Exhibit 10.2
COMMERCIAL PAPER DEALER
AGREEMENT
4(2) PROGRAM
between
STAPLES, INC., as
Issuer
and
BANC OF AMERICA SECURITIES
LLC, as Dealer
Concerning Notes to be issued
pursuant to an Issuing and Paying Agency Agreement dated as of
June 9, 2008 between the Issuer and LaSalle Bank, as Issuing
and Paying Agent
Dated as of
June 9,
2008
Commercial Paper Dealer
Agreement
4(2) Program
This agreement
(as amended, supplemented or otherwise modified and in effect from
time to time, the “Agreement”) sets forth the
understandings between the Issuer and the Dealer, each named on the
cover page hereof, in connection with the issuance and sale by
the Issuer of its short-term promissory notes (the
“Notes”) through the Dealer.
Certain terms
used in this Agreement are defined in Section 6
hereof.
The Addendum
to this Agreement, and any Annexes or Exhibits described in this
Agreement or such Addendum, are hereby incorporated into this
Agreement and made fully a part hereof.
1. Offers, Sales and Resales of
Notes.
1.1
While (i) the Issuer
has and shall have no obligation to sell the Notes to the Dealer or
to permit the Dealer to arrange any sale of the Notes for the
account of the Issuer, and (ii) the Dealer has and shall have
no obligation to purchase the Notes from the Issuer or to arrange
any sale of the Notes for the account of the Issuer, the parties
hereto agree that in any case where the Dealer purchases Notes from
the Issuer, or arranges for the sale of Notes by the Issuer, such
Notes will be purchased or sold by the Dealer in reliance on the
representations, warranties, covenants and agreements of the Issuer
contained herein or made pursuant hereto and on the terms and
conditions and in the manner provided herein.
1.2
So long as this Agreement
shall remain in effect, and in addition to the limitations
contained in Section 1.7 hereof, the Issuer shall not, without
the consent of the Dealer, offer, solicit or accept offers to
purchase, or sell, any Notes except (a) in transactions with
one or more dealers which may from time to time after the date
hereof become dealers with respect to the Notes by executing with
the Issuer one or more agreements which contain provisions
substantially identical to those contained in Section 1 of
this Agreement, of which the Issuer hereby undertakes to provide
the Dealer prompt notice or (b) in transactions with the other
dealers listed on the Addendum hereto, which are executing
agreements with the Issuer which contain provisions substantially
identical to Section 1 of this Agreement contemporaneously
herewith. In no event shall the Issuer offer, solicit or
accept offers to purchase, or sell, any Notes directly on its own
behalf in transactions with persons other than broker-dealers as
specifically permitted in this Section 1.2.
1.3
The Notes shall be in a
minimum denomination of $250,000 or integral multiples of $1,000 in
excess thereof, will bear such interest rates, if interest bearing,
or will be sold at such discount from their face amounts, as shall
be agreed upon by the Dealer and the Issuer, shall have a maturity
not exceeding 397 days from the date of issuance and may have such
terms as are specified in Exhibit C hereto or the Private
Placement Memorandum. The Notes shall not contain any
provision for extension, renewal or automatic
“rollover.”
1.4
The authentication and
issuance of, and payment for, the Notes shall be effected in
accordance with the Issuing and Paying Agency Agreement, and the
Notes shall be either individual physical certificates or
book-entry notes evidenced by one or more master notes (each, a
“Master Note”) registered in the name of The Depository
Trust Company (“DTC”) or its nominee, in the form or
forms annexed to the Issuing and Paying Agency
Agreement.
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1.5
If the Issuer and the
Dealer shall agree on the terms of the purchase of any Note by the
Dealer or the sale of any Note arranged by the Dealer (including,
but not limited to, agreement with respect to the date of issue,
purchase price, principal amount, maturity and interest rate or
interest rate index and margin (in the case of interest-bearing
Notes) or discount thereof (in the case of Notes issued on a
discount basis), and appropriate compensation for the
Dealer’s services hereunder) pursuant to this Agreement, the
Issuer shall cause such Note to be issued and delivered in
accordance with the terms of the Issuing and Paying Agency
Agreement and payment for such Note shall be made by the purchaser
thereof, either directly or through the Dealer, to the Issuing and
Paying Agent, for the account of the Issuer. Except as
otherwise agreed, in the event that the Dealer is acting as an
agent and a purchaser shall either fail to accept delivery of or
make payment for a Note on the date fixed for settlement, the
Dealer shall promptly notify the Issuer, and if the Dealer has
theretofore paid the Issuer for the Note, the Issuer will promptly
return such funds to the Dealer against its return of the Note to
the Issuer, in the case of a certificated Note, and upon notice of
such failure in the case of a book-entry Note. If such
failure occurred for any reason other than default by the Dealer,
the Issuer shall reimburse the Dealer on an equitable basis for the
Dealer’s loss of the use of such funds for the period such
funds were credited to the Issuer’s account.
1.6
All offers and sales of
the Notes by the Issuer shall be effected pursuant to the exemption
from the registration requirements of the Securities Act provided
by Section 4(2) thereof, which exempts transactions by an
issuer not involving any public offering. The Dealer and the
Issuer hereby establish and agree to observe the following
procedures in connection with offers, sales and subsequent resales
or other transfers of the Notes:
(a) Offers and sales of the Notes by or through the
Dealer shall be made only to: (i) investors reasonably
believed by the Dealer to be Qualified Institutional Buyers,
Institutional Accredited Investors or Sophisticated Individual
Accredited Investors and (ii) non-bank fiduciaries or agents
that will be purchasing Notes for one or more accounts, each of
which is reasonably believed by the Dealer to be an Institutional
Accredited Investor or Sophisticated Individual Accredited
Investor.
(b) Resales and other transfers of the Notes by the
holders thereof shall be made only in accordance with the
restrictions in the legend described in clause
(e) below.
(c) No general solicitation or general advertising
shall be used in connection with the offering of the Notes.
Without limiting the generality of the foregoing, without the prior
written approval of the Dealer, the Issuer shall not issue any
press release or place or publish any “tombstone” or
other advertisement relating to the Notes.
(d) No sale of Notes to any one purchaser shall be
for less than $250,000 principal or face amount, and no Note shall
be issued in a smaller principal or face amount. If the
purchaser is a non-bank fiduciary acting on behalf of others, each
person for whom such purchaser is acting must purchase at least
$250,000 principal or face amount of Notes.
(e) Offers and sales of the Notes by the Issuer
through the Dealer acting as agent for the Issuer shall be made in
accordance with Rule 506 under the Securities Act, and shall
be subject to the restrictions described in the legend appearing on
Exhibit A hereto. A legend substantially to the effect
of such Exhibit A shall appear as part of the Private
Placement
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Memorandum used in connection with offers and
sales of Notes hereunder, as well as on each individual certificate
representing a Note and each Master Note representing book-entry
Notes offered and sold pursuant to this Agreement.
(f) The Dealer shall furnish or shall have
furnished to each purchaser of Notes for which it has acted as the
Dealer a copy of the then-current Private Placement Memorandum
unless such purchaser has previously received a copy of the Private
Placement Memorandum as then in effect. The Private Placement
Memorandum shall expressly state that any person to whom Notes are
offered shall have an opportunity to ask questions of, and receive
information from, the Issuer and the Dealer and shall provide the
names, addresses and telephone numbers of the persons from whom
information regarding the Issuer may be obtained.
(g) The Issuer agrees, for the benefit of the
Dealer and each of the holders and prospective purchasers from time
to time of the Notes that, if at any time the Issuer shall not be
subject to Section 13 or 15(d) of the Exchange Act, the
Issuer will furnish, upon request and at its expense, to the Dealer
and to holders and prospective purchasers of Notes information
required by Rule 144A(d)(4)(i) in compliance with
Rule 144A(d).
(h) In the event that any Note offered or to be
offered by the Dealer would be ineligible for resale under
Rule 144A, the Issuer shall immediately notify the Dealer (by
telephone, confirmed in writing) of such fact and shall promptly
prepare and deliver to the Dealer an amendment or supplement to the
Private Placement Memorandum describing the Notes that are
ineligible, the reason for such ineligibility and any other
relevant information relating thereto.
(i) The Issuer represents that it is not currently
issuing commercial paper in the United States market in reliance
upon the exemption provided by Section 3(a)(3) of the
Securities Act. The Issuer agrees that, if it shall issue
commercial paper after the date hereof in reliance upon such
exemption (a) the proceeds from the sale of the Notes will be
segregated from the proceeds of the sale of any such commercial
paper by being placed in a separate account; (b) the Issuer
will institute appropriate corporate procedures to ensure that the
offers and sales of notes issued by the Issuer pursuant to the
Section 3(a)(3) exemption are not integrated with
offerings and sales of Notes hereunder; and (c) the Issuer
will comply with each of the requirements of
Section 3(a)(3) of the Securities Act in selling
commercial paper or other short-term debt securities other than the
Notes in the United States. The Dealer agrees with the Issuer
not to offer or sell any Notes in a manner that might call into
question the availability of the private offering exemption
contained in Section 4(2) of the Securities Act and
Rule 144A thereunder, it being agreed that the foregoing
procedures do not call into question the availability of such
exemption.
1.7
The Issuer hereby
represents and warrants to the Dealer, in connection with offers,
sales and resales of Notes, as follows:
(a) The Issuer hereby confirms to the Dealer that
(except as permitted by Section 1.6(i)) within the preceding
six months neither the Issuer nor any person other than the Dealer
or the other dealers referred to in Section 1.2 hereof acting
on behalf of the Issuer has offered or sold any Notes, or any
substantially similar security of the Issuer (including, without
limitation, medium-term notes issued by the Issuer), to, or
solicited offers to buy any such security from,
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any
person other than the Dealer or the other dealers referred to in
Section 1.2 hereof. The Issuer also agrees that (except
as permitted by Section 1.6(i)), as long as the Notes are
being offered for sale by the Dealer and the other dealers referred
to in Section 1.2 hereof as contemplated hereby and until at
least six months after the offer of Notes hereunder has been
terminated, neither the Issuer nor any person other than the Dealer
or the other dealers referred to in Section 1.2 hereof (except
as contemplated by Section 1.2 hereof) will offer the Notes or
any substantially similar security of the Issuer for sale to, or
solicit offers to buy any such security from, any person other than
the Dealer or the other dealers referred to in Section 1.2
hereof, it being understood that such agreement is made with a view
to bringing the offer and sale of the Notes within the exemption
provided by Section 4(2) of the Securities Act and
Rule 506 thereunder and shall survive any termination of this
Agreement. The Issuer hereby represents and warrants that it
has not taken or omitted to take, and will not take or omit to
take, any action that would cause the offering and sale of Notes
hereunder to be integrated with any other offering of securities,
whether such offering is made by the Issuer or some other party or
parties, under circumstances that would cause the offering and sale
of the Notes by the Issuer to fail to be exempt under
Section 4(2) of the Securities Act.
(b) The Issuer represents and agrees that the
proceeds of the sale of the Notes are not currently contemplated to
be used for the purpose of buying, carrying or trading securities
within the meaning of Regulation T and the interpretations
thereunder by the Board of Governors of the Federal Reserve
System. In the event that the Issuer determines to use
proceeds from the sale of the Notes for the purpose of buying,
carrying or trading securities, whether in connection with an
acquisition of another company or otherwise, the Issuer shall give
the Dealer at least three business days’ prior written notice
to that effect. The Issuer shall also give the Dealer prompt
notice of the actual date that it commences to purchase securities
with the proceeds of the Notes. Thereafter, in the event that
the Dealer purchases Notes as principal and does not resell such
Notes on the day of such purchase, to the extent necessary to
comply with Regulation T and the interpretations thereunder, the
Dealer will sell such Notes either (i) only to offerees it
reasonably believes to be Qualified Institutional Buyers or to
Qualified Institutional Buyers it reasonably believes are acting
for other Qualified Institutional Buyers, in each case in
accordance with Rule 144A or (ii) in a manner which would
not cause a violation of Regulation T and the interpretations
thereunder.
2. Representations and Warranties of
Issuer.
The
Issuer represents and warrants that:
2.1
The Issuer is a
corporation duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation and has all
the requisite power and authority to execute, deliver and perform
its obligations under the Notes, this Agreement and the Issuing and
Paying Agency Agreement.
2.2
This Agreement and the
Issuing and Paying Agency Agreement have been duly authorized,
executed and delivered by the Issuer and constitute legal, valid
and binding obligations of the Issuer enforceable against the
Issuer in accordance with their terms, subject to applicable
bankruptcy, insolvency and similar laws affecting creditors’
rights generally, and subject, as to enforceability, to general
principles of equity (regardless of whether enforcement is sought
in a proceeding in equity or at law).
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2.3
The Notes have been duly
authorized, and when issued as provided in the Issuing and Paying
Agency Agreement, will be duly and validly issued and will
constitute legal, valid and binding obligations of the Issuer
enforceable against the Issuer in accordance with their terms,
subject to applicable bankruptcy, insolvency and similar laws
affecting creditors’ rights generally, and subject, as to
enforceability, to general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at
law).
2.4
Assuming compliance by the
Dealer with the procedures applicable to it set forth in
Section 1 hereof, the offer and sale of the Notes in the
manner contemplated hereby do not require registration of the Notes
under the Securities Act, pursuant to the exemption from
registration contained in Section 4(2) thereof, and no
indenture in respect of the Notes is required to be qualified under
the Trust Indenture Act of 1939, as amended.
2.5
The Notes will rank at
least pari passu with all other unsecured and unsubordinated
indebtedness of the Issuer.
2.6
2.4
Assuming compliance by the
Dealer with the procedures applicable to it set forth in
Section 1 hereof, no consent or action of, or filing or
registration with, any governmental or public regulatory body or
authority, including the SEC, is required to authorize, or is
otherwise required in connection with the execution, delivery or
performance of, this Agreement, the Notes or the Issuing and Paying
Agency Agreement, except as may be required by the securities or
Blue Sky laws of the various states in connection with the offer
and sale of the Notes.
2.7
Neither the execution and
delivery of this Agreement and the Issuing and Paying Agency
Agreement, nor the issuance of the Notes in accordance with the
Issuing and Paying Agency Agreement, nor the fulfillment of or
compliance with the terms and provisions hereof or thereof by the
Issuer, will (i) result in the creation or imposition of any
mortgage, lien, charge or encumbrance of any nature whatsoever upon
any of the properties or assets of the Issuer, or (ii) violate
or result in a breach or a default under any of the terms of the
Issuer’s charter documents or by-laws, any contract or
instrument to which the Issuer is a party or by which it or its
property is bound, or any law or regulation, or any order, writ,
injunction or decree of any court or government instrumentality, to
which the Issuer is subject or by which it or its property is
bound, which breach or default might have a material adverse effect
on the financial condition or operations of the Issuer and its
subsidiaries taken as a whole or the ability of the Issuer to
perform its obligations under this Agreement, the Notes or the
Issuing and Paying Agency Agreement.
2.8
Except as disclosed in the
Company Information, there is no litigation or governmental
proceeding pending, or to the knowledge of the Issuer threatened,
against or affecting the Issuer or any of its subsidiaries which
might reasonably be expected to result in a material adverse change
in the financial condition or operations of the Issuer and its
subsidiaries taken as a whole or the ability of the Issuer to
perform its obligations under this Agreement, the Notes or the
Issuing and Paying Agency Agreement.
2.9
The Issuer is not an
“investment company” within the meaning of the
Investment Company Act of 1940, as amended
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2.10 Neither the Private Placement Memorandum
nor the Company Information contains any untrue statement of a
material fact or omits to state a material fact required to be
stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not
misleading.
2.11 Each (a) issuance of Notes by the
Issuer hereunder and (b) amendment or supplement of the
Private Placement Memorandum shall be deemed a representation and
warranty by the Issuer to the Dealer, as of the date thereof, that,
both before and after giving effect to such issuance and after
giving effect to such amendment or supplement, (i) the
representations and warranties given by the Issuer set forth in
this Section 2 remain true and correct in all material
respects on and as of such date as if made on and as of such date,
(ii) in the case of an issuance of Notes, the Notes being
issued on such date have been duly and validly issued and
constitute legal, valid and binding obligations of the Issuer,
enforceable against the Issuer in accordance with their terms,
subject to applicable bankruptcy, insolvency and similar laws
affecting creditors’ rights generally and subject, as to
enforceability, to general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at law),
(iii) in the case of an issuance of Notes, since the date of
the most recent Private Placement Memorandum, there has been no
material adverse change in the financial condition or operations of
the Issuer and its subsidiaries taken as a whole which has not been
disclosed to the Dealer in writing and (iv) the Issuer is not
in default of any of its obligations hereunder, under the Notes or
the Issuing and Paying Agency Agreement.
3. Covenants and Agreements of
Issuer.
The
Issuer covenants and agrees that:
3.1 The Issuer will give the Dealer prompt
notice (but in any event prior to any subsequent issuance of Notes
hereunder) of any amendment to, modification of or waiver with
respect to, the Notes or the Issuing and Paying Agency Agreement,
including a complete copy of any such amendment, modification or
waiver.
3.2 The Issuer shall, whenever there shall
occur any change in the financial condition or operations of the
Issuer and its subsidiaries taken as a whole or any development or
occurrence in relation to the Issuer that would have a material
adverse effect on holders of the Notes or potential holders of the
Notes (including any downgrading or receipt of any notice of
intended downgrading in the rating accorded any of the
Issuer’s securities by any nationally recognized statistical
rating organization which has published a rating of the Notes),
promptly, and in any event prior to any subsequent issuance of
Notes hereunder, notify the Dealer (by telephone, confirmed in
writing) of such change, development or occurrence.
3.3 The Issuer shall from time to time
furnish to the Dealer such information as the Dealer may reasonably
request, including, without limitation, any press releases or
material provided by the Issuer to any national securities exchange
or rating agency, regarding (i) the Issuer’s operations
and financial condition, (ii) the due authorization and
execution of the Notes and (iii) the Issuer’s ability to
pay the Notes as they mature.
3.4 The Issuer will take all such action as
the Dealer may reasonably request to ensure that each offer and
each sale of the Notes will comply with any applicable state Blue
Sky laws; provided,
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however, that the Issuer shall not be obligated
to file any general consent to service of process or to qualify as
a foreign corporation in any jurisdiction in which it is not so
qualified or subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so
subject.
3.5 The Issuer will not be in default of any
of its obligations hereunder, under the Notes or under the Issuing
and Paying Agency Agreement, at any time that any of the Notes are
outstanding.
3.6 The Issuer shall not issue Notes
hereunder until the Dealer shall have received (a) an opinion
of counsel to the Issuer, addressed to the Dealer, satisfactory in
form and substance to the Dealer, (b) a copy of the executed
Issuing and Paying Agency Agreement as then in effect, (c) a
copy of resolutions adopted by the Board of Directors of the
Issuer, satisfactory in form and substance to the Dealer and
certified by the Secretary or similar officer of the Issuer,
authorizing execution and delivery by the Issuer of this Agreement,
the Issuing and Paying Agency Agreement and the Notes and
consummation by the Issuer of the transactions contemplated hereby
and thereby, (d) prior to the issuance of any book-entry Notes
represented by a master note registered in the name of DTC or its
nominee, a copy of the executed Letter of Representations among the
Issuer, the Issuing and Paying Agent and DTC and of the executed
master note, (e) prior to the issuance of any Notes in
physical form, a copy of such form (unless attached to this
Agreement or the Issuing and Paying Agency Agreement),
(f) confirmation of the then current rating assigned to the
Notes by each nationally recognized statistical rating organization
then rating the Notes, and (g) such other certificates,
opinions, letters and documents as the Dealer shall have reasonably
requested.
3.7 The Issuer shall reimburse the Dealer for
all of the Dealer’s reasonable and documented out-of-pocket
expenses [related to this Agreement, including expenses incurred in
connection with its preparation and negotiation, and the
transactions contemplated hereby (including, but not limited to,
the printing and distribution of the Private Placement Memorandum),
and, if applicable, for the reasonable fees and out-of-pocket
expenses] of the Dealer’s counsel.
4. Disclosure.
4.1 The Private Placement Memorandum and its
contents (other than the Dealer Information) shall be the sole
responsibility of the Issuer. The Private Placement
Memorandum shall contain a statement expressly offering an opportunity for each
prospective purchaser to ask questions of, and receive answers
from, the Issuer concerning the offering of Notes and to obtain
relevant additional information which the Issuer possesses or can
acquire without unreasonable effort or expense.
4.2 The Issuer agrees to promptly furnish the
Dealer the Company Information as it becomes available.
4.3 (a) The Issuer further agrees to
notify the Dealer promptly upon the occurrence of any event
relating to or affecting the Issuer that would cause the Company
Information then in existence to include an untrue statement of a
material fact or to omit to state a material fact necessary in
order to make the statements contained therein, in light of the
circumstances under which they are made, not misleading.
Notwithstanding the foregoing, the Issuer shall have no obligation
to so notify the Dealer if (i) the Issuer has temporarily
suspended offers and sales of the Notes and
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has
given the Dealer written notice of such suspension, or
(ii) there are no Notes outstanding. In the event that
the Issuer wishes to resume offers and sales of the Notes, it shall
(i) give the Dealer notice thereof, and (ii) either
(x) confirm that the then current Private Placement Memorandum
and Company Information do not violate the representation contained
in Section 3.11 of this Agreement, or (y) if the
representation contained in Section 2.11 cannot be made,
provide to the Dealer an updated Private Placement Memorandum that
will permit the representation to be made. The Dealer agrees
that, upon such notification, all solicitations and sales of Notes
shall be suspended.
(b) In the event that the Issuer gives the Dealer
notice pursuant to Section 4.3(a) and the Dealer notifies
the Issuer that it then has Notes it is holding in inventory,
(i) the Issuer agrees promptly to supplement or amend the
Private Placement Memorandum so that the Private Placement
Memorandum, as amended or supplemented, shall not contain an untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, and the
Issuer shall make such supplement or amendment available to the
Dealer or (ii) if the Issuer chooses not to promptly amend or
supplement the Private Placement Memorandum, the Issuer shall, if
required by the Dealer, purchase from the Dealer any such Notes
held in inventory at a price equal to the face amount thereof
discounted on a ratable basis based on the Issuer’s market
rate reflecting the remaining period until maturity in relation to
the original term, provided that no commissions or fees will be
paid to such Dealer in connection with any such repurchase pursuant
to this Section 4.3(b)(ii).
(c) In the event that (i) the Issuer gives the
Dealer notice pursuant to Section 4.3(a), (ii) the Dealer
does not notify the Issuer that it is then holding Notes in
inventory and (iii) the Issuer chooses not to promptly amend
or supplement the Private Placement Memorandum in the manner
described in clause (b) above, then all solicitations and
sales of Notes shall be suspended until such time as the Issuer has
so amended or supplemented the Private Placement Memorandum, and
made such amendment or supplement available to the
Dealer.
(d) Without limiting the generality of
Section 4.3(a), the Issuer shall review, amend and supplement
the Private Placement Memorandum on a periodic basis, but no less
than at least once annually, to incorporate current financial
information of the Issuer to the extent necessary to ensure that
the information provided in the Private Placement Memorandum is
accurate and complete .
5. Indemnification and
Contribution.
5.1 The Issuer will indemnify and hold
harmless the Dealer, each individual, corporation, partnership,
trust, association or other entity controlling the Dealer, any
affiliate of the Dealer or any such controlling entity and their
respective directors, officers, employees, partners, incorporators,
shareholders, servants, trustees and agents (hereinafter the
“Indemnitees”) against any and all liabilities,
penalties, suits, causes of action, losses, damages, claims, costs
and expenses (including, without limitation, fees and disbursements
of counsel) or judgments of whatever kind or nature (each a
“Claim”), imposed upon, incurred by or asserted against
the Indemnitees arising out of or based upon (i) any
allegation that the Private Placement Memorandum, the Company
Information or any information provided by the Issuer to the Dealer
included
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