EXHIBIT 1
COUNTRYWIDE HOME LOANS, INC.
Debt Securities
Unconditionally Guaranteed as to Payment of Principal, Premium, if any,
and Interest by
COUNTRYWIDE CREDIT INDUSTRIES, INC.
PURCHASE AGREEMENT
------------------
June 17, 1999
To the Underwriters Named in Schedule A hereto
c/o the Representatives Named in Schedule B hereto
Dear Sir/Madam:
Countrywide Home Loans, Inc., a New York corporation (the "Company"),
proposes to issue and sell from time to time certain of its debt securities
registered under the registration statement referred to below (the "Debt
Securities"). The Debt Securities will be unconditionally guaranteed as to
payment of principal, premium, if any, and interest by Countrywide Credit
Industries, Inc., a Delaware corporation (the "Guarantor"), and will be
issued under an Indenture dated as of January 1, 1992, as amended by
Supplemental Indenture No. 1, dated as of June 15, 1995 (as amended, the
"Indenture"), among the Company, the Guarantor and The Bank of New York, as
trustee (the "Trustee"), in one or more series which series may vary as to
interest rates, maturities, redemption provisions and selling prices and
any other variable terms permitted by the Indenture, with all such terms
for any particular series being determined at the time of sale. The Company
proposes to sell to the Underwriters (as hereinafter defined) one or more
series of Debt Securities, each of the designation, with the terms and in
the aggregate principal amount specified in Schedule B hereto (the
"Securities"). Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company agrees to sell
to each Underwriter, severally and not jointly, and each Underwriter
agrees, severally and not jointly, to purchase from the Company, at the
purchase price and on the other terms set forth in Schedule B hereto, the
principal amount of the Securities set forth opposite its name in Schedule
A hereto (plus any additional principal amount of Securities which such
Underwriter may become obligated to purchase pursuant to the provisions of
Section 10 hereof).
If there shall be two or more persons, firms or corporations named as
underwriters in Schedule A hereto, the term "Underwriters" as used herein
shall be deemed to mean the several persons, firms or corporations so named
(including the Representatives hereinafter mentioned, if so named, and any
Underwriters substituted pursuant to Section 10), and the term
"Representatives" as so used herein shall be deemed to mean the
representative or representatives named in Schedule B hereto. If there
shall only be one person, firm or corporation named in Schedule A hereto,
the term "Underwriters" and the term "Representatives" as used herein shall
mean such person, firm or corporation.
The Company and the Guarantor have filed with the Securities and
Exchange Commission (the "Commission") a joint registration statement on
Form S-3 (Nos. 333-66467 and 333-66467-01) and a related preliminary
prospectus for the registration under the Securities Act of 1933, as
amended (the "1933 Act") of the Debt Securities (including the Securities)
and the guarantees thereof of the Guarantor (the "Guarantees") and the
offering thereof from time to time in accordance with Rule 415 under the
rules and regulations of the Commission under the 1933 Act (the "1933 Act
Regulations"), which registration statement has been declared effective by
the Commission and copies of which have heretofore been delivered to you.
Such Registration Statement, in the form in which it was declared
effective, as amended through the date hereof, including all documents
incorporated or deemed to be incorporated by reference therein and the
information, if any, deemed to be part thereof pursuant to Rule 430A or
Rule 434 of the 1933 Act Regulations through the date hereof, is
hereinafter referred to as the "Registration Statement." Such Registration
Statement meets the requirements set forth in Rule 415(a)(1)(x) and (a)(2)
of the 1933 Act Regulations and complies in all other material respects
with said Rule.
The Company and the Guarantor propose to file with the Commission
pursuant to Rule 424(b) of the 1933 Act Regulations the Prospectus
Supplement (as defined in Section 3(h) hereof) relating to the Securities
and the Guarantees and the prospectus dated November 10, 1998 (the "Base
Prospectus") relating to the Debt Securities and the Guarantees, and have
previously advised you of all further information (financial and other)
with respect to the Company and the Guarantor set forth therein. The Base
Prospectus together with the Prospectus Supplement, in their respective
forms on the date hereof (being the forms in which they are to be filed
with the Commission pursuant to Rule 424(b) of the 1933 Act Regulations),
including all documents incorporated or deemed to be incorporated by
reference therein and the information, if any, deemed to be part thereof
pursuant to Rule 434 of the 1933 Act Regulations through the date hereof,
are hereinafter referred to as the "Prospectus".
Unless the context otherwise requires, all references in this
Agreement to documents, financial statements and schedules and other
information which is "contained," "included," "stated," "described" or
"referred to" in the Registration Statement or the Prospectus (and all
other references of like import) shall be deemed to mean and include all
such documents, financial statements and schedules and other information
which is or is deemed to be incorporated by reference in the Registration
Statement or the Prospectus, as the case may be; and all references in this
Agreement to amendments or supplements to the Registration Statement or the
Prospectus shall be deemed to mean and include the filing of any document
under the Securities Exchange Act of 1934, as amended (the "1934 Act"),
after the date of this Agreement which is or is deemed to be incorporated
by reference in the Registration Statement or the Prospectus, as the case
may be. If the Company elects to rely on Rule 434 under the 1933 Act
Regulations, all references to the Prospectus shall be deemed to include,
without limitation, the form of prospectus and the abbreviated term sheet,
taken together, provided to the Underwriters by the Company in reliance on
Rule 434 under the 1933 Act Regulations (the "Rule 434 Prospectus"). If the
Company files a registration statement to register a portion of the
Securities and relies on Rule 462(b) under the 1933 Act Regulations for
such registration statement to become effective upon filing with the
Commission (the "Rule 462 Registration Statement"), then any reference to
"Registration Statement" herein shall be deemed to be to both the
registration statement referred to above (Nos. 333-66467 and 333-66467-01)
and the Rule 462 Registration Statement, as each such registration
statement may be amended pursuant to the 1933 Act.
The Company and the Guarantor understand that the Underwriters propose
to make a public offering of the Securities as soon as the Representatives
deem advisable after this Agreement has been executed and delivered.
Section 1. Representations and Warranties. (a) The Company and the
Guarantor, jointly and severally, represent and warrant to, and agree with,
each Underwriter as of the date hereof and as of the Closing Time (as
defined below) as follows:
(i) The Company and the Guarantor meet the requirements for use
of Form S-3 under the 1933 Act and the 1933 Act Regulations. The
Registration Statement and the Base Prospectus, at the time the
Registration Statement became effective, complied in all material
respects with the requirements of the 1933 Act and the 1933 Act
Regulations (including Rule 415(a) of the 1933 Act Regulations) and
the Trust Indenture Act of 1939 (the "1939 Act") and the rules and
regulations of the Commission under the 1939 Act, and did 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 not misleading. The Prospectus, at the date hereof and at the
Closing Time, does not and will 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 were made, not misleading; provided, however, that the
representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or
Prospectus made in reliance upon and in conformity with information
furnished to the Company or the Guarantor in writing by any
Underwriter through the Representatives expressly for use in the
Registration Statement or the Prospectus or to those parts of the
Registration Statement that constitute a Statement of Eligibility and
Qualification of the Trustee under the 1939 Act filed as exhibits to
the Registration Statement (the "Form T-1"). For purposes of this
Section 1(a), all references to the Registration Statement, any
post-effective amendments thereto and the Prospectus shall be deemed
to include, without limitation, any electronically transmitted copies
thereof, including, without limitation, any copy filed with the
Commission pursuant to its Electronic Data Gathering, Analysis, and
Retrieval system ("XXXXX").
(ii) The documents incorporated or deemed to be incorporated by
reference in the Registration Statement and the Prospectus, when they
became effective or at the time they were or hereafter are filed with
the Commission, complied and will comply in all material respects with
the requirements of the 1933 Act and the 1933 Act Regulations or the
1934 Act, as applicable, and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations"), and, when read
together with the other information in the Registration Statement and
the Prospectus, at the respective times the Registration Statement and
any post-effective amendments thereto became effective, at the date
hereof and at the Closing Time, did not, do not and 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 the light of the circumstances under which they were made,
not misleading; and such documents have been timely filed as required
thereby.
(iii) Neither the Company nor the Guarantor nor any of their
respective subsidiaries is in violation of its corporate charter or
bylaws or in default under any agreement, indenture or instrument to
which the Company, the Guarantor or any of their respective
subsidiaries is a party, the effect of which violation or default
would be material to the Company or the Guarantor and its subsidiaries
considered as a whole; the execution, delivery and performance of this
Agreement and the Indenture (including, without limitation, the
issuance and sale of the Securities and the Guarantees) and the
consummation of the transactions contemplated hereunder and thereunder
will not conflict with, result in the creation or imposition of any
lien, charge or encumbrance upon any assets of the Company, the
Guarantor or any of their respective subsidiaries pursuant to the
terms of, or constitute a default under, any agreement, indenture or
instrument, or result in a violation of the charter or bylaws of the
Company or the Guarantor or any of their respective subsidiaries or
any applicable law, statute, order, judgment, decree, rule or
regulation of any court or governmental agency having jurisdiction
over the Company, the Guarantor or any of their respective
subsidiaries; and except as required by the 1933 Act, the 1939 Act,
the 1934 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 and the Indenture.
(iv) 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 Guarantor and its subsidiaries considered as a
whole since the dates as of which information is given in the
Registration Statement and the Prospectus.
(v) Xxxxx Xxxxxxxx LLP, whose reports have been included in the
Prospectus and incorporated by reference or included in the
Guarantor'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 1933 Act and the 1933 Act Regulations.
(vi) The Indenture has been duly authorized, executed and
delivered by each of the Company and the Guarantor and constitutes the
legal, valid and binding obligation of the Company and the Guarantor,
enforceable against each of them in accordance with its terms, except
as limited by (a) bankruptcy, insolvency, moratorium, fraudulent
conveyance, and similar laws affecting creditors' rights generally;
and (b) general principles of equity (regardless of whether
enforcement is considered in a proceeding at law or in equity); and
the Indenture has been duly qualified under the 1939 Act.
(vii) Each of the Company, the Guarantor and any Significant
Subsidiary of the Company or the Guarantor, as defined in Rule 405 of
Regulation C of the 1933 Act Regulations (individually, a "Subsidiary"
and collectively, the "Subsidiaries"), has been duly incorporated, is
validly existing and in good standing under the laws of the
jurisdiction in which it is chartered or organized, is duly qualified
to do business and is in good standing as a foreign corporation in
each jurisdiction in which its ownership of property or the conduct of
its business requires such qualification (except where the failure to
be so qualified would not have a material adverse effect on the
business operations or financial condition of the Company or the
Guarantor and its subsidiaries taken as a whole), and has the power
and authority necessary to own or hold its property and to conduct the
business in which it is engaged.
(viii) All of the outstanding shares of capital stock of each
Subsidiary have been duly and validly authorized and issued and are
fully paid and nonassessable, and all outstanding shares of capital
stock of the Subsidiaries are owned by the Company or the Guarantor,
directly or through subsidiaries, free and clear of any perfected
security interest, other security interests, claims, liens or
encumbrances; none of the outstanding shares of capital stock of any
Subsidiary was issued in violation of the preemptive or similar rights
of any securityholder of such Subsidiary.
(ix) Except as described in the Prospectus, there is no material
litigation or governmental proceeding pending or, to the knowledge of
the Company or the Guarantor, threatened against the Company, the
Guarantor or any of their respective subsidiaries which is reasonably
likely to result in any material adverse change in the financial
condition, results of operations, business or prospects of the Company
or the Guarantor and its subsidiaries considered as a whole or which
is required to be disclosed in the Registration Statement.
(x) The financial statements filed or incorporated as part of the
Registration Statement or included or incorporated in the Prospectus,
together with the related schedules and notes, present fairly the
financial condition and results of operations of the Guarantor and its
consolidated subsidiaries, at the dates and for the periods indicated,
and have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis throughout the
periods involved except as otherwise required pursuant to such
generally accepted accounting principles; and the summary financial
information of the Company and the Guarantor included or incorporated
by reference in the Registration Statement and the Prospectus presents
fairly the information required to be stated therein.
(xi) There are no contracts or other documents which are required
to be filed as exhibits to the Registration Statement by the 1933 Act
or by the 1933 Act Regulations, or which were required to be filed as
exhibits to any document incorporated by reference in the Prospectus
by the 1934 Act or the 1934 Act Regulations, which have not been filed
as exhibits to the Registration Statement or to such document or
incorporated therein by reference as permitted by the 1933 Act
Regulations or the 1934 Act Regulations as required.
(xii) This Agreement has been duly authorized, executed and
delivered by the Company and the Guarantor.
(xiii) The Securities have been duly authorized and, at the
Closing Time, will have been duly executed by the Company and, when
authenticated, issued and delivered in the manner provided for in the
Indenture and delivered against payment of the purchase price therefor
as provided in this Agreement, will constitute legal, valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms, except as limited by (a) bankruptcy,
insolvency, moratorium, fraudulent conveyance, and similar laws
affecting creditors' rights generally; and (b) general principles of
equity (regardless of whether enforcement is considered in a
proceeding at law or in equity), and will be in the form contemplated
by, and entitled to the benefits of, the Indenture.
(xiv) The Guarantees have been duly authorized and, at the
Closing Time, will have been duly executed by the Guarantor and, when
issued and delivered in the manner provided for in the Indenture, will
constitute legal, valid and binding obligations of the Guarantor,
enforceable against the Guarantor in accordance with their terms,
except as limited by (a) bankruptcy, insolvency, moratorium,
fraudulent conveyance, and similar laws affecting creditors' rights
generally; and (b) general principles of equity (regardless of whether
enforcement is considered in a proceeding at law or in equity), and
will be in the form contemplated by, and entitled to the benefits of,
the Indenture.
(xv) The Securities, the Guarantees and the Indenture will
conform in all material respects to the respective statements relating
thereto contained in the Prospectus.
(b) Any certificate signed by any officer of the Company or the
Guarantor and delivered to the Representatives or to counsel for the
Underwriters shall be deemed a representation and warranty by the Company
or the Guarantor, as the case may be, to each Underwriter as to the matters
covered thereby.
Section 2. Sale and Delivery to Underwriters; Closing. (a) On the
basis of the representations and warranties herein contained and subject to
the terms and conditions herein set forth, the Company agrees to sell to
each Underwriter, severally and not jointly, and each Underwriter,
severally and not jointly, agrees to purchase from the Company, at the
price set forth in Schedule B hereto, the aggregate principal amount of
Securities set forth in Schedule A hereto opposite the name of such
Underwriter, plus any additional principal amount of Securities which such
Underwriter may become obligated to purchase pursuant to the provisions of
Section 10 hereof.
(b) Payment of the purchase price for, and delivery of certificates
for, the Securities shall be made at the office of Fried, Frank, Harris,
Xxxxxxx & Xxxxxxxx, New York, New York, or at such other place as shall be
agreed upon by the Representatives and the Company, at 9:00 A.M. (New York
time) on the date specified in Schedule B hereto (unless postponed in
accordance with the provisions of Section 10) or such other time not later
than ten business days after such date as shall be agreed upon by the
Representatives and the Company (such time and date of payment and delivery
being herein called "Closing Time").
(c) Payment shall be made to the Company by wire transfer of
immediately available funds to a bank account designated by the Company,
against delivery to the Representatives for the respective accounts of the
Underwriters of certificates for the Securities to be purchased by them.
Certificates for the Securities shall be in such denominations and
registered in such names as the Representatives may request in writing at
least one business day before the Closing Time. It is understood that each
Underwriter has authorized the Representatives, for its account, to accept
delivery of, receipt for, and make payment of the purchase price for, the
Securities which it has severally agreed to purchase. Chase Securities Inc.
and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, individually and
not as Representatives of the Underwriters, may (but shall not be obligated
to) make payment of the purchase price for the Securities to be purchased
by any Underwriter whose funds have not been received by the Closing Time,
but such payment shall not relieve such Underwriter from its obligations
hereunder. The certificates for the Securities will be made available for
examination and packaging by the Representatives in The City of New York
not later than 10:00 A.M. (New York time) on the business day prior to the
Closing Time.
(d) If Countrywide Securities Corporation is an Underwriter under this
Agreement, each Underwriter agrees that it will comply with the provisions
of Rule 2720(l) of the Conduct Rules of the National Association of
Securities Dealers, Inc. (the "NASD").
(e) Each Underwriter, severally and not jointly, represents and agrees
that:
(i) It has not offered or sold and will not offer or sell any
Securities to persons in the United Kingdom prior to the expiry of the
period of six months from the issue date of the Securities except to
persons whose ordinary activities involve them in acquiring, holding,
managing or disposing of investments (as principal or agent) for the
purpose of their businesses or otherwise in circumstances which have
not resulted and will not result in an offer to the public in the
United Kingdom within the meaning of the Public Offers of Securities
Regulations 1995;
(ii) It has only issued or passed on and will only issue or pass
on in the United Kingdom any document received by it in connection
with the issue of the Securities to a person who is of a kind
described in Article 11(3) of the Financial Services Xxx 0000
(Investment Advertisements) (Exemptions) Order 1996 (as amended) or is
a person to whom such document may otherwise lawfully be issued or
passed on; and
(iii) It has complied and will comply with all applicable
provisions of the Financial Services Xxx 0000 with respect to anything
done by it in relation to any Securities in, from or otherwise
involving the United Kingdom.
Section 3. Covenants of the Company and the Guarantor. The Company and
the Guarantor, jointly and severally, covenant with each Underwriter as
follows:
(a) The Company and the Guarantor, subject to Section 3(b), will
comply with the requirements of Rule 430A or Rule 434, as applicable, and
will notify the Representatives immediately, and confirm the notice in
writing, (i) when any post-effective amendment to the Registration
Statement, shall become effective, (ii) of the mailing or the delivery to
the Commission for filing of the Prospectus or any amendment to the
Registration Statement or amendment or supplement to the Prospectus or any
document to be filed pursuant to the 1934 Act during any period when the
Prospectus is required to be delivered under the 1933 Act, (iii) of the
receipt of any comments or inquiries from the Commission relating to the
Registration Statement or Prospectus, (iv) of any request by the Commission
for any amendment to the Registration Statement or any amendment or
supplement to the Prospectus or for additional information, and (v) of the
issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or of any order preventing or suspending the
use of any preliminary prospectus or preliminary prospectus supplement, or
of the suspension of the qualification of the Securities and the Guarantees
for offering or sale in any jurisdiction, or of or the initiation or
threatening of any proceedings for any of such purposes. The Company and
the Guarantor will make every reasonable effort to prevent the issuance of
any stop order and, if any stop order is issued, to obtain the lifting
thereof at the earliest possible moment. If the Company and the Guarantor
elect to rely on Rule 434 under the 1933 Act Regulations, the Company and
the Guarantor will prepare an "abbreviated term sheet" that complies with
the requirements of Rule 434 under the 1933 Act Regulations. If the Company
and the Guarantor elect not to rely on Rule 434, the Company and the
Guarantor will provide the Underwriters with copies of the form of
Prospectus, in such number as the Underwriters may reasonably request, and
file or transmit for filing with the Commission such Prospectus in
accordance with Rule 424(b) of the 1933 Act Regulations by the close of
business in New York on the business day immediately succeeding the date
hereof. If the Company and the Guarantor elect to rely on Rule 434, the
Company and the Guarantor will provide the Underwriters with copies of the
form of Rule 434 Prospectus, in such number as the Underwriters may
reasonably request, and file or transmit for filing with the Commission the
form of Prospectus complying with Rule 434(c)(2) of the 1933 Act
Regulations in accordance with Rule 424(b) of the 1933 Act Regulations by
the close of business in New York on the business day immediately
succeeding the date hereof.
(b) The Company and the Guarantor will give the Representatives notice
of their intention to file or prepare any amendment to the Registration
Statement (including any post-effective amendment) or any amendment or
supplement to the Prospectus, whether pursuant to the 1933 Act, the 1934
Act or otherwise, (including any revised prospectus which the Company and
the Guarantor propose for use by the Underwriters in connection with the
offering of the Securities which differs from the prospectus filed with the
Commission pursuant to Rule 424(b) of the 1933 Act Regulations, whether or
not such revised prospectus is required to be filed pursuant to Rule 424(b)
of the 1933 Act Regulations, or any abbreviated term sheet prepared in
reliance on Rule 434 of the 1933 Act Regulations), will furnish the
Representatives with copies of any such amendment or supplement a
reasonable amount of time prior to such proposed filing or use, as the case
may be, and will not file any such amendment or supplement or use any such
prospectus to which the Representatives or counsel for the Underwriters
shall object.
(c) The Company and the Guarantor have furnished or will deliver to
the Representatives and counsel for the Underwriters, without charge,
signed copies of the Registration Statement as originally filed and of each
amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be incorporated
by reference therein) and signed copies of all consents and certificates of
experts, and will also deliver to the Representatives a conformed copy of
the Registration Statement as originally filed and of each amendment
thereto (without exhibits) for each of the Underwriters. Copies of the
Registration Statement and each amendment thereto furnished to the
Underwriters will be identical to any electronically transmitted copies
thereof filed with the Commission pursuant to XXXXX, except to the extent
permitted by Regulation S-T.
(d) The Company and the Guarantor will promptly deliver to each
Underwriter, without charge, as many copies of each preliminary prospectus
and preliminary prospectus supplement as such Underwriter may reasonably
request, and the Company and the Guarantor hereby consent to the use of
such copies for purposes permitted by the 1933 Act. The Company and the
Guarantor will furnish to each Underwriter, without charge, from time to
time during the period when the Prospectus is required to be delivered
under the 1933 Act or the 1934 Act, such number of copies of the Prospectus
(as amended or supplemented) as such Underwriter may reasonably request for
the purposes contemplated by the 1933 Act or the 1934 Act or the 1934 Act
Regulations.
(e) The Company and the Guarantor will comply with the 1933 Act and
the 1933 Act Regulations and the 1934 Act and the 1934 Act Regulations so
as to permit the completion of the distribution of the Securities as
contemplated in this Agreement and in the Registration Statement and the
Prospectus. If any event shall occur or condition shall exist as a result
of which it is necessary, in the opinion of counsel for the Underwriters or
for the Company and the Guarantor, to amend the Registration Statement or
amend or supplement the Prospectus in order that the Prospectus will not
include any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein not misleading in
the light of the circumstances existing at the time it is delivered to a
purchaser, or if it shall be necessary, in the opinion of such counsel, at
any such time to amend the Registration Statement or amend or supplement
the Prospectus in order to comply with the requirements of the 1933 Act or
the 1933 Act Regulations, the Company and the Guarantor will promptly
prepare and file with the Commission, subject to Section 3(b), such
amendment or supplement as may be necessary to correct such statement or
omission or to make the Registration Statement or the Prospectus comply
with such requirements, and the Company and the Guarantor will furnish to
the Underwriters such number of copies of such amendment or supplement as
the Underwriters may reasonably request.
(f) The Company and the Guarantor will use their best efforts, in
cooperation with the Underwriters, to qualify the Securities for offering
and sale under the applicable securities laws of such states and other
jurisdictions of the United States as the Representatives may designate and
to maintain such qualifications in effect for as long as may be required
for the distribution of the Securities; provided, however, that neither the
Company nor the Guarantor shall be obligated to file any general consent to
service of process or to qualify as a foreign corporation or as a dealer in
securities in any jurisdiction in which it is not so qualified or to
subject itself to taxation in respect of doing business in any jurisdiction
in which it is not otherwise so subject. In each jurisdiction in which the
Securities have been so qualified, the Company and the Guarantor will file
such statements and reports as may be required by the laws of such
jurisdiction to continue such qualification in effect for as long as may be
required for the distribution of the Securities.
(g) The Guarantor and, to the extent separately required pursuant to
Rule 158 under the 1933 Act Regulations, the Company will make generally
available to its security holders as soon as practicable, but not later
than 45 days after the close of the period covered thereby, an earnings
statement (in form complying with the provisions of Rule 158) covering a
twelve month period beginning not later than the first day of the Company's
and the Guarantor's fiscal quarter next following the "effective date" (as
defined in Rule 158) of the Registration Statement.
(h) Immediately following the execution hereof, the Company and the
Guarantor will prepare a prospectus supplement, dated the date hereof (the
"Prospectus Supplement"), containing such information as may be required by
the 1933 Act or the 1933 Act Regulations and such other information as the
Underwriters, the Company and the Guarantor deem appropriate, and will file
or transmit for filing with the Commission copies of the Prospectus
(including such Prospectus Supplement) in accordance with Rule 424(b) of
the 1933 Act Regulations by the close of business in New York on the
business day immediately succeeding the date hereof.
(i) The Company will use the net proceeds received by it from the sale
of the Securities in the manner specified in the Prospectus under "Use of
Proceeds."
(j) The Company and the Guarantor shall comply with the "black-out"
provisions, if any, set forth in Schedule B hereto.
(k) The Company and the Guarantor, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act,
will file all documents required to be filed with the Commission pursuant
to the 1934 Act within the time periods required by the 1934 Act and the
1934 Act Regulations.
(l) The Company and the Guarantor will use their best efforts to
effect the listing of the Securities on such securities exchanges or
quotation systems (each, an "Exchange") as may be specified in Schedule B
hereto. If an Exchange is specified in Schedule B hereto, the Company and
the Guarantor confirm that they have made or have caused to be made on
their behalf an application for the Securities to be listed on the
Exchange. The Company and the Guarantor will endeavor promptly to obtain
such listing and for such purpose the Company and the Guarantor agree to
deliver to the Exchange copies of the Prospectus relating to the Securities
and such other documents, information and undertakings as may be required
for the purpose of obtaining and maintaining such listing. The Company and
the Guarantor shall use their best efforts to maintain the listing of the
Securities on the Exchange for so long as any Securities are outstanding,
unless otherwise agreed to by the Representatives.
Section 4. Payment of Expenses. The Company and the Guarantor will pay
all expenses incident to the performance of their obligations under this
Agreement, including (i) the expenses incurred in connection with the
preparation, printing and filing of the Registration Statement as
originally filed and of each amendment thereto, (ii) the preparation,
printing and delivery to the Underwriters of this Agreement, any Agreement
among Underwriters, the Indenture and such other documents as may be
required in connection with the offering, purchase, sale and delivery of
the Securities, (iii) the preparation, issuance and delivery of the
certificates for the Securities to the Underwriters, (iv) the fees and
disbursements of the Company's and the Guarantor's counsel, accountants and
other advisors, (v) the qualification of the Securities under securities
laws in accordance with the provisions of Section 3(f) hereof, including
filing fees and the fees and disbursements of counsel for the Underwriters
in connection therewith and in connection with the preparation of the Blue
Sky Survey, any supplement thereto and any Legal Investment Survey, (vi)
the printing and delivery to the Underwriters of copies of each preliminary
prospectus, preliminary prospectus supplement and of the Prospectus and any
amendments or supplements thereto, including the abbreviated term sheet
delivered by the Company and the Guarantor pursuant to Rule 434 of the 1933
Act Regulations, (vii) the preparation, printing and delivery to the
Underwriters of copies of the Blue Sky Survey, any supplement thereto and
any Legal Investment Survey, (viii) the fees and expenses incurred in
connection with the listing of the Securities on any Exchange specified in
Schedule B hereto, (ix) the fees and expenses of the Trustee, including the
fees and disbursements of counsel for the Trustee, and (x) any fees payable
in connection with the rating of the Securities, and (xi) the filing fees
incident to, and the reasonable fees and disbursements of counsel in
connection with, the review, if any, by the NASD of the terms of the sale
of the Debt Securities.
If this Agreement is terminated by the Representatives in accordance
with the provisions of Section 5 or Section 9(a)(i) hereof, the Company and
the Guarantor, jointly and severally, shall reimburse the Underwriters for
all of their out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the Underwriters.
Section 5. Conditions of Underwriters' Obligations. The obligations of
the several Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Company and the Guarantor herein
contained, to the performance by the Company and the Guarantor of their
respective obligations hereunder, and to the following further conditions:
(a) At the Closing Time no stop order suspending the effectiveness of
the Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission, and any
request on the part of the Commission for additional information shall have
been complied with to the reasonable satisfaction of counsel to the
Underwriters. The Prospectus (including the Prospectus Supplement referred
to in Section 3(h) hereof) shall have been filed or transmitted for filing
with the Commission in accordance with Rule 424(b) of the 1933 Act
Regulations within the prescribed time period, and prior to the Closing
Time the Company shall have provided evidence satisfactory to the
Representatives of such timely filing.
(b) At the Closing Time the Representatives shall have received:
(1) The favorable opinion, dated as of the Closing Time, of
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx, counsel for the Company and
the Guarantor, in form and substance satisfactory to counsel for the
Underwriters, to the effect that:
(i) Each of the Company and the Guarantor is a corporation
duly incorporated, validly existing and in good standing under
the laws of the state of its incorporation and has the corporate
power and authority to own its properties and conduct its
business as described in the Prospectus;
(ii) The Company and the Guarantor have the corporate power
and authority to enter into this Agreement, and this Agreement
has been duly and validly authorized, executed and delivered by
the Company and the Guarantor, respectively;
(iii) The Registration Statement has become effective under
the 1933 Act; any required filing of the Prospectus, and any
supplements thereto, pursuant to Rule 424(b) has been made in the
manner and within the time period required by Rule 424(b); to the
knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued, no
proceedings for that purpose have been instituted or threatened
and the Registration Statement and the Prospectus and each
amendment or supplement thereto, as of their respective effective
or issue dates (other than the financial statements and other
financial and statistical information contained therein and the
Form T-1, as to which such counsel need express no opinion)
appear on their face to be responsive as to form in all material
respects with the applicable requirements of the 1933 Act and the
1933 Act Regulations and with the applicable requirements of the
1939 Act and the rules and regulations of the Commission
thereunder; any Rule 434 Prospectus conforms to the requirements
of Rule 434 of the 1933 Act Regulations in all material respects;
(iv) The Indenture has been duly authorized, executed and
delivered by each of the Company and the Guarantor and (assuming
the due authorization, execution and delivery thereof by the
Trustee) constitutes the legal, valid and binding agreement of
the Company and the Guarantor, enforceable against each of them
in accordance with its terms, except as limited by (i)
bankruptcy, insolvency, moratorium, fraudulent conveyance, and
other similar laws now or hereafter in effect affecting
creditors' rights generally; and (ii) general principles of
equity (including, without limitation, standards of materiality,
good faith, fair dealing and reasonableness, equitable defenses
and limits as to the availability of equitable remedies) whether
such principles are considered in a proceeding at law or in
equity;
(v) The Securities have been duly authorized and established
in conformity with the provisions of the Indenture, have been
duly authorized by the Company and, when executed by the Company
and authenticated by the Trustee in the manner provided in the
Indenture (assuming the due authorization, execution and delivery
of the Indenture by the Trustee) and delivered against payment of
the purchase price therefor specified in Schedule B hereto, will
constitute legal, valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms,
except as limited by (a) bankruptcy, insolvency, moratorium,
fraudulent conveyance, and other similar laws now or hereafter in
effect affecting creditors' rights generally; and (b) general
principles of equity (including, without limitation, standards of
materiality, good faith, fair dealing and reasonableness,
equitable defenses and limits as to the availability of equitable
remedies) whether such principles are considered in a proceeding
at law or in equity, and the holders of the Securities will be
entitled to the benefits of the Indenture;
(vi) The Guarantees have been duly authorized by the
Guarantor and, upon due issuance, authentication and delivery of
the Securities and due endorsement of the Guarantees, the
Guarantees will have been duly executed, issued and delivered and
will constitute legal, valid and binding obligations of the
Guarantor, enforceable against the Guarantor in accordance with
their terms and the terms of the Indenture, except as limited by
(a) bankruptcy, insolvency, moratorium, fraudulent conveyance,
and other similar laws now or hereafter in effect affecting
creditors' rights generally; and (b) general principles of equity
(including, without limitation, standards of materiality, good
faith, fair dealing and reasonableness, equitable defenses and
limits as to the availability of equitable remedies) whether such
principles are considered in a proceeding at law or in equity,
and the holders of the Securities upon which the Guarantees are
endorsed will be entitled to the benefits of the Indenture.
(vii) The Indenture has been duly qualified under the 1939
Act;
(viii) No consent, approval, authorization or order of any
United States federal or New York, California or, with respect to
matters arising under the Delaware General Corporation Law,
Delaware court or governmental agency or body is required for the
consummation of the transactions contemplated by this Agreement
and the Indenture, except such as have been obtained under the
1933 Act, the 1933 Act Regulations and the 1939 Act and such as
may be required under the blue sky laws, rules and regulations of
any jurisdiction in connection with the purchase and distribution
of the Securities and the Guarantees by the Underwriters and such
other approvals (specified in such opinion) as have been
obtained;
(ix) Neither the issue and sale of the Securities, the
compliance by the Company and the Guarantor with all the
provisions of this Agreement and the Indenture (insofar as the
Securities and the Guarantees are concerned), the Securities or
the Guarantees, the consummation of the transactions herein or
therein contemplated nor the fulfillment of the terms hereof or
thereof will conflict with, result in a breach of, or constitute
a default under the charter or bylaws of the Company or the
Guarantor or the terms of any indenture or other agreement or
instrument filed with the Commission and to which the Company or
the Guarantor or any of the Guarantor's subsidiaries is a party
or bound, or any applicable law, statute, order, judgment,
decree, rule or regulation (other than any federal or state
securities or blue sky laws, rules or regulations) known to such
counsel to be applicable to the Company or the Guarantor or any
of the Guarantor's subsidiaries of any court, regulatory body,
administrative agency, governmental body or arbitrator having
jurisdiction over the Company or the Guarantor or any of the
Guarantor's subsidiaries;
(x) (1) The information in the Base Prospectus under the
caption "Federal Income Tax Consequences" and in the Prospectus
Supplement under the caption "United States Taxation of
Non-United States Persons," insofar as such statements constitute
a summary of the legal matters referred to therein, fairly
present the information disclosed therein in all material
respects, (2) the Securities conform in all material respects to
the statements relating thereto in the Base Prospectus under the
caption "Description of Debt Securities and Guarantees" and in
the Prospectus Supplement under the caption "Description of
Notes," and (3) the Indenture and the Guarantees conform in all
material respects to the statements relating thereto in the Base
Prospectus under the caption "Description of Debt Securities and
Guarantees" and in the Prospectus Supplement under the caption
"Description of Notes"; and
(xi) Neither the Company nor the Guarantor is an "investment
company" as such term is defined in the Investment Company Act of
1940, as amended.
Such counsel shall also state that, in the course of their
engagement to represent or advise the Company and the Guarantor
professionally, they have not become aware of any pending legal
proceeding before any court or administrative agency or authority or
any arbitration tribunal, nor have they devoted substantive attention
in the form of legal representation as to any current overtly
threatened litigation against or directly affecting the Company or its
subsidiaries or the Guarantor or its subsidiaries, in each case that
is required to be described in the Registration Statement or the
Prospectus and is not so described. In making the foregoing statement,
they shall endeavor, to the extent they believe necessary, to
determine from lawyers currently in their firm who have performed
substantive legal services for the Company or the Guarantor, whether
such services involved substantive attention in the form of legal
representation concerning pending legal proceedings or overtly
threatened litigation of the nature referred to above. Beyond that,
they need not make any review, search or investigation of public files
or records or files or records of the Company or the Guarantor, or of
their respective transactions, or any other investigation or inquiry
with respect to the foregoing statement.
Such counsel shall also state that in the course of the
preparation by the Company, the Guarantor and their counsel of the
Registration Statement and Prospectus (other than the documents
incorporated by reference in the Registration Statement and Prospectus
(the "Incorporated Documents")), such counsel attended conferences
with certain of the officers of, and the independent public
accountants for, the Company and the Guarantor, at which the
Registration Statement and Prospectus were discussed. Given the
limitations inherent in the independent verification of factual
matters and the character of determinations involved in the
registration process, such counsel need not pass upon and need not
assume any responsibility for the accuracy, completeness or fairness
of the statements contained in the Registration Statement and
Prospectus including the Incorporated Documents, except as
specifically described in the opinion set forth in paragraph (x)
above. Subject to the foregoing and on the basis of the information
such counsel gained in the performance of the services referred to
above, including information obtained from officers and other
representatives of the Company and Guarantor, such counsel shall state
that no facts have come to such counsel's attention that have caused
it to believe that the Registration Statement, at the time it became
effective, contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, or that the
Prospectus, at its date or at the Closing Time, included or includes,
as the case may be, any untrue statement of material fact or omitted
or omits, as the case may be, to state a material fact necessary to
make the statements therein, in the light of the circumstances under
which they were made, not misleading, except that such counsel need
not express a view or belief with respect to (i) the financial
statements, the related notes and schedules thereto or other financial
and statistical data included or incorporated by reference in the
Registration Statement and Prospectus or (ii) any part of the
Registration Statement which shall constitute the Form T-1. References
to the Prospectus in this Section 5(b) include any amendments or
supplements thereto at the date hereof.
In rendering the opinion set forth above, such counsel may rely
(A) as to matters involving the application of laws of any
jurisdiction other than the State of California, the State of New
York, the General Corporation Law of the State of Delaware or the
United States, to the extent they deem proper and specified in such
opinion, upon the opinion of other counsel of good standing whom they
believe to be reliable and who are satisfactory to counsel for the
Underwriters and (B) as to matters of fact, to the extent they deem
proper, on certificates of responsible officers of the Company and the
Guarantor and public officials. References to the Prospectus in this
paragraph (b)(1) include any supplements thereto at the Closing Date.
(2) The favorable opinion, dated as of the Closing Time, of
Xxxxxx X. Xxxxxxx, Esq., General Counsel of the Company and the
Guarantor, in form and substance satisfactory to counsel for the
Underwriters, to the effect that:
(i) Each significant subsidiary of the Company and the
Guarantor, as defined in Rule 405 of Regulation C of the 1933 Act
Regulations (individually, a "Subsidiary" and collectively, the
"Subsidiaries") is a corporation, duly incorporated, validly
existing and in good standing under the laws of the state of its
incorporation, with the corporate power and authority to own its
properties and to conduct its business as described in the
Prospectus.
(ii) Each of the Company, the Guarantor and the Subsidiaries
is duly qualified to do business as a foreign corporation and is
in good standing under the laws of each jurisdiction which
requires such qualification wherein it owns or leases material
properties or conducts material business other than jurisdictions
in which the failure to so qualify, when considered in the
aggregate and not individually, would not have a material adverse
effect on the Company or the Guarantor and the Subsidiaries
considered as one enterprise;
(iii) All the outstanding shares of capital stock of the
Company and each Subsidiary have been duly and validly authorized
and issued and are fully paid and nonassessable, and, except as
otherwise set forth in the Prospectus, all outstanding shares of
capital stock of the Company and the Subsidiaries are owned by
the Guarantor either directly or through wholly owned
subsidiaries free and clear of any perfected security interest
and, to the knowledge of such counsel, after due inquiry, any
other security interests, claims, liens or encumbrances;
(iv) The outstanding shares of common stock of the Guarantor
have been duly and validly authorized and issued and are fully
paid and nonassessable;
(v) Neither the issue and sale of the Securities, the
compliance by the Company and the Guarantor with all the
provisions of this Agreement, the Indenture, the Securities or
the Guarantees, the consummation of any other of the transactions
herein and therein contemplated nor the fulfillment of the terms
hereof or thereof will conflict with, result in a breach of, or
constitute a default under the charter or bylaws of the Company
or the Guarantor or, to the knowledge of such counsel, the terms
of any indenture or other agreement or instrument to which the
Company or the Guarantor or any of the Guarantor's subsidiaries
is a party or bound, or any law, statute, order, judgement,
decree, rule or regulation known to such counsel to be applicable
to the Company or the Guarantor or any of the Guarantor's
subsidiaries of any court, regulatory body, administrative
agency, governmental body or arbitrator having jurisdiction over
the Company or the Guarantor or any of the Guarantor's
subsidiaries;
(vi) The Incorporated Documents (other than the financial
statements and other financial and statistical data contained
therein and the Form T-1, as to which no opinion need be
rendered), complied as to form in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations and the
1934 Act and the 1934 Act Regulations;
(vii) No consent, approval, authorization or order of any
court or governmental agency or body is required for the
consummation of the transactions contemplated by this Agreement
or the Indenture, except such as have been obtained under the
1933 Act and the 1933 Act Regulations and such as may be required
under 1939 Act or under the blue sky laws of any jurisdiction in
connection with the purchase and distribution of the Securities
and related Guarantees by the Underwriters and such other
approvals as have been obtained;
(viii) To such counsel's knowledge, none of the Company, the
Guarantor or any of their respective Subsidiaries is in violation
of its charter or bylaws; and the Company, the Guarantor and the
Subsidiaries are in compliance with all laws, rules, regulations,
judgments, decrees, orders and statutes in the jurisdictions in
which they are conducting their business, except where the
failure to so comply, when considered in the aggregate and not
individually, would not have a material adverse effect on the
Company or the Guarantor and their respective subsidiaries
considered as one enterprise; and
(ix) To the best of such counsel's knowledge, there is not
pending or threatened any action, suit, proceeding, inquiry or
investigation, to which the Company or the Guarantor or any of
their respective subsidiaries is a party, or to which the
property of the Company, the Guarantor or any of their respective
subsidiaries is subject, before or brought by any court or
governmental agency or body which might reasonably be expected to
result in a material adverse effect on the business or the
financial condition of the Guarantor and its subsidiaries
considered as a whole, or which might reasonably be expected to
materially and adversely affect the properties or assets thereof
or the consummation of the transactions contemplated in this
Agreement or the performance of the Company or the Guarantor of
their respective obligations hereunder.
(3) The favorable opinion, dated as of the Closing Time, of Xxxxx
& Wood LLP, counsel for the Underwriters, with respect to the issuance
and sale of the Securities and related Guarantees, the Indenture, this
Agreement, the Registration Statement, the Prospectus and other
related matters as the Representatives may reasonably require.
In giving their opinion, Xxxxx & Xxxx LLP may rely as to all
matters governed by the laws of any jurisdictions other than the State
of New York, the federal laws of the United States and the General
Corporation Law of the State of Delaware, upon the opinions of other
counsel satisfactory to the Representatives. Such counsel may also
state that, insofar as such opinion involves factual matters, they
have relied, to the extent they deem proper, upon certificates and
written statements of officers of the Company and the Guarantor and
any of the Guarantor's subsidiaries, and certificates of public
officials.
(c) At the Closing Time there shall not have been, since the date
hereof or since the respective dates as of which information is given in
the Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of
the Company or the Guarantor and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, and
the Representatives shall have received a certificate of the President, a
Managing Director or a Vice President of each of the Company and the
Guarantor and the Treasurer or Assistant Treasurer of each of the Company
and the Guarantor, dated as of the Closing Time, to the effect that (i)
there has been no such material adverse change, (ii) the representations
and warranties in Section 1 hereof are true and correct with the same force
and effect as though expressly made at and as of the Closing Time, (iii)
the Company and the Guarantor, as the case may be, have complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to the Closing Time, and (iv) no stop order
suspending the effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been initiated or, to the best
knowledge and information of such officer, threatened by the Commission.
(d) At the time of execution of this Agreement, the Representatives
shall have received from Xxxxx Xxxxxxxx LLP a letter, dated such date, in
form and substance satisfactory to the Representatives containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial statements
and certain financial information contained in the Registration Statement
and the Prospectus.
(e) At the Closing Time the Representatives shall have received from
Xxxxx Xxxxxxxx LLP a letter, dated as of the Closing Time, to the effect
that they reaffirm the statements made in the letter furnished pursuant to
subsection (d) of this Section, except that the specified date referred to
shall be a date not more than three days prior to the Closing Time.
(f) At the Closing Time the Securities shall have been approved for
listing on the Exchange, if and as specified in Schedule B hereto, subject
only to official notice of issuance.
(g) At the Closing Time, the Securities shall be rated at least Baa3
by Moody's Investor's Service Inc. and BBB- by Standard & Poor's Ratings
Group and since the date of this Agreement, there shall not have occurred a
downgrading in the rating assigned to the Securities or any of the
Company's or the Guarantor's other debt securities by any nationally
recognized securities rating agency, and no such debt securities rating
agency shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of the Securities
or any of the Company's or the Guarantor's other securities.
(h) The NASD has confirmed that it has not raised any objection with
respect to the fairness and reasonableness of the underwriting terms and
arrangements regarding the sale of the Securities.
(i) At the Closing Time, counsel for the Underwriters shall have been
furnished with such documents and opinions as they may reasonably require
for the purpose of enabling them to pass upon the issuance and sale of the
Securities as herein contemplated and related proceedings, or in order to
evidence the accuracy and completeness of any of the representations and
warranties, or the fulfillment of any of the conditions, herein contained;
and all proceedings taken by the Company and the Guarantor in connection
with the issuance and sale of the Securities as herein contemplated shall
be satisfactory in form and substance to the Representatives and counsel
for the Underwriters.
(j) If any condition specified in this Section 5 shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be
terminated by the Underwriters by notifying the Company at any time at or
prior to the Closing Time, and such termination shall be without liability
of any party to any other party except as provided in Section 4 and except
that Sections 1, 6, 7 and 8 shall survive any such termination and remain
in full force and effect.
Section 6. Indemnification. (a) The Company and the Guarantor, jointly
and severally, agree to indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning of
Section 15 of the 1933 Act, as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement
or alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including the
information deemed to be part of the Registration Statement pursuant
to Rule 430A or Rule 434 of the 1933 Act Regulations, if applicable,
or the omission or alleged omission therefrom of a material fact
required to be stated therein or necessary to make the statements
therein not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact contained in any
preliminary prospectus, any preliminary prospectus supplement or the
Prospectus (or any amendment or supplement thereto) or the omission or
alleged omission therefrom of a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading;
(ii)against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission; provided that (subject to Section 6(e) below) any such
settlement is effected with the written consent of the Company and the
Guarantor; and
(iii) against any and all expense whatsoever, as incurred
(including, subject to Section 6(d) hereof, the fees and disbursements
of counsel chosen by the Representatives), reasonably incurred in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i) or
(ii) above;
provided, however, that this indemnity agreement shall not apply to any
loss, liability, claim, damage or expense to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission made
in reliance upon and in conformity with written information furnished to
the Company and the Guarantor by any Underwriter through the
Representatives expressly for use in the Registration Statement (or any
amendment thereto) or any preliminary prospectus, preliminary prospectus
supplement or the Prospectus (or any amendment or supplement thereto), and
provided further, that the foregoing indemnity with respect to any untrue
statement or omission or alleged untrue statement contained in or omission
from any preliminary prospectus or preliminary prospectus supplement, shall
not inure to the benefit of any Underwriter (or any person controlling any
Underwriter within the meaning of Section 15 of the 0000 Xxx) from whom the
person asserting any such loss, liability, claim, damage or expense
purchased any of the Securities which are the subject thereof if the
Company or the Guarantor shall sustain the burden of proving that such
person was not sent or given, a copy of the Prospectus (or the Prospectus
as amended or supplemented), at or prior to the written confirmation of the
sale of such Securities to such person, and the untrue statement contained
in or omission from such preliminary prospectus or preliminary prospectus
supplement was corrected in the Prospectus (or the Prospectus as amended or
supplemented), unless such failure to deliver the Prospectus (or the
Prospectus as amended or supplemented) was a result of non-compliance by
the Company and the Guarantor with Section 3(d) hereof.
Insofar as this indemnity agreement may permit indemnification for
liabilities under the 1933 Act of any person who is a partner of an
Underwriter or who controls an Underwriter within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act and who is a director or
officer of the Company or the Guarantor or controls the Company or the
Guarantor within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act, such indemnity agreement is subject to the undertaking of the
Company or the Guarantor in the Registration Statement under Item 13 of
Form S-3.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company and the Guarantor, their respective directors, each of their
officers who signed the Registration Statement, and each person, if any,
who controls the Company or the Guarantor within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act against any and all loss,
liability, claim, damage and expense described in the indemnity contained
in subsection (a) of this Section, as incurred, but only with respect to
untrue statements or omissions, or alleged untrue statements or omissions,
made in the Registration Statement (or any amendment thereto), including
the information deemed to be a part of the Registration Statement pursuant
to Rule 430A or Rule 434 of the 1933 Act Regulations, if applicable, or any
preliminary prospectus, preliminary prospectus supplement or the Prospectus
(or any amendment or supplement thereto) in reliance upon and in conformity
with written information furnished to the Company and the Guarantor by such
Underwriter through the Representatives expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary
prospectus, preliminary prospectus supplement or the Prospectus (or any
amendment or supplement thereto).
(c) The Company and the Guarantor agree to indemnify and hold harmless
each Underwriter against any documentary stamp or similar issue tax and any
related interest or penalties on the issue or sale of the Securities to the
Underwriters which are due in the United States of America, the United
Kingdom or any other jurisdiction.
(d) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it
in respect of which indemnity may be sought hereunder, but failure to so
notify an indemnifying party shall not relieve such indemnifying party from
any liability hereunder to the extent it is not materially prejudiced as a
result thereof and in any event shall not relieve it from any liability
which it may have otherwise than on account of this indemnity agreement. An
indemnifying party may participate at its own expense in the defense of any
such action. In no event shall the indemnifying parties be liable for fees
and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties in connection
with any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances.
No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be
sought under this Section 6 or Section 7 hereof (whether or not the
indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional release of
each indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as
to or an admission of fault, culpability or a failure to act by or on
behalf of any indemnified party.
(e) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses
of counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 6(a) effected without its
written consent if (i) such settlement is entered into more than 45 days
after receipt by such indemnifying party of the aforesaid request, (ii)
such indemnifying party shall have received notice of the terms of such
settlement at least 30 days prior to such settlement being entered into and
(iii) such indemnifying party shall not have reimbursed such indemnified
party in accordance with such request prior to the date of such settlement.
Section 7. Contribution. If the indemnification provided for in
Section 6 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities,
claims, damages or expenses referred to therein, then each indemnifying
party shall contribute to the aggregate amount of such losses, liabilities,
claims, damages and expenses incurred by such indemnified party, as
incurred, (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Guarantor, on the one hand, and
the Underwriters, on the other hand, from the offering of the Securities
pursuant to this Agreement or (ii) if the allocation provided by clause (i)
is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company and the Guarantor, on the one hand,
and of the Underwriters, on the other hand, in connection with the
statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable
considerations.
The relative benefits received by the Company and the Guarantor, on
the one hand, and the Underwriters, on the other hand, in connection with
the offering of the Securities pursuant to this Agreement shall be deemed
to be in the same respective proportions as the total net proceeds from the
offering of such Securities (before deducting expenses) received by the
Company and the Guarantor and the total underwriting discount received by
the Underwriters, in each case as set forth on the cover of the Prospectus
Supplement, or, if Rule 434 is used, the corresponding location on the
related term sheet bear to the aggregate initial public offering price of
such Securities as set forth on such cover or related term sheet.
The relative fault of the Company and the Guarantor, on the one hand,
and the Underwriters, on the other hand, shall be determined by reference
to, among other things, whether any such untrue or alleged untrue statement
of a material fact or omission or alleged omission to state a material fact
relates to information supplied by the Company, by the Guarantor or by the
Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission.
The Company, the Guarantor and the Underwriters agree that it would
not be just and equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation which
does not take account of the equitable considerations referred to above in
this Section 7. The aggregate amount of losses, liabilities, claims,
damages and expenses incurred by an indemnified party and referred to above
in this Section 7 shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in investigating, preparing
or defending against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue or alleged untrue statement or
omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall
be required to contribute any amount in excess of the amount by which the
total price at which the Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages
which such Underwriter has otherwise been required to pay by reason of any
such untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the 0000 Xxx) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act shall have the same rights to contribution as such
Underwriter, and each director of the Company and the Guarantor, each
officer of the Company and the Guarantor who signed the Registration
Statement, and each person, if any, who controls the Company and the
Guarantor within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as the Company and
the Guarantor. The Underwriters' respective obligations to contribute
pursuant to this Section 7 are several in proportion to the number or
aggregate principal amount, as the case may be, of Securities set forth
opposite their respective names in Schedule A hereto, and not joint.
Section 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement, or contained in certificates of officers of the Company or the
Guarantor submitted pursuant hereto or thereto, shall remain operative and
in full force and effect, regardless of any investigation made by or on
behalf of any Underwriter or any controlling person, or by or on behalf of
the Company or the Guarantor, and shall survive delivery of the Securities
to the Underwriters.
Section 9. Termination of Agreement. (a) The Representatives may
terminate this Agreement, by notice to the Company, at any time at or prior
to the Closing Time (i) if there has been, since the date of this Agreement
or since the respective dates as of which information is given in the
Prospectus (exclusive of any supplement thereto), any material adverse
change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company or the Guarantor and
its subsidiaries considered as one enterprise, whether or not arising in
the ordinary course of business, or (ii) if there shall have occurred any
material adverse change in the national or international financial markets
or political or economic conditions or currency exchange rates or exchange
controls as would in their reasonable judgment be likely to make it
impracticable to market the Securities or to enforce contracts for the sale
of the Securities, or (iii) if trading in any securities of the Company or
the Guarantor has been suspended by the Commission or a national securities
exchange, or if trading generally on the American Stock Exchange or the New
York Stock Exchange or in the Nasdaq National Market System shall have been
suspended, or minimum or maximum prices for trading have been fixed, or
maximum ranges for prices for securities have been required, by either of
said exchanges or by such system or by order of the Commission, the NASD or
any other governmental authority, or (iv) if a banking moratorium has been
declared by either Federal or New York authorities.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party
except as provided in Section 4 hereof, and provided further that Sections
1, 6, 7 and 8 shall survive such termination and remain in full force and
effect.
Section 10. Default by One or More of the Underwriters. If one or more
of the Underwriters shall fail at Closing Time to purchase the Securities
which it or they are obligated to purchase under this Agreement (the
"Defaulted Securities"), the Representatives shall have the right, within
24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, 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; if, however, the
Representatives shall not have completed such arrangements 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 the Securities, each of the
non-defaulting Underwriters shall be obligated, severally and not jointly,
to purchase the full amount thereof in the proportions that their
respective underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting Underwriters, or
(b) if the aggregate principal amount of Defaulted Securities exceeds
10% of the aggregate principal amount of the Securities, this Agreement
shall terminate without liability on the part of any non-defaulting
Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter 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 Representatives or the Company
shall have the right to postpone the Closing Time for a period not
exceeding seven days in order to effect any required changes in the
Registration Statement or Prospectus or in any other documents or
arrangements. As used herein, the term "Underwriter" includes any person
substituted for an Underwriter under this Section 10.
Section 11. Notices. 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 written telecommunication. Notices
to the Underwriters shall be directed to the Representatives at their
addresses specified in Schedule B hereto for the purpose of communications
hereunder or, if sent to the Company or the Guarantor, shall be directed to
each of them at 0000 Xxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000, Attention:
General Counsel.
Section 12. Parties. This Agreement shall inure to the benefit of and
be binding upon the Underwriters, the Company and the Guarantor and their
respective successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation
other than the Underwriters, the Company and the Guarantor and their
respective successors and the controlling persons and the officers and
directors referred to in Sections 6 and 7 hereof and their heirs and legal
representatives any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement
and all conditions and provisions hereof are intended to be for the sole
and exclusive benefit of the Underwriters, the Company and the Guarantor
and their respective successors, and said controlling persons and said
officers and directors and their heirs and legal representatives, and for
the benefit of no other person, firm or corporation. No purchaser of
Securities from any Underwriter shall be deemed to be a successor merely by
reason of such purchase.
Section 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SAID STATE. EXCEPT AS
OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY
TIME.
Section 14. Counterparts. This Agreement may be executed in
counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company and the Guarantor a
counterpart hereof, whereupon this instrument, along with all counterparts,
will become a binding agreement among the Underwriters, the Company and the
Guarantor in accordance with its terms.
Very truly yours,
COUNTRYWIDE HOME LOANS, INC.
By: /s/Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chief Operating Officer
COUNTRYWIDE CREDIT INDUSTRIES, INC.
By: /s/Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer
CONFIRMED AND ACCEPTED,
as of the date first above written:
CHASE SECURITIES INC.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
COUNTRYWIDE SECURITIES CORPORATION
X.X. XXXXXX SECURITIES INC.
By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------------
Authorized Signatory
For itself and as Representative
of the other Underwriters named
in Schedule A hereto.
SCHEDULE A
Principal Amount
Name of Underwriter of Securities
------------------- -------------
Chase Securities Inc..................... $309,375,000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated............................. 309,375,000
Countrywide Securities Corporation....... 75,000,000
X.X. Xxxxxx Securities Inc............... 56,250,000
-------------
Total.................................... $750,000,000
SCHEDULE B
Purchase Agreement dated June 17, 1999.
Registration Statement Nos. 333-66467 and 000-00000-00.
Representatives and Addresses:
Chase Securities Inc.: 000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxx
Xxxxxxx Lynch, Pierce, Xxxxxx
& Xxxxx Incorporated: World Financial Center
North Tower
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Transaction Management
Group
Securities:
Designation: 6.85% Notes due 2004.
Principal Amount: $750,000,000.
Indenture dated as of January 1, 1992, as amended by Supplemental
Indenture No. 1, dated as of June 15, 1995, among Countrywide Credit
Industries, Inc., Countrywide Home Loans, Inc. and The Bank of New
York, as Trustee.
Date of Maturity: June 15, 2004.
Interest Rate: 6.85% per annum, payable
semiannually in arrears on June
15 and December 15 of each year,
commencing December 15, 1999.
Price to Public: The initial public offering price
of the Securities shall be
99.936% of the principal amount
thereof ($749,520,000), plus
accrued interest, if any, from
June 24, 1999.
Purchase Price: The purchase price to be paid by
the Underwriters for the
Securities shall be 99.586% of
the principal amount thereof
($746,895,000).
Closing Time: June 24, 1999.
Black-out Provisions: During the period beginning June
17, 1999 until and including June
24, 1999, neither the Company nor
the Guarantor will issue in any
institutional offering any debt
securities (other than (a) the
Securities and (b) debt
securities issued in "structured"
financings), without the prior
written consent of the
Underwriters.
Redemption Provisions: None, except if the Company is
required to pay certain
additional amounts because of
certain U.S. tax law changes.
Holders' Optional
Repayment Provisions: Not repayable at the option of
the holders.
Form and Authorized
Denominations: Registered--$1,000 and multiples
thereof.
Stock Exchange Listing: Luxembourg.
