SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) May 26, 1999
BERGEN BRUNSWIG CORPORATION
(Exact name of registrant as specified in its charter)
New Jersey 1-5110 22-1444512
(State or other jurisdiction (Commission (I.R.S. Employer
of incorporation) File Number) Identification No.)
4000 Metropolitan Drive, Orange, California 92868
- --------------------------------------------------------------------------------
(Address of principal executive offices) (ZIP code)
Registrant's telephone number, including area code: (714) 385-4000
- --------------------------------------------------------------------------------
(Former name or former address, if changed since last report)
<PAGE>
Item 5. Other Events
On May 26, 1999, Bergen Capital Trust I (the "Trust"), a wholly-owned
subsidiary of Bergen Brunswig Corporation ("Bergen"), issued $300,000,000
aggregate liquidation amount of its 7.80% Trust Originated Preferred Securities
(the "Preferred Securities") at a public offering price of $25 per Preferred
Security. The Preferred Securities are guaranteed by Bergen to the extent
described in Bergen's and the Trust's Prospectus Supplement dated May 20, 1999
and filed with the Securities and Exchange Commission on May 24, 1999 pursuant
to Rule 424(b) under the Securities Act of 1933, as amended. The Trust has
invested the proceeds from such sale, together with the proceeds from the sale
of its common securities to Bergen, in $309,278,350 aggregate principal amount
of 7.80% Subordinated Deferrable Interest Notes due June 30, 2039 of Bergen.
Item 7. Exhibits
4.1 Amended and Restated Declaration of Trust of Bergen Capital Trust I, dated
as of May 26, 1999.
4.2 Officers' Certificate, dated as of May 24, 1999, pursuant to the Indenture.
4.3 Form of 7.80% Subordinated Deferrable Interest Notes due June 30, 2039.
4.4 Preferred Securities Guarantee Agreement, dated as of May 26, 1999, between
Chase Manhattan Bank and Trust Company, National Association, as Trustee
and Bergen.
4.5 Common Securities Guarantee Agreement, dated as of May 26, 1999, between
Chase Manhattan Bank and Trust Company, National Association, as Trustee
and Bergen.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
BERGEN BRUNSWIG CORPORATION
(Registrant)
DATE: May 26, 1999 By: /s/ Neil F. Dimick
--------------------------
Name: Neil F. Dimick
Title: Executive Vice President
and Chief Financial Officer
<PAGE>
EXHIBIT INDEX
EXHIBIT
4.1 Amended and Restated Declaration of Trust of Bergen Capital Trust I, dated
as of May 26, 1999.
4.2 Officers' Certificate, dated as of May 24, 1999, pursuant to the Indenture.
4.3 Form of 7.80% Subordinated Deferrable Interest Notes due June 30, 2039.
4.4 Preferred Securities Guarantee Agreement, dated as of May 26, 1999, between
Chase Manhattan Bank and Trust Company, National Association, as Trustee
and Bergen.
4.5 Common Securities Guarantee Agreement, dated as of May 26, 1999, between
Chase Manhattan Bank and Trust Company, National Association, as Trustee
and Bergen.
EXHIBIT 4.1
AMENDED AND RESTATED DECLARATION
OF TRUST
BERGEN CAPITAL TRUST I
Dated as of May 26, 1999
<PAGE>
Table of Contents
Page
ARTICLE I
INTERPRETATION AND DEFINITIONS
Section 1.1 Definitions................................................. 1
ARTICLE II
TRUST INDENTURE ACT
Section 2.1 Trust Indenture Act; Application............................. 7
Section 2.2 Lists of Holders of Securities............................... 8
Section 2.3 Reports by the Property Trustee.............................. 8
Section 2.4 Periodic Reports to the Property Trustee..................... 8
Section 2.5 Evidence of Compliance with Conditions Precedent............. 9
Section 2.6 Events of Default; Waiver.................................... 9
Section 2.7 Event of Default; Notice..................................... 11
ARTICLE III
ORGANIZATION
Section 3.1 Name......................................................... 11
Section 3.2 Office....................................................... 12
Section 3.3 Purpose...................................................... 12
Section 3.4 Authority.................................................... 12
Section 3.5 Title to Property of the Trust............................... 13
Section 3.6 Powers and Duties of the Regular Trustees.................... 13
Section 3.7 Prohibition of Actions by the Trust and the Trustees......... 17
Section 3.8 Powers and Duties of the Property Trustee.................... 17
Section 3.9 Certain Duties and Responsibilities of the Property Trustee.. 20
Section 3.10 Certain Rights of the Property Trustee....................... 21
Section 3.11 Delaware Trustee............................................. 23
Section 3.12 Execution of Documents....................................... 23
Section 3.13 Not Responsible for Recitals or Issuance of Securities....... 23
Section 3.14 Duration of Trust............................................ 23
Section 3.15 Mergers...................................................... 23
ARTICLE IV
SPONSOR
Section 4.1 Sponsor's Purchase of Common Securities...................... 25
Section 4.2 Responsibilities of the Sponsor.............................. 25
Section 4.3 Right to Proceed............................................. 26
ARTICLE V
TRUSTEES
Section 5.1 Number of Trustees........................................... 26
Section 5.2 Delaware Trustee............................................. 27
Section 5.3 Property Trustee; Eligibility................................ 27
Section 5.4 Qualifications of Regular Trustees and Delaware Trustee...... 28
Section 5.5 Regular Trustees............................................. 28
Section 5.6 Appointment, Removal and Resignation of Trustees............. 29
Section 5.7 Vacancies Among Trustees..................................... 30
Section 5.8 Effect of Vacancies.......................................... 30
Section 5.9 Meetings..................................................... 30
Section 5.10 Delegation of Power.......................................... 31
Section 5.11 Merger, Conversion, Consolidation or Succession to
Business..................................................... 31
ARTICLE VI
DISTRIBUTIONS
Section 6.1 Distributions................................................ 32
ARTICLE VII
ISSUANCE OF SECURITIES
Section 7.1 General Provisions Regarding Securities...................... 32
ARTICLE VIII
DISSOLUTION AND TERMINATION OF TRUST
Section 8.1 Dissolution and Termination of Trust......................... 33
ARTICLE IX
TRANSFER OF INTERESTS
Section 9.1 Transfer of Securities....................................... 34
Section 9.2 Transfer of Certificates..................................... 35
Section 9.3 Deemed Security Holders...................................... 36
Section 9.4 Book Entry Interests......................................... 37
Section 9.5 Notices to Clearing Agency................................... 38
Section 9.6 Appointment of Successor Clearing Agency..................... 38
Section 9.7 Definitive Preferred Security Certificates Under Certain
Circumstances................................................ 39
Section 9.8 Mutilated, Destroyed, Lost or Stolen Certificates............ 40
ARTICLE X
LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
Section 10.1 Liability.................................................... 40
Section 10.2 Exculpation.................................................. 41
Section 10.3 Fiduciary Duty............................................... 41
Section 10.4 Indemnification and Compensation............................. 42
Section 10.5 Outside Businesses........................................... 43
ARTICLE XI
ACCOUNTING
Section 11.1 Fiscal Year.................................................. 43
Section 11.2 Certain Accounting Matters................................... 44
Section 11.3 Banking...................................................... 44
Section 11.4 Withholding.................................................. 44
ARTICLE XII
AMENDMENTS AND MEETINGS
Section 12.1 Amendments................................................... 45
Section 12.2 Meetings of the Holders of Securities; Action by Written
Consent...................................................... 47
ARTICLE XIII
REPRESENTATIONS OF THE PROPERTY TRUSTEE AND THE DELAWARE TRUSTEE
Section 13.1 Representations and Warranties of the Property Trustee....... 48
Section 13.2 Representations and Warranties of the Delaware Trustee....... 49
ARTICLE XIV
MISCELLANEOUS
Section 14.1 Notices...................................................... 50
Section 14.2 Governing Law................................................ 51
Section 14.3 Intention of the Parties..................................... 51
Section 14.4 Headings..................................................... 51
Section 14.5 Successors and Assigns....................................... 51
Section 14.6 Partial Enforceability....................................... 51
Section 14.7 Counterparts................................................. 52
Signatures .............................................................. 53
Exhibit A Terms of Preferred Securities and Common Securities............... 55
<PAGE>
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
BERGEN CAPITAL TRUST I
May 26, 1999
THIS AMENDED AND RESTATED DECLARATION OF TRUST ("Declaration"), dated
and effective as of May 26, 1999, by the undersigned trustees (together with all
other Persons from time to time duly appointed and serving as trustees in
accordance with the provisions of this Declaration, the "Trustees"), Bergen
Brunswig Corporation, a New Jersey corporation, as trust sponsor (the
"Sponsor"), and by the holders, from time to time, of the securities
representing undivided beneficial interests in the assets of the Bergen Capital
Trust I (the "Trust") to be issued pursuant to this Declaration;
WITTNESSETH THAT
WHEREAS, the Trustees and the Sponsor established the Trust under the
Business Trust Act (as defined herein) pursuant to a Declaration of Trust, dated
as of March 11, 1999 (the "Original Declaration") and a Certificate of Trust
filed with the Secretary of State of Delaware on March 11, 1999, for the sole
purpose of issuing and selling certain securities representing undivided
beneficial interests in the assets of the Trust and investing the proceeds
thereof in certain Subordinated Notes (as defined herein) of the Subordinated
Notes Issuer (as defined herein);
WHEREAS, as of the date hereof, no interests in the Trust have been
issued; and
WHEREAS, all of the Trustees and the Sponsor, by this Declaration,
amend and restate each and every term and provision of the Original Declaration,
NOW, THEREFORE, it being the intention of the parties hereto to
continue the Trust as a business trust under the Business Trust Act and that
this Declaration constitute the governing instrument of such business trust, the
Trustees declare that all assets contributed to the Trust will be held in trust
for the benefit of the holders, from time to time, of the securities
representing undivided beneficial interests in the assets of the Trust issued
hereunder, subject to the provisions of this Declaration.
ARTICLE I
INTERPRETATION AND DEFINITIONS
Section 1.1 Definitions.
Unless the context otherwise requires:
<PAGE>
(a) Capitalized terms used in this Declaration but not defined in the
preamble above have the respective meanings assigned to them in this Section
1.1;
(b) a term defined anywhere in this Declaration has the same meaning
throughout;
(c) all references to "the Declaration" or "this Declaration" are to
this Amended and Restated Declaration of Trust as modified, supplemented or
amended from time to time;
(d) all references in this Declaration to Articles and Sections and
Exhibits are to Articles and Sections of and Exhibits to this Declaration unless
otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning
when used in this Declaration unless otherwise defined in this Declaration; and
(f) a reference to the singular includes the plural and vice versa.
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 as in effect on the date of this Declaration.
"Authorized Officer" of a Person means any Person that is authorized
to bind such Person.
"Book Entry Interest" means a beneficial interest in a Global
Certificate, ownership and transfers of which shall be maintained and made
through book entries by a Clearing Agency as described in Section 9.4.
"Business Day" means any day other than a day on which banking
institutions in New York, New York are authorized or required by law to close.
"Business Trust Act" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. C. Sections 3801 et seq., as it may be amended from time to time,
or any successor legislation.
"Certificate" means a Common Security Certificate or a Preferred
Security Certificate.
"Clearing Agency" means an organization registered as a "Clearing
Agency" pursuant to Section 17A of the Exchange Act that is acting as depositary
for the Preferred Securities and in whose name, or in the name of a nominee of
<PAGE>
that organization, shall be registered a Global Certificate and which shall
undertake to effect book entry transfers and pledges of the Preferred
Securities.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time the Clearing
Agency effects book entry transfers and pledges of securities deposited with the
Clearing Agency.
"Closing Date" means May 26, 1999.
"Code" means the Internal Revenue Code of 1986, as amended, or any
successor legislation.
"Commission" means the Securities and Exchange Commission.
"Common Security" has the meaning specified in Section 7.1.
"Common Securities Guarantee" means the guarantee agreement to be
dated as of May 26, 1999 of the Sponsor in respect of the Common Securities.
"Common Securities Subscription Agreement" has the meaning set forth
in Section 3.6(c).
"Common Security Certificate" means a definitive certificate in fully
registered form representing a Common Security substantially in the form of
Annex II to Exhibit A attached hereto.
"Covered Person" means: (a) any officer, director, shareholder,
partner, member, representative, employee or agent of: (i) the Trust; or (ii)
the Trust's Affiliates; and (b) any Holder of Securities.
"Definitive Preferred Security Certificates" has the meaning set forth
in Section 9.4.
"Delaware Secretary of State" means the Office of the Secretary of
State of the State of Delaware.
"Delaware Trustee" has the meaning set forth in Section 5.1.
"Direct Action" has the meaning set forth in Section 3.8(e).
"Distribution" means a distribution payable to Holders of Securities
in accordance with Section 6.1.
"DTC" means The Depository Trust Company, the initial Clearing Agency.
<PAGE>
"Event of Default" in respect of the Securities means an Event of
Default (as defined in the Indenture) has occurred and is continuing in respect
of the Subordinated Notes.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time or any successor legislation.
"Global Certificate" has the meaning set forth in Section 9.4.
"Holder" means a Person in whose name a Certificate representing a
Security is registered, such Person being a beneficial owner within the meaning
of the Business Trust Act.
"Indemnified Person" means
(i) any Trustee;
(ii) any Affiliate of any Trustee;
(iii) any officers, directors, shareholders, members, partners,
employees, representatives or agents of any Trustee; or
(iv) any employee or agent of the Trust or its Affiliates.
"Indenture" means the Indenture dated as of May 14, 1999 among the
Subordinated Notes Issuer and Chase Manhattan Bank and Trust Company, National
Association, as trustee, as supplemented by an Officers' Certificate (as defined
in the Indenture) dated as of May 24, 1999 pursuant to Section 3.01 of the
Indenture.
"Investment Company" means an investment company as defined in the
Investment Company Act.
"Investment Company Act" means the Investment Company Act of 1940, as
amended from time to time or any successor legislation.
"Legal Action" has the meaning set forth in Section 3.6(h).
"Majority in liquidation amount of the Securities" means, except as
provided in the terms of the Preferred Securities and by the Trust Indenture
Act, Holder(s) of Securities voting together as a single class or, as the
context may require, Holder(s) of Preferred Securities or Common Securities
voting separately as a class, who vote Securities of a relevant class and the
aggregate liquidation amount (including the stated amount that would be paid on
redemption, liquidation or otherwise, plus accrued and unpaid Distributions to
<PAGE>
the date upon which the voting percentages are determined) of the Securities
voted by such Holders represents more than 50% of the above stated aggregate
liquidation amount of all Securities of such class.
"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 Declaration 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.
"Paying Agent" has the meaning specified in Section 3.8(h).
"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.
"Preferred Securities Guarantee" means the guarantee agreement to be
dated as of May 26, 1999 of the Sponsor in respect of the Preferred Securities.
"Preferred Security" has the meaning specified in Section 7.1.
"Preferred Security Beneficial Owner" or "Beneficial Owner of
Preferred Securities" means, with respect to a Book Entry Interest, a Person who
is the beneficial owner of such Book Entry Interest, as reflected on the books
of the Clearing Agency, or on the books of a Person maintaining an account with
such Clearing Agency (directly as a Clearing Agency Participant or as an
indirect participant, in each case in accordance with the rules of such Clearing
Agency).
"Preferred Security Certificate" means a certificate representing a
Preferred Security substantially in the form of Annex I to Exhibit A attached
hereto.
<PAGE>
"Property Trustee" means the Trustee meeting the eligibility
requirements set forth in Section 5.3.
"Property Trustee Account" has the meaning set forth in Section
3.8(c).
"Purchase Agreement" means the purchase agreement or underwriting
agreement for the offering and sale of Preferred Securities, substantially in
the form of Exhibit B attached hereto.
"Quorum" means a majority of the Regular Trustees or if there are only
two Regular Trustees, both of them.
"Regular Trustee" means any Trustee other than the Property Trustee or
the Delaware Trustee.
"Related Party" means, with respect to the Sponsor, any direct or
indirect wholly owned subsidiary of the Sponsor or any other Person that owns,
directly or indirectly, 100% of the outstanding voting securities of the
Sponsor.
"Responsible Officer" means, with respect to the Property Trustee, any
officer of the Property 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.
"Securities" means the Common Securities and the Preferred Securities.
"Securities Act" means the Securities Act of 1933, as amended, or any
successor legislation.
"Special Event" has the meaning set forth in the terms of the
Securities.
"Sponsor" means Bergen Brunswig Corporation, a New Jersey corporation,
or any permitted successor thereof under the Indenture, in its capacity as
sponsor of the Trust.
"Subordinated Notes" means the series of Subordinated Notes to be
issued by the Subordinated Notes Issuer under the Indenture to be held by the
Property Trustee pursuant to Section 3.6(d), a specimen certificate for such
series of Subordinated Notes being attached hereto as Exhibit C.
"Subordinated Notes Issuer" means Bergen Brunswig Corporation, a New
Jersey corporation.
<PAGE>
"Subordinated Notes Subscription Agreement" has the meaning set forth
in Section 3.6(d).
"Subordinated Notes Trustee" means Chase Manhattan Bank and Trust
Company, National Association, as trustee under the Indenture until a successor
is appointed thereunder and thereafter means such successor trustee.
"Successor Property Trustee" means a successor Trustee possessing the
qualifications to act as Property Trustee under Section 5.3(a).
"25% in liquidation amount of the Securities" means, except as
provided in the terms of the Preferred Securities and by the Trust Indenture
Act, Holder(s) of Securities voting together as a single class or, as the
context may require, Holder(s) of Preferred Securities or Common Securities,
voting separately as a class, who vote Securities of a relevant class and the
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 Securities
voted by such Holders represents 25% of the above stated aggregate liquidation
amount of all Securities of such class.
"Treasury Regulations" means the income tax regulations, including
temporary and proposed regulations, promulgated under the Code by the United
States Treasury, as such regulations may be amended from time to time (including
corresponding provisions of succeeding regulations).
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended from time to time, or any successor legislation.
"Trustee" or "Trustees" means each Person who has signed this
Declaration as a trustee, so long as such Person shall continue to serve as a
trustee in accordance with the terms hereof, and all other Persons who may from
time to time be duly appointed, qualified and serving as trustees in accordance
with the provisions hereof, and references herein to a Trustee or the Trustees
shall refer to such Person or Persons solely in their capacity as trustees
hereunder.
ARTICLE II
TRUST INDENTURE ACT
Section 2.1 Trust Indenture Act; Application.
(a) This Declaration is subject to the provisions of the Trust
Indenture Act that are required to be part of this Declaration and shall, to the
extent applicable, be governed by such provisions;
<PAGE>
(b) the Property Trustee shall be the only Trustee which is a trustee
for the purposes of the Trust Indenture Act;
(c) if and to the extent that any provision of this Declaration
limits, qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control; and
(d) the application of the Trust Indenture Act to this Declaration
shall not affect the nature of the Securities as equity securities representing
undivided beneficial interests in the assets of the Trust.
Section 2.2 Lists of Holders of Securities.
(a) Each of the Sponsor and the Regular Trustees, on behalf of the
Trust, shall provide the Property Trustee (i) semiannually, not later than June
30 and December 31 in each year, a list, in such form as the Property Trustee
may reasonably require, containing all the information in the possession or
control of the Sponsor, or any of its Paying Agents other than the Property
Trustee, as to the names and addresses of the Holders of 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 Property Trustee may request in writing, within
30 days after the receipt by the Trust 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 Property Trustee shall preserve, in as current a form as is
reasonably practicable, all information contained in each List of Holders given
to it or which it receives in its capacity as Paying Agent (if acting in such
capacity) provided that the Property Trustee may destroy any List of Holders
previously given to it on receipt of a new List of Holders.
(b) The Property Trustee shall comply with its obligations under
Sections 311(a), 311(b) and 312(b) of the Trust Indenture Act.
Section 2.3 Reports by the Property Trustee.
Within 60 days after May 15 of each year, commencing May 15, 1999, the
Property Trustee shall provide to the Holders of the 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 Property
Trustee shall also comply with the requirements of Section 313(d) of the Trust
Indenture Act.
Section 2.4 Periodic Reports to the Property Trustee.
Each of the Sponsor and the Regular Trustees, on behalf of the Trust,
shall provide to the Property Trustee such documents, reports and information as
required by Section 314 of the Trust Indenture Act (if any) and the compliance
<PAGE>
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 2.5 Evidence of Compliance with Conditions Precedent.
Each of the Sponsor and the Regular Trustees, on behalf of the Trust,
shall provide to the Property Trustee such evidence of compliance with any
conditions precedent, if any, provided for in this Declaration 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 2.6 Events of Default; Waiver.
(a) The Holders of a Majority in liquidation amount of Preferred
Securities may, by vote, on behalf of the Holders of all of the Preferred
Securities, waive any past Event of Default in respect of the Preferred
Securities and its consequences, provided that, if the underlying Event of
Default under the Indenture:
(i) is not waivable under the Indenture, the Event of Default
under this Declaration shall also not be waivable; or
(ii) requires the consent or vote of greater than a majority in
principal amount of the holders of Subordinated Notes affected thereby (a
"Super Majority") to be waived under the Indenture, the Event of Default
under this Declaration may only be waived by the vote of the Holders of at
least the proportion in liquidation amount of the Preferred Securities
which the relevant Super Majority represents of the aggregate principal
amount of the Subordinated Notes outstanding.
The foregoing provisions of this Section 2.6(a) shall be in lieu of Section
316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B) of the
Trust Indenture Act is hereby expressly excluded from this Declaration and the
Securities, as permitted by the Trust Indenture Act. Upon such waiver, any such
default shall cease to exist, and any Event of Default with respect to the
Preferred Securities arising therefrom shall be deemed to have been cured, for
every purpose of this Declaration, but no such waiver shall extend to any
subsequent or other default or Event of Default with respect to the Preferred
Securities or impair any right consequent thereon. Any waiver by the Holders of
the Preferred Securities of an Event of Default with respect to the Preferred
Securities shall also be deemed to constitute a waiver by the Holders of the
Common Securities of any such Event of Default with respect to the Common
Securities for all purposes of this Declaration without any further act, vote or
consent of the Holders of the Common Securities.
(b) The Holders of a Majority in liquidation amount of the Common
Securities may, by vote, on behalf of the Holders of all of the Common
Securities, waive any past Event of Default with respect to the Common
<PAGE>
Securities and its consequences, provided that, if the underlying Event of
Default under the Indenture:
(i) is not waivable under the Indenture, except where the Holders
of the Common Securities are deemed to have waived such Event of Default
under this Declaration as provided below in the proviso to this Section
2.6(b), the Event of Default under this Declaration shall also be not
waivable; or
(ii) requires the consent or vote of a Super Majority to be
waived, except where the Holders of the Common Securities are deemed to
have waived such Event of Default under this Declaration as provided below
in the proviso to this Section 2.6(b), the Event of Default under this
Declaration may only be waived by the vote of the Holders of at least the
proportion in liquidation amount of the Common Securities which the
relevant Super Majority represents of the aggregate principal amount of the
Subordinated Notes outstanding,
provided further, each Holder of Common Securities will be deemed to have waived
any such Event of Default and all Events of Default with respect to the Common
Securities and its consequences until all Events of Default with respect to the
Preferred Securities have been cured, waived or otherwise eliminated and until
such Events of Default have been so cured, waived or otherwise eliminated, the
Property Trustee will be deemed to be acting solely on behalf of the Holders of
the Preferred Securities and only the Holders of the Preferred Securities will
have the right to direct the Property Trustee in accordance with the terms of
the Securities; and provided, further, that any waiver by the Holders of the
Preferred Securities of an Event of Default with respect to the Preferred
Securities shall also be deemed to constitute a waiver by the Holders of the
Common Securities of any such Event of Default with respect to the Common
Securities for all purposes of this Declaration without any further act, vote or
consent of the Holder of the Common Securities. The foregoing provisions of this
Section 2.6(b) shall be in lieu of Section 316(a)(1)(A) and Section 316(a)(1)(B)
of the Trust Indenture Act and such Section 316(a)(1)(A) and Section
316(a)(1)(B) of the Trust Indenture Act are hereby expressly excluded from this
Declaration and the Securities, as permitted by the Trust Indenture Act. Subject
to the foregoing provisions of this Section 2.6(b), upon such waiver, any such
default shall cease to exist and any Event of Default with respect to the Common
Securities arising therefrom shall be deemed to have been cured for every
purpose of this Declaration, but no such waiver shall extend to any subsequent
or other default or Event of Default with respect to the Common Securities or
impair any right consequent thereon.
(c) A waiver of any Event of Default under the Indenture by the
Property Trustee at the direction of the Holders of the Preferred Securities
constitutes a waiver of the corresponding Event of Default with respect to the
Preferred Securities under this Declaration. Any waiver of an Event of Default
under the Indenture by the Property Trustee at the direction of the Holders of
the Preferred Securities shall also be deemed to constitute a waiver by the
Holders of the Common Securities of the corresponding Event of Default under
<PAGE>
this Declaration with respect to the Common Securities for all purposes of this
Declaration without further act, vote or consent of the Holders of the Common
Securities. The foregoing provisions of this Section 2.6(c) shall be in lieu of
Section 316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B) of
the Trust Indenture Act is hereby expressly excluded from this Declaration and
the Securities, as permitted by the Trust Indenture Act.
Section 2.7 Event of Default; Notice.
(a) The Property Trustee shall, within 90 days after the occurrence of
an Event of Default with respect to the Securities known to the Property
Trustee, transmit by mail, first class postage prepaid, to the Holders of the
Securities, notices of all such Events of Default unless such Events of Default
have been cured before the giving of such notice; provided, that, except for an
Event of Default in the payment of principal of (or premium, if any) or interest
on any of the Subordinated Notes or in the payment of any sinking fund
installment established for the Subordinated Notes, the Property 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 Property Trustee in good faith determines that the
withholding of such notice is in the interests of the Holders of the Securities.
(b) The Property Trustee shall not be deemed to have knowledge of any
Event of Default except:
(i) an Event of Default under Sections 5.01(1) and 5.01(2) of the
Indenture; or
(ii) any Event of Default as to which the Property Trustee shall
have received written notice or of which a Responsible Officer of the
Property Trustee charged with the administration of the Declaration shall
have actual knowledge.
ARTICLE III
ORGANIZATION
Section 3.1 Name.
The Trust is named "Bergen Capital Trust I", as such name may be
modified from time to time by the Regular Trustees following written notice to
the Property Trustee, the Delaware Trustee and the Holders of Securities. The
Trust's activities may be conducted under the name of the Trust or any other
name deemed advisable by the Regular Trustees.
<PAGE>
Section 3.2 Office.
The address of the principal office of the Trust is c/o Bergen
Brunswig Corporation, 4000 Metropolitan Drive, Orange, California 98680
Attention: Chief Legal Officer. On ten Business Days written notice to the
Property Trustee, the Delaware Trustee and the Holders of Securities, the
Regular Trustees may designate another principal office.
Section 3.3 Purpose.
The exclusive purposes and functions of the Trust are (a) to issue and
sell Securities and use the proceeds from such sale to acquire the Subordinated
Notes, and (b) except as otherwise limited herein, to engage in only those other
activities necessary or incidental thereto. The Trust shall not borrow money,
issue debt or reinvest proceeds derived from investments, pledge any of its
assets, or otherwise undertake (or permit to be undertaken) any activity that
would cause the Trust not to be classified for United States federal income tax
purposes as a grantor trust. It is the intention of all of the parties hereto
that the Trust created hereunder constitutes (i) a business trust under the
Business Trust Act (with this Declaration as the governing instrument of the
Trust) and (ii) a "grantor trust" for United States federal income tax purposes
under the Code, and all parties hereto, and the Holders of the Preferred
Securities by the purchase of the Preferred Securities, agree to treat the Trust
in a manner consistent with such characterization. The provisions of this
Agreement shall be interpreted consistently with such characterization. Unless
otherwise required by law, by the acceptance of this Trust, the Trustees, the
Sponsor and the Holders of the Preferred Securities and the Holders of the
Common Securities each agrees that it will not take any position which is
contrary to the classification of the Trust as a grantor trust for United States
federal income tax purposes.
Section 3.4 Authority.
(a) Subject to the limitations provided in this Declaration and to the
specific duties of the Property Trustee, the Regular Trustees shall have
exclusive and complete authority to carry out the purposes of the Trust. An
action taken by the Regular Trustees in accordance with their powers shall
constitute the act of and serve to bind the Trust and an action taken by the
Property Trustee on behalf of the Trust in accordance with its powers shall
constitute the act of and serve to bind the Trust. In dealing with the Trustees
acting on behalf of the Trust, no Person shall be required to inquire into the
authority of the Trustees to bind the Trust. Persons dealing with the Trust are
entitled to rely conclusively on the power and authority of the Trustees as set
forth in this Declaration.
(b) Except as expressly set forth in this Declaration and except if a
meeting of the Regular Trustees is called with respect to any matter over which
<PAGE>
the Regular Trustees have power to act, any power of the Regular Trustees may be
exercised by, or with the consent of, any one such Regular Trustee.
(c) Unless otherwise determined by the Regular Trustees, and except as
otherwise required by the Business Trust Act or applicable law, any Regular
Trustee is authorized to execute on behalf of the Trust any documents which the
Regular Trustees have the power and authority to cause the Trust to execute
pursuant to Section 3.6, provided that the registration statement referred to in
Section 3.6, including any amendments thereto, shall, subject to Section 3.4(d),
be signed by at least two of the Regular Trustees.
(d) A Regular Trustee may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of 21 his or
her power for the purposes of executing any documents which the Regular Trustees
have power and authority to cause the Trust to execute pursuant to Section 3.6.
Section 3.5 Title to Property of the Trust.
Except as provided in Section 3.8 with respect to the Subordinated
Notes and the Property Trustee Account or as otherwise provided in this
Declaration, legal title to all assets of the Trust shall be vested in the
Trust. A Holder shall not have legal title to any part of the assets of the
Trust, but shall have an undivided beneficial interest in the assets of the
Trust.
Section 3.6 Powers and Duties of the Regular Trustees.
The Regular Trustees shall have the exclusive power, duty and
authority to cause the Trust to engage in the following activities:
(a) to execute, issue and sell the Preferred Securities and the Common
Securities in accordance with this Declaration; provided, however, that the
Trust may issue no more than one series of Preferred Securities and no more than
one series of Common Securities, and, provided further, there shall be no
interests in the Trust other than the Securities, and the issuance of Securities
shall be limited to a simultaneous issuance of both Preferred Securities and
Common Securities on the Closing Date;
(b) in connection with the issue and sale of the Preferred Securities,
at the direction of the Sponsor, to:
(i) execute and file with the Commission, at such time as
determined by the Sponsor, a registration statement on Form S-3 prepared by
the Sponsor in relation to the Preferred Securities, including any pre- and
post-effective amendments thereto and any related registration statement to
be filed pursuant to Rule 462(b) of the Securities Act prepared by the
Sponsor;
<PAGE>
(ii) execute and file any documents prepared by the Sponsor, or
take any acts as determined by the Sponsor as necessary in order to qualify
or register all or part of the Preferred Securities in any State in which
the Sponsor has determined to qualify or register such Preferred Securities
for sale;
(iii) execute and file an application prepared by the Sponsor, at
such time as determined by the Sponsor, to the New York Stock Exchange or
any other national stock exchange or the Nasdaq National Market for listing
upon notice of issuance of any Preferred Securities;
(iv) execute and file with the Commission, at such time as
determined by the Sponsor, a registration statement on Form 8-A prepared by
the Sponsor relating to the registration of the Preferred Securities under
Section 12(b) of the Exchange Act, including any amendments thereto
prepared by the Sponsor;
(v) execute and enter into, and perform its obligations under,
the Purchase Agreement providing for the sale of the Preferred Securities;
(vi) execute and deliver letters, documents, or instruments with
DTC relating to the Preferred Securities;
(vii) execute and enter into agreements relating to the Purchase
Agreement providing for the sale of the Securities;
(viii) execute and file any documents prepared by the Sponsor, or
take any acts as determined by the Sponsor to be necessary in order to
qualify or register all or part of the Preferred Securities in any State in
which the Sponsor has determined to qualify or register such Preferred
Securities for sale or resale, as the case may be; and
(ix) take all actions and perform such duties as may be required
of the Regular Trustees to open checking, deposit or similar banking
accounts as may be necessary in connection with the issuance and sale of
the Securities.
(c) in connection with the issue and sale of Common Securities, to
execute and enter into, and perform its obligations under, the Common Securities
Subscription Agreement dated as of May 26, 1999 between the Trust and the
Sponsor (the "Common Securities Subscription Agreement");
(d) to execute and enter into, and perform its obligations under, the
Subordinated Notes Subscription Agreement dated as of May 26, 1999 between the
Trust and the Sponsor (the "Subordinated Notes Subscription Agreement") to
acquire the Subordinated Notes with the proceeds of the sale of the Preferred
Securities and the Common Securities; provided, however, that the Regular
Trustees shall cause legal title to the Subordinated Notes to be owned by and
<PAGE>
held of record in the name of the Property Trustee for the benefit of the
Holders of the Preferred Securities and the Common Securities;
(e) to give the Sponsor and the Property Trustee prompt written notice
of the occurrence of a Special Event;
(f) to establish a record date with respect to all actions to be taken
hereunder that require a record date be established, including for the purposes
of Section 316(c) of the Trust Indenture Act and with respect to Distributions,
voting rights, redemptions and exchanges, and to issue relevant notices to the
Holders of Preferred Securities and Common Securities as to such actions and
applicable record dates;
(g) to take all actions and perform such duties as may be required of
the Regular Trustees pursuant to the terms of the Securities and this
Declaration;
(h) to bring or defend, pay, collect, compromise, arbitrate, resort to
legal action, or otherwise adjust claims or demands of or against the Trust
("Legal Action"), unless pursuant to Section 3.8, the Property Trustee has the
power to bring such Legal Action;
(i) to employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors, and
consultants and pay reasonable compensation for such services;
(j) to cause the Trust to comply with the Trust's obligations under
the Trust Indenture Act;
(k) to give the certificate to the Property Trustee required by
Section 314(a)(4) of the Trust Indenture Act, which certificate may be executed
by any Regular Trustee;
(l) to incur expenses which are necessary or incidental to carrying
out any of the purposes of the Trust;
(m) to act as, or appoint another Person to act as, registrar and
transfer agent for the Securities;
(n) to give prompt written notice to the Holders of the Securities of
any notice received from the Subordinated Notes Issuer of its election to defer
payments of interest on the Subordinated Notes by extending the interest payment
period under the Indenture;
(o) to take all action which may be necessary or appropriate for the
preservation and the continuation of the Trust's valid existence, rights,
franchises and privileges as a statutory business trust under the laws of the
State of Delaware and of each other jurisdiction in which such existence is
<PAGE>
necessary to protect the limited liability of the Holders of the Securities or
to enable the Trust to effect the purposes for which the Trust was created;
(p) to take any action, not inconsistent with this Declaration or with
applicable law, which the Regular Trustees determine in their discretion to be
necessary or desirable in carrying out the activities of the Trust as set out in
this Section 3.6 including, but not limited to:
(i) causing the Trust not to be deemed to be an Investment
Company required to be registered under the Investment Company Act;
(ii) causing the Trust to be classified for United States federal
income tax purposes as a grantor trust; and
(iii) cooperating with the Subordinated Notes Issuer to ensure
that the Subordinated Notes will be treated as indebtedness of the
Subordinated Notes Issuer for United States federal income tax purposes,
provided that such action relating to this clause (iii) does not adversely
affect the interests of Holders of the Securities;
(q) to take all action necessary to cause all applicable tax returns
and tax information reports that are required to be filed with respect to the
Trust to be duly prepared and filed by the Regular Trustees, on behalf of the
Trust;
(r) to take all actions and perform such duties as may be required of
the Regular Trustees pursuant to Section 11.2 herein;
(s) to the extent provided in this Declaration, to cause the winding
up of the affairs of and liquidation of the Trust and the preparation, execution
and filing of a Certificate of Cancellation with the Secretary of State of the
State of Delaware; and
(t) to execute all documents or instruments, perform all duties and
powers, and do all things for and on behalf of the Trust in all matters
necessary or incidental to the foregoing.
The Regular Trustees shall exercise the powers set forth in this
Section 3.6 in a manner which is consistent with the purposes, functions and
characterization for United States federal income tax purposes of the Trust set
out in Section 3.3 and the Regular Trustees shall not take any action which is
inconsistent with or contrary to the purposes, functions and characterization
for United States federal income tax purposes of the Trust set forth in Section
3.3.
Subject to this Section 3.6, the Regular Trustees shall have none of
the powers or the authority of the Property Trustee set forth in Section 3.8.
<PAGE>
Section 3.7 Prohibition of Actions by the Trust and the Trustees.
(a) Notwithstanding any provision herein to the contrary, the Trust
shall not, and none of the Trustees (including the Property Trustee) shall cause
the Trust to, engage in any activity other than as required or authorized by
this Declaration. In particular, the Trust shall not and none of the Trustees
(including the Property Trustee) shall cause the Trust to:
(i) invest any proceeds received by the Trust from holding the
Subordinated Notes, but shall distribute all such proceeds to Holders of
Securities pursuant to the terms of this Declaration and of the Securities;
(ii) acquire any assets other than the Subordinated Notes and any
cash proceeds received with respect thereto;
(iii) possess Trust property for other than a Trust purpose;
(iv) make any loans or incur any indebtedness other than loans
represented by the Subordinated Notes;
(v) possess any power or otherwise act in such a way as to vary
the assets of the Trust or the terms of the Securities in any way
whatsoever;
(vi) issue any securities or other evidences of beneficial
ownership of, or beneficial interest in, the Trust other than the
Securities; or
(vii) other than as expressly provided in this Declaration and
Exhibit A hereto, (A) direct the time, method and place of exercising any
trust or power conferred upon the Subordinated Notes Trustee with respect
to the Subordinated Notes, (B) waive any past default that is waivable
under Section 5.13 of the Indenture, (C) exercise any right to rescind or
annul any declaration that the principal of all the Subordinated Notes
shall be due and payable or (D) consent to any amendment, modification or
termination of the Indenture or the Subordinated Notes, where such consent
shall be required, unless the Trust shall have received an opinion of
counsel to the effect that such modification will not cause more than an
insubstantial risk that for United States federal income tax purposes the
Trust will not be classified as a grantor trust.
Section 3.8 Powers and Duties of the Property Trustee.
(a) The legal title to the Subordinated Notes shall be owned by and
held of record in the name of the Property Trustee for the benefit of the Trust
and the Holders of the Securities. The right, title and interest of the Property
Trustee to the Subordinated Notes shall vest automatically in each Person who
may hereafter be appointed as Property Trustee as set forth in Section 5.6. Such
<PAGE>
vesting and cessation of title shall be effective whether or not conveyancing
documents have been executed and delivered.
(b) The Property Trustee shall not transfer its right, title and
interest in the Subordinated Notes to the Regular Trustees or to the Delaware
Trustee (if the Property Trustee does not also act as Delaware Trustee).
(c) The Property Trustee shall:
(i) establish and maintain a segregated non-interest bearing
trust account (the "Property Trustee Account") in the name of and under the
exclusive control of the Property Trustee on behalf of the Trust and the
Holders of the Securities and, upon the receipt of payments of funds made
in respect of the Subordinated Notes held by the Property Trustee, deposit
such funds into the Property Trustee Account and make payments to the
Holders of the Preferred Securities and the Common Securities from the
Property Trustee Account in accordance with Section 6.1. Funds in the
Property Trustee Account shall be held uninvested until disbursed in
accordance with this Declaration. The Property Trustee Account shall be an
account which is maintained with a banking institution the rating on whose
long term unsecured indebtedness is at least equal to the rating assigned
to the Preferred Securities by a "nationally recognized statistical rating
organization", as that term is defined for purposes of Rule 436(g)(2) under
the Securities Act;
(ii) engage in such ministerial activities as shall be necessary
or appropriate to effect the redemption of the Preferred Securities and the
Common Securities to the extent the Subordinated Notes are redeemed or
mature; and
(iii) upon notice of distribution issued by the Regular Trustees
in accordance with the terms of the Preferred Securities and the Common
Securities, engage in such ministerial activities as shall be necessary or
appropriate to effect the distribution of the Subordinated Notes to Holders
of Securities upon the Sponsor's election to dissolve the Trust in
accordance with Section 8.1(a)(v).
(d) The Property Trustee shall take all actions and perform such
duties as may be specifically required of the Property Trustee pursuant to the
terms of the Securities and this Declaration.
(e) The Property Trustee shall have the power to take any Legal Action
which arises out of or in connection with an Event of Default or the Property
Trustee's duties and obligations under this Declaration, the Business Trust Act
or the Trust Indenture Act. If the Property Trustee fails to enforce its rights
under the Subordinated Notes after a Holder of Preferred Securities has made a
written request, such Holder may, to the extent permitted by applicable law,
institute a legal proceeding against the Subordinated Notes Issuer, to enforce
the Property Trustee's rights under the Subordinated Notes, without first
<PAGE>
instituting any legal proceeding against the Property Trustee or any other
Person. Notwithstanding the foregoing, if an Event of Default has occurred and
is continuing and such event is attributable to the failure of the Subordinated
Notes Issuer to pay interest, premium, if any, or principal on the Subordinated
Notes on the date such interest, premium, if any, or principal is otherwise
payable (or in the case of redemption, on the redemption date), then a Holder of
Preferred Securities may directly institute a proceeding for enforcement of
payment to such Holder of the principal of, premium, if any, or interest on, the
Subordinated Notes having a principal amount equal to the aggregate liquidation
amount of the Preferred Securities of such Holder (a "Direct Action").
Notwithstanding any payments made to such Holder of Preferred Securities by the
Subordinated Notes Issuer in connection with a Direct Action, the Subordinated
Notes Issuer shall remain obligated to pay the principal of, premium, if any, or
interest on the Subordinated Notes held by the Trust or the Property Trustee of
the Trust, and the Subordinated Notes Issuer shall be subrogated to the rights
of the Holder of such Preferred Securities with respect to payments on the
Preferred Securities. Except as provided in the preceding sentences and in the
Preferred Securities Guarantee, the Holders of Preferred Securities will not be
able to exercise directly any other remedy available to the holders of the
Subordinated Notes.
(f) No resignation of the Property Trustee shall be effective unless
either:
(i) the Trust has been completely liquidated and the proceeds of
the liquidation distributed to the Holders of Securities pursuant to the
terms of the Securities; or
(ii) a Successor Property Trustee has been appointed and accepted
that appointment in accordance with Section 5.6.
(g) The Property Trustee shall have the legal power to exercise all of
the rights, powers and privileges of a holder of Subordinated Notes under the
Indenture and, if an Event of Default occurs and is continuing, the Property
Trustee shall, for the benefit of Holders of the Securities, enforce its rights
as holder of the Subordinated Notes subject to the rights of the Holders
pursuant to the terms of such Securities and this Declaration.
(h) The Property Trustee may authorize one or more Persons (each, a
"Paying Agent") to pay Distributions, redemption payments or liquidation
payments on behalf of the Trust with respect to the Preferred Securities and any
such Paying Agent shall comply with Section 317(b) of the Trust Indenture Act.
Any Paying Agent may be removed by the Property Trustee at any time and a
successor Paying Agent or additional Paying Agents may be appointed at any time
by the Property Trustee.
(i) Subject to this Section 3.8, the Property Trustee shall have none
of the powers or the authority of the Regular Trustees set forth in Section 3.6.
<PAGE>
(j) The Property Trustee must exercise the powers set forth in this
Section 3.8 in a manner which is consistent with the purposes, functions and
characterization for United States federal income tax purposes of the Trust set
forth in Section 3.3 and the Property Trustee shall not take any action which is
inconsistent with or contrary to the purposes, functions and characterization
for United States federal income tax purposes of the Trust set out in Section
3.3.
(k) The Trust initially appoints the Property Trustee as transfer
agent and registrar for the Preferred Securities.
Section 3.9 Certain Duties and Responsibilities of the Property Trustee.
(a) The Property 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 Declaration and in the terms of the
Securities, and no implied covenants, duties or obligations shall be read
into this Declaration against the Property Trustee; and
(ii) in the absence of bad faith on the part of the Property
Trustee, the Property 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 Property Trustee and conforming
to the requirements of this Declaration; but in the case of any such
certificates or opinions that by any provision hereof are specifically
required to be furnished to the Property Trustee, the Property Trustee
shall be under a duty to examine the same to determine whether or not they
conform to the requirements of this Declaration.
In case an Event of Default has occurred (that has not been cured or waived
pursuant to Section 2.6), the Property Trustee shall exercise such of the rights
and powers vested in it by this Declaration, 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;
(b) no provision of this Declaration shall be construed to relieve the
Property 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
(a) of this Section;
(ii) the Property Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Property
Trustee, unless it shall be proved that the Property Trustee was negligent
in ascertaining the pertinent facts;
<PAGE>
(iii) the Property 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 Securities at the time outstanding relating to
the time, method and place of conducting any proceeding for any remedy
available to the Property Trustee, or exercising any trust or power
conferred upon the Property Trustee under this Declaration including,
without limitation, with respect to the Securities; and
(iv) no provision of this Declaration shall require the Property
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.
(c) Whether or not therein expressly so provided, every provision of
this Declaration relating to the conduct or affecting the liability of or
affording protection to the Property Trustee shall be subject to the provisions
of this Section.
Section 3.10 Certain Rights of the Property Trustee.
Subject to the provisions of Section 3.9:
(a) the Property 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;
(b) any act of the Sponsor or the Regular Trustees contemplated by
this Declaration shall be sufficiently evidenced by an Officers' Certificate;
(c) whenever in the administration of this Declaration, the Property
Trustee shall deem it desirable that a matter be proved or established before
taking, suffering or omitting any action hereunder, the Property Trustee (unless
other evidence is herein specifically prescribed) may, in the absence of bad
faith on its part, request and rely upon an Officers' Certificate which, upon
receipt of such request, shall be promptly delivered by the Sponsor or the
Regular Trustees;
(d) the Property Trustee shall have no duty to see to any recording,
filing or registration of any instrument (or any recording, refiling or
registration thereof);
(e) the Property 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 Sponsor or any of its Affiliates,
and may include any of its employees;
<PAGE>
(f) the Property Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Declaration at the request or
direction of any Holder, unless such Holder shall have offered to the Property
Trustee reasonable security or indemnity against the costs, expenses and
liabilities that might be incurred by it in complying with such request or
direction;
(g) the Property 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 Property Trustee, in its
discretion, may make such further inquiry or investigation into such facts or
matters as it may see fit and, if the Property Trustee shall determine to make
such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Trust, personally or by agent or attorney;
(h) the Property 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 Property 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;
(i) any action taken by the Property Trustee or its agents hereunder
shall bind the Trust and the Holders of the Securities and the signature of the
Property 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 Property Trustee to so act, or as to its compliance with
any of the terms and provisions of this Declaration, both of which shall be
conclusively evidenced by the Property Trustee's or its agent's taking such
action;
(j) whenever in the administration of this Declaration the Property
Trustee shall deem it desirable to receive instructions with respect to
enforcing any remedy or right or taking any other action hereunder, the Property
Trustee (i) may request instructions from the Holders of the Securities which
instructions may only be given by the Holders of the same proportion in
liquidation amount of the Securities as would be entitled to direct the Property
Trustee under the terms of the 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; and
(k) the Property 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 Declaration.
<PAGE>
Section 3.11 Delaware Trustee.
Notwithstanding any other provision of this Declaration other than
Section 5.1, the Delaware Trustee shall not be entitled to exercise any powers,
nor shall the Delaware Trustee have any of the duties and responsibilities of
the Trustees described in this Declaration, except as mandated by the Business
Trust Act. Except as set forth in Section 5.1, the Delaware Trustee shall be a
Trustee for the sole and limited purpose of fulfilling the requirements of
Section 3807(a) of the Business Trust Act. In the event that the Delaware
Trustee shall at any time be required to take any action or perform any duty
hereunder, the Delaware Trustee shall be entitled to the benefits of Section
3.10. No implied covenants or obligations shall be read into this Declaration
against the Delaware Trustee.
Section 3.12 Execution of Documents.
Unless otherwise determined by the Regular Trustees and except as
otherwise required by the Business Trust Act, each of the Regular Trustees are
authorized to execute on behalf of the Trust any documents which the Regular
Trustees have the power and authority to execute pursuant to Section 3.6.
Section 3.13 Not Responsible for Recitals or Issuance of Securities.
The recitals contained in this Declaration and the Securities shall be
taken as the statements of the Sponsor, and the Trustees do not assume any
responsibility for their correctness. The Trustees make no representations as to
the value or condition of the property of the Trust or any part thereof. The
Trustees make no representations as to the validity or sufficiency of this
Declaration or the Securities.
Section 3.14 Duration of Trust.
The Trust, unless terminated pursuant to the provisions of Article
VIII hereof, shall have existence for 42 years from the Closing Date.
Section 3.15 Mergers.
(a) The Trust may not consolidate, amalgamate, merge with or into, or
be replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any corporation or other body, except as
described in Sections 3.15(b) and (c).
(b) The Trust may, with the consent of a majority of the Regular
Trustees and without the consent of the Holders of the Securities, the Delaware
Trustee or the Property Trustee, consolidate, amalgamate, merge with or into, or
be replaced by a trust organized as such under the laws of any State; provided,
that if the Trust is not the surviving entity:
<PAGE>
(i) such successor entity (the "Successor Entity") either:
(A) expressly assumes all of the obligations of the Trust
under the Securities; or
(B) substitutes for the Preferred Securities other
securities having substantially the same terms as the Preferred
Securities (the "Successor Securities") so long as the Successor
Securities rank the same as the Preferred Securities rank with respect
to Distributions and payments upon liquidation, redemption and
maturity and substitutes for the Common Securities other securities
having substantially the same terms as the Common Securities (the
"Successor Common Securities"), so long as the Successor Common
Securities rank the same as the Common Securities rank with respect to
Distributions and payments upon liquidation, redemption, repayment and
otherwise;
(ii) the Subordinated Notes Issuer expressly acknowledges a
trustee of the Successor Entity which possesses the same powers and duties
as the Property Trustee as the Holder of the Subordinated Notes;
(iii) such merger, consolidation, amalgamation or replacement
does not cause the Preferred Securities (including any Successor
Securities) to be downgraded by any nationally recognized statistical
rating organization;
(iv) such merger, consolidation, amalgamation or replacement does
not adversely affect the rights, preferences and privileges of the Holders
of the Securities (including any Successor Securities and any Successor
Common Securities) in any material respect (other than with respect to any
dilution of the Holders' interest in the new entity);
(v) such Successor Entity has a purpose identical to that of the
Trust;
(vi) prior to such merger, consolidation, amalgamation or
replacement, the Sponsor has received an opinion of counsel to the Trust
experienced in such matters to the effect that:
(A) such merger, consolidation, amalgamation or replacement
does not adversely affect the rights, preferences and privileges of
the Holders of the Securities (including any Successor Securities and
Successor Common Securities) in any material respect (other than with
respect to any dilution of the Holders' interest in the new entity);
(B) following such merger, consolidation, amalgamation or
replacement, neither the Trust nor the Successor Entity will be
required to register as an Investment Company; and
<PAGE>
(C) following such merger, consolidation, amalgamation or
replacement, the Successor Entity will continue to be classified as a
grantor trust for United States federal income tax purposes; and
(vii) the Sponsor guarantees the obligations of such Successor
Entity under the Successor Securities and Successor Common Securities at
least to the extent provided by the Preferred Securities Guarantee and the
Common Securities Guarantee, respectively.
(c) Notwithstanding Section 3.15(b), the Trust shall not (except with
the written consent of Holders of 100% of the outstanding Preferred Securities)
consolidate, amalgamate, merge with or into, or be replaced by any other entity
or permit any other entity to consolidate, amalgamate, merge with or into, or
replace it if such consolidation, amalgamation, merger or replacement would
cause the Trust or Successor Entity to be classified as other than a grantor
trust for United States federal income tax purposes. Prior to such merger,
consolidation, amalgamation, or replacement, the Sponsor shall have received an
opinion of tax counsel to the Trust, experienced in such matters, to the effect
that following such merger, consolidation, amalgamation or replacement, the
Trust will continue to be classified as a grantor trust for United States
federal income tax purposes.
ARTICLE IV
SPONSOR
Section 4.1 Sponsor's Purchase of Common Securities.
On the Closing Date the Sponsor will purchase all the Common
Securities issued by the Trust, at the same time as the Preferred Securities are
sold, in an amount at least equal to 3% of the capital of the Trust.
Section 4.2 Responsibilities of the Sponsor.
In connection with the issue and sale of the Preferred Securities, the
Sponsor shall have the exclusive right and responsibility to engage in the
following activities:
(a) to prepare for filing by the Trust with the Commission, at such
time as determined by the Sponsor, a registration statement on Form S-3 in
relation to the Preferred Securities, including any amendments thereto;
(b) if necessary, to determine the States in which to take appropriate
action to qualify the Trust or to qualify or register for sale all or part of
the Preferred Securities and to take any and all such acts, other than actions
which must be taken by the Trust, and advise the Trust of actions it must take,
and prepare for execution and filing any documents to be executed and filed by
<PAGE>
the Trust, as the Sponsor deems necessary or advisable in order to comply with
the applicable laws of any such States;
(c) if necessary, to prepare for filing by the Trust an application,
at such time as determined by the Sponsor, to the New York Stock Exchange or any
other national stock exchange or the Nasdaq National Market for listing or
quotation upon notice of issuance, of any Preferred Securities;
(d) if necessary, to prepare for filing by the Trust with the
Commission, at such time as determined by the Sponsor, a registration statement
on Form 8-A relating to the registration of the Preferred Securities under
Section 12(b) of the Exchange Act, including any amendments thereto;
(e) if necessary, to negotiate the terms of the Purchase Agreement
providing for the sale of the Preferred Securities;
(f) execute and enter into the Purchase Agreement, the Subordinated
Notes Subscription Agreement and the Common Securities Subscription Agreement to
be entered into with the Sponsor; and
(g) prepare for execution and filing by the Trust of documents or
instruments to be delivered to DTC relating to the Preferred Securities.
Section 4.3 Right to Proceed.
The Sponsor acknowledges the rights of Holders to institute a Direct
Action as set forth in Section 3.8(e) hereto.
ARTICLE V
TRUSTEES
Section 5.1 Number of Trustees.
(a) The number of Trustees shall initially be five (5).
(b) At any time before the issuance of any Securities, the Sponsor
may, by written instrument, increase or decrease the number of Trustees.
(c) After the issuance of any Securities, the number of Trustees may
be increased or decreased by vote of the Holders of a Majority in liquidation
amount of the Common Securities voting as a class at a meeting of the Holders of
the Common Securities; provided, however, that the number of Trustees shall in
no event be less than three (3); provided further that (1) if required by the
Business Trust Act, one Trustee (the "Delaware Trustee") shall be: (a) a natural
<PAGE>
person who is a resident of the State of Delaware; or (b) if not a natural
person, an entity which has its principal place of business in the State of
Delaware and otherwise meets the requirements of applicable law (provided that
if the Property Trustee has its principal place of business in the State of
Delaware and otherwise meets the requirements of applicable law, then the
Property Trustee shall also be the Delaware Trustee and Section 3.11 shall have
no application); (2) there shall be at least two Trustees who are employees or
officers of, or are affiliated with, the Sponsor; and (3) one Trustee shall be
the Property Trustee for so long as this Declaration is required to qualify as
an indenture under the Trust Indenture Act, and such Trustee may also serve as
Delaware Trustee if it meets the applicable requirements.
Section 5.2 Delaware Trustee.
The initial Delaware Trustee under this Declaration shall be:
Chase Manhattan Bank Delaware, 1201 North Market Street,
Wilmington, Delaware 19801 Attn.: Corporate Trust Administration.
If the Delaware Trustee has or shall acquire any "conflicting interest" within
the meaning of Section 310(b) of the Trust Indenture Act, the Delaware Trustee
and the Holder of the Common Securities (as if it were the obligor referred to
in Section 310(b) of the Trust Indenture Act) shall in all respects comply with
the provisions of Section 310(b) of the Trust Indenture Act.
Section 5.3 Property Trustee; Eligibility.
The initial Property Trustee shall be:
Chase Manhattan Bank and Trust Company, National Association, 101
California Street, Suite 2725, San Francisco, California 94111 Attn.:
Corporate Trust Administration.
(a) There shall at all times be one Trustee which shall act as
Property Trustee which shall:
(i) not be an Affiliate of the Sponsor; 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 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
<PAGE>
Section 5.3(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 Property Trustee shall cease to be eligible to
so act under Section 5.3(a), the Property Trustee shall immediately resign in
the manner and with the effect set forth in Section 5.6(c).
(c) If the Property Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act, the
Property Trustee and the Holder of the Common Securities (as if it were the
obligor referred to in Section 310(b) of the Trust Indenture Act) shall in all
respects comply with the provisions of Section 310(b) of the Trust Indenture
Act.
(d) The Preferred Securities Guarantee, the Common Securities
Guarantee and the Indenture shall be deemed to be specifically described in this
Declaration and the Indenture for purposes of clause (i) of the first proviso
contained in Section 310(b) of the Trust Indenture Act.
Section 5.4 Qualifications of Regular Trustees and Delaware Trustee
Each Regular Trustee and the Delaware Trustee (unless the Property
Trustee also acts as Delaware Trustee) shall be either a natural person who is
at least 21 years of age or a legal entity which shall act through one or more
Authorized Officers.
Section 5.5 Regular Trustees.
The initial Regular Trustees under this Declaration shall be:
Donald R. Roden, Neil F. Dimick and Milan A. Sawdei,
c/o Bergen Brunswig Corporation,
4000 Metropolitan Drive, Orange, California 98680;
(a) Except as expressly set forth in this Declaration and except if a
meeting of the Regular Trustees is called with respect to any matter over which
the Regular Trustees have power to act, any power of the Regular Trustees may be
exercised by, or with the consent of, any one such Regular Trustee.
(b) Unless otherwise determined by the Regular Trustees, and except as
otherwise required by the Business Trust Act or applicable law, any Regular
Trustee is authorized to execute on behalf of the Trust any documents which the
Regular Trustees have the power and authority to cause the Trust to execute
pursuant to Section 3.6.
<PAGE>
Section 5.6 Appointment, Removal and Resignation of Trustees.
(a) Subject to Section 5.6(b), Trustees may be appointed or removed
without cause at any time:
(i) until the issuance of any Securities, by written instrument
executed by the Sponsor; and
(ii) after the issuance of any Securities, by vote of the Holders
of a Majority in liquidation amount of the Common Securities voting as a
class at a meeting of the Holders of the Common Securities.
(b) The following provisions shall apply:
(i) The Trustee that acts as Property Trustee shall not be
removed in accordance with Section 5.6(a) until a Successor Property
Trustee has been appointed and has accepted such appointment by written
instrument executed by such Successor Property Trustee and delivered to the
Regular Trustees and the Sponsor.
(ii) So long as a Delaware Trustee is required pursuant to
Section 5.1, the Trustee that acts as Delaware Trustee shall not be removed
in accordance with Section 5.6(a) until a successor Trustee possessing the
qualifications to act as Delaware Trustee under Sections 5.2 and 5.4 (a
"Successor Delaware Trustee") has been appointed and has accepted such
appointment by written instrument executed by such Successor Delaware
Trustee and delivered to the Regular Trustees and the Sponsor.
(c) A Trustee appointed to office shall hold office until his
successor shall have been appointed or until such Trustee's death, bankruptcy,
dissolution, termination, removal or resignation. Any Trustee may resign from
office (without need for prior or subsequent accounting) by an instrument in
writing signed by the Trustee and delivered to the Sponsor and the Trust, which
resignation shall take effect upon such delivery or upon such later date as is
specified therein; provided, however, that:
(i) no such resignation of the Trustee that acts as the Property
Trustee shall be effective (A) until a Successor Property Trustee has been
appointed and has accepted such appointment by instrument executed by such
Successor Property Trustee and delivered to the Trust, the Sponsor and the
resigning Property Trustee; or (B) until the assets of the Trust have been
completely liquidated and the proceeds thereof distributed to the holders
of the Securities; and
(ii) so long as a Delaware Trustee is required pursuant to
Section 5.1, no such resignation of the Trustee that acts as the Delaware
Trustee shall be effective until a Successor Delaware Trustee has been
appointed and has accepted such appointment by instrument executed by such
<PAGE>
Successor Delaware Trustee and delivered to the Trust, the Sponsor and the
resigning Delaware Trustee.
(d) The Holders of the Common Securities shall use their best efforts
to promptly appoint a Successor Delaware Trustee (so long as a Delaware Trustee
is required pursuant to Section 5.1) or Successor Property Trustee, as the case
may be, if the Delaware Trustee or the Property Trustee delivers an instrument
of resignation in accordance with this Section 5.6.
(e) If no Successor Property Trustee or Successor Delaware Trustee
shall have been appointed and accepted appointment as provided in this Section
5.6 within 60 days after delivery of an instrument of resignation or removal,
the Property Trustee or Delaware Trustee resigning or being removed may petition
any court of competent jurisdiction for appointment of a Successor Property
Trustee or Successor Delaware Trustee. Such court may thereupon, after such
notice, if any, as it may deem proper and prescribe, appoint a Successor
Property Trustee or Successor Delaware Trustee, as the case may be.
(f) Any Successor Delaware Trustee appointed hereunder shall promptly
file an amendment to the Certificate of Trust with the Delaware Secretary of
State identifying its name and residence or principal place of business in the
State of Delaware.
Section 5.7 Vacancies Among Trustees.
If a Trustee ceases to hold office for any reason and the number of
Trustees is not reduced pursuant to Section 5.1, or if the number of Trustees is
increased pursuant to Section 5.1, a vacancy shall occur. A resolution
certifying the existence of such vacancy by a majority of the Regular Trustees
shall be conclusive evidence of the existence of such vacancy. The vacancy shall
be filled with a Trustee appointed in accordance with Section 5.6.
Section 5.8 Effect of Vacancies.
The death, resignation, retirement, removal, bankruptcy, dissolution,
liquidation, incompetence or incapacity to perform the duties of a Trustee, or
any one of them, shall not operate to annul the Trust. Whenever a vacancy in the
number of Regular Trustees shall occur, until such vacancy is filled by the
appointment of a Regular Trustee in accordance with Section 5.6, the Regular
Trustees in office, regardless of their number, shall have all the powers
granted to the Regular Trustees and shall discharge all the duties imposed upon
the Regular Trustees by this Declaration.
Section 5.9 Meetings.
Meetings of the Regular Trustees shall be held from time to time upon
the call of any Regular Trustee. Regular meetings of the Regular Trustees may be
<PAGE>
held at a time and place fixed by resolution of the Regular Trustees. Notice of
any in-person meetings of the Regular Trustees shall be hand delivered or
otherwise delivered in writing (including by facsimile, with a hard copy by
overnight courier) not less than 48 hours before such meeting. Notice of any
telephonic meetings of the Regular Trustees or any committee thereof shall be
hand delivered or otherwise delivered in writing (including by facsimile, with a
hard copy by overnight courier) not less than 24 hours before a meeting. Notices
shall contain a brief statement of the time, place and anticipated purposes of
the meeting. The presence (whether in person or by telephone) of a Regular
Trustee at a meeting shall constitute a waiver of notice of such meeting except
where a Regular Trustee attends a meeting for the express purpose of objecting
to the transaction of any activity on the ground that the meeting has not been
lawfully called or convened. Unless provided otherwise in this Declaration, any
action of the Regular Trustees may be taken at a meeting by vote of a majority
of the Regular Trustees present (whether in person or by telephone) and eligible
to vote with respect to such matter, provided that a Quorum is present, or
without a meeting by the unanimous written consent of the Regular Trustees.
Section 5.10 Delegation of Power.
(a) Any Regular Trustee may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of 21 his or
her power for the purpose of executing any documents contemplated in Section 3.6
including any registration statement or amendment thereto filed with the
Commission or making any other governmental filing.
(b) The Regular Trustees shall have power to delegate from time to
time to such of their number or to officers of the Trust the doing of such
things and the execution of such instruments either in the name of the Trust or
the names of the Regular Trustees or otherwise as the Regular Trustees may deem
expedient, to the extent such delegation is not prohibited by applicable law or
contrary to the provisions of the Trust, as set forth herein.
Section 5.11 Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Property Trustee or the Delaware
Trustee, as the case may be, may be merged or converted or with which either may
be consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Property Trustee or the Delaware Trustee, as the case
may be, may be subject shall be bound by this Declaration, or any corporation
succeeding to all or substantially all the corporate trust business of the
Property Trustee or the Delaware Trustee, as the case may be, shall be the
successor of the Property Trustee or the Delaware Trustee, as the case may be,
hereunder, provided such corporation shall be otherwise qualified and eligible
under this Article, without the execution or filing of any paper or any further
act on the part of any of the parties hereto; provided, however, that the
Delaware Trustee shall file an amendment to the Certificate of Trust with the
Delaware Secretary of State in accordance with Section 5.6(f).
<PAGE>
ARTICLE VI
DISTRIBUTIONS
Section 6.1 Distributions.
Holders shall receive Distributions in accordance with the applicable
terms of the relevant Holder's Securities. Distributions shall be made on the
Preferred Securities and the Common Securities in accordance with the
preferences set forth in their respective terms. If and to the extent that the
Subordinated Notes Issuer makes a payment of interest (including Additional
Interest (as defined in the Indenture)), premium, if any, and principal on the
Subordinated Notes held by the Property Trustee (the amount of any such payment
being a "Payment Amount"), the Property Trustee shall and is directed, to the
extent funds are available for that purpose, to make a Distribution of the
Payment Amount to Holders. In the event the Sponsor shall defer any payment of
principal, premium, if any, or interest on the Subordinated Notes, the Trust
shall, in like manner, defer payments of Distributions on the Securities, and
additional Distributions shall accrue on such Securities for so long as the
payment of principal, premium, if any, or interest on the Subordinated Notes is
deferred.
ARTICLE VII
ISSUANCE OF SECURITIES
Section 7.1 General Provisions Regarding Securities.
(a) The Regular Trustees shall, on behalf of the Trust, issue one
class of preferred securities representing undivided beneficial interests in the
assets of the Trust having such terms as are set forth in Exhibit A and
incorporated herein by reference (the "Preferred Securities"), and one class of
common securities representing undivided beneficial interests in the assets of
the Trust having such terms as are set forth in Exhibit A and incorporated
herein by reference (the "Common Securities"). The Trust shall have no
securities or other interests in the assets of the Trust other than the
Preferred Securities and the Common Securities.
(b) The Certificates shall be signed on behalf of the Trust by the
Regular Trustees (or if there are more than two Regular Trustees by any two of
the Regular Trustees). Such signatures may be the manual or facsimile signatures
of the present or any future Regular Trustee. Typographical and other minor
errors or defects in any such reproduction of any such signature shall not
affect the validity of any Certificate. In case any Regular Trustee of the Trust
who shall have signed any of the Certificates shall cease to be such Regular
Trustee before the Certificate so signed shall be delivered by the Trust, such
<PAGE>
Certificate nevertheless may be delivered as though the person who signed such
Certificate had not ceased to be such Regular Trustee; and any Certificate may
be signed on behalf of the Trust by such persons who shall at the actual date of
execution of such Security, be the Regular Trustees of the Trust, although at
the date of the execution and delivery of this Declaration any such person was
not such a Regular Trustee. Certificates shall be printed, lithographed or
engraved or may be produced in any other manner as is reasonably acceptable to
the Regular Trustees, as evidenced by their execution thereof, and may have such
letters, numbers or other marks of identification or designation and such
legends or endorsements as the Regular Trustees may deem appropriate, or as may
be required to comply with any law or with any rule or regulation of any stock
exchange on which Securities may be listed, or to conform to usage. A Preferred
Security shall not be valid until authenticated by the manual signature of an
authorized signatory of the Property Trustee. The signature shall be conclusive
evidence that the Preferred Security has been authenticated under this
Declaration. Upon a written order of the Trust signed by one Regular Trustee,
the Property Trustee shall authenticate the Preferred Securities for original
issue. The Property Trustee may appoint an authenticating agent acceptable to
the Trust to authenticate Preferred Securities. An authenticating agent may
authenticate Preferred Securities whenever the Property Trustee may do so. Each
reference in this Declaration to authentication by the Property Trustee includes
authentication by such agent. An authenticating agent has the same rights as the
Property Trustee to deal with the Trust or an Affiliate.
(c) The consideration received by the Trust for the issuance of the
Securities shall constitute a contribution to the capital of the Trust and shall
not constitute a loan to the Trust.
(d) Upon issuance of the Securities as provided in this Declaration,
the Securities so issued shall be deemed to be validly issued, fully paid and
nonassessable.
(e) Every Person, by virtue of having become a Holder or a Preferred
Security Beneficial Owner in accordance with the terms of this Declaration,
shall be deemed to have expressly assented and agreed to the terms of, and shall
be bound by, this Declaration.
ARTICLE VIII
DISSOLUTION AND TERMINATION OF TRUST
Section 8.1 Dissolution and Termination of Trust.
(a) The Trust shall dissolve and its affairs shall be wound up, upon
the earliest to occur of the following:
<PAGE>
(i) upon the bankruptcy of the Sponsor or the Holder of the
Common Securities;
(ii) upon the filing of a certificate of dissolution or its
equivalent with respect to the Sponsor, the filing of a certificate of
cancellation with respect to the Trust upon the consent (other than in
connection with a dissolution of the Trust pursuant to clause (v) of this
Section 8.1(a)) of the Holders of at least a Majority in liquidation amount
of the Securities, voting together as a single class, to file such
certificate of cancellation, or the revocation of the charter of the
Sponsor or the Holder of the Common Securities and the expiration of 90
days after the date of revocation without a reinstatement thereof;
(iii) upon the entry of a decree of judicial dissolution of the
Sponsor or the Trust or the Holder of the Common Securities;
(iv) when all of the Securities shall have been called for
redemption and the amounts necessary for redemption thereof shall have been
paid to the Holders in accordance with the terms of the Securities;
(v) upon the election by the Sponsor, effective upon notice to
the Trust, the Property Trustee and the Delaware Trustee, to dissolve the
Trust in accordance with the terms of the Securities and all of the
Subordinated Notes held by the Property Trustee shall have been distributed
to the Holders of Securities in exchange for all of the Securities; or
(vi) before the issuance of any Securities, with the consent of
all of the Regular Trustees and the Sponsor.
(b) As soon as is practicable after the occurrence of an event
referred to in Section 8.1(a) or dissolution pursuant to Section 3.14 and upon
the completion of the winding up of the Trust, one of the Regular Trustees (each
Regular Trustee being hereby authorized to take such action) shall file a
certificate of cancellation with the Delaware Secretary of State terminating the
Trust.
(c) The provisions of Section 3.9 and Article X shall survive the
termination of the Trust.
ARTICLE IX
TRANSFER OF INTERESTS
Section 9.1 Transfer of Securities.
(a) Securities may only be transferred, in whole or in part, in
accordance with the terms and conditions set forth in this Declaration and in
<PAGE>
the terms of the Securities. Any transfer or purported transfer of any Security
not made in accordance with this Declaration shall be null and void;
(b) subject to this Article IX, Preferred Securities shall be freely
transferable; and
(c) subject to this Article IX, the Sponsor and any Related Party may
only transfer Common Securities to the Sponsor or a Related Party of the
Sponsor; provided that, any such transfer shall not violate the Securities Act
and is subject to the condition precedent that the transferor obtain the written
opinion of counsel experienced in such matters that such transfer would not
cause more than an insubstantial risk that:
(i) the Trust would not be classified for United States federal
income tax purposes as a grantor trust; and
(ii) the Trust would be an Investment Company required to
register under the Investment Company Act or the transferee would become an
Investment Company required to register under the Investment Company Act.
(d) Each Common Security that bears or is required to bear the legend
set forth in this Section 9.1(d) shall be subject to the restrictions on
transfer provided in the legend set forth in this Section 9.1(d), unless such
restrictions on transfer shall be waived by the written consent of the Regular
Trustees, and the Holder of each such Common Security, by such security holder's
acceptance thereof, agrees to be bound by such restrictions on transfer. As used
in this Section 9.1(d) and in Section 9.1(c), the term "transfer" encompasses
any sale, pledge, transfer or other disposition of any such Common Security.
Any certificate evidencing a Common Security shall bear a legend in
substantially the following form, unless otherwise agreed by the Regular
Trustees (with written notice thereof to the Property Trustee):
THE SECURITY EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND,
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD UNLESS SUCH OFFER AND SALE ARE
REGISTERED UNDER OR ARE EXEMPT FROM REGISTRATION UNDER THE SECURITIES
ACT. THE TRANSFER OF THE SECURITY EVIDENCED HEREBY IS ALSO SUBJECT TO
THE RESTRICTIONS SET FORTH IN THE DECLARATION REFERRED TO BELOW.
Section 9.2 Transfer of Certificates.
(a) The Regular Trustees shall provide for the registration of Common
Securities and of transfers of Common Securities, which will be effected without
charge but only upon payment (with such indemnity as the Regular Trustees may
require) in respect of any tax or other government charges which may be imposed
<PAGE>
in relation to it. Upon surrender for registration of transfer of any Common
Security, the Regular Trustees shall cause one or more new Common Securities to
be issued in the name of the designated transferee or transferees. Every Common
Security surrendered for registration of transfer shall be accompanied by a
written instrument of transfer in form satisfactory to the Regular Trustees duly
executed by the Holder or such Holder's attorney duly authorized in writing.
Each Common Security surrendered for Common Security shall be entitled to the
rights and subject to the obligations of a Holder hereunder upon the receipt by
such transferee of a Certificate representing such Common Security. By
acceptance of a Certificate representing a Common Security, each transferee
shall be deemed to have agreed to be bound by this Declaration and the documents
incorporated by referenced herein.
(b) The Property Trustee shall provide for the registration of
Preferred Securities and of transfers of Preferred Securities, which will be
effected without charge but only upon payment (with such indemnity as the
Property Trustee may require) in respect of any tax or other government charges
which may be imposed in relation to it. Upon surrender for registration of
transfer of any Preferred Security, the Regular Trustees shall execute, and the
Property Trustee shall authenticate and deliver, one or more new Certificates
representing Preferred Securities to be issued in the name of the designated
transferee or transferees. Every Preferred Security surrendered for registration
of transfer shall be accompanied by a written instrument of transfer in form
satisfactory to the Property Trustee duly executed by the Holder or such
Holder's attorney duly authorized in writing. Each Preferred Security
surrendered for registration of transfer shall be canceled by the Property
Trustee. A transferee of a Preferred Security shall be entitled to the rights
and subject to the obligations of a Holder hereunder upon the receipt by such
transferee of a Certificate representing such Preferred Security. By acceptance
of a Preferred Security, each transferee shall be deemed to have agreed to be
bound by this Declaration and the documents incorporated by referenced herein.
(c) Notwithstanding any other provisions of this Declaration, a Global
Certificate may not be transferred as a whole, except by the Clearing Agency to
a nominee of the Clearing Agency or by the Clearing Agency or any such nominee
to a successor Clearing Agency or a nominee of such successor Clearing Agency.
Section 9.3 Deemed Security Holders.
The Trustees may treat the Person in whose name any Certificate shall
be registered on the books and records of the Trust as the sole holder of such
Certificate and of the Securities represented by such Certificate for purposes
of receiving Distributions and for all other purposes whatsoever and,
accordingly, shall not be bound to recognize any equitable or other claim to or
interest in such Certificate or in the Securities represented by such
Certificate on the part of any Person, whether or not the Trustees shall have
actual or other notice thereof.
<PAGE>
Section 9.4 Book Entry Interests.
(a) So long as Preferred Securities are eligible for book entry
settlement with the Clearing Agency or unless otherwise required by law, all
Preferred Securities that are so eligible may be represented by one or more
fully registered global Preferred Security Certificates (each a "Global
Certificate"), to be delivered to DTC, the initial Clearing Agency, or its
custodian, by, or on behalf of, the Trust. Such Global Certificates shall
initially be registered on the books and records of the Trust in the name of
Cede & Co., the nominee of DTC, and no Preferred Security Beneficial Owner will
receive a definitive Preferred Security Certificate representing such Preferred
Security Beneficial Owner's interests in such Global Certificates, except as
provided in Section 9.7. The transfer and exchange of beneficial interests in
any such Security in global form shall be effected through the Clearing Agency
in accordance with this Declaration and the procedures of the Clearing Agency
therefor.
(b) Except as provided below, Beneficial Owners of a Preferred
Security in global form shall not be entitled to have certificates registered in
their names, will not receive or be entitled to receive physical delivery of
certificates in definitive form and will not be considered the Holder of such
Preferred Security in global form.
(c) Any Global Certificate may be endorsed with or have incorporated
in the text thereof such legends or recitals or changes not inconsistent with
the provisions of this Declaration as may be required by the Clearing Agency, by
any national securities exchange or by the National Association of Securities
Dealers, Inc. as may be required to comply with any applicable law or any
regulation thereunder or with the rules and regulations of any securities
exchange or interdealer quotation system upon which the Preferred Securities may
be listed or traded or to conform with any usage with respect thereto, or to
indicate any special limitations or restrictions to which any particular
Preferred Securities are subject.
(d) Unless and until definitive, fully registered Preferred Security
Certificates (the "Definitive Preferred Security Certificates") have been issued
to the Preferred Security Beneficial Owners pursuant to Section 9.7:
(i) the provisions of this Section 9.4 shall be in full force and
effect with respect to such Preferred Securities;
(ii) the Trust and the Trustees shall be entitled to deal with
the Clearing Agency for all purposes of this Declaration (including the
payment of Distributions on the Global Certificates and receiving
approvals, votes or consents hereunder) as the Holder of the Preferred
Securities and the sole holder of the Global Certificates and shall have no
obligation to the Preferred Security Beneficial Owners;
<PAGE>
(iii) to the extent that the provisions of this Section 9.4
conflict with any other provisions of this Declaration, the provisions of
this Section 9.4 shall control; and
(iv) the rights of the Beneficial Owners of Preferred Securities
in global form shall be exercised only through the Clearing Agency and
shall be limited to those established by law and agreements between such
Preferred Security Beneficial Owners and the Clearing Agency and/or the
Clearing Agency Participants. The Clearing Agency will make book entry
transfers among the Clearing Agency Participants and receive and transmit
payments of Distributions on the Global Certificates to such Clearing
Agency Participants. DTC will make book entry transfers among the Clearing
Agency Participants, provided that solely for the purposes of determining
whether the Holders of the requisite amount of Preferred Securities have
voted on any matter provided for in this Declaration, so long as Definitive
Preferred Security Certificates have not been issued, the Trustees may
conclusively rely on, and shall be protected in relying on, any written
instrument (including a proxy) delivered to the Trustees by the Clearing
Agency setting forth the Preferred Securities Beneficial Owners' votes or
assigning the right to vote on any matter to any other Persons either in
whole or in part.
Notwithstanding any other provisions of this Declaration (other than the
provisions set forth in this Section 9.4(d)), a Preferred Security in global
form may not be transferred as a whole except by the Clearing Agency to a
nominee of the Clearing Agency or by a nominee of the Clearing Agency to the
Clearing Agency or another nominee of the Clearing Agency or to a successor
Clearing Agency or a nominee of such successor Clearing Agency.
Section 9.5 Notices to Clearing Agency.
Whenever a notice or other communication to the Preferred Security
Holders is required under this Declaration, unless and until Definitive
Preferred Security Certificates shall have been issued to the Preferred Security
Beneficial Owners pursuant to Section 9.7, the Trustees shall give all such
notices and communications specified herein to be given to the Preferred
Security Holders, to the Clearing Agency, and shall have no notice obligations
to the Preferred Security Beneficial Owners.
Section 9.6 Appointment of Successor Clearing Agency.
If any Clearing Agency notifies the Trust that it is unwilling or
unable to continue its services as securities depositary with respect to the
Preferred Securities, if such Clearing Agency ceases to perform such services,
or if at any time such Clearing Agency ceases to be a clearing agency registered
as such under the Exchange Act when such Clearing Agency is required to be so
registered to act as such depositary, then the Regular Trustees may, in their
sole discretion, appoint a successor Clearing Agency with respect to such
Preferred Securities.
<PAGE>
Section 9.7 Definitive Preferred Security Certificates Under Certain
Circumstances.
If:
(a) a Clearing Agency notifies the Trust that it is unwilling or
unable to continue its services as securities depositary with respect to the
Preferred Securities, if such Clearing Agency ceases to perform such services,
or if at any time such Clearing Agency ceases to be a clearing agency registered
as such under the Exchange Act when such Clearing Agency is required to be so
registered to act as such depositary, and a successor Clearing Agency is not
appointed within 90 days after such discontinuance pursuant to Section 9.6; or
(b) the Regular Trustees (with the consent of the Sponsor) in their
sole discretion determine that the Preferred Securities in global form shall be
exchanged for certificated Preferred Securities;
then:
(i) Definitive Preferred Security Certificates shall be prepared
by the Regular Trustees on behalf of the Trust with respect to such
Preferred Securities; and
(ii) upon surrender of the Global Certificates by the Clearing
Agency, accompanied by registration instructions, the Regular Trustees
shall cause Definitive Preferred Security Certificates to be delivered to
Preferred Security Beneficial Owners of such Preferred Securities in
accordance with the instructions of the Clearing Agency.
Neither the Trustees nor the Trust shall be liable for any delay in delivery of
such instructions and each of them may conclusively rely on, and shall be
protected in relying on, said instructions of the Clearing Agency. The
Definitive Preferred Security Certificates shall be printed, lithographed or
engraved or may be produced in any other manner as is reasonably acceptable to
the Regular Trustees, as evidenced by their execution thereof, and may have such
letters, numbers or other marks of identification or designation and such
legends or endorsements as the Regular Trustees may deem appropriate, or as may
be required to comply with any law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any stock exchange on which Preferred
Securities may be listed, or to conform to usage.
At such time as all interests in a Preferred Security in global form
have been redeemed, exchanged, repurchased or canceled, such Preferred Security
in global form shall be, upon receipt thereof, canceled by the Trust in
accordance with standing procedures and instructions of the Clearing Agency.
<PAGE>
Section 9.8 Mutilated, Destroyed, Lost or Stolen Certificates.
If:
(a) any mutilated Certificates should be surrendered to the Regular
Trustees, or if the Regular Trustees shall receive evidence to their
satisfaction of the destruction, loss or theft of any Certificate; and
(b) there shall be delivered to the Property Trustee or the Regular
Trustees such security or indemnity as may be required by them to keep each of
them harmless,
then, in the absence of notice that such Certificate shall have been acquired by
a bona fide purchaser, any Regular Trustee on behalf of the Trust shall execute
and, in the case of a Common Security, deliver, or, in the case of a Preferred
Security, the Property Trustee shall authenticate and deliver, in exchange for
or in lieu of any such mutilated, destroyed, lost or stolen Certificate, a new
Certificate of like denomination. In connection with the issuance of any new
Certificate under this Section 9.8, the Property Trustee or the Regular Trustees
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith. Any duplicate
Certificate issued pursuant to this Section shall constitute conclusive evidence
of an ownership interest in the relevant Securities, as if originally issued,
whether or not the lost, stolen or destroyed Certificate shall be found at any
time.
ARTICLE X
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
Section 10.1 Liability.
(a) Except as expressly set forth in this Declaration, the Preferred
Securities Guarantee, the Common Securities Guarantee and the terms of the
Securities, the Sponsor shall not be:
(i) personally liable for the return of any portion of the
capital contributions (or any return thereon) of the Holders of the
Securities, which shall be made solely from assets of the Trust; or
(ii) required to pay to the Trust or to any Holder of Securities
any deficit upon dissolution of the Trust or otherwise.
(b) Pursuant to Section 3803(a) of the Business Trust Act, the Holders
of the Securities, in their capacity as such, shall be entitled to the same
limitation of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law of the State
of Delaware.
<PAGE>
(c) The Sponsor shall be liable for all fees and expenses related to
the Trust and each offering of the Securities and shall be liable for all
ongoing costs and expenses of the Trust, except the Trust's obligations under
the Securities (such exception to include, without limitation, the returns
described in Section 10.1(a)(i) and the deficit payment described in Section
10.1(a)(ii)).
Section 10.2 Exculpation.
(a) No Indemnified Person shall be liable, responsible or accountable
in damages or otherwise to the Trust 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 on behalf of the Trust and in a manner such
Indemnified Person reasonably believed to be within the scope of the authority
conferred on such Indemnified Person by this Declaration 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 gross negligence (or, in the
case of the Property Trustee, except as otherwise set forth in Section 3.9) 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 Trust and upon such information, opinions, reports
or statements presented to the Trust 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
Trust, 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 Securities might properly be paid.
Section 10.3 Fiduciary Duty.
(a) To the extent that, at law or in equity, an Indemnified Person has
duties (including fiduciary duties) and liabilities relating thereto to the
Trust or to any other Covered Person, an Indemnified Person acting under this
Declaration shall not be liable to the Trust or to any other Covered Person for
its good faith reliance on the provisions of this Declaration. The provisions of
this Declaration, to the extent that they restrict the duties and liabilities of
an Indemnified Person otherwise existing at law or in equity (other than duties
imposed on the Property Trustee under the Trust Indenture Act), are agreed by
the parties hereto to replace such other duties and liabilities of such
Indemnified Person;
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises between an
Indemnified Person and any Covered Persons; or
<PAGE>
(ii) whenever this Declaration or any other agreement
contemplated herein or therein provide that an Indemnified Person shall act
in a manner that is, or provides terms that are, fair and reasonable to the
Trust or any Holder of Securities,
the Indemnified Person shall resolve such conflict of interest, take such action
or provide such terms, considering in each case the relative interest of each
party (including its own interest) to such conflict, agreement, transaction or
situation and the benefits and burdens relating to such interests, any customary
or accepted industry practices, and any applicable generally accepted accounting
practices or principles. In the absence of bad faith by the Indemnified Person,
the resolution, action or term so made, taken or provided by the Indemnified
Person shall not constitute a breach of this Declaration or any other agreement
contemplated herein or of any duty or obligation of the Indemnified Person at
law or in equity or otherwise.
(c) Whenever in this Declaration an Indemnified Person is permitted or
required to make a decision in its "discretion" or under a grant of similar
authority, the Indemnified Person shall be entitled to consider such interests
and factors as it desires, including its own interests, and shall have no duty
or obligation to give any consideration to any interest of or factors affecting
the Trust or any other Person. Whenever in this Declaration an Indemnified
Person is permitted or required to make a decision in its "good faith" or under
another express standard, the Indemnified Person shall act under such express
standard and shall not be subject to any other or different standard imposed by
this Declaration or by applicable law.
Section 10.4 Indemnification and Compensation.
(a) To the fullest extent permitted by law, the Sponsor shall
indemnify each Indemnified Person for, and hold each Indemnified Person harmless
from and against any loss, damage or claim incurred by such Indemnified Person
by reason of any act or omission performed or omitted by such Indemnified Person
in good faith on behalf of the Trust and in a manner such Indemnified Person
reasonably believed to be within the scope of authority conferred on such person
by this Declaration, except that no Indemnified Person shall be entitled to be
indemnified in respect of any loss, damage or claim incurred by such Indemnified
Person by reason of gross negligence (or, in the case of the Property Trustee,
except as otherwise set forth in Section 3.9) or willful misconduct with respect
to such act or omissions.
(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 Sponsor prior to the
final disposition of such claim, demand, action, suit or proceeding upon receipt
by the Sponsor 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 10.4(a).
<PAGE>
(c) The provisions of this Section 10.4 shall survive the termination
of this Declaration or resignation or removal of any Trustee.
(d) The Sponsor agrees to pay the Property Trustee and the Delaware
Trustee from time to time such compensation for all services rendered by the
Property Trustee and the Delaware Trustee hereunder as may be mutually agreed
upon in writing by the Sponsor and the Property Trustee and the Delaware
Trustee, as the case may be, and, except as otherwise expressly provided herein,
to reimburse the Property Trustee and the Delaware Trustee upon its or their
request for all reasonable expenses, disbursements and advances incurred or made
by the Property Trustee or the Delaware Trustee, as the case may be, in
accordance with the provisions of this Declaration, except any such expense,
disbursement or advance as may be attributable to its or their negligence or bad
faith.
Section 10.5 Outside Businesses.
Any Covered Person, the Sponsor, the Delaware Trustee (subject to
Section 5.02(c)) and the Property Trustee (subject to Section 5.03(c)) may
engage in or possess an interest in other business ventures of any nature or
description, independently or with others, similar or dissimilar to the business
of the Trust, and the Trust and the Holders of Securities shall have no rights
by virtue of this Declaration in and to such independent ventures or the income
or profits derived therefrom, and the pursuit of any such venture, even if
competitive with the business of the Trust, shall not be deemed wrongful or
improper. No Covered Person, the Sponsor, the Delaware Trustee, or the Property
Trustee shall be obligated to present any particular investment or other
opportunity to the Trust even if such opportunity is of a character that, if
presented to the Trust, could be taken by the Trust, and any Covered Person, the
Sponsor, the Delaware Trustee and the Property Trustee shall have the right to
take for its own account (individually or as a partner or fiduciary) or to
recommend to others any such particular investment or other opportunity. Any
Covered Person, the Delaware Trustee and the Property Trustee may engage or be
interested in any financial or other transaction with the Sponsor or any
Affiliate of the Sponsor, or may act as depositary for, trustee or agent for, or
act on any committee or body of holders of, securities or other obligations of
the Sponsor or its Affiliates.
ARTICLE XI
ACCOUNTING
Section 11.1 Fiscal Year.
The fiscal year ("Fiscal Year") of the Trust shall be the calendar
year, or such other year as is required by the Code.
<PAGE>
Section 11.2 Certain Accounting Matters.
(a) At all times during the existence of the Trust, the Trust shall
keep, or cause to be kept, full books of account, records and supporting
documents, which shall reflect in reasonable detail, each transaction of the
Trust. The books of account shall be maintained in accordance with generally
accepted accounting principles, consistently applied. The books of account and
the records of the Trust shall be examined by and reported upon, as of the end
of each Fiscal Year, by a firm of independent certified public accountants
selected by the Regular Trustees of the Trust.
(b) The Trust shall cause to be duly prepared and delivered to each of
the Holders of Securities, any annual United States federal income tax
information statement, required by the Code, containing such information with
regard to the Securities held by each Holder as is required by the Code and the
Treasury Regulations. Notwithstanding any right under the Code to deliver any
such statement at a later date, the Trust shall endeavor to deliver all such
statements within 30 days after the end of each Fiscal Year of the Trust.
(c) The Trust shall cause to be duly prepared and filed with the
appropriate taxing authority, an annual United States federal income tax return,
on a Form 1041 or such other form required by United States federal income tax
law, and any other annual income tax returns required to be filed by the Trust
on behalf of the Trust with any state or local taxing authority.
Section 11.3 Banking.
The Trust shall maintain one or more bank accounts in the name and for
the sole benefit of the Trust; provided, however, that all payments of funds in
respect of the Subordinated Notes held by the Property Trustee shall be made
directly to the Property Trustee Account and no other funds of the Trust shall
be deposited in the Property Trustee Account. The sole signatories for such
accounts shall be designated by the Regular Trustees; provided, however, that
the Property Trustee shall designate the signatories for the Property Trustee
Account.
Section 11.4 Withholding.
The Trust shall comply with all withholding requirements under United
States federal, state and local law. The Holders shall provide to the Trust such
forms or certificates as are necessary to establish an exemption from
withholding with respect to each Holder, and any representations and forms as
shall reasonably be requested by the Trust to assist it in determining the
extent of, and in fulfilling, its withholding obligations. The Trust shall file
required forms with applicable jurisdictions and, unless an exemption from
withholding is properly established by a Holder, shall remit amounts withheld
with respect to the Holder to applicable jurisdictions. To the extent that the
<PAGE>
Trust is required to withhold and pay over any amounts to any authority with
respect to distributions or allocations to any Holder, the amount withheld shall
be deemed to be a distribution in the amount of the withholding to the Holder.
In the event of any claimed over-withholding, Holders shall be limited to an
action against the applicable jurisdiction. If the amount required to be
withheld was not withheld from actual Distributions made, the Trust may reduce
subsequent Distributions by the amount of such required withholding.
ARTICLE XII
AMENDMENTS AND MEETINGS
Section 12.1 Amendments.
(a) Except as otherwise provided in this Declaration or by any
applicable terms of the Securities, this Declaration may be amended by, and only
by, a written instrument approved and executed by the Regular Trustees (or, if
there are more than two Regular Trustees, a majority of the Regular Trustees);
provided, however, that:
(i) no amendment shall be made, and any such purported amendment
shall be void and ineffective, to the extent the result thereof would be
to:
(A) cause the Trust to fail to be classified for the
purposes of United States federal income taxation as a grantor trust;
(B) affect the powers or the rights of the Property Trustee
or the Delaware Trustee without the written consent of the Property
Trustee or the Delaware Trustee, as the case may be; or
(C) cause the Trust to be deemed to be an Investment Company
which is required to be registered under the Investment Company Act;
(ii) at such time after the Trust has issued any Securities which
remain outstanding, any amendment which would adversely affect the rights,
privileges or preferences of any Holder of Securities may be effected only
with such additional requirements as may be set forth in the terms of such
Securities;
(iii) Section 9.1 (c) and this Section 12.1 shall not be amended
without the consent of all of the Holders of the Securities;
(iv) Article IV shall not be amended without the consent of the
Holders of a Majority in liquidation amount of the Common Securities; and
(v) the rights of the holders of the Common Securities under
Article V to increase or decrease the number of, and appoint and remove
<PAGE>
Trustees shall not be amended without the consent of the Holders of a
Majority in liquidation amount of the Common Securities.
(b) Notwithstanding Section 12.1(a)(ii), this Declaration may be
amended from time to time by the Holders of a Majority in liquidation amount of
the Common Securities, the Regular Trustees and the Property Trustee, without
the consent of the Holders of the Preferred Securities, to:
(i) cure any ambiguity;
(ii) correct or supplement any provision in this Declaration that
may be defective or inconsistent with any other provision or to make any
other provisions with respect to matters or questions arising under this
Declaration, which shall not be inconsistent with the other provisions of
this Declaration;
(iii) add to the covenants, restrictions or obligations of the
Sponsor;
(iv) to ensure the Trust's classification as a grantor trust for
United States federal income tax purposes; and
(v) to modify, eliminate or add to any provisions of this
Declaration to such extent as shall be necessary to ensure that the Trust
will not be required to register as an Investment Company under the
Investment Company Act.
(c) Subject to Section 12.1(a), this Declaration may be amended by the
Holders of a Majority in liquidation amount of the Common Securities, the
Regular Trustees and the Property Trustee if:
(i) the Holders of a Majority in liquidation amount of the
Preferred Securities consent to such amendment; and
(ii) the Regular Trustees have received an opinion of counsel
experienced in such matters to the effect that such amendment or the
exercise of any power granted to the Regular Trustees in accordance with
such amendment will not affect the Trust's status as a grantor trust for
United States federal income tax purposes or the Trust's exemption from
status as an Investment Company under the Investment Company Act.
(d) Any amendments of this Declaration shall become effective when
notice thereof is given to the Holders of Securities.
(e) The Regular Trustees shall promptly furnish to each of the
Property Trustee and the Delaware Trustee a copy of each amendment to this
Declaration.
<PAGE>
Section 12.2 Meetings of the Holders of Securities; Action by Written Consent.
(a) Meetings of the Holders of any class of Securities may be called
at any time by the Regular Trustees (or as provided in the terms of the
Securities) to consider and act on any matter on which Holders of such class of
Securities are entitled to act under the terms of this Declaration, the terms of
the Securities or the rules of any stock exchange on which the Preferred
Securities are listed or admitted for trading. The Regular Trustees shall call a
meeting of the Holders of such class of Holders, if directed to do so by the
Holders of at least 25% in liquidation amount of the Securities of such class.
Such direction shall be given by delivering to the Regular Trustees one or more
calls in a writing stating that the signing Holders of Securities wish to call a
meeting and indicating the general or specific purpose for which the meeting is
to be called. Any Holders of Securities calling a meeting shall specify in
writing the Security Certificates held by the Holders of Securities exercising
the right to call a meeting and only those Securities specified shall be counted
for purposes of determining whether the required percentage set forth in the
second sentence of this paragraph has been met.
(b) Except to the extent otherwise provided in the terms of the
Securities, the following provisions shall apply to meetings of Holders of
Securities:
(i) Notice of any such meeting shall be given to all of the
Holders of Securities having a right to vote thereat at least 7 days and
not more than 60 days before the date of such meeting. Whenever a vote,
consent or approval of the Holders of Securities is permitted or required
under this Declaration, the terms of the Securities or the rules of any
stock exchange on which the Preferred Securities are listed or admitted for
trading, such vote, consent or approval may be given at a meeting of the
Holders of Securities. Any action that may be taken at a meeting of the
Holders of Securities may be taken without a meeting if a consent in
writing setting forth the action so taken is signed by the Holders of
Securities owning not less than the minimum amount of Securities in
liquidation amount that would be necessary to authorize or take such action
at a meeting at which all Holders of Securities having a right to vote
thereon were present and voting. Prompt notice of the taking of action
without a meeting shall be given to the Holders of Securities entitled to
vote who have not consented in writing. The Regular Trustees may specify
that any written ballot submitted to the Holders of Securities for the
purpose of taking any action without a meeting shall be returned to the
Trust within the time specified by the Regular Trustees.
(ii) Each Holder of a Security may authorize any Person to act
for it by proxy on all matters in which a Holder of Securities is entitled
to participate, including waiving notice of any meeting, or voting or
participating at a meeting. No proxy shall be valid after the expiration of
11 months from the date thereof unless otherwise provided in the proxy.
Every proxy shall be revocable at the pleasure of the Holder of Securities
executing it. Except as otherwise provided herein, all matters relating to
the giving, voting or validity of proxies shall be governed by the General
<PAGE>
Corporation Law of the State of Delaware relating to proxies, and judicial
interpretations thereunder, as if the Trust were a Delaware corporation and
the Holders of the Securities were stockholders of a Delaware corporation.
(iii) Each meeting of the Holders of the Securities shall be
conducted by the Regular Trustees or by such other Person that the Regular
Trustees may designate.
(iv) Except to the extent that the Business Trust Act, the Trust
Indenture Act, this Declaration, the terms of the Securities or the listing
rules of any stock exchange on which the Preferred Securities are then
listed or trading otherwise provides, the Regular Trustees, in their sole
discretion, shall establish all other provisions relating to meetings of
Holders of Securities, including notice of the time, place or purpose of
any meeting at which any matter is to be voted on by any Holders of
Securities, waiver of any such notice, action by consent without a meeting,
the establishment of a record date, quorum requirements, voting in person
or by proxy or any other matter with respect to the exercise of any such
right to vote.
ARTICLE XIII
REPRESENTATIONS OF THE PROPERTY TRUSTEE AND THE DELAWARE TRUSTEE
Section 13.1 Representations and Warranties of the Property Trustee.
The Trustee which acts as initial Property Trustee represents and
warrants to the Trust and to the Sponsor at the date of this Declaration, and
each Successor Property Trustee represents and warrants to the Trust and the
Sponsor at the time of the Successor Property Trustee's acceptance of its
appointment as Property Trustee that:
(a) the Property Trustee is a national banking association with power
and authority to execute and deliver, and to carry out and perform its
obligations under the terms of, this Declaration;
(b) this Declaration has been duly executed and delivered by the
Property Trustee, and it constitutes a legal, valid and binding obligation of
the Property Trustee, enforceable against it in accordance with its terms,
subject to applicable bankruptcy, reorganization, moratorium, insolvency, and
other similar laws affecting creditors' rights generally and to general
principles of equity and the discretion of the court (regardless of whether the
enforcement of such remedies is considered in a proceeding in equity or at law);
<PAGE>
(c) the execution, delivery and performance of this Declaration by the
Property Trustee does not conflict with or constitute a breach of the Articles
of Organization or Bylaws of the Property Trustee; and
(d) no consent, approval or authorization of, or registration with or
notice to, any State or Federal banking authority is required for the execution,
delivery or performance by the Property Trustee of this Declaration, other than
the filing of the Certificate of Trust with the Delaware Secretary of State.
Section 13.2 Representations and Warranties of the Delaware Trustee.
The Trustee which acts as initial Delaware Trustee represents and
warrants to the Trust and to the Sponsor at the date of this Declaration, and
each Successor Delaware Trustee represents and warrants to the Trust and the
Sponsor at the time of the Successor Delaware Trustee's acceptance of its
appointment as Delaware Trustee that:
(a) the Delaware Trustee is a Delaware banking corporation, duly
organized, validly existing and in good standing under the laws of the State of
Delaware;
(b) the Delaware Trustee satisfies the requirements set forth in
Section 5.1(c) and has the power and authority to execute and deliver, and to
carry out and perform its obligations under the terms of, this Declaration and,
if it is not a natural person, is duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation or organization;
(c) this Declaration under Delaware law constitutes a legal, valid and
binding obligation of the Delaware Trustee, enforceable against it in accordance
with its terms, subject to applicable bankruptcy, reorganization, moratorium,
insolvency and other similar laws affecting creditors' rights generally and to
general principles of equity and the discretion of the court (regardless of
whether the enforcement of such remedies is considered in a proceeding in equity
or at law);
(d) no consent, approval or authorization of, or registration with or
notice to, any Delaware State or Federal banking authority is required for the
execution, delivery or performance by the Delaware Trustee of this Declaration
other than the filing of the Certificate of Trust with the Delaware Secretary of
State; and
(e) the execution, delivery and performance of this Declaration by the
Delaware Trustee do not conflict with, or constitute a violation or breach of,
the charter or bylaws of the Delaware Trustee.
<PAGE>
ARTICLE XIV
MISCELLANEOUS
Section 14.1 Notices.
All notices provided for in this Declaration 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 Trust, in care of the Regular Trustees at the
Trust's mailing address set forth below (or such other address as the Trust may
give notice of to the Trustees and the Holders of the Securities):
Bergen Capital Trust I, c/o Bergen Brunswig Corporation, 4000
Metropolitan Drive, Orange, California, 98680 Attention: Chief Legal
Officer (telecopy number: 714-385-6815), with a copy (which shall not
constitute notice) to Peter H. Ehrenberg, Esq., Lowenstein Sandler PC,
65 Livingston Avenue, Roseland, New Jersey 07068 (telecopy number:
973-597-2400).
(b) if given to the Delaware Trustee, at the mailing address set forth
below (or such other address as the Delaware Trustee may give notice of to the
Regular Trustees, the Property Trustee and the Holders of the Securities):
Chase Manhattan Bank Delaware, 1201 Market Street, Wilmington,
Delaware 19801 Attn.: Corporate Trust Administration (telecopy number:
302-428-3390)
(c) if given to the Property Trustee, at the mailing address set forth
below (or such other address as the Property Trustee may give notice of to the
Regular Trustees, the Delaware Trustee and the Holders of the Securities):
Chase Manhattan Bank and Trust Company, National Association, 101
California Street, Suite 2725, San Francisco, California 94111
Attention: Corporate Trust Administration (telecopy number:
415-693-8850)
(d) if given to the Holder of the Common Securities, at the mailing
address of the Sponsor set forth below (or such other address as the Holder of
the Common Securities may give notice of to the Trustees and the Trust):
Bergen Brunswig Corporation, 4000 Metropolitan Drive, Orange,
California, 98680 Attention: 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.
<PAGE>
(e) if given to any other Holder, at the address set forth on the
books and records of the Trust.
(f) 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 14.2 Governing Law.
This Declaration and the rights of the parties hereunder shall be
governed by and interpreted in accordance with the laws of the State of Delaware
and all rights and remedies shall be governed by such laws without regard to
principles of conflict of laws.
Section 14.3 Intention of the Parties.
It is the intention of the parties hereto that the Trust be classified
for United States federal income tax purposes as a grantor trust. The provisions
of this Declaration shall be interpreted to further this intention of the
parties.
Section 14.4 Headings.
Headings contained in this Declaration are inserted for convenience of
reference only and do not affect the interpretation of this Declaration or any
provision hereof.
Section 14.5 Successors and Assigns.
Whenever in this Declaration any of the parties hereto is named or
referred to, the successors and assigns of such party shall be deemed to be
included, and all covenants and agreements in this Declaration by the Sponsor
and the Trustees shall bind and inure to the benefit of their respective
successors and assigns, whether or not so expressed.
Section 14.6 Partial Enforceability.
If any provision of this Declaration, or the application of such
provision to any Person or circumstance, shall be held invalid, the remainder of
this Declaration, or the application of such provision to persons or
circumstances other than those to which it is held invalid, shall not be
affected thereby.
<PAGE>
Section 14.7 Counterparts.
This Declaration may contain more than one counterpart of the
signature page and this Declaration may be executed by the affixing of the
signature of each of the Trustees to one of such counterpart signature pages.
All of such counterpart signature pages shall be read as though one, and they
shall have the same force and effect as though all of the signers had signed a
single signature page.
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused these presents to be
executed as of the day and year first above written.
/s/ Donald R. Roden
______________________
Donald R. Roden,
as Regular Trustee
/s/ Neil F. Dimick
______________________
Neil F. Dimick,
as Regular Trustee
/s/ Milan A. Sawdei
______________________
Milan A. Sawdei,
as Regular Trustee
CHASE MANHATTAN BANK DELAWARE,
as Delaware Trustee
By: /s/ Denis Kelly
_________________________
Name: Denis Kelly
Title:Assistant Vice President
CHASE MANHATTAN BANK AND TRUST COMPANY,
National Association,
as Property Trustee
By:/s/ James Nagy
________________________________
Name: James Nagy
Title:Assistant Vice President
<PAGE>
BERGEN BRUNSWIG CORPORATION,
as Sponsor
By:/s/ Neil F. Dimick
________________________________
Name: Neil F. Dimick
Title: Executive Vice President
and Chief Financial Officer
<PAGE>
EXHIBIT A
TERMS OF
7.80% PREFERRED SECURITIES
7.80% COMMON SECURITIES
Pursuant to Section 7.1 of the Amended and Restated Declaration of
Trust, dated as of May 26, 1999 (as amended from time to time, the
"Declaration"), the designation, rights, privileges, restrictions, preferences
and other terms and provisions of the Preferred Securities and the Common
Securities are set out below (each capitalized term used but not defined herein
has the meaning set forth in the Declaration or, if not defined in such
Declaration, as defined in the Prospectus referred to below):
1. Designation and Number.
a. Preferred Securities. 12,000,000 Preferred Securities of the Trust
with an aggregate liquidation amount with respect to the assets of the Trust of
Three Hundred Million Dollars ($300,000,000) and a liquidation amount with
respect to the assets of the Trust of $25 per Preferred Security, are hereby
designated for the purposes of identification only as "7.80% Preferred
Securities" (the "Preferred Securities"). The Preferred Security Certificates
evidencing the Preferred Securities shall be substantially in the form attached
hereto as Annex I, with such changes and additions thereto or deletions
therefrom as may be required by ordinary usage, custom or practice or to conform
to the rules of any stock exchange on which the Preferred Securities are listed.
b. Common Securities. 371,134 Common Securities of the Trust with an
aggregate liquidation amount with respect to the assets of the Trust of Nine
Million Two Hundred Seventy Eight Thousand Three Hundred Fifty Dollars
($9,278,350) and a liquidation amount with respect to the assets of the Trust of
$25 per Common Security, are hereby designated for the purposes of
identification only as "7.80% Common Securities" (the "Common Securities"). The
Common Security Certificates evidencing the Common Securities shall be
substantially in the form attached hereto as Annex II, with such changes and
additions thereto or deletions therefrom as may be required by ordinary usage,
custom or practice.
2. Distributions.
a. Periodic Distributions payable on each Security will be fixed at a
rate per annum of 7.80% (the "Coupon Rate") of the stated liquidation amount of
$25 per Security, such rate being the rate of interest payable on the
Subordinated Notes to be held by the Property Trustee. Distributions in arrears
for more than one quarterly period will bear interest thereon at the Coupon Rate
(to the extent permitted by applicable law). The term "Distributions" as used in
these terms includes such periodic cash distributions and any such interest
<PAGE>
payable unless otherwise stated. A Distribution is payable only to the extent
that payments are made in respect of the Subordinated Notes held by the Property
Trustee. The amount of Distributions payable for any period will be computed for
any full quarterly Distribution period on the basis of a 360-day year of twelve
30-day months, and for any period shorter than a full quarterly Distribution
period for which Distributions are computed, Distributions will be computed on
the basis of the actual number of days elapsed in such a 30-day month.
b. Distributions on the Securities will be cumulative, will accrue
from May 26, 1999 and will be payable quarterly in arrears, on March 31, June
30, September 30 and December 31 of each year, commencing on June 30, 1999,
except as otherwise described below. The Subordinated Notes Issuer has the right
under the Indenture to defer payments of interest by extending the interest
payment period from time to time on the Subordinated Notes for a period not
exceeding 20 consecutive quarterly periods (each, an "Extension Period") but not
beyond the maturity date of the Subordinated Notes and, as a consequence of such
extension, Distributions will also be deferred. Despite such deferral, quarterly
Distributions will continue to accrue with interest thereon (to the extent
permitted by applicable law) at the Coupon Rate during any such Extension
Period. Prior to the termination of any such Extension Period, the Subordinated
Notes Issuer may further extend such Extension Period; provided that such
Extension Period together with all such previous and further extensions thereof
may not exceed 20 consecutive quarterly periods. Payments of accrued
Distributions will be payable to Holders as they appear on the books and records
of the Trust on the first record date after the end of the Extension Period.
Upon the termination of any Extension Period and the payment of all amounts then
due, the Subordinated Notes Issuer may commence a new Extension Period, subject
to the above requirements.
c. Distributions on the Securities will be payable to the Holders
thereof as they appear on the books and records of the Trust on the relevant
record dates. While the Preferred Securities remain in book entry only form, the
relevant record dates shall be one Business Day prior to the relevant payment
dates which payment dates correspond to the interest payment dates on the
Subordinated Notes. Subject to any applicable laws and regulations and the
provisions of the Declaration, each such payment in respect of the Preferred
Securities will be made as described under the heading "Certain Terms of the
Preferred Securities-- Book Entry-Only Issuance -- The Depository Trust Company"
in the Prospectus Supplement dated May 20, 1999 (the "Prospectus Supplement") to
the Prospectus dated May 14, 1999 (as so supplemented, the "Prospectus") of the
Trust included in the Registration Statement on Form S-3 of the Sponsor, the
Trust and certain other business trusts. The relevant record dates for the
Common Securities shall be the same record dates as for the Preferred
Securities. If the Preferred Securities shall not continue to remain in book
entry only form, the relevant record dates for the Preferred Securities shall
conform to the rules of any securities exchange on which the securities are
listed and, if none, shall be selected by the Regular Trustees, which dates
shall be at least one Business Day but less than 60 Business Days before the
relevant payment dates, which payment dates correspond to the interest payment
<PAGE>
dates on the Subordinated Notes. Distributions payable on any Securities that
are not punctually paid on any Distribution payment date, as a result of the
Subordinated Notes Issuer having failed to make a payment under the Subordinated
Notes, will cease to be payable to the Person in whose name such Securities are
registered on the relevant record date, and such defaulted Distribution will
instead be payable to the Person in whose name such Securities are registered on
the special record date or other specified date determined in accordance with
the Indenture. If any date on which Distributions are payable on the Securities
is not a Business Day, then payment of the Distribution payable on such date
will be made on the next succeeding day that is a Business Day (and without any
interest or other payment in respect of any such delay) except that, if such
Business Day is in the next succeeding calendar year, such payment shall be made
on the immediately preceding Business Day, in each case with the same force and
effect as if made on such date.
d. In the event that there is any money or other property held by or
for the Trust that is not accounted for hereunder, such property shall be
distributed Pro Rata (as defined herein) among the Holders of the Securities.
3. Liquidation Distribution Upon Dissolution.
In the event of any voluntary or involuntary dissolution, winding-up
or termination of the Trust, the Holders of the Securities on the date of the
dissolution, winding-up or termination, as the case may be, will be entitled to
receive out of the assets of the Trust available for distribution to Holders of
Securities, after paying or making reasonable provision to pay all claims and
obligations of the Trust in accordance with Section 3808(e) of the Business
Trust Act, an amount equal to the aggregate of the stated liquidation amount of
$25 per Security plus accrued and unpaid Distributions thereon to the date of
payment (such amount being the "Liquidation Distribution"), unless, in
connection with such dissolution, winding-up or termination, Subordinated Notes
in an aggregate principal amount equal to the aggregate stated liquidation
amount of such Securities, with an interest rate equal to the Coupon Rate of,
and bearing accrued and unpaid interest in an amount equal to the accrued and
unpaid Distributions on, such Securities, shall be distributed on a Pro Rata
basis to the Holders of the Securities in exchange for such Securities, after
paying or making reasonable provision to pay all claims and obligations of the
Trust in accordance with Section 3808(e) of the Business Trust Act.
If, upon any such dissolution, the Liquidation Distribution can be
paid only in part because the Trust has insufficient assets available to pay in
full the aggregate Liquidation Distribution, then the amounts payable directly
by the Trust on the Securities shall be paid on a Pro Rata basis.
<PAGE>
4. Redemption and Distribution.
a. Upon the repayment of the Subordinated Notes in whole or in part,
whether at maturity or upon redemption, the proceeds from such repayment or
payment shall be simultaneously applied to redeem Securities having an aggregate
liquidation amount equal to the aggregate principal amount of the Subordinated
Notes so repaid or redeemed, at the redemption price for the Subordinated Notes,
payable in cash (the "Redemption Price"). Holders will be given not less than 30
nor more than 60 days notice of such redemption.
b. If fewer than all the outstanding Securities are to be so redeemed,
the Common Securities and the Preferred Securities will be redeemed Pro Rata and
the Preferred Securities to be redeemed will be as described in Paragraph
4(h)(ii) below.
c. The Subordinated Notes are redeemable, in whole or in part, at the
option of the Subordinated Notes Issuer, on or after May 26, 2004 at a
redemption price equal to 100% of the principal amount per Subordinated Notes,
plus, in each case, accrued and unpaid interest thereon at the date of the
redemption for the Subordinated Notes.
d. If, at any time, a Tax Event or an Investment Company Event (each
as defined below, and each a "Special Event") shall occur and be continuing, the
Subordinated Notes Issuer shall have the right, upon not less than 30 nor more
than 60 days notice, to redeem the Subordinated Notes in whole or in part, for
cash within 90 days following the occurrence of such Special Event, at a
redemption price equal to 100% of the principal amount to be redeemed plus any
accrued and unpaid interest thereon to the date of such redemption and,
following such redemption, Securities with an aggregate liquidation amount equal
to the aggregate principal amount of the Subordinated Notes so redeemed shall be
redeemed by the Trust at the Redemption Price on a Pro Rata basis in accordance
with paragraph 8 hereof. The Common Securities will be redeemed Pro Rata with
the Preferred Securities, except that if an Event of Default has occurred and is
continuing, the Preferred Securities will have priority over the Common
Securities with respect to payment of the Redemption Price.
e. The following terms used herein shall be defined as follows:
(i) "Investment Company Event" means that the Trust shall have
received an opinion of counsel experienced in practice under the Investment
Company Act that, as a result of the occurrence of a change in law or
regulation or a change in interpretation or application of law or
regulation by any legislative body, court, governmental agency or
regulatory authority (a "Change in 1940 Act Law"), there is more than an
insubstantial risk that the Trust is or will be considered an Investment
Company which is required to be registered under the Investment Company
Act, which Change in 1940 Act Law becomes effective on or after the date of
the Prospectus Supplement.
<PAGE>
(ii) "Tax Event" means that the Trust shall have received an
opinion of counsel experienced in such matters to the effect that on or
after the date of the Prospectus Supplement, as a result of (a) any
amendment to, or change (including any announced proposed change) in, the
laws (or any regulations thereunder) of the United States or any political
subdivision or taxing authority therefore or therein, or (b) any amendment
to, or change in, an interpretation or application of any such laws or
regulations by any legislative body, court, governmental agency or
regulatory authority, which amendment or change is enacted, promulgated,
issued, proposed or announced or which interpretation or pronouncement is
issued, proposed or announced or which action is taken, in each case on or
after the date of the Prospectus Supplement, there is more than an
insubstantial risk that (i) the Trust is or will be within 90 days of the
date of such opinion, subject to United States federal income tax with
respect to interest accrued or received on the Subordinated Notes, (ii) the
Trust is, or will be within 90 days of the date of such opinion, subject to
more than a de minimis amount of taxes, duties or other governmental
charges, or (iii) interest payable by the Subordinated Note Issuer to the
Trust on the Subordinated Notes is not, or within 90 days of the date of
such opinion will not be, deductible, in whole or in part, by the
Subordinated Note Issuer for United States federal income tax purposes.
f. The Trust may not redeem fewer than all the outstanding Securities
unless all accrued and unpaid Distributions have been paid on all Securities for
all quarterly Distribution periods terminating on or before the date of
redemption.
g. In the event that the Sponsor makes the election referred to in
Section 8.1(a)(v) of the Declaration, the Regular Trustees shall dissolve the
Trust and, after paying or making reasonable provision to pay all claims and
obligations of the Trust in accordance with Section 3808(e) of the Business
Trust Act, cause Subordinated Notes, held by the Property Trustee, having an
aggregate stated liquidation amount of, with an interest rate identical to the
Coupon Rate of, and accrued and unpaid interest equal to accrued and unpaid
Distributions on and having the same record date for payment as, the Securities,
to be distributed to the Holders of the Securities in liquidation of such
Holders' interests in the Trust on a Pro Rata basis in accordance with paragraph
8 hereof. On and from the date fixed by the Regular Trustees for any
distribution of Subordinated Notes and dissolution of the Trust: (i) the
Securities will no longer be deemed to be outstanding, (ii) if the Preferred
Securities are held in book entry form, The Depository Trust Company (the
"Depository") or its nominee (or any successor Clearing Agency or its nominee),
as the record Holder of the Preferred Securities, will receive a registered
global certificate or certificates representing the Subordinated Notes to be
delivered upon such distribution and (iii) any certificates representing
Securities, except for certificates representing Preferred Securities held by
the Depository or its nominee (or any successor Clearing Agency or its nominee),
will be deemed to represent beneficial interests in the Subordinated Notes
having an aggregate principal amount equal to the aggregate stated liquidation
amount of, with an interest rate identical to the Coupon Rate of, and accrued
and unpaid interest equal to accrued and unpaid Distributions on, such
<PAGE>
Securities until such certificates are presented to the Subordinated Notes
Issuer or its agent for transfer or reissue. If the Subordinated Notes are
distributed to Holders of the Securities and the Preferred Securities were
listed on the New York Stock Exchange or any other exchange immediately prior to
the distribution of the distribution of the Subordinated Notes, pursuant to the
terms of the Indenture, the Subordinated Notes Issuer will use its best efforts
to have the Subordinated Notes listed on the New York Stock Exchange or on such
other exchange as the Preferred Securities were listed immediately prior to the
distribution of the Subordinated Notes.
h. Redemption or Distribution Procedures.
(i) Notice of any redemption of, or notice of distribution of,
Subordinated Notes in exchange for the Securities (a
"Redemption/Distribution Notice") will be given by the Trust by mail to
each Holder of Securities to be redeemed or exchanged not fewer than 30 nor
more than 60 days before the date fixed for redemption or exchange thereof
which, in the case of a redemption, will be the date fixed for redemption
of the Subordinated Notes. For purposes of the calculation of the date of
redemption or exchange and the dates on which notices are given pursuant to
this paragraph 4(h)(i), a Redemption/Distribution Notice shall be deemed to
be given on the day such notice is first mailed, by first-class mail,
postage prepaid, to Holders of Securities. Each Redemption/Distribution
Notice shall be addressed to the Holders of Securities at the address of
each such Holder appearing in the books and records of the Trust. No defect
in the Redemption/Distribution Notice or in the mailing of either thereof
with respect to any Holder shall affect the validity of the redemption or
exchange proceedings with respect to any other Holder.
(ii) In the event that fewer than all the outstanding Securities
are to be redeemed, the Securities to be redeemed will be redeemed Pro Rata
from each Holder of Securities, it being understood that, in respect of
Preferred Securities registered in the name of and held of record by the
Depository (or any successor Clearing Agency) or any other nominee, the
distribution of the proceeds of such redemption will be made to each
Clearing Agency Participant (or person on whose behalf such nominee holds
such securities) in accordance with the procedures applied by such agency
or nominee.
(iii) If Securities are to be redeemed and the Trust gives a
Redemption/Distribution Notice which notice may only be issued if the
Subordinated Notes are redeemed as set out in this paragraph 4 (which
notice will be irrevocable) then (A) while the Preferred Securities are in
book entry only form, with respect to the Preferred Securities, by 12:00
noon, New York City time, on the redemption date, provided that the
Subordinated Notes Issuer has paid the Property Trustee a sufficient amount
of cash in connection with the related redemption or maturity of the
Subordinated Notes, the Property Trustee will deposit irrevocably with the
Depository (or successor Clearing Agency) funds sufficient to pay the
Redemption Price with respect to the Preferred Securities and will give the
Depository irrevocable instructions and authority to pay the Redemption
<PAGE>
Price to the Holders of the Preferred Securities, and (B) if the Preferred
Securities are issued in definitive form, with respect to the Preferred
Securities, and with respect to the Common Securities, provided that the
Subordinated Notes Issuer has paid the Property Trustee a sufficient amount
of cash in connection with the related redemption or maturity of the
Subordinated Notes, the Property Trustee will pay the Redemption Price to
the Holders of such Securities by check mailed to the address of the
relevant Holder appearing on the books and records of the Trust on the
redemption date. If a Redemption/Distribution Notice shall have been given
and funds deposited as required, if applicable, then immediately prior to
the close of business on the date of such deposit, or on the redemption
date, as applicable, Distributions will cease to accrue on the Securities
so called for redemption and all rights of Holders of such Securities so
called for redemption will cease, except the right of the Holders of such
Securities to receive the Redemption Price, but without interest on such
Redemption Price. Neither the Regular Trustees nor the Trust shall be
required to register or cause to be registered the transfer of any
Securities which have been so called for redemption. If any date fixed for
redemption of Securities is not a Business Day, then payment of the
Redemption Price payable on such date will be made on the next succeeding
day that is a Business Day (and without any interest or other payment in
respect of any such delay) except that, if such Business Day falls in the
next calendar year, such payment will be made on the immediately preceding
Business Day, in each case with the same force and effect as if made on
such date fixed for redemption. If payment of the Redemption Price in
respect of Securities is improperly withheld or refused and not paid either
by the Property Trustee or by the Sponsor as guarantor pursuant to the
relevant Securities Guarantee, Distributions on such Securities will
continue to accrue, from the original redemption date to the actual date of
payment, in which case the actual payment date will be considered the date
fixed for redemption for purposes of calculating the Redemption Price.
(iv) Redemption/Distribution Notices shall be sent by the Regular
Trustees on behalf of the Trust to (A) in respect of the Preferred
Securities, the Depository or its nominee (or any successor Clearing Agency
or its nominee) if the Global Certificates have been issued or if
Definitive Preferred Security Certificates have been issued, to the Holder
thereof, and (B) in respect of the Common Securities, to the Holder
thereof.
(v) Subject to the foregoing and applicable law (including,
without limitation, United States federal securities laws), the Sponsor or
any of its subsidiaries may at any time and from time to time purchase
outstanding Preferred Securities by tender, in the open market or by
private agreement.
<PAGE>
5. Voting Rights Applicable to Preferred Securities.
a. Except as provided under paragraphs 5(b) and 7 and as otherwise
required by law and the Declaration, the Holders of the Preferred Securities
will have no voting rights.
b. Subject to the requirements of the third to last sentence of this
paragraph, the Holders of a Majority in liquidation amount of the Preferred
Securities, voting separately as a class, may direct the time, method, and place
of conducting any proceeding for any remedy available to the Property Trustee,
or exercising any trust or power conferred upon the Property Trustee under the
Declaration, including (i) directing the time, method, and place of conducting
any proceeding for any remedy available to the Subordinated Notes Trustee, or
exercising any trust or power conferred on the Subordinated Notes Trustee with
respect to the Subordinated Notes, (ii) waiving any past default and its
consequences that is waivable under Section 5.13 of the Indenture, (iii)
exercising any right to rescind or annul a declaration that the principal of all
the Subordinated Notes shall be due and payable or (iv) consenting to any
amendment, modification or termination of the Indenture or the Subordinated
Notes where such consent shall be required, provided, however, that where a
waiver or consent under the Indenture would require the consent or act of the
Holders of greater than a majority in principal amount of Subordinated Notes
affected thereby (a "Super Majority"), the Property Trustee may only give such
consent or take such action at the direction of the Holders of at least the
proportion in liquidation amount of the Preferred Securities which the relevant
Super Majority represents of the aggregate principal amount of the Subordinated
Notes outstanding. The Property Trustee shall not revoke any action previously
authorized or approved by a vote of the Holders of the Preferred Securities.
Other than with respect to directing the time, method and place of conducting
any remedy available to the Property Trustee or the Subordinated Notes Trustee
as set forth above, the Property Trustee shall not take any action in accordance
with the directions of the Holders of the Preferred Securities under this
paragraph unless the Property Trustee has obtained an opinion of tax counsel to
the effect that for the purposes of United States federal income tax the Trust
will not be classified as other than a grantor trust on account of such action.
If the Property Trustee fails to enforce its rights under the Declaration, any
Holder of Preferred Securities may, to the extent permitted by law, institute a
legal proceeding directly against any Person to enforce the Property Trustee's
rights under the Declaration, without first instituting a legal proceeding
against the Property Trustee or any other Person. Notwithstanding the foregoing,
if an Event of Default has occurred and is continuing with respect to the
Preferred Securities and such event is attributable to the failure of the
Subordinated Notes Issuer to pay interest, premium, if any, or principal on the
Subordinated Notes on the date such interest, premium, if any, or principal is
otherwise payable (or in the case of redemption, on the redemption date), then a
holder of Preferred Securities may institute a Direct Action for enforcement of
payment to such holder of the principal of, premium, if any, or interest on,
Subordinated Notes having a principal amount equal to the aggregate liquidation
amount of the Preferred Securities of such holder on or after the respective due
<PAGE>
date specified in the Subordinated Notes. Notwithstanding any payments made to
such Holder of Preferred Securities by the Subordinated Notes Issuer in
connection with a Direct Action, the Subordinated Notes Issuer shall remain
obligated to pay the principal of, premium, if any, and interest on the
Subordinated Notes held by the Trust or the Property Trustee, and the
Subordinated Notes Issuer shall be subrogated to the rights of the Holder of
such Preferred Securities with respect to payments on the Preferred Securities
to the extent of any payment made by the Subordinated Notes Issuer to such
Holder in any Direct Action. Except as provided in the preceding sentences, the
Holders of Preferred Securities will not be able to exercise directly any other
remedy available to the holders of the Subordinated Notes.
c. Any approval or direction of Holders of Preferred Securities may be
given at a separate meeting of Holders of Preferred Securities convened for such
purpose, at a meeting of all of the Holders of Securities in the Trust or
pursuant to written consent. The Regular Trustees will cause a notice of any
meeting at which Holders of Preferred Securities are entitled to vote, or of any
matter upon which action by written consent of such Holders is to be taken, to
be mailed to each Holder of record of Preferred Securities. Each such notice
will include a statement setting forth (i) the date of such meeting or the date
by which such action is to be taken, (ii) a description of any resolution
proposed for adoption at such meeting on which such Holders are entitled to vote
or of such matter upon which written consent is sought and (iii) instructions
for the delivery of proxies or consents.
d. No vote or consent of the Holders of the Preferred Securities will
be required for the Trust to redeem and cancel Preferred Securities or to
distribute the Subordinated Notes in accordance with the Declaration and the
terms of the Securities.
e. Notwithstanding that Holders of Preferred Securities are entitled
to vote or consent under any of the circumstances described above, any of the
Preferred Securities that are owned by the Sponsor or any Affiliate of the
Sponsor shall not be entitled to vote or consent and shall, for purposes of such
vote or consent, be treated as if they were not outstanding.
6. Voting Rights With Respect to Common Securities.
a. Except as provided under paragraphs 6(b), 6(c) and 7 and as
otherwise required by law and the Declaration, the Holders of the Common
Securities will have no voting rights.
b. The Holders of the Common Securities are entitled, in accordance
with Article V of the Declaration, to vote to appoint, remove or replace any
Trustee or to increase or decrease the number of Trustees.
c. Subject to Section 2.6 of the Declaration and only after all Events
of Default with respect to the Preferred Securities have been cured, waived or
otherwise eliminated and subject to the requirements of the second to last
<PAGE>
sentence of this paragraph, the Holders of a Majority in liquidation amount of
the Common Securities, voting separately as a class, may direct the time,
method, and place of conducting any proceeding for any remedy available to the
Property Trustee, or exercising any trust or power conferred upon the Property
Trustee under the Declaration, including (i) directing the time, method, place
of conducting any proceeding for any remedy available to the Subordinated Notes
Trustee, or exercising any trust or power conferred on the Subordinated Notes
Trustee with respect to the Subordinated Notes, (ii) waiving any past default
and its consequences that is waivable under Section 5.13 of the Indenture, or
(iii) exercising any right to rescind or annul a declaration that the principal
of all the Subordinated Notes shall be due and payable, provided, however, that
where a consent or action under the Indenture would require the consent or act
of the Holders of greater than a majority in principal amount of Subordinated
Notes affected thereby (a "Super Majority"), the Property Trustee may only give
such consent or take such action at the direction of the Holders of at least the
proportion in liquidation amount of the Common Securities which the relevant
Super Majority represents of the aggregate principal amount of the Subordinated
Notes outstanding. Pursuant to this paragraph 6(c), the Property Trustee shall
not revoke any action previously authorized or approved by a vote of the Holders
of the Common Securities. Other than with respect to directing the time, method
and place of conducting any remedy available to the Property Trustee or the
Subordinated Notes Trustee as set forth above, the Property Trustee shall not
take any action in accordance with the directions of the Holders of the Common
Securities under this paragraph unless the Property Trustee has obtained an
opinion of tax counsel to the effect that for the purposes of United States
federal income tax, the Trust will not be classified as other than a grantor
trust on account of such action. If the Property Trustee fails to enforce its
rights under the Declaration, any Holder of Common Securities may, to the extent
permitted by law, institute a legal proceeding directly against any Person to
enforce the Property Trustee's rights under the Declaration, without first
instituting a legal proceeding against the Property Trustee or any other Person.
Notwithstanding the foregoing, if an Event of Default has occurred and is
continuing with respect to the Common Securities and such event is attributable
to the failure of the Subordinated Notes Issuer to pay interest or principal on
the Subordinated Notes on the date such interest or principal is otherwise
payable (or in the case of redemption, on the redemption date), then a holder of
Common Securities may institute a proceeding for enforcement of payment to such
holder of the principal of, or interest on, Subordinated Notes having a
principal amount equal to the aggregate liquidation amount of the Common
Securities of such holder on or after the respective due date specified in the
Subordinated Notes.
d. Any approval or direction of Holders of Common Securities may be
given at a separate meeting of Holders of Common Securities convened for such
purpose, at a meeting of all of the Holders of Securities in the Trust or
pursuant to written consent. The Regular Trustees will cause a notice of any
meeting at which Holders of Common Securities are entitled to vote, or of any
matter upon which action by written consent of such Holders is to be taken, to
<PAGE>
be mailed to each Holder of record of Common Securities. Each such notice will
include a statement setting forth (i) the date of such meeting or the date by
which such action is to be taken, (ii) a description of any resolution proposed
for adoption at such meeting on which such Holders are entitled to vote or of
such matter upon which written consent is sought and (iii) instructions for the
delivery of proxies or consents.
e. No vote or consent of the Holders of the Common Securities will be
required for the Trust to redeem and cancel Common Securities or to distribute
the Subordinated Notes in accordance with the Declaration and the terms of the
Securities.
7. Amendments to Declaration and Indenture.
a. In addition to any requirements under Section 12.1 of the
Declaration, if any proposed amendment to the Declaration provides for, or the
Regular Trustees otherwise propose to effect, (i) any action that would
adversely affect the powers, preferences or special rights of the Securities,
whether by way of amendment to the Declaration or otherwise, or (ii) the
dissolution, winding-up or termination of the Trust, other than as described in
Section 8.1 or Section 3.14 of the Declaration, then the Holders of outstanding
Securities as a class, will be entitled to vote on such amendment or proposal
(but not on any other amendment or proposal) and such amendment or proposal
shall not be effective except with the approval of the Holders of at least a
Majority in liquidation amount of the Securities, voting together as a single
class; provided, however, that if any amendment or proposal referred to in
clause (i) above would adversely affect only the Preferred Securities or the
Common Securities, then only the affected class will be entitled to vote on such
amendment or proposal and such amendment or proposal shall not be effective
except with the approval of a Majority in liquidation amount of such class of
Securities.
b. In the event the consent of the Property Trustee as the holder of
the Subordinated Notes is required under the Indenture with respect to any
amendment, modification or termination of the Indenture or the Subordinated
Notes, the Property Trustee shall request the direction of the Holders of the
Securities with respect to such amendment, modification or termination and shall
vote with respect to such amendment, modification or termination as directed by
a Majority in liquidation amount of the Securities voting together as a single
class; provided, however, that where a consent under the Indenture would require
the consent of the Holders of greater than a majority in aggregate principal
amount of the Subordinated Notes (a "Super Majority"), the Property Trustee may
only give such consent at the direction of the Holders of at least the
proportion in liquidation amount of the Securities which the relevant Super
Majority represents of the aggregate principal amount of the Subordinated Notes
outstanding; provided, further, that the Property Trustee shall not take any
action in accordance with the directions of the Holders of the Securities under
this paragraph 7(b) unless the Property Trustee has been furnished an opinion of
tax counsel to the effect that for the purposes of United States federal income
tax, the Trust will not be classified as other than a grantor trust on account
of such action.
<PAGE>
8. Pro Rata.
A reference in these terms of the Securities to any payment,
distribution or treatment as being "Pro Rata" shall mean pro rata to each Holder
of Securities according to the aggregate liquidation amount of the Securities
held by the relevant Holder in relation to the aggregate liquidation amount of
all Securities outstanding unless, in relation to a payment, an Event of Default
under the Indenture has occurred and is continuing, in which case any funds
available to make such payment shall be paid first to each Holder of the
Preferred Securities pro rata according to the aggregate liquidation amount of
Preferred Securities held by the relevant Holder relative to the aggregate
liquidation amount of all Preferred Securities outstanding, and only after
satisfaction of all amounts owed to the Holders of the Preferred Securities, to
each Holder of Common Securities pro rata according to the aggregate liquidation
amount of Common Securities held by the relevant Holder relative to the
aggregate liquidation amount of all Common Securities outstanding.
9. Ranking.
The Preferred Securities rank pari passu and payment thereon shall be
made Pro Rata with the Common Securities except that, where an Event of Default
occurs and is continuing under the Indenture in respect of the Subordinated
Notes held by the Property Trustee, the rights of Holders of the Common
Securities to payment in respect of Distributions and payments upon liquidation,
redemption and otherwise are subordinated to the rights to payment of the
Holders of the Preferred Securities.
10. Acceptance of Securities Guarantee and Indenture.
Each Holder of Preferred Securities and Common Securities, by the
acceptance thereof, agrees to the provisions of the Preferred Securities
Guarantee and the Common Securities Guarantee, respectively, including the
subordination provisions therein and to the provisions of the Indenture.
11. No Preemptive Rights.
The Holders of the Securities shall have no preemptive rights to
subscribe for any additional Securities.
12. Miscellaneous.
These terms constitute a part of the Declaration.
The Sponsor will provide a copy of the Declaration, the Preferred
Securities Guarantee and the Indenture to a Holder without charge on written
request to the Trust at its principal place of business.
<PAGE>
Annex I
This Preferred Security is a Global Certificate within the meaning of the
Declaration hereinafter referred to and is registered in the name of The
Depository Trust Company (the "Depository") or a nominee of the Depository. This
Preferred Security is exchangeable for Preferred Securities registered in the
name of a person other than the Depository or its nominee only in the limited
circumstances described in the Declaration and no transfer of this Preferred
Security (other than a transfer of this Preferred Security as a whole by the
Depository to a nominee of the Depository or by a nominee of the Depository to
the Depository or another nominee of the Depository) may be registered except in
limited circumstances.
Unless this Preferred Security is presented by an authorized representative of
The Depository Trust Company (55 Water Street, New York) to the Trust or its
agent for registration of transfer, exchange or payment, and any Preferred
Security issued is registered in the name of Cede & Co. or such other name as
requested by an authorized representative of The Depository Trust Company and
any payment hereon is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL since the registered owner
hereof, Cede & Co., has an interest herein.
Certificate Number _______ Number of Preferred Securities _______
CUSIP NO.__________
Certificate Evidencing Preferred Securities
of
BERGEN CAPITAL TRUST I
7.80% Preferred Securities
(liquidation amount $25 per Preferred Security)
BERGEN CAPITAL TRUST I, a business trust formed under the laws of the
State of Delaware (the "Trust"), hereby certifies that CEDE & CO. (the "Holder")
is the registered owner of preferred securities of the Trust representing
undivided beneficial interests in the assets of the Trust designated the 7.80%
Preferred Securities (liquidation amount $25 per Preferred Security) (the
"Preferred Securities"). The transfer of Preferred Securities is registrable on
the books and records of the Trust, in person or by a duly authorized attorney,
upon surrender of this certificate duly endorsed and in proper form for
registration of transfer. The designation, rights, privileges, restrictions,
preferences and other terms and provisions of the Preferred Securities
represented hereby are issued and shall in all respects be subject to the
provisions of the Amended and Restated Declaration of Trust of the Trust dated
as of May 26, 1999, as the same may be amended from time to time (the
"Declaration") including the designation of the terms of the Preferred
Securities as set forth in Exhibit A to the Declaration. Capitalized terms used
herein but not defined shall have the respective meanings given them in the
Declaration. The Holder is entitled to the benefits of the Preferred Securities
<PAGE>
Guarantee to the extent provided therein. The Sponsor will provide a copy of the
Declaration, the Preferred Securities Guarantee and the Indenture to a Holder
without charge upon written request to the Trust at its principal place of
business.
Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States federal
income tax purposes, the Subordinated Notes as indebtedness and the Preferred
Securities as evidence of indirect beneficial ownership in the Subordinated
Notes.
IN WITNESS WHEREOF, the Regular Trustees of the Trust have duly
executed this certificate.
Dated:____________
________________________ as Trustee
________________________ as Trustee
________________________ as Trustee
CERTIFICATE OF AUTHENTICATION
This is one of the Securities issued under the Amended and Restated Declaration
of Trust described herein.
CHASE MANHATTAN BANK AND TRUST COMPANY,
NATIONAL ASSOCIATION, as Property Trustee
By: __________________________
Name:
Title:
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Preferred Security Certificate to:
(Insert assignee's social security or tax
identification number)
(Insert address and zip code of assignee)
and irrevocably appoints
agent to transfer this Preferred Security Certificate on the books of the Trust.
The agent may substitute another to act for him or her.
Date: Signature:
(Sign exactly as your name appears on the
other side of this Preferred Security
Certificate)
Signature Guarantor:
<PAGE>
Annex II
TRANSFER OF THIS CERTIFICATE
IS SUBJECT TO THE CONDITIONS
SET FORTH IN THE DECLARATION
REFERRED TO BELOW
THE SECURITY EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE
OFFERED OR SOLD UNLESS SUCH OFFER AND SALE ARE REGISTERED UNDER OR ARE EXEMPT
FROM REGISTRATION UNDER THE SECURITIES ACT. THE TRANSFER OF THE SECURITY
EVIDENCED HEREBY IS ALSO SUBJECT TO THE RESTRICTIONS SET FORTH IN THE
DECLARATION REFERRED TO BELOW.
Certificate Number _______ Number of Common Securities _______
Certificate Evidencing Common Securities
of
BERGEN CAPITAL TRUST I
Common Securities.
(liquidation amount $25 per Common Security)
BERGEN CAPITAL TRUST I, a business trust formed under the laws of the
State of Delaware (the "Trust"), hereby certifies that Bergen Brunswig
Corporation (the "Holder") is the registered owner of common securities of the
Trust representing undivided beneficial interests in the assets of the Trust
designated the 7.80% Common Securities (liquidation amount $25 per Common
Security) (the "Common Securities"). The transfer of Common Securities is
registerable on the books and records of the Trust, in person or by a duly
authorized attorney, upon surrender of this certificate duly endorsed and in
proper form for registration of transfer. The designation, rights, privileges,
restrictions, preferences and other terms and provisions of the Common
Securities represented hereby are issued and shall in all respects be subject to
the provisions of the Amended and Restated Declaration of Trust of the Trust
dated as of May 26, 1999, as the same may be amended from time to time (the
"Declaration"), including the designation of the terms of the Common Securities
as set forth in Exhibit A to the Declaration. Capitalized terms used herein but
not defined shall have the respective meanings given them in the Declaration.
The Holder is entitled to the benefits of the Common Securities Guarantee to the
extent provided therein. The Sponsor will provide a copy of the Declaration, the
Common Securities Guarantee and the Indenture to a Holder without charge upon
written request to the Trust at its principal place of business.
Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
<PAGE>
By acceptance, the Holder agrees to treat, for United States federal
income tax purposes, the Subordinated Notes as indebtedness and the Common
Securities as evidence of indirect beneficial ownership in the Subordinated
Notes.
[This space intentionally left blank.]
<PAGE>
IN WITNESS WHEREOF, the Trust has executed this certificate this ___
day of May, 1999.
________________________ as Trustee
________________________ as Trustee
________________________ as Trustee
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Common
Security Certificate to: (Insert assignee's social security or tax
identification number)
(Insert address and zip code of assignee)
and irrevocably appoints
agent to transfer this Common Security Certificate on the books of the Trust.
The agent may substitute another to act for him or her.
Date: Signature:
(Sign exactly as your name appears on the
other side of this Common Security
Certificate)
Signature Guarantor:
<PAGE>
EXHIBIT B
UNDERWRITING AGREEMENT
<PAGE>
EXHIBIT C
SUBORDINATED NOTES CERTIFICATE
EXHIBIT 4.2
BERGEN BRUNSWIG CORPORATION
OFFICERS' CERTIFICATE
Bergen Capital Trust I, a Delaware business trust (the "Trust"), will offer to
the public $300,000,000 aggregate liquidation amount of its 7.80% Trust
Originated Preferred SecuritiesSM ("TOPrS[SM]"), representing undivided
beneficial interests in the assets of the Trust (the "Preferred Securities").
The Trust will issue and sell $9,278,350 aggregate liquidation amount of it
common securities, representing undivided beneficial interests in the Trust (the
"Common Securities"), to Bergen Brunswig Corporation, a New Jersey corporation
(the "Company").
The Trust proposes to invest the proceeds from the sale of both the Preferred
Securities and the Common Securities (collectively, the "Trust Securities") in
$309,278,350 aggregate principal amount of a series of 7.80% Subordinated
Deferrable Interest Notes due June 30, 2039 of the Company, issued pursuant to
an indenture, dated as of May 14, 1999 (the "Indenture"), between the Company
and Chase Manhattan Bank and Trust Company, National Association, as trustee
(the "Trustee").
The Trust Securities will be issued pursuant to the terms of an amended and
restated declaration of trust of the Trust, dated as of May 26, 1999 (the
"Declaration"), among the Company, the holders from time to time of the Trust
Securities, and the five trustees of the Trust. Three of said trustees are
officers of the Company (the "Regular Trustees"). Chase Manhattan Bank and Trust
Company, National Association, will act as the property trustee (the "Property
Trustee") and one of its affiliates will act as the Delaware trustee (the
"Delaware Trustee").
Any capitalized term not defined herein shall have the meaning ascribed to it in
the Indenture.
Pursuant to Sections 1.02 and 3.01 of the Indenture, the undersigned duly
authorized officers of the Company hereby certify on behalf of the Company as
follows:
1. Authorization. The establishment of a series of the subordinated debt
securities of the Company has been approved and authorized, in accordance with
the provisions of the Indenture, pursuant to resolutions adopted by the board of
directors of the Company on May 14, 1999 (the "Board Resolutions").
2. Compliance with Covenants and Conditions Precedent. All covenants and
conditions precedent set forth in the Indenture have been complied with as
relating to the establishment of the series of subordinated debt securities.
3. Terms. The terms of the series of subordinated debt securities established
pursuant to this officers' certificate shall be as follows:
__________________
SM "Trust Originated Preferred Securities" and "TOPrS" are service marks of
Merrill Lynch & Co., Inc.
<PAGE>
(a) Title. The title of this series of subordinated debt securities is
the 7.80% Subordinated Deferrable Interest Notes due June 30, 2039
(each a "Subordinated Note" and collectively, the "Subordinated
Notes").
(b) Aggregate Principal Amount. The aggregate principal amount of the
Subordinated Notes which may be authenticated and delivered pursuant to
the Indenture is $309,278,350 (except for Subordinated Notes
authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of other Subordinated Notes, pursuant to
Sections 3.04, 3.05, 3.06, 9.06, 11.07, or 13.03 of the Indenture, and
except for Subordinated Notes which, pursuant to Section 3.03 of the
Indenture, are deemed never to have been authenticated and delivered
thereunder).
(c) Registered Securities in Book-Entry Form. Except as provided in
paragraph (w) below, the Subordinated Notes will be issued in fully
registered certificated form without interest coupons. Pursuant to
paragraph (w) below, the Subordinated Notes may be issued in book-entry
form ("Book-Entry Subordinated Notes") and represented by one or more
global notes (the "Global Subordinated Notes") in fully registered
form, without coupons. The initial Depositary with respect to the
Global Subordinated Notes will be The Depository Trust Company, as
depositary for the accounts of its participants. So long as the
Depositary for a Global Subordinated Note, or its nominee, is the
registered owner of the Global Subordinated Note, the Depositary or its
nominee, as the case may be, will be considered the sole owner or
holder of the Subordinated Notes in book-entry form represented by such
Global Subordinated Note for all purposes under the Indenture.
Book-Entry Subordinated Notes will not be exchangeable for Subordinated
Notes in definitive form ("Definitive Subordinated Notes") except that,
if the Depositary with respect to any or all Global Subordinated Notes
is at any time unwilling or unable to continue as Depositary and a
successor Depositary is not appointed by the Company within 90 days,
the Company will issue Definitive Subordinated Notes in exchange for
the Book-Entry Subordinated Notes represented by any or all such Global
Subordinated Notes. In addition, the Company may at any time and in its
sole discretion determine not to have Global Subordinated Notes, and,
in such event, will issue Definitive Subordinated Notes in exchange for
the Book-Entry Subordinated Notes represented by such Global
Subordinated Notes in accordance with the provisions of Section 3.05 of
the Indenture.
(d) Persons to Whom Interest Payable. Interest will be payable to the
Person in whose name a Subordinated Note is registered at the close of
business (whether or not a Business Day) on the Regular Record Date
with respect to such Subordinated Note, except for interest payable on
a Subordinated Note surrendered for redemption as set forth in
paragraph (i) below.
(e) Stated Maturity. The principal amount of the Subordinated Notes
will be payable on June 30, 2039, subject to earlier redemption as set
forth in paragraph (i) below.
(f) Rate of Interest; Interest Payment Dates; Regular Record Dates;
Accrual of Interest. The Subordinated Notes will bear interest at the
<PAGE>
rate of 7.80% per annum (the "Coupon Rate"). Interest on the
Subordinated Notes will be payable quarterly in arrears on March 31,
June 30, September 30 and December 31 of each year (each, an "Interest
Payment Date"), commencing on June 30, 1999. In respect of any
Subordinated Notes of which the Property Trustee is the registered
holder or any Subordinated Notes which are in book-entry only form, the
Regular Record Date shall be one Business Day before the relevant
Interest Payment Date. Notwithstanding the foregoing sentence, if the
Preferred Securities are no longer in book-entry only form or a
Dissolution Event, as defined in paragraph (w) below, has occurred and
subsequent thereto the Subordinated Notes are not represented by a
Global Subordinated Note pursuant to the provisions of Section 3.05 of
the Indenture, the Regular Record Date will be the 15th day of the last
month of each quarterly distribution period (whether or not a Business
Day) next preceding such Interest Payment Date. The Subordinated Notes
will bear interest from May 26, 1999 or from the most recent Interest
Payment Date to which interest has been paid or duly provided for until
the principal thereof is paid or made available for payment. Interest
payments shall be the amount of interest accrued from and including the
most recent Interest Payment Date in respect of which interest has been
paid or duly provided for (or from and including May 26, 1999 if no
interest has been paid or duly provided for with respect to such
Subordinated Note) to, but excluding, the next succeeding Interest
Payment Date.
The amount of interest payable for any period will be computed on the
basis of a 360-day year of twelve 30-day months. Except as provided in
the following sentence, the amount of interest payable for any period
shorter than a full quarterly period for which interest is computed,
will be computed on the basis of the actual number of days elapsed per
30-day month. In the event that any date on which interest is payable
on the Subordinated Notes is not a Business Day, then payment of
interest payable on such date will be made on the next succeeding day
which is a Business Day (and without any interest or other payment in
respect of any such delay), except that, if such Business Day is in the
next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same force
and effect as if made on such date.
(g) Additional Interest. If at any time while the Property Trustee is
the holder of any Subordinated Notes, the Trust or the Property Trustee
is required to pay any taxes, duties, assessments, or governmental
charges of whatever nature (other than withholding taxes) imposed by
the United States, or any other taxing authority (collectively, the
"Taxes"), then, in any such case, the Company will pay as additional
interest ("Additional Interest") on the Subordinated Notes held by the
Property Trustee, such additional amounts as shall be required so that
the net amounts received and retained by the Trust and the Property
Trustee after paying the Taxes will be equal to the amounts the Trust
and the Property Trustee would have received had no such Taxes been
imposed.
(h) Place of Payment; Registration of Transfer and Exchange; Notices to
Company. Payment of the principal of and interest on the Subordinated
Notes will be made at the Corporate Trust Office of the Trustee in the
Borough of Manhattan, The City of New York, or at any other office or
agency designated by the Company for such purpose; provided, however,
that, at the option of the Company, payment of interest may be made by
check mailed to the address of the Person entitled thereto as such
<PAGE>
address shall appear in the Security Register. Notwithstanding the
foregoing, so long as the registered holder of any Subordinated Notes
is the Property Trustee, the payment of the principal of and interest
(including Additional Interest, if any) on such Subordinated Notes held
by the Property Trustee will be made at such place and to such account
as may be designated by the Property Trustee. The Subordinated Notes
may be presented for exchange and registration of transfer at the
Corporate Trust Office of the Trustee in the Borough of Manhattan, The
City of New York, or at the office of any transfer agent hereafter
designated by the Company for such purpose.
Notices and demands to or upon the Company in respect of the
Subordinated Notes and the Indenture may be served at Bergen Brunswig
Corporation, 4000 Metropolitan Drive, Orange, California 92868,
attention:
Chief Legal Officer.
(i) Redemption. The Subordinated Notes are not entitled to any
mandatory redemption or sinking fund payments. The Company can redeem
some or all of the Subordinated Notes before their maturity as set
forth below.
(1) Optional Redemption. The Subordinated Notes will be
redeemable, in whole or from time to time in part, at the
option of the Company at any time on or after May 26, 2004 at
a redemption price equal to 100% of the principal amount per
Subordinated Note to be redeemed plus, in each case, accrued
and unpaid interest thereon to the Redemption Date (the
"Redemption Price").
(2) Special Event Redemption. If, at any time, a Tax Event or
an Investment Company Event (each as defined below, and each a
"Special Event") shall occur and be continuing, the Company
shall have the right to redeem the Subordinated Notes in whole
or in part, for cash within 90 days following the occurrence
of such Special Event, at the Redemption Price.
(i) "Investment Company Event" means that the Trust
shall have received an opinion of counsel experienced
in practice under the Investment Company Act of 1940,
as amended (the "1940 Act"), that as a result of the
occurrence of a change in law or regulation or a
change in interpretation or application of law or
regulation by any legislative body, court,
governmental agency, or regulatory authority (a
"Change in 1940 Act Law"), there is more than an
insubstantial risk that the Trust is or will be
considered an investment company which is required to
be registered under the 1940 Act which Change in 1940
Act Law becomes effective on or after May 20, 1999.
(ii) "Tax Event" means that the Trust shall have
received an opinion of counsel experienced in such
matters to the effect that on or after May 20, 1999,
as a result of: (A) any amendment to, or change
(including any announced proposed change) in, the
<PAGE>
laws (or any regulations thereunder) of the United
States or any political subdivision or taxing
authority thereof or therein; or (B) any official or
administrative pronouncement or action, or judicial
decision, interpreting or applying such laws or
regulations, where such change or amendment becomes
effective, or such pronouncement, action or decision
is announced or occurs, in each case on or after May
20, 1999, there is more than an insubstantial risk
that: (I) the Trust is or will be within 90 days of
the date of such opinion, subject to United States
federal income tax with respect to interest accrued
or received on the Subordinated Notes; (II) the Trust
is, or will be within 90 days of the date of such
opinion, subject to more than a minimal amount of
other taxes, duties, assessments or other
governmental charges; or (III) interest payable by
the Company to the Trust on the Subordinated Notes is
not, or within 90 days of the date of such opinion
will not be, deductible, in whole or in part, by the
Company for United States federal income tax
purposes.
(3) Notice of Redemption. Notice of any redemption will be
mailed at least 30 days but not more than 60 days before the
redemption date to each Holder of the Subordinated Notes to be
redeemed. Unless the Company defaults in payment of the
Redemption Price, on and after the redemption date, interest
will cease to accrue on the Subordinated Notes or portions
thereof called for redemption. If less than all of the
Subordinated Notes are to be redeemed, the Subordinated Notes
(or portions thereof) to be redeemed shall be selected by the
Trustee by such method as the Trustee shall deem fair and
appropriate, provided that if, at the time of redemption, the
Subordinated Notes are registered as a Global Subordinated
Note, the Depositary shall determine the principal amount of
such Subordinated Notes held by each holder to be redeemed in
accordance with its procedures.
(4) Prohibition on Partial Redemption. If a partial redemption
of the Subordinated Notes would result in the delisting of the
Preferred Securities from any national securities exchange or
other organization on which the Preferred Securities are then
listed, the Company shall not be permitted to effect such
partial redemption and may only redeem the Subordinated Notes
in whole.
(j) Extension of Interest Payment Period.
(1) Right to Extend. The Company shall have the right, at any
time, and from time to time, during the term of the
Subordinated Notes to extend the interest payment period of
such Subordinated Notes for up to 20 consecutive quarterly
periods (an "Extended Interest Payment Period"), provided no
Event of Default has occurred and is continuing with respect
to the Subordinated Notes. To the extent permitted by
applicable law, interest, the payment of which has been
deferred because of the extension of the interest payment
period pursuant to this paragraph, will bear interest thereon
at the Coupon Rate for each quarterly period of the Extended
<PAGE>
Interest Payment Period. At the end of the Extended Interest
Payment Period, the Company shall pay all interest accrued and
unpaid on the Subordinated Notes including any Additional
Interest ("Deferred Interest") which shall be payable to the
holders of the Subordinated Notes in whose names the
Subordinated Notes are registered in the Security Register on
the first Regular Record Date after the end of the Extended
Interest Payment Period.
Before the termination of any Extended Interest Payment
Period, the Company may further extend such period, provided
that such period together with all such further extensions
thereof shall not exceed 20 consecutive quarterly periods.
Upon the termination of any Extended Interest Payment Period
and upon the payment of all Deferred Interest then due, the
Company may select a new Extended Interest Payment Period,
subject to the foregoing requirements. No interest shall be
due and payable during an Extended Interest Payment Period,
except at the end thereof. Notwithstanding the preceding
sentence, the Company may at any time during the Extended
Interest Payment Period elect, in its sole discretion, to pay
any or all of the interest accrued to that selected date
during the Extended Interest Payment Period, provided that the
Company remains obligated to pay any remaining accrued and
unpaid interest by the end of the Extended Interest Payment
Period.
(2) Notice of Extension.
(i) If the Property Trustee is the only registered
holder of the Subordinated Notes at the time the
Company selects an Extended Interest Payment Period,
the Company shall give written notice to both the
Regular Trustees and the Property Trustee of its
selection of such Extended Interest Payment Period
one Business Day before the earlier of: (A) the next
succeeding date on which Distributions on the Trust
Securities are payable; or (B) the date the Trust is
required to give notice of the record date or the
date such Distributions are payable to the New York
Stock Exchange or other applicable self-regulatory
organization or to holders of the Preferred
Securities, but in any event at least one Business
Day before such record date.
(ii) If the Property Trustee is not the only holder
of the Subordinated Notes at the time the Company
selects an Extended Interest Payment Period, the
Company shall give the holders of the Subordinated
Notes written notice of its selection of such
Extended Interest Payment Period ten Business Days
before the earlier of: (A) the next succeeding
Interest Payment Date; or (B) the date the Company is
required to give notice of the record or payment date
of such interest payment to the New York Stock
Exchange or other applicable self-regulatory
organization or to holders of the Subordinated Notes.
<PAGE>
(iii) The quarterly period in which any notice is
given pursuant to paragraphs (i) or (ii) of this
subparagraph (2) shall be counted as one of the 20
quarterly periods permitted in the maximum Extended
Interest Payment Period permitted under this
paragraph (j).
(iv) The Regular Trustees shall give written notice
to the holders of the Preferred Securities of the
Company's selection of such Extended Interest Payment
Period as soon as practicable after the Regular
Trustees receive the Company's written notice
contemplated by subparagraphs (i) and (ii) of this
subparagraph (2).
(k) Limitation of Transactions. If Subordinated Notes are issued to the
Trust or a trustee of the Trust and: (1) there shall have occurred any
event that would constitute an Event of Default; or (2) the Company
shall be in default with respect of its payment or other obligations
under the preferred securities guarantee agreement, dated as of May 26,
1999, between the Company and Chase Manhattan Bank and Trust Company,
National Association, as Preferred Guarantee Trustee; or (3) the
Company shall have given notice of its election to defer payments of
interest on the Subordinated Notes by extending the interest payment
period as provided in paragraph (j) above; or (4) the Company shall
have given notice of its election to defer payments of interest on any
other series of subordinated notes that may be issued by it, now or in
the future, to any other trust, partnership, or similar entity
affiliated with the Company pursuant to the terms of the applicable
indenture; then: (i) the Company 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 (ii) the Company 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 Company which
rank pari passu with or junior to the Subordinated Notes, including the
Subordinated Notes themselves in the event that clause (4) above is
applicable; provided, that, clause (i) immediately above does not apply
to: (A) any stock dividends paid by the Company where the dividend
stock is the same as that on which the dividend is being paid; (B)
purchases or acquisitions by the Company of shares of its common stock
in connection with the satisfaction by the Company or any of its
subsidiaries of their respective obligations under any benefit plans
for directors, officers, agents, or employees or the Company's dividend
reinvestment or director, officer, agent, or employee stock purchase
plans; (C) a reclassification of the Company'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; (D) the purchase of
fractional interests in shares of the Company's capital stock pursuant
to the conversion or exchange provisions of such capital stock or
security being converted or exchanged for capital stock; (E) dividends
or distributions in shares of, or options, warrants or rights to
subscribe for or purchase shares of, the Company's capital stock; or
(F) any declaration by the Company 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 of any such rights
pursuant thereto.
<PAGE>
(l) Denominations. The Subordinated Notes are issuable in denominations
of $25 and integral multiples thereof.
(m) Agreement to Subordinate. The Company covenants and agrees, and
each holder of Subordinated Notes issued hereunder by such holder's
acceptance thereof likewise covenants and agrees, that all Subordinated
Notes shall be issued subject to the provisions of Article Sixteen of
the Indenture; and each holder of a Subordinated Note, whether upon
original issue or upon transfer or assignment thereof, accepts and
agrees to be bound by such provisions. Notwithstanding the foregoing,
the Subordinated Notes shall rank at least equal with all other series
of subordinated notes that may be issued by the Company, now or in the
future, to other trusts, partnerships, or similar entities affiliated
with the Company in connection with their issuance of securities
similar to the Preferred Securities.
(n) Security Register; Paying Agent. The Security Register for the
Subordinated Notes will be initially maintained at the Corporate Trust
Office of the Trustee. The Company hereby appoints the Trustee as the
initial Paying Agent.
(o) Covenants as to the Trust. For so long as the Trust Securities
remain outstanding, the Company will:
(1) maintain 100% direct or indirect ownership of the Common
Securities of the Trust; provided, however, that any permitted
successor of the Company under the Indenture may succeed to
the Company's ownership of the Common Securities; and
(2) use its reasonable efforts to cause the Trust: (i) to
remain a statutory business trust, except in connection with a
distribution of Subordinated Notes as provided in the
Declaration, the redemption of all of the Trust Securities or
certain mergers, consolidations, or amalgamations permitted by
the Declaration, and (ii) to continue to be treated as a
grantor trust for United States federal income tax purposes.
(p) Events of Default. For the Subordinated Notes only, a valid
extension of the interest payment period in accordance with paragraph
(j) hereof shall not constitute a Default or Event of Default under the
Indenture. For the Subordinated Notes only, the voluntary or
involuntary dissolution, winding-up or termination of the Trust, except
in connection with: (i) the distribution of the Subordinated Notes to
the holders of the Trust Securities in liquidation of the Trust; (ii)
the redemption of all the Trust Securities; or (iii) mergers,
consolidations or amalgamations, each as permitted by the Declaration,
shall constitute an Event of Default.
(q) Waiver of Past Defaults. For the Subordinated Notes only, any
waiver pursuant to Section 5.13 of the Indenture or any modification of
such a waiver shall not be effective until the holders of a majority in
<PAGE>
liquidation amount of Trust Securities shall have consented to such
waiver; provided, however, that if the consent of the holder of each
Outstanding security is required, such waiver shall not be effective
until each holder of the Trust Securities shall have consented to such
waiver.
(r) Listing on Exchanges. If the Subordinated Notes are to be issued as
a Global Subordinated Note in connection with the distribution of the
Subordinated Notes to the holders of the Preferred Securities upon a
Dissolution Event, as defined below, the Company will use its best
efforts to list such Subordinated Notes on the New York Stock Exchange
or on such other exchange as the Preferred Securities are then listed.
(s) Direct Action. The Company and the Trustee acknowledge that
pursuant to the Declaration, the holders of Preferred Securities are
entitled, in the circumstances and subject to the limitations set forth
therein, to commence a Direct Action (as defined therein) with respect
to any Event of Default under the Indenture.
(t) Supplemental Indentures. For the Subordinated Notes only, any
supplemental indenture referred to in Section 9.02 of the Indenture
shall not be effective until the holders of a majority in liquidation
amount of Trust Securities shall have consented to such supplemental
indenture; provided, however, that if the consent of the holder of each
Outstanding security is required, such supplemental indenture shall not
be effective until each holder of the Trust Securities shall have
consented to such supplemental indenture.
(u) Form. The Subordinated Notes will be in substantially the form set
forth in Exhibit A attached hereto and may have such other terms as are
provided in such form.
(v) Payment of Expenses. In connection with the offering, sale, and
issuance of the Subordinated Notes to the Property Trustee in
connection with the sale of the Trust Securities by the Trust, and the
operation of the Trust, the Company shall:
(1) pay all costs and expenses relating to the offering, sale,
and issuance of the Subordinated Notes, including commissions
to the underwriters payable pursuant to the underwriting
agreement, dated as of May 20, 1999 among the Company, the
Trust and the underwriters named therein, and compensation of
the Trustee under the Indenture in accordance with the
provisions of Section 6.07 of the Indenture;
(2) pay all costs and expenses of the Trust (including, but
not limited to, costs and expenses relating to the
organization of the Trust, the offering, sale, and issuance of
the Trust Securities (including commissions to the
underwriters in connection therewith), the fees and expenses
of the trustees of the Trust, the costs and expenses relating
to the operation of the Trust, including without limitation,
costs and expenses of accountants, attorneys, statistical or
bookkeeping services, expenses for printing and engraving and
computing or accounting equipment, paying agent(s),
registrar(s), transfer agent(s), duplicating, travel and
telephone and other telecommunications expenses and costs and
<PAGE>
expenses incurred in connection with the acquisition,
financing and disposition of Trust assets); and
(3) pay any and all taxes (other than United States
withholding taxes attributable to the Trust or its assets) and
all liabilities, costs and expenses with respect to such taxes
of the Trust.
(w) Dissolution Event. "Dissolution Event" means that, as a result of
an election by the Company, the Trust is to be dissolved in accordance
with the Declaration, and the Subordinated Notes held by the Property
Trustee are to be distributed to the holders of the Trust Securities
pro rata in accordance with the Declaration. In connection with a
Dissolution Event:
(1) Definitive Subordinated Notes may be presented to the
Trustee by the Property Trustee in exchange for a Global
Subordinated Note in an aggregate principal amount equal to
all Definitive Subordinated Notes Outstanding to be registered
in the name of the Depositary, or its nominee, and delivered
by the Trustee to the Depositary for crediting to the accounts
of its participants pursuant to the instructions of the
Regular Trustees. The Company upon any such presentation shall
execute a Global Subordinated Note in such aggregate principal
amount and deliver the same to the Trustee for authentication
and delivery in accordance with the Indenture and this
officers' certificate. Payments on the Subordinated Notes
issued as a Global Subordinated Note will be made to the
Depositary; and
(2) if any Preferred Securities are held in non book-entry
certificated form, Definitive Subordinated Notes may be
presented to the Trustee by the Property Trustee and any
Preferred Security certificate which represents Preferred
Securities other than Preferred Securities held by the
Depositary or its nominee ("Non-Book-Entry Preferred
Securities") will be deemed to represent beneficial interests
in Subordinated Notes presented to the Trustee by the Property
Trustee having an aggregate principal amount equal to the
aggregate liquidation amount of the Non-Book-Entry Preferred
Securities until such Preferred Security certificates are
presented to the Security Registrar for transfer or reissuance
at which time such Preferred Security certificate will be
canceled and a Subordinated Note registered in the name of the
holder of the Preferred Security certificate or the transferee
of the holder of such Preferred Security certificate as the
case may be, with an aggregate principal amount equal to the
aggregate liquidation amount of the Preferred Security
certificate canceled will be executed by the Company and
delivered to the Trustee for authentication and delivery in
accordance with the Indenture and this officers' certificate.
On issue of such Subordinated Notes, Subordinated Notes with
an equivalent aggregate principal amount that were presented
by the Property Trustee to the Trustee will be deemed to have
been canceled.
<PAGE>
Each of the undersigned, for himself, states that he has read and is familiar
with the provisions of Article Two of the Indenture (relating to the
establishment of the form of securities representing a series of subordinated
debt securities thereunder) and Article Three of the Indenture (relating to the
establishment of a series of subordinated debt securities thereunder) and, in
each case, the definitions therein and relating thereto; that he is generally
familiar with the other provisions of the Indenture and with the affairs of the
Company and its acts and proceedings, including the Board Resolutions, and that
the statements and opinions made by him in this officers' certificate are based
upon such familiarity; and that, in his opinion, he has made such examination or
investigation as is necessary to enable him to express an informed opinion as to
whether or not the covenants and conditions referred to above have been complied
with as relating to the establishment of the Subordinated Notes.
[This space intentionally left blank.]
<PAGE>
IN WITNESS WHEREOF, the undersigned have hereunto signed this certificate on
behalf of the Company as of this 24th day of May, 1999.
BERGEN BRUNSWIG CORPORATION
By: /s/ Donald R. Roden
______________________________
Name: Donald R. Roden
Title: President and Chief Executive
Officer
By: /s/ Art Sida
_______________________________
Name: Art Sida
Title: Assistant Secretary
EXHIBIT 4.3
REGISTERED REGISTERED
BERGEN BRUNSWIG CORPORATION
7.80% SUBORDINATED DEFERRABLE INTEREST NOTE DUE JUNE 30, 2039
NO. R-1 PRINCIPAL AMOUNT:
CUSIP: 083739 AL 6 U.S. $309,278,350
ORIGINAL ISSUE DATE: May 26, 1999 REDEMPTION DATE/PRICE:
See Further Provisions Set Forth Herein
MATURITY DATE: June 30, 2039
ISSUE PRICE: 100%
INTEREST RATE: 7.80%
INTEREST PAYMENT DATES: March 31, June 30, September 30 and December
31, commencing June 30, 1999
REGULAR RECORD DATES: See Further Provisions Set Forth Herein
Dated: May 26, 1999
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to in
the within-mentioned Indenture.
CHASE MANHATTAN BANK AND TRUST COMPANY, National Association, as Trustee
By:______________________________
Authorized Signatory
<PAGE>
BERGEN BRUNSWIG CORPORATION, a corporation duly organized and existing under the
laws of the State of New Jersey (herein referred to as the "Company"), for value
received, hereby promises to pay to Chase Manhattan Bank and Trust Company,
National Association, as Property Trustee of Bergen Capital Trust I (the
"Trust"), or registered assigns, the Principal Amount specified above on the
Maturity Date specified above (unless and to the extent earlier redeemed or
repaid prior to such Maturity Date) and to pay interest thereon from May 26,
1999 or from the most recent Interest Payment Date to which interest has been
paid or duly provided for, quarterly (subject to deferral as set forth herein)
in arrears on March 31, June 30, September 30 and December 31, in each year,
commencing June 30, 1999, at the rate per annum specified above, until the
principal hereof is paid or made available for payment. Interest payments for
this Note will include interest accrued to but excluding each Interest Payment
Date. The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in the Indenture (as defined below), be
paid to the Person in whose name this Note (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date,
which shall be the close of business on the Business Day next preceding such
Interest Payment Date if this Note is held by the Property Trustee or if this
Note is in book-entry only form. Notwithstanding the foregoing sentence, if the
Preferred Securities of the Trust are no longer in book-entry only form or a
Dissolution Event has occurred and subsequent thereto this Note is not a Global
Note pursuant to the provisions of Section 3.05 of the Indenture, such regular
record date shall be the close of business on the 15th day of the last month of
each quarterly distribution period (whether or not a Business Day) next
preceding such Interest Payment Date. If any Interest Payment Date or Maturity
with respect to this Note falls on a day that is not a Business Day, the payment
due on such Interest Payment Date or at Maturity will be made on the following
day that is a Business Day as if it were made on the date such payment was due
and no interest shall accrue on the amount so payable for the period from and
after such Interest Payment Date or Maturity, as the case may be. Except as
otherwise provided in the Indenture, any interest not punctually paid or duly
provided for on any Interest Payment Date (herein called "Defaulted Interest")
will forthwith cease to be payable to the Holder on the Regular Record Date with
respect to such Interest Payment Date by virtue of having been such Holder and
may either (1) be paid to the Person in whose name this Note (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee (as defined below), notice of which shall be given to Holders of Notes
not less than 10 days prior to such Special Record Date, or (2) be paid at any
time in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Notes may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in the Indenture.
Payment of the principal of and interest, if any, on this Note will be made at
the Corporate Trust Office of the Trustee or at the office or agency of the
Trustee maintained for that purpose in the Borough of Manhattan, The City of New
York, and at any other office or agency maintained by the Company for such
purpose, in such coin or currency of the United States of America as at the time
of payment is legal tender for payment of public and private debts; provided,
however, that at the option of the Company, payment of interest may be made by
check mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register; and provided, further, that the Holder of this
Note shall be entitled to receive payments of principal of and interest, if any,
on this Note by wire transfer of immediately available funds if appropriate wire
transfer instructions have been received in writing by the Trustee not less than
15 days prior to the applicable payment date. Notwithstanding the foregoing, so
long as the Holder of this Note is the Property Trustee, the payment of the
principal of and interest on this Note will be made at such place and to such
account as may be designated by the Property Trustee.
The indebtedness evidenced by this Note is, to the extent provided in the
Indenture, subordinate and junior in right of payment to the prior payment in
full of all Senior Indebtedness, and this Note is issued subject to the
provisions of the Indenture with respect thereto. Each Holder of this Note, by
accepting the same, (a) agrees to and shall be bound by such provisions, (b)
authorizes and directs the Trustee on his or her behalf to take such action as
may be necessary or appropriate to acknowledge or effectuate the subordination
so provided and (c) appoints the Trustee his or her attorney-in-fact for any and
all such purposes. Each Holder hereof, by his or her acceptance hereof, hereby
waives all notice of the acceptance of the subordination provisions contained
herein and in the Indenture by each holder of Senior Indebtedness, whether now
outstanding or hereafter incurred, and waives reliance by each such Holder upon
said provisions.
Reference is hereby made to the further provisions of this Note set forth below,
which further provisions shall for all purposes have the same effect as if set
forth at this place.
Unless the certificate of authentication hereon has been executed by the Trustee
or its duly appointed co-authenticating agent by manual signature, this Note
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
This Note is one of a duly authorized issue of securities (herein called the
"Securities") of the Company (which term includes any successor corporation
under the Indenture hereinafter referred to) issued and to be issued pursuant to
such Indenture. This Note is one of a series designated by the Company as its
7.80% Subordinated Deferrable Interest Notes due 2039 (the "Notes"), limited in
aggregate principal amount to $309,278,350. The Indenture does not limit the
aggregate principal amount of other Securities which may be issued thereunder.
The Company issued this Note pursuant to an Indenture, dated as of May 14, 1999
(herein called the "Indenture" which term, for the purpose of this Note, shall
include the Officers' Certificate as of dated May 24, 1999, delivered pursuant
to Sections 1.02 and 3.01 of the Indenture), between the Company and Chase
Manhattan Bank and Trust Company, National Association, as trustee (herein
called the "Trustee," which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Company, the Trustee and Holders of the
Notes and of the terms upon which the Notes are, and are to be, authenticated
and delivered.
The Notes are issuable as Registered Securities, without coupons, in
denominations of $25 and any amount in excess thereof which is an integral
multiple of $25. As provided in the Indenture and subject to certain limitations
therein set forth, Notes are exchangeable for a like aggregate principal amount
of Notes of like tenor of any authorized denomination, as requested by the
Holder surrendering the same, upon surrender of the Note or Notes to be
exchanged at any office or agency described below where Notes may be presented
for registration of transfer.
The Notes are redeemable, in whole or in part, without penalty, at the option of
the Company (i) before May 26, 2004, within 90 days of the occurrence of a
Special Event, at a Redemption Price equal to 100% of the principal amount of
this Note plus any accrued and unpaid interest thereon to the date of such
redemption and (ii) on or after May 26, 2004, at a Redemption Price equal to
100% of the principal amount per Note plus any accrued and unpaid interest
thereon to the date of such redemption.
Notice of any redemption will be mailed at least 30 days but not more than 60
days before the Redemption Date to each Holder of the Notes to be redeemed.
Unless the Company defaults in payment of the Redemption Price, on and after the
Redemption Date, interest will cease to accrue on the Notes or portions thereof
called for redemption. If less than all of the Notes are to be redeemed, the
Notes (or portions thereof) to be redeemed will be selected by the Trustee by
such method as the Trustee shall deem fair and appropriate; provided that if, at
the time of redemption, the Notes are registered as a Global Note, the
Depositary shall determine the principal amount of such Notes held by each
Holder to be redeemed in accordance with its procedures.
Notwithstanding the foregoing, installments of interest whose Stated Maturity is
prior to the Redemption Date of any Note will be payable to the Holder of such
Note, or one or more Predecessor Securities, of record at the close of business
on the relevant Regular Record Date referred to above, all as provided in the
Indenture.
All notices of redemption shall state the Redemption Date, the Redemption Price,
if fewer than all the Outstanding Notes are to be redeemed, the identification
(and, in the case of partial redemption, the principal amounts) of the
particular Notes to be redeemed, that on the Redemption Date the Redemption
Price will become due and payable upon each Note, or portion thereof, to be
redeemed, that interest on each Note, or portion thereof, called for redemption
will cease to accrue on the Redemption Date and the place or places where Notes
may be surrendered for redemption.
In the event of redemption of this Note in part only, a new Note or Notes of
like tenor for the unredeemed portion hereof will be issued in authorized
denominations in the name of the Holder hereof upon the cancellation hereof.
For all purposes of this Note and the Indenture, unless the context otherwise
requires, all provisions relating to the redemption by the Company of this Note
shall relate, in the case that this Note is redeemed or to be redeemed by the
Company only in part, to that portion of the principal amount of this Note that
has been or is to be redeemed.
If an Event of Default with respect to the Notes shall occur and be continuing,
the principal of the Notes may be declared due and payable in the manner and
with the effect provided in the Indenture.
The Indenture permits, in certain circumstances therein specified, the amendment
thereof without the consent of the Holders of the Securities. The Indenture also
permits, with certain exceptions as therein provided, the amendment thereof and
the modification of the rights and obligations under the Indenture of the
Company and the rights of Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in aggregate principal amount of the
Securities at the time Outstanding of each series to be affected. The Indenture
also contains provisions permitting the Holders of a majority in aggregate
principal amount of the Securities of each series at the time Outstanding, on
behalf of the Holders of all the Securities of such series, to waive compliance
by the Company with certain provisions of the Indenture and certain past
defaults under the Indenture and their consequences. Any such consent or waiver
by the Holder of this Note shall be conclusive and binding upon such Holder and
upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or, subject
to the provisions for satisfaction and discharge in Article Four of the
Indenture shall alter or impair the obligation of the Company, which is absolute
and unconditional, to pay the principal of and interest on this Note at the
times, place and rate, and in the coin or currency, herein prescribed.
The Company shall have the right at any time, and from time to time, during the
term of the Notes to extend the interest payment period of such Notes for up to
20 consecutive quarterly periods (an "Extended Interest Payment Period")
provided no Event of Default has occurred and is continuing with respect to the
Notes, at the end of which period the Company shall pay all interest then
accrued and unpaid (together with interest thereon at the rate specified for the
Notes to the extent that payment of such interest is enforceable under
applicable law). Before the termination of any such Extended Interest Payment
Period, the Company may further extend such Extended Interest Payment Period,
provided, however, that such Extended Interest Payment Period together with all
such further extensions thereof shall not exceed 20 consecutive quarterly
periods. At the termination of any such Extended Interest Payment Period and
upon the payment of all accrued and unpaid interest and any additional amounts
then due, the Company may select a new Extended Interest Payment Period.
The Indenture permits the Company, by irrevocably depositing, in amounts and
maturities sufficient to pay and discharge at the Stated Maturity or Redemption
Date, as the case may be, the entire indebtedness on all Outstanding Notes, cash
or U.S. Government Obligations with the Trustee in trust solely for the benefit
of the Holders of all Outstanding Notes, to defease the Indenture with respect
to such Notes, and upon such deposit the Company shall be deemed to have paid
and discharged its entire indebtedness on such Notes. Thereafter, Holders would
be able to look only to such trust fund for payment of principal and interest at
the Stated Maturity or Redemption Date, as the case may be.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of Notes is registrable in the Security Register, upon
surrender of a Note for registration of transfer at the Corporate Trust Office
of the Trustee or at the office or agency of the Trustee in the Borough of
Manhattan, The City of New York, or at such other offices or agencies as the
Company may designate, duly endorsed by, or accompanied by a written instrument
of transfer in form satisfactory to the Company and the Security Registrar duly
executed by, the Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Notes of like tenor, of authorized denominations and
for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
No service charge shall be made by the Company, the Trustee or the Security
Registrar for any such registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith (other than exchanges pursuant to
Sections 3.05, 9.06 or 11.07 of the Indenture, not involving any transfer).
Prior to due presentment of this Note for registration of transfer, the Company,
the Trustee and any agent of the Company or the Trustee may treat the Person in
whose name this Note is registered as the owner hereof for all purposes, whether
or not this Note be overdue, and neither the Company, the Trustee nor any such
agent shall be affected by notice to the contrary.
This Note shall be governed by and construed in accordance with the laws of the
State of New York including, without limitation, Section 5-1401 of the New York
General Obligations Law.
All undefined terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
<PAGE>
IN WITNESS WHEREOF, Bergen Brunswig Corporation has caused this Instrument to be
signed by the signature or facsimile signature of its Chairman of the Board, its
President, a Vice President, its Treasurer or an Assistant Treasurer and
attested by its Secretary or an Assistant Secretary by his or her signature or a
facsimile thereof, and its corporate seal or a facsimile of its corporate seal
to be affixed hereunto or imprinted hereon.
(SEAL) BERGEN BRUNSWIG CORPORATION
By:
___________________________________
Name: Donald R. Roden
Title:
Attest:
____________________
Name: Art Sida
Title:
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM: as tenants in common
TEN ENT: as tenants by the entireties
JT TEN:as joint tenants with right of survivorship and not as tenants in common
UNIF GIFT MIN ACT: Under Uniform Gifts to Minor Act
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Note to:
________________________________________________
(Insert assignee's social security or tax
identification number)
________________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints
_____________________________________________attorney to transfer said Note
on the books of the Company, with full power
of substitution in the premises.
Dated:______________________ _______________________________
Signature
NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Note in every particular, without alteration
or enlargement or any change whatever.
EXHIBIT 4.4
BERGEN BRUNSWIG CORPORATION
AND
CHASE MANHATTAN BANK AND TRUST COMPANY,
NATIONAL ASSOCIATION,
TRUSTEE
PREFERRED SECURITIES GUARANTEE AGREEMENT
Dated as of May 26, 1999
<PAGE>
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...............................
Section 2.02. Lists of Holders of Securities.................................
Section 2.03. Reports by Preferred Guarantee Trustee......................... 5
Section 2.04. Periodic Reports to Preferred 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 PREFERRED GUARANTEE TRUSTEE
Section 3.01. Powers and Duties of Preferred Guarantee Trustee............... 7
Section 3.02. Certain Rights of Preferred Guarantee Trustee.................. 8
Section 3.03. Not Responsible for Recitals or Issuance of Guarantee......... 10
ARTICLE IV.
PREFERRED GUARANTEE TRUSTEE
Section 4.01. Preferred Guarantee Trustee; Eligibility...................... 10
Section 4.02. Appointment, Removal and Resignation of Preferred 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.................................... 14
Section 6.02. Ranking....................................................... 15
ARTICLE VII.
TERMINATION
Section 7.01. Termination................................................... 15
ARTICLE VIII.
INDEMNIFICATION
Section 8.01. Exculpation................................................... 16
Section 8.02. Indemnification............................................... 16
ARTICLE IX.
MISCELLANEOUS
Section 9.01. Successors and Assigns........................................ 17
Section 9.02. Amendments.................................................... 17
Section 9.03. Notices....................................................... 17
Section 9.04. Benefit....................................................... 18
Section 9.05. Governing Law................................................. 18
Signatures.................................................................. 19
<PAGE>
PREFERRED SECURITIES GUARANTEE AGREEMENT
This PREFERRED 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 "Preferred
Guarantee Trustee"), for the benefit of the Holders (as defined herein) from
time to time of the Preferred 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 $300,000,000 aggregate stated liquidation amount of
Preferred Securities designated the 7.80% Trust Originated Preferred
Securitiessm (the "Preferred Securities");
WHEREAS, as incentive for the Holders to purchase the Preferred 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 Preferred
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 "Common Securities Guarantee Agreement") in substantially
identical terms to this Guarantee Agreement for the benefit of the holders of
the Common Securities (as defined herein) except that if an Event of Default (as
defined in the Indenture (as defined herein)), has occurred and is continuing,
the rights of holders of the Common Securities to receive Guarantee Payments
under the Common Securities Guarantee Agreement are subordinated to the rights
of Holders of Preferred Securities to receive Guarantee Payments under this
Guarantee Agreement;
NOW, THEREFORE, in consideration of the purchase by each Holder of
Preferred 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:
<PAGE>
(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 Preferred
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 Preferred 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 Preferred 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 Preferred
Securities called for redemption by the Issuer, and (iii) upon a voluntary or
<PAGE>
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 Preferred Securities as provided in the Declaration), the lesser of
(a) the aggregate of the liquidation amount and all accrued and unpaid
Distributions on the Preferred 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 Event of Default
(as defined in the Indenture), has occurred and is continuing, the rights of the
holders of the Common Securities to receive Guarantee Payments under the Common
Securities Guarantee Agreement are subordinated to the rights of Holders of
Preferred Securities to receive Guarantee Payments under this 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 Preferred Securities; provided, however, that in determining
whether the holders of the requisite percentage of Preferred Securities have
given any request, notice, consent or waiver hereunder, "Holder" shall not
include the Guarantor or any Affiliate of the Guarantor.
"Indemnified Person" means the Preferred Guarantee Trustee, any Affiliate
of the Preferred Guarantee Trustee, or any officers, directors, shareholders,
members, partners, employees, representatives or agents of the Preferred
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.
"Majority in liquidation amount of the Preferred Securities" means, except
as provided by the Trust Indenture Act, Holder(s) of Preferred Securities voting
separately as a class, who vote Preferred 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 Preferred
Securities voted by such Holders represents more than 50% of the above stated
liquidation amount of all Preferred 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:
<PAGE>
(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.
"Preferred Guarantee Trustee" means Chase Manhattan Bank and Trust Company,
National Association until a Successor Preferred Guarantee Trustee has been
appointed and has accepted such appointment pursuant to the terms of this
Guarantee Agreement and thereafter means each such Successor Preferred Guarantee
Trustee.
"Responsible Officer" means, with respect to the Preferred Guarantee
Trustee, any officer of the Preferred 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 Preferred Guarantee Trustee" means a successor Preferred
Guarantee Trustee possessing the qualifications to act as Preferred Guarantee
Trustee under Section 4.01.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended.
<PAGE>
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 Preferred Guarantee Trustee (i)
semiannually, not later than June 30 and December 31 of each year, a list, in
such form as the Preferred 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 Preferred Guarantee Trustee, as to the names and
addresses of the Holders of 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
Preferred 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
Preferred Guarantee Trustee may destroy any List of Holders previously given to
it on receipt of a new List of Holders; and
(b) the Preferred 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 Preferred Guarantee Trustee.
Within 60 days after May 15 of each year commencing May 15, 1999, the
Preferred Guarantee Trustee shall provide to the Holders of the Preferred
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 Preferred Guarantee Trustee shall also comply with the
requirements of Section 313(d) of the Trust Indenture Act.
Section 2.04. Periodic Reports to Preferred Guarantee Trustee.
The Guarantor shall provide to the Preferred 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.
<PAGE>
Section 2.05. Evidence of Compliance with Conditions Precedent.
The Guarantor shall provide to the Preferred 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 Preferred Securities
may, by vote, on behalf of the Holders of all of the Preferred 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 Preferred Guarantee Trustee shall, within 90 days after the
occurrence of an Event of Default known to the Preferred Guarantee Trustee,
transmit by mail, first class postage prepaid, to the Holders of the Preferred
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
Preferred 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 Preferred Guarantee Trustee in
good faith determine that the withholding of such notice is in the interests of
the Holders of the Preferred Securities.
(b) The Preferred Guarantee Trustee shall not be deemed to have knowledge
of any Event of Default except any Event of Default as to which the Preferred
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.
<PAGE>
ARTICLE III.
POWERS, DUTIES AND RIGHTS OF PREFERRED GUARANTEE TRUSTEE
Section 3.01. Powers and Duties of Preferred Guarantee Trustee.
(a) This Guarantee Agreement shall be held by the Preferred Guarantee
Trustee for the benefit of the Holders of the Preferred Securities, and the
Preferred Guarantee Trustee shall not transfer this Guarantee Agreement to any
Person except a Holder of Preferred Securities exercising his or her rights
pursuant to Section 5.04(b) or to a Successor Preferred Guarantee Trustee on
acceptance by such Successor Preferred Guarantee Trustee of its appointment to
act as Preferred Guarantee Trustee. The right, title and interest of the
Preferred Guarantee Trustee shall automatically vest in any Successor Preferred
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 Preferred Guarantee Trustee.
(b) If an Event of Default has occurred and is continuing, the Preferred
Guarantee Trustee shall enforce this Guarantee Agreement for the benefit of the
Holders of the Preferred Securities.
(c) The Preferred 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 Preferred
Securities, and no implied covenants, duties or obligations shall be read into
this Guarantee Agreement against the Preferred Guarantee Trustee; and
(ii) in the absence of bad faith on the part of the Preferred
Guarantee Trustee, the Preferred 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 Preferred 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 Preferred Guarantee Trustee, the
Preferred 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 Preferred 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.
<PAGE>
(d) No provision of this Guarantee Agreement shall be construed to relieve
the Preferred 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 Preferred Guarantee Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer of the Preferred
Guarantee Trustee, unless it shall be proved that the Preferred Guarantee
Trustee was negligent in ascertaining the pertinent facts;
(iii) the Preferred 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 Preferred Securities at the time outstanding relating to the time,
method and place of conducting any proceeding for any remedy available to the
Preferred Guarantee Trustee, or exercising any trust or power conferred upon the
Preferred Guarantee Trustee under this Guarantee Agreement including, without
limitation, with respect to the Preferred Securities; and
(iv) no provision of this Guarantee Agreement shall require the
Preferred 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 Preferred Guarantee Trustee shall be subject to the
provisions of this Section.
Section 3.02. Certain Rights of Preferred Guarantee Trustee.
(a) Subject to the provisions of Section 3.01:
(i) the Preferred 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;
<PAGE>
(iii) whenever, in the administration of this Guarantee Agreement, the
Preferred Guarantee Trustee shall deem it desirable that a matter be proved or
established before taking, suffering or omitting any action hereunder, the
Preferred 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 Preferred 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 Preferred 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 Preferred 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 Preferred 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 Preferred 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 Preferred
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 Preferred
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 Preferred 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 Preferred 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 Preferred Guarantee Trustee or its agents
hereunder shall bind the Trust and the Holders of the Preferred Securities and
the signature of the Preferred 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 Preferred Guarantee Trustee to so
<PAGE>
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
Preferred Guarantee Trustee's or its agent's taking such action;
(x) whenever in the administration of this Guarantee Agreement the
Preferred Guarantee Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other action hereunder,
the Preferred Guarantee Trustee (i) may request instructions from the Holders of
the Preferred Securities which instructions may only be given by the Holders of
the same proportion in liquidation amount of the Preferred Securities as would
be entitled to direct the Preferred Guarantee Trustee under the terms of the
Preferred 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 Preferred 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 Preferred 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 Preferred 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
Preferred Guarantee Trustee to vary the investment of any Holder of the
Preferred 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 Preferred Guarantee Trustee does not assume
any responsibility for their correctness. The Preferred Guarantee Trustee makes
no representations as to the validity or sufficiency of this Guarantee
Agreement.
ARTICLE IV.
PREFERRED GUARANTEE TRUSTEE
Section 4.01. Preferred Guarantee Trustee; Eligibility.
(a) There shall at all times be a Preferred Guarantee Trustee which
shall:
<PAGE>
(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 Preferred Guarantee Trustee shall cease to be
eligible to so act under Section 4.01(a), the Preferred Guarantee Trustee shall
immediately resign in the manner and with the effect set out in Section 4.02(c);
and
(c) if the Preferred Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Preferred 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 Preferred Guarantee
Trustee.
(a) Subject to Section 4.02(b), the Preferred Guarantee Trustee may be
appointed or removed without cause at any time by the Guarantor;
(b) the Preferred Guarantee Trustee shall not be removed in accordance with
Section 4.02(a) until a Successor Preferred Guarantee Trustee has been appointed
and has accepted such appointment by written instrument executed by such
Successor Preferred Guarantee Trustee and delivered to the Guarantor;
(c) the Preferred Guarantee Trustee appointed to office shall hold office
until a Successor Preferred Guarantee Trustee shall have been appointed or until
its removal or resignation. The Preferred Guarantee Trustee may resign from
office (without need for prior or subsequent accounting) by an instrument in
writing executed by the Preferred Guarantee Trustee and delivered to the
Guarantor, which resignation shall not take effect until a Successor Preferred
Guarantee Trustee has been appointed and has accepted such appointment by
instrument in writing executed by such Successor Preferred Guarantee Trustee and
delivered to the Guarantor and the resigning Preferred Guarantee Trustee; and
<PAGE>
(d) if no Successor Preferred 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
Preferred Guarantee Trustee may petition any court of competent jurisdiction for
appointment of a Successor Preferred Guarantee Trustee. Such court may thereupon
after such notice, if any, as it may deem proper and prescribe, appoint a
Successor Preferred 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.
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 Preferred 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 Preferred Securities or the extension
of time for the performance of any other obligation under, arising out of, or in
connection with, the Preferred Securities (other than an extension of time for
payment of Distributions, Redemption Price, Liquidation Distribution or other
<PAGE>
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 Preferred 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 Preferred 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 Preferred
Securities have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Preferred Guarantee Trustee in
respect of this Guarantee Agreement or exercising any trust or power conferred
upon the Preferred Guarantee Trustee under this Guarantee Agreement; and
(b) Notwithstanding the rights of the Preferred Guarantee Trustee to
enforce this Guarantee Agreement under Article III, any Holder of Preferred
Securities may, to the extent permitted by applicable law, institute a legal
proceeding directly against the Guarantor to enforce the Preferred Guarantee
Trustee's rights under this Guarantee Agreement, without first instituting a
legal proceeding against the Issuer, the Preferred Guarantee Trustee or any
other Person. Notwithstanding the foregoing, if the Guarantor has failed to make
a Guarantee Payment, a Holder of Preferred Securities may directly institute a
proceeding against the Guarantor for enforcement of this Guarantee Agreement for
<PAGE>
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
Preferred 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 Preferred 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 Preferred 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
<PAGE>
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
Preferred Securities, the distribution of the Subordinated Notes to the Holders
of all of the Preferred 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 Preferred
Securities must restore payment of any sums paid under the Preferred Securities
or under this Preferred Securities Guarantee.
<PAGE>
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 Preferred 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 Preferred 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 Preferred 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).
<PAGE>
(c) The provisions of this Section 8.02 shall survive termination of this
Guarantee or the resignation or removal of the Preferred Guarantee Trustee.
ARTICLE IX.
MISCELLANEOUS
Section 9.01. 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 Preferred
Securities then outstanding.
Section 9.02. 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 Preferred Securities. The
provisions of Section 12.2 of the Declaration with respect to meetings of
Holders apply to the giving of such approval.
Section 9.03. 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 Preferred Guarantee Trustee at the Preferred Guarantee
Trustee's mailing address set forth below (or such other address as the
Preferred Guarantee Trustee may give notice of to the Holders of the Preferred
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 Preferred 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
<PAGE>
(c) if given to any Holder of Preferred 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 9.04. Benefit.
This Guarantee Agreement is solely for the benefit of the Holders of the
Preferred Securities and subject to Section 3.01(a) is not separately
transferable from the Preferred Securities.
Section 9.05. Governing Law.
THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
<PAGE>
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 Preferred Guarantee Trustee
By:/s/ James Nagy
________________________________
Name: James Nagy
Title:Assitant Vice President
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
<PAGE>
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
<PAGE>
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:
<PAGE>
(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
<PAGE>
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
<PAGE>
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.
<PAGE>
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
<PAGE>
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.
<PAGE>
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
<PAGE>
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,
<PAGE>
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;
<PAGE>
(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.
<PAGE>
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
<PAGE>
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:
<PAGE>
(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
<PAGE>
(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.
<PAGE>
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.
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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,
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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.
<PAGE>
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.
<PAGE>
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
