EXHIBIT 1.01
FORM OF DISTRIBUTION AGREEMENT
▇▇▇▇▇▇ BROTHERS HOLDINGS INC.
▇▇▇▇▇▇ Notes, Series A
Due Nine Months or More from the Date of Issue
DISTRIBUTION AGREEMENT
December 23, 2002
To the Agents listed on
the signature page hereto
Ladies and Gentlemen:
▇▇▇▇▇▇ Brothers Holdings Inc., a Delaware corporation (the
"Company"), confirms its agreement with you (the "Agents") with respect to the
issue and sale by the Company of up to $5,000,000,000 aggregate principal amount
of its ▇▇▇▇▇▇ Notes, Series A, due Nine Months or More from the Date of Issue
(the "▇▇▇▇▇▇ Notes" or the "Securities"). 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 in this
Distribution Agreement (the "Agreement") and subject to the reservation by the
Company of the right to sell Securities directly on its own behalf at any time,
to any person, and the right to enter into agreements substantially identical
hereto with other agents, the Company hereby (i) appoints each of you as agent
of the Company for the purpose of soliciting offers to purchase the Securities
from the Company in accordance with the terms hereof and (ii) agrees that
whenever the Company determines to sell Securities pursuant to this Agreement,
such Securities shall be sold pursuant to a Terms Agreement (as defined herein)
relating to such sale in accordance with the provisions of Section 3(a) hereof
between the Company and ▇▇▇▇▇▇ Brothers Inc. (the "Lead Agent"), pursuant to
which the Lead Agent shall purchase such Securities as principal for resale to
the public or for resale to one or more of the other Agents or dealers, each of
whom will purchase as principal for resale to the public or to other dealers, as
further set forth in this Agreement. This Agreement shall only apply to sales of
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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 Agents as of the date hereof, as of the Closing Date referred to in
Section 2(c) hereof, and as of the times referred to in Section 8(a) 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, as hereafter amended and supplemented from time
to time, 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 Agents, a prospectus
relating to the Securities is required to be delivered under the Securities Act
(each a "Marketing Period"), the Registration Statement and the Prospectus 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
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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 statements therein not misleading; the
Prospectus 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 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 subsection (b) shall not apply
to statements or omissions made in reliance upon and in conformity with written
information furnished to the Company by the Agents specifically for use in
connection with the preparation of the Registration Statement or the Prospectus,
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 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.
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(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, law, 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 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.
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(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 Section 7(d) 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.
(k) Any certificate signed by any officer of the Company and delivered to the
Lead Agent or to counsel for the Agents in connection with an offering of the
Securities to one or more Agents through the Lead Agent shall be deemed a
representation and warranty by the Company to such Agent or Agents 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 Agents agree to use their reasonable best efforts to solicit offers
to purchase the Securities upon the terms and conditions set forth herein and in
the Prospectus. The Agents agree to solicit offers to purchase only as permitted
or contemplated by the Prospectus and herein. 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 notice from the Company, orally or in writing, the Agents will
forthwith suspend solicitation of offers to purchase Securities from the Company
until such time as the Company has advised the Agents that such solicitation may
be resumed. The Agents are 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, plus accrued interest, if any, or such other price as
is authorized by the Company (the "Offering Price"). Unless otherwise instructed
by the Company, the Lead Agent shall communicate to the Company, orally or in
writing, each reasonable offer to purchase Securities received by the Agents.
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. Each Agent shall
have the right, in its discretion reasonably exercised without 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. Unless authorized by the Lead Agent in each instance, each
Agent agrees not to submit an offer to purchase Securities for which an order
from a purchaser has not been received.
(b) Administrative procedures relating to the issue and delivery of, the
solicitation of purchases of and payment for, the Securities shall be as set
forth in Exhibit A hereto (the "Procedures"). The provisions of the Procedures
shall apply to all transactions contemplated hereunder. The Agents and the
Company agree to perform the respective duties and obligations specifically
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provided to be performed by each of them herein and in the Procedures. The
Procedures may only be amended by agreement of the Company and the Lead Agent,
on behalf of the Agents.
(c) The documents required to be delivered by Section 7 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 by the Company
and the Lead Agent, which in no event shall be later than the time at which the
Agents commence solicitation of purchasers of Securities hereunder, such time
and date be herein called the "Closing Date."
(d) 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 pursuant to a letter (an "Agent
Accession Letter") substantially in the form attached hereto as Exhibit B 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. If the Company shall appoint any Additional Agent(s)
pursuant to an Agent Accession Letter in accordance with this subsection (d),
the Company shall provide each Agent with a copy of such executed Agent
Accession Letter.
(e) Each Agent acknowledges and agrees, with respect to communications in
accordance with the Procedures via ▇▇▇▇.▇▇▇▇▇▇.▇▇▇, or such other website as may
be from time to time maintained for use in connection with the Securities (the
"▇▇▇▇▇▇ Notes Website"), (i) that it is responsible for maintaining the
confidentiality of the log-on and password it uses to access the ▇▇▇▇▇▇ Notes
Website, (ii) that it is fully responsible for all activities that occur using
its log-on and password, (iii) to notify the Company and the Lead Agent
immediately of any unauthorized use of its log-on or password or any other
breach of security and (iv) that it will not use the log-on or password of any
other person at any time.
SECTION 3. Purchases as Principal. (a) Each sale of Securities shall be made in
accordance with the terms of this Agreement and a separate agreement to be
entered into between the Company and the Lead Agent which will provide for the
sale of such Securities to, and the purchase of and reoffering thereof by, the
Lead Agent as principal (a "Terms Agreement"). Each such Terms Agreement, which
may be oral (in which case a written confirmation of terms shall be delivered by
the Lead Agent to the Company), shall be substantially in the form attached
hereto as Exhibit C or in such other form as the Company and the Lead Agent may
agree. The agreement of the Lead Agent to purchase Securities pursuant to any
Terms Agreement, unless otherwise set forth therein, shall be deemed to be made
on the basis of the representations, warranties and agreements of the Company
herein contained and shall be subject to the terms and conditions herein set
forth. Each Terms Agreement shall describe the Securities to be purchased
pursuant thereto by the Lead Agent as principal, and shall specify, among other
things, the principal amount of Securities to be purchased, the interest rate
and maturity date of such Securities, the interest payment dates, the Offering
Price, the Agents' Concession (as defined below) to be paid to the Lead Agent,
the Dealers' Concession (as defined below), the Reallowance (as defined below),
if any, the net proceeds to the Company, the time of delivery of and payment for
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such Securities (the "Settlement Date"), whether the Securities are redeemable
or repayable, including pursuant to a Survivor's Option (as defined in the
Prospectus), and on what terms and conditions, whether there are any additional
conditions precedent to the obligations of the Lead Agent under such Terms
Agreement and any other relevant terms.
(b) Upon the closing of the sale of any Securities sold by the Company to the
Lead Agent pursuant to a Terms Agreement as a result of a solicitation made by
the Agents, the Company agrees to pay the Lead Agent a concession in accordance
with the schedule set forth in Exhibit D hereto applicable to such Security or
such other concession upon which the Company and the Lead Agent agree in the
form of a discount on the principal amount of notes sold (the "Agents'
Concession"). The Agents' Concession shall be set forth in the applicable Terms
Agreement and Pricing Supplement (as defined below). The Lead Agent and the
other Agents will share the Agents' Concession in such proportions as they and
the Company may agree.
(c) Unless otherwise agreed to by the Lead Agent, each Agent shall purchase from
the Lead Agent as principal for resale to the public, or to other dealers as set
forth in Section 3(c) below, such aggregate principal amount of Securities with
respect to which it has communicated offers to purchase to the Lead Agent (the
"Commitment Amount"). The agreement of each Agent to purchase Securities from
the Lead Agent shall be deemed to be made on the basis of the representations,
warranties and agreements of the Company herein contained and shall be subject
to the terms and conditions herein set forth. Each Agent agrees to deliver to
the Lead Agent on the Settlement Date (or on such later date as may be specified
by the Lead Agent) and at the place specified by the Lead Agent immediately
available funds, payable to the order of the Lead Agent, for (i) an amount equal
to the Offering Price, less the applicable Agents' Concession in respect of such
Agent's Commitment Amount or (ii) such other amount as the Lead Agent shall
advise such Agent. The Lead Agent will make payment to the Company against
delivery to the Lead Agent for each Agent's account of the Securities to be
purchased by each Agent, and the Lead Agent will deliver to each Agent the
Securities paid for by such Agent. If the Lead Agent has determined that
transactions in the Securities are to be settled through the facilities of DTC
or another clearinghouse facility, payment for and delivery of Securities
purchased by each Agent shall be made through such facilities, if such Agent is
a member, or, if such Agent is not a member, settlement shall be made through
such Agent's ordinary correspondent who is a member.
(d) In connection with the resale of the Securities purchased, the Agents may
engage the services of broker-dealers in connection with the resale of the
Securities (each, a "Dealer"); and such Agent may sell Securities to a Dealer at
a price not less than the Offering Price less the applicable concession to
dealers set forth in the applicable Pricing Supplement (the "Dealers'
Concession"); provided, however, that:
i) Each Agent agrees that any Dealer it may engage will agree that (i) such
Dealer is either (a) a member in good standing of the National Association
of Securities Dealers, Inc. (the "NASD") or (b) a foreign dealer foreign
dealer not eligible for membership in the NASD and (ii) (a) if such Dealer
is a member of the NASD, such Dealer will comply with the requirements of
NASD Conduct Rule 2740 and Interpretive Material-2740 of the Conduct Rules
of the NASD, and such Dealer will not grant any concessions, discounts or
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other allowances which are not permitted by that section or (b) if such
Dealer is a foreign dealer not eligible for membership in the NASD, such
Dealer will not make any sales of the Securities in, or to nationals or
residents of, the United States, its territories or its possessions, and
that in making any sales of the Securities such Dealer will comply, as
though it is a member of the NASD, with (A) the interpretation of the Board
of Governors of the NASD entitled "Free-Riding and Withholding," (B) the
requirements of the NASD Conduct Rule 2730 and Interpretive Material-2730,
NASD Conduct Rule 2750 and Interpretive Material-2750, and NASD Conduct
Rule 2420 and Interpretive Material 2420-1 and (C) to the extent applicable
to such Dealer, the requirements of the NASD Conduct Rule 2420 and
Interpretive Material 2420-1;
ii) Each Agent agrees that any Dealer it may engage will agree to comply with
the duties and obligations of the Agents set forth in Sections 5(a) and
5(b) as if applicable to such Dealer; and
iii) Each Agent agrees that any Dealer it may engage will agree that (i) such
Dealer will offer the Securities to the public at the Offering Price and
(ii) such Dealer will not reallow a discount on sales to other dealers in
an amount in excess of the reallowance set forth in the applicable Pricing
Supplement, if any (the "Reallowance").
SECTION 4. Covenants of the Company. The Company covenants and agrees with the
Agents that it will furnish (to the extent it has not already done so) to each
of the Agents and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel to the Agents, 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 Agents promptly of (i) the filing and the
effectiveness of any amendment to the Registration Statement, (ii) the filing of
(x) any supplement to the Prospectus relating to the Securities (other than an
amendment or supplement providing solely for interest rates, redemption
provisions, maturities or other terms of Securities or other information
contemplated by the Prospectus or required by the Securities Act or the Rules
and Regulations to be filed in a Pricing Supplement) or (y) any document
relating to the Securities pursuant to the Exchange Act which will be
incorporated by reference in the Prospectus, (iii) 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 or (vi) 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) The Company will prepare, with respect to any Securities to be sold through
or to the Agents pursuant to this Agreement, a pricing supplement with respect
to such Securities in substantially the form attached hereto as Exhibit E (a
"Pricing Supplement") and will file such Pricing Supplement with the Commission
pursuant to Rule 424(b) under the Securities Act not later than the time
specified by such rule.
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(c) The Company will not file any registration statement with respect to the
registration of additional Securities or any amendment to the Registration
Statement or any amendment or supplement to the Prospectus (other than a
prospectus supplement not relating to the Securities or an amendment or
supplement providing solely for the interest rates, redemption provisions,
maturities or other terms of Securities or other information contemplated by the
Prospectus or required by the Securities Act or the Rules and Regulations to be
filed in a Pricing Supplement or an amendment or supplement effected by the
filing of a document with the Commission pursuant to the Exchange Act) in a form
as to which counsel to the Agents shall reasonably object.
(d) 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 Agents promptly to suspend solicitation of purchases of
the Securities and to cease sale of any Securities by the Lead Agent, and the
Company 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.
(e) 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 covering each fiscal
period beginning the first day of its fiscal year and ending the last day of
each of its fiscal quarters. Such earnings statement shall be made available
within the period specified by the Commission (x) for Form 10-K in the case of
the last fiscal quarter of the Company's fiscal year, and (y) for Form 10-Q in
the case of the first three fiscal quarters of the Company's fiscal year.
(f) The Company will file promptly all documents required to be filed with the
Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act.
(g) The Company will furnish to the Agents without charge copies of the
Prospectus and all amendments and supplements thereto, in each case as soon as
available and in such quantities as are reasonably requested.
(h) 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 Lead 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 5. Covenants of the Agents. Each Agent covenants and agrees with the
Lead Agent and each other Agent as follows:
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(a) The Lead Agent has notified each Agent that, other than registering the
Securities under the Securities Act, no action has been or will be taken by the
Company that would permit the offer or sale of the Securities or possession or
distribution of the Prospectus or any other offering material relating to the
Securities in any jurisdiction where action for that purpose is required.
Accordingly, each Agent agrees that it will comply in all material respects with
all applicable laws, rules and regulations of all jurisdictions and regulatory
bodies governing the use and distribution of prospectuses. Each Agent agrees
that it will comply in all material respects with all applicable provisions of
the Securities Act, provisions of the Rules and Regulations, provisions of the
Exchange Act, provisions of the rules and regulations promulgated thereunder and
regulations of self-regulatory bodies (including as to investor suitability))
and it will obtain any requisite consent, approval or permission (other than
those obtained by the Company pursuant to Section 4(h)) for the purchase, offer
or sale by such Agent of Securities under the laws and regulations in force in
any such jurisdiction to which it is subject or in which it makes such purchase,
offer or sale. None of the Company, the Lead Agent or any other Agent shall have
any responsibility for determining what compliance is necessary by any one Agent
or for obtaining any consents, approvals or permissions applicable to such one
Agent. Each Agent further agrees that it will take no action that will impose
any obligations additional to those expressly stated in this Agreement on the
Company, the Lead Agent or any other Agents. Subject to the above, each Agent
shall, if required by applicable law, furnish to each person to whom it offers,
sells or delivers Securities a copy of the Prospectus, as then amended or
supplemented, or, unless delivery of the Prospectus is required by applicable
law, inform each such person that a copy thereof, as then amended or
supplemented, will be made available upon request. Each Agent understands and
agrees that it is not authorized to give any information or to make any
representation not contained in the Prospectus or the documents incorporated by
reference or specifically referred to therein in connection with the offer and
sale of the Securities.
(b) Each Agent agrees not to stabilize or engage in any syndicate covering
transaction (as defined in Rule 100 of Regulation M under the Exchange Act) in
connection with the offering of the Securities without the prior consent of the
Lead Agent.
(c) Each Agent understands and agrees that nothing contained in this Agreement
shall constitute a partnership with the Lead Agent or with the other Agents and
the obligations of such Agent and each of the other Agents are several and not
joint. Each Agent elects to be excluded from the application of Subchapter K,
Chapter 1, Subtitle A, of the United States Internal Revenue Code of 1986, as
amended. Each Agent authorizes the Lead Agent, on behalf of such Agent, to
execute such evidence of such election as may be required by the United States
Internal Revenue Service.
SECTION 6. 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
11
several jurisdictions as provided in Section 4(h) 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 a single counsel to
the Agents in connection therewith), (x) the fees and disbursements of a single
counsel to the Agents, (xi) the costs relating to the development and
maintenance of the ▇▇▇▇▇▇ Notes Website and (xii) all other costs and expenses
incident to the performance of the Company's obligations under this Agreement.
SECTION 7. Conditions of Obligations. The obligations of each Agent, under this
Agreement shall be 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 Agents or counsel to the Agents 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
Lead Agent.
(b) At the Closing Date, the Company shall have furnished to the Agents the
opinion of an Associate General Counsel of the Company, addressed to the Agents
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.
12
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, 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
authorized by the Company, and, when the terms of the Securities have been
established and when the Securities have been 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 the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
and other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a proceeding
in equity or at law) and 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 the blue sky laws of any
jurisdiction in connection with the purchase and distribution of the
Securities by the Agents, 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.
13
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 any Domestic Significant Subsidiary pursuant to the terms of, or
constitute a default under, any material agreement, indenture or instrument
known to such counsel and to which the Company or any Domestic Significant
Subsidiary is a party or is bound, or result in a violation of the
corporate charter or by-laws of the Company or any Domestic Significant
Subsidiary or any order, law, rule or regulation known to such counsel of
any court or governmental agency having jurisdiction over the Company, any
Domestic Significant Subsidiary or any of their respective properties, the
effect of which 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 Lead 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.
14
(c) At the Closing Date, the Agents shall have received from counsel to the
Agents 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 Agents 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 Agents 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 Chief Financial Officer, Treasurer, Controller or Global Head
of Asset and Liability Management of the Company to the effect that the signers
of such 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 Agents 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 Agents, 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.
15
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 and its
subsidiaries, 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
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 consolidated 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 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) of the Company, or
increase in consolidated long-term indebtedness or
decrease in consolidated 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
16
included in the Registration Statement and the
Prospectus, there was any consolidated loss in income
from operations before taxes or in consolidated net
income of the Company and its subsidiaries;
(D) as of a specified date nor more than
three business days prior to the date of the letter
to the date of the most recent consolidated financial
statements of the Company and its subsidiaries
included in the Registration Statement and the
Prospectus, (I) 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) of the Company, or increase in consolidated
long-term indebtedness or decrease in consolidated
net assets or stockholders' equity of the Company and
its subsidiaries;
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 Representatives.
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.
17
(f) Prior to the Closing Date, the Company shall have furnished to the Agents
such further information, certificates and documents as the Agents or counsel to
the Agents may reasonably request.
If any of the conditions specified in this Section 7 shall not
have been fulfilled when and as required by this Agreement, or if any of the
certificates or opinions furnished to the Agents or to counsel to the Agents
pursuant to this Section 7 shall not be in all material respects reasonably
satisfactory in form and substance to the Agents and to counsel to the Agents,
this Agreement and all obligations of the Agents hereunder may be cancelled by
the Agents. Notice of such cancellation shall be given to the Company in
writing, or by telegraph confirmed in writing.
SECTION 8. 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 Lead 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, including because the Company
shall file with the Commission any document incorporated by reference into the
Prospectus (other than by filing with the Commission: (i) information furnished
to the Commission in a Current Report on Form 8-K pursuant to Item 9 of Form 8-K
(or any successor item thereto), (ii) an exhibit to the Registration Statement
or Prospectus that does not relate to the Securities, (iii) a prospectus
supplement not relating to the Securities or an amendment or supplement
providing solely for the interest rates, redemption provisions, maturities or
other terms of the Securities or a change in the principal amount of Securities
remaining to be sold or other information contemplated by the Prospectus or
required by the Securities Act or the Rules and Regulations to be filed in a
Pricing Supplement (iv) or any other change that the Lead Agent reasonably deems
immaterial), the Company shall furnish the Agents promptly 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 Chief Financial Officer,
Treasurer, Controller or Global Head of Asset and Liability Management of the
Company dated the date of the applicable filing in form satisfactory to the Lead
Agent to the effect that the statements contained in the certificate referred to
in Section 7(d) hereof which was last furnished to the Agents 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 7(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
18
the Lead Agent on behalf of the Agents, in its sole discretion, pursuant to
Section 3(a) of this Agreement in connection with the purchase of Securities
from the Company by the Lead Agent as principal, the Company shall deliver to
the Agents on the Settlement Date a certificate of the type described in the
previous sentence.
(c) During each Marketing Period, each time that the Registration Statement or
the Prospectus shall be amended or supplemented, including because the Company
shall file with the Commission any document incorporated by reference into the
Prospectus (other than by filing with the Commission (i) information furnished
to the Commission in a Current Report on Form 8-K pursuant to Item 9 of Form 8-K
(or any successor item thereto), (ii) an exhibit to the Registration Statement
or Prospectus that does not relate to the Securities, (iii) 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), (iv) a
prospectus supplement not relating to the Securities or an amendment or
supplement providing solely for interest rates, redemption provisions,
maturities or other terms of the Securities or a change in the principal amount
of Securities remaining to be sold or other information contemplated by the
Prospectus or required by the Securities Act or the Rules and Regulations to be
filed in a Pricing Supplement or (v) any other change that the Lead Agent
reasonably deems immaterial), the Company shall furnish the Agents promptly with
the written opinion of an Associate General Counsel to the Company, addressed to
the Agents and dated the date of the applicable filing, in form satisfactory to
the Lead Agent, of the same tenor as the opinion referred to in Section 7(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 Agents with a letter to the effect that the Agents may rely on a
prior opinion delivered under Section 7(b) or this Section 8(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 Agent
on behalf of the Agents, in its sole discretion, pursuant to Section 3(a) of
this Agreement in connection with the purchase of Securities from the Company by
the Lead Agent as principal, the Company shall deliver to the Agents 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 Lead Agent reasonably deems immaterial), the
Company shall cause the Company's auditors to furnish the Agents promptly with a
letter, addressed to the Agents and dated the date of the applicable filing, in
form and substance satisfactory to the Lead Agent, of the same tenor as the
letter referred to in Section 7(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 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 Lead 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 Agent on behalf of the Agents, in its sole
19
discretion, pursuant to Section 3(a) of this Agreement in connection with the
purchase of Securities from the Company by the Lead Agent as principal, the
Company shall deliver to the Agents on the Settlement Date a letter of the type
described in the previous sentence.
SECTION 9. Indemnification and Contribution. (a) The Company agrees to indemnify
and hold harmless each Agent, and each person who controls such 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 by any Agent through the Lead Agent expressly for use in connection
with the preparation thereof and (ii) such indemnity with respect to any
Prospectus shall not inure to the benefit of any Agent (or any person
controlling such 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 4(g) hereof. This indemnity agreement will be in addition to any
liability which the Company may otherwise have to each Agent or any controlling
person.
(b) Each Agent severally agrees to indemnify and hold harmless the Company, each
of its directors, each of its officers who signs the Registration Statement,
each person, if any, who controls the Company within the meaning of the
Securities Act and each other Agent 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 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
20
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 by such indemnifying Agent through the Lead Agent expressly for use in
connection with 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 such Agent may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 9 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 9, 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 9. 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 9 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 Agents in the
case of subsection (a) representing the indemnified parties under subsection
(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 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
21
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 subsection (a) of this Section 9 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 Agents 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 one or
more of the Agents may be subject in such proportion so that each Agent is
responsible for the portion represented by the percentage that the Agents'
Concession received by such 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 9, each person who
controls any Agent within the meaning of the Securities Act shall have the same
rights to contribution as such 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 10. 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 Agents or any person controlling the Agents or by or on behalf of
the Company, and shall survive each delivery of and payment for any of the
Securities.
SECTION 11. Termination. (a) The Company may elect to suspend or terminate the
offering of Securities under this Agreement at any time. The Company also (as to
any one or more of the Agents) or any Agent (as to itself) may terminate the
appointment and arrangements described in this Agreement. Upon receipt of
instructions from the Company, the Lead Agent shall suspend or terminate the
participation of any Selected Dealer under the Master Selected Dealer Agreement
attached hereto as Exhibit D. Such actions may be taken, in the case of the
Company, by giving prompt written notice of suspension to all of the Agents and
by giving not less than one day's written notice of termination to all of the
Agents, or, in the case of an Agent, by giving not less than one day's written
notice of termination to the Company and the Lead Agent. 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 provisions of Sections
4(d), 4(g), 6, 9, 10, 13 and 14 hereof shall survive any termination of this
Agreement.
22
(b) Any Terms Agreement executed pursuant to Section 3(a) of this Agreement
shall be subject to termination in the absolute discretion of the Lead Agent and
upon the request of an Agent, after consultation with the Lead Agent and the
Company, with respect to any Securities being purchased by such Agent, by notice
given to the Company at or prior to delivery of and payment for all the
Securities, if, prior to such time: (i) any order suspending the effectiveness
of the Registration Statement or suspending the qualification of the Indenture
shall be in effect or any proceedings for such purpose shall be pending before
or threatened by the Commission, (ii) there shall have occurred a downgrading in
the rating accorded the Company's debt securities by any "nationally recognized
statistical rating organization", as that term is defined by the Commission for
purposes of Rule 436(g)(2) of the Rules and Regulations, (iii) any new
restriction materially affecting the distribution of the Securities shall have
become effective, (iv) trading in securities generally on The New York Stock
Exchange (the "NYSE") or the American Stock Exchange or in the over-the-counter
market, or trading in any securities of the Company on any national securities
exchange or in the over-the-counter market, shall have been suspended or the
settlement of such trading generally shall have been materially disrupted or
minimum prices shall have been established on any such exchange or such market
by the Commission, by such exchange or by any other regulatory body or
governmental authority having jurisdiction, (v) a banking moratorium shall have
been declared either by federal or New York State authorities, (vi) the United
States shall have become engaged in hostilities, there shall have been an
escalation in hostilities involving the United States or there shall have been a
declaration of a national emergency or war by the United States or (vii) there
shall have occurred such a material adverse change in general economic,
political or financial conditions, including without limitation as a result of
terrorist activities after the date of such Terms Agreement (or the effect of
international conditions on the financial markets in the United States shall be
such), as to make it, in the judgment of the Lead Agent, inadvisable or
impracticable to proceed with the payment for and delivery of the Securities.
The provisions of Sections 4(d), 4(g), 6, 9, 10, 13 and 14 hereof shall survive
any termination of the Terms Agreement and this Agreement.
(c) For the avoidance of doubt, in the event of termination of this Agreement or
any Terms Agreement with respect to any Agent, such Agent shall not receive any
compensation except in connection with a purchase by it of Securities actually
consummated, provided that the foregoing shall in no way limit the provisions of
Section 9, and that reimbursement by the Company to an Agent of out-of-pocket
accountable expenses actually incurred by such Agent and to which such Agent is
otherwise entitled as provided herein shall not be prohibited.
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 Agents shall be directed to them as follows:
c/▇ ▇▇▇▇▇▇ Brothers, Inc., ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: Taxable Fixed Income Syndicate/▇▇▇▇▇▇ Notes, notices to the Company
shall be directed to it as follows: ▇▇▇▇▇▇ Brothers Holdings Inc., ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Treasurer.
23
SECTION 13. Binding Effect; Benefits. This Agreement shall be binding upon the
Agents, 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 each Agent within the
meaning of Section 15 of the Securities Act, and (b) the indemnity agreement of
each Agent contained in Section 9 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.
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: ___________________________
Title:
CONFIRMED AND ACCEPTED, as of the date first above written:
▇▇▇▇▇▇ BROTHERS INC.
By: _____________________________
Title:
▇.▇. ▇▇▇▇▇▇▇ & SONS, INC.
By: _____________________________
Title:
BANC OF AMERICA SECURITIES LLC
By: _____________________________
Title:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & CO., L.P.
By: _____________________________
Title:
FIDELITY CAPITAL MARKETS,
a division of National Financial Services LLC
By: _____________________________
Title:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
By: _____________________________
Title:
PRUDENTIAL SECURITIES INCORPORATED
By: _____________________________
Title:
QUICK & ▇▇▇▇▇▇, INC.
By: _____________________________
Title:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & ASSOCIATES, INC.
By: _____________________________
Title:
▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.
By: _____________________________
Title:
UBS PAINEWEBBER INC.
By: _____________________________
Title:
US BANCORP ▇▇▇▇▇ ▇▇▇▇▇▇▇ INC.
By: _____________________________
Title:
EXHIBIT A
▇▇▇▇▇▇ Brothers Holdings Inc.
▇▇▇▇▇▇ Notes, Series A
Due Nine Months or More from the Date of Issue
ADMINISTRATIVE PROCEDURES
▇▇▇▇▇▇ Notes, Series A, due from nine months or more from date of issue
(the "Notes"), are being offered on a continuous basis by ▇▇▇▇▇▇ Brothers
Holdings Inc. (the "Company"). ▇▇▇▇▇▇ Brothers Inc. (the "Lead Agent"), A.G.
▇▇▇▇▇▇ & Sons, Inc., Banc of America Securities LLC, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co.,
L.P., Fidelity Capital Markets, a division of National Financial Services LLC,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, Prudential Securities Incorporated, Quick &
▇▇▇▇▇▇, Inc., ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc., ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc., UBS
PaineWebber Inc. and US Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc., each as agents
(collectively, the "Agents"), have agreed to use their reasonable best efforts
to solicit offers to purchase the Notes pursuant to a Distribution Agreement
dated December 23, 2002 (the "Distribution Agreement") between the Company and
the Agents to which these administrative procedures are attached as an exhibit.
The Notes are being sold by the Company to the Lead Agent pursuant to the
Distribution Agreement and one or more terms agreements substantially in the
form attached to the Distribution Agreement as Exhibit C (each a "Terms
Agreement"). The Notes are being resold by the Lead Agent to the other Agents
and by each of the Agents (including the Lead Agent) (i) directly to their
customers or (ii) to selected broker-dealers for distribution to their customers
in accordance with the Section 3(d) of the Distribution Agreement. 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. The Company will advise the Agents and the Trustee in writing of those
persons handling administrative responsibilities with whom the Agents and the
Trustee are to communicate regarding offers to purchase Notes and the details of
their delivery.
Each Note will be issued in book-entry form only (each, a
"Book-Entry Note") and will be represented by one master global security in
fully registered form (the "Master Global Note") without coupons delivered to
the Trustee, as agent for The Depository Trust Company ("DTC"), and recorded in
the book-entry system maintained by DTC. The Master Global Note shall be in a
form approved by the Company, the Agents, DTC and the Trustee. Prior to the
issuance of any Notes, the Issuer shall execute, attest and deliver to the
Trustee, and the Trustee, upon the Issuer's order, shall authenticate, the
Master Global Note and hold it as custodian for DTC. An owner of a beneficial
A1
interest in a Book-Entry Note will not be entitled to receive a certificate
representing such Note except in certain limited circumstances described in the
Indenture. 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 of the Distribution
Agreement and a Medium-Term Note Certificate Agreement between the Trustee and
DTC dated October 31, 1988 (the "Certificate Agreement"), and its obligations as
a participant in DTC, including DTC's Same-Day Funds Settlement System ("SDFS").
The procedures set forth below may be modified in compliance with DTC's
then-applicable procedures and upon agreement by the Company, the Trustee and
the Lead Agent.
Unless otherwise agreed between the Company and the Lead
Agent, the Notes will be issued in accordance with the administrative procedures
set forth herein. To the extent the procedures set forth below conflict with or
omit certain of the provisions of the Notes, the Indenture, the Distribution
Agreement or the Prospectus, including the applicable Pricing Supplement, the
relevant provisions of the Notes, the Indenture, the Distribution Agreement and
the Prospectus shall control.
Price to Public: Each Note will be offered to the public at 100% of the
principal amount thereof, plus accrued interest, if any, or such other amount
indicated in the applicable Pricing Supplement.
Issuance: All Book-Entry Notes will be represented initially by a single Master
Global Note in fully registered form without coupons. The Master Global Note
will be dated and issued as of the date of its authentication by the Trustee.
The Master Global Note will not represent any Note in certificated form.
Maturities: Each Note will mature on a date (the "Maturity Date") determined by
the Company after prior notification to the Agents, which date shall be not less
than nine months after the issuance date for such Note.
"Maturity" when used with respect to any Note, means the date on which the
outstanding principal amount of such Note becomes due and payable in full in
accordance with its terms, whether at its Maturity Date or by declaration of
acceleration, call for redemption, repayment or otherwise.
A-2
Identification Numbers: The Company will arrange, on or prior to commencement of
a program for the offering of the Notes, with the CUSIP Service Bureau (the
"CUSIP Service Bureau") of Standard & Poor's Corporation ("Standard & Poor's")
for the reservation of a series of CUSIP numbers (including tranche numbers),
consisting of approximately 900 CUSIP numbers and for future assignment to 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
Lead Agent, the Trustee and DTC such written list of 900 CUSIP numbers of such
series.
The Company will assign CUSIP numbers to Notes as described below under
"Procedure for Setting Terms of Notes and Posting". The Company will notify the
CUSIP Service Bureau periodically of the CUSIP numbers that it has assigned to
the Notes. When necessary, the Company will reserve additional CUSIP numbers for
assignment to the Book-Entry Notes. Upon obtaining such additional CUSIP numbers
the Company shall deliver such additional CUSIP numbers to the Lead Agent, the
Trustee and DTC.
Registration The Master Global Note will be issued in fully registered form
without coupons. The Master Global Note 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 Book-Entry 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 Book-Entry 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
A-3
separate records of such Participants and one or more indirect participants in
DTC. So long as Cede & Co. is the registered owner of the Master Global Note,
DTC will be considered the sole owner and holder of the Book-Entry Notes
represented by the Master Global Note for all purposes under the Indenture.
Transfers: Transfers of interests in a Book-Entry Note will be accomplished by
book entries made by DTC and, in turn, by Participants or through the separate
records of such Participants and one or more indirect participants in DTC acting
on behalf of beneficial transferors and transferees of such interests.
Consolidation and Exchange: The Trustee, at the Company's request, 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
Book-Entry Notes having the same interest rate, optional redemption dates
(if any) and Maturity Date and with respect to which interest has been paid
to the same date and which otherwise constitute Notes of the same tenor
under the Indenture, (ii) a date, occurring at least 30 days after such
written notice is delivered and at least 30 days before the next Interest
Payment Date for such Book-Entry Notes, on which such Book-Entry Notes
shall be consolidated and (iii) a new CUSIP number, obtained from the
Trustee, to be assigned to such consolidated Book-Entry Notes. Upon receipt
of such a notice, DTC will send to its Participants and the Trustee a
written reorganization notice to the effect that such consolidation will
occur on such date. Prior to the specified consolidation date, the Trustee
will deliver to the CUSIP Service Bureau a written notice setting forth
such consolidation date and the new CUSIP number and stating that, as of
such consolidation date, the CUSIP numbers of the Book-Entry Notes to be
consolidated will no longer be valid. On the specified consolidation date,
the Trustee will consolidate on its records such Book-Entry Notes as a
single Book-Entry Note bearing a new CUSIP number and dated the last
Interest Payment Date to which interest has been paid or duly provided for
on the consolidated Book-Entry Notes, and the CUSIP numbers of the
consolidated Book-Entry Notes will, in accordance with CUSIP Service Bureau
procedures, be cancelled and not immediately reassigned.
A-4
Denominations: Notes will be issued in principal amounts of $1,000 or any
amount in excess thereof that is an integral multiple of $1,000.
Interest: Each Note will bear interest at a fixed rate. Interest on each
Note will accrue from and including the Issue Date of such Note for the
first interest period and from the last Interest Payment Date to which
interest has been paid for all subsequent interest periods. Each payment of
interest on a Note will include interest accrued through the day preceding,
as the case may be, the Interest Payment Date or the Maturity Date.
Any payment of principal, premium, if any, or interest required to be made
on a day that is not a Business Day (as defined below) may be made on the
next succeeding Business Day and no interest shall accrue as a result of
any such delayed payment.
"Business Day" shall mean 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 to be closed.
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.
Each Note will bear interest from, and including, its Issue Date at the
rate per annum set forth thereon and in the applicable Pricing Supplement
until the principal amount thereof is paid, or made available for payment,
in full. Unless otherwise specified in the applicable Pricing Supplement,
interest on each Note will be payable monthly, quarterly, semi-annually or
annually on each Interest Payment Date and at Maturity.
A-5
Interest will be payable to the person in whose name a Note is registered
at the close of business on the Regular Record Date (as defined below) next
preceding each Interest Payment Date; provided, however, interest payable
at Maturity will be payable to the person to whom principal shall be
payable.
The interest rates the Company will agree to pay on newly-issued Notes
are subject to change without notice by the Company from time to time,
but no such change will affect any Notes already issued or as to which
an offer to purchase has been accepted by the Company.
Calculation of Interest: Interest on the Notes will be computed on the
basis of a 360-day year of twelve 30-day months. Each Note will accrue
interest from its issue date, or from the last Interest Payment Date
to which interest has been paid or duly provided for, through the day
before the relevant Interest Payment Date or Maturity, as the case may
be.
Interest Payment Dates: Unless otherwise specified in the applicable Pricing
Supplement, the Interest Payment Dates for a Note that provides for monthly
interest payments shall be the fifteenth day of each calendar month,
commencing in the calendar month that next succeeds the month in which the
Note is issued. In the case of a Note that provides for quarterly interest
payments, the Interest Payment Dates shall be the fifteenth day of each
third month, commencing in the third succeeding calendar month following
the month in which the Note is issued. In the case of a Note that provides
for semi-annual interest payments, the Interest Payment Dates shall be the
fifteenth day of each sixth month, commencing in the sixth succeeding
calendar month following the month in which the Note is issued. In the case
of a Note that provides for annual interest payments, the Interest Payment
Date shall be the fifteenth day of every twelfth month, commencing in the
twelfth succeeding calendar month following the month in which the Note is
issued. The "Regular Record Date" means, with respect to any Interest
Payment Date shall be the fifteenth day preceding such Interest Payment
Date, except that the Regular Record Date with respect to the final
Interest Payment Date shall be the final Interest Payment Date.
A-6
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 Book-Entry Note 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 Book-Entry Note on such Interest Payment Date.
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,
premium, if any, and interest to be paid on each Book-Entry Note maturing
or subject to redemption or repayment in the following month. The Company,
the Trustee and DTC will confirm the amounts of such principal, premium, if
any, and interest payments with respect to each such Book-Entry Note on or
about the fifth Business Day preceding the Maturity of such Book-Entry
Note. The Company will pay to the Trustee, as the paying agent, the
principal amount of such Book-Entry Note, together with premium, if any,
and 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 Maturity of
such Book-Entry Note, the Trustee will cancel such Book-Entry Note in
accordance with the provisions of the Indenture and record an appropriate
debit advice on the Master Note.
A-7
Manner of Payment. The total amount of any principal, premium, if any, and
interest due on Book-Entry Notes on any Interest Payment Date or at
Maturity shall be paid by the Company to the Trustee in immediately
available funds on such date. The Company will make such payment on such
Book-Entry Notes to an account specified by the Trustee. At Maturity: 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 accordance with
DTC's SDFS Paying Agent Operating Procedures. On Interest Payment Dates
(other than at Maturity): 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 or premium, if any, or 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.
Procedure for Setting Terms of Notes and Posting: The Company and the Lead Agent
will discuss, from time to time, the terms, including aggregate principal
amounts, the Maturities and the prices to public of and the interest rates
to be borne by such Notes, of the Notes that may be sold as a result of the
solicitation of orders by the Agents. If the Company decides to set the
terms of any Notes in respect of which the Agents are to solicit orders to
purchase (the setting of the terms of such Notes to be referred to herein
as "Posting") or if the Company decides to change terms of Notes previously
posted by it, it will promptly advise the Agents of the terms to be posted.
The Company will assign a separate CUSIP number for each tranche of Notes to be
posted, and will so advise and notify the Lead Agent and the Trustee of
said
A-8
assignment by telephone and/or by telecopier or other form of electronic
transmission. The Lead Agent will include the assigned CUSIP number on all
Posting notices communicated to the Agents.
Offering of Notes: In the event that there is a Posting, the Lead Agent will
communicate to each of the other Agents the terms, including aggregate
principal amounts, the Maturities and the prices to public of and the
interest rates to be borne by such Notes, of each tranche of Notes that is
the subject of the Posting. Thereafter, the Agents will solicit offers to
purchase the Notes accordingly.
Acceptance and Rejection of Offers to Purchase: Unless otherwise instructed by
the Company, the Lead Agent will advise the Company promptly of all offers
to purchase Notes received by each Agent, other than those rejected by an
Agent in whole or in part in the reasonable exercise of its discretion.
Each Agent shall have the right, in its discretion reasonably exercised,
without notifying the Company, to reject any offers in whole or in part.
Unless otherwise agreed by the Company and each of the Agents, the Company
has the sole right to accept offers to purchase Notes and may reject any
such offer in whole or in part.
Submission of Offers to Purchase: Unless otherwise agreed, each Agent
will, no later than 10:00 a.m. on the fourth day subsequent to the day of
which the Posting occurs or if such fourth day is not a Business Day on the
preceding Business Day, or on such other Business Day and time as shall be
mutually agreed upon by the Lead Agent and the other Agents, communicate to
the Lead Agent via the ▇▇▇▇▇▇ Notes Website or other acceptable form of
electronic transmission of the aggregate amount of each tranche of Notes
that such Agent is offering to purchase, with respect to which amount such
Agent, unless otherwise authorized by the Lead Agent in each instance, must
have received an order from a purchaser.
Purchase of Notes by the Lead Agent: The Lead Agent will, no later than 12:00
noon (New York City time) on the fourth day subsequent to the day on which
the Posting occurs, or if such fourth day is not a Business Day on the
preceding Business Day, or on such other Business Day and time as shall be
mutually agreed upon by the Company and the Lead Agent (any such day, a
"Trade Date"), (i) complete, execute and
A-9
deliver to the Company a Terms Agreement that sets forth, among other
things, the amount of each tranche of Notes that the Lead Agent is
offering to purchase or (ii) inform the Company that none of the Notes
of a particular tranche will be purchased by the Lead Agent.
TermsAgreement: Upon receipt of a completed and executed Terms Agreement
from the Lead Agent, the Company will (i) promptly execute and return
such Terms Agreement to the Lead Agent or (ii) inform the Lead Agent
that its offer to purchase the Notes of a particular tranche has been
rejected, in whole or in part. The Lead Agent will promptly inform the
other Agents if any of their orders to purchase have not been accepted
by the Company.
Preparation of Pricing Supplement: If any offer to purchase a Note is
accepted by or on behalf of the Company, the Company will provide a
Pricing Supplement (substantially in the form attached to the
Distribution Agreement as Exhibit E) reflecting the terms of such Note
and will file the Pricing Supplement with the SEC in accordance with
the applicable paragraph of Rule 424(b) under the Act. The Company
shall use its reasonable best efforts to send the Pricing Supplement
by email or telecopy to the Lead Agent and the Trustee by 3:00 p.m.
(New York City Time) on the applicable Trade Date. The Lead Agent
shall use its reasonable best efforts to send the Pricing Supplement
by email or telecopy or overnight express (for delivery by the close
of business on the applicable Trade Date, but in no event later than
11:00 a.m. New York City time, on the Business Day following the
applicable Trade Date) to each Agent and participating Dealer which
made or presented the offer to purchase the applicable Note and the
Trustee at the following applicable address: if to ▇▇▇▇▇▇ Brothers
Inc., to:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Fixed Income Syndicate/Medium
Term Note Desk
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
if to A.G. ▇▇▇▇▇▇ & Sons, Inc., to:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
A-10
Attention:
Telephone:
Telecopier:
if to Banc of America Securities LLC, to:
▇▇▇ ▇. ▇▇▇▇▇ ▇▇. (▇▇▇-▇▇▇-▇▇-▇▇)
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
Telephone:
Telecopier:
if to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co., L.P., to:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ - 3729
Attention:
Telephone:
Telecopier:
if to Fidelity Capital Markets, a
division of National Financial Services
LLC, to:
Attention:
Telephone:
Telecopier:
if to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated,
to:
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ - 8293
Attention: Manager - Continuously Offered
Products
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
if to Prudential Securities Incorporated,
to:
One ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
Telephone:
Telecopier:
if to Quick & ▇▇▇▇▇▇, Inc., to:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇
▇-▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
Telephone:
Telecopier:
if to ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc.,
to:
Attention:
Telephone:
Telecopier:
if to ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc., to:
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇.
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Medium-Term Note Department
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
if to UBS PaineWebber Inc., to:
Taxable Fixed Income Department
Attention: Corporate Desk
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
if to US Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc., to:
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ 5402 - 7020
Attention:
Telephone:
Telecopier:
Outdated Pricing Supplements and the
Prospectuses to which they are attached
(other than those retained for files)
will be destroyed.
Delivery of Confirmation and Prospectus to Purchaser by each Agent: Subject to
"Suspension of Solicitation; Amendment or Supplement" below, each Agent and
participating Dealer, pursuant to the terms of the Distribution Agreement and
as herein described, will cause to be delivered a copy of the Prospectus,
including the applicable Pricing Supplement, to each purchaser of
A-12
Notes from such Agent or Dealer.
For each offer to purchase a Note accepted by or on behalf of the Company, the
Lead Agent will confirm in writing, which writing may be by facsimile or
electronic transmission, with each Agent or participating Dealer the terms of
such Note, the amount being purchased by such Agent or Dealer and other
applicable details described above and delivery and payment instructions.
In addition, the relevant Agent or Dealer, as the case may be, will deliver to
purchasers of the Notes the Prospectus, including the applicable Pricing
Supplement, in relation to such Notes prior to or simultaneously with delivery
of the confirmation of sale and delivery of the Note.
Settlement: The receipt by the Company of immediately available funds in payment
for a Note and entry by the Trustee of an SDFS deliver order through DTC's
Participant Terminal System to credit such Note to the account of a Participant
purchasing, or acting for the purchase of, such Note, shall constitute
"settlement" with respect to such Note. All orders accepted by the Company will
be settled from one to three Business Days from the date of acceptance by the
Company pursuant to the timetable set forth below, unless the Company and the
Lead Agent agree to settlement on a later date, and shall be specified upon
acceptance of such offer. In all cases the Company will notify the Trustee on
the date issuance instructions are given.
Settlement Procedures: Unless otherwise specified in the applicable Terms
Agreement, Settlement Procedures with regard to each Book-Entry Note sold by the
Company through the Agents shall be as follows:
A. Before the acceptance of an offer by the
Company with respect to a Note, the Lead
Agent will communicate the following
details of the terms of such offer to the
Company by telephone confirmed in
writing, which may be by facsimile or
electronic transmission or other
acceptable written means:
o Principal amount of the
purchase;
A-13
o Interest rate per annum;
o Interest Payment Dates;
o Trade Date
o Issue Date;
o Maturity Date;
o Price to public;
o Agents' Concession, Dealers'
Concession and Reallowance, if
any;
o Net proceeds to the Company;
o If a Note is redeemable by the
Company or repayable by the
Noteholder, such of the
following as are applicable:
(a) The date on and after which such
Note may be redeemed/repaid, and
(b) The redemption/ repayment price
(% of par).
o Whether the Note has a
Survivor's Option;
o DTC Participant Number of the
institution through which the
customer will hold the
beneficial interest in the
Book-Entry Note; and
o Such other terms as are
necessary to complete the
applicable Pricing Supplement.
B. The Company will confirm the previously
assigned CUSIP number to the Book-Entry
Note and then advise the Trustee by
telephone (confirmed in writing), telex,
facsimile or electronic transmission or
other acceptable written means of the
information received in accordance with
Settlement Procedure "A" above and the
assigned CUSIP number. If the Company
rejects an offer, the Company will
promptly notify the Lead Agent and the
Trustee by telephone.
C. The Company shall communicate with the Trustee and Lead Agent and each such
communication by the Company shall constitute a representation and warranty by
A14
the Company to the Trustee and the Agents 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 will conform with the terms of the Indenture
pursuant to which such Note are issued and (iii) upon issuance of such
Book-Entry Note, the aggregate initial offering price of all Notes issued under
the Indenture will not exceed $5,000,000,000.
D. The Trustee will enter a pending deposit message through DTC's Participant
Terminal System, specifying the following settlement information:
1. The information set forth in Settlement Procedure "A".
2. The numbers of the participant accounts maintained by DTC on behalf of the
Trustee and the Agents.
3. The 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) and amount of interest per $1,000 principal amount payable on such
Interest Payment Date.
4. The Interest Payment Dates.
5. CUSIP number of the
Book-Entry Note representing such Note.
6. Whether such Book-Entry Note will
represent any other Notes issued or to be issued (to the extent known at such
time).
E. The Trustee will complete the Master Global Note as it relates to such Note
by filing the applicable Pricing Supplement relating to such Note in the records
maintained by it, which records, taken with the Master Global Note, shall
evidence such Note.
F. DTC will credit such Note to the Trustee's participant account at DTC.
G. 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 Lead Agent's participant account
and (ii) debit the Lead Agent's settlement account and credit the Trustee's
settlement account for an amount equal to the price of such Note less the
Agents' Concession.
A-15
H. The Lead Agent will enter an SDFS deliver order through DTC's Participant
Terminal System instructing DTC (i) to debit such Note to the Lead Agent's
participant account and credit such Note to the participant accounts of the
Agents with respect to such Note and (ii) to debit the settlement accounts of
such Agents and credit the settlement account of the Lead Agent for an amount
equal to the price of such Note less the agreed upon portion of the Agents'
Concession.
I. Transfers of funds in accordance with SDFS deliver orders described in
Settlement Procedures "G" and "H" will be settled in accordance with SDFS
operating procedures in effect on the settlement date.
J. 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 "G".
K. Each Agent and participating Dealer will deliver to the purchaser of such
Note a copy of the most recent Prospectus applicable to the Note, including the
applicable Pricing Supplement, prior to or simultaneously with delivery of the
confirmation of sale and delivery of the Note and payment by the purchaser of
the Note.
Each Agent and participating Dealer 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.
L. Monthly, the Trustee will send to the Company a statement setting forth the
principal amount of 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.
Settlement Procedures Timetable: For purchases of Notes sold through the Agents
and accepted by the Company for settlement, Settlement Procedures "A" through
"L" 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
A-16
Procedure Time
A 4:00 P.M. on the Trade Date
B, C 5:00 P.M. on the Trade Date
D 2:00 P.M. on the Business Day
before the Settlement Date
E 9:00 A.M. on the Settlement Date
F 10:00 A.M. on the Settlement Date
G, H 2:00 P.M. on the Settlement Date
I 4:45 P.M. on the Settlement Date
J, K 5:00 P.M. on the Settlement Date
L Monthly or at request of the Company
Settlement Procedure "I" 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 "G", 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 Notes that
A-17
is at least equal to the principal amount to be debited. If a withdrawal message
is processed with respect to the Notes represented by a Book-Entry Note, the
Trustee will ▇▇▇▇ the Pricing Supplement in its records relating to such
Book-Entry Note "cancelled", make appropriate entries in the Trustee's records
and record an appropriate debit advice on the Master Note.
If the purchase price for any Note is not timely paid to any relevant
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 "J" and (ii) the Trustee will deliver the withdrawal
message and take the related actions described in the preceding paragraph. If
such failure shall have occurred for any reason other than default by the
relevant Agent in the performance of its obligations hereunder or under the
Distribution Agreement, the Company will reimburse such Agent on an equitable
basis for its reasonable out-of-pocket accountable expenses actually incurred
and loss of the use of funds during the period when they were credited to the
account of the Company.
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 Notes to have been represented by a Book-Entry
Note, the Trustee will make appropriate entries in its records, in accordance
with Settlement Procedures "E".
A-18
Procedure for Rate Changes: Each time after a Posting a decision has been
reached to change the interest rates of the Notes subject to such Posting, the
Company will promptly advise the Lead Agent, which will in turn promptly advise
the other Agents; and the Agents will forthwith suspend solicitation of offers
to purchase Notes at the prior rates. The Lead Agent may telephone the Company
with recommendations as to the changed interest rates.
Suspension of Solicitation Amendment or Supplement: Subject to its
representations, warranties and covenants contained in the Distribution
Agreement, the Company may instruct the Agents to suspend solicitation of offers
to purchase at any time for a period of time or permanently. Upon receipt of
such instructions each Agent will promptly (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.
In the event that at the time the Agents, at the direction of the Company,
suspend 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 Agents 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.
Trustee Not to Risk Funds: Nothing herein shall be deemed to require the Trustee
to risk or expend its own funds in connection with any payment to the Company,
or the Agents or the purchasers, it being understood by all parties that
payments made by the Trustee to either the Company or the Agents shall be made
only to the extent that funds are provided to the Trustee for such purpose.
Advertising Costs: The Company will determine with the Lead 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 will be
paid by the Company.
▇-▇▇
▇-▇
▇
▇▇▇▇▇▇▇ ▇
▇▇▇▇▇▇ BROTHERS HOLDINGS INC.
▇▇▇▇▇▇ Notes, Series A
Due Nine Months or More from the Date of Issue
FORM OF AGENT ACCESSION LETTER
[Name of Agent
Address of Agent]
Ladies and Gentlemen:
▇▇▇▇▇▇ Brothers Holdings Inc., a Delaware corporation (the "Company"),
has previously entered into a Distribution Agreement dated December 23, 2002
(the "Distribution Agreement"), among the Company and the other agents
signatories thereto (the "Existing Agents"), with respect to the issue and sale
by the Company of its ▇▇▇▇▇▇ Notes, Series A, due Nine Months or More from the
Date of Issue (the "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 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 A, is attached hereto.
In accordance with Section 2(d) of the Distribution Agreement we hereby
confirm that, with effect from the date hereof, 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 as if
originally named as such under the Distribution Agreement.
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. Your obligation to act as Agent hereunder shall
be subject to you having received copies of the most recent documents (including
any prior documents referred to therein) previously delivered to the Existing
Agents pursuant to Sections 7 and 8 of the Distribution Agreement. By your
signature below, you confirm that such documents are to your satisfaction. For
B-2
3
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 each of the Existing Agents and the Additional Agent(s) under
Section 9 of the Distribution Agreement are several and not joint, and in no
case shall any Existing Agent or Additional Agent (except as may be provided in
any agreement among them) be responsible under Section 9(d) to contribute any
amount in excess of the commissions received by such Existing 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.
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]
B-3
4
By:__________________________
Name:
Title:
Notice information pursuant to Section 12 of the Distribution Agreement:
Name:
Address:
Contact Person:
Telephone:
Facsimile:
B-4
EXHIBIT C
▇▇▇▇▇▇ BROTHERS HOLDINGS INC.
▇▇▇▇▇▇ Notes, Series A
Due Nine Months or More from the Date of Issue
FORM OF TERMS AGREEMENT
______________ ___, 20___
▇▇▇▇▇▇ Brothers Holdings Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
▇▇▇▇▇▇ Brothers Holdings Inc., a Delaware corporation (the "Company"),
has previously entered into a Distribution Agreement dated December 23, 2002
(the "Distribution Agreement"), among the Company, ▇▇▇▇▇▇ Brothers Inc. (the
"Lead Agent") and the other agents party thereto, with respect to the issue and
sale by the Company of its ▇▇▇▇▇▇ Notes, Series A, due Nine Months or More from
the Date of Issue (the "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 provides that sales of Securities shall be made
pursuant to the Distribution Agreement and a separate agreement between the
Company and the Lead Agent as principal.
The Lead Agent agrees to purchase, at the purchase price set forth
below, $_________ principal amount of Securities. The Securities have the terms
indicated in the attached Pricing Supplement.
The Lead Agent's obligation to purchase Securities hereunder is subject
to the accuracy, as of the Settlement Date, of the Company's representations and
warranties contained in the Distribution Agreement and to the Company's
performance and observance of all applicable covenants and agreements contained
therein, and the satisfaction of all conditions precedent contained therein,
including, without limitation, those pursuant to Sections 7 and 8 thereof.
2
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.
The undersigned agrees to perform its duties and obligations
specifically provided to be performed by the Lead Agent 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 11 of the Distribution Agreement.
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.
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.
▇▇▇▇▇▇ BROTHERS INC.
By:_______________________
Name:
Title:
Accepted: __________ ___, 20___
▇▇▇▇▇▇ BROTHERS HOLDINGS INC.
By:__________________________
Name:
Title:
EXHIBIT ▇
▇▇▇▇▇▇ BROTHERS HOLDINGS INC.
▇▇▇▇▇▇ Notes, Series A
Due Nine Months or More from the Date of Issue
SCHEDULE OF CONCESSIONS
Unless otherwise set forth in the applicable Pricing
Supplement, the Company agrees to pay the Lead Agent the Agents' Concession
equal to the following percentage of the principal amount of the Securities sold
through the Agents:
Term Commission Rate
9 months to less than 3 years 0.600
3 years to less than 4 years 0.800
4 years to less than 5 years 0.950
5 years to less than 7 years 1.200
7 years to less than 10 years 1.500
10 years to less than 15 years 1.900 to 2.225
15 years to less than 25 years 2.375 to 2.875
25 years and longer 3.000
EXHIBIT E
▇▇▇▇▇▇ BROTHERS HOLDINGS INC.
▇▇▇▇▇▇ Notes, Series A
Due Nine Months or More from the Date of Issue
FORM OF PRICING SUPPLEMENT
Filed Pursuant to Rule 424(b)(2)
Registration No. 333-60474
Pricing Supplement No. __ dated _________
(to Prospectus Supplement dated December 23, 2002
and Prospectus dated June 14, 2001)
$-----------
▇▇▇▇▇▇ BROTHERS HOLDINGS INC.
▇▇▇▇▇▇ Notes, Series A
Due Nine Months or More from the Date of Issue
Trade Date:
Issue Date:
--------------- -------------- ----------- ------------ ------------ ------------- ------------------- ---------------
Aggregate
Principal Price to Agents' Dealers' Reallowance Net Proceeds to Interest Rate
CUSIP Number Amount Public Concession Concession (if any) Issuer per Annum
--------------- -------------- ----------- ------------ ------------ ------------- ------------------- ---------------
--------------- -------------- ----------- ------------ ------------ ------------- ------------------- ---------------
--------------- -------------- ----------- ------------ ------------ ------------- ------------------- ---------------
------------- -------------------------- --------------- ------------- -----------------------------------------------
CUSIP Number Interest Payment Dates Maturity Date Survivor's Right of Issuer to Redeem Notes or of Holder
Option
(Yes/No) to Require Repayment of Notes
------------- -------------------------- --------------- ------------- -----------------------------------------------
------------- -------------------------- --------------- ------------- -----------------------------------------------
[The Note may not be redeemed prior to the Maturity Date at the option of
▇▇▇▇▇▇ Brothers Holdings.] [The Note may be redeemed prior to the Maturity Date
at the option of ▇▇▇▇▇▇ Brothers Holdings [in whole but not in part][in whole or
in part] at a price equal to ____% of the principal amount being redeemed, [on
____________][on or after ____________][on each ______________]. Notice of
redemption will be given not more than [60] nor less than [30] days prior to the
redemption date.]
[The holder of the Note may not elect repayment of the Note by
▇▇▇▇▇▇ Brothers Holdings prior to the Maturity Date.] [The holder of the Note
may elect repayment of the Note by ▇▇▇▇▇▇ Brothers Holdings prior to the
Maturity Date in whole or in part at a price equal to ____% of the principal
amount being repaid, [on ____________][on or after ____________][on each
______________]. Notice of election to require repayment must be given by the
holder as provided in the Prospectus Supplement.]
Other Terms:
Capitalized terms used herein without definition have the meanings ascribed to
them in the Prospectus Supplement and Prospectus.