EXHIBIT 1.01
▇▇▇▇▇▇ BROTHERS HOLDINGS INC.
Medium-Term Notes, Series G
Due Nine Months or More from the Date of Issue
AMENDED AND RESTATED
DISTRIBUTION AGREEMENT
July 26, 2001
▇▇▇▇▇▇ Brothers Inc.
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
▇▇▇▇▇▇ Brothers Holdings Inc., a Delaware corporation (the
"Company"), previously entered into a Distribution Agreement (the "Original
Agreement") with you (the "Agent") dated June 14, 2001, with respect to the
issue and sale by the Company of up to $24,820,000,000 aggregate principal
amount of its Medium-Term Notes, Series G, Due Nine Months or More from the Date
of Issue (the "Medium-Term Notes" or the "Securities"). Whereas the Company and
the Agent desire to amend the Original Agreement in certain respects, the
Original Agreement is hereby amended and restated in its entirety as of the date
hereof as follows:
The Securities are to be issued pursuant to an indenture,
dated as of September 1, 1987, as amended by a First Supplemental Indenture,
dated as of November 25, 1987, a Second Supplemental Indenture, dated as of
November 27, 1990, a Third Supplemental Indenture, dated as of September 13,
1991, a Fourth Supplemental Indenture dated as of October 4, 1993, a Fifth
Supplemental Indenture dated as of October 1, 1995, and a Sixth Supplemental
Indenture dated as of June 26, 1997 (as amended, the "Indenture"), between the
Company and Citibank, N.A., as trustee (the "Trustee").
Subject to the terms and conditions stated herein and subject
to the reservation by the Company of the right to sell Securities directly on
its own behalf at any time, and to any person, the Company hereby appoints the
Agent as the exclusive agent of the Company for the purpose of soliciting offers
to purchase the Securities from the Company by others. This Agreement shall only
apply to sales of the Securities and not to sales of any other securities or
evidences of indebtedness of the Company and only on the specific terms set
forth herein.
SECTION 1. Representations and Warranties. The Company represents and
warrants to the Agent as of the date hereof, as of the Closing Date referred to
in Section 2(d)
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hereof, and as of the times referred to in Section 6(a) and 6(b)
hereof (the Closing Date and each such time being hereinafter sometimes referred
to as a "Representation Date"), as follows:
(a) The Company meets the requirements for the use of Form S-3 under the
Securities Act of 1933, as amended (the "Securities Act"), and the rules and
regulations promulgated thereunder (the "Rules and Regulations"), and has
carefully prepared and filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (file number 333-60474),
which has become effective, for the registration of the Securities under the
Securities Act. The registration statement, as amended at the date of this
Agreement, meets the requirements set forth in Rule 415(a)(1)(ix) under the
Securities Act and complies in all other material respects with such rule. The
Company has filed with the Commission pursuant to Rule 424 under the Securities
Act ("Rule 424") a supplement to the form of prospectus included in the
registration statement relating to the offering of the Securities and the plan
of distribution thereof. The term "Registration Statement" means the
registration statement, as amended at the date of this Agreement and as from
time to time amended and supplemented hereafter, including the exhibits thereto,
financial statements, and all documents incorporated therein by reference
pursuant to Item 12 of Form S-3 (the "Incorporated Documents"). Such form of
prospectus included in the registration statement, including the Incorporated
Documents, is hereinafter referred to as the "Basic Prospectus"; and such
supplemented form of prospectus, in the form in which it was filed with the
Commission pursuant to Rule 424 (including the Basic Prospectus as so
supplemented), is hereinafter called the "Prospectus". Any reference herein to
the Registration Statement, the Basic Prospectus or the Prospectus shall be
deemed to refer to and include the Incorporated Documents filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and any
reference herein to the terms "amend", "amendment" or "supplement" with respect
to the Registration Statement, the Basic Prospectus or the Prospectus shall be
deemed to refer to and include the filing of any Incorporated Documents under
the Exchange Act after the date of this Agreement or the issue date of the Basic
Prospectus or the Prospectus, as the case may be, and deemed to be incorporated
therein by reference.
(b) As of the applicable Representation Date and at all times during each
period during which solicitations of offers to purchase Securities have not been
suspended or during which, in the opinion of counsel to the Agent, a prospectus
relating to the Securities is required to be delivered under the Securities Act
(each a "Marketing Period"), the Registration Statement, the Prospectus and any
such amendment or supplement will comply in all material respects with the
applicable requirements of the Securities Act and the Rules and Regulations, and
the Incorporated Documents will comply in all material respects with the
requirements of the Exchange Act or the Securities Act, as applicable, and the
rules and regulations adopted by the Commission thereunder and will have been
timely filed as required thereby; the Indenture has been qualified under and
complies in all material respects with the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"); on the date it became effective, the
Registration Statement did not, and, on the date that any post-effective
amendment to the Registration Statement becomes effective, the Registration
Statement as amended by such post-effective amendment did not or will not, as
the case may be, contain an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the
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statements therein not misleading; the Prospectus, as it may be amended or
supplemented, does not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they are made, not misleading; the
Incorporated Documents comply in all material respects with the applicable
provisions of the Exchange Act and rules and regulations of the Commission
thereunder, and, when read together with the Prospectus, or the Prospectus as it
may be then amended or supplemented, will not contain an untrue statement of a
material fact or omit 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 are made, not misleading; provided that the foregoing representations
and warranties in this paragraph (b) shall not apply to statements or omissions
made in reliance upon and in conformity with written information furnished to
the Company by the Agent specifically for use in connection with the preparation
of the Registration Statement or the Prospectus, as they may be amended or
supplemented, or to any statements in or omissions from the statement of
eligibility and qualification on Form T-1 of the Trustee under the Trust
Indenture Act ("Form T-1"). The Commission has not issued an order preventing or
suspending the use of the Basic Prospectus or the Prospectus.
(c) The nationally recognized firm of independent public accountants whose
report appears in the Company's most recent Annual Report on Form 10-K, which is
incorporated by reference in the Prospectus, are independent public accountants
as required by the Securities Act and the Rules and Regulations. In the event
that a report of a nationally recognized firm of independent public accountants
regarding historical financial information with respect to any entity acquired
by the Company is required to be incorporated by reference in the Prospectus,
such independent public accountants were independent public accountants, as
required by the Securities Act and the Rules and Regulations, during the period
of their engagement to examine the financial statements being reported on and at
the date of their report.
(d) The audited consolidated financial statements of the Company included
in the Prospectus and the Registration Statement present, and will present, as
of the applicable Representation Date and during each Marketing Period, fairly
on a consolidated basis the financial position, the results of operations,
changes in common stock and stockholder's equity and cash flows of the Company
and its subsidiaries as of the respective dates and for the respective periods
indicated, all in conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods involved. The unaudited
consolidated financial statements of the Company, if any, included in the
Prospectus and the Registration Statement and the related notes are, and will
be, as of the applicable Representation Date and during each Marketing Period,
true, complete and correct, subject to normally recurring changes resulting from
year-end audit adjustments, and prepared in accordance with Regulation S-X of
the Rules and Regulations.
(e) Except as described in or contemplated by the Registration Statement
and the Prospectus, there has not been any material adverse change in, or any
adverse development which materially affects, the business, properties,
financial condition or
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results of operations of the Company or the Company and its subsidiaries taken
as a whole from the dates as of which information is given in the Registration
Statement and the Prospectus.
(f) The Securities conform to the description thereof contained in the
Prospectus, are duly and validly authorized, and, when validly authenticated,
issued and delivered in accordance with the Indenture and sold as provided in
this Agreement, will be validly issued and outstanding obligations of the
Company entitled to the benefits of the Indenture.
(g) Neither the Company nor any of the Significant Subsidiaries (as defined
below) is in violation of its corporate charter or by-laws or in default under
any agreement, indenture or instrument, the effect of which violation or default
would be material to the Company and its subsidiaries taken as a whole. The
execution, delivery and performance of this Agreement and the consummation of
the related transactions described in the Registration Statement will not
conflict with, result in the creation or imposition of any material lien, charge
or encumbrance upon any of the assets of the Company or any of its subsidiaries
pursuant to the terms of, or constitute a default under, any material agreement,
indenture or instrument, or result in a violation of the corporate charter or
by-laws of the Company or any of its subsidiaries or any order, rule or
regulation of any court or governmental agency having jurisdiction over the
Company, any of its Significant Subsidiaries or their property. Except as set
forth in the Prospectus or as required by the Securities Act, the Exchange Act,
the Trust Indenture Act and applicable state securities laws, no consent,
authorization or order of, or filing or registration with, any court or
governmental agency is required for the execution, delivery and performance of
this Agreement. "Significant Subsidiary" means each of ▇▇▇▇▇▇ Brothers Inc.,
▇▇▇▇▇▇ Brothers International (Europe), ▇▇▇▇▇▇ Brothers Finance S.A. and ▇▇▇▇▇▇
Brothers Special Financing Inc.
(h) Each of the Company and the Significant Subsidiaries have been duly
organized, are validly existing and in good standing under the laws of their
respective jurisdictions of incorporation, are duly qualified to do business and
in good standing as foreign corporations and are duly registered as a
broker-dealer, broker, dealer or investment advisor, as the case may be, in each
jurisdiction in which their respective ownership of property or the conduct of
their respective businesses requires such qualification or registration and in
which the failure to qualify or register would be reasonably likely,
individually or in the aggregate, to have a material adverse effect on the
business, condition or properties of the Company and its subsidiaries taken as a
whole (a "Material Adverse Effect"). Each of the Company and the Significant
Subsidiaries holds all material licenses, permits, and certificates from
governmental authorities necessary for the conduct of its business and owns, or
possesses adequate rights to use, all material rights necessary for the conduct
of such business and has not received any notice of material conflict with the
asserted rights of others in respect thereof, except in each case where the
failure to do so would not be reasonably likely, individually or in the
aggregate, to have a Material Adverse Effect; and each of the Company and the
Significant Subsidiaries has the corporate power and authority necessary to own
or hold its properties and to conduct the businesses in which it is engaged.
Except as may be
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disclosed in the Registration Statement and the Prospectus, all outstanding
shares of capital stock of the Significant Subsidiaries have been duly
authorized and are validly issued and outstanding, fully paid and non-assessable
and, except for directors' qualifying shares, are owned by the Company, directly
or indirectly through subsidiaries, free and clear of any lien, pledge and
encumbrance or any claim of any third party.
(i) Except as described in the Registration Statement and the Prospectus,
there is no material litigation or governmental proceeding pending or, to the
knowledge of the Company, threatened against the Company or any of its
subsidiaries which might reasonably be expected to have a Material Adverse
Effect or which is required to be disclosed in the Registration Statement and
the Prospectus.
(j) The certificates delivered pursuant to paragraph (c) of Section 5
hereof and all other documents delivered by the Company or its representatives
in connection with the issuance and sale of the Securities were on the dates on
which they were delivered, or will be on the dates on which they are to be
delivered, in all material respects true and complete.
(l) Any certificate signed by any officer of the Company and delivered to
one or more Purchasers (as hereinafter defined) or to counsel for the Purchasers
in connection with an offering of the Securities to one or more Purchasers as
principal or through the Agent or an Additional Agent as agent shall be deemed a
representation and warranty by the Company to such Purchasers, Agent or
Additional Agents (as the case may be) as to the matters covered thereby on the
date of such certificate and, unless subsequently amended or supplemented, at
each Representation Date subsequent thereto.
SECTION 2. Solicitations as Agent. (a) On the basis of the representations
and warranties contained herein, but subject to the terms and conditions herein
set forth, the Agent agrees, as exclusive agent of the Company, to use its
reasonable best efforts to solicit offers to purchase the Securities upon the
terms and conditions set forth in the Prospectus. The Agent shall not otherwise
employ, pay or compensate any other person to solicit offers to purchase the
Securities or to perform any of its functions as agent without the prior written
consent of the Company. The Company reserves the right, in its sole discretion,
to suspend solicitation of offers to purchase the Securities commencing at any
time for any period of time or permanently. Upon receipt of at least one
business day's prior notice from the Company, the Agent will forthwith suspend
solicitation of offers to purchase Securities from the Company until such time
as the Company has advised the Agent that such solicitation may be resumed. For
the purpose of the foregoing sentence, "business day" shall mean any day which
is not a Saturday or Sunday and which in New York City is not a day on which
banking institutions are generally authorized or obligated by law to close. The
Agent is authorized to solicit offers to purchase the Securities only in
denominations of $1,000 or any amount in excess thereof which is an integral
multiple of $1,000, at a purchase price equal to 100% of the principal amount
thereof or such other amount as shall be specified by the Company. The Agent
shall communicate to the Company, orally or in writing, each reasonable offer to
purchase Securities received by it as Agent. The Company shall have the sole
right to accept offers to purchase the Securities and may reject any such offer
in whole or in part. The Agent shall have the right, in its discretion
reasonably exercised without
6
advising the Company, to reject any offer to purchase the Securities received by
it in whole or in part, and any such rejection shall not be deemed a breach of
its agreement contained herein.
(b) Promptly upon the closing of the sale of any Securities sold by the
Company as a result of a solicitation made by the Agent, the Company agrees to
pay the Agent a commission in accordance with the schedule set forth in Exhibit
A hereto applicable to such Security. (c) Administrative procedures respecting
the sale of each of the Securities shall be agreed upon from time to time by the
Agent and the Company (the "Procedures"). The Procedures initially shall include
those procedures set forth in Exhibit B hereto. The Agent and the Company agree
to perform the respective duties and obligations specifically provided to be
performed by each of them herein and in the Procedures.
(d) The documents required to be delivered by Section 5 hereof shall be
delivered at the offices of ▇▇▇▇▇▇ Brothers Inc., ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, no later than 10:00 A.M., New York City time, on the date
of this Agreement or at such later time as may be mutually agreed the Company
and the Agent, which in no event shall be later than the time at which the Agent
commences solicitation of purchasers of Securities hereunder, such time and date
be herein called the "Closing Date."
SECTION 3. Covenants of the Company. The Company covenants and agrees with
the Agent that it will furnish (to the extent it has not already done so) to
each of the Agent and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel to the Agent, a copy
of the Registration Statement, including all exhibits, in the form it became
effective and all of the amendments thereto and that:
(a) The Company shall advise the agent promptly (i) of any proposal to
amend or supplement the Registration Statement or the Prospectus and will
afford the Agent a reasonable opportunity to comment on any such proposed
amendment or supplement and will advise the Agent of the filing of any such
amendment or supplement; (ii) of any request or proposed request by the
Commission for an amendment or supplement to the Registration Statement,
the Prospectus, to any document incorporated by reference in any of the
foregoing or for additional information; (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or any part thereof or the initiation or threat of
any stop order proceeding and will use its best efforts to prevent the
issuance of any stop order and to obtain as soon as possible its lifting,
if issued and (iv) of receipt by the Company of any notification with
respect to the suspension of the qualification of the Securities for sale
in any jurisdiction or the initiation or threat of any proceeding for that
purpose.
(b) If, during any Marketing Period, any event occurs as a result of
which the Prospectus would include an untrue statement of a material fact
or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, or if it is necessary at any time to amend the Prospectus to
comply with the Securities Act, the Company will notify the Agent promptly
to suspend solicitation of purchases of the Securities; and if the Company
shall decide to amend or supplement the Registration Statement or the
Prospectus, it will
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promptly advise the Agent by telephone (with confirmation in writing) and
will promptly prepare and file with the Commission an amendment or
supplement which will correct such statement or omission or an amendment
which will effect such compliance and will use its reasonable best efforts
to cause any amendment of the Registration Statement containing an amended
Prospectus to be made effective as soon as possible.
(c) As soon as practicable, but not later than 18 months, after the date of
each acceptance by the Company of an offer to purchase Securities
hereunder, the Company will make generally available to its security
holders an earnings statement which will satisfy the provisions of Section
11(a) of the Securities Act and Rule 158 of the Rules and Regulations under
the Securities Act.
(d) The Company will furnish to the Agent without charge copies of the
Registration Statement, including all exhibits, the Prospectus and all
amendments and supplements to such documents, in each case as soon as
available and in such quantities as are reasonably requested.
(e) The Company will furnish such information, execute such
instruments and take such actions as may be required to qualify the
Securities for offering and sale under the laws of such jurisdictions as
the Agent may designate and will maintain such qualifications in effect so
long as required for the sale of the Securities; provided, however, that
the Company shall not be required to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action which
would subject it to general or unlimited service of process in any
jurisdiction where it is not now so subject.
SECTION 4. Payment of Expenses. The Company will pay (i) the costs incident
to the authorization, issuance, sale and delivery of the Securities and any
taxes payable in that connection, (ii) the costs incident to the preparation,
printing and filing under the Securities Act of the Registration Statement and
any amendments and exhibits thereto, (iii) the costs incident to the
preparation, printing and filing of any document and any amendments and exhibits
thereto required to be filed by the Company under the Exchange Act, (iv) the
costs of distributing the Registration Statement, as originally filed, and each
amendment and post-effective amendment thereof (including exhibits), any
preliminary prospectus in any of the foregoing documents, (v) the fees and
disbursements of the Trustee and its counsel, (vi) the cost of any filings with
the National Association of Securities Dealers, Inc., (vii) the fees and
disbursements of counsel to the Company and the Company's accountants, (viii)
the fees paid to rating agencies in connection with the rating of the
Securities, (ix) the fees and expenses of qualifying the Securities under the
securities laws of the several jurisdictions as provided in Section 3(e) hereof
and of preparing and printing a Blue Sky Survey and a memorandum concerning the
legality of the Securities as an investment (including fees and expenses of the
Agent's counsel in connection therewith) and (x) all other costs and expenses
incident to the performance of the Company's obligations under this Agreement.
In addition, the Company agrees to reimburse the Agent for the fees and
disbursements of its legal counsel.
SECTION 5. Conditions of Obligations. The obligation of the Agent, as agent
of the Company, under this Agreement to solicit offers to purchase the
8
Securities is subject to the accuracy in all material respects, on each
Representation Date, of the representations and warranties of the Company
contained herein, to the accuracy of the statements of officers of the Company
made in any certificates, affidavits, written statements or letters furnished to
the Agent or counsel to the Agent pursuant to the provisions hereof, to the
performance by the Company of its obligations hereunder, and to each of the
following additional conditions precedent:
(a) No order suspending the effectiveness of the Registration Statement or
suspending the qualification of the Indenture shall be in effect and no
proceedings for such purpose shall be pending before or threatened by the
Commission, and any requests for additional information on the part of the
Commission (to be included in the Registration Statement or the Prospectus or
otherwise) shall have been complied with to the reasonable satisfaction of the
Agent.
(b) At the Closing Date, the Company shall have furnished to the Agent the
opinion of an Associate General Counsel of the Company, addressed to the Agent
and dated the Closing Date, to the effect that:
i) The Company has been duly organized and is validly existing and in
good standing under the laws of the State of Delaware with all requisite
corporate power and authority to own and operate its properties and to
conduct the businesses in which it is engaged as described in the
Prospectus. Each of the Significant Subsidiaries that is organized under
the laws of the United States or any State or territory thereof (a
"Domestic Significant Subsidiary") is a duly organized and validly existing
corporation in good standing under the laws of its jurisdiction of
incorporation, with all requisite corporate power and authority to own and
operate its properties and conduct its business as described in the
Prospectus. Each of the Company and the Domestic Significant Subsidiaries
is duly qualified to do business as a foreign corporation, is in good
standing and is duly registered as a broker-dealer, broker, dealer or
investment advisor, as the case may be, in each jurisdiction in which the
nature of the business conducted by it or in which the ownership or holding
by lease of the properties owned or held by it requires such qualification
or registration and where the failure to so qualify or register would have
a Material Adverse Effect.
ii) All the outstanding shares of capital stock of the Domestic
Significant Subsidiaries have been duly authorized and are validly issued
and outstanding and are fully paid and non-assessable and, except for
directors' qualifying shares, are owned by the Company or a subsidiary of
the Company free and clear of any claims, liens, encumbrances and security
interests.
iii) The Securities and the Indenture conform in all material respects
to the descriptions thereof contained in the Prospectus.
iv) The Indenture has been duly authorized, executed and delivered by
the Company and has been duly qualified under the Trust Indenture Act, and
constitutes a legal, valid and binding instrument enforceable against the
Company in accordance with its terms; and the Securities have been duly
9
authorized by the Company, and, when executed and authenticated as
specified in the Indenture and delivered against payment therefor in
accordance with this Agreement, will be legal, valid and binding
obligations of the Company entitled to the benefits of the Indenture;
provided, however, that the foregoing is subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws affecting creditors' rights generally from time to time in
effect, to general equitable principles (whether considered in a proceeding
at law or in equity) and to an implied covenant of good faith and fair
dealing).
v) No consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation of the
transactions contemplated in this Agreement, except for (1) such consents,
approvals, authorizations or orders as have been obtained under the
Securities Act and such as may be required under the Exchange Act and state
securities laws, and (2) the qualification of the Indenture under the Trust
Indenture Act, which has been obtained.
vi) Such counsel does not know of any contracts or other documents
which are required to be filed as exhibits to the Registration Statement by
the Securities Act or by the Rules and Regulations which have not been
filed as exhibits to the Registration Statement or incorporated therein by
reference as permitted by the Rules and Regulations.
vii) Such counsel does not know of any litigation or any governmental
proceeding pending or threatened against the Company or any of its
subsidiaries which would affect the subject matter of this Agreement or is
required to be disclosed in the Prospectus which is not disclosed and
correctly summarized (by incorporation by reference or otherwise) therein.
viii) To the best of such counsel's knowledge, neither the Company nor
any of the Domestic Significant Subsidiaries is in violation of its
corporate charter or by-laws, nor in default under any agreement, indenture
or instrument known to such counsel, the effect of which would be material
to the Company and its subsidiaries taken as a whole.
ix) This Agreement has been duly authorized, executed and delivered by
the Company; the execution, delivery and performance of this Agreement by
the Company will not conflict with, or result in the creation or imposition
of any material lien, charge or encumbrance upon any of the assets of the
Company or the Domestic Significant Subsidiaries pursuant to the terms of,
or constitute a default under, any agreement, indenture or instrument known
to such counsel and to which the Company or the Domestic Significant
Subsidiaries is a party or bound, or result in a violation of the corporate
charter or by-laws of the Company or the Domestic Significant Subsidiaries
or any order, rule or regulation known to such counsel of any court or
governmental agency having jurisdiction over the Company, the Domestic
Significant Subsidiaries or any of their respective
10
properties, the effect of which conflict, default or violation would
be material to the Company and its subsidiaries taken as a whole;
x) The Registration Statement has become effective under the
Securities Act, and, to the best knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has been issued
and no proceeding for that purpose is pending or threatened by the
Commission.
xi) The Registration Statement and the Prospectus (except that no
opinion need be expressed as to the financial statements and notes thereto
or the schedules or other financial or statistical data or the Form T-1
included or incorporated by reference therein), comply as to form in all
material respects with the requirements of the Securities Act and the Rules
and Regulations.
Such opinion shall also contain a statement that although such counsel is not
passing upon and does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement and the Prospectus (except as to those matters stated in paragraph
(iii) of this subsection (b)), such counsel has no reason to believe that (A)
the Registration Statement, as of its effective date, contained any untrue
statement of a material fact or omitted to state any material fact required to
be stated therein or necessary in order to make the statements therein not
misleading or (B) the Prospectus contains any untrue statement of a material
fact or omits to state any material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading (except that no statement need be made as to the financial
statements and notes thereto or the schedules or other financial or statistical
data or the Form T-1 included or incorporated by reference therein).
In rendering such opinion, such counsel may rely upon opinions of local counsel
satisfactory to the Agent for matters not governed by New York law and may rely
as to matters of fact, to the extent he or she deems proper, upon certificates
or affidavits of officers of the Company, the Trustee and public officials. Such
counsel may rely on a certificate of the Trustee with respect to the execution
of the Securities by the Company and the authentication thereof by the Trustee.
(c) At the Closing Date, the Agent shall have received from counsel to the
Agent such opinion or opinions, dated the Closing Date, with respect to the
issuance and sale of the Securities, the Registration Statement, the Prospectus
and other related matters as the Agent may reasonably require, and the Company
shall have furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
(d) The Company shall have
furnished to the Agent on the Closing Date a certificate, dated the Closing
Date, of the Chairman of the Board, any Vice Chairman, the Chief Executive
Officer, any Executive Vice President or any Vice President and the Treasurer,
Chief Financial Officer or Senior Vice President and Director of Global Asset
and Liability Management of the Company to the effect that the signers of such
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certificate have carefully examined the Registration Statement, the Prospectus
and this Agreement, and that, to the best of their knowledge, after due inquiry:
i) The representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of
the Closing Date with the same effect as if made on the Closing Date,
and the Company has complied with all the agreements and satisfied all
the conditions on its part to be performed or satisfied at or prior to
the Closing Date.
ii) No stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or threatened.
iii) (i) the Registration Statement does not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, (ii) the Prospectus does not contain any
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, and (iii) since the effective date of the
Registration Statement there has not occurred any event required to be
set forth in an amended or supplemented Prospectus which has not been
so set forth.
(e) At the Closing Date, a nationally recognized firm of independent public
accountants shall have furnished to the Agent a letter, dated the day of the
Closing Date, confirming that they are independent auditors with respect to the
Company within the meaning of the Securities Act and in form and substance
satisfactory to the Agent, stating in effect that:
i) In their opinion, the consolidated financial statements of the
Company and its subsidiaries, and the supporting schedules, included
in the Registration Statement and the Prospectus and audited by them
comply as to form in all material respects with the applicable
accounting requirements of the Securities Act and the Exchange Act and
the related published rules and regulations thereunder.
ii) On the basis of a reading of the unaudited consolidated
financial statements of the Company and its subsidiaries, if any,
included in the Registration Statement and the Prospectus and of the
latest unaudited consolidated financial statements made available by
the Company and ▇▇▇▇▇▇ Brothers Inc., carrying out certain specified
procedures (but not an audit in accordance with generally accepted
auditing standards), a reading of the minutes of the meetings of the
directors of the Company and ▇▇▇▇▇▇ Brothers Inc., and inquiries of
certain officials of the Company who have responsibility for financial
and accounting matters of the Company and its subsidiaries, as to
transactions and events subsequent to the date of the most recent
audited consolidated financial
12
statements included in the Registration Statement and the
Prospectus, nothing came to their attention that caused them to
believe that:
(A) any material modifications should be made
to the unaudited consolidated financial statements of
the Company and its subsidiaries, if any, included in
the Registration Statement and the Prospectus, for
them to be in conformity with generally accepted
accounting principles; and such financial statements
do not comply as to form in all material respects
with the applicable accounting requirements of the
Securities Act and the published instructions, rules
and regulations thereunder.
(B) the unaudited capsule information of the
Company and its subsidiaries, if any, included in the
Registration Statement and the Prospectus does not
agree with the amounts set forth in the unaudited
consolidated financial statements of the Company from
which it was derived or was not determined on a basis
substantially consistent with that of the
corresponding financial information in the latest
audited financial statements of the Company included
in the Registration Statement and the Prospectus.
(C) (I) as of the latest date as of which the
Company and its subsidiaries have monthly financial
statements, as compared to amounts shown in the most
recent consolidated financial statements of the
Company and its subsidiaries included in the
Registration Statement and the Prospectus, there was
any change in the capital stock (other than issuances
of common stock upon the exercise of options or
employee awards and the repurchase of common stock in
the ordinary course of business to provide for common
stock to be issued pursuant to the exercise of
options or employee awards), or increase in long-term
indebtedness, or decrease in net assets or
stockholders' equity of the Company and its
subsidiaries and (II) from the latest date as of
which the Company and its subsidiaries have monthly
financial statements to the date of the most recent
consolidated financial statements of the Company and
its subsidiaries included in the Registration
Statement and Prospectus, there was any consolidated
loss from operations before taxes or consolidated net
loss of the Company and its subsidiaries.
(D) as of a specified date no more than
three business days prior to the date of the letter,
as compared to the date of the most recent
consolidated financial statements of the Company and
its subsidiaries included in the Registration
Statement and Prospectus, there was any change in
capital stock (other than issuances of common stock
upon the exercise of options or employee awards and
the repurchase of common stock in the ordinary course
of business to provide for common stock to be issued
pursuant to the exercise of options or employee
awards), or increase in long-term indebtedness, or
decrease in net assets or stockholders' equity of the
Company and its subsidiaries;
13
except in all instances for changes, increases or decreases set forth in
such letter, in which case the letter shall be accompanied by an
explanation by the Company as to the significance thereof, unless said
explanation is not deemed necessary by the Agent.
iii) If pro forma financial statements are included in the
Registration Statement or the Prospectus, (x) they have read such pro
forma financial statements, (y) they have made inquiries of certain
officials of the Company who have responsibility for financial and
accounting matters of the Company as to the basis for their
determination of the pro forma adjustments and whether such pro forma
financial statements comply as to form in all material respects with
the applicable accounting requirements of Rule 11-02 of Regulation S-X
and (z) they have proved the arithmetic accuracy of the application of
the pro forma adjustments to the historical amounts; and as a result
thereof, nothing came to their attention that caused them to believe
that such pro forma financial statements do not so comply with Rule
11-02 of Regulation S-X and that such pro forma adjustments have not
been properly applied to the historical amounts in the compilation of
those statements.
iv) They have performed certain other specified procedures as a
result of which they determined that certain information of an
accounting, financial or statistical nature (which is expressed in
dollars, or percentages derived from dollar amounts, and has been
obtained from the general accounting records of the Company) set forth
in the Registration Statement, as amended, and the Prospectus, as
amended or supplemented, and in Exhibit 12 to the Registration
Statement, including specified information, if any, included or
incorporated from the Company's Annual Report on Form 10-K
incorporated therein or specified information, if any, included or
incorporated from any of the Company's Quarterly Reports on Form 10-Q
or its Current Reports on Form 8-K incorporated therein, agrees with
the accounting records of the Company and its subsidiaries or
computations made therefrom, excluding any questions of legal
interpretation.
(f) Subsequent to the execution of this Agreement, there shall not have
been any decrease in the ratings of any of the Company's debt securities by
▇▇▇▇▇'▇ Investors Service, Inc., or Standard & Poor's Corporation.
(g) Prior to the Closing Date, the Company shall have furnished to the
Agent such further information, certificates and documents as the Agent or
counsel to the Agent may reasonably request.
If any of the conditions specified in this Section 5 shall not
have been fulfilled when and as required by this Agreement, or if any of the
certificates or opinions furnished to the Agent or to counsel to the Agent
pursuant to this Section 5 shall not be in all material respects reasonably
satisfactory in form and substance to the Agent and to counsel to the Agent,
this Agreement and all obligations of the Agent hereunder may be cancelled by
the Agent. Notice of such cancellation shall be given to the Company in writing,
or by telegraph confirmed in writing.
14
SECTION 6. Additional Covenants of the Company. The Company covenants and
agrees that:
(a) Each acceptance by it of an offer for the purchase of Securities
shall be deemed to be an affirmation that the representations and
warranties of the Company contained in this Agreement are true and correct
in all material respects at the time of such acceptance and an undertaking
that such representations and warranties will be true and correct in all
material respects at the time of delivery to the purchaser or his agent of
the Securities relating to such acceptance as though made at and as of each
such time (and it is understood that such representations and warranties
shall relate to the Registration Statement and the Prospectus as amended or
supplemented to each such time).
(b) During each Marketing Period, each time that the Registration
Statement or the Prospectus shall be amended or supplemented or the Company
shall file with the Commission any document incorporated by reference into
the Prospectus (other than by filing with the Commission of an exhibit to
the Registration Statement or Prospectus that does not relate to the
Securities, a prospectus supplement not relating to the Securities or an
amendment or supplement providing solely for a change in the interest
rates, redemption provisions, amortization schedule or maturities of the
Securities or a change in the principal amount of Securities remaining to
be sold or other information contemplated by the Prospectus to be filed in
a pricing supplement related to the Securities or similar changes, or any
other change that the Agent reasonably deems immaterial), the Company
shall, (i) within two (2) business days after such amendment, supplement or
filing or (ii) if such amendment, supplement or filing was not filed during
a Marketing Period, within two (2) business days after the first day of the
next succeeding Marketing Period, furnish the Agent with a certificate of
the Chairman of the Board, any Vice Chairman, the Chief Executive Officer,
any Executive Vice President or any Vice President and the Treasurer, the
Chief Financial Officer or the Senior Vice President and Director of Global
Asset and Liability Management of the Company in form satisfactory to the
Agent to the effect that the statements contained in the certificate
referred to in Section 5(d) hereof which was last furnished to the Agent
are true and correct at the time of such amendment or supplement or filing,
as the case may be, as though made at and as of such time (except that such
statements shall be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented to such time) or, in lieu of such
certificate, a certificate of the same tenor as the certificate referred to
in said Section 5(d), modified as necessary to relate to the Registration
Statement and the Prospectus as amended and supplemented to the time of
delivery of such certificate. If requested by the Lead Manager (which term
shall have the meaning specified in the Purchase Agreement (as hereinafter
defined), or, if there is only a single Purchaser, shall mean such
Purchaser), in its sole discretion, pursuant to Section 11(a) of this
Agreement in connection with the purchase of Securities from the Company by
the Agent or one or more other Purchasers as principal, the Company shall
deliver to the Lead Manager on behalf of the Purchasers on the Settlement
Date (as defined in the applicable Purchase Agreement) a certificate of the
type described in the previous sentence.
15
(c) During each Marketing Period, each time that the Registration
Statement or the Prospectus shall be amended or supplemented or the Company
shall file with the Commission any document incorporated by reference into
the Prospectus (other than by filing with the Commission of an exhibit to
the Registration Statement or Prospectus that does not relate to the
Securities, an amendment or supplement to or document incorporated by
reference in the Registration Statement or Prospectus setting forth only
financial statements or other financial information (including any press
release announcing earnings), a prospectus supplement not relating to the
Securities or an amendment or supplement providing solely for a change in
the interest rates, redemption provisions, amortization schedule or
maturities of the Securities or a change in the principal amount of
Securities remaining to be sold or other information contemplated by the
Prospectus to be filed in a pricing supplement related to the Securities or
similar changes, or any other change that the Agent reasonably deems
immaterial), the Company shall, (i) within two (2) business days after such
amendment, supplement or filing or (ii) if such amendment, supplement or
filing was not filed during a Marketing Period, within two (2) business
days after the first day of the next succeeding Marketing Period, furnish
the Agent with the written opinion of an Associate General Counsel to the
Company, addressed to the Agent and dated the date of delivery of such
opinion, in form satisfactory to the Agent, of the same tenor as the
opinion referred to in Section 5(b) hereof, but modified, as necessary, to
relate to the Registration Statement and the Prospectus as amended or
supplemented to the time of delivery of such opinion; provided, however,
that in lieu of such opinion, such counsel may furnish the Agent with a
letter to the effect that the Agent may rely on a prior opinion delivered
under Section 5(b) or this Section 6(c) to the same extent as if it were
dated the date of such letter authorizing reliance (except that statements
in such prior opinion shall be deemed to relate to the Registration
Statement and the Prospectus as amended or supplemented to the time of
delivery of such letter authorizing reliance). If requested by the Lead
Manager, in its sole discretion, pursuant to Section 11(a) of this
Agreement in connection with the purchase of Securities from the Company by
the Agent or one or more other Purchasers as principal, the Company shall
deliver to the Lead Manager on behalf of the Purchasers on the Settlement
Date an opinion of counsel of the type described in the previous sentence.
(d) During each Marketing Period, each time that the Registration
Statement or the Prospectus shall be amended or supplemented to include
additional financial information or the Company files with the Commission
any document incorporated by reference into the Prospectus which contains
additional financial information (other than information that the Agent
reasonably deems immaterial), the Company shall cause the Company's
auditors to furnish the Agent, (i) within two (2) business days after such
amendment, supplement or filing or (ii) if such amendment, supplement or
filing was not filed during a Marketing Period, within two (2) business
days after the first day of the next succeeding Marketing Period, a letter,
addressed to the Agent and dated the date of delivery of such letter, in
form and substance satisfactory to the Agent, of the same tenor as the
letter referred to in Section 5(e) hereof but modified to relate to the
Registration Statement and Prospectus, as amended and supplemented to the
date of such letter, with such changes as may be necessary to reflect
changes in the financial statements and other information derived from the
accounting records of the Company; provided, however, that if the
16
Registration Statement or the Prospectus is amended or supplemented solely
to include financial information as of and for a fiscal quarter, the
Company's auditor may limit the scope of such letter to the unaudited
financial statements included in such amendment or supplement unless there
is contained therein any other accounting, financial or statistical
information that, in the Agent's reasonable judgment, should be covered by
such letter, in which event such letter shall also cover such other
information. If requested by the Lead Manager, in its sole discretion,
pursuant to Section 11(a) of this Agreement in connection with the purchase
of Securities from the Company by the Agent or one or more other Purchasers
as principal, the Company shall deliver to the Lead Manager on behalf of
the Purchasers on the Settlement Date a letter of the type described in the
previous sentence.
SECTION 7. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless the Agent, and each person who controls the Agent
within the meaning of the Securities Act against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them may
become subject under the Securities Act, the Exchange Act or other federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages, or liabilities (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, as originally filed, or
in any amendment thereof or supplement thereto or in any preliminary prospectus
relating to the Securities or the Prospectus, or arise out of or are based upon
the omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
agrees to reimburse each such indemnified party for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that (i) the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to
the Company as herein stated by the Agent specifically for use in connection
with the preparation thereof and (ii) such indemnity with respect to any
Prospectus shall not inure to the benefit of the Agent (or any person
controlling the Agent) from whom the person asserting any such loss, claim,
damage or liability purchased the Securities which are the subject thereof if
such person did not receive a copy of the Prospectus at or prior to the
confirmation of the sale of such Securities to such person in any case where
such delivery is required by the Securities Act and the untrue statement or
omission of a material fact contained in such Prospectus was corrected in an
amended or supplemented Prospectus, unless such failure to deliver such amended
or supplemented Prospectus was a result of noncompliance by the Company with
Section 3(d) hereof. This indemnity agreement will be in addition to any
liability which the Company may otherwise have to the Agent or any controlling
person.
(b) The Agent agrees to indemnify and hold harmless the Company, each of
its directors, each of its officers who signs the Registration Statement and
each person, if any, who controls the Company within the meaning of the
Securities Act against any and all losses, claims, damages or liabilities, joint
or several, to which they or any of them may become subject under the Securities
Act, the Exchange Act or federal or state statutory law or regulation, at common
law or otherwise, insofar as such losses, claims, damages or liabilities (or
action in respect thereof) arise out of or are based upon any untrue statement
17
or alleged untrue statement of a material fact contained in the Registration
Statement as originally filed, or in any amendment thereof or supplement thereto
or in any preliminary prospectus relating to the Securities, or the Prospectus,
or arise out of or are based upon the omission or the alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to the
extent, that the same was made therein in reliance upon and in conformity with
written information furnished to the Company as herein stated by the Agent
specifically for use in the preparation thereof, and agrees to reimburse such
indemnified party for any legal and other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage,
liability or action. This indemnity agreement will be in addition to any
liability which the Agent may otherwise have. The statements with respect to the
public offering of the Securities and the manner of distribution thereof and
with respect to the Agent set forth on the cover page of the and under the
headings "Plan of Distribution" in the Prospectus constitute the only
information furnished in writing by the Agent for inclusion in the Registration
Statement and the Prospectus, and you, as the Agent, confirm that such
statements are correct.
(c) Promptly after receipt by an indemnified party under this Section 7 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 7, notify the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than under
this Section 7. In case any such action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and to the extent
that it may elect by written notice delivered to the indemnified party promptly
after receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel satisfactory to such indemnified party; provided,
however, if the defendants in any such action include both the indemnified party
and the indemnifying party and either (i) the indemnifying party or parties and
the indemnified party or parties mutually agree or (ii) representation of both
the indemnifying party or parties and the indemnified party or parties by the
same counsel is inappropriate under applicable standards of professional conduct
due to actual or potential differing interests between them, the indemnified
party or parties shall have the right to elect separate counsel to assume such
legal defenses and to otherwise participate in the defense of such action on
behalf of such indemnified party or parties. Upon receipt of notice from the
indemnifying party to such indemnified party of its election so to assume the
defense of action and approval by the indemnified party of counsel, the
indemnifying party will not be liable to such indemnified party under this
Section 7 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed counsel in connection with assumption of
legal defenses in accordance with the proviso to the next preceding sentence (it
being understood, however, that the indemnifying party shall not be liable for
the expenses of more than one separate counsel, approved by the Agent in the
case of subparagraph (a) representing the indemnified parties under subparagraph
(a), as the case may be, who are parties to such action), (ii) the indemnifying
party shall not have employed counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of
commencement of the action or (iii) the indemnified party has authorized the
employment of counsel for indemnified party at the expense of the indemnified
party. No indemnifying party
18
shall (i) without the prior written consent of the indemnified parties (which
consent shall not be unreasonably withheld), settle or compromise or consent to
the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compromise or
consent includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding, or (ii) be
liable for any settlement of any such action effected without its written
consent (which consent shall not be unreasonably withheld), but if settled with
its written consent or if there be a final judgment of the plaintiff in any such
action, the indemnifying party agrees to indemnify and hold harmless any
indemnified party from and against any loss or liability by reason of such
settlement or judgment.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in subparagraph (a) of
this Section 7 is due in accordance with its terms but is for any reason held by
a court to be unavailable from the Company on grounds of policy or other similar
grounds, the Company and the Agent shall contribute to the aggregate losses,
claims, damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending same) to which the
Company and the Agent may be subject in such proportion so that the Agent is
responsible for the portion represented by the percentage that the total
commissions received by the Agent from the offering of the Securities bear to
the public offering prices of such Securities, and the Company is responsible
for balance; provided, however, that no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 7, each person who
controls the Agent within the meaning of the Securities Act shall have the same
rights to contribution as the Agent, and each person who controls the Company
within the meaning of either the Securities Act or the Exchange Act, each
officer of the Company who shall have signed the Registration Statement and each
director of the Company shall have the same rights to contribution as the
Company, subject in each case to the proviso to the first sentence of this
subsection (d). Any party entitled to contribution will, promptly after receipt
of notice of commencement of any action, suit or proceeding against such party
in respect of which a claim for contribution may be made against another party
or parties under this subsection (d), notify such party or parties from whom
contribution may be sought, but the omission to so notify such party or parties
shall not relieve the party or parties from whom contribution may be sought from
any other obligation it or they may have hereunder or otherwise than under this
subsection (d).
SECTION 8. Status of the Agent. In soliciting offers to purchase the
Securities from the Company pursuant to this Agreement (other than offers to
purchase pursuant to Section 11(a)), the Agent is acting solely as agent for the
Company and not as principal. The Agent will make reasonable efforts to assist
the Company in obtaining performance by each purchaser whose offer to purchase
Securities from the Company has been solicited by the Agent and accepted by the
Company but the Agent shall have no liability to the Company in the event any
such purchase is not consummated for any reason. If the Company shall default in
its obligations to deliver Securities to a purchaser whose offer it has
accepted, the Company shall (i) hold the Agent harmless against any loss, claim
or damage arising from or as a result of such default by the Company and (ii),
19
in particular, pay to the Agent any commission to which it would be entitled in
connection with such sale.
SECTION 9. Representations and Warranties to Survive Delivery. All
representations and warranties of the Company contained in this Agreement, or
contained in certificates of officers of the Company submitted pursuant hereto,
shall remain operative and in full force and effect, regardless of the
termination or cancellation of this Agreement or any investigation made by or on
behalf of the Agent or any person controlling the Agent or by or on behalf of
the Company, and shall survive each delivery of and payment for any of the
Securities.
SECTION 10. Termination. (a) This Agreement may be terminated for any
reason, at any time, by either party hereto upon the giving of one day's written
notice of such termination to the other party hereto. The provisions of Sections
3(c), 3(e), 3(f), 3(g), 4, 7, 8, 9, 13 and 14 hereof shall survive any
termination of this Agreement.
(b) Any Purchase Agreement entered into pursuant to Section 11(a) of this
Agreement (and this Agreement, only insofar as it relates to the Issue of
Securities identified in such Purchase Agreement) shall be subject to
termination in the absolute discretion of the Lead Manager, by notice given to
the Company at or prior to delivery of and payment for all the Securities, if,
prior to such time (i) trading in securities generally on The New York Stock
Exchange (the "NYSE") or the over-the-counter market shall have been suspended
or limited or minimum prices shall have been established on the NYSE or the
over-the-counter market, (ii) a banking moratorium shall have been declared
either by federal or New York State authorities, (iii) any new restriction
materially affecting the distribution of the Securities shall have become
effective; trading in any securities of the Company shall have been suspended or
halted by any national securities exchange, the National Association of
Securities Dealers, Inc. or the Securities and Exchange Commission, (iv) the
United States becomes engaged in hostilities or there is an escalation in
hostilities involving the United States or there is a declaration of a national
emergency or war by the United States, or (v) there shall have been such a
material adverse change in national or international political, financial or
economic conditions, national or international equity markets or currency
exchange rates or controls as to make it, in the judgment of the Lead Manager,
inadvisable or impracticable to proceed with the payment for and delivery of the
Securities. The provisions of Sections 3(c), 3(e), 3(f), 3(g), 4, 7, 8, 9, 13
and 14 hereof, solely in respect of the Issue of Securities identified in such
Purchase Agreement, shall survive any termination of the Purchase Agreement and
this Agreement.
SECTION 11. (a) Purchases as Principal. From time to time the Agent or one
or more additional financial institutions experienced in the distribution of
securities similar to the Securities (each a "Purchaser"), may agree with the
Company to purchase Securities from the Company as principal. Such agreement (a
"Purchase Agreement"), if with the Agent only, may be oral (in which case a
written confirmation of terms shall be delivered by the Agent to the Company) or
may be made in accordance with the terms of a separate written agreement to be
entered into between the Agent and/or the other Purchasers and the Company,
substantially in the form attached hereto as Exhibit C or in such other form as
the Company and the Agent and/or the other Purchasers may agree. Each Purchaser
executing a written Purchase Agreement shall become a party to this Agreement,
vested with all the authority, rights and powers and subject to all the duties
and obligations of the Agent when purchasing Securities as a principal, as if
20
originally named as an Agent ▇▇▇▇▇▇▇▇▇, but solely in connection with and for
the purposes of the Issue of Securities identified in such Purchase Agreement.
At the time of each purchase of Securities from the Company by the Agent or one
or more other Purchasers as principal, the Lead Manager, in its sole discretion,
shall specify the requirements for the officers' certificate, opinion of counsel
and comfort letter pursuant to Sections 7(b), 7(c) and 7(d) hereof.
(b) Additional Agents. Subject to Section 11(a) and notwithstanding Section
2(a) above, the Company may from time to time appoint one or more additional
financial institutions experienced in the distribution of securities similar to
the Securities (each such additional institution herein referred to as an
"Additional Agent") as agent(s) hereunder on an issue by issue basis, pursuant
to a letter (an "Agent Accession Letter") substantially in the form of Exhibit D
to this Agreement, whereupon each such Additional Agent shall, subject to the
terms and conditions of this Agreement and the Agent Accession Letter, become a
party to this Agreement as an agent, vested with all the authority, rights and
powers and subject to all the duties and obligations of an Agent as if
originally named as an Agent hereunder, but solely in connection with and for
the purposes of the Issue of Securities identified in such Agent Accession
Letter.
SECTION 12. Notices. Except as otherwise provided herein, all notices and
other communications hereunder shall be in writing and shall be deemed to have
been duly given if mailed or transmitted by any standard form of
telecommunication. Notices to the Agent shall be directed to it as follows:
▇▇▇▇▇▇ Brothers, Inc., 3 World Financial Center, New York, New York 10285,
Attention: Medium-Term Note Desk, notices to the Company shall be directed to it
as follows: ▇▇▇▇▇▇ Brothers Holdings Inc., 3 World Financial Center, New York,
New York 10285, Attention: Treasurer.
SECTION 13. Binding Effect; Benefits. This Agreement shall be binding upon
the Agent, the Company, and their respective successors. This Agreement and the
terms and provisions hereof are for the sole benefit of only those persons,
except that (a) the representations, warranties, indemnities and agreements of
the Company contained in this Agreement shall also be deemed to be for the
benefit of the person or persons, if any, who control the Agent within the
meaning of Section 15 of the Securities Act, and (b) the indemnity agreement of
the Agent contained in Section 7 hereof shall be deemed to be for the benefit of
directors of the Company, officers of the Company who have signed the
Registration Statement and any person controlling the Company. Nothing in this
Agreement is intended or shall be construed to give any person, other than the
person referred to in this Section, any legal or equitable right, remedy or
claim under or in respect of this Agreement or any provision contained herein.
SECTION 14. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of New York. This Agreement may be
executed in counterparts and the executed counterparts shall together constitute
a single instrument.
21
If the foregoing correctly sets forth our agreement, please
indicate your acceptance hereof in the space provided for that purpose below.
Very truly yours,
▇▇▇▇▇▇ BROTHERS HOLDINGS INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Title: Vice President
CONFIRMED AND ACCEPTED, as of the date first above written:
▇▇▇▇▇▇ BROTHERS INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------------------
Title: Senior Vice President
EXHIBIT A
▇▇▇▇▇▇ Brothers Holdings, Inc.
Schedule of Commissions
The Company agrees to pay the Agent a commission equal to the
following percentage of the principal amount of the Securities sold through the
Agent:
Medium-Term Notes, Series G
Due Nine Months or More from the Date of Issue
Term Commission Rate
9 months to less than 12 months All rates will be as negotiated at time
of sale; not to be less than .125% nor
more than .625% of the principal amount
12 months to less than 18 months
18 months to less than 2 years
2 years to less than 3 years
3 years to less than 4 years
4 years to less than 5 years
5 years to less than 7 years
7 years to less than 10 years
10 years and longer
EXHIBIT B
▇▇▇▇▇▇ Brothers Holdings Inc.
Medium-Term Notes, Series G
Due Nine Months or More from the Date of Issue
ADMINISTRATIVE PROCEDURES
I. General Procedures
Medium-Term Notes, Series G due nine months or more from the
date of issue (the "Medium-Term Notes"), (the Medium-Term Notes are herein
referred to as, the "Notes") are to be offered on a continuing basis by ▇▇▇▇▇▇
Brothers Holdings Inc. (the "Company"). ▇▇▇▇▇▇ Brothers Inc., as agent (the
"Agent"), has agreed to use its reasonable best efforts to solicit offers to
purchase the Notes. The Notes are being sold pursuant to an Amended and Restated
Distribution Agreement between the Company and the Agent dated July 26, 2001
(the "Distribution Agreement") to which these administrative procedures are
attached as an exhibit. Terms defined in the Distribution Agreement shall have
the same meaning when used in this exhibit.
Administrative responsibilities, document control and
record-keeping functions to be performed by the Company will be performed by its
Treasury Department. Administrative procedures for the offering are explained
below.
Each Note will be represented by a Global Security (as defined
hereinafter) delivered to the Trustee, as agent for the Depository Trust Company
("DTC"), and recorded in the book-entry system maintained by DTC (a "Book-Entry
Note"). An owner of a Book-Entry Note will not be entitled to receive a
certificate representing such Note. In connection with the qualification of the
Book-Entry Notes for eligibility in the book-entry system maintained by DTC, the
Trustee will perform the custodial, document control and administrative
functions described below, in accordance with its respective obligations under a
Letter of Representation from the Company and the Trustee to DTC dated as of the
date hereof and a Medium-Term Note Certificate Agreement between the Trustee and
DTC dated October 31, 1988, and its obligations as a participant in DTC,
including DTC's Same-Day Funds Settlement System ("SDFS") Except as otherwise
set forth in this Exhibit B, Book-Entry Notes will be issued in accordance with
the administrative procedures set forth below.
Price to Public
Each Note will be issued at 100% of principal amount,
unless otherwise determined by the Company.
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Date of Issuance
Each Note will be dated and issued as of the date of its
authentication by the Trustee.
Maturities
Each Note will mature on a Business Day (as defined below)
selected by the purchaser and agreed upon by the Company, such date being more
than nine months from the date of issuance.
"Business Day" shall mean (i) any day that is not a Saturday
or Sunday and that is not a day on which banking institutions in New York, New
York are authorized or obligated by law or executive order to be closed, and
(ii) in the case of LIBOR Notes (as defined in Appendix A), any day that is not
a Saturday or Sunday and that, in New York City, is not a day on which banking
institutions generally are authorized or obligated by law or executive order to
be closed and is a day on which dealings in deposits in U.S. dollars are
transacted, or with respect to any future date are expected to be transacted, in
the London interbank market.
Denominations
The Notes will be issued in the denomination of $1,000 and any
larger denomination which is an integral multiple of $1,000.
Registration
Notes will be issued only in fully registered form.
Interest Payments
Each Note bearing interest at a fixed rate will bear interest
from its issue date at the annual rate stated on the face thereof. Unless
otherwise indicated in the applicable Pricing Supplement, interest will be
payable on February l5 and August 15 of each year (the "Interest Payment Dates")
and at maturity. Interest will be calculated and paid on the basis of a 360-day
year of twelve 30-day months or, in the case of an incomplete month, the number
of days elapsed. Interest will be payable to the person in whose name such Note
is registered at the close of business on the February 1 or August 1, or such
other dates as set forth in the applicable Pricing Supplement (the "Record
Dates"), next preceding the respective Interest Payment Date; provided however,
that interest payable on a maturity date will be payable to the person to whom
principal shall be payable. The first payment of interest on any Note originally
issued between a Record Date and an Interest Payment Date will be made on the
Interest Payment Date following the next succeeding Record Date. All interest
payments (excluding interest payments made at maturity) will be made by wire
transfer by the Trustee or by check mailed by the Trustee to the person entitled
thereto as provided above.
On the fifth Business Day immediately preceding each Interest
Payment Date, the Trustee will notify the Company as to the total amount of the
interest payments to be made
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on such Interest Payment Date. The Trustee (or any duly selected paying agent)
will provide monthly to the Company's Treasury Department a list of the
principal and interest to be paid on Notes maturing in the next succeeding
month. The Company will provide to the Trustee not later than the payment date
sufficient moneys to pay in full all principal and interest payments due on such
payment date. The Trustee will assume responsibility for withholding taxes on
interest paid as required by law.
For special provisions relating to Floating Rate Notes, see
Appendix A hereto.
Acceptance and Rejection of Offers
The Company shall have the sole right to accept offers to
purchase Notes and may reject any such offer in whole or in part. The Agent
shall promptly communicate to the Company, orally or in writing, each reasonable
offer to purchase Notes from the Company received by it other than those
rejected by the Agent. The Agent shall have the right, in its discretion
reasonably exercised, without notifying the Company, to reject any offers in
whole or in part.
Settlement
The receipt of immediately available funds by the Company in
payment for a Note (less the applicable commission) and the authentication and
issuance of such Note shall, with respect to such Note, constitute "Settlement".
All offers accepted by the Company will be settled from one to five Business
Days from the date of acceptance by the Company pursuant to the timetable for
Settlement set forth below unless the Company and the purchaser agree to
Settlement on a later date; provided, however, that the Company will notify the
Trustee of any such later date on or before the Business Day immediately prior
to the Settlement date. Except as otherwise may be agreed to by the Company and
the Agent, no Settlement will occur between a Record Date and an Interest
Payment Date.
Settlement Procedures
In the event of a purchase of Notes by the Agent or another
Purchaser or Purchasers, as principal, appropriate Settlement details will be
set forth in the applicable Purchase Agreement to be entered into between the
Agent and the Company pursuant to the Distribution Agreement.
Settlement procedures with regard to each Note sold through
the Agent shall be as follows:
A. The Agent will advise the Company and the Trustee in writing, by telex or
facsimile, of the following Settlement information:
1. Exact name in which Note is to be registered ("Registered Owner").
2. Exact address of the Registered Owner and address for payment of
principal and interest, if any.
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3. Taxpayer identification number of the Registered Owner.
4. Principal amount of the Note (and, if multiple Notes are to be issued,
denominations thereof).
5. Settlement date.
6. Maturity date.
7. Interest rate:
a) Fixed Rate Notes:
i) interest rate
b) Floating Rate Notes:
i) base rate
ii) initial interest rate
iii) spread or spread multiplier, if any
iv) interest reset dates
v) interest payment dates
vi) index maturity
vii) maximum and minimum interest rates, if any.
8. If applicable, the date on or after which the Notes are redeemable at
the option of the Company and other terms of redemption.
9. If applicable, the date on or after which the Notes are terminable at
the option of the holder.
10. Agent's Commission (to be paid in the form of a discount from the
proceeds remitted to the Company upon Settlement).
B. The Company will confirm the above Settlement information to the Trustee by
telephone (confirmed in writing), telex or facsimile, and the Trustee will
assign a Note number to the transaction. If the Company rejects an offer,
the Company will promptly notify the Agent and the Trustee by telephone.
C. The Agent will deliver to the purchaser a copy of the most recent
Prospectus applicable to the Note with or prior to any written offer of
Notes and the confirmation and payment by the purchaser for the Note.
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Settlement Procedures Timetable
For offers accepted by the Company, Settlement procedures "A"
through "C" set forth above shall be completed, as applicable, to the extent
practicable on or before the respective times set forth below:
Settlement Procedure Time (New York City)
A 2 PM on date of sale
B 3 PM on date of sale
C 3 PM on the Settlement date
Fails
In the event that a purchaser of a Note shall either fail to
accept delivery of or make payment for a Note on the date fixed by the Company
for Settlement, the Agent will immediately notify the Trustee and the Company's
Treasurer by telephone, confirmed in writing, of such failure and return the
Note to the Trustee. Upon the Trustee's receipt of the Note from the Agent, the
Company will promptly return to the Agent an amount of immediately available
funds equal to any amount previously transferred to the Company in respect of
the Note pursuant to advances made by the Agent. Such returns will be made on
the Settlement date, if possible, and in any event not later than 12 noon (New
York City time) on the Business Day following the Settlement date. The Company
will reimburse the Agent on an equitable basis for its loss of the use of the
funds during the period when the funds were credited to the account of the
Company. Upon receipt of the Note in respect of which the default occurred, the
Trustee will mark the Note "cancelled", make appropriate entries in its records
and deliver the Note to the Company with an appropriate debit advice. The Agent
will not be entitled to any commission with respect to any Note which the
purchaser does not accept or make payment for.
Maturity
Upon presentation of each Note at maturity the Trustee (or any
duly appointed Paying Agent) will pay the principal amount thereof, together
with accrued interest due at maturity. Such payment shall be made in immediately
available funds, provided that the Note is presented to the Trustee (or any such
Paying Agent) in time for the Trustee (or such Paying Agent) to make payments in
such funds in accordance with its normal procedures. The Company will provide
the Trustee (and any such Paying Agent) with funds available for immediate use
for such purpose. Notes presented at maturity will be cancelled by the Trustee
as provided in the Indenture.
Procedure for Rate Changes
The Company will establish interest rates from time to time
for the Notes then being offered and when a decision has been reached to change
the interest rates of the Notes being sold by the Company, the Company will
promptly advise the Agent, which will forthwith
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suspend solicitation of offers. The Agent will telephone the Company with
recommendations as to the changed interest rates.
Suspension of Solicitation; Amendment or Supplement
If, at any time when a prospectus relating to the Securities
is required to be delivered under the Act, any event occurs as a result of which
the Prospectus would include an untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus to comply with the Act, the
Company will notify the Agent promptly to suspend solicitation of purchases of
the Securities and the Agent shall suspend its solicitations of purchases of
securities; and if the Company shall decide to amend or supplement the
Registration Statement or the Prospectus, it will promptly advise the Agent by
telephone (with confirmation in writing) and will promptly prepare and file with
the Commission an amendment or supplement which will correct such statement or
omission or an amendment which will effect such compliance and will use its
reasonable best efforts to cause any amendment of the Registration Statement
containing an amended Prospectus to be made effective as soon as possible. Upon
the Agent's receipt of such amendment or supplement and advice from the Company
that solicitations may be resumed, the Agent will resume solicitations of
purchases of the Securities.
In addition, subject to its representations, warranties and
covenants contained in the Distribution Agreement, the Company may instruct the
Agent to suspend solicitation of offers to purchase at any time for a period of
time or permanently. Upon receipt of such instructions the Agent will forthwith
(but in any event within one Business Day) suspend solicitation of offers to
purchase from the Company until such time as the Company has advised it that
solicitation of offers to purchase may be resumed. If the Company decides to
amend or supplement the Registration Statement or the Prospectus relating to the
Notes (other than to change interest rates), it will promptly advise the Agent
and the Trustee and will furnish the Agent and the Trustee with copies of the
proposed amendment or supplement.
In the event that at the time the Agent, at the direction of
the Company, suspends solicitation of offers to purchase from the Company there
shall be any orders outstanding which have not been settled, the Company will
promptly advise the Agent and the Trustee whether such orders may be settled and
whether copies of the Prospectus as theretofore amended or supplemented as in
effect at the time of the suspension may be delivered in connection with the
Settlement of such orders. The Company will have the sole responsibility for
such decision and for any arrangements which may be made in the event that the
Company determines that such orders may not be settled or that copies of such
Prospectus may not be so delivered.
Delivery of Prospectus
The Agent will provide a copy of the relevant Prospectus,
appropriately amended or supplemented, which must accompany or precede each
written offer of a Note, if any, by the Agent, each written confirmation of a
sale sent to a purchaser or his agent by the Agent and each Note delivered to a
purchaser or his agent.
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Authenticity of Signatures
The Company will cause the Trustee to furnish the Agent from
time to time with the specimen signatures of each of the Trustee's officers,
employees and agents who have been authorized by the Trustee to authenticate
Notes, but the Agent will have no obligation or liability to the Company or the
Trustee in respect of the authenticity of the signature of any officer, employee
or agent of the Company or the Trustee on any Note.
Advertising Costs
The Company will determine with the Agent the amount and
nature of advertising that may be appropriate in offering the Notes. Advertising
expenses in connection with solicitation of offers to purchase Notes from the
Company will be paid by the Company.
II. Special Administrative Procedures for Book-Entry Notes
Issuance:
On any date of settlement (as defined under "Settlement" below) for
one or more Fixed Rate Book-Entry Notes, the Company will issue a single
global security in fully registered form without coupons (a "Global
Security") representing up to each $400,000,000 principal amount of all of
such Notes that have the same original issuance date, interest rate,
optional redemption dates and Stated Maturity. Similarly, on any settlement
date for one or more Floating Rate Book-Entry Notes, the Company will issue
a single Global Security representing up to each $400,000,000 principal
amount of all of such Notes that have the same interest rate basis,
original issuance date, Initial Interest Rate, Interest Payment Dates,
Index Maturity, Spread, Spread Multiplier, minimum interest rate (if any),
maximum interest rate (if any), optional redemption dates (if any), Stated
Maturity and other terms. Each Global Security will be dated and issued as
of the date of its authentication by the Trustee. No Global Security will
represent both Fixed Rate and Floating Rate Book-Entry Notes.
Identification Numbers:
The Company will arrange, on or prior to commencement of a program for the
offering of Book-Entry Notes, with the CUSIP Service Bureau of Standard &
Poor's Credit Market Services (the "CUSIP Service Bureau") for the
reservation of a series of CUSIP numbers (including tranche numbers),
consisting of approximately 900 CUSIP numbers and relating to Global
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Securities representing the Book-Entry Notes. The Company has or will
obtain from the CUSIP Service Bureau a written list of such series of
reserved CUSIP numbers and will deliver to the Trustee and DTC such written
list of 900 CUSIP numbers of such series. The Trustee will assign CUSIP
numbers to Global Securities as described below under Settlement Procedure
"B". The Company will notify the CUSIP Service Bureau periodically of the
CUSIP numbers that the Trustee has assigned to Global Securities. The
Trustee will notify the Company at any time when fewer than 100 of the
reserved CUSIP numbers remain unassigned to Global Securities, and if it
deems necessary, the Company will reserve additional CUSIP numbers for
assignment to Global Securities representing Book-Entry Notes. Upon
obtaining such additional CUSIP numbers the Company shall deliver such
additional CUSIP numbers to the Trustee and DTC.
Registration
Each Global Security will be registered in the name of Cede & Co., as
nominee for DTC, on the Securities Register maintained under the Indenture.
The beneficial owner of a Book-Entry Note (or one or more indirect
participants in DTC designated by such owner) will designate one or more
participants in DTC (with respect to such Note, the "Participants") to act
as agent or agents for such owner in connection with the book-entry system
maintained by DTC, and DTC will record in book-entry form, in accordance
with instructions provided by such Participants, a credit balance with
respect to such Note in the account of such Participants. The ownership
interest of such beneficial owner in such Note will be recorded through the
records of such Participants or through the separate records of such
Participants and one or more indirect participants in DTC.
Transfers:
Transfers of a Book-Entry Note will be accomplished by book entries made by
DTC and, in turn, by Participants (and in certain cases, one or more
indirect participants in DTC) acting on behalf of beneficial transferors
and transferees of such Note.
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Consolidation and Exchange:
The Trustee may deliver to DTC and the CUSIP Service Bureau at any time a
written notice of consolidation specifying (i) the CUSIP number of two or
more Outstanding Global Securities that represent (A) Fixed Rate Book-Entry
Notes having the same interest rate, optional redemption dates (if any) and
Stated Maturity and with respect to which interest has been paid to the
same date or (B) Floating Rate Book-Entry Notes having the same interest
rate basis, optional redemption dates (if any), Initial Interest Rate,
Interest Payment Dates, Index Maturity, Spread or Spread Multiplier,
minimum interest rate (if any), maximum interest rate (if any) and with
respect to which interest has been paid to the same date, (ii) a date,
occurring at least thirty days after such written notice is delivered and
at least thirty days before the next Interest Payment Date for such
Book-Entry Notes, on which such Global Securities shall be exchanged for a
single replacement Global Security and (iii) a new CUSIP number, obtained
from the Trustee, to be assigned to such replacement Global Security. Upon
receipt of such a notice, DTC will send to its participants (including the
Trustee) a written reorganization notice to the effect that such exchange
will occur on such date. Prior to the specified exchange date, the Trustee
will deliver to the CUSIP Service Bureau a written notice setting forth
such exchange date and the new CUSIP number and stating that, as of such
exchange date, the CUSIP numbers of the Global Securities to be exchanged
will no longer be valid. On the specified exchange date, the Trustee will
exchange such Global Securities for a single Global Security bearing a new
CUSIP number and dated the last Interest Payment Date to which interest has
been paid or duly provided for on the exchanged Global Securities, and the
CUSIP numbers of the exchanged Global Securities will, in accordance with
CUSIP Service Bureau procedures, be cancelled and not immediately
reassigned. Notwithstanding the foregoing, if the Global Securities to be
exchanged exceed $400,000,000 in aggregate principal amount, one Global
Security will be authenticated and issued to represent each $400,000,000 of
principal amount of the exchanged Global Securities and an additional
Global Security will be authenticated and issued to represent any remaining
principal amount of such Global Securities (see "Denominations" below).
Maturities:
Each Book-Entry Note will mature on a date not less than nine months after
the settlement date for such Note. A Floating Rate Book Entry Note will
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mature only on an Interest Payment Date for such Note.
Denominations:
Book-Entry Notes will be issued in principal amounts of $1,000 or any
amount in excess thereof that is an integral multiple of $1,000. Global
Securities will be denominated in principal amounts not in excess of
$400,000,000. If one or more Book-Entry Notes having an aggregate principal
amount in excess of $400,000,000 would, but for the preceding sentence, be
represented by a single Global Security, then one Global Security will be
issued to represent each $400,000,000 principal amount of such Book-Entry
Note or Notes and an additional Global Security will be issued to represent
any remaining principal amount of such Book-Entry Note or Notes. In such a
case, each of the Global Securities representing such Book-Entry Note or
Notes shall be assigned the same CUSIP number.
Interest:
General. Interest on each Book-Entry Note will accrue from and including
the last Interest Payment Date, except in the case of Floating Rate Notes
which reset daily or weekly. Each payment of interest on a Book-Entry Note
will include interest accrued through the day preceding, as the case may
be, the Interest Payment Date or Maturity, except in the case of Floating
Rate Book-Entry Notes which reset daily or weekly. In the case of Floating
Rate Book-Entry Notes which reset daily or weekly, interest payments will
include accrued interest from and including the original issuance date or
from and including the last date in respect of which interest has been
paid, as the case may be, to, and including the Record Date immediately
preceding the applicable Interest Payment Date, provided that at Maturity
the interest payable will include interest accrued from and including the
original issuance date or from and including the last date in respect of
which interest has been paid through the day preceding Maturity. Interest
payable at the Maturity of a Book-Entry Note will be payable to the Person
to whom the principal of such Note is payable. Standard & Poor's Credit
Market Services will use the information received in the pending deposit
message described under Settlement Procedure "C" below in order to include
the amount of any interest payable and certain other information regarding
the related Global Security in the appropriate weekly bond report published
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by Standard & Poor's Credit Market Services.
Promptly after each Interest Determination Date (as defined in Appendix A
hereto) for Floating Rate Notes, the Calculation Agent will notify the
Trustee after confirmation with the Company, and the Trustee in turn will
notify Standard & Poor's Credit Market Services, of the interest rates
determined on such Interest Determination Date.
Payments of Principal and Interest:
Payments of Interest Only. Promptly after each Regular Record Date, the
Trustee will deliver to the Company and DTC a written notice specifying by
CUSIP number the amount of interest to be paid on each Global Security on
the following Interest Payment Date (other than an Interest Payment Date
coinciding with Maturity) and the total of such amounts. DTC will confirm
the amount payable on each Global Security on such Interest Payment Date by
reference to the daily bond reports published by Standard & Poor's Credit
Market Services. The Company will pay to the Trustee, as paying agent, the
total amount of interest due on such Interest Payment Date (other than at
Maturity), and the Trustee will pay such amount to DTC at the times and in
the manner set forth below under "Manner of Payment".
Payments at Maturity. On or about the first Business Day of each month, the
Trustee will deliver to the Company and DTC a written list of principal and
interest to be paid on each Global Security maturing in the following
month. The Company, the Trustee and DTC will confirm the amounts of such
principal and interest payments with respect to each such Global Security
on or about the fifth Business Day preceding the Maturity of such Global
Security, except for Notes with a daily reset period in which case the
Company, the Trustee and DTC will confirm the amount of the principal
payable with respect to each such Global Security on or about the fifth
Business Day preceding Maturity and the amount of interest payable with
respect to such Global Security two Business Days preceding the Maturity of
such Global Security. The Company will pay to the Trustee, as the paying
agent, the principal
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amount of such Global Security, together with interest due at such
Maturity. The Trustee will pay such amount to DTC at the times and in the
manner set forth below under "Manner of Payment".
Promptly after payment to DTC of the principal and interest due at the
Maturity of such Global Security, the Trustee will cancel such Global
Security and deliver it to the Company with an appropriate debit advice.
Manner of Payment. The total amount of any principal and interest due on
Global Securities on any Interest Payment Date or at Maturity shall be paid
by the Company to the Trustee in funds available for use by the Trustee as
of 9:30 A.M. (New York City time) on such date. The Company will make such
payment on such Global Securities by instructing the Trustee to withdraw
funds from an account maintained by the Company at the Trustee. The Company
will confirm such instructions in writing to the Trustee. For maturity,
redemption or any other principal payments: prior to 10 A.M. (New York City
time) on such date or as soon as possible thereafter, the Trustee will make
such payments to DTC in same day funds in accordance with DTC's Same Day
Funds Settlement Paying Agent Operating Procedures. For interest payments:
the Trustee will make such payments to DTC in accordance with existing
arrangements between DTC and the Trustee. DTC will allocate such payments
to its participants in accordance with its existing operating procedures.
Neither the Company nor the Trustee shall have any direct responsibility or
liability for the payment by DTC to such Participants of the principal of
and interest on the Book-Entry Notes.
Withholding Taxes. The amount of any taxes required under applicable law to
be withheld from any interest payment on a Book-Entry Note will be
determined and withheld by the Participant, indirect participant in DTC or
other Person responsible for forwarding payments and materials directly to
the beneficial owner of such Note.
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Acceptance and Rejection of Offers:
Unless otherwise instructed by the Company, the Agent will advise the
Company promptly by telephone of all offers to purchase Book-Entry Notes
received by the Agent, other than those rejected by it in whole or in part
in the reasonable exercise of its discretion. Unless otherwise agreed by
the Company and each of the Agent, the Company has the sole right to accept
offers to purchase Book-Entry Notes and may reject any such offer in whole
or in part.
Settlement:
The receipt by the Company of immediately available funds in payment for a
Book-Entry Note and the authentication and issuance of the Global Security
representing such Note shall constitute "settlement" with respect to such
Note. All orders accepted by the Company will be settled from one to five
Business Days from the date of acceptance by the Company pursuant to the
timetable set forth below unless the Company and the purchaser agree to
settlement on a later date.
Settlement Procedures:
Settlement Procedures with regard to each Book-Entry Note sold by the
Company through the Agent, as agent, shall be as follows:
A. The Agent will advise the Company and the Trustee in writing, by telex
or facsimile, the following Settlement information:
1. Exact name in which Note is to be registered ("Registered Owner").
2. Exact address of the Registered Owner and address for payment of
principal and interest, if any.
3. Taxpayer identification number of the Registered Owner.
4. Principal amount of the Note (and, if multiple Notes are to be issued,
denominations thereof)
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5. Settlement date.
6. Maturity date.
7. Interest rate:
(a) Fixed Rate Notes
(i) interest rate
(b) Floating Rate Notes:
(i) base rate
(ii) initial interest rate
(iii) interest reset period or interest reset dates
(iv) interest payment dates
(v) index maturity
(vi) maximum and minimum interest rates, if any.
(vii) spread or spread multiplier, if any
8. If applicable, the date on or after which the Notes are redeemable at
the option of the Company and other terms of redemption.
9. If applicable, the date on or after which the Notes are terminable at
the option of the holder.
10. Agent's Commission (to be paid in the form of a discount from the
proceeds remitted to the Company upon Settlement).
B. The Company will confirm the above Settlement information to the Trustee by
telephone (confirmed in writing), telex or facsimile, and the Trustee will
assign a Note number to the transaction. If the Company rejects an offer,
the Company will promptly notify the Agent and the Trustee by telephone.
C. The Company shall communicate with the Trustee and Agent and each such
communication by the Company shall constitute a representation and warranty
by the Company to the Trustee and
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the Agent that (i) such Note is then, and
at the time of issuance and sale thereof will be, duly authorized for
issuance and sale by the Company, (ii) such Note, and the Global Security
representing such Note, will conform with the terms of the Indenture
pursuant to which such Note and Global Security, are issued and (iii) upon
authentication and delivery of such Global Security, the aggregate initial
offering price of all Notes issued under the Indenture will not exceed $
24,820,000,000.
D. The Trustee will assign a CUSIP number to the Global Security representing
such Note and then advise the Company by telephone (confirmed in writing at
any time on the same date) or electronic transmission of such CUSIP number.
E. The Trustee will enter a pending deposit message through DTC's Participant
Terminal System, providing the following settlement information to DTC, the
Agent and Standard & Poor's Credit Market Services:
1. The information set forth in Settlement Procedure "A".
2. Identification as a Fixed Rate Book-Entry Note or a Floating Rate
Book-Entry Note.
3. Initial Interest Payment Date for such Note, number of days by which
such date succeeds the related "DTC Record Date" (which term means the
Regular Record Date except in the case of Floating Rate Notes which
reset daily and weekly in which case it means the date 5 calendar days
immediately preceding the Interest Payment Date) and amount of
interest per $1,000 principal amount payable on such Interest Payment
Date.
4. Frequency of interest payments (monthly, semiannually, quarterly,
etc.).
5. CUSIP number of the Global Security representing such Note.
6. Whether such Global Security will represent any other Book-Entry Note
(to the extent known at such time).
F. The Trustee will complete the preprinted Global Security representing such
Note, the form of which was previously
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approved by the Company, the Agent and the Trustee.
G. The Trustee will authenticate the Global Security representing such Note.
H. DTC will credit such Note to the Trustee's participant account at DTC.
I. The Trustee will enter an SDFS deliver order through DTC's Participant
Terminal System instructing DTC to (i) debit such Note to the Trustee's
participant account and credit such Note to the Agent's participant account
and (ii) debit the Agent's settlement account and credit the Trustee's
settlement account for an amount equal to the price of such Note less the
Agent's commission. The entry of such a deliver order shall constitute a
representation and warranty by the Trustee to DTC that (i) the Global
Security representing such Book-Entry Note has been issued and
authenticated and (ii) the Trustee is holding such Global Security pursuant
to the Medium-Term Note Certificate Agreement between the Trustee and DTC
(the "Certificate Agreement").
J. The Agent will enter an SDFS deliver order through DTC's Participant
Terminal System instructing DTC (i) to debit such Note to the Agent's
participant account and credit such Note to the participant accounts of the
Participants with respect to such Note and (ii) to debit the settlement
accounts of such Participants and credit the settlement account of the
Agent for an amount equal to the price of such Note.
K. Transfers of funds in accordance with SDFS deliver orders described in
Settlement Procedures "I" and "J" will be settled in accordance with SDFS
operating procedures in effect on the settlement date.
L. The Trustee will credit to an account of the Company maintained at the
Trustee funds available for immediate use in the amount transferred to the
Trustee in accordance with Settlement Procedure "I".
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M. Monthly, the Trustee will send to the Company a statement setting forth the
principal amount of Book-Entry Notes Outstanding as of that date under the
Indenture and setting forth a brief description of any sales of which the
Company has advised the Trustee but which have not yet been settled.
N. The Agent will deliver to the purchaser a copy of the most recent
Prospectus applicable to the Note with or prior to any written offer of
Notes and the confirmation and payment by the purchaser of the Note.
The Agent will confirm the purchase of such Note to the purchaser either by
transmitting to the Participants with respect to such Note a confirmation
order or orders through DTC's institutional delivery system or by mailing a
written confirmation to such purchaser.
Settlement Procedures Timetable:
For orders of Book-Entry Notes solicited by the Agent, as agent, and
accepted by the Company for settlement on the first Business Day after the
sale date, Settlement Procedures "A" through "N" set forth above shall be
completed as soon as possible but not later than the respective times (New
York City time) set forth below:
Settlement
Procedure Time
A-C 11:00 A.M. on the sale date
D,E 2:00 P.M. on the sale date
F 9:00 A.M. on settlement date
G,H 10:00 A.M. on settlement date
I,J 2:00 P.M. on settlement date
K 4:45 P.M. on settlement date
18
L,N 5:00 P.M. on settlement date
If a sale is to be settled more than one Business Day after the sale date,
Settlement Procedures "A", "B", "C", "D" and "E" shall be completed as soon
as practicable but no later than the times specified above on the first
Business Day after the sale date. If the initial interest rate for a
Floating Rate Book-Entry Note has not been determined at the time that
Settlement Procedure "A" is completed, Settlement Procedures "B", "C", "D"
and "E" shall be completed as soon as such rate has been determined but no
later than the times specified above on the second Business Day before the
settlement date. Settlement Procedure "K" is subject to extension in
accordance with any extension of Fedwire closing deadlines and in the other
events specified in the SDFS operating procedures in effect on the
settlement date.
If settlement of a Book-Entry Note is rescheduled or cancelled, the Trustee
will deliver to DTC, through DTC's Participant Terminal System, a
cancellation message to such effect by no later than 2:00 P.M. on the
Business Day immediately preceding the scheduled settlement date.
Failure to Settle:
If the Trustee has not entered an SDFS delivery order with respect to a
Book-Entry Note pursuant to Settlement Procedure "I", the Trustee shall
immediately notify the Company thereof. Thereafter, upon written request of
the Company (which may be evidenced by facsimile transmission), the Trustee
shall deliver to DTC, through DTC's Participant Terminal System, as soon as
practicable a withdrawal message instructing DTC to debit such Note to the
Trustee's participant account. DTC will process the withdrawal message,
provided that the Trustee's participant account contains a principal amount
of the Global Security representing such Note that is at least equal to the
principal amount to be debited. If a withdrawal message is processed with
respect to all the Book-Entry Notes represented by a Global Security, the
Trustee will mark such Global Security "cancelled", make appropriate
entries in the Trustee's records and send such cancelled Global Security to
the Company. The CUSIP number assigned to such Global
19
Security shall, in accordance with CUSIP Service Bureau procedures, be
cancelled and not immediately reassigned. If a withdrawal message is
processed with respect to one or more, but not all, of the Book-Entry Notes
represented by a Global Security, the Trustee will exchange such Global
Security for two Global Securities, one of which shall represent such
Book-Entry Note or Notes and shall be cancelled immediately after issuance
and the other of which shall represent the other Book-Entry Notes
previously represented by the surrendered Global Security and shall bear
the CUSIP number of the surrendered Global Security.
If the purchase price for any Book-Entry Note is not timely paid to any
Participant with respect to such Note by the beneficial purchaser thereof
(or a Person, including an indirect participant in DTC, acting on behalf of
such purchaser), such Participant may enter a deliver order through DTC's
Participant Terminal System debiting such Note to such Participant's
participant account and crediting such Note free to the participant account
of the Trustee and shall notify the Trustee and the Company thereof.
Thereafter, the Trustee, (i) will immediately notify the Company thereof,
once the Trustee has confirmed that such Note has been credited to its
participant account, and the Company shall immediately transfer by Fedwire
(immediately available funds) to such Participant an amount equal to the
price of such Note which was previously credited to the account of the
Company maintained at the Trustee in accordance with Settlement Procedure
"L" and (ii) the Trustee will deliver the withdrawal message and take the
related actions described in the preceding paragraph.
Notwithstanding the foregoing, upon any failure to settle with respect to a
Book-Entry Note, DTC may take any actions in accordance with its SDFS
operating procedures then in effect. In the event of a failure to settle
with respect to one or more, but not all, of the Book-Entry Notes to have
been represented by a Global Security, the Trustee will provide, in
accordance with Settlement Procedures "F" and "G", for the authentication
and issuance of a Global Security representing the other Book-Entry Notes
to have been represented by such Global Security
20
and will make appropriate entries in its records.
APPENDIX A
Special Provisions Relating
to Floating Rate Notes
Interest Rate:
Interest on Floating Rate Notes will be determined by reference to an
"Interest Rate Basis", which shall be the "CD Rate" ("CD Rate Notes"), the
"Commercial Paper Rate" ("Commercial Paper Rate Notes"), the "Federal Funds
Rate" ("Federal Funds Rate Notes"), "LIBOR" ("LIBOR Notes"), the "Treasury
Rate" ("Treasury Rate Notes"), the "Prime Rate" ("Prime Rate Notes"), the
"▇.▇. ▇▇▇▇▇ ▇▇▇▇" ("▇.▇. ▇▇▇▇▇ ▇▇▇▇ Notes") the "Eleventh District Cost of
Funds Rate" ("Eleventh District Cost of Funds Rate Notes") or such other
interest rate formula as may be designated in a Pricing Supplement, based
upon the Index Maturity and adjusted by a Spread or Spread Multiplier, if
any, as specified in the applicable Pricing Supplement setting forth the
terms of each issuance of Notes (the "Pricing Supplement"). The "Index
Maturity" is the particular maturity of the type of instrument or
obligation from which the Interest Rate Basis is calculated (e.g., in the
case of commercial paper, 30-day rather than 90-day commercial paper). The
"Spread" is the number of basis points (100 basis points equals one
percent) above or below the Interest Rate Basis applicable to such Floating
Rate Note, and the "Spread Multiplier" is the percentage of the Interest
Rate Basis applicable to the interest rate for such Floating Rate Note. The
Spread, Spread Multiplier, Index Maturity and other variable terms as
described below are subject to change by the Company from time to time, but
no such change will affect any Floating Rate Note theretofore issued or as
to which an offer has been accepted by the Company.
A Floating Rate Note may also have either or both of the following: (i) a
maximum limit, or ceiling ("Maximum Interest Rate"), on the rate of
interest which may apply during any Interest Period (as defined below) and
(ii) a minimum limit, or floor ("Minimum Interest Rate"), on the rate of
interest which may apply during any Interest Period. In addition to any
Maximum Interest Rate which may be applicable to any Floating Rate Note
pursuant to the above provisions, the interest rate on the Floating Rate
Notes will in no event be higher than the maximum rate permitted by New
York law, as the same may be modified by
United States law of general application. Under present New York law, the
maximum rate of interest is 25% per annum on a simple interest basis. The
limit may not apply to Floating Rate Notes in which $2,500,000 or more has
been invested.
The applicable Pricing Supplement will specify for each Floating Rate Note
the following terms: Interest Rate Basis, optional redemption dates (if
any), rate of interest for the initial Interest Period (the "Initial
Interest Rate"), Issue Date, Interest Determination Dates (as defined
below), Interest Reset Dates (as defined below), Interest Payment Dates (as
defined below), Index Maturity, Maturity Date, Maximum Interest Rate and
Minimum Interest Rate, if any, and the Spread or Spread Multiplier, if any.
Interest Payment Dates:
Unless otherwise indicated in the applicable Pricing Supplement, interest
on Floating Rate Notes will be payable as set forth in the Basic
Prospectus, as supplemented by the prospectus supplement dated June 14,
2001 relating to the Medium-Term Notes (the "MTN Prospectus") Each date on
which interest is payable on a Floating Rate Note is referred to herein as
an "Interest Payment Date."
Interest Reset Date:
Unless otherwise indicated in the applicable Pricing Supplement, the rate
of interest on each Floating Rate Note will be reset as provided in the MTN
Prospectus (each date an "Interest Reset Date").
Interest Determination Date:
Unless otherwise indicated in the applicable Pricing Supplement, the
"Interest Determination Date" pertaining to an Interest Reset Date for a
Floating Rate Note shall be as set forth in the MTN Prospectus.
CD Rate Notes:
A CD Rate Note will bear interest at the interest rate (calculated with
reference to the CD Rate and the Spread or Spread Multiplier, if any)
specified in the CD Rate Note and in the
applicable Pricing Supplement.
23
Unless otherwise indicated in the applicable Pricing Supplement, the "CD
Rate" shall be calculated as set forth in the MTN Prospectus.
Commercial Paper Rate Notes:
A Commercial Paper Rate Note will bear interest at the interest rate
(calculated with reference to the Commercial Paper Rate and the Spread or
Spread Multiplier, if any) specified in the Commercial Paper Rate Note and
in the applicable Pricing Supplement.
Unless otherwise indicated in the applicable Pricing Supplement, the
"Commercial Paper Rate" shall be calculated as set forth in the MTN
Prospectus.
Federal Funds Rate Notes:
A Federal Funds Rate Note will bear interest at the interest rate
(calculated with reference to the Federal Funds Rate and the Spread or
Spread Multiplier, if any) specified in the Federal Funds Rate Note and in
the applicable Pricing Supplement.
Unless otherwise indicated in the applicable Pricing Supplement, the
"Federal Funds Effective Rate" shall be calculated as set forth in the MTN
Prospectus.
LIBOR Notes:
A LIBOR Note will bear interest at the interest rate (calculated with
reference to LIBOR and the Spread or Spread Multiplier, if any) specified
in the LIBOR Note and in the applicable Pricing Supplement.
Unless otherwise indicated in the applicable Pricing Supplement, LIBOR
shall be calculated as set forth in the MTN Prospectus.
24
Treasury
Rate Notes: A Treasury Rate Note will bear interest at the interest rate
(calculated with reference to the Treasury Rate and the Spread or Spread
Multiplier, if any) specified in the Treasury Rate Note and in the
applicable Pricing Supplement.
Unless otherwise indicated in the applicable Pricing Supplement, the
"Treasury Rate" shall be calculated as set forth in the MTN Prospectus.
Prime Rate Notes:
A Prime Rate Note will bear interest at the interest rate (calculated with
reference to the Prime Rate and the Spread or Spread Multiplier, if any)
specified in the Prime Rate Note and in the applicable Pricing Supplement.
Unless otherwise indicated in the applicable Pricing Supplement, the "Prime
Rate" shall be calculated as set forth in the MTN Prospectus.
▇.▇. ▇▇▇▇▇ ▇▇▇▇ Notes:
A ▇.▇. ▇▇▇▇▇ ▇▇▇▇ Note will bear interest at the interest rate (calculated
with reference to the ▇.▇. ▇▇▇▇▇ ▇▇▇▇ and the Spread or Spread Multiplier,
if any) specified in the ▇.▇. ▇▇▇▇▇ ▇▇▇▇ Note and in the applicable Pricing
Supplement.
Unless otherwise indicated in the applicable Pricing Supplement, the "▇.▇.
▇▇▇▇▇ ▇▇▇▇" shall be calculated as set forth in the MTN Prospectus.
Eleventh District Cost of Funds Rate Notes:
A Eleventh District Cost of Funds Rate Note will bear interest at the
interest rate (calculated with reference to the Eleventh District Cost of
Funds Rate and the Spread or Spread Multiplier, if any) specified in the
Eleventh District Cost of Funds Rate Note and in the applicable Pricing
Supplement.
25
Unless otherwise indicated in the applicable Pricing Supplement, the
"Eleventh District Cost of Funds Rate" shall be calculated as set forth in
the MTN Prospectus.
Record Dates:
Unless otherwise indicated in the applicable Pricing Supplement, interest
payments on Floating Rate Notes will be made on the Interest Payment Dates
to the registered owners at the close of business on the date 15 calendar
days prior to such Interest Payment Date (the "Regular Record Date").
Interest payable at maturity will be paid to the same person to whom
principal is payable. Interest will begin to accrue (except in the case of
Floating Rate Notes which reset daily or weekly) on the Issue Date of a
Note for the first interest period and from and including the last Interest
Payment Date. Each payment of interest (except in the case of Floating Rate
Notes which reset daily or weekly) shall include interest accrued from and
including the next preceding Interest Payment Date in respect of which
interest has been paid (or, if none, from and including the Issue Date) to
but excluding the next Interest Payment Date (an "Interest Period"). In the
case of Floating Rate Notes that reset daily or weekly, interest payments
will include accrued interest from and including the Issue Date or from and
including the last date in respect of which interest has been paid, as the
case may be, to, and including the Regular Record Date immediately
preceding the applicable Interest Payment Date, providing that at maturity
the interest payable will include interest accrued from and including the
Issue Date or from and including the last date in respect of which interest
has been paid, as the case may be, to, but excluding, the date of maturity.
The initial interest payment on Notes issued between a Regular Record Date
and the Interest Payment Date immediately following such Regular Record
Date will be made on the second Interest Payment Date following such issue
(however, except as may otherwise be agreed to by the Company and the
Agent, no Floating Rate Notes will be sold between a Regular Record Date
and an Interest Payment Date).
Accrued Interest:
Unless otherwise indicated in the applicable Pricing Supplement, accrued
interest shall be calculated as set forth in the MTN Prospectus.
EXHIBIT C
▇▇▇▇▇▇ BROTHERS HOLDINGS INC.
Medium-Term Notes, Series G
Due Nine Months or More from the Date of Issue
PURCHASE AGREEMENT
______________ ___, 20___
▇▇▇▇▇▇ Brothers Holdings Inc.
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
▇▇▇▇▇▇ Brothers Holdings Inc., a Delaware corporation (the "Company"),
has previously entered into an Amended and Restated Distribution Agreement dated
July 26, 2001 (the "Distribution Agreement"), between the Company and ▇▇▇▇▇▇
Brothers Inc. (the "Agent"), with respect to the issue and sale by the Company
of its Medium Term Notes, Series G ("Securities"), pursuant to an Indenture
dated as of September 1, 1987, as amended by a First Supplemental Indenture,
dated as of November 25, 1987, a Second Supplemental Indenture, dated as of
November 27, 1990, a Third Supplemental Indenture, dated as of September 13,
1991, a Fourth Supplemental Indenture, dated as of October 4, 1993, a Fifth
Supplemental Indenture, dated as of October 1, 1995, and a Sixth Supplemental
Indenture, dated as of June 26, 1997, between the Company and Citibank, N.A., as
Trustee. The Distribution Agreement permits the Company to enter into an
agreement with the Agent and/or one or more additional persons to purchase
Securities as principals.
[The undersigned] [Each of the purchasers identified on Schedule I
attached hereto] ([the][each a] "Purchaser") agrees[, severally and not
jointly,] to purchase, at the purchase price (equal to the Issue Price less the
Agents' Commission) set forth in the Pricing Supplement dated __________, 20__,
attached as Schedule II hereto (the "Pricing Supplement"), [$_________ principal
amount][the principal amount] of Securities described below [set forth next on
Schedule I attached hereto].
The Securities have the terms set forth in the Pricing Supplement.
Each Purchaser's obligation to purchase Securities hereunder is subject
to the accuracy, as of the Settlement Date, of your representations and
warranties contained in the Distribution Agreement and to your performance and
observance of all applicable covenants and agreements contained therein, and the
satisfaction of all conditions precedent contained therein, including, without
2
limitation, those pursuant to Sections 5, 6 and 7 thereof. Each Purchaser's
obligation to purchase Securities hereunder is subject to the further condition
precedent that the Company shall have furnished to each Purchaser copies of the
most recent documents (including any prior documents referred to therein)
previously delivered to the Agent pursuant to Sections 5 and 6 of the
Distribution Agreement and such further information, certificates and documents
as the Lead Manager, in its sole discretion, or counsel to Purchasers may
reasonably request.
The "Lead Manager" for the Securities described in this Agreement is
[insert lead manager's name]. [Pursuant to the last sentence of Section 11(a) of
the Distribution Agreement, the Lead Manager hereby requests the delivery of,
and it is hereby agreed that there shall be delivered, documents pursuant to
Section[s] [6(b)][6(c)][6(d)] of the Distribution Agreement.]
In accordance with Section 11(a) of the Distribution Agreement, each
Purchaser (other than ▇▇▇▇▇▇ Brothers Inc.) hereby confirms that, with effect
from the date hereof solely in respect of the issue of the Securities described
above (the "Issue"), each Purchaser shall become a party to, and an Agent under,
the Distribution Agreement, vested with all the authority, rights and powers,
and subject to all duties and obligations of an Agent as if originally named as
such under the Distribution Agreement.
Such appointment is limited to the Issue and is not for any other issue
of Securities of the Company pursuant to the Distribution Agreement, and such
appointment will terminate upon issue of the Securities comprising the Issue,
but without prejudice to any rights, duties or obligations which have arisen
prior to such termination.
Except as otherwise expressly provided herein, all terms used herein
which are defined in the Distribution Agreement shall have the same meanings as
in the Distribution Agreement, except that (i) the term "Agent," as used in the
Distribution Agreement, shall be deemed to refer, where applicable and for
purposes of this Agreement, only to the Purchasers (except for references in the
Distribution Agreement to Agent where such Agent has discretion, in which case
Agent shall mean the Lead Manager) and (ii) any reference to the Registration
Statement or the Prospectus shall be deemed to refer to such documents as
amended or supplemented as of the date of this Agreement and as of the
Settlement Date, including any supplement relating to the Securities and
containing the name of the Purchasers. [For purposes of Section 12 of the
Distribution Agreement, the Lead Manager confirms that its notice details are as
set forth immediately beneath its name].
[The undersigned] [Each of the Purchasers] agrees to perform its duties
and obligations specifically provided to be performed by [each of] the
Purchasers in accordance with the terms and provisions of the Distribution
Agreement and the Procedures, as amended or supplemented hereby.
This Agreement shall be subject to the termination provisions of
Section 10 of the Distribution Agreement.
[If one or more of the Purchasers shall fail at the Settlement Date to
purchase the Securities which it or they are obligated to purchase (the
"Defaulted Securities"), then the non-defaulting Purchasers (the "non-defaulting
Purchasers") shall have the right, within 24 hours
3
thereafter, to make arrangements for one or more of them to purchase all, but
not less than all, of the Defaulted Securities in such amounts as may be agreed
upon and upon the terms herein set forth; provided, however, that if such
arrangements shall not have been completed within such 24-hour period, then:
(A) if the aggregate principal amount of Defaulted Securities
does not exceed 10% of the aggregate principal amount of Securities to
be so purchased hereunder on the Settlement Date, the non-defaulting
Purchasers shall be obligated, severally and not jointly, to purchase
the full amount thereof in the proportions that their respective
initial underwriting obligations bear to the underwriting obligations
of all non-defaulting Purchasers; or
(B) if the aggregate principal amount of Defaulted Securities
exceeds 10% of the aggregate principal amount of Securities to be so
purchased hereunder on the Settlement Date, this agreement shall
terminate without liability on the part of any non-defaulting
Purchaser.
No action taken pursuant to this paragraph shall relieve any defaulting
Purchaser from liability in respect of its default. In the event of any such
default which does not result in a termination of this agreement, either the
non-defaulting Purchasers or the Company shall have the right to postpone the
Settlement Date for a period not exceeding seven days in order to effect any
required changes in the Registration Statement, the Prospectus Supplement, the
Pricing Supplement or any other documents or arrangements.]
[Notwithstanding anything in the Distribution Agreement to the
contrary, the obligations of the Purchasers under Section 7 of the Distribution
Agreement are several and not joint, and in no case shall any Purchaser (except
as may be provided in any agreement among them) be responsible under Section
7(d) to contribute any amount in excess of the commissions received by the
Purchaser with respect to the Securities purchased by such Purchaser hereunder.]
This Agreement shall be governed by and construed in accordance with
the laws of New York. This Agreement may be executed in one or more counterparts
and the executed counterparts taken together shall constitute one and the same
agreement.
4
If the foregoing correctly sets forth the agreement among the parties
hereto, please indicate your acceptance hereof in the space provided for that
purpose below.
[NAME OF LEAD MANAGER]
[As Representative of the Purchasers
named in Schedule I annexed hereto]
By: __________________________
Name:
Title:
Accepted: __________ ___, 20___
▇▇▇▇▇▇ BROTHERS HOLDINGS INC.
By ____________________________
Name:
Title:
5
Schedule I
Purchaser Principal Amount of Securities
$
Total $
EXHIBIT ▇
▇▇▇▇▇▇ BROTHERS HOLDINGS INC.
Medium-Term Notes, Series G
Due Nine Months or More from the Date of Issue
AGENT ACCESSION LETTER
[Name of Agent
Address of Agent]
Ladies and Gentlemen:
▇▇▇▇▇▇ Brothers Holdings Inc., a Delaware corporation (the "Company"),
has previously entered into an Amended and Restated Distribution Agreement dated
July 26, 2001 (the "Distribution Agreement"), between the Company and ▇▇▇▇▇▇
Brothers Inc. (the "Existing Agent"), with respect to the issue and sale by the
Company of its Medium Term Notes, Series G pursuant to an Indenture dated as of
September 1, 1987, as amended by a First Supplemental Indenture, dated as of
November 25, 1987, a Second Supplemental Indenture, dated as of November 27,
1990, a Third Supplemental Indenture, dated as of September 13, 1991, a Fourth
Supplemental Indenture, dated as of October 4, 1993, a Fifth Supplemental
Indenture, dated as of October 1, 1995, and a Sixth Supplemental Indenture,
dated as of June 26, 1997, between the Company and Citibank, N.A., as Trustee.
The Distribution Agreement permits the Company to appoint one or more additional
persons to act as agent with respect to the Securities, on terms substantially
the same as those contained in the Distribution Agreement. A copy of the
Distribution Agreement, including the Procedures with respect to the issuance of
the Securities attached thereto as Exhibit B, is attached hereto.
In accordance with Section 11(b) of the Distribution Agreement we
hereby confirm that, with effect from the date hereof, solely in respect of the
issue of ___ Notes due ____ (the "Issue"), you shall become a party to, and an
Agent under, the Distribution Agreement, vested with all the authority, rights
and powers, and subject to all duties and obligations of an Agent in relation to
the Issue as if originally named as such under the Distribution Agreement. The
undersigned agrees that it is acting as agent (not as principal) in connection
with the Issue.
Such appointment is limited to the Issue and is not for any other issue
of Securities of the Company pursuant to the Distribution Agreement, and such
appointment will terminate upon issue of the Securities comprising the Issue but
without prejudice to any rights, duties or obligations which have arisen prior
to such termination.
Except as otherwise expressly provided herein, all terms used herein
which are defined in the Distribution Agreement shall have the same meanings as
in the Distribution Agreement, except that (i) the terms "Agent," "Agents" and
"Additional Agents" as used in the Distribution
2
Agreement, shall be deemed to refer, where applicable and for purposes of this
Agreement, only to you, (ii) your obligation to act as Agent hereunder shall
subject to you having received copies of the most recent documents (including
any prior documents referred to therein) previously delivered to the Existing
Agent pursuant to Sections 5 and 6 of the Distribution Agreement, and (iii) any
reference to the Registration Statement or the Prospectus shall be deemed to
refer to such documents as amended or supplemented as of the date of this
Agreement and as of the Settlement Date, including any supplement relating to
the Securities and/or containing the name of the Agent and/or Additional Agents.
By your signature below, you confirm that such documents are to your
satisfaction. For purposes of Section 12 of the Distribution Agreement, you
confirm that your notice details are as set forth immediately beneath your
signature.
Each of the parties to this letter agrees to perform its respective
duties and obligations specifically provided to be performed by each of the
parties to in accordance with the terms and provisions of the Distribution
Agreement and the Procedures, as amended or supplemented hereby.
[Notwithstanding anything in the Distribution Agreement to the
contrary, the obligations of the Agent and Additional Agents under Section 7 of
the Distribution Agreement are several and not joint, and in no case shall any
Agent or Additional Agent (except as may be provided in any agreement among
them) be responsible under Section 7(d) to contribute any amount in excess of
the commissions received by the Agent or Additional Agent from the offering of
the Securities.]
This Agreement shall be governed by the laws of the State of New York.
This Agreement may be executed in one or more counterparts and the executed
counterparts taken together shall constitute one and the same agreement.
3
If the foregoing correctly sets forth the agreement among the parties
hereto, please indicate your acceptance hereof in the space provided for that
purpose below.
Very truly yours,
▇▇▇▇▇▇ BROTHERS HOLDINGS INC.
By: ________________________
Name:
Title:
CONFIRMED AND ACCEPTED, as of the
date first above written
[Insert name of Additional Agent and information pursuant
to Section 12 of the Distribution Agreement]
By: ________________________
Name:
Title:
Notice information pursuant to Section 12 of the Distribution Agreement:
Name:
Address:
Contact Person:
Telephone:
Facsimile: