Exhibit 10(g)
COMMERCIAL PAPER DEALER AGREEMENT
[4(2) PROGRAM]
between
Bergen ▇▇▇▇▇▇▇▇ Corporation, as Issuer
and
_________________________, as Dealer
for Notes with maturities up to 270 days;
_________________________, as Dealer
for Notes with maturities over 270 days up to 364 days
Concerning Notes to be issued pursuant
to an Issuing and Paying Agency Agreement dated as of
April , 1999 between the Issuer and
, as Issuing and Paying Agent
Dated As of
April , 1999
Exhibit 10(g) Page 1
COMMERCIAL PAPER DEALER AGREEMENT
[4(2) Program]
This agreement ("Agreement") sets forth the understandings between the
Issuer and the Dealer in connection with the issuance and sale by the Issuer of
its short-term promissory notes issued through the Dealer pursuant to the
Issuing and Paying Agency Agreement (the "Notes").
Certain terms used in this Agreement are defined in Section 6 hereof.
The Addendum to this Agreement, and any Annexes or Exhibits described
in this Agreement or such Addendum, are hereby incorporated into this Agreement
and made fully a part hereof.
Section 1. Offers, Sales and Resales of Notes
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1.1 While (i) the Issuer has and shall have no obligation to sell the
Notes to the Dealer or to permit the Dealer to arrange any sale of the Notes for
the account of the Issuer, and (ii) the Dealer has and shall have no obligation
to purchase the Notes from the Issuer or to arrange any sale of the Notes for
the account of the Issuer, the parties hereto agree that in any case where the
Dealer purchases Notes from the Issuer, or arranges for the sale of Notes by the
Issuer, such Notes will be purchased or sold by the Dealer in reliance on the
representations, warranties, covenants and agreements of the Issuer contained
herein or made pursuant hereto and on the terms and conditions and in the manner
provided herein.
1.2 So long as this Agreement shall remain in effect, and in addition
to the limitations contained in Section 1.7 hereof, the Issuer shall not,
without the consent of the Dealer, offer, solicit or accept offers to purchase,
or sell, any Notes except (a) in transactions with one or more dealers which may
from time to time after the date hereof become dealers with respect to the Notes
by executing with the Issuer one or more agreements which contain provisions
substantially identical to Section 1 of this Agreement, of which the Issuer
hereby undertakes to provide the Dealer prompt notice or (b) in transactions
with the other dealers listed on the Addendum hereto, which are executing
agreements with the Issuer which contain provisions substantially identical to
Section 1 of this Agreement contemporaneously herewith. In no event shall the
Issuer offer, solicit or accept offers to purchase, or sell, any Notes directly
on its own behalf in transactions with persons other than broker-dealers as
specifically permitted in this Section 1.2.
1.3 The Notes shall be in a minimum denomination or minimum amount,
whichever is applicable, of $250,000 or integral multiples of $1,000 in excess
thereof, will bear such interest rates, if interest bearing, or will be sold at
such discount from their face amounts, as shall be agreed upon by the Dealer and
the Issuer, shall have a maturity not exceeding 364 days from the date of
issuance (exclusive of days of grace) and shall not contain any provision for
extension, renewal or automatic "rollover."
1.4 The authentication, delivery and payment of the Notes shall be
effected in accordance with the Issuing and Paying Agency Agreement and the
Notes shall be either individual bearer physical certificates or represented by
book-entry Notes registered in the name of DTC or its nominee in the form or
forms annexed to the Issuing and Paying Agency Agreement1.
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1 If the form or forms of Notes are not annexed to the Issuing and Paying
Agency Agreement they should be annexed to this Agreement or delivered to the
Dealer, with appropriate certification by the Secretary of the Issuer,
pursuant to Section 3.6 of the Agreement.
Exhibit 10(g) Page 2
1.5 If the Issuer and the Dealer shall agree on the terms of the
purchase of any Note by the Dealer or the sale of any Note arranged by the
Dealer (including, but not limited to, agreement with respect to the date of
issue, purchase price, principal amount, maturity and interest rate (in the case
of interest-bearing Notes) or discount thereof (in the case of Notes issued on a
discount basis), and appropriate compensation for the Dealer's services
hereunder) pursuant to this Agreement, the Issuer shall cause such Note to be
issued and delivered in accordance with the terms of the Issuing and Paying
Agency Agreement and payment for such Note shall be made by the purchaser
thereof, either directly or through the Dealer, to the Issuer. Except as
otherwise agreed, in the event that the Dealer is acting as an agent and a
purchaser shall either fail to accept delivery of or make payment for a Note on
the date fixed for settlement, the Dealer shall promptly notify the Issuer, and
if the Dealer has theretofore paid the Issuer for the Note, the Issuer will
promptly return such funds to the Dealer against its return of the Note to the
Issuer, in the case of a certificated Note, and upon notice of such failure in
the case of a book-entry Note. If such failure occurred for any reason other
than default by the Dealer, the Issuer shall reimburse the Dealer on an
equitable basis for the Dealer's loss of the use of such funds for the period
such funds were credited to the Issuer's account.
1.6 The Dealer and the Issuer hereby establish and agree to observe the
following procedures in connection with offers, sales and subsequent resales or
other transfers of the Notes:
(a) Offers and sales of the Notes by or through the Dealer
shall be made only to the following types of investors: (i) investors
reasonably believed by the Dealer to be Institutional Accredited
Investors or Sophisticated Individual Accredited Investors, (ii)
non-bank fiduciaries or agents that will be purchasing Notes for one or
more accounts, each of which is an Institutional Accredited Investor or
Sophisticated Individual Accredited Investor, and (iii) Qualified
Institutional Buyers.
(b) Resales and other transfers of the Notes by the holders
thereof shall be made only in accordance with the restrictions in the
legends described in clause (e) below.
(c) No general solicitation or general advertising shall be
used in connection with the offering of the Notes. Without limiting the
generality of the foregoing, without the prior written approval of
Dealer, the Issuer shall not issue any press release or place or
publish any "tombstone" or other advertisement relating to the Notes.
(d) No sale of Notes to any one purchaser shall be for less
than $250,000 principal or face amount, and no Note shall be issued in
a smaller principal or face amount. If the purchaser is a non-bank
fiduciary acting on behalf of others, each person for whom such
purchaser is acting must purchase at least $250,000 principal or face
amount of Notes.
(e) Offers and sales of the Notes by the Issuer through the
Dealer acting as agent for the Issuer shall be made in accordance with
Rule 506 under the Securities Act, and shall be subject to the
restrictions described in the legend appearing on Exhibit A hereto. A
legend substantially to the effect of such Exhibit A shall appear as
part of the Private Placement Memorandum used in connection with offers
and sales of Notes hereunder, as well as on each Note offered and sold
pursuant to this Agreement.
(f) Dealer shall furnish or shall have furnished to each
purchaser of Notes being sold to an ultimate purchaser for the first
time a copy of the then-current Private Placement Memorandum unless
such purchaser has previously received a copy of the Private Placement
Memorandum as then in effect. The Private Placement Memorandum shall
expressly state that any person to whom Notes are offered shall have an
opportunity to ask questions of, and receive information from, the
Issuer and the Dealer and shall provide the names, addresses and
telephone numbers of the persons from whom information regarding the
Issuer may be obtained.
Exhibit 10(g) Page 3
(g) The Issuer agrees, for the benefit of the Dealer and each
of the holders and prospective purchasers from time to time of the
Notes that, if at any time the Issuer shall not be subject to Section
13 or 15(d) of the Exchange Act, the Issuer will furnish, upon request
and at its expense, to the Dealer and to holders and prospective
purchasers of Notes information required by Rule 144A(d)(4)(i) in
compliance with Rule 144A(d).
(h) In the event that any Note offered or to be offered by
Dealer would be ineligible for resale under Rule 144A, the Issuer shall
immediately notify Dealer (by telephone, confirmed in writing) of such
fact and shall promptly prepare and deliver to Dealer an amendment or
supplement to the Private Placement Memorandum describing the Notes
that are ineligible, the reason for such ineligibility and any other
relevant information relating thereto.
(i) The Issuer represents that it may, from time to time in
the future, issue commercial paper in the United States market in
reliance upon, and in compliance with, the exemption provided by
Section 3(a)(3) of the Securities Act. In that connection, the Issuer
agrees that (a) the proceeds from the sale of the Notes will be
segregated from the proceeds of the sale of any such commercial paper
by being placed in a separate account; (b) the Issuer will institute
appropriate corporate procedures to ensure that the offers and sales of
notes issued by the Issuer pursuant to the Section 3(a)(3) exemption
are not integrated with offerings and sales of Notes hereunder; and (c)
the Issuer will comply with each of the requirements of Section 3(a)(3)
of the Act in selling commercial paper or other short-term debt
securities other than the Notes in the United States.
1.7 The Issuer hereby represents and warrants to the Dealer, in
connection with offers, sales and resales of Notes, as follows:
(a) Issuer hereby confirms to the Dealer that (except as
permitted by Section 1.6(i)) within the preceding six months neither
the Issuer nor any person other than the Dealer or the other dealers
referred to in Section 1.2 hereof acting on behalf of the Issuer has
offered or sold any Notes, or any substantially similar security of the
Issuer (including, without limitation, medium-term notes issued by the
Issuer with maturities of 364 days or less), to, or solicited offers to
buy any such security from, any person other than the Dealer or the
other dealers referred to in Section 1.2 hereof. The Issuer also agrees
that, as long as the Notes are being offered for sale by the Dealer and
the other dealers referred to in Section 1.2 hereof as contemplated
hereby and until at least six months after the offer of Notes hereunder
has been terminated, neither the Issuer nor any person other than the
Dealer or the other dealers referred to in Section 1.2 hereof (except
as contemplated by Section 1.2 hereof) will offer the Notes or any
substantially similar security of the Issuer for sale to, or solicit
offers to buy any such security from, any person other than the Dealer
and the other dealers referred to in Section 1.2 hereof, it being
understood that such agreement is made with a view to bringing the
offer and sale of the Notes within the exemption provided by Section
4(2) of the Securities Act and Rule 506 thereunder and shall survive
any termination of this Agreement.
(b) The Issuer represents and agrees that the proceeds of the
sale of the Notes are not currently contemplated to be used for the
purpose of buying, carrying or trading securities within the meaning of
Regulation T and the interpretations thereunder by the Board of
Governors of the Federal Reserve System. In the event that the Issuer
determines to use such proceeds for the purpose of buying, carrying or
trading securities, whether in connection with an acquisition of
another company or otherwise, the Issuer shall give the Dealer at least
five business days' prior written notice to that effect. The Issuer
shall also give the Dealer prompt notice of the actual date that it
commences to purchase securities with the proceeds of the Notes.
Thereafter, in the event that the Dealer purchases Notes as principal
and does not resell such Notes on the day of such purchase, to the
extent necessary to comply with Regulation T and the interpretations
thereunder, the Dealer will sell such Notes only to offerees it
Exhibit 10(g) Page 4
reasonably believes to be QIBs or to QIBs it reasonably believes are
acting for other QIBs, in each case in accordance with Rule 144A.
Section 2. Representations and Warranties of Issuer
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The Issuer represents and warrants that:
2.1 The Issuer is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation and has
all the requisite power and authority to execute, deliver and perform its
obligations under the Notes, this Agreement and the Issuing and Paying Agency
Agreement.
2.2 This Agreement and the Issuing and Paying Agency Agreement have
been duly authorized, executed and delivered by the Issuer and constitute legal,
valid and binding obligations of the Issuer enforceable against the Issuer in
accordance with their terms subject to applicable bankruptcy, insolvency and
similar laws affecting creditors' rights generally, and subject, as to
enforceability, to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law).
2.3 The Notes have been duly authorized, and when issued and delivered
as provided in the Issuing and Paying Agency Agreement, will be duly and validly
issued and delivered and will constitute legal, valid and binding obligations of
the Issuer enforceable against the Issuer in accordance with their terms subject
to applicable bankruptcy, insolvency and similar laws affecting creditors'
rights generally, and subject, as to enforceability, to general principles of
equity (regardless of whether enforcement is sought in a proceeding in equity or
at law).
2.4 The offer and sale of Notes in the manner contemplated hereby do
not require registration of the Notes under the Securities Act, pursuant to the
exemption from registration contained in Section 4(2) thereof, and no indenture
in respect of the Notes is required to be qualified under the Trust Indenture
Act of 1939, as amended.
2.5 The Notes will rank pari passu with all other unsecured and
unsubordinated indebtedness of the Issuer.
2.6 No consent or action of, or filing or registration with, any
governmental or public regulatory body or authority, including the SEC, is
required to authorize, or is otherwise required in connection with the
execution, delivery or performance of, this Agreement, the Notes or the Issuing
and Paying Agency Agreement, except as may be required by the securities or Blue
Sky laws of the various states in connection with the offer and sale of the
Notes.
2.7 Neither the execution and delivery of this Agreement and the
Issuing and Paying Agency Agreement, nor the issuance and delivery of the Notes
in accordance with the Issuing and Paying Agency Agreement, nor the fulfillment
of or compliance with the terms and provisions hereof or thereof by the Issuer,
will (i) result in the creation or imposition of any mortgage, lien, charge or
encumbrance of any nature whatsoever upon any of the properties or assets of the
Issuer, or (ii) violate or result in a breach or an event of default under any
of the terms of the Issuer's charter documents or by-laws, any contract or
instrument to which the Issuer is a party or by which it or its property is
bound, or any law or regulation, or any order, writ, injunction or decree of any
court or government instrumentality, to which the Issuer is subject or by which
it or its property is bound, which breach or event of default might have a
material adverse effect on the condition (financial or otherwise), operations or
business prospects of the Issuer or the ability of the Issuer to perform its
obligations under this Agreement, the Notes or the Issuing and Paying Agency
Agreement.
Exhibit 10(g) Page 5
2.8 Except as may hereafter be disclosed in the public filings of the
Company under the Securites Act and the Exchange Act of which the Dealer has
been specifically notified in writing, there is no litigation or governmental
proceeding pending, or to the knowledge of the Issuer threatened, against or
affecting the Issuer or any of its subsidiaries which might result in a material
adverse change in the condition (financial or otherwise), operations or business
prospects of the Issuer or the ability of the Issuer to perform its obligations
under this Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.9 The Issuer is not an "investment company" or an entity "controlled"
by an "investment company" within the meaning of the Investment Company Act of
1940, as amended.
2.10 Neither the Private Placement Memorandum nor the Company
Information contains any untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
2.11 Each (a) issuance of Notes by the Issuer hereunder and (b)
amendment or supplement of the Private Placement Memorandum shall be deemed a
representation and warranty by the Issuer to the Dealer, as of the date thereof,
that, both before and after giving effect to such issuance and after giving
effect to such amendment or supplement, (i) the representations and warranties
given by the Issuer set forth above in this Section 2 remain true and correct on
and as of such date as if made on and as of such date, (ii) in the case of an
issuance of Notes, the Notes being issued on such date have been duly and
validly issued and constitute legal, valid and binding obligations of the
Issuer, enforceable against the Issuer in accordance with their terms, subject
to applicable bankruptcy, insolvency and similar laws affecting creditors'
rights generally and subject, as to enforceability, to general principles of
equity (regardless of whether enforcement is sought in a proceeding in equity or
at law) and (iii) in the case of an issuance of Notes, since the date of the
most recent Private Placement Memorandum, there has been no material adverse
change in the condition (financial or otherwise), operations or business
prospects of the Issuer which has not been disclosed to the Dealer in writing.
Section 3. Covenants and Agreements of Issuer
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The Issuer covenants and agrees that:
3.1 The Issuer will give the Dealer prompt notice (but in any event
prior to any subsequent issuance of Notes hereunder) of any amendment to,
modification of, or waiver with respect to, the Notes or the Issuing and Paying
Agency Agreement, including a complete copy of any such amendment, modification
or waiver.
3.2 The Issuer shall, whenever there shall occur any change in the
Issuer's condition (financial or otherwise), operations or business prospects or
any development or occurrence in relation to the Issuer that would be material
to holders of the Notes or potential holder of the Notes (including any
downgrading or receipt of any notice of intended or potential downgrading or any
review for potential change in the rating accorded any of the Issuer's
securities by any nationally recognized statistical rating organization which
has published a rating of the Notes), promptly, and in any event prior to any
subsequent issuance of Notes hereunder, notify the Dealer (by telephone,
confirmed in writing) of such change, development, or occurrence.
3.3 The Issuer shall from time to time furnish to the Dealer such
information as the Dealer may reasonably request, including, without limitation,
any press releases or material provided by the Issuer to any national securities
exchange or rating agency, regarding (i) the Issuer's operations and financial
condition, (ii) the due authorization and execution of the Notes, and (iii) the
Issuer's ability to pay the Notes as they mature.
3.4 The Issuer will take all such action as the Dealer may reasonably
request to ensure that each offer and each sale of the Notes will comply with
Exhibit 10(g) Page 6
any applicable state Blue Sky laws; provided, that the Issuer shall not be
obligated to file any general consent to service of process or to qualify as a
foreign corporation in any jurisdiction in which it is not so qualified or
subject itself to taxation in respect of doing business in any jurisdiction in
which it is not otherwise so subject.
3.5 The Issuer will not be in default of any of its obligations
hereunder, under the Notes or under the Issuing and Paying Agency Agreement, at
any time that any of the Notes are outstanding.
3.6 The Issuer shall not issue Notes hereunder until the Dealer shall
have received (a) an opinion of counsel to the Issuer, addressed to the Dealer,
satisfactory in form and substance to the Dealer, (b) a copy of the executed
Issuing and Paying Agency Agreement as then in effect, (c) a copy of resolutions
adopted by the Board of Directors of the Issuer, satisfactory in form and
substance to the Dealer and certified by the Secretary or similar officer of the
Issuer, authorizing execution and delivery by the Issuer of this Agreement the
Issuing and Paying Agency Agreement and the Notes and consummation by the Issuer
of the transactions contemplated hereby and thereby, (d) prior to the issuance
of any Notes represented by a book-entry note registered in the name of DTC or
its nominee, a copy of the executed Letter of Representations among the Issuer,
the Issuing and Paying Agent and DTC and (e) such other certificates, opinions,
letters and documents as the Dealer shall have reasonably requested.
3.7 The Issuer shall reimburse the Dealer for all of the Dealer's
reasonable out-of-pocket expenses related to this Agreement, including expenses
incurred in connection with its preparation and negotiation, and the
transactions contemplated hereby (including, but not limited to, the printing
and distribution of the Private Placement Memorandum), and, if applicable, for
the reasonable fees and out-of-pocket expenses of the Dealer's counsel.
Section 4. Disclosure
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4.1 The Private Placement Memorandum and its contents (other than the
Dealer Information) shall be the sole responsibility of the Issuer. The Private
Placement Memorandum shall contain a statement expressly offering an opportunity
for each prospective purchaser to ask questions of, and receive answers from,
the Issuer concerning the offering of Notes and to obtain relevant additional
information which the Issuer possesses or can acquire without unreasonable
effort or expense.
4.2 The Issuer agrees promptly to furnish the Dealer the Company
Information as it becomes available.
4.3 (a) The Issuer further agrees to notify the Dealer promptly upon
the occurrence of any event relating to or affecting the Issuer that would cause
the Company Information then in existence to include an untrue statement of
material fact or to omit to state a material fact necessary in order to make the
statements contained therein, in light of the circumstances under which they are
made, not misleading.
(b) In the event that the Issuer gives the Dealer notice
pursuant to Section 4.3(a) and the Dealer notifies the Issuer that it then has
Notes it is holding in inventory, the Issuer agrees promptly to supplement or
amend the Private Placement Memorandum so that such Private Placement
Memorandum, as amended or supplemented, shall not contain an untrue statement of
a material fact or omit to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading, and the Issuer shall make such supplement or amendment available
to the Dealer.
(c) In the event that (i) the Issuer gives the Dealer notice
pursuant to Section 4.3(a) and (ii) the Dealer does not notify the Issuer that
it is then holding Notes in inventory and (iii) the Issuer chooses not to
promptly amend or supplement the Private Placement Memorandum in the manner
described in clause (b) above, then all solicitations and sales of Notes shall
be suspended until such time as the Issuer has so amended or supplemented the
Private Placement Memorandum, and made such amendment or supplement available to
the Dealer.
Exhibit 10(g) Page 7
Section 5. Indemnification and Contribution
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5.1 The Issuer will indemnify and hold harmless the Dealer, each
individual, corporation, partnership, trust, association or other entity
controlling the Dealer, any affiliate of the Dealer or any such controlling
entity and their respective directors, officers, employees, partners,
incorporators, shareholders, servants, trustees and agents (hereinafter the
"Indemnitees") against any and all liabilities, penalties, suits, causes of
action, losses, damages, claims, costs and expenses (including, without
limitation, fees and disbursements of counsel) or judgments of whatever kind or
nature (each a "Claim"), imposed upon, incurred by or asserted against the
Indemnitees arising out of or based upon (i) any allegation that the Private
Placement Memorandum, the Company Information or any information provided by the
Issuer to the Dealer included (as of any relevant time) or includes an untrue
statement of a material fact or omitted (as of any relevant time) or omits to
state any material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading or (ii) arising out
of or based upon the breach by the Issuer of any agreement, covenant or
representation made in or pursuant to this Agreement. This indemnification shall
not apply to the extent that the Claim arises out of or is based upon Dealer
Information, or a breach by Dealer of any of its covenants under this Agreement.
5.2 Provisions relating to claims made for indemnification under this
Section 5 are set forth on Exhibit B to this Agreement.
5.3 In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in this Section 5 is
held to be unavailable or insufficient to hold harmless the Indemnitees,
although applicable in accordance with the terms of this Section 5, the Issuer
shall contribute to the aggregate costs incurred by the Dealer in connection
with any Claim in the proportion of the respective economic interests of the
Issuer and the Dealer; provided, however, that such contribution by the Issuer
shall be in an amount such that the aggregate costs incurred by the Dealer do
not exceed the aggregate of the commissions and fees earned by the Dealer
hereunder with respect to the issue or issues of Notes to which such Claim
relates. The respective economic interests shall be calculated by reference to
the aggregate proceeds to the Issuer of the Notes issued hereunder and the
aggregate commissions and fees earned by the Dealer hereunder.
Section 6. Definitions
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6.1 "Claim" shall have the meaning set forth in Section 5.1.
6.2 "Company Information" at any given time shall mean the Private
Placement Memorandum together with, to the extent applicable, (i) the Issuer's
most recent report on Form 10-K filed with the SEC and each report on Form 10-Q
or 8-K filed by the Issuer with the SEC since the most recent Form 10-K, (ii)
the Issuer's most recent annual audited financial statements and each interim
financial statement or report prepared subsequent thereto, if not included in
item (i) above, (iii) the Issuer's and its affiliates' other publicly available
recent reports, including, but not limited to, any publicly available filings or
reports provided to their respective shareholders, (iv) any other information or
disclosure prepared pursuant to Section 4.3 hereof and (v) any information
prepared or approved by the Issuer for dissemination to investors or potential
investors in the Notes.
6.3 "Dealer" shall mean ▇▇▇▇▇▇▇ ▇▇▇▇▇ Money Markets Inc. for Notes with
maturities up to 270 days and for Notes with maturities over 270 days to 364
days.
6.4 "Dealer Information" shall mean material concerning the Dealer and
provided by the Dealer in writing expressly for inclusion in the Private
Placement Memorandum.
6.5 "DTC" shall mean The Depository Trust Company.
Exhibit 10(g) Page 8
6.6 "Exchange Act" shall mean the U.S. Securities Exchange Act of 1934,
as amended.
6.7 "Indemnitee" shall have the meaning set forth in Section 5.1.
6.8 "Institutional Accredited Investor" shall mean an institutional
investor that is an accredited investor within the meaning of Rule 501 under the
Securities Act and that has such knowledge and experience in financial and
business matters that it is capable of evaluating and bearing the economic risk
of an investment in the Notes, including, but not limited to, a bank, as defined
in Section 3(a)(2) of the Securities Act, or a savings and loan association or
other institution, as defined in Section 3(a)(5)(A) of the Securities Act,
whether acting in its individual or fiduciary capacity.
6.9 "Issuing and Paying Agency Agreement" shall mean the issuing and
paying agency agreement described on the cover page of this Agreement, as such
agreement may be amended or supplemented from time to time.
6.10 "Issuing and Paying Agent" shall mean the party designated as such
on the cover page of this Agreement, as issuing and paying agent under the
Issuing and Paying Agency Agreement.
6.11 "Non-bank fiduciary or agent" shall mean a fiduciary or agent
other than (a) a bank, as defined in Section 3(a)(2) of the Securities Act, or
(b) a savings and loan association, as defined in Section 3(a)(5)(A) of the
Securities Act.
6.12 "Private Placement Memorandum" shall mean offering materials
prepared in accordance with Section 4 (including materials referred to therein
or incorporated by reference therein) provided to purchasers and prospective
purchasers of the Notes, and shall include amendments and supplements thereto
which may be prepared from time to time in accordance with this Agreement (other
than any amendment or supplement that has been completely superseded by a later
amendment or supplement).
6.13 "Qualified Institutional Buyer" shall have the meaning assigned to
that term in Rule 144A under the Securities Act.
6.14 "Rule 144A" shall mean Rule 144A under the Securities Act.
6.15 "SEC" shall mean the U.S. Securities and Exchange Commission.
6.16 "Securities Act" shall mean the U.S. Securities Act of 1933, as
amended.
6.17 "Sophisticated Individual Accredited Investor" shall mean an
individual who (a) is an accredited investor within the meaning of Regulation D
under the Securities Act and (b) based on his or her pre-existing relationship
with the Dealer, is reasonably believed by the Dealer to be a sophisticated
investor (i) possessing such knowledge and experience (or represented by a
fiduciary or agent possessing such knowledge and experience) in financial and
business matters that he or she is capable of evaluating and bearing the
economic risk of an investment in the Notes and (ii) having a net worth of at
least $5 million.
Exhibit 10(g) Page 9
Section 7. General
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7.1 Unless otherwise expressly provided herein, all notices under this
Agreement to parties hereto shall be in writing and shall be effective when
received at the address of the respective party set forth in the Addendum to
this Agreement.
7.2 This Agreement shall be governed by and construed in accordance
with the laws of the State of New York, without regard to its conflict of laws
provisions.
7.3 The Issuer agrees that any suit, action or proceeding brought by
the Issuer against the Dealer in connection with or arising out of this
Agreement or the Notes or the offer and sale of the Notes shall be brought
solely in the United States federal courts located in the borough of Manhattan
or the courts of the State of New York located in the Borough of Manhattan. EACH
OF THE DEALER AND THE ISSUER WAIVES ITS RIGHT TO TRIAL BY JURY IN ANY SUIT,
ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
7.4 This Agreement may be terminated, at any time, by the Issuer, upon
one business day's prior notice to such effect to the Dealer, or by the Dealer
upon one business day's prior notice to such effect to the Issuer. Any such
termination, however, shall not affect the obligations of the Issuer under
Sections 3.7, 5 and 7.3 hereof or the respective representations, warranties,
agreements, covenants, rights or responsibilities of the parties made or arising
prior to the termination of this Agreement.
7.5 This Agreement is not assignable by either party hereto without the
written consent of the other party; provided, however, that the Dealer may
assign its rights and obligations under this Agreement to any affiliate.
7.6 This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
Exhibit 10(g) Page 10
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date and year first above written.
Bergen ▇▇▇▇▇▇▇▇ Corporation
By:
Name:
Title:
,
as Dealer for Notes with maturities up to
270 days
By:
Name:
Title:
,
as Dealer for Notes with maturities
over 270 days up to 364 days
By:
Name:
Title:
Exhibit 10(g) Page 11
ADDENDUM(2)
1. The other dealers referred to in clause (b) of Section 1.2 of the
Agreement are
-------------------------------------------------------.
2. The addresses of the respective parties for purposes of notices under
Section 7.1 are as follows:
For the Issuer:
Address:
Attention:
Telephone number:
Fax number:
For the Dealer:
Address:
Attention:
Telephone number:
Fax number:
-----------------------
2 There may be added to this Addendum any changes or additions to the model
Agreement, as agreed between the Parties.
3 For use where the Dealer is an affiliate of a commercial bank
Exhibit 10(g) Page 12
EXHIBIT A
FORM OF LEGEND FOR
PRIVATE PLACEMENT MEMORANDUM AND NOTES
THE NOTES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT"), OR ANY OTHER APPLICABLE SECURITIES LAW, AND OFFERS AND SALES
THEREOF MAY BE MADE ONLY IN COMPLIANCE WITH AN APPLICABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS.
BY ITS ACCEPTANCE OF A NOTE, THE PURCHASER WILL BE DEEMED TO REPRESENT THAT IT
HAS BEEN AFFORDED AN OPPORTUNITY TO INVESTIGATE MATTERS RELATING TO THE ISSUER
AND THE NOTES, THAT IT IS NOT ACQUIRING SUCH NOTE WITH A VIEW TO ANY
DISTRIBUTION THEREOF AND THAT IT IS EITHER (A) AN INSTITUTIONAL INVESTOR OR
HIGHLY SOPHISTICATED INDIVIDUAL INVESTOR THAT IS AN ACCREDITED INVESTOR WITHIN
THE MEANING OF RULE 501(a) UNDER THE ACT AND WHICH, IN THE CASE OF AN
INDIVIDUAL, (i) POSSESSES SUCH KNOWLEDGE AND EXPERIENCE IN FINANCIAL AND
BUSINESS MATTERS THAT HE OR SHE IS CAPABLE OF EVALUATING AND BEARING THE
ECONOMIC RISK OF AN INVESTMENT IN THE NOTES AND (ii) HAS A NET WORTH OF AT LEAST
$5 MILLION (AN "INSTITUTIONAL ACCREDITED INVESTOR" OR "SOPHISTICATED INDIVIDUAL
ACCREDITED INVESTOR", RESPECTIVELY) AND THAT EITHER IS PURCHASING NOTES FOR ITS
OWN ACCOUNT, IS A U.S. BANK (AS DEFINED IN SECTION 3(a)(2) OF THE ACT) OR A
SAVINGS AND LOAN ASSOCIATION OR OTHER INSTITUTION (AS DEFINED IN SECTION
3(a)(5)(A) OF THE ACT) ACTING IN ITS INDIVIDUAL OR FIDUCIARY CAPACITY OR IS A
FIDUCIARY OR AGENT (OTHER THAN A U.S. BANK OR SAVINGS AND LOAN) PURCHASING NOTES
FOR ONE OR MORE ACCOUNTS EACH OF WHICH IS SUCH AN INSTITUTIONAL ACCREDITED
INVESTOR OR SOPHISTICATED INDIVIDUAL ACCREDITED INVESTOR (i) WHICH ITSELF
POSSESSES SUCH KNOWLEDGE AND EXPERIENCE OR (ii) WITH RESPECT TO WHICH SUCH
PURCHASER HAS SOLE INVESTMENT DISCRETION; OR (B) A QUALIFIED INSTITUTIONAL BUYER
("QIB") WITHIN THE MEANING OF RULE 144A UNDER THE ACT WHICH IS ACQUIRING NOTES
FOR ITS OWN ACCOUNT OR FOR ONE OR MORE ACCOUNTS, EACH OF WHICH IS A QIB AND WITH
RESPECT TO EACH OF WHICH THE PURCHASER HAS SOLE INVESTMENT DISCRETION; AND THE
PURCHASER ACKNOWLEDGES THAT IT IS AWARE THAT THE SELLER MAY RELY UPON THE
EXEMPTION FROM THE REGISTRATION PROVISIONS OF SECTION 5 OF THE ACT PROVIDED BY
RULE 144A. BY ITS ACCEPTANCE OF A NOTE, THE PURCHASER THEREOF SHALL ALSO BE
DEEMED TO AGREE THAT ANY RESALE OR OTHER TRANSFER THEREOF WILL BE MADE ONLY (A)
IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE ACT, EITHER (1) TO THE
ISSUER OR TO ▇▇▇▇▇▇▇ ▇▇▇▇▇ MONEY MARKETS INC. OR ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ &
▇▇▇▇▇ INCORPORATED OR ANOTHER PERSON DESIGNATED BY THE ISSUER AS A PLACEMENT
AGENT FOR THE NOTES (COLLECTIVELY, THE "PLACEMENT AGENTS"), NONE OF WHICH SHALL
HAVE ANY OBLIGATION TO ACQUIRE SUCH NOTE, (2) THROUGH A PLACEMENT AGENT TO AN
INSTITUTIONAL ACCREDITED INVESTOR OR SOPHISTICATED INDIVIDUAL ACCREDITED
INVESTOR OR A QIB BY A PLACEMENT AGENT, OR (3) TO A QIB IN A TRANSACTION THAT
MEETS THE REQUIREMENTS OF RULE 144A AND (B) IN MINIMUM AMOUNTS OF $250,000.
Exhibit 10(g) Page 13
EXHIBIT B
FURTHER PROVISIONS RELATING
TO INDEMNIFICATION
(a) The Issuer agrees to reimburse each Indemnitee for all expenses
(including reasonable fees and disbursements of internal and external counsel)
as they are incurred by it in connection with investigating or defending any
loss, claim, damage, liability or action in respect of which indemnification may
be sought under Section 5 of the Agreement (whether or not it is a party to any
such proceedings).
(b) Promptly after receipt by an Indemnitee of notice of the existence
of a Claim, such Indemnitee will, if a claim in respect thereof is to be made
against the Issuer, notify the Issuer in writing of the existence thereof;
provided that (i) the omission so to notify the Issuer will not relieve it from
any liability which it may have hereunder unless and except to the extent it did
not otherwise learn of such Claim and such failure results in the forfeiture by
the Issuer of substantial rights and defenses, and (ii) the omission so to
notify the Issuer will not relieve it from liability which it may have to an
Indemnitee otherwise than on account of this indemnity agreement. In case any
such Claim is made against any Indemnitee and it notifies the Issuer of the
existence thereof, the Issuer will be entitled to participate therein, and to
the extent that it may elect by written notice delivered to the Indemnitee, to
assume the defense thereof, with counsel reasonably satisfactory to such
Indemnitee; provided that if the defendants in any such Claim include both the
Indemnitee and the Issuer and the Indemnitee shall have concluded that there may
be legal defenses available to it which are different from or additional to
those available to the Issuer, the Issuer shall not have the right to direct the
defense of such Claim on behalf of such Indemnitee, and the Indemnitee shall
have the right to select separate counsel to assert such legal defenses on
behalf of such Indemnitee. Upon receipt of notice from the Issuer to such
Indemnitee of the Issuer's election so to assume the defense of such Claim and
approval by the Indemnitee of counsel, the Issuer will not be liable to such
Indemnitee for expenses incurred thereafter by the Indemnitee in connection with
the defense thereof (other than reasonable costs of investigation) unless (i)
the Indemnitee shall have employed separate counsel in connection with the
assertion of legal defenses in accordance with the proviso to the next preceding
sentence (it being understood, however, that the Issuer shall not be liable for
the expenses of more than one separate counsel (in addition to any local counsel
in the jurisdiction in which any Claim is brought), approved by the Dealer,
representing the Indemnitee who is party to such Claim), (ii) the Issuer shall
not have employed counsel reasonably satisfactory to the Indemnitee to represent
the Indemnitee within a reasonable time after notice of existence of the Claim
or (iii) the Issuer has authorized in writing the employment of counsel for the
Indemnitee. The indemnity, reimbursement and contribution obligations of the
Issuer hereunder shall be in addition to any other liability the Issuer may
otherwise have to an Indemnitee and shall be binding upon and inure to the
benefit of any successors, assigns, heirs and personal representatives of the
Issuer and any Indemnitee. The Issuer agrees that without the Dealer's prior
written consent, it will not settle, compromise or consent to the entry of any
judgment in any Claim in respect of which indemnification may be sought under
the indemnification provision of the Agreement (whether or not the Dealer or any
other Indemnitee is an actual or potential party to such Claim), unless such
settlement, compromise or consent includes an unconditional release of each
Indemnitee from all liability arising out of such Claim.
Exhibit 10(g) Page 14
MODEL OPINION OF COUNSEL TO ISSUER4
[Date]
[Name and Address of Dealer]
Ladies and Gentlemen:
We have acted as counsel to ________________, a _____________
corporation (the "Company"), in connection with the proposed offering and sale
by the Company in the United States of commercial paper in the form of
short-term promissory notes (the "Notes").
In our capacity as such counsel, we have examined a specimen form of
Note, an executed copy of the Commercial Paper Dealer Agreement dated
____________, 199_ (the "Agreement") between the Company and [Name of Dealer]
(the "Dealer"), and the Issuing and Paying Agency Agreement dated _____,
199_(the "Issuing and Paying Agency Agreement") between the Company and _____,
as issuing and paying agent (the "Issuing and Paying Agent") as well as
originals, or copies certified or otherwise identified to our satisfaction, of
such other records and documents as we have deemed necessary as a basis for the
opinions expressed below. In such examination, we have assumed the genuineness
of all documents submitted to us as originals, and the conformity to the
originals of all documents submitted to us as copies.
Capitalized terms used herein without definition are used as defined in
the Agreement.
Based upon the foregoing, it is our opinion that:
1. The Company is a corporation duly organized, validly existing and in
good standing under the laws of the state of _________ and has all the requisite
power and authority to execute, deliver and perform its obligations under the
Notes, the Agreement and the Issuing and Paying Agency Agreement.
2. Each of the Agreement and the Issuing and Paying Agency Agreement
has been duly authorized, executed and delivered by the Company and constitutes
a legal, valid and binding obligation of the Company enforceable against the
Company in accordance with its terms subject to applicable bankruptcy,
insolvency and similar laws affecting creditors' rights generally, and subject,
as to enforceability, to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law)[, and except as
rights under the Agreement to indemnity and contribution may be limited by
federal or state laws].
----------------
4 Set forth below are the operative provisions on which the Dealer will
generally expect a legal opinion. Parties should recognize that there may be
additions to the Dealer's opinion request, and variations as to the opinion
language, depending on the details of the transaction; it may also be
necessary to split the opinion between two or more counsel where no one
counsel is in a position to opine as to all subjects or in all relevant
jurisdictions.
Exhibit 10(g) Page 15
3. The Notes have been duly authorized, and when issued and delivered
as provided in the Issuing and Paying Agency Agreement, will be duly and validly
issued and delivered and will constitute legal, valid and binding obligations of
the Company enforceable against the Company in accordance with their terms,
subject to applicable bankruptcy, insolvency and similar laws affecting
creditors' rights generally, and subject, as to enforceability, to general
principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law).
4. The issuance and sale of Notes under the circumstances contemplated
by the Agreement and the Issuing and Paying Agency Agreement do not require
registration of the Notes under the Securities Act, pursuant to the exemption
from registration contained in Section 4(2) thereof, and do not require
compliance with any provision of the Trust Indenture Act of 1939, as amended;
and the Notes will rank at least pari passu with all other unsecured and
unsubordinated indebtedness of the Issuer.
5. No consent or action of, or filing or registration with, any
governmental or public regulatory body or authority, including the Securities
and Exchange Commission, is required to authorize, or is otherwise required in
connection with the execution, delivery or performance of, the Agreement, the
Notes, or the Issuing and Paying Agency Agreement, except as may be required by
the securities or Blue Sky laws of the various states in connection with the
offer and sale of the Notes.
6. Neither the execution and delivery of the Agreement and the Issuing
and Paying Agency Agreement, nor the issuance and delivery of the Notes in
accordance with the Issuing and Paying Agency Agreement, nor the fulfillment of
or compliance with the terms and provisions of either thereof by the Company,
will (i) result in the creation or imposition of any mortgage, lien, charge or
encumbrance of any nature whatsoever upon any of the properties or assets of the
Company, or (ii) violate or result in an event of default under any of the terms
of the Company's charter documents or by-laws, any contract or instrument to
which the Company is a party or by which it or its property is bound, or any law
or regulation, or any order, writ, injunction or decree of any court or
government instrumentality, to which the Company is subject or by which it or
its property is bound.
7. There is no litigation or governmental proceeding pending, or to the
knowledge of the Company threatened, against or affecting the Company or any of
its subsidiaries which might result in a material adverse change in the
condition (financial or otherwise), operations or business prospects of the
Company or the ability of the Company to perform its obligations under the
Agreement, the Notes, or the Issuing and Paying Agency Agreement.
8. The Company is not an "investment company" or an entity "controlled"
by an "investment company" within the meaning of the Investment Company Act of
1940, as amended.
9.5 As a condition to the admissibility in evidence of the Agreement,
the Issuing and Paying Agency Agreement or the Notes in [foreign jurisdiction],
it is not necessary that the Agreement, the Issuing and Paying Agency Agreement
or the Notes be filed or recorded with any court or other authority. [All
documentary evidence in a foreign language to be submitted to a court in
[foreign jurisdiction] must be translated into the [foreign jurisdiction]
language and certified by a duly qualified official translator in [foreign
jurisdiction]].
10. Under the laws of [foreign jurisdiction], neither the Issuer nor
any of its revenues, assets or properties has any right of immunity from service
of process or from the jurisdiction of competent courts of [foreign
jurisdiction] or the State of New York in connection with any suit, action or
proceeding, attachment prior to judgment, attachment in aid of execution of a
--------------
5 Paragraphs 9 through 15 will only be necessary where the Issuer is a foreign
entity.
Exhibit 10(g) Page 16
judgment, execution of a judgment or from any other legal process with respect
to its obligations under the Agreement, the Issuing and Paying Agency Agreement
or the Notes.
11. Payments by the Issuer to holders of Notes in payment of such Notes
will not be subject to withholding tax under the laws of [foreign jurisdiction].
12. Assuming all holders of the Notes are foreign, non-residents of
[foreign jurisdiction], the Issuer is permitted to make all payments under the
Agreement, the Issuing and Paying Agency Agreement and the Notes free and clear
of and without deduction or withholding for or on account of any taxes and all
such payments will not be subject to any taxes imposed by [foreign
jurisdiction]. Neither the Agreement, the Issuing and Paying Agency Agreement
nor any Note is subject to any stamp or documentary tax or other similar charge
imposed by any governmental agency having jurisdiction over the Issuer,
including but not limited to any registration or stamp tax of [foreign
jurisdiction] or any political subdivision or taxing authority thereof or
therein in connection with the execution, issuance, delivery, performance,
enforcement or introduction into evidence in a court of [foreign jurisdiction]
of the Agreement, the Issuing and Paying Agency Agreement or any Note.
13. The choice of New York law to govern the Agreement, the Issuing and
Paying Agency Agreement and the Notes is, under the laws of [foreign
jurisdiction], a valid, effective and irrevocable choice of law.
14. The submission by the Issuer, in the Agreement, to the jurisdiction
of the United States District Court for the Southern District of New York and
courts of the State of New York is valid and binding upon the Issuer under the
laws of [foreign jurisdiction].
15. Any final judgment rendered by any Federal or State court of
competent jurisdiction located in the State of New York in an action to enforce
the obligations of the Issuer under the Agreement, the Issuing and Paying Agency
Agreement or the Notes, is capable of being enforced in the courts of [foreign
jurisdiction].
This opinion may be delivered to the Issuing and Paying Agent, each
holder from time to time of Notes and any nationally recognized rating agency
(in connection with the rating of the Notes), each of which may rely on this
opinion to the same extent as if such opinion were addressed to it.
Very truly yours,
Exhibit 10(g) Page 17
Model Certificate as to Resolutions6
[Name of Issuer]
I, ____________, the [Assistant] Secretary of _______________, a
_____________ corporation (the "Issuer"), do hereby certify, in connection with
the issuance and sale of short-term promissory notes under the Commercial Paper
Dealer Agreement dated ____________, 199_ (the "Agreement", the terms defined
therein being used herein as therein defined) between the Issuer and
_______________ (the "Dealer"), that:
1. The following resolution was duly adopted by the Board of Directors
of the Issuer [by unanimous written consent dated _____, 199_] [at a meeting
thereof duly called and held on _______, 199_, at which meeting a quorum was
present and acting throughout], and such resolution has not been amended,
modified or revoked and is in full force and effect on the date hereof:
RESOLVED, that the Chairman of the Board, the President, the
Executive Vice President, any Vice President and the Treasurer of the
Issuer be, and each of them hereby is, authorized to: (i) borrow for
the use and benefit of the Issuer from time to time up to an aggregate
of $___________ at any one time outstanding through the issuance of
commercial paper notes; (ii) execute such commercial paper notes in the
name and on behalf of the Issuer; (iii) execute and deliver, (A) a
Commercial Paper Dealer Agreement between the Issuer and _____________,
as Dealer, providing, among other things, for the sale of commercial
paper notes on behalf of the Issuer and the indemnification of the
Dealer in connection therewith and (B) an Issuing and Paying Agency
Agreement between the Issuer and _____________, as issuing and paying
agent; (iv) delegate to any other officers or employees of the Issuer
authority to give instructions to the Dealer pursuant to the Agreement;
and (v) do such acts and execute such other instruments and documents
as may be necessary and proper to effect the transactions contemplated
hereby including (A) amending documents referred to herein and (B)
appointing additional dealers and successors to any of the parties
named.
2. Each of the Agreement and the Issuing and Paying Agency Agreement,
as executed and delivered by the Issuer, is substantially in the form thereof
approved by the Board of Directors and referred to in the resolution set forth
in paragraph 1 hereof.
IN WITNESS WHEREOF, I have signed this certificate the _____ day of
_________, 199_.
------------------------
Assistant Secretary
---------------------
6 This model certificate will serve as a guide for resolutions adopted by the
Issuer. Any resolutions actually adopted, regardless of form, should cover
all the substantive matters covered in this model, and a certificate
substantially to the effect of this model is required to be delivered to the
Dealer under Section 3.6(c) of the Agreement.
Exhibit 10(g) Page 18