EXHIBIT 1.01
▇▇▇▇▇▇ BROTHERS HOLDINGS INC.
Medium-Term Notes, Series G
Due Nine Months or More from the Date of Issue
DISTRIBUTION AGREEMENT
June 14, 2001
▇▇▇▇▇▇ Brothers Inc.
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
▇▇▇▇▇▇ Brothers Holdings Inc., a Delaware corporation (the
"Company"), confirms its agreement with you (the "Agent") with respect to the
issue and sale by the Company of up to $24,820,000,000 aggregate principal
amount of its Medium-Term Notes, Series G, Due Nine Months or More from the Date
of Issue (the "Medium-Term Notes" or the "Securities"). The Securities are to be
issued pursuant to an indenture, dated as of September 1, 1987, as amended by a
First Supplemental Indenture, dated as of November 25, 1987, a Second
Supplemental Indenture, dated as of November 27, 1990, a Third Supplemental
Indenture, dated as of September 13, 1991, a Fourth Supplemental Indenture dated
as of October 4, 1993, a Fifth Supplemental Indenture dated as of October 1,
1995, and a Sixth Supplemental Indenture dated as of June 26, 1997 (as amended,
the "Indenture"), between the Company and Citibank, N.A., as trustee (the
"Trustee").
Subject to the terms and conditions stated herein and subject
to the reservation by the Company of the right to sell Securities directly on
its own behalf at any time, and to any person, the Company hereby appoints the
Agent as the exclusive agent of the Company for the purpose of soliciting offers
to purchase the Securities from the Company by others. This Agreement shall only
apply to sales of the Securities and not to sales of any other securities or
evidences of indebtedness of the Company and only on the specific terms set
forth herein.
SECTION 1. Representations and Warranties. The Company represents and warrants
to the Agent as of the date hereof, as of the Closing Date referred to in
Section 2(d) hereof, and as of the times referred to in Section 6(a) and 6(b)
hereof (the Closing Date and each such time being hereinafter sometimes referred
to as a "Representation Date"), as follows:
(a) The Company meets the requirements for the use of Form S-3 under
the Securities Act of 1933, as amended (the "Securities Act"), and the
rules and regulations promulgated thereunder (the "Rules and Regulations"),
and has carefully prepared and filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (file
number 333-60474), which has become effective, for the registration of the
Securities under the Securities Act. The registration statement, as amended
at the date of this Agreement, meets the requirements set forth in Rule
415(a)(1)(ix) under the Securities Act and complies in all other material
respects with such rule. The Company has filed with the Commission pursuant
to Rule 424 under the Securities Act ("Rule 424") a supplement to the form
of prospectus included in the registration statement relating to the
offering of the Securities and the plan of distribution thereof. The term
"Registration Statement" means the registration statement, as amended at
the date of this Agreement and as from time to time amended and
supplemented hereafter, including the exhibits thereto, financial
statements, and all documents incorporated therein by reference pursuant to
Item 12 of Form S-3 (the "Incorporated Documents"). Such form of prospectus
included in the registration statement, including the Incorporated
Documents, is hereinafter referred to as the "Basic Prospectus"; and such
supplemented form of prospectus, in the form in which it was filed with the
Commission pursuant to Rule 424 (including the Basic Prospectus as so
supplemented), is hereinafter called the "Prospectus". Any reference herein
to the Registration Statement, the Basic Prospectus or the Prospectus shall
be deemed to refer to and include the Incorporated Documents filed under
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
any reference herein to the terms "amend", "amendment" or "supplement" with
respect to the Registration Statement, the Basic Prospectus or the
Prospectus shall be deemed to refer to and include the filing of any
Incorporated Documents under the Exchange Act after the date of this
Agreement or the issue date of the Basic Prospectus or the Prospectus, as
the case may be, and deemed to be incorporated therein by reference.
(b) As of the applicable Representation Date and at all times during
each period during which solicitations of offers to purchase Securities
have not been suspended or during which, in the opinion of counsel to the
Agent, a prospectus relating to the Securities is required to be delivered
under the Securities Act (each a "Marketing Period"), the Registration
Statement, the Prospectus and any such amendment or supplement will comply
in all material respects with the applicable requirements of the Securities
Act and the Rules and Regulations, and the Incorporated Documents will
comply in all material respects with the requirements of the Exchange Act
or the Securities Act, as applicable, and the rules and regulations adopted
by the Commission thereunder and will have been timely filed as required
thereby; the Indenture has been qualified under and complies in all
material respects with the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"); on the date it became effective, the Registration
Statement did not, and, on the date that any post-effective amendment to
the Registration Statement becomes effective, the Registration Statement as
amended by such post-effective amendment did not or will not, as the case
may be, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; the Prospectus, as it may be amended or
supplemented, does not include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they are made, not
misleading; the Incorporated Documents comply in all material respects with
the applicable provisions of the Exchange Act and rules and regulations of
the Commission thereunder, and, when read together with the Prospectus, or
the Prospectus as it may be then amended or supplemented, will not contain
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they are made, not misleading;
provided that the foregoing representations and warranties in this
paragraph (b) shall not apply to statements or omissions made in reliance
upon and in conformity with written information furnished to the Company by
the Agent specifically for use in connection with the preparation of the
Registration Statement or the Prospectus, as they may be amended or
supplemented, or to any statements in or omissions from the statement of
eligibility and qualification on Form T-1 of the Trustee under the Trust
Indenture Act ("Form T-1"). The Commission has not issued an order
preventing or suspending the use of the Basic Prospectus or the Prospectus.
(c) The nationally recognized firm of independent public accountants
whose report appears in the Company's most recent Annual Report on Form
10-K, which is incorporated by reference in the Prospectus, are independent
public accountants as required by the Securities Act and the Rules and
Regulations. In the event that a report of a nationally recognized firm of
independent public accountants regarding historical financial information
with respect to any entity acquired by the Company is required to be
incorporated by reference in the Prospectus, such independent public
accountants were independent public accountants, as required by the
Securities Act and the Rules and Regulations, during the period of their
engagement to examine the financial statements being reported on and at the
date of their report.
(d) The audited consolidated financial statements of the Company
included in the Prospectus and the Registration Statement present, and will
present, as of the applicable Representation Date and during each Marketing
Period, fairly on a consolidated basis the financial position, the results
of operations, changes in common stock and stockholder's equity and cash
flows of the Company and its subsidiaries as of the respective dates and
for the respective periods indicated, all in conformity with generally
accepted accounting principles applied on a consistent basis throughout the
periods involved. The unaudited consolidated financial statements of the
Company, if any, included in the Prospectus and the Registration Statement
and the related notes are, and will be, as of the applicable Representation
Date and during each Marketing Period, true, complete and correct, subject
to normally recurring changes resulting from year-end audit adjustments,
and prepared in accordance with Regulation S-X of the Rules and
Regulations.
(e) Except as described in or contemplated by the Registration
Statement and the Prospectus, there has not been any material adverse
change in, or any adverse development which materially affects, the
business, properties, financial condition or results of operations of the
Company or the Company and its subsidiaries taken as a whole from the dates
as of which information is given in the Registration Statement and the
Prospectus.
(f) The Securities conform to the description thereof contained in the
Prospectus, are duly and validly authorized, and, when validly
authenticated, issued and delivered in accordance with the Indenture and
sold as provided in this Agreement, will be validly issued and outstanding
obligations of the Company entitled to the benefits of the Indenture.
(g) Neither the Company nor any of the Significant Subsidiaries (as
defined below) is in violation of its corporate charter or by-laws or in
default under any agreement, indenture or instrument, the effect of which
violation or default would be material to the Company and its subsidiaries
taken as a whole. The execution, delivery and performance of this Agreement
and the consummation of the related transactions described in the
Registration Statement will not conflict with, result in the creation or
imposition of any material lien, charge or encumbrance upon any of the
assets of the Company or any of its subsidiaries pursuant to the terms of,
or constitute a default under, any material agreement, indenture or
instrument, or result in a violation of the corporate charter or by-laws of
the Company or any of its subsidiaries or any order, rule or regulation of
any court or governmental agency having jurisdiction over the Company, any
of its Significant Subsidiaries or their property. Except as set forth in
the Prospectus or as required by the Securities Act, the Exchange Act, the
Trust Indenture Act and applicable state securities laws, no consent,
authorization or order of, or filing or registration with, any court or
governmental agency is required for the execution, delivery and performance
of this Agreement. "Significant Subsidiary" means each of ▇▇▇▇▇▇ Brothers
Inc., ▇▇▇▇▇▇ Brothers International (Europe), ▇▇▇▇▇▇ Brothers Finance S.A.
and ▇▇▇▇▇▇ Brothers Special Financing Inc.
(h) Each of the Company and the Significant Subsidiaries have been
duly organized, are validly existing and in good standing under the laws of
their respective jurisdictions of incorporation, are duly qualified to do
business and in good standing as foreign corporations and are duly
registered as a broker-dealer, broker, dealer or investment advisor, as the
case may be, in each jurisdiction in which their respective ownership of
property or the conduct of their respective businesses requires such
qualification or registration and in which the failure to qualify or
register would be reasonably likely, individually or in the aggregate, to
have a material adverse effect on the business, condition or properties of
the Company and its subsidiaries taken as a whole (a "Material Adverse
Effect"). Each of the Company and the Significant Subsidiaries holds all
material licenses, permits, and certificates from governmental authorities
necessary for the conduct of its business and owns, or possesses adequate
rights to use, all material rights necessary for the conduct of such
business and has not received any notice of material conflict with the
asserted rights of others in respect thereof, except in each case where the
failure to do so would not be reasonably likely, individually or in the
aggregate, to have a Material Adverse Effect; and each of the Company and
the Significant Subsidiaries has the corporate power and authority
necessary to own or hold its properties and to conduct the businesses in
which it is engaged. Except as may be disclosed in the Registration
Statement and the Prospectus, all outstanding shares of capital stock of
the Significant Subsidiaries have been duly authorized and are validly
issued and outstanding, fully paid and non-assessable and, except for
directors' qualifying shares, are owned by the Company, directly or
indirectly through subsidiaries, free and clear of any lien, pledge and
encumbrance or any claim of any third party.
(i) Except as described in the Registration Statement and the
Prospectus, there is no material litigation or governmental proceeding
pending or, to the knowledge of the Company, threatened against the Company
or any of its subsidiaries which might reasonably be expected to have a
Material Adverse Effect or which is required to be disclosed in the
Registration Statement and the Prospectus.
(j) The certificates delivered pursuant to paragraph (c) of Section 5
hereof and all other documents delivered by the Company or its
representatives in connection with the issuance and sale of the Securities
were on the dates on which they were delivered, or will be on the dates on
which they are to be delivered, in all material respects true and complete.
(l) Any certificate signed by any officer of the Company and delivered
to one or more Agents or to counsel for the Agents in connection with an
offering of the Securities to one or more Agents as principal or through an
Agent as 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 Agent agrees, as exclusive agent of
the Company, to use its reasonable best efforts to solicit offers to
purchase the Securities upon the terms and conditions set forth in the
Prospectus. The Agent shall not otherwise employ, pay or compensate any
other person to solicit offers to purchase the Securities or to perform any
of its functions as agent without the prior written consent of the Company.
The Company reserves the right, in its sole discretion, to suspend
solicitation of offers to purchase the Securities commencing at any time
for any period of time or permanently. Upon receipt of at least one
business day's prior notice from the Company, the Agent will forthwith
suspend solicitation of offers to purchase Securities from the Company
until such time as the Company has advised the Agent that such solicitation
may be resumed. For the purpose of the foregoing sentence, "business day"
shall mean any day which is not a Saturday or Sunday and which in New York
City is not a day on which banking institutions are generally authorized or
obligated by law to close. The Agent is authorized to solicit offers to
purchase the Securities only in denominations of $1,000 or any amount in
excess thereof which is an integral multiple of $1,000, at a purchase price
equal to 100% of the principal amount thereof or such other amount as shall
be specified by the Company. The Agent shall communicate to the Company,
orally or in writing, each reasonable offer to purchase Securities received
by it as Agent. The Company shall have the sole right to accept offers to
purchase the Securities and may reject any such offer in whole or in part.
The Agent shall have the right, in its discretion reasonably exercised
without advising the Company, to reject any offer to purchase the
Securities received by it in whole or in part, and any such rejection shall
not be deemed a breach of its agreement contained herein.
(b) Promptly upon the closing of the sale of any Securities sold by
the Company as a result of a solicitation made by the Agent, the Company
agrees to pay the Agent a commission in accordance with the schedule set
forth in Exhibit A hereto applicable to such Security.
(c) Administrative procedures respecting the sale of each of the
Securities shall be agreed upon from time to time by the Agent and the
Company (the "Procedures"). The Procedures initially shall include those
procedures set forth in Exhibit B hereto. The Agent and the Company agree
to perform the respective duties and obligations specifically provided to
be performed by each of them herein and in the Procedures.
(d) The documents required to be delivered by Section 5 hereof shall
be delivered at the offices of ▇▇▇▇▇▇ Brothers Inc., ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, no later than 10:00 A.M., New York City
time, on the date of this Agreement or at such later time as may be
mutually agreed the Company and the Agent, which in no event shall be later
than the time at which the Agent commences solicitation of purchasers of
Securities hereunder, such time and date be herein called the "Closing
Date."
SECTION 3. Covenants of the Company. The Company covenants and agrees
with the Agent that it will furnish (to the extent it has not already done
so) to each of the Agent and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel to the
Agent, a copy of the Registration Statement, including all exhibits, in the
form it became effective and all of the amendments thereto and that:
(a) The Company shall advise the agent promptly (i) of any proposal to
amend or supplement the Registration Statement or the Prospectus and will
afford the Agent a reasonable opportunity to comment on any such proposed
amendment or supplement and will advise the Agent of the filing of any such
amendment or supplement; (ii) of any request or proposed request by the
Commission for an amendment or supplement to the Registration Statement,
the Prospectus, to any document incorporated by reference in any of the
foregoing or for additional information; (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or any part thereof or the initiation or threat of
any stop order proceeding and will use its best efforts to prevent the
issuance of any stop order and to obtain as soon as possible its lifting,
if issued and (iv) of receipt by the Company of any notification with
respect to the suspension of the qualification of the Securities for sale
in any jurisdiction or the initiation or threat of any proceeding for that
purpose.
(b) If, during any Marketing Period, any event occurs as a result of
which the Prospectus would include an untrue statement of a material fact
or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, or if it is necessary at any time to amend the Prospectus to
comply with the Securities Act, the Company will notify the Agent promptly
to suspend solicitation of purchases of the Securities; and if the Company
shall decide to amend or supplement the Registration Statement or the
Prospectus, it will promptly advise the Agent by telephone (with
confirmation in writing) and will promptly prepare and file with the
Commission an amendment or supplement which will correct such statement or
omission or an amendment which will effect such compliance and will use its
reasonable best efforts to cause any amendment of the Registration
Statement containing an amended Prospectus to be made effective as soon as
possible.
(c) As soon as practicable, but not later than 18 months, after the
date of each acceptance by the Company of an offer to purchase Securities
hereunder, the Company will make generally available to its security
holders an earnings statement which will satisfy the provisions of Section
11(a) of the Securities Act and Rule 158 of the Rules and Regulations under
the Securities Act.
(d) The Company will furnish to the Agent without charge copies of the
Registration Statement, including all exhibits, the Prospectus and all
amendments and supplements to such documents, in each case as soon as
available and in such quantities as are reasonably requested.
(e) The Company will furnish such information, execute such
instruments and take such actions as may be required to qualify the
Securities for offering and sale under the laws of such jurisdictions as
the Agent may designate and will maintain such qualifications in effect so
long as required for the sale of the Securities; provided, however, that
the Company shall not be required to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action which
would subject it to general or unlimited service of process in any
jurisdiction where it is not now so subject.
SECTION 4. Payment of Expenses. The Company will pay (i) the costs
incident to the authorization, issuance, sale and delivery of the
Securities and any taxes payable in that connection, (ii) the costs
incident to the preparation, printing and filing under the Securities Act
of the Registration Statement and any amendments and exhibits thereto,
(iii) the costs incident to the preparation, printing and filing of any
document and any amendments and exhibits thereto required to be filed by
the Company under the Exchange Act, (iv) the costs of distributing the
Registration Statement, as originally filed, and each amendment and
post-effective amendment thereof (including exhibits), any preliminary
prospectus in any of the foregoing documents, (v) the fees and
disbursements of the Trustee and its counsel, (vi) the cost of any filings
with the National Association of Securities Dealers, Inc., (vii) the fees
and disbursements of counsel to the Company and the Company's accountants,
(viii) the fees paid to rating agencies in connection with the rating of
the Securities, (ix) the fees and expenses of qualifying the Securities
under the securities laws of the several jurisdictions as provided in
Section 3(e) hereof and of preparing and printing a Blue Sky Survey and a
memorandum concerning the legality of the Securities as an investment
(including fees and expenses of the Agent's counsel in connection
therewith) and (x) all other costs and expenses incident to the performance
of the Company's obligations under this Agreement. In addition, the Company
agrees to reimburse the Agent for the fees and disbursements of its legal
counsel.
SECTION 5. Conditions of Obligations. The obligation of the Agent, as
agent of the Company, under this Agreement to solicit offers to purchase
the Securities is subject to the accuracy in all material respects, on each
Representation Date, of the representations and warranties of the Company
contained herein, to the accuracy of the statements of officers of the
Company made in any certificates, affidavits, written statements or letters
furnished to the Agent or counsel to the Agent pursuant to the provisions
hereof, to the performance by the Company of its obligations hereunder, and
to each of the following additional conditions precedent:
(a) No order suspending the effectiveness of the Registration
Statement or suspending the qualification of the Indenture shall be in
effect and no proceedings for such purpose shall be pending before or
threatened by the Commission, and any requests for additional information
on the part of the Commission (to be included in the Registration Statement
or the Prospectus or otherwise) shall have been complied with to the
reasonable satisfaction of the Agent.
(b) At the Closing Date, the Company shall have furnished to the Agent
the opinion of an Associate General Counsel of the Company, addressed to
the Agent and dated the Closing Date, to the effect that:
i) The Company has been duly organized and is validly existing and in
good standing under the laws of the State of Delaware with all requisite
corporate power and authority to own and operate its properties and to
conduct the businesses in which it is engaged as described in the
Prospectus. Each of the Significant Subsidiaries that is organized under
the laws of the United States or any State or territory thereof (a
"Domestic Significant Subsidiary") is a duly organized and validly existing
corporation in good standing under the laws of its jurisdiction of
incorporation, with all requisite corporate power and authority to own and
operate its properties and conduct its business as described in the
Prospectus. Each of the Company and the Domestic Significant Subsidiaries
is duly qualified to do business as a foreign corporation, is in good
standing and is duly registered as a broker-dealer, broker, dealer or
investment advisor, as the case may be, in each jurisdiction in which the
nature of the business conducted by it or in which the ownership or holding
by lease of the properties owned or held by it requires such qualification
or registration and where the failure to so qualify or register would have
a Material Adverse Effect.
ii) All the outstanding shares of capital stock of the Domestic
Significant Subsidiaries have been duly authorized and are validly issued
and outstanding and are fully paid and non-assessable and, except for
directors' qualifying shares, are owned by the Company or a subsidiary of
the Company free and clear of any claims, liens, encumbrances and security
interests.
iii) The Securities and the Indenture conform in all material respects
to the descriptions thereof contained in the Prospectus.
iv) The Indenture has been duly authorized, executed and delivered by
the Company and has been duly qualified under the Trust Indenture Act, and
constitutes a legal, valid and binding instrument enforceable against the
Company in accordance with its terms; and the Securities have been duly
authorized by the Company, and, when executed and authenticated as
specified in the Indenture and delivered against payment therefor in
accordance with this Agreement, will be legal, valid and binding
obligations of the Company entitled to the benefits of the Indenture;
provided, however, that the foregoing is subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws affecting creditors' rights generally from time to time in
effect, to general equitable principles (whether considered in a proceeding
at law or in equity) and to an implied covenant of good faith and fair
dealing).
v) No consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation of the
transactions contemplated in this Agreement, except for (1) such consents,
approvals, authorizations or orders as have been obtained under the
Securities Act and such as may be required under the Exchange Act and state
securities laws, and (2) the qualification of the Indenture under the Trust
Indenture Act, which has been obtained.
vi) Such counsel does not know of any contracts or other documents
which are required to be filed as exhibits to the Registration Statement by
the Securities Act or by the Rules and Regulations which have not been
filed as exhibits to the Registration Statement or incorporated therein by
reference as permitted by the Rules and Regulations.
vii) Such counsel does not know of any litigation or any governmental
proceeding pending or threatened against the Company or any of its
subsidiaries which would affect the subject matter of this Agreement or is
required to be disclosed in the Prospectus which is not disclosed and
correctly summarized (by incorporation by reference or otherwise) therein.
viii) To the best of such counsel's knowledge, neither the Company nor
any of the Domestic Significant Subsidiaries is in violation of its
corporate charter or by-laws, nor in default under any agreement, indenture
or instrument known to such counsel, the effect of which would be material
to the Company and its subsidiaries taken as a whole.
ix) This Agreement has been duly authorized, executed and delivered by
the Company; the execution, delivery and performance of this Agreement by
the Company will not conflict with, or result in the creation or imposition
of any material lien, charge or encumbrance upon any of the assets of the
Company or the Domestic Significant Subsidiaries pursuant to the terms of,
or constitute a default under, any agreement, indenture or instrument known
to such counsel and to which the Company or the Domestic Significant
Subsidiaries is a party or bound, or result in a violation of the corporate
charter or by-laws of the Company or the Domestic Significant Subsidiaries
or any order, rule or regulation known to such counsel of any court or
governmental agency having jurisdiction over the Company, the Domestic
Significant Subsidiaries or any of their respective properties, the effect
of which conflict, default or violation would be material to the Company
and its subsidiaries taken as a whole;
x) The Registration Statement has become effective under the
Securities Act, and, to the best knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has been issued
and no proceeding for that purpose is pending or threatened by the
Commission.
xi) The Registration Statement and the Prospectus (except that no
opinion need be expressed as to the financial statements and notes thereto
or the schedules or other financial or statistical data or the Form T-1
included or incorporated by reference therein), comply as to form in all
material respects with the requirements of the Securities Act and the Rules
and Regulations.
Such opinion shall also contain a statement that although such counsel
is not passing upon and does not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement and the Prospectus (except as to those matters
stated in paragraph (iii) of this subsection (b)), such counsel has no
reason to believe that (A) the Registration Statement, as of its
effective date, contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading or (B)
the Prospectus contains any untrue statement of a material fact or
omits to state any material fact necessary in order to make the
statements therein, in light of the circumstances under which they were
made, not misleading (except that no statement need be made as to the
financial statements and notes thereto or the schedules or other
financial or statistical data or the Form T-1 included or incorporated
by reference therein).
In rendering such opinion, such counsel may rely upon opinions of local
counsel satisfactory to the Agent for matters not governed by New York
law and may rely as to matters of fact, to the extent he or she deems
proper, upon certificates or affidavits of officers of the Company, the
Trustee and public officials. Such counsel may rely on a certificate of
the Trustee with respect to the execution of the Securities by the
Company and the authentication thereof by the Trustee.
(c) At the Closing Date, the Agent shall have received from counsel to the
Agent such opinion or opinions, dated the Closing Date, with respect to
the issuance and sale of the Securities, the Registration Statement,
the Prospectus and other related matters as the Agent may reasonably
require, and the Company shall have furnished to such counsel such
documents as they request for the purpose of enabling them to pass upon
such matters.
(d) The Company shall have furnished to the Agent on the Closing Date a
certificate, dated the Closing Date, of the Chairman of the Board, any
Vice Chairman, the Chief Executive Officer, any Executive Vice
President or any Vice President and the Treasurer or Chief Financial
Officer 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 Agent a letter, dated the day
of the Closing Date, confirming that they are independent auditors with
respect to the Company within the meaning of the Securities Act and in
form and substance satisfactory to the Agent, stating in effect that:
i) In their opinion, the consolidated financial statements of the
Company and its subsidiaries, and the supporting schedules, included in the
Registration Statement and the Prospectus and audited by them comply as to
form in all material respects with the applicable accounting requirements
of the Securities Act and the Exchange Act and the related published rules
and regulations thereunder.
ii) On the basis of a reading of the unaudited consolidated financial
statements of the Company and its subsidiaries, if any, included in the
Registration Statement and the Prospectus and of the latest unaudited
consolidated financial statements made available by the Company and ▇▇▇▇▇▇
Brothers Inc., carrying out certain specified procedures (but not an audit
in accordance with generally accepted auditing standards), a reading of the
minutes of the meetings of the directors of the Company and ▇▇▇▇▇▇ Brothers
Inc., and inquiries of certain officials of the Company who have
responsibility for financial and accounting matters of the Company and its
subsidiaries, as to transactions and events subsequent to the date of the
most recent audited consolidated financial statements included in the
Registration Statement and the Prospectus, nothing came to their attention
that caused them to believe that:
(A) any material modifications should be made
to the unaudited consolidated financial statements of
the Company and its subsidiaries, if any, included in
the Registration Statement and the Prospectus, for
them to be in conformity with generally accepted
accounting principles; and such financial statements
do not comply as to form in all material respects
with the applicable accounting requirements of the
Securities Act and the published instructions, rules
and regulations thereunder.
(B) the unaudited capsule information of the
Company and its subsidiaries, if any, included in the
Registration Statement and the Prospectus does not
agree with the amounts set forth in the unaudited
consolidated financial statements of the Company from
which it was derived or was not determined on a basis
substantially consistent with that of the
corresponding financial information in the latest
audited financial statements of the Company included
in the Registration Statement and the Prospectus.
(C) (I) as of the latest date as of which the
Company and its subsidiaries have monthly financial
statements, there was any decrease in the capital
stock, additional paid-in capital or retained
earnings, or increase in long-term indebtedness of
the Company and its subsidiaries, as compared with
the amounts shown in the most recent consolidated
statement of financial condition of the Company and
its subsidiaries included in the Registration
Statement and the Prospectus, (II) with respect to
the period subsequent to the date of the most recent
financial statements included in the Registration
Statement and the Prospectus and extending through
the latest date as of which the Company and its
subsidiaries have monthly financial statements, there
was a consolidated net loss or (III) with respect to
the amounts of net capital or excess net capital of
▇▇▇▇▇▇ Brothers Inc. determined pursuant to
Commission Rule 15c3-1 and shown in the most recent
financial statement of ▇▇▇▇▇▇ Brothers Inc. filed
pursuant to Commission Rule 17a-5, there has been any
decrease in such amounts as compared with the amounts
shown in the most recent consolidated financial
statements included in the Registration Statement and
the Prospectus.
(D) as of a specified date not more than
three business days prior to the date of the letter,
there was any decrease in the capital stock or
additional paid-in capital, or increase in long-term
indebtedness of the Company and its subsidiaries, as
compared with the amounts shown in the most recent
consolidated statement of financial condition of the
Company and its subsidiaries included in the
Registration Statement and the Prospectus;
except in all instances for increases or decreases set forth
in such letter, in which case the letter shall be accompanied
by an explanation by the Company as to the significance
thereof, unless said explanation is not deemed necessary by
the Agent.
iii) If pro forma financial statements are included in the
Registration Statement or the Prospectus, (x) they have read such pro forma
financial statements, (y) they have made inquiries of certain officials of
the Company who have responsibility for financial and accounting matters of
the Company as to the basis for their determination of the pro forma
adjustments and whether such pro forma financial statements comply as to
form in all material respects with the applicable accounting requirements
of Rule 11-02 of Regulation S-X and (z) they have proved the arithmetic
accuracy of the application of the pro forma adjustments to the historical
amounts; and as a result thereof, nothing came to their attention that
caused them to believe that such pro forma financial statements do not so
comply with Rule 11-02 of Regulation S-X and that such pro forma
adjustments have not been properly applied to the historical amounts in the
compilation of those statements.
iv) They have performed certain other specified procedures as a result
of which they determined that certain information of an accounting,
financial or statistical nature (which is expressed in dollars, or
percentages derived from dollar amounts, and has been obtained from the
general accounting records of the Company) set forth in the Registration
Statement, as amended, and the Prospectus, as amended or supplemented, and
in Exhibit 12 to the Registration Statement, including specified
information, if any, included or incorporated from the Company's Annual
Report on Form 10-K incorporated therein or specified information, if any,
included or incorporated from any of the Company's Quarterly Reports on
Form 10-Q or its Current Reports on Form 8-K incorporated therein, agrees
with the accounting records of the Company and its subsidiaries or
computations made therefrom, excluding any questions of legal
interpretation.
(f) Subsequent to the execution of this Agreement, there shall not
have been any decrease in the ratings of any of the Company's debt
securities by ▇▇▇▇▇'▇ Investors Service, Inc., or Standard & Poor's
Corporation.
(g) Prior to the Closing Date, the Company shall have furnished to the
Agent such further information, certificates and documents as the Agent or
counsel to the Agent may reasonably request.
If any of the conditions specified in this Section 5 shall not
have been fulfilled when and as required by this Agreement, or if any of the
certificates or opinions furnished to the Agent or to counsel to the Agent
pursuant to this Section 5 shall not be in all material respects reasonably
satisfactory in form and substance to the Agent and to counsel to the Agent,
this Agreement and all obligations of the Agent hereunder may be cancelled by
the Agent. Notice of such cancellation shall be given to the Company in writing,
or by telegraph confirmed in writing.
SECTION 6. Additional Covenants of the Company. The Company covenants
and agrees that:
(a) Each acceptance by it of an offer for the purchase of Securities
shall be deemed to be an affirmation that the representations and
warranties of the Company contained in this Agreement are true and correct
in all material respects at the time of such acceptance and an undertaking
that such representations and warranties will be true and correct in all
material respects at the time of delivery to the purchaser or his agent of
the Securities relating to such acceptance as though made at and as of each
such time (and it is understood that such representations and warranties
shall relate to the Registration Statement and the Prospectus as amended or
supplemented to each such time).
(b) During each Marketing Period, each time that the Registration
Statement or the Prospectus shall be amended or supplemented or the Company
shall file with the Commission any document incorporated by reference into
the Prospectus (other than by filing with the Commission of an exhibit to
the Registration Statement or Prospectus that does not relate to the
Securities, a prospectus supplement not relating to the Securities or an
amendment or supplement providing solely for a change in the interest
rates, redemption provisions, amortization schedule or maturities of the
Securities or a change in the principal amount of Securities remaining to
be sold or other information contemplated by the Prospectus to be filed in
a pricing supplement related to the Securities or similar changes, or any
other change that the Agent reasonably deems immaterial), the Company
shall, (i) within two (2) business days after such amendment, supplement or
filing or (ii) if such amendment, supplement or filing was not filed during
a Marketing Period, within two (2) business days after the first day of the
next succeeding Marketing Period, furnish the Agent with a certificate of
the Chairman of the Board, any Vice Chairman, the Chief Executive Officer,
any Executive Vice President or any Vice President and the Treasurer or the
Chief Financial Officer of the Company in form satisfactory to the Agent to
the effect that the statements contained in the certificate referred to in
Section 5(d) hereof which was last furnished to the Agent are true and
correct at the time of such amendment or supplement or filing, as the case
may be, as though made at and as of such time (except that such statements
shall be deemed to relate to the Registration Statement and the Prospectus
as amended and supplemented to such time) or, in lieu of such certificate,
a certificate of the same tenor as the certificate referred to in said
Section 5(d), modified as necessary to relate to the Registration Statement
and the Prospectus as amended and supplemented to the time of delivery of
such certificate. If requested by the lead manager (as defined in the
Purchase Agreement (as hereinafter defined)), in its sole discretion,
pursuant to Section 11(a) of this Agreement in connection with the purchase
of Securities from the Company by the Agent or one or more other Purchasers
(as hereinafter defined) as principal, the Company shall deliver to the
lead manager on behalf of the Purchasers on the Settlement Date (as defined
in the applicable Purchase Agreement) a certificate of the type described
in the previous sentence.
(c) During each Marketing Period, each time that the Registration
Statement or the Prospectus shall be amended or supplemented or the Company
shall file with the Commission any document incorporated by reference into
the Prospectus (other than by filing with the Commission of an exhibit to
the Registration Statement or Prospectus that does not relate to the
Securities, an amendment or supplement to or document incorporated by
reference in the Registration Statement or Prospectus setting forth only
financial statements or other financial information, (including any press
release announcing earnings), a prospectus supplement not relating to the
Securities or an amendment or supplement providing solely for a change in
the interest rates, redemption provisions, amortization schedule or
maturities of the Securities or a change in the principal amount of
Securities remaining to be sold or other information contemplated by the
Prospectus to be filed in a pricing supplement related to the Securities or
similar changes, or any other change that the Agent reasonably deems
immaterial), the Company shall, (i) within two (2) business days after such
amendment, supplement or filing or (ii) if such amendment, supplement or
filing was not filed during a Marketing Period, within two (2) business
days after the first day of the next succeeding Marketing Period, furnish
the Agent with the written opinion of an Associate General Counsel to the
Company, addressed to the Agent and dated the date of delivery of such
opinion, in form satisfactory to the Agent, of the same tenor as the
opinion referred to in Section 5(b) hereof, but modified, as necessary, to
relate to the Registration Statement and the Prospectus as amended or
supplemented to the time of delivery of such opinion; provided, however,
that in lieu of such opinion, such counsel may furnish the Agent with a
letter to the effect that the Agent may rely on a prior opinion delivered
under Section 5(b) or this Section 6(c) to the same extent as if it were
dated the date of such letter authorizing reliance (except that statements
in such prior opinion shall be deemed to relate to the Registration
Statement and the Prospectus as amended or supplemented to the time of
delivery of such letter authorizing reliance). If requested by the lead
manager, in its sole discretion, pursuant to Section 11(a) of this
Agreement in connection with the purchase of Securities from the Company by
the Agent or one or more other Purchasers as principal, the Company shall
deliver to the lead manager on behalf of the Purchasers on the Settlement
Date an opinion of counsel of the type described in the previous sentence.
(d) During each Marketing Period, each time that the Registration
Statement or the Prospectus shall be amended or supplemented to include
additional financial information or the Company files with the Commission
any document incorporated by reference into the Prospectus which contains
additional financial information (other than information that the Agent
reasonably deems immaterial), the Company shall cause the Company's
auditors to furnish the Agent, (i) within two (2) business days after such
amendment, supplement or filing or (ii) if such amendment, supplement or
filing was not filed during a Marketing Period, within two (2) business
days after the first day of the next succeeding Marketing Period, a letter,
addressed to the Agent and dated the date of delivery of such letter, in
form and substance satisfactory to the Agent, of the same tenor as the
letter referred to in Section 5(e) hereof but modified to relate to the
Registration Statement and Prospectus, as amended and supplemented to the
date of such letter, with such changes as may be necessary to reflect
changes in the financial statements and other information derived from the
accounting records of the Company; provided, however, that if the
Registration Statement or the Prospectus is amended or supplemented solely
to include financial information as of and for a fiscal quarter, the
Company's auditor may limit the scope of such letter to the unaudited
financial statements included in such amendment or supplement unless there
is contained therein any other accounting, financial or statistical
information that, in the Agent's reasonable judgment, should be covered by
such letter, in which event such letter shall also cover such other
information. If requested by the lead manager, in its sole discretion,
pursuant to Section 11(a) of this Agreement in connection with the purchase
of Securities from the Company by the Agent or one or more other Purchasers
as principal, the Company shall deliver to the lead manager on behalf of
the Purchasers on the Settlement Date a letter of the type described in the
previous sentence.
SECTION 7. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless the Agent, and each person who controls the
Agent within the meaning of the Securities Act against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of
them may become subject under the Securities Act, the Exchange Act or other
federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages, or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement, as originally filed, or in any amendment thereof or supplement
thereto or in any preliminary prospectus relating to the Securities or the
Prospectus, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and agrees to
reimburse each such indemnified party for any legal or other expenses
reasonably incurred by them in connection with investigating or defending
any such loss, claim, damage, liability or action; provided, however, that
(i) the Company will not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon any
such untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with written
information furnished to the Company as herein stated by the Agent
specifically for use in connection with the preparation thereof and (ii)
such indemnity with respect to any Prospectus shall not inure to the
benefit of the Agent (or any person controlling the Agent) from whom the
person asserting any such loss, claim, damage or liability purchased the
Securities which are the subject thereof if such person did not receive a
copy of the Prospectus at or prior to the confirmation of the sale of such
Securities to such person in any case where such delivery is required by
the Securities Act and the untrue statement or omission of a material fact
contained in such Prospectus was corrected in an amended or supplemented
Prospectus, unless such failure to deliver such amended or supplemented
Prospectus was a result of noncompliance by the Company with Section 3(d)
hereof. This indemnity agreement will be in addition to any liability which
the Company may otherwise have to the Agent or any controlling person.
(b) The Agent agrees to indemnify and hold harmless the Company, each
of its directors, each of its officers who signs the Registration Statement
and each person, if any, who controls the Company within the meaning of the
Securities Act against any and all losses, claims, damages or liabilities,
joint or several, to which they or any of them may become subject under the
Securities Act, the Exchange Act or federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities (or action in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement as originally filed, or in any
amendment thereof or supplement thereto or in any preliminary prospectus
relating to the Securities, or the Prospectus, or arise out of or are based
upon the omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein
not misleading, in each case to the extent, but only to the extent, that
the same was made therein in reliance upon and in conformity with written
information furnished to the Company as herein stated by the Agent
specifically for use in the preparation thereof, and agrees to reimburse
such indemnified party for any legal and other expenses reasonably incurred
by them in connection with investigating or defending any such loss, claim,
damage, liability or action. This indemnity agreement will be in addition
to any liability which the Agent may otherwise have. The statements with
respect to the public offering of the Securities and the manner of
distribution thereof and with respect to the Agent set forth on the cover
page of the and under the headings "Plan of Distribution" in the Prospectus
constitute the only information furnished in writing by the Agent for
inclusion in the Registration Statement and the Prospectus, and you, as the
Agent, confirm that such statements are correct.
(c) Promptly after receipt by an indemnified party under this Section
7 of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party
under this Section 7, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party
will not relieve it from any liability which it may have to any indemnified
party otherwise than under this Section 7. In case any such action is
brought against any indemnified party, and it notifies the indemnifying
party of the commencement thereof, the indemnifying party will be entitled
to participate therein, and to the extent that it may elect by written
notice delivered to the indemnified party promptly after receiving the
aforesaid notice from such indemnified party, to assume the defense
thereof, with counsel satisfactory to such indemnified party; provided,
however, if the defendants in any such action include both the indemnified
party and the indemnifying party and either (i) the indemnifying party or
parties and the indemnified party or parties mutually agree or (ii)
representation of both the indemnifying party or parties and the
indemnified party or parties by the same counsel is inappropriate under
applicable standards of professional conduct due to actual or potential
differing interests between them, the indemnified party or parties shall
have the right to elect separate counsel to assume such legal defenses and
to otherwise participate in the defense of such action on behalf of such
indemnified party or parties. Upon receipt of notice from the indemnifying
party to such indemnified party of its election so to assume the defense of
action and approval by the indemnified party of counsel, the indemnifying
party will not be liable to such indemnified party under this Section 7 for
any legal or other expenses subsequently incurred by such indemnified party
in connection with the defense thereof unless (i) the indemnified party
shall have employed counsel in connection with assumption of legal defenses
in accordance with the proviso to the next preceding sentence (it being
understood, however, that the indemnifying party shall not be liable for
the expenses of more than one separate counsel, approved by the Agent in
the case of subparagraph (a) representing the indemnified parties under
subparagraph (a), as the case may be, who are parties to such action), (ii)
the indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable
time after notice of commencement of the action or (iii) the indemnified
party has authorized the employment of counsel for indemnified party at the
expense of the indemnified party. No indemnifying party shall (i) without
the prior written consent of the indemnified parties (which consent shall
not be unreasonably withheld), settle or compromise or consent to the entry
of any judgment with respect to any pending or threatened claim, action,
suit or proceeding in respect of which indemnification or contribution may
be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each indemnified
party from all liability arising out of such claim, action, suit or
proceeding, or (ii) be liable for any settlement of any such action
effected without its written consent (which consent shall not be
unreasonably withheld), but if settled with its written consent or if there
be a final judgment of the plaintiff in any such action, the indemnifying
party agrees to indemnify and hold harmless any indemnified party from and
against any loss or liability by reason of such settlement or judgment.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in subparagraph (a)
of this Section 7 is due in accordance with its terms but is for any reason
held by a court to be unavailable from the Company on grounds of policy or
other similar grounds, the Company and the Agent shall contribute to the
aggregate losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating or defending
same) to which the Company and the Agent may be subject in such proportion
so that the Agent is responsible for the portion represented by the
percentage that the total commissions received by the Agent from the
offering of the Securities bear to the public offering prices of such
Securities, and the Company is responsible for balance; provided, however,
that no person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person who controls the Agent within
the meaning of the Securities Act shall have the same rights to
contribution as the Agent, and each person who controls the Company within
the meaning of either the Securities Act or the Exchange Act, each officer
of the Company who shall have signed the Registration Statement and each
director of the Company shall have the same rights to contribution as the
Company, subject in each case to the proviso to the first sentence of this
subsection (d). Any party entitled to contribution will, promptly after
receipt of notice of commencement of any action, suit or proceeding against
such party in respect of which a claim for contribution may be made against
another party or parties under this subsection (d), notify such party or
parties from whom contribution may be sought, but the omission to so notify
such party or parties shall not relieve the party or parties from whom
contribution may be sought from any other obligation it or they may have
hereunder or otherwise than under this subsection (d).
SECTION 8. Status of the Agent. In soliciting offers to purchase the Securities
from the Company pursuant to this Agreement (other than offers to purchase
pursuant to Section 11), the Agent is acting solely as agent for the Company and
not as principal. The Agent will make reasonable efforts to assist the Company
in obtaining performance by each purchaser whose offer to purchase Securities
from the Company has been solicited by the Agent and accepted by the Company but
the Agent shall have no liability to the Company in the event any such purchase
is not consummated for any reason. If the Company shall default in its
obligations to deliver Securities to a purchaser whose offer it has accepted,
the Company shall (i) hold the Agent harmless against any loss, claim or damage
arising from or as a result of such default by the Company and (ii), in
particular, pay to the Agent any commission to which it would be entitled in
connection with such sale.
SECTION 9. Representations and Warranties to Survive Delivery. All
representations and warranties of the Company contained in this Agreement, or
contained in certificates of officers of the Company submitted pursuant hereto,
shall remain operative and in full force and effect, regardless of the
termination or cancellation of this Agreement or any investigation made by or on
behalf of the Agent or any person controlling the Agent or by or on behalf of
the Company, and shall survive each delivery of and payment for any of the
Securities.
SECTION 10. Termination. (a) This Agreement may be terminated for any reason, at
any time, by either party hereto upon the giving of one day's written notice of
such termination to the other party hereto. The provisions of Sections 3(c),
3(e), 3(f), 3(g), 4, 7, 8, 9, 13 and 14 hereof shall survive any termination of
this Agreement.
(b) Any Purchase Agreement executed pursuant to Section 11(a)
of this Agreement (and this Agreement, only insofar as it relates to the Issue
of Securities identified in such Purchase Agreement) shall be subject to
termination in the absolute discretion of the lead manager, by notice given to
the Company at or prior to delivery of and payment for all the Securities, if,
prior to such time (i) trading in securities generally on The New York Stock
Exchange (the "NYSE") or the over-the-counter market shall have been suspended
or limited or minimum prices shall have been established on the NYSE or the
over-the-counter market, (ii) a banking moratorium shall have been declared
either by federal or New York State authorities, (iii) any new restriction
materially affecting the distribution of the Securities shall have become
effective; trading in any securities of the Company shall have been suspended or
halted by any national securities exchange, the National Association of
Securities Dealers, Inc. or the Securities and Exchange Commission, (iv) the
United States becomes engaged in hostilities or there is an escalation in
hostilities involving the United States or there is a declaration of a national
emergency or war by the United States, or (v) there shall have been such a
material adverse change in national or international political, financial or
economic conditions, national or international equity markets or currency
exchange rates or controls as to make it, in the judgment of the lead manager,
inadvisable or impracticable to proceed with the payment for and delivery of the
Securities. The provisions of Sections 3(c), 3(e), 3(f), 3(g), 4, 7, 8, 9, 13
and 14 hereof, solely in respect of the Issue of Securities identified in such
Purchase Agreement, shall survive any termination of the Purchase Agreement and
this Agreement.
SECTION 11. (a) Purchases as Principal. From time to time the Agent, or one or
more additional financial institutions experienced in the distribution of
securities similar to the Securities (each such additional institution herein
referred to as a "Purchaser"), may agree with the Company to purchase Securities
from the Company as principal. Such agreement, if with the Agent only, may be
oral (in which case a written confirmation of terms shall be delivered by the
Agent to the Company) or may be made in accordance with the terms of a separate
written agreement (a "Purchase Agreement") to be entered into between the Agent
and/or the other Purchasers and the Company, substantially in the form attached
hereto as Exhibit C or in such other form as the Company and the Agent and/or
the other Purchasers may agree. A Purchase Agreement, to the extent set forth
therein, may incorporate by reference specified provisions of this Agreement.
Each Purchaser executing a Purchase Agreement shall become a party to this
Agreement, vested with all the authority, rights and powers and subject to all
the duties and obligations of the Agent when purchasing Securities as a
principal, as if originally named as an Agent hereunder, but solely in
connection with and for the purposes of the Issue of Securities identified in
such Purchase Agreement. At the time of each purchase of Securities from the
Company by the Agent or one or more other Purchasers as principal, the Agent or
the lead manager for the Purchaser, in its sole discretion, shall specify the
requirements for the officers' certificate, opinion of counsel and comfort
letter pursuant to Sections 7(b), 7(c) and 7(d) hereof.
(b) Additional Agents. Subject to Section 11(a) and notwithstanding Section 2(a)
above, the Company may from time to time appoint one or more additional
financial institutions experienced in the distribution of securities similar to
the Securities (each such additional institution herein referred to as an
"Additional Agent") as agent(s) hereunder on an issue by issue basis, pursuant
to a letter (an "Agent Accession Letter") substantially in the form of Exhibit D
to this Agreement, whereupon each such Additional Agent shall, subject to the
terms and conditions of this Agreement and the Agent Accession Letter, become a
party to this Agreement as an agent, vested with all the authority, rights and
powers and subject to all the duties and obligations of an Agent as if
originally named as an Agent hereunder, but solely in connection with and for
the purposes of the Issue of Securities identified in such Agent Accession
Letter.
SECTION 12. Notices. Except as otherwise provided herein, all notices and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if mailed or transmitted by any standard form of telecommunication.
Notices to the Agent shall be directed to it as follows: ▇▇▇▇▇▇ Brothers, Inc.,
3 World Financial Center, New York, New York 10285, Attention: Medium-Term Note
Desk, notices to the Company shall be directed to it as follows: ▇▇▇▇▇▇ Brothers
Holdings Inc., 3 World Financial Center, New York, New York 10285, Attention:
Treasurer.
SECTION 13. Binding Effect; Benefits. This Agreement shall be binding upon the
Agent, the Company, and their respective successors. This Agreement and the
terms and provisions hereof are for the sole benefit of only those persons,
except that (a) the representations, warranties, indemnities and agreements of
the Company contained in this Agreement shall also be deemed to be for the
benefit of the person or persons, if any, who control the Agent within the
meaning of Section 15 of the Securities Act, and (b) the indemnity agreement of
the Agent contained in Section 7 hereof shall be deemed to be for the benefit of
directors of the Company, officers of the Company who have signed the
Registration Statement and any person controlling the Company. Nothing in this
Agreement is intended or shall be construed to give any person, other than the
person referred to in this Section, any legal or equitable right, remedy or
claim under or in respect of this Agreement or any provision contained herein.
SECTION 14. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of New York. This Agreement may be executed in
counterparts and the executed counterparts shall together constitute a single
instrument.
If the foregoing correctly sets forth our agreement, please
indicate your acceptance hereof in the space provided for that purpose below.
Very truly yours,
▇▇▇▇▇▇ BROTHERS HOLDINGS INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
Title: Vice President
CONFIRMED AND ACCEPTED, as of the date first above written:
▇▇▇▇▇▇ BROTHERS INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------------------
Title: Senior Vice President
EXHIBIT A
▇▇▇▇▇▇ Brothers Holdings, Inc.
Schedule of Commissions
The Company agrees to pay the Agent a commission equal to the
following percentage of the principal amount of the Securities sold through the
Agent:
Medium-Term Notes, Series G
Due Nine Months or More from the Date of Issue
Term Commission Rate
9 months to less than 12 months All rates will be as negotiated at time
of sale; not to be less than .125% nor
more than .625% of the principal
amount
12 months to less than 18 months
18 months to less than 2 years
2 years to less than 3 years
3 years to less than 4 years
4 years to less than 5 years
5 years to less than 7 years
7 years to less than 10 years
10 years and longer
EXHIBIT B
▇▇▇▇▇▇ Brothers Holdings Inc.
Medium-Term Notes, Series G
Due Nine Months or More from the Date of Issue
ADMINISTRATIVE PROCEDURES
I. General Procedures
Medium-Term Notes, Series G due nine months or more from the
date of issue (the "Medium-Term Notes"), (the Medium-Term Notes are herein
referred to as, the "Notes") are to be offered on a continuing basis by ▇▇▇▇▇▇
Brothers Holdings Inc. (the "Company"). ▇▇▇▇▇▇ Brothers Inc., as agent [together
with its affiliate, ______ which affiliate shall, in such capacity, be treated
together with ▇▇▇▇▇▇ Brothers, Inc. as an Agent] ([collectively] the "Agent"),
has agreed to use its reasonable best efforts to solicit offers to purchase the
Notes. The Notes are being sold pursuant to a Distribution Agreement between the
Company and the Agent dated June 14, 2001 (the "Distribution Agreement") to
which these administrative procedures are attached as an exhibit. Terms defined
in the Agency Agreement shall have the same meaning when used in this exhibit.
Administrative responsibilities, document control and
record-keeping functions to be performed by the Company will be performed by its
Treasury Department. Administrative procedures for the offering are explained
below.
Each Note will be represented by a Global Security (as defined
hereinafter) delivered to the Trustee, as agent for the Depository Trust Company
("DTC"), and recorded in the book-entry system maintained by DTC (a "Book-Entry
Note"). An owner of a Book-Entry Note will not be entitled to receive a
certificate representing such Note. In connection with the qualification of the
Book-Entry Notes for eligibility in the book-entry system maintained by DTC, the
Trustee will perform the custodial, document control and administrative
functions described below, in accordance with its respective obligations under a
Letter of Representation from the Company and the Trustee to DTC dated as of the
date hereof and a Medium-Term Note Certificate Agreement between the Trustee and
DTC dated October 31, 1988, and its obligations as a participant in DTC,
including DTC's Same-Day Funds Settlement System ("SDFS") Except as otherwise
set forth in this Exhibit B, Book-Entry Notes will be issued in accordance with
the administrative procedures set forth below.
Price to Public
Each Note will be issued at 100% of principal amount, unless
otherwise determined by the Company.
Date of Issuance
8 Each Note will be dated and issued as of the date of its
authentication by the Trustee.
Maturities
Each Note will mature on a Business Day (as defined below)
selected by the purchaser and agreed upon by the Company, such date being more
than nine months from the date of issuance.
"Business Day" shall mean (i) any day that is not a Saturday
or Sunday and that is not a day on which banking institutions in New York, New
York are authorized or obligated by law or executive order to be closed, and
(ii) in the case of LIBOR Notes (as defined in Appendix A), any day that is not
a Saturday or Sunday and that, in New York City, is not a day on which banking
institutions generally are authorized or obligated by law or executive order to
be closed and is a day on which dealings in deposits in U.S. dollars are
transacted, or with respect to any future date are expected to be transacted, in
the London interbank market.
Denominations
The Notes will be issued in the denomination of $1,000 and
any larger denomination which is an integral multiple of $1,000.
Registration
Notes will be issued only in fully registered form.
Interest Payments
Each Note bearing interest at a fixed rate will bear interest
from its issue date at the annual rate stated on the face thereof. Unless
otherwise indicated in the applicable Pricing Supplement, interest will be
payable on February l5 and August 15 of each year (the "Interest Payment Dates")
and at maturity. Interest will be calculated and paid on the basis of a 360-day
year of twelve 30-day months or, in the case of an incomplete month, the number
of days elapsed. Interest will be payable to the person in whose name such Note
is registered at the close of business on the February 1 or August 1, or such
other dates as set forth in the applicable Pricing Supplement (the "Record
Dates"), next preceding the respective Interest Payment Date; provided however,
that interest payable on a maturity date will be payable to the person to whom
principal shall be payable. The first payment of interest on any Note originally
issued between a Record Date and an Interest Payment Date will be made on the
Interest Payment Date following the next succeeding Record Date. All interest
payments (excluding interest payments made at maturity) will be made by wire
transfer by the Trustee or by check mailed by the Trustee to the person entitled
thereto as provided above.
On the fifth Business Day immediately preceding each Interest
Payment Date, the Trustee will notify the Company as to the total amount of the
interest payments to be made on such Interest Payment Date. The Trustee (or any
duly selected paying agent) will provide monthly to the Company's Treasury
Department a list of the principal and interest to be paid on Notes maturing in
the next succeeding month. The Company will provide to the Trustee not later
than the payment date sufficient moneys to pay in full all principal and
interest payments due on such payment date. The Trustee will assume
responsibility for withholding taxes on interest paid as required by law.
For special provisions relating to Floating Rate Notes, see
Appendix A hereto.
Acceptance and Rejection of Offers
The Company shall have the sole right to accept offers to
purchase Notes and may reject any such offer in whole or in part. The Agent
shall promptly communicate to the Company, orally or in writing, each reasonable
offer to purchase Notes from the Company received by it other than those
rejected by the Agent. The Agent shall have the right, in its discretion
reasonably exercised, without notifying the Company, to reject any offers in
whole or in part.
Settlement
The receipt of immediately available funds by the Company in
payment for a Note (less the applicable commission) and the authentication and
issuance of such Note shall, with respect to such Note, constitute "Settlement".
All offers accepted by the Company will be settled from one to five Business
Days from the date of acceptance by the Company pursuant to the timetable for
Settlement set forth below unless the Company and the purchaser agree to
Settlement on a later date; provided, however, that the Company will notify the
Trustee of any such later date on or before the Business Day immediately prior
to the Settlement date. Except as otherwise may be agreed to by the Company and
the Agent, no Settlement will occur between a Record Date and an Interest
Payment Date.
Settlement Procedures
In the event of a purchase of Notes by the Agent, as
principal, appropriate Settlement details will be set forth in the applicable
Purchase Agreement to be entered into between the Agent and the Company pursuant
to the Agency Agreement.
Settlement procedures with regard to each Note sold through
the Agent shall be as follows:
A. The Agent will advise the Company and the Trustee in writing, by telex
or facsimile, of the following Settlement information:
1. Exact name in which Note is to be registered ("Registered Owner").
2. Exact address of the Registered Owner and address for payment of
principal and interest, if any.
3. Taxpayer identification number of the Registered Owner.
4. Principal amount of the Note (and, if multiple Notes are to be issued,
denominations thereof).
5. Settlement date.
6. Maturity date.
7. Interest rate:
a) Fixed Rate Notes:
i) interest rate
b) Floating Rate Notes:
i) base rate
ii) initial interest rate
iii) spread or spread multiplier, if any
iv) interest reset dates
v) interest payment dates
vi) index maturity
vii) maximum and minimum interest rates, if any.
8. If applicable, the date on or after which the Notes are redeemable at
the option of the Company and other terms of redemption.
9. If applicable, the date on or after which the Notes are terminable at
the option of the holder.
10. Agent's Commission (to be paid in the form of a discount from the
proceeds remitted to the Company upon Settlement).
B. The Company will confirm the above Settlement information to
the Trustee by telephone (confirmed in writing), telex or
facsimile, and the Trustee will assign a Note number to the
transaction. If the Company rejects an offer, the Company will
promptly notify the Agent and the Trustee by telephone.
C. The Agent will deliver to the purchaser a copy of the most
recent Prospectus applicable to the Note with or prior to any
written offer of Notes and the confirmation and payment by the
purchaser for the Note.
Settlement Procedures Timetable
For offers accepted by the Company, Settlement procedures "A"
through "C" set forth above shall be completed, as applicable, to the extent
practicable on or before the respective times set forth below:
Settlement Procedure Time (New York City)
-------------------- ----
A 2 PM on date of sale
B 3 PM on date of sale
C 3 PM on the Settlement date
Fails
In the event that a purchaser of a Note shall either fail to
accept delivery of or make payment for a Note on the date fixed by the Company
for Settlement, the Agent will immediately notify the Trustee and the Company's
Treasurer by telephone, confirmed in writing, of such failure and return the
Note to the Trustee. Upon the Trustee's receipt of the Note from the Agent, the
Company will promptly return to the Agent an amount of immediately available
funds equal to any amount previously transferred to the Company in respect of
the Note pursuant to advances made by the Agent. Such returns will be made on
the Settlement date, if possible, and in any event not later than 12 noon (New
York City time) on the Business Day following the Settlement date. The Company
will reimburse the Agent on an equitable basis for its loss of the use of the
funds during the period when the funds were credited to the account of the
Company. Upon receipt of the Note in respect of which the default occurred, the
Trustee will mark the Note "cancelled", make appropriate entries in its records
and deliver the Note to the Company with an appropriate debit advice. The Agent
will not be entitled to any commission with respect to any Note which the
purchaser does not accept or make payment for.
Maturity
Upon presentation of each Note at maturity the Trustee (or any
duly appointed Paying Agent) will pay the principal amount thereof, together
with accrued interest due at maturity. Such payment shall be made in immediately
available funds, provided that the Note is presented to the Trustee (or any such
Paying Agent) in time for the Trustee (or such Paying Agent) to make payments in
such funds in accordance with its normal procedures. The Company will provide
the Trustee (and any such Paying Agent) with funds available for immediate use
for such purpose. Notes presented at maturity will be cancelled by the Trustee
as provided in the Indenture.
Procedure for Rate Changes
The Company will establish interest rates from time to time
for the Notes then being offered and when a decision has been reached to change
the interest rates of the Notes being sold by the Company, the Company will
promptly advise the Agent, which will forthwith suspend solicitation of offers.
The Agent will telephone the Company with recommendations as to the changed
interest rates.
Suspension of Solicitation; Amendment or Supplement
If, at any time when a prospectus relating to the Securities
is required to be delivered under the Act, any event occurs as a result of which
the Prospectus would include an untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus to comply with the Act, the
Company will notify the Agent promptly to suspend solicitation of purchases of
the Securities and the Agent shall suspend its solicitations of purchases of
securities; and if the Company shall decide to amend or supplement the
Registration Statement or the Prospectus, it will promptly advise the Agent by
telephone (with confirmation in writing) and will promptly prepare and file with
the Commission an amendment or supplement which will correct such statement or
omission or an amendment which will effect such compliance and will use its
reasonable best efforts to cause any amendment of the Registration Statement
containing an amended Prospectus to be made effective as soon as possible. Upon
the Agent's receipt of such amendment or supplement and advice from the Company
that solicitations may be resumed, the Agent will resume solicitations of
purchases of the Securities.
In addition, subject to its representations, warranties and
covenants contained in the Agency Agreement, the Company may instruct the Agent
to suspend solicitation of offers to purchase at any time for a period of time
or permanently. Upon receipt of such instructions the Agent will forthwith (but
in any event within one Business Day) suspend solicitation of offers to purchase
from the Company until such time as the Company has advised it that solicitation
of offers to purchase may be resumed. If the Company decides to amend or
supplement the Registration Statement or the Prospectus relating to the Notes
(other than to change interest rates), it will promptly advise the Agent and the
Trustee and will furnish the Agent and the Trustee with copies of the proposed
amendment or supplement.
In the event that at the time the Agent, at the direction of
the Company, suspends solicitation of offers to purchase from the Company there
shall be any orders outstanding which have not been settled, the Company will
promptly advise the Agent and the Trustee whether such orders may be settled and
whether copies of the Prospectus as theretofore amended or supplemented as in
effect at the time of the suspension may be delivered in connection with the
Settlement of such orders. The Company will have the sole responsibility for
such decision and for any arrangements which may be made in the event that the
Company determines that such orders may not be settled or that copies of such
Prospectus may not be so delivered.
Delivery of Prospectus
The Agent will provide a copy of the relevant Prospectus,
appropriately amended or supplemented, which must accompany or precede each
written offer of a Note, if any, by the Agent, each written confirmation of a
sale sent to a purchaser or his agent by the Agent and each Note delivered to a
purchaser or his agent.
Authenticity of Signatures
The Company will cause the Trustee to furnish the Agent from
time to time with the specimen signatures of each of the Trustee's officers,
employees and agents who have been authorized by the Trustee to authenticate
Notes, but the Agent will have no obligation or liability to the Company or the
Trustee in respect of the authenticity of the signature of any officer, employee
or agent of the Company or the Trustee on any Note.
Advertising Costs
The Company will determine with the Agent the amount and
nature of advertising that may be appropriate in offering the Notes. Advertising
expenses in connection with solicitation of offers to purchase Notes from the
Company will be paid by the Company.
II. Special Administrative Procedures for Book-Entry Notes
Issuance: On any date of settlement (as defined under "Settlement" below)
for one or more Fixed Rate Book-Entry Notes, the Company will issue a
single global security in fully registered form without coupons (a
"Global Security") representing up to each $400,000,000 principal
amount of all of such Notes that have the same original issuance date,
interest rate, optional redemption dates and Stated Maturity.
Similarly, on any settlement date for one or more Floating Rate
Book-Entry Notes, the Company will issue a single Global Security
representing up to each $400,000,000 principal amount of all of such
Notes that have the same interest rate basis, original issuance date,
Initial Interest Rate, Interest Payment Dates, Index Maturity, Spread,
Spread Multiplier, minimum interest rate (if any), maximum interest
rate (if any), optional redemption dates (if any), Stated Maturity and
other terms. Each Global Security will be dated and issued as of the
date of its authentication by the Trustee. No Global Security will
represent both Fixed Rate and Floating Rate Book-Entry Notes.
Identification The Company will arrange, on or prior to commencement of a
program for the offering of Book-Entry Notes, with the CUSIP Service
Bureau of Standard &
Numbers: Poor's Credit Market Services (the "CUSIP Service Bureau") for the
reservation of a series of CUSIP numbers (including tranche numbers),
consisting of approximately 900 CUSIP numbers and relating to Global
Securities representing the Book-Entry Notes. The Company has or will
obtain from the CUSIP Service Bureau a written list of such series of
reserved CUSIP numbers and will deliver to the Trustee and DTC such
written list of 900 CUSIP numbers of such series. The Trustee will
assign CUSIP numbers to Global Securities as described below under
Settlement Procedure "B". The Company will notify the CUSIP Service
Bureau periodically of the CUSIP numbers that the Trustee has assigned
to Global Securities. The Trustee will notify the Company at any time
when fewer than 100 of the reserved CUSIP numbers remain unassigned to
Global Securities, and if it deems necessary, the Company will reserve
additional CUSIP numbers for assignment to Global Securities
representing Book-Entry Notes. Upon obtaining such additional CUSIP
numbers the Company shall deliver such additional CUSIP numbers to the
Trustee and DTC.
Registration Each Global Security will be registered in the name of Cede &
Co., as nominee for DTC, on the Securities Register maintained under
the Indenture. The beneficial owner of a Book-Entry Note (or one or
more indirect participants in DTC designated by such owner) will
designate one or more participants in DTC (with respect to such Note,
the "Participants") to act as agent or agents for such owner in
connection with the book-entry system maintained by DTC, and DTC will
record in book-entry form, in accordance with instructions provided by
such Participants, a credit balance with respect to such Note in the
account of such Participants. The ownership interest of such
beneficial owner in such Note will be recorded through the records of
such Participants or through the separate records of such Participants
and one or more indirect participants in DTC.
Transfers:Transfers of a Book-Entry Note will be accomplished by book
entries made by DTC and, in turn, by Participants (and in certain
cases, one or more indirect participants in DTC) acting on behalf of
beneficial transferors and transferees of such Note.
Consolidation
and Exchange
The Trustee may deliver to DTC and the CUSIP Service Bureau at
any time a written notice of consolidation specifying (i) the CUSIP
number of two or more Outstanding Global Securities that represent (A)
Fixed Rate Book-Entry Notes having the same interest rate, optional
redemption dates (if any) and Stated Maturity and with respect to
which interest has been paid to the same date or (B) Floating Rate
Book-Entry Notes having the same interest rate basis, optional
redemption dates (if any), Initial Interest Rate, Interest Payment
Dates, Index Maturity, Spread or Spread Multiplier, minimum interest
rate (if any), maximum interest rate (if any) and with respect to
which interest has been paid to the same date, (ii) a date, occurring
at least thirty days after such written notice is delivered and at
least thirty days before the next Interest Payment Date for such
Book-Entry Notes, on which such Global Securities shall be exchanged
for a single replacement Global Security and (iii) a new CUSIP number,
obtained from the Trustee, to be assigned to such replacement Global
Security. Upon receipt of such a notice, DTC will send to its
participants (including the Trustee) a written reorganization notice
to the effect that such exchange will occur on such date. Prior to the
specified exchange date, the Trustee will deliver to the CUSIP Service
Bureau a written notice setting forth such exchange date and the new
CUSIP number and stating that, as of such exchange date, the CUSIP
numbers of the Global Securities to be exchanged will no longer be
valid. On the specified exchange date, the Trustee will exchange such
Global Securities for a single Global Security bearing a new CUSIP
number and dated the last Interest Payment Date to which interest has
been paid or duly provided for on the exchanged Global Securities, and
the CUSIP numbers of the exchanged Global Securities will, in
accordance with CUSIP Service Bureau procedures, be cancelled and not
immediately reassigned. Notwithstanding the foregoing, if the Global
Securities to be exchanged exceed $400,000,000 in aggregate principal
amount, one Global Security will be authenticated and issued to
represent each $400,000,000 of principal amount of the exchanged
Global Securities and an additional Global Security will be
authenticated and issued to represent any remaining principal amount
of such Global Securities (see "Denominations" below).
Maturities: Each Book-Entry Note will mature on a date not less than nine months
after the settlement date for such Note. A Floating Rate Book Entry Note
will mature only on an Interest Payment Date for such Note.
Denominations: Book-Entry Notes will be issued in principal amounts of $1,000 or
any amount in excess thereof that is an integral multiple of $1,000. Global
Securities will be denominated in principal amounts not in excess of
$400,000,000. If one or more Book-Entry Notes having an aggregate principal
amount in excess of $400,000,000 would, but for the preceding sentence, be
represented by a single Global Security, then one Global Security will be
issued to represent each $400,000,000 principal amount of such Book-Entry
Note or Notes and an additional Global Security will be issued to represent
any remaining principal amount of such Book-Entry Note or Notes. In such a
case, each of the Global Securities representing such Book-Entry Note or
Notes shall be assigned the same CUSIP number.
Interest: General. Interest on each Book-Entry Note will accrue from and
including the last Interest Payment Date, except in the case of Floating
Rate Notes which reset daily or weekly. Each payment of interest on a
Book-Entry Note will include interest accrued through the day preceding, as
the case may be, the Interest Payment Date or Maturity, except in the case
of Floating Rate Book-Entry Notes which reset daily or weekly. In the case
of Floating Rate Book-Entry Notes which reset daily or weekly, interest
payments will include accrued interest from and including the original
issuance date or from and including the last date in respect of which
interest has been paid, as the case may be, to, and including the Record
Date immediately preceding the applicable Interest Payment Date, provided
that at Maturity the interest payable will include interest accrued from
and including the original issuance date or from and including the last
date in respect of which interest has been paid through the day preceding
Maturity. Interest payable at the Maturity of a Book-Entry Note will be
payable to the Person to whom the principal of such Note is payable.
Standard & Poor's Credit Market Services will use the information received
in the pending deposit message described under Settlement Procedure "C"
below in order to include the amount of any interest payable and certain
other information regarding the related Global Security in the appropriate
weekly bond report published by Standard & Poor's Credit Market Services.
Promptly after each Interest Determination Date (as defined in
Appendix A hereto) for Floating Rate Notes, the Calculation Agent will
notify the Trustee after confirmation with the Company, and the Trustee in
turn will notify Standard & Poor's Credit Market Services, of the interest
rates determined on such Interest Determination Date.
Payments of Principal and Interest:
Payments of Interest Only. Promptly after each Regular Record Date,
the Trustee will deliver to the Company and DTC a written notice specifying
by CUSIP number the amount of interest to be paid on each Global Security
on the following Interest Payment Date (other than an Interest Payment Date
coinciding with Maturity) and the total of such amounts. DTC will confirm
the amount payable on each Global Security on such Interest Payment Date by
reference to the daily bond reports published by Standard & Poor's Credit
Market Services. The Company will pay to the Trustee, as paying agent, the
total amount of interest due on such Interest Payment Date (other than at
Maturity), and the Trustee will pay such amount to DTC at the times and in
the manner set forth below under "Manner of Payment".
Payments at Maturity. On or about the first Business Day of each
month, the Trustee will deliver to the Company and DTC a written list of
principal and interest to be paid on each Global Security maturing in the
following month. The Company, the Trustee and DTC will confirm the amounts
of such principal and interest payments with respect to each such Global
Security on or about the fifth Business Day preceding the Maturity of such
Global Security, except for Notes with a daily reset period in which case
the Company, the Trustee and DTC will confirm the amount of the principal
payable with respect to each such Global Security on or about the fifth
Business Day preceding Maturity and the amount of interest payable with
respect to such Global Security two Business Days preceding the Maturity of
such Global Security. The Company will pay to the Trustee, as the paying
agent, the principal amount of such Global Security, together with interest
due at such Maturity. The Trustee will pay such amount to DTC at the times
and in the manner set forth below under "Manner of Payment".
Promptly after payment to DTC of the principal and interest due at the
Maturity of such Global Security, the Trustee will cancel such Global
Security and deliver it to the Company with an appropriate debit advice.
Manner of Payment. The total amount of any principal and interest due
on Global Securities on any Interest Payment Date or at Maturity shall be
paid by the Company to the Trustee in funds available for use by the
Trustee as of 9:30 A.M. (New York City time) on such date. The Company will
make such payment on such Global Securities by instructing the Trustee to
withdraw funds from an account maintained by the Company at the Trustee.
The Company will confirm such instructions in writing to the Trustee. For
maturity, redemption or any other principal payments: prior to 10 A.M. (New
York City time) on such date or as soon as possible thereafter, the Trustee
will make such payments to DTC in same day funds in accordance with DTC's
Same Day Funds Settlement Paying Agent Operating Procedures. For interest
payments: the Trustee will make such payments to DTC in accordance with
existing arrangements between DTC and the Trustee. DTC will allocate such
payments to its participants in accordance with its existing operating
procedures. Neither the Company nor the Trustee shall have any direct
responsibility or liability for the payment by DTC to such Participants of
the principal of and interest on the Book-Entry Notes.
Withholding Taxes. The amount of any taxes required under applicable
law to be withheld from any interest payment on a Book-Entry Note will be
determined and withheld by the Participant, indirect participant in DTC or
other Person responsible for forwarding payments and materials directly to
the beneficial owner of such Note.
Acceptance and Rejection of Offers:
Unless otherwise instructed by the Company, the Agent will advise the
Company promptly by telephone of all offers to purchase Book-Entry Notes
received by the Agent, other than those rejected by it in whole or in part
in the reasonable exercise of its discretion. Unless otherwise agreed by
the Company and each of the Agent, the Company has the sole right to accept
offers to purchase Book-Entry Notes and may reject any such offer in whole
or in part.
Settlement: The receipt by the Company of immediately available funds in payment
for a Book-Entry Note and the authentication and issuance of the Global
Security representing such Note shall constitute "settlement" with respect
to such Note. All orders accepted by the Company will be settled from one
to five Business Days from the date of acceptance by the Company pursuant
to the timetable set forth below unless the Company and the purchaser agree
to settlement on a later date.
Settlement Procedures: Settlement Procedures with regard to each Book-Entry Note
sold by the Company through the Agent, as agent, shall be as follows:
A.
The Agent will advise the Company and the Trustee in writing, by telex or
facsimile, the following Settlement information:
1. Exact name in which Note is to be registered ("Registered Owner").
2. Exact address of the Registered Owner and address for payment of
principal and interest, if any.
3. Taxpayer identification number of the Registered Owner.
4. Principal amount of the Note (and, if multiple Notes are to be
issued, denominations thereof)
5. Settlement date.
6. Maturity date.
7. Interest rate:
(a) Fixed Rate Notes
(i) interest rate
(b) Floating Rate Notes:
(i) base rate
(ii) initial interest rate
(iii) interest reset period or
interest reset dates (iv)
interest payment dates (v) index
maturity (vi) maximum and
minimum interest rates, if any.
(vii) spread or spread multiplier, if any
8. If applicable, the date on or after which the Notes are redeemable at
the option of the Company and other terms of redemption.
9. If applicable, the date on or after which the Notes are terminable at
the option of the holder.
10. Agent's Commission (to be paid in the form of a discount from the
proceeds remitted to the Company upon Settlement).
B. The Company will confirm the above Settlement information to the Trustee by
telephone (confirmed in writing), telex or facsimile, and the Trustee will
assign a Note number to the transaction. If the Company rejects an offer,
the Company will promptly notify the Agent and the Trustee by telephone.
C. The Company shall communicate with the Trustee and Agent and each such
communication by the Company shall constitute a representation and warranty
by the Company to the Trustee and the Agent that (i) such Note is then, and
at the time of issuance and sale thereof will be, duly authorized for
issuance and sale by the Company, (ii) such Note, and the Global Security
representing such Note, will conform with the terms of the Indenture
pursuant to which such Note and Global Security, are issued and (iii) upon
authentication and delivery of such Global Security, the aggregate initial
offering price of all Notes issued under the Indenture will not exceed $
24,820,000,000.
D. The Trustee will assign a CUSIP number to the Global Security representing
such Note and then advise the Company by telephone (confirmed in writing at
any time on the same date) or electronic transmission of such CUSIP number.
E. The Trustee will enter a pending deposit message through DTC's Participant
Terminal System, providing the following settlement information to DTC, the
Agent and Standard & Poor's Credit Market Services:
1. The information set forth in Settlement Procedure "A".
2. Identification as a Fixed Rate Book-Entry Note or a Floating Rate
Book-Entry Note.
3. Initial Interest Payment Date for such Note, number of days by which such
date succeeds the related "DTC Record Date" (which term means the Regular
Record Date except in the case of Floating Rate Notes which reset daily and
weekly in which case it means the date 5 calendar days immediately
preceding the Interest Payment Date) and amount of interest per $1,000
principal amount payable on such Interest Payment Date.
4. Frequency of interest payments (monthly, semiannually, quarterly, etc.).
5. CUSIP number of the Global Security representing such Note.
6. Whether such Global Security will represent any other Book-Entry Note (to
the extent known at such time).
F. The Trustee will complete the preprinted Global Security representing such
Note, the form of which was previously approved by the Company, the Agent
and the Trustee.
G. The Trustee will authenticate the Global Security representing such Note.
H. DTC will credit such Note to the Trustee's participant account at DTC.
I. The Trustee will enter an SDFS deliver order through DTC's Participant
Terminal System instructing DTC to (i) debit such Note to the Trustee's
participant account and credit such Note to the Agent's participant account
and (ii) debit the Agent's settlement account and credit the Trustee's
settlement account for an amount equal to the price of such Note less the
Agent's commission. The entry of such a deliver order shall constitute a
representation and warranty by the Trustee to DTC that (i) the Global
Security representing such Book-Entry Note has been issued and
authenticated and (ii) the Trustee is holding such Global Security pursuant
to the Medium-Term Note Certificate Agreement between the Trustee and DTC
(the "Certificate Agreement").
J. The Agent will enter an SDFS deliver order through DTC's Participant
Terminal System instructing DTC (i) to debit such Note to the Agent's
participant account and credit such Note to the participant accounts of the
Participants with respect to such Note and (ii) to debit the settlement
accounts of such Participants and credit the settlement account of the
Agent for an amount equal to the price of such Note.
K. Transfers of funds in accordance with SDFS deliver orders described in
Settlement Procedures "I" and "J" will be settled in accordance with SDFS
operating procedures in effect on the settlement date.
L. The Trustee will credit to an account of the Company maintained at the
Trustee funds available for immediate use in the amount transferred to the
Trustee in accordance with Settlement Procedure "I".
M. Monthly, the Trustee will send to the Company a statement setting forth the
principal amount of Book-Entry Notes Outstanding as of that date under the
Indenture and setting forth a brief description of any sales of which the
Company has advised the Trustee but which have not yet been settled.
N. The Agent will deliver to the purchaser a copy of the most recent
Prospectus applicable to the Note with or prior to any written offer of
Notes and the confirmation and payment by the purchaser of the Note.
The Agent will confirm the purchase of such Note to the purchaser
either by transmitting to the Participants with respect to such Note a
confirmation order or orders through DTC's institutional delivery system or
by mailing a written confirmation to such purchaser.
Settlement Procedures Timetable:
For orders of Book-Entry Notes solicited by the Agent, as agent, and
accepted by the Company for settlement on the first Business Day after the
sale date, Settlement Procedures "A" through "N" set forth above shall be
completed as soon as possible but not later than the respective times (New
York City time) set forth below:
Settlement
Procedure Time
A-C 11:00 A.M. on the sale date
D,E 2:00 P.M. on the sale date
F 9:00 A.M. on settlement date
G,H 10:00 A.M. on settlement date
I,J 2:00 P.M. on settlement date
K 4:45 P.M. on settlement date
L,N 5:00 P.M. on settlement date
If a sale is to be settled more than one Business Day after the sale
date, Settlement Procedures "A", "B", "C", "D" and "E" shall be completed
as soon as practicable but no later than the times specified above on the
first Business Day after the sale date. If the initial interest rate for a
Floating Rate Book-Entry Note has not been determined at the time that
Settlement Procedure "A" is completed, Settlement Procedures "B", "C", "D"
and "E" shall be completed as soon as such rate has been determined but no
later than the times specified above on the second Business Day before the
settlement date. Settlement Procedure "K" is subject to extension in
accordance with any extension of Fedwire closing deadlines and in the other
events specified in the SDFS operating procedures in effect on the
settlement date.
If settlement of a Book-Entry Note is rescheduled or cancelled, the
Trustee will deliver to DTC, through DTC's Participant Terminal System, a
cancellation message to such effect by no later than 2:00 P.M. on the
Business Day immediately preceding the scheduled settlement date.
Failure to Settle: If the Trustee has not entered an SDFS delivery order with
respect to a Book-Entry Note pursuant to Settlement Procedure "I", the
Trustee shall immediately notify the Company thereof. Thereafter, upon
written request of the Company (which may be evidenced by facsimile
transmission), the Trustee shall deliver to DTC, through DTC's Participant
Terminal System, as soon as practicable a withdrawal message instructing
DTC to debit such Note to the Trustee's participant account. DTC will
process the withdrawal message, provided that the Trustee's participant
account contains a principal amount of the Global Security representing
such Note that is at least equal to the principal amount to be debited. If
a withdrawal message is processed with respect to all the Book-Entry Notes
represented by a Global Security, the Trustee will mark such Global
Security "cancelled", make appropriate entries in the Trustee's records and
send such cancelled Global Security to the Company. The CUSIP number
assigned to such Global Security shall, in accordance with CUSIP Service
Bureau procedures, be cancelled and not immediately reassigned. If a
withdrawal message is processed with respect to one or more, but not all,
of the Book-Entry Notes represented by a Global Security, the Trustee will
exchange such Global Security for two Global Securities, one of which shall
represent such Book-Entry Note or Notes and shall be cancelled immediately
after issuance and the other of which shall represent the other Book-Entry
Notes previously represented by the surrendered Global Security and shall
bear the CUSIP number of the surrendered Global Security.
If the purchase price for any Book-Entry Note is not timely paid to
any Participant with respect to such Note by the beneficial purchaser
thereof (or a Person, including an indirect participant in DTC, acting on
behalf of such purchaser), such Participant may enter a deliver order
through DTC's Participant Terminal System debiting such Note to such
Participant's participant account and crediting such Note free to the
participant account of the Trustee and shall notify the Trustee and the
Company thereof. Thereafter, the Trustee, (i) will immediately notify the
Company thereof, once the Trustee has confirmed that such Note has been
credited to its participant account, and the Company shall immediately
transfer by Fedwire (immediately available funds) to such Participant an
amount equal to the price of such Note which was previously credited to the
account of the Company maintained at the Trustee in accordance with
Settlement Procedure "L" and (ii) the Trustee will deliver the withdrawal
message and take the related actions described in the preceding paragraph.
Notwithstanding the foregoing, upon any failure to settle with respect
to a Book-Entry Note, DTC may take any actions in accordance with its SDFS
operating procedures then in effect. In the event of a failure to settle
with respect to one or more, but not all, of the Book-Entry Notes to have
been represented by a Global Security, the Trustee will provide, in
accordance with Settlement Procedures "F" and "G", for the authentication
and issuance of a Global Security representing the other Book-Entry Notes
to have been represented by such Global Security and will make appropriate
entries in its records.
APPENDIX A
Special Provisions Relating
to Floating Rate Notes_____
----------------------
Interest Rate: Interest on Floating Rate Notes will be determined by reference
to an "Interest Rate Basis", which shall be the "CD Rate" ("CD Rate
Notes"), the "Commercial Paper Rate" ("Commercial Paper Rate Notes"), the
"Federal Funds Rate" ("Federal Funds Rate Notes"), "LIBOR" ("LIBOR Notes"),
the "Treasury Rate" ("Treasury Rate Notes"), the "Prime Rate" ("Prime Rate
Notes"), the "▇.▇. ▇▇▇▇▇ ▇▇▇▇" ("▇.▇. ▇▇▇▇▇ ▇▇▇▇ Notes") the "Eleventh
District Cost of Funds Rate" ("Eleventh District Cost of Funds Rate Notes")
or such other interest rate formula as may be designated in a Pricing
Supplement, based upon the Index Maturity and adjusted by a Spread or
Spread Multiplier, if any, as specified in the applicable Pricing
Supplement setting forth the terms of each issuance of Notes (the "Pricing
Supplement"). The "Index Maturity" is the particular maturity of the type
of instrument or obligation from which the Interest Rate Basis is
calculated (e.g., in the case of commercial paper, 30-day rather than
90-day commercial paper). The "Spread" is the number of basis points (100
basis points equals one percent) above or below the Interest Rate Basis
applicable to such Floating Rate Note, and the "Spread Multiplier" is the
percentage of the Interest Rate Basis applicable to the interest rate for
such Floating Rate Note. The Spread, Spread Multiplier, Index Maturity and
other variable terms as described below are subject to change by the
Company from time to time, but no such change will affect any Floating Rate
Note theretofore issued or as to which an offer has been accepted by the
Company.
A Floating Rate Note may also have either or both of the following:
(i) a maximum limit, or ceiling ("Maximum Interest Rate"), on the rate of
interest which may apply during any Interest Period (as defined below) and
(ii) a minimum limit, or floor ("Minimum Interest Rate"), on the rate of
interest which may apply during any Interest Period. In addition to any
Maximum Interest Rate which may be applicable to any Floating Rate Note
pursuant to the above provisions, the interest rate on the Floating Rate
Notes will in no event be higher than the maximum rate permitted by New
York law, as the same may be modified by United States law of general
application. Under present New York law, the maximum rate of interest is
25% per annum on a simple interest basis. The limit may not apply to
Floating Rate Notes in which $2,500,000 or more has been invested.
The applicable Pricing Supplement will specify for each Floating Rate
Note the following terms: Interest Rate Basis, optional redemption dates
(if any), rate of interest for the initial Interest Period (the "Initial
Interest Rate"), Issue Date, Interest Determination Dates (as defined
below), Interest Reset Dates (as defined below), Interest Payment Dates (as
defined below), Index Maturity, Maturity Date, Maximum Interest Rate and
Minimum Interest Rate, if any, and the Spread or Spread Multiplier, if any.
Interest Payment Dates: Unless otherwise indicated in the applicable Pricing
Supplement, interest on Floating Rate Notes will be payable as set forth in
the Basic Prospectus, as supplemented by the prospectus supplement dated
June 14, 2001 relating to the Medium-Term Notes (the "MTN Prospectus") Each
date on which interest is payable on a Floating Rate Note is referred to
herein as an "Interest Payment Date."
Interest Reset Date: Unless otherwise indicated in the applicable Pricing
Supplement, the rate of interest on each Floating Rate Note will be reset
as provided in the MTN Prospectus (each date an "Interest Reset Date").
Interest Determination Date: Unless otherwise indicated in the applicable
Pricing Supplement, the "Interest Determination Date" pertaining to an
Interest Reset Date for a Floating Rate Note shall be as set forth in the
MTN Prospectus.
CD Rate Notes: A CD Rate Note will bear interest at the interest rate
(calculated with reference to the CD Rate and the Spread or Spread
Multiplier, if any) specified in the CD Rate Note and in the applicable
Pricing Supplement.
Unless otherwise indicated in the applicable Pricing Supplement, the
"CD Rate" shall be calculated as set forth in the MTN Prospectus.
Commercial Paper Rate Notes: A Commercial Paper Rate Note will bear interest at
the interest rate (calculated with reference to the Commercial Paper Rate
and the Spread or Spread Multiplier, if any) specified in the Commercial
Paper Rate Note and in the applicable Pricing Supplement.
Unless otherwise indicated in the applicable Pricing Supplement, the
"Commercial Paper Rate" shall be calculated as set forth in the MTN
Prospectus.
Federal Funds Rate Notes: A Federal Funds Rate Note will bear interest at the
interest rate (calculated with reference to the Federal Funds Rate and the
Spread or Spread Multiplier, if any) specified in the Federal Funds Rate
Note and in the applicable Pricing Supplement.
Unless otherwise indicated in the applicable Pricing Supplement, the
"Federal Funds Effective Rate" shall be calculated as set forth in the MTN
Prospectus.
LIBORNotes: A LIBOR Note will bear interest at the interest rate (calculated
with reference to LIBOR and the Spread or Spread Multiplier, if any)
specified in the LIBOR Note and in the applicable Pricing Supplement.
Unless otherwise indicated in the applicable Pricing Supplement, LIBOR
shall be calculated as set forth in the MTN Prospectus.
Treasury Rate Notes: A Treasury Rate Note will bear interest at the interest
rate (calculated with reference to the Treasury Rate and the Spread or
Spread Multiplier, if any) specified in the Treasury Rate Note and in the
applicable Pricing Supplement.
Unless otherwise indicated in the applicable Pricing Supplement, the
"Treasury Rate" shall be calculated as set forth in the MTN Prospectus.
Prime Rate Notes: A Prime Rate Note will bear interest at the interest rate
(calculated with reference to the Prime Rate and the Spread or Spread
Multiplier, if any) specified in the Prime Rate Note and in the applicable
Pricing Supplement.
Unless otherwise indicated in the applicable Pricing Supplement, the
"Prime Rate" shall be calculated as set forth in the MTN Prospectus.
▇.▇. ▇▇▇▇▇ ▇▇▇▇ Notes: A ▇.▇. ▇▇▇▇▇ ▇▇▇▇ Note will bear interest at the interest
rate (calculated with reference to the ▇.▇. ▇▇▇▇▇ ▇▇▇▇ and the Spread or
Spread Multiplier, if any) specified in the ▇.▇. ▇▇▇▇▇ ▇▇▇▇ Note and in the
applicable Pricing Supplement.
Unless otherwise indicated in the applicable Pricing Supplement, the
"▇.▇. ▇▇▇▇▇ ▇▇▇▇" shall be calculated as set forth in the MTN Prospectus.
Eleventh District Cost of Funds Rate A Eleventh District Cost of Funds Rate
Note will bear interest at the interest Notes: rate (calculated with
reference to the
Eleventh District Cost of Funds Rate and the Spread or Spread Multiplier, if
any) specified in the Eleventh District Cost of Funds Rate Note and in the
applicable Pricing Supplement.
Unless otherwise indicated in the applicable Pricing Supplement, the
"Eleventh District Cost of Funds Rate" shall be calculated as set forth in
the MTN Prospectus.
Record Dates: Unless otherwise indicated in the applicable Pricing Supplement,
interest payments on Floating Rate Notes will be made on the Interest
Payment Dates to the registered owners at the close of business on the date
15 calendar days prior to such Interest Payment Date (the "Regular Record
Date"). Interest payable at maturity will be paid to the same person to
whom principal is payable. Interest will begin to accrue (except in the
case of Floating Rate Notes which reset daily or weekly) on the Issue Date
of a Note for the first interest period and from and including the last
Interest Payment Date. Each payment of interest (except in the case of
Floating Rate Notes which reset daily or weekly) shall include interest
accrued from and including the next preceding Interest Payment Date in
respect of which interest has been paid (or, if none, from and including
the Issue Date) to but excluding the next Interest Payment Date (an
"Interest Period"). In the case of Floating Rate Notes that reset daily or
weekly, interest payments will include accrued interest from and including
the Issue Date or from and including the last date in respect of which
interest has been paid, as the case may be, to, and including the Regular
Record Date immediately preceding the applicable Interest Payment Date,
providing that at maturity the interest payable will include interest
accrued from and including the Issue Date or from and including the last
date in respect of which interest has been paid, as the case may be, to,
but excluding, the date of maturity. The initial interest payment on Notes
issued between a Regular Record Date and the Interest Payment Date
immediately following such Regular Record Date will be made on the second
Interest Payment Date following such issue (however, except as may
otherwise be agreed to by the Company and the Agent, no Floating Rate Notes
will be sold between a Regular Record Date and an Interest Payment Date).
Accrued Interest: Unless otherwise indicated in the applicable Pricing
Supplement, accrued interest shall be calculated as set forth in the MTN
Prospectus.
8
EXHIBIT C
▇▇▇▇▇▇ BROTHERS HOLDINGS INC.
Medium-Term Notes, Series G
Due Nine Months or More from the Date of Issue
PURCHASE AGREEMENT
______________ ___, 20___
▇▇▇▇▇▇ Brothers Holdings Inc.
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
▇▇▇▇▇▇ Brothers Holdings Inc., a Delaware corporation (the "Company"),
has previously entered into a Distribution Agreement dated June 14, 2001 (the
"Distribution Agreement"), between the Company and ▇▇▇▇▇▇ Brothers Inc. (the
"Agent"), with respect to the issue and sale by the Company of its Medium Term
Notes, Series G, pursuant to an Indenture dated as of September 1, 1987, as
amended by a First Supplemental Indenture, dated as of November 25, 1987, a
Second Supplemental Indenture, dated as of November 27, 1990, a Third
Supplemental Indenture, dated as of September 13, 1991, a Fourth Supplemental
Indenture, dated as of October 4, 1993, a Fifth Supplemental Indenture, dated as
of October 1, 1995, and a Sixth Supplemental Indenture, dated as of June 26,
1997, between the Company and Citibank, N.A., as Trustee. The Distribution
Agreement permits the Company to enter into an agreement with the Agent and/or
one or more additional persons to purchase Securities as principals.
[The undersigned] [Each of the purchasers identified on Schedule I
attached hereto] ([the][each a] "Purchaser") agrees[, severally and not
jointly,] to purchase, at the purchase price set forth below, [$
_________principal amount][the principal amount] of Securities described below
[set forth next to its name below]:
Name of Purchaser Principal Amount
The Securities have the following terms:
Cusip No.:
Specified Currency: US Dollars
Principal Amount: US$
Total Per Note
Issue Price: US$ %
Purchasers' Commission: US$ %
---------------------------------
Proceeds to ▇▇▇▇▇▇ Brothers
Holdings: US$ %
[ ] The Notes are being offered at varying prices relating to prevailing market
prices at the time of sale.
[ ] The Notes are being offered at a fixed initial public offering price equal
to the Issue Price.
Original Issue Date:
Stated Maturity Date:
Amortizing Note: [ ] Yes [ ] No
Amortization Schedule:
[ ] Fixed Rate Note Interest Rate per Annum: %
[ ] Floating Rate Note [ ] CD Rate
[ ]Commercial Paper Rate
[ ]Federal Funds Rate
[ ]LIBOR Telerate
[ ]LIBOR Reuters
[ ]Treasury Rate:Constant Maturity [ ]Yes[ ] No
[ ]Prime Rate
[ ]▇.▇. ▇▇▇▇▇ ▇▇▇▇
[ ]Eleventh District Cost of Funds Rate
[ ]Other: __________________________
Initial Interest Rate: %
Spread: bp -or- Spread Multiplier: %
Maximum Interest Rate: %
Minimum Interest Rate: %
Index Maturity:
Interest Rate Determination Dates: _______ business days prior to each interest
reset date
Interest Reset Dates: [[The _____ day of each month][Each ______, ________,
_______ and _______] [The ____ _________ of each month], commencing on
_________]
Interest Payment Dates: [The _____ day of each month][Each ______, ________,
_______ and _______], commencing on _________{, subject to modified
business day convention}[??]]
"Accrue to Pay": [ ] Yes [ ] No
Interest Rate Calculation Agent: Citibank, N.A.
Optional Redemption: [The Note may not be redeemed prior to stated maturity at
the option of ▇▇▇▇▇▇ Brothers Holdings.]
[The Note may be redeemed prior to stated maturity 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.]
Optional Repayment: [The holder of the Note may not
elect repayment of the Note by ▇▇▇▇▇▇ Brothers Holdings prior to stated
maturity.]
[The holder of the Note may elect repayment of the Note by ▇▇▇▇▇▇ Brothers
Holdings prior to stated maturity [in whole but not in part][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.]
Extension of Maturity: [▇▇▇▇▇▇ Brothers Holdings may not extend the stated
maturity date of the Note.]
[▇▇▇▇▇▇ Brothers Holdings may extend the stated maturity date of the Note for up
to ______ extension periods of [one - five] whole years, but not beyond the
final maturity date of _______________. Notice of election to extend the stated
maturity date will be given, and the holder will have the rights to elect
repayment on the stated maturity date, as set forth in the Prospectus
Supplement.]
Form of Note: [ ] Book-entry only (global) [ ] Certificated
Depository: The Depository Trust Company
Authorized Denominations: $1,000 or any larger whole multiple.
Other Terms:
Each Purchaser's obligation to purchase Securities hereunder is subject
to the accuracy, as of the Settlement Date, of your representations and
warranties contained in the Distribution Agreement and to your performance and
observance of all applicable covenants and agreements contained therein, and the
satisfaction of all conditions precedent contained therein, including, without
limitation, those pursuant to Sections 5, 6 and 7 thereof. Each Purchaser's
obligation to purchase Securities hereunder is subject to the further condition
precedent that the Company shall have furnished to each Purchaser copies of the
most recent documents (including any prior documents referred to therein)
previously delivered to the Agent pursuant to Sections 5 and 6 of the
Distribution Agreement (and the lead manager, by its signature below, confirms
that such documents are to its satisfaction) and such further information,
certificates and documents as the lead manager for the Purchasers, in its sole
discretion, or counsel to Purchasers may reasonably request.
The lead manager for the Securities described in this Agreement is
[insert lead mangers name]. [Pursuant to the last sentence of Section 11(a) of
the Distribution Agreement, the lead manager hereby requests the delivery of,
and it is hereby agreed that there shall be delivered, documents pursuant to
Section[s] [7(b)][7(c)][7(d)] of the Purchase Agreement.]
In accordance with Section 11(a) of the Distribution Agreement, each
Purchaser hereby confirms that, with effect from the date hereof solely in
respect of the issue of the Securities described above (the "Issue"), each
Purchaser shall become a party to, and an Agent under, the Distribution
Agreement, vested with all the authority, rights and powers, and subject to all
duties and obligations of an Agent as if originally named as such under the
Distribution Agreement.
Such appointment is limited to the Issue and is not for any other issue
of Securities of the Company pursuant to the Distribution Agreement, and such
appointment will terminate upon issue of the Securities comprising the Issue,
but without prejudice to any rights, duties or obligations which have arisen
prior to such termination.
Except as otherwise expressly provided herein, all terms used herein
which are defined in the Distribution Agreement shall have the same meanings as
in the Distribution Agreement, except that (i) the term "Agent," as used in the
Distribution Agreement, shall be deemed to refer, where applicable and for
purposes of this Agreement, only to the Purchasers (except for references in the
Distribution Agreement to Agent where such Agent has discretion, in which case
Agent shall mean the lead manager) and (ii) any reference to the Registration
Statement or the Prospectus shall be deemed to refer to such documents as
amended or supplemented as of the date of this Agreement and as of the
Settlement Date, including any supplement relating to the Securities and
containing the name of the Purchasers. For purposes of Section 12 of the
Distribution Agreement, [the undersigned confirms that its notice details are as
set forth immediately beneath its name] [the lead manager confirms that the
notice details for each Purchaser are set forth beneath such Purchaser's name].
[The undersigned] [Each of the Purchasers] agrees to perform its duties
and obligations specifically provided to be performed by [each of] the
Purchasers in accordance with the terms and provisions of the Distribution
Agreement and the Procedures, as amended or supplements hereby.
This Agreement shall be subject to the termination provisions of
Section 10 of the Distribution Agreement.
If one or more of the Purchasers shall fail at the Settlement Date to
purchase the Securities which it or they are obligated to purchase (the
"Defaulted Securities"), then the non-defaulting Purchasers (the "non-defaulting
Purchasers") shall have the right, within 24 hours thereafter, to make
arrangements for one or more of them to purchase all, but not less than all, of
the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; provided, however, that if such arrangements shall not
have been completed within such 24-hour period, then:
(A) if the aggregate principal amount of Defaulted Securities
does not exceed 10% of the aggregate principal amount of Securities to
be so purchased hereunder on the Settlement Date, the non-defaulting
Purchasers shall be obligated, severally and not jointly, to purchase
the full amount thereof in the proportions that their respective
initial underwriting obligations bear to the underwriting obligations
of all non-defaulting Purchasers; or
(B) if the aggregate principal amount of Defaulted Securities
exceeds 10% of the aggregate principal amount of Securities to be so
purchased hereunder on the Settlement Date, this agreement shall
terminate without liability on the part of any non-defaulting
Purchaser.
No action taken pursuant to this paragraph shall relieve any defaulting
Purchaser from liability in respect of its default. In the event of any such
default which does not result in a termination of this agreement, either the
non-defaulting Purchasers or the Company shall have the right to postpone the
Settlement Date for a period not exceeding seven days in order to effect any
required changes in the Registration Statement, the Prospectus Supplement, the
Pricing Supplement or any other documents or arrangements.
Notwithstanding anything in the Distribution Agreement to the contrary,
the obligations of the Purchasers under Section 7 of the Distribution Agreement
are several and not joint, and in no case shall any Purchaser (except as may be
provided in any agreement among them) be responsible under Section 7(d) to
contribute any amount in excess of the commissions received by the Purchaser
with respect to the Securities purchased by such Purchaser hereunder.
This Agreement shall be governed by and construed in accordance with
the laws of New York. This Agreement may be executed in one or more counterparts
and the executed counterparts taken together shall constitute one and the same
agreement.
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
▇▇▇▇▇▇ BROTHERS INC
By __________________________
Name:
Title:
Acting on behalf of the Purchasers named in
Schedule I annexed hereto
Accepted: __________ ___, 20___
▇▇▇▇▇▇ BROTHERS HOLDINGS INC.
By ____________________________
Name:
Title:
Schedule I
[Insert names of additional Purchasers]
EXHIBIT ▇
▇▇▇▇▇▇ BROTHERS HOLDINGS INC.
Medium-Term Notes, Series G
Due Nine Months or More from the Date of Issue
AGENT ACCESSION LETTER
[Name of Agent
Address of Agent]
Ladies and Gentlemen:
▇▇▇▇▇▇ Brothers Holdings Inc., a Delaware corporation (the "Company"),
has previously entered into a Distribution Agreement dated ________, 2001 (the
"Distribution Agreement"), between the Company and ▇▇▇▇▇▇ Brothers Inc. (the
"Existing Agent"), with respect to the issue and sale by the Company of its
Medium Term Notes, Series G pursuant to an Indenture dated as of September 1,
1987, as amended by a First Supplemental Indenture, dated as of November 25,
1987, a Second Supplemental Indenture, dated as of November 27, 1990, a Third
Supplemental Indenture, dated as of September 13, 1991, a Fourth Supplemental
Indenture, dated as of October 4, 1993, a Fifth Supplemental Indenture, dated as
of October 1, 1995, and a Sixth Supplemental Indenture, dated as of June 26,
1997, between the Company and Citibank, N.A., as Trustee. The Distribution
Agreement permits the Company to appoint one or more additional persons to act
as agent with respect to the Securities, on terms substantially the same as
those contained in the Distribution Agreement. A copy of the Distribution
Agreement, including the Procedures with respect to the issuance of the
Securities attached thereto as Exhibit B, is attached hereto.
In accordance with Section 11(b) of the Distribution Agreement we
hereby confirm that, with effect from the date hereof, solely in respect of the
issue of ___ Notes due ____ (the "Issue"), you shall become a party to, and an
Agent under, the Distribution Agreement, vested with all the authority, rights
and powers, and subject to all duties and obligations of an Agent in relation to
the Issue as if originally named as such under the Distribution Agreement. The
undersigned agrees that it is acting as agent (not as principal) in connection
with the Issue.
Such appointment is limited to the Issue and is not for any other issue
of Securities of the Company pursuant to the Distribution Agreement, and such
appointment will terminate upon issue of the Securities comprising the Issue but
without prejudice to any rights, duties or obligations which have arisen prior
to such termination.
Except as otherwise expressly provided herein, all terms used herein
which are defined in the Distribution Agreement shall have the same meanings as
in the Distribution Agreement, except that (i) the terms "Agent," "Agents" and
"Additional Agents" as used in the Distribution Agreement, shall be deemed to
refer, where applicable and for purposes of this Agreement, only to you, (ii)
your obligation to act as Agent hereunder shall subject to you having received
copies of the most recent documents (including any prior documents referred to
therein) previously delivered to the Existing Agent pursuant to Sections 5 and 6
of the Distribution Agreement, and (iii) any reference to the Registration
Statement or the Prospectus shall be deemed to refer to such documents as
amended or supplemented as of the date of this Agreement and as of the
Settlement Date, including any supplement relating to the Securities and/or
containing the name of the Agent and/or Additional Agents. By your signature
below, you confirm that such documents are to your satisfaction. For purposes of
Section 12 of the Distribution Agreement, you confirm that your notice details
are as set forth immediately beneath your signature.
Each of the parties to this letter agrees to perform its respective
duties and obligations specifically provided to be performed by each of the
parties to in accordance with the terms and provisions of the Distribution
Agreement and the Procedures, as amended or supplemented hereby.
Notwithstanding anything in the Distribution Agreement to the contrary,
the obligations of the Agent and Additional Agents under Section 7 of the
Distribution Agreement are several and not joint, and in no case shall any Agent
or Additional Agent (except as may be provided in any agreement among them) be
responsible under Section 7(d) to contribute any amount in excess of the
commissions received by the Agent or Additional Agent from the offering of the
Securities.
This Agreement shall be governed by the laws of the State of New York.
This Agreement may be executed in one or more counterparts and the executed
counterparts taken together shall constitute one and the same agreement.
If the foregoing correctly sets forth the agreement among the parties
hereto, please indicate your acceptance hereof in the space provided for that
purpose below.
Very truly yours,
▇▇▇▇▇▇ BROTHERS HOLDINGS INC.
By: ________________________
Name:
Title:
CONFIRMED AND ACCEPTED, as of the
date first above written
[Insert name of Additional Agent and information pursuant
to Section 12 of the Distribution Agreement]
By: ________________________
Name:
Title:
Notice information pursuant to Section 12 of the Distribution Agreement:
Name:
Address:
Contact Person:
Telephone:
Facsimile: