EXHIBIT 1.1
Countrywide Home Loans, Inc.
U.S. $1,000,000,000
Medium-Term Notes, Series F
Due Nine Months or More
From Date of Issue
Payment of Principal, Premium, if any, and Interest
Fully and Unconditionally Guaranteed by
Countrywide Credit Industries, Inc.
SELLING AGENCY AGREEMENT
July __, 1997
Xxxxxx Brothers
Xxxxxx Brothers Inc.
3 World Financial Center - 12th Floor
New York, New York 10285-1200
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
World Financial Center
Xxxxx Xxxxx - 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
NationsBanc Capital Markets, Inc.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Salomon Brothers Inc
Seven Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Countrywide Securities Corporation
0000 Xxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 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. $1,000,000,000
aggregate initial offering price of its Medium-Term Notes, Series F, 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 Credit Industries, Inc. (the
"Guarantor"). The Notes and the Guarantees will be issued under an indenture,
dated as of January 1, 1992, as supplemented by Supplemental Indenture No. 1
thereto, dated as of June 15, 1995 (collectively, 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.
1. Representations and Warranties. The Company and the Guarantor,
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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 have filed with
the Commission a registration statement on Form S-3 (File No.
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333- ) (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.
(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
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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,
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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
con-
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sent, 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, 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.
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(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.
(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
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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.
(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.
2. Appointment of Agents; Solicitations by the Agents of Offers to
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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
7
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.
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,
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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, partnership or corporation (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
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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
8
accordance with the provisions of this Section 2(b). For the purposes 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
"Purchaser" shall refer to each of you acting solely as principal hereunder and
not as agent, and the term "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.
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
9
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
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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 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
10
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
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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.
(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
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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 will
be deemed to be a reconfirmation to you 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 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
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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 refeence
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 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 Fried, Frank, Harris, Xxxxxxx &
Xxxxxxxx, 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
14
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
filing of any document incorporated by reference therein), as of the date any
supplement to the Prospectus is filed with the Commission 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 Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx,
counsel to the Company and the Guarantor, dated the date hereof,
substantially as set forth
15
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
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.
16
(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, 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
17
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 "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 and Guarantees".
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
18
conferences with certain of the officers of, and the independent public
accountants for, the Company and the Guarantor, at which the Registration
Statement and Prospectus were discussed. Given the limitations inherent in the
independent verification of factual matters and the character of determinations
involved in the registration process, such counsel need not pass upon and need
not assume any responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement and Prospectus including the
Incorporated Documents, except as specifically described in the opinion set
forth in paragraph (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 New York, 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 and (B) 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
19
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 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.
20
(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 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,
21
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 Xxxxx & Wood 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:
(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,
22
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:
(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
23
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 Discus-
24
sion 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
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) 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
25
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 Group ("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 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 office of Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx, Xxx Xxx Xxxx Xxxxx,
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 Fried, Frank, Harris, Xxxxxxx
& Xxxxxxxx, counsel to the Company and the Guarantor, dated as of the
Purchase Date, to the effect set forth in Section 5(b), (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), (iv) the opinion or opinions of Xxxxx
26
& Wood LLP, counsel for the Purchaser, dated as of the Purchase Date, to
the effect set forth in Section 5(d) and (v) letter of Xxxxx Xxxxxxxx LLP,
dated as of the Purchase Date, to the effect set forth in Section 5(f).
(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 or 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.
27
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 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
person did not receive 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 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
28
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 pre paration 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 paragraph of the cover
page and under the heading "Plan of Distribution of Notes" in any preliminary
Prospectus and 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 it from
any liability which it may have to any indemnified party otherwise 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 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
29
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
state ments 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 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)
30
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 by which the total price at which Notes sold by
it exceeds the amount of any damages which such Agent has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepre sentation. 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.
(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, (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
31
the judgment of the Purchaser, impracticable to market such Notes.
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.
32
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 CREDIT INDUSTRIES, INC.
By: __________________________________
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date hereof.
XXXXXX BROTHERS INC.
By:______________________________
Title:
_________________________________
Xxxxxxx, Sachs & Co.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By:______________________________
Title:
X.X. XXXXXX SECURITIES INC.
By:______________________________
Title:
33
NATIONSBANC CAPITAL MARKETS, INC.
By:______________________________
Title:
SALOMON BROTHERS INC
By:______________________________
Title:
COUNTRYWIDE SECURITIES CORPORATION
By:______________________________
Title:
34
SCHEDULE 1
Selling Agency Agreement dated July __, 1997
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.
Addresses for Notices to Agents:
Notices to Xxxxxx Brothers Inc. shall be directed to it at 3 World
Financial Center, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, Attention: Medium-
Term Note Department.
Notices to Xxxxxxx, Sachs & Co. shall be directed to it at 00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx X'Xxxxxxx.
Notices to Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated shall be
directed to it at World Financial Center, North Tower - 00xx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000-0000, Attention: MTN Product Management.
Notices to X.X. Xxxxxx Securities Inc. shall be directed to it at 00 Xxxx
Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention: Medium-Term Note
Trading Desk.
Notices to NationsBanc Capital Markets, Inc. shall be directed to it at 000
Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, XX 00000, NC1-007-07-01, Attention: Product
Management.
Notices to Salomon Brothers Inc shall be directed to it at Xxxxx Xxxxx
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Medium-Term Note Department.
Notices to Countrywide Securities Corporation, 0000 Xxxx Xxxxxxx,
Xxxxxxxxx, Xxxxxxxxxx 00000, Attention:
EXHIBIT A
COUNTRYWIDE HOME LOANS, INC.
MEDIUM-TERM NOTE
ADMINISTRATIVE PROCEDURES
July __, 1997
Medium-Term Notes, Series F, 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., Xxxxxxx, Sachs & Co., Xxxxxxx Xxxxx
& Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, X.X. Xxxxxx
Securities Inc., NationsBanc Capital Markets, Inc., Salomon Brothers 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
Credit Industries, Inc. (the "Guarantor") and the Agents dated July __, 1997
(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 January 1, 1992, as supplemented by Supplemental Indenture No. 1 thereto
dated as of June 15, 1995 (collectively, 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
A-1
Notes will be issued in accordance with the administrative procedures set forth
in Part I hereof 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.
A-2
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 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
X-0
Xxxxxx Xxxxxx 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 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 The Company and the Agents will discuss
-------------
Rate Setting from time to time the aggregate principal
------------
and Posting: 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
A-4
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 Unless otherwise agreed between the Company and such
----------
of Offers: 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 If any offer to purchase a Certificated
-----------
of Pricing Note is accepted by or on behalf of the
----------
Supplement: Company, the Company and the Guarantor, with the
----------
approval of the Agents, will prepare a Pricing
Supplement reflecting the terms of such 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., Xxxxxxxxxx
Xxxxxxxxxx, 0 World Financial Center, 0xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000-0000, attention of Xxxxxxx
Xxxxxxx, telephone no. (000)000-0000, telecopier no.
(000) 000-0000; if to
A-5
Xxxxxxx, Sachs & Co., to Xxxxxxx, Xxxxx & Co., 00 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention of Xxxxx
X'Xxxxxxx; if to Xxxxxxx Xxxxx & Co., to Xxxxxxx Xxxxx
& Co. - Tritech Services, 0 Xxxxxxxxx Xxxxx - Xxxxxxxxx
Xxxx 000, Xxxxxxxxxx, Xxx Xxxxxx 00000, attention of
Final Prospectus Unit/Xxxxxxx Xxxxxxxxxx, telephone no.
(000) 000-0000/26/27, telecopier no. (000) 000-0000,
with a copy to Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, World Financial Center, Xxxxx Xxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, attention of MTN
Product Management, telephone no. (000) 000-0000,
telecopier no. (000) 000-0000; if to X.X. Xxxxxx
Securities Inc., to X.X. Xxxxxx Securities Inc. 00 Xxxx
Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention
of Xxx Xxxxxx, telephone no. (000) 000-0000, telecopier
no. (000) 000-0000; if to NationsBanc Capital Markets,
Inc. to Bank of New York, One Xxxx Xxxxxx, 0xx Xxxxx,
Dealers Clearance, Window B, A/C NationsBanc Capital
Markets, Inc.; if to Salomon Brothers Inc, to Salomon
Brothers Inc, 0000 Xxxxxx Xxxxx Xxxxxxx, Xxxxx, Xxxxxxx
00000, attention of Xxxxxxx Xxxxxx, telephone no. (813)
558-7165, telecopier no. (000) 000-0000; if to
Countrywide Securities Corporation, to Countrywide
Securities Corporation, 0000 Xxxx Xxxxxxx, Xxxxxxxxx,
Xxxxxxxxxx 00000, attention of Jules St. Xxxxx,
telephone no. (000) 000-0000, telecopier no. (818) 225-
4014 and if to the Trustee, to The Bank of New York,
000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention
of 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
A-6
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 The Company reserves the right, in its
-------------
Solicitation; sole discretion, to instruct the Agents
-------------
Amendment or to suspend at any time, for any period
------------
Supplement: 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.
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,
A-7
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 Each Agent shall, for each offer to
-----------
Prospectus: 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.
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 For each offer to purchase a Certifi-
-----------
A-8
Settlement: cated 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.
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
A-9
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 Upon receipt of appropriate documenta-
---------------
and Cash Payment: tion 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 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
A-10
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 noti
fy 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
A-11
Trustee in writing (which may be given by telex or
telecopy) that the Trustee has received the
Certificated Note 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 Nothing herein shall be deemed to
--------------
Risk Funds: require the Trustee to risk or expend its own funds in
----------
connection with any
A-12
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.
Authenticity of The Company will cause the Trustee and
---------------
Signatures: 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 Each Agent shall forward to the Company
----------
Expenses: 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 The Company will determine with each
-----------
Costs: 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.
A-13
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. $200,000,000 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. $200,000,000 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
A-14
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.
Price to Public: Each Book-Entry Note will be issued at the percentage
---------------
of principal amount specified in the Prospectus.
Identification The Company will arrange, on or prior to
--------------
Numbers: 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
desig-
A-15
nated by such owner) will designate one or more
participants in DTC (with respect to such Note, the
"Participants") to act as agent or agents for such
owner in connection with the book-entry system
maintained by DTC, and DTC will record in book-entry
form, in accordance with instructions provided by such
Participants, a credit balance with respect to such
Note in the account of such Participants. The
ownership interest of such beneficial owner in such
Note will be recorded through the records of such
Participants or through the separate records of such
Participants and one or more indirect participants in
DTC.
Transfers: 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 The Trustee may deliver to DTC and the
-----------------
Exchange: 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
A-16
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. Notwithstanding the foregoing,
if the Global Securities to be exchanged exceed U.S.
$200,000,000 in aggregate principal amount, one Global
Security will be authenticated and issued to represent
each U.S. $200,000,000 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 The Trustee will notify DTC not more than 60 but not
--------------------
Dates: 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.
A-17
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. $200,000,000. If one or more
Book-Entry Notes having an aggregate principal amount
in excess of U.S. $200,000,000 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. $200,000,000 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. 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
A-18
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 pub
lished 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.
Payments of Payments of Interest Only. Promptly after each Record
----------- -------------------------
Principal Date, the Trustee will deliver to the Company and DTC
---------
and Interest: a written notice specifying by CUSIP number the
-------------
amount of interest to be paid on
A-19
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
A-20
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
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 The Company and the Agents will discuss from time to
-------------
Rate Setting time the aggregate principal amount of, the issuance
------------
and Posting: 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,
A-21
it will promptly advise the Agents of the prices and
rates to be posted.
Acceptance Unless otherwise agreed between the Company and such
----------
of Offers: 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.
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 If any offer to purchase a Book-Entry Note is accepted
--------------
Pricing by or on behalf of the Company, the Company and the
-------
Supplement: 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.,
Xxxxxxxxxx Xxxxxxxxxx, 0 World Financial Center, 0xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, attention of
Xxxxxxx Xxxxxxx, 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 Xxxxx X'Xxxxxxx; if to Xxxxxxx Xxxxx & Co., to
Xxxxxxx Xxxxx &
A-22
Co. - Tritech Services, 0 Xxxxxxxxx Xxxxx - Xxxxxxxxx
Xxxx 000, Xxxxxxxxxx, Xxx Xxxxxx 00000, attention of
Xxxxxxx Xxxxxxxxxx/Final Prospectus Unit, telephone no.
(000)000-0000/26/27, telecopier no. (000)000-0000, with
a copy to Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, World Financial Center, Xxxxx Xxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, attention of MTN
Product Management, telephone no. (000)000-0000,
telecopier no. (000)000-0000; if to X.X. Xxxxxx
Securities Inc. to X.X. Xxxxxx Securities Inc., 00 Xxxx
Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention
of Xxx Xxxxxx, telephone no. (000) 000-0000, telecopier
no. (000) 000-0000; if to NationsBanc Capital Markets,
Inc. to NationsBanc Capital Markets, Inc., 000 Xxxxx
Xxxxx Xxxxxx, Xxxxxxxxx, XX 00000, NC1-007-07-01,
attention of Xxx Xxxxxxx, MTN Trading, telecopier no.
(000) 000-0000; if to Salomon Brothers Inc, to Salomon
Brothers Inc, 0000 Xxxxxx Xxxxx Xxxxxxx, Xxxxx, Xxxxxxx
00000, attention of Xxxxxxx Xxxxxx, telephone no. (813)
558-7165, telecopier no. (000) 000-0000; if to
Countrywide Securities Corporation, to Countrywide
Securities Corporation, 0000 Xxxx Xxxxxxx, Xxxxxxxxx,
Xxxxxxxxxx 00000, attention of Jules St. Xxxxx,
telephone no. (000) 000-0000, telecopier no. (818) 225-
4014, and if to the Trustee, to The Bank of New York,
000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention
of 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
A-23
Supplements, and the Prospectuses to which they are
attached or relate (other than those retained for
files), will be destroyed.
Suspension of The Company reserves the right, in its
-------------
Solicitation; sole discretion, to instruct the Agents
-------------
Amendment or to suspend at any time, for any period
------------
Supplement: 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.
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
A-24
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 Each Agent shall, for each offer to
-----------
Prospectus: 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.
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 Settlement Procedures with regard to each Book-Entry
----------
Procedures: Note sold by the Company through an Agent, as agent,
----------
shall be as follows:
A. Such Agent will advise the Company by telephone of
the following settlement information:
A-25
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. Agent's commission, determined as provided
in the Agency Agreement between the Company
and such Agent.
8. The DTC Participant account number of such
Agent.
9. Taxpayer identification number of beneficial
owner (if available).
10. 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 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
A-26
authentication and delivery of such Global
Security, the aggregate initial offering price of
all Notes issued under the Indenture will not
exceed $1,000,000,000 (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.
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.
A-27
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.
H. Such 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
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
A-28
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 For offers to purchase Book-Entry Notes solicited by
----------
Procedures an Agent, as agent, and accepted by the Company for
----------
Timetable: settlement on the first Business Day after the sale
---------
date, Settlement Procedures "A" through "L" set forth
above shall be completed as soon as possible but not
later than the respective times (New York City time)
set forth below:
A-29
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
A-30
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 xxxx such Global Security "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
A-31
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 Nothing herein shall be deemed to
--------------
Risk Funds: 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.
Authenticity of The Company will cause the Trustee and
---------------
Signatures: 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 Each Agent shall forward to the Company
----------
Expenses: 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 The Company will determine with each
-----------
Costs: 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.
A-32
EXHIBIT B
Countrywide Home Loans, Inc.
U.S. $1,000,000,000
Medium-Term Notes, Series F
Due Nine Months or More
From Date of Issue
Payment of Principal, Premium, if any, and Interest
Fully and Unconditionally Guaranteed by
Countrywide Credit Industries, Inc.
TERMS AGREEMENT
_________________, 19__
Countrywide Home Loans, Inc.
000 Xxxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Corporate Counsel
Subject in all respects to the terms and conditions of the Selling Agency
Agreement dated July __, 1997 among Xxxxxx Brothers, Xxxxxx Brothers Inc.,
Xxxxxxx, Xxxxx & Co., Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, X.X. Xxxxxx Securities Inc., NationsBanc Capital Markets, Inc.,
Salomon Brothers Inc and Countrywide Securities Corporation and you (the
"Agreement"), the undersigned agrees to purchase the following Medium-Term
Notes, Series F (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:
Purchase Price: % of Principal Amount [plus accrued interest, if any,
from _______________, 19 __]
Purchase Date and Time:
Certificated or Book-Entry Form:
B-1
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:
[XXXXXX BROTHERS INC.
By: _______________________________]
[__________________________________
Xxxxxxx, Sachs & Co.]
[XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: _______________________________]
[X.X. XXXXXX SECURITIES INC.
By: _______________________________]
[NATIONSBANC CAPITAL MARKETS, INC.
By: _______________________________]
[SALOMON BROTHERS INC
By: _______________________________]
B-2
[COUNTRYWIDE SECURITIES CORPORATION
By: _______________________________]
Accepted:
COUNTRYWIDE HOME LOANS, INC.
By: ______________________________
Title:
COUNTRYWIDE CREDIT INDUSTRIES, INC.
By: ______________________________
Title:
B-3
