EXHIBIT 4.5
BERGEN BRUNSWIG CORPORATION
AND
CHASE MANHATTAN BANK AND TRUST COMPANY,
NATIONAL ASSOCIATION,
TRUSTEE
COMMON SECURITIES GUARANTEE AGREEMENT
Dated as of May 26, 1999
Table of Contents
Page
ARTICLE I.
DEFINITIONS AND INTERPRETATION
Section 1.01. Definitions and Interpretation............................... 1
ARTICLE II.
TRUST INDENTURE ACT
Section 2.01. Trust Indenture Act; Application............................. 5
Section 2.02. Lists of Holders of Securities............................... 5
Section 2.03. Reports by Common Guarantee Trustee......................... 5
Section 2.04. Periodic Reports to Common Guarantee Trustee................. 5
Section 2.05. Evidence of Compliance with Conditions Precedent............. 6
Section 2.06. Events of Default; Waiver.................................... 6
Section 2.07. Event of Default; Notice..................................... 6
Section 2.08. Conflicting Interests........................................ 6
ARTICLE III.
POWERS, DUTIES AND RIGHTS OF COMMON GUARANTEE TRUSTEE
Section 3.01. Powers and Duties of Common Guarantee Trustee................ 7
Section 3.02. Certain Rights of Common Guarantee Trustee................... 8
Section 3.03. Not Responsible for Recitals or Issuance of Guarantee........ 10
ARTICLE IV.
COMMON GUARANTEE TRUSTEE
Section 4.01. Common Guarantee Trustee; Eligibility........................ 11
Section 4.02. Appointment, Removal and Resignation of Common Guarantee
Trustee.................................................. 11
ARTICLE V.
GUARANTEE
Section 5.01. Guarantee..................................................... 12
Section 5.02. Waiver of Notice and Demand................................... 12
Section 5.03. Obligations Not Affected...................................... 12
Section 5.04. Rights of Holders............................................. 13
Section 5.05. Guarantee of Payment.......................................... 14
Section 5.06. Subrogation................................................... 14
Section 5.07. Independent Obligations....................................... 14
ARTICLE VI.
LIMITATION OF TRANSACTIONS; RANKING
Section 6.01. Limitation of Transactions.................................... 15
Section 6.02. Ranking....................................................... 15
ARTICLE VII.
TERMINATION
Section 7.01. Termination................................................... 16
ARTICLE VIII.
INDEMNIFICATION
Section 8.01. Exculpation................................................... 16
Section 8.02. Indemnification............................................... 16
ARTICLE IX
SUBORDINATION OF GUARANTEE PAYMENTS
Section 9.01 Subordination of Guarantee Payments............................ 17
Section 9.02 Payment Over of Proceeds upon Dissolution, Etc................. 17
Section 9.03 Prior Payment of Preferred Guarantee Payments upon
Acceleration of the Related Debt Securities............... 19
Section 9.04 No Payment When There is an Indenture Event of Default......... 19
Section 9.05 Payment Permitted in Certain Situations........................ 19
Section 9.06 Subrogation to Rights of Holders of Senior Indebtedness........ 20
Section 9.07 Provisions Solely to Define Relative Rights.................... 20
Section 9.08 Trustee to Effectuate Subordination............................ 21
Section 9.09 No Waiver of Subordination Provisions.......................... 21
Section 9.10 Notice to Trustee.............................................. 22
Section 9.11 Reliance on Judicial Order or Certificate of Liquidating Agent. 22
Section 9.12 Trustee Not Fiduciary for Holders of Preferred Securities...... 23
Section 9.13 Rights of Trustee as Holder of Senior Indebtedness;
Preservation of Trustee's Rights.......................... 23
ARTICLE X.
MISCELLANEOUS
Section 10.01. Successors and Assigns....................................... 23
Section 10.02. Amendments................................................... 23
Section 10.03. Notices...................................................... 24
Section 10.04. Benefit...................................................... 24
Section 10.05. Governing Law................................................ 24
Signatures.................................................................. 25
COMMON SECURITIES GUARANTEE AGREEMENT
This COMMON SECURITIES GUARANTEE AGREEMENT ("Guarantee Agreement"), dated
as of May 26, 1999, is executed and delivered by Bergen Brunswig Corporation, a
New Jersey corporation (the "Guarantor"), and Chase Manhattan Bank and Trust
Company, National Association, as trustee (the "Common Guarantee Trustee"), for
the benefit of the Holders (as defined herein) from time to time of the Common
Securities (as defined herein) of Bergen Capital Trust I, a Delaware statutory
business trust (the "Issuer");
WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the
"Declaration"), dated as of May 26, 1999, among the trustees of the Issuer named
therein, the Guarantor, as sponsor, and the holders from time to time of
undivided beneficial interests in the assets of the Issuer, the Issuer is
issuing on the date hereof $9,278,350 aggregate stated liquidation amount of
Common Securities designated the 7.80% Common Securities (the "Common
Securities");
WHEREAS, as incentive for the Holders to purchase the Common Securities,
the Guarantor desires to irrevocably and unconditionally agree, to the extent
set forth in this Guarantee Agreement, to pay to the Holders of the Common
Securities the Guarantee Payments (as defined herein) and to make certain other
payments on the terms and conditions set forth herein;
WHEREAS, the Guarantor is also executing and delivering a guarantee
agreement (the "Preferred Securities Guarantee Agreement") in substantially
identical terms to this Guarantee Agreement for the benefit of the holders of
the Preferred Securities (as defined herein) except that if an Indenture Event
of Default has occurred under the Indenture (as defined herein) and is
continuing, the rights of holders of the Common Securities to receive Guarantee
Payments under this Common Securities Guarantee Agreement are subordinated to
the rights of holders of Preferred Securities to receive guarantee payments
under the Preferred Securities Guarantee Agreement ("Preferred Guarantee
Payments");
NOW, THEREFORE, in consideration of the purchase by each Holder of Common
Securities, which purchase the Guarantor hereby agrees shall benefit the
Guarantor, the Guarantor executes and delivers this Guarantee Agreement for the
benefit of the Holders.
ARTICLE I.
DEFINITIONS AND INTERPRETATION
Section 1.01. Definitions and Interpretation.
In this Guarantee Agreement, unless the context otherwise requires:
(a) capitalized terms used in this Guarantee Agreement but not defined in
the preamble above have the respective meanings assigned to them in this Section
1.01;
(b) a term defined anywhere in this Guarantee Agreement has the same
meaning throughout;
(c) all references to "the Guarantee Agreement" or "this Guarantee
Agreement" are to this Guarantee Agreement as modified, supplemented or amended
from time to time;
(d) all references in this Guarantee Agreement to Articles and Sections are
to Articles and Sections of this Guarantee Agreement unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning when
used in this Guarantee Agreement unless otherwise defined in this Guarantee
Agreement or unless the context otherwise requires;
(f) a reference to the singular includes the plural and vice versa; and
(g) the following terms shall have the following meanings:
"Affiliate" has the same meaning as given to that term in Rule 405 of the
Securities Act of 1933, as amended, as in effect on the date of this Guarantee
Agreement.
"Authorized Officer" of a Person means any Person that is authorized to
bind such Person.
"Common Securities" means the securities representing common undivided
beneficial interests in the assets of the Issuer.
"Covered Person" means any Holder or beneficial owner of Common Securities.
"Distribution" has the meaning specified in the Declaration.
"Event of Default" means a default by the Guarantor on any of its payment
or other obligations under this Guarantee Agreement.
"Guarantee Payments" means the following payments or distributions, without
duplication, with respect to the Common Securities, to the extent not paid or
made by the Issuer: (i) any accrued and unpaid Distributions which are required
to be paid on such Common Securities to the extent the Issuer shall have funds
available therefor, (ii) the redemption price, including all accrued and unpaid
Distributions to the date of redemption (the "Redemption Price"), to the extent
the Issuer has funds available therefor, with respect to any Common Securities
called for redemption by the Issuer, and (iii) upon a voluntary or involuntary
dissolution, winding-up or termination of the Issuer (other than in connection
with the distribution of Subordinated Notes to the Holders in exchange for
Common Securities as provided in the Declaration), the lesser of (a) the
aggregate of the liquidation amount and all accrued and unpaid Distributions on
the Common Securities to the date of payment, to the extent the Issuer shall
have funds available therefor, and (b) the amount of assets of the Issuer
remaining available for distribution to Holders in liquidation of the Issuer (in
either case, the "Liquidation Distribution"). If an Indenture Event of Default
has occurred and is continuing, the rights of the holders of the Common
Securities to receive Guarantee Payments under this Common Securities Guarantee
Agreement are subordinated to the rights of Holders of Preferred Securities to
receive Preferred Guarantee Payments under the Preferred Securities Guarantee
Agreement.
"Guarantor" shall mean Bergen Brunswig Corporation, a New Jersey
corporation, or any permitted successor thereof under the Indenture, in its
capacity as guarantor under this Guarantee Agreement.
"Holder" shall mean any holder, as registered on the books and records of
the Issuer, of any Common Securities.
"Indemnified Person" means the Common Guarantee Trustee, any Affiliate of
the Common Guarantee Trustee, or any officers, directors, shareholders, members,
partners, employees, representatives or agents of the Common Guarantee Trustee.
"Indenture" means the Indenture for Subordinated Debt Securities dated as
of May 14, 1999 among the Guarantor and Chase Manhattan Bank and Trust Company,
National Association, as trustee, as supplemented by the Officers' Certificate
(as defined in the Indenture) dated as of May 24, 1999.
"Indenture Event of Default" shall mean any event defined as an "Event of
Default" under the Indenture.
"Majority in liquidation amount of the Common Securities" means, except as
provided by the Trust Indenture Act, Holder(s) of Common Securities voting
separately as a class, who vote Common Securities and the aggregate liquidation
amount (including the stated amount that would be paid on redemption,
liquidation or otherwise, plus accrued and unpaid Distributions to the date upon
which the voting percentages are determined) of the Common Securities voted by
such Holders represents more than 50% of the above stated liquidation amount of
all Common Securities.
"Officers' Certificate" means, with respect to any Person, a certificate
signed by two Authorized Officers of such Person. Any Officers' Certificate
delivered with respect to compliance with a condition or covenant provided for
in this Guarantee Agreement shall include:
(a) a statement that each officer signing the Certificate has read the
covenant or condition and the definition relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such officer
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, in the opinion of each such officer,
such condition or covenant has been complied with.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"Common Guarantee Trustee" means Chase Manhattan Bank and Trust Company,
National Association until a Successor Common Guarantee Trustee has been
appointed and has accepted such appointment pursuant to the terms of this
Guarantee Agreement and thereafter means each such Successor Common Guarantee
Trustee.
"Responsible Officer" means, with respect to the Common Guarantee Trustee,
any officer of the Common Guarantee Trustee with direct responsibility for the
administration of this Declaration, and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of that officer's knowledge of and familiarity with the particular
subject.
"Subordinated Notes" means the series of subordinated debt securities of
the Guarantor designated the 7.80% Subordinated Deferrable Interest Notes due
2039.
"Successor Common Guarantee Trustee" means a successor Common Guarantee
Trustee possessing the qualifications to act as Common Guarantee Trustee under
Section 4.01.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended.
ARTICLE II.
TRUST INDENTURE ACT
Section 2.01. Trust Indenture Act; Application.
(a) This Guarantee Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Guarantee Agreement and
shall, to the extent applicable, be governed by such provisions; and
(b) if and to the extent that any provision of this Guarantee
Agreement limits, qualifies or conflicts with the duties imposed by Sections 310
to 317, inclusive, of the Trust Indenture Act, such imposed duties shall
control.
Section 2.02. Lists of Holders of Securities.
(a) The Guarantor shall provide the Common Guarantee Trustee (i)
semiannually, not later than June 30 and December 31 of each year, a list, in
such form as the Common Guarantee Trustee may reasonably require, containing all
the information in the possession or control of the Guarantor, or any of its
Paying Agents other than the Common Guarantee Trustee, as to the names and
addresses of the Holders of Common Securities ("List of Holders") as of the
preceding June 15 or December 15, as the case may be, and (ii) at such other
times as the Common Guarantee Trustee may request in writing, within 30 days
after the receipt by the Guarantor of any such request, a list of similar form
and content as of a date not more than 15 days prior to the time such list is
furnished. The Common Guarantee Trustee may destroy any List of Holders
previously given to it on receipt of a new List of Holders; and
(b) the Common Guarantee Trustee shall comply with its obligations
under Sections 311(a), 311(b) and 312(b) of the Trust Indenture Act.
Section 2.03. Reports by Common Guarantee Trustee.
Within 60 days after May 15 of each year commencing May 15, 1999, the
Common Guarantee Trustee shall provide to the Holders of the Common Securities
such reports as are required by Section 313 of the Trust Indenture Act, if any,
in the form and in the manner provided by Section 313 of the Trust Indenture
Act. The Common Guarantee Trustee shall also comply with the requirements of
Section 313(d) of the Trust Indenture Act.
Section 2.04. Periodic Reports to Common Guarantee Trustee.
The Guarantor shall provide to the Common Guarantee Trustee such
documents, reports and information as required by Section 314 (if any) and the
compliance certificate required by Section 314 of the Trust Indenture Act in the
form, in the manner and at the times required by Section 314 of the Trust
Indenture Act.
Section 2.05. Evidence of Compliance with Conditions Precedent.
The Guarantor shall provide to the Common Guarantee Trustee such
evidence of compliance with any conditions precedent, if any, provided for in
this Guarantee Agreement which relate to any of the matters set forth in Section
314(c) of the Trust Indenture Act. Any certificate or opinion required to be
given by an officer pursuant to Section 314(c)(1) may be given in the form of an
Officers' Certificate.
Section 2.06. Events of Default; Waiver.
The Holders of a Majority in liquidation amount of Common Securities
may, by vote, on behalf of the Holders of all of the Common Securities, waive
any past Event of Default and its consequences. Upon such waiver, any such Event
of Default shall cease to exist, and any Event of Default arising therefrom
shall be deemed to have been cured, for every purpose of this Guarantee
Agreement, but no such waiver shall extend to any subsequent or other default or
Event of Default or impair any right consequent thereon.
Section 2.07. Event of Default; Notice.
(a) The Common Guarantee Trustee shall, within 90 days after the
occurrence of an Event of Default known to the Common Guarantee Trustee,
transmit by mail, first class postage prepaid, to the Holders of the Common
Securities, notices of all such Events of Default, unless such defaults have
been cured or waived before the giving of such notice, provided, that, the
Common Guarantee Trustee shall be protected in withholding such notice if and so
long as the board of directors, the executive committee, or a trust committee of
directors and/or Responsible Officers, of the Common Guarantee Trustee in good
faith determine that the withholding of such notice is in the interests of the
Holders of the Common Securities.
(b) The Common Guarantee Trustee shall not be deemed to have knowledge
of any Event of Default except any Event of Default as to which the Common
Guarantee Trustee shall have received written notice or a Responsible Officer
charged with the administration of the Declaration shall have obtained written
notice of.
Section 2.08. Conflicting Interests.
The Declaration and the Indenture shall be deemed to be specifically
described in this Guarantee Agreement for the purposes of clause (i) of the
first proviso contained in Section 310(b) of the Trust Indenture Act.
ARTICLE III.
POWERS, DUTIES AND RIGHTS OF COMMON GUARANTEE TRUSTEE
Section 3.01. Powers and Duties of Common Guarantee Trustee.
(a) This Guarantee Agreement shall be held by the Common Guarantee Trustee
for the benefit of the Holders of the Common Securities, and the Common
Guarantee Trustee shall not transfer this Guarantee Agreement to any Person
except a Holder of Common Securities exercising his or her rights pursuant to
Section 5.04(b) or to a Successor Common Guarantee Trustee on acceptance by such
Successor Common Guarantee Trustee of its appointment to act as Common Guarantee
Trustee. The right, title and interest of the Common Guarantee Trustee shall
automatically vest in any Successor Common Guarantee Trustee, and such vesting
and cessation of title shall be effective whether or not conveyancing documents
have been executed and delivered pursuant to the appointment of such Successor
Common Guarantee Trustee.
(b) If an Event of Default has occurred and is continuing, the Common
Guarantee Trustee shall enforce this Guarantee Agreement for the benefit of the
Holders of the Common Securities, provided that if an Indenture Event of Default
has occurred and is continuing, the rights of holders of the Common Securities
to receive Guarantee Payments under this Common Securities Guarantee Agreement
are subordinated to the rights of holders of Preferred Securities to receive
Preferred Guarantee Payments under the Preferred Securities Guarantee Agreement,
as provided in Article IX.
(c) The Common Guarantee Trustee, before the occurrence of any Event of
Default and after the curing or waiver of all Events of Default that may have
occurred:
(i) shall undertake to perform only such duties as are specifically
set forth in this Guarantee Agreement and in the terms of the Common Securities,
and no implied covenants, duties or obligations shall be read into this
Guarantee Agreement against the Common Guarantee Trustee; and
(ii) in the absence of bad faith on the part of the Common Guarantee
Trustee, the Common Guarantee Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Common Guarantee Trustee and
conforming to the requirements of this Guarantee Agreement; but in the case of
any such certificates or opinions that by any provision hereof are specifically
required to be furnished to the Common Guarantee Trustee, the Common Guarantee
Trustee shall be under a duty to examine the same to determine whether or not
they conform to the requirements of this Guarantee Agreement.
In case an Event of Default has occurred (that has not been cured or waived
pursuant to Section 2.06), the Common Guarantee Trustee shall exercise such of
the rights and powers vested in it by this Guarantee Agreement, and use the same
degree of care and skill in their exercise or use, as a prudent person would
exercise or use under the circumstances in the conduct of his or her own
affairs.
(d) No provision of this Guarantee Agreement shall be construed to relieve
the Common Guarantee Trustee from liability for its own negligent action, its
own negligent failure to act, or its own willful misconduct, except that:
(i) this subsection shall not be construed to limit subsection (c) of
this Section;
(ii) the Common Guarantee Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Common Guarantee
Trustee, unless it shall be proved that the Common Guarantee Trustee was
negligent in ascertaining the pertinent facts;
(iii) the Common Guarantee Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in accordance with
the direction of the Holders of not less than a Majority in liquidation amount
of the Common Securities at the time outstanding relating to the time, method
and place of conducting any proceeding for any remedy available to the Common
Guarantee Trustee, or exercising any trust or power conferred upon the Common
Guarantee Trustee under this Guarantee Agreement including, without limitation,
with respect to the Common Securities; and
(iv) no provision of this Guarantee Agreement shall require the Common
Guarantee 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 ground for believing
that the repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(e) Whether or not therein expressly so provided, every provision of this
Guarantee Agreement relating to the conduct or affecting the liability of or
affording protection to the Common Guarantee Trustee shall be subject to the
provisions of this Section.
Section 3.02. Certain Rights of Common Guarantee Trustee.
(a) Subject to the provisions of Section 3.01:
(i) the Common Guarantee Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note or other paper or document believed by it to be genuine and to
have been signed or presented by the proper party or parties;
(ii) any act of the Guarantor contemplated by this Guarantee Agreement
shall be sufficiently evidenced by an Officers' Certificate;
(iii) whenever, in the administration of this Guarantee Agreement, the
Common Guarantee Trustee shall deem it desirable that a matter be proved or
established before taking, suffering or omitting any action hereunder, the
Common Guarantee Trustee (unless other evidence is herein specifically
prescribed) may, in the absence of bad faith on its part, rely upon an Officers'
Certificate which, upon receipt of such request, shall be promptly delivered by
the Guarantor;
(iv) the Common Guarantee Trustee shall have no duty to see to any
recording, filing or registration of any instrument (or any recording, refiling
or registration thereof);
(v) the Common Guarantee Trustee may consult with counsel of its
selection and the written advice or opinion of such counsel with respect to
legal matters shall be full and complete authorization and protection in respect
of any action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon; such counsel may be counsel to the Guarantor or any of its
Affiliates, and may include any of its employees;
(vi) the Common Guarantee Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Guarantee Agreement at
the request or direction of any Holder, unless such Holder shall have offered to
the Common Guarantee Trustee reasonable security or indemnity against the costs,
expenses and liabilities that might be incurred by it in complying with such
request or direction;
(vii) the Common Guarantee 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, direction, consent,
order, bond, debenture, note or other paper or document, but the Common
Guarantee Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit and, if the Common
Guarantee Trustee shall determine to make such further inquiry or investigation,
it shall be entitled to examine the books, records and premises of the
Guarantor, personally or by agent or attorney;
(viii) the Common Guarantee Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Common Guarantee Trustee shall not be
responsible for any misconduct or negligence on the part of any agent or
attorney appointed with due care by it hereunder;
(ix) any action taken by the Common Guarantee Trustee or its agents
hereunder shall bind the Trust and the Holders of the Common Securities and the
signature of the Common Guarantee Trustee or its agents alone shall be
sufficient and effective to perform any such action; and no third party shall be
required to inquire as to the authority of the Common Guarantee Trustee to so
act, or as to its compliance with any of the terms and provisions of this
Guarantee Agreement, both of which shall be conclusively evidenced by the Common
Guarantee Trustee's or its agent's taking such action;
(x) whenever in the administration of this Guarantee Agreement the
Common Guarantee Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other action hereunder,
the Common Guarantee Trustee (i) may request instructions from the Holders of
the Common Securities which instructions may only be given by the Holders of the
same proportion in liquidation amount of the Common Securities as would be
entitled to direct the Common Guarantee Trustee under the terms of the Common
Securities in respect of such remedy, right or action, (ii) may refrain from
enforcing such remedy or right or taking such other action until such
instructions are received, and (iii) shall be protected in acting in accordance
with such instructions;
(xi) the Common Guarantee Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Common Guarantee Trustee shall not be
responsible for any misconduct or negligence on the part of any agent or
attorney appointed with due care by it hereunder; and
(xii) the Common Guarantee Trustee shall not be liable for any action
taken or omitted by it in good faith and believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this Guarantee.
(b) No provision of this Guarantee Agreement shall be deemed to empower the
Common Guarantee Trustee to vary the investment of any Holder of the Common
Securities or to act in a manner inconsistent with the status of the Issuer as a
grantor trust for United States federal income tax purposes.
Section 3.03. Not Responsible for Recitals or Issuance of Guarantee.
The recitals contained in this Guarantee Agreement shall be taken as the
statements of the Guarantor, and the Common Guarantee Trustee does not assume
any responsibility for their correctness. The Common Guarantee Trustee makes no
representations as to the validity or sufficiency of this Guarantee Agreement.
ARTICLE IV.
COMMON GUARANTEE TRUSTEE
Section 4.01. Common Guarantee Trustee; Eligibility.
(a) There shall at all times be a Common Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under the laws of
the United States of America or any State thereof or of the District of
Columbia, or a corporation or Person permitted by the Securities and Exchange
Commission to act as an institutional trustee under the Trust Indenture Act,
authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least 50 million U.S. dollars ($50,000,000), and
subject to supervision or examination by Federal, State or District of Columbia
authority. If such corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of the supervising or examining authority
referred to above, then for the purposes of this Section 4.01(a)(ii), 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;
(b) if at any time the Common Guarantee Trustee shall cease to be eligible
to so act under Section 4.01(a), the Common Guarantee Trustee shall immediately
resign in the manner and with the effect set out in Section 4.02(c); and
(c) if the Common Guarantee Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act, the
Common Guarantee Trustee and Guarantor shall in all respects comply with the
provisions of Section 310(b) of the Trust Indenture Act.
Section 4.02. Appointment, Removal and Resignation of Common Guarantee Trustee.
(a) Subject to Section 4.02(b), the Common Guarantee Trustee may be
appointed or removed without cause at any time by the Guarantor;
(b) the Common Guarantee Trustee shall not be removed in accordance with
Section 4.02(a) until a Successor Common Guarantee Trustee has been appointed
and has accepted such appointment by written instrument executed by such
Successor Common Guarantee Trustee and delivered to the Guarantor;
(c) the Common Guarantee Trustee appointed to office shall hold office
until a Successor Common Guarantee Trustee shall have been appointed or until
its removal or resignation. The Common Guarantee Trustee may resign from office
(without need for prior or subsequent accounting) by an instrument in writing
executed by the Common Guarantee Trustee and delivered to the Guarantor, which
resignation shall not take effect until a Successor Common Guarantee Trustee has
been appointed and has accepted such appointment by instrument in writing
executed by such Successor Common Guarantee Trustee and delivered to the
Guarantor and the resigning Common Guarantee Trustee; and
(d) if no Successor Common Guarantee Trustee shall have been appointed and
accepted appointment as provided in this Section 4.02 within 60 days after
delivery to the Guarantor of an instrument of resignation, the resigning Common
Guarantee Trustee may petition any court of competent jurisdiction for
appointment of a Successor Common Guarantee Trustee. Such court may thereupon
after such notice, if any, as it may deem proper and prescribe, appoint a
Successor Common Guarantee Trustee.
ARTICLE V.
GUARANTEE
Section 5.01. Guarantee.
The Guarantor irrevocably and unconditionally agrees to pay in full to the
Holders the Guarantee Payments (without duplication of amounts theretofore paid
by the Issuer), as and when due, regardless of any defense, right of set-off or
counterclaim which the Issuer may have or assert. The Guarantor's obligation to
make a Guarantee Payment may be satisfied by direct payment of the required
amounts by the Guarantor to the Holders or by causing the Issuer to pay such
amounts to the Holders. If an Indenture Event of Default has occurred and is
continuing, the rights of holders of the Common Securities to receive Guarantee
Payments under this Common Securities Guarantee Agreement are subordinated to
the rights of Holders of Preferred Securities to receive Preferred Guarantee
Payments under the Preferred Securities Guarantee Agreement, as set forth in
Article IX.
Section 5.02. Waiver of Notice and Demand.
The Guarantor hereby waives notice of acceptance of this Guarantee
Agreement and of any liability to which it applies or may apply, presentment,
demand for payment, any right to require a proceeding first against the Issuer
or any other Person before proceeding against the Guarantor, protest, notice of
nonpayment, notice of dishonor, notice of redemption and all other notices and
demands.
Section 5.03. Obligations Not Affected.
The obligations, covenants, agreements and duties of the Guarantor under
this Guarantee Agreement shall in no way be affected or impaired by reason of
the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied agreement,
covenant, term or condition relating to the Common Securities to be performed or
observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or any
portion of the Distributions, Redemption Price, Liquidation Distribution or any
other sums payable under the terms of the Common Securities or the extension of
time for the performance of any other obligation under, arising out of, or in
connection with, the Common Securities (other than an extension of time for
payment of Distributions, Redemption Price, Liquidation Distribution or other
sum payable that results from the extension of any interest payment period on
the Subordinated Notes or any extension of the maturity date of the Subordinated
Notes permitted by the Indenture);
(c) any failure, omission, delay or lack of diligence on the part of the
Holders to enforce, assert or exercise any right, privilege, power or remedy
conferred on the Holders pursuant to the terms of the Common Securities, or any
action on the part of the Issuer granting indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting, the Issuer or any of the assets of the
Issuer;
(e) any invalidity of, or defect or deficiency in, the Common Securities or
the Subordinated Notes;
(f) the settlement or compromise of any obligation guaranteed hereby or
hereby incurred; or
(g) any other circumstance whatsoever that might otherwise constitute a
legal or equitable discharge or defense of a guarantor, it being the intent of
this Section 5.03 that the obligations of the Guarantor hereunder shall be
absolute and unconditional under any and all circumstances.
There shall be no obligation on the Holders or any other Person to give notice
to, or obtain consent of, the Guarantor with respect to the happening of any of
the foregoing.
Section 5.04. Rights of Holders.
(a) The Holders of a Majority in liquidation amount of the Common
Securities have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Common Guarantee Trustee in respect
of this Guarantee Agreement or exercising any trust or power conferred upon the
Common Guarantee Trustee under this Guarantee Agreement; and
(b) Notwithstanding the rights of the Common Guarantee Trustee to enforce
this Guarantee Agreement under Article III, any Holder of Common Securities may,
to the extent permitted by applicable law, institute a legal proceeding directly
against the Guarantor to enforce the Common Guarantee Trustee's rights under
this Guarantee Agreement, without first instituting a legal proceeding against
the Issuer, the Common Guarantee Trustee or any other Person. Notwithstanding
the foregoing, if the Guarantor has failed to make a Guarantee Payment, a Holder
of Common Securities may directly institute a proceeding against the Guarantor
for enforcement of this Guarantee Agreement for such payment. The Guarantor
waives any right or remedy to require that any action be brought first against
the Issuer or any other person or entity before proceeding directly against the
Guarantor.
Section 5.05. Guarantee of Payment.
This Guarantee Agreement creates a guarantee of payment and not of
collection.
Section 5.06. Subrogation.
The Guarantor shall be subrogated to all rights, if any, of the Holders of
Common Securities against the Issuer in respect of any amounts paid to such
Holders by the Guarantor under this Guarantee Agreement; provided, however, that
the Guarantor shall not (except to the extent required by mandatory provisions
of law) be entitled to enforce or exercise any rights which it may acquire by
way of subrogation or any indemnity, reimbursement or other agreement, in all
cases as a result of payment under this Guarantee Agreement, if, at the time of
any such payment, any amounts are due and unpaid under this Guarantee Agreement.
If any amount shall be paid to the Guarantor in violation of the preceding
sentence, the Guarantor agrees to hold such amount in trust for the Holders and
to pay over such amount to the Holders.
Section 5.07. Independent Obligations.
The Guarantor acknowledges that its obligations hereunder are independent
of the obligations of the Issuer with respect to the Common Securities and that
the Guarantor shall be liable as principal and as debtor hereunder to make
Guarantee Payments pursuant to the terms of this Guarantee Agreement
notwithstanding the occurrence of any event referred to in subsections (a)
through (g), inclusive, of Section 5.03 hereof.
ARTICLE VI.
LIMITATION OF TRANSACTIONS; RANKING
Section 6.01. Limitation of Transactions.
So long as any Common Securities remain outstanding, (a) the Guarantor will
not declare or pay any dividend on, or make any distributions with respect to,
or redeem, purchase, acquire or make a liquidation payment with respect to, any
of its capital stock, and (b) the Guarantor will not make any payment of
interest, principal or premium, if any, on or repay, repurchase or redeem any
debt securities (including guarantees) of the Guarantor which rank pari passu
with or junior to the Subordinated Notes, if at such time (i) there shall have
occurred any Event of Default or (ii) there shall have occurred any Event of
Default under the Declaration; provided, that, clause (a) above does not apply
to (i) any stock dividends paid by the Guarantor where the dividend stock is the
same as that on which the dividend is being paid, (ii) purchases or acquisitions
by the Guarantor of shares of its common stock in connection with the
satisfaction by the Guarantor or any of its subsidiaries of their respective
obligations under any benefit plans for directors, officers, agents or employees
or the Guarantor's dividend reinvestment or director, officer, agent or employee
stock purchase plans, (iii) a reclassification of the Guarantor's capital stock
or the exchange or conversion of one class or series of its capital stock for
another class or series of its capital stock, (iv) the purchase of fractional
interests in shares of the Guarantor's capital stock pursuant to the conversion
or exchange provisions of such capital stock or security being converted or
exchanged for capital stock, (v) dividends or distributions in shares of, or
options, warrants or rights to subscribe for or purchase shares of the
Guarantor's capital stock or (vi) any declaration by the Guarantor of a dividend
in connection with the implementation or extension of a stockholders' rights
plan, or the issuance of stock under any such plan (including any such existing
plan) in the future or the redemption or repurchase or any such rights pursuant
thereto.
Section 6.02. Ranking.
This Guarantee Agreement will constitute an unsecured obligation of the
Guarantor and will rank (i) subordinate and junior in right of payment to all
other liabilities of the Guarantor, except for those liabilities made pari passu
or junior by their terms to any liabilities of the Guarantor under this
Guarantee Agreement, (ii) pari passu with the most senior preferred or
preference stock now or hereafter issued by the Guarantor and with any guarantee
now or hereafter entered into by the Guarantor in respect of any preferred or
preference stock of any Affiliate of the Guarantor, and (iii) senior to the
Guarantor's common stock.
ARTICLE VII.
TERMINATION
Section 7.01. Termination.
This Guarantee Agreement shall terminate with respect to each Holder upon
the first to occur of the following: full payment of the Redemption Price of all
Common Securities, the distribution of the Subordinated Notes to the Holders of
all of the Common Securities or full payment of the amounts payable in
accordance with the Declaration upon dissolution of the Trust. Notwithstanding
the foregoing, this Guarantee Agreement will continue to be effective or will be
reinstated, as the case may be, if at any time any Holder of Common Securities
must restore payment of any sums paid under the Common Securities or under this
Common Securities Guarantee.
ARTICLE VIII.
INDEMNIFICATION
Section 8.01. Exculpation.
(a) No Indemnified Person shall be liable, responsible or accountable in
damages or otherwise to the Guarantor or any Covered Person for any loss, damage
or claim incurred by reason of any act or omission performed or omitted by such
Indemnified Person in good faith in accordance with this Guarantee Agreement and
in a manner such Indemnified Person reasonably believed to be within the scope
of the authority conferred on such Indemnified Person by this Guarantee
Agreement or by law, except that an Indemnified Person shall be liable for any
such loss, damage or claim incurred by reason of such Indemnified Person's
negligence (or, in the case of the Common Guarantee Trustee, except as otherwise
set forth in Section 3.01) or willful misconduct with respect to such acts or
omissions.
(b) An Indemnified Person shall be fully protected in relying in good faith
upon the records of the Guarantor and upon such information, opinions, reports
or statements presented to the Guarantor by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Guarantor, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses, or any other facts pertinent to the existence and amount of assets from
which Distributions to Holders of Common Securities might properly be paid.
Section 8.02. Indemnification.
(a) The Guarantor shall indemnify each Indemnified Person for, and hold
each Indemnified Person harmless against, any loss, liability or expense
incurred by such Indemnified Person by reason of any act or omission performed
or omitted by such Indemnified Person without negligence or bad faith (or, in
the case of the Common Securities Trustee, except as set forth in Section 3.01)
in accordance with this Guarantee Agreement and in a manner such Indemnified
Person reasonably believed to be within the scope of authority conferred on such
Indemnified Person by this Guarantee Agreement.
(b) Reasonable expenses (including reasonable legal fees and expenses)
incurred by an Indemnified Person in defending any claim, demand, action, suit
or proceeding shall, from time to time, be advanced by the Guarantor prior to
the final disposition of such claim, demand, action, suit or proceeding upon
receipt by the Guarantor of an undertaking by or on behalf of the Indemnified
Person to repay such amount if it shall be determined that the Indemnified
Person is not entitled to be indemnified as authorized in Section 8.02(a).
(c) The provisions of this Section 8.02 shall survive termination of this
Guarantee or the resignation or removal of the Common Guarantee Trustee.
ARTICLE IX.
SUBORDINATION OF GUARANTEE PAYMENTS
Section 9.01. Subordination of Guarantee Payments.
Each Holder of the Common Securities agrees, by such Holder's acceptance
thereof, that if an Indenture Event of Default has occurred and is continuing,
the rights of Holders of the Common Securities to receive Guarantee Payments
under this Common Securities Guarantee Agreement are hereby expressly made
subordinate and junior in right of payment to the prior payment in full of the
Preferred Guarantee Payments under the Preferred Securities Guarantee Agreement,
to the extent and in the manner hereinafter set forth in this Article. No
provision of this Article shall prevent the occurrence of any default hereunder.
Section 9. 02. Payment Over of Proceeds upon Dissolution, Etc.
If an Indenture Event of Default has occurred and is continuing, upon any
payment by the Guarantor or distribution of assets of the Guarantor of any kind
or character, whether in cash, property or securities, to creditors upon any
dissolution or winding-up or liquidation or reorganization of the Guarantor,
whether voluntary or involuntary or in bankruptcy, insolvency, receivership or
other proceedings, all amounts due upon all Preferred Guarantee Payments shall
first be paid in full, or payment thereof provided for in money in accordance
with the terms of the Preferred Securities Guarantee Agreement, before any
payment is made by the Guarantor on account of any Guarantee Payments under this
Common Securities Guarantee Agreement; and upon any such dissolution or
winding-up or liquidation or reorganization, any payment by the Guarantor, or
distribution of assets of the Guarantor of any kind or character, whether in
cash, property or securities, to which the Holders of the Common Securities or
the Common Guarantee Trustee would be entitled to receive from the Guarantor,
except for the provisions of this Article, shall be paid by the Guarantor or by
any receiver, trustee in bankruptcy, liquidation trustee, agent or other person
making such payment or distribution, or by the Holders of the Common Securities
or by the Common Guarantee Trustee under this Common Securities Guarantee
Agreement, if received by them or it, directly to the holders of the Preferred
Securities (pro rata to such holders on the basis of the respective amounts of
Preferred Securities held by such holders, as calculated by the trustee or
trustees under the Preferred Securities Guarantee Agreement) or their
representative or representatives, or to the trustee or trustees under the
Preferred Securities Guarantee Agreement, as their respective interests may
appear, to the extent necessary to pay such Preferred Guarantee Payments in
full, in money or moneys worth, after giving effect to any concurrent payment or
distribution to or for the holders of such Preferred Securities, before any
payment or distribution is made to the Holders of the Common Securities or to
the Common Guarantee Trustee hereunder.
In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Guarantor of any kind or character, whether in
cash, property or securities, prohibited by the foregoing, shall be received by
the Common Guarantee Trustee or the Holders of the Common Securities before all
Preferred Guarantee Payments are paid in full, or provision is made for such
payment in money in accordance with the applicable terms, such payment or
distribution shall be held in trust for the benefit of and shall be paid over or
delivered to the holders of the Preferred Securities or their representative or
representatives, or to the trustee or trustees under the Preferred Securities
Guarantee Agreement, as their respective interests may appear, as calculated by
such trustee or trustees, for application to the payment of all Preferred
Guarantee Payments remaining unpaid to the extent necessary to pay such
Preferred Guarantee Payments in full in money in accordance with the applicable
terms of the Preferred Securities Guarantee Agreement, after giving effect to
any concurrent payment or distribution to or for the benefit of the holders of
the Preferred Securities.
For purposes of this Article only, the words cash, property or securities
shall not be deemed to include shares of stock of the Guarantor as reorganized
or readjusted, or securities of the Guarantor or any other corporation provided
for by a plan of reorganization or readjustment which are subordinated in right
of payment to all Preferred Guarantee Payments which may at the time be
outstanding to substantially the same extent as, or to a greater extent than,
the Common Securities are so subordinated as provided in this Article. The
consolidation of the Guarantor with, or the merger of the Guarantor into,
another entity or the liquidation or dissolution of the Guarantor following the
conveyance or transfer of its properties and assets substantially as an entirety
to another entity upon the terms and conditions set forth in Article Eight of
the Indenture shall not be deemed a dissolution, winding up, liquidation,
reorganization, assignment for the benefit of creditors or marshaling of assets
and liabilities of the Guarantor for the purposes of this Section if the entity
formed by such consolidation or into which the Guarantor is merged or the entity
which acquires by conveyance or transfer such properties and assets
substantially as an entirety, as the case may be, shall, as a part of such
consolidation, merger, conveyance or transfer, comply with the conditions set
forth in Article Eight of the Indenture.
Section 9.03. Prior Payment of Preferred Guarantee Payments upon Acceleration
of the Related Debt Securities
In the event that any Subordinated Notes are declared due and payable
before their stated maturity as a result of an Indenture Event of Default, then
and in such event the holders of Preferred Securities shall be entitled to
receive payment in full of all amounts due or to become due on or in respect of
all Preferred Guarantee Payments or provision shall be made for such payment in
cash, before the Holders of the Common Securities are entitled to receive any
payment (including any payment which may be payable by reason of the payment of
any other indebtedness of the Guarantor being subordinated to the payment of the
Guarantee Payments) by the Guarantor on account of the Guarantee Payments.
In the event that, notwithstanding the foregoing, the Guarantor shall make
any payment to the Common Guarantee Trustee or the Holder of any Common
Securities prohibited by the foregoing provisions of this Section, and if such
fact shall, at or prior to the time of such payment, have been made known to the
Common Guarantee Trustee or, as the case may be, such Holder, then and in such
event such payment shall be paid over and delivered forthwith to the Guarantor.
Section 9.04. No Payment When There is an Indenture Event of Default
In the event and during the continuation of any Indenture Event of Default,
beyond any applicable grace period with respect thereto, then no payment shall
be made by the Guarantor with respect to the Guarantee Payments until such
default is cured or waived or ceases to exist or all Preferred Guarantee
Payments have been made.
Section 9.05. Payment Permitted in Certain Situations
Nothing contained in this Article or elsewhere in this Common Securities
Guarantee Agreement or in any of the Common Securities shall prevent (a) the
Guarantor, at any time except during the pendency of any dissolution,
winding-up, liquidation or reorganization of the Guarantor, whether voluntary or
involuntary or any bankruptcy, insolvency, receivership or other proceedings of
the Guarantor referred to in Section 10.02 or under the conditions described in
Sections 10.03 or 8.4, from making Guarantee Payments at any time, or (b) the
application by the Common Guarantee Trustee of any money deposited with it
hereunder to the payment of or on account of the Guarantee Payments hereunder or
the retention of such Guarantee Payments by the Holders of Common Securities,
if, at the time of such application by the Common Guarantee Trustee, it did not
have knowledge that such payment would have been prohibited by the provisions of
this Article.
Section 9.06. Subrogation to Rights of Holders of Senior Indebtedness
Subject to the payment in full of all Preferred Guarantee Payments or the
provision for such payment in cash or cash equivalents or otherwise in a manner
satisfactory to the holders of Preferred Securities, the rights of the Holders
of Common Securities shall be subrogated to the extent of the payments or
distributions made to the holders of Preferred Securities pursuant to the
provisions of this Article (equally and ratably with the holders of indebtedness
of the Guarantors which by its express terms is subordinated to indebtedness of
the Guarantor to substantially the same extent as the Common Securities are
subordinated to the Preferred Securities and is entitled to like rights of
subrogation) to the rights of the holders of the Preferred Securities to receive
payments and distributions of cash, property and securities applicable to the
Preferred Guarantee Payments until the Guarantee Payments shall be paid in full.
For purposes of such subrogation, no payments or distributions to the holders of
the Preferred Securities of any cash, property or securities to which the
Holders of Common Securities or the Common Guarantee Trustee would be entitled
except for the provisions of this Article, and no payments over pursuant to the
provisions of this Article to or for the benefit of the holders of Preferred
Securities by Holders of Common Securities or the Common Guarantee Trustee,
shall, as among the Guarantor, its creditors other than holders Preferred
Securities and the Holders of Common Securities, be deemed to be a payment or
distribution by the Guarantor to or on account of the Guarantee Payments.
Section 9.07. Provisions Solely to Define Relative Rights
The provisions of this Article are and are intended solely for the purpose
of defining the relative rights of the Holders of Common Securities to receive
Guarantee Payments in the event of an Indenture Event of Default on the one hand
and the holders of Preferred Securities to receive Preferred Guarantee Payments
in the event of an Indenture Event of Default on the other hand. Other than the
subordination provisions applicable under the Indenture and the Subordinated
Notes, nothing contained in this Article or elsewhere in this Common Securities
Guarantee Agreement or in the Common Securities is intended to or shall (a)
impair, as among the Guarantor, its creditors other than holders of Preferred
Securities and the Holders of Common Securities, the obligation of the
Guarantor, which is absolute and unconditional (and which, subject to the rights
under this Article of the holders of Preferred Securities and the subordination
provisions of the Indenture and the Subordinated Notes, is intended to rank
equally with all other general obligations of the Guarantor), to pay the
Guarantee Payments to the Holders of the Common Securities in accordance with
this Common Securities Guarantee Agreement as and when the same shall become due
and payable in accordance with their terms; or (b) affect the relative rights
against the Guarantor of the Holders of Common Securities and creditors of the
Guarantor, as the case may be, other than the holders Preferred Securities; or
(c) prevent the Common Guarantee Trustee or the Holder of any Common Securities
from exercising all remedies otherwise permitted by applicable law upon default
under this Indenture, subject to the rights, if any, under this Article of the
holders of Preferred Securities to receive cash, property and securities
otherwise payable or deliverable to the Common Guarantee Trustee or such Holder.
Section 9.08. Trustee to Effectuate Subordination
Each Holder of Common Securities by such Holder's acceptance thereof
authorizes and directs the Common Guarantee Trustee on such Holder's behalf to
take such action as may be necessary or appropriate to effectuate the
subordination provided in this Article and appoints the Common Guarantee Trustee
as such Holder's attorney-in-fact for any and all such purposes.
Section 9.09. No Waiver of Subordination Provisions
No right of any present or future holder of any Preferred Securities to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Guarantor
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Guarantor with the terms, provisions and covenants of this
Common Securities Guarantee Agreement, regardless of any knowledge thereof any
such holder may have or be otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph, the
holders of Preferred Securities may, at any time and from time to time, without
the consent of or notice to the Common Guarantee Trustee or the Holders of
Common Securities, without incurring responsibility to the Holders of Common
Securities and without impairing or releasing the subordination provided in this
Article or the obligations hereunder of the Holders of Common Securities to the
holders of Preferred Securities do any one or more of the following (a) change
the manner, place or terms of payment or extend the time of payment of, or renew
or alter, the obligation to make Preferred Guarantee Payments or otherwise amend
or supplement in any manner the Preferred Securities Guarantee Agreement; or (b)
exercise or refrain from exercising any rights against the Guarantor and any
other entity.
Section 9.10. Notice to Trustee
The Guarantor shall give prompt written notice to a Responsible Officer of
the Common Guarantee Trustee of any fact known to the Guarantor which would
prohibit the making of any payment to or by the Common Guarantee Trustee in
respect of the Guarantee Payments pursuant to the provisions of this Article.
Notwithstanding the provisions of this Article or any other provision of this
Common Securities Guarantee Agreement, the Common Guarantee Trustee shall not be
charged with knowledge of the existence of any facts which would prohibit the
making of any Guarantee Payment to or by the Common Guarantee Trustee in respect
of the Common Securities pursuant to the provisions of this Article, unless and
until a Responsible Officer of the Common Guarantee Trustee shall have received
written notice thereof from the Guarantor or a holder or holders of Preferred
Securities or from any trustee therefor; and, prior to the receipt of any such
written notice, the Common Guarantee Trustee, subject to the provisions of
Section 3.02 of this Common Securities Guarantee Agreement, shall be entitled in
all respects to assume that no such facts exist; provided, however, that if the
Common Guarantee Trustee shall have not received the notice provided for in this
Section at least two Business Days (as defined in the Indenture) prior to the
date upon which by the terms hereof any money may become payable with respect to
Guarantee Payments, then, anything herein contained to the contrary
notwithstanding, the Common Guarantee Trustee shall have full power and
authority to receive such money and to apply the same to the purposes for which
they were received, and shall not be affected by any notice to the contrary that
may be received by it within two Business Days prior to such date.
Subject to the provisions of Section 3.02, the Common Guarantee Trustee
shall be entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Preferred Securities (or a trustee
therefor) to establish that such notice has been given by a holder of Preferred
Securities (or a trustee therefor). In the event that the Common Guarantee
Trustee determines in good faith that further evidence is required with respect
to the right of any Person as a holder of Preferred Securities to participate in
any payment or distribution pursuant to this Article, the Common Guarantee
Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Common Guarantee Trustee as to the amount of Preferred
Securities held by such Person, the extent to which such Person is entitled to
participate in such payment or distribution and any other facts pertinent to the
rights of such Person under this Article, and if such evidence is not furnished,
the Common Guarantee Trustee may defer any payment to such Person pending
judicial determination as to the right of such Person to receive such payment.
Section 9.11. Reliance on Judicial Order or Certificate of Liquidating Agent
Upon any payment or distribution of assets of the Guarantor referred to in
this Article, the Common Guarantee Trustee, subject to the provisions of Section
3.02 hereof, and the Holders of Common Securities shall be entitled to
conclusively rely upon any order or decree entered by any court of competent
jurisdiction in which such insolvency, bankruptcy, receivership, liquidation,
reorganization, dissolution, winding up or similar case or proceeding is
pending, or a certificate of the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee for the benefit of creditors, agent or other Person
making such payment or distribution, delivered to the Common Guarantee Trustee
or to the Holders of Common Securities, for the purpose of ascertaining the
Persons entitled to participate in such payment or distribution, the holders of
Preferred Securities and other indebtedness of the Guarantor, as the case may
be, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article.
Section 9.12. Trustee Not Fiduciary for Holders of Preferred Securities
With respect to the holders of Preferred Securities, the Common Guarantee
Trustee undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article, and no implied
covenants or obligations with respect to the holders of Preferred Securities
shall be read into this Common Securities Guarantee Agreement against the Common
Guarantee Trustee. Except with respect to Section 10.04, the Common Guarantee
Trustee shall not be deemed to owe any fiduciary duty to the holders of
Preferred Securities and shall not be liable to any such holders or creditors if
it shall in good faith pay over or distribute to Holders of Common Securities or
to the Guarantor or to any other Person cash, property or securities to which
any holders of Preferred Securities shall be entitled by virtue of this Article
or otherwise.
Section 9.13. Rights of Trustee as Holder of Senior Indebtedness; Preservation
of Trustee's Rights
The Common Guarantee Trustee in its individual capacity shall be entitled
to all the rights set forth in this Article with respect to any Preferred
Securities which may at any time be held by it, to the same extent as any other
holder of Preferred Securities and nothing in this Common Securities Guarantee
Agreement shall deprive the Common Guarantee Trustee of any of its rights as
such holder.
ARTICLE X.
MISCELLANEOUS
Section 10.01. Successors and Assigns.
All guarantees and agreements contained in this Guarantee Agreement shall
bind the successors, assigns, receivers, trustees and representatives of the
Guarantor and shall inure to the benefit of the Holders of the Common Securities
then outstanding.
Section 10.02. Amendments.
Except with respect to any changes which do not adversely affect the rights
of Holders (in which case no consent of Holders will be required), this
Guarantee Agreement may only be amended with the prior approval of the Holders
of at least a Majority in liquidation amount of the Common Securities. The
provisions of Section 12.2 of the Declaration with respect to meetings of
Holders apply to the giving of such approval.
Section 10.03. Notices.
All notices provided for in this Guarantee Agreement shall be in writing,
duly signed by the party giving such notice, and shall be delivered, telecopied
or mailed by first class mail, postage prepaid, as follows:
(a) if given to the Common Guarantee Trustee at the Common Guarantee
Trustee's mailing address set forth below (or such other address as the Common
Guarantee Trustee may give notice of to the Holders of the Common Securities):
Chase Manhattan Bank and Trust Company, National Association, 101
California Street, Suite 2725, San Francisco, California 94111
Attn.: Corporate Trust Administration
(b) if given to the Guarantor, at the Guarantor's mailing address set forth
below (or such other address as the Guarantor may give notice of to the Holders
of the Common Securities):
Bergen Brunswig Corporation, 4000 Metropolitan Drive, Orange,
California 92868, Attn. : Chief Legal Officer, with a copy (which
shall not constitute notice) to Peter H. Ehrenberg, Esq.,
Lowenstein Sandler PC, 65 Livingston Avenue, Roseland, New Jersey
07068
(c) if given to any Holder of Common Securities, at the address set forth
on the books and records of the Issuer.
All such notices shall be deemed to have been given when received in person,
telecopied with receipt confirmed, or mailed except that if a notice or other
document is refused delivery or cannot be delivered because of a changed address
of which no notice was given, such notice or other document shall be deemed to
have been delivered on the date of such refusal or inability to deliver.
Section 10.04. Benefit.
This Guarantee Agreement is solely for the benefit of the Holders of the
Common Securities and subject to Section 3.01(a) is not separately transferable
from the Common Securities.
Section 10.05. Governing Law.
THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
THIS GUARANTEE AGREEMENT is executed as of the day and year first above
written.
BERGEN BRUNSWIG CORPORATION
By: /s/ Donald R. Roden
_______________________
Name: Donald R. Roden
Title: President and Chief Executive
Officer
CHASE MANHATTAN BANK AND TRUST COMPANY,
NATIONAL ASSOCIATION
as Common Guarantee Trustee
By: /s/ James Nagy
_______________________
Name: James Nagy
Title:Assistant Vice President