constitute certain Events of Default, their status and what action the Issuer is taking or proposes to take in respect thereof.

Amendments and Waivers

Subject to certain exceptions, the indenture or the debt securities may be amended, supplemented or otherwise modified pursuant to a supplemental indenture, and any past default or compliance with certain provisions of such indenture or such debt securities may be waived, in each case only with the consent of the Holders of more than 50% in aggregate principal amount of the outstanding debt securities of each series affected by such supplemental indenture or such waiver, which consent may be obtained at a duly convened meeting of the Holders or otherwise.

Notwithstanding the foregoing, a supplemental indenture that has any of the following effects requires the unanimous vote of the Holders (either in person or by proxy) of all of the outstanding debt securities of each series affected by such decision in favor of such supplemental indenture at a duly convened meeting of the Holders:

 

  (1) reduce the principal amount of any debt security of such series or otherwise modify the conditions of payment of the principal amount of any debt security of such series;

 

  (2) reduce the stated rate of or extend the time for payment of interest on any debt security of such series, or otherwise modify the conditions of payment of interest on any debt security of such series;

 

  (3) extend the Stated Maturity of any debt security of such series;

 

  (4) reduce the premium payable upon the redemption of any debt security of such series or change the time at which any debt security of such series may be redeemed as described under “Description of the Notes—Optional Redemption” in the applicable prospectus supplement;

 

  (5) make any debt security of such series payable in any currency other than that stated in any debt security of such series;

 

  (6) impair the right of any Holder to receive payment of principal of, and interest on, any security of such series on or after the due dates therefor or to institute suit for the enforcement of any payment on or with respect to any debt security of such series; or

 

  (7) make any change in the amendment or waiver provisions set out above requiring the vote of every Holder.

Without the consent of any Holder, the Issuer, when authorized pursuant to a resolution of its Board of Directors, and the Trustee acting jointly may amend the indenture pursuant to a supplemental indenture to take any of the following actions:

 

  (1) establish the form and terms of any series of debt securities;

 

  (2) cure any ambiguity, omission, defect or inconsistency; provided that such amendment does not, in the opinion of the Trustee, adversely affect the rights of any Holder in any material respect;

 

  (3) provide for the assumption by a successor corporation of the obligations of the Issuer under the indenture;

 

  (4)

provide for uncertificated debt securities of any series in addition to or in place of certificated debt securities (provided, however, that the uncertificated debt securities are issued in registered form for

 

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purposes of Section 163(f) of the Code, or in a manner such that the uncertificated debt securities are described in Section 163(f)(2)(B) of the Code);

 

  (5) add to the covenants of the Issuer for the benefit of the Holders of all or any series (and if such covenants are to be for the benefit of less than all series of debt securities, such supplemental indenture must state that such covenants are expressly being included for the benefit of such series) of debt securities or to surrender any right or power conferred upon the Issuer or any of its subsidiaries;

 

  (6) make any change that does not adversely affect the rights of any Holder, subject to the provisions of the indenture;

 

  (7) provide for the issuance of additional debt securities; or

 

  (8) comply with any requirement of the SEC in connection with the qualification of the indenture under the Trust Indenture Act.

The indenture will contain provisions governing the conduct of meetings of the Holders. Among other things, these provisions will provide that (a) the Issuer or Holders of the debt securities of each affected series holding at least 20% in principal amount of the debt securities of such series outstanding will be permitted to request the Board of Directors or the auditor of the Issuer to call a meeting of the Holders to approve the supplemental indenture amending or modifying certain terms of the debt securities of such series or the indenture governing such debt securities, (b) the quorum requirement for such meeting will be the presence (either in person or by proxy) of Holders of the debt securities of each affected series holding at least 50% in principal amount of the debt securities of any series outstanding, the Holders of which have been convened to such meeting and (c) if a quorum is not present at the first meeting, a second meeting may be convened for the same purpose for which there is no quorum requirement. However, the percentage of Holders required to vote in favor of a decision for its approval shall in any event be as set out in the first two paragraphs of this section “Amendments and Waivers”.

No resolution of a meeting of the Holders which in the opinion of the Issuer relates to any of the matters listed in Article 568 of the Belgian Company Code shall be effective unless approved at a meeting of Holders complying in all respects with the requirements of Belgian law or, where the corresponding requirements of the indenture are more stringent, with the requirements of the indenture. Such matters include, among other things, modifying or suspending the date of maturity of the debt securities, extending the time for payment of interest on any debt security, reducing the rate of such interest or deciding urgent interim actions in the common interest of Holders.

After a supplemental indenture amending or modifying the terms of the debt securities or the indenture has been executed, the Issuer is required to mail to Holders of debt securities of any affected series a notice briefly describing such supplemental indenture. However, failure to give such notice to all such Holders, or any defect therein, will not impair or affect the validity of a supplemental indenture.

Acts by Holders of the Debt Securities

In determining whether the Holders of the required aggregate principal amount outstanding of the debt securities of any series have (a) concurred in any direction, waiver or consent, (b) voted in favor of a Required Resolution at a meeting of Holders or (c) are present or represented at a meeting of Holders, the debt securities of such series owned by the Issuer or by any Person directly or indirectly controlling or controlled by or under direct or indirect common control with the Issuer will be disregarded and deemed not to be outstanding.

Satisfaction and Discharge

The Issuer will be discharged from its obligations on a particular series of the debt securities if:

 

   

the Issuer pays the principal of, interest on and any Additional Amounts on all the debt securities of such series as and when the same shall have become due and payable;

 

   

all the debt securities of such series have been cancelled or delivered to the Trustee for cancellation; or

 

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all the debt securities of such series shall have become due and payable, or are by their terms to become due and payable within one year or are to be called for redemption within one year under arrangements satisfactory to the Trustee as trust funds solely for the benefit of Holders of debt securities of such series for the giving of notice of redemption and the Issuer irrevocably deposits with the Trustee the entire amount to be paid at maturity or upon redemption for principal, premium, Additional Amounts, if any, and liquidated damages, if any.

Upon delivery of an officers’ certificate and legal opinion reasonably satisfactory to the Trustee, the Trustee shall execute proper instruments acknowledging such satisfaction of and discharging the indenture with respect to all the debt securities of such series.

Legal Defeasance and Covenant Defeasance

Unless we inform you otherwise in the applicable prospectus supplement, the Issuer may at any time terminate all its obligations under a particular series of the debt securities and the indenture (“legal defeasance”), except for certain obligations, including those respecting the defeasance trust and obligations (i) to register the transfer or exchange of the debt securities of such series, (ii) to replace mutilated, destroyed, lost or stolen debt securities and (iii) to maintain a registrar and paying agent in respect of the debt securities of such series.

In addition, the Issuer may at any time terminate:

 

  (1) its obligations described under any covenants set out in the applicable prospectus supplement and

 

  (2) the operation of the cross-acceleration provision, the bankruptcy provisions with respect to Material Subsidiaries and the winding up provisions with respect to Material Subsidiaries (“covenant defeasance”).

The Issuer may exercise its legal defeasance option notwithstanding its prior exercise of its covenant defeasance option with respect to such series. If the Issuer exercises its legal defeasance option, payment of the debt securities may not be accelerated because of an Event of Default with respect thereto. If the Issuer exercises its covenant defeasance option, payment of the debt securities may not be accelerated because of an Event of Default specified in clauses (3), (4) or (5) (with respect only to the Issuer and Material Subsidiaries) under “Event of Defaults” above.

In order to exercise either defeasance option, the Issuer must irrevocably deposit (the “defeasance trust”) with the Trustee money in U.S. dollars or U.S. Government Obligations, with respect to the debt securities, in an amount sufficient or, with respect to the U.S. Government Obligations, the principal of and interest on which will be sufficient, or a combination thereof sufficient, to pay the principal, premium (if any) and interest on the debt securities with respect to such series to redemption or maturity, as the case may be, and must comply with certain other conditions, including delivery to the Trustee of an Opinion of Counsel to the effect that Holders of the debt securities will not recognize income, gain or loss for U.S. Federal, U.K. or Belgian income tax purposes as a result of such deposit and defeasance and will be subject to U.S. Federal, U.K. or Belgian income tax on the same amounts and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred (and, in the case of legal defeasance only, such Opinion of Counsel must be based on a ruling of the Internal Revenue Service or other change in applicable U.S. Federal income tax law).

Prescription

Claims against the Issuer for the payment of principal on the debt securities of any series will be prescribed 10 years after the applicable due date for the payment thereof. Claims against the Issuer for the payment of interest or Additional Amounts, if any, on the debt securities of any series will be prescribed five years after the applicable due date for payment of interest.

 

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Currency Indemnity

Unless otherwise specified in a prospectus supplement, the U.S. dollar is the sole currency of account and payment for all sums payable by the Issuer under or in connection with the debt securities represented by CDIs, including damages. Any amount received or recovered in a currency other than the U.S. dollar, whether as a result of, or the enforcement of, a judgment or order of a court of any jurisdiction, in the winding-up or dissolution of the Issuer or otherwise by any Holder of a debt security represented by a CDI, or by the Trustee, in respect of any sum expressed to be due to it from the Issuer will constitute a discharge to the Issuer only to the extent of the U.S. dollar amount that the recipient is able to purchase with the amount so received or recovered in that other currency on the date of that receipt or recovery (or, if it is not practicable to make that purchase on that date, on the first date on which it is practicable to do so).

If the dollar amount received or recovered is less than the dollar amount expressed to be due to the recipient or the Trustee under any debt security represented by a CDI, the Issuer will indemnify them against any loss sustained by such recipient as a result. In any event, the Issuer will indemnify the recipient against the cost of making any such purchase. For the purposes of this currency indemnity provision, it will be prima facie evidence of the matter stated therein for the Holder of a debt security or the Trustee to certify in a manner reasonably satisfactory to the Issuer (indicating the sources of information used) the loss it incurred in making any such purchase. These indemnities constitute a separate and independent obligation from the Issuer’s other obligations, will give rise to a separate and independent cause of action, will apply irrespective of any waiver granted by any Holder of a debt security or the Trustee (other than a waiver of the indemnities set out herein) and will continue in full force and effect despite any other judgment, order, claim or proof for a liquidated amount in respect of any sum due under any debt security or to the Trustee.

Concerning the Trustee

The Bank of New York Mellon is to be the Trustee under the indenture and has been appointed by the Issuer as CDI Depositary with regard to the issuance of the CDIs. ING Belgium SA/NV has been appointed paying agent with regard to the debt securities. A prospectus supplement may identify a different trustee, paying agent or CDI Depositary.

Governing Law

The indenture, the Deposit Agreement and the debt securities will be governed by, and construed in accordance with, the laws of the State of New York without giving effect to applicable principles of conflicts of law to the extent that the application of the law of another jurisdiction would be required thereby.

No Personal Liability of Directors, Officers, Employees and Shareholders

No director, officer, employee, incorporator or shareholder of the Issuer as such will have any liability for any obligations of the Issuer under the debt securities or the indenture or the Deposit Agreement, or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a debt security waives and releases such liability. The waiver and release are part of the consideration for issuance of the debt securities. The waiver may not be effective to waive liabilities under U.S. Federal securities laws.

Enforceability of Judgments

Since the Issuer is incorporated in Belgium and a significant portion of its assets and its Subsidiaries’ assets are outside the U.S., any judgment obtained in the U.S. against the Issuer, including judgments with respect to the payment of principal, premium, interest, Additional Amounts and any purchase price with respect to the debt securities, may not be fully collectable within the U.S. See “Enforcement of Civil Liabilities.”

 

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Consent to Jurisdiction and Service of Process

The Issuer will appoint Corporation Service Company, New York as its agent for service of process in any suit, action or proceeding with respect to the indenture or the debt securities brought in any U.S. Federal or state court located in New York City and each of the parties thereto will submit to the jurisdiction thereof.

Certain Definitions

Board of Directors” means the Board of Directors of the Issuer or any committee thereof duly authorized to act on behalf of the Board of Directors of the Issuer.

Business Day” means each day which is not a Legal Holiday.

Book-Entry Interest” means a book-entry interest in a global security of any series, whether directly or indirectly through a book-entry interest in any certificated depositary interest representing an interest in such global security, held by or through a Participant in the X/N System or an Indirect Participant in the X/N System.

Capitalized Lease Obligation” means an obligation under a lease that is required to be capitalized for financial reporting purposes in accordance with International Financial Reporting Standards (IFRS) as adopted by the European Union and as in effect as of the date of the indenture, and the amount of Indebtedness represented by such obligation shall be the capitalized amount of such obligation determined in accordance with such principles.

Code” means the U.S. Internal Revenue Code of 1986, as amended.

Clearstream” means Clearstream Banking, société anonyme, or any successor securities clearing agency.

Consolidated Capitalization” means, with respect to any Person, the total assets of such Person and its Subsidiaries determined on a consolidated basis, less the following: (i) current liabilities, including liabilities for Indebtedness maturing more than 12 months from the date of the original creation thereof but maturing within 12 months from the date of determination and (ii) deferred income taxes. Consolidated Capitalization shall be determined in accordance with generally accepted accounting principles and practices applicable to the type of business in which such Person and its Subsidiaries are engaged and which are approved by independent accountants regularly retained by such Person, and may be determined as of a date not more than 60 days prior to the happening of the event for which such determination is being made.

Default” means any event which is, or after notice or passage of time or both would be, an Event of Default with respect to any series of debt securities.

DTC” means The Depository Trust Company, its nominees and their respective successors.

Euroclear” means Euroclear Bank SA/NV, or any successor securities clearing agency.

Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended.

Holder” means (a) in the case of any debt security of any series in the form of a global security in bearer form, the holders of Book-Entry Interests therein; provided, however, that for the purposes of (i) payments of principal, premium, if any, and interest on such debt security or (ii) providing its consent or voting, in particular as set out in the first two paragraphs of “Amendments and Waivers” above, “Holder” means the direct holder of such debt security (as shown in the records of the NBB or of a participant in the X/N System) or (b) in any other case, the Person in whose name a debt security of such series is registered on the registrar’s books.

Indebtedness” means, with respect to any Person, (i) the principal of and any premium and interest on (a) indebtedness of such Person for money borrowed and (b) indebtedness evidenced by notes, debentures, bonds

 

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or other similar instruments; (ii) all Capitalized Lease Obligations of such Person; (iii) all obligations of such Person to pay the purchase price of property, all conditional sale obligations and all obligations under any title retention agreement (but excluding trade accounts payable arising in the ordinary course of business); (iv) all obligations of such Person for the reimbursement of any obligor on any letter of credit, banker’s acceptance or similar credit transaction (other than obligations for letters of credit securing obligations (other than obligations described in clauses (i) through (iii) above) entered into in the ordinary course of business of such Person to the extent such letters of credit are not drawn upon or, if and to the extent drawn upon, such drawing is reimbursed no later than the third Business Day following receipt by such Person of a demand for reimbursement following payment on the letter of credit); (v) all obligations of the type referred to in clauses (i) through (iv) of other Persons and all dividends of other Persons for the payment of which, in either case, such Person is responsible or liable as obligor, guarantor or otherwise; and (vi) all obligations of the type referred to in clauses (i) through (v) above of other Persons secured by any Lien on any property or asset of such Person (whether or not such obligation is assumed by such Person), the amount of such obligation being deemed to be the lesser of the value of such property or assets or the amount of the obligation so secured.

Indirect Participant” means a Person who is a Participant in the X/N System indirectly by being a Participant in a Person who is a direct Participant or itself an Indirect Participant in the X/N System.

Legal Holiday” means a Saturday, Sunday or other day on which banking institutions are generally not open in Brussels, Belgium or the City of New York.

Lien” means any mortgage, charge, pledge, lien or other form of encumbrance or security interest.

Material Subsidiary” at any time means a Subsidiary:

 

  (i) whose (a) revenues, or (b) total assets (in each case determined on a non-consolidated basis and determined on a basis consistent with the preparation of the consolidated financial statements of the Issuer) represent (or, in the case of a Subsidiary acquired after the end of the financial period to which the then latest audited consolidated financial statements of the Issuer relate are equal to) no less than 10% of the consolidated revenues or total assets (as the case may be) of the Issuer, all as calculated respectively by reference to the then latest audited financial statements of such Subsidiary and the then latest audited consolidated financial statements of the Issuer, provided that:

 

  (I) in the case of a Subsidiary acquired after the end of the financial period to which the then latest audited consolidated financial statements of the Issuer relate, the reference to the then latest audited consolidated financial statements of the Issuer for the purposes of the calculation above shall, until consolidated financial statements of the Issuer for the financial period in which the acquisition is made have been prepared and audited as aforesaid, be deemed to be a reference to such first-mentioned financial statements as if such Subsidiary had been shown in such financial statements by reference to its then latest audited financial statements, adjusted as deemed appropriate by the auditors of the relevant Subsidiary from time to time if such auditors are not also the auditors of the Issuer, and otherwise, by the Issuer’s Board of Directors, and approved by the auditors of the Issuer (in either case, the “Auditors”); and

 

  (II) in the case of a Subsidiary in respect of which no audited financial statements are prepared, its revenues and total assets shall be determined on the basis of pro forma financial statements of the relevant Subsidiary prepared for this purpose by the Auditors on the basis of accounting principles consistent with those adopted by the Issuer; or

 

  (ii)

to which is transferred the whole or substantially the whole of the business, undertaking or assets of a Subsidiary which prior to such transfer is a Material Subsidiary, provided that the transferor Subsidiary shall upon such transfer forthwith cease to be a Material Subsidiary pursuant to this sub-paragraph (ii) on the date on which the consolidated financial statements of the Issuer for the financial period current at the date of such transfer have been prepared and audited as aforesaid but so that such transferor Subsidiary or such transferee Subsidiary may be a Material Subsidiary on or at any time after

 

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the date on which such consolidated financial statements have been prepared and audited as aforesaid by virtue of the provisions of subparagraph (i) above or before, on or at any time after such date by virtue of the provisions of this sub-paragraph (ii).

A report by the Auditors that, in their opinion, a Subsidiary is or is not or was not at any particular time or throughout any specified period a Material Subsidiary shall, in the absence of manifest error, be conclusive and binding on all parties.

Member State” means any country that is a member of the European Union.

Moody’s” means Moody’s Investors Service, Inc. and its successors.

Officer” means the Chairman of the Board, the Chief Executive Officer, the Chief Financial Officer, the President or any Vice President of the Issuer.

Officers’ Certificate” means a certificate signed by two Officers.

Opinion of Counsel” means a written opinion of counsel, who may be an employee of or counsel for the Company or a Cross Guarantor, as the case may be, and who shall be reasonably acceptable to the Trustee.

Participant” means (a) with respect to the X/N System, Euroclear or Clearstream or any other Person who has an account with the X/N System and (b) with respect to Euroclear, Clearstream and DTC, their respective Participants holding an account with them.

Person” means any individual, corporation, partnership, limited liability company, joint venture, association, joint-stock company, trust, unincorporated organization, government or any agency or political subdivision thereof or any other entity.

Required Resolution” means a resolution passed at a duly convened meeting of Holders:

 

  (a) with respect to any matter specified in clauses (1) through (7) of the second paragraph under “Description of Debt Securities-Amendments and Waivers”, with the unanimous vote of all of the Holders (either in person or by proxy) of the outstanding debt securities of each series affected by such resolution in favor of the relevant resolution; and

 

  (b) with respect to any other matter requiring the consent of Holders of debt securities of any series at a duly convened meeting of Holders, with the affirmative vote of the Holders of more than 50% in aggregate outstanding principal amount of the outstanding debt securities of such series then outstanding voting (in person or by proxy) at a meeting of Holders.

SEC” means the U.S. Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act, or, if at any time after the execution of this instrument such commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.

Securities Act” means the U.S. Securities Act of 1933, as amended.

S&P” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc. and its successors.

Stated Maturity” means, with respect to any security, the date specified in such security as the fixed date on which the final payment of principal of such security is due and payable, including pursuant to any mandatory redemption provision (but excluding any provision providing for the repurchase of such security at the option of the holder thereof upon the happening of any contingency beyond the control of the Issuer unless such contingency has occurred).

 

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Subordinated Obligation” means any Indebtedness of the Issuer (whether outstanding on the date of first issuance for a particular series of debt securities or thereafter incurred) that is subordinate or junior in right of payment to the debt securities pursuant to a written agreement.

Subsidiary” of any Person means any corporation, association, partnership or other business entity of which more than 50% of the total voting power of shares of capital stock or other interests (including partnership interests) entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by:

 

  (1) such Person;

 

  (2) such Person and one or more Subsidiaries of such Person; or

 

  (3) one or more Subsidiaries of such Person.

Trust Indenture Act” means the U.S. Trust Indenture Act of 1939, as amended.

Trust Officer” means the Chairman of the Board, the President or any other officer or assistant officer of the Trustee assigned by the Trustee to administer its corporate trust matters or, in the case of a successor to the Trustee, an authorized officer assigned to the department, division or group performing the corporate trust work of each successor and assigned to administer the Indenture.

Trustee” means the party named as such in each indenture until a successor replaces it and, thereafter, means the successor.

U.S. Government Obligations” means securities that are (1) direct obligations of the United States of America for the timely payment of which its full faith and credit is pledged or (2) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America the timely payment of which is unconditionally guaranteed as a full faith and credit obligation of the United States of America, which, in either case, are not callable or redeemable at the option of the issuer thereof, and shall also include a depositary receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act), as custodian with respect to any such U.S. Government Obligations or a specific payment of principal of or interest on any such U.S. Government Obligations held by such custodian for the account of the holder of such depositary receipt, provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depositary receipt from any amount received by the custodian in respect of the U.S. Government Obligations or the specific payment of principal of or interest on the U.S. Government Obligations evidenced by such depositary receipt.

X/N System means the securities clearing system recognized or approved in accordance with Articles 3 through 12 of the Law of 2 January 1991 of Belgium on the market of public debt securities and the monetary policy instruments, as amended, the Law of 6 August 1993 of Belgium, as amended, and its implementing decrees, as amended, and the Law of 15 July 1998 of Belgium and its implementing decrees, which is currently the securities clearing system operated by the NBB.

 

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DESCRIPTION OF GUARANTEES

The following discussion summarizes selected provisions of the Cross Guarantee Agreement, dated as of May 21, 2007, among Delhaize Group, Delhaize America and substantially all of Delhaize America’s subsidiaries. The provisions of the agreements governing such indebtedness are complicated and not easily summarized. You can find the complete text of the Cross Guarantee Agreement in our report on Form 6-K submitted to the SEC on May 29, 2007. This summary is not complete and may not contain all of the information about this agreement that is important to you.

Cross Guarantee Agreement

Under the Cross Guarantee Agreement each company party to the agreement guarantees fully and unconditionally, jointly and severally Delhaize Group existing financial indebtedness, Delhaize America existing financial indebtedness, specific financial indebtedness of two European subsidiaries of Delhaize Group and all future unsubordinated financial indebtedness of the parties to the agreement.

If any sum owed to a creditor by a guarantor pursuant to its guarantee under the Cross Guarantee Agreement is not recoverable from such guarantor for any reason whatsoever, then such guarantor is obligated, forthwith upon demand by such creditor, to pay such sum by way of a full indemnity.

On the date of this prospectus the parties to the Cross Guarantee Agreement are Delhaize Group, Delhaize America, Food Lion, LLC, Hannaford Bros. Co., Kash N’ Karry Food Stores, Inc., FL Food Lion, Inc., Risk Management Services, Inc., Hannbro Company, Martin’s Foods of South Burlington, Inc., Shop ‘N Save-Mass., Inc., Hannaford Procurement Corp., Boney Wilson & Sons, Inc., J.H. Harvey Co., LLC, Hannaford Licensing Corp., and Victory Distributors, Inc. Information with respect to subsidiaries of Delhaize Group that are Cross Guarantors is included in the notes to our consolidated annual financial statements incorporated by reference in this prospectus.

The description of the Cross Guarantee Agreement contained in this prospectus is qualified in its entirety by reference to a copy of such agreement filed as exhibit 99.2 to Delhaize Group’s Report on Form 6-K filed with the U.S. Securities and Exchange Commission on May 29, 2007 (second of three reports) and incorporated in this prospectus by reference.

Financial Indebtedness

Under the Cross Guarantee Agreement, the term “financial indebtedness” of any person means, without duplication (and as each may be amended, modified, extended or renewed from time to time): (i) all obligations of such person under agreements for borrowed money; (ii) all obligations of such person evidenced by bonds, debentures, notes or similar instruments; (iii) all hedging obligations of such person; and (iv) all guarantees by such person of obligations of other persons of the type referred under clause (i), (ii) or (iii).

The term “person” means any individual, company, corporation, firm, partnership, joint venture, association, organization, state or agency or a state or other entity, whether or not having separate legal personality.

The term “hedging obligations” means, with respect to any person, the obligations of such person under: (i) currency exchange, interest rate or commodity swap agreements, cap agreements, floor agreements or collar agreements; and (ii) other similar agreements or arrangements designed to protect such person against fluctuations in currency exchange, interest rates or commodity prices.

Intercompany financial indebtedness is not guaranteed under the Cross Guarantee Agreement.

 

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Ranking; Limit of Liability

The obligations of each company party to the Cross Guarantee Agreement constitute direct, general, unconditional and unsubordinated obligations of such company that shall at all times rank at least pari passu with all of its other existing financial indebtedness set forth on a schedule to the Cross Guarantee Agreement and its future unsubordinated financial indebtedness, save for such obligations as may be preferred by mandatory provisions of law. The obligations of each party under the Cross Guarantee Agreement are limited to the maximum amount that can be guaranteed without constituting a fraudulent conveyance or fraudulent transfer under applicable insolvency laws.

Applicability of Cross Guarantee Agreement

To the extent a guarantor’s guarantee of financial indebtedness is addressed in an agreement to which such guarantor is a party or is otherwise contractually bound, which contains such guarantee, other than the Cross Guarantee Agreement, the Cross Guarantee Agreement does not apply to such guarantor’s guarantee of such financial indebtedness and, to be clear, nothing contained in the Cross Guarantee Agreement in any way supersedes, modifies, replaces, amends, changes, rescinds, waives, exceeds, expands, enlarges or in any way affects the provisions, including warranties, covenants, agreements, conditions, representations or, in general, any of the rights and remedies, and any of the obligations, of such guarantor and any creditor with respect to such guarantee of such financial indebtedness set forth in such other agreement.

Release of Guarantors and Guarantor Obligations

The obligations of a guarantor under the Cross Guarantee Agreement, which we refer to as a released guarantor in this paragraph, any lien created by such released guarantor with respect to such obligations, and the obligations under the Cross Guarantee Agreement of all other guarantors with respect to the financial indebtedness of the released guarantor will be automatically and unconditionally released without any action on the part of any creditor:

 

   

in connection with any sale, exchange, transfer or other disposition by such released guarantor of all or substantially all of the assets of that released guarantor, provided that the proceeds of that sale or other disposition are applied in accordance with the applicable provisions of any applicable financial indebtedness, or

 

   

in connection with any sale, exchange, transfer or other disposition (including by way of merger, consolidation or otherwise), directly or indirectly, of capital stock of such released guarantor, by Delhaize Group or any subsidiary thereof, to any person that is not Delhaize Group or a subsidiary of Delhaize Group, or an issuance by such released guarantor of its capital stock, in each case as a result of which such released guarantor ceases to be a subsidiary of Delhaize Group,

provided, that: (i) such transaction is made in accordance with the applicable provisions of any applicable financial indebtedness; and (ii) such released guarantor is also released from all of its obligations, if any, in respect of all other financial indebtedness of each other guarantor under the Cross Guarantee Agreement.

In addition to any other releases for which a guarantor qualifies under the Cross Guarantee Agreement, notwithstanding any other provision of the Cross Guarantee Agreement to the contrary, without limiting the validity of any agreement into which a guarantor and a creditor may enter, a guarantor that obtains a written release from a creditor releasing such guarantor from its obligations under the Cross Guarantee Agreement with respect to the financial indebtedness owing to such creditor specified in such release shall be so released.

 

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Termination of Agreement with Respect to Future Financial Indebtedness

Subject to certain limitations, the Cross Guarantee Agreement may be terminated with respect to a guarantor at any time by such guarantor providing written notice to the other parties to the Cross Guarantee Agreement or by mutual agreement; provided, however, that termination by Delhaize America or any other subsidiary of Delhaize Group party to the Cross Guarantee requires the written consent of Delhaize Group; and provided, further, except as otherwise provided, any termination of the Cross Guarantee Agreement with respect to a guarantor affects neither:

 

   

such guarantor’s obligations under the Cross Guarantee Agreement in relation to any financial indebtedness that came into existence prior to that termination, nor

 

   

the obligations of the other guarantors with respect to such guarantor’s financial indebtedness that came into existence prior to that termination. Financial indebtedness that comes into existence after that termination shall not be covered by the Cross Guarantee Agreement with respect to the terminating guarantor.

Third Parties

Subject to the release provisions of the Cross Guarantee Agreement discussed under the headings “Description of Guarantees—Cross Guarantee Agreement—Release of Guarantors and Guarantor Obligations” and “—Termination of Agreement with Respect to Future Financial Indebtedness” above, creditors of financial indebtedness guaranteed under the Cross Guarantee Agreement are entitled to rely on the Cross Guarantee Agreement and on the guarantees constituted pursuant to the Cross Guarantee Agreement. The Cross Guarantee Agreement constitutes a stipulation pour autrui or third party beneficiary contract for their benefit. Accordingly, such creditors shall be entitled to rely on and enforce the Cross Guarantee Agreement.

 

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BOOK-ENTRY, FORM, CLEARANCE AND SETTLEMENT

Debt securities we issue may be held through one or more international and domestic clearing systems. The principal clearing systems we will use are the book-entry systems operated by DTC in the United States, Clearstream in Luxembourg and Euroclear Belgium. These systems have established electronic securities and payment transfer, processing, depositary and custodial links among themselves and others, either directly or through custodians and depositaries. These links allow securities to be issued, held and transferred among the clearing systems without the physical transfer of such securities or certificates evidencing such securities.

Special procedures to facilitate clearance and settlement have been established among these clearing systems to trade securities across borders in the secondary market. Where payments for securities we issue in global form will be made in US dollars, these procedures can be used for cross-market transfers and the securities will be cleared and settled on a delivery against payment basis.

Cross-market transfers of securities that are not in global form may be cleared and settled in accordance with other procedures that may be established among the clearing systems for these securities. Investors in securities that are issued outside of the United States, its territories and possessions must initially hold their interests through Euroclear, Clearstream or the clearance system that is described in the applicable prospectus supplement.

The policies of DTC, Clearstream and Euroclear will govern payments, transfers, exchange and other matters relating to the investors’ interest in securities held by them. This is also true for any other clearance system that may be named in a prospectus supplement.

We have no responsibility for any aspect of the actions of DTC, Clearstream or Euroclear or any of their direct or indirect participants. We have no responsibility for any aspect of the records kept by DTC, Clearstream or Euroclear or any of their direct or indirect participants. We also do not supervise these systems in any way. This is also true for any other clearing system indicated in a prospectus supplement.

DTC, Clearstream, Euroclear and their participants perform these clearance and settlement functions under agreements they have made with one another or with their customers. You should be aware that they are not obligated to perform these procedures and may modify them or discontinue them at any time.

The description of the clearing systems in this section reflects our understanding of the rules and procedures of DTC, Clearstream and Euroclear as they are currently in effect. Those systems could change their rules and procedures at any time.

The Clearing Systems

DTC

DTC states that:

 

   

DTC is:

 

   

a limited purpose trust company organized under the laws of the State of New York;

 

   

a member of the Federal Reserve System;

 

   

a “clearing corporation” within the meaning of the Uniform Commercial Code; and

 

   

a “clearing agency” registered pursuant to the provisions of Section 17A of the Securities Exchange Act of 1934.

 

   

DTC was created to hold securities for its participants and to facilitate the clearance and settlement of securities transactions between participants through electronic book-entry changes to accounts of its participants. This eliminates the need for physical movement of such securities or certificates evidencing such securities.

 

   

Participants in DTC include securities brokers and dealers, banks, trust companies and clearing corporations and may include certain other organizations. DTC is partially owned by some of these participants or their representatives.

 

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Indirect access to the DTC system is also available to banks, brokers, dealers and trust companies that have relationships with participants.

 

   

The rules applicable to DTC and DTC participants are on file with the SEC.

Clearstream

Clearstream states that:

 

   

Clearstream is a duly licensed bank organized as a société anonyme incorporated under the laws of Luxembourg and is subject to regulation by the Luxembourg Commission for the Supervision of the Financial Sector (Commission de Surveillance du Secteur Financier).

 

   

Clearstream holds securities for its customers and facilitates the clearance and settlement of securities transactions among them. It does so through electronic book-entry changes to the accounts of its customers. This eliminates the need for physical movement of certificates.

 

   

Clearstream provides other services to its participants, including safekeeping, administration, clearance and settlement of internationally traded securities and lending and borrowing of securities. It interfaces with the domestic markets in over 30 countries through established depositary and custodial relationships.

 

   

Clearstream’s customers include worldwide securities brokers and dealers, banks, trust companies and clearing corporations and may include professional financial intermediaries. Its U.S. customers are limited to securities brokers and dealers and banks.

 

   

Indirect access to the Clearstream system is also available to others that clear through Clearstream customers or that have custodial relationships with its customers, such as banks, brokers, dealers and trust companies.

Euroclear

Euroclear states that:

 

   

Euroclear is incorporated under the laws of Belgium as a bank and is subject to regulation by the Belgian Banking, Finance and Insurance Commission (Commission Bancaire, Financière, et des Assurances) and the National Bank of Belgium (Banque Nationale de Belgique).

 

   

Euroclear holds securities for its customers and facilitates the clearance and settlement of securities transactions among them. It does so through simultaneous electronic book-entry delivery against payment, thereby eliminating the need for physical movement of such securities or certificates evidencing such securities.

 

   

Euroclear provides other services to its customers, including credit custody, lending and borrowing of securities and tri-party collateral management. It interfaces with the domestic markets of several other countries.

 

   

Euroclear customers include banks, including central banks, securities brokers and dealers, banks, trust companies and clearing corporations and may include certain other professional financial intermediaries.

 

   

Indirect access to the Euroclear system is also available to others that clear through Euroclear customers or that have relationships with Euroclear customers.

 

   

All securities in Euroclear are held on a fungible basis. This means that specific securities are not matched to specific securities clearance accounts.

Other Clearing Systems

We may choose any other clearing system for a particular series of securities. The clearance and settlement procedures for the clearing system we choose will be described in the applicable prospectus supplement.

 

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TAX CONSIDERATIONS

The following discussion, subject to the limitations set forth below, describes material Belgian and United States tax considerations relating to your ownership and disposition of debt securities. This discussion does not purport to be a complete analysis of all tax considerations in Belgium or the United States and does not address tax treatment of holders of debt securities under the laws of other countries. Holders of debt securities who are resident in countries other than Belgium or the United States, along with holders that are resident in those countries, are urged to consult with their own tax advisers as to which countries’ tax laws could be relevant to them.

Material Belgian Tax Considerations

The following is a summary of the principal Belgian tax consequences for investors of receiving interest in respect of, and disposing of, debt securities and is of a general nature based on our understanding of current law and practice. Except as otherwise indicated, this summary only addresses the position of investors who do not have any connection with Belgium other than the holding of debt securities. Investors should consult their professional advisers on the possible tax consequences of subscribing for, purchasing, holding or selling debt securities under the laws of their countries of citizenship, residence, ordinary residence or domicile.

The present section does not address the tax situation of persons residing in Belgium.

Belgian Withholding Tax

Debt Securities in Book-Entry Form

The interest component of payments on debt securities is, as a rule, subject to Belgian withholding tax at the rate of 15%, subject to such relief as may be available under applicable domestic or tax treaty provisions.

All payments of interest by or on behalf of us shall be made without deduction of withholding tax for debt securities held in book-entry form by eligible investors (the “Eligible Investors”) in an exempt securities account with the X/N System or with a participant or sub-participant in such system (a “Participant”).

Eligible Investors are those persons referred to in Article 4 of the Royal Decree of May 26, 1994, including, among other things:

 

  1 Belgian resident companies subject to corporate income tax within the meaning of Article 2§ 1,5°b of the Income Tax Code 1992 (“ITC 1992”);

 

  2 without prejudice to Article 262, 1° and 5° of ITC 1992, Belgian insurance or pension undertakings within the meaning of Article 2, §3 of the Law of July 9, 1975 on supervision of insurance companies (other than those referred in points 1° and 3° of said Article);

 

  3 state-linked social security organizations and institutions assimilated therewith within the meaning of Article 105, 2° of the Royal Decree of August 27, 1993 implementing ITC 1992;

 

  4 non-residents of Belgium within the meaning of Article 105, 5° of said Royal Decree of August 27, 1993;

 

  5 mutual funds within the meaning of Article 115 of said Royal Decree of August 27, 1993;

 

  6 companies, entities or partnerships within the meaning of Article 227, 2° of ITC 1992 which are subject to non-resident income tax in Belgium in accordance with Article 233 of ITC 1992 and whose debt securities are held as part of a taxable business activity in Belgium;

 

  7 the Belgian State, with respect to its investments exempted from withholding tax in accordance with Article 265 of ITC 1992;

 

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  8 mutual funds organized under foreign law which are structured as an undivided estate managed by a management company on behalf of certificate holders, provided that their certificates are not publicly offered or otherwise marketed in Belgium; and

 

  9 Belgian resident companies not referred to in point 1 above whose sole or principal activity consists in granting credits or loans.

Eligible Investors do not include natural persons residing in Belgium or not-for-profit organizations (other than those referred to in points 2 and 3 above). Participants in the X/N System must keep the debt securities they hold for non-Eligible Investors in a non-exempt securities account (an “N-Account”). All payments of interest on such debt securities will be made subject to deduction of withholding tax at the rate of 15%. In addition, the transfer of debt securities by holders of an N-Account is subject to withholding tax at the rate of 15% on the pro rata interest accrued since the last preceding interest payment date.

Upon opening an exempt securities account with the X/N System or with a Participant, an Eligible Investor is required to certify its eligible status on a standard form approved by the Minister of Finance. There are no ongoing certification requirements for Eligible Investors, but direct Participants are required to annually report to the X/N System as to the eligible status of each holder for whom they hold debt securities in an exempt securities account.

In addition, an exempt securities account may be opened with a Participant by an intermediary (an “Intermediary”) in respect of debt securities that such Intermediary holds for the account of its clients (the “Beneficial Owners”), provided that each Beneficial Owner is an Eligible Investor. In such a case, the Intermediary is required to certify on a standard form approved by the Minister of Finance that (i) it is an Eligible Investor, and (ii) the Beneficial Owners holding their debt securities through it are also Eligible Investors. A Beneficial Owner is also required to certify its eligible status on a standard form approved by the Minister of Finance and to be delivered to the Intermediary.

However, none of these certification or reporting requirements apply in respect of debt securities held in Euroclear or Clearstream in their capacity as Participants to the X/N System, provided that Euroclear or Clearstream must be able to identify each holder for whom they hold debt securities in an Exempt Account.

In accordance with rules and procedures of the X/N System, a holder of our debt securities who is withdrawing debt securities from an exempt securities account may, following payment of interest accrued on such debt securities from the last preceding interest payment date, be entitled to claim an indemnity from the Belgian tax authorities of an amount equal to the withholding tax, if any, applied on interest payable on the debt securities for the period running from the last preceding interest payment date through the date of withdrawal of the debt securities from the X/N System.

Definitive Registered Debt Securities

Definitive registered debt securities will not be eligible for clearing and settlement through the X/N System. Payments of interest on definitive registered debt securities will in principle be subject to Belgian withholding tax at the rate of 15%, subject to such relief as may be available under domestic or tax treaty provisions.

Payments of interest by or on behalf of us will be made without deduction of withholding tax in respect of definitive registered debt securities held by non-residents of Belgium or certain Belgian financial institutions (and assimilated entities) or certain state-linked social security organizations (and institutions assimilated therewith), subject to the following requirements:

 

   

interest payments on definitive registered debt securities are exempt from Belgian interest withholdings tax if made to non-residents of Belgium within the meanings of Article 105, 5° of the Royal Decree of August 27, 1993 implementing ITC 1992, provided the Issuer satisfies during the entire expired term of

 

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the Debt Securities the following requirements: (i) it is a Belgian tax resident entity (or Belgian establishment of a non-Belgian tax resident entity), (ii) during the taxable period that precedes the attribution or payment of interest, the Issuer-owned shares qualifying as fixed financial assets of which the acquisition value represents on average at least 50% of the balance total at the moment of closing of the accounting year that is linked to that taxable period, and (iii) the shares of the Issuer are listed on a regulated market as provided for in Article 264, first indent, 2°bis ITC 1992, or the shares of the Issuer are at least 50% directly or indirectly held by a company (a) the shares of which are listed on a regulated market as provided for in Article 264, first indent, 2°bis ITC 1992, (b) that is subject to corporate income tax or a foreign tax similar to the corporate income tax, and (c) that is not subject to a tax regime deviating from the regular tax regime and does not benefit from a substantially more favorable tax regime than the Belgian corporate income tax;

 

   

interest payments on definitive registered debt securities are exempt from Belgian interest withholding tax if made to Belgian financial institutions or assimilated entities within the meaning of article 105, 1° of the Royal Decree of August 27, 1993 implementing ITC 1992, provided that such a financial institution or assimilated entity certifies on each interest payment date in a form delivered to us, that (i) it was the legal owner, or held the usufructus of the definitive registered debt securities during the entire interest period to which the interest payment relates, and (ii) the definitive registered debt securities have been registered with us in the name of such investor during the entire interest period to which the interest payment relates; and

 

   

interest payments on definitive registered debt securities are exempt from Belgian interest withholding tax if made to state linked social security organizations and institutions assimilated therewith within the meaning of Article 105, 2° of the Royal Decree of August 27, 1993 implementing ITC 1992, provided that such an organization or institution certifies on each interest payment date in a form delivered to us that (i) it was the legal owner, or held the usufructus of the definitive registered debt securities during the entire interest period to which the interest payment relates, and (ii) the definitive registered debt securities have been registered with us in the name of such investor during the entire interest period to which the interest payment relates.

In addition, Belgium has concluded tax treaties with multiple countries, reducing the interest withholding tax to 10%, 5% or 0% for residents of those countries. As such a full relief from Belgian withholding tax will be available under the income tax treaty between the United States and Belgium (the “Treaty”), subject to certain indentification formalities, for interest paid by or on behalf of us on the definitive registered debt securities provided the beneficial owner of that interest is a U.S. tax resident.

EU Savings Directive

Under European Council Directive 2003/48/EC on the taxation of savings income (the “Savings Directive”), each Member State of the European Union is required to provide to the tax authorities of another Member State details of payments of interest (or other similar income) paid by a person within its jurisdiction to an individual resident in that other Member State. However, for a transitional period, Austria, Belgium and Luxembourg will instead apply a withholding system in relation to such payments deducting tax at rates rising over time to 35%, unless during such period they elect otherwise. A number of non-EU countries and certain dependent or associated territories of certain Member States have agreed to adopt similar measures (either provision of information or transitional withholding) in relation to payments made by a person within its jurisdiction to an individual resident in a Member State. In addition, Member States have entered into reciprocal provision of information or transitional withholding arrangements with certain of those independent or associated territories in relation to payments made by a person in a Member State to an individual resident in one of those territories. A paying agent (within the meaning of the Savings Directive) established in Belgium that is required to withhold tax on interest and similar income under the Savings Directive and the Law of May 17, 2004 implementing the Savings Directive, must withhold tax at a rate that is initially 15%, but which increased to 20% as from July 1, 2008 and which will further increase to 35% as from July 1, 2011.

 

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Holders of our debt securities should consult their own tax advisers regarding the implications of the Savings Directive in their particular circumstances.

Capital Gains

Capital gains realized with respect to the debt securities are subject to Belgian tax only if the debt securities are held as part of a taxable business activity in Belgium. Outside the framework of a taxable business activity in Belgium, capital gains realized with respect to the debt securities may be taxable in Belgium if they are realized outside the framework of the normal management of a private estate and if the income is received in Belgium, although income tax treaties traditionally grant the sole taxing jurisdiction to the resident state in such case.

Transfer Taxes

A stamp tax may be levied at the rate of 0.07% on the sale and on the purchase and any other acquisition or transfer for consideration of debt securities in the Belgium secondary market, provided that such transaction is carried out through intermediation of a professional intermediary in Belgium. Such tax will be limited to a maximum amount of €500 per taxable transaction and per party. An exemption from this tax is available under Article 126/1, 2° of the Code on Miscellaneous Duties and Taxes as regards parties to securities trades who are intermediaries within the meaning of Article 2, 9° and 10° of the Law of August 2, 2002 on the supervision of the financial sector and financial services, acting for their own account, insurance undertakings within the meaning of Article 2, §1 of the Law of July 9, 1975 on supervision of insurance companies, institutions for occupational retirement provisions (instellingen voor bedrijfspensioenvoorziening / institutions de retraite professionnelle) within the meaning of Article 2, 1° of the Law of October 27, 2006 regarding the control of institutions for occupational retirement provisions, collective investment schemes or non-residents.

Material United States Federal Income Tax Considerations

The following discussion summarizes certain material U.S. federal income tax consequences arising from the purchase, ownership and disposition of the debt securities by a U.S. Holder (as defined below). When we offer to sell a particular series of debt securities, we will describe any varying tax consequences that are specific to the series in a supplement to this prospectus. We will also indicate in the supplement whether the general terms and provisions described in this prospectus apply to a particular series of debt securities. The summary is based on the U.S. Internal Revenue Code of 1986, as amended (the “Code”), U.S. Treasury regulations, judicial decisions, published positions of the Internal Revenue Service (“IRS”), the income tax treaty between the United States and Belgium (the “Treaty”) and other applicable authorities, all as in effect as of the date hereof and all of which are subject to change or differing interpretations (possibly with retroactive effect).

For purposes of this summary, the term “U.S. Holder” means a beneficial owner of a debt security that is, or is treated as, for U.S. federal income tax purposes, (a) an individual who is a U.S. citizen or resident, (b) a corporation or other entity taxable as such created or organized under the laws of the United States or any political subdivision thereof, (c) an estate the income of which is subject to U.S. federal income tax on a net basis with respect to its worldwide income, or (d) a trust, if (i) a court within the United States is able to exercise primary supervision over the administration of the trust, and one or more U.S. persons have the authority to control all substantial decisions of the trust or (ii) the trust has a valid election in effect under applicable U.S. Treasury regulations to be treated as a U.S. person. If a partnership (including any entity treated as a partnership or other pass-through entity for U.S. federal income tax purposes) is a holder of a debt security, the U.S. federal income tax treatment of a partner in the partnership will generally depend on the status of the partner and the activities of such partnership. Partners and partnerships should consult their tax advisors as to the particular federal income tax consequences applicable to them.

The discussion does not address all of the U.S. federal income tax consequences that may be relevant to a particular person or to persons subject to special treatment under U.S. federal income tax laws (such as financial

 

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institutions, broker dealers, insurance companies, tax-exempt organizations, regulated investment companies, real estate investment trusts, traders in securities that elect to apply a mark-to-market method of accounting, or persons that are, or hold their debt securities through, partnerships or other pass-through entities) or to persons who hold debt securities as part of a straddle, hedge, conversion, synthetic security or constructive sale transaction for U.S. federal income tax purposes, all of whom may be subject to tax rules that differ from those summarized below. Moreover, the discussion does not address any tax consequences other than U.S. federal income tax consequences, such as state, local or foreign tax consequences that may be relevant to a particular holder.

This summary is generally limited to investors who will hold the debt securities as “capital assets” within the meaning of the Code, whose functional currency is the U.S. dollar and who are initial investors who purchase the debt securities at their issue price within the meaning of the Code. No opinion of counsel or IRS ruling has been or will be sought regarding any matter discussed herein. No assurance can be given that the IRS would not assert, or that a court would not sustain, a position contrary to any of those set forth below.

THE SUMMARY OF U.S. FEDERAL INCOME TAX CONSEQUENCES SET FORTH BELOW IS FOR GENERAL INFORMATION ONLY. PROSPECTIVE PURCHASERS OF THE DEBT SECURITIES ARE URGED TO CONSULT THEIR TAX ADVISORS AS TO THE PRECISE U.S. FEDERAL, STATE, LOCAL AND OTHER TAX CONSEQUENCES OF ACQUIRING, OWNING AND DISPOSING OF THE DEBT SECURITIES, INCLUDING THEIR ELIGIBILITY FOR BENEFITS OF THE TREATY.

Taxation of Interest and Additional Amounts

Interest paid on a debt security (including any Additional Amounts paid as a result of the imposition of Belgian withholding taxes or other amounts paid to or on behalf of the U.S. Holder (see “Descriptions of Debt Securities—Payment of Additional Amounts”)) will be included in the income of a U.S. Holder as ordinary interest income at the time it is treated as received or accrued, in accordance with the U.S. Holder’s regular method of tax accounting.

Original Issue Discount

The amount of a debt security’s original issue discount (“OID”) is the excess of the debt security’s stated redemption price at maturity over its issue price. Generally, the issue price of a debt security will be the first price at which a substantial amount of debt securities included in the issue of which the debt security is a part is sold to persons other than bond houses, brokers or similar persons or organizations acting in the capacity of underwriters, placement agents or wholesalers. The stated redemption price at maturity of a debt security is the total of all payments provided by the debt security that are not payments of “qualified stated interest.” A qualified stated interest payment is generally any one of a series of stated interest payments on a debt security that are unconditionally payable at least annually at a single fixed rate (with certain exceptions for lower rates paid during some periods), applied to the outstanding principal amount of the debt security. Solely for the purposes of determining whether a debt security has OID, the Issuer will be deemed to exercise any call option that has the effect of decreasing the yield on the debt security, and the U.S. Holder will be deemed to exercise any put option that has the effect of increasing the yield on the debt security. If the issue price of the debt securities is less than the stated redemption price at maturity and the amount of OID is more than 1/4 of 1 percent of the stated redemption price at maturity multiplied by the number of complete years to maturity, the debt securities will be considered to have been issued with more than a de minimis amount of OID. If the debt securities are issued with more than a de minimis amount of OID, a U.S. Holder must include a portion of the OID in gross income as interest in each taxable year or portion thereof in which the U.S. Holder holds the debt securities even if the U.S. Holder has not received a cash payment in respect of the OID. These U.S. Holders must include OID in income calculated on a constant–yield method before the receipt of cash attributable to the income, and generally will have to include in income increasingly greater amounts of OID over the life of the

 

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debt securities. The amount of OID includible in income by these U.S. Holders is the sum of the daily portions of OID with respect to the debt security for each day during the taxable year or portion of the taxable year on which the U.S. Holder holds the debt security. The daily portion is determined by allocating to each day in any “accrual period” a pro rata portion of the OID allocable to that accrual period. Accrual periods with respect to a debt security may be of any length selected by the U.S. Holder and may vary in length over the term of the debt security as long as (i) no accrual period is longer than one year; and (ii) each scheduled payment of interest or principal on the debt security occurs on either the final or first day of an accrual period. The amount of OID allocable to an accrual period equals the excess of (a) the product of the debt security’s adjusted issue price at the beginning of the accrual period and the debt security’s yield to maturity (determined on the basis of compounding at the close of each accrual period and properly adjusted for the length of the accrual period) over (b) the sum of the payments of interest on the debt security allocable to the accrual period. The “adjusted issue price” of a debt security at the beginning of any accrual period is the issue price of the debt security increased by the amount of accrued OID for each prior accrual period.

Acquisition Premium

A U.S. Holder that purchases a debt security for an amount less than or equal to the debt security’s principal amount but in excess of its adjusted issue price (this excess being “acquisition premium”) and that does not make the election described below under “Election to Treat All Interest as Original Issue Discount” is permitted to reduce the daily portions of OID by a fraction, the numerator of which is the excess of the U.S. Holder’s adjusted basis in the debt security immediately after its purchase over the debt security’s adjusted issue price, and the denominator of which is the excess of the debt security’s principal amount over the debt security’s adjusted issue price. No OID will accrue on a debt security purchased for more than its principal amount.

Fungible Issue

We may, without the consent of the Holders of outstanding debt securities, issue additional debt securities with identical terms. These additional debt securities, even if they are treated for non-tax purposes as part of the same series as the original debt securities, in some cases may be treated as a separate series for U.S. federal income tax purposes. In such a case, the additional debt securities may be considered to have been issued with OID even if the original debt securities had no OID, or the additional debt securities may have a greater amount of OID than the original debt securities. These differences may affect the market value of the original debt securities if the additional debt securities are not otherwise distinguishable from the original debt securities.

Market Discount

A debt security generally will be treated as purchased at a market discount (a “Market Discount Debt Security”) if the debt security’s “revised issue price” exceeds the amount for which the U.S. Holder purchased the debt security by at least 1/4 of 1 percent of the debt security’s revised issue price, multiplied by the number of complete years from the date acquired by the U.S. Holder to the debt security’s maturity. If this excess is not sufficient to cause the debt security to be a Market Discount Debt Security, then the excess constitutes “de minimis market discount”. For this purpose, the “revised issue price” of a debt security generally equals its issue price, increased by the amount of any OID that has accrued on the debt security. Any gain recognized on the maturity or disposition of a Market Discount Debt Security will be treated as ordinary income to the extent that the gain does not exceed the accrued market discount on the debt security. Alternatively, a U.S. Holder of a Market Discount Debt Security may elect to include market discount in income currently over the life of the debt security. This election applies to all debt instruments with market discount acquired by the electing U.S. Holder on or after the first day of the first taxable year for which the election is made. This election may not be revoked without the consent of the IRS. A U.S. Holder of a Market Discount Debt Security that does not elect to include market discount in income currently generally will be required to defer deductions for interest on borrowings incurred to purchase or carry a Market Discount Debt Security that is in excess of the interest and OID on the debt security includible in the U.S. Holder’s income, to the extent that this excess interest expense does not

 

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exceed the portion of the market discount allocable to the days on which the Market Discount Debt Security was held by the U.S. Holder.

Under current law, market discount on a Market Discount Debt Security will accrue on a straight-line basis unless the U.S. Holder elects to accrue the market discount on a constant-yield method. This election applies only to the debt security with respect to which it is made and is irrevocable.

Election to Treat All Interest as Original Issue Discount

A U.S. Holder may generally elect to include in gross income all interest that accrues on a debt security using the constant-yield method described above under “Original Issue Discount—General”, with certain modifications. For purposes of this election, interest includes interest, OID, de minimis OID, market discount, de minimis market discount, and unstated interest, as adjusted by any amortizable bond premium (described below under “Debt Securities Purchased at a Premium”) or acquisition premium. This election generally applies only to the debt security with respect to which it is made and may not be revoked without the consent of the IRS. If the election to apply the constant yield method to all interest on a debt security is made with respect to a Market Discount Debt Security, the electing U.S. Holder will be treated as having made the election described above under “Market Discount” to include market discount in income currently over the life of all debt instruments held or thereafter acquired by the U.S. Holder. In the case of a debt security with amortizable bond premium, the U.S. Holder may make this election only if certain requirements are met, and certain limitations may apply to such election. U.S. Holders should consult their tax advisers concerning the propriety and consequences of this election.

Debt Securities Purchased at a Premium

A U.S. Holder that purchases a debt security for an amount in excess of its principal amount may elect to treat the excess as “amortizable bond premium”, in which case the amount of interest on the debt security required to be included in the U.S. Holder’s income each year with respect to interest on the debt security will be reduced by the amount of amortizable bond premium allocable (based on the debt security’s yield to maturity) to that year. The amount of amortizable bond premium for each taxable year is the sum of the daily portions of bond premium with respect to the debt security for each day during the taxable year or portion of the taxable year on which the U.S. Holder holds the debt security. The daily portion is determined by allocating to each day in any “accrual period” a pro rata portion of the bond premium allocable to that accrual period. Accrual periods with respect to a debt security may be of any length selected by the U.S. Holder and may vary in length over the term of the debt security as long as (i) no accrual period is longer than one year; and (ii) each scheduled payment of interest or principal on the debt security occurs on either the final or first day of an accrual period. The amount of bond premium allocable to an accrual period equals the excess of (a) the sum of the payments of interest on the debt security allocable to the accrual period over (b) the product of the debt security’s adjusted acquisition price at the beginning of the accrual period and the debt security’s yield to maturity (determined on the basis of compounding at the close of each accrual period and properly adjusted for the length of the accrual period). The “adjusted acquisition price” of a debt security at the beginning of any accrual period is the U.S. Holder’s purchase price for the debt security, decreased by the amount of bond premium for each prior accrual period. Any election to amortize bond premium applies to all bonds (other than bonds the interest on which is excludible from gross income for U.S. federal income tax purposes) held by the U.S. Holder at the beginning of the first taxable year to which the election applies or when thereafter acquired by the U.S. Holder, and is irrevocable without the consent of the IRS.

Foreign Tax Credits

Under the current Treaty, interest on the debt securities generally would not be subject to Belgium withholding or income taxes. However, certain U.S. Holders may be subject to Belgium tax (including U.S. Holders that hold the debt securities through a Belgium permanent establishment). If a U.S. Holder is subject to

 

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Belgium tax, then the U.S. Holder may be able to claim a foreign tax credit or a deduction for Belgian taxes imposed on payments of interest (including Additional Amounts). The calculation of U.S. foreign tax credits and, in the case of a U.S. Holder that elects to deduct foreign taxes, the availability of deductions involves the application of complex rules that depend on a U.S. Holder’s particular circumstances. U.S. Holders should, therefore, consult their tax advisors regarding the application of the U.S. foreign tax credit rules to interest income (including Additional Amounts) on the debt securities.

Sale, Redemption, Retirement and Other Disposition of the Debt Securities

In general, a U.S. Holder will recognize gain or loss on the sale, redemption, retirement or other disposition of a debt security in an amount equal to the difference between (i) the amount realized (other than any amount attributable to accrued but unpaid stated interest, which will be taxable as such) and (ii) the U.S. Holder’s adjusted tax basis in the debt security at the time. A U.S. Holder’s adjusted tax basis in a debt security will generally equal the acquisition cost of such debt security to the U.S. Holder, increased by any OID or market discount previously included in income and decreased by amortizable bond premium applied to reduce interest on the debt security. Gain or loss recognized on the sale, retirement or other disposition of a debt security will generally be capital gain or loss (except with respect to certain accrued interest and market discount). Net capital gains derived with respect to capital assets held for more than one year are eligible for reduced rates of taxation for certain non-corporate U.S. Holders (including individuals). The deductibility of capital losses is subject to certain limitations. Gain or loss recognized by a U.S. Holder on the sale or other disposition of a debt security will generally be U.S.-source gain or loss. Prospective investors should consult their tax advisors as to the U.S. tax and foreign tax credit implications of such sale, redemption, retirement or other disposition of a debt security.

Back-up Withholding and Information Reporting

In general, payments of principal, interest and accrued OID on, and the proceeds of sale, redemption or other disposition (including exchange) of debt securities payable to a U.S. Holder by a U.S. paying agent or other U.S. intermediary will be reported to the IRS and to the U.S. Holder as may be required under applicable regulations. Backup withholding will apply to these payments and to accruals of OID if the U.S. Holder fails to provide an accurate taxpayer identification number or certification of exempt status or fails to report all interest and dividends required to be shown on its U.S. federal income tax returns. Certain U.S. Holders (including, among others, corporations) are not subject to backup withholding or information reporting. U.S. Holders should consult their tax advisers as to their qualification for exemption from backup withholding or information reporting and the procedure for obtaining an exemption. Any amounts withheld under the backup withholding rules from a payment to a U.S. Holder generally will be allowed as a refund or a credit against such U.S. Holder’s U.S. federal income tax liability, provided that the required procedures are followed.

 

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ERISA CONSIDERATIONS

The U.S. Employee Retirement Income Security Act of 1974, as amended (“ERISA”) imposes fiduciary standards and certain other requirements on employee benefit plans subject thereto, including, without limitation, individual retirement accounts, collective investment funds, separate accounts, insurance company general accounts and other entities or accounts whose underlying assets are treated as assets of such plans pursuant to Section 3(42) of ERISA and, to the extent not modified or superseded by Section 3(42) of ERISA, the U.S. Department of Labor “plan assets” regulation, 29 CFR Section 2510.3-101 (collectively, “ERISA Plans”), and on those persons who are fiduciaries with respect to ERISA Plans. Investments by ERISA Plans are subject to ERISA’s general fiduciary requirements, including the requirement of investment prudence and diversification and the requirement that an ERISA Plan’s investments be made in accordance with the documents governing the ERISA Plan. The prudence of a particular investment will be determined by the responsible fiduciary of an ERISA Plan by taking into account the ERISA Plan’s particular circumstances and all of the facts and circumstances of the investment including, but not limited to, the matters discussed in “Risk Factors” and the fact that in the future there may be no market in which the fiduciary will be able to sell or otherwise dispose of the debt securities.

In addition, Section 406 of ERISA and Section 4975 of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), prohibit certain transactions involving the assets of ERISA Plans and certain persons (referred to as “parties in interest” or “disqualified persons”) having certain relationships to such ERISA Plans, unless a statutory or administrative exemption applies to the transaction. Governmental plans and certain church plans, while not subject to the fiduciary responsibility and prohibited transaction provisions of ERISA or the Code, may nevertheless be subject to state or other laws that are substantially similar to the foregoing provisions of ERISA and the Code. Fiduciaries of any such plans should consult with their counsel before purchasing debt securities.

Any ERISA Plan fiduciary that proposes to cause an ERISA Plan to purchase debt securities should consult with its counsel regarding the applicability of the fiduciary responsibility and prohibited transaction provisions of ERISA and Section 4975 of the Code to such an investment, and to confirm that such investment will not constitute or result in a prohibited transaction or any other violation of an applicable requirement under ERISA or the Code. The sale of debt securities to an ERISA Plan is in no respect a representation by the Issuer that such an investment meets all relevant legal requirements with respect to investments by ERISA Plans generally or any particular ERISA Plan, or that such an investment is appropriate for ERISA Plans generally or any particular ERISA Plan.

 

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PLAN OF DISTRIBUTION

Delhaize Group may sell all or part of the debt securities from time to time on terms determined at the time those debt securities are offered for sale to or through underwriters or through selling agents, and also may sell those debt securities directly to other purchasers. The names of those underwriters or selling agents used in connection with the offer and sale of any series of debt securities will be set forth in the applicable prospectus supplement.

The distribution of the debt securities may be effected from time to time in one or more transactions or series at a fixed price or prices, which may be changed, or at market prices prevailing at the time of sale, at prices related to those prevailing market prices or at negotiated prices. If underwriters are used in the sale of debt securities, debt securities will be acquired by the underwriters for their own account and may be resold from time to time in one or more transactions. Those debt securities may be offered either through underwriting syndicates represented by managing underwriters or underwriters without a syndicate. Unless otherwise set forth in the prospectus supplement, the obligations of the underwriters to purchase those debt securities will be subject to certain conditions precedent, and the underwriters will be obligated to purchase all of those debt securities if any of those debt securities are purchased.

In connection with the sale of debt securities, underwriters may receive compensation from Delhaize Group or from purchasers of debt securities for whom they may act as agents, in the form of discounts, concessions or commissions. Underwriters may sell debt securities to or through dealers, and such dealers may receive compensation in the form of discounts, concessions or commissions from the underwriters and/or commissions from the purchasers for whom they may act as agents. Underwriters, dealers and agents that participate in the distribution of debt securities may be deemed to be underwriters, and any discounts or commissions received by them from Delhaize Group and any profit on the resale of debt securities by them may be deemed to be underwriting discounts and commissions, under the Securities Act. Any compensation received from Delhaize Group will be described in the applicable prospectus supplement.

Underwriters, dealers, selling agents and other persons may be entitled, under agreements which may be entered into with Delhaize Group, to indemnification by Delhaize Group against certain civil liabilities, including liabilities under the Securities Act. Underwriters, dealers, selling agents and other persons may be customers of, engage in transactions with or perform services for us in the ordinary course of business.

Each series of debt securities will be a new issue of securities with no established trading market. In the event that debt securities of a series offered under this prospectus are not listed on a national securities exchange, certain broker–dealers may make a market in the debt securities, but will not be obligated to do so and may discontinue any market making at any time without notice. No assurance can be given that any broker–dealer will make a market in the debt securities of any series or as to the liquidity of the trading market for the debt securities.

In order to facilitate the offering of the debt securities, any underwriters or agents involved in the offering of debt securities may engage in transactions that stabilize, maintain or otherwise affect the price of the debt securities or any other debt securities the prices of which may be used to determine payments on those debt securities. Specifically, the underwriters or agents may overallot in connection with the offering, creating a short position in debt securities for their own account. In addition, to cover overallotments or to stabilize the price of debt securities or other securities, the underwriters or agents may bid for, and purchase, debt securities or any other securities in the open market. Finally, in any offering of debt securities through a syndicate of underwriters, the underwriting syndicate may reclaim selling concessions allotted to an underwriter or a dealer for distributing any debt securities in the offering if the syndicate repurchases previously distributed securities in transactions to cover syndicate short positions, in stabilization transactions or otherwise. Any of these activities may stabilize or maintain the market price of the debt securities above independent market levels. The underwriters or agents, as the case may be, are not required to engage in these activities, and may end any of these activities at any time.

 

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ENFORCEMENT OF CIVIL LIABILITIES

We are a Belgian company, and substantially all of our directors and officers are residents of Belgium. Although we have substantial assets in the United States through our ownership of Delhaize America, a portion of our assets and of the assets of our directors and officers will be located outside of the United States. Consequently, U.S. investors may find it difficult in a suit based upon the civil liability provisions of U.S. federal securities laws to:

 

   

effect service of process within the United States on our company and our directors and officers outside of the United States;

 

   

enforce judgments obtained in U.S. courts against our company and our directors and officers in courts outside the United States; and

 

   

enforce against our company and our directors and officers in Belgium, whether in original actions or in actions for the enforcement of judgments of U.S. courts, civil liabilities based solely upon U.S. federal securities laws.

The United States currently does not have a treaty with Belgium providing for the reciprocal recognition and enforcement of judgments, other than arbitral awards, in civil and commercial matters. Consequently, a final judgment rendered by any federal or state court in the United States, whether or not predicated solely upon U.S. federal or state securities laws, would not automatically be enforceable in Belgium. Actions for the enforcement of judgments of U.S. courts might be successful only if the Belgian court confirms the substantive correctness of the judgment of the U.S. court, and is satisfied that:

 

   

the effect of the enforcement of judgment is not manifestly incompatible with Belgian public policy;

 

   

the judgment did not violate the rights of the defendant;

 

   

the judgment was not rendered in a matter where the parties transferred rights subject to transfer restrictions with the sole purpose of avoiding the application of the law applicable according to Belgian international law;

 

   

the judgment is not subject to further recourse under U.S. law;

 

   

the judgment is not incompatible with a judgment rendered in Belgium or with a subsequent judgment rendered abroad that might be enforced in Belgium;

 

   

a claim was filed both outside Belgium and in Belgium, whereas the claim filed in Belgium is still pending;

 

   

the Belgian courts did not have exclusive jurisdiction to rule on the matter;

 

   

the U.S. court did not accept its jurisdiction solely on the basis of either the nationality of the plaintiff or the location of the disputed goods; and

 

   

the judgment submitted to the Belgian court is authentic.

In addition, with regard to the enforcement through legal proceedings in Belgium (including the exequatur of foreign court decisions in Belgium), a registration tax at the rate of 3% of the amount of the judgment is payable by the debtor, if the sum of money which the debtor is ordered to pay by a Belgian court, or by a foreign court judgment that is either (i) automatically enforceable and registered in Belgium, or (ii) rendered enforceable by a Belgian court, exceeds €12,500. The registration tax is payable by the debtor. The creditor is jointly liable up to a maximum of one-half of the amount the creditor recovers from the debtor.

 

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LEGAL MATTERS

Certain legal matters with respect to the debt securities are being passed upon for us by Freshfields Bruckhaus Deringer LLP, Brussels, Belgium, who are acting as our Belgian counsel. Certain legal matters with respect to the debt securities are being passed upon for us by Hunton & Williams LLP, Washington, D.C., who are acting as our New York, Delaware, Florida and Georgia counsel. Certain legal matters with respect to the guarantees are being passed upon for us by the Assistant General Counsel of our subsidiary Delhaize America, Inc., who is acting as our North Carolina counsel; the General Counsel of our subsidiary Hannaford Bros. Co., who is acting as our Maine and Massachusetts counsel; and Pierson Wadhams Quinn Yates & Coffrin, who are acting as our special Vermont counsel. Any underwriters will be advised about other issues relating to any offering by their own legal counsel.

EXPERTS

The consolidated financial statements of Delhaize Group incorporated in this prospectus by reference from Delhaize Group’s Form 20–F for the year ended December 31, 2007, and the effectiveness of Delhaize Group’s internal control over financial reporting as of December 31, 2007, have been audited by DELOITTE Bedrijfsrevisoren / Reviseurs d’Entreprises BVo.v.v.e. CVBA/SC s.f.d. SCRL, an independent registered public accounting firm and member of the Institut des Réviseurs d’Entreprises/Instituut der Bedrijfsrevisoren, as stated in their reports which are incorporated herein by reference (which reports (1) express an unqualified opinion on the consolidated financial statements, and (2) express an unqualified opinion on the effectiveness of internal control over financial reporting), and have been so incorporated in reliance upon the reports of such firm given upon their authority as experts in accounting and auditing.

With respect to our unaudited financial information for the three and nine-month periods ended September 30, 2008 and 2007, incorporated in this prospectus, DELOITTE Bedrijfsrevisoren / Reviseurs d’Entreprises BVo.v.v.e. CVBA/SC s.f.d. SCRL reported that they have applied limited procedures in accordance with the recommended auditing standards on limited reviews applicable in Belgium, as issued by the Institut des Reviseurs d’Entreprises/Instituut der Bedrijfsrevisoren, and in accordance with the standards of the Public Company Accounting Oversight Board (United States). However, their separate report dated November 5, 2008 for the three and nine-month periods ended September 30, 2008, incorporated in this prospectus states that they did not audit and they do not express an opinion on that unaudited financial information. Accordingly, the degree of reliance on their report on such information should be restricted in light of the limited nature of the review procedures applied. DELOITTE Bedrijfsrevisoren / Reviseurs d’Entreprises BVo.v.v.e. CVBA/SC s.f.d. SCRL is not subject to the liability provisions of Section 11 of the Securities Act for their report on the unaudited financial information because such report is not a “report” or a “part” of the registration statement prepared or certified by DELOITTE Bedrijfsrevisoren / Reviseurs d’Entreprises BVo.v.v.e. CVBA/SC s.f.d. SCRL within the meaning of Sections 7 and 11 of the Securities Act.

 

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PART II

INFORMATION NOT REQUIRED IN THE PROSPECTUS

Item 8. Indemnification of Directors and Officers.

Under Belgian law, the directors of a company may be liable for damages to the company in case of improper performance of their duties. Delhaize Group’s directors may be liable to Delhaize Group and to third parties for infringement of Delhaize Group’s articles of association or Belgian company law. Under certain circumstances, directors may be criminally liable. Delhaize Group maintains liability insurance for the benefit of its directors and executive officers.

In order to provide enhanced liability protection for its directors and to attract and retain highly qualified individuals to act as directors, Delhaize Group’s Board of Directors approved on May 3, 2005 the undertaking of Delhaize Group to indemnify Mr. Pierre-Olivier Beckers, Baron Georges Jacobs, Count Arnoud de Pret Roose de Calesberg, Count Richard Goblet d’Alviella, Mr. Robert J. Murray, Dr. William L. Roper and Mr. Didier Smits and all future directors of Delhaize Group to the maximum extent permitted by law, except if the liability or expense is covered by insurance taken by Delhaize Group or if the liability of a director would arise out of such director’s fraud or willful misconduct.

Item 9. Exhibits.

A list of exhibits included as part of this Registration Statement is set forth on the Exhibit Index, which immediately precedes the exhibits and is incorporated by reference herein.

Item 10. Undertakings.

Each of the undersigned registrants hereby undertakes:

(a) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:

(i) to include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;

(ii) to reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Securities and Exchange Commission, or the Commission, pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and

(iii) to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;

provided, however, that paragraphs (i), (ii) and (ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by such registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.

(b) That, for the purpose of determining any liability under the Securities Act of 1933, each such post- effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 

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(c) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.

(d) To file a post–effective amendment to the registration statement to include any financial statements required by Item 8.A. of Form 20–F at the start of any delayed offering or throughout a continuous offering. Financial statements and information otherwise required by Section 10(a)(3) of the Securities Act need not be furnished, provided that each registrant includes in the prospectus, by means of a post–effective amendment, financial statements required pursuant to this paragraph (d) and other information necessary to ensure that all other information in the prospectus is at least as current as the date of those financial statements. Notwithstanding the foregoing, a post–effective amendment need not be filed to include financial statements and information required by Section 10(a)(3) of the Securities Act or Item 8.A. of Form 20–F if such financial statements and information are contained in periodic reports filed with or furnished to the Commission by each registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement.

(e) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:

(i) each prospectus filed by a registrant pursuant to Rule 424(b )(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and

(ii) each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of an issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which the prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.

(f) That, for the purpose of determining liability of such registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, each undersigned registrant undertakes that in a primary offering of securities of an undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, such undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:

(i) any preliminary prospectus or prospectus of an undersigned registrant relating to the offering required to be filed pursuant to Rule 424;

(ii) any free writing prospectus relating to the offering prepared by or on behalf of an undersigned registrant or used or referred to by an undersigned registrant;

(iii) the portion of any other free writing prospectus relating to the offering containing material information about an undersigned registrant or its securities provided by or on behalf of an undersigned registrant; and

(iv) any other communication that is an offer in the offering made by an undersigned registrant to the purchaser.

 

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(g) That, for purposes of determining any liability under the Securities Act of 1933, each filing of such registrant’s annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

(h) To file an application for the purpose of determining the eligibility of any trustee to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the Commission under Section 305(b)(2) of the Trust Indenture Act.

Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of each registrant pursuant to the foregoing provisions, or otherwise, each registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by a registrant of expenses incurred or paid by a director, officer or controlling person of a registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, that registrant will, unless in the opinion of its counsel the issue has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue.

 

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SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form F-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Brussels, Kingdom of Belgium, on January 27, 2009.

 

ETABLISSEMENTS DELHAIZE FRERES ET

CIE “LE LION” (GROUPE DELHAIZE)

By:

 

/s/    Pierre-Olivier Beckers        

  Pierre-Olivier Beckers
  President and Chief Executive Officer

POWER OF ATTORNEY

KNOW ALL BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Richard A. James and G. Linn Evans, and each of them, such person’s true and lawful attorney-in-fact and agent, with full power to act without the other and with full power of substitution and resubstitution, for such person and on such person’s behalf and in such person’s name, place and stead, in any and all capacities, to sign, execute and file with the Securities and Exchange Commission and any state securities regulatory board or commission any documents relating to the proposed issuance and registration of the securities offered pursuant to this registration statement under the Securities Act, including any and all amendments (including post-effective amendments and amendments thereto) to this registration statement and any registration statement for the same offering that is to be effective upon filing pursuant to Rule 462(b) under the Securities Act, with all exhibits and any and all documents required to be filed with respect thereto with any regulatory authority, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises in order to effectuate the same as fully to all intents and purposes as he might or could do if personally present, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or such person’s substitute or substitutes, may lawfully do or cause to be done.

Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated on January 27, 2009.

 

Signature

  

Title

/s/    Count Georges Jacobs        

Count Georges Jacobs

   Chairman of the Board of Directors

/s/    Pierre-Olivier Beckers        

Pierre-Olivier Beckers

   President and Chief Executive Officer, Director (Principal Executive Officer)

/s/    Stéfan Descheemaeker        

Stéfan Descheemaeker

  

Executive Vice President and
Chief Financial Officer

(Principal Financial and Accounting Officer)

/s/    G. Linn Evans        

G. Linn Evans

  

Vice President

(Authorized Representative in the U.S.)

/s/    Claire H. Babrowski        

Claire H. Babrowski

   Director

 

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Signature

  

Title

/s/    Count Arnoud de Pret Roose de Calesberg        

Count Arnoud de Pret Roose de Calesberg

   Director

/s/    François Cornélis        

François Cornélis

   Director

/s/    Jacques de Vaucleroy        

Jacques de Vaucleroy

   Director

/s/    Hugh G. Farrington        

Hugh G. Farrington

   Director

/s/    Count Richard Goblet d’Alviella        

Count Richard Goblet d’Alviella

   Director

/s/    Robert J. Murray        

Robert J. Murray

   Director

/s/    Didier Smits        

Didier Smits

   Director

/s/    Jack L. Stahl        

Jack L. Stahl

   Director

/s/    Baron Luc Vansteenkiste        

Baron Luc Vansteenkiste

   Director

 

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Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Salisbury, State of North Carolina, on January 27, 2009.

 

DELHAIZE AMERICA, INC.

By:

 

/s/    Richard A. James        

Name:   Richard A. James
Title:   Vice President of Finance and Treasurer

POWER OF ATTORNEY

KNOW ALL BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Richard A. James and G. Linn Evans, and each of them, such person’s true and lawful attorney-in-fact and agent, with full power to act without the other and with full power of substitution and resubstitution, for such person and on such person’s behalf and in such person’s name, place and stead, in any and all capacities, to sign, execute and file with the Securities and Exchange Commission and any state securities regulatory board or commission any documents relating to the proposed issuance and registration of the securities offered pursuant to this registration statement under the Securities Act, including any and all amendments (including post-effective amendments and amendments thereto) to this registration statement and any registration statement for the same offering that is to be effective upon filing pursuant to Rule 462(b) under the Securities Act, with all exhibits and any and all documents required to be filed with respect thereto with any regulatory authority, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises in order to effectuate the same as fully to all intents and purposes as he might or could do if personally present, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or such person’s substitute or substitutes, may lawfully do or cause to be done.

Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated on January 27, 2009.

 

Signature

  

Title

/s/    Pierre-Olivier Beckers        

Pierre-Olivier Beckers

   President and Chief Executive Officer, Director (Principal Executive Officer)

/s/    Carol M. Herndon        

Carol M. Herndon

  

Executive Vice President—Accounting & Analysis Chief Accounting Officer

(Principal Financial and Accounting Officer)

 

S-3


Table of Contents

Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Salisbury, State of North Carolina, on January 27, 2009.

 

FOOD LION, LLC

By:

 

/s/    G. Linn Evans        

Name:   G. Linn Evans
Title:   Senior Vice President and Secretary

POWER OF ATTORNEY

KNOW ALL BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Richard A. James and G. Linn Evans, and each of them, such person’s true and lawful attorney-in-fact and agent, with full power to act without the other and with full power of substitution and resubstitution, for such person and on such person’s behalf and in such person’s name, place and stead, in any and all capacities, to sign, execute and file with the Securities and Exchange Commission and any state securities regulatory board or commission any documents relating to the proposed issuance and registration of the securities offered pursuant to this registration statement under the Securities Act, including any and all amendments (including post-effective amendments and amendments thereto) to this registration statement and any registration statement for the same offering that is to be effective upon filing pursuant to Rule 462(b) under the Securities Act, with all exhibits and any and all documents required to be filed with respect thereto with any regulatory authority, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises in order to effectuate the same as fully to all intents and purposes as he might or could do if personally present, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or such person’s substitute or substitutes, may lawfully do or cause to be done.

Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated on January 27, 2009.

 

Signature

  

Title

/s/    Richard A. Anicetti        

Richard A. Anicetti

   President and Chief Executive Officer and Manager (Principal Executive Officer)

/s/    Carol M. Herndon        

Carol M. Herndon

   Executive Vice President, Accounting & Analysis and Chief Financial Officer (Principal Financial and Accounting Officer)

/s/    Pierre-Olivier Beckers        

Pierre-Olivier Beckers

   Manager

/s/    G. Linn Evans        

G. Linn Evans

   Manager

 

S-4


Table of Contents

Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Scarborough, State of Maine, on January 27, 2009.

 

HANNAFORD BROS. CO.

By:

 

/s/    Emily D. Dickinson        

Name:   Emily D. Dickinson
Title:   Senior Vice President, Secretary and General Counsel

POWER OF ATTORNEY

KNOW ALL BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Richard A. James and G. Linn Evans, and each of them, such person’s true and lawful attorney-in-fact and agent, with full power to act without the other and with full power of substitution and resubstitution, for such person and on such person’s behalf and in such person’s name, place and stead, in any and all capacities, to sign, execute and file with the Securities and Exchange Commission and any state securities regulatory board or commission any documents relating to the proposed issuance and registration of the securities offered pursuant to this registration statement under the Securities Act, including any and all amendments (including post-effective amendments and amendments thereto) to this registration statement and any registration statement for the same offering that is to be effective upon filing pursuant to Rule 462(b) under the Securities Act, with all exhibits and any and all documents required to be filed with respect thereto with any regulatory authority, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises in order to effectuate the same as fully to all intents and purposes as he might or could do if personally present, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or such person’s substitute or substitutes, may lawfully do or cause to be done.

Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated on January 27, 2009.

 

Signature

  

Title

/s/    Ronald C. Hodge        

Ronald C. Hodge

   President and Chief Executive Officer and Director (Principal Executive Officer)

/s/    Gregory M. Amoroso        

Gregory M. Amoroso

   Senior Vice President and Chief Financial Officer (Principal Financial and Accounting Officer)

 

S-5


Table of Contents

Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Scarborough, State of Maine, on January 27, 2009.

 

KASH N’ KARRY FOOD STORES, INC.

By:

 

/s/    Emily D. Dickinson        

Name:   Emily D. Dickinson
Title:   Secretary and Assistant Treasurer

POWER OF ATTORNEY

KNOW ALL BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Richard A. James and G. Linn Evans, and each of them, such person’s true and lawful attorney-in-fact and agent, with full power to act without the other and with full power of substitution and resubstitution, for such person and on such person’s behalf and in such person’s name, place and stead, in any and all capacities, to sign, execute and file with the Securities and Exchange Commission and any state securities regulatory board or commission any documents relating to the proposed issuance and registration of the securities offered pursuant to this registration statement under the Securities Act, including any and all amendments (including post-effective amendments and amendments thereto) to this registration statement and any registration statement for the same offering that is to be effective upon filing pursuant to Rule 462(b) under the Securities Act, with all exhibits and any and all documents required to be filed with respect thereto with any regulatory authority, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises in order to effectuate the same as fully to all intents and purposes as he might or could do if personally present, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or such person’s substitute or substitutes, may lawfully do or cause to be done.

Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated on January 27, 2009.

 

Signature

  

Title

/s/    Michael T. Vail        

Michael T. Vail

  

President and Chief Operating Officer

(Principal Executive Officer)

/s/    Kimberly G. Bridgham        

Kimberly G. Bridgham

  

Treasurer

(Principal Financial and Accounting Officer)

/s/    Ronald C. Hodge        

Ronald C. Hodge

   Chairman and Director

 

S-6


Table of Contents

Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Salisbury, State of North Carolina, on January 27, 2009.

 

FL FOOD LION, INC.

By:

 

/s/    G. Linn Evans        

Name:   G. Linn Evans
Title:   Secretary

POWER OF ATTORNEY

KNOW ALL BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Richard A. James and G. Linn Evans, and each of them, such person’s true and lawful attorney-in-fact and agent, with full power to act without the other and with full power of substitution and resubstitution, for such person and on such person’s behalf and in such person’s name, place and stead, in any and all capacities, to sign, execute and file with the Securities and Exchange Commission and any state securities regulatory board or commission any documents relating to the proposed issuance and registration of the securities offered pursuant to this registration statement under the Securities Act, including any and all amendments (including post-effective amendments and amendments thereto) to this registration statement and any registration statement for the same offering that is to be effective upon filing pursuant to Rule 462(b) under the Securities Act, with all exhibits and any and all documents required to be filed with respect thereto with any regulatory authority, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises in order to effectuate the same as fully to all intents and purposes as he might or could do if personally present, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or such person’s substitute or substitutes, may lawfully do or cause to be done.

Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated on January 27, 2009.

 

Signature

  

Title

/s/    Richard A. Anicetti        

Richard A. Anicetti

  

President and Director

(Principal Executive Officer)

/s/    Richard A. James        

Richard A. James

  

Treasurer and Assistant Secretary

(Principal Financial and Accounting Officer)

/s/    Derrick Penick        

Derrick Penick

   Director

/s/    G. Linn Evans        

G. Linn Evans

   Director

 

S-7


Table of Contents

Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Salisbury, State of North Carolina, on January 27, 2009.

 

RISK MANAGEMENT SERVICES, INC.

By:

 

/s/    G. Linn Evans        

Name:   G. Linn Evans
Title:   Secretary

POWER OF ATTORNEY

KNOW ALL BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Richard A. James and G. Linn Evans, and each of them, such person’s true and lawful attorney-in-fact and agent, with full power to act without the other and with full power of substitution and resubstitution, for such person and on such person’s behalf and in such person’s name, place and stead, in any and all capacities, to sign, execute and file with the Securities and Exchange Commission and any state securities regulatory board or commission any documents relating to the proposed issuance and registration of the securities offered pursuant to this registration statement under the Securities Act, including any and all amendments (including post-effective amendments and amendments thereto) to this registration statement and any registration statement for the same offering that is to be effective upon filing pursuant to Rule 462(b) under the Securities Act, with all exhibits and any and all documents required to be filed with respect thereto with any regulatory authority, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises in order to effectuate the same as fully to all intents and purposes as he might or could do if personally present, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or such person’s substitute or substitutes, may lawfully do or cause to be done.

Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated on January 27, 2009.

 

Signature

  

Title

/s/    Dewey R. Preslar, Jr.        

Dewey R. Preslar, Jr.

  

President and Director

(Principal Executive Officer)

/s/    Richard A. James        

Richard A. James

  

Treasurer

(Principal Financial and Accounting Officer)

/s/    Robert J. Stapleton        

Robert J. Stapleton

   Director

/s/    G. Linn Evans        

G. Linn Evans

   Director

 

S-8


Table of Contents

Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Scarborough, State of Maine, on January 27, 2009.

 

HANNBRO COMPANY

By:

 

/s/    Emily D. Dickinson        

Name:   Emily D. Dickinson
Title:   President

POWER OF ATTORNEY

KNOW ALL BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Richard A. James and G. Linn Evans, and each of them, such person’s true and lawful attorney-in-fact and agent, with full power to act without the other and with full power of substitution and resubstitution, for such person and on such person’s behalf and in such person’s name, place and stead, in any and all capacities, to sign, execute and file with the Securities and Exchange Commission and any state securities regulatory board or commission any documents relating to the proposed issuance and registration of the securities offered pursuant to this registration statement under the Securities Act, including any and all amendments (including post-effective amendments and amendments thereto) to this registration statement and any registration statement for the same offering that is to be effective upon filing pursuant to Rule 462(b) under the Securities Act, with all exhibits and any and all documents required to be filed with respect thereto with any regulatory authority, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises in order to effectuate the same as fully to all intents and purposes as he might or could do if personally present, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or such person’s substitute or substitutes, may lawfully do or cause to be done.

Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated on January 27, 2009.

 

Signature

  

Title

/s/    Emily D. Dickinson        

Emily D. Dickinson

  

President and Director

(Principal Executive Officer)

/s/    Kimberly G. Bridgham        

Kimberly G. Bridgham

  

Treasurer, Secretary and Director

(Principal Financial and Accounting Officer)

/s/    Ronald C. Hodge        

Ronald C. Hodge

   Vice President and Director

 

S-9


Table of Contents

Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Scarborough, State of Maine, on January 27, 2009.

 

MARTIN’S FOODS OF SOUTH BURLINGTON, INC.

By:

 

/s/    Emily D. Dickinson        

Name:   Emily D. Dickinson
Title:   Assistant Secretary

POWER OF ATTORNEY

KNOW ALL BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Richard A. James and G. Linn Evans, and each of them, such person’s true and lawful attorney-in-fact and agent, with full power to act without the other and with full power of substitution and resubstitution, for such person and on such person’s behalf and in such person’s name, place and stead, in any and all capacities, to sign, execute and file with the Securities and Exchange Commission and any state securities regulatory board or commission any documents relating to the proposed issuance and registration of the securities offered pursuant to this registration statement under the Securities Act, including any and all amendments (including post-effective amendments and amendments thereto) to this registration statement and any registration statement for the same offering that is to be effective upon filing pursuant to Rule 462(b) under the Securities Act, with all exhibits and any and all documents required to be filed with respect thereto with any regulatory authority, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises in order to effectuate the same as fully to all intents and purposes as he might or could do if personally present, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or such person’s substitute or substitutes, may lawfully do or cause to be done.

Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated on January 27, 2009.

 

Signature

  

Title

/s/    Ronald C. Hodge        

Ronald C. Hodge

   President and Director (Principal Executive Officer)

/s/    Kimberly G. Bridgham        

Kimberly G. Bridgham

   Treasurer and Assistant Secretary (Principal Financial and Accounting Officer)

/s/    Arthur A. Aleshire        

Arthur A. Aleshire

   Vice President and Director

/s/    Emily D. Dickinson        

Emily D. Dickinson

   Assistant Secretary and Director

/s/    Douglas C. Pierson        

Douglas C. Pierson

   Secretary and Director

/s/    Richard H. Wadhams, Jr.        

Richard H. Wadhams, Jr.

   Director

/s/    Katharine R. Quinn        

Katharine R. Quinn

   Director

/s/    Judith A. White        

Judith A. White

   Director

 

S-10


Table of Contents

Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Scarborough, State of Maine, on January 27, 2009.

 

SHOP ‘N SAVE-MASS., INC.

By:

 

/s/    Emily D. Dickinson        

Name:   Emily D. Dickinson
Title:   Secretary

POWER OF ATTORNEY

KNOW ALL BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Richard A. James and G. Linn Evans, and each of them, such person’s true and lawful attorney-in-fact and agent, with full power to act without the other and with full power of substitution and resubstitution, for such person and on such person’s behalf and in such person’s name, place and stead, in any and all capacities, to sign, execute and file with the Securities and Exchange Commission and any state securities regulatory board or commission any documents relating to the proposed issuance and registration of the securities offered pursuant to this registration statement under the Securities Act, including any and all amendments (including post-effective amendments and amendments thereto) to this registration statement and any registration statement for the same offering that is to be effective upon filing pursuant to Rule 462(b) under the Securities Act, with all exhibits and any and all documents required to be filed with respect thereto with any regulatory authority, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises in order to effectuate the same as fully to all intents and purposes as he might or could do if personally present, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or such person’s substitute or substitutes, may lawfully do or cause to be done.

Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated on January 27, 2009.

 

Signature

  

Title

/s/    Ronald C. Hodge        

Ronald C. Hodge

  

President

(Principal Executive Officer)

/s/    Kimberly G. Bridgham        

Kimberly G. Bridgham

  

Treasurer and Assistant Secretary

(Principal Financial and Accounting Officer)

/s/    Cristin Sutherland        

Cristin Sutherland

   Director

 

S-11


Table of Contents

Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Scarborough, State of Maine, on January 27, 2009.

 

HANNAFORD PROCUREMENT CORP.

By:

 

/s/    Emily D. Dickinson        

Name:   Emily D. Dickinson
Title:   Secretary

POWER OF ATTORNEY

KNOW ALL BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Richard A. James and G. Linn Evans, and each of them, such person’s true and lawful attorney-in-fact and agent, with full power to act without the other and with full power of substitution and resubstitution, for such person and on such person’s behalf and in such person’s name, place and stead, in any and all capacities, to sign, execute and file with the Securities and Exchange Commission and any state securities regulatory board or commission any documents relating to the proposed issuance and registration of the securities offered pursuant to this registration statement under the Securities Act, including any and all amendments (including post-effective amendments and amendments thereto) to this registration statement and any registration statement for the same offering that is to be effective upon filing pursuant to Rule 462(b) under the Securities Act, with all exhibits and any and all documents required to be filed with respect thereto with any regulatory authority, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises in order to effectuate the same as fully to all intents and purposes as he might or could do if personally present, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or such person’s substitute or substitutes, may lawfully do or cause to be done.

Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated on January 27, 2009.

 

Signature

  

Title

/s/    Ronald C. Hodge        

Ronald C. Hodge

  

President and Director

(Principal Executive Officer)

/s/    Kimberly G. Bridgham        

Kimberly G. Bridgham

   Treasurer, Assistant Secretary and Director (Principal Financial and Accounting Officer)

/s/    Emily D. Dickinson        

Emily D. Dickinson

   Secretary and Director

 

S-12


Table of Contents

Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Scarborough, State of Maine, on January 27, 2009.

 

BONEY WILSON & SONS, INC.

By:

 

/s/    Emily D. Dickinson        

Name:   Emily D. Dickinson
Title:   Secretary

POWER OF ATTORNEY

KNOW ALL BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Richard A. James and G. Linn Evans, and each of them, such person’s true and lawful attorney-in-fact and agent, with full power to act without the other and with full power of substitution and resubstitution, for such person and on such person’s behalf and in such person’s name, place and stead, in any and all capacities, to sign, execute and file with the Securities and Exchange Commission and any state securities regulatory board or commission any documents relating to the proposed issuance and registration of the securities offered pursuant to this registration statement under the Securities Act, including any and all amendments (including post-effective amendments and amendments thereto) to this registration statement and any registration statement for the same offering that is to be effective upon filing pursuant to Rule 462(b) under the Securities Act, with all exhibits and any and all documents required to be filed with respect thereto with any regulatory authority, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises in order to effectuate the same as fully to all intents and purposes as he might or could do if personally present, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or such person’s substitute or substitutes, may lawfully do or cause to be done.

Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated on January 27, 2009.

 

Signature

  

Title

/s/    Ronald C. Hodge        

Ronald C. Hodge

  

President and Director

(Principal Executive Officer)

/s/    Kimberly G. Bridgham        

Kimberly G. Bridgham

  

Treasurer and Assistant Secretary

(Principal Financial and Accounting Officer)

/s/    Arthur A. Aleshire        

Arthur A. Aleshire

   Vice President and Director

/s/    Emily D. Dickinson        

Emily D. Dickinson

   Secretary and Director

 

S-13


Table of Contents

Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Salisbury, State of North Carolina, on January 27, 2009.

 

J.H. HARVEY CO., LLC

By:

 

/s/    G. Linn Evans        

Name:   G. Linn Evans
Title:   Vice President and Secretary

POWER OF ATTORNEY

KNOW ALL BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Richard A. James and G. Linn Evans, and each of them, such person’s true and lawful attorney-in-fact and agent, with full power to act without the other and with full power of substitution and resubstitution, for such person and on such person’s behalf and in such person’s name, place and stead, in any and all capacities, to sign, execute and file with the Securities and Exchange Commission and any state securities regulatory board or commission any documents relating to the proposed issuance and registration of the securities offered pursuant to this registration statement under the Securities Act, including any and all amendments (including post-effective amendments and amendments thereto) to this registration statement and any registration statement for the same offering that is to be effective upon filing pursuant to Rule 462(b) under the Securities Act, with all exhibits and any and all documents required to be filed with respect thereto with any regulatory authority, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises in order to effectuate the same as fully to all intents and purposes as he might or could do if personally present, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or such person’s substitute or substitutes, may lawfully do or cause to be done.

Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated on January 27, 2009.

 

Signature

  

Title

/s/    Margaret M. Ham        

Margaret M. Ham

  

President

(Principal Executive Officer)

/s/    Richard A. James        

Richard A. James

  

Treasurer

(Principal Financial and Accounting Officer)

/s/    Richard A. Anicetti        

Richard A. Anicetti

   Manager

/s/    Thomas J. Robinson        

Thomas J. Robinson

   Manager

/s/    G. Linn Evans        

G. Linn Evans

   Manager

 

S-14


Table of Contents

Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Scarborough, State of Maine, on January 27, 2009.

 

HANNAFORD LICENSING CORP.

By:

 

/s/    Emily D. Dickinson        

Name:   Emily D. Dickinson
Title:   Secretary

POWER OF ATTORNEY

KNOW ALL BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Richard A. James and G. Linn Evans, and each of them, such person’s true and lawful attorney-in-fact and agent, with full power to act without the other and with full power of substitution and resubstitution, for such person and on such person’s behalf and in such person’s name, place and stead, in any and all capacities, to sign, execute and file with the Securities and Exchange Commission and any state securities regulatory board or commission any documents relating to the proposed issuance and registration of the securities offered pursuant to this registration statement under the Securities Act, including any and all amendments (including post-effective amendments and amendments thereto) to this registration statement and any registration statement for the same offering that is to be effective upon filing pursuant to Rule 462(b) under the Securities Act, with all exhibits and any and all documents required to be filed with respect thereto with any regulatory authority, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises in order to effectuate the same as fully to all intents and purposes as he might or could do if personally present, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or such person’s substitute or substitutes, may lawfully do or cause to be done.

Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated on January 27, 2009.

 

Signature

  

Title

/s/    Ronald C. Hodge        

Ronald C. Hodge

  

President and Director

(Principal Executive Officer)

/s/    Kimberly G. Bridgham        

Kimberly G. Bridgham

  

Treasurer, Assistant Secretary and Director

(Principal Financial and Accounting Officer)

/s/    Emily D. Dickinson        

Emily D. Dickinson

   Secretary and Director

 

S-15


Table of Contents

Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Scarborough, State of Maine, on January 27, 2009.

 

VICTORY DISTRIBUTORS, INC.

By:

 

/s/    Emily D. Dickinson        

Name:   Emily D. Dickinson
Title:   Secretary

POWER OF ATTORNEY

KNOW ALL BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Richard A. James and G. Linn Evans, and each of them, such person’s true and lawful attorney-in-fact and agent, with full power to act without the other and with full power of substitution and resubstitution, for such person and on such person’s behalf and in such person’s name, place and stead, in any and all capacities, to sign, execute and file with the Securities and Exchange Commission and any state securities regulatory board or commission any documents relating to the proposed issuance and registration of the securities offered pursuant to this registration statement under the Securities Act, including any and all amendments (including post-effective amendments and amendments thereto) to this registration statement and any registration statement for the same offering that is to be effective upon filing pursuant to Rule 462(b) under the Securities Act, with all exhibits and any and all documents required to be filed with respect thereto with any regulatory authority, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises in order to effectuate the same as fully to all intents and purposes as he might or could do if personally present, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or such person’s substitute or substitutes, may lawfully do or cause to be done.

Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated on January 27, 2009.

 

Signature

  

Title

/s/    Ronald C. Hodge        

Ronald C. Hodge

  

President

(Principal Executive Officer)

/s/    Kimberly G. Bridgham        

Kimberly G. Bridgham

  

Treasurer

(Principal Financial and Accounting Officer)

/s/    Cristin Sutherland        

Cristin Sutherland

   Director

 

S-16


Table of Contents

INDEX TO EXHIBITS

The following is a complete list of exhibits filed as part of this registration statement:

 

Exhibit No.

  

Description

  1.1    Underwriting Agreement for Debt Securities of Delhaize Group *
  4.1    Cross Guarantee Agreement, dated May 21, 2007, by and among Delhaize Group, Delhaize America, Inc. Food Lion, LLC, Hannaford Bros. Co., Kash n’ Karry Food Stores, Inc., FL Food Lion, Inc., Risk Management Services, Inc., Hannbro Company, Martin’s Foods of South Burlington, Inc., Shop ‘n Save-Mass, Inc., Hannaford Procurement Corp., Boney Wilson & Sons, Inc., J.H. Harvey Co., LLC, Hannaford Licensing Corp. and Victory Distributors, Inc. (incorporated by reference to Exhibit 99.2 to Delhaize Group’s Report on Form 6-K, filed on May 29, 2007)
  4.2    Form of Indenture by and among Delhaize Group and The Bank of New York Mellon, as trustee
  4.3    Form of Debt Security of Delhaize Group (incorporated by reference to Exhibit A of the Form of Indenture)
  4.4    Form of Deposit Agreement among Delhaize Group and The Bank of New York Mellon, as CDI Depositary
  5.1    Opinion of Freshfields, Bruckhaus & Deringer LLP regarding legality of the debt securities
  5.2    Opinion of Hunton & Williams LLP, regarding legality of the guarantees of Kash n’ Karry Food Stores, Inc., FL Food Lion, Inc. and J. H. Harvey Co., LLC
  5.3    Opinion of Assistant General Counsel of Delhaize America, Inc., regarding legality of the guarantees of Delhaize America, Inc., Food Lion, LLC, Risk Management Services, Inc., Boney Wilson & Sons, Inc.
  5.4    Opinion of General Counsel of Hannaford Bros. Co., regarding legality of the guarantees of Hannaford Bros. Co., Hannbro Company, Shop ‘n Save-Mass, Inc., Hannaford Procurement Corp., Hannaford Licensing Corp. and Victory Distributors, Inc.
  5.5    Opinion of Pierson Wadhams Quinn Yates & Coffrin, regarding legality of the guarantee of Martin’s Foods of South Burlington, Inc.
12.1    Statement regarding computation of ratios
15.1    Letter from Deloitte Bedrijfsrevisoren / Reviseurs d’Entreprises BVo.v.v.e. CVBA/SC s.f.d. SCRL regarding unaudited interim financial information
23.1    Consent of Deloitte Bedrijfsrevisoren / Reviseurs d’Entreprises BVo.v.v.e. CVBA/SC s.f.d. SCRL
23.2    Consent of Freshfields, Bruckhaus & Deringer LLP (included in Exhibit 5.1)
23.3    Consent of Hunton & Williams LLP (included in Exhibit 5.2)
23.4    Consent of Assistant General Counsel of Delhaize America, Inc. (included in Exhibit 5.3)
23.5    Consent of General Counsel of Hannaford Bros. Co. (included in Exhibit 5.4)
23.6    Consent of Pierson Wadhams Quinn Yates & Coffrin (included in Exhibit 5.5)
24.1    Powers of Attorney (included on signature pages of registration statement)
25.1    Statement of Eligibility of Trustee on Form T-1 under the Trust Indenture Act of 1939 of The Bank of New York Mellon

 

* To be filed either as an amendment or as an exhibit to a report filed or furnished under the Exchange Act and incorporated herein by reference.

 

E-1

EX-4.2 2 dex42.htm EXHIBIT 4.2 Exhibit 4.2

Exhibit 4.2

 

 

DELHAIZE GROUP SA/NV,

as Issuer

and

THE BANK OF NEW YORK MELLON,

as Trustee

Senior Securities

 

 

INDENTURE

Dated as of [], 2009

 

 

 

 


Reconciliation table between Trust Indenture Act of 1939,

as amended by the Trust Indenture Reform Act of 1990,

and this Indenture, dated as of [], 2009*

 

Trust Indenture Act Section

       

Indenture Section

§ 310 (a)(1)

      7.10

          (a)(2)

      7.10

          (a)(3)

      Not Applicable

          (a)(4)

      Not Applicable

          (b)

      7.10

§ 311 (a)

      7.11

          (b)

      7.11

          (b)(2)

      7.11

§ 312 (a)

      2.06

          (b)

      10.03

          (c)

      10.03

§ 313 (a)

      7.06

          (b)

      7.06

          (c)

      7.06, 10.02

          (d)

      7.06

§ 314 (a)

      4.02, 4.03

          (b)

      Not Applicable

          (c)(1)

      10.04

          (c)(2)

      10.04

          (c)(3)

      Not Applicable

          (d)

      Not Applicable

          (e)

      10.05

§ 315 (a)

      7.01

          (b)

      7.05

          (c)

      7.01

          (d)

      7.01

          (e)

      6.11

§ 316 (a)(1)(A)

      6.05

          (a)(1)(B)

      6.04

          (a)(2)

      Not Applicable

          (b)

      6.07

          (c)

      9.04

§ 317 (a)(1)

      6.08

          (a)(2)

      6.09

          (b)

      2.05

§ 318 (a)

      10.01

 

* This reconciliation table shall not, for any purpose, be deemed part of the Indenture.

 

ii


TABLE OF CONTENTS

 

ARTICLE 1 Definitions and Incorporation by Reference

   1

SECTION 1.01. Definitions

   1

SECTION 1.02. Other Definitions

   7

SECTION 1.03. Incorporation by Reference of Trust Indenture Act

   7

SECTION 1.04. Rules of Construction

   8

ARTICLE 2 The Securities

   9

SECTION 2.01. Issuable in Series

   9

SECTION 2.02. Form and Dating

   11

SECTION 2.03. Execution and Authentication

   12

SECTION 2.04. Registrar and Paying Agent

   13

SECTION 2.05. Paying Agent to Hold Money in Trust

   14

SECTION 2.06. Holder Lists

   15

SECTION 2.07. Transfer and Exchange

   15

SECTION 2.08. Replacement Securities

   16

SECTION 2.09. Outstanding Securities

   17

SECTION 2.10. Temporary Securities

   17

SECTION 2.11. Cancellation

   17

SECTION 2.12. Defaulted Interest

   18

SECTION 2.13. ISINs, Common Codes and CUSIPs

   18

SECTION 2.14. Consent of Holders of the Securities

   18

SECTION 2.15. Currency Indemnity

   18

SECTION 2.16 Computation of Interest

   19

ARTICLE 3 Redemption

   19

SECTION 3.01. Notices to Trustee

   19

SECTION 3.02. Selection of Securities to be Redeemed

   20

SECTION 3.03. Notice of Redemption

   20

SECTION 3.04. Effect of Notice of Redemption

   21

SECTION 3.05. Deposit of Redemption Price

   21

SECTION 3.06. Securities Redeemed in Part

   22

SECTION 3.07 Optional Redemption for Tax Reasons

   22

ARTICLE 4 Covenants

   23

SECTION 4.01. Payment of Securities

   23

SECTION 4.02. Compliance Certificate

   23

SECTION 4.03. Reports by the Issuer

   24

SECTION 4.04. Further Instruments and Acts

   24

SECTION 4.05. Payments of Additional Amounts

   24

SECTION 4.06. Certain Release of Guarantees

   27

ARTICLE 5 Successor Issuer

   28

SECTION 5.01. When Issuer May Merge or Transfer Assets

   28

SECTION 5.02. Successor Corporation Substituted

   28

ARTICLE 6 Defaults and Remedies

   29

SECTION 6.01. Events of Default

   29

SECTION 6.02. Acceleration

   30

SECTION 6.03. Other Remedies

   31

 

iii


SECTION 6.04. Waiver of Past Defaults

   31

SECTION 6.05. Control by Majority

   31

SECTION 6.06. Limitation on Suits

   31

SECTION 6.07. Rights of Holders to Receive Payment

   32

SECTION 6.08. Collection Suit by Trustee

   32

SECTION 6.09. Trustee May File Proofs of Claim

   32

SECTION 6.10. Priorities

   33

SECTION 6.11. Undertaking for Costs

   33

SECTION 6.12. Waiver of Stay or Extension Laws

   33

SECTION 6.13. No Obligation on Trustee

   33

ARTICLE 7 Trustee

   34

SECTION 7.01. Duties of Trustee

   34

SECTION 7.02. Rights of Trustee

   35

SECTION 7.03. Individual Rights of Trustee

   36

SECTION 7.04. Trustee’s Disclaimer

   36

SECTION 7.05. Notice of Defaults

   36

SECTION 7.06. Reports by Trustee to Holders

   36

SECTION 7.07. Compensation and Indemnity

   37

SECTION 7.08. Replacement of Trustee

   38

SECTION 7.09. Successor Trustee by Merger

   39

SECTION 7.10. Eligibility; Disqualification

   39

SECTION 7.11. Preferential Collection of Claims Against Issuer

   39

SECTION 7.12. Force Majeure

   39

ARTICLE 8 Discharge of Indenture; Defeasance

   40

SECTION 8.01. Discharge of Liability on Securities; Defeasance

   40

SECTION 8.02. Conditions to Defeasance

   41

SECTION 8.03. Application of Trust Money

   42

SECTION 8.04. Repayment to Issuer

   43

SECTION 8.05. Indemnity for Government Obligations

   43

SECTION 8.06. Reinstatement

   43

ARTICLE 9 Supplemental Indentures

   43

SECTION 9.01. Without Consent of Holders

   43

SECTION 9.02. With Consent of Holders

   44

SECTION 9.03. Compliance with Trust Indenture Act and Article 568 of the Belgian Company Code

   46

SECTION 9.04. Revocation and Effect of Consents, Waivers and Proxies

   46

SECTION 9.05. Notation on or Exchange of Securities

   46

SECTION 9.06. Trustee to Sign Supplemental Indentures

   47

SECTION 9.07. Payment for Consent

   47

ARTICLE 10 Miscellaneous

   47

SECTION 10.01. Trust Indenture Act Controls

   47

SECTION 10.02. Notices

   48

SECTION 10.03. Communication by Holders with Other Holders

   49

SECTION 10.04. Certificate and Opinion as to Conditions Precedent

   49

SECTION 10.05. Statements Required in Certificate or Opinion

   49

SECTION 10.06. Acts by Holders

   49

SECTION 10.07. Rules by Trustee, Paying Agent and Registrar

   50

 

iv


SECTION 10.08. Legal Holidays

   50

SECTION 10.09. Governing Law

   50

SECTION 10.10. Consent to Jurisdiction and Service

   50

SECTION 10.11. No Recourse Against Others

   50

SECTION 10.12. Successors

   50

SECTION 10.13. Multiple Originals

   51

SECTION 10.14. Table of Contents; Headings

   51

SECTION 10.15. Prescription

   51

Appendix A Provisions Relating to Securities

   A-1

Appendix B Provisions for Meetings of the Holders of Securities

   B-1

Exhibit A Form of Face of Initial Security

   A-I

Exhibit B Form of Face of Definitive Registered Certificate

   B-I

 

v


THIS INDENTURE dated as of [], 2009, among Delhaize Group SA/NV (the “Issuer”), a limited liability company organized under the laws of the Kingdom of Belgium, and The Bank of New York Mellon, a New York banking corporation, as trustee (the “Trustee”).

Each party agrees as follows for the benefit of the other parties and for the equal and ratable benefit of the Holders (as defined herein) of the Issuer’s senior unsecured debentures, notes or other evidence of indebtedness (the “Securities”), to be issued from time to time in one or more series as in this Indenture provided.

ARTICLE 1

Definitions and Incorporation by Reference

SECTION 1.01. Definitions

“Agency Agreement” means, with respect to a particular series, the Agency Agreement dated on or about the Issue Date for that series among the Issuer, the Principal Paying Agent and the Trustee;

“Board of Directors” means the Board of Directors of the Issuer or any committee thereof duly authorised to act on behalf of the Board of Directors of the Issuer;

“Book-Entry Interest” means a book-entry interest in a Global Security of any series, whether directly or indirectly through a book-entry interest in any certificated depositary interest representing an interest in such Global Security, held by or through a Participant in the X/N System or an Indirect Participant in the X/N System;

“Business Day” means each day which is not a Legal Holiday;

“Capital Stock” of any Person means any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) equity of such Person, including any Preferred Stock, but excluding any debt securities convertible into such equity.

“Capitalized Lease Obligation” means an obligation under a lease that is required to be capitalised for financial reporting purposes in accordance with IFRS and as in effect as of the date hereof, and the amount of Indebtedness represented by such obligation shall be the capitalised amount of such obligation determined in accordance with such principles;

“Clearing Agreement” means, with respect to a particular series, the clearing agreement dated on or about the Issue Date for that series by and among the Issuer, the NBB and the Principal Paying Agent;

“Code” means the U.S. Internal Revenue Code of 1986, as amended;


“Consolidated Capitalization” means, with respect to any Person, the total assets of such Person and its Subsidiaries determined on a consolidated basis, less the following: (i) current liabilities, including liabilities for Indebtedness maturing more than 12 months from the date of the original creation thereof but maturing within 12 months from the date of determination and (ii) deferred income taxes. Consolidated Capitalization shall be determined in accordance with generally accepted accounting principles and practices applicable to the type of business in which such Person and its Subsidiaries are engaged and which are approved by independent accountants regularly retained by such Person, and may be determined as of a date not more than 60 days prior to the happening of the event for which such determination is being made;

“Cross Guarantee Agreement” means, the cross guarantee agreement, dated as of May 21, 2007, among Delhaize Group, Delhaize America, Inc., Food Lion, LLC, Hannaford Bros. Co., Kash N’ Karry Food Stores, Inc., FL Food Lion, Inc., Risk Management Services, Inc., Hannbro Company, Martin’s Foods of South Burlington, Inc., Shop’N Save-Mass., Inc., Hannaford Procurement Corp., Boney Wilson & Sons, Inc., J.H. Harvey Co., LLC, Hannaford Licensing Corp., and Victory Distributors, Inc.;

“Cross Guarantor” means a Person that is a party to the Cross Guarantee Agreement;

“Default” means any event which is, or after notice or passage of time or both would be, an Event of Default with respect to any series of Securities;

“Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended;

“Holder” means (a) in the case of any Securities of any series in the form of a Global Security in bearer form, the holders of Book-Entry Interests therein; provided, however, that for the purposes of (i) payments of principal, premium, if any, and interest on such Securities and (ii) providing its consent or voting, in particular pursuant to Sections 6.04 and 9.02, “Holder” shall mean the direct holder of such Securities (as shown in the records of the NBB or of a Participant in the X/N System) or (b) in any other case, the Person in whose name a Security of such series is registered on the Registrar’s books;

“IFRS” means International Financial Reporting Standards as adopted by the European Union;

“Indebtedness” means, with respect to any Person, (i) the principal of and any premium and interest on (a) indebtedness of such Person for money borrowed and (b) indebtedness evidenced by notes, debentures, bonds or other similar instruments; (ii) all Capitalized Lease Obligations of such Person; (iii) all obligations of such Person to pay the purchase price of property, all conditional sale obligations and all obligations under any title retention agreement (but excluding trade accounts payable arising in the ordinary course of business); (iv) all obligations of such Person for the reimbursement of any obligor on any letter of credit, banker’s acceptance or similar credit transaction (other

 

2


than obligations for letters of credit securing obligations (other than obligations described in clauses (i) through (iii) above) entered into in the ordinary course of business of such Person to the extent such letters of credit are not drawn upon or, if and to the extent drawn upon, such drawing is reimbursed no later than the third Business Day following receipt by such Person of a demand for reimbursement following payment on the letter of credit); (v) all obligations of the type referred to in clauses (i) through (iv) of other Persons and all dividends of other Persons for the payment of which, in either case, such Person is responsible or liable as obligor, guarantor or otherwise; and (vi) all obligations of the type referred to in clauses (i) through (v) above of other Persons secured by any Lien on any property or asset of such Person (whether or not such obligation is assumed by such Person), the amount of such obligation being deemed to be the lesser of the value of such property or assets or the amount of the obligation so secured.

“Indenture” means this instrument as originally executed and as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof including, for purposes of this instrument and any such supplemental indenture, the provisions of the TIA that are deemed to be a part of and govern this instrument and any such supplemental indenture, respectively. The term “Indenture” shall also include the terms of a particular series of Securities established as contemplated by Section 2.01;

“Indirect Participant” means a Person who is a Participant in the X/N System indirectly by being a Participant in a Person who is a direct Participant or itself an Indirect Participant in the X/N System;

“Issue Date” means date of first issuance of Securities of a particular series;

“Issuer” means the party named as such in this Indenture until a successor replaces it and, thereafter, means the successor and, for purposes of any provision contained herein and required by the TIA, each other obligor on the indenture securities;

“Lien” means, any mortgage, charge, pledge, lien or other form of encumbrance or security interest;

“Major Subsidiary” means a Subsidiary, the assets of which represent greater than 25% of the assets of the Issuer and the Issuer’s Subsidiaries on a consolidated basis, according to the financial statements for its own most recently completed fiscal year;

“Material Subsidiary” at any time means a Subsidiary:

(a) whose (x) revenues, or (y) total assets (in each case determined on a non-consolidated basis and determined on a basis consistent with the preparation of the consolidated financial statements of the Issuer) represent (or, in the case of a Subsidiary acquired after the end of the financial period to which the then latest audited consolidated financial statements of the Issuer relate are equal to ) no less than 10% of the consolidated revenues or total assets (as the case may be) of the Issuer, all as calculated respectively by reference to the then latest audited financial statements of such Subsidiary and the then latest audited consolidated financial statements of the Issuer, provided that:

(i) in the case of a Subsidiary acquired after the end of the financial period to which the then latest audited consolidated financial statements of the Issuer relate, the reference to the then latest audited consolidated financial statements of the Issuer for the purposes of the calculation above shall, until consolidated financial statements of the Issuer for the financial period in which the acquisition is made have been prepared and audited as aforesaid, be deemed to be a reference to such first-mentioned financial statements as if such Subsidiary had been shown in such financial statements by reference to its then latest audited financial statements, adjusted as deemed appropriate by the auditors of the relevant Subsidiary from time to time, if such auditors are not also the auditors of the Issuer, and otherwise, by the Issuer’s Board of Directors and approved by the auditors of the Issuer (the “Auditors”); and

 

3


(ii) in the case of a Subsidiary in respect of which no audited financial statements are prepared, its revenues and total assets shall be determined on the basis of pro forma financial statements of the relevant Subsidiary prepared for this purpose by the Auditors on the basis of accounting principles consistent with those adopted by the Issuer; or

(b) to which is transferred the whole or substantially the whole of the business, undertaking or assets of a Subsidiary which prior to such transfer is a Material Subsidiary, provided that the transferor Subsidiary shall upon such transfer forthwith cease to be a Material Subsidiary pursuant to this sub-paragraph (b) on the date on which the consolidated financial statements of the Issuer for the financial period current at the date of such transfer have been prepared and audited as aforesaid but so that such transferor Subsidiary or such transferee Subsidiary may be a Material Subsidiary on or at any time after the date on which such consolidated financial statements have been prepared and audited as aforesaid by virtue of the provisions of sub-paragraph (a) above or before, on or at any time after such date by virtue of the provisions of this sub-paragraph (b);

A report by the Auditors that, in their opinion, a Subsidiary is or is not or was not at any particular time or throughout any specified period a Material Subsidiary shall, in the absence of manifest error, be conclusive and binding on all parties;

“Member State” means any country that is a member of the European Union;

“Moody’s” means Moody’s Investors Service, Inc., and its successors;

“NBB” means the National Bank of Belgium;

“Officer” means the Chairman of the Board, the Chief Executive Officer, the Chief Financial Officer, the President or any Vice President of the Issuer;

“Officers’ Certificate” means a certificate signed by two Officers;

 

4


“Opinion of Counsel” means a written opinion of counsel, who may be an employee of or counsel for the Issuer or a Cross Guarantor, as the case may be, and who shall be reasonably acceptable to the Trustee;

“Participant” means (a) with respect to the X/N System, Euroclear or Clearstream or any other Person who has an account with the X/N System and (b) with respect to Euroclear, Clearstream and DTC, their respective Participants holding an account with them;

“Person” means any individual, corporation, partnership, limited liability company, joint venture, association, joint-stock company, trust, unincorporated organization, government or any agency or political subdivision thereof or any other entity;

“Redemption Date”, with respect to any Security or portion thereof to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture or such Security;

“Redemption Price”, with respect to any Security or portion thereof to be redeemed, means the price at which it is to be redeemed as determined by or pursuant to this Indenture or such Security;

“SEC” means the U.S. Securities and Exchange Commission, or if at any time after the execution of this instrument such commission is not existing and performing the duties now assigned to it under the TIA, then the body performing such duties at such time;

“Securities” has the meaning set forth in the recitals hereto, and more particularly means any Securities authenticated and delivered under this Indenture;

“Securities Act” means the U.S. Securities Act of 1933, as amended;

“S&P” means Standard & Poor’s Rating Services, a division of The McGraw-Hill Companies, Inc., and its successors.

“Stated Maturity” means, with respect to any security, the date specified in such security as the fixed date on which the final payment of principal of such security is due and payable, including pursuant to any mandatory redemption provision (but excluding any provision providing for the repurchase of such security at the option of the holder thereof upon the happening of any contingency beyond the control of the Issuer unless such contingency has occurred);

“Subsidiary” of any Person means any corporation, association, partnership or other business entity of which more than 50% of the total voting power of shares of Capital Stock or other interests (including partnership interests) entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by (a) such Person, (b) such Person and one or more Subsidiaries of such Person or (c) one or more Subsidiaries of such Person;

 

5


“TIA” means the U.S. Trust Indenture Act of 1939 , as amended;

“Trust Officer” means the Chairman of the Board, the President or any other officer or assistant officer of the Trustee assigned by the Trustee to administer its corporate trust matters or, in the case of a successor Trustee, an authorized officer assigned to the department, division or group performing the corporate trust work of each successor and assigned to administer this Indenture;

“Trustee” means the party named as such in this Indenture until a successor replaces it and, thereafter, means the successor;

“Uniform Commercial Code” means the New York Uniform Commercial Code as in effect from time to time;

“U.S. Government Obligations” means securities that are (1) direct obligations of the United States of America for the timely payment of which its full faith and credit is pledged or (2) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America the timely payment of which is unconditionally guaranteed as a full faith and credit obligation of the United States of America, which, in either case, are not callable or redeemable at the option of the issuer thereof, and shall also include a depositary receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act), as custodian with respect to any such U.S. Government Obligations or a specific payment of principal of or interest on any such U.S. Government Obligations held by such custodian for the account of the holder of such depositary receipt, provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depositary receipt from any amount received by the custodian in respect of the U.S. Government Obligations or the specific payment of principal of or interest on the U.S. Government Obligations evidenced by such depositary receipt; and

“X/N System” means the securities clearing system recognized or approved in accordance with Articles 3 through 12 of the Law of 2 January 1991 of Belgium on the market of public debt securities and the monetary policy instruments, as amended, the Law of 6 August 1993 of Belgium, as amended, and its implementing decrees, as amended, and the Law of 15 July 1998 of Belgium and its implementing decrees, which is currently the securities clearing system operated by the National Bank of Belgium.

 

6


SECTION 1.02. Other Definitions

 

Term

  

Defined

in Section

“Additional Amounts”

   4.05(b)

“Applicable Procedures”

   Appendix A
“Authorized Agent”    10.10

“bankruptcy provisions”

   6.01(g)

“CDI Depositary”

   Appendix A

“Clearstream”

   Appendix A

“covenant defeasance option”

   8.01(b)

“cross-acceleration provision”

   6.01(e)

“Definitive Registered Certificates”

   Appendix A

“Definitive Registered Securities”

   Appendix A

“Disposition”

   4.06

“DTC”

   Appendix A

“Euroclear”

   Appendix A

“Event of Default”

   6.01

“Global Securities”

   Appendix A

“incorporated provision”

   10.01

“legal defeasance option”

   8.01(b)

“Legal Holiday”

   10.08

“Meeting”

   Appendix B

“NBB”

   1.01, Appendix A

“Securities”

   Preamble

“Paying Agent”

   2.04(a)

“Principal Paying Agent”

   Appendix A

“protected purchaser”

   2.08

“Proxy”

   Appendix B

“Register”

   Appendix A

“Registrar”

   2.04(a)

“Relevant Taxing Jurisdiction”

   4.05(a)

“Required Resolution”

   Appendix B

“Sales Exemptions”

   Appendix A

“Taxes”

   4.05(a)

“Tax Redemption”

   3.07

“Trustee”

   Preamble, 1.01

“winding-up provisions”

   6.01(g)

SECTION 1.03. Incorporation by Reference of Trust Indenture Act. This Indenture is subject to the mandatory provisions of the TIA, which are incorporated by reference in and made a part of this Indenture. The following TIA terms have the following meanings:

(a) “Commission” means the SEC;

(b) “indenture securities” means the Securities issued pursuant to this Indenture;

(c) “indenture security holder” means a Holder;

(d) “indenture to be qualified” means this Indenture;

 

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(e) “indenture trustee” or “institutional trustee” means the Trustee;

(f) “obligor” on the indenture securities means the Issuer, any Cross Guarantor and any other obligor on the indenture securities; and

(g) All other terms used in this Indenture that are defined by the TIA, either directly or by reference to another statute or defined by SEC rules have the meanings assigned to them by such definitions.

SECTION 1.04. Rules of Construction. Unless the context otherwise requires:

(a) a term has the meaning assigned to it;

(b) an accounting term not otherwise defined has the meaning assigned to it in accordance with IFRS;

(c) “including” means including without limitation;

(d) the principal amount of any noninterest bearing or other discount security at any date shall be the principal amount thereof that would be shown on a balance sheet of the Issuer dated such date prepared in accordance with IFRS;

(e) the term “surrender”, where the context so admits, shall include, with respect to Securities that cannot be surrendered in physical form, and in particular with respect to Definitive Registered Securities which are in registered form, the surrender of the appropriate documents, including any certificates, evidencing or demonstrating the surrender of such Securities;

(f) the term “present”, where the context so admits, shall include, with respect to Securities that cannot be presented in physical form, and in particular with respect to Definitive Registered Securities which are in registered form, the presentment of the appropriate documents, including any certificates or Definitive Registered Certificate, evidencing or demonstrating the presentment of such Securities. The term “presentment” shall have a correlative meaning; and

(g) the term “receipt”, where the context so admits, shall include, with respect to Securities that cannot be surrendered in physical form, and in particular with respect to Definitive Registered Securities which are in registered form, the receipt of the appropriate documents, including any certificates or Definitive Registered Certificate, evidencing or demonstrating the receipt of such Securities.

 

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ARTICLE 2

The Securities

SECTION 2.01. Amount Unlimited; Issuable in Series. The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited.

The Securities may be issued in one or more series. There shall be established by action taken pursuant to a resolution of the Board of Directors and, subject to Sections 2.02 and 2.03, set forth, or determined in the manner provided, in an Officers’ Certificate, or established in one or more indentures supplemental hereto, prior to the issuance of Securities of any series:

(a) the title of the Securities of the series, including ISINs, Common Codes or CUSIP Numbers (which shall distinguish the Securities of the series from Securities of any other series);

(b) any limit upon the aggregate principal amount of the Securities of the series which may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Section 2.07, 2.08, 2.10, 3.06 or 9.05 and except for any Securities which, pursuant to Section 2.03, are deemed never to have been authenticated and delivered hereunder);

(c) any changes or additions to circumstances in which any additional amounts with respect to the debt securities will be payable;

(d) the date or dates on which the principal of the Securities of the series is payable or any formula or other method or means by which such date or dates shall be determined;

(e) the rate or rates at which the Securities of the series shall bear interest, if any, the date or dates from which such interest shall accrue, the interest payment dates on which any such interest shall be payable and the regular record date for any interest payable on any interest payment date;

(f) any addition to or change in the place or places where the principal of and any premium and interest on Securities of the series shall be payable and any change to Section 2.04(a);

(g) any addition to or change in the provisions for optional or mandatory redemption, extension, purchase or early repayment of the Securities;

(h) if other than in minimum denominations of $2,000 and any integral multiple of $1,000 in excess of $2,000, the denominations in which Securities of the series shall be issuable;

 

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(i) the currency, currencies or currency units in which payment of the principal of and any premium and interest on any Securities of the series shall be payable if other than in U.S. dollars;

(j) if the amount of payments of principal of or any premium or interest on any Securities of the series may be determined with reference to a formula or an index or other fact or event ascertainable outside of this Indenture, the manner in which such amounts shall be determined;

(k) if other than the principal amount thereof, the portion of the principal amount of Securities of the series which shall be payable upon declaration of acceleration of the maturity thereof pursuant to Section 6.02;

(l) the terms and conditions, if any, pursuant to which the Securities are convertible into or exchangeable for any other securities;

(m) any addition to or change in the covenants set forth in Article 4 which applies to Securities of the series;

(n) any change to the form of the Securities of the series or the provisions of Appendix A applicable to such series;

(o) any Events of Default in addition to those specified in Section 6.01 with respect to the Securities of the series;

(p) any changes to the Issuer’s right to defease the Securities of the series; and

(q) any other terms of the series (which terms shall not be inconsistent with the provisions of this Indenture).

All Securities of any one series shall be substantially identical except as to denomination and except as may otherwise be provided by action taken pursuant to a resolution of the Board of Directors and (subject to Section 2.02) set forth, or determined in the manner provided, in the Officers’ Certificate referred to above or in any such indenture supplemental hereto.

If any of the terms of the Securities of any series are established by action taken pursuant to a resolution of the Board of Directors, a copy of an appropriate record of such action shall be certified by an Officers’ Certificate of the Issuer and delivered to the Trustee at or prior to the delivery of the Officers’ Certificate or the indenture supplemental hereto setting forth the terms of the Securities of any series.

 

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The Issuer may, from time to time, by action taken pursuant to a resolution of the Board of Directors and subject to compliance with any other applicable provisions of this Indenture, without the consent of the Holders, create and issue pursuant to this Indenture additional securities of any series of Securities (“Add On Securities”) having terms and conditions identical to those of such series of outstanding Securities, except that such Add On Securities:

(a) may have a different issue date from such series of outstanding Securities;

(b) may have a different amount of interest payable on the first interest payment date after issuance than is payable on such series of outstanding Securities; and

(c) may have terms specified in such action taken pursuant to a resolution of the Board of Directors for such Add On Securities making appropriate adjustments to this Article 2 applicable to such Add On Securities in order to conform to and ensure compliance with the Securities Act (or applicable securities laws) which are not adverse in any material respect to the Holder of any outstanding Securities (other than such Add On Securities) and which shall not affect the rights or duties of the Trustee.

SECTION 2.02. Form and Dating. Provisions relating to the Securities of any series and Definitive Registered Certificates are set forth in Appendix A, which is hereby incorporated in and expressly made a part of this Indenture, or as otherwise provided with respect to a series of Securities in accordance with Section 2.01. The Securities of any series and the Trustee’s certificate of authentication shall be substantially in the form of Exhibit A hereto, which is hereby incorporated in and expressly made a part of this Indenture, or in such other form as shall be established by action taken pursuant to a resolution of the Board of Directors and set forth in an Officers’ Certificate or in one or more indentures supplemental hereto. The Securities and Definitive Registered Certificates may have notations, legends or endorsements required by law, stock exchange rule, agreements to which the Issuer or other obligor, if any, is subject, or usage (provided that any such notation, legend or endorsement is in a form acceptable to the Issuer). Each Security and Definitive Registered Certificate shall be dated the date of its authentication. Denominations of the Securities of any series shall be specified as contemplated by Section 2.01. In the absence of any such specified denomination, the Securities of such series shall be issuable only in minimum denominations of $2,000 and any integral multiple of $1,000 in excess of $2,000. Any Global Security of any series issued in bearer form shall be issued without interest coupons.

 

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SECTION 2.03. Execution and Authentication. Two members of the Board of Directors shall sign the Global Securities of any series and two Officers shall sign the Definitive Registered Certificates for the Issuer by manual or facsimile signature.

If a member of the Board of Directors or an Officer, as the case may be, whose signature is on a Security or Definitive Registered Certificate no longer holds such office at the time the Trustee authenticates the Security or Definitive Registered Certificate, as applicable, the Security or Definitive Registered Certificate, as applicable, shall be valid nevertheless.

A Global Security or Definitive Registered Certificate shall not be valid until an authorized signatory of the Trustee manually (or with respect to a Definitive Registered Certificate, manually or by facsimile) signs the certificate of authentication on the Security or Definitive Registered Certificate, as applicable. The signature shall be conclusive evidence that the Global Security or Definitive Registered Certificate has been authenticated under this Indenture.

The Trustee shall authenticate and make available for delivery Securities and Definitive Registered Certificates as set forth in Appendix A.

The Trustee may appoint an authenticating agent reasonably acceptable to the Issuer to authenticate the Securities and Definitive Registered Certificates of any series. Any such appointment shall be evidenced by an instrument signed by a Trust Officer, a copy of which shall be furnished to the Issuer. Unless limited by the terms of such appointment, an authenticating agent may authenticate Securities and Definitive Registered Certificates of any series whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent has the same rights as any Registrar, Paying Agent or agent for service of notices and demands.

If the form or terms of the Securities of any series have been established in or pursuant to one or more actions taken pursuant to a resolution of the Board of Directors as permitted by Sections 2.01 and 2.02, in authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be provided with, and (subject to Section 7.01) shall be fully protected in relying upon, an Opinion of Counsel stating:

(a) if the terms of such Securities have been established by an action taken pursuant to a resolution of the Board of Directors as permitted by Section 2.01, that such terms have been established in conformity with the provisions of this Indenture;

(b) if the form of such Securities has been established by an action taken pursuant to a resolution of the Board of Directors as permitted by Section 2.02, that such form has been established in conformity with the provisions of this Indenture; and

(c) that such Securities, when authenticated and delivered by the Trustee and issued by the Issuer in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and legally binding obligations of the

 

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Issuer enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles.

If such form or terms have been so established pursuant to an Officers’ Certificate as permitted hereunder, the Trustee shall not be required to authenticate such Securities if the issue of such Securities pursuant to this Indenture will have a material adverse effect on the Trustee’s own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee.

Notwithstanding the provisions of Section 2.01 and this Section 2.03, if all Securities of any series are not to be originally issued at one time, it shall not be necessary to deliver the Officers’ Certificate otherwise required pursuant to Section 2.01 or the written order of the Issuer and Opinion of Counsel otherwise required pursuant to this Section 2.03 at or prior to the time of authentication of each Security of such series if such documents are delivered at or prior to the authentication upon original issuance of the first Security of such series to be issued.

The Trustee shall have the right to decline to authenticate and deliver any Add On Securities under this Section 2.03 if the Trustee determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith by its board of directors or board of trustees, executive committee or a trust committee of directors or trustees or Trustee Officer shall determine that such action would expose the Trustee to personal liability to existing Holders.

SECTION 2.04. Registrar and Paying Agent (a) The Issuer shall maintain an office or agency where transfers and exchanges of Definitive Registered Securities of any series may be made (the “Registrar”) and an office or agency where payments on Securities of any series may be made (the “Paying Agent”). The Registrar shall keep the Register of the Definitive Registered Securities, if any, and of their transfer and exchange. The Issuer may have one or more co-registrars and one or more additional paying agents. The term “Paying Agent” includes any additional paying agent, and the term “Registrar” includes any co-registrars.

Payments in respect of any Global Security deposited with the operator of the X/N System (or with a depositary therefor) shall be made through the Principal Paying Agent in accordance with the rules applicable to the X/N System. The location of the Principal Paying Agent is Avenue Marnix 24, B-1000 Brussels, Belgium. Holders may exchange or transfer their Securities of any series for other Securities of the same series upon notification and certification given to the Principal Paying Agent. The initial Paying Agent shall be the Principal Paying Agent in Belgium. In the event that Definitive Registered Securities of any series are exchanged against any Global Security of any series, (a) the Issuer, or any agent designated by the Issuer to perform such function, will act as Registrar and (b) the Issuer will pay the principal of, premium, if any, and interest on, the Securities of such series at any of its offices or any agency designated by it which is

 

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located in the Borough of Manhattan, The City of New York and in London, England. The Issuer will at all times maintain a Paying Agent in a Member State that will not be obliged to withhold or deduct tax pursuant to the European Union Directive 2003/48/EC regarding the taxation of savings income.

(b) The Issuer and the Trustee shall enter into an appropriate agency agreement with any Registrar or Paying Agent not a party to this Indenture, which shall incorporate the terms of the TIA and this Indenture. The agreement shall implement the provisions of this Indenture that relate to such agent. If the Issuer fails to either act as Registrar or appoint a Registrar or maintain a Paying Agent, or fails to notify the Trustee of the appointment of a Registrar or Paying Agent, the Trustee shall act as such and shall be entitled to the compensation provided for such services under the Agency Agreement. The location of the corporate trust office of the Trustee in The City of New York is 101 Barclay Street, New York, New York 10286. The Issuer may act as Paying Agent, Registrar, co registrar or transfer agent.

(c) The Issuer may remove any Registrar or Paying Agent upon written notice to such Registrar or Paying Agent and to the Trustee; provided, however, that no such removal shall become effective until (i) acceptance of an appointment by a successor as evidenced by an appropriate agreement entered into by the Issuer and such successor Registrar or Paying Agent, as the case may be, and delivered to the Trustee or (ii) notification to the Trustee that the Trustee shall serve as Registrar or Paying Agent until the appointment of a successor in accordance with clause (i) above. The Registrar or a Paying Agent may resign at any time upon not less than 30 days written notice to the Issuer and the Trustee in which case, the Issuer shall appoint a replacement Registrar or Paying Agent prior to the effective date of such resignation.

SECTION 2.05. Paying Agent to Hold Money in Trust. Prior to each due date of the principal of and interest on any Security of any series, the Issuer shall deposit with the relevant Paying Agent (or if the Issuer or one of its wholly owned Subsidiaries is acting as Paying Agent, segregate and hold in trust for the benefit of the Persons entitled thereto) a sum sufficient to pay such principal and interest when so becoming due. The Issuer shall require each Paying Agent (other than the Trustee) to agree in writing that the Paying Agent shall hold in trust for the benefit of Holders or the Trustee all money held by the Paying Agent for the payment of principal of and interest on the Securities of each such series, and shall notify the Trustee of any default by the Issuer (or any other obligor on the Securities of such series) in making any such payment. The Issuer at any time may require a Paying Agent to pay all money held by it to the Trustee and to account for any funds disbursed by the Paying Agent. The Trustee may, and upon direction of Holders of a majority in principal amount of the outstanding Securities of any series will with respect to Securities of such series, at any time during the continuance of any Default specified in Section 6.01(a) or 6.01(b), upon written request to a Paying Agent, require such Paying Agent to pay all money held by it to the Trustee and to account for any funds distributed by the Paying Agent. Upon complying with this Section 2.05 and Clause 3.5 of the Agency Agreement, no Paying Agent shall have any further liability for the money delivered to the Trustee.

 

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SECTION 2.06. Holder Lists. The Trustee shall preserve in a form that is reasonably practicable the most recent list available to it of the names and addresses of Holders in the event Definitive Registered Securities of any series are exchanged against any Global Security of any series. If the Trustee is not the Registrar, the Issuer shall furnish, or cause the Registrar to furnish, to the Trustee, in writing at least five Business Days before each interest payment date that occurs after the exchange of Definitive Registered Securities of such series and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of Holders. The Issuer and the Trustee shall comply in all respects with Section 312(a) of the TIA.

SECTION 2.07. Transfer and Exchange. (a) Holders, Participants or Indirect Participants in the X/N System that hold interests in the Global Securities of any series through the X/N System will not be entitled to receive physical delivery of such Global Securities or of any individual bearer note representing a portion thereof. Any transfer of an interest in such Global Securities or payment of the principal or interest, on such interest in such Global Securities, other than through the X/N System or any Participant and/or Indirect Participant, shall not be enforceable against the Issuer. Global Securities of any series may be replaced, as provided in Section 2.08 hereof. Every Security of any series authenticated and delivered in exchange for, or in lieu of, a Global Security of the same series pursuant to this Section 2.07, shall be executed, authenticated and delivered in the form of, and shall be, a Global Security, except to the extent Securities of the same series are exchanged for Definitive Registered Securities as provided in Appendix A. A Global Security may not be exchanged for another Security other than as provided in Appendix A.

(b) When a Security of any series is presented to the Registrar with a request to register a transfer, the Registrar shall register the transfer as requested if its requirements therefor are met. When Securities of any series are presented to the Registrar with a request to exchange them for an equal principal amount at maturity of Securities of other denominations of the same series, the Registrar shall make the exchange as requested if the same requirements are met. To permit registration of transfers and exchanges, the Issuer shall execute and the Trustee shall authenticate Definitive Registered Certificates in respect of Definitive Registered Securities of any series, at the Registrar’s request. The Issuer may require payment of a sum sufficient to pay all taxes, assessments or other governmental charges in connection with any transfer or exchange pursuant to this Section 2.07. The Issuer shall not be required to make and the Registrar need not register transfers or exchanges of Securities of any series selected for redemption (except, in the case of Definitive Registered Securities to be redeemed in part, the portion thereof not to be redeemed) or any Definitive Registered Securities of any series for a period of five days before a selection of Definitive Registered Securities to be redeemed or for a period of 5 days before an interest payment date.

Prior to the due presentation for registration of transfer of any Global Security of any series, the Issuer, each Cross Guarantor or other obligor on the securities, if any, the Trustee, each Paying Agent and the Registrar may deem and treat (in the case of a Global Security of any series issued in bearer form) the holder of such Global

 

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Security as determined as provided in Section 2.14 or, in the case of Definitive Registered Securities of any series, the Person in whose name such Definitive Registered Security is registered in the Register, as the absolute owner of such Security for the purpose of receiving payment of principal of and (subject to Section 2 of the Global Securities and Definitive Registered Certificates) interest, if any, on such Security and for all other purposes whatsoever, whether or not such Security is overdue, and none of the Issuer or other obligor on the securities, if any, the Trustee, the Paying Agent or the Registrar shall be affected by notice to the contrary. Any Holder of an interest in a Global Security of any series shall, by acceptance of such interest, agree that transfers of beneficial interest in such Global Security may be effected only through a book-entry system maintained by a Participant or Indirect Participant, and that ownership of a beneficial interest in such Global Security shall be required to be reflected in a book entry.

All Securities of any series issued upon any transfer or exchange pursuant to the terms of this Indenture shall evidence the same debt and shall be entitled to the same benefits under this Indenture as the Securities of such series surrendered upon such transfer or exchange.

SECTION 2.08. Replacement Securities. If a mutilated Security or Definitive Registered Certificate of any series is surrendered to the Registrar or if the Holder of a Security of any series claims that the Security has been lost, destroyed or wrongfully taken, the Issuer shall issue and the Trustee shall authenticate a replacement Security or Definitive Registered Certificate of the same series, as applicable, if the requirements of Section 8-405 of the Uniform Commercial Code are met, such that the Holder (a) satisfies the Issuer or the Trustee within a reasonable time after such Holder has notice of such loss, destruction or wrongful taking and the Registrar does not register a transfer prior to receiving such notification, (b) makes such request to the Issuer or the Trustee prior to the Security or Definitive Registered Certificate, as applicable, being acquired by a protected purchaser as defined in Section 8-303 of the Uniform Commercial Code (a “protected purchaser”) and (c) satisfies any other reasonable requirements of the Trustee. If required by the Trustee or the Issuer, such Holder shall furnish an indemnity bond sufficient in the judgment of the Trustee to protect the Issuer, the Trustee, the relevant Paying Agent and the Registrar from any loss that any of them may suffer if a Security or Definitive Registered Certificate is replaced. The Issuer and the Trustee may charge the Holder for their expenses in replacing a Security or Definitive Registered Certificate, including fees and expenses of counsel and for any tax that may be imposed in replacing such Security or Definitive Registered Certificate, as applicable. In the event that a Global Security or Definitive Registered Certificate is mutilated, lost, destroyed or wrongfully taken and such Global Security or the Definitive Registered Security evidenced thereby, as applicable, has become or is about to become due and payable, the Issuer in its discretion may pay such Security instead of issuing a new Security or Definitive Registered Certificate, as applicable, in replacement thereof.

The provisions of this Section 2.08 are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, lost, destroyed or wrongfully taken Securities or Definitive Registered Certificates.

 

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SECTION 2.09. Outstanding Securities. Securities outstanding at any time are all Securities authenticated by the Trustee except for those cancelled by it, those delivered to it for cancellation and those described in this Section 2.09 as not outstanding. A Security does not cease to be outstanding because the Issuer or an Affiliate of the Issuer holds the Security.

If a Security is replaced pursuant to Section 2.08, it ceases to be outstanding unless the Trustee and the Issuer receive proof satisfactory to them that the replaced Security is held by a protected purchaser.

If the Paying Agent segregates and holds in trust, in accordance with this Indenture, on a Redemption Date or maturity date money sufficient to pay all principal and interest, if any, payable on that date with respect to the Securities (or portions thereof) of a series to be redeemed or maturing, as the case may be, then on and after that date such Securities (or portions thereof) cease to be outstanding and interest on them ceases to accrue.

SECTION 2.10. Temporary Securities. In the event that Definitive Registered Securities of any series are to be exchanged against any Global Security of any series under the terms of this Indenture, until Definitive Registered Certificates in respect of such Definitive Registered Securities are ready for delivery, the Issuer may prepare and the Trustee shall authenticate temporary certificates. Temporary certificates shall be substantially in the form of Definitive Registered Certificates but may have variations that the Issuer considers appropriate for temporary certificates. Without unreasonable delay, the Issuer shall prepare and the Trustee shall authenticate Definitive Registered Certificates and deliver them in exchange for temporary certificates upon surrender of such temporary certificates at the office or agency of the Issuer, without charge to the Holder.

SECTION 2.11. Cancellation. The Issuer at any time may deliver Securities and Definitive Registered Certificates in respect thereof to the Trustee for cancellation. The Registrar and each Paying Agent shall forward to the Trustee any Securities surrendered to them for registration of transfer, exchange or payment (and Definitive Registered Certificates in respect thereof, if applicable). The Trustee and no one else shall cancel all Securities surrendered for registration of transfer, exchange, payment or cancellation, and all Definitive Registered Certificates in respect thereof that are delivered to the Trustee, and shall dispose of cancelled Securities and Definitive Registered Certificates in respect thereof in accordance with its customary procedures or deliver cancelled Securities and Definitive Registered Certificates in respect thereof to the Issuer pursuant to written direction by an Officer. The Issuer may not issue new Securities or Definitive Registered Certificates in respect thereof, to replace Securities it has redeemed, paid or delivered to the Trustee for cancellation. The Trustee shall not authenticate Securities or Definitive Registered Certificates in respect thereof in place of cancelled Securities or Definitive Registered Certificates in respect thereof other than pursuant to the terms of this Indenture.

 

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SECTION 2.12. Defaulted Interest. If the Issuer defaults in a payment of interest on the Securities of a particular series, the Issuer shall pay such interest on such series (plus interest on such defaulted interest to the extent lawful) in any lawful manner pursuant to Section 4.01. The Issuer may pay the defaulted interest to the Persons who are Holders on a subsequent special record date. The Issuer shall fix or cause to be fixed any such special record date and payment date to the reasonable satisfaction of the Trustee and shall promptly transmit or cause to be transmitted in accordance with Section 10.02 to each Holder a notice that states the special record date, the payment date and the amount of defaulted interest to be paid.

SECTION 2.13. ISINs, Common Codes and CUSIPs. The Issuer in issuing the Securities of any series may use ISINs, Common Codes and CUSIPs (if then generally in use) and, if so, the Trustee shall use ISINs, Common Codes and CUSIPs in notices of redemption as a convenience to Holders; provided, however, that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities or Definitive Registered Certificates or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Securities or Definitive Registered Certificates, and any such redemption shall not be affected by any defect in or omission of such numbers.

SECTION 2.14. Ownership Interest in Global Securities. The Trustee may rely on an Opinion of Counsel confirming that, under the laws of the Kingdom of Belgium and pursuant to the Royal Decree No. 62 of 10 November 1967 on the promotion of the circulation of securities, as amended, the NBB, as holder of the Global Securities of any series (or any subcustodian appointed by it), will not have legal title (ownership right) to such Global Securities but rather the ownership interests in such Global Securities would be vested in the Participants or Indirect Participants under the co-ownership organized by such Royal Decree No. 62.

The Trustee may act on the direction of the Participants as if they were the Holders, and the Trustee shall not be liable with respect to any action it takes in accordance with this Section 2.14.

SECTION 2.15. Currency Indemnity. Except as otherwise contemplated by Section 2.01 for Securities of any series, U.S. dollars is the sole currency of account and payment for all sums payable by the Issuer under or in connection with the Securities, including any damages. Any amount received or recovered in a currency other than U.S. dollars (whether as a result of, or of the enforcement of, a judgment or order of a court of any jurisdiction, in the winding-up or dissolution of the Issuer or otherwise by any Holder or beneficial owner of the Securities) in respect of any sum expressed to be due to it from the Issuer shall constitute a discharge of the Issuer only to the extent of the U.S. dollar amount which the recipient is able to purchase with the amount so received or recovered in that other currency on the date of that receipt or recovery (or, if it is not practicable to make that purchase on that date, on the first date on which it is practicable

 

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to do so). If that U.S. dollar amount is less than the U.S. dollar amount expressed to be due to the recipient or the Trustee under any Security, the Issuer shall indemnify the recipient or the Trustee against any loss sustained by it as a result, including the cost of making any such purchase. For the purposes of this indemnity, it will be prima facia evidence of the matter stated therein or otherwise for the Holder or to certify in a manner reasonably satisfactory to the Issuer (indicating the sources of information used) that it would have the loss it incurred in making any such purchase.

The above indemnity, to the extent permitted by law:

(i) constitutes a separate and independent obligation from the other obligations of the Issuer;

(ii) shall give rise to a separate and independent cause of action;

(iii) shall apply irrespective of any waiver granted by any Holder or Trustee (other than a waiver of the indemnities set forth herein); and

(iv) shall continue in full force and effect despite any other judgment, order, claim or proof for a liquidated amount in respect of any sum due under any Security or to the Trustee.

SECTION 2.16. Computation of Interest. Except as otherwise contemplated by Section 2.01 for Securities of any series, Interest on the Securities of such series shall be computed on the basis of a 360-day year comprised of twelve 30-day months.

ARTICLE 3

Redemption

SECTION 3.01. Early Redemption and Notices to Trustee. Securities of any series that are redeemable before their Stated Maturity shall be redeemable in accordance with their terms and (except as otherwise specified as contemplated by Section 2.01 for Securities of any series) in accordance with this Article. If the Issuer elects to redeem Securities of any series pursuant to this Article, it shall notify the Trustee in writing of the redemption date, the principal amount at maturity of Securities to be redeemed and the section of this Indenture pursuant to which the redemption will occur.

The Issuer shall give each notice to the Trustee provided for in this Article 3 at least 60 days before the Redemption Date fixed by the Issuer unless the Trustee consents to a shorter period. In the case of a redemption of Securities of any series pursuant to Section 3.01 of this Indenture, such notice shall be accompanied by an Officers’ Certificate and an Opinion of Counsel from the Issuer to the effect that such redemption will comply with the conditions herein. In the case of a redemption of Securities of any series provided for by Section 3.07 of this Indenture, prior to the transmission of any such notice of redemption, the Issuer will deliver to the Trustee (i) an Officers’ Certificate stating that the Issuer is entitled to effect such redemption and setting forth a statement of

 

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facts showing that the conditions precedent to the right of the Issuer so to redeem have occurred, and (ii) an Opinion of Counsel to the effect that the Issuer as applicable, has or will become obligated to pay such Additional Amounts. Any such notice may be cancelled at any time prior to notice of such redemption being transmitted in accordance with Section 10.02 to any Holder and shall thereby be void and of no effect. The notice to the Trustee shall include the information required to be included in the notice to be given to Holders pursuant to Section 3.03. The Issuer will notify the Trustee of the Redemption Price with respect to any redemption promptly after the calculation, and the Trustee shall not be responsible for such calculation.

SECTION 3.02. Selection of Securities to be Redeemed. If fewer than all the Securities of any series are to be redeemed, the Trustee shall select, not more than 60 or less than 45 days before the Redemption Date, the Securities to be redeemed pro rata or by lot or by such other method that complies with applicable legal and securities exchange requirements, if any, and that the Trustee in its sole discretion shall deem to be fair and appropriate. The Trustee shall make the selection from outstanding Securities of such series not previously called for redemption. The Trustee may select for redemption Securities and portions of them in minimum denominations of $2,000 and any integral multiple of $1,000 in excess of $2,000. Provisions of this Indenture that apply to Securities called for redemption also apply to portions of Securities called for redemption. The Trustee shall notify the Issuer promptly of the Securities or portions of Securities to be redeemed.

SECTION 3.03. Notice of Redemption.(a) At least 30 days but not more than 60 days before a date for redemption of Securities of any series, the Issuer shall transmit a notice of redemption in accordance with Section 10.02 and as provided below to each Holder of Securities to be redeemed at such Holder’s registered address; provided, however, that any notice of a redemption of Securities of any series provided for by Section 3.07 of this Indenture shall not be given earlier than 120 days prior to the earliest date on which the Issuer would be obligated to make a payment of Additional Amounts were a payment in respect of the Securities of such series then due and payable. In any case, failure to duly give notice in any manner provided in this Indenture, or any defect in the notice, to the Holder of any Security of a series designated for redemption as a whole or in part shall not affect the validity of the proceedings for the redemption of any other Security of such series.

The notice shall identify the Securities of any series to be redeemed and shall state:

(i) the Redemption Date;

(ii) the manner of calculation of the Redemption Price and the amount of accrued interest to the Redemption Date;

(iii) the name and address of the Principal Paying Agent or the relevant Paying Agent, as applicable;

 

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(iv) if Definitive Registered Securities of such series exist, that Definitive Registered Certificates in respect of the Securities called for redemption must be surrendered to the relevant Paying Agent to collect the Redemption Price;

(v) if fewer than all the outstanding Securities of such series are to be redeemed, the principal amounts at maturity of the particular Securities to be redeemed and, the numbers of the Definitive Registered Certificates, if applicable, in respect of the Securities being redeemed;

(vi) that, unless the Issuer defaults in making such redemption payment, interest on Securities (or portion thereof) called for redemption ceases to accrue on and after the Redemption Date;

(vii) the ISIN, Common Code or CUSIP, if any, printed on the Securities or Definitive Registered Certificates in respect of the Securities being redeemed, as applicable; and

(viii) that no representation is made as to the correctness or accuracy of the ISIN, Common Code or CUSIP, if any, listed in such notice or printed on the Securities or the Definitive Registered Certificates.

(b) At the Issuer’s request, the Trustee shall give the notice of redemption in the Issuer’s name and at the Issuer’s expense. In such event, the Issuer shall provide the Trustee with the information required by this Section 3.03.

SECTION 3.04. Effect of Notice of Redemption. Once notice of redemption is transmitted in accordance with Section 10.02, Securities called for redemption become due and payable on the Redemption Date and at the Redemption Price stated in the notice. Upon surrender to the relevant Paying Agent of Securities being redeemed or Definitive Registered Certificates in respect of Definitive Registered Securities being redeemed, as applicable, such Securities or Definitive Registered Securities, as applicable, shall be paid at the Redemption Price stated in the notice, plus accrued interest, if any, to the Redemption Date provided, however, that if the Redemption Date is after a regular record date and on or prior to the interest payment date, the accrued interest shall be payable to the Holder of the redeemed Securities registered on the relevant record date. Failure to give notice or any defect in the notice to any Holder shall not affect the validity of the notice to any other Holder.

SECTION 3.05. Deposit of Redemption Price. Prior to 12:00 p.m. Belgian time on the Redemption Date, the Issuer shall deposit with the Principal Paying Agent or any other relevant Paying Agent (or, if the Issuer or a Wholly Owned Subsidiary is the relevant Paying Agent, shall segregate and hold in trust) money sufficient to pay the Redemption Price of and accrued interest on all Securities or portions thereof to be redeemed on that date other than Securities or portions of Securities called for redemption that have been delivered by the Issuer to the Trustee for cancellation. On and after the Redemption Date, interest shall cease to accrue on

 

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Securities or portions thereof called for redemption so long as the Issuer has deposited with the relevant Paying Agent funds sufficient to pay the aggregate Redemption Price of, and any accrued and unpaid interest, if any, on, the Securities to be redeemed.

SECTION 3.06. Securities Redeemed in Part. Upon surrender of a Security that is redeemed in part, the Issuer shall execute and the Trustee shall authenticate for the Holder (at the Issuer’s expense) a new Security or Definitive Registered Certificate in respect of a Definitive Registered Security, as applicable, of the same series, equal in aggregate outstanding principal amount and principal amount at maturity to the unredeemed portion of the Security surrendered.

SECTION 3.07. Optional Redemption for Tax Reasons. Except as otherwise contemplated by Section 2.01 for Securities of any series, the Issuer may, at its option, redeem the Securities of any series in whole but not in part, at any time upon giving not less than 30 nor more than 60 days’ notice to the Holders of the Securities of such series (which notice shall be irrevocable), at a redemption price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon, if any, to the Redemption Date (a “Tax Redemption Date”) and all Additional Amounts, if any, that will become due on the Tax Redemption Date as a result of such redemption or otherwise (subject, if applicable, to the right of Holders of the Securities of such series of record on the relevant record date to receive interest due on the relevant interest payment date), if the Issuer determines that (1) on the occasion of the next payment due in respect of the Securities of such series, it would be required to pay Additional Amounts and (2) the payment obligation cannot be avoided by the Issuer taking reasonable measures available to it (including making payment through a paying agent located in another jurisdiction), as a result of:

(a) any change in, or amendment to, the laws or treaties (or any regulations, protocols or rulings promulgated thereunder) of Belgium or any other Relevant Taxing Jurisdiction affecting taxation, which change or amendment becomes effective on or after the Issue Date of such series,

(b) any change in position regarding the application, administration or interpretation of such laws, treaties, regulations or rulings (including a holding, judgment or order by a court of competent jurisdiction), which change, amendment, application or interpretation becomes effective on or after the Issue Date of such series, or

(c) the issuance of definitive Securities of such series due to:

(i) the NBB ceasing to operate the X/N System and a successor is not able to be appointed by the Issuer within 15 days of the notification,

(ii) the notification by each of Euroclear and Clearstream that it is unwilling or unable to continue to act as, or ceases to be, a clearing agency in respect of the Securities of such series and a successor is not able to be appointed by the Issuer within 15 days of such notification,

 

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(iii) DTC notifies the Issuer that it is unwilling or unable to continue to act as depository or ceases to be a clearing agency registered under the Exchange Act and, in either case, a successor depository is not appointed by the CDI Depositary at the Issuer’s request within 15 days of such notification, or

(iv) if the CDI Depositary is at any time unwilling or unable to continue as CDI Depositary and a successor CDI Depositary is not appointed by the Issuer within 15 days of such notification.

The notice of redemption may not be given earlier than 120 days prior to the earliest date on which the Issuer would be obligated to make a payment or withholding if a payment in respect of the Securities of such series were then due. Prior to the publication or, where relevant, mailing of any notice of redemption of the Securities of such series pursuant to the foregoing, the Issuer will deliver to the Trustee an Officers’ Certificate and an Opinion of Counsel to the effect that the circumstances referred to above exist. The Trustee shall accept, and shall be entitled to rely upon, the Officers’ Certificate and opinion as sufficient evidence of the satisfaction of the conditions precedent described above, in which event it shall be conclusive and binding on the Holders of the Securities of such series.

ARTICLE 4

Covenants

SECTION 4.01. Payment of Securities. The Issuer shall promptly pay the principal of and interest on each series of Securities on the dates and in the manner provided in the Securities of such series and in this Indenture. Principal and interest shall be considered paid on the date due if on such date the Trustee or the Principal Paying Agent or any other Paying Agent holds in accordance with this Indenture money sufficient to pay all principal and interest then due.

The Issuer shall pay interest on overdue principal at the rate specified therefor in the Securities, and it shall pay interest on overdue installments of interest at the same rate to the extent lawful.

SECTION 4.02. Compliance Certificate. The Issuer shall deliver to the Trustee within 120 days after the end of each fiscal year of the Issuer an Officers’ Certificate stating that in the course of the performance by the signer of its duties as an Officer of the Issuer it would normally have knowledge of any Default and whether or not the signer knows of any Default that occurred during such period, and if so, the certificate shall describe the Default, its status and what action the Issuer is taking or proposes to take with respect thereto.

The Issuer will also be required to deliver to the Trustee, within 30 days after the occurrence thereof, written notice of Default or Event of Default, their status and what action the Issuer is taking or proposes to take in respect thereof.

 

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SECTION 4.03. Reports by the Issuer. The Issuer, pursuant to Section 314(a) of the TIA, shall:

(i) file with the Trustee, within 15 days after the Issuer has filed the same with the SEC, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the SEC may from time to time by rules and regulations prescribe) which the Issuer may be required to file with the SEC pursuant to Section 13 or Section 15(d) of the Exchange Act of; or, if the Issuer is not required to file information, documents or reports pursuant to either of said Sections, then it shall file with the Trustee, in accordance with rules and regulations prescribed from time to time by the SEC, such of the supplementary and periodic information, documents and reports which may be required pursuant to Section 13 of the Exchange Act in respect of a security listed and registered on a national securities exchange as may be prescribed from time to time in such rules and regulations;

(ii) file with the Trustee and the SEC, in accordance with rules and regulations prescribed from time to time by the SEC such additional information, documents and reports with respect to compliance by the SEC with the conditions and covenants of the Indentures as may be required from time to time by such rules and regulations; and

(iii) transmit by mail to all holders of Securities within 30 days after the filing thereof with the Trustee, in the manner and to the extent provided in Section 313(c) of the TIA, such summaries of any information, documents and reports required to be filed by the Issuer pursuant to paragraphs (i) and (ii) of this Section as may be required by rules and regulations prescribed from time to time by the SEC.

Delivery to the Trustee of the information required by this Section 4.03 is for informational purposes only, and the Trustee’s receipt of such information shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including compliance with any of the covenants under this Indenture.

SECTION 4.04. Further Instruments and Acts. Upon request of the Trustee, the Issuer shall execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of this Indenture.

SECTION 4.05. Payments of Additional Amounts. (a) All payments made by the Issuer under, or with respect, to the Securities of any series shall be made free and clear of, and without withholding or deduction for or on account of, any present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) (collectively, “Taxes”) imposed or levied by or on behalf of the government of the Kingdom of Belgium or any political

 

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subdivision or any authority or agency therein or thereof having power to tax, or any other jurisdiction in which the Issuer is organized or otherwise resident for tax purposes, or any jurisdiction from or through which any payment is made (any of the aforementioned being, a “Relevant Taxing Jurisdiction”), unless the Issuer is required to withhold or deduct Taxes by law or by the official interpretation or administration thereof.

(b) Except as otherwise contemplated by Section 2.01 for Securities of any particular series, if the Issuer is so required to withhold or deduct any amount for or on account of Taxes imposed by a Relevant Taxing Jurisdiction from any payment made under or with respect to the Securities of such series, the Issuer shall pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by the Holders and beneficial owners of the Securities of such series (including Additional Amounts) after such withholding or deduction will not be less than the amount the Holders and beneficial owners of the Securities of such series would have received if such Taxes had not been withheld or deducted; provided, however, that the foregoing obligation to pay Additional Amounts does not apply to:

(i) any Taxes that would not have been so imposed but for (a) the existence of any present or former connection between the relevant Holder or beneficial owner of the Securities of such series (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of power over the relevant Holder or beneficial owner of the Securities of such series, if the relevant Holder or beneficial owner of the Securities of such series is an estate, trust partnership, limited liability company or corporation) and the Relevant Taxing Jurisdiction (including, without limitation, such holder (or such fiduciary, settlor, beneficiary, member, shareholder or possessor) being or having been a citizen or resident thereof or being or having been present or engaged in trade or business therein or having had a permanent establishment therein or (b) the presentation of a note (where presentation is required) for payment on a date more than 30 days after (x) the date on which such payment became due and payable or (y) the date on which payment thereof is duly provided for, whichever occurs later),

(ii) any estate, inheritance, gift, sales, excise, transfer, personal property tax or similar tax, assessment or other governmental charge,

(iii) any Taxes which are payable otherwise than by withholding from payments of (or in respect of) principal of, premium or any interest on, the Securities of such series,

(iv) any Taxes that are imposed or withheld by reason of the failure to comply by the Holder or the beneficial owner of a Security of such series with a request by the Issuer addressed to the Holder or such beneficial owner (A) to provide information concerning the nationality, residence or identity of the Holder or such beneficial owner or (B) to make any

 

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declaration or other similar claim or satisfy any information or reporting requirement, which, in the case of (A) or (B), is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such Tax,

(v) any Taxes that are required to be withheld or deducted on a payment to an individual pursuant to European Union Council Directive 2003/48/EC regarding the taxation of savings income or any law implementing or complying with, or introduced in order to conform to such Directive,

(vi) any Taxes that are required to be withheld or deducted on a payment to or on behalf of a Holder, who, at the time of such payment or withholding, was not an Eligible Investor for reasons within such Holder’s control. An Eligible Investor for the purposes of this section means any investor which is referred to in Article 4 of the Royal Decree of May 26, 1994 on the deduction of withholding tax and which holds the Securities in an exempt securities account in the X/N System; or

(vii) any combination of items (i), (ii), (iii), (iv), (v) and (vi) above.

(c) The Issuer also will not be required to pay Additional Amounts:

(i) if the payment could have been made without deduction or withholding if the beneficiary of the payment had presented the Security of such series for payment within 30 days after the date on which such payment or such Security became due and payable or the date on which payment thereof is duly provided for, whichever is later (except to the extent that such beneficiary would have been entitled to Additional Amounts had such Security been presented on the last day of the 30-day period),

(ii) with respect to any payment of principal of (or premium, if any, on) or interest on such Security to any Holder or beneficial owner who is a fiduciary or partnership or any Person other than the sole beneficial owner of such payment, to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such a partnership or the beneficial owner of such payment would not have been entitled to the Additional Amounts had such beneficiary, settlor, member or beneficial owner been the actual holder of such Security; or

(iii) if such Security is presented for payments by or on behalf of a Holder or beneficial owner who would be able to avoid a withholding or deduction by presenting the relevant Security to another paying agent in a Member State.

(d) If the Issuer will be obligated to pay Additional Amounts with respect to any payment under or with respect to the Securities of any series, the Issuer will

 

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deliver to the Trustee at least 30 days prior to the date of that payment (unless the obligation to pay Additional Amounts arises after the 30th day prior to that payment date, in which case the Issuer shall notify the Trustee promptly thereafter) an Officers’ Certificate stating the fact that Additional Amounts will be payable and the amount so payable. The Officers’ Certificate must also set forth any other information necessary to enable the Paying Agent to pay Additional Amounts to Holders and beneficial owners on the relevant payment date.

(e) Upon request, the Issuer will provide the Trustee with official receipts or other documentation satisfactory to the Trustee evidencing the payment of the Taxes with respect to which Additional Amounts are paid.

Whenever in this Indenture there is mentioned, in any context:

(i) the payment of principal,

(ii) purchase prices in connection with a purchase of Securities of any series,

(iii) interest, or

(iv) any other amount payable on or with respect to any of the Securities of any series,

that reference shall be deemed to include payment of Additional Amounts provided for in this Section to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.

(f) The Issuer will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in any jurisdiction from the execution, delivery, enforcement or registration of the Securities of any series, this Indenture or any other related document or instrument, or the receipt of any payments with respect to the Securities of any series, excluding taxes, charges or similar levies imposed by any jurisdiction outside of the Kingdom of Belgium, the jurisdiction of incorporation of any successor of the Issuer or any jurisdiction in which a paying agent is located, and the Issuer will agree to indemnify the Holders or the Trustee for any such taxes paid by the Holders or the Trustee.

(g) The preceding provisions will survive any termination, defeasance or discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which any successor Person to the Issuer is organized or any political subdivision or taxing authority or agency thereof or therein.

SECTION 4.06. Certain Release of Cross Guarantee. Under the terms and conditions hereof and the Cross Guarantee Agreement, for so long as any Security of any series remains outstanding, all guarantees made by a Cross Guarantor under the Cross Guarantee Agreement in respect to the Securities and the Indenture will be released and discharged, upon a sale, exchange, transfer or other disposition in a transaction or

 

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series of transactions over a twelve-month period (any such sale, exchange, transfer or other disposition in a transaction or series of transactions over a twelve-month period, a “Disposition”) to any Person that is not Delhaize Group or a Subsidiary of Delhaize Group of all of the capital stock, or all or substantially all of the assets, of such Cross Guarantor, if as a result of which such Cross Guarantor ceases to be a Subsidiary of Delhaize Group; provided, that such Disposition otherwise complies with the terms and conditions of this Indenture. With respect to a Disposition of such capital stock of, or a Disposition of such assets of, a Cross Guarantor that is a Major Subsidiary, to the extent the Disposition does not constitute a Change of Control (as defined in any supplemental indenture), the Issuer hereby covenants and agrees that no Cross Guarantor that is a Major Subsidiary shall be released under the Cross Guarantee Agreement in respect to the Securities and this Indenture if after giving effect to such Disposition, Moody’s and S&P shall lower the credit rating of Securities of any series issued under this Indenture directly as a result of such Disposition.

ARTICLE 5

Successor Issuer

SECTION 5.01. When Issuer May Merge or Transfer Assets. The Issuer shall not merge into or consolidate with any other corporation or sell, convey, transfer or lease its properties and assets substantially as an entirety to any Person other than any of its respective Subsidiaries, unless:

(a) the corporation into which the Issuer is merged or the Person which acquires by sale, conveyance, transfer or lease the properties and assets of the Issuer substantially as an entirety shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, the due and punctual payment of the principal of, any premium and interest on and any Additional Amounts with respect to all the Securities and the performance of every covenant of this Indenture on the part of the Issuer, as the case may be, to be performed or observed;

(b) immediately after giving effect to such transaction, no Event of Default, and no event which, after notice or lapse of time, or both, would become an Event of Default, shall have happened and be continuing, and

(c) the Issuer has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel each stating that such consolidation, merger, conveyance, transfer or lease and such supplemental indenture comply with this Article 5 and that all conditions precedent herein provided for relating to such transaction have been complied with.

SECTION 5.02. Successor Corporation Substituted. Upon any merger, or any sale, conveyance, transfer or lease of the properties and assets of the Issuer substantially as an entirety in accordance with this Article 5, the successor corporation into which the Issuer is merged or to which such sale, conveyance, transfer or lease is made shall succeed to, and be substituted for and may exercise every right and power of, the Issuer under this Indenture with the same effect as if such successor corporation had

 

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been named as the Issuer herein; provided, however, that no such sale, conveyance, transfer or lease shall have the effect of releasing the Person named as the “Issuer” in the first paragraph of this instrument or any successor corporation which shall theretofore have become such in the manner prescribed in this Article from its liability as obligor and maker on any of the Securities.

ARTICLE 6

Defaults and Remedies

SECTION 6.01. Events of Default. “Events of Default” wherever used herein with respect to any particular series of Securities means any one of the following events and such other events as may be established with respect to the Securities of such series as contemplated by Section 2.01 (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):

(a) a default for 30 days in any payment of interest on any Security of such series issued under this Indenture when due and payable;

(b) a default in the payment of principal of any Security of such series issued under this Indenture at its Stated Maturity, upon required redemption or repurchase or otherwise;

(c) the failure by any Cross Guarantor to perform any covenant set forth in the Cross Guarantee Agreement applicable to such Cross Guarantor or the repudiation by any Cross Guarantor of its obligations under the Cross Guarantee Agreement other than in compliance with the terms thereof, in each case for 30 days after the Issuer receives written notice from the Trustee, or the Cross Guarantee Agreement fails to be in full force and effect for any reason;

(d) the failure by the Issuer for 30 days after it receives written notice from the Trustee to comply with any one or more of its obligations under the Securities of such series (other than as specifically provided for otherwise in this Section 6.01);

(e) default by the Issuer or any Material Subsidiary in the due payment of any other Indebtedness having a minimum aggregate amount of 2% of the Issuer’s Consolidated Capitalization (or its equivalent in any other freely convertible currency or currencies) of the Issuer or any Material Subsidiary or assumed by or guaranteed by the Issuer or any Material Subsidiary, and provided that any such default has not been cured within the period of grace contractually agreed upon or subsequently agreed to for such payment, or in the event that any such Indebtedness shall have become repayable before the due date thereof as a result of acceleration of maturity by reason of the occurrence of any event of default thereunder, unless in any such case such Indebtedness is contested in good faith (the “cross-acceleration provision”); provided, that if any such default is cured or waived or any such acceleration rescinded, or such Indebtedness is repaid, within a

 

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period of 10 days from the continuation of such default beyond the applicable grace period or the occurrence of such acceleration, as the case may be, such Event of Default and any consequential acceleration of the Securities shall be automatically rescinded, so long as such rescission does not conflict with any judgment or decree;

(f) if a court shall enter a decree or order for relief in respect of the Issuer or any Material Subsidiary in an involuntary case under any applicable bankruptcy, insolvency, or other similar law now or hereafter in effect (including the Belgian Bankruptcy Law of 8 August 1997 and the Belgian Law of 17 July 1997 on judicial composition (concordat judiciaire/gerechtelijk akoord)), or appointing a receiver, liquidator, sequestrator (or other similar official under any applicable bankruptcy law) of the Issuer or any Material Subsidiary or for any substantial part of any of their property, or ordering the winding-up or liquidation of their affairs, and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days (the “bankruptcy provisions”);

(g) if the Issuer or any Material Subsidiary shall commence a voluntary case under any applicable bankruptcy, insolvency, or other similar law now or hereafter in effect (including the Belgian Bankruptcy Law of 8 August 1997 and the Belgian Law of 17 July 1997 on judicial composition (concordat judiciaire/gerechtelijk akoord)), or shall consent to the entry of an order for relief in an involuntary case under any such law, or shall consent to the appointment of or taking possession by a receiver, liquidator, sequestrator (or other similar official under any applicable bankruptcy law) of the Issuer or any Material Subsidiary or for any substantial part of any of their property, or shall make any general assignment for the benefit of creditors, or shall take any corporate action in furtherance of any of the foregoing (the “winding-up provisions”); or

(h) any other Event of Default provided with respect to Securities of such series.

SECTION 6.02. Acceleration. If an Event of Default with respect to a particular series of Securities (other than as a result of the bankruptcy provisions or the winding-up provisions) occurs and is continuing, the Trustee or the Holders of at least 25% in aggregate principal amount of the then outstanding Securities of such series by notice to the Issuer may declare the principal of and accrued but unpaid interest on all the Securities of such series to be due and payable. Upon such a declaration, such principal and interest will be due and payable immediately. If an Event of Default with respect to the Securities of any series occurs as a result of the bankruptcy provisions or the winding-up provisions, the unpaid principal of and interest on all the Securities of each series issued will become immediately due and payable without any declaration or other act on the part of the Trustee or any Holders. Under certain circumstances, the Holders of a majority in aggregate principal amount of the then outstanding Securities of the relevant series may rescind any such acceleration with respect to the Securities of such series and its consequences. The Holders of a majority in principal amount of the Securities of such series by notice to the Trustee may rescind an acceleration and its consequences if the rescission would not conflict with any judgment or decree and if all existing Events of Default with respect to the Securities of such series have been cured or waived except

 

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non-payment of principal or interest that has become due solely because of acceleration. No such rescission shall affect any subsequent Default with respect to the Securities of such series or impair any right consequent thereto.

SECTION 6.03. Other Remedies. If an Event of Default with respect to a particular series of Securities occurs and is continuing, the Trustee may pursue any available remedy to collect the payment of principal of or interest on the Securities of such series or to enforce the performance of any provision of the Securities of such series or this Indenture.

The Trustee may maintain a proceeding even if it does not possess any of the Securities of the relevant series or does not produce any of them in the proceeding. A delay or omission by the Trustee or any Holder in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default. No remedy is exclusive of any other remedy. All available remedies are cumulative.

SECTION 6.04. Waiver of Past Defaults. The Holders of a majority in aggregate outstanding principal amount of the Securities of a particular series by notice to the Trustee may waive an existing Default with respect to the Securities of such series and its consequences except (a) a Default in the payment of the principal of, premium or interest (including Additional Amounts) on a Security of such series, (b) a Default arising from the failure to redeem or purchase any Security of such series when required pursuant to the terms of this Indenture or (c) a Default in respect of a provision that under Section 9.02 cannot be amended without the consent of each Holder affected. When a Default is waived, it is deemed cured, but no such waiver shall extend to any subsequent or other Default or impair any consequent right.

SECTION 6.05. Control by Majority. The Holders of a majority in aggregate outstanding principal amount of outstanding Securities of a particular series may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or of exercising any trust or power conferred on the Trustee with respect to such series. The Trustee, however, may refuse to follow any direction that the Trustee determines (after consultation with counsel) conflicts with law or this Indenture or, subject to Section 7.01, that the Trustee determines is unduly prejudicial to the rights of any other Holder of such series or that may involve the Trustee in personal liability. Prior to taking any action under this Indenture, the Trustee will be entitled to indemnification satisfactory to it in its sole discretion against all losses and expenses caused by taking or not taking such action.

SECTION 6.06. Limitation on Suits. (a) Except to enforce the right to receive payment of principal, premium (if any) or interest when due, no Holder of any Security of a particular series may pursue any remedy with respect to this Indenture or the Securities of such series unless:

(1) such Holder gives to the Trustee notice stating that an Event of Default is continuing with respect to such series;

 

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(2) the Holders of at least 25% in aggregate principal amount of the outstanding Securities of such series make a written request to the Trustee to pursue the remedy;

(3) the Trustee has been offered security or indemnity satisfactory to the Trustee against any loss, liability or expense;

(4) the Trustee does not comply with the request within 60 days after receipt of the request and the offer of security or indemnity satisfactory to the Trustee; and

(5) the Holders of a majority in aggregate principal amount of the outstanding Securities of such series do not give the Trustee a direction inconsistent with the request during such 60-day period.

(b) A Holder of a particular series may not use this Indenture to prejudice the rights of another Holder of that series or to obtain a preference or priority over another Holder of that series.

SECTION 6.07. Rights of Holders to Receive Payment. Notwithstanding any other provision of this Indenture, the right of any Holder to receive payment of principal of and interest on the Securities held by such Holder, on or after the respective due dates expressed or provided for in such Securities, or to bring suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such Holder.

SECTION 6.08. Collection Suit by Trustee. If, with respect to the Securities of a particular series, an Event of Default specified in Section 6.01(a) or 6.01(b) occurs and is continuing, the Trustee may recover judgment in its own name and as trustee of an express trust against the Issuer or any other obligor on the Securities of such series for the whole amount then due and owing (together with interest on overdue principal and (to the extent lawful) on any unpaid interest at the rate provided for in the Securities of such series) and the amounts provided for in Section 7.07.

SECTION 6.09. Trustee May File Proofs of Claim. The Trustee may file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee and the Holders allowed in any judicial proceedings relative to the Issuer or any Subsidiary, their creditors or their property and, unless prohibited by law or applicable regulations, may vote on behalf of the Holders in any election of a trustee in bankruptcy or other Person performing similar functions and shall be entitled and empowered to collect and receive any moneys payable and deliverable on any such claims and to distribute the same, and any custodian in any such judicial proceeding is hereby authorized by each Holder to make payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and its counsel, and any other amounts due the Trustee under Section 7.07. The Issuer’s payment obligations under this Section 6.09 shall be secured in accordance with the provisions of Section 7.07.

 

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SECTION 6.10. Priorities. If the Trustee collects any money or property pursuant to this Article 6, it shall pay out the money or property in the following order:

FIRST: to the Trustee for amounts due under Section 7.07;

SECOND: to Holders for amounts due and unpaid on the Securities of such series in respect of which or for the benefit of which such money has been collected for principal and interest, ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities for principal and interest, respectively; and

THIRD: to the Issuer.

The Trustee may fix a record date and payment date for any payment to Holders pursuant to this Section 6.10. At least 15 days before such record date, the Trustee shall transmit a notice in accordance with Section 10.02 to each Holder and the Issuer, which notice shall state the record date, the payment date and amount to be paid.

SECTION 6.11. Undertaking for Costs. In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section 6.11 does not apply to a suit by the Trustee for the Securities of any series, a suit by a Holder pursuant to Section 6.07 or a suit by a Holder or Holders of more than 10% in aggregate outstanding principal amount of the Securities of any particular series.

SECTION 6.12. Waiver of Stay or Extension Laws. To the extent permitted by applicable law, the Issuer shall not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Issuer (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and shall not hinder, delay or impede the execution of any power herein granted to the Trustee, but shall suffer and permit the execution of every such power as though no such law had been enacted.

SECTION 6.13. No obligation on Trustee. Subject to the provisions of this Indenture relating to the duties of the Trustee, in case an Event of Default occurs and is continuing, the Trustee will be under no obligation to exercise any of the rights or powers under this Indenture at the request or direction of any of the Holders of the Securities unless the Trustee has been offered an indemnity or security satisfactory to the Trustee against any loss, liability or expense.

 

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ARTICLE 7

Trustee

SECTION 7.01. Duties of Trustee. (a) If an Event of Default has occurred and is continuing, the Trustee shall exercise the rights and powers vested in it by this Indenture and use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs.

(b) Except during the continuance of an Event of Default:

(i) the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture and no implied covenants or obligations shall be read into this Indenture against the Trustee; and

(ii) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture.

(c) Notwithstanding any other provision of this Indenture the Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that:

(i) this paragraph does not limit the effect of Section 7.01(b);

(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer unless it is proved that the Trustee was negligent in ascertaining the pertinent facts;

(iii) the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.02, Section 6.04 and Section 6.05; and

(iv) no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers, if it shall have reasonable grounds to believe that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.

(d) Every provision of this Indenture that in any way relates to the Trustee is subject to Sections 7.01(a), 7.01(b) and 7.01(c).

 

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(e) The Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Issuer.

(f) Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.

(g) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of Section 7.01 and to the provisions of the TIA.

(h) In no event shall the Trustee be liable under or in connection with this Indenture for indirect, special, incidental, punitive or consequential losses or damages of any kind whatsoever, including but not limited to lost profits, whether or not foreseeable, even if the Trustee has been advised of the possibility thereof and regardless of the form of action in which such damages are sought.

SECTION 7.02. Rights of Trustee. (a) The Trustee may rely on any document believed by it to be genuine and to have been signed or presented by the proper person. The Trustee need not investigate any fact or matter stated in the document.

(b) Before the Trustee acts or refrains from acting, it may require an Officers’ Certificate or an Opinion of Counsel or both. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on an Officers’ Certificate or Opinion of Counsel.

(c) The Trustee may act through agents and shall not be responsible for the misconduct or negligence of any agent appointed with due care.

(d) The Trustee shall not be liable for any action it takes or omits to take in good faith which it believes to be authorized or within its rights or powers; provided, however, that the Trustee’s conduct does not constitute willful misconduct or negligence.

(e) The Trustee may consult with counsel, and the advice or opinion of counsel with respect to legal matters relating to this Indenture and the Securities shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it hereunder in good faith and in accordance with the advice or opinion of such counsel.

(f) The Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond, debenture, note or other paper or document unless requested in writing to do so by the Holders of not less than a majority in aggregate outstanding principal amount of the Securities of any series at the time outstanding, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Issuer personally or by agent or attorney, and to consult with the officers and representatives of the Issuer, including its accountants and attorneys.

 

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(g) The Trustee shall be under no obligation to exercise any of the rights or powers invested in it by this Indenture at the request, order or direction of any of the Holders pursuant to the provisions of this Indenture, unless such Holders have offered to the Trustee reasonable security or indemnity satisfactory to the Trustee against the costs, expenses and liabilities which may be incurred by it in compliance with such request, order or direction.

(h) The Trustee shall not be required to give any bond or surety in respect of the performance of its powers and duties under this Indenture.

SECTION 7.03. Individual Rights of Trustee. The Trustee in its individual or any other capacity may become the owner or pledgee of Securities and may otherwise deal with the Issuer or its Affiliates with the same rights it would have if it were not Trustee. Any Paying Agent or Registrar may do the same with like rights. However, the Trustee must comply with Sections 7.10 and 7.11.

SECTION 7.04. Trustee’s Disclaimer. The Trustee shall not be responsible for and makes no representation as to the validity or adequacy of this Indenture, any guarantee under the Cross Guarantee Agreement, if any, or the Securities, it shall not be accountable for the Issuer’s use of the proceeds from the Securities, and it shall not be responsible for any statement of the Issuer, in this Indenture or in any document issued in connection with the sale of the Securities or in the Securities other than the Trustee’s certificate of authentication. The Trustee shall not be charged with knowledge of any Default or Event of Default under Sections 6.01(c), 6.01(d), 6.01(e), 6.01(f), 6.01(g) or 6.01(h) or of the identity of any Material Subsidiary unless either (a) a Trust Officer shall have actual knowledge thereof or (b) the Trustee shall have received notice thereof in accordance with Section 10.02 hereof from the Issuer or any Holder.

SECTION 7.05. Notice of Defaults. If a Default with respect to Securities of any series occurs and is continuing and if it is known to the Trustee, the Trustee shall transmit, in accordance with Section 10.02, a notice of the Default to each Holder of Securities of such series within the earlier of 90 days after such Default occurs or 30 days after it is known to a Trust Officer or written notice of it is received by the Trustee. Except in the case of a Default in payment of principal of or interest or Additional Amounts on any Security (including payments pursuant to the mandatory redemption provisions of such Security, if any), the Trustee may withhold the notice if and so long as a committee of its Trust Officers in good faith determines that withholding the notice is in the interests of Holders of Securities of such series.

SECTION 7.06. Reports by Trustee to Holders. As promptly as practicable after each May 15, beginning with the May 15, 2009, following the date of this Indenture, and in any event prior to May 30 in each year, the Trustee, at the Issuer’s expense, shall transmit in accordance with Section 10.02 to each Holder a brief report dated as of such May 15 that complies with Section 313(a) of the TIA if and to the extent required thereby. The Trustee shall also comply with Section 313(b) of the TIA.

 

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A copy of each report at the time of it being transmitted to Holders shall be filed by the Issuer with the SEC (to the extent required by the TIA) and each stock exchange (if any) on which the Securities are listed. The Issuer agrees to notify promptly the Trustee whenever the Securities of any series become listed on any stock exchange and of any delisting thereof.

SECTION 7.07. Compensation and Indemnity. The Issuer shall pay to the Trustee from time to time reasonable compensation for its services. The Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express trust. The Issuer shall reimburse the Trustee upon request for all reasonable out-of-pocket expenses incurred or made by it, including costs of collection, in addition to the compensation for its services. Such expenses shall include the reasonable compensation and expenses, disbursements and advances of the Trustee’s agents, counsel, accountants and experts. The Issuer shall indemnify the Trustee and its agents, employees, directors, officers and Affiliates against any and all loss, liability or expense (including reasonable attorneys’ fees) incurred by or in connection with the administration of this trust and the performance of its duties hereunder, except to the extent such loss, liability, or expense results from the willful misconduct, negligence or bad faith of the Trustee, or any of its agents, employees, directors, officers and Affiliates. The Trustee shall notify the Issuer of any claim for which it may seek indemnity promptly upon obtaining actual knowledge thereof; provided, however, that any failure so to notify the Issuer shall not relieve the Issuer of its indemnity obligations hereunder. At the Trustee’s sole discretion, the Issuer shall defend the claim and the indemnified party shall provide reasonable cooperation at the Issuer’s expense in the defense; provided that any settlement of a claim shall be approved in writing by the Trustee, which approval shall not be unreasonably withheld. Such indemnified parties may have separate counsel and the Issuer as applicable shall pay the reasonable fees and expenses of such counsel; provided, however, that the Issuer shall not be required to pay such fees and expenses if it assumes such indemnified parties’ defense and, in such indemnified parties’ reasonable judgment, there is no conflict of interest between the Issuer, and such parties in connection with such defense.

To secure the Issuer’s payment obligations in this Section 7.07, the Trustee shall have a lien prior to the Securities on all money or property held or collected by the Trustee other than money or property held in trust to pay principal of and interest on particular Securities.

The Issuer’s payment obligations pursuant to this Section 7.07 shall survive the satisfaction or discharge of this Indenture, any rejection or termination of this Indenture under any bankruptcy law or the resignation or removal of the Trustee. Without prejudice to any other rights available to the Trustee under applicable law, when the Trustee incurs expenses after the occurrence of a Default specified in Section 6.01(g) or 6.01(h) with respect to the Issuer, the expenses are intended to constitute expenses of administration under the bankruptcy law.

 

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SECTION 7.08. Replacement of Trustee. (a) The Trustee may resign at any time by so notifying the Issuer. The Holders of a majority in aggregate principal amount outstanding of the Securities of any series may remove the Trustee with respect to the Securities of such series by so notifying the Trustee and may appoint a successor Trustee with respect to the Securities of such series. The Issuer shall remove the Trustee with respect to any or all series of Securities if:

(i) the Trustee fails to comply with Section 7.10;

(ii) the Trustee is adjudged bankrupt or insolvent;

(iii) a receiver or other public officer takes charge of the Trustee or its property; or

(iv) the Trustee otherwise becomes incapable of acting.

(b) If the Trustee for the Securities of any series resigns, is removed by the Issuer or by the Holders of a majority in aggregate amount outstanding of the Securities of any series and such Holders do not reasonably promptly appoint a successor Trustee, or if a vacancy exists in the office of Trustee for any reason (the Trustee in such event being referred to herein as the retiring Trustee), the Issuer shall promptly appoint a successor Trustee with respect to the Securities of such series.

(c) A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Issuer. Thereupon the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee under this Indenture with respect to the relevant series of Securities. The successor Trustee shall transmit a notice in accordance with Section 10.02 of its succession to Holders of Securities of such series. The retiring Trustee shall promptly transfer all property held by it as Trustee with respect to such series of Securities to the successor Trustee, subject to the lien provided for in Section 7.07.

(d) If a successor Trustee does not take office within 60 days after the retiring Trustee for a particular series resigns or is removed, the retiring Trustee or the Holders of at least 10% in aggregate principal amount outstanding of the Securities of such series may petition any court of competent jurisdiction (at the reasonable expense of the Issuer) for the appointment of a successor Trustee with respect to such series.

(e) If the Trustee fails to comply with Section 7.10, unless the Trustee’s duty to resign is stayed as provided in Section 310(b) of the TIA, any Holder of Securities of any series who has been a protected holder of a Security for at least six months may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee with respect to such series.

(f) Notwithstanding the replacement of the Trustee pursuant to this Section 7.08, the Issuer’s obligations under Section 7.07 shall continue for the benefit of the retiring Trustee.

 

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SECTION 7.09. Successor Trustee by Merger. If the Trustee consolidates with, merges or converts into, or transfers all or substantially all its corporate trust business or assets to, another corporation or banking association, the resulting, surviving or transferee corporation without any further act shall be the successor Trustee.

In case at the time such successor or successors by merger, conversion or consolidation to the Trustee shall succeed to the trusts created by this Indenture any of the Securities of any series shall have been authenticated but not delivered, any such successor to the Trustee with respect to such series may adopt the certificate of authentication of any predecessor trustee, and deliver such Securities so authenticated; and in case at that time any of the Securities of any series shall not have been authenticated, any successor to the Trustee with respect to such series may authenticate such Securities either in the name of any predecessor hereunder or in the name of the successor to the Trustee with respect to such series; and in all such cases such certificates shall have the full force which it is anywhere in the Securities of such series or in this Indenture provided that the certificate of the Trustee shall have.

SECTION 7.10. Eligibility; Disqualification. There shall at all times be a Trustee hereunder and the Trustee shall at all times satisfy the requirements of Section 310(a) of the TIA. The Trustee shall have a combined capital and surplus of at least $100,000,000 as set forth in its most recent published annual report of condition. The Trustee shall comply with Section 310(b) of the TIA, subject to its right to apply for a stay of its duty to resign under the penultimate paragraph of Section 310(b) of the TIA; provided, however, that there shall be excluded from the operation of Section 310(b)(1) of the TIA any indenture or indentures under which other securities or certificates of interest or participation in other securities of the Issuer are outstanding if the requirements for such exclusion set forth in Section 310(b)(1) of the TIA are met.

SECTION 7.11. Preferential Collection of Claims Against Issuer. The Trustee shall comply with Section 311(a) of the TIA, excluding any creditor relationship listed in Section 311(b) of the TIA. A Trustee who has resigned or been removed shall be subject to Section 311(a) of the TIA to the extent indicated.

SECTION 7.12. Force Majeure. In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations under this Indenture arising out of or caused by, directly or indirectly, forces beyond its reasonable control, including without limitation strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of god; it being understood that the Trustee shall use commercially reasonable best efforts that are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.

 

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ARTICLE 8

Discharge of Indenture; Defeasance

SECTION 8.01. Discharge of Liability on Securities; Defeasance. (a) When (i) all outstanding Securities of any particular series (other than Securities of such series replaced or paid pursuant to Section 2.08) have been cancelled or delivered to the Trustee for cancellation or (ii) all outstanding Securities of any particular series have become due and payable, whether at maturity or as a result of the transmission of a notice of redemption pursuant to Article 3 hereof, or are by their terms to become due and payable within one year or are to be called for redemption within one year under arrangements satisfactory to the Trustee as trust funds solely for the benefit of Holders of Securities of such series for the giving of notice of redemption and the Issuer irrevocably deposits with the Trustee cash in U.S. dollars in an amount sufficient or U.S. Government Obligations, the principal of and interest on which will be sufficient, or a combination thereof sufficient, in the written opinion of an internationally recognized firm of independent certified public accountants delivered to the Trustee (which delivery shall only be required if U.S. Government Obligations have been so deposited), to pay the principal of and interest on the outstanding Securities of such series when due at maturity or upon redemption of, including interest thereon to maturity or such Redemption Date (other than Securities of such series replaced or paid pursuant to Section 2.08) and if in either case the Issuer has paid or caused to be paid all other sums payable hereunder by the Issuer, then this Indenture shall, subject to Section 8.01(c), cease to be of further effect with respect to Securities of such series.

The Trustee shall acknowledge satisfaction and discharge of this Indenture with respect to Securities of such series on demand of the Issuer accompanied by an Officers’ Certificate and an Opinion of Counsel reasonably satisfactory to the Trustee and at the cost and expense of the Issuer.

(b) Except as otherwise contemplated by Section 2.01 for Securities of any particular series and subject to Sections 8.01(c) and 8.02, the Issuer at any time may terminate with respect to Securities such series (i) all of its obligations under the Securities of such series and this Indenture with respect to such Securities (“legal defeasance option”) or (ii) its obligations under Sections4.03 and 4.06 and the operation of Sections 5.01(b), 6.01(e) (the “cross-acceleration provision”), 6.01(f) (the bankruptcy provisions) and 6.01(g) (the winding-up provisions) (with respect to Material Subsidiaries of the Issuer only) with respect to Securities of such series and any covenant described in any supplemental indenture in respect of such series (“covenant defeasance option”). The Issuer may exercise its legal defeasance option notwithstanding its prior exercise of its covenant defeasance option.

If the Issuer exercises its legal defeasance option with respect to Securities of any particular series, payment of such Securities may not be accelerated because of an Event of Default with respect to the Securities of such series. If the Issuer exercises its covenant defeasance option with respect to Securities of any particular series, payment of

 

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such Securities may not be accelerated because of an Event of Default specified in Sections 6.01(c) to 6.01(e) with respect to the Securities of such series or because of the failure of the Issuer to comply with Section 5.01(b).

Upon satisfaction of the conditions set forth herein and upon request of the Issuer, the Trustee shall acknowledge in writing the discharge of those obligations that the Issuer terminates.

(c) Notwithstanding Sections 8.01(a) and 8.01(b) above, the Issuer’s obligations in Sections 2.04, 2.05, 2.06, 2.07, 2.08, 2.09, 7.07 and 7.08 and in this Article 8 with respect to the Securities of any particular series shall survive until the Securities of such series have been paid in full. Thereafter, the Issuer’s obligations in Sections 7.07, 8.05 and 8.06 shall survive.

SECTION 8.02. Conditions to Defeasance (a) The Issuer may exercise its legal defeasance option or its covenant defeasance option with respect to the Securities of any particular series (such series a “Defeasible Series”) only if:

(i) the Issuer irrevocably deposits in trust with the Trustee cash in U.S. dollars in an amount sufficient or U.S. Government Obligations, the principal of and interest on which will be sufficient, or a combination thereof sufficient, to pay the principal of, and premium (if any) and interest on the Securities of such series when due at maturity or redemption, as the case may be, including interest thereon to maturity or such Redemption Date;

(ii) if U.S. Government Obligations are deposited, the Issuer delivers to the Trustee a certificate from an internationally recognized firm of independent certified public accountants expressing their opinion that the payments of principal and interest when due and without reinvestment on the deposited U.S. Government Obligations plus any deposited money without investment will provide cash at such times and in such amounts as will be sufficient to pay principal, premium, if any, and interest when due on all the Securities of such series to maturity or redemption, as the case may be;

(iii) no Default or Event of Default with respect to the Securities of such series has occurred and is continuing on the date of such deposit and after giving effect thereto (other than a Default with respect to the Securities of such series resulting from the incurrence of Indebtedness all or a portion of the proceeds at which will be used to release the Securities of such series pursuant to this Section 8.02 concurrently with such incurrence);

(iv) the deposit does not constitute a default under any other agreement binding on the Issuer;

 

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(v) the Issuer delivers to the Trustee an Opinion of Counsel to the effect that the trust resulting from the deposit does not constitute, or is qualified as, a regulated investment company under the U.S. Investment Company Act of 1940;

(vi) in the case of the legal defeasance option, the Issuer shall have delivered to the Trustee an Opinion of Counsel stating that (1) the Issuer has received from, or there has been published by, the U.S. Internal Revenue Service a ruling, or (2) since the date of this Indenture there has been a change in the applicable U.S. federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders of the Securities of such series will not recognize income, gain or loss for U.S. federal, U.K. and Belgian income tax purposes as a result of such deposit and defeasance and will be subject to U.S. federal, U.K. and Belgian income tax on the same amounts, in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred;

(vii) in the case of the covenant defeasance option, the Issuer shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for U.S. federal, U.K. or Belgian income tax purposes as a result of such deposit and defeasance and will be subject to U.S. federal, U.K. and Belgian income tax on the same amounts, in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred;

(viii) the Issuer delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance and discharge of the Securities of such series as contemplated by this Article 8 have been complied with; and

(ix) the Issuer delivers to the Trustee all other documents or other information that the Trustee may reasonably require in connection with the defeasance.

(b) Before or after a deposit, the Issuer may make arrangements satisfactory to the Trustee for the redemption of Securities of any particular series at a future date in accordance with Article 3.

SECTION 8.03. Application of Trust Money. The Trustee shall hold in trust money or U.S. Government Obligations deposited with it for the Securities of a particular series pursuant to this Article 8. It shall apply the deposited money and the money from U.S. Government Obligations through the Paying Agent and in accordance with this Indenture to the payment of principal of and interest on the Securities of such series.

 

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SECTION 8.04. Repayment to Issuer. The Trustee and the Paying Agent shall promptly turn over to the Issuer upon request any money or U.S. Government Obligations held by it as provided in this Article which, in the written opinion of an internationally recognized firm of independent certified public accountants delivered to the Trustee (which delivery shall only be required if U.S. Government Obligations have been so deposited), are in excess of the amount thereof which would then be required to be deposited to effect an equivalent discharge or defeasance in accordance with this Article.

Subject to any applicable abandoned property law, the Trustee and the Paying Agent shall pay to the Issuer upon written request any money held by them for the payment of principal or interest on any Defeasible Series that remains unclaimed for two years, and, thereafter, Holders of Securities of such Defeasible Series entitled to the money must look to the Issuer for payment as general creditors, and the Trustee and the Paying Agent shall have no further liability with respect to such monies.

SECTION 8.05. Indemnity for U.S. Government Obligations. The Issuer shall pay and shall indemnify the Trustee against any tax, fee or other charge imposed on or assessed against deposited U.S. Government Obligations or the principal and interest received on such U.S. Government Obligations.

SECTION 8.06. Reinstatement. If the Trustee or Paying Agent is unable to apply any money or U.S. Government Obligations in accordance with this Article 8 with respect to the Securities of any series by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Issuer’s obligations under this Indenture and the Securities of such series shall be revived and reinstated as though no deposit had occurred pursuant to this Article 8 until such time as the Trustee or Paying Agent is permitted to apply all such money or U.S. Government Obligations in accordance with this Article 8; provided, however, that, if the Issuer has made any payment of principal of or interest on any Securities of such series because of the reinstatement of its obligations, the Issuer shall be subrogated to the rights of the Holders of such Securities of such series to receive such payment from the money or U.S. Government Obligations held by the Trustee or Paying Agent.

ARTICLE 9

Supplemental Indentures

SECTION 9.01. Without Consent of Holders. (a) Without the consent of any Holders, the Issuer, when authorized pursuant to a resolution of the Board of Directors, and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental hereto, in form satisfactory to the Trustee and the Issuer, for any of the following purposes:

(i) establish the form and terms of any series of Securities;

 

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(ii) cure any ambiguity, omission, defect or inconsistency; provided that such amendment does not, in the opinion of the Trustee, adversely affect the rights of any Holder in any material respect;

(iii) provide for the assumption by a successor corporation of the obligations of the Issuer under this Indenture;

(iv) provide for uncertificated Securities of any series in addition to or in place of certificated Securities (provided, however, that the uncertificated Securities are issued in registered form for purposes of Section 163(f) of the Code, or in a manner such that the uncertificated Securities are described in Section 163(f)(2)(B) of the Code);

(v) add to the covenants of the Issuer for the benefit of the Holders of all or any series of Securities (and if such covenants are to be for the benefit of less than all series of Securities, stating that such covenants are expressly being included solely for the benefit of such series) or to surrender any right or power conferred upon the Issuer or any of its Subsidiaries;

(vi) make any change that does not adversely affect the rights of any Holder, subject to the provisions of this Indenture;

(vii) provide for the issuance of Add On Securities; or

(viii) comply with any requirement of the SEC in connection with the qualification of this Indenture under the TIA.

After a supplemental indenture under this Section 9.01 becomes effective, the Issuer shall transmit in accordance with Section 10.2 to Holders of Securities of each affected series a notice briefly describing such supplemental indenture. The failure to give such notice to all Holders of Securities of such series, or any defect therein, shall not impair or affect the validity of a supplemental indenture under this Section 9.01.

SECTION 9.02. With Consent of Holders (a) The Issuer, when authorized by a resolution of the Board of Directors and the Trustee, may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of modifying in any manner the rights of the Holders of any or all Securities under this Indenture, but only with the consent of the Holders of more than 50% in aggregate principal amount of the outstanding Securities of each series affected thereby, which consent may be obtained at a Meeting or otherwise. Notwithstanding the foregoing, a supplemental indenture that has any of the following effects requires the unanimous vote of the Holders (either in person or by proxy) of all of the outstanding Securities of each series affected by such decision in favor of such supplemental indenture at a duly convened Meeting:

(i) reduce the principal amount of any Security of such series or otherwise modify the conditions of payment of the principal amount of any Security of such series;

 

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(ii) reduce the stated rate of or extend the time for payment of interest on any Security of such series, or otherwise modify the conditions of interest on any Security of such series;

(iii) extend the Stated Maturity of any Security of such series;

(iv) reduce the premium payable upon the redemption of any Security of such series or change the time at which any Security of such series may be redeemed in accordance with Article 3;

(v) make any Security of such series payable in any currency other than that stated in any Security of such series;

(vi) impair the right of any Holder to receive payments of principal of, and interest on, any Security of such series on or after the due date therefor or to institute suit for the enforcement of any payment on or with respect to any Security of such series; or

(vii) make any change in the second sentence of this Section 9.02.

A supplemental indenture that changes or eliminates any covenant or other provision of this Indenture that has been included solely for the benefit of one or more particular series of Securities, or which modifies the rights of the Holders of Securities of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series.

After a supplemental indenture under this Section 9.02 becomes effective, the Issuer shall transmit in accordance with Section 10.02 to Holders of Securities of the affected series a notice briefly describing such supplemental indenture. The failure to give such notice to all Holders of Securities of such series, or any defect therein, shall not impair or affect the validity of a supplemental indenture under this Section 9.02.

Appendix B contains additional provisions relating to the conduct of Meetings, which provisions are hereby incorporated in and expressly made a part of this Indenture and which shall apply to any Meeting, whether for purposes of this Section 9.02 or otherwise.

It shall not be necessary for any Meeting or consent of the Holders under this Section 9.02 to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Meeting or consent shall approve the substance thereof.

 

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SECTION 9.03. Compliance with Trust Indenture Act and Article 568 of the Belgian Company Code

(a) Every supplemental indenture executed pursuant to this Indenture shall comply with the TIA as then in effect.

(b) No resolution of a Meeting which in the opinion of the Issuer relates to any of the matters listed in Article 568 of the Belgian Company Code shall be effective unless approved at a Meeting complying in all respects with the requirements of Belgian law or, where the corresponding requirements of the Indenture are more stringent, with the requirements of the Indenture. Such matters include, inter alia, modifying or suspending the date of maturity of the Securities, extending the time for payment of interest on any Security, reducing the rate of such interest or deciding urgent interim actions in the common interest of Holders.

SECTION 9.04. Revocation and Effect of Waivers and Proxies

(a) A waiver, or the appointment of a Proxy, by a Holder of a Security shall bind the Holder and every subsequent Holder of that Security or portion of the Security that evidences the same debt as the consenting Holder’s Security, even if notation of the waiver, or the appointment of such Proxy, is not made on the Security. However, any such Holder or subsequent Holder may revoke the written waiver, or the appointment of such Proxy, as to such Holder’s Security or portion of the Security if (in the case of a written consent) the Trustee receives the notice of revocation before the date on which the Trustee receives an Officers’ Certificate from the Issuer certifying that the requisite number of consents have been received or (in the case of the appointment of a Proxy) in accordance with Appendix B. After a supplemental indenture or waiver becomes effective, it shall bind every Holder. A supplemental Indenture or waiver becomes effective upon (i) if required by this Indenture, its approval at a duly convened Meeting by a Required Resolution or the receipt of the requisite consent from Holders, (ii) satisfaction of conditions to effectiveness as set forth in this Indenture and any indenture supplemental hereto containing such amendment or waiver and (iii) execution of such waiver or supplemental indenture by the Issuer and the Trustee.

(b) The Issuer may, but shall not be obligated to, fix a record date for the purpose of determining the Holders entitled to give a written consent or take any other action described above or required or permitted to be taken pursuant to this Indenture (except that action by Holders at Meetings will be governed by Appendix B). If a record date is fixed, then notwithstanding Section 9.04(a), those Persons who were Holders at such record date (or their duly designated Proxies), and only those Persons, shall be entitled to give such consent or to revoke any consent (or the appointment of a Proxy) previously given or to take any such action, whether or not such Persons continue to be Holders after such record date. No such consent shall be valid or effective if given more than 120 days after such record date.

SECTION 9.05. Notation on or Exchange of Securities. If a supplemental indenture changes the terms of a Security of any series, the Trustee may require the Holder of the Security to deliver such Security (or, if applicable, the Definitive Registered Certificate in respect thereof) to the Trustee. The Trustee may place an

 

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appropriate notation on the Security (or, if applicable, the Definitive Registered Certificate in respect thereof) regarding the changed terms and return it to the Holder. Alternatively, if the Issuer or the Trustee so determines, the Issuer in exchange for the Security (or, if applicable, the Definitive Registered Certificate in respect thereof) shall issue and the Trustee shall authenticate a new Security (or Definitive Registered Certificate in respect thereof, if applicable) of the same series that reflects the changed terms. Failure to make the appropriate notation or to issue a new Security (or Definitive Registered Certificate in respect thereof, if applicable) shall not affect the validity of such supplemental indenture.

SECTION 9.06. Trustee to Sign Supplemental Indentures. The Trustee shall sign any supplemental indenture authorized pursuant to this Article 9 if such supplemental indenture does not adversely affect the rights, duties, liabilities or immunities of the Trustee. If it does, the Trustee may but need not sign it. In signing such supplemental indenture the Trustee shall be entitled to receive indemnity reasonably satisfactory to it and to receive, and (subject to Section 7.01) shall be fully protected in relying upon, an Officers’ Certificate and an Opinion of Counsel stating that such supplemental indenture is authorized or permitted by this Indenture and that such supplemental indenture is the legal, valid and binding obligation of the Issuer enforceable against them in accordance with its terms, subject to customary exceptions, and complies with the provisions hereof (including Section 9.03).

SECTION 9.07. Payment for Consent. Neither the Issuer nor any Affiliate of the Issuer shall, directly or indirectly, pay or cause to be paid any consideration, whether by way of interest, fee or otherwise, to any Holder for or as an inducement to any waiver of or supplemental indenture amending any of the terms or provisions of this Indenture or the Securities of any series (or the appointment of any Proxy in relation to any of the foregoing) unless such consideration is offered to be paid to all Holders of the Securities of such series that so waive or approve the supplemental indenture in the time frame set forth in solicitation documents relating to such waiver or supplemental indenture or Proxies in relation thereto.

SECTION 9.08. Effect of Supplemental Indentures. Upon the execution of any supplemental indenture, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes, and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.

ARTICLE 10

Miscellaneous

SECTION 10.01. Trust Indenture Act Controls. If and to the extent that any provision of this Indenture limits, qualifies or conflicts with the duties imposed by, or with another provision (an “incorporated provision”) included in this Indenture by operation of, Sections 310 to 317 of the TIA, inclusive, such imposed duties or incorporated provision shall control.

 

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SECTION 10.02. Notices. Any notice or communication shall be in writing and delivered in person or mailed by first-class mail or sent by facsimile (with a hard copy delivered in person or by mail promptly thereafter) addressed as follows:

if to the Issuer:

 

Square Marie Curie 40

1070 Brussels

Belgium

Fax:  

+ 32 2412 2118 (for Richard James)

+ 32 2412 2118 (for William Schoofs)

Attention of: Richard James and William Schoofs (separate notices for each person)
if to the Trustee:

The Bank of New York Mellon

101 Barclay Street

New York, NY 10286

Fax:   +44 207 964 2536
Attention: Corporate Trust Administration

The Issuer or the Trustee by notice to the other parties hereto may designate additional or different addresses for subsequent notices or communications.

Notwithstanding anything to the contrary in this Indenture, any notice or report to Holders that is required by the relevant section of the TIA to be mailed shall be so mailed. Any notice or communication mailed to a Holder shall be mailed, by first-class mail, to the Holder at the Holder’s address as it appears on the registration books of the Registrar or the Issuer, as the case may be, and shall be sufficiently given if so mailed within the time prescribed. Mailing required by Section 313 of the TIA shall be made in accordance with Section 313(c) thereof.

Failure to transmit a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders. If a notice or communication is transmitted in the manner provided above, it is duly given, whether or not the addressee receives it.

For so long as Securities of any series are in the form of a Global Security, notices to Holders of interests in such Global Security are permitted to be given through the relevant clearance systems in accordance with the Applicable Procedures thereof. In addition, the Issuer and/or the Trustee may treat the Person that is the Holder for purposes of payments of principal, premium, if any, and interest on the Securities as the Holder for purposes of the transmission of notices, reports and certificates.

 

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SECTION 10.03. Communication by Holders with Other Holders. Holders may communicate pursuant to Section 312(b) of the TIA with other Holders with respect to their rights under this Indenture or the Securities. The Issuer, the Trustee, the Registrar and anyone else shall have the protection of Section 312(c) of the TIA.

SECTION 10.04. Certificate and Opinion as to Conditions Precedent. Upon any request or application by the Issuer to the Trustee to take or refrain from taking any action under this Indenture, the Issuer shall furnish to the Trustee:

(i) an Officers’ Certificate in form and substance reasonably satisfactory to the Trustee stating that, in the opinion of the signers, all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with; and

(ii) an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee stating that, in the opinion of such counsel, all such conditions precedent have been complied with.

SECTION 10.05. Statements Required in Certificate or Opinion. Each certificate or opinion with respect to compliance with a covenant or condition provided for in this Indenture (other than pursuant to Section 4.02) shall include:

(a) a statement that the individual making such certificate or opinion has read such covenant or condition;

(b) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;

(c) a statement that, in the opinion of such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and

(d) a statement as to whether or not, in the opinion of such individual, such covenant or condition has been complied with.

SECTION 10.06. Acts by Holders. In determining whether the Holders of the required aggregate amount outstanding of the Securities of any series have (a) concurred in any direction, waiver or consent, (b) voted in favor of a Required Resolution at a Meeting or (c) are present or represented at a Meeting, Securities owned by the Issuer or by any Person directly or indirectly controlling or controlled by or under direct or indirect common control with the Issuer shall be disregarded and deemed not to be outstanding, except that, for the purpose of determining whether the Trustee shall be protected in relying on any such direction, waiver or consent, only Securities which the Trustee knows are so owned shall be so disregarded. Subject to the foregoing, only Securities outstanding at the time shall be considered in any such determination.

 

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SECTION 10.07. Rules by Trustee, Paying Agent and Registrar. The Trustee may make reasonable rules for action by or a meeting of Holders. The Registrar and the Paying Agent may make reasonable rules for their functions.

SECTION 10.08. Legal Holidays. A “Legal Holiday” is a Saturday, a Sunday or other day on which banking institutions are generally not open in Brussels, Belgium, the State of New York or London, England. If a payment date is a Legal Holiday, payment shall be made on the next succeeding day that is not a Legal Holiday, and no interest shall accrue for the intervening period. If a regular record date is a Legal Holiday, the record date shall not be affected.

SECTION 10.09. Governing Law. THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.

SECTION 10.10. Consent to Jurisdiction and Service. The Issuer irrevocably (i) agrees that any legal suit, action or proceeding against the Issuer arising out of or based upon this Indenture, the Securities or the transactions contemplated hereby may be instituted in any U.S. Federal or state court in the Borough of Manhattan, The City of New York and (ii) waives, to the fullest extent it may effectively do so, any objection which it may now or hereafter have to the laying of venue of any such proceeding. The Issuer has appointed Corporate Service Company as its authorized agent (the “Authorized Agent”) upon whom process may be served in any such action arising out of or based on this Indenture, the Securities or the transactions contemplated hereby which may be instituted in any New York court, expressly consents to the jurisdiction of any such court in respect of any such action, and waives any other requirements of or objections to personal jurisdiction with respect thereto. Such appointment shall be irrevocable. The Issuer represents and warrants that the Authorized Agent has agreed to act as such agent for service of process and agrees to take any and all action, including the filing of any and all documents and instruments, that may be necessary to continue such appointment in full force and effect as aforesaid. Service of process upon the Authorized Agent and written notice of such service to the Issuer shall be deemed, in every respect, effective service of process upon the Issuer.

SECTION 10.11. No Recourse Against Others. A director, officer, employee, incorporator or shareholder, as such, of the Issuer shall not have any liability for any obligations of the Issuer under the Securities or this Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. By accepting a Security, each Holder shall waive and release all such liability. The waiver and release shall be part of the consideration for the issue of the Securities.

SECTION 10.12. Successors. All agreements of the Issuer in this Indenture and the Securities shall bind its successors. All agreements of the Trustee in this Indenture shall bind its successors.

 

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SECTION 10.13. Multiple Originals. The parties may sign any number of copies of this Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. One signed copy is enough to prove this Indenture.

SECTION 10.14. Table of Contents; Headings. The table of contents, cross-reference sheet and headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not intended to be considered a part hereof and shall not modify or restrict any of the terms or provisions hereof.

SECTION 10.15. Prescription. Claims against the Issuer for the payment of principal on the Securities of any series will be prescribed 10 years after the applicable due date for the payment thereof. Claims against the Issuer for the payment of interest or Additional Amounts, if any, on the Securities of any series will be prescribed five years after the applicable due date for payment of interest.

[Signature page follows]

 

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IN WITNESS WHEREOF the parties have caused this Indenture to be duly executed as of the date first written above.

 

DELHAIZE GROUP SA/NV
By:  

 

Name:  
Title:  

 

THE BANK OF NEW YORK MELLON, as Trustee
By:  

 

Name:  
Title:  


APPENDIX A

PROVISIONS RELATING TO THE SECURITIES

1 Definitions and Interpretation

1.1 Definitions

For the purposes of this Appendix A the following terms shall have the meanings indicated below:

“Applicable Procedures” means the rules and procedures of the X/N System, Euroclear, Clearstream and DTC, in each case to the extent applicable to a transaction and as in effect from time to time;

“CDI Depositary” means The Bank of New York Mellon until a successor replaces it and, thereafter, means the successor;

“Clearstream” means Clearstream Banking, société anonyme, or any successor securities clearing agency;

“Definitive Registered Certificate” means a certificate in the form of Exhibit B that evidences the registration of a Definitive Registered Security in the name of a Holder in the Register;

“Definitive Registered Security” means a Security outstanding in definitive registered form, title to which is shown by an entry in the Register;

“DTC” means The Depository Trust Company, its nominees and their respective successors;

“Euroclear” means Euroclear Bank SA/NV, or any successor securities clearing agency;

“Global Securities Legend” means the legend referred to as such in Section 2.3.(i) herein;

“NBB” means the National Bank of Belgium;

“Principal Paying Agent” means ING Belgium SA/NV or its successor, as principal paying agent under the Agency Agreement;

“Register” means the register held by the Registrar, if any, in accordance with Section 2.4 hereof, which will show the aggregate principal amount, serial numbers and dates of issuance of Definitive Registered Securities and Definitive Registered Certificates, the names and address of the Holders and the dates of all transfers to, and the names and addresses of, all subsequent Holders, all cancellations of Definitive Registered Securities and corresponding Definitive Registered Certificates and all replacements of Definitive Registered Certificates; and


“Transfer Agent” means The Bank of New York (Luxembourg), S.A.

1.2 Other Definitions

 

Term:

   Defined in Section:

“Global Security”

   2.1(a)

1.2 Rules of Interpretation

If any conflict or inconsistency exists between this Appendix A and the rest of the Indenture, the Indenture shall govern.

2 The Securities

2.1 Form and Dating

(a) Global Securities. Securities of any series shall be issued initially in the form of one or more permanent global Securities in bearer form (collectively, the “Global Securities”) without interest coupons and bearing the Global Securities Legend which shall be duly executed by the Issuer, authenticated by the Trustee as provided in the Indenture and deposited in the X/N System. The aggregate principal amount at maturity of the Global Securities of any series may from time to time be increased or decreased by adjustments made on the records of the Principal Paying Agent, Trustee and/or the NBB, as applicable, and on the schedules thereto as hereinafter provided.

(b) Definitive Registered Securities. Except as provided in Section 2.3, owners of Book-Entry Interests in Global Securities of any series will not be entitled to receive interests in Definitive Registered Securities in exchange for such Book-Entry Interests or physical delivery of Definitive Registered Certificates in respect of Definitive Registered Securities.

2.2 Authentication. At any time and from time to time after the execution and delivery of this Indenture, the Trustee shall authenticate and make available for delivery upon a written order of the Issuer signed by two members of the Board of Directors of the Issuer Securities of any series. Such order shall specify the amount of the Securities to be authenticated and the date on which the original issue of Securities is to be authenticated.

 

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2.3 Transfer and Exchange.

(a) Transfer and Exchange of Global Securities. Holders of Book-Entry Interests in Global Securities of any series will not be entitled to receive physical delivery of such Global Securities or of any individual bearer note representing a portion thereof. Any transfer of a Book-Entry Interest in a Global Security or payment of the principal, interest or premium, if any, on such interests in the Global Securities of such series other than through the X/N System or its Participants and/or Indirect Participants, shall not be enforceable against the Issuer. Global Securities of any series may be replaced, as provided in Section 2.08 of the Indenture. Every Security authenticated and delivered in exchange for, or in lieu of, a Global Security pursuant to this Section 2.3 shall be authenticated and delivered in the form of, and shall be, a Global Security, except in connection with the issuance of Definitive Registered Securities as provided in Sections 2.3(e) and 2.3(f). A Global Security may not be exchanged for another Security other than as provided in the Global Securities Legend. However, Book-Entry Interests in a Global Security may be transferred and exchanged as provided in this Section 2.3.

All Global Securities of any series will be exchanged by the Issuer in whole, but not in part, for Definitive Registered Securities of the same series, in respect of which Definitive Registered Certificates will be issued, in the event that:

(1) (A) the NBB ceases to operate the X/N System and no successor has been appointed within 15 days after the date on which NBB gives notice of such fact to the Issuer and the Principal Paying Agent;

(B) both Euroclear and Clearstream notify the Issuer that they are unwilling or unable to continue to act as, or ceases to be, a clearing agency in respect of the Securities of such series and no successor clearing agency has been appointed within 15 days after the date on which notice of such fact is given to the Issuer;

(C) DTC notifies the Issuer that it is unwilling or unable to continue to act as depositary or ceases to be a clearing agency registered under the Exchange Act and, in either case, a successor depositary is not appointed by the CDI Depositary at the Issuer’s request within 15 days of such notification; or

(D) if the CDI Depositary is at any time unwilling or unable to continue as CDI Depositary and a successor CDI depositary is not appointed by the Issuer within 15 days of such notification; or

(2) if, as a result of any change in, or amendment to, the laws or treaties (or any regulations, protocols or rulings promulgated thereunder) of Belgium or any other Relevant Taxing Jurisdiction affecting taxation, or any change in position regarding the application, administration or interpretation of such laws, treaties, regulations or rulings (including a holding, judgment or order by a court of competent jurisdiction), that becomes effective on or after the Issue Date of such series, the Issuer determines that continuing to settle the Securities of

 

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any series through the X/N System would require it on the occasion of the next payment due in respect of the Securities of such series to make a deduction or withholding from any payment in respect of such Securities, which deduction or withholding would not then be required in respect of Definitive Registered Securities.

In the event that Global Securities of any series become exchangeable pursuant to clause (1)(A) above:

(i) the Principal Paying Agent shall request that The Bank of New York Mellon, New York Branch as substitute Principal Paying Agent, cause the Issuer to exchange the Global Securities of such series against Definitive Registered Securities of such series in an aggregate principal amount equal to the principal amount of the Global Securities of such series; and

(ii) the substitute Principal Agent shall: (a) arrange for the Definitive Registered Securities of such series to be exchanged in the amount of and in the name of the holders of book-entry interests in the certificated depositary interests representing interests in the Global Securities of such series (for the latter, based on instructions received by it from the CDI Depositary, in turn based on instructions from DTC); (b) request the Principal Paying Agent to make a request of the NBB to deliver the Global Securities of such series to the Principal Paying Agent within five business days after such request; (c) upon receipt of such Global Securities from the Principal Paying Agent, cancel the Global Securities of such series; and (d) arrange for the entry of the Definitive Registered Securities of such series in the Register and the delivery of certificates evidencing the entry of the Definitive Registered Securities of such series in the Register in the name of the relevant holders of book entry interests.

In the event that Global Securities of any series become exchangeable pursuant to clause 1(B) or (2) above:

(i) the Issuer shall deliver to the Principal Paying Agent a request for the exchange of the Global Securities of such series against Definitive Registered Securities of such series in aggregate principal amount equal to the principal amount of the Global Securities of such series, which request will be communicated by the Principal Paying Agent to the substitute Principal Paying Agent; and

(ii) the Principal Paying Agent shall: (A) cause the Issuer to exchange the Global Securities of such series against Definitive Registered Securities of such series in the amount of and in the name of the holders of book-entry interests in the certificated depositary interests

 

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representing interests in the Global Securities of such series (for the latter, based on instructions received by it from the CDI Depositary, in turn based on instructions from DTC); (B) request the CDI Depositary to make a request to the NBB (through Euroclear) to deliver the Global Securities of such series to the Principal Paying Agent within five business days after such request; (C) upon receipt of the Global Securities of such series, cancel such Securities; and (D) arrange for the entry of the Definitive Registered Global Securities of such series in the Register and the delivery of certificates evidencing the entry of the Definitive Registered Securities of such series in the Register in the name of the relevant holders of book-entry interests.

At the time of the exchange of the Definitive Registered Securities of any series, the entries made of the Definitive Registered Securities of such series in the Register shall correspond with the last entries in the accounts of the X/N System and/or its Participants (or as directed by them).

In the event that Global Securities of any series become exchangeable pursuant to clause (1)(C) or (D) above:

(i) the Issuer shall deliver to the Principal Paying Agent a request for the exchange of the Global Securities of such series against Definitive Registered Securities of such series in aggregate principal amount equal to the principal amount of the Global Securities of such series, which request will be communicated by the Principal Paying Agent to the substitute Principal Paying Agent;

(ii) the Principal Paying and Domiciliary Agent shall notify the NBB; and

(iii) the substitute Principal Paying Agent shall: (A) cause the Issuer to exchange the Global Securities of such series against Definitive Registered Securities of such series in the amount of and in the name of the holders of book-entry interests in the certificated depositary interests representing interests in the Global Securities of such series (based on instructions received by it from the CDI Depositary, in turn based on instructions form DTC); (B) upon receipt of the Global Securities of such series, cancel such Global Securities; and (C) arrange for the entry of the Definitive Registered Global Securities of such series in the Register and the delivery of certificates evidencing the entry of the Definitive Registered Securities of such series in the Register in the name of the relevant holders of certificated depositary interests.

(b) General Provisions Applicable to Transfers and Exchanges of the Securities. Transfers of Book-Entry Interests in the Global Securities of any series (other than transfers of Book-Entry Interests in connection with which the transferor takes

 

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delivery thereof in the form of a Book-Entry Interest in the same Global Security) shall require compliance with this Section 2.3(b), as well as one or more of the other paragraphs of this Section 2.3, as applicable.

In connection with all transfers and exchanges of Book-Entry Interests (other than transfers of Book-Entry Interests in connection with which the transferor takes delivery thereof in the form of a Book-Entry Interest in the same Global Securities), the Principal Paying Agent must receive: (i) a written order from a Participant or an Indirect Participant given in accordance with the Applicable Procedures directing the Principal Paying Agent to debit, or cause to be debited, from the transferor or person exchanging a Book-Entry Interest in an amount equal to the Book-Entry Interest to be transferred or exchanged; (ii) a written order from a Participant or an Indirect Participant given in accordance with the Applicable Procedures directing the Principal Paying Agent to, credit or cause to be credited, a Book-Entry Interest in another Global Security of the same series in an amount equal to the Book-Entry Interest to be transferred or exchanged; and (iii) instructions given in accordance with the Applicable Procedures containing information regarding the account of the Participant to be credited with such increase.

In connection with a transfer or exchange of a Book-Entry Interest for a Definitive Registered Security of the same series, the Principal Paying Agent must receive: (i) a written order from a Participant or an Indirect Participant given in accordance with the Applicable Procedures directing the Principal Paying Agent to debit, or cause to be debited, from the transferor a Book-Entry Interest in an amount equal to the Book-Entry Interest to be transferred or exchanged; (ii) a written order from a Participant directing the Principal Paying Agent to direct the Transfer Agent to cause the Issuer to issue, and the to arrange for the entry in the Register of, a Definitive Registered Security of the same series in an amount equal to the Book-Entry Interest to be transferred or exchanged and the Issuer to issue, and the Trustee to authenticate, Definitive Registered Certificates in respect of Definitive Registered Securities of such series; and (iii) instructions containing information regarding the Person in whose name such Definitive Registered Security shall be registered to effect such transfer or exchange.

In connection with any transfer or exchange of Definitive Registered Securities of any series, the Holder of such Securities shall present or surrender to the Transfer Agent the corresponding Definitive Registered Certificate(s) duly endorsed or accompanied by a written instruction of transfer in form satisfactory to the Registrar and Transfer Agent duly executed by such Holder or by its attorney, duly authorized in writing.

Upon satisfaction of all of the requirements for transfer or exchange of Book-Entry Interests in Global Securities of any series contained in the Indenture, the Principal Paying Agent shall issue to the NBB a new “Schedule of Amendment of the Principal” to be attached to the relevant Global Securities of such series reflecting the increase or decrease, as applicable, in the principal amount at maturity of such Global Securities and shall at the same time provide the Trustee with a copy of such schedule.

 

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(c) Transfer of Book-Entry Interests in Global Securities to Definitive Registered Securities. A Holder of a Book-Entry Interest in a Global Security of any series may transfer such Book-Entry Interest to a Person who takes delivery thereof in the form of a Definitive Registered Security of the same series within 60 days following notice given by the Issuer or the Trustee of an Event of Default specified in Clause (a), (b), (f), (g) or (h) of Section 6.01 of the Indenture with respect to the Securities of such series only if such transfer complies with the requirements of Sections 2.3(b) and (to the extent applicable by its terms) 2.3(h).

Upon receipt of the orders and instructions required by Section 2.3(b), the Principal Paying Agent shall (i) deliver, or cause to be delivered to the NBB a new “Schedule of Amendment of the Principal” reflecting the decrease in the amount of the relevant Global Security of such series by the principal amount at maturity of such transfer (and shall at the same time provide the Trustee with a copy of such schedule), (ii) thereafter, debit, or cause to be debited, the accounts of the relevant Participant in connection with such transfer and (iii) shall give notice to the Transfer Agent, which shall cause the Issuer to exchange the Book-Entry Interests so transferred against Definitive Registered Securities of such series in an aggregate principal amount at maturity equal to the aggregate principal amount at maturity of such Book-Entry Interests and in the names set forth in the instructions received by the Principal Paying Agent and cause the Trustee, upon receipt of an Authentication Order from the Issuer in accordance with Section 2.3 of the Indenture, to authenticate one or more Definitive Registered Certificates in respect of such Definitive Registered Securities of such series. The Transfer Agent shall instruct the Registrar to record such transfer in the Register.

(d) Exchanges of Book-Entry Interests in Global Securities for a Definitive Registered Security. A Holder of a Book-Entry Interest in a Global Security of any series may exchange such Book-Entry Interest for Definitive Registered Security of the same series within 60 days following notice given by the Issuer or the Trustee of an Event of Default specified in clause (a), (b), (f), (g) or (h) of Section 6.01 the Indenture with respect to the Securities of such series if the exchange complies with the requirements of Sections 2.3(h) and (to the extent applicable by its terms) 2.3(b).

Upon receipt of the orders and instructions required by Section 2.3.2, the Principal Paying Agent shall (i) debit, or cause to be debited, the accounts of the relevant Participants, (ii) deliver, or cause to be delivered, to the NBB a new “Schedule of Amendment of the Principal” reflecting the decrease in amount of the relevant Global Security of such series by the principal amount at maturity of such exchange (and shall at the same time provide the Trustee with a copy of such schedule) and (iii) give notice to the Transfer Agent which shall cause the Issuer to exchange the Book-Entry Interests so transferred against Definitive Registered Securities of such series in an aggregate principal amount at maturity equal to the aggregate principal amount at maturity of such Book-Entry Interests and in the names set forth in the instructions

 

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received by the Principal Paying Agent, and cause the Trustee, upon receipt of an Authentication Order from the Issuer in accordance with Section 2.3 of the Indenture, to authenticate one or more Definitive Registered Certificates in respect of such Definitive Registered Securities. The Transfer Agent shall instruct the Registrar to record such exchange in the Register. The Trustee will deliver (at the Issuer’s expense) the Definitive Registered Certificates in respect of the relevant Definitive Registered Securities of such series to the Holders entitled thereto.

(g) Transfer of Definitive Registered Securities for Definitive Registered Securities. Any Holder of a Definitive Registered Security may transfer such Security to a Person who receives such security in the form of a Definitive Registered Security of the same series if the transfer complies with Section 2.3(b) and (to the extent applicable by its terms) 2.3(h).

Upon the receipt of any Definitive Registered Certificates of any series, the Transfer Agent shall cancel such Definitive Registered Certificates pursuant to Section 2.11 of the Indenture and complete and deliver to the Issuer a new Definitive Registered Certificate in respect of the transferred Definitive Registered Security. The Issuer shall execute and the Trustee shall authenticate and deliver such new Definitive Registered Certificate to such Person(s) as the Holder of the Definitive Registered Security of such series being transferred shall designate. In addition, the Transfer Agent shall instruct the Registrar to record such transfer in the Register.

(h) Restrictions on Transfers

The Issuer will not be required to register the transfer or any of the Definitive Registered Securities of any series selected for redemption or due to be redeemed:

(1) for a period of 5 days before the date for redemption; or

(2) for a period of 5 days before an interest payment date.

(i) Legend

Each Global Security of any series (and all Global Securities of such series issued in exchange therefor or in substitution thereof) shall bear the Global Securities Legend in substantially the form set out below (each defined term in the legend being defined as such for purposes of the legend only):

Global Securities Legend:

ANY UNITED STATES PERSON WHO HOLDS THIS SECURITY WILL BE SUBJECT TO LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS INCLUDING THE LIMITATIONS PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE UNITED STATES INTERNAL REVENUE CODE.

 

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THIS GLOBAL NOTE IS ACCEPTED FOR CLEARANCE THROUGH THE X/N SYSTEM OPERATED BY THE NBB (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) AND IS HELD BY THE NBB FOR THE ACCOUNT OF THE PARTICIPANTS OF THE X/N SYSTEM, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (1) THE PRINCIPAL PAYING AGENT MAY AMEND THE “SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE” AS MAY BE REQUIRED PURSUANT TO SUCH INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED, IN WHOLE OR IN PART, PURSUANT TO SUCH INDENTURE, (3) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF SUCH INDENTURE AND (4) THE NBB MAY ENTRUST THIS GLOBAL NOTE TO A SUBDEPOSITARY THAT WILL ACT AS AGENT AND FOR THE ACCOUNT OF THE NBB. THE AGREEMENT BETWEEN THE NBB AND THE SUBDEPOSITARY MAY NOT DEVIATE FROM THE PROVISIONS OF THE CLEARING AGREEMENT (AS DEFINED IN THE INDENTURE GOVERNING THIS GLOBAL NOTE) IN RESPECT OF THIS GLOBAL NOTE.

(j) Cancellation and/or Adjustment of Global Securities. Within 10 Business Days following the repayment of the Securities of any series, the Issuer shall withdraw, against receipt, from the NBB the Global Securities of such series and the withdrawn Global Securities shall be voided by perforation of such Global Securities. At any time prior to such cancellation, if any Book-Entry Interest in a Global Security of such series is exchanged for, or transferred to, a Person who will take delivery thereof in the form of a Book-Entry Interest in another Global Security of such series or as a Definitive Registered Security of such series, the principal amount at maturity of Securities of such series represented by such Global Security will be reduced accordingly and the Principal Paying Agent shall provide a new “Schedule of Amendment of the Principal” to the NBB to reflect such reduction (and shall at the same provide the Trustee with a copy of such schedule); and if the Book-Entry Interest is being exchanged for or transferred to a Person who will take delivery thereof in the form of a Book-Entry Interest in another Global Security of such series, such other Global Security will be increased accordingly and the Principal Paying Agent shall provide a new “Schedule of Amendments of the Principal” to the NBB to reflect such increase (and shall at the same provide the Trustee with a copy of such schedule).

(k) Obligations with Respect to Transfers and Exchanges of Securities

(i) To permit registrations of transfers and exchanges, the Issuer shall execute, and the Trustee shall authenticate, Definitive Registered Certificates and Global Securities at the Transfer Agent’s request.

 

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(ii) No service charge shall be made for any registration of transfer or exchange, but the Issuer may require payment of a sum sufficient to cover any taxes, assessments, or other governmental charges payable in connection therewith (other than any such taxes, assessments or other governmental charges payable upon exchanges pursuant to Sections 2.10 and 9.05 of the Indenture and any mandatory offer to purchase Securities in a supplemental indenture).

(iii) Prior to the due presentation for registration of transfer of any Security of any series, the Issuer, the Trustee, each Paying Agent or the Registrar may deem and treat (in the case of a Global Security issued in bearer form) the Holder of such Security as determined as provided in Section 2.14 of the Indenture or (in any other case) the person in whose name a Security is registered in the Register as the absolute owner of such Security for the purpose of receiving payment of principal of and interest on such Security and for all other purposes whatsoever, whether or not such Security is overdue, and none of the Issuer, the Trustee, each Paying Agent or the Registrar shall be affected by notice to the contrary.

(iv) All Securities of any series exchanged pursuant to the terms of the Indenture shall evidence the same debt and shall be entitled to the same benefits under the Indenture as the exchanged Securities of such series surrendered upon such transfer or exchange.

(l) No Obligation of the Trustee

(i) The Trustee shall have no responsibility or obligation to any beneficial owner of a Global Security of any series, a member of, or a Participant or any other Person with respect to the accuracy of the records of the X/N System, the NBB or its nominee or of any Participant or Indirect Participant, with respect to any ownership interest in the Securities of any series or with respect to the delivery to any participant, member, beneficial owner or other Person (other than the NBB) of any notice (including any notice of redemption or repurchase) or the payment of any amount, under or with respect to such Securities. All notices and communications to be given to the Holders and all payments to be made to Holders under the Securities of any series shall be given or made only to such Holders (which shall be the NBB or its nominee in the case of a Global Security). The rights of beneficial owners in any Global Security of any series shall be exercised only through the X/N System and its Participants and Indirect Participants, subject to the Applicable Procedures. The Trustee may rely and shall be fully protected in relying upon information furnished by the X/N System with respect to its members, Participants and any beneficial owners.

(ii) The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under the Indenture or under applicable law with respect to any transfer of any interest in any Security (including any transfers between or among Participants, Indirect Participants, members or beneficial owners in any Global Security) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by, the terms of the Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.

 

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2.4 Certain Provisions Relating to the Register

(a) Access to the Register

Holders may, upon reasonable advance notice to the Registrar and during normal business hours, inspect the Register at the office of the Registrar.

(b) Registration of Transfers in the Register

The Registrar shall receive requests for the exchange or Transfer of Definitive Registered Securities of any series in accordance with the Indenture and shall make the necessary entries in the Register.

 

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APPENDIX B

PROVISIONS FOR MEETINGS OF THE HOLDERS OF SECURITIES

 

1 Definitions

In this Appendix B, the following expressions have the following meanings:

Chairman” means, in relation to any Meeting, the individual who takes the chair in accordance with Section 6 below;

Form of Proxy” means, in relation to any Meeting, a document in the Dutch or French languages (accompanied, as the case may be, with an English translation) available from the Trustee signed by a Holder or, in the case of a corporation, executed under its seal or signed on its behalf by a duly authorized Officer and delivered to the Trustee not later than 48 hours before the time fixed for such Meeting, appointing a named individual or individuals to vote in respect of the Securities held by such Holder;

Holder Certificate” means (a) with respect to a Global Security of any series, a certificate from a Participant or Indirect Participant in the X/N System stating that the Person specified therein has a Book-Entry Interest in the principal amount of such Global Security specified therein through the issuer of such certificate and (b) with respect to a Definitive Registered Security of any series, a certificate from the Registrar stating that the Person specified therein has been registered in the Register as holding the principal amount of Definitive Registered Securities of such series specified therein;

Meeting” means a meeting of Holders (whether originally convened or resumed following an adjournment);

Proxy” means, in relation to any Meeting, a person appointed to vote under a Form of Proxy other than any such person whose appointment has been validly revoked and in relation to whom the Trustee or the Issuer has been notified in writing of such revocation by the time which is 48 hours before the time fixed for such Meeting;

Required Resolution” means a resolution passed at a duly convened Meeting:

(a) with respect to any matter specified in clauses (i) through (vii) of the second sentence of Section 9.02 of the Indenture, with the unanimous vote of all of the Holders (either in person or by proxy) of the outstanding Securities of each series affected by such resolution in favor of the relevant resolution; and

(b) with respect to any other matter requiring the consent of Holders of Securities of any series at a duly convened Meeting, with the affirmative vote of the Holders of more than 50% in aggregate outstanding principal amount of the outstanding Securities of such series then outstanding voting (in person or by proxy) at a Meeting.


Voter” means, in relation to any Meeting, the bearer of a Voting Certificate or a Proxy, it being understood that the vote of a Holder of a Definitive Registered Security who does not continue to hold such Security until the Release Time shall not be valid;

Voting Certificate” means, in relation to any Meeting, a dated certificate issued by the Principal Paying Agent, the NBB or a Participant or Indirect Participant, in which it is stated (a)(i) that interests in a specified amount of Securities of any series (the “deposited Securities”), are blocked in an account held with the issuer of that certificate or blocked to the order of the issuer of that certificate, or, (ii) with respect to Definitive Registered Securities of any series, that a Holder Certificate in respect of a specified amount of Securities of such series (also “deposited Securities”) has been deposited with the issuer of that certificate together with the Registered Definitive Certificate(s) in respect thereof and an order to the Registrar not to register any transfer of such deposited Securities, and (b) such deposited Securities will not be released until the “Release Time”, being the earlier of:

 

  (a) closing of the Meeting; and

 

  (b) the surrender, not less than 48 hours before the time fixed for the Meeting (or, if the Meeting has been adjourned, the time fixed for its resumption), of such certificate to the issuer thereof;

24 hours” means a period of 24 hours including all or part of a Business Day upon in both the places where the relevant Meeting is to be held and in each of the places where each Paying Agent has its offices under Section 2.04 of the Indenture (disregarding for this purpose the day upon which such Meeting is to be held) and such period shall be extended by one period or, to the extent necessary, more periods of 24 hours until there is included as aforesaid all or part of a day upon which banks are open for business as aforesaid; and

48 hours” means two consecutive periods of 24 hours.

 

2 Issue of Voting Certificates and Forms of Proxy

A Holder may obtain a Voting Certificate from the Principal Paying Agent (or from the NBB or any Participant or Indirect Participant of the X/N System with their consent):

 

  (a)

with respect to a Global Security of any series, upon presentation of a Holder Certificate by requesting the issuer of the Voting Certificate, not earlier than six nor later than three Business Days before the date of the relevant Meeting, to block the relevant account held with the issuer of that certificate or block the deposited Securities of such series in an account

 

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with the X/N System or a Participant or Indirect Participant therein to the order of the issuer of the Voting Certificate or show that such deposited Securities have been so blocked until the Release Time; or

 

  (b) with respect to Definitive Registered Securities of any series, upon presentation, not earlier than six nor later than three Business Days before the date of the relevant Meeting, of a Holder Certificate together with the Registered Definitive Certificate(s) with respect to such Definitive Registered Securities and a written order to the Registrar and Transfer Agent not to register any transfer of such deposited Securities until the Release Time.

A Holder may obtain a Form of Proxy, which must comply with applicable law, from the Principal Paying Agent or the Issuer (or from the NBB or any Participant or Indirect Participant of the X/N System with their consent), and may deliver to the Principal Paying Agent a duly executed Form or Proxy accompanied with a corresponding Voting Certificate.

 

3 References to Deposit/Release of Securities

When the Securities of any series are represented by one or more Global Securities within a clearing system, references to the deposit, or release, of Securities shall be construed in accordance with the usual practices (including blocking the relevant account) of such clearing system.

 

4 Convening of Meeting

The Issuer may convene a Meeting at any time, and the Issuer shall be obliged to do so upon the request in writing of Holders of the Securities of each series affected by the resolution(s) to be approved at such Meeting holding not less than 20% of the aggregate principal amount of the outstanding Securities of such series for the purpose of approving a supplemental indenture to amend or modify the terms of the Securities of such series or the Indenture.

 

5 Notice

Convening notices for any Meeting shall be published twice, with an interval of at least 12 days and the second time at least 12 days prior to the Meeting, in the Moniteur Belge/Belgisch Staatsblad, in a Belgian newspaper with national circulation (expected to be L’Echo and/or De Tijd).

The Issuer shall also provide notice to Holders through Euroclear and Clearstream in accordance with the procedures thereof.

At least 24 days prior to the Meeting, a registered letter shall be mailed to any Holders of Definitive Registered Securities. Where all Securities of any series are Definitive Registered Securities, a convening notice by registered letter will suffice.

 

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The notice will specify the date, time and place of the Meeting. A copy of the notice shall be given to the Trustee. The Notice shall set out the full text of any resolutions to be proposed and shall state the method and timing with respect to obtaining Voting Certificates or appointing Proxies.

 

6 Meeting

Subject to applicable law, an individual (who may, but need not, be a Holder) nominated in writing by the Issuer may take the chair at any Meeting but, if no such nomination is made or if the individual nominated is not present, in person, within 15 minutes after the time fixed for the Meeting, those present, in person or by proxy, shall elect one of themselves to take the chair failing which, the Issuer may appoint a Chairman. The Chairman of an adjourned Meeting need not be the same person as was the Chairman of the original Meeting.

 

7 Quorum

The quorum at any Meeting shall be one or more Voters representing or holding at least 50% in aggregate principal amount of the outstanding Securities of any series, the Holders of which have been convened to such Meeting; provided, however, that there shall be no quorum requirement at any adjourned Meeting resulting from the adjournment of a prior Meeting for want of quorum.

 

8 Adjournment for Want of Quorum

If within 15 minutes after the time fixed for any Meeting a quorum is not present, in person or by proxy, then such Meeting shall be adjourned for such period (which shall be not less than 19 days and not more than 42 days) and to such place as the Meeting determines; provided, however, that:

 

  (a) the Meeting shall be dissolved if the Meeting so decides; and

 

  (b) no Meeting may be adjourned more than once for want of a quorum.

 

9 Adjourned Meeting/Postponed Meeting/Suspension

The Chairman may, with the consent of (and shall if directed by) any Meeting, adjourn such Meeting from time to time and from place to place, but no business shall be transacted at any adjourned Meeting except business which might lawfully have been transacted at the Meeting from which the adjournment took place.

Subject to applicable law, the Issuer may also suspend the Meeting until the next Business Day, or postpone it by not more than three weeks.

 

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10 Notice Following Adjournment

Section 5 above shall apply to any Meeting which is to be resumed after adjournment for want of a quorum.

Subject to applicable law, it shall not be necessary to give notice of the resumption of a Meeting which has been suspended or postponed.

 

11 Participation

The following may attend and speak at a Meeting:

 

  (a) Voters;

 

  (b) the directors and auditors of the Issuer;

 

  (c) representatives of the Issuer and the Trustee;

 

  (d) the financial advisers and solicitation or similar agents of the Issuer;

 

  (e) the legal counsel to the Issuer and the Trustee; and

 

  (f) any other person approved by the Meeting.

 

12 Votes

Every Holder shall have one vote in respect of each $1,000 in aggregate face amount of the outstanding Securities of any series represented or held by him.

Unless the terms of any Form of Proxy state otherwise, a Voter shall not be obliged to exercise all the votes to which he is entitled or to cast all the votes which he exercises in the same way.

 

13 Validity Of Votes By Proxies

Subject to applicable law, for purposes of this Indenture and the Securities of any series, any vote by a Proxy in accordance with a Form of Proxy shall be valid even if such Form of Proxy or any instruction pursuant to which it was given has been amended or revoked, unless the Trustee or the Issuer has been notified in writing of such amendment or revocation by the time which is 48 hours before the time fixed for the relevant Meeting. Unless revoked, any appointment of a Proxy under a Form of Proxy in relation to a Meeting shall remain in force in relation to any resumption of such Meeting following an adjournment.

 

14 Powers

A Meeting shall have power to pass a Required Resolution in accordance with the terms of the Indenture and applicable law.

 

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A Meeting shall also have power:

 

  (a) to appoint any persons as a committee to represent the interests of the Holders and to confer upon such committee powers to implement any decisions validly made by a Meeting; and

 

  (b) to decide on protective measures to be taken in the common interest of the Holders convened at such Meeting.

For the avoidance of doubt, nothing in this Section 14 shall be construed to prevent (a) the Trustee acting without the consent of any Holder in relation to any matter within the scope of this Section 14 to the extent provided for in Section 9.01 of the Indenture or (b) Holders or the Trustee taking any action or giving any notice in accordance with Article 6 of the Indenture.

 

15 Resolution Binds All Holders

Notice of the result of every vote on a Required Resolution shall be given to the Holders and each Paying Agent (with a copy to the Issuer) in accordance with Section 10.02 of the Indenture within 14 days from the conclusion of the Meeting.

 

16 Minutes

Minutes shall be made of all resolutions and proceedings at each Meeting. The Chairman, and any other person present at the Meeting who so wishes, shall sign the minutes, which shall be prima facie evidence of the proceedings recorded therein. Unless and until the contrary is proved, every such Meeting in respect of the proceedings of which minutes have been signed shall be deemed to have been duly convened and held and all resolutions passed or proceedings transacted at it to have been duly passed and transacted.

 

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EXHIBIT A

FORM OF FACE OF GLOBAL SECURITY

ISIN:                     

Common Code:            

No.:                    

DELHAIZE GROUP SA/NV

[]% SENIOR NOTE DUE 20[]

DELHAIZE GROUP SA/NV, a company organized under the laws of the Kingdom of Belgium (the “Issuer,” which term includes any successor entity), for value received promises to pay to the bearer upon presentation and surrender of this Global Security, the principal sum of [AMOUNT] U.S. Dollars ($[]), on [].

Interest Payment Dates: [] and [] in each year

Record Dates: [] and []

Reference is made to the further provisions of this Global Security contained herein, which shall for all purposes have the same effect as if set forth at this place.

Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof (or an authentication agent) by manual signature, this Security shall not be entitled to any benefits under the Indenture referred to on the reverse hereof or be valid or obligatory for any purpose.

IN WITNESS WHEREOF, the Issuer has caused this Global Security to be signed manually or by facsimile on its behalf.

DELHAIZE GROUP SA/NV

 

By:  

 

    By:  

 

Name:       Name:  
Title:   Director     Title:  

Director

Dated:                     

CERTIFICATE OF AUTHENTICATION

This is one of the Securities issued and to be issued in one or more series under the Indenture referred to below.

 

THE BANK OF NEW YORK MELLON,
as Trustee
By:  

 

Authorized Signatory

 


[REVERSE OF SECURITY]

[]% Senior Security due 20[]

THIS GLOBAL NOTE IS ACCEPTED FOR CLEARANCE THROUGH THE X/N SYSTEM OPERATED BY THE NBB (AS DEFINED IN THE INDENTURE GOVERNING THIS SECURITY) AND IS HELD BY THE NBB FOR THE ACCOUNT OF THE PARTICIPANTS OF THE X/N SYSTEM, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (1) THE PRINCIPAL PAYING AGENT MAY AMEND THE “SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE” AS MAY BE REQUIRED PURSUANT TO SUCH INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED, IN WHOLE OR IN PART, PURSUANT TO SUCH INDENTURE, (3) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF SUCH INDENTURE AND (4) THE NBB MAY ENTRUST THIS GLOBAL NOTE TO A SUBDEPOSITARY THAT WILL ACT AS AGENT AND FOR THE ACCOUNT OF THE NBB. THE AGREEMENT BETWEEN THE NBB AND THE SUBDEPOSITARY MAY NOT DEVIATE FROM THE PROVISIONS OF THE CLEARING AGREEMENT (AS DEFINED IN THE INDENTURE GOVERNING THIS GLOBAL NOTE) IN RESPECT OF THIS GLOBAL NOTE.

ANY UNITED STATES PERSON WHO HOLDS THIS SECURITY WILL BE SUBJECT TO LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS INCLUDING THE LIMITATIONS PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE UNITED STATES INTERNAL REVENUE CODE.

This Global Security represents $[] in aggregate principal amount of notes (the Securities), in minimum denominations of $2,000 principal amount and any integral multiple of $1,000 in excess of $2,000 issued by Delhaize Group SA/NV (the Issuer). The Securities are subject to the provisions of an indenture agreement (the Indenture) dated [], 2009 between the Issuer and The Bank of New York Mellon (as Trustee).

This Global Security bears interest at the rate of []% per annum on such principal sum payable in arrear on [] and [] in each year beginning [] 2009 at the office of ING Belgium SA/NV as Principal Paying Agent (the Principal Paying Agent) in accordance with the provisions of the Indenture.

The Securities will be redeemed at their principal amount on [], unless redeemed prior to that date in accordance with the provisions of the Indenture, all as more particularly described in the Indenture.

The Issuer was incorporated in 1867 and transformed into a public limited liability company (société anonyme/naamloze vennootschap) by a notarial deed received on 22 February 1962 published in the Annexes to the Belgian Official Gazette (Moniteur belge/Belgisch Staatsblad) of 3 March 1962. The Issuer has an unlimited term.

***

Cette Obligation Collective représente des obligations d’un montant global de $[] (les Obligations), chacune d’une dénomination minimale de $2.000 et d’un multiple de $1.000 pour ce qui excède $2.000, émises par Delhaize Group SA/NV (l’Emetteur). Les Obligations sont soumises aux conditions exposées dans un « indenture agreement » (l’Indenture) conclu en date du [] 2009 entre l’Emetteur et The Bank of New York Mellon (le Trustee).

 

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Cette Obligation Collective porte intérêt au taux de []% par an sur le montant principal payable semi-annuellement à échéance chaque [] et [], et pour la première fois à compter du [] 2009, au bureau de ING Belgium SA/NV en sa qualité de Principal Paying Agent, conformément aux dispositions de l’Indenture.

Le montant en capital des Obligations sera remboursé le [], ou à une date antérieure à laquelle le montant principal mentionné ci-dessous peut être remboursé conformément aux dispositions de l’Indenture.

L’Emetteur a été constitué en 1867 et converti en société anonyme soumise au droit belge par acte notarié du 22 février 1962, publié aux annexes du Moniteur Belge du 3 mars 1962. L’Emetteur a été constitué pour une durée illimitée.

***

Dit Totaalcertificaat vertegenwoordigt door een totale hoofdsom van $[] in obligaties (de Obligaties), in minimum coupures van $2.000 en integrale veelvouden van $1.000 voor het overschot uitgegeven door Delhaize Group SA/NV (de Uitgever). De Obligaties zijn ondergeschikt aan de voorwaarden van een “indenture agreement” (de Indenture) van [] 2009 tussen de Uitgever en The Bank of New York Mellon (als Trustee).

Dit Totaalcertificaat heeft een rentevoet van []% per jaar op de hoofdsom betaalbaar op [] en [] van elk jaar beginnende op [] 2009 in de kantoren van ING Belgium SA/NV als Principal Paying Agent (de Principal Paying Agent) volgens de voorwaarden van de Indenture.

De Obligaties zullen teruggekocht worden voor hun hoofdsom op [], tenzij ze teruggekocht zijn vóór deze datum volgens de voorwaarden van de Indenture, zoals verder gedetailleerd in de Indenture.

De Uitgever werd opgericht in 1867 en omgezet in een naamloze vennootschap door een notariële akte van 22 februari 1962 gepubliceerd in de Bijlagen van het Belgisch Staatsblad van 3 maart 1962. De Uitgever is opgericht voor een onbepaalde duur.

 

1 Interest

DELHAIZE GROUP SA/NV, a company organized under the laws of the Kingdom of Belgium (the “Issuer”), promises to pay interest on the principal amount of this Security at the rate per annum shown above. Interest on this Security will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from [], 2009. The Issuer will pay interest semi-annually in arrears on each Interest Payment Date, commencing [], 2009. Interest will be computed on the basis of a 360-day year of twelve 30-day months.

The Issuer shall pay interest on overdue principal and on overdue installments of interest from time to time on demand at the rate borne by the Securities (without regard to any applicable grace periods) to the extent lawful.

 

2 Method of Payment

The Issuer shall pay interest on Securities (except defaulted interest) to the Persons who are Holders at the close of business on the [] or [] immediately preceding the Interest Payment Date even if Securities are canceled after the record date and on or before the Interest Payment Date. The Issuer shall pay principal, premium, if any, and interest in U.S. dollars. Payments in respect of the

 

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Securities represented by a Global Security (including principal, premium, if any, and interest) shall be made by wire transfer of immediately available funds to the accounts specified by the NBB or any successor operator of the X/N System. The Issuer will make all payments in respect of a Global Security deposited with the X/N System (including principal, premium, if any, and interest), through the Principal Paying Agent in accordance with the terms of the Clearing Agreement. If an Interest Payment Date is a date other than a Business Day at a place of payment, payment shall be at that place on the next succeeding day that is a Business Day (with any interest or other payment in respect of such delay).

 

3 Paying Agent

Initially, ING Belgium SA/NV will act as Principal Paying Agent. The Issuer may appoint and change any paying agent without notice. Agents may only be removed in accordance with the Agency Agreement, dated as of [], among the Issuer and the Trustee.

 

4 Indenture

The Issuer issued the Securities under an Indenture, dated as of [], 2009 (the “Indenture”), between the Issuer and the Trustee. Capitalized terms herein are used as defined in the Indenture unless otherwise defined herein. This Security is one of a duly authorized issue of a series of Securities of the Issuer designated as its []% Senior Securities due [] (the “Securities”). The terms of the Securities include those terms and provisions stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939 (the “TIA”), as in effect on the date of the Indenture. Notwithstanding anything to the contrary herein, the Securities are subject to all such terms, and Holders of Securities are referred to the Indenture and the TIA for a statement of such terms. To the extent any provision of the Securities conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling. Each Holder, by accepting a Security, agrees to be bound by all of the terms and provisions of the Indenture, as the same may be amended from time to time.

 

5 [Optional Redemption]

[Insert any applicable provisions for this series of Securities]

 

6 Redemption for Taxation Reasons

The Issuer may, at its option, redeem the Securities in whole but not in part, at any time, upon giving not less than 30 nor more than 60 days’ notice to the Holders of the Securities (which notice shall be irrevocable), at a redemption price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon, if any, to the redemption date (a “Tax Redemption Date”) and all Additional Amounts, if any, that will become due on the Tax Redemption Date as a result of such redemption or otherwise (subject to the right of Holders of the Securities of record on the relevant record date to receive interest due on the relevant interest payment date), if the Issuer determines that (1) on the occasion of the next payment due in respect of the Securities, it would be required to pay Additional Amounts and (2) the payment obligation cannot be avoided by the Issuer taking reasonable measures available to it (including making payment through a paying agent located in another jurisdiction), as a result of:

 

  (i) any change in, or amendment to, the laws or treaties (or any regulations, protocols or rulings promulgated thereunder) of Belgium or any other Relevant Taxing Jurisdiction affecting taxation, which change or amendment becomes effective on or after the Issue Date,

 

A-IV


  (ii) any change in position regarding the application, administration or interpretation of such laws, treaties, regulations or rulings (including a holding, judgment or order by a court of competent jurisdiction), which change, amendment, application or interpretation becomes effective on or after the Issue Date, or

 

  (iii) the issuance of Definitive Registered Securities due to:

 

  (a) the NBB ceasing to operate the X/N System and a successor is not able to be appointed by the Issuer within 15 days of the notification,

 

  (b) the notification by each of Euroclear and Clearstream that it is unwilling or unable to continue to act as, or ceases to be, a clearing agency in respect of the Securities and a successor is not able to be appointed by the Issuer within 15 days of such notification,

 

  (c) DTC notifies the Issuer that it is unwilling or unable to continue to act as depositary or ceases to be a clearing agency registered under the Exchange Act and, in either case, a successor depositary is not appointed by the book-entry depositary at the Issuer’s request within 15 days of such notification, or

 

  (d) if the book-entry depositary is at any time unwilling or unable to continue as book-entry depositary and a successor book-entry depositary is not appointed by the Issuer within 120 days of such notification.

The notice of redemption may not be given earlier than 120 days prior to the earliest date on which the Issuer would be obligated to make a payment or withholding if a payment in respect of the Securities were then due. Prior to the publication or, where relevant, mailing of any notice of redemption of the Securities pursuant to the foregoing, the Issuer will deliver to the Trustee an Officers’ Certificate and an opinion of an independent legal counsel of internationally recognized standing to the effect that the circumstances referred to above exist. The Trustee shall accept, and shall be entitled to rely upon, the Officers’ Certificate and opinion as sufficient evidence of the satisfaction of the conditions precedent described above, in which event it shall be conclusive and binding on the Holders of the Securities.

 

7 Additional Amounts

All payments made under or with respect to the Securities shall be made free and clear of, and without withholding or deduction for or on account of, any present or future tax, duty, levy, impost, assessment or other governmental charge (including related penalties, interest and other liabilities) (“Taxes”) imposed or levied by or on behalf of the government of the Kingdom of Belgium or any political subdivision or any authority or agency therein or thereof having power to tax, or any other jurisdiction in which the Issuer is organized or is otherwise resident for tax purposes, or any

 

A-V


jurisdiction from or through which payment is made (each, a “Relevant Taxing Jurisdiction”), unless the Issuer is required to withhold or deduct Taxes by law or by the interpretation or administration thereof.

If the Issuer is so required to withhold or deduct any amount for or on account of Taxes imposed by a Relevant Taxing Jurisdiction from any payment made under or with respect to the Securities, the Issuer shall pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by the Holders and beneficial owners of the Securities (including Additional Amounts) after such withholding or deduction will not be less than the amount the Holders and beneficial owners of the Securities would have received if such Taxes had not been withheld or deducted; provided, however, that the foregoing obligation to pay Additional Amounts does not apply to:

(1) any Taxes which would not have been imposed but for (a) the existence of any present or former connection between such Holder (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of a power over, such Holder, if such Holder is an estate, trust, partnership, limited liability company or corporation) and the Relevant Taxing Jurisdiction including, without limitation, such Holder (or such fiduciary, settlor, beneficiary, member, shareholder or possessor) being or having been a citizen or resident thereof or being or having been present or engaged in trade or business therein or having or having had a permanent establishment therein or (b) the presentation of a note (where presentation is required) for payment on a date more than 30 days after (x) the date on which such payment became due and payable or (y) the date on which payment thereof is duly provided for, whichever occurs later;

(2) any estate, inheritance, gift, sales, excise, transfer, personal property tax or similar tax, assessment or other governmental charge;

(3) any Taxes which are payable otherwise than by withholding from payments of (or in respect of) principal of, or any interest on, the Securities;

(4) any Taxes that are imposed or withheld by reason of the failure to comply by the Holder or the beneficial owner of a Security with a request by the Issuer addressed to the Holder or such beneficial owner (A) to provide information concerning the nationality, residence or identity of the Holder or such beneficial owner or (B) to make any declaration or other similar claim or satisfy any information or reporting requirement, which, in the case of (A) or (B), is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such Tax;

(5) any Taxes that are required to be withheld or deducted on a payment to an individual pursuant to European Union Council Directive 2003/48/EC regarding the taxation of savings income or any law implementing or complying with, or introduced in order to conform to, such Directive;

(6) any Taxes that are required to be withheld or deducted on a payment to or on behalf of a Holder, who, at the time of such payment or withholding, was not an Eligible Investor for reasons within such Holder’s control. An Eligible Investor for the purposes of this section means any investor which is referred to in Article 4 of the Royal Decree of May 26, 1994 on the deduction of withholding tax and which holds the Securities in an exempt securities account in the X/N System; or

 

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(7) any combination of items (1), (2), (3), (4), (5) and (6) above.

The Issuer also will not be required to pay Additional Amounts:

(a) if the payment could have been made without deduction or withholding if the beneficiary of the payment had presented the Security for payment within 30 days after the date on which such payment or such Security became due and payable or the date on which payment thereof is duly provided for, whichever is later (except to the extent that the Holders or beneficial owners of the Securities would have been entitled to Additional Amounts had such Security been presented on the last day of the 30-day period);

(b) with respect to any payment of principal of (or premium, if any, on) or interest on such Security to any Holder who is a fiduciary or partnership or any Person other than the sole beneficial owner of such payment, to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such a partnership or the beneficial owner of such payment would not have been entitled to the Additional Amounts had such beneficiary, settlor, member or beneficial owner been the actual Holder of such Security; or

(c) if such Security is presented for payments by or on behalf of a Holder or beneficial owner who would be able to avoid a withholding or deduction by presenting the relevant Security to another paying agent in a Member State.

If the Issuer will be obligated to pay Additional Amounts with respect to any payment under or with respect to the Securities, the Issuer will deliver to the Trustee at least 30 days prior to the date of that payment (unless the obligation to pay Additional Amounts arises after the 30th day prior to that payment date, in which case the Issuer shall notify the Trustee promptly thereafter) an Officers’ Certificate stating the fact that Additional Amounts will be payable and the amount so payable. The Officers’ Certificate must also set forth any other information necessary to enable the paying agent to pay Additional Amounts to Holders of the Securities on the relevant payment date.

Upon request, the Issuer will provide the Trustee with official receipts or other documentation satisfactory to the Trustee evidencing the payment of the Taxes with respect to which Additional Amounts are paid.

Whenever in this Global Security there is mentioned, in any context, the payment of principal; purchase prices in connection with a purchase of Securities; interest; or any other amount payable on or with respect to any of the Securities, that reference shall be deemed to include payment of Additional Amounts provided for in this section to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.

The Issuer will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in any jurisdiction from the execution, delivery, enforcement or registration of the Securities, the Indenture or any other related document or instrument, or the receipt of any payments with respect to the Securities, excluding taxes, charges or similar levies imposed by any jurisdiction outside of Belgium, the jurisdiction of incorporation of any successor of the Issuer or any jurisdiction in which a paying agent is located, and the Issuer will agree to indemnify the Holders or the Trustee for any such taxes paid by the Holders or the Trustee.

 

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The preceding provisions shall apply mutatis mutandis to any jurisdiction in which any successor to the Issuer is organized or any political subdivision or taxing authority or agency thereof or therein.

 

8 Notice of Redemption

Notice of redemption will be made in accordance with the Indenture. If money sufficient to pay the redemption price of and accrued and unpaid interest on all Securities (or portions thereof) to be redeemed on the redemption date is deposited with the Principal Paying Agent on or before the redemption date, on and after such date interest ceases to accrue on such Securities (or portions thereof) called for redemption.

 

9 [Change of Control]

[Insert any applicable provisions for this series of Securities]

 

10 Denominations: Transfer; Exchange

This Global Security is in bearer form, without coupons, in minimum denominations of U.S.$2,000 and integral multiples of U.S.$1,000 in excess of U.S.$2,000 with the minimum transferable principal amount being U.S.$2,000.

 

11 Persons Deemed Owners

The Person deemed to be the owner of this Global Security shall be determined in accordance with the Indenture.

 

12 Unclaimed Money

If money for the payment of principal or interest remains unclaimed for two years, the Trustee and the Paying Agent will pay the money back to the Issuer at its written request unless an abandoned property law designates another person. After any such payment, Holders entitled to the money must look to the Issuer for payment as general creditors, and all liability of the Trustee and such Paying Agent with respect to such money shall cease.

 

13 [Legal Defeasance and Covenant Defeasance]

[The Issuer may be discharged from its obligations under the Indenture and the Securities except for certain provisions thereof (“Legal Defeasance”) and may be discharged from its obligations to comply with certain covenants contained in the Indenture (“Covenant Defeasance”), in each case upon satisfaction of certain conditions specified in the Indenture.][To be deleted if not applicable]

 

14 Amendment: Supplement: Waiver

Subject to certain exceptions, the Indenture or the Securities may be amended, supplemented or otherwise modified, and any past default or compliance with certain provisions of the Indentures or

 

A-VIII


the Securities may be waived, in each case with the affirmative vote of a majority in aggregate principal amount of the Securities then outstanding voting (either in person or by proxy) at a duly convened meeting of the Holders.

Without the consent of any Holder, the Issuer and the Trustee acting jointly may execute a supplemental indenture to take any of the following actions:

 

  (i) establish the form and terms of any series of Securities;

 

  (ii) cure any ambiguity, omission, defect or inconsistency; provided that such amendment does not, in the opinion of the Trustee, adversely affect the rights of any Holder in any material respect;

 

  (iii) provide for the assumption by a successor corporation of the obligations of the Issuer under either Indenture;

 

  (iv) provide for uncertificated Securities in addition to or in place of certificated Securities (provided, however, that the uncertificated Securities are issued in registered form for purposes of Section 163(f) of the Code, or in a manner such that the uncertificated Securities are described in Section 163(f)(2)(B) of the Code);

 

  (v) add to the covenants of the Issuer for the benefit of the Holders of the Securities or to surrender any right or power conferred upon the Issuer or any of its subsidiaries;

 

  (vi) make any change that does not in the opinion of the Trustee adversely affect the rights of any Holder, subject to the provisions of the Indentures;

 

  (vii) provide for the issuance of the Exchange Securities or Additional Securities; or

 

  (viii) comply with any requirement of the SEC in connection with the qualification of the Indenture under the TIA.

 

15 Successors

When a successor assumes, in accordance with the Indenture, all the obligations of its predecessor under the Securities and the Indenture, the predecessor will be released from those obligations.

 

16 Defaults and Remedies

If an Event of Default occurs (other than as a result of the bankruptcy provisions or the winding up provisions) and is continuing, the Trustee or the Holders of at least 25 % in aggregate principal amount of Securities then outstanding by notice to the Issuer may declare principal or and accrued but unpaid interest on all the Securities to be due and payable in the manner, at the time and with the effect provided in the Indenture. If an Event of Default relating to certain events of the bankruptcy provisions or the winding up provisions, the unpaid principal of and interest on all the Securities shall become immediately due and payable without any declaration or other act on the part of the Trustee or any Holders. Under certain circumstances, the Holders of a majority in principal amount of the Securities then outstanding may rescind any such acceleration with respect to the Securities and its consequences.

 

A-IX


Subject to the provisions of each Indenture relating to the duties of the Trustee, in case an Event of Default occurs and is continuing, the Trustee shall be under no obligation to exercise any of the rights or powers under such Indenture at the request or direction of any of the Holders of the Securities unless the Trustee has been offered an indemnity or security satisfactory to the Trustee against any loss, liability or expense. Except to enforce the right to receive payment of principal, premium (if any) or interest when due, no Holder may pursue any remedy with respect to the Securities or the Indenture unless:

 

  (i) such Holder has previously given the Trustee notice that an Event of Default is continuing,

 

  (ii) Holders of at least 25% in aggregate principal amount of the then outstanding Securities have requested the Trustee in writing to pursue the remedy,

 

  (iii) the Trustee has been offered security or indemnity satisfactory to the Trustee against any loss, liability or expense,

 

  (iv) the Trustee has not complied with such request within 60 days after the receipt of the request and the offer of security or indemnity satisfactory to the Trustee, and

 

  (v) the Holders of a majority in aggregate principal amount of the then outstanding Securities have not given the Trustee a direction inconsistent with such request within such 60-day period.

Subject to certain restrictions, the Holders of a majority in aggregate principal amount of the then outstanding Securities shall be given the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or of exercising any trust or power conferred on the Trustee. The Trustee, however, may refuse to follow any direction that the Trustee determines (after consultation with counsel) conflicts with law or the relevant Indenture or that the Trustee determines is unduly prejudicial to the rights of any other Holder or that may involve the Trustee in personal liability. Prior to taking any action under the relevant Indenture, the Trustee shall be entitled to indemnification satisfactory to it in its sole discretion against all losses and expenses caused by taking or not taking such action.

 

17 Trustee Dealings with Issuer

Subject to certain limitations imposed by the TIA, the Trustee under the Indenture, in its individual or any other capacity, may become the owner or pledgee of Securities and may otherwise deal with the Issuer, its Subsidiaries or their respective Affiliates as if it were not the Trustee.

 

18 No Recourse Against Others

A director, officer, employee or shareholder, as such, of the Issuer shall not have any liability for any obligations of the Issuer under the Securities or the Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. By accepting a Security, each Holder waives and releases all such liability. The waiver and release are part of the consideration for the issue of the Securities.

 

A-X


19 Authentication

This Security shall not be valid until the Trustee (or an authentication agent) manually signs the certificate of authentication on this Security.

 

20 Governing Law

THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.

 

21 Abbreviations and Defined Terms

Customary abbreviations may be used in the name of a Holder of a Security or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).

 

22 Common Codes and ISIN Numbers

The Issuer has caused common codes and ISIN numbers to be printed on the Securities and has directed the Trustee to use common codes and ISIN numbers in notices of redemption as a convenience to the Holders of the Securities. No representation is made as to the accuracy of such numbers as printed on the Securities or as contained in any notice of redemption and reliance may be placed only on the other identification numbers printed hereon.

 

23 Indenture

Each Holder, by accepting a Security, agrees to be bound by all of the terms and provisions of the Indenture, as the same may be amended or supplemented from time to time.

The Issuer will furnish to any Holder of a Security upon written request and without charge a copy of the Indenture, which has the text of this Security in larger type. Requests may be made to: Delhaize Group Investor Relations Department, Square Marie Curie 40 at B-1070 Brussels, Belgium (+32 2 412 21 51, investor@delhaizegroup.com) or Delhaize Group U.S. Investor Relations Department P.O. Box 1330, 2110 Executive Drive Salisbury NC 28145-1330, United States (+1 704 633 82 50 (ext. 2529), investor@delhaizegroup.com).

 

A-XI


[OPTION OF HOLDER TO ELECT PURCHASE]

If you want to elect to have this Security purchased by the Issuer pursuant to Section 1.1[(m)] of the [First] Supplemental Indenture to the Indenture, check the box:

¨ If you want to elect to have only part of this Security purchased by the Issuer pursuant to Section 1.1[(m)] of the [First] Supplemental Indenture to the Indenture, state the amount you elect to have purchased:

U.S.$

Dated:                     

NOTICE: The signature on this option must correspond with the name as it appears upon the face of this Security in every particular without alteration or enlargement or any change whatsoever and be guaranteed by the endorser’s bank or broker.

Signature Guarantee:

 

A-XII


[To be attached to Global Securities only.]

SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE

The following increases or decreases in this Global Security have been made:

 

Date of exchange

   Amount of
decrease in
Principal Amount
of this Global
Security
   Amount of
increase in
Principal Amount
of this Global
Security
   Principal Amount
of this Global
Security following
such decrease or
increase
   Signature of
authorized
signatory of
Trustee or note
custodian
           

 

A-XIII


EXHIBIT B

FORM OF FACE OF DEFINITIVE REGISTERED CERTIFICATE

No.:            

DELHAIZE GROUP SA/NV

[]% SENIOR NOTES DUE 20[]

DELHAIZE GROUP SA/NV, a company organized under the laws of the Kingdom of Belgium (the “Issuer,” which term includes any successor entity), for value received promises to pay to the registered holder of the Definitive Registered Notes evidenced by this Definitive Registered Certificate, the principal sum of [AMOUNT] U.S. Dollars ($[]), on [].

Interest Payment Dates: [] and [] in each year

Record Dates: [] and []

Reference is made to the further provisions of the Definitive Registered Notes contained herein, which shall for all purposes have the same effect as if set forth at this place.

This is to certify that:

 

                                                                                  
      of                                                                        
                                                                                  
                                                                                  

is the person registered in the register maintained by the Registrar in relation to the Securities (the “Register”) as the duly registered holder of the Securities evidenced by this Registered Definitive Certificate or, if more than one person is so registered, the first-named of such persons.

This Definitive Registered Certificate shall be valid only if the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof (or an authentication agent) by manual signature.

This Definitive Registered Certificate is evidence of entitlement only. Title to the Securities passes only on due registration in the Register and only the Holder is entitle to payment in respect of the Definitive Registered Notes.

IN WITNESS WHEREOF, the Issuer has caused this Definitive Registered Certificate to be signed manually or by facsimile on its behalf.

DELHAIZE GROUP SA/NV

 

       

By:

 

 

    By:  

 

Name:

      Name:  

Title:

      Title:  

Dated:             


CERTIFICATE OF AUTHENTICATION

This Definitive Registered Certificate is one of the Definitive Registered Certificate issued and to be issued under the Indenture referred to below.

 

THE BANK OF NEW YORK MELLON,
as Trustee
By:  

 

Authorized Signatory

 

B-II


[REVERSE OF SECURITY]

[]% Senior Securities due 20[]

IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.

The Definitive Registered Notes evidenced by this Definitive Registered Certificate represent $[] in aggregate principal amount, in denominations of $2,000 principal amount and any integral multiple of $1,000 in excess thereof and is one of $[] in aggregate principal amount of []% Senior Securities due 20[] (the Securities) issued by Delhaize Group SA/NV (the Issuer). The Securities are subject to the provisions of an indenture agreement (the Indenture) dated [], 2009 between the Issuer and The Bank of New York Mellon (as Trustee).

The Definitive Registered Notes evidenced by this Definitive Registered Certificate bear interest at the rate of []% per annum on such principal sum payable in arrear on [] and [] in each year beginning [] 2009 in accordance with the provisions of the Indenture.

The Securities will be redeemed at their principal amount on [], unless redeemed prior to that date in accordance with the provisions of the Indenture, all as more particularly described in the Indenture.

The Issuer was incorporated in 1867 and transformed into a public limited liability company (société anonyme/naamloze vennootschap) by a notarial deed received on 22 February 1962 published in the Annexes to the Belgian Official Gazette (Moniteur belge/Belgisch Staatsblad) of 3 March 1962. The Issuer has an unlimited term.

 

B-III


 

1 Interest

DELHAIZE GROUP SA/NV, a company organized under the laws of the Kingdom of Belgium (the “Issuer”), promises to pay interest on the principal amount of the Securities at the rate per annum shown above. Interest on the Securities will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from [], 2009. The Issuer will pay interest semi-annually in arrear on each Interest Payment Date, commencing [], 2009. Interest will be computed on the basis of a 360-day year of twelve 30-day months.

The Issuer shall pay interest on overdue principal and on overdue installments of interest from time to time on demand at the rate borne by the Securities (without regard to any applicable grace periods) to the extent lawful.

 

2 Method of Payment

The Issuer shall pay interest on Securities (except defaulted interest) to the Persons who are Holders at the close of business on the [] or [] immediately preceding the Interest Payment Date even if Securities are canceled after the record date and on or before the Interest Payment Date. The Issuer shall pay principal, premium, if any, and interest in U.S. dollars. If an Interest Payment Date is a date other than a Business Day at a place of payment, payment shall be at that place on the next succeeding day that is a Business Day (with any interest or other payment in respect of such delay).

 

3 Paying Agent and Registrar

Initially, ING Belgium SA/NV will act as Principal Paying Agent. Initially, The Bank of New York Mellon, a New York banking corporation (the “Trustee”), will act as New York Paying Agent, and The Bank of New York Mellon, London Branch will act as Euro Paying Agent. The Issuer will act as Registrar. The Issuer may appoint and change any paying agent without notice. Agents may only be removed in accordance with the Agency Agreement, dated as of [], among the Issuer and []. [To be revised according to Agency Agreement]

 

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4 Indenture

The Issuer issued the Securities under an Indenture, dated as of [], 2009 (the “Indenture”), between the Issuer and the Trustee. Capitalized terms herein are used as defined in the Indenture unless otherwise defined herein. This Security is one of a duly authorized issue of a series of Securities of the Issuer designated as its []% Senior Securities due [] (the “Securities”). The terms of the Securities include those terms and provisions stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939 (the “TIA”), as in effect on the date of the Indenture. Notwithstanding anything to the contrary herein, the Securities are subject to all such terms, and Holders of Securities are referred to the Indenture and the TIA for a statement of such terms. To the extent any provision of the Securities conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling. Each Holder, by accepting a Security, agrees to be bound by all of the terms and provisions of the Indenture, as the same may be amended from time to time.

 

5 [Optional Redemption]

[Insert any applicable provisions for this series of Securities]

 

6 Redemption for Taxation Reasons

The Issuer may, at its option, redeem the Securities in whole but not in part, at any time, upon giving not less than 30 nor more than 60 days’ notice to the Holders of the Securities (which notice shall be irrevocable), at a redemption price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon, if any, to the redemption date (a “Tax Redemption Date”) and all Additional Amounts, if any, that will become due on the Tax Redemption Date as a result of such redemption or otherwise (subject to the right of Holders of the Securities of record on the relevant record date to receive interest due on the relevant interest payment date), if the Issuer determines that (1) on the occasion of the next payment due in respect of the Securities, it would be required to pay Additional Amounts and (2) the payment obligation cannot be avoided by the Issuer taking reasonable measures available to it (including making payment through a paying agent located in another jurisdiction), as a result of:

 

  (i) any change in, or amendment to, the laws or treaties (or any regulations, protocols or rulings promulgated thereunder) of Belgium or any other Relevant Taxing Jurisdiction affecting taxation, which change or amendment becomes effective on or after the Issue Date,

 

  (ii) any change in position regarding the application, administration or interpretation of such laws, treaties, regulations or rulings (including a holding, judgment or order by a court of competent jurisdiction), which change, amendment, application or interpretation becomes effective on or after the Issue Date, or

 

  (iii) the issuance of Definitive Registered Securities due to:

 

  (a) the NBB ceasing to operate the X/N System and a successor is not able to be appointed by the Issuer within 15 days of the notification,

 

B-V


  (b) the notification by each of Euroclear and Clearstream that it is unwilling or unable to continue to act as, or ceases to be, a clearing agency in respect of the Securities and a successor is not able to be appointed by the Issuer within 15 days of such notification,

 

  (c) DTC notifies the Issuer that it is unwilling or unable to continue to act as depositary or ceases to be a clearing agency registered under the Exchange Act and, in either case, a successor depositary is not appointed by the book-entry depositary at the Issuer’s request within 15 days of such notification, or

 

  (d) if the book-entry depositary is at any time unwilling or unable to continue as book-entry depositary and a successor book-entry depositary is not appointed by the Issuer within 120 days of such notification.

The notice of redemption may not be given earlier than 120 days prior to the earliest date on which the Issuer would be obligated to make a payment or withholding if a payment in respect of the Securities were then due. Prior to the publication or, where relevant, mailing of any notice of redemption of the Securities pursuant to the foregoing, the Issuer will deliver to the Trustee an Officers’ Certificate and an opinion of an independent legal counsel of internationally recognized standing to the effect that the circumstances referred to above exist. The Trustee shall accept, and shall be entitled to rely upon, the Officers’ Certificate and opinion as sufficient evidence of the satisfaction of the conditions precedent described above, in which event it shall be conclusive and binding on the Holders of the Securities.

 

7 Additional Amounts

All payments made under or with respect to the Securities shall be made free and clear of, and without withholding or deduction for or on account of, any present or future tax, duty, levy, impost, assessment or other governmental charge (including related penalties, interest and other liabilities) (“Taxes”) imposed or levied by or on behalf of the government of the Kingdom of Belgium or any political subdivision or any authority or agency therein or thereof having power to tax, or any other jurisdiction in which the Issuer is organized or is otherwise resident for tax purposes, or any jurisdiction from or through which payment is made (each, a “Relevant Taxing Jurisdiction”), unless the Issuer is required to withhold or deduct Taxes by law or by the interpretation or administration thereof.

If the Issuer is so required to withhold or deduct any amount for or on account of Taxes imposed by a Relevant Taxing Jurisdiction from any payment made under or with respect to the Securities, the Issuer shall pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by the Holders and beneficial owners of the Securities (including Additional Amounts) after such withholding or deduction will not be less than the amount the Holders and beneficial owners of the Securities would have received if such Taxes had not been withheld or deducted; provided, however, that the foregoing obligation to pay Additional Amounts does not apply to:

(1) any Taxes which would not have been imposed but for (a) the existence of any present or former connection between such Holder (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of a power over, such Holder, if such Holder is an

 

B-VI


estate, trust, partnership, limited liability company or corporation) and the Relevant Taxing Jurisdiction including, without limitation, such Holder (or such fiduciary, settlor, beneficiary, member, shareholder or possessor) being or having been a citizen or resident thereof or being or having been present or engaged in trade or business therein or having or having had a permanent establishment therein or (b) the presentation of a note (where presentation is required) for payment on a date more than 30 days after (x) the date on which such payment became due and payable or (y) the date on which payment thereof is duly provided for, whichever occurs later;

(2) any estate, inheritance, gift, sales, excise, transfer, personal property tax or similar tax, assessment or other governmental charge;

(3) any Taxes which are payable otherwise than by withholding from payments of (or in respect of) principal of, or any interest on, the Securities;

(4) any Taxes that are imposed or withheld by reason of the failure to comply by the Holder or the beneficial owner of a Security with a request by the Issuer addressed to the Holder or such beneficial owner (A) to provide information concerning the nationality, residence or identity of the Holder or such beneficial owner or (B) to make any declaration or other similar claim or satisfy any information or reporting requirement, which, in the case of (A) or (B), is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such Tax;

(5) any Taxes that are required to be withheld or deducted on a payment to an individual pursuant to European Union Council Directive 2003/48/EC regarding the taxation of savings income or any law implementing or complying with, or introduced in order to conform to, such Directive;

(6) any Taxes that are required to be withheld or deducted on a payment to or on behalf of a Holder, who, at the time of such payment or withholding, was not an Eligible Investor for reasons within such Holder’s control. An Eligible Investor for the purposes of this section means any investor which is referred to in Article 4 of the Royal Decree of May 26, 1994 on the deduction of withholding tax and which holds the Securities in an exempt securities account in the X/N System; or

(7) any combination of items (1), (2), (3), (4), (5) and (6) above.

The Issuer also will not be required to pay Additional Amounts:

(a) if the payment could have been made without deduction or withholding if the beneficiary of the payment had presented the Security for payment within 30 days after the date on which such payment or such Security became due and payable or the date on which payment thereof is duly provided for, whichever is later (except to the extent that the Holders or beneficial owners of the Securities would have been entitled to Additional Amounts had such Security been presented on the last day of the 30-day period);

(b) with respect to any payment of principal of (or premium, if any, on) or interest on such Security to any Holder who is a fiduciary or partnership or any Person other than the sole beneficial owner of such payment, to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such a partnership or the beneficial owner of such payment would not have been entitled to the Additional Amounts had such beneficiary, settlor, member or beneficial owner been the actual Holder of such Security; or

 

B-VII


(c) if such Security is presented for payments by or on behalf of a Holder or beneficial owner who would be able to avoid a withholding or deduction by presenting the relevant Security to another paying agent in a Member State.

If the Issuer will be obligated to pay Additional Amounts with respect to any payment under or with respect to the Securities, the Issuer will deliver to the Trustee at least 30 days prior to the date of that payment (unless the obligation to pay Additional Amounts arises after the 30th day prior to that payment date, in which case the Issuer shall notify the Trustee promptly thereafter) an Officers’ Certificate stating the fact that Additional Amounts will be payable and the amount so payable. The Officers’ Certificate must also set forth any other information necessary to enable the paying agent to pay Additional Amounts to Holders of the Securities on the relevant payment date.

Upon request, the Issuer will provide the Trustee with official receipts or other documentation satisfactory to the Trustee evidencing the payment of the Taxes with respect to which Additional Amounts are paid.

Whenever in this Definitive Registered Certificate there is mentioned, in any context, the payment of principal; purchase prices in connection with a purchase of Securities; interest; or any other amount payable on or with respect to any of the Securities, that reference shall be deemed to include payment of Additional Amounts provided for in this section to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.

The Issuer will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in any jurisdiction from the execution, delivery, enforcement or registration of the Securities, the Indenture or any other related document or instrument, or the receipt of any payments with respect to the Securities, excluding taxes, charges or similar levies imposed by any jurisdiction outside of Belgium, the jurisdiction of incorporation of any successor of the Issuer or any jurisdiction in which a paying agent is located, and the Issuer will agree to indemnify the Holders or the Trustee for any such taxes paid by the Holders or the Trustee.

The preceding provisions shall apply mutatis mutandis to any jurisdiction in which any successor to the Issuer is organized or any political subdivision or taxing authority or agency thereof or therein.

 

8 Notice of Redemption

Notice of redemption will be made in accordance with the Indenture. If money sufficient to pay the redemption price of and accrued and unpaid interest on all Securities (or portions thereof) to be redeemed on the redemption date is deposited with the Principal Paying Agent on or before the redemption date, on and after such date interest ceases to accrue on such Securities (or portions thereof) called for redemption.

 

9 [Change of Control]

[Insert any applicable provisions for this series of Securities]

 

B-VIII


10 Denominations: Transfer; Exchange

This Definitive Registered Certificate evidences Definitive Registered Notes in minimum denominations of U.S.$2,000 and integral multiples of U.S.$1,000 in excess thereof with the minimum transferable principal amount being U.S.$2,000.

 

11 Persons Deemed Owners

The Person deemed to be the owner of the Definitive Registered Notes evidenced by this Definitive Registered Certificate shall be determined in accordance with the Indenture.

 

12 Unclaimed Money

If money for the payment of principal or interest remains unclaimed for two years, the Trustee and the Paying Agent will pay the money back to the Issuer at its written request unless an abandoned property law designates another person. After any such payment, Holders entitled to the money must look to the Issuer for payment as general creditors, and all liability of the Trustee and such Paying Agent with respect to such money shall cease.

 

13 [Legal Defeasance and Covenant Defeasance]

[The Issuer may be discharged from its obligations under the Indenture and the Securities except for certain provisions thereof (“Legal Defeasance”) and may be discharged from its obligations to comply with certain covenants contained in the Indenture (“Covenant Defeasance”), in each case upon satisfaction of certain conditions specified in the Indenture.][To be deleted if not applicable]

 

14 Amendment: Supplement: Waiver

Subject to certain exceptions, the Indenture or the Securities may be amended, supplemented or otherwise modified, and any past default or compliance with certain provisions of the Indentures or the Securities may be waived, in each case with the affirmative vote of a majority in aggregate principal amount of the Securities then outstanding voting (either in person or by proxy) at a duly convened meeting of the Holders.

Without the consent of any Holder, the Issuer and the Trustee acting jointly may execute a supplemental indenture to take any of the following actions:

 

  (i) establish the form and terms of any series of Securities;

 

  (ii) cure any ambiguity, omission, defect or inconsistency; provided that such amendment does not, in the opinion of the Trustee, adversely affect the rights of any Holder in any material respect;

 

  (iii) provide for the assumption by a successor corporation of the obligations of the Issuer under either Indenture;

 

  (iv) provide for uncertificated Securities in addition to or in place of certificated Securities (provided, however, that the uncertificated Securities are issued in registered form for purposes of Section 163(f) of the Code, or in a manner such that the uncertificated Securities are described in Section 163(f)(2)(B) of the Code);

 

B-IX


  (v) add to the covenants of the Issuer for the benefit of the Holders of the Securities or to surrender any right or power conferred upon the Issuer or any of its subsidiaries;

 

  (vi) make any change that does not in the opinion of the Trustee adversely affect the rights of any Holder, subject to the provisions of the Indentures;

 

  (vii) provide for the issuance of the Exchange Securities or Additional Securities; or

 

  (viii) comply with any requirement of the SEC in connection with the qualification of the Indenture under the TIA.

 

15 Successors

When a successor assumes, in accordance with the Indenture, all the obligations of its predecessor under the Securities and the Indenture, the predecessor will be released from those obligations.

 

16 Defaults and Remedies

If an Event of Default occurs (other than as a result of the bankruptcy provisions or the winding up provisions) and is continuing, the Trustee or the Holders of at least 25 % in aggregate principal amount of Securities then outstanding by notice to the Issuer may declare principal or and accrued but unpaid interest on all the Securities to be due and payable in the manner, at the time and with the effect provided in the Indenture. If an Event of Default relating to certain events of the bankruptcy provisions or the winding up provisions, the unpaid principal of and interest on all the Securities shall become immediately due and payable without any declaration or other act on the part of the Trustee or any Holders. Under certain circumstances, the Holders of a majority in principal amount of the Securities then outstanding may rescind any such acceleration with respect to the Securities and its consequences.

Subject to the provisions of each Indenture relating to the duties of the Trustee, in case an Event of Default occurs and is continuing, the Trustee shall be under no obligation to exercise any of the rights or powers under such Indenture at the request or direction of any of the Holders of the Securities unless the Trustee has been offered an indemnity or security satisfactory to the Trustee against any loss, liability or expense. Except to enforce the right to receive payment of principal, premium (if any) or interest when due, no Holder may pursue any remedy with respect to the Securities or the Indenture unless:

 

  (i) such Holder has previously given the Trustee notice that an Event of Default is continuing,

 

  (ii) Holders of at least 25% in aggregate principal amount of the then outstanding Securities have requested the Trustee in writing to pursue the remedy,

 

  (iii) the Trustee has been offered security or indemnity satisfactory to the Trustee against any loss, liability or expense,

 

B-X


  (iv) the Trustee has not complied with such request within 60 days after the receipt of the request and the offer of security or indemnity satisfactory to the Trustee, and

 

  (v) the Holders of a majority in aggregate principal amount of the then outstanding Securities have not given the Trustee a direction inconsistent with such request within such 60-day period.

Subject to certain restrictions, the Holders of a majority in aggregate principal amount of the then outstanding Securities shall be given the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or of exercising any trust or power conferred on the Trustee. The Trustee, however, may refuse to follow any direction that the Trustee determines (after consultation with counsel) conflicts with law or the relevant Indenture or that the Trustee determines is unduly prejudicial to the rights of any other Holder or that may involve the Trustee in personal liability. Prior to taking any action under the relevant Indenture, the Trustee shall be entitled to indemnification satisfactory to it in its sole discretion against all losses and expenses caused by taking or not taking such action.

 

17 Trustee Dealings with Issuer

Subject to certain limitations imposed by the TIA, the Trustee under the Indenture, in its individual or any other capacity, may become the owner or pledgee of Securities and may otherwise deal with the Issuer, its Subsidiaries or their respective Affiliates as if it were not the Trustee.

 

18 No Recourse Against Others

A director, officer, employee or shareholder, as such, of the Issuer shall not have any liability for any obligations of the Issuer under the Securities or the Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. By accepting a Security, each Holder waives and releases all such liability. The waiver and release are part of the consideration for the issue of the Securities.

 

19 Authentication

This Definitive Registered Certificate shall not be valid until the Trustee (or an authentication agent) manually signs the certificate of authentication on this Definitive Registered Certificate.

 

20 Governing Law

THE INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.

 

B-XI


21 Abbreviations and Defined Terms

Customary abbreviations may be used in the name of a Holder of a Security or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).

 

22 Indenture

Each Holder, by accepting a Security, agrees to be bound by all of the terms and provisions of the Indenture, as the same may be amended or supplemented from time to time.

The Issuer will furnish to any Holder of a Security upon written request and without charge a copy of the Indenture, which has the text of this Security in larger type. Requests may be made to: [].

 

B-XII


[OPTION OF HOLDER TO ELECT PURCHASE]

If you want to elect to have this Security purchased by the Issuer pursuant to Section 1.1[(m)] of the [First] Supplemental Indenture to the Indenture, check the box:

¨ If you want to elect to have only part of this Security purchased by the Issuer pursuant to Section 1.1[(m)] of the [First] Supplemental Indenture to the Indenture, state the amount you elect to have purchased:

U.S.$

Dated:             

NOTICE: The signature on this option must correspond with the name as it appears upon the face of this Security in every particular without alteration or enlargement or any change whatsoever and be guaranteed by the endorser’s bank or broker.

Signature Guarantee:

 

B-XIII

EX-4.4 3 dex44.htm EXHIBIT 4.4 Exhibit 4.4

Exhibit 4.4

DELHAIZE GROUP SA/NV,

AS ISSUER

AND

THE BANK OF NEW YORK MELLON,

AS CDI DEPOSITARY

AND

THE OWNERS OF BOOK-ENTRY INTERESTS

DEPOSIT AGREEMENT

DATED AS OF [], 2009


TABLE OF CONTENTS

 

ARTICLE I
Definitions And Other General Provisions

SECTION 1.01. Definitions

   1

SECTION 1.02. Rules of Construction

   4
ARTICLE II
Book-Entry Interests

SECTION 2.01. Deposit of Book-Entry Interests in the Global Securities: Issuance of Certificated Depositary Interests

   4

SECTION 2.02. Book-Entry System

   4

SECTION 2.03. [Reserved]

   5

SECTION 2.04. Transfer of Certificated Depositary Interests

   5

SECTION 2.05. Transfer of Interests in the Global Securities

   5

SECTION 2.06. Payment in Respect of a Certificated Depositary Interest and Global Securities

   7

SECTION 2.07. Redemption of Securities and Book-Entry Interests

   7

SECTION 2.08. Record Date

   7

SECTION 2.09. Action in Respect of a Certificated Depositary Interest

   8

SECTION 2.10. Offer to Purchase Securities and Book-Entry Interests

   8

SECTION 2.11. Transfer

   9

SECTION 2.12. Changes Affecting a Global Security

   9

SECTION 2.13. Reports

   9

SECTION 2.14. Information Regarding Belgian Law

   10

SECTION 2.15. Additional Amounts

   10

SECTION 2.16. National Bank of Belgium

   11
ARTICLE III
The CDI Depositary

SECTION 3.01. Certain Duties and Responsibility

   11

SECTION 3.02. Not Responsible for Offering Materials or Issuance of Securities

   12

SECTION 3.03. Money Held in Trust

   12

SECTION 3.04. Compensation and Reimbursement

   12

SECTION 3.05. CDI Depositary Required; Eligibility

   13

SECTION 3.06. Resignation and Removal; Appointment of Successor

   14

SECTION 3.07. Acceptance of Appointment by Successor

   15

SECTION 3.08. Merger, Conversion, Consolidation or Succession to Business

   16

 

ii


ARTICLE IV
Miscellaneous Provisions

SECTION 4.01. Notices to CDI Depositary

   16

SECTION 4.02. Notice to Depositary and Owners; Waiver

   17

SECTION 4.03. Effect of Heading

   18

SECTION 4.04. Successors and Assigns

   18

SECTION 4.05. Separability Clause

   18

SECTION 4.06. Benefits of Agreement

   18

SECTION 4.07. Governing Law

   18

SECTION 4.08. Consent to Jurisdiction; Appointment of Agent for Service of Proof; Waiver of Immunities

   18

SECTION 4.09. Counterparts

   19

SECTION 4.10. Inspection of Agreement

   19

SECTION 4.11. Satisfaction and Discharge

   19

SECTION 4.12. Amendments

   19

SECTION 4.13. CDI Depositary to Execute Amendments

   20

SECTION 4.14. Effect of the Agreement

   20

SECTION 4.15. No Recourse

   20

 

iii


THIS DEPOSIT AGREEMENT (this “Agreement”) is made as of this [] day of [], 2009 by and between Delhaize Group SA/NV, a limited liability company organized under the laws of the Kingdom of Belgium (naamloz vennootschap) (the “Company”), and The Bank of New York Mellon, a New York banking corporation, as CDI Depositary (the “CDI Depositary”) and the owners from time to time of beneficial interests in any Certificated Depositary Interest (as defined below) issued hereunder in registered form in respect of Global Securities (as defined below) representing one or more Series (as defined below) of the Company’s unsecured debentures, notes or other evidence of indebtedness (the “Securities”) to be issued pursuant to the Indenture (as defined below).

ARTICLE I

Definitions And Other General Provisions

SECTION 1.01. Definitions. The following terms, as used herein, have the following meanings:

Additional Amounts” shall have the meaning ascribed to it in the Indenture.

Affiliate” of any Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such Person. For the purposes of this definition, “control”, when used with respect to any specific Person, means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.

Amendment Certificate” has the meaning ascribed to it in Section 4.01 hereof.

Authorized Person” has the meaning ascribed to it in Section 4.01 hereof.

Beneficial Owner” means any Person owning any beneficial interest in a given Certificated Depositary Interest but who is not the holder of such Certificated Depositary Interest and may include any “DTC Participant” (as hereinafter defined); it being understood that the term “Beneficial Owner” shall not include any agent or financial intermediary holding an interest in such Certificated Depositary Interest solely to the extent such interest is held for or on behalf of any Beneficial Owner.

CDI Depositary” means the party named as such in this Agreement until a successor shall have become such pursuant to Section 3.07 hereof, and thereafter “CDI Depositary” shall mean such successor or its nominee or the custodian of either.

Book-Entry Interests” means an interest or interests in any Certificated Depositary Interest issued pursuant to this Agreement which are eligible for trading through DTC’s book-entry system.

Business Day” shall have the meaning ascribed to it in the Indenture.

 

1


Certificated Depositary Interest” means a global certificate in the form of Appendix A hereto representing an interest in a Global Security that (i) shall, at all times represent the right to receive 100% of the principal of, and premium, if any, interest and Additional Amounts, if any, on such Global Security and the right to procure in certain circumstances the exchange of such Global Security for one or more Definitive Registered Securities representing up to 100% of the principal amount at maturity represented by such Global Security and (ii) is issued by the CDI Depositary to the Depositary or its nominee and held by the CDI Depositary as custodian on behalf of the Depositary.

Clearstream” means Clearstream Banking, SA, or any successor securities clearing agency.

Clearing Agreement” means the Clearing Service Agreement between the Custodian, the Company and the Principal Paying Agent.

Closing Date” means [], 2009.

Company” means the party named as such in this Agreement until a successor replaces it pursuant to the applicable provisions of the Indenture and, thereafter means the successor.

Company Order” means a written order signed in the name of the Company by a Director and delivered to the CDI Depositary.

Corporate Trust Office” means the office of the CDI Depositary in The Borough of Manhattan, The City of New York, at which at any particular time its corporate trust business shall be principally administered, which at the date hereof is located at 101 Barclay Street, Floor 21 W, New York, NY 10286.

Custodian” means the National Bank of Belgium, as operator of the X/N System.

Definitive Registered Securities” means definitive Securities in registered form exchanged for Global Securities pursuant to the Indenture.

Depositary” means DTC or any successor, in whose name the Certificated Depositary Interests are recorded pursuant to Section 2.04 hereof.

DTC” means The Depository Trust Company or its nominee.

DTC Participants” means institutions that have accounts with DTC or its successors.

Euroclear” means Euroclear Bank SA/NV, or any successor securities clearing agency.

Event of Default” shall have the meaning ascribed to it in the Indenture.

 

2


Exchange Act” means the United States Securities Exchange Act of 1934, as amended.

Global Security” means one or more global securities in bearer form representing Securities issued pursuant to the Indenture.

Incumbency Certificate” has the meaning ascribed to it in Section 4.01 hereof.

Indenture” means the indenture dated as of [], 2009 between the Company and The Bank of New York Mellon, as Trustee, relating to the Securities as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental thereto entered into pursuant to the applicable provisions thereof, including for all purposes the provisions of the TIA that are deemed to be a part of and govern such instrument.

Letter of Representations” means a Blanket Letter of Representations to DTC from the CDI Depositary on behalf of the Company pertaining to the Securities.

Meeting” shall have the meaning ascribed to it in the Indenture.

Officers’ Certificate” shall have the meaning ascribed to it in the Indenture.

Opinion of Counsel” means a written opinion from legal counsel, who may be an employee of or counsel to the Company, a Subsidiary of the Company or the Trustee.

Person” means any individual, corporation, partnership, limited liability company, joint venture, association, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof or any other entity.

Principal Paying Agent” means ING Belgium SA/NV or any successor paying agent thereof.

Responsible Officer” means, with respect to the CDI Depositary, any officer assigned to or working in the CDI Depositary’s corporate trust department or, with respect to a particular corporate trust or agency matter, any other officer to whom such matter is referred because of his or her knowledge and familiarity with the particular subject.

Securities” shall have the meaning set forth in the introductory paragraph of this Agreement.

Securities Act” means the United States Securities Act of 1933, as amended.

Series” means all Securities of the same series authorized by or pursuant to a particular resolution or resolutions of the Board of Directors of the Company in accordance with the terms of the Indenture.

Subsidiary” shall have the meaning ascribed to it in the Indenture.

TIA” means the United States Trust Indenture Act of 1939 (15 U.S. §§ 77aaa-77bbbb) as in effect on the date of the Indenture; provided, however, that in the event the United States Trust Indenture Act of 1939 is amended after such date, “TIA” means, to the extent required by such amendment, the United States Trust Indenture Act of 1939, as so amended.

 

3


Trustee” means the Person acting as Trustee under the Indenture until a successor Trustee shall have become such pursuant to the applicable provisions of the Indenture, and “Trustee” shall thereafter mean such successor Trustee.

X/N System” shall have the meaning ascribed to it in the Indenture.

SECTION 1.02. Rules of Construction. Unless the context otherwise requires, (a) a term has the meaning assigned to it herein; (b) any capitalized term not otherwise defined herein shall have the meaning ascribed to it in the Indenture; (c) “or” is not exclusive; (d) “including” means including without limitation; and (e) the words “herein”, “hereof” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Article, Section or other subdivision.

ARTICLE II

Book-Entry Interests

SECTION 2.01. Deposit of Book-Entry Interests in the Global Securities: Issuance of Certificated Depositary Interests. The CDI Depositary, as a participant in Euroclear and/or Clearstream, hereby agrees to accept 100% of the book-entry interests in the Global Securities of a Series for the benefit of the Depositary and shall act as CDI Depositary in accordance with the terms of this Agreement. The CDI Depositary shall issue Certificated Depositary Interests with respect to its book-entry interests in the Global Securities in accordance with the Letter of Representations.

SECTION 2.02. Book-Entry System. (a) Upon acceptance by DTC of a Certificated Depositary Interest for entry into its book-entry settlement system in accordance with the terms of the Letter of Representations, Book-Entry Interests will be issued by DTC and traded through DTC’s book-entry system, and ownership of such Book-Entry Interests shall be shown in, and the transfer of such ownership shall be effected through, records maintained by DTC or its successors or DTC Participants. Book-Entry Interests shall be transferable only as units representing authorized denominations of the Securities of the Series to which they correspond and in the manner contemplated by the Indenture.

(b) The Certificated Depositary Interest shall be issuable only to DTC, or successors of DTC or their respective nominees. Except as provided in Section 2.05, no owner of Book-Entry Interests shall be entitled to receive a Security in definitive form on account of such ownership, and such owner’s interest therein shall be shown only in accordance with the procedures of DTC as set forth in the Letter of Representations.

(c) Notwithstanding the foregoing, nothing herein shall prevent the Company, the CDI Depositary or any agent of the Company or the CDI Depositary from giving effect to any

 

4


written certification, proxy or other authorization furnished by the Depositary or impair, as between the Depositary and its DTC Participants, the operation of customary practices of the Depositary governing the exercise of the rights of a holder of a beneficial interest in any Certificated Depositary Interest.

SECTION 2.03. [Reserved]

SECTION 2.04. Transfer of Certificated Depositary Interests. The Company appoints the CDI Depositary as its agent for the sole purpose of maintaining at the CDI Depositary’s Corporate Trust Office records in which the CDI Depositary shall (i) record DTC as the initial owner of the Certificated Depositary Interests, (ii) record the transfer of ownership of such Certificated Depositary Interests and (iii) record the increases and decreases in the principal amount at maturity represented by such Certificated Depositary Interests. Ownership of a Certificated Depositary Interest cannot be transferred unless such transfer is noted in the records of the CDI Depositary. The CDI Depositary shall not recognize any transfer or exchange of ownership of Certificated Depositary Interests of a Series that does not comply with the provisions of this Section 2.04. Unless and until the Global Securities are exchanged in whole or in part for other securities of the Company or for Definitive Registered Securities, the Certificated Depositary Interests of a Series owned by DTC may not be transferred except as a whole by DTC to a nominee of DTC or by a nominee of DTC to DTC or another nominee of DTC or by DTC or any such nominee to a successor of DTC or a nominee of such successor. The CDI Depositary shall treat the Person in whose name a Certificated Depositary Interest is recorded in the records of the CDI Depositary as the owner thereof for all purposes whatsoever and shall not be bound or affected by any notice to the contrary, other than an order of a court having jurisdiction over the CDI Depositary.

The foregoing paragraph shall not (i) impose an obligation on the CDI Depositary to record the interests in or transfers of Book-Entry Interests held by DTC Participants, or Persons that may hold Book-Entry Interests through DTC Participants or (ii) restrict transfers of such Book-Entry Interests held by DTC Participants or such Persons.

In connection with the CDI Depositary’s appointment as the Company’s agent under this Section 2.04, the Company shall have such rights and obligations as regards removal of the CDI Depositary and appointment of a successor as are specified in Section 3.07 hereof.

SECTION 2.05. Transfer of Interests in the Global Securities. The CDI Depositary shall not transfer or lend any interest in the Global Securities except (i) the transfer and exchange of a Global Security pursuant to Section 2.07 of the Indenture, (ii) the replacement of a Global Security pursuant to Section 2.08 of the Indenture, (iii) upon delivery of a Global Security for cancellation pursuant to Section 2.11 of the Indenture and (iv) the transfer of any interest in a Global Security to a successor CDI Depositary appointed in accordance with Section 3.06 hereof.

 

5


If:

(i) the Custodian ceases to operate the X/N System and no successor-operator has been appointed within 120 days after the date on which the Custodian gives notice of such fact to the Company and the Principal Paying Agent,

(ii) both Euroclear and Clearstream notify the Company or the CDI Depositary that they are unwilling or unable to continue to act as a clearing agent and no successor-clearing agent has been appointed within 15 days after the date on which notice of such fact is given,

(iii) if, as a result of any amendment to, or change in, the laws or regulations of Belgium, another Member State (as defined in Section 1.01 of the Indenture) or the United States (or any political sub-division of any of the foregoing) or of any authority therein or thereof having power to tax or in the interpretation, by a revenue authority or a court, or administration of such laws or regulations, which become effective after the Closing Date, the Company reasonably concludes that continuing to settle the Securities through the X/N System would require it to make a deduction or withholding from any payment in respect of the Securities, which deduction or withholding would not then be required in respect of Definitive Registered Securities,

(iv) DTC notifies the Company or the CDI Depositary it is unwilling or unable to continue as depositary with respect to the Certificated Depositary Interests or if at any time it is unable to or ceases to be a clearing agency registered under the Exchange Act and, in either case, no successor-depositary registered as a clearing agency under the Exchange Act is appointed by the CDI Depositary at the Company’s request within 15 days after the date on which notice of such fact is given, or

(v) the CDI Depositary notifies the Company in writing under Section 3.06 hereof that it is unwilling or unable to continue as CDI Depositary and no successor CDI Depositary has been appointed by the Company within 15 days after the date on which notice of such fact is given,

then the CDI Depositary shall upon written direction from the Principal Paying Agent notify the Depositary that interests in the corresponding Global Security in the form of Book-Entry Interests will be exchanged in whole for Definitive Registered Securities pursuant to Section 2.07 of the Indenture. Definitive Registered Securities shall be registered by the Company in such names and amounts as the Depositary shall specify upon cancellation of the corresponding Global Security, Certificated Depositary Interest and all Book-Entry Interests with respect thereto. The CDI Depositary agrees to take all such actions as are reasonable with respect to its interests in the corresponding Global Security held through Euroclear and/or Clearstream to give effect to the exchange of interests in the corresponding Global Security in the form of Definitive Registered Securities.

Exchange of Definitive Registered Securities pursuant to this Section 2.04 and issue of any certificate delivered in respect thereof shall be made free of any fees of the CDI Depositary to the Depositary or Beneficial Owner with respect thereto.

 

6


SECTION 2.06. Payment in Respect of a Certificated Depositary Interest and Global Securities. (a) Whenever the CDI Depositary shall receive any payment on a Global Security, including any payments of Additional Amounts, the amount so received shall be distributed promptly to the Depositary on the corresponding payment date for such Global Security. So long as DTC is the Depositary, such payments shall be made in accordance with the Letter of Representations.

(b) The CDI Depositary shall forward to the Trustee, the Company and their respective agents, as the case may be, such information from its records as the Company may reasonably request to enable the Company or its agents to file necessary reports with governmental agencies, and the CDI Depositary, the Company and the Trustee or their agents may (but shall not be required to) file any such reports necessary to obtain benefits under any applicable tax treaties for the Depositary or Beneficial Owners of Book-Entry Interests.

(c) None of the Company, the Trustee, the Paying Agent, the Custodian, Euroclear, Clearstream, the CDI Depositary or any of their respective agents will have any responsibility or liability for any aspect of the records relating to payments made by the Depositary (or its direct or indirect participants) on account of Book-Entry Interests or for maintaining, supervising or reviewing any records relating to such Book-Entry Interests.

(d) Notwithstanding any other provision of this Agreement, the CDI Depositary shall be required to pay to the Depositary only amounts (including Additional Amounts) received by the CDI Depositary with respect to a Global Security.

SECTION 2.07. Redemption of Securities and Book-Entry Interests. In the event that the Company redeems all or any part of a Global Security pursuant to the Indenture and the terms of the Securities of such Series, the CDI Depositary shall promptly notify the Depositary of the principal amount redeemed and of the corresponding reduction of the same principal amount of the corresponding Certificated Depositary Interest. The CDI Depositary shall pay all such amounts received by it in connection with such redemption to the Depositary.

SECTION 2.08. Record Date. Whenever (i) any payment is to be made in respect of a Global Security, (ii) the CDI Depositary shall receive notice of any action to be taken by the holder of a Global Security or (iii) whenever the Company deems it appropriate in respect of any other matter, the CDI Depositary may, but shall not be obligated to (except in the case of (ii)) fix a record date (the “Record Date”) (in the case of payments only, 14 days prior to the due date for such payment) for the determination of the principal amount represented by the Certificated Depositary Interests of a Series representing interests in such Global Security and the holders of such Certificated Depositary Interests who shall be entitled to receive payment in respect thereof, to take any such action or to act in respect of any such matter, which record date, if any, shall be the same date as that fixed with respect to the corresponding holder of such Global Security or holders, if any, of corresponding Definitive Registered Securities under the Indenture. Subject to the provisions of this Agreement, only the Depositary in whose name a Certificated Depositary Interest is

 

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recorded in the records of the CDI Depositary at the close of business on such record date shall be entitled to receive any such payment, to give instructions as to such action or to act in respect of any such matter.

SECTION 2.09. Action in Respect of a Certificated Depositary Interest. Promptly after receipt by the CDI Depositary of notice of any solicitation of consents or request for a waiver or other action (to be taken at a Meeting or otherwise) by the holder of a Global Security or holders of interests therein under the Indenture or by the CDI Depositary under this Agreement, the CDI Depositary shall mail to the Depositary a notice containing (i) such information as is contained in the notice received, (ii) a statement that the Depositary at the close of business on a specified record date (established in accordance with Section 2.08 hereof) will be entitled, subject to the provisions of or governing such Certificated Depositary Interest or Global Security, as the case may be, to instruct the CDI Depositary as to the consent, waiver or other action (to be taken at a Meeting or otherwise), if any, pertaining to the Global Securities, this Agreement or the Indenture and (iii) a statement as to the manner in which such instructions may be given. Upon the written request of the Depositary received on or before the date established by the CDI Depositary for such purpose, but in no event later than the close of business (Belgian time) three Business Days preceding the date set for any action to be taken by the holders of the Global Securities or interests therein, the CDI Depositary shall endeavor insofar as practicable and permitted under the provisions of this Agreement or the Indenture, as the case may be, to obtain a Voting Certificate and a Proxy in the manner set forth in Appendix B to the Indenture (to the extent it is regarded as the holder of all or a portion of the Global Securities for the purpose of any such Meeting) and to take such action regarding the requested consent, waiver offer, or other action (to be taken at a Meeting or otherwise) in respect of all or only a portion of the principal amount at maturity of such Certificated Depositary Interest representing corresponding interests in the Global Security with respect to which instructions in accordance with any instructions set forth in such request have been received. In addition, the CDI Depositary will forward to the Depositary, or, based upon instructions received from the Depositary, to owners of Book-Entry Interests of a given Series, all materials received by the CDI Depositary pertaining to any such solicitation, request or other action. The CDI Depositary agrees that the Depositary may grant proxies, sub-proxies or otherwise authorize DTC Participants (or Persons owning Book-Entry Interests through such DTC Participants) to provide such instructions to the CDI Depositary so that it may exercise any rights of a holder or take any other action which a holder is entitled to take under the Indenture. The CDI Depositary shall not itself exercise any discretion in the granting of consents or waivers or the taking of any other action in respect of a Global Security. Without prejudice to Section 2.06(c), the records of the Depositary shall, absent manifest error, be conclusive evidence of the owners of the Book-Entry Interests and the principal amount at maturity represented by such Book-Entry Interests.

SECTION 2.10. Offer to Purchase Securities and Book-Entry Interests. Upon receipt by the CDI Depositary as holder of the book-entry interest in the Global Securities of notice of an offer to purchase Securities of a Series pursuant to Section 3.01 of the Indenture, the CDI Depositary shall forward such notice to the Depositary

 

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with any additional instructions applicable to owners of Book-Entry Interests of such Series. Upon notice by the Depositary of the principal amount of such Book-Entry Interests tendered for purchase in response to such offer to purchase, such CDI Depositary will instruct the Custodian (through Euroclear and/or Clearstream) to surrender the applicable Global Security in accordance with the instructions set forth in such offer to purchase indicating the portion of the principal amount of such Global Security that is being tendered for purchase pursuant to the offer to purchase. Upon receipt of any payment resulting from an offer to purchase, the CDI Depositary shall pay any amounts received to the Depositary, indicate the principal amount of such Global Security reduced by the Trustee in connection with such offer to purchase, and notify the Depositary of a corresponding reduction in the principal amount of the applicable Certificated Depositary Interest.

SECTION 2.11. Transfer. If the owner of a Book-Entry Interest in a Certificated Depositary Interest of a Series related to one Global Security wishes at any time to transfer such interest to a Person who wishes to take delivery thereof in the form of a Book-Entry Interest in a Certificated Depositary Interest of such Series relating to a second Global Security, then, to the extent permitted by any applicable regulation, upon receipt by the CDI Depositary of an order given by the Depositary or its authorized representative directing that a Book-Entry Interest relating to the second Global Security be increased by a specified principal amount and the Book-Entry Interest relating to the first Global Security be decreased in an equal principal amount, such CDI Depositary shall (i) promptly instruct Euroclear and/or Clearstream, as applicable, to instruct the Custodian to deliver the applicable Global Securities to the Principal Paying Agent and request that the Principal Paying Agent endorse Schedule A to such Global Securities to reflect the reduction in principal amount of the first Global Security and the corresponding increase in the second Global Security resulting from such transfer and (ii) notify the Depositary of the corresponding adjustments in the principal amounts of the relevant Certificated Depositary Interests. The Depositary shall make such adjustments in accordance with the provisions of Section 2.04.

SECTION 2.12. Changes Affecting a Global Security. Upon any reclassification of Securities of a Series or upon any recapitalization, reorganization, merger, assumption or consolidation or sale of assets affecting the Company or to which the Company is a party, any interests in securities that shall be received by the CDI Depositary in exchange for or in respect of the relevant Global Security shall be treated as an interest in a new Global Security or as part of such Global Security under this Agreement and any corresponding Certificated Depositary Interest shall thenceforth represent such Global Security, including such new securities so received.

SECTION 2.13. Reports. The CDI Depositary shall promptly send to the Depositary a copy of any notices, reports and other communications received relating to the Company or any Securities that are received by the CDI Depositary as holder of the book-entry interests in a Global Security.

 

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SECTION 2.14. Information Regarding Belgian Law. The CDI Depositary shall inform DTC that for the Securities of any Series to be admitted in an exempt account in the X/N System (and for their holders to benefit from the related exemption to Belgian withholding tax) DTC should ensure that it does not hold any Certificated Depository Interest of such Series on behalf of any investor, such as a Belgian person, who does not qualify as an “Eligible Investor” for the purposes of article 4 of the Royal Decree of 26 May 1994.

“Eligible Investors,” as defined in article 4 of the Royal Decree of 26 May 1994, include, inter alia: (1) Belgian resident companies subject to corporate income tax within the meaning of Article 2, §1, 5°b of the Income Tax Code 1992 (“ITC 1992”); (2) without prejudice to Article 262, 1° and 5° of ITC 1992, Belgian insurance or pension undertakings within the meaning of Article 2, §3 of the Law of July 9, 1975 on supervision of insurance companies (other than those referred in points 1° and 3° of said Article); (3) State-linked social security organizations and institutions assimilated therewith within the meaning of Article 105, 2° of the Royal Decree of August 27, 1993 implementing ITC 1992; (4) non-residents of Belgium within the meaning of Article 105, 5° of said Royal Decree of August 27, 1993; (5) mutual funds within the meaning of Article 115 of said Royal Decree of August 27, 1993; (6) companies, entities or partnerships within the meaning of Article 227, 2° of ITC 1992 which are subject to non-resident income tax in Belgium in accordance with Article 233 of ITC 1992 and whose Securities are held as part of a taxable business activity in Belgium; (7) the Belgian State, with respect to its investments exempted from withholding tax in accordance with Article 265 of ITC 1992; (8) mutual funds organized under foreign law which are structured as an undivided estate managed by a management company on behalf of certificate holders, provided that their certificates are not publicly offered or otherwise marketed in Belgium; and (9) Belgian resident companies not referred to in point 1 above whose sole or principal activity consists in granting credits or loans.

SECTION 2.15. Additional Amounts. At least 30 days prior to the date the payment of Additional Amounts with respect to a Series would be required to be made pursuant to Section 4.05 of the Indenture (unless the obligation to make such payment arises after the 30th day prior to that payment date, in which case the Company shall furnish the proceeding certificate promptly thereafter), the Company will furnish the CDI Depositary with an Officers’ Certificate stating the fact that Additional Amounts with respect to such Series will be payable and the amount so payable. The CDI Depositary shall have no responsibility for determining whether the Depositary or any owner of a Book-Entry Interest in such Series is entitled to the payment of Additional Amounts, but shall be entitled to rely conclusively for this purpose on the Officers’ Certificate or on certifications from the Depositary. The Company shall, prior to the time on which the CDI Depositary is required to make such payment, pay to the CDI Depositary amounts equal to any Additional Amounts with respect to such Series payable on such date by the CDI Depositary under this Agreement. Notwithstanding anything to the contrary provided above, the CDI Depositary shall pay or cause to be paid Additional Amounts with respect to a Series only out of funds that shall be received by it for that purpose.

 

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SECTION 2.16. National Bank of Belgium. Each of the CDI Depositary and the Company agree to recognize the National Bank of Belgium as the Custodian of the Global Securities.

ARTICLE III

The CDI Depositary

SECTION 3.01. Certain Duties and Responsibility. The CDI Depositary agrees to perform such duties as are specifically set forth in this Agreement. The CDI Depositary may perform or execute any of its duties or powers hereunder directly or, with prior written approval of the Company (which shall not be unreasonably withheld or delayed), through its agents and shall not be responsible for any willful misconduct or negligence of any agent appointed with due care and approved hereunder, which agent shall be responsible to the Company for its willful misconduct or negligence.

(a) The CDI Depositary assumes no obligation nor shall it be subject to any liability under this Agreement to the Depositary with respect to any Certificated Depositary Interest or any holder of Book-Entry Interests or any other Person hereunder or in connection herewith if, by reason of any circumstances beyond the control of the CDI Depositary, including acts of God, war and government action, including any laws, ordinances, regulations or the like which restrict or prohibit the CDI Depositary from doing or performing any act or thing that the terms of this Agreement provide shall be done or performed.

(b) The CDI Depositary shall not be liable for any act or omission to act, any action taken or omitted to be taken under this Agreement other than by reason of its own bad faith, willful misconduct or negligence in the performance of its obligations under this Agreement and in no event shall the CDI Depositary be liable to anyone for special, indirect or consequential damages or lost profits, arising in connection with this Agreement. In the absence of bad faith or negligence on its part, the CDI Depositary may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any written notice, request, direction, certificate, opinion or other document furnished to the CDI Depositary and conforming to the requirements of this Agreement, but in the case of any such written notice, request, direction, certificate, opinion or other document that by any provision hereof are required to be furnished to the CDI Depositary, the CDI Depositary shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Agreement.

(c) The CDI Depositary assumes no obligation nor shall it be subject to any liability under this Agreement to any Depositary or any owner of Book-Entry Interests or any other Person (including, without limitation, liability with respect to the validity or worth of the Securities), other than that it agrees to use its good faith and reasonable care in the performance of its obligations under this Agreement.

 

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(d) The CDI Depositary makes no representation or warranty and shall at no time have any responsibility for, or liability or obligation in respect of, the legality, validity, binding effect, adequacy or enforceability of the Global Securities, the performance and observance by the Company of its obligations under the Global Securities or the recoverability of any sum of interest or principal due or to become due from the Company in respect of the Global Securities.

(e) The CDI Depositary shall at no time have any responsibility for, or obligation or liability in respect of, the financial condition, creditworthiness, affairs, status or nature of the Company.

(f) The CDI Depositary shall not be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of any Global Security or in respect of the Certificated Depositary Interests, or take any other action or omit to take any action under this Agreement, which in its opinion may involve it in expense or liability, unless indemnity satisfactory to it against all expenses and liability be furnished as often as may be required.

(g) The CDI Depositary shall not be liable for any acts or omissions made by a successor CDI Depositary whether in connection with a previous act or omission of the CDI Depositary or in connection with a matter arising wholly after the removal or resignation of the CDI Depositary, unless such act or omissions of such successor CDI Depositary result from the bad faith, willful misconduct or negligence of the CDI Depositary.

(h) The CDI Depositary may own and deal in any class of securities of the Company and its Affiliates and in the Securities and Book-Entry Interests. The CDI Depositary may enter into other dealings with the Company or any of its Affiliates of any nature whatsoever.

(i) The CDI Depositary may conclusively rely on and shall be protected in acting upon written instructions from any authorized Director of the Company.

(j) The CDI Depositary may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection with respect to any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.

SECTION 3.02. Not Responsible for Offering Materials or Issuance of Securities. The CDI Depositary does not make any representations as to the validity or sufficiency of any offering materials. The CDI Depositary shall not be accountable for the use or application by the Company of the proceeds of the Securities.

SECTION 3.03. Money Held in Trust. Money held by the CDI Depositary in trust hereunder shall be segregated from other funds held by the CDI Depositary as required by law applicable laws or regulations. The CDI Depositary shall be under no obligation to invest or pay interest on any money received by it hereunder, except as otherwise agreed in writing with the Company.

SECTION 3.04. Compensation and Reimbursement. The Company agrees:

(a) to pay to the CDI Depositary from time to time such compensation as agreed between them in writing for all services rendered by it hereunder;

 

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(b) except as otherwise expressly provided herein, to reimburse the CDI Depositary upon its request for all reasonable expenses, disbursements and advances incurred or made by the CDI Depositary in accordance with any provision of this Agreement (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence, willful misconduct or bad faith; and

(c) to indemnify the CDI Depositary and its Affiliates, employees and directors for, and to hold them harmless against, any and all loss, liability, claim, damage or expense incurred without negligence, willful misconduct or bad faith on their part, arising out of or in connection with the acceptance or administration of this Agreement and its duties hereunder, including the reasonable costs and expenses of defending themselves against or investigating any claim of liability in connection with the exercise or performance of any of its powers or duties hereunder.

The CDI Depositary shall notify the Company in writing of the commencement of any action or lien in respect of which indemnification may be sought promptly after the CDI Depositary becomes aware of such commencement (provided that the failure to make such notification shall not affect the CDI Depositary’s rights hereunder) and the Company shall be entitled to participate in, and to the extent it shall wish, to assume the defense thereof, including the employment of counsel reasonably satisfactory to the CDI Depositary; provided that the CDI Depositary may employ, at the Company’s expense, separate counsel if the CDI Depositary shall have reasonably concluded, upon advice of counsel, that there may be legal defenses available to it that are different from or in addition to those available to the Company; provided, however, that it is understood that the Company shall not, under any circumstances, be liable for the reasonable fees and expenses, as incurred, of more than one counsel at any one time to the CDI Depositary (except in the case where local counsel may also be required). The CDI Depositary shall not compromise or settle any such action or claim without the written consent of the Company, which consent shall not be unreasonably withheld.

The obligations of the Company under this Section to compensate and indemnify the CDI Depositary and to pay or reimburse the CDI Depositary for expenses, including reasonable attorney’s fees, disbursements and advances, shall survive the repayment of any Security, resignation or removal of the CDI Depositary and satisfaction, discharge or other termination of this Agreement.

The CDI Depositary shall not be responsible for (i) taxes and other governmental charges (except for liabilities for failure to backup withhold under relevant U.S. tax law) or (ii) such registration fees as may be in effect for the registration from time to time of transfers of interests in the Certificated Depositary Interests of a Series.

SECTION 3.05. CDI Depositary Required; Eligibility. At all times when there is a CDI Depositary hereunder, such CDI Depositary shall be a corporation

 

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organized and doing business under the laws of the United States of America, any State thereof or the District of Columbia, having, together with its parent, a combined capital and surplus of at least $50,000,000, subject to supervision or examination by Federal, State or District of Columbia authority, willing to act on reasonable terms. Such corporation shall have its principal place of business in the Borough of Manhattan, The City of New York, if there be such a corporation in such location willing to act upon reasonable and customary terms and conditions. If such corporation, or its parent, publishes reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority, then for the purposes of this Section 3.05, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. The CDI Depositary shall have executed a Letter of Representations to DTC acceptable in form and substance to DTC and the Company pertaining to the Certificated Depositary Interests. The CDI Depositary hereunder shall at all times be the Trustee under the Indenture, subject to receipt of an Opinion of Counsel that the same Person is precluded by law from acting in such capacities. If at any time the CDI Depositary shall cease to be eligible in accordance with the provisions of this Section 3.05, it shall resign immediately in the manner and with the effect hereinafter specified in this Article.

SECTION 3.06. Resignation and Removal; Appointment of Successor. (a) No resignation or removal of the CDI Depositary with respect to a Series of Securities and, in the case of (i) below no appointment of a successor CDI Depositary with respect to a Series of Securities pursuant to this Article shall become effective until (i) the acceptance of appointment by the successor CDI Depositary with respect to such Series of Securities in accordance with the applicable requirements of Section 3.08 hereof or (ii) the exchange of Definitive Registered Securities with respect to all outstanding Securities of such Series in accordance with Section 2.04 hereof.

(b) The CDI Depositary with respect to a Series of Securities may resign by giving written notice thereof to the Company and the Depositary, in accordance with Section 4.01 and Section 4.02 hereof, not less than 60 days prior to the effective date of such resignation. The CDI Depositary may be removed with respect to a Series of Securities at any time upon not less than 90 days’ notice by the filing with it and the Trustee of an instrument in writing signed on behalf of the Company and specifying such removal and the date when it is intended to become effective.

(c) Notwithstanding the provisions of clauses (a) and (b) of this Section 3.06, if at any time:

(i) the CDI Depositary shall cease to be eligible under Section 3.05 hereof and shall fail to resign after written request therefore by the Company or by the Depositary, or

(ii) the CDI Depositary shall become incapable of acting with respect to any Certificated Depositary Interest or shall be adjudged a bankrupt or insolvent, or a receiver or liquidator of the CDI Depositary or of its property shall be appointed or any public officer shall take charge or control of the CDI Depositary or of its property or affairs for the purpose of rehabilitation, conservation or liquidation,

 

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then, in any such case, (i) the Company may immediately remove the CDI Depositary and appoint a successor CDI Depositary or (ii) the Depositary or CDI Depositary may, on behalf of itself and all others similarly situated, petition any court of competent jurisdiction for the removal of the CDI Depositary and the appointment of a successor CDI Depositary unless all Global Securities with respect to all outstanding Securities have been exchanged for Definitive Registered Securities in accordance with the Indenture. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, remove the CDI Depositary and appoint a successor CDI Depositary.

(d) If, with respect to a Series of Securities, the CDI Depositary shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of CDI Depositary for any cause, the Company shall promptly appoint a successor CDI Depositary (other than the Company) for such Series of Securities and shall comply with the applicable requirements of Section 3.07 hereof. If no successor CDI Depositary with respect to a Series of Securities shall have been so appointed by the Company and accepted appointment in the manner required by Section 3.07, the Depositary or CDI Depositary may, on behalf of itself and all others similarly situated, at the expense of the Company, petition any court of competent jurisdiction for the appointment of a successor CDI Depositary for such Series unless Definitive Registered Securities have been issued with respect to all outstanding Securities of such Series in accordance with the Indenture.

(e) The Company shall give, or shall cause such successor CDI Depositary to give, notice of each resignation and each removal of a CDI Depositary and each appointment of a successor CDI Depositary to the Depositary in accordance with Section 4.02 hereof. Each notice shall include the name of the successor CDI Depositary and the address of its Corporate Trust Office.

SECTION 3.07. Acceptance of Appointment by Successor. (a) In case of the appointment hereunder of a successor CDI Depositary with respect to one or more Series of Securities, every such successor CDI Depositary so appointed shall execute, acknowledge and deliver to the Company and to the retiring CDI Depositary an instrument accepting such appointment, and thereupon the resignation or removal of the retiring CDI Depositary shall become effective and such successor CDI Depositary, without any further act, deed or conveyance shall become vested with all the rights, powers, agencies and duties of the retiring CDI Depositary, with like effect as if originally named as CDI Depositary hereunder; provided, however, on the request of the Company or the successor CDI Depositary, such retiring CDI Depositary shall, upon payment of all amounts due and payable to it pursuant to Section 3.04 hereof, execute and deliver an instrument transferring to such successor CDI Depositary all the rights and powers of the retiring CDI Depositary and shall duly assign, transfer and deliver to such successor CDI Depositary all property, records and money held by such retiring CDI Depositary hereunder related to the affected Series and shall deliver each Global Security of such Series to the successor.

 

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(b) Upon request of any such successor CDI Depositary, the Company shall execute any and all instruments necessary for more fully and certainly vesting in and confirming to such successor CDI Depositary all such rights, powers and agencies referred to in paragraph (a) of this Section 3.07.

(c) No successor CDI Depositary shall accept its appointment unless at the time of such acceptance such successor CDI Depositary shall be eligible under this Article.

(d) Upon acceptance of appointment by any successor CDI Depositary as provided in this Section 3.07, the Company shall give notice thereof to the Depositary in accordance with Section 4.02 hereof. If the acceptance of appointment is substantially contemporaneous with the resignation of the CDI Depositary, the notice called for by the preceding sentence may be combined with the notice called for by Section 3.06 hereof. If the Company fails to give such notice within 15 days after acceptance of appointment by the successor CDI Depositary, the successor CDI Depositary shall promptly cause such notice to be given at the expense of the Company.

SECTION 3.08. Merger, Conversion, Consolidation or Succession to Business. Any corporation into which the CDI Depositary may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the CDI Depositary shall be a party, or any corporation succeeding to all or substantially all the corporate trust or agency business of the CDI Depositary, shall be the successor of the CDI Depositary hereunder, without the execution or filing of any paper or any further act on the part of any of the parties hereto; provided that such corporation shall be otherwise eligible under this Article. Written notice of any merger, conversion, consolidation or sale shall promptly be given to the Company and the Depositary.

ARTICLE IV

Miscellaneous Provisions

SECTION 4.01. Notices to CDI Depositary. Any request, demand, authorization, direction, notice, consent, or waiver or other document provided or permitted by this Agreement to be made upon, given or furnished to, or filed with:

(a) the CDI Depositary by the Company or the Depositary shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if made, given, furnished or filed in writing (which may be via facsimile) and delivered or mailed and received, first-class postage prepaid, to the CDI Depositary at its Corporate Trust Office, Attention: Corporate Trust Administration, Fax: +44 207 964 2536, or at any other address previously furnished in writing by the CDI Depositary to the Depositary, the Trustee and the Company, or

(b) the Company, by the CDI Depositary shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if made, given, furnished or filed in writing (which may be via facsimile) and delivered or mailed and received, first-class postage prepaid, to

 

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Etablissements Delhaize Frères et Cie “Le Lion” SA/NV

Square Marie Curie 40

1070 Brussels

Belgium

Attention: Richard James and William Schoofs (separate notices to each person)

Fax: +32 2 412 2118 (for Richard James) and +32 2 412 2118 (for William Schoofs)

or at any other address previously furnished in writing to the CDI Depositary by the Company.

The Company accepts that facsimile communication is not secure, and the CDI Depositary shall incur no liability solely by reason of receiving instructions from, or transmitting data to, the Company via such a non-secure method, provided the CDI Depositary acts without bad faith, willful misconduct or negligence.

The Company shall provide, and shall procure that each of its appointed agents provides, the CDI Depositary with a certificate (the “Incumbency Certificate”) in a form provided to the Company containing the names, telephone numbers and specimen signatures of each person authorized to execute documents on behalf of the Company (“Authorized Person”). The CDI Depositary is authorized to comply with and rely upon any notices, instructions or other communications believed by it to have been sent or given by an Authorized Person. The Company and any Authorized Person may amend the Incumbency Certificate or add any person to or delete any person from the Incumbency Certificate by delivering a certificate that adds or removes one or more Authorized Persons (an “Amendment Certificate”) to the Incumbency Certificate to the CDI Depositary. However, until the CDI Depositary actually receives such Amendment Certificate to the Incumbency Certificate, the CDI Depositary may rely upon and shall incur no liability for relying upon the original Incumbency Certificate.

SECTION 4.02. Notice to Depositary and Owners; Waiver. Where this Agreement provides for notice to the Depositary or owners of Book-Entry Interests of a Series of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided or as provided in the Letter of Representations) if in writing and mailed, first-class postage prepaid, to the Depositary at the address notified to the CDI Depositary, in each case not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice. Where this Agreement provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by the Depositary shall be filed with the CDI Depositary, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver, and such waiver shall be the equivalent of such notice.

If any Series of Securities are listed on the Luxembourg Stock Exchange and the rules of that stock exchange so require, notices shall also be published in a daily leading newspaper with general circulation in Luxembourg (expected to be the Luxemburger Wort).

 

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In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice by mail, then such notification as shall be made with the approval of the CDI Depositary shall constitute a sufficient notification for every purpose hereunder.

SECTION 4.03. Effect of Heading. The Article and Section headings herein are for convenience only and shall not affect the construction hereof.

SECTION 4.04. Successors and Assigns. All covenants and agreements in this Agreement by the Company shall bind its successors and assigns, whether so expressed or not.

SECTION 4.05. Separability Clause. In case any provision in this Agreement, the Indenture or the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions hereof and thereof shall not in any way be affected or impaired thereby. The parties to any such agreement shall endeavor in good faith negotiations to replace the invalid, void or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, void or unenforceable provisions.

SECTION 4.06. Benefits of Agreement. Nothing in this Agreement, the Securities or the Indenture, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder, any benefits or any legal or equitable right, remedy or claim under this Agreement. The owners from time to time of the Book-Entry Interests shall be parties to this Agreement and shall be bound by all of the terms and conditions hereof and of the Indenture and the Securities, by their acceptance of delivery of such Book-Entry Interests.

SECTION 4.07. Governing Law. This agreement shall be governed by, and construed in accordance with, the laws of the State of New York without regard to the applicable principles of conflicts of laws to the extent that the application of the laws of another jurisdiction would be required thereby.

SECTION 4.08. Consent to Jurisdiction; Appointment of Agent for Service of Proof; Waiver of Immunities. By the execution and delivery of this Agreement the Company irrevocably (i) agrees that any legal suit, action or proceeding against the Company arising out of or based upon this Agreement or the transactions contemplated hereby may be instituted in any United States Federal or state court in the Borough of Manhattan, The City of New York and (ii) waives, to the fullest extent it may effectively do so, any objection which it may now or hereafter have to the laying of venue of any such proceeding. The Company has appointed Corporation Service Company at 1133 Avenue of the Americas, Suite 3100, New York, NY 10036-6710, USA as its authorized agent (the “Authorized Agent”) upon whom process may be served in any such action arising out of or based on the Indenture, the Securities or the transactions contemplated hereby which may be instituted in any New York court, expressly consents to the jurisdiction of any such court in respect of any such action, and waives any other requirements of or objections to personal jurisdiction with respect thereto. Such

 

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appointment shall be irrevocable. The Company represents and warrants that the Authorized Agent has agreed to act as such agent for service of process and agrees to take any reasonable action, including the filing of any and all documents and instruments that may be necessary to continue such appointment in full force and effect as aforesaid. Service of process upon the Authorized Agent and written notice of such service to the Company shall be deemed, in every respect, effective service of process upon the Company.

To the extent that the Company has or hereinafter may acquire any immunity from jurisdiction of any court or from any legal process (whether through service of notice, attachment prior to judgment, attachment in aid of execution or otherwise) with respect to itself or its property, the Company hereby irrevocably waives such immunity in respect of its obligations under this Agreement to the fullest extent permitted by law.

SECTION 4.09. Counterparts. This Agreement may be executed in any number of counterparts by the parties hereto on separate counterparts, each of which, when so executed and delivered, shall be deemed an original, but all such counterparts shall together constitute one and the same instrument.

SECTION 4.10. Inspection of Agreement. A copy of this Agreement shall be available upon reasonable prior written notice at all reasonable times during normal business hours at the Corporate Trust Office of the CDI Depositary for inspection by any owner of Book-Entry Interests.

SECTION 4.11. Satisfaction and Discharge. This Agreement upon a Company Order shall cease to be of further effect with respect to the Securities of a Series, and the CDI Depositary, at the expense of the Company, shall execute proper instruments provided to it acknowledging satisfaction and discharge of this Agreement with respect to Securities of such Series, when (i) all obligations of the Company with respect to Securities of such Series under the Indenture have been satisfied and discharged pursuant to the provisions thereof or Definitive Registered Securities have been issued with respect to such Series and the corresponding Global Securities have been canceled in accordance with the provisions of Section 2.05 or 2.06, (ii) the Company has paid or caused to he paid all sums payable hereunder by the Company with respect to the Securities of such Series and (iii) the Company has delivered to the CDI Depositary an Officers’ Certificate and an Opinion of Counsel, stating that all conditions precedent herein provided relating to the satisfaction and discharge of this Agreement with respect to the Securities of such Series have been complied with.

SECTION 4.12. Amendments. The Company and the CDI Depositary may amend this Agreement without the consent of the Depositary or the owners of Book-Entry Interests of a Series:

(a) to cure any ambiguity, omission, defect or inconsistency;

(b) to add to the covenants and agreements of the CDI Depositary or the Company;

 

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(c) to evidence or effectuate the assignment of the CDI Depositary’s rights and duties to a qualified successor, as provided herein;

(d) to comply with any requirements of the Securities Act, the Exchange Act, the U.S. Investment Company Act of 1940, as amended, the TIA, Belgian securities laws and/or tax laws or any other applicable law, rule or regulation; or

(e) to modify, alter, amend or supplement this Agreement in any other manner that is not adverse to the Depositary or the owners of Book-Entry Interests of such Series.

No amendment that affects the Depositary or the owners of Book-Entry Interests of any Series may be made to this Agreement without the written consent of the Depositary or the owners of Book-Entry Interests of such Series, as the case may be.

SECTION 4.13. CDI Depositary to Execute Amendments. The CDI Depositary shall duly execute and deliver any amendment authorized pursuant to Section 4.12, if the amendment does not adversely affect the rights, duties, liabilities or immunities of the CDI Depositary. If it does, the CDI Depositary may but need not execute and deliver such amendment. In executing and delivering such amendment the CDI Depositary shall be entitled to receive indemnity reasonably satisfactory to it and to receive, and shall be fully protected in reasonably relying upon, an Officers’ Certificate (which need only cover the matters set forth in clause (a) below) and an Opinion of Counsel stating that:

(a) such amendment is authorized or permitted by this Agreement;

(b) the Company has all necessary corporate power and authority to execute and deliver the amendment and that the execution, delivery and performance of such amendment has been duly authorized by all necessary corporate action;

(c) the execution, delivery and performance of the amendment do not conflict with, or result in the breach of or constitute a default under any of the terms, conditions or provisions of (i) this Agreement, (ii) the Articles of Association of the Company (Statuen) or (iii) any law or regulation applicable to the Company;

(d) such amendment has been duly and validly executed and delivered by the Company, and this Agreement together with such amendment constitutes a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, insolvency or similar laws affecting creditors’ rights generally and general equitable principles.

SECTION 4.14. Effect of the Agreement. Nothing in this Agreement shall affect the legal rights of any holder of any Global Security or the obligations of the Company or the Trustee to such holder.

SECTION 4.15. No Recourse. No director, officer, employee, incorporator or shareholder of the Company shall have any liability for any obligations of the Company under the Certificated Depositary Interests, the Global Securities or

 

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this Agreement or for any claim based on, in respect of, or by reason of, such obligations or their creation, and each holder of or owner of a beneficial interest in a Certificated Depositary Interest or Global Security by accepting such interest waives and releases all such liability, which waiver and release are part of the consideration for issuance of the Global Securities and Certificated Depositary Interests.

 

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IN WITNESS WHEREOF the parties have caused this Agreement to be duly executed as of the date first written above.

 

DELHAIZE GROUP SA/NV,
by:  

 

Name:  
Title:  

THE BANK OF NEW YORK MELLON,

as CDI Depositary,

by:  

 

Name:  
Title:  

Signature page to the Deposit Agreement


APPENDIX A

CERTIFICATED DEPOSITARY INTERESTS

(Representing Global Securities )

THE BANK OF NEW YORK MELLON

CERTIFICATED DEPOSITARY INTERESTS

REPRESENTING INTERESTS IN THE

[    ]% SENIOR SECURITIES DUE [    ] OF

THE DELHAIZE GROUP SA/NV

(Incorporated under the laws of the Kingdom of Belgium)

The Bank of New York Mellon, as depositary (hereinafter called the “CDI Depositary”), hereby certifies that Cede & Co., or registered assigns IS THE OWNER OF                      in aggregate principal amount of Certificated Depositary Interests representing 100% of the [    ]% Securities due [    ] in global bearer form issued on [    ] (herein called the “Global Securities”) of Delhaize Group SA/NV, a société anonyme organized under the laws of the Kingdom of Belgium (herein called the “Company”). At the date hereof, this Certificated Depositary Interest represents Global Securities in an equal aggregate principal amount subject to the Deposit Agreement (as defined below) and held by the National Bank of Belgium (herein called the “Custodian”). The CDI Depositary’s Corporate Trust Office is located at a different address than its principal executive office. Its Corporate Trust Office is located at 101 Barclay Street, New York, N.Y. 10286.

1. THE DEPOSIT AGREEMENT.

This Certificated Depositary Interest (herein called a “CDI”) is one of an issue, all issued and to be issued or to be issued upon the terms and conditions set forth in the deposit agreement, dated as of [], 2009 (herein called the “Deposit Agreement”), by and among the Company, the CDI Depositary, and the owners from time to time of beneficial interests in any CDI (herein called the “Book-Entry Interests”) issued thereunder in respect of the Global Securities. The Deposit Agreement sets forth the rights of owners of Book-Entry Interests (herein called the “Owners”) and the rights and duties of the CDI Depositary in respect of the Securities deposited thereunder and any and all other securities, property and cash from time to time received in respect of such Global Securities and held thereunder. Copies of the Deposit Agreement are on file at the CDI Depositary’s Corporate Trust Office in New York City.

The statements made in this CDI are summaries of certain provisions of the Deposit Agreement and are qualified by and subject to the detailed provisions of the Deposit Agreement, to which reference is hereby made. Capitalized terms defined in the Deposit Agreement and not defined herein shall have the meanings set forth in the Deposit Agreement.

 

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2. DEPOSIT OF BOOK ENTRY INTERESTS IN THE GLOBAL SECURITIES: ISSUANCE OF CERTIFICATED DEPOSITARY INTERESTS.

The CDI Depositary, as a participant in Euroclear and/or Clearstream hereby agrees to accept 100% of the book-entry interests in the Global Securities for the benefit of the Depositary and shall act as CDI Depositary in accordance with the terms of the Deposit Agreement. The CDI Depositary shall issue Certificated Depositary Interests with respect to its book-entry interests in the Global Securities in accordance with the Letter of Representations.

3. BOOK-ENTRY SYSTEM.

(a) Upon acceptance by DTC of a Certificated Depositary Interest for entry into its book-entry settlement system in accordance with the terms of the Letter of Representations, Book-Entry Interests will be issued by DTC and traded through DTC’s book-entry system, and ownership of such Book-Entry Interests shall be shown in, and the transfer of such ownership shall be effected through, records maintained by DTC or its successors or DTC Participants. Book-Entry Interests shall be transferable only as units representing authorized denominations of the Securities and in the manner contemplated by the Indenture.

(b) The Certificated Depositary Interest shall be issuable only to DTC, or successors of DTC or their respective nominees. Except as provided in Section 2.05 of the Deposit Agreement, no owner of Book-Entry Interests shall be entitled to receive a Security in definitive form on account of such ownership, and such owner’s interest therein shall be shown only in accordance with the procedures of DTC as set forth in the Letter of Representations.

(c) Notwithstanding the foregoing, nothing herein shall prevent the Company, the CDI Depositary or any agent of the Company or the CDI Depositary from giving effect to any written certification, proxy or other authorization furnished by the Depositary or impair, as between the Depositary and its DTC Participants, the operation of customary practices of the Depositary governing the exercise of the rights of a holder of a beneficial interest in any Certificated Depositary Interest.

4. TRANSFER OF CERTIFICATED DEPOSITARY INTERESTS.

The Company appoints the CDI Depositary as its agent for the sole purpose of maintaining at the CDI Depositary’s Corporate Trust Office records in which the CDI Depositary shall (i) record Cede & Co. as the initial owner of the Certificated Depositary Interests, (ii) record the transfer of ownership of the Certificated Depositary Interests and (iii) record the increases and decreases in the principal amount at maturity represented by the Certificated Depositary Interests. Ownership of a Certificated Depositary Interest cannot be transferred unless such transfer is noted in the records of the CDI Depositary. The CDI Depositary shall not recognize any transfer or exchange of ownership of Certificated Depositary Interests that does not comply with the provisions of this section. Unless and until the Global Securities are exchanged in whole or in part for other securities of the Company or for Definitive Registered Securities, the Certificated Depositary Interests owned by DTC may not be transferred except as a whole by DTC to a nominee of DTC or by a nominee of DTC to DTC or

 

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another nominee of DTC or by DTC or any such nominee to a successor of DTC or a nominee of such successor. The CDI Depositary shall treat the Person in whose name a Certificated Depositary Interest is recorded in the records of the CDI Depositary as the owner thereof for all purposes whatsoever and shall not be bound or affected by any notice to the contrary, other than an order of a court having jurisdiction over the CDI Depositary.

The foregoing paragraph shall not (i) impose an obligation on the CDI Depositary to record the interests in or transfers of Book-Entry Interests held by DTC Participants, or Persons that may hold Book-Entry Interests through DTC Participants or (ii) restrict transfers of such Book-Entry Interests held by DTC Participants or such Persons.

In connection with the CDI Depositary’s appointment as the Company’s agent under this section, the Company shall have such rights and obligations as regards removal of the CDI Depositary and appointment of a successor as are specified in Section 3.07 of the Deposit Agreement.

5. TRANSFER OF INTERESTS IN THE GLOBAL SECURITIES.

The CDI Depositary shall not transfer or lend any interest in the Global Securities except (i) the transfer and exchange of a Global Security pursuant to Section 2.07 of the Indenture, (ii) the replacement of a Global Security pursuant to Section 2.08 of the Indenture, (iii) upon delivery of a Global Security for cancellation pursuant to Section 2.11 of the Indenture and (iv) the transfer of any interest in a Global Security to a successor CDI Depositary appointed in accordance with Section 3.06 of the Deposit Agreement.

If:

(i) the Custodian ceases to operate the X/N System and no successor-operator has been appointed within 120 days after the date on which the Custodian gives notice of such fact to the Company and the Principal Paying Agent,

(ii) both Euroclear and Clearstream notify the Company or the CDI Depositary that they are unwilling or unable to continue to act as a clearing agent and no successor- clearing agent has been appointed within 15 days after the date on which notice of such fact is given,

(iii) if, as a result of any amendment to, or change in, the laws or regulations of Belgium, another Member State (as defined in Section 1.01 of the Indenture) or the United States (or any political sub-division of any of the foregoing) or of any authority therein or thereof having power to tax or in the interpretation, by a revenue authority or a court, or administration of such laws or regulations, which become effective after the Closing Date, the Company reasonably concludes that continuing to settle the Securities through the X/N System would require it to make a deduction or withholding from any payment in respect of the Securities, which deduction or withholding would not then be required in respect of Definitive Registered Securities,

 

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(iv) DTC notifies the Company or the CDI Depositary it is unwilling or unable to continue as depositary with respect to the Certificated Depositary Interests or if at any time it is unable to or ceases to be a clearing agency registered under the Exchange Act and, in either case, no successor-depositary registered as a clearing agency under the Exchange Act is appointed by the CDI Depositary at the Company’s request within 15 days after the date on which notice of such fact is given, or

(v) the CDI Depositary notifies the Company in writing under Section 3.06 of the Deposit Agreement that it is unwilling or unable to continue as CDI Depositary and no successor CDI Depositary has been appointed by the Company within 15 days after the date on which notice of such fact is given,

then the CDI Depositary shall upon written direction from the Principal Paying Agent notify the Depositary that interests in the corresponding Global Security in the form of Book-Entry Interests will be exchanged in whole for Definitive Registered Securities pursuant to Section 2.07 of the Indenture. Definitive Registered Securities shall be registered by the Company in such names and amounts as the Depositary shall specify upon cancellation of the corresponding Global Security, Certificated Depositary Interest and all Book-Entry Interests with respect thereto. The CDI Depositary agrees to take all such actions as are reasonable with respect to its interests in the corresponding Global Security held through Euroclear and/or Clearstream to give effect to the exchange of interests in the corresponding Global Security in the form of Definitive Registered Securities.

Exchange of Definitive Registered Securities pursuant to this section and issue of any certificate delivered in respect thereof shall be made free of any fees of the CDI Depositary to the Depositary or Beneficial Owner with respect thereto.

6. PAYMENT IN RESPECT OF A CERTIFICATED DEPOSITARY INTEREST AND GLOBAL SECURITIES.

(a) Whenever the CDI Depositary shall receive any payment on a Global Security, including any payments of Additional Amounts, the amount so received shall be distributed promptly to the Depositary on the corresponding payment date for such Global Security. So long as DTC is the Depositary, such payments shall be made in accordance with the Letter of Representations.

(b) The CDI Depositary shall forward to the Trustee, the Company and their respective agents, as the case may be, such information from its records as the Company may reasonably request to enable the Company or its agents to file necessary reports with governmental agencies, and the CDI Depositary, the Company and the Trustee or their agents may (but shall not be required to) file any such reports necessary to obtain benefits under any applicable tax treaties for the Depositary or Beneficial Owners of Book-Entry Interests.

(c) None of the Company, the Trustee, the Paying Agent, the Custodian, Euroclear, Clearstream, the CDI Depositary or any of their respective agents will have any responsibility or liability for any aspect of the records relating to payments made by the Depositary (or its direct or indirect participants) on account of Book-Entry Interests or for maintaining, supervising or reviewing any records relating to such Book-Entry Interests.

 

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(d) Notwithstanding any other provision of the Deposit Agreement, the CDI Depositary shall be required to pay to the Depositary only amounts (including Additional Amounts) received by the CDI Depositary with respect to the Global Security.

7. REDEMPTION OF SECURITIES AND BOOK-ENTRY INTERESTS.

In the event that the Company redeems all or any part of a Global Security pursuant to the Indenture and the terms of the Securities, the CDI Depositary shall promptly notify the Depositary of the principal amount redeemed and of the corresponding reduction of the same principal amount of the corresponding Certificated Depositary Interest. The CDI Depositary shall pay all such amounts received by it in connection with such redemption to the Depositary.

8. RECORD DATE.

Whenever (i) any payment is to be made in respect of a Global Security, (ii) the CDI Depositary shall receive notice of any action to be taken by the holder of a Global Security or (iii) whenever the Company deems it appropriate in respect of any other matter, the CDI Depositary may, but shall not be obligated to (except in the case of (ii)) fix a record date (the “Record Date”) (in the case of payments only, 14 days prior to the due date for such payment) for the determination of the principal amount represented by the Certificated Depositary Interests representing interests in such Global Security and the holders of such Certificated Depositary Interests who shall be entitled to receive payment in respect thereof, to take any such action or to act in respect of any such matter, which record date, if any, shall be the same date as that fixed with respect to the corresponding holder of a Global Security or holders, if any, of corresponding Definitive Registered Securities under the Indenture. Subject to the provisions of the Deposit Agreement, only the Depositary in whose name a Certificated Depositary Interest is recorded in the records of the CDI Depositary at the close of business on such record date shall be entitled to receive any such payment, to give instructions as to such action or to act in respect of any such matter.

9. ACTION IN RESPECT OF A CERTIFICATED DEPOSITARY INTEREST.

Promptly after receipt by the CDI Depositary of notice of any solicitation of consents or request for a waiver or other action (to be taken at a Meeting or otherwise) by the holder of a Global Security or holders of interests therein under the Indenture or by the CDI Depositary under the Deposit Agreement, the CDI Depositary shall mail to the Depositary a notice containing (i) such information as is contained in the notice received, (ii) a statement that the Depositary at the close of business on a specified record date (established in accordance with Section 2.08 of the Deposit Agreement) will be entitled, subject to the provisions of or governing such Certificated Depositary Interest or Global Security, as the case may be, to instruct the CDI Depositary as to the consent, waiver or other action (to be taken at a Meeting or otherwise), if any, pertaining to the Global Securities, the Deposit Agreement or the Indenture and (iii) a statement as to the manner in which such instructions may be given. Upon the written request of the Depositary received on or before the date

 

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established by the CDI Depositary for such purpose, but in no event later than the close of business (Belgian time) three Business Days preceding the date set for any action to be taken by the holders of the Global Securities or interests therein, the CDI Depositary shall endeavor insofar as practicable and permitted under the provisions of the Deposit Agreement or the Indenture, as the case may be, to obtain a Voting Certificate and a Proxy in the manner set forth in Appendix B to the Indenture (to the extent it is regarded as the holder of all or a portion of the Global Securities for the purpose of any such Meeting) and to take such action regarding the requested consent, waiver offer, or other action (to be taken at a Meeting or otherwise) in respect of all or only a portion of the principal amount at maturity of such Certificated Depositary Interest representing corresponding interests in the Global Security with respect to which instructions in accordance with any instructions set forth in such request have been received. In addition, the CDI Depositary will forward to the Depositary, or, based upon instructions received from the Depositary, to owners of Book-Entry Interests, all materials received by the CDI Depositary pertaining to any such solicitation, request or other action. The CDI Depositary agrees that the Depositary may grant proxies, sub-proxies or otherwise authorize DTC Participants (or Persons owning Book-Entry Interests through such DTC Participants) to provide such instructions to the CDI Depositary so that it may exercise any rights of a holder or take any other action which a holder is entitled to take under the Indenture. The CDI Depositary shall not itself exercise any discretion in the granting of consents or waivers or the taking of any other action in respect of a Global Security. Without prejudice to Section 2.06(c) of the Deposit Agreement, the records of the Depositary shall, absent manifest error, be conclusive evidence of the owners of the Book-Entry Interests and the principal amount at maturity represented by such Book-Entry Interests.

10. OFFER TO PURCHASE SECURITIES AND BOOK-ENTRY INTERESTS.

Upon receipt by the CDI Depositary as holder of the book-entry interest in the Global Securities of notice of an offer to purchase Securities pursuant to Section 3.01 of the Indenture, the CDI Depositary shall forward such notice to the Depositary with any additional instructions applicable to owners of Book-Entry Interests. Upon notice by the Depositary of the principal amount of such Book-Entry Interests tendered for purchase in response to such offer to purchase, such CDI Depositary will instruct the Custodian (through Euroclear and/or Clearstream) to surrender the applicable Global Security in accordance with the instructions set forth in such offer to purchase indicating the portion of the principal amount of such Global Security that is being tendered for purchase pursuant to the offer to purchase. Upon receipt of any payment resulting from an offer to purchase, the CDI Depositary shall pay any amounts received to the Depositary, indicate the principal amount of such Global Security reduced by the Trustee in connection with such offer to purchase, and notify the Depositary of a corresponding reduction in the principal amount of the applicable Certificated Depositary Interest.

11. TRANSFER.

(a) If the owner of a Book-Entry Interest in a Certificated Depositary Interest related to one Global Security wishes at any time to transfer such interest to a Person who wishes to take delivery thereof in the form of a Book-Entry Interest in a Certificated Depositary Interest relating to a second Global Security, then, to the

 

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extent permitted by any applicable regulation, upon receipt by the CDI Depositary of an order given by the Depositary or its authorized representative directing that a Book-Entry Interest relating to the second Global Security be increased by a specified principal amount and the Book-Entry Interest relating to the first Global Security be decreased in an equal principal amount, such CDI Depositary shall (i) promptly instruct Euroclear and/or Clearstream, as applicable, to instruct the Custodian to deliver the applicable Global Securities to the Principal Paying Agent and request that the Principal Paying Agent endorse Schedule A to such Global Securities to reflect the reduction in principal amount of the first Global Security and the corresponding increase in the second Global Security resulting from such transfer and (ii) notify the Depositary of the corresponding adjustments in the principal amounts of the Certificated Depositary Interests. The Depositary shall make such adjustments in accordance with the provisions of Section 2.04 of the Deposit Agreement.

(b) The Indenture sets forth certain transfer restrictions relating to exchanges or transfers between holders of the Global Securities and/or Definitive Registered Securities. Owners of Book-Entry Interests acknowledge that analogous transfer restrictions shall apply to transfers and exchanges described in this section. Accordingly, in the circumstances where documentation specified in the Indenture is required to be delivered to the Trustee in connection with any transfer or exchange involving a Global Security, such document shall be delivered to the CDI Depositary in connection with any analogous transfer or exchange involving Book-Entry Interest in such Global Security.

12. CHANGES AFFECTING A GLOBAL SECURITY.

Upon any reclassification of Securities or upon any recapitalization, reorganization, merger, assumption or consolidation or sale of assets affecting the Company or to which the Company is a party, any interests in securities that shall be received by the CDI Depositary in exchange for or in respect of the relevant Global Security shall be treated as an interest in a new Global Security or as part of such Global Security under the Deposit Agreement and any corresponding Certificated Depositary Interest shall thenceforth represent such Global Security, including such new securities so received.

 

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13. REPORTS.

The CDI Depositary shall promptly send to the Depositary a copy of any notices, reports and other communications received relating to the Company or any Securities that are received by the CDI Depositary as holder of the book-entry interests in the a Global Security.

14. INFORMATION REGARDING BELGIAN LAW.

The CDI Depositary shall inform DTC that for the Securities to be admitted in an exempt account in the X/N System (and for their holders to benefit from the related exemption to Belgian withholding tax) DTC should ensure that it does not hold any Certificated Depository Interest on behalf of any investor, such as a Belgian person, who does not qualify as an “Eligible Investor” for the purposes of article 4 of the Royal Decree of 26 May 1994.

“Eligible Investors,” as defined in article 4 of the Royal Decree of 26 May 1994, include, inter alia: (1) Belgian resident companies subject to corporate income tax within the meaning of Article 2, §1, 5°b of the Income Tax Code 1992 (“ITC 1992”); (2) without prejudice to Article 262, 1° and 5° of ITC 1992, Belgian insurance or pension undertakings within the meaning of Article 2, §3 of the Law of July 9, 1975 on supervision of insurance companies (other than those referred in points 1° and 3° of said Article); (3) State-linked social security organizations and institutions assimilated therewith within the meaning of Article 105, 2° of the Royal Decree of August 27, 1993 implementing ITC 1992; (4) non-residents of Belgium within the meaning of Article 105, 5° of said Royal Decree of August 27, 1993; (5) mutual funds within the meaning of Article 115 of said Royal Decree of August 27, 1993; (6) companies, entities or partnerships within the meaning of Article 227, 2° of ITC 1992 which are subject to non-resident income tax in Belgium in accordance with Article 233 of ITC 1992 and whose Securities are held as part of a taxable business activity in Belgium; (7) the Belgian State, with respect to its investments exempted from withholding tax in accordance with Article 265 of ITC 1992; (8) mutual funds organized under foreign law which are structured as an undivided estate managed by a management company on behalf of certificate holders, provided that their certificates are not publicly offered or otherwise marketed in Belgium; and (9) Belgian resident companies not referred to in point 1 above whose sole or principal activity consists in granting credits or loans.

15. ADDITIONAL AMOUNTS.

At least 30 days prior to the date the payment of Additional Amounts would be required to be made pursuant to Section 4.05 of the Indenture (unless the obligation to make such payment arises after the 30th day prior to that payment date, in which case the Company shall furnish the proceeding certificate promptly thereafter), the Company will furnish the CDI Depositary with an Officers’ Certificate stating the fact that Additional Amounts will be payable and the amount so payable. The CDI Depositary shall have no responsibility for determining whether the Depositary or any owner of a Book-Entry Interest is entitled to the payment of Additional Amounts, but shall be entitled to rely conclusively for this purpose on the Officers’ Certificate or on certifications from the Depositary. The Company shall, prior to the time on which the CDI Depositary is required to make such payment, pay to the CDI Depositary

 

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amounts equal to any Additional Amounts payable on such date by the CDI Depositary under the Deposit Agreement. Notwithstanding anything to the contrary provided above, the CDI Depositary shall pay or cause to be paid Additional Amounts only out of funds that shall be received by it for that purpose.

16. NATIONAL BANK OF BELGIUM.

Each of the CDI Depositary and the Company agree to recognize the National Bank of Belgium as the Custodian of the Global Securities.

17. CERTAIN DUTIES AND RESPONSIBILITY.

The CDI Depositary agrees to perform such duties as are specifically set forth in the Deposit Agreement. The CDI Depositary may perform or execute any of its duties or powers hereunder directly or, with prior written approval of the Company (which shall not be unreasonably withheld or delayed), through its agents and shall not be responsible for any willful misconduct or negligence of any agent appointed with due care and approved hereunder, which agent shall be responsible to the Company for its willful misconduct or negligence.

(a) The CDI Depositary assumes no obligation nor shall it be subject to any liability under the Deposit Agreement to the Depositary with respect to any Certificated Depositary Interest or any holder of Book-Entry Interests or any other Person hereunder or in connection herewith if, by reason of any circumstances beyond the control of the CDI Depositary, including acts of God, war and government action, including any laws, ordinances, regulations or the like which restrict or prohibit the CDI Depositary from doing or performing any act or thing that the terms of the Deposit Agreement provide shall be done or performed.

(b) The CDI Depositary shall not be liable for any act or omission to act, any action taken or omitted to be taken under the Deposit Agreement other than by reason of its own bad faith, willful misconduct or negligence in the performance of its obligations under the Deposit Agreement and in no event shall the CDI Depositary be liable to anyone for special, indirect or consequential damages or lost profits, arising in connection with the Deposit Agreement. In the absence of bad faith on its part, the CDI Depositary may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any written notice, request, direction, certificate, opinion or other document furnished to the CDI Depositary and conforming to the requirements of the Deposit Agreement, but in the case of any such written notice, request, direction, certificate, opinion or other document that by any provision hereof are required to be furnished to the CDI Depositary, the CDI Depositary shall be under a duty to examine the same to determine whether or not they conform to the requirements of the Deposit Agreement.

(c) The CDI Depositary assumes no obligation nor shall it be subject to any liability under the Deposit Agreement to any Depositary or any owner of Book-Entry Interests (including, without limitation, liability with respect to the validity or worth of the Securities), other than that it agrees to use its good faith and reasonable care in the performance its obligations under the Deposit Agreement.

 

A-9


(d) The CDI Depositary makes no representation or warranty and shall at no time have any responsibility for, or liability or obligation in respect of, the legality, validity, binding effect, adequacy or enforceability of the Global Securities, the performance and observance by the Company of its obligations under the Global Securities or the recoverability of any sum of interest or principal due or to become due from the Company in respect of the Global Securities.

(e) The CDI Depositary shall at no time have any responsibility for, or obligation or liability in respect of, the financial condition, creditworthiness, affairs, status or nature of the Company.

(f) The CDI Depositary shall not be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of any Global Security or in respect of the Certificated Depositary Interests, or take any other action or omit to take any action under the Deposit Agreement, which in its opinion may involve it in expense or liability, unless indemnity satisfactory to it against all expenses and liability be furnished as often as may be required.

(g) The CDI Depositary shall not be liable for any acts or omissions made by a successor CDI Depositary whether in connection with a previous act or omission of the CDI Depositary or in connection with a matter arising wholly after the removal or resignation of the CDI Depositary, unless such act or omissions of such successor CDI Depositary result from the bad faith, willful misconduct or negligence of the CDI Depositary.

(h) The CDI Depositary may own and deal in any class of securities of the Company and its Affiliates and in the Securities and Book-Entry Interests. The CDI Depositary may enter into other dealings with the Company or any of its Affiliates of any nature whatsoever.

(i) The CDI Depositary may conclusively rely on and shall be protected in acting upon written instructions from any authorized Director of the Company.

(j) The CDI Depositary may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection with respect to any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.

18. NOT RESPONSIBLE FOR OFFERING MATERIALS OR ISSUANCE OF SECURITIES.

The CDI Depositary does not make any representations as to the validity or sufficiency of any offering materials. The CDI Depositary shall not be accountable for the use or application by the Company of the proceeds of the Securities.

19. MONEY HELD IN TRUST.

Money held by the CDI Depositary in trust hereunder shall be segregated from other funds held by the CDI Depositary as required by law applicable laws or regulations. The CDI Depositary shall be under no obligation to invest or pay interest on any money received by it hereunder, except as otherwise agreed in writing with the Company.

 

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20. COMPENSATION AND REIMBURSEMENT.

The Company agrees:

 

  (a) to pay to the CDI Depositary from time to time such compensation as agreed between them in writing for all services rendered by it hereunder;

 

  (b) except as otherwise expressly provided herein, to reimburse the CDI Depositary upon its request for all reasonable expenses, disbursements and advances incurred or made by the CDI Depositary in accordance with any provision of the Deposit Agreement (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence, willful misconduct or bad faith; and

 

  (c) to indemnify the CDI Depositary and its Affiliates, employees and directors for, and to hold them harmless against, any and all loss, liability, claim, damage or expense incurred without negligence, willful misconduct or bad faith on their part, arising out of or in connection with the acceptance or administration of the Deposit Agreement and its duties hereunder, including the reasonable costs and expenses of defending themselves against or investigating any claim of liability in connection with the exercise or performance of any of its powers or duties hereunder.

The CDI Depositary shall notify the Company in writing of the commencement of any action or lien in respect of which indemnification may be sought promptly after the CDI Depositary becomes aware of such commencement (provided that the failure to make such notification shall not affect the CDI Depositary’s rights hereunder) and the Company shall be entitled to participate in, and to the extent it shall wish, to assume the defense thereof, including the employment of counsel reasonably satisfactory to the CDI Depositary; provided that the CDI Depositary may employ, at the Company’s expense, separate counsel if the CDI Depositary shall have reasonably concluded, upon advice of counsel, that there may be legal defenses available to it that are different from or in addition to those available to the Company; provided, however, that it is understood that the Company shall not, under any circumstances, be liable for the reasonable fees and expenses, as incurred, of more than one counsel at any one time to the CDI Depositary (except in the case where local counsel may also be required). The CDI Depositary shall not compromise or settle any such action or claim without the written consent of the Company, which consent shall not be unreasonably withheld.

The obligations of the Company under this section to compensate and indemnify the CDI Depositary and to pay or reimburse the CDI Depositary for expenses, including reasonable attorney’s fees, disbursements and advances, shall survive the repayment of any Security, resignation or removal of the CDI Depositary and satisfaction, discharge or other termination of the Deposit Agreement.

 

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The CDI Depositary shall not be responsible for (i) taxes and other governmental charges (except for liabilities for failure to backup withhold under relevant U.S. tax law) or (ii) such registration fees as may be in effect for the registration from time to time of transfers of interests in the Certificated Depositary Interests.

21. CDI DEPOSITARY REQUIRED; ELIGIBILITY.

At all times when there is a CDI Depositary hereunder, such CDI Depositary shall be a corporation organized and doing business under the laws of the United States of America, any State thereof or the District of Columbia, having, together with its parent, a combined capital and surplus of at least $50,000,000, subject to supervision or examination by Federal, State or District of Columbia authority, willing to act on reasonable terms. Such corporation shall have its principal place of business in the Borough of Manhattan, The City of New York, if there be such a corporation in such location willing to act upon reasonable and customary terms and conditions. If such corporation, or its parent, publishes reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority, then for the purposes of this section, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. The CDI Depositary shall have executed a Letter of Representations to DTC acceptable in form and substance to DTC and the Company pertaining to the Certificated Depositary Interests. The CDI Depositary hereunder shall at all times be the Trustee under the Indenture, subject to receipt of an Opinion of Counsel that the same Person is precluded by law from acting in such capacities. If at any time the CDI Depositary shall cease to be eligible in accordance with the provisions of this section, it shall resign immediately in the manner and with the effect hereinafter specified in Article 3 of the Deposit Agreement.

22. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.

(a) No resignation or removal of the CDI Depositary and, in the case of (i) below no appointment of a successor CDI Depositary pursuant to Article 3 of the Deposit Agreement shall become effective until (i) the acceptance of appointment by the successor CDI Depositary in accordance with the applicable requirements of Section 3.08 of the Deposit Agreement or (ii) the exchange of Definitive Registered Securities with respect to all outstanding Securities in accordance with Section 2.04 of the Deposit Agreement.

(b) The CDI Depositary may resign by giving written notice thereof to the Company and the Depositary, in accordance with Section 4.01 and Section 4.02 of the Deposit Agreement, not less than 60 days prior to the effective date of such resignation. The CDI Depositary may be removed at any time upon not less than 90 days’ notice by the filing with it and the Trustee of an instrument in writing signed on behalf of the Company and specifying such removal and the date when it is intended to become effective.

(c) Notwithstanding the provisions of clauses (a) and (b) of this section, if at any time:

(i) the CDI Depositary shall cease to be eligible under Section 3.05 of the Deposit Agreement and shall fail to resign after written request therefore by the Company or by the Depositary, or

 

A-12


(ii) the CDI Depositary shall become incapable of acting with respect to any Certificated Depositary Interest or shall be adjudged a bankrupt or insolvent, or a receiver or liquidator of the CDI Depositary or of its property shall be appointed or any public officer shall take charge or control of the CDI Depositary or of its property or affairs for the purpose of rehabilitation, conservation or liquidation,

then, in any such case, (i) the Company may immediately remove the CDI Depositary and appoint a successor CDI Depositary or (ii) the Depositary or CDI Depositary may, on behalf of itself and all others similarly situated, petition any court of competent jurisdiction for the removal of the CDI Depositary and the appointment of a successor CDI Depositary unless all Global Securities with respect to all outstanding Securities have been exchanged for Definitive Registered Securities in accordance with the Indenture. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, remove the CDI Depositary and appoint a successor CDI Depositary.

(d) If the CDI Depositary shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of CDI Depositary for any cause, the Company shall promptly appoint a successor CDI Depositary (other than the Company) and shall comply with the applicable requirements of Section 3.07 of the Deposit Agreement. If no successor CDI Depositary with respect to the Securities shall have been so appointed by the Company and accepted appointment in the manner required by Section 3.07 of the Deposit Agreement, the Depositary or CDI Depositary may, on behalf of itself and all others similarly situated, at the expense of the Company, petition any court of competent jurisdiction for the appointment of a successor CDI Depositary unless Definitive Registered Securities have been issued with respect to all outstanding Securities in accordance with the Indenture.

(e) The Company shall give, or shall cause such successor CDI Depositary to give, notice of each resignation and each removal of a CDI Depositary and each appointment of a successor CDI Depositary to the Depositary in accordance with Section 4.02 of the Deposit Agreement. Each notice shall include the name of the successor CDI Depositary and the address of its Corporate Trust Office.

23. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.

(a) In case of the appointment hereunder of a successor CDI Depositary, every such successor CDI Depositary so appointed shall execute, acknowledge and deliver to the Company and to the retiring CDI Depositary an instrument accepting such appointment, and thereupon the resignation or removal of the retiring CDI Depositary shall become effective and such successor CDI Depositary, without any further act, deed or conveyance shall become vested with all the rights, powers, agencies and duties of the retiring CDI Depositary, with like effect as if originally named as CDI Depositary hereunder; provided, however, on the request of the Company or the successor CDI Depositary, such retiring CDI Depositary shall, upon payment of all amounts due and payable to it pursuant to Section 3.04 of the Deposit Agreement,

 

A-13


execute and deliver an instrument transferring to such successor CDI Depositary all the rights and powers of the retiring CDI Depositary and shall duly assign, transfer and deliver to such successor CDI Depositary all property, records and money held by such retiring CDI Depositary hereunder and shall deliver each Global Security to the successor.

(b) Upon request of any such successor CDI Depositary, the Company shall execute any and all instruments necessary for more fully and certainly vesting in and confirming to such successor CDI Depositary all such rights, powers and agencies referred to in paragraph (a) of this section.

(c) No successor CDI Depositary shall accept its appointment unless at the time of such acceptance such successor CDI Depositary shall be eligible under Article 3 of the Deposit Agreement.

(d) Upon acceptance of appointment by any successor CDI Depositary as provided in this section, the Company shall give notice thereof to the Depositary in accordance with Section 4.02 of the Deposit Agreement. If the acceptance of appointment is substantially contemporaneous with the resignation of the CDI Depositary, the notice called for by the preceding sentence may be combined with the notice called for by Section 3.06 of the Deposit Agreement. If the Company fails to give such notice within 15 days after acceptance of appointment by the successor CDI Depositary, the successor CDI Depositary shall promptly cause such notice to be given at the expense of the Company.

24. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.

Any corporation into which the CDI Depositary may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the CDI Depositary shall be a party, or any corporation succeeding to all or substantially all the corporate trust or agency business of the CDI Depositary, shall be the successor of the CDI Depositary hereunder, without the execution or filing of any paper or any further act on the part of any of the parties hereto; provided that such corporation shall be otherwise eligible under Article 3 of the Deposit Agreement. Written notice of any merger, conversion, consolidation or sale shall promptly be given to the Company and the Depositary.

 

A-14

EX-5.1 4 dex51.htm EXHIBIT 5.1 Exhibit 5.1

Exhibit 5.1

 

Etablissements Delhaize Frères et

Cie “Le Lion” (Groupe Delhaize)

Square Marie Curie 40

1070 Brussels

Belgium

 

27 January 2009

        BRUSSELS
        Bastion Tower

Place du Champ de Mars 5

B-1050 Brussels

   T   +    32 2 504 7000
   Direct T   +    32 2 504 7605
   F   +    32 2 504 7200
   Direct F   +    32 2 404 7605
   E      vincent.macq@freshfields.com
   W      freshfields.com
   DOC ID      BRU1255871/6
   OUR REF      VMA
   YOUR REF     
   CLIENT MATTER NO.      124494-0039

Dear Sirs

 

Re: Etablissements Delhaize Frères et Cie “Le Lion” (Groupe Delhaize) - Registration Statement on Form F-3

1. We have acted as Belgian legal counsel to Etablissements Delhaize Frères et Cie “Le Lion” (Groupe Delhaize), a Belgian limited liability company (société anonyme/naamloze vennootschap) (the Company), in connection with the registration under the Securities Act of 1933, as amended (the Securities Act), pursuant to the Registration Statement on Form F-3 filed on 27 January 2009 (the Registration Statement) by the Company and its subsidiaries listed on Schedule 1 hereto (the Guarantors) with the Securities and Exchange Commission for the offering from time to time by the Company of an unspecified number or amount and aggregate initial offering price of senior unsecured debt securities of the Company (the Debt Securities), as set forth in the Registration Statement, the base prospectus contained therein (the Prospectus) and one or more supplements to the Prospectus (each, a Prospectus Supplement).

The Debt Securities may be offered from time to time under the Registration Statement, the Prospectus and one or more Prospectus Supplements pursuant to Rule 415 under the Securities Act. This opinion is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act. The Debt Securities will be issued under the Indenture (as defined in Schedule 2 hereto). Guarantees by the Guarantors that benefit the Debt Securities are made by the Guarantors under a cross guarantee agreement dated 21 May 2007 by and among the Company and the Guarantors.

For the purpose of this opinion, we have reviewed the originals or copies of, and relied upon the statements as to factual matters contained in, the documents listed in Schedule 2 hereto (the Documents).

Terms defined in Schedule 2 hereto shall have the same meaning when used in this letter.

Freshfields Bruckhaus Deringer LLP is a limited liability partnership registered in England and Wales with registered number OC334789. It is regulated by the Solicitors Regulation Authority. For regulatory information please refer to www.freshfields.com/support/legalnotice.

A list of the members (and of the non-members who are designated as partners) of Freshfields Bruckhaus Deringer LLP and their qualifications is available for inspection at its registered office, 65 Fleet Street, London EC4Y 1HS or at the above address. Any reference to a partner means a member, or a consultant or employee with equivalent standing and qualifications, of Freshfields Bruckhaus Deringer LLP or any of its affiliated firms or entities.

Abu Dhabi Amsterdam Bahrain Barcelona Beijing Berlin Bratislava Brussels Cologne Dubai Düsseldorf Frankfurt am Main Hamburg Hanoi Ho Chi Minh City Hong Kong London Madrid Milan Moscow Munich New York Paris Rome Shanghai Tokyo Vienna Washington.


Limitations

2. This opinion is subject to the following limitations:

 

(a) this opinion is confined to the laws with general applicability (dispositions d’intérêt général/wettelijke regels met algemene gelding) of Belgium, as they stand as at the date hereof and as such laws are currently interpreted in published authoritative case law of the Belgian courts (Belgian law); the Indenture and the Debt Securities are subject to the laws of the State of New York; we express no opinion with regard to matters subject to the laws of the State of New York or any laws other than Belgian law;

 

(b) we have considered such matters of Belgian law as we have considered necessary or appropriate, and to this aim we have, insofar as it relates to recent laws and case law, conducted such customary investigations as may reasonably be expected of a Belgian lawyer in the circumstances in which this opinion is being rendered; this opinion and any right or liability deriving therefrom shall exclusively be governed by, and construed in accordance with, Belgian law;

 

(c) we express no opinion as to the correctness of any representation (whether express or implied) given by any person under or by virtue of the Documents, save if and insofar as the matters represented are the subject matter of a specific opinion set out in Section 4 below;

 

(d) Belgian legal concepts are expressed in this opinion in English terms and not in their original Dutch or French terms; the concepts concerned may not be identical to the concepts described by the same English terms as they exist in the laws of other jurisdictions; accordingly, any issues of interpretation arising in respect of the Documents and this opinion will be determined by Belgian courts in accordance with Belgian law and we express no opinion on the interpretation that Belgian courts may make of any such expressions or descriptions;

 

(e) we have only examined the Indenture and the Global Debt Security Form with a view to understanding the nature and scope of the obligations to be undertaken thereunder by the Company, for the sole purpose of rendering an opinion on the specific matters set out in Section 4 below; accordingly, we have not considered, and express herein no opinion with respect to, any other matter;

 

(f) we have not been responsible for investigating or verifying the accuracy of the facts (or statements of non-Belgian law) or the reasonableness of any statements of opinion or intention contained in any Document, or for verifying that no material facts or provisions have been omitted therefrom; and

 

(g) this opinion speaks as of its date; no obligation is assumed to update this opinion or to inform any person of any changes of law or other matters coming to our knowledge and occurring after the date hereof, which may affect this opinion in any respect.

 

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Assumptions

3. In considering the Documents and in rendering this opinion, we have with your consent and without any further enquiry assumed:

 

(a) the genuineness of all signatures on, and the authenticity and completeness of, all documents submitted to us whether as originals or copies;

 

(b) the conformity to originals of all documents supplied to us as photocopies or facsimile copies;

 

(c) that the proceedings of each meetings referred to in items 6 and 7 of Schedule 2 hereto were duly conducted, that each such meeting was duly held and that the resolutions passed thereat were duly adopted in compliance with the Belgian Company Code and the Articles, were not revoked and remain in full force and effect;

 

(d) that the Indenture will be entered into, and the Debt Securities will be issued, in good faith for bona fide commercial reasons by the Company and on terms equivalent to arm’s length terms between independent parties, and that the Indenture does not, and the Debt Securities do not, conflict with the corporate interest of the Company;

 

(e) that the indenture which will be entered into between the Company and The Bank of New York Mellon, as trustee, will be substantially identical to the Indenture, and that the global note representing the Debt Securities will be substantially identical to the Global Debt Security Form;

 

(f) that the Company has not resolved to enter into liquidation (liquidation/vereffening) nor been deemed in a situation of cessation of payments within the meaning of the Law on bankruptcy of 8 August 1997 and, since the date of the certificate referred to in item 4 of Schedule 2 hereto, has not been declared bankrupt nor filed an application for a judicial composition (concordat judiciaire/gerechtelijk akkoord) under the Law on judicial composition of 17 July 1997;

 

(g) that all consents, approvals, notices, filings, publications and registrations which are necessary under any applicable laws or regulations (other than Belgian law) in order to permit the execution, delivery or performance of the Indenture and the issue, delivery and clearing of the Debt Securities will have been validly and timely made or obtained;

 

(h) that there has been no mistake of fact, fraud, duress or undue influence in relation to the Indenture and the Debt Securities;

 

(i) that, for the purpose of the Law of 16 July 2004 on the conflicts of law code, the habitual residence of the Company is located in Belgium;

 

(j) that, for the purpose of Council Regulation (EC) N°1346/2000 of 29 May 2000 on insolvency proceedings, the centre of main interests of the Company is located in Belgium;

 

3|7


(k) that there are no contractual or legal restrictions or obligations binding on the Company (other than may by contained in the Indenture or the Articles or pursuant to Belgian law binding on companies generally) which would affect this opinion (including any restrictions or obligations arising from any supplemental indenture (whether or not dated on or around the date of the Indenture) or any information incorporated at any time by reference in the Registration Statement); and

 

(l) that the Debt Securities will be issued under the Indenture by the Company only in the form of bonds (obligations/obligaties), within the meaning of article 485 and following of the Belgian Company Code.

Opinion

4. Based upon and subject to the foregoing limitations and assumptions, and subject to the qualifications set out below and any matters not disclosed to us, we are of the opinion that:

 

(a) the Company is validly existing as a limited liability company (société anonyme/naamloze vennootschap) under Belgian law;

 

(b) the Company has the corporate power to enter into and perform its obligations under the Indenture, to issue and deliver the Debt Securities under the Indenture and to perform its obligations under the Indenture; and

 

(c) the Company has taken all necessary corporate action to authorise the execution, delivery and performance of the Indenture.

Qualifications

5. Our opinion is subject to the following qualifications:

 

(a) this opinion is subject to all insolvency and other laws affecting the rights of creditors generally;

 

(b)

any obligation of the Company under the Indenture or Debt Securities which would be triggered by a change of control over the Company may not be valid or enforceable until (i) the rights granted by the Company in connection with such change of control have been approved by the shareholders meeting of the Company and (ii) the decision of the shareholders meeting of the Company recording such approval has been filed with the Commercial Court, in accordance with article 556 of the Belgian Company Code; on 22 May 2008, for the purpose of article 556 of the Belgian Company Code, the shareholders meeting of the Company approved the provision granting to the holders of the bonds, convertible bonds or medium-term notes that the Company may issue until 22 May 2009, in one or several offerings and tranches, denominated either in US Dollars or in Euros, with a maturity or maturities not exceeding 30 years, for a maximum aggregate amount of EUR 1.5 billion, the right to obtain the redemption, or the right to require the repurchase, of such bonds or notes for an amount not in excess of 101% of the outstanding principal amount plus accrued

 

4|7


 

and unpaid interest of such bonds or notes, in the event of a change of control of the Company, as would be provided in the terms and conditions relating to such bonds and/or notes; the decision of the shareholders meeting of the Company of 22 May 2008 recording such approval has been filed with the Clerk of the Commercial Court of Brussels; any obligation of the Company under the Indenture or Debt Securities which would be triggered by a change of control over the Company and which would be assumed by the Company after 22 May 2009 may not be valid or enforceable until the formalities described under (i) and (ii) above are satisfied in respect thereof; similarly, any such obligation of the Company assumed by it on or before 22 May 2009 which would not comply with the limitations and conditions approved by the shareholders meeting of the Company of 22 May 2008 (including the limitation of EUR 1.5 billion in respect of the maximum aggregate amount of bonds) may not be valid or enforceable until the formalities described under (i) and (ii) above are satisfied in respect thereof.

Benefit of Opinion

6. This opinion is addressed to you solely in connection with the registration under the Securities Act pursuant to the Registration Statement, the Prospectus and one or more Prospectus Supplements of the offering from time to time of the Debt Securities and, except with our prior written consent, it cannot be transmitted or disclosed to, or used or relied upon by, any other person or used or relied upon by you for any other purpose.

We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the use of our name in the Prospectus and any Prospectus Supplement forming a part of the Registration Statement under the caption “Legal Matters”. In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act and the rules and regulations thereunder.

Yours faithfully,

 

Freshfields Bruckhaus Deringer LLP

 

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SCHEDULE 1

 

Name

  

Jurisdiction of Organization

Delhaize America, Inc.    North Carolina, U.S.A.
Food Lion, LLC    North Carolina, U.S.A.
Boney Wilson & Sons, Inc.    North Carolina, U.S.A.
Risk Management Services, Inc.    North Carolina, U.S.A.
Hannaford Procurement Corp.    Maine, U.S.A.
Hannbro Company    Maine, U.S.A.
Hannaford Licensing Corp.    Maine, U.S.A.
Hannaford Bros. Co.    Maine, U.S.A.
Shop ‘n Save-Mass, Inc.    Massachusetts, U.S.A.
Victory Distributors, Inc.    Massachusetts, U.S.A.
Kash n’ Karry Food Stores, Inc.    Delaware, U.S.A.
FL Food Lion, Inc.    Florida, U.S.A.
Martin’s Foods of South Burlington, Inc.    Vermont, U.S.A.
J. H. Harvey Co., LLC    Georgia, U.S.A.

 

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SCHEDULE 2

 

1. The form of indenture between the Company and The Bank of New York Mellon, as trustee, filed as Exhibit 4.2 to the Registration Statement, containing terms and conditions of the Debt Securities (the Indenture);

 

2. The Registration Statement;

 

3. The form of global note representing the Debt Securities attached to the Indenture as [Exhibit A] (the Global Debt Security Form);

 

4. A copy of the co-ordinated version of the articles of association of the Company (statuts/statuten) dated 22 December 2008 (the Articles);

 

5. A certificate dated 27 January 2009 issued by the Clerk of the Commercial Court of Brussels stating that the Company has not been declared bankrupt nor filed a request for judicial composition (concordat judiciaire/gerechtelijk akkoord) over the last five years;

 

6. The minutes of the shareholders meeting of the Company held on 22 May 2008 approving, among other things, the provisions of bonds granting to their holders the right to obtain the redemption of the bonds in the event of a change of control over the Company, and written evidence of the filing with the Clerk of the Commercial Court of Brussels of the relevant decisions recorded in such minutes pursuant to article 556 of the Belgian Company Code;

 

7. A certificate of an officer of the Company dated 27 January 2009 attaching the resolutions approved at a meeting of the board of directors of the Company held on 15 January 2009 authorising, among other things, the execution of the Indenture and the filing of the Registration Statement with the Securities and Exchange Commission;

 

8. A power of attorney dated 27 January 2009 granting to Richard James the authority to execute and deliver the Indenture on behalf of the Company.

*

 

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EX-5.2 5 dex52.htm EXHIBIT 5.2 Exhibit 5.2

Exhibit 5.2

 

LOGO  

HUNTON & WILLIAMS LLP

1900 K STREET, N.W.

WASHINGTON, D.C. 20006-1109

 

TEL    202 • 955 • 1500

FAX   202 • 778 • 2201

 

File No: 74604.000005

January 27, 2009

Etablissements Delhaize Frères et

Cie “Le Lion” (Groupe Delhaize)

Rue Osseghem 53

1080 Brussels

Belgium

 

Re:    Etablissements Delhaize Frères et Cie “Le Lion” (Groupe Delhaize)
   Registration Statement on Form F-3

Ladies and Gentlemen:

We have acted as U.S. counsel to Etablissements Delhaize Frères et Cie “Le Lion” (Groupe Delhaize), a Belgian limited liability company (société anonyme) (the “Company”), and its subsidiaries listed on Schedule 1 attached hereto (the “Guarantors”) in connection with the registration pursuant to a registration statement on Form F-3 (as may be amended from time to time, the “Registration Statement”), filed with the United States Securities and Exchange Commission (the “Commission”) pursuant to the Securities Act of 1933, as amended (the “Securities Act”), by the Company and the Guarantors of the offering from time to time, as set forth in the Registration Statement, the base prospectus contained therein (the “Prospectus”) and one or more supplements to the Prospectus (each, a “Prospectus Supplement”), (i) by the Company of an unspecified number or amount and aggregate initial offering price of senior unsecured debt securities of the Company (the “Debt Securities”); and (ii) the Guarantees (defined below). The Debt Securities will be issued under an indenture between the Company and The Bank of New York Mellon, as trustee (the “Trustee”) in the form filed as Exhibit 4.2 to the Registration Statement (the “Indenture”). Guarantees by the Guarantors that will cover the Debt Securities (the “Guarantees”) are made by the Guarantors under a cross guarantee agreement, dated as of May 21, 2007 (the “Cross Guarantee Agreement”), by and among the Company and the Guarantors. The Debt Securities may be issued, sold and delivered from time to time under the Registration Statement, the Prospectus and one or more Prospectus Supplements pursuant to Rule 415 under the Act. This opinion is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act, and no opinion is expressed herein as to any matter pertaining to the contents of the Registration Statement or the Prospectus (as defined below), other than the enforceability of the Debt Securities and the Guarantees. Capitalized terms used herein but not otherwise defined have the meanings ascribed to them in the Indenture.

The Indenture, the Debt Securities and the Cross Guarantee Agreement are referred to herein collectively as the “Operative Documents.” Kash n’ Karry Food Stores, Inc., a Delaware


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January 27, 2009

Page 2

 

corporation (“Kash n’ Karry”), J.H. Harvey Co., LLC, a Georgia limited liability company (“Harvey”), and FL Food Lion, Inc., a Florida corporation (“FL Food Lion”), are referred to herein as the “Covered Guarantors.”

We have examined originals or certified copies of such corporate records of the Company and each of the Covered Guarantors and other certificates and documents of officials of the Company and each of the Covered Guarantor, public officials and others as we have deemed appropriate for purposes of this letter. We have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to authentic original documents of all copies submitted to us as conformed and certified or reproduced copies.

Based upon the foregoing and subject to the assumptions, exceptions, qualifications and limitations set forth herein, we are of the opinion that, as of the date hereof:

 

  1. When the Debt Securities have been duly authorized, executed, issued, authenticated and delivered by or on behalf of the Company and paid for, in the manner contemplated by the Registration Statement, the Prospectus and the applicable Prospectus Supplement and in accordance with the terms of the Indenture, the Debt Securities will be legally valid and binding obligations of the Company, enforceable against the Company in accordance with their terms.

 

  2. The Guarantees have been duly authorized by all necessary corporate action of each Covered Guarantor and, when the Debt Securities have been duly authorized, executed, issued, authenticated and delivered by or on behalf of the Company and paid for, in the manner contemplated by the Registration Statement, the Prospectus and the applicable Prospectus Supplement and in accordance with the terms of the Indenture, the Guarantees will be legally valid and binding obligations of the Guarantors, enforceable against each of them in accordance with their respective terms.

The opinions and other matters in this letter are qualified in their entirety and subject to the following:

 

A. We express no opinion as to the laws of any jurisdiction other than any published constitutions, treaties, laws, rules or regulations or judicial or administrative decisions (“Laws”) of the State of New York, the General Corporation Law of the State of Delaware, the Limited Liability Company Act of the State of Georgia and the Business Corporation Act of the State of Florida. Various matters concerning the Laws of: Belgium are addressed in the opinion of Freshfields Bruckhaus Deringer, Brussels, Belgium; North Carolina are addressed in the opinion of the Assistant General Counsel of Delhaize America, Inc., Salisbury, North Carolina; Maine and Massachusetts are addressed in the opinion of the General Counsel of Hannaford Bros. Co., Scarborough, Maine; and Vermont are addressed by Pierson Wadhams Quinn Yates & Coffrin, Burlington, Vermont. We express no opinion with respect to those matters herein and, to the extent elements of those opinions are necessary to the conclusions expressed herein, we have assumed such matters.


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January 27, 2009

Page 3

 

B. The opinions in paragraphs 1 and 2 relating to the enforceability of the Debt Securities and the Guarantees are subject to the following exceptions, limitations and qualifications: (i) the effect of bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium or other similar law relating to or affecting the rights and remedies of creditors, or the judicial application of foreign Laws or governmental actions affecting creditors rights; (ii) the effect of general principles of equity, whether enforcement is considered in a proceeding in equity or law (including the possible unavailability of specific performance or injunctive relief), concepts of materiality, reasonableness, good faith and fair dealing, and the discretion of the court before which any proceeding therefor may be brought; (iii) the unenforceability under certain circumstances under law or court decisions of provisions providing for the indemnification of or contribution to a party with respect to a liability where such indemnification or contribution is contrary to public policy; (iv) we express no opinion concerning the enforceability of: (a) the waiver of rights or defenses contained in Section 6.12 of the Indenture; (b) any provision requiring the payment of attorneys’ fees, where such payment is contrary to law or public policy; (c) any provision permitting, upon acceleration of the Debt Securities, collection of that portion of the stated principal amount thereof which might be determined to constitute unearned interest thereon; or (d) any provision to the extent it requires any party to indemnify any other person against loss in obtaining the currency due following a court judgment rendered in another currency.

 

C. With your consent, we have assumed: (i) the Registration Statement will have become automatically effective upon filing with the Commission under the Securities Act and will remain effective through any offer and sale of Debt Securities; (ii) the Indenture has been duly authorized by, and will be duly executed and delivered by, the Company and the Trustee, and that at the time of execution, authentication, issuance and delivery of the Debt Securities, the Indenture will be a valid and binding obligation of the Trustee, enforceable against the Trustee in accordance with its terms; (iii) that the Cross Guarantee Agreement has been duly authorized, executed and delivered, as applicable, by the Company and the Guarantors (other than the Covered Guarantors) under the Laws of their respective jurisdictions of organization; (iv) the terms of any Debt Securities and of their issuance have been duly established in conformity with the Indenture and those Debt Securities will not include any provision that is unenforceable, (v) the Indenture will have become qualified under the Trust Indenture Act of 1939, as amended; (vi) for each type or series of Debt Securities the Company offers by means of a Prospectus, the Company will have prepared and filed with the Commission under the Securities Act a Prospectus Supplement which describes that type or series; and (vii) that the status of the Operative Documents as legally valid and binding obligations of the respective parties thereto is not affected by any: (a) breaches of, or defaults under, agreements or instruments; (b) violations of statutes, rules, regulations or court or governmental orders; or (c) failures to obtain required consents, approvals or authorizations from, or make required registrations, declarations or filings with, governmental authorities.

We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the use of our name in the Prospectus and any Prospectus Supplement forming a part of the


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January 27, 2009

Page 4

 

Registration Statement under the caption “Legal Matters”. In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act and the rules and regulations thereunder.

 

Sincerely,
/s/ HUNTON & WILLIAMS LLP
HUNTON & WILLIAMS LLP

12320/11578/02151/12012


SCHEDULE 1

 

Name

  

Jurisdiction of

Organization

Delhaize America, Inc.    North Carolina
Food Lion, LLC    North Carolina
Boney Wilson & Sons, Inc.    North Carolina
Risk Management Services, Inc.    North Carolina
Hannaford Procurement Corp.    Maine
Hannbro Company    Maine
Hannaford Licensing Corp.    Maine
Hannaford Bros. Co.    Maine
Shop ‘n Save-Mass, Inc.    Massachusetts
Victory Distributors, Inc.    Massachusetts
Kash n’ Karry Food Stores, Inc.    Delaware
FL Food Lion, Inc.    Florida
Martin’s Foods of South Burlington, Inc.    Vermont
J. H. Harvey Co., LLC    Georgia
EX-5.3 6 dex53.htm EXHIBIT 5.3 Exhibit 5.3

Exhibit 5.3

LOGO

January 27, 2009

Etablissements Delhaize Frères et

Cie “Le Lion” (Groupe Delhaize)

Square Marie Curie 40

1070 Brussels, Belgium

 

  Re: Registration Statement on Form F-3

Ladies and Gentlemen:

I am the Assistant General Counsel of Delhaize America, Inc., a corporation organized under the laws of the State of North Carolina (the “Company”), and am familiar with matters pertaining to the registration pursuant to a registration statement on Form F-3 (as may be amended from time to time, the “Registration Statement”), filed with the United States Securities and Exchange Commission (the “Commission”) pursuant to the Securities Act of 1933, as amended (the “Securities Act”), by Etablissements Delhaize Frères et Cie “Le Lion” (Groupe Delhaize), a Belgian limited liability company (société anonyme) (“Parent”), and its subsidiaries listed on Schedule 1 attached hereto, including the Covered Guarantors (defined below) (the “Guarantors”), of the offering from time to time, as set forth in the Registration Statement, the base prospectus contained therein (the “Prospectus”) and one or more supplements to the Prospectus (each, a “Prospectus Supplement”), (i) by Parent of an unspecified number or amount and aggregate initial offering price of senior unsecured debt securities of Parent (the “Debt Securities”); and (ii) the Guarantees (defined below). The Debt Securities may be issued, sold and delivered from time to time under the Registration Statement, the Prospectus and one or more Prospectus Supplements pursuant to Rule 415 under the Securities Act. This opinion is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act.

The Debt Securities will be issued under a form of indenture between Parent and The Bank of New York Mellon, as trustee (the “Trustee”) filed as Exhibit 4.2 to the Registration Statement (the “Indenture”). Guarantees by the Guarantors that will cover the Debt Securities (the “Guarantees”) are made by the Guarantors under a cross guarantee agreement, dated as of May 21, 2007, by and among Parent and the Guarantors filed as Exhibit 4.1 to the Registration Statement (the “Cross Guarantee Agreement”). Capitalized terms used herein but not otherwise defined have the meanings ascribed to them in the Indenture. The Company, Food Lion, LLC, a North Carolina limited liability company (“Food Lion”), Boney Wilson & Sons, Inc., a North Carolina corporation (“Boney”), and Risk Management Services, Inc., a North Carolina corporation (“RMS”), are referred to herein as the “Covered Guarantors.”


January 27, 2009

Page 2

 

In connection with this letter, I or persons under my supervision have examined the Registration Statement and the Prospectus contained therein, the Indenture and the Cross Guarantee Agreement. The Indenture and the Cross Guarantee Agreement are referred to herein collectively as the “Operative Documents.” I or persons under my supervision have also examined and relied upon originals or copies certified or otherwise identified to my satisfaction, of such records, documents and other instruments as in my judgment are necessary or appropriate to enable me to render the opinions expressed below. In such opinions, I have assumed the genuineness of all signatures other than with respect to the Covered Guarantors, the authenticity of all documents submitted to me as originals and the conformity to authentic original documents of all documents submitted to me as certified, conformed or photostatic copies. I have also assumed the legal capacity of natural persons, and the corporate or other power and due authorization of each person not a natural person to, other than the Covered Guarantors, execute and deliver each Operative Document to which it is a party and to consummate the transactions contemplated by each Operative Document to which it is a party, due execution and delivery of the Cross Guarantee Agreement by all parties thereto, other than the Covered Guarantors, and that the Cross Guarantee Agreement constitutes the legal, valid and binding obligation of each party thereto, other than with respect to the Covered Guarantors, enforceable against such party in accordance with its terms. Except as expressly provided for herein, I have made no investigation or review of any matters relating to the Covered Guarantors or any other person.

I am admitted to the practice of law in the State of North Carolina and do not hold myself out as an expert on the laws of any jurisdiction other than the laws of the State of North Carolina. I express no opinion as to the laws of any jurisdiction other than any published constitutions, treaties, laws, rules or regulations or judicial or administrative decisions of the State of North Carolina.

Based upon the foregoing and subject to the assumptions, exceptions, qualifications and limitations set forth herein, I am of the opinion that as of the date hereof:

 

  1. Each of the Company, Boney and RMS is validly existing as a corporation in good standing under the laws of the State of North Carolina. Food Lion is validly existing as a limited liability company in good standing under the laws of the State of North Carolina.

 

  2. Each of the Covered Guarantors has the corporate or other entity power to make the Guarantees and enter into the Cross Guarantee Agreement.

 

  3. The Cross Guarantee Agreement and the Guarantees have been duly and validly authorized by each of the Covered Guarantors, and the Cross Guarantee Agreement has been duly and validly executed and delivered by each of the Covered Guarantors.


January 27, 2009

Page 3

 

This letter and the matters addressed herein are as of the date hereof or such earlier date as is specified herein, and I undertake no, and hereby disclaim any, obligation to advise you of any change in any matter set forth herein, whether based on a change in the law, a change in any fact relating to the Company or any other Person, or any other circumstance. This opinion letter is limited to the matters expressly stated herein and no opinions are to be inferred or may be implied beyond the opinions expressly set forth herein.

I hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the use of my name in the Prospectus and any Prospectus Supplement forming a part of the Registration Statement under the caption “Legal Matters”. In giving this consent, I do not thereby admit that I am within the category of persons whose consent is required under Section 7 of the Securities Act and the rules and regulations thereunder.

 

Very truly yours,

 

/s/ G. Linn Evans

G. Linn Evans


SCHEDULE 1

 

Name

  

Jurisdiction of

Organization

Delhaize America, Inc.    North Carolina
Food Lion, LLC    North Carolina
Boney Wilson & Sons, Inc.    North Carolina
Risk Management Services, Inc.    North Carolina
Hannaford Procurement Corp.    Maine
Hannbro Company    Maine
Hannaford Licensing Corp.    Maine
Hannaford Bros. Co.    Maine
Shop ‘n Save-Mass, Inc.    Massachusetts
Victory Distributors, Inc.    Massachusetts
Kash n’ Karry Food Stores, Inc.    Delaware
FL Food Lion, Inc.    Florida
Martin’s Foods of South Burlington, Inc.    Vermont
J. H. Harvey Co., LLC    Georgia
EX-5.4 7 dex54.htm EXHIBIT 5.4 Exhibit 5.4

Exhibit 5.4

LOGO

January 27, 2009

Etablissements Delhaize Frères et

Cie “Le Lion” (Groupe Delhaize)

Square Marie Curie 40

1070 Brussels, Belgium

 

  Re: Registration Statement on Form F-3

Ladies and Gentlemen:

I am the General Counsel of Hannaford Bros. Co., a Maine corporation (the “Company”) and a wholly-owned subsidiary of Delhaize America, Inc., a North Carolina corporation (“DZA”), and am familiar with matters pertaining to the registration pursuant to a registration statement on Form F-3 (as may be amended from time to time, the “Registration Statement”), filed with the United States Securities and Exchange Commission (the “Commission”) pursuant to the Securities Act of 1933, as amended (the “Securities Act”), by Etablissements Delhaize Frères et Cie “Le Lion” (Groupe Delhaize), a Belgian limited liability company (société anonyme) (“Parent”), and its subsidiaries listed on Schedule 1 attached hereto, including the Covered Guarantors (defined below) (the “Guarantors”), of the offering from time to time, as set forth in the Registration Statement, the base prospectus contained therein (the “Prospectus”) and one or more supplements to the Prospectus (each, a “Prospectus Supplement”), (i) by Parent of an unspecified number or amount and aggregate initial offering price of senior unsecured debt securities of Parent (the “Debt Securities”); and (ii) the Guarantees (defined below). The Debt Securities may be issued, sold and delivered from time to time under the Registration Statement, the Prospectus and one or more Prospectus Supplements pursuant to Rule 415 under the Securities Act. This opinion is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act.

The Debt Securities will be issued under a form of indenture between Parent and The Bank of New York Mellon, as trustee (the “Trustee”) filed as Exhibit 4.2 to the Registration Statement (the “Indenture”). Guarantees by the Guarantors that will cover the Debt Securities (the “Guarantees”) are made by the Guarantors under a cross guarantee agreement, dated as of May 21, 2007, by and among Parent and the Guarantors filed as Exhibit 4.1 to the Registration Statement (the “Cross Guarantee Agreement”). Capitalized terms used herein but not otherwise defined have the meanings ascribed to them in the Indenture. The Company, Hannbro Company, a Maine corporation (“Hannbro”), Shop ‘n Save-Mass, Inc., a Massachusetts corporation (“Shop ‘n Save”), Hannaford Procurement Corp., a Maine corporation (“HPC”), Hannaford Licensing Corp., a Maine corporation (“HLC”), and Victory Distributors, Inc., a Massachusetts corporation (“Victory”), are referred to herein as the “Covered Guarantors.”


January 27, 2009

Page 2

 

In connection with this letter, I or persons under my supervision have examined the Registration Statement and the Prospectus contained therein, the Indenture and the Cross Guarantee Agreement. The Indenture and the Cross Guarantee Agreement are referred to herein collectively as the “Operative Documents.” I or persons under my supervision have also examined and relied upon originals or copies certified or otherwise identified to my satisfaction of such records, documents and other instruments as in my judgment are necessary or appropriate to enable me to render the opinions expressed below. In such opinions, I have assumed the genuineness of all signatures other than with respect to the Covered Guarantors, the authenticity of all documents submitted to me as originals and the conformity to authentic original documents of all documents submitted to me as certified, conformed or photostatic copies. I have also assumed the legal capacity of natural Persons, the corporate or other power and due authorization of each Person not a natural Person, other than the Covered Guarantors, to execute and deliver each Operative Document to which it is a party and to consummate the transactions contemplated by each such Operative Document, due execution and delivery of the Cross Guarantee Agreement by all parties thereto, other than the Covered Guarantors, and that the Cross Guarantee Agreement constitutes the legal, valid and binding obligation of each party thereto other than the Covered Guarantors, enforceable against such party in accordance with its terms. Except as expressly provided for herein, I have made no investigation or review of any matters relating to the Covered Guarantors or any other Person.

I am admitted to the practice of law in the States of Maine and Massachusetts and do not hold myself out as an expert on the laws of any jurisdiction other than the laws of the States of Maine and Massachusetts. I express no opinion as to the laws of any jurisdiction other than any published constitutions, treaties, laws, rules or regulations or judicial or administrative decisions (“Laws”) of the States of Maine and Massachusetts.

Based upon the foregoing and subject to the assumptions, exceptions, qualifications and limitations set forth herein, I am of the opinion that as of the date hereof:

1. Each of the Covered Guarantors is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation.

2. Each of the Covered Guarantors has corporate power to make the Guarantees and to enter into and perform the Cross Guarantee Agreement.

3. The Cross Guarantee Agreement and the Guarantees have been duly and validly authorized by each of the Covered Guarantors, and the Cross Guarantee Agreement has been duly and validly executed and delivered by each of the Covered Guarantors.

This letter and the matters addressed herein are as of the date hereof or such earlier date as is specified herein, and I undertake no, and hereby disclaim any, obligation to advise you of any change in any matter set forth herein, whether based on a change in the law, a change in any fact relating to the Company or any other Person, or any other circumstance. This opinion letter is limited to the matters expressly stated herein and no opinions are to be inferred or may be implied beyond the opinions expressly set forth herein.


January 27, 2009

Page 3

 

I hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the use of my name in the Prospectus and any Prospectus Supplement forming a part of the Registration Statement under the caption “Legal Matters”. In giving this consent, I do not thereby admit that I am within the category of persons whose consent is required under Section 7 of the Securities Act and the rules and regulations thereunder.

 

Very truly yours,
/s/ Emily Dickinson
Emily Dickinson


SCHEDULE 1

 

Name

  

Jurisdiction of

Organization

Delhaize America, Inc.    North Carolina
Food Lion, LLC    North Carolina
Boney Wilson & Sons, Inc.    North Carolina
Risk Management Services, Inc.    North Carolina
Hannaford Procurement Corp.    Maine
Hannbro Company    Maine
Hannaford Licensing Corp.    Maine
Hannaford Bros. Co.    Maine
Shop ‘n Save-Mass, Inc.    Massachusetts
Victory Distributors, Inc.    Massachusetts
Kash n’ Karry Food Stores, Inc.    Delaware
FL Food Lion, Inc.    Florida
Martin’s Foods of South Burlington, Inc.    Vermont
J. H. Harvey Co., LLC    Georgia
EX-5.5 8 dex55.htm EXHIBIT 5.5 Exhibit 5.5

Exhibit 5.5

Pierson Wadhams Quinn Yates & Coffrin

 

Douglas C. Pierson

William H. Quinn

Richard H. Wadhams, Jr.

Glen L. Yates, Jr.

James W. Coffrin

Lewis K. Sussman

Thomas M. Higgins

James E. Preston

Robin Ober Cooley

  LAW OFFICES  

253 South Union Street

Burlington, Vermont 05401

(802) 863-2888

Fax : (802) 863-2863

www.pwqy.net

January 27, 2009

Etablissements Delhaize Frères et

Cie “Le Lion” (Groupe Delhaize)

Rue Osseghem 53

1080 Brussels

Belgium

 

  Re: Registration Statement on Form F-3

Ladies and Gentlemen:

We have acted as special counsel in the State of Vermont to Martin’s Foods of South Burlington, Inc., a Vermont corporation (the “Company”), in connection with the registration pursuant to a registration statement on Form F-3 (as may be amended from time to time, the “Registration Statement”), filed with the United States Securities and Exchange Commission (the “Commission”) pursuant to the Securities Act of 1933, as amended (the “Securities Act”), by Etablissements Delhaize Frères et Cie “Le Lion” (Groupe Delhaize), a Belgian limited liability company (société anonyme) (“Parent”), and its subsidiaries listed on Schedule 1 attached hereto, including the Company (defined below) (the “Guarantors”), of the offering from time to time, as set forth in the Registration Statement, the base prospectus contained therein (the “Prospectus”) and one or more supplements to the Prospectus (each, a “Prospectus Supplement”), (i) by Parent of an unspecified number or amount and aggregate initial offering price of senior unsecured debt securities of Parent (the “Debt Securities”); and (ii) the Guarantees (defined below). The Debt Securities may be issued, sold and delivered from time to time under the Registration Statement, the Prospectus and one or more Prospectus Supplements pursuant to Rule 415 under the Act. This opinion is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Act.

The Debt Securities will be, issued under a form of indenture between Parent and The Bank of New York Mellon, as trustee (the “Trustee”) filed as Exhibit 4.2 to the Registration Statement (the “Indenture”). Guarantees by the Guarantors that will cover the Debt Securities (the “Guarantees”) are made by the Guarantors under a cross guarantee agreement, dated as of May 21, 2007, by and among Parent and the Guarantors filed as Exhibit 4.1 to the Registration Statement (the “Cross Guarantee Agreement”). Capitalized terms used herein but not otherwise defined have the meanings ascribed to them in the Indenture.


Pierson Wadhams Quinn Yates & Coffrin

CONTINUED

January 27, 2009

Page 2

 

In connection with this letter, we have examined the Registration Statement and the Prospectus contained therein, the Indenture and the Cross Guarantee Agreement. The Indenture and the Cross Guarantee Agreement are referred to herein collectively as the “Operative Documents.” We have also examined and relied upon originals or copies certified or otherwise identified to our satisfaction of such records, documents and other instruments as in our judgment are necessary or appropriate to enable us to render the opinions expressed below. In such opinions, we have assumed the genuineness of all signatures other than with respect to the Company, the authenticity of all documents submitted to us as originals and the conformity to authentic original documents of all documents submitted to us as certified, conformed or photostatic copies. We have also assumed the legal capacity of natural Persons, the corporate or other power and due authorization of each Person not a natural Person, other than the Company, to execute and deliver each Operative Document to which it is a party and to consummate the transactions contemplated by each such Operative Document, due execution and delivery of the Cross Guarantee Agreement by all parties thereto, other than the Company, and that the Cross Guarantee Agreement constitutes the legal, valid and binding obligation of each party thereto other than the Company, enforceable against such party in accordance with its terms. Except as expressly provided for herein, we have made no investigation or review of any matters relating to the Company or any other Person.

Based upon the foregoing and subject to the assumptions, exceptions, qualifications and limitations set forth herein, we are of the opinion that:

1. The Company is validly existing as a corporation in good standing under the Laws of the State of Vermont.

2. The Company has corporate power to make the Guarantees and to enter into and perform the Cross Guarantee Agreement.

3. The Cross Guarantee Agreement and the Guarantees have been duly and validly authorized by the Company, and the Cross Guarantee Agreement has been duly and validly executed and delivered by the Company.

We express no opinion as to the laws of any jurisdiction other than any published constitutions, treaties, laws, rules or regulations or judicial or administrative decisions (“Laws”) of the State of Vermont.

This letter and the matters addressed herein are as of the date hereof or such earlier date as is specified herein, and we undertake no, and hereby disclaim any, obligation to advise you of any change in any matter set forth herein, whether based on a change in the law, a change in any fact relating to the Company or any other Person, or any other circumstance. This opinion letter is limited to the matters expressly stated herein and no opinions are to be inferred or may be implied beyond the opinions expressly set forth herein.


Pierson Wadhams Quinn Yates & Coffrin

CONTINUED

January 27, 2009

Page 3

 

We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the use of our name in the Prospectus and any Prospectus Supplement forming a part of the Registration Statement under the caption “Legal Matters”. In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act and the rules and regulations thereunder.

Very truly yours,

/s/ Douglas C. Pierson

Douglas C. Pierson

DCP/krq


SCHEDULE 1

 

Name

  

Jurisdiction of Organization

Delhaize America, Inc.    North Carolina
Food Lion, LLC    North Carolina
Boney Wilson & Sons, Inc.    North Carolina
Risk Management Services, Inc.    North Carolina
Hannaford Procurement Corp.    Maine
Hannbro Company    Maine
Hannaford Licensing Corp.    Maine
Hannaford Bros. Co.    Maine
Shop ‘n Save-Mass, Inc.    Massachusetts
Victory Distributors, Inc.    Massachusetts
Kash n’ Karry Food Stores, Inc.    Delaware
FL Food Lion, Inc.    Florida
Martin’s Foods of South Burlington, Inc.    Vermont
J. H. Harvey Co., LLC    Georgia
EX-12.1 9 dex121.htm EXHIBIT 12.1 Exhibit 12.1

Exhibit 12.1

RATIO OF EARNINGS TO FIXED CHARGES

The following table sets forth our ratio of earnings to fixed charges for the periods presented under IFRS.

 

     Nine Months
Ended
September 30,
    Year Ended December 31,  
     2008
EUR
    2007
EUR
    2007
EUR
    2006
EUR
    2005
EUR
    2004
EUR
    2003
EUR
 

Earnings

              

Profit before tax and discontinued operations

   469.0     414.9     604.5     670.6     603.4     557.7     482.4  

Add fixed charges

   210.9     256.8     331.5     373.1     392.8     378.2     391.1  

Subtract capitalized interest

   (2.5 )   (2.5 )   (3.2 )   (2.9 )   (3.1 )   (1.8 )   (2.8 )

Earnings

   677.4     669.2     932.8     1,040.8     993.1     934.1     870.7  

Fixed Charges

              

Interest expensed and capitalized

   147.5     181.7     234.9     278.9     303.4     290.9     305.3  

Add amortized premiums, discounts and capitalized expenses related to indebtedness

   4.7     13.2     14.7     9.9     10.3     7.9     3.8  

Add estimate of the interest within rental expense

   58.7     61.9     81.9     84.3     79.1     79.4     82.0  

Fixed charges

   210.9     256.8     331.5     373.1     392.8     378.2     391.1  

Ratio of earnings to fixed charges

   3.21x     2.61x     2.81x     2.79x     2.53x     2.47x     2.23x  
EX-15.1 10 dex151.htm EXHIBIT 15.1 Exhibit 15.1

Exhibit 15.1

 

     

Bedrijfsrevisoren / Reviseurs d’Entreprises

Berkenlaan 8b

B-1831 Diegem

Belgium

     

Tel.: +32 2 800 20 00

Fax: +32 2 800 20 01

http://www.deloitte.be

 

AWARENESS LETTER OF THE INDEPENDENT REGISTERED PUBLIC

ACCOUNTING FIRM

We have reviewed, in accordance with the standards of the Public Company Accounting Oversight Board (United States) and in accordance with the recommended auditing standards on limited reviews applicable in Belgium, as issued by the “Institut des Reviseurs d’Entreprises/Instituut der Bedrijfsrevisoren”, the unaudited interim consolidated financial information of Etablissements Delhaize Frères et Cie “Le Lion” (Groupe Delhaize) SA, for the three-months and nine-months periods ended September 30, 2008 and 2007, and have issued our report dated November 5, 2008. As indicated in such report, because we did not perform an audit, we expressed no opinion on that consolidated financial information.

We are aware that our report referred to above is being incorporated by reference in this Registration Statement.

We also are aware that the aforementioned report, pursuant to Rule 436(c) under the Securities Act of 1933, is not considered a part of the Registration Statement prepared or certified by an accountant or a report prepared or certified by an accountant within the meaning of Sections 7 and 11 of that Act.

 

Diegem, Belgium

January 23, 2009

 

/s/ Philip Maeyaert

DELOITTE Bedrijfsrevisoren / Reviseurs d’Entreprises

BV o.v.v.e. CVBA / SC s.f.d. SCRL

Represented by Philip Maeyaert

EX-23.1 11 dex231.htm EXHIBIT 23.1 Exhibit 23.1

Exhibit 23.1

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We consent to the incorporation by reference in this Registration Statement on Forms F-3 and S-3 of our report dated June 26, 2008, relating to the financial statements of Etablissements Delhaize Frères et Cie “Le Lion” (Groupe Delhaize) S.A. and subsidiaries (“Delhaize Group”), and the effectiveness of Delhaize Group’s internal control over financial reporting as of December 31, 2007 appearing in the Annual Report on Form 20-F of Delhaize Group for the year ended December 31, 2007, and to the reference to us under the heading “Experts” in the Prospectus, which is part of this Registration Statement.

 

/s/ Philip Maeyaert
DELOITTE Bedrijfsrevisoren /Reviseurs d’Entreprises
BV o.v.v.e. CVBA / SC s.f.d. SCRL
Represented by Philip Maeyaert
Diegem, Belgium
January 23, 2009
EX-25.1 12 dex251.htm EXHIBIT 25.1 Exhibit 25.1

Exhibit 25.1

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM T-1

STATEMENT OF ELIGIBILITY

UNDER THE TRUST INDENTURE ACT OF 1939 OF A

CORPORATION DESIGNATED TO ACT AS TRUSTEE

¨ Check if an Application to Determine Eligibility of a Trustee Pursuant to Section 305(b)(2)

 

 

THE BANK OF NEW YORK MELLON

(Exact name of trustee as specified in its charter)

 

New York   13-5160382

(Jurisdiction of incorporation

if not a U.S. national bank)

 

(I.R.S. employer

identification no.)

 

One Wall Street, New York, N.Y.   10286

(Address of principal

executive offices)

  (Zip code)

Etablissements Delhaize Frères et Cie “Le Lion” (Groupe Delhaize)

(Exact name of obligor as specified in its charter)**

Delhaize Brothers and Co. “The Lion” (Delhaize Group)

(Translation of obligor’s name into English)

** The obligor’s charter (articles of association) specifies the obligor’s name in French, Dutch and English.

 

Belgium  

Square Marie Curie 40

1070 Brussels

Belgium

  98-0226019

(State or other jurisdiction of

incorporation or organization)

 

(Address, including zip code,

of obligor’s principal

executive offices)

  (I.R.S. Employer Identification No.)

See Table of Additional Obligors Below

[]% Senior Notes due 20[]

(Title of the indenture securities)


TABLE OF ADDITIONAL OBLIGORS

 

Name

  

State or Other

Jurisdiction of

Incorporation

  

I.R.S. Employer

Identification No.

Delhaize America, Inc. (1)

   North Carolina    56-0660192

Food Lion, LLC (1)

   North Carolina    56-2173154

Hannaford Bros. Co. (2)

   Maine    01-0085930

Kash n’ Karry Food Stores, Inc. (3)

   Delaware    95-4161591

FL Food Lion, Inc. (1)

   Florida    56-2051565

Risk Management Services, Inc. (1)

   North Carolina    55-0660192

Hannbro Company (4)

   Maine    01-0531895

Martin’s Foods of South Burlington, Inc. (4)

   Vermont    03-0222879

Shop ‘n Save-Mass., Inc. (4)

   Massachusetts    04-3022931

Hannaford Procurement Corp. (4)

   Maine    01-0512080

Boney Wilson & Sons, Inc. (4)

   North Carolina    56-0709778

J.H. Harvey Co., LLC (1)

   Georgia    05-0582869

Hannaford Licensing Corp. (4)

   Maine    01-0512079

Victory Distributors, Inc. (4)

   Massachusetts    04-2440100

 

(1) The address of the principal executive offices of these obligors is P.O. Box 1330, 2110 Executive Drive, Salisbury, North Carolina 28145-1330.
(2) The address of the principal executive offices of this obligor is 145 Pleasant Hill Road, Scarborough, Maine 04074.
(3) The address of the principal executive offices of this obligor is 3801 Sugar Palm Drive, Tampa Florida 33619.
(4) The address of the principal executive offices of these obligors is 145 Pleasant Hill Road, Scarborough, Maine 04074.

 

2


Item 1. General information.

Furnish the following information as to the Trustee:

 

  (a) Name and address of each examining or supervising authority to which it is subject.

 

Name

  

Address

Superintendent of Banks of the State of New York

   One State Street, New York, N.Y. 10004-1417

Federal Reserve Bank of New York

   33 Liberty Street, New York, N.Y. 10045

Federal Deposit Insurance Corporation

   550 17th Street, N.W., Washington, D.C. 20429

The New York Clearing House Association L.L.C.

   100 Broad Street, New York, N.Y. 10004

 

  (b) Whether it is authorized to exercise corporate trust powers.

Yes.

 

Item 2. Affiliations with Obligor.

If the obligor is an affiliate of the trustee, describe each such affiliation.

None.

 

Items 3-15. Not Applicable.

 

Item 16. List of Exhibits.

Exhibits identified in parentheses below are on file with the Securities and Exchange Commission and are incorporated herein by reference as exhibits hereto pursuant to Rule 7a-29 under the Trust Indenture Act of 1939 (the “Act”) and 17 C.F.R. 229.10(d).

 

1. A copy of the Organization Certificate of The Bank of New York Mellon (formerly The Bank of New York (formerly Irving Trust Company)) as now in effect, which contains the authority to commence business and a grant of powers to exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with Registration Statement No. 33-21672, Exhibit 1 to Form T-1 filed with Registration Statement No. 33-29637, Exhibit 1 to Form T-1 filed with Registration Statement No. 333-121195 and Exhibit 1 to Form T-1 filed as Exhibit 25.1 to Current Report on Form 8-K of Nevada Power Company filed on July 28, 2008 (File No. 000-52378).)

 

4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1 filed with Registration Statement No. 333-155238.)

 

6. The consent of the Trustee required by Section 321(b) of the Act. (Exhibit 6 to Form T-1 filed with Registration Statement No. 333-152856.)

 

7. A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority.

 

3


SIGNATURE

Pursuant to the requirements of the Act, the Trustee, The Bank of New York Mellon, a banking corporation organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in London, England, on the 27th day of January, 2009.

 

THE BANK OF NEW YORK MELLON, as Trustee
By:  

/s/ Mark Jeanes

Name:   Mark Jeanes
Title:   Assistant Vice President

 

4


Exhibit 7

Consolidated Report of Condition of

THE BANK OF NEW YORK MELLON

filed with Federal Financial Institutions Examination Council, Office of the Comptroller of the Currency, the Board

of Governors of the Federal Reserve System, Federal Deposit Insurance Corporation for the quarter ended

September 30, 2008

 

     Dollar amounts in
thousands

Cash and balances due from depository institutions

  

Noninterest-bearing balances and currency and coin

   44,129,000

Interest-bearing balances

   48,207,000

Securities

  

Held-to-maturity securities

   7,661,000

Available-for-sale securities

   39,616,000

Federal funds sold and securities purchased under agreements to resell

  

Federal funds sold in domestic offices

   877,000

Securities purchased under agreements to resell

   4,598,000

Loans and lease financing receivables

  

Loans and leases held for sale

   0

Loans and leases, net of unearned income

   46,218,000

Allowance for loan and lease losses

   324,000

Loans and leases, net of unearned income and allowance

   45,894,000

Trading assets

   6,900,000

Premises and fixed assets (including capitalized leases)

   1,087,000

Other real estate owned

   7,000

Investments in unconsolidated subsidiaries and associated companies

   858,000

Intangible assets

  

Goodwill

   5,026,000

Other intangible assets

   1,619,000

Other assets

   12,220,000

Total assets

   218,699,000

Deposits

  

In domestic offices

   103,521,000

Noninterest-bearing

   80,077,000

Interest-bearing

   23,444,000

In foreign offices, Edge and Agreement subsidiaries, and IBFs

   67,951,000

Noninterest-bearing

   2,259,000

Interest-bearing

   65,692,000

Federal funds purchased and securities sold under agreements to repurchase

  

Federal funds purchased in domestic offices

   4,367,000

Securities sold under agreements to repurchase

   76,000

Trading liabilities

   5,676,000

 

5


     Dollar amounts in
thousands
 

Other borrowed money (includes mortgage indebtedness and obligations under capitalized leases)

   12,514,000  

Subordinated notes and debentures

   3,490,000  

Other liabilities

   8,209,000  

Total liabilities

   205,804,000  

Minority interest in consolidated subsidiaries

   473,000  

Perpetual preferred stock and related surplus

   0  

Common stock

   1,135,000  

Surplus (exclude all surplus related to preferred stock)

   7,483,000  

Not available

  

Retained earnings

   6,564,000  

Accumulated other comprehensive income

   (2,760,000 )

Other equity capital components

   0  

Total equity capital

   12,422,000  

Total liabilities, minority interest, and equity capital

   218,699,000  

 

6

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