Exhibit 1.3
Countrywide Home Loans, Inc.
U.S. $10,000,000,000
Medium-Term Notes, Series L
Due Nine Months or More
From Date of Issue
Payment of Principal, Premium, if any, and Interest
Fully and Unconditionally Guaranteed by
Countrywide Financial Corporation
SELLING AGENCY AGREEMENT
[___], 2003
Xxxxxx Brothers Inc. ABN AMRO Incorporated
000 Xxxxxx Xxxxxx Xxxx Xxxxxx Xxxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000 00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Banc of America Securities LLC Banc One Capital Markets, Inc.
000 Xxxxx Xxxxx Xxxxxx, XX0-000-07-01 1 Bank Xxx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 Xxxxx XX0-0000, 0xx Xxxxx
Xxxxxxx, XX 00000
Barclays Capital Inc. Bear, Xxxxxxx & Co. Inc.
000 Xxxx Xxxxxx 000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
BNP Paribas Securities Corp. Credit Lyonnais Securities (USA) Inc.
000 Xxxxxxx Xxxxxx, 0xx Xxxxx 0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Credit Suisse First Boston LLC Deutsche Bank Securities Inc.
Xxxxxx Xxxxxxx Xxxxxx 00 X. 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Dresdner Kleinwort Xxxxxxxxxxx Securities LLC Xxxxxxx, Xxxxx & Co.
0000 Xxxxxx xx xxx Xxxxxxxx 00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, Xxx Xxxx 00000
X.X. Xxxxxx Securities Inc. Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
000 Xxxx Xxxxxx Xxxxxxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000 4 World Financial Center
New York, New York 10080
Xxxxxx Xxxxxxx & Co. Incorporated RBC Dominion Securities Corporation
0000 Xxxxxxxx Xxx Xxxxxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, XX 00000-0000
Xxxxxxx Xxxxx Xxxxxx Inc. UBS Warburg LLC
000 Xxxxxxxxx Xxxxxx 000 Xxxxxxxxxx Xxxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxxxxxxx, Xxxxxxxxxxx 00000
Wachovia Securities, Inc. Countrywide Securities Corporation
One Wachovia Center 0000 Xxxx Granada
000 X. Xxxxxxx Xxxxxx Xxxxxxxxx, Xxxxxxxxxx 00000
Xxxxxxxxx, XX 00000
Ladies and Gentlemen:
Countrywide Home Loans, Inc., a New York corporation (the "Company"),
confirms its agreement with each of you (collectively, the "Agents") with
respect to the issue and sale by the Company of up to U.S. $10,000,000,000
aggregate initial offering price of its Medium-Term Notes, Series L, Due Nine
Months or More from Date of Issue (the "Notes"). The Notes will be fully and
unconditionally guaranteed as to payment of principal, premium, if any, and
interest (the "Guarantees") by Countrywide Financial Corporation (the
"Guarantor"). The Notes and the Guarantees will be issued under an indenture,
dated as of December 1, 2001 (the "Indenture"), among the Company, the Guarantor
and The Bank of New York, as trustee (the "Trustee"). Unless otherwise specified
in the Pricing Supplement referred to below, the Notes will be issued in minimum
denominations of U.S. $1,000 and in denominations exceeding such amount by
integral multiples of U.S. $1,000, and if denominated in a currency or currency
unit other than U.S. dollars, the equivalent in such other currency or currency
unit (the "Specified Currency") as determined in accordance with the Indenture,
of U.S. $1,000 (rounded down to an integral multiple of 1,000 units of such
Specified Currency) and any larger amount that is an integral multiple of 1,000
units of such Specified Currency, will be issued only in fully registered
certificated or book-entry form, and will be issued in the currency or currency
units and will have the maturities, annual interest rates (whether fixed or
floating), redemption provisions and other terms set forth in a pricing
supplement (the "Pricing Supplement") to the Prospectus referred to below. The
Notes will be issued, and the terms thereof established, in accordance with the
Indenture and the Medium-Term Note Administrative Procedures attached hereto as
Exhibit A (the "Procedures"). The Procedures may only be amended by written
agreement of the Company and each Agent after notice to, and in the case of
amendments which affect the rights, duties or obligations of the Trustee, with
the approval of, the Trustee.
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1. Representations and Warranties. The Company and the Guarantor, jointly
and severally, represent and warrant to, and agree with, each Agent that:
(a) The Company and the Guarantor meet the requirements for use of
Form S-3 under the Securities Act of 1933, as amended (the "Act") and
rules and regulations ("Rules and Regulations") of the Securities and
Exchange Commission (the "Commission") promulgated thereunder and,
together with Countrywide Capital IV and Countrywide Capital V have filed
with the Commission a registration statement on Form S-3 (File Nos.
333-[___] and 333-[_____]-01 and 333-[_____]-02 and 333-[_____]-03) (the
"Registration Statement"), and a related preliminary prospectus for the
registration under the Act of certain securities, including the Notes and
the Guarantees (collectively, the "Securities") and the offering thereof
from time to time in accordance with Rule 415 of the Rules and
Regulations, which Registration Statement has been declared effective by
the Commission and copies of which have heretofore been delivered to you.
Such Registration Statement, as it may be amended or supplemented, meets
the requirements set forth in Rule 415(a)(1)(x) and (a)(2) of the Rules
and Regulations and complies in all other material respects with said
Rule. In connection with the sale of Notes, the Company and the Guarantor
propose to file with the Commission pursuant to Rule 424 under the Act a
supplement to the form of prospectus included in such Registration
Statement relating to the Notes and the Guarantees and the plan of
distribution thereof and have previously advised the Agents of all further
information (financial and other) with respect to the Company and the
Guarantor to be set forth therein. 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, is hereinafter referred to as the "Registration
Statement". Such prospectus, as supplemented through the date hereof, is
hereinafter called the "Prospectus", except that if any revised prospectus
or prospectus supplement shall be provided to the Agents by the Company
for use in connection with the offering of the Securities which differs
from the Prospectus (whether or not such revised prospectus or prospectus
supplement is required to be filed by the Company pursuant to Rule 424(b)
of the Rules and Regulations), the term "Prospectus" shall refer to such
revised prospectus or prospectus supplement, as the case may be, from and
after the time it is first provided to the Agents for such use. Any
reference herein to the Registration Statement or the Prospectus shall be
deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 which were filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), on or
before the date of this Agreement or the date of the Prospectus, as the
case may be; and any reference herein to the terms "amend", "amendment" or
"supplement" with respect to the Registration Statement or the Prospectus
shall be deemed to refer to and include the filing of any document under
the Exchange Act after the date of this Agreement or the date of the
Prospectus, as the case may be, deemed to be incorporated therein by
reference.
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(b) As of the date hereof, when any amendment to the Registration
Statement becomes effective (including the filing of any document
incorporated by reference in the Registration Statement), when any
supplement to the Prospectus is filed with the Commission, as of the date
of any Terms Agreement (as defined by Section 2 hereof) and at the date of
delivery by the Company of any Notes sold hereunder (a "Settlement Date"),
(i) the Registration Statement, as amended as of any such time, and the
Prospectus, as supplemented as of any such time, and the Indenture
complies, or will comply, as the case may be, in all material respects
with the applicable requirements of the Act, the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"), and the Exchange Act and the
respective rules and regulations thereunder and (ii) neither the
Registration Statement, as amended as of any such time, nor the
Prospectus, as supplemented as of any such time, contains, or will
contain, as the case may be, any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary
in order to make the statements therein not misleading; provided, however,
that the representations or warranties in this subsection shall not apply
to (a) that part of the Registration Statement which shall constitute the
Statement of Eligibility on Form T-1 under the Trust Indenture Act of the
Trustee or (b) the information contained in or omitted from the
Registration Statement or the Prospectus or any amendment thereof or
supplement thereto in reliance upon and in conformity with information
furnished in writing to the Company or the Guarantor by any of you
specifically for use in connection with the preparation of the
Registration Statement and the Prospectus or any amendment thereof or
supplement thereto.
(c) 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
and 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 of the 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 by-laws of the Company or the
Guarantor or any order, 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 Act, the Trust
Indenture Act, the Exchange 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.
(d) Except as described in or contemplated by the Registration
Statement and the Prospectus, there has not been any material adverse
change in,
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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.
(e) 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
Act and the Rules and Regulations.
(f) (i) The Indenture has been duly authorized, executed and
delivered by the Company and the Guarantor and constitutes the legally
binding obligation of the Company and the Guarantor, respectively,
enforceable in accordance with its terms subject to bankruptcy,
insolvency, reorganization, fraudulent transfer, fraudulent conveyance,
moratorium or other laws affecting creditors' rights generally and general
principles of equity, (ii) on any Settlement Date, the Notes will have
been duly authorized and, upon payment therefor as provided in this
Agreement, will constitute legally binding obligations of the Company
enforceable in accordance with their terms subject to bankruptcy,
insolvency, reorganization, fraudulent transfer, fraudulent conveyance,
moratorium or other laws affecting creditors' rights generally and general
principles of equity and the holders of the Notes will be entitled to the
benefits of the Indenture, (iii) on any Settlement Date, the Guarantees
will have been duly authorized and, upon delivery of the related Notes,
will constitute legally binding obligations of the Guarantor enforceable
in accordance with their terms subject to bankruptcy, insolvency,
reorganization, fraudulent transfer, fraudulent conveyance, moratorium or
other laws affecting creditors' rights generally and general principles of
equity and the holders of the Notes upon which the Guarantees are endorsed
will be entitled to the benefits of the Indenture, and (iv) the Indenture
conforms, and the Notes and related Guarantees will conform, in each case
in all material respects, to the descriptions thereof contained in the
Prospectus.
(g) 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 Rules and 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 power and authority necessary to own or hold its property
and to conduct the business in which it is engaged.
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(h) 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.
(i) 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.
(j) The financial statements filed or incorporated as part of the
Registration Statement or included or incorporated in the Prospectus
present fairly, or (in the case of any amendment or supplement to any such
document, or any material incorporated by reference in any such document,
filed with the Commission after the date as of which this representation
is being made) will present fairly, at all times during the effectiveness
of this Agreement, the financial condition and results of operations of
the Guarantor, at the dates and for the periods indicated, and have been,
and (in the case of any amendment or supplement to any such document, or
any material incorporated by reference in any such document, filed with
the Commission after the date as of which this representation is being
made) will be at all times during the effectiveness of this Agreement,
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 summarized financial information of the Company
included or incorporated by reference in the Registration Statement and
the Prospectus presents fairly the information required to be stated
therein.
(k) The documents incorporated by reference into the Prospectus have
been, and (in the case of any amendment or supplement to any such
document, or any material incorporated by reference in any such document,
filed with the Commission after the date as of which this representation
is being made) will be at all times during the effectiveness of this
Agreement, prepared in all material respects in conformity with the
applicable requirements of the Act and the Rules and Regulations and the
Exchange Act and the rules and regulations of the Commission thereunder
and such documents have been, or (in the case of any amendment or
supplement to any such document, or any material incorporated by reference
in any such document, filed with the Commission after the date as of which
this representation is being made) will be at all times during the
effectiveness of this Agreement hereof, timely filed as required thereby.
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(l) There are no contracts or other documents which are required to
be filed as exhibits to the Registration Statement by the Act or by the
Rules and Regulations, or which were required to be filed as exhibits to
any document incorporated by reference in the Prospectus by the Exchange
Act or the rules and regulations of the Commission thereunder, which have
not been filed as exhibits to the Registration Statement or to such
document or incorporated therein by reference as permitted by the Rules
and Regulations or the rules and regulations of the Commission under the
Exchange Act as required.
(m) The Company, the Guarantor and each subsidiary of the Guarantor
have complied, and will comply, with the provisions of Florida H.B. 1771,
codified as Section 517.075 of the Florida Statutes, 1987, as amended, and
all regulations promulgated thereunder relating to issuers doing business
in Cuba.
(n) Neither the Company, the Guarantor nor any of their subsidiaries
is, or upon the issuance and sale of the Notes as herein contemplated and
the application of the net proceeds therefrom as described in the
Prospectus will be, an "investment company" or an entity "controlled" by
an "investment company" as such terms are defined in the Investment
Company Act of 1940, as amended.
2. Appointment of Agents; Solicitations by the Agents of Offers to
Purchase; Sales of Notes to a Purchaser. (a) Subject to the terms and conditions
set forth herein, and to the reservation by the Company of the right to sell,
solicit, and accept offers to purchase Notes directly on its own behalf, the
Company hereby authorizes each Agent to act as its agent to solicit offers for
the purchase of all or part of the Notes from the Company.
On the basis of the representations and warranties, and subject to the
terms and conditions set forth herein, each of the Agents agrees, as agent of
the Company, to use its reasonable best efforts to solicit offers to purchase
the Notes from the Company upon the terms and conditions set forth herein and in
the Prospectus as amended or supplemented and in the Procedures.
The Company reserves the right, in its sole discretion, to instruct the
Agents or any one or more of the Agents from time to time to suspend at any
time, for any period of time or permanently, the solicitation of offers to
purchase the Notes. Upon receipt of instructions from the Company, such Agents
will forthwith suspend solicitation of offers to purchase Notes from the Company
until such time as the Company has advised them that such solicitation may be
resumed.
Unless otherwise agreed between the Company and such Agent, the Company
agrees to pay each Agent a commission in U.S. dollars, at the time of settlement
of each sale of Notes by the Company as a result of a solicitation made by such
Agent, in an amount equal to that percentage specified in Schedule I hereto (or,
with respect to Notes in which the stated maturity is in excess of 30 years,
such percentage as shall be agreed upon by the Company and the related Agent at
such time) of the aggregate principal amount of the Notes sold by the Company as
a result of solicitations by such Agent and such commission shall be payable as
specified in the Procedures.
7
Subject to the provisions of this Section and to the Procedures, offers
for the purchase of Notes may be solicited by each Agent as agent for the
Company at such time and in such amounts as such Agent deems advisable;
provided, however, that so long as this Agreement shall be in effect, the
Company shall not solicit offers to purchase Notes through any agents other than
the Agents.
Notwithstanding anything to the contrary contained herein, the Company may
authorize any other person or entity (an "Additional Agent") to act as its agent
to solicit offers for the purchase of all or part of the Notes of the Company
and/or accept offers to purchase Notes from any such Additional Agent, provided
that any such Additional Agent shall have entered into an agreement with the
Company upon the same terms and conditions as set forth in this Agreement.
(b) Subject to the terms and conditions stated herein, the Company
agrees that, whenever the Company determines to sell Notes directly to any
Agent as principal for resale to others, it will enter into a separate
agreement relating to such sale in accordance with the provisions of this
Section 2(b). For the purposes of this Agreement, the term "Purchaser"
shall refer to each of you acting solely as principal hereunder and not as
agent. For the purposes of Section 3 and Section 5 of this Agreement, the
term "agent" shall refer to each of you acting solely in the capacity as
agent for the Company hereunder and not as principal. The term "Agent" or
"you" shall refer to each of you acting in both such capacities or in
either such capacity.
Each sale of Notes to a Purchaser shall be made in accordance with
the terms of this Agreement and the Procedures and a supplemental
agreement which will provide for the sale of such Notes to, and the
purchase and reoffering thereof by, a Purchaser. Each such supplemental
agreement (which may be an oral agreement and confirmed in writing between
a Purchaser and the Company) is herein referred to as a "Terms Agreement".
Each such Terms Agreement, whether oral (and confirmed in writing, which
may be by facsimile transmission) or in writing, shall be with respect to
such information (as applicable) as is specified in Exhibit B hereto. A
Purchaser's commitment to purchase Notes shall be deemed to have been made
on the basis of the representations and warranties of the Company and the
Guarantor herein contained and shall be subject to the terms and
conditions herein set forth. Each Terms Agreement shall describe the Notes
to be purchased by the Purchaser pursuant thereto, specify the principal
amount of such Notes, the price to be paid to the Company for such Notes,
the currency or currency unit in which such Notes shall be denominated and
be payable, whether the Notes will be issued in certificated or book-entry
form, whether interest shall be payable at a fixed or floating rate, the
date and time of delivery of payment for such Notes (the "Purchase Date"),
the place of delivery of the Notes and payment therefor, the method of
payment and any requirements for the delivery of the opinions of counsel,
the certificates from the Company, the Guarantor or their officers, or the
letter from Xxxxx Xxxxxxxx LLP pursuant to Section 6(b). Such Terms
Agreement shall also specify the period of time, if applicable, referred
to in Section 4(l). In connection with the resale of any Notes purchased
by a Purchaser, such Purchaser may engage the services of any other broker
or dealer in connection with such resale and may allow all or any portion
of the discount received to such brokers and dealers.
8
Delivery of the certificates for Notes sold to a Purchaser pursuant
to any Terms Agreement shall be made as agreed to between the Company and
the Purchaser as set forth in the respective Terms Agreement, not later
than the Purchase Date set forth in such Terms Agreement, against payment
of funds to the Company in the net amount due to the Company for such
Notes by the method and in the form set forth in the respective Terms
Agreement.
(c) So long as Countrywide Securities Corporation is an Agent under
the Selling Agency Agreement each Agent agrees that it will comply with
the applicable provisions of Conduct Rule 2720(l) of the Conduct Rules of
the National Association of Securities Dealers, Inc.
3. Offering Procedure. (a) Unless otherwise agreed between the Company and
each agent, each agent shall communicate to the Company, orally or in writing,
each offer to purchase Notes received by such agent (unless such offer is
rejected by such agent in accordance herewith) on terms previously communicated
by the Company to such agent, and unless otherwise agreed between the Company
and each agent, the Company shall have the sole right to accept such offers to
purchase Notes and may refuse any proposed purchase of Notes in whole or in part
for any reason.
(b) Unless otherwise agreed between the Company and each agent, each
agent shall have the right, in its discretion reasonably exercised, to
reject any proposed purchase of Notes, as a whole or in part, and any such
rejection shall not be deemed a breach of its agreement contained herein.
Each agent and the Company agree to perform the respective duties and
obligations specifically provided to be performed by them in the
Procedures.
4. Agreements. The Company and the Guarantor, jointly and severally, agree
with each Agent that:
(a) Prior to the termination of the offering of the Notes, the
Company and the Guarantor will not file any amendment of the Registration
Statement or supplement to the Prospectus (except for a supplement
relating to an offering of securities other than the Notes and related
Guarantees) unless the Company or the Guarantor has furnished to such
Agent a copy for its review prior to filing and will not file any such
proposed amendment or supplement to which such Agent may reasonably
object. Subject to the foregoing sentence, the Company and the Guarantor
will cause each supplement to the Prospectus to be filed (or mailed for
filing) with the Commission as required pursuant to Rule 424. The Company
and the Guarantor will promptly advise such Agent (i) when each supplement
to the Prospectus shall have been filed (or mailed for filing) with the
Commission pursuant to Rule 424, (ii) when any amendment of the
Registration Statement shall have become effective, (iii) of any request
by the Commission for any amendment of the Registration Statement or
amendment of or supplement to the Prospectus or for any additional
information, (iv) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration
9
Statement or the institution or threatening of any proceeding for that
purpose and (v) of the receipt by the Company or the Guarantor of any
notification with respect to the suspension of the qualification of the
Notes and related Guarantees for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose. The Company
and the Guarantor will use their best efforts to prevent the issuance of
any such stop order and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b) If, at any time when a prospectus relating to the Notes and
related Guarantees is required to be delivered under the Act, any event
occurs as a result of which the Registration Statement, as then amended,
or the Prospectus, as then supplemented, would include any 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, any facts or events arise which,
individually or in the aggregate, would represent a fundamental change in
the information set forth in the Registration Statement or the Prospectus,
or if it shall be necessary to amend the Registration Statement or to
supplement the Prospectus to comply with the Act or the Exchange Act or
the respective rules and regulations thereunder, the Company and the
Guarantor promptly will (i) notify such Agent to suspend the solicitation
of offers to purchase Notes (and, if so notified, such Agent shall
forthwith suspend such solicitation and cease using the Prospectus as then
amended or supplemented), (ii) prepare and file with the Commission,
subject to the first sentence of paragraph (a) of this Section 4, an
amendment or supplement which will correct such statement or omission or
an amendment or supplement which will effect such compliance and (iii)
will supply any such amended or supplemented Prospectus to such Agent in
such quantities as such Agent may reasonably request. If such amendment or
supplement, and any documents, certificates and opinions furnished to such
Agent pursuant to paragraph (f) of this Section 4 in connection with the
preparation or filing of such amendment or supplement are reasonably
satisfactory in all respects to such Agent, such Agent will, upon the
filing of such amendment or supplement with the Commission and upon the
effectiveness of an amendment to the Registration Statement if such an
amendment is required, resume such Agent's obligation to solicit offers to
purchase Notes hereunder.
(c) As soon as practicable, the Guarantor will make generally
available to the security holders of the Guarantor and to such Agent an
earnings statement which will satisfy the provisions of Section 11(a) of
the Act and Rule 158 under the Act.
(d) The Company and the Guarantor will furnish to such Agent and to
its counsel, without charge, copies of the Registration Statement
(including exhibits thereto) and each amendment thereto which shall become
effective and, so long as delivery of a prospectus may be required by the
Act, as many copies of any preliminary prospectus and the Prospectus and
any amendments thereof and supplements thereto as such Agent may
reasonably request.
10
(e) The Company and the Guarantor will arrange for the qualification
of the Notes and related Guarantees for sale under the laws of such
jurisdictions as such Agent may designate, will maintain such
qualifications in effect so long as required for the distribution of the
Notes and related Guarantees, and will arrange for the determination of
the legality of the Notes and related Guarantees for purchase by
institutional investors.
(f) The Company and the Guarantor shall furnish to such Agent and
counsel for such Agent, such documents, certificates of officers and
opinions of counsel relating to their respective businesses, operations
and affairs, the Registration Statement, any preliminary prospectus, the
Prospectus, and any amendments or supplements thereto, the Indenture, the
Notes, the Guarantees, this Agreement, the Procedures and the performance
by the Company and the Guarantor of their respective obligations hereunder
and thereunder as such Agent may from time to time and at any time prior
to the termination of this Agreement reasonably request.
(g) The Company and the Guarantor shall, whether or not any sale of
the Notes is consummated, (i) pay all expenses incident to the performance
of their obligations under this Agreement, including the fees and
disbursements of its accountants and counsel, the cost of printing (or
otherwise producing) and delivery of the Registration Statement, the
Prospectus, all amendments thereof and supplements thereto, the Indenture,
this Agreement and all other documents relating to the offering, the cost
of preparing, printing, packaging and delivering the Notes and related
Guarantees, the fees and disbursements, including fees of counsel,
incurred in connection with the qualification of the Notes and related
Guarantees for sale and determination of eligibility for investment of the
Notes and related Guarantees under the securities or blue sky laws of each
such jurisdiction as such Agent may reasonably designate, the fees and
disbursements of the Trustee, the Calculation Agent (as such term is used
in the Prospectus, as supplemented, relating to the Notes and related
Guarantees) and the fees of any agency that rates the Notes, and (ii)
reimburse such Agent on a monthly basis for all out-of-pocket expenses
(including without limitation advertising expenses) incurred by such Agent
and approved by the Company or the Guarantor in advance, in connection
with the offering and the sale of the Notes and related Guarantees, and
(iii) be responsible for the reasonable fees and disbursements of such
Agent's counsel incurred heretofore or hereafter in connection with the
offering and sale of the Notes and related Guarantees.
(h) Each acceptance by the Company of an offer to purchase Notes and
each delivery of Notes by the Company will be deemed to be a
reconfirmation to you, as of the date of such acceptance or delivery, of
the representations and warranties of the Company and the Guarantor in
Section 1(b).
(i) Each time that the Registration Statement or the Prospectus is
amended or supplemented (other than by an amendment or supplement (i)
relating
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to an offering of securities other than the Notes and related Guarantees
or (ii) providing solely for the specification of the terms of the Notes
(excluding (a) any change in the formula by which interest rates on the
Notes may be determined and (b) any information relating to Specified
Currencies other than U.S. dollars)) or there is filed with the Commission
any document incorporated by reference into the Prospectus, the Company
and the Guarantor will each deliver or cause to be delivered forthwith to
such Agent a certificate of its President, Managing Director or any Vice
President and its principal financial or accounting officer or the
Treasurer, dated the date of the effectiveness of such amendment or the
date of filing of such supplement, in form reasonably satisfactory to such
Agent, to the effect that the statements contained in the certificate that
was last furnished to such Agent pursuant to either Section 5(e) or this
Section 4(i) are true and correct at the time of the effectiveness of such
amendment or the filing of such supplement as though made at and as of
such time (except that (i) the last day of the fiscal quarter for which
financial statements of the Guarantor were last filed with the Commission
shall be substituted for the corresponding date in such certificate and
(ii) such statements shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented to the time of
the effectiveness of such amendment or the filing of such supplement) or,
in lieu of such certificate, a certificate of the same tenor as the
certificate referred to in Section 5(e), but modified to relate to the
last day of the fiscal quarter for which financial statements of the
Guarantor were last filed with the Commission and to the Registration
Statement and the Prospectus as amended and supplemented to the time of
the effectiveness of such amendment or the filing of such supplement.
(j) Each time that the Registration Statement or the Prospectus is
amended or supplemented (other than by an amendment or supplement (i)
relating to an offering of securities other than the Notes and related
Guarantees, (ii) providing solely for the specification of the terms of
the Notes (excluding (a) any change in the formula by which interest rates
on the Notes may be determined and (b) any information relating to
Specified Currencies other than U.S. dollars) or (iii) setting forth or
incorporating by reference financial statements or other financial
information as of and for a fiscal quarter, unless, in the case of clause
(iii) above, in such Agent's reasonable judgment, such financial
statements or other financial information are of such a nature that an
opinion of counsel should be furnished) or there is filed with the
Commission any document incorporated by reference into the Prospectus, the
Company and the Guarantor shall furnish or cause to be furnished forthwith
to such Agent the written opinion of the General Counsel of the Company
and the Guarantor, or such other counsel satisfactory to such Agent, dated
the date of the effectiveness of such amendment or the date of filing of
such supplement, in form satisfactory to such Agent, covering all of the
matters referred to in the opinions set forth in Sections 5(b) and 5(c)
but modified to relate to the Registration Statement and the Prospectus as
amended and supplemented to the time of the effectiveness of such
amendment or the filing of such supplement or, in lieu of such opinion,
counsel last furnishing such an
12
opinion to such Agent may furnish a letter to the effect that such Agent
may rely on such last opinion to the same extent as though it were dated
the date of such letter authorizing reliance (except that statements in
such last opinion will be deemed to relate to the Registration Statement
and the Prospectus as amended and supplemented to the time of the
effectiveness of such amendment or the filing of such supplement);
provided, however, that, upon a reasonable request from such Agent, the
Company and the Guarantor shall cause to be furnished forthwith to such
Agent the written opinion of Xxxxxx, Xxxxxx & Xxxxx LLP, counsel to the
Company and the Guarantor, dated the date of the effectiveness of such
amendment or the date of filing of such supplement, in form satisfactory
to such Agent, of the same tenor as the opinions referred to in Section
5(b) but modified to relate to the Registration Statement and the
Prospectus as amended and supplemented to the time of the effectiveness of
such amendment or the filing of such supplement.
(k) Each time that the Registration Statement or the Prospectus is
amended or supplemented to set forth amended or supplemental financial
information or such amended or supplemental information is incorporated by
reference in the Registration Statement or the Prospectus, the Company and
the Guarantor shall cause Xxxxx Xxxxxxxx LLP, their independent public
accountants, forthwith to furnish to such Agent a letter, dated the date
of the effectiveness of such amendment or the date of filing of such
supplement, in form satisfactory to such Agent, of the same tenor as the
letter referred to in Section 5(f) with such changes as may be necessary
to reflect the amended and supplemental financial information included or
incorporated by reference in the Registration Statement and the
Prospectus, as amended or supplemented to the date of such letter,
provided that if the Registration Statement or the Prospectus is amended
or supplemented solely to include or incorporate by reference financial
information as of and for a fiscal quarter, Xxxxx Xxxxxxxx LLP may limit
the scope of such letter, which shall be satisfactory in form to such
Agent, to the unaudited financial statements included in such amendment or
supplement, unless any other information included or incorporated by
reference therein of an accounting, financial or statistical nature is of
such a nature that, in such Agent's reasonable judgment, such letter
should cover such other information.
(l) During the period, if any, specified in any Terms Agreement, the
Company and the Guarantor shall not, without the prior consent of the
Purchaser, issue or announce the proposed issuance of any debt securities
of the Company or the Guarantor in a public offering or register any debt
securities of the Company or the Guarantor under the Act in connection
with any secondary distribution of such debt securities.
5. Conditions to the Obligations of the Agents. The obligations of any
agent to solicit offers to purchase the Notes shall be subject to the accuracy
of the representations and warranties on the part of the Company and the
Guarantor contained herein as of the date hereof, as of the date of the
effectiveness of any amendment to the Registration Statement (including the
13
filing of any document incorporated by reference therein), as of the date of any
supplement to the Prospectus and as of each Settlement Date, to the accuracy of
the statements of the Company and the Guarantor made in any certificates
pursuant to the provisions hereof, to the performance by the Company and the
Guarantor of their respective obligations hereunder and to the following
additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement, as amended from time to time, shall have been issued, and no
proceedings for that purpose shall have been instituted or threatened.
(b) The Company and the Guarantor shall have furnished to the agents
the opinion or opinions of Xxxxxx, Xxxxxx & Xxxxx LLP, counsel to the
Company and the Guarantor, dated the date hereof, substantially as set
forth below, with such additional qualifications and exceptions as shall
be acceptable to the agents and their counsel:
(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 to 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 the Terms Agreement
(if applicable), and this Agreement and the Terms Agreement (if
applicable) have been duly and validly authorized, executed and
delivered by the Company and the Guarantor, respectively.
(iii) The form and general terms of the Notes have been duly
and validly authorized and established in conformity with the
provisions of the Indenture by all necessary corporate action by the
Company, and when the particular terms of the Notes have been duly
established in accordance with the provisions of the Indenture, the
Procedures and the resolutions of the Board of Directors of the
Company and such Notes have been duly executed, authenticated and
delivered against payment therefor in accordance with the provisions
of the Indenture, the Procedures and this Agreement, will constitute
the legal, valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms and the terms of
the Indenture, and the holders of the Notes will be entitled to the
benefits of the Indenture; and the Indenture has been duly
authorized, executed and delivered by each of the Company and
Guarantor, has been qualified under the Trust Indenture Act, and
constitutes a legal, valid and binding obligation enforceable
against each of the Company and the Guarantor in accordance with its
terms.
(iv) The Guarantees, in the forms certified to by an
authorized officer of the Guarantor, have been duly and validly
authorized by all
14
necessary corporate action by the Guarantor and, upon due issuance,
authentication and delivery of the related Notes and due endorsement
of the Guarantees, the Guarantees will have been duly executed,
issued and delivered and will constitute the legal, valid and
binding obligations of the Guarantor enforceable against the
Guarantor in accordance with their terms and the terms of the
Indenture, and the holders of the Notes upon which the Guarantees
are endorsed will be entitled to the benefits of the Indenture.
(v) The Registration Statement has become effective under the
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 (other than (i) the financial
statements and other financial and statistical information contained
therein and (ii) the Statement of Eligibility on Form T-1 filed as
an exhibit thereto, as to which such counsel need express no
opinion), as of their respective effective or issue dates, as the
case may be, appear on their face to be responsive as to form in all
material respects with the applicable requirements of the Act and
the Rules and Regulations and the Trust Indenture Act and the rules
and regulations of the Commission thereunder.
(vi) 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 or
the Indenture, except such as have been obtained under the Act and
such as may be required under the securities and blue sky laws,
rules or regulations of any jurisdiction in connection with the
purchase and distribution of the Notes and related Guarantees by the
agents and such other approvals as have been obtained.
(vii) Neither the issue and sale of the Notes (in the forms
certified to by an authorized officer of the Company), the
compliance by the Company and the Guarantor with all the provisions
of this Agreement, the Indenture, the Notes or the Guarantees (in
the form certified to by an authorized officer of the Guarantor),
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 order, decree,
15
judgment 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.
(viii) To the best knowledge of such counsel, no holders of
securities of the Company or the Guarantor have rights to the
registration of such securities under the Registration Statement.
(ix) Such counsel confirms (i) that the statements in the
Prospectus under the caption "Certain Federal Income Tax
Consequences", insofar as such statements constitute a summary of
the legal matters referred to therein, fairly present the
information disclosed therein in all material respects, (ii) the
conformity in all material respects of the Notes (in the forms
certified to by an authorized officer of the Company) to the
statements relating thereto in the Prospectus, and (iii) the
conformity in all material respects of the Indenture and the
Guarantees to the statements relating thereto in the Prospectus
under the captions "Description of Notes" and "Description of Debt
Securities of Countrywide Home Loans and Related Guarantees of
Countrywide Financial Corporation."
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 Incorporated Documents (as
defined below)), 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
16
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 (ix) 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 date hereof, 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 a Statement of Eligibility
on Form T-1 under the Trust Indenture Act. References to the Prospectus in
this Section 5(b) include any amendments or supplements thereto at the
date hereof.
In rendering such opinion, 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 Delaware (but only with respect to the
Delaware General Corporation Law) 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 agents, (B) as the matters involving the
application of laws of the State of New York, to the extent specified in
such opinion, upon the opinion of Xxxxxx Xxxxxx Xxxxx & Xxxx llp being
delivered to the agents as of the date thereof and (C) as to matters of
fact, to the extent they deem proper, on certificates and oral or written
statements and other information of or from public officials and officers
and representatives of the Company, the Guarantor, their respective
subsidiaries and others.
In rendering the opinions set forth in paragraphs (iii) and (iv),
such counsel may state that such opinions are subject to the following:
(i) bankruptcy, insolvency, reorganization, fraudulent transfer,
fraudulent conveyance, moratorium or other 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) whether such principles are
considered in a proceeding in equity or at law.
In rendering the opinions set forth above, such counsel need not
express an opinion as to the legality, validity, binding effect or
enforceability of any provision of the Notes, the Indenture or the
Guarantees providing for payments thereunder in a currency other than
currency of the United States of America to the extent that a court of
17
competent jurisdiction will under applicable law convert any judgment
rendered in such other currency into currency of the United States of
America or to the extent that payment in a currency other than currency of
the United States of America is contrary to applicable law.
In rendering the opinions set forth above, such counsel may state
that it has assumed, with the permission of the agents, that the amount of
Notes to be issued from time to time will not violate any provision in any
such agreement referred to in paragraph (vii) which imposes limits on the
amount of debt of the Company, the Guarantor or any of the Guarantor's
subsidiaries which may be outstanding at any one time (whether directly or
indirectly, through satisfaction of financial ratios or otherwise).
(c) The Company and the Guarantor shall have furnished to the
agents the opinion or opinions of Xxxxxx X. Xxxxxxx, General Counsel of
the Company and the Guarantor, dated the date hereof, substantially as
set forth below, with such additional qualifications and exceptions as
shall be acceptable to the agents and their counsel:
(i) Each Subsidiary, if any, 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 its 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 Notes, the
compliance by the Company and the Guarantor with all the
provisions of this Agreement, the Indenture, the Notes or the
Guarantees, the consummation of any other 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
18
charter or by-laws 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 order, decree, law, judgment, 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 documents (the "Incorporated Documents")
incorporated by reference in the Registration Statement and
Prospectus (except for the financial statements and other
financial or statistical data, as to which no opinion need be
expressed), as of the dates they were filed with the
Commission, complied as to form in all material respects to
the requirements of the Act and the Rules and Regulations and
the Exchange Act and the rules and regulations of the
Commission thereunder.
(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 Act and such as may be required under the securities
and blue sky laws, rules and regulations of any jurisdiction
in connection with the purchase and distribution of the Notes
and related Guarantees by the agents and such other approvals
as have been obtained.
In rendering the opinions set forth above, such counsel may state
that it has assumed, with the permission of the agents, that the amount of
Notes to be issued from time to time will not violate any provision in any
such agreement referred to in paragraph (v) which imposes limits on the
amount of debt of the Company, the Guarantor or any of the Guarantor's
subsidiaries which may be outstanding at any one time (whether directly or
indirectly, through satisfaction of financial ratios or otherwise).
(d) Such agent shall have received from Xxxxxx Xxxxxx Xxxxx & Xxxx
llp, counsel for the agents, such opinion or opinions, dated the date
hereof, with respect to the issuance and sale of the Notes and related
Guarantees, this Agreement, the Indenture, the Registration Statement, the
Prospectus and other related matters as such agent may reasonably require,
and the Company and the Guarantor shall have furnished to such counsel
such documents as they request for the purpose of enabling them to pass
upon such matters.
(e) The Company and the Guarantor shall have each furnished to such
agent a certificate of its President, a Managing Director or a Vice
President and its Treasurer or an Assistant Treasurer, dated the date
hereof, to the effect that the signers of such certificate have carefully
examined the Registration Statement, the Prospectus and this Agreement and
that:
19
(i) the representations and warranties of the Company or
the Guarantor, as the case may be, in this Agreement are true
and correct in all material respects on and as of the date
hereof with the same effect as if made on the date hereof, and
the Company or the Guarantor, as the case may be, has complied
with all the agreements and satisfied all the conditions on
its part to be performed or satisfied as a condition to the
obligation of such agent to solicit offers to purchase the
Notes;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for
that purpose have been instituted or, to the knowledge of the
Company or the Guarantor, as the case may be, threatened; and
(iii) since the date of the most recent financial
statements included or incorporated in the Prospectus, there
has been no material adverse change in the condition
(financial or otherwise), earnings, business or properties of
the Company or the Guarantor and its subsidiaries considered
as a whole, whether or not arising from transactions in the
ordinary course of business, except as set forth in or
contemplated in the Prospectus.
(f) On the date hereof, Xxxxx Xxxxxxxx LLP shall have furnished to
such agent a letter or letters (which may refer to letters previously
delivered to such agent), dated as of the date hereof, in form and
substance satisfactory to such agent, confirming that they are independent
accountants within the meaning of the Act and the Exchange Act and the
respective applicable published rules and regulations thereunder and
stating in effect that:
(i) in their opinion the audited consolidated financial
statements and financial statement schedules included or
incorporated in the Registration Statement and the Prospectus
and reported on by them comply as to form in all material
respects with the applicable accounting requirements of the
Act and the Exchange Act and the related published rules and
regulations;
(ii) on the basis of a reading of the latest unaudited
consolidated financial statements made available to them;
carrying out certain specified procedures (which shall
include, without limitation, the procedures specified by the
American Institute of Certified Public Accountants for a
review of interim financial information as described in SAS
No. 71, Interim Financial Information, with respect to such
unaudited consolidated financial statements included or
incorporated by reference in the Registration Statement or the
Prospectus); a reading of the minutes of the meetings of the
stockholders, directors and standing committees thereof; and
inquiries of certain officials who have responsibility for
financial and accounting matters as to transactions and events
subsequent to the date of the most recent audited financial
statements included or incorporated in the Prospectus, nothing
came to their attention which caused them to believe that:
20
(1) any unaudited financial statements included or
incorporated in the Registration Statement and the Prospectus
do not comply as to form in all material respects with
applicable accounting requirements of the Exchange Act as they
apply to quarterly reports on Form 10-Q or that any material
modifications should be made to said unaudited financial
statements for them to be in conformity with generally
accepted accounting principles;
(2) with respect to the period subsequent to the date of
the most recent financial statements (other than any capsule
information), audited or unaudited, in or incorporated in the
Registration Statement and the Prospectus, there was any
change, at a specified date not more than three business days
prior to the date of the letter, in the capital stock or long
and intermediate term debt of the Company or the Guarantor and
its subsidiaries taken as a whole or any decreases in the
shareholders' equity or consolidated net assets as compared
with the amounts shown on the most recent consolidated balance
sheet included or incorporated in the Registration Statement
and the Prospectus, or for the period from the date of the
most recent financial statements included or incorporated in
the Registration Statement and the Prospectus to such
specified date there were any decreases, as compared with the
corresponding period in the preceding year in consolidated
revenues (net of interest charges), earnings before income
taxes or net earnings of the Company or the Guarantor and its
subsidiaries, except in all instances for changes or decreases
set forth in such letter; or
(3) the amounts included in any unaudited "capsule"
information included or incorporated in the Registration
Statement and the Prospectus do not agree with the amounts set
forth in the unaudited financial statements for the same
periods or were not determined on a basis substantially
consistent with that of the corresponding amounts in the
audited financial statements included or incorporated in the
Registration Statement and the Prospectus;
(iii) they have performed certain other specified procedures
as a result of which they determined that certain information of an
accounting, financial or statistical nature set forth in the
Registration Statement and the Prospectus and in Exhibit 12 to the
Registration Statement, the information included or incorporated in
Items 1, 2, 6, 7 and 11 of the Guarantor's Annual Report on Form
10-K (and, if filed, the Company's Annual Report on Form 10-K),
incorporated in the Registration Statement and the Prospectus and
the information included in the "Management's Discussion and
Analysis of Financial Condition and Results of Operations" included
or incorporated in the Company's or the Guarantor's Quarterly
Reports on Form 10-Q incorporated in the Registration Statement and
21
the Prospectus, agrees with the accounting records of the Company,
the Guarantor and their respective subsidiaries, excluding any
questions of legal interpretation; and
(iv) if pro forma financial statements are included or
incorporated in the Registration Statement and the Prospectus, on
the basis of a reading of the unaudited pro forma financial
statements, carrying out certain specified procedures, inquiries of
certain officials of the Company or the Guarantor, as the case may
be, who have responsibility for financial and accounting matters,
and proving the arithmetic accuracy of the application of the pro
forma adjustments to the historical amounts in the pro forma
financial statements, nothing came to their attention which caused
them to believe that the pro forma financial statements do not
comply in form in all material respects with the applicable
accounting requirements of Rule 11-02 of Regulation S-X or that the
pro forma adjustments have not been properly applied to the
historical amounts in the compilation of such statements.
References to the Registration Statement and the Prospectus in this
paragraph (f) are to such documents as amended and supplemented at the date of
the letter.
(g) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus (as
amended or supplemented, in the case of a Terms Agreement, but
exclusive of any amendment or supplement subsequent to the date of
execution of such Terms Agreement) there shall not have been (i) any
change or decrease specified in the letter or letters referred to in
paragraph (f) of this Section 5 or (ii) any change, or any
development involving a prospective change, in or affecting the
business or properties of the Company, the Guarantor and their
respective subsidiaries the effect of which, in any case referred to
in clause (i) or (ii) above, is, in the judgment of such Agent, so
material and adverse as to make it impractical or inadvisable to
proceed with the soliciting of offers to purchase the Notes as
contemplated by the Registration Statement and the Prospectus (or,
in the case of a Terms Agreement, to proceed with the offering or
the delivery of the Notes to be purchased as contemplated by the
Terms Agreement).
(h) Prior to the date hereof, the Company and the Guarantor
shall have furnished to such agent such further information,
certificates and documents as such agent may reasonably request.
(i) Prior to the date hereof, the Notes shall have been rated,
and on the date hereof the Notes shall be rated, at least BBB- by
Standard & Poor's Ratings Services, a division of The XxXxxx-Xxxx
Companies, Inc. ("S&P") and Baa3 by Xxxxx'x Investors Service, Inc.
("Moody's").
If any of the conditions specified in this Section 5 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects
22
reasonably satisfactory in form and substance to such agent and its counsel,
this Agreement and all obligations of such agent hereunder may be canceled at
any time by such agent. Notice of such cancellation shall be given to the
Company and the Guarantor in writing or by telephone or telegraph confirmed in
writing.
The documents required to be delivered by this Section 5 shall be
delivered to the offices of Xxxxxx Xxxxxx Xxxxx & Xxxx llp, 000 Xxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, or such other location as shall be mutually agreed
upon, on the date hereof.
6. Conditions to the Obligations of a Purchaser. The obligations of a
Purchaser to purchase Notes pursuant to any Terms Agreement will be subject to
the accuracy of the representations and warranties on the part of the Company
and the Guarantor herein as of the date of the respective Terms Agreement and as
of the Purchase Date thereunder, to the performance and observance by the
Company and the Guarantor of all covenants and agreements herein contained on
its part to be performed and observed and to the following additional conditions
precedent:
(a) No stop order suspending the effectiveness of the Registration
Statement, as amended from time to time, shall have been issued and no
proceedings for that purpose shall have been instituted or threatened.
(b) Except to the extent modified by the respective Terms Agreement, the
Purchaser shall have received, appropriately updated in a manner
consistent with Section 5 hereof, (i) certificates of the Company and the
Guarantor, dated as of the Purchase Date, to the effect set forth in
Section 5(e), (ii) the opinion or opinions of Xxxxxx, Xxxxxx & Xxxxx LLP,
counsel to the Company and the Guarantor, dated as of the Purchase Date,
to the effect set forth in Section 5(b), as modified such that 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 and, if subsequently filed, as of the date of the
Guarantor's Annual Report on Form 10-K (and, if filed, the Company's
Annual Report on Form 10-K), contained an untrue statement of material
fact or omitted to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, (iii) the
opinion or opinions of Xxxxxx X. Xxxxxxx, General Counsel to the Company
and the Guarantor, dated as of the Purchase Date, to the effect set forth
in Section 5(c), as modified such that 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 and, if
subsequently filed, as of the date of the Guarantor's Annual Report on
Form 10-K (and, if filed, the Company's Annual Report on Form 10-K),
contained an untrue statement of material fact or omitted to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, (iv) the opinion or opinions of Xxxxxx
Xxxxxx Xxxxx & Xxxx llp, counsel for the Purchaser, dated as of the
Purchase Date, to the effect set forth in Section 5(d), (v) letter of
Xxxxx Xxxxxxxx LLP, dated as of the Purchase Date, to the effect set forth
in Section 5(f), and (vi) bringdown letter of Xxxxx Xxxxxxxx LLP, dated as
of the related Settlement Date.
23
(c) The conditions set forth in Section 5(g) shall have been satisfied.
(d) Prior to the Purchase Date, the Company and the Guarantor shall have
furnished to the Purchaser such further information, certificates and
documents as the Purchaser may reasonably request.
(e) Prior to and at the Purchase Date, the Notes shall have been rated at
least BBB- by S&P and Baa3 by Moody's.
(f) Subsequent to the execution of any Terms Agreement and prior to the
Purchase Date pursuant to such Terms Agreement, the rating assigned by S&P
or Moody's to any debt securities of the Company or the Guarantor has not
been lowered and neither S&P nor Moody's has publicly announced that it
has under surveillance or review, with possible negative implications, its
rating of any debt securities of the Company or the Guarantor.
If any of the conditions specified in this Section 6 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Purchaser and its counsel, this Agreement and all
obligations of the Purchaser hereunder may be canceled at, or at any time prior
to, the respective Purchase Date by the Purchaser. Notice of such cancellation
shall be given to the Company or the Guarantor in writing or by telephone or
telegraph confirmed in writing.
7. Reimbursement of the Agent's Expenses. If any condition to the
obligations of any Agent set forth in Section 5 hereof is not satisfied, if any
condition to the obligations of a Purchaser set forth in Section 6 hereof is not
satisfied, if any termination pursuant to Section 9 hereof shall occur or in the
case of any refusal, inability or failure on the part of the Company or the
Guarantor to perform any agreement herein or comply with any provision hereof
other than by reason of a default by an Agent, the Company and the Guarantor
will reimburse such Agent upon demand for all expenses that shall have been
incurred by such Agent pursuant to Section 4(g) hereof in connection with this
Agreement.
8. Indemnification and Contribution. (a) The Company and the Guarantor,
jointly and severally, agree to indemnify and hold harmless each Agent and each
person who controls such Agent within the meaning of either the Act or the
Exchange Act against any and all losses, claims, damages or liabilities, joint
or several, to which such Agent or any of them may become subject under the 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 for the registration of the Notes as originally filed or
in any amendment thereof, or in the Prospectus or any preliminary Prospectus, or
in any amendment thereof or supplement thereto, 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, as incurred, for any legal
or other expenses reasonably incurred by them in
24
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that (i) the Company and the Guarantor
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 or the Guarantor by or on behalf of such Agent specifically for use in
connection with the preparation thereof, and (ii) such indemnity with respect to
any preliminary Prospectus or any Prospectus as supplemented or amended shall
not inure to the benefit of any Agent (or any person controlling such Agent)
from whom the person asserting any such loss, claim, damage or liability
purchased the Notes which are the subject thereof if such Agent (or any person
controlling such Agent) received a copy of such Prospectus (or such Prospectus
as so amended or supplemented) and such Agent (or any person controlling such
Agent) did not send a copy of the Prospectus (or the Prospectus as amended or
supplemented) excluding documents incorporated therein by reference at or prior
to the confirmation of the sale of such Notes to such person in any case where
such delivery is required by the Act and the untrue statement or omission or the
alleged untrue statement or omission was corrected in the Prospectus (or the
Prospectus as amended or supplemented). This indemnity agreement will be in
addition to any liability which the Company or the Guarantor may otherwise have.
(b) Each Agent severally and not jointly agrees to indemnify and hold
harmless the Company and the Guarantor, their respective directors, each of
their officers who sign the Registration Statement, and each person who controls
the Company or the Guarantor within the meaning of either the Act or the
Exchange Act, to the same extent as the foregoing indemnity from the Company and
the Guarantor to such Agent, but only with reference to written information
relating to such Agent furnished to the Company or the Guarantor by or on behalf
of such Agent specifically for use in the preparation of the documents referred
to in the foregoing indemnity. This indemnity agreement will be in addition to
any liability which such Agent may otherwise have. The Company and the Guarantor
acknowledge that the statements set forth in the last sentence of paragraph five
and paragraphs six, seven, eight and ten under the heading "Plan of Distribution
of Notes," insofar as it relates to such Agent, in the Prospectus constitute the
only information furnished in writing by or on behalf of such Agent for
inclusion in the documents referred to in the foregoing indemnity, and you
confirm that such statements are correct.
(c) Promptly after receipt by an indemnified party under this Section 8 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 8, notify the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve the
indemnifying party from any liability which it may have to any indemnified party
hereunder, except and to the extent of any prejudice to such indemnifying party
arising from such failure to provide notice, and will not, in any event, relieve
the indemnifying party from any liability which it may have to any indemnified
party other than under this Section 8. 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
25
counsel satisfactory to such indemnified party; provided, however, that if the
defendants in any such action include both the indemnified party and the
indemnifying party, and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assert 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 such action and approval by
the indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under this Section 8 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 separate counsel
in connection with the assertion of legal defenses in accordance with the
proviso to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel, approved by the Agents in the case of paragraph (a) of this
Section 8, representing the indemnified parties under such paragraph (a) 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
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party; and except that, if clause (i)
or (iii) is applicable, such liability shall be only in respect of the counsel
referred to in such clause (i) or (iii).
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable to such
indemnified party as a result of such losses, claims, damages, or liabilities
(or actions in respect thereof) in such proportion as is appropriate to reflect
the relative benefits received by the Company and the Guarantor on the one hand
and each Agent on the other from the offering of the Notes to which such loss,
claim, damage or liability (or action in respect thereof) relates. If, however,
the allocation provided by the immediately preceding sentence is not permitted
by applicable law or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company and the Guarantor on the one hand and each Agent on the
other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as well
as any other relevant equitable considerations. The relative benefits received
by the Company and the Guarantor on the one hand and each Agent on the other
shall be deemed to be in the same proportion as the total net proceeds from such
offering (before deducting expenses) received by the Company bear to the total
commissions received by each Agent. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or the Guarantor on the one hand
or any Agent on the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
26
omission. The Company, the Guarantor and each Agent agree that it would not be
just and equitable if contribution pursuant to this subsection (d) were
determined by pro rata allocation (even if the Agents 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 subsection
(d). The amount paid or payable by an indemnified party as a result of the
losses, claims, damages, or liabilities (or actions in respect thereof) referred
to above in this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no Agent shall be required to contribute any
amount in excess of the amount of commission or discount received by it in
connection with the offering of the Notes that were the subject of the claim for
indemnification. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The obligations
of the Agents in this subsection (d) to contribute are several in proportion to
their respective underwriting obligations with respect to such Notes and not
joint.
9. Termination. This Agreement will continue in effect until terminated as
provided in this Section 9.
(a) This Agreement may be terminated by either the Company or
any Agent giving written notice of such termination to the other
party hereto. This Agreement shall so terminate at the close of
business on the first business day following the receipt of such
notice by the party to whom such notice is given. This Agreement may
be terminated as to one or more of the Agents, and to the extent not
terminated with respect to any Agent, this Agreement shall remain in
full force and effect as between the Company and any such Agent. In
the event of such termination, no party shall have any liability to
the other party hereto, except as provided in the fourth paragraph
of Section 2(a), Section 4(g), Section 7, Section 8 and Section 10
and except that if terminated between the date of acceptance of an
offer and the Settlement Date or Purchase Date, Section 4, Section 5
and Section 6 shall also survive with respect to such sale.
(b) Each Terms Agreement shall be subject to termination in
the absolute discretion of the Purchaser, by notice given to the
Company and the Guarantor prior to delivery of and payment for Notes
to be purchased thereunder, if prior to such time (i) trading in
securities generally, or in the securities of the Guarantor, on the
New York Stock Exchange shall have been suspended or limited or
minimum prices shall have been established on such exchange or a
material disruption has occurred in commercial banking or securities
settlement or clearance services in the United States, (ii) a
banking moratorium shall have been declared by either federal or New
York State authorities or, in the case of Notes denominated in other
than U.S. dollars, by the authorities of the country of the currency
in which such Notes are so denominated or (iii) there shall have
occurred any outbreak or material escalation of hostilities or other
calamity or crisis the effect of which on the financial markets of
the United States or in the country or countries of origin of any
foreign currency or currency unit in which the Notes are
denominated, indexed or payable is such as to make it, in the
judgment of the Purchaser, impracticable or inadvisable to market
such Notes.
27
10. Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the Company,
the Guarantor or any of their officers and of each Agent set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation made by or on behalf of such Agent or the Company, the
Guarantor or any of their officers, directors or controlling persons referred to
in Section 8 hereof, and will survive delivery of and payment for the Notes. The
provisions of Sections 7 and 8 hereof shall survive the termination or
cancellation of this Agreement.
11. Right of Person Who Agreed to Purchase to Refuse to Purchase. The
Company and the Guarantor agree that any person who has agreed to purchase and
pay for any Note, including a Purchaser and any person who purchases pursuant to
a solicitation by any of the Agents, shall have the right to refuse to purchase
such Note if, at the Settlement Date therefor, either (a) any condition set
forth in Section 5 or 6, as applicable, shall not be satisfied or (b) subsequent
to the agreement to purchase such Note, any change, or any development involving
a prospective change, in or affecting the business or properties of the Company
or the Guarantor and its subsidiaries shall have occurred the effect of which
is, in the reasonable judgment of the Purchaser or the Agent which presented the
offer to purchase such Note, as applicable, so material and adverse as to make
it impractical or inadvisable to proceed with the delivery of such Note.
12. Notices. All communications hereunder will be in writing and effective
only on receipt, and, if sent to an Agent, will be mailed, delivered or
telegraphed and confirmed to such Agent, at the address specified in Schedule 1
hereto; or, if sent to the Company, will be mailed, delivered or telegraphed and
confirmed to it at 0000 Xxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000, Attention:
General Counsel.
13. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 8 hereof, and no other
person will have any right or obligation hereunder.
14. Applicable Law. This Agreement will 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.
[Signature Page to Follow]
28
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and the acceptance by each of you shall represent a binding
agreement among the Company, the Guarantor and each of you.
Very truly yours,
COUNTRYWIDE HOME LOANS, INC.
By: ................................
Name:
Title:
COUNTRYWIDE FINANCIAL CORPORATION
By: ................................
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted as of the date hereof.
XXXXXX BROTHERS INC.
By: ...........................
Title:
ABN AMRO INCORPORATED
By: ...........................
Title:
BANC OF AMERICA SECURITIES LLC
By: ...........................
Title:
BANC ONE CAPITAL MARKETS, INC.
By: ...........................
Title:
29
BARCLAYS CAPITAL INC.
By: ...........................
Title:
BEAR, XXXXXXX & CO. INC.
By: ...........................
Title:
BNP PARIBAS SECURITIES CORP.
By: ...........................
Title:
CREDIT LYONNAIS SECURITIES (USA) INC.
By: ...........................
Title:
CREDIT SUISSE FIRST BOSTON LLC
By: ...........................
Title:
DEUTSCHE BANK SECURITIES INC.
By: ........................... By: ...........................
Title: Title:
DRESDNER KLEINWORT XXXXXXXXXXX SECURITIES LLC
By: ...........................
Title:
-------------------------------
Xxxxxxx, Xxxxx & Co.
X.X. XXXXXX SECURITIES INC.
By: ...........................
Title:
30
XXXXXXX LYNCH, XXXXXX, XXXXXX & XXXXX
INCORPORATED
By: ...........................
Title:
XXXXXX XXXXXXX & CO. INCORPORATED
By: ...........................
Title:
RBC DOMINION SECURITIES CORPORATION
By: ...........................
Title:
XXXXXXX XXXXX XXXXXX INC.
By: ...........................
Title:
UBS WARBURG LLC
By: ...........................
Title:
WACHOVIA SECURITIES, INC.
By: ...........................
Title:
COUNTRYWIDE SECURITIES CORPORATION
By: ...........................
Title:
31
SCHEDULE 1
Selling Agency Agreement dated [_____], 2003
Unless otherwise agreed between the Company and such Agent, the Company
agrees to pay any Agent a commission equal to the following percentage of the
principal amount of each Note sold by such Agent:
Term Commission Rate(a)
From 9 months to less than 1 year.................................................... 0.125%
From 1 year to less than 18 months................................................... 0.150%
From 18 months to less than 2 years.................................................. 0.200%
From 2 years to less than 3 years.................................................... 0.250%
From 3 years to less than 4 years.................................................... 0.350%
From 4 years to less than 5 years.................................................... 0.450%
From 5 years to less than 6 years.................................................... 0.500%
From 6 years to less than 7 years.................................................... 0.550%
From 7 years to less than 10 years................................................... 0.600%
From 10 years to less than 15 years.................................................. 0.625%
From 15 years to less than 20 years.................................................. 0.650%
From 20 years up to and including 30 years(b) ....................................... 0.750%
(a) With respect to each Note that is an Original Issue Discount Note (as
defined in the Indenture), the commission payable to each Agent with
respect to each such Note sold as a result of a solicitation made by such
Agent shall be based on the purchase price of such Note, rather than on
the principal amount of such Note.
(b) Commissions for Notes with terms in excess of 30 years will be agreed upon
by the Company and the related Agent at the time of sale.
32
Addresses for Notices to Agents:
Notices to Xxxxxx Brothers Inc. shall be directed to it at 000 Xxxxxx
Xxxxxx, Xxxxxx Xxxx, Xxx Xxxxxx 00000, Attention: Fixed Income Syndicate/MTN
Desk (with a copy to the Office of the General Counsel), Fax: (000) 000-0000.
Notices to ABN AMRO Incorporated shall be directed to it at Park Avenue
Plaza, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxx,
Fax: (000) 000-0000.
Notices to Banc of America Securities LLC shall be directed to it at 000
Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, XX 00000, XX0-000-07-01, Attention: Product
Management, Fax: (000) 000-0000.
Notices to Banc One Capital Markets, Inc. shall be directed to it at 0
Xxxx Xxx Xxxxx, Xxxxx XX0-0000, 0xx Xxxxx, Xxxxxxx, XX 00000, Attention:
Investment Grade Securities, Fax: 000-000-0000.
Notices to Barclays Capital Inc. shall be directed to it at 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxx, Fax: (212)
000-0000.
Notices to Bear, Xxxxxxx & Co. Inc. shall be directed to it at 000 Xxxx
Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: MTN Desk, Fax: (212)
000-0000.
Notices to BNP Paribas Securities Corp. shall be directed to it at 000
Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, XX 00000, Attention: Fixed Income
Syndicate, Fax: 000-000-0000.
Notices to Credit Lyonnais Securities (USA) Inc. shall be directed to it
at 0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000, Attention: Xxxxx
Xxxxxx, Fax: 000-000-0000.
Notices to Credit Suisse First Boston LLC shall be directed to it at
Xxxxxx Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Short- and
Medium-Term Finance, Fax: (000) 000-0000.
Notices to Deutsche Banc Securities Inc. shall be directed to it at 00 X.
00xx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxx Xxxxxx, Mail
Stop: NYC01-0324, Fax: (000) 000-0000.
Notices to Dresdner Kleinwort Xxxxxxxxxxx Securities LLC shall be directed
to it at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX 00000, Attention: Xxxx
Xxxxxxxxxxxx, Fax: (000) 000-0000.
Notices to Xxxxxxx, Xxxxx & Co. shall be directed to it at 00 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxx Xxxxxxxxxxx, Fax: (212)
000-0000.
33
Notices to X.X. Xxxxxx Securities Inc. shall be directed to it at 000 Xxxx
Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Transaction Execution
Group, Fax: (000) 000-0000.
Notices to Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated shall be
directed to it at 0 Xxxxx Xxxxxxxxx Xxxxxx, 00xx Floor, New York, New York
10080, Attention: Transaction Management Group, Fax: (000) 000-0000.
Notices to Xxxxxx Xxxxxxx & Co. Incorporated shall be directed to it at
0000 Xxxxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Manager,
Continuously Offered Products, Fax: (000) 000-0000; with a copy to 0000
Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx Xxxxxx,
Investment Banking Information Center, Fax: (000) 000-0000.
Notices to RBC Dominion Securities Corporation shall be directed to it at
Xxx Xxxxxxx Xxxxx, 0xx Xxxxx, Xxx Xxxx, XX 00000-0000, Attention: Xx. Xxxxx
Xxxx, Fax: (000) 000-0000.
Notices to Xxxxxxx Xxxxx Xxxxxx Inc. shall be directed to it at 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Medium-Term Note
Department, Fax: (000) 000-0000.
Notices to UBS Warburg LLC shall be directed to it at 000 Xxxxxxxxxx
Xxxxxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000, Attention: Xxxxxxx Xxxxx, Fax: (203)
000-0000.
Notices to Wachovia Securities, Inc. shall be directed to it at One
Wachovia Center, 000 X. Xxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000, Attention: Xxxxx
Xxxxx, Fax: 000-000-0000.
Notices to Countrywide Securities Corporation shall be directed to it at
0000 Xxxx Xxxxxxx, XX-000, Xxxxxxxxx, Xxxxxxxxxx 00000, Attention: Xxx
X'Xxxxxxxx, Fax: (000) 000-0000.
34
EXHIBIT A
COUNTRYWIDE HOME LOANS, INC.
MEDIUM-TERM NOTE
ADMINISTRATIVE PROCEDURES
[___], 2003
Medium-Term Notes, Series Lxx, Due Nine Months or More From Date of Issue
(the "Notes") are to be offered on a continuing basis by Countrywide Home Loans,
Inc. (the "Company"). Xxxxxx Brothers Inc., ABN AMRO Incorporated, Banc of
America Securities LLC, Bank One Capital Markets Inc., Barclays Capital Inc.,
Bear, Xxxxxxx & Co. Inc., BNP Paribas Securities Corp., Credit Lyonnais
Securities (USA) Inc., Credit Suisse First Boston LLC, Deutsche Banc Securities
Inc., Dresdner Kleinwort Xxxxxxxxxxx Securities LLC, Xxxxxxx, Xxxxx & Co., X.X.
Xxxxxx Securities Inc., Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Xxxxxx, Xxxxxx &
Xxxxx Incorporated, Xxxxxx Xxxxxxx & Co. Incorporated, RBC Dominion Securities
Corporation, Xxxxxxx Xxxxx Xxxxxx Inc., UBS Warburg LLC, Wachovia Securities,
Inc. and Countrywide Securities Corporation (each individually, an "Agent", and
collectively, the "Agents"), have agreed to solicit purchases of the Notes. The
Agents will not be obligated to purchase Notes as principal. The Notes are being
sold pursuant to a Selling Agency Agreement among the Company, Countrywide
Financial Corporation (the "Guarantor") and the Agents dated [___], 2003 (the
"Agency Agreement"). The Notes will be fully and unconditionally guaranteed as
to payment of principal, premium, if any, and interest by the Guarantor (the
"Guarantees"). The Notes will rank equally with all other unsecured and
unsubordinated debt of the Company and have been registered with the Securities
and Exchange Commission (the "Commission"). Capitalized terms used but not
defined herein shall have the meanings assigned to such terms in the Indenture
referred to below.
Each Note and related Guarantee will be issued under an Indenture dated as
of December 1, 2001 (the "Indenture"), among the Company, the Guarantor and The
Bank of New York, as trustee (the "Trustee"). The Notes will bear interest at
either fixed rates ("Fixed Rate Notes") or floating rates ("Floating Rate
Notes"). Each Note will be represented by either a certificate delivered to the
Holder thereof or a Person designated by such Holder (a "Certificated Note") or
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 except in the
limited circumstances described in the Prospectus (as defined in the Agency
Agreement).
The procedures to be followed during, and the specific terms of, the
solicitation of offers by the Agents and the sale as a result thereof by the
Company are explained below. Certificated Notes will be issued in accordance
with the administrative procedures set forth in Part I hereof
35
and Book-Entry Notes will be issued in accordance with the administrative
procedures set forth in Part II hereof. The Company will advise each Agent and
the Trustee in writing of those persons handling administrative responsibilities
with whom the Agents and the Trustee are to communicate regarding offers to
purchase Notes and the details of their delivery.
Administrative procedures and specific terms of the offering are explained
below. To the extent the procedures set forth below conflict with the provisions
of the Notes, the Indenture or the Agency Agreement, the relevant provisions of
the Notes, the Indenture and the Agency Agreement shall control.
PART I: ADMINISTRATIVE PROCEDURES FOR CERTIFICATED NOTES
Maturities: Each Certificated Note will mature on a date (the
"Stated Maturity Date") nine months or more after
the date of delivery by the Company of such
Certificated Note (the "Settlement Date"), subject
to any applicable provisions relating to
redemption or repayment or the extension of
maturity.
Price to Public: Each Certificated Note will be issued at the
percentage of principal amount specified in the
Prospectus.
Currencies: The Certificated Notes will be denominated in U.S.
dollars or in such other currency or currency unit
as is specified in the Prospectus (the "Specified
Currency").
Denominations: Except as set forth in the Certificated Note, the
denomination of any Certificated Note will be a
minimum of U.S. $1,000 or any amount in excess
thereof which is an integral multiple of U.S.
$1,000 or, in a Specified Currency other than U.S.
dollars, of the equivalent of U.S. $1,000 and any
amount in excess thereof which is an integral
multiple of the equivalent of U.S. $1,000, as
determined pursuant to the provisions of the
Indenture.
Registration: Certificated Notes will be issued only in fully
registered form.
Interest Payments: Except as set forth in the Certificated Note, each
Certificated Note which is a Fixed Rate Note will
bear interest from the Settlement Date of such
Certificated Note at the annual rate stated on the
face thereof, payable semiannually on January 15
and July 15 of each year (each, an "Interest
Payment Date") and on the Stated Maturity
36
Date or date of earlier redemption or repayment
(such date is herein referred to as the "Maturity
Date" with respect to the principal repayable on
such date), and each Certificated Note which is a
Floating Rate Note will bear interest as
determined in the manner set forth on the face
thereof, payable on the dates set forth on the
face thereof. Unless otherwise specified on the
face thereof, interest (including payments for
partial periods) on Fixed Rate Notes will be
calculated on the basis of a 360-day year of
twelve 30-day months. Interest on Floating Rate
Notes will be determined in the manner agreed upon
by the Company and the purchaser thereof in
accordance with the provisions of the Prospectus.
Except as set forth in the Certificated Note, the
"Record Date" with respect to any Interest Payment
Date for Floating Rate Notes shall be the date 15
calendar days immediately preceding such Interest
Payment Date, and for Fixed Rate Notes shall be
the December 31 or June 30 next preceding such
Interest Payment Date, whether or not such date
shall be a Business Day, as defined in the
Prospectus. The first payment of interest on any
Certificated Note originally issued between a
Record Date and an Interest Payment Date will be
made on the Interest Payment Date following the
next Record Date to the Holder on such next
succeeding Record Date. Notwithstanding the record
date provisions above, interest payable on the
Maturity Date will be payable to the person to
whom principal shall be payable. Interest on the
Certificated Notes will be paid in the Specified
Currency by mailing a check (from an account at a
bank located outside of the United States if such
check is payable in a Specified Currency other
than U.S. dollars) to the Holder at the address of
such Holder appearing on the Security Register on
the applicable Record Date; provided, however,
that a Holder of U.S. $10,000,000 (or the
equivalent thereof in a Specified Currency other
than U.S. dollars) or more in aggregate principal
amount of Notes (whether or not having identical
terms and provisions) shall be entitled: (i) if
the Specified Currency is U.S. dollars, to receive
U.S. dollar payments by wire transfer of
immediately available funds to an account
maintained by the payee with a bank located in the
United States, but only if appropriate wire
transfer instructions have been received in
writing by the Trustee not later than the Record
Date immediately preceding the applicable
37
Interest Payment Date, and (ii) if the Specified
Currency is other than U.S. dollars, to receive by
wire transfer of immediately available funds to an
account maintained by the payee with a bank
located in a jurisdiction in which payment in such
Specified Currency is then lawful. Within ten days
following each Record Date, the Trustee will
inform the Company of the total amount of the
interest payments to be made by the Company on the
next succeeding Interest Payment Date and the
currencies or currency units in which such
interest payments are to be made. The Trustee will
provide monthly to the Company a list of the
principal and interest to be paid on Certificated
Notes maturing in the next succeeding month.
Procedure for Rate
Setting and Posting: The Company and the Agents will discuss from time
to time the aggregate principal amount of, the
issuance price of, and the interest rates to be
borne by, Certificated Notes that may be sold as a
result of the solicitation or offers by the
Agents. If the Company decides to establish prices
of (including the currency of issuance), and rates
borne by, any Certificated Notes to be sold (the
establishment of such prices and rates to be
referred to herein as "posting") or if the Company
decides to change prices or rates previously
posted by it, it will promptly advise the Agents
of the prices and rates to be posted.
Acceptance of Offers: Unless otherwise agreed between the Company and
such Agent, any Agent which receives an offer to
purchase Certificated Notes will promptly advise
the Company of each such offer other than offers
rejected by such Agent as provided below. The
Company will have the sole right to accept any
such offer to purchase Certificated Notes. The
Company may reject any such offer in whole or in
part. Unless otherwise agreed between the Company
and any Agent, each Agent may, in its discretion
reasonably exercised, reject any offer to purchase
Certificated Notes received by it in whole or in
part.
Preparation of
Pricing Supplement: If any offer to purchase a Certificated Note is
accepted by or on behalf of the Company, the
Company and the Guarantor, with the approval of
the Agents, will prepare a Pricing Supplement
reflecting the terms of such
38
Certificated Note and will arrange to have
requisite copies of such Pricing Supplement filed
with the Commission, in each case no later than
the second Business Day after the earlier of the
determination of the offering price or the date it
is first used and will supply at least ten copies
thereof (or additional copies if requested) to the
Agents and one copy to the Trustee no later than
11:00 A.M., New York City time, on the Business
Day following the date of acceptance at the
following applicable address (unless otherwise
specified in the applicable trading confirmation):
if to Xxxxxx Brothers Inc., to Xxxxxx Brothers
Inc., 000 Xxxxxx Xxxxxx, Xxxxxx Xxxx, Xxx Xxxxxx
00000, attention: Fixed Income Syndicate/MTN Desk,
telephone no. (000) 000-0000, telecopier no. (201)
524-5175; if to ABN AMRO Incorporated, to ABN AMRO
Incorporated, Park Avenue Plaza, 00 Xxxx 00xx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention:
Xxxxxxx X. Xxx, telephone no. (000) 000-0000,
telecopier no. (000) 000-0000; if to Banc of
America Securities LLC to The Bank of New York,
Xxx Xxxx Xxxxxx, 0xx Floor, Dealers Clearance,
Window B, A/C Banc of America Securities LLC; if
to Banc One Capital Markets, Inc., 0 Xxxx Xxx
Xxxxx, Xxxxx XX0-0000, 0xx Xxxxx, Xxxxxxx, XX
00000, attention: Investment Grade Securities,
telephone no. (000) 000-0000, telecopier no. (312)
732-4773; if to Barclays Capital Inc. to Barclays
Capital Inc., 000 Xxxx Xxxxxx Xxx Xxxx, Xxx Xxxx
00000, xxxxxxxxx: Xxxxxxx X. Xxxxx, telephone no.
(000) 000-0000, telecopier no. (000) 000-0000; if
to Bear, Xxxxxxx & Co. Inc., to Bear, Xxxxxxx &
Co. Inc., 000 Xxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000, xxxxxxxxx: XXX Desk, telephone no.
(000) 000-0000, telecopier no. (000) 000-0000; if
to BNP Paribas Securities Corp., 000 Xxxxxxx
Xxxxxx, 0xx Xxxxx, Xxx Xxxx, XX 00000, attention:
Fixed Income Syndicate, telephone no. (212)
841-3435, telecopier no. (000) 000-0000; if to
Credit Lyonnais Securities (USA) Inc., 0000 Xxxxxx
xx xxx Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000,
attention Xxxxx Xxxxxx, telephone no. (212)
261-7000, telecopier no. (000) 000-0000; if to
Credit Suisse First Boston LLC, to Credit Suisse
First Boston LLC, Xxxxxx Xxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, xxxxxxxxx: Xxxx Xxxxxx, telephone
no. (000) 000-0000, telecopier no. (000) 000-0000;
if to Deutsche Banc Securities Inc. to Deutsche
Banc Securities Inc., 00 Xxxx
39
00xx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
xxxxxxxxx xx Xxx Xxxxxx, Mail Stop NYC01-0324,
telephone no. (000) 000-0000, telecopier no. (212)
469-7875, with a copy to Deutsche Banc Securities
Inc., 0000 Xxxxxx xx xxx Xxxxxxxx, 0xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, attention: Xxxxx Xxxxxx,
Mail Stop: NYC08-0628, telephone no. (212)
469-3370, telecopier no. (000) 000-0000, and a
copy to Deutsche Banc Securities Inc., 0000 Xxxxxx
xx xxx Xxxxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, attention: Xxxxxx Xxxxx, Mail Stop:
NYC09-0804, telephone no. (000) 000-0000,
telecopier no. (000) 000-0000; if to Dresdner
Kleinwort Xxxxxxxxxxx Securities LLC, 0000 Xxxxxx
xx xxx Xxxxxxxx, Xxx Xxxx, XX 00000, attention
Xxxx Xxxxxxxxxxxx, telephone no. (000) 000-0000,
telecopier no. (000) 000-0000; if to Xxxxxxx,
Sachs & Co., to Xxxxxxx, Xxxxx & Co., 00 Xxxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
attention of Xxx Xxxxxxxxxxx, telephone no. (212)
902-1482, telecopier no. (000) 000-0000; if to
X.X. Xxxxxx Securities Inc., to X.X. Xxxxxx
Securities Inc., 000 Xxxx Xxxxxx, 0xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, attention Medium-Term Note
Desk, telecopier no. (000) 000-0000; if to Xxxxxxx
Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated, to
Xxxxxxx Xxxxx Production Technologies, by e-mail
to xxxxxxxx@xx0.xx.xx.xxx, 00X Xxxxxxxx Xxxxx,
Xxxxxxxxxx, Xxx Xxxxxx 00000, attention Final
Prospectus Unit/Xxxxxxx Xxxxxxxxxx, telephone no.
(000) 000-0000, telecopier no. (000) 000-0000,
with a copy to Xxxxxxx Lynch, Xxxxxx, Xxxxxx &
Xxxxx Incorporated, 4 World Financial Center, 15th
Floor, New York, New York 10080, attention MTN
Product Management, telephone no. (000) 000-0000,
telecopier no. (000) 000-0000; if to Xxxxxx
Xxxxxxx & Co. Incorporated, to Xxxxxx Xxxxxxx &
Co. Incorporated, 0000 Xxxxxxxx, 0xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, attention Medium-Term Note
Trading Desk, telephone no. (000) 000-0000,
telecopier no. (000) 000-0000; if to RBC Dominion
Securities Corporation, Xxx Xxxxxxx Xxxxx, 0xx
Xxxxx, Xxx Xxxx, XX 00000-0000, attention Xx.
Xxxxx Xxxx, telephone no. (000) 000-0000,
telecopier no. (000) 000-0000; if to Xxxxxxx Xxxxx
Barney Inc., to Xxxxxxx Xxxxx Xxxxxx Inc.,
Brooklyn Army Terminal, 000 00xx Xxxxxx, 0xx
Xxxxx, Xxxxxxxx, XX 00000, attention of Xxxxxxxxx
Xxxxx, telephone no. (718) 765-
40
6725, telecopier no. (000) 000-0000; if to UBS
Warburg LLC, to UBS Warburg LLC, 000 Xxxxxxxxxx
Xxxxxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000,
attention Corporate Syndicate Department,
telephone no. (000) 000-0000, telecopier no.
(000) 000-0000; if to Wachovia Securities, Inc.,
One Wachovia Center, 000 X. Xxxxxxx Xxxxxx,
Xxxxxxxxx, XX 00000, attention Xxxxx Xxxxx,
telephone no. (000) 000-0000, telecopier no.
(000) 000-0000; if to Countrywide Securities
Corporation, to Countrywide Securities
Corporation, 0000 Xxxx Xxxxxxx, XX-000,
Xxxxxxxxx, Xxxxxxxxxx 00000, attention of Xxx
X'Xxxxxxxx, telephone no. (000) 000-0000, or, if
after 5:00 p.m., (000) 000-0000, telecopier no.
(000) 000-0000; and if to the Trustee, to The
Bank of New York, 000 Xxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, attention Corporate Trust
Office. Such Agent will cause a Pricing
Supplement to be delivered to the purchaser of
the Certificated Note. In all respects, the
Company and the Guarantor will prepare and file
each such Pricing Supplement in accordance with
Rule 424 under the Act.
In each instance that a Pricing Supplement is
prepared, each Agent will affix the Pricing
Supplement to Prospectuses prior to their use;
provided, however, that pursuant to Rule 434
("Rule 434") under the Securities Act of 1933,
as amended, the Pricing Supplement may be
delivered separately from the Prospectuses.
Outdated Pricing Supplements, and the
Prospectuses to which they are attached or
relate (other than those retained for files),
will be destroyed.
Suspension of Solicitation;
Amendment or Supplement: The Company reserves the right, in its sole
discretion, to instruct the Agents to suspend at
any time, for any period of time or permanently,
the solicitation of offers to purchase
Certificated Notes. As soon as practicable, but
in no event later than one Business Day after
receipt of instructions from the Company, the
Agents will suspend solicitation of offers to
purchase Certificated Notes from the Company
until such time as the Company has advised them
that such solicitation may be resumed.
41
If the Company or the Guarantor decides to amend
or supplement the Registration Statement or the
Prospectus relating to the Notes (except in the
case of a Pricing Supplement to the Prospectus),
the Company or the Guarantor, as the case may
be, will promptly advise the Agents and the
Trustee and will furnish the Agents and the
Trustee with the proposed amendment or
supplement in accordance with the terms of the
Agency Agreement. The Company or the Guarantor
will mail or transmit to the Commission for
filing therewith any supplement to the
Prospectus relating to the Notes, provide the
Agents with copies of any supplement, and
confirm to the Agents that such supplement has
been filed with the Commission.
In the event that at the time the Company
suspends solicitation of offers to purchase
Certificated Notes there shall be any
outstanding offers to purchase Certificated
Notes that have been accepted by the Company but
for which settlement has not yet occurred, the
Company will promptly advise the Agents and the
Trustee whether such sales may be settled and
whether copies of the Prospectus as supplemented
to the time of the suspension may be delivered
in connection with the settlement of such sales.
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 sales may not be settled or
that copies of such Prospectus may not be so
delivered.
Delivery of Prospectus: Each Agent shall, for each offer to purchase a
Certificated Note that is solicited by such
Agent and accepted by the Company, deliver a
copy of the Prospectus as most recently amended
or supplemented (including the applicable
Pricing Supplement which, pursuant to Rule 434,
may be delivered separately from the Prospectus)
with the earlier of the delivery of the
confirmation of sale or the Certificated Note to
the purchaser thereof or such purchaser's agent.
Confirmation: For each offer to purchase a Certificated Note
solicited by any Agent and accepted by the
Company, such Agent will issue a confirmation to
the purchaser, with a copy to the Company,
setting forth the details set forth above and
delivery and payment instructions.
42
Settlement: The Settlement Date with respect to any offer to
purchase Certificated Notes accepted by or on
behalf of the Company will be a date on or
before the third Business Day next succeeding
the date of acceptance unless otherwise agreed
by the purchaser and the Company and shall be
specified upon acceptance of such offer. The
Company will instruct the Trustee to effect
delivery of each Certificated Note no later than
1:00 p.m., New York City time, on the Settlement
Date to such Agent for delivery to the
purchaser.
Details for Settlement: For each offer to purchase a Certificated Note
received by any Agent and accepted pursuant to
the terms of the Agency Agreement, such Agent
will provide (unless provided by the purchaser
directly to the Company) by telephone the
following information (to the extent applicable)
to the Company:
1. Exact name of Holder.
2. Exact address of Holder and address
for payment of principal, premium, if any,
and interest.
3. Taxpayer identification number of
Holder (if available).
4. Principal amount of the Note.
5. Specified Currency.
6. Interest rate or interest rate basis.
7. Base Rate(s), Index Maturity, Initial
Interest Rate, Maximum Interest Rate,
Minimum Interest Rate, Interest Reset Dates,
Interest Payment Dates, Calculation Dates,
Interest Reset Dates and Spread and/or
Spread Multiplier (as each such term is
defined in the Prospectus).
8. Issue price of Note and proceeds to
Company.
9. Settlement Date.
10. Stated Maturity Date.
11. Redemption and/or repayment
provisions, if any.
12. Agent's commission to be paid in the
form of a discount upon settlement.
13. Other relevant terms, including any
reset and/or extension provisions.
43
Such Agent will advise the Company of the
foregoing information (unless provided by the
purchaser directly to the Company) for each
offer to purchase a Certificated Note solicited
by such Agent and accepted by the Company in
time for the Trustee to prepare and authenticate
the required Certificated Note. Before accepting
any offer to purchase a Certificated Note to be
settled in less than three Business Days, the
Company shall verify that the Trustee will have
adequate time to prepare and authenticate such
Certificated Note.
After receiving from such Agent the details for
each offer to purchase a Certificated Note, the
Company will, after recording the details and
any necessary calculations, provide appropriate
documentation to the Trustee, including the
information provided by such Agent necessary for
the preparation and authentication of such
Certificated Note. Prior to preparing the
Certificated Note for delivery (but in any case
no later than 11:00 a.m., New York City time, on
the Business Day next preceding the Settlement
Date therefor), the Trustee will confirm the
details of such issue with such Agent by
telephone.
Note Deliveries and
Cash Payment: Upon receipt of appropriate documentation and
instructions, the Company will cause the Trustee
to prepare and authenticate the pre-printed
4-ply Certificated Note packet containing the
following documents in forms approved by the
Company, the Agents and the Trustee:
1. Certificated Note with customer
confirmation.
2. Stub 1--For the applicable Agent.
3. Stub 2--For the Company.
4. Stub 3--For the Trustee.
Each Certificated Note shall be authenticated on
or before the Settlement Date therefor. The
Trustee will authenticate each Certificated Note
and deliver it to such Agent (and deliver the
stubs as indicated above), all in accordance
with written instructions (which may be in the
form of facsimile transmission) from the
Company. Delivery by the Trustee of each
Certificated Note will be made against receipt
by the Company by 1:00 p.m., New York City time,
on the Settlement Date in immediately available
funds of an
44
amount equal to the issue price of such
Certificated Note or the U.S. dollar equivalent
of the issue price of such Note as agreed
between the Company and such Agent, unless
otherwise agreed between the Company and such
Agent, less such Agent's commission.
Upon verification by such Agent that a Note has
been prepared and properly authenticated by the
Trustee and registered in the name of the
purchaser in the proper principal amount and
that the related Guarantee has been duly
endorsed thereon, payment will be made to the
Company by such Agent the same day in
immediately available funds in the Specified
Currency. Such payment shall be made only upon
prior receipt by such Agent of immediately
available funds from or on behalf of the
purchaser in the Specified Currency unless such
Agent decides, at its option, to advance its own
funds for such payment against subsequent
receipt of funds from the purchaser.
Upon delivery of a Certificated Note to such
Agent, such Agent shall promptly deliver such
Certificated Note to the purchaser.
In the event any Certificated Note is
incorrectly prepared, the Trustee shall promptly
issue a replacement Certificated Note in
exchange for the incorrectly prepared
Certificated Note.
Failure to Settle: If any Agent, at its own option, has advanced
its own funds for payment against subsequent
receipt of funds from the purchaser, and if the
purchaser shall fail to make payment for the
Certificated Note on the Settlement Date
therefor, such Agent will promptly notify the
Trustee and the Company by telephone, promptly
confirmed in writing (but no later than the next
Business Day). In such event, the Company shall
promptly provide the Trustee with appropriate
documentation and instructions consistent with
these procedures for the return of the
Certificated Note to the Trustee and such Agent
will promptly return the Certificated Note to
the Trustee. Upon confirmation (i) from the
Trustee in writing (which may be given by telex
or telecopy) that the Trustee has received the
Certificated Note
45
and (ii) from such Agent in writing (which may
be given by telex or telecopy) that such Agent
has not received payment from the purchaser (the
matters referred to in clauses (i) and (ii) are
referred to hereinafter as the "Confirmations"),
the Company will promptly pay to such Agent an
amount in immediately available funds equal to
the amount previously paid by such Agent in
respect of such Certificated Note. Assuming
receipt of the Certificated Note by the Trustee
and of the Confirmations by the Company, such
payment will be made on the Settlement Date, if
reasonably practicable, and in any event not
later than the Business Day following the date
of receipt of the Certificated Note and
Confirmations. If a purchaser shall fail to make
payment for the Certificated Note for any reason
other than the failure of such Agent to provide
the necessary information to the Company as
described above for settlement or to provide a
confirmation to the purchaser within a
reasonable period of time as described above or
otherwise to satisfy its obligation hereunder or
in the Agency Agreement, and if such Agent shall
have otherwise complied with its obligations
hereunder and in the Agency Agreement, the
Company will reimburse such Agent on an
equitable basis for its loss of the use of funds
during the period when they were credited to the
account of the Company.
Immediately upon receipt of the Certificated
Note in respect of which the failure occurred,
the Trustee will void said Certificated Note,
make appropriate entries in its records and
destroy the Certificated Note; and upon such
action, the Certificated Note will be deemed not
to have been issued, authenticated and
delivered.
Trustee Not to Risk Funds: Nothing herein shall be deemed to require the
Trustee to risk or expend its own funds in
connection with any payment to the Company, or
any Agent or the purchaser, it being understood
by all parties that payments made by the Trustee
to either the Company or any Agent shall be made
only to the extent that funds are provided to
the Trustee for such purpose.
46
Authenticity of Signatures: The Company will cause the Trustee and the
Guarantor to furnish each Agent from time to
time with the specimen signatures of the
officers, employees or agents who have been
authorized to authenticate Certificated Notes or
execute the related Guarantee, as the case may
be, but each Agent will have no obligation or
liability to the Company, the Guarantor or the
Trustee in respect of the authenticity of the
signature of any officer, employee or agent of
the Company, the Guarantor or the Trustee on any
Certificated Note.
Payment of Expenses: Each Agent shall forward to the Company and the
Guarantor, from time to time (but not more often
than monthly), a statement of the out-of-pocket
expenses incurred by such Agent during the
related period which are reimbursable to it
pursuant to the terms of the Agency Agreement.
The Company and the Guarantor will promptly
remit payment to such Agent.
Advertising Costs: The Company will determine with each Agent the
amount of advertising that may be appropriate in
soliciting offers to purchase the Notes.
Advertising expenses will be paid by the Company
and the Guarantor.
47
PART II: ADMINISTRATIVE PROCEDURES FOR BOOK-ENTRY NOTES
In connection with the qualification of 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 Representations
from the Company, the Guarantor and the Trustee to The Depository Trust Company
("DTC") of even date herewith and a Medium-Term Note Certificate Agreement
between the Trustee and DTC, dated April 14, 1989 and its obligations as a
participant in DTC, including DTC's Same-Day Funds Settlement System ("SDFS").
Issuance: On any Settlement Date (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 U.S. $500,000,000 principal
amount of all of such Notes that have the same
Issue Date, Specified Currency, Interest Rate,
Stated Maturity Date, redemption and/or
repayment provisions and Interest Payment Dates.
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 U.S. $500,000,000 principal amount of all
of such Notes that have the same Issue Date,
Specified Currency, Base Rate(s), Index
Maturity, Interest Reset Dates, Spread and/or
Spread Multiplier (if any), Initial Interest
Rate, Interest Payment Dates, Minimum Interest
Rate (if any), Maximum Interest Rate (if any),
Stated Maturity Date and redemption and/or
repayment provisions. Each Global Security will
be dated and issued as of the date of its
authentication by the Trustee. Each Global
Security will bear an "Interest Accrual Date",
which will be (i) with respect to an original
Global Security (or any portion thereof), its
original issuance date and (ii) with respect to
any Global Security (or portion thereof) issued
subsequently upon exchange of a Global Security
or in lieu of a destroyed, lost or stolen Global
Security, the most recent Interest Payment Date
to which interest has been paid or duly provided
for on the predecessor Global Security or
Securities (or if no such payment or provision
has been made, the original issuance date of the
predecessor Global Security), regardless of the
date of authentication of such subsequently
issued Global Security. No Global Security will
represent any Certificated Note.
48
Price to Public: Each Book-Entry Note will be issued at the
percentage of principal amount specified in the
Prospectus.
Identification Numbers: The Company will arrange, on or prior to
commencement of a program for the offering of
Book-Entry Notes, with the CUSIP Service Bureau
of Standard & Poor's Ratings Group (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 Trustee has or will
obtain from the CUSIP Service Bureau a written
list of such series of reserved CUSIP numbers
and will deliver to the Company and DTC such
written list of 900 CUSIP numbers of such
series. The Company will assign CUSIP numbers to
Global Securities as described below under
Settlement Procedure "B". DTC will notify the
CUSIP Service Bureau periodically of the CUSIP
numbers that the Company 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 Trustee shall deliver such
additional CUSIP numbers to the Company 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 governing such Global Security. 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.
49
Transfers: Transfer 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 numbers
of two or more outstanding Global Securities
that represent (A) Fixed Rate Book-Entry Notes
having the same Issue Date, Specified Currency,
Interest Rate, Stated Maturity Date, redemption
and/or repayment provisions (if any) and
Interest Payment Dates and with respect to which
interest has been paid to the same date or (B)
Floating Rate Book-Entry Notes having the same
Issue Date, Specified Currency, Base Rate, Index
Maturity, Interest Reset Dates, Spread and/or
Spread Multiplier (if any), Initial Interest
Rate, Interest Payment Dates, Minimum Interest
Rate (if any), Maximum Interest Rate (if any),
redemption and/or repayment provisions (if any)
and Stated Maturity Date 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 Company, 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 the new CUSIP
number and a new Interest Accrual Date, and the
CUSIP numbers of the exchanged Global Securities
will, in accordance with CUSIP Service Bureau
procedures, be cancelled and not immediately
reassigned.
50
Notwithstanding the foregoing, if the Global
Securities to be exchanged exceed U.S.
$500,000,000 in aggregate principal amount, one
Global Security will be authenticated and issued
to represent each U.S. $500,000,000 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 nine
months or more after the Settlement Date for
such Note.
Notice of Redemption Date: The Trustee will notify DTC not more than 60 but
not less than 30 days prior to each redemption
date, if any, with respect to a Book-Entry Note,
of the CUSIP number of such Note, the redemption
date, the redemption price and the principal
amount of such Book-Entry Note to be redeemed.
Denominations: Book-Entry Notes will be issued in principal
amounts of U.S. $1,000 or any amount in excess
thereof that is an integral multiple of U.S.
$1,000. Global Securities will be denominated in
principal amounts not in excess of U.S.
$500,000,000. If one or more Book-Entry Notes
having an aggregate principal amount in excess
of U.S. $500,000,000 would, but for the
preceding sentence, be represented by a single
Global Security, then one Global Security will
be issued to represent each U.S. $500,000,000
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 the Interest Accrual Date of the
Global Security representing such Note. Except
as set forth in the underlying Global Security,
each Book-Entry Note which is a Fixed Rate Note
will bear interest at the annual rate stated in
such Global Security, payable semiannually on
January 15 and July 15 of each year (each, an
"Interest Payment Date") and on the Maturity
Date, and each Book-Entry Note which is a
Floating Rate Note will bear interest as
determined in the manner set forth in such
Global Security, payable on the dates set forth
on such Global Security.
51
Except as set forth in the underlying Global
Security, interest (including payments for
partial periods) on Fixed Rate Notes will be
calculated on the basis of a 360-day year of
twelve 30-day months. Except as set forth in the
underlying Global Security, interest on
Book-Entry Notes which are Floating Rate Notes
will be determined in the manner agreed upon by
the Company and the purchaser thereof in
accordance with the provisions of the
Prospectus. Except as set forth in the
underlying Global Security, the "Record Date"
with respect to any Interest Payment Date for
Book-Entry Notes which are Floating Rate Notes
shall be the date 15 calendar days immediately
preceding such Interest Payment Date, and for
Fixed Rate Notes shall be the December 31 or
June 30 next preceding such Interest Payment
Date, whether or not such date shall be a
Business Day. The first payment of interest on
any Book-Entry 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 to the Holder on
such next succeeding Record Date.
Notwithstanding the record date provisions
above, interest payable on the Maturity Date
will be payable to the person to whom principal
shall be payable.
Standard & Poor's Ratings Group 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 Ratings Group.
On the first Business Day of January, April,
July and October of each year, the Trustee will
deliver to the Company and DTC a written list of
Record Dates and Interest Payment Dates that
will occur with respect to Floating Rate
Book-Entry Notes during the six-month period
beginning on such first Business Day. Promptly
after each Interest Determination Date (as
defined in the Prospectus) for Floating Rate
Notes, the Company will notify the Trustee, and
the Trustee in turn will notify Standard &
Poor's Ratings Group, of the interest rates
determined on such Interest Determination Date.
52
Payments of Principal
and Interest: Payments of Interest Only. Promptly after each
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 a Maturity Date)
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 Corporation. The Company will pay to the
Trustee, as paying agent, the total amount of
interest due on such Interest Payment Date
(other than on the Maturity Date), 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 with a Maturity Date 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 Date 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
on such Maturity Date. The Trustee will pay such
amount to DTC at the time and in the manner set
forth below under "Manner of Payment".
Promptly after payment to DTC of the principal
and interest due on the Maturity Date of such
Global Security, the Trustee will cancel such
Global Security and deliver it to the Company
with an appropriate debit advice. On the first
Business Day of each month, the Trustee will
prepare a written statement indicating the total
principal amount of outstanding Global
Securities for which it serves as trustee as of
the immediately preceding Business Day.
Manner of Payment. The total amount of any
principal and interest due on Global Securities
on any Interest Payment Date or on the Maturity
Date 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
53
Securities by instructing the Trustee to
withdraw funds from an account maintained by the
Company at the Trustee. For maturity,
redemption, repayment or any other principal
payments: prior to 10:00 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 (either as Issuer or as Paying Agent),
the Trustee or any Agent 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.
Procedure for Rate Setting
and Posting: The Company and the Agents will discuss from
time to time the aggregate principal amount of,
the issuance price of, and the interest rates to
be borne by, Book-Entry Notes that may be sold
as a result of the solicitation or offers by the
Agents. If the Company decides to establish
prices of (including the currency of issuance),
and rates borne by, any Book-Entry Notes to be
sold (the establishment of such prices and rates
to be referred to herein as "posting") or if the
Company decides to change prices or rates
previously posted by it, it will promptly advise
the Agents of the prices and rates to be posted.
Acceptance of Offers: Unless otherwise agreed between the Company and
such Agent, any Agent which receives an offer to
purchase Book-Entry Notes will promptly advise
the Company of each such offer other than offers
rejected by such Agent as provided below. The
Company will have the sole right to accept any
such offer to purchase Book-Entry Notes. The
Company may reject any such offer in whole or in
part.
54
Unless otherwise agreed between the Company and
any Agent, each Agent may, in its discretion
reasonably exercised, reject any offer to
purchase Book-Entry Notes received by it in
whole or in part.
Preparation of Pricing
Supplement: If any offer to purchase a Book-Entry Note is
accepted by or on behalf of the Company, the
Company and the Guarantor, with the approval of
the Agents, will prepare a Pricing Supplement
reflecting the terms of such Book-Entry Note and
will arrange to have requisite copies of such
Pricing Supplement filed with the Commission, in
each case no later than the second Business Day
after the earlier of the determination of the
offering price or the date it is first used and
will supply at least ten copies thereof (or
additional copies if requested) to the Agents
and one copy to the Trustee no later than 11:00
A.M., New York City time, on the Business Day
following the date of acceptance at the
following applicable address (unless otherwise
specified in the applicable trading
confirmation): if to Xxxxxx Brothers Inc., to
Xxxxxx Brothers Inc., 000 Xxxxxx Xxxxxx, Xxxxxx
Xxxx, Xxx Xxxxxx 00000, attention: Fixed Income
Syndicate/MTN Desk, telephone no. (201)
524-2000, telecopier no. (000) 000-0000; if to
ABN AMRO Incorporated, to ABN AMRO Incorporated,
Park Avenue Plaza, 00 Xxxx 00xx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, attention: Xxxxxxx X. Xxx,
telephone no. (000) 000-0000, telecopier no.
(000) 000-0000; if to Banc of America Securities
LLC to The Bank of New York, Xxx Xxxx Xxxxxx,
0xx Floor, Dealers Clearance, Window B, A/C Banc
of America Securities LLC; if to Banc One
Capital Markets, Inc., 0 Xxxx Xxx Xxxxx, Xxxxx
XX0-0000, 0xx Xxxxx, Xxxxxxx, XX 00000,
attention: Investment Grade Securities,
telephone no. (000) 000-0000, telecopier no.
(000) 000-0000; if to Barclays Capital Inc. to
Barclays Capital Inc., 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, attention: Xxxxxxx X.
Xxxxx, telephone no. (000) 000-0000, telecopier
no. (000) 000-0000; if to Bear, Xxxxxxx & Co.
Inc., to Bear, Xxxxxxx & Co. Inc., 000 Xxxx
Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
xxxxxxxxx: XXX Desk, telephone no. (212)
272-4880, telecopier no. (000) 000-0000; if to
BNP Paribas Securities Corp., 000 Xxxxxxx
Xxxxxx, 0xx Xxxxx, Xxx Xxxx, XX 00000,
attention: Fixed Income Syndicate, telephone no.
(000) 000-0000, telecopier no. (000) 000-0000;
if to Credit Lyonnais Securities (USA) Inc.,
0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Xxxxx, Xxx
Xxxx, XX 00000, attention Xxxxx Xxxxxx,
telephone no. (000) 000-0000, telecopier no.
(000) 000-0000; if to Credit Suisse First Boston
LLC, to Credit Suisse First Boston LLC, Xxxxxx
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
xxxxxxxxx: Xxxx Xxxxxx, telephone no. (212)
538-7764, telecopier no. (000) 000-0000; if to
Deutsche Banc Securities Inc. to Deutsche Banc
Securities Inc., 00 Xxxx 00xx Xxxxxx, 0xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, xxxxxxxxx xx Xxx
Xxxxxx, Xxxx Xxxx XXX00-0324, telephone no.
(000) 000-0000, telecopier no. (000) 000-0000,
with a copy to Deutsche Banc Securities Inc.,
0000 Xxxxxx xx xxx Xxxxxxxx, 0xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, attention: Xxxxx Xxxxxx,
Mail Stop: NYC08-0628, telephone no. (212)
469-3370, telecopier no. (000) 000-0000, and a
copy to Deutsche Banc Securities Inc., 1301
55
Avenue of the Americas, 8th Floor, New York, New
York 10019, attention: Xxxxxx Xxxxx, Mail Stop:
NYC09-0804, telephone no. (000) 000-0000,
telecopier no. (000) 000-0000; if to Dresdner
Kleinwort Xxxxxxxxxxx Securities LLC, 0000
Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX 00000,
attention Xxxx Xxxxxxxxxxxx, telephone no. (212)
895-1721, telecopier no. (000) 000-0000; if to
Xxxxxxx, Xxxxx & Co., to Xxxxxxx, Xxxxx & Co.,
00 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, attention of Xxx Xxxxxxxxxxx, telephone
no. (000) 000-0000, telecopier no. (212)
902-0658; if to X.X. Xxxxxx Securities Inc., to
X.X. Xxxxxx Securities Inc., 000 Xxxx Xxxxxx,
0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention
Medium-Term Note Desk, telecopier no. (212)
834-6081; if to Xxxxxxx Lynch, Xxxxxx, Xxxxxx &
Xxxxx Incorporated, to Xxxxxxx Xxxxx Production
Technologies, by e-mail to
xxxxxxxx@xx0.xx.xx.xxx, 00X Xxxxxxxx Xxxxx,
Xxxxxxxxxx, Xxx Xxxxxx 00000, attention Final
Prospectus Unit/Xxxxxxx Xxxxxxxxxx, telephone
no. (000) 000-0000, telecopier no. (732)
885-2774, with a copy to Xxxxxxx Lynch, Xxxxxx,
Xxxxxx & Xxxxx Incorporated, 4 World Financial
Center, 15th Floor, New York, New York 10080,
attention MTN Product Management, telephone no.
(000) 000-0000, telecopier no. (000) 000-0000;
if to Xxxxxx Xxxxxxx & Co. Incorporated, to
Xxxxxx Xxxxxxx & Co. Incorporated, 0000
Xxxxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
attention Medium-Term Note Trading Desk,
telephone no. (000) 000-0000, telecopier no.
(000) 000-0000; if to RBC Dominion Securities
Corporation, One
56
Liberty Plaza, 2nd Floor, New York, NY
10006-1404, attention Xx. Xxxxx Xxxx, telephone
no. (000) 000-0000, telecopier no. (212)
428-3017; if to Xxxxxxx Xxxxx Xxxxxx Inc., to
Xxxxxxx Xxxxx Xxxxxx Inc., Brooklyn Army
Terminal, 000 00xx Xxxxxx, 0xx Xxxxx, Xxxxxxxx,
XX 00000, attention of Xxxxxxxxx Xxxxx,
telephone no. (000) 000-0000, telecopier no.
(000) 000-0000; if to UBS Warburg LLC, to UBS
Warburg LLC, 000 Xxxxxxxxxx Xxxxxxxxx, Xxxxxxxx,
Xxxxxxxxxxx 00000, attention Corporate Syndicate
Department, telephone no. (000) 000-0000,
telecopier no. (000) 000-0000; if to Wachovia
Securities, Inc., One Wachovia Center, 000 X.
Xxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000, attention
Xxxxx Xxxxx, telephone no. (000) 000-0000,
telecopier no. (000) 000-0000; if to Countrywide
Securities Corporation, to Countrywide
Securities Corporation, 0000 Xxxx Xxxxxxx,
XX-000, Xxxxxxxxx, Xxxxxxxxxx 00000, attention
of Xxx X'Xxxxxxxx, telephone no. (000) 000-0000,
or, if after 5:00 p.m., (000) 000-0000,
telecopier no. (000) 000-0000; and if to the
Trustee, to The Bank of New York, 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention
Corporate Trust Office. Such Agent will cause a
Pricing Supplement to be delivered to the
purchaser of the Book-Entry Note. In all
respects, the Company and the Guarantor will
prepare and file each such Pricing Supplement in
accordance with Rule 424 under the Act.
In each instance that a Pricing Supplement is
prepared, each Agent will affix the Pricing
Supplement to Prospectuses prior to their use;
provided, however, that pursuant to Rule 434,
the Pricing Supplement may be delivered
separately from the Prospectuses. Outdated
Pricing Supplements, and the Prospectuses to
which they are attached or relate (other than
those retained for files), will be destroyed.
Suspension of Solicitation;
Amendment or Supplement: The Company reserves the right, in its sole
discretion, to instruct the Agents to suspend at
any time, for any period of time or permanently,
the solicitation of offers to purchase
Book-Entry Notes. As soon as practicable, but in
no event later than one Business Day after
receipt of instructions from the Company, the
Agents will suspend solicitation of offers to
purchase Book-Entry Notes from the Company until
such time as the Company has advised them that
such solicitation may be resumed.
57
If the Company or the Guarantor decides to amend
or supplement the Registration Statement or the
Prospectus relating to the Notes (except in the
case of a Pricing Supplement to the Prospectus),
the Company or the Guarantor, as the case may
be, will promptly advise the Agents and the
Trustee and will furnish the Agents and the
Trustee with the proposed amendment or
supplement in accordance with the terms of the
Agency Agreement. The Company or the Guarantor
will mail or transmit to the Commission for
filing therewith any supplement to the
Prospectus relating to the Notes, provide the
Agents with copies of any supplement, and
confirm to the Agents that such supplement has
been filed with the Commission.
In the event that at the time the Company
suspends solicitation of offers to purchase
Book-Entry Notes there shall be any outstanding
offers to purchase Book-Entry Notes that have
been accepted by the Company but for which
settlement has not yet occurred, the Company
will promptly advise the Agents and the Trustee
whether such sales may be settled and whether
copies of the Prospectus as supplemented to the
time of the suspension may be delivered in
connection with the settlement of such sales.
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 sales may not be settled or
that copies of such Prospectus may not be so
delivered.
Delivery of Prospectus: Each Agent shall, for each offer to purchase a
Book-Entry Note that is solicited by such Agent
and accepted by the Company, deliver a copy of
the Prospectus as most recently amended or
supplemented (including the applicable Pricing
Supplement which, pursuant to Rule 434, may be
delivered separately from the Prospectus) with
the earlier of the delivery of the confirmation
of sale or the Book-Entry Note to the purchaser
thereof or such purchaser's agent.
Confirmation: Such 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.
58
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. The "Settlement Date" with respect to any
offer to purchase Book-Entry Notes accepted by
or on behalf of the Company will be a date on or
before the third Business Day next succeeding
the date of acceptance unless otherwise agreed
by the purchaser and the Company and shall be
specified upon acceptance of such offer.
Settlement Procedures: Settlement Procedures with regard to each
Book-Entry Note sold by the Company through an
Agent, as agent, shall be as follows:
X. Xxxx Agent will advise the Company by
telephone of the following settlement
information:
1. Principal amount.
2. Specified Currency.
3. Stated Maturity Date.
4. In the case of a Fixed Rate Book-Entry
Note, the interest rate, or, in the case of
a Floating Rate Book-Entry Note, Base Rate,
Index Maturity, Initial Interest Rate,
Maximum Interest Rate, Minimum Interest
Rate, Interest Reset Dates, Interest Payment
Dates, Calculation Dates, Interest Reset
Dates and Spread and/or Spread Multiplier.
5. Settlement Date.
6. Redemption and/or repayment
provisions, if any.
7. Estate Option, if applicable.
8. Agent's commission, determined as
provided in the Agency Agreement between the
Company and such Agent.
9. The DTC Participant account number of
such Agent.
10. Taxpayer identification number of
beneficial owner (if available).
11. Issue price of Book-Entry Note and
proceeds to the Company.
B. The Trustee will assign a CUSIP number
to the Global Security representing such
Book-Entry Note and will then advise the
Company of such
59
CUSIP number. The Company will then advise
the Trustee by electronic transmission
(confirmed by telephone) of the information
set forth in Settlement Procedure "A" above
and the name of such Agent. Each such
communication by the Company shall
constitute a representation and warranty by
the Company to the Trustee and each 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 $10,000,000,000
(except for Book-Entry Notes represented by
Global Securities authenticated and
delivered in exchange for or in lieu of
Global Securities pursuant to the Indenture
and except for Certificated Notes
authenticated and delivered upon
registration of transfer of, in exchange
for, or in lieu of Certificated Notes
pursuant to the Indenture).
C. The Trustee will enter a pending
deposit message through DTC's Participant
Terminal System, providing the following
settlement information to DTC, such Agent,
Standard & Poor's Ratings Group and, upon
request, the Trustee under the Indenture
pursuant to which such Note is to be issued:
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 and amount of
interest payable on such Interest
Payment Date.
60
4. Frequency of interest
payments (monthly, semiannually,
quarterly, etc.).
5. CUSIP number of Global
Security representing such Note.
6. Whether such Global
Security will represent any other
Book-Entry Note (to the extent known
at such time).
D. The Trustee will complete the Global
Security, the form of which was previously
approved by the Company, the Agents and the
Trustee.
E. The Trustee, as Trustee, will
authenticate the Global Security
representing such Note.
F. DTC will credit such Note to the
Trustee's participant account at DTC.
G. The Trustee will enter an SDFS deliver
order through DTC's Participant Terminal
System instructing DTC to (i) debit such
Note to the Trustee's participant account
and credit such Note to such Agent's
participant account and (ii) debit such
Agent's settlement account and credit the
Trustee's settlement account for an amount
equal to the price of such Note less such
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 Certificate Agreement.
X. Xxxx Agent will enter an SDFS deliver
order through DTC's Participant Terminal
System instructing DTC (i) to debit such
Note to such 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
61
settlement accounts of such Participants and
credit the settlement account of such Agent
for an amount equal to the price of such
Note.
I. Transfers of funds in accordance with
SDFS deliver orders described in Settlement
Procedures "G" and "H" will be settled in
accordance with SDFS operating procedures in
effect on the Settlement Date.
J. The Trustee will credit to an account
of the Company maintained at the Trustee
funds available for immediate use in the
amount transferred to the Trustee in
accordance with Settlement Procedure "G".
K. The Trustee will hold the Global
Security pursuant to the Certificate
Agreement and will send a photocopy of such
Global Security to the Company by
first-class mail. Upon written request the
Trustee will deliver a photocopy of such
Global Security to such Agent. Periodically,
the Trustee will send to the Company a
statement setting forth the principal amount
of Notes Outstanding as of that date and
setting forth a brief description of any
sales of which the Company has advised the
Trustee but which have not yet been settled.
L. As set forth in "Delivery of
Prospectus" above, such Agent will deliver
to the purchaser a copy of the most recent
Prospectus applicable to the Book-Entry Note
with or prior to any written offer of
Book-Entry Notes and the confirmation and
payment by the purchaser of such Note.
Such 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 offers to purchase Book-Entry Notes
solicited by an Agent, as agent, and accepted by
the Company for settlement on the first Business
Day after the sale date, Settlement Procedures
"A" through "L" set forth above
62
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-B 11:00 A.M. on the sale date
C 2:00 P.M. on the sale date
D 3:00 P.M. on day before
Settlement Date
E 9:00 A.M. on Settlement Date
F 10:00 A.M. on Settlement Date
G-H 2:00 P.M. on Settlement Date
I 4:45 P.M. on Settlement Date
X-X 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" and "C" shall be completed
as soon as practicable but no later than 11:00
A.M. and 2:00 P.M., as the case may be, 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" and "C" shall be
completed as soon as such rate has been
determined but no later than 11:00 A.M. and
12:00 Noon, respectively, on the second Business
Day before the Settlement Date. Settlement
Procedure "I" is subject to extension in
accordance with any extension of Fedwire closing
deadlines and in the other events specified in
the SDFS operating procedures in effect on the
Settlement Date.
Failure to Settle: If the Trustee fails to enter an SDFS deliver
order with respect to a Book-Entry Note pursuant
to Settlement Procedure "G", the Trustee may
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
63
"canceled", make appropriate entries in the
Trustee's records and send such canceled Global
Security to the Company. The CUSIP number
assigned to such Global Security shall, in
accordance with CUSIP Service Bureau procedures,
be canceled 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 canceled immediately after issuance and
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 the Participants 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 Participants and, in turn, the Agent for
such Note may enter SDFS deliver orders through
DTC's Participant Terminal System reversing the
orders entered pursuant to Settlement Procedures
"H" and "G", respectively. Thereafter, 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 "D" and "E", 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.
Trustee Not to Risk Funds: Nothing herein shall be deemed to require the
Trustee to risk or expend its own funds in
connection with any payment to the Company, or
any Agent or the purchaser, it being understood
by all parties that payments made by the Trustee
to either the Company or any Agent shall be made
64
only to the extent that funds are provided to
the Trustee for such purpose.
Authenticity of Signatures: The Company will cause the Trustee and the
Guarantor to furnish each Agent from time to
time with the specimen signatures of the
officers, employees or agents who have been
authorized to authenticate Notes or execute the
related Guarantee, but each Agent will have no
obligation or liability to the Company, the
Guarantor or the Trustee in respect of the
authenticity of the signature of any officer,
employee or agent of the Company, the Guarantor
or the Trustee on any Note.
Payment of Expenses: Each Agent shall forward to the Company and the
Guarantor, from time to time (but not more often
than monthly), a statement of the out-of-pocket
expenses incurred by such Agent during the
related period which are reimbursable to it
pursuant to the terms of the Agency Agreement.
The Company and the Guarantor will promptly
remit payment to such Agent.
Advertising Costs: The Company will determine with each Agent the
amount of advertising that maybe appropriate in
soliciting offers to purchase the Notes.
Advertising expenses will be paid by the Company
and the Guarantor.
65
EXHIBIT B
Countrywide Home Loans, Inc.
U.S. $10,000,000,000
Medium-Term Notes, Series L
Due Nine Months or More
From Date of Issue
Payment of Principal, Premium, if any, and Interest
Fully and Unconditionally Guaranteed by
Countrywide Financial Corporation.
TERMS AGREEMENT
_________________, 20__
Countrywide Home Loans, Inc.
0000 Xxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Corporate Counsel
Subject in all respects to the terms and conditions of the Selling Agency
Agreement dated [______], 2003 among Xxxxxx Brothers Inc., ABN AMRO
Incorporated, Banc of America Securities LLC, Bank One Capital Markets Inc.,
Barclays Capital Inc., Bear, Xxxxxxx & Co. Inc., BNP Paribas Securities Corp.,
Credit Lyonnais Securities (USA) Inc., Credit Suisse First Boston LLC, Deutsche
Banc Securities Inc., Dresdner Kleinwort Xxxxxxxxxxx Securities LLC, Xxxxxxx,
Xxxxx & Co., X.X. Xxxxxx Securities Inc., Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated, Xxxxxx Xxxxxxx & Co. Incorporated, RBC
Dominion Securities Corporation, Xxxxxxx Xxxxx Xxxxxx Inc., UBS Warburg LLC,
Wachovia Securities, Inc. and Countrywide Securities Corporation and you (the
"Agreement"), the undersigned agrees to purchase the following Medium-Term
Notes, Series L (the "Notes"), of Countrywide Home Loans, Inc.:
Aggregate Principal Amount:
Currency or Currency Unit:
Interest Rate or Base Rate(s):
Spread:
Spread Multiplier:
Stated Maturity Date:
Interest Payment Dates:
Record Dates:
66
Purchase Price: % of Principal Amount [plus accrued interest,
if any, from _______________, 20 __]
Purchase Date and Time:
Certificated or Book-Entry Form:
Place for Delivery of Notes
and Payment Therefor:
Method of Payment:
Modification, if any, in
the requirements to
deliver the documents
specified in Section 6(b)
of the Agreement:
Period during which additional
Notes may not be sold pursuant to
Section 4(l) of the Agreement:
Default provisions, if any:
Other terms:
[PURCHASERS]
By: _______________________________
Accepted:
COUNTRYWIDE HOME LOANS, INC.
By: ______________________________
Title:
COUNTRYWIDE FINANCIAL CORPORATION
By: ______________________________
Title:
67
