EXHIBIT 1.4
Countrywide Home Loans, Inc.
U.S. $6,000,000,000
Medium-Term Notes, Series M
Due Nine Months or More
From Date of Issue
Payment of Principal, Premium, if any, and Interest
Fully and Unconditionally Guaranteed by
Countrywide Financial Corporation
SELLING AGENCY AGREEMENT
April [__], 2004
Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Banc of America Securities LLC
000 Xxxxx Xxxxx Xxxxxx, XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Barclays Capital Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
BNP Paribas Securities Corp.
000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Credit Lyonnais Securities (USA) Inc.
0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dresdner Kleinwort Xxxxxxxxxxx Securities LLC
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
ABN AMRO Incorporated
Park Avenue Plaza
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Banc One Capital Markets, Inc.
0 Xxxx Xxx Xxxxx
Xxxxx XX0-0000, 0xx Xxxxx
Xxxxxxx, XX 00000
Bear, Xxxxxxx & Co. Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
BNY Capital Markets, Inc.
Xxx Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Countrywide Securities Corporation
0000 Xxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Deutsche Bank Securities Inc.
00 X. 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
HSBC Securities (USA) Inc.
000 Xxxxx Xxxxxx, Xxxxx 00
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
4 World Financial Center
New York, New York 10080
RBC Dominion Securities Corporation
Xxx Xxxxxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-1404
Wachovia Securities, Inc.
One Wachovia Center
000 X. Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
XX Xxxxx Securities Corporation
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 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. $6,000,000,000
aggregate initial offering price of its Medium-Term Notes, Series M, Due Nine
Months or More from Date of Issue (the "Notes"). The Notes will be fully and
unconditionally guaranteed as to payment of principal, premium, if any, and
interest (the "Guarantees") by Countrywide Financial Corporation (the
"Guarantor"). The Notes and the Guarantees will be issued under an indenture,
dated as of December 1, 2001 (the "Indenture"), among the Company, the Guarantor
and The Bank of New York, as trustee (the "Trustee"). Unless otherwise specified
in the Pricing Supplement referred to below, the Notes will be issued in minimum
denominations of U.S. $10,000 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. $10,000 (rounded down to an integral multiple of 1,000 units of such
Specified Currency) and any larger amount that is an integral multiple of 1,000
units of such Specified Currency, will be issued only in fully registered
certificated or book-entry form, and will be issued in the currency or currency
units and will have the maturities, annual interest rates (whether fixed or
floating), redemption provisions and other terms set forth in a pricing
supplement (the "Pricing Supplement") to the Prospectus referred to below. The
Notes will be issued, and the terms thereof established, in accordance with the
Indenture and the Medium-Term Note Administrative Procedures attached hereto as
Exhibit A (the "Procedures"). The Procedures may only be amended by written
agreement of the Company and each Agent after notice to, and in the case of
amendments which affect the rights, duties or obligations of the Trustee, with
the approval of, the Trustee.
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1. Representations and Warranties. The Company and the Guarantor,
jointly and severally, represent and warrant to, and agree with, each Agent
that:
(a) The Company and the Guarantor meet the requirements
for use of Form S-3 under the Securities Act of 1933, as amended (the
"Act") and rules and regulations ("Rules and Regulations") of the
Securities and Exchange Commission (the "Commission") promulgated
thereunder and, together with Countrywide Capital V and Countrywide
Capital VI have filed with the Commission a registration statement on
Form S-3 (File Nos. 333-[__________] and 333-[__________]-01 and
333-[__________]-02 and 333-[__________]-03) (the "Registration
Statement"), and a related preliminary prospectus for the registration
under the Act of certain securities, including the Notes and the
Guarantees (collectively, the "Securities") and the offering thereof
from time to time in accordance with Rule 415 of the Rules and
Regulations, which Registration Statement has been declared effective
by the Commission and copies of which have heretofore been delivered to
you. Such Registration Statement, as it may be amended or supplemented,
meets the requirements set forth in Rule 415(a)(1)(x) and (a)(2) of the
Rules and Regulations and complies in all other material respects with
said Rule. In connection with the sale of Notes, the Company and the
Guarantor propose to file with the Commission pursuant to Rule 424
under the Act a supplement to the form of prospectus included in such
Registration Statement relating to the Notes and the Guarantees and the
plan of distribution thereof and have previously advised the Agents of
all further information (financial and other) with respect to the
Company and the Guarantor to be set forth therein. Such Registration
Statement, in the form in which it was declared effective, as amended
through the date hereof, including all documents incorporated or deemed
to be incorporated by reference therein, is hereinafter referred to as
the "Registration Statement". Such prospectus, as supplemented through
the date hereof, is hereinafter called the "Prospectus", except that if
any revised prospectus or prospectus supplement shall be provided to
the Agents by the Company for use in connection with the offering of
the Securities which differs from the Prospectus (whether or not such
revised prospectus or prospectus supplement is required to be filed by
the Company pursuant to Rule 424(b) of the Rules and Regulations), the
term "Prospectus" shall refer to such revised prospectus or prospectus
supplement, as the case may be, from and after the time it is first
provided to the Agents for such use. Any reference herein to the
Registration Statement or the Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein pursuant to
Item 12 of Form S-3 which were filed under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), on or before the date of this
Agreement or the date of the Prospectus, as the case may be; and any
reference herein to the terms "amend", "amendment" or "supplement" with
respect to the Registration Statement or the Prospectus shall be deemed
to refer to and include the filing of any document under the Exchange
Act after the date of this Agreement or the date of the Prospectus, as
the case may be, deemed to be incorporated therein by reference.
(b) As of the date hereof, when any amendment to the
Registration Statement becomes effective (including the filing of any
document incorporated by reference in the Registration Statement), when
any supplement to the Prospectus is filed with the Commission, as of
the date of any Terms Agreement (as defined by Section 2 hereof) and
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at the date of delivery by the Company of any Notes sold hereunder (a
"Settlement Date"), (i) the Registration Statement, as amended as of
any such time, and the Prospectus, as supplemented as of any such time,
and the Indenture complies, or will comply, as the case may be, in all
material respects with the applicable requirements of the Act, the
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"),
and the Exchange Act and the respective rules and regulations
thereunder and (ii) neither the Registration Statement, as amended as
of any such time, nor the Prospectus, as supplemented as of any such
time, contains, or will contain, as the case may be, any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the
statements therein not misleading; provided, however, that the
representations or warranties in this subsection shall not apply to (a)
that part of the Registration Statement which shall constitute the
Statement of Eligibility on Form T-1 under the Trust Indenture Act of
the Trustee or (b) the information contained in or omitted from the
Registration Statement or the Prospectus or any amendment thereof or
supplement thereto in reliance upon and in conformity with information
furnished in writing to the Company or the Guarantor by any of you
specifically for use in connection with the preparation of the
Registration Statement and the Prospectus or any amendment thereof or
supplement thereto.
(c) Neither the Company nor the Guarantor nor any of
their respective subsidiaries is in violation of its corporate charter
or bylaws or in default under any agreement, indenture or instrument to
which the Company, the Guarantor or any of their respective
subsidiaries is a party, the effect of which violation or default would
be material to the Company or the Guarantor and its subsidiaries
considered as a whole; the execution, delivery and performance of this
Agreement and the Indenture and consummation of the transactions
contemplated hereunder and thereunder will not conflict with, result in
the creation or imposition of any lien, charge or encumbrance upon any
of the assets of the Company, the Guarantor or any of their respective
subsidiaries pursuant to the terms of, or constitute a default under,
any agreement, indenture or instrument, or result in a violation of the
charter or by-laws of the Company or the Guarantor or any order, rule
or regulation of any court or governmental agency having jurisdiction
over the Company, the Guarantor or any of their respective
subsidiaries; and except as required by the Act, the Trust Indenture
Act, the Exchange Act and applicable state securities laws, no consent,
authorization or order of, or filing or registration with, any court or
governmental agency is required for the execution, delivery and
performance of this Agreement and the Indenture.
d) Except as described in or contemplated by the
Registration Statement and the Prospectus, there has not been any
material adverse change in, 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
4
on Form 10-K, which is incorporated by reference in the Prospectus, are
independent public accountants as required by the Act and the Rules and
Regulations.
(f) (i) The Indenture has been duly authorized,
executed and delivered by the Company and the Guarantor and constitutes
the legally binding obligation of the Company and the Guarantor,
respectively, enforceable in accordance with its terms subject to
bankruptcy, insolvency, reorganization, fraudulent transfer, fraudulent
conveyance, moratorium or other laws affecting creditors' rights
generally and general principles of equity, (ii) on any Settlement
Date, the Notes will have been duly authorized and, upon payment
therefor as provided in this Agreement, will constitute legally binding
obligations of the Company enforceable in accordance with their terms
subject to bankruptcy, insolvency, reorganization, fraudulent transfer,
fraudulent conveyance, moratorium or other laws affecting creditors'
rights generally and general principles of equity and the holders of
the Notes will be entitled to the benefits of the Indenture, (iii) on
any Settlement Date, the Guarantees will have been duly authorized and,
upon delivery of the related Notes, will constitute legally binding
obligations of the Guarantor enforceable in accordance with their terms
subject to bankruptcy, insolvency, reorganization, fraudulent transfer,
fraudulent conveyance, moratorium or other laws affecting creditors'
rights generally and general principles of equity and the holders of
the Notes upon which the Guarantees are endorsed will be entitled to
the benefits of the Indenture, and (iv) the Indenture conforms, and the
Notes and related Guarantees will conform, in each case in all material
respects, to the descriptions thereof contained in the Prospectus.
(g) Each of the Company, the Guarantor and any
Significant Subsidiary of the Company or the Guarantor, as defined in
Rule 405 of Regulation C of the Rules and Regulations (individually, a
"Subsidiary" and collectively, the "Subsidiaries"), has been duly
incorporated, is validly existing and in good standing under the laws
of the jurisdiction in which it is chartered or organized, is duly
qualified to do business and is in good standing as a foreign
corporation in each jurisdiction in which its ownership of property or
the conduct of its business requires such qualification (except where
the failure to be so qualified would not have a material adverse effect
on the business operations or financial condition of the Company or the
Guarantor and its subsidiaries taken as a whole), and has power and
authority necessary to own or hold its property and to conduct the
business in which it is engaged.
(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
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and its subsidiaries considered as a whole or which is required to be
disclosed in the Registration Statement.
(j) The financial statements filed or incorporated as
part of the Registration Statement or included or incorporated in the
Prospectus present fairly, or (in the case of any amendment or
supplement to any such document, or any material incorporated by
reference in any such document, filed with the Commission after the
date as of which this representation is being made) will present
fairly, at all times during the effectiveness of this Agreement, the
financial condition and results of operations of the Guarantor, at the
dates and for the periods indicated, and have been, and (in the case of
any amendment or supplement to any such document, or any material
incorporated by reference in any such document, filed with the
Commission after the date as of which this representation is being
made) will be at all times during the effectiveness of this Agreement,
prepared in conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods involved, except
as otherwise required pursuant to such generally accepted accounting
principles; and the summarized financial information of the Company
included or incorporated by reference in the Registration Statement and
the Prospectus presents fairly the information required to be stated
therein.
(k) The documents incorporated by reference into the
Prospectus have been, and (in the case of any amendment or supplement
to any such document, or any material incorporated by reference in any
such document, filed with the Commission after the date as of which
this representation is being made) will be at all times during the
effectiveness of this Agreement, prepared in all material respects in
conformity with the applicable requirements of the Act and the Rules
and Regulations and the Exchange Act and the rules and regulations of
the Commission thereunder and such documents have been, or (in the case
of any amendment or supplement to any such document, or any material
incorporated by reference in any such document, filed with the
Commission after the date as of which this representation is being
made) will be at all times during the effectiveness of this Agreement
hereof, timely filed as required thereby.
(l) There are no contracts or other documents which are
required to be filed as exhibits to the Registration Statement by the
Act or by the Rules and Regulations, or which were required to be filed
as exhibits to any document incorporated by reference in the Prospectus
by the Exchange Act or the rules and regulations of the Commission
thereunder, which have not been filed as exhibits to the Registration
Statement or to such document or incorporated therein by reference as
permitted by the Rules and Regulations or the rules and regulations of
the Commission under the Exchange Act as required.
(m) The Company, the Guarantor and each subsidiary of the
Guarantor have complied, and will comply, with the provisions of
Florida H.B. 1771, codified as Section 517.075 of the Florida Statutes,
1987, as amended, and all regulations promulgated thereunder relating
to issuers doing business in Cuba.
(n) Neither the Company, the Guarantor nor any of their
subsidiaries is, or upon the issuance and sale of the Notes as herein
contemplated and the application of the
6
net proceeds therefrom as described in the Prospectus will be, an
"investment company" or an entity "controlled" by an "investment
company" as such terms are defined in the Investment Company Act of
1940, as amended.
2. Appointment of Agents; Solicitations by the Agents of Offers
to Purchase; Sales of Notes to a Purchaser. (a) Subject to the terms and
conditions set forth herein, and to the reservation by the Company of the right
to sell, solicit, and accept offers to purchase Notes directly on its own
behalf, the Company hereby authorizes each Agent to act as its agent to solicit
offers for the purchase of all or part of the Notes from the Company.
On the basis of the representations and warranties, and subject to the
terms and conditions set forth herein, each of the Agents agrees, as agent of
the Company, to use its reasonable best efforts to solicit offers to purchase
the Notes from the Company upon the terms and conditions set forth herein and in
the Prospectus as amended or supplemented and in the Procedures.
The Company reserves the right, in its sole discretion, to instruct the
Agents or any one or more of the Agents from time to time to suspend at any
time, for any period of time or permanently, the solicitation of offers to
purchase the Notes. Upon receipt of instructions from the Company, such Agents
will forthwith suspend solicitation of offers to purchase Notes from the Company
until such time as the Company has advised them that such solicitation may be
resumed.
Unless otherwise agreed between the Company and such Agent, the Company
agrees to pay each Agent a commission in U.S. dollars, at the time of settlement
of each sale of Notes by the Company as a result of a solicitation made by such
Agent, in an amount equal to that percentage specified in Schedule I hereto (or,
with respect to Notes in which the stated maturity is in excess of 30 years,
such percentage as shall be agreed upon by the Company and the related Agent at
such time) of the aggregate principal amount of the Notes sold by the Company as
a result of solicitations by such Agent and such commission shall be payable as
specified in the Procedures.
Subject to the provisions of this Section and to the Procedures, offers
for the purchase of Notes may be solicited by each Agent as agent for the
Company at such time and in such amounts as such Agent deems advisable;
provided, however, that so long as this Agreement shall be in effect, the
Company shall not solicit offers to purchase Notes through any agents other than
the Agents.
Notwithstanding anything to the contrary contained herein, the Company
may authorize any other person or entity (an "Additional Agent") to act as its
agent to solicit offers for the purchase of all or part of the Notes of the
Company and/or accept offers to purchase Notes from any such Additional Agent,
provided that any such Additional Agent shall have entered into an agreement
with the Company upon the same terms and conditions as set forth in this
Agreement.
(b) Subject to the terms and conditions stated herein,
the Company agrees that, whenever the Company determines to sell Notes
directly to any Agent as principal for resale to others, it will enter
into a separate agreement relating to such sale in
7
accordance with the provisions of this Section 2(b). For the purposes
of this Agreement, the term "Purchaser" shall refer to each of you
acting solely as principal hereunder and not as agent. For the purposes
of Section 3 and Section 5 of this Agreement, the term "agent" shall
refer to each of you acting solely in the capacity as agent for the
Company hereunder and not as principal. The term "Agent" or "you" shall
refer to each of you acting in both such capacities or in either such
capacity.
Each sale of Notes to a Purchaser shall be made in accordance
with the terms of this Agreement and the Procedures and a supplemental
agreement which will provide for the sale of such Notes to, and the
purchase and reoffering thereof by, a Purchaser. Each such supplemental
agreement (which may be an oral agreement and confirmed in writing
between a Purchaser and the Company) is herein referred to as a "Terms
Agreement". Each such Terms Agreement, whether oral (and confirmed in
writing, which may be by facsimile transmission) or in writing, shall
be with respect to such information (as applicable) as is specified in
Exhibit B hereto. A Purchaser's commitment to purchase Notes shall be
deemed to have been made on the basis of the representations and
warranties of the Company and the Guarantor herein contained and shall
be subject to the terms and conditions herein set forth. Each Terms
Agreement shall describe the Notes to be purchased by the Purchaser
pursuant thereto, specify the principal amount of such Notes, the price
to be paid to the Company for such Notes, the currency or currency unit
in which such Notes shall be denominated and be payable, whether the
Notes will be issued in certificated or book-entry form, whether
interest shall be payable at a fixed or floating rate, the date and
time of delivery of payment for such Notes (the "Purchase Date"), the
place of delivery of the Notes and payment therefor, the method of
payment and any requirements for the delivery of the opinions of
counsel, the certificates from the Company, the Guarantor or their
officers, or the letter from Xxxxx Xxxxxxxx LLP pursuant to Section
6(b). Such Terms Agreement shall also specify the period of time, if
applicable, referred to in Section 4(l). In connection with the resale
of any Notes purchased by a Purchaser, such Purchaser may engage the
services of any other broker or dealer in connection with such resale
and may allow all or any portion of the discount received to such
brokers and dealers.
Delivery of the certificates for Notes sold to a Purchaser
pursuant to any Terms Agreement shall be made as agreed to between the
Company and the Purchaser as set forth in the respective Terms
Agreement, not later than the Purchase Date set forth in such Terms
Agreement, against payment of funds to the Company in the net amount
due to the Company for such Notes by the method and in the form set
forth in the respective Terms Agreement.
(c) So long as Countrywide Securities Corporation is an
Agent under the Selling Agency Agreement each Agent agrees that it will
comply with the applicable provisions of Conduct Rule 2720(l) of the
Conduct Rules of the National Association of Securities Dealers, Inc.
3. Offering Procedure. (a) Unless otherwise agreed between the
Company and each agent, each agent shall communicate to the Company, orally or
in writing, each offer to
8
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
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
9
Registration Statement or to supplement the Prospectus to comply with
the Act or the Exchange Act or the respective rules and regulations
thereunder, the Company and the Guarantor promptly will (i) notify such
Agent to suspend the solicitation of offers to purchase Notes (and, if
so notified, such Agent shall forthwith suspend such solicitation and
cease using the Prospectus as then amended or supplemented), (ii)
prepare and file with the Commission, subject to the first sentence of
paragraph (a) of this Section 4, an amendment or supplement which will
correct such statement or omission or an amendment or supplement which
will effect such compliance and (iii) will supply any such amended or
supplemented Prospectus to such Agent in such quantities as such Agent
may reasonably request. If such amendment or supplement, and any
documents, certificates and opinions furnished to such Agent pursuant
to paragraph (f) of this Section 4 in connection with the preparation
or filing of such amendment or supplement are reasonably satisfactory
in all respects to such Agent, such Agent will, upon the filing of such
amendment or supplement with the Commission and upon the effectiveness
of an amendment to the Registration Statement if such an amendment is
required, resume such Agent's obligation to solicit offers to purchase
Notes hereunder.
(c) As soon as practicable, the Guarantor will make
generally available to the security holders of the Guarantor and to
such Agent an earnings statement which will satisfy the provisions of
Section 11(a) of the Act and Rule 158 under the Act.
(d) The Company and the Guarantor will furnish to such
Agent and to its counsel, without charge, copies of the Registration
Statement (including exhibits thereto) and each amendment thereto which
shall become effective and, so long as delivery of a prospectus may be
required by the Act, as many copies of any preliminary prospectus and
the Prospectus and any amendments thereof and supplements thereto as
such Agent may reasonably request.
(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
10
and counsel, the cost of printing (or otherwise producing) and delivery
of the Registration Statement, the Prospectus, all amendments thereof
and supplements thereto, the Indenture, this Agreement and all other
documents relating to the offering, the cost of preparing, printing,
packaging and delivering the Notes and related Guarantees, the fees and
disbursements, including fees of counsel, incurred in connection with
the qualification of the Notes and related Guarantees for sale and
determination of eligibility for investment of the Notes and related
Guarantees under the securities or blue sky laws of each such
jurisdiction as such Agent may reasonably designate, the fees and
disbursements of the Trustee, the Calculation Agent (as such term is
used in the Prospectus, as supplemented, relating to the Notes and
related Guarantees) and the fees of any agency that rates the Notes,
and (ii) reimburse such Agent on a monthly basis for all out-of-pocket
expenses (including without limitation advertising expenses) incurred
by such Agent and approved by the Company or the Guarantor in advance,
in connection with the offering and the sale of the Notes and related
Guarantees, and (iii) be responsible for the reasonable fees and
disbursements of such Agent's counsel incurred heretofore or hereafter
in connection with the offering and sale of the Notes and related
Guarantees.
(h) Each acceptance by the Company of an offer to
purchase Notes and each delivery of Notes by the Company will be deemed
to be a reconfirmation to you, as of the date of such acceptance or
delivery, of the representations and warranties of the Company and the
Guarantor in Section 1(b).
(i) Each time that the Registration Statement or the
Prospectus is amended or supplemented (other than by an amendment or
supplement (i) relating 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.
11
(j) Each time that the Registration Statement or the
Prospectus is amended or supplemented (other than by an amendment or
supplement (i) relating to an offering of securities other than the
Notes and related Guarantees, (ii) providing solely for the
specification of the terms of the Notes (excluding (a) any change in
the formula by which interest rates on the Notes may be determined and
(b) any information relating to Specified Currencies other than U.S.
dollars) or (iii) setting forth or incorporating by reference financial
statements or other financial information as of and for a fiscal
quarter, unless, in the case of clause (iii) above, in such Agent's
reasonable judgment, such financial statements or other financial
information are of such a nature that an opinion of counsel should be
furnished) or there is filed with the Commission any document
incorporated by reference into the Prospectus, the Company and the
Guarantor shall furnish or cause to be furnished forthwith to such
Agent the written opinion of the General Counsel of the Company and the
Guarantor, or such other counsel satisfactory to such Agent, dated the
date of the effectiveness of such amendment or the date of filing of
such supplement, in form satisfactory to such Agent, covering all of
the matters referred to in the opinions set forth in Sections 5(b) and
5(c) but modified to relate to the Registration Statement and the
Prospectus as amended and supplemented to the time of the effectiveness
of such amendment or the filing of such supplement or, in lieu of such
opinion, counsel last furnishing such an opinion to such Agent may
furnish a letter to the effect that such Agent may rely on such last
opinion to the same extent as though it were dated the date of such
letter authorizing reliance (except that statements in such last
opinion will be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented to the time of the effectiveness
of such amendment or the filing of such supplement); provided, however,
that, upon a reasonable request from such Agent, the Company and the
Guarantor shall cause to be furnished forthwith to such Agent the
written opinion of Xxxxxx, Xxxxxx & Xxxxx LLP, counsel to the Company
and the Guarantor, dated the date of the effectiveness of such
amendment or the date of filing of such supplement, in form
satisfactory to such Agent, of the same tenor as the opinions referred
to in Section 5(b) but modified to relate to the Registration Statement
and the Prospectus as amended and supplemented to the time of the
effectiveness of such amendment or the filing of such supplement.
(k) Each time that the Registration Statement or the
Prospectus is amended or supplemented to set forth amended or
supplemental financial information or such amended or supplemental
information is incorporated by reference in the Registration Statement
or the Prospectus, the Company and the Guarantor shall cause Xxxxx
Xxxxxxxx LLP, their independent public accountants, forthwith to
furnish to such Agent a letter, dated the date of the effectiveness of
such amendment or the date of filing of such supplement, in form
satisfactory to such Agent, of the same tenor as the letter referred to
in Section 5(f) with such changes as may be necessary to reflect the
amended and supplemental financial information included or incorporated
by reference in the Registration Statement and the Prospectus, as
amended or supplemented to the date of such letter, provided that if
the Registration Statement or the Prospectus is amended or supplemented
solely to include or incorporate by reference financial information as
of and for a fiscal quarter, Xxxxx Xxxxxxxx LLP may limit the scope of
such letter, which shall be
12
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 of any
supplement to the Prospectus and as of each Settlement Date, to the accuracy of
the statements of the Company and the Guarantor made in any certificates
pursuant to the provisions hereof, to the performance by the Company and the
Guarantor of their respective obligations hereunder and to the following
additional conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall have been
issued, and no proceedings for that purpose shall have been instituted
or threatened.
(b) The Company and the Guarantor shall have furnished to
the agents the opinion or opinions of Xxxxxx, Xxxxxx & Xxxxx LLP,
counsel to the Company and the Guarantor, dated the date hereof,
substantially as set forth below, with such additional qualifications
and exceptions as shall be acceptable to the agents and their counsel:
(i) Each of the Company and the Guarantor is a
corporation duly incorporated, validly existing and in good
standing under the laws of the state of its incorporation and
has the corporate power and authority to own its properties
and to conduct its business as described in the Prospectus.
(ii) The Company and the Guarantor have the
corporate power and authority to enter into this Agreement and
the Terms Agreement (if applicable), and this Agreement and
the Terms Agreement (if applicable) have been duly and validly
authorized, executed and delivered by the Company and the
Guarantor, respectively.
(iii) The form and general terms of the Notes have
been duly and validly authorized and established in conformity
with the provisions of the Indenture by all necessary
corporate action by the Company, and when the particular terms
of the Notes have been duly established in accordance with the
provisions of the Indenture, the Procedures and the
resolutions of the Board of
13
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.
(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.
14
(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 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 "Material
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 Related 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.
15
Such counsel shall also state that in the course of the
preparation by the Company, the Guarantor and their counsel of the
Registration Statement and Prospectus (other than the Incorporated
Documents (as defined below)), such counsel attended conferences with
certain of the officers of, and the independent public accountants for,
the Company and the Guarantor, at which the Registration Statement and
Prospectus were discussed. Given the limitations inherent in the
independent verification of factual matters and the character of
determinations involved in the registration process, such counsel need
not pass upon and need not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the
Registration Statement and Prospectus including the Incorporated
Documents, except as specifically described in the opinion set forth in
paragraph (ix) above. Subject to the foregoing and on the basis of the
information such counsel gained in the performance of the services
referred to above, including information obtained from officers and
other representatives of the Company and Guarantor, such counsel shall
state that no facts have come to such counsel's attention that have
caused it to believe that the Registration Statement, at the time it
became effective, contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, or that the
Prospectus, at its date or at the date hereof, included or includes, as
the case may be, any untrue statement of material fact or omitted or
omits, as the case may be, to state a material fact necessary to make
the statements therein, in the light of the circumstances under which
they were made, not misleading, except that such counsel need not
express a view or belief with respect to (i) the financial statements,
the related notes and schedules thereto or other financial and
statistical data included or incorporated by reference in the
Registration Statement and Prospectus or (ii) any part of the
Registration Statement which shall constitute a Statement of
Eligibility on Form T-1 under the Trust Indenture Act. References to
the Prospectus in this Section 5(b) include any amendments or
supplements thereto at the date hereof.
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction other
than the State of California, the State of Delaware (but only with
respect to the Delaware General Corporation Law) or the United States,
to the extent they deem proper and specified in such opinion, upon the
opinion of other counsel of good standing whom they believe to be
reliable and who are satisfactory to counsel for the agents, (B) as the
matters involving the application of laws of the State of New York, to
the extent specified in such opinion, upon the opinion of Xxxxxx Xxxxxx
Xxxxx & Xxxx LLP being delivered to the agents as of the date thereof
and (C) as to matters of fact, to the extent they deem proper, on
certificates and oral or written statements and other information of or
from public officials and officers and representatives of the Company,
the Guarantor, their respective subsidiaries and others.
In rendering the opinions set forth in paragraphs (iii) and
(iv), such counsel may state that such opinions are subject to the
following: (i) bankruptcy, insolvency, reorganization, fraudulent
transfer, fraudulent conveyance, moratorium or other laws now or
hereafter in effect affecting creditors' rights generally; and (ii)
general principles of equity (including, without limitation, standards
of materiality, good faith, fair dealing and
16
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.
(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.
17
(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, rules and regulations of any jurisdiction
in connection with the purchase and distribution of the Notes
and related Guarantees by the agents and such other approvals
as have been obtained.
In rendering the opinions set forth above, such counsel may
state that it has assumed, with the permission of the agents, that the
amount of Notes to be issued from time to time will not violate any
provision in any such agreement referred to in paragraph (v) which
imposes limits on the amount of debt of the Company, the Guarantor or
any of the Guarantor's subsidiaries which may be outstanding at any one
time (whether directly or indirectly, through satisfaction of financial
ratios or otherwise).
(d) Such agent shall have received from Xxxxxx Xxxxxx
Xxxxx & Xxxx LLP, counsel for the agents, such opinion or opinions,
dated the date hereof, with respect to the issuance and sale of the
Notes and related Guarantees, this Agreement, the Indenture, the
Registration Statement, the Prospectus and other related matters as
such agent may reasonably require, and the Company and the Guarantor
shall have furnished to such
18
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, 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
19
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 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
20
in Items 1, 2, 6, 7 and 11 of the Guarantor's Annual Report on
Form 10-K (and, if filed, the Company's Annual Report on Form
10-K), incorporated in the Registration Statement and the
Prospectus and the information included in the "Management's
Discussion and Analysis of Financial Condition and Results of
Operations" included or incorporated in the Company's or the
Guarantor's Quarterly Reports on Form 10-Q incorporated in the
Registration Statement and the Prospectus, agrees with the
accounting records of the Company, the Guarantor and their
respective subsidiaries, excluding any questions of legal
interpretation; and
(iv) if pro forma financial statements are
included or incorporated in the Registration Statement and the
Prospectus, on the basis of a reading of the unaudited pro
forma financial statements, carrying out certain specified
procedures, inquiries of certain officials of the Company or
the Guarantor, as the case may be, who have responsibility for
financial and accounting matters, and proving the arithmetic
accuracy of the application of the pro forma adjustments to
the historical amounts in the pro forma financial statements,
nothing came to their attention which caused them to believe
that the pro forma financial statements do not comply in form
in all material respects with the applicable accounting
requirements of Rule 11-02 of Regulation S-X or that the pro
forma adjustments have not been properly applied to the
historical amounts in the compilation of such statements.
References to the Registration Statement and the Prospectus in
this paragraph (f) are to such documents as amended and supplemented at
the date of the letter.
(g) Subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus
(as amended or supplemented, in the case of a Terms Agreement, but
exclusive of any amendment or supplement subsequent to the date of
execution of such Terms Agreement) there shall not have been (i) any
change or decrease specified in the letter or letters referred to in
paragraph (f) of this Section 5 or (ii) any change, or any development
involving a prospective change, in or affecting the business or
properties of the Company, the Guarantor and their respective
subsidiaries the effect of which, in any case referred to in clause (i)
or (ii) above, is, in the judgment of such Agent, so material and
adverse as to make it impractical or inadvisable to proceed with the
soliciting of offers to purchase the Notes as contemplated by the
Registration Statement and the Prospectus (or, in the case of a Terms
Agreement, to proceed with the offering or the delivery of the Notes to
be purchased as contemplated by the Terms Agreement).
(h) Prior to the date hereof, the Company and the
Guarantor shall have furnished to such agent such further information,
certificates and documents as such agent may reasonably request.
(i) Prior to the date hereof, the Notes shall have been
rated, and on the date hereof the Notes shall be rated, at least BBB-
by Standard & Poor's Ratings Services, a
21
division of The XxXxxx-Xxxx Companies, Inc. ("S&P") and Baa3 by Xxxxx'x
Investors Service, Inc. ("Moody's").
If any of the conditions specified in this Section 5 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to such agent and its counsel, this Agreement and all obligations
of such agent hereunder may be canceled at any time by such agent. Notice of
such cancellation shall be given to the Company and the Guarantor in writing or
by telephone or telegraph confirmed in writing.
The documents required to be delivered by this Section 5 shall be
delivered to the offices of Xxxxxx Xxxxxx Xxxxx & Xxxx LLP, 000 Xxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, or such other location as shall be mutually agreed
upon, on the date hereof.
6. Conditions to the Obligations of a Purchaser. The obligations
of a Purchaser to purchase Notes pursuant to any Terms Agreement will be subject
to the accuracy of the representations and warranties on the part of the Company
and the Guarantor herein as of the date of the respective Terms Agreement and as
of the Purchase Date thereunder, to the performance and observance by the
Company and the Guarantor of all covenants and agreements herein contained on
its part to be performed and observed and to the following additional conditions
precedent:
(a) No stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall have been
issued and no proceedings for that purpose shall have been instituted
or threatened.
(b) Except to the extent modified by the respective Terms
Agreement, the Purchaser shall have received, appropriately updated in
a manner consistent with Section 5 hereof, (i) certificates of the
Company and the Guarantor, dated as of the Purchase Date, to the effect
set forth in Section 5(e), (ii) the opinion or opinions of Xxxxxx,
Xxxxxx & Xxxxx LLP, counsel to the Company and the Guarantor, dated as
of the Purchase Date, to the effect set forth in Section 5(b), as
modified such that such counsel shall state that no facts have come to
such counsel's attention that have caused it to believe that the
Registration Statement, at the time it became effective and, if
subsequently filed, as of the date of the Guarantor's Annual Report on
Form 10-K (and, if filed, the Company's Annual Report on Form 10-K),
contained an untrue statement of material fact or omitted to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, (iii) the opinion or opinions of
Xxxxxx X. Xxxxxxx, General Counsel to the Company and the Guarantor,
dated as of the Purchase Date, to the effect set forth in Section 5(c),
as modified such that such counsel shall state that no facts have come
to such counsel's attention that have caused it to believe that the
Registration Statement, at the time it became effective and, if
subsequently filed, as of the date of the Guarantor's Annual Report on
Form 10-K (and, if filed, the Company's Annual Report on Form 10-K),
contained an untrue statement of material fact or omitted to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading,
22
(iv) the opinion or opinions of Xxxxxx Xxxxxx Xxxxx & Xxxx LLP, counsel
for the Purchaser, dated as of the Purchase Date, to the effect set
forth in Section 5(d), (v) letter of Xxxxx Xxxxxxxx LLP, dated as of
the Purchase Date, to the effect set forth in Section 5(f), and (vi)
bringdown letter of Xxxxx Xxxxxxxx LLP, dated as of the related
Settlement Date.
(c) The conditions set forth in Section 5(g) shall have
been satisfied.
(d) Prior to the Purchase Date, the Company and the
Guarantor shall have furnished to the Purchaser such further
information, certificates and documents as the Purchaser may reasonably
request.
(e) Prior to and at the Purchase Date, the Notes shall
have been rated at least BBB- by S&P and Baa3 by Moody's.
(f) Subsequent to the execution of any Terms Agreement
and prior to the Purchase Date pursuant to such Terms Agreement, the
rating assigned by S&P or Moody's to any debt securities of the Company
or the Guarantor has not been lowered and neither S&P nor Moody's has
publicly announced that it has under surveillance or review, with
possible negative implications, its rating of any debt securities of
the Company or the Guarantor.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Purchaser and its counsel, this Agreement and all
obligations of the Purchaser hereunder may be canceled at, or at any time prior
to, the respective Purchase Date by the Purchaser. Notice of such cancellation
shall be given to the Company or the Guarantor in writing or by telephone or
telegraph confirmed in writing.
7. Reimbursement of the Agent's Expenses. If any condition to the
obligations of any Agent set forth in Section 5 hereof is not satisfied, if any
condition to the obligations of a Purchaser set forth in Section 6 hereof is not
satisfied, if any termination pursuant to Section 9 hereof shall occur or in the
case of any refusal, inability or failure on the part of the Company or the
Guarantor to perform any agreement herein or comply with any provision hereof
other than by reason of a default by an Agent, the Company and the Guarantor
will reimburse such Agent upon demand for all expenses that shall have been
incurred by such Agent pursuant to Section 4(g) hereof in connection with this
Agreement.
8. Indemnification and Contribution. (a) The Company and the
Guarantor, jointly and severally, agree to indemnify and hold harmless each
Agent and each person who controls such Agent within the meaning of either the
Act or the Exchange Act against any and all losses, claims, damages or
liabilities, joint or several, to which such Agent or any of them may become
subject under the Act, the Exchange Act or other federal or state statutory law
or regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of
23
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 Agent (or any person controlling such
Agent) did not send a copy of the Prospectus (or the Prospectus as amended or
supplemented) excluding documents incorporated therein by reference at or prior
to the confirmation of the sale of such Notes to such person in any case where
such delivery is required by the Act and the untrue statement or omission or the
alleged untrue statement or omission was corrected in the Prospectus (or the
Prospectus as amended or supplemented). This indemnity agreement will be in
addition to any liability which the Company or the Guarantor may otherwise have.
(b) Each Agent severally and not jointly agrees to indemnify and
hold harmless the Company and the Guarantor, their respective directors, each of
their officers who sign the Registration Statement, and each person who controls
the Company or the Guarantor within the meaning of either the Act or the
Exchange Act, to the same extent as the foregoing indemnity from the Company and
the Guarantor to such Agent, but only with reference to written information
relating to such Agent furnished to the Company or the Guarantor by or on behalf
of such Agent specifically for use in the preparation of the documents referred
to in the foregoing indemnity. This indemnity agreement will be in addition to
any liability which such Agent may otherwise have. The Company and the Guarantor
acknowledge that the statements set forth in the last sentence of paragraph five
and paragraphs six, seven, eight and ten under the heading "Plan of Distribution
of Notes," insofar as it relates to such Agent, in the Prospectus constitute the
only information furnished in writing by or on behalf of such Agent for
inclusion in the documents referred to in the foregoing indemnity, and you
confirm that such statements are correct.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve the indemnifying party from any liability which it may have to any
indemnified party hereunder, except and to the extent of any prejudice to such
indemnifying party arising from such
24
failure to provide notice, and will not, in any event, relieve the indemnifying
party from any liability which it may have to any indemnified party other than
under this Section 8. In case any such action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and to the extent
that it may elect by written notice delivered to the indemnified party promptly
after receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel satisfactory to such indemnified party; provided,
however, that if the defendants in any such action include both the indemnified
party and the indemnifying party, and the indemnified party shall have
reasonably concluded that there may be legal defenses available to it and/or
other indemnified parties which are different from or additional to those
available to the indemnifying party, the indemnified party or parties shall have
the right to select separate counsel to assert such legal defenses and to
otherwise participate in the defense of such action on behalf of such
indemnified party or parties. Upon receipt of notice from the indemnifying party
to such indemnified party of its election so to assume the defense of such
action and approval by the indemnified party of counsel, the indemnifying party
will not be liable to such indemnified party under this Section 8 for any legal
or other expenses subsequently incurred by such indemnified party in connection
with the defense thereof, unless (i) the indemnified party shall have employed
separate counsel in connection with the assertion of legal defenses in
accordance with the proviso to the next preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the expenses of
more than one separate counsel, approved by the Agents in the case of paragraph
(a) of this Section 8, representing the indemnified parties under such paragraph
(a) who are parties to such action), (ii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement of the
action or (iii) the indemnifying party has authorized the employment of counsel
for the indemnified party at the expense of the indemnifying party; and except
that, if clause (i) or (iii) is applicable, such liability shall be only in
respect of the counsel referred to in such clause (i) or (iii).
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable to such
indemnified party as a result of such losses, claims, damages, or liabilities
(or actions in respect thereof) in such proportion as is appropriate to reflect
the relative benefits received by the Company and the Guarantor on the one hand
and each Agent on the other from the offering of the Notes to which such loss,
claim, damage or liability (or action in respect thereof) relates. If, however,
the allocation provided by the immediately preceding sentence is not permitted
by applicable law or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company and the Guarantor on the one hand and each Agent on the
other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as well
as any other relevant equitable considerations. The relative benefits received
by the Company and the Guarantor on the one hand and each Agent on the other
shall be deemed to be in the same proportion as the total net proceeds from
25
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)
referred to above in this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no Agent shall be required to contribute any
amount in excess of the amount of commission or discount received by it in
connection with the offering of the Notes that were the subject of the claim for
indemnification. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The obligations
of the Agents in this subsection (d) to contribute are several in proportion to
their respective underwriting obligations with respect to such Notes and not
joint.
9. Termination. This Agreement will continue in effect until
terminated as provided in this Section 9.
(a) This Agreement may be terminated by either the
Company or any Agent giving written notice of such termination to the
other party hereto. This Agreement shall so terminate at the close of
business on the first business day following the receipt of such notice
by the party to whom such notice is given. This Agreement may be
terminated as to one or more of the Agents, and to the extent not
terminated with respect to any Agent, this Agreement shall remain in
full force and effect as between the Company and any such Agent. In the
event of such termination, no party shall have any liability to the
other party hereto, except as provided in the fourth paragraph of
Section 2(a), Section 4(g), Section 7, Section 8 and Section 10 and
except that if terminated between the date of acceptance of an offer
and the Settlement Date or Purchase Date, Section 4, Section 5 and
Section 6 shall also survive with respect to such sale.
(b) Each Terms Agreement shall be subject to termination
in the absolute discretion of the Purchaser, by notice given to the
Company and the Guarantor prior to delivery of and payment for Notes to
be purchased thereunder, if prior to such time (i) trading in
securities generally, or in the securities of the Guarantor, on the New
York Stock Exchange shall have been suspended or limited or minimum
prices shall have been established on such exchange or a material
disruption has occurred in commercial banking or securities settlement
or clearance services in the United States, (ii) a banking moratorium
shall have been declared by either federal or New York State
authorities or, in the case of Notes denominated in other than U.S.
dollars, by the authorities of the
26
country of the currency in which such Notes are so denominated or (iii)
there shall have occurred any outbreak or material escalation of
hostilities or other calamity or crisis the effect of which on the
financial markets of the United States or in the country or countries
of origin of any foreign currency or currency unit in which the Notes
are denominated, indexed or payable is such as to make it, in the
judgment of the Purchaser, impracticable or inadvisable to market such
Notes.
10. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company, the Guarantor or any of their officers and of each Agent set forth in
or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation made by or on behalf of such Agent or the
Company, the Guarantor or any of their officers, directors or controlling
persons referred to in Section 8 hereof, and will survive delivery of and
payment for the Notes. The provisions of Sections 7 and 8 hereof shall survive
the termination or cancellation of this Agreement.
11. Right of Person Who Agreed to Purchase to Refuse to Purchase.
The Company and the Guarantor agree that any person who has agreed to purchase
and pay for any Note, including a Purchaser and any person who purchases
pursuant to a solicitation by any of the Agents, shall have the right to refuse
to purchase such Note if, at the Settlement Date therefor, either (a) any
condition set forth in Section 5 or 6, as applicable, shall not be satisfied or
(b) subsequent to the agreement to purchase such Note, any change, or any
development involving a prospective change, in or affecting the business or
properties of the Company or the Guarantor and its subsidiaries shall have
occurred the effect of which is, in the reasonable judgment of the Purchaser or
the Agent which presented the offer to purchase such Note, as applicable, so
material and adverse as to make it impractical or inadvisable to proceed with
the delivery of such Note.
12. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to an Agent, will be mailed, delivered
or telegraphed and confirmed to such Agent, at the address specified in Schedule
1 hereto; or, if sent to the Company, will be mailed, delivered or telegraphed
and confirmed to it at 0000 Xxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000,
Attention: General Counsel.
13. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 8 hereof, and no
other person will have any right or obligation hereunder.
14. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York applicable to
agreements made and to be performed in said State.
[Signature Page to Follow]
27
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and the acceptance by each of you shall represent a binding
agreement among the Company, the Guarantor and each of you.
Very truly yours,
COUNTRYWIDE HOME LOANS, INC.
By: __________________________________
Name:
Title:
COUNTRYWIDE FINANCIAL CORPORATION
By: __________________________________
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date hereof.
XXXXXX BROTHERS INC.
By: _______________________________
Title:
ABN AMRO INCORPORATED
By: _______________________________
Title:
BANC OF AMERICA SECURITIES LLC
By: _______________________________
Title:
BANC ONE CAPITAL MARKETS, INC.
By: _______________________________
Title:
28
BARCLAYS CAPITAL INC.
By: _________________________________
Title:
BEAR, XXXXXXX & CO. INC.
By: _________________________________
Title:
BNP PARIBAS SECURITIES CORP.
By: _________________________________
Title:
BNY CAPITAL MARKETS, INC.
By: _________________________________
Title:
CITIGROUP GLOBAL MARKETS INC.
By: _________________________________
Title:
COUNTRYWIDE SECURITIES CORPORATION
By: _________________________________
Title:
CREDIT LYONNAIS SECURITIES (USA) INC.
By: _________________________________
Title:
DEUTSCHE BANK SECURITIES INC.
By: _________________________________ By: _____________________________
Title: Title:
DRESDNER KLEINWORT XXXXXXXXXXX SECURITIES lLC
By: _________________________________
Title:
29
_____________________________________
Xxxxxxx, Xxxxx & Co.
HSBC SECURITIES (USA) INC.
By: _________________________________
Title:
X.X. XXXXXX SECURITIES INC.
By: _________________________________
Title:
XXXXXXX LYNCH, XXXXXX, XXXXXX & XXXXX
INCORPORATED
By: _________________________________
Title:
XXXXXX XXXXXXX & CO. INCORPORATED
By: _________________________________
Title:
RBC Dominion Securities Corporation
By: _________________________________
Title:
XX XXXXX SECURITIES CORPORATION
By: _________________________________
Title:
WACHOVIA SECURITIES, INC.
By: _________________________________
Title:
30
SCHEDULE 1
Selling Agency Agreement dated April [__], 2004
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.
31
Addresses for Notices to Agents:
Notices to Xxxxxx Brothers Inc. shall be directed to it at 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Fixed Income Syndicate/MTN Note
Desk (with a copy to the Office of the General Counsel), Fax: (000) 000-0000.
Notices to ABN AMRO Incorporated shall be directed to it at Park Avenue
Plaza, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxx,
Fax: (000) 000-0000.
Notices to Banc of America Securities LLC shall be directed to it at
000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, XX 00000, XX0-000-07-01, Attention: Product
Management, Fax: (000) 000-0000.
Notices to Banc One Capital Markets, Inc. shall be directed to it at 0
Xxxx Xxx Xxxxx, Xxxxx XX0-0000, Xxxxxxx, XX 00000, Attention: Investment Grade
Securities, Fax: 000-000-0000.
Notices to Barclays Capital Inc. shall be directed to it at 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: MTN Trading, Fax: (000) 000-0000.
Notices to Bear, Xxxxxxx & Co. Inc. shall be directed to it at 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: MTN Desk, Fax: (212)
000-0000.
Notices to BNP Paribas Securities Corp. shall be directed to it at 000
Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, XX 00000, Attention: Fixed Income
Syndicate, Fax: 000-000-0000.
Notices to BNY Capital Markets, Inc. shall be directed to it at Xxx
Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000, Attention: Xxxxxxx Xxxxxxxx, Fax:
000-000-0000.
Notices to Citigroup Global Markets Inc. shall be directed to it at 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Medium-Term Note
Department, Fax: (000) 000-0000.
Notices to Countrywide Securities Corporation shall be directed to it
at 0000 Xxxx Xxxxxxx, XX-000, Xxxxxxxxx, Xxxxxxxxxx 00000, Attention: Xxx
X'Xxxxxxxx, Fax: (000) 000-0000.
Notices to Credit Lyonnais Securities (USA) Inc. shall be directed to
it at 0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000, Attention:
Xxxxx Xxxxxx, Fax: 000-000-0000.
Notices to Deutsche Bank Securities Inc. shall be directed to it at 00
X. 00xx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx Xxxxx, Mail
Stop: NYC01-0324, Fax: (000) 000-0000.
32
Notices to Dresdner Kleinwort Xxxxxxxxxxx Securities LLC shall be
directed to it at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX 00000, Attention:
Xxxx Xxxxxxxxxxxx, Fax: (000) 000-0000.
Notices to Xxxxxxx, Xxxxx & Co. shall be directed to it at 00 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxx Xxxx, Fax: (000) 000-0000.
Notices to HSBC Securities (USA) Inc. shall be directed to it at 000
Xxxxx Xxxxxx, Xxxxx 00, Xxx Xxxx, Xxx Xxxx 00000, Attention: MTN Syndicate, Fax:
(000) 000-0000.
Notices to X.X. Xxxxxx Securities Inc. shall be directed to it at 000
Xxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Transaction
Execution Group, Fax: (000) 000-0000.
Notices to Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated shall be
directed to it at 0 Xxxxx Xxxxxxxxx Xxxxxx, 00xx Floor, New York, New York
10080, Attention: Transaction Management Group, Fax: (000) 000-0000.
Notices to Xxxxxx Xxxxxxx & Co. Incorporated shall be directed to it at
0000 Xxxxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Manager,
Continuously Offered Products, Fax: (000) 000-0000; with a copy to 0000
Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx Xxxxxx,
Investment Banking Information Center, Fax: (000) 000-0000.
Notices to RBC Dominion Securities Corporation shall be directed to it
at Xxx Xxxxxxx Xxxxx, 0xx Xxxxx, Xxx Xxxx, XX 00000-0000, Attention: Xx. Xxxxx
Xxxx, Fax: (000) 000-0000.
Notices to XX Xxxxx Securities Corporation shall be directed to it at
0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX 00000, Attention:
[___________________], Fax: [___________________].
Notices to Wachovia Securities, Inc. shall be directed to it at One
Wachovia Center, 000 X. Xxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000, Attention: Xxxxx
Xxxxx, Fax: 000-000-0000.
33
EXHIBIT A
COUNTRYWIDE HOME LOANS, INC.
MEDIUM-TERM NOTE
ADMINISTRATIVE PROCEDURES
April [__], 2004
Medium-Term Notes, Series M, Due Nine Months or More From Date of Issue
(the "Notes") are to be offered on a continuing basis by Countrywide Home Loans,
Inc. (the "Company"). Xxxxxx Brothers Inc., ABN AMRO Incorporated, Banc of
America Securities LLC, Banc One Capital Markets Inc., Barclays Capital Inc.,
Bear, Xxxxxxx & Co. Inc., BNP Paribas Securities Corp., BNY Capital Markets,
Inc., Citigroup Global Markets Inc., Countrywide Securities Corporation, Credit
Lyonnais Securities (USA) Inc., Deutsche Banc Securities Inc., Dresdner
Kleinwort Xxxxxxxxxxx Securities LLC, Xxxxxxx, Xxxxx & Co., HSBC Securities
(USA) Inc., X.X. Xxxxxx Securities Inc., Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated, Xxxxxx Xxxxxxx & Co. Incorporated, RBC
Dominion Securities Corporation, XX Xxxxx Securities Corporation and Wachovia
Securities, Inc. (each individually, an "Agent", and collectively, the
"Agents"), have agreed to solicit purchases of the Notes. The Agents will not be
obligated to purchase Notes as principal. The Notes are being sold pursuant to a
Selling Agency Agreement among the Company, Countrywide Financial Corporation
(the "Guarantor") and the Agents dated April [__], 2004 (the "Agency
Agreement"). The Notes will be fully and unconditionally guaranteed as to
payment of principal, premium, if any, and interest by the Guarantor (the
"Guarantees"). The Notes will rank equally with all other unsecured and
unsubordinated debt of the Company and have been registered with the Securities
and Exchange Commission (the "Commission"). Capitalized terms used but not
defined herein shall have the meanings assigned to such terms in the Indenture
referred to below.
Each Note and related Guarantee will be issued under an Indenture dated
as of December 1, 2001 (the "Indenture"), among the Company, the Guarantor and
The Bank of New York, as trustee (the "Trustee"). The Notes will bear interest
at either fixed rates ("Fixed Rate Notes") or floating rates ("Floating Rate
Notes"). Each Note will be represented by either a certificate delivered to the
Holder thereof or a Person designated by such Holder (a "Certificated Note") or
a Global Security (as defined hereinafter) delivered to the Trustee, as agent
for The Depository Trust Company ("DTC"), and recorded in the book-entry system
maintained by DTC (a "Book-Entry Note"). An owner of a Book-Entry Note will not
be entitled to receive a certificate representing such Note except in the
limited circumstances described in the Prospectus (as defined in the Agency
Agreement).
The procedures to be followed during, and the specific terms of, the
solicitation of offers by the Agents and the sale as a result thereof by the
Company are explained below. Certificated Notes will be issued in accordance
with the administrative procedures set forth in Part I hereof
34
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. $10,000 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. $10,000 and any
amount in excess thereof which is an
integral multiple of the equivalent of U.S.
$1,000, as determined pursuant to the
provisions of the Indenture.
Registration: Certificated Notes will be issued only in
fully registered form.
Interest Payments: Except as set forth in the Certificated
Note, each Certificated Note which is a
Fixed Rate Note will bear interest from the
Settlement Date of such Certificated Note at
the annual rate stated on the face thereof,
payable semiannually on January 15 and July
15 of each year (each, an "Interest Payment
Date") and on the Stated Maturity
35
Date or date of earlier redemption or
repayment (such date is herein referred to
as the "Maturity Date" with respect to the
principal repayable on such date), and each
Certificated Note which is a Floating Rate
Note will bear interest as determined in the
manner set forth on the face thereof,
payable on the dates set forth on the face
thereof. Unless otherwise specified on the
face thereof, interest (including payments
for partial periods) on Fixed Rate Notes
will be calculated on the basis of a 360-day
year of twelve 30-day months. Interest on
Floating Rate Notes will be determined in
the manner agreed upon by the Company and
the purchaser thereof in accordance with the
provisions of the Prospectus. Except as set
forth in the Certificated Note, the "Record
Date" with respect to any Interest Payment
Date for Floating Rate Notes shall be the
date 15 calendar days immediately preceding
such Interest Payment Date, and for Fixed
Rate Notes shall be the December 31 or June
30 next preceding such Interest Payment
Date, whether or not such date shall be a
Business Day, as defined in the Prospectus.
The first payment of interest on any
Certificated Note originally issued between
a Record Date and an Interest Payment Date
will be made on the Interest Payment Date
following the next Record Date to the Holder
on such next succeeding Record Date.
Notwithstanding the record date provisions
above, interest payable on the Maturity Date
will be payable to the person to whom
principal shall be payable. Interest on the
Certificated Notes will be paid in the
Specified Currency by mailing a check (from
an account at a bank located outside of the
United States if such check is payable in a
Specified Currency other than U.S. dollars)
to the Holder at the address of such Holder
appearing on the Security Register on the
applicable Record Date; provided, however,
that a Holder of U.S. $10,000,000 (or the
equivalent thereof in a Specified Currency
other than U.S. dollars) or more in
aggregate principal amount of Notes (whether
or not having identical terms and
provisions) shall be entitled: (i) if the
Specified Currency is U.S. dollars, to
receive U.S. dollar payments by wire
transfer of immediately available funds to
an account maintained by the payee with a
bank located in the United States, but only
if appropriate wire transfer instructions
have been received in writing by the Trustee
not later than the Record Date immediately
preceding the applicable
36
Interest Payment Date, and (ii) if the
Specified Currency is other than U.S.
dollars, to receive by wire transfer of
immediately available funds to an account
maintained by the payee with a bank located
in a jurisdiction in which payment in such
Specified Currency is then lawful. Within
ten days following each Record Date, the
Trustee will inform the Company of the total
amount of the interest payments to be made
by the Company on the next succeeding
Interest Payment Date and the currencies or
currency units in which such interest
payments are to be made. The Trustee will
provide monthly to the Company a list of the
principal and interest to be paid on
Certificated Notes maturing in the next
succeeding month.
Procedure for Rate Setting and
Posting: The Company and the Agents will discuss from
time to time the aggregate principal amount
of, the issuance price of, and the interest
rates to be borne by, Certificated Notes
that may be sold as a result of the
solicitation or offers by the Agents. If the
Company decides to establish prices of
(including the currency of issuance), and
rates borne by, any Certificated Notes to be
sold (the establishment of such prices and
rates to be referred to herein as "posting")
or if the Company decides to change prices
or rates previously posted by it, it will
promptly advise the Agents of the prices and
rates to be posted.
Acceptance of Offers: Unless otherwise agreed between the Company
and such Agent, any Agent which receives an
offer to purchase Certificated Notes will
promptly advise the Company of each such
offer other than offers rejected by such
Agent as provided below. The Company will
have the sole right to accept any such offer
to purchase Certificated Notes. The Company
may reject any such offer in whole or in
part. Unless otherwise agreed between the
Company and any Agent, each Agent may, in
its discretion reasonably exercised, reject
any offer to purchase Certificated Notes
received by it in whole or in part.
Preparation of Pricing Supplement: If any offer to purchase a Certificated Note
is accepted by or on behalf of the Company,
the Company and the Guarantor, with the
approval of the Agents, will prepare a
Pricing Supplement reflecting the terms of
such
37
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 ADP Prospectus
Services for Xxxxxx Brothers Inc., 0000 Xxxx
Xxxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000,
xxxxxxxxx: Client Services Desk, telephone
no. (000) 000-0000, telecopier no. (631)
254-7269; if to ABN AMRO Incorporated, to
ABN AMRO Incorporated, Park Avenue Plaza, 00
Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
attention: Xxxxxxx X. Xxx, telephone no.
(000) 000-0000, telecopier no. (212)
409-7853; if to Banc of America Securities
LLC to The Bank of New York, Xxx Xxxx
Xxxxxx, 0xx Floor, Dealers Clearance, Window
B, A/C Banc of America Securities LLC; if to
Banc One Capital Markets, Inc., 0 Xxxx Xxx
Xxxxx, Xxxxx XX0-0000, Xxxxxxx, XX 00000,
attention: Investment Grade Securities,
telephone no. (000) 000-0000, telecopier no.
(000) 000-0000; if to Barclays Capital Inc.
to ADP Prospectus Services for Barclays
Capital Inc., 0000 Xxxx Xxxxxx Xxxxxx,
Xxxxxxxx, Xxx Xxxx 00000, xxxxxxxxx: Client
Services Desk, telephone no. (000) 000-0000,
telecopier no. (000) 000-0000 and one
additional Pricing Supplement to Barclays
Capital Inc., Attn MTN Trading, telephone
no. (000) 000-0000, telecopier no. (212)
412-7305; if to Bear, Xxxxxxx & Co. Inc., to
Bear, Xxxxxxx & Co. Inc., 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, xxxxxxxxx:
XXX Desk, telephone no. (000) 000-0000,
telecopier no. (000) 000-0000; if to BNP
Paribas Securities Corp., 000 Xxxxxxx
Xxxxxx, 0xx Xxxxx, Xxx Xxxx, XX 00000,
attention: Fixed Income Syndicate, telephone
no. (000) 000-0000, telecopier no. (212)
841-3158; if to BNY Capital Markets, Inc.,
Xxx Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX
00000, xxxxxxxxx: Xxxxxxx Urciuoli,
telephone no. (000) 000-0000, telecopier no.
(000) 000-0000; if to Citigroup Global
Markets Inc., to Citigroup Global Markets
Inc., Brooklyn Army Terminal, 000 00xx
Xxxxxx, 0xx Xxxxx,
38
Brooklyn, NY 11220, attention of Xxxxxxxxx
Xxxxx, telephone no. (000) 000-0000,
telecopier no. (000) 000-0000; if to
Countrywide Securities Corporation, to
Countrywide Securities Corporation, 0000
Xxxx Xxxxxxx, XX-000, Xxxxxxxxx, Xxxxxxxxxx
00000, attention of Xxx X'Xxxxxxxx,
telephone no. (000) 000-0000, or, if after
5:00 p.m., (000) 000-0000, telecopier no.
(000) 000-0000; if to Credit Lyonnais
Securities (USA) Inc., 0000 Xxxxxx xx xxx
Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000,
attention Xxxxx Xxxxxx, telephone no. (212)
261-7000, telecopier no. (000) 000-0000; if
to Deutsche Bank Securities Inc. to Deutsche
Bank Securities Inc., 00 Xxxx 00xx Xxxxxx,
0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
xxxxxxxxx xx Xxx Xxxxxx, Xxxx Xxxx
XXX00-0324, telephone no. (000) 000-0000,
telecopier no. (000) 000-0000, with a copy
to Deutsche Bank Securities Inc., 0000
Xxxxxx xx xxx Xxxxxxxx, 0xx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000, attention: Xxxxx Xxxxxx,
Mail Stop: NYC08-0628, telephone no. (212)
469-3370, telecopier no. (000) 000-0000, and
a copy to Deutsche Bank Securities Inc.,
0000 Xxxxxx xx xxx Xxxxxxxx, 0xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, attention: Xxxx Xxxxx,
Mail Stop: NYC01-0324, telephone no. (212)
469-8793, telecopier no. (000) 000-0000; if
to Dresdner Kleinwort Xxxxxxxxxxx Securities
LLC, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx,
XX 00000, attention Xxxx Xxxxxxxxxxxx,
telephone no. (000) 000-0000, telecopier no.
(000) 000-0000; if to Xxxxxxx, Xxxxx & Co.,
to Xxxxxxx, Xxxxx & Co., 00 Xxxxx Xxxxxx,
00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
xxxxxxxxx xx Xxx Xxxx, telephone no. (212)
902-1482, telecopier no. (000) 000-0000; if
to HSBC Securities (USA) Inc., 000 Xxxxx
Xxxxxx, Xxxxx 00, Xxx Xxx Xxxx, XX 00000,
attention: MTN Syndicate, telephone no.
(000) 000-0000, telecopier no. (212)
525-0238; if to X.X. Xxxxxx Securities Inc.,
to X.X. Xxxxxx Securities Inc., 000 Xxxx
Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
attention Medium-Term Note Desk, telecopier
no. (000) 000-0000; if to Xxxxxxx Lynch,
Xxxxxx, Xxxxxx & Xxxxx Incorporated, to
Xxxxxxx Xxxxx Production Technologies, by
e-mail to xxxxxxxx@xx0.xx.xx.xxx, 00X
Xxxxxxxx Xxxxx, Xxxxxxxxxx, Xxx Xxxxxx
00000, attention Final Prospectus
Unit/Xxxxxxx Xxxxxxxxxx, telephone no. (732)
885-2768, telecopier no. (000) 000-0000,
with a copy to Xxxxxxx
39
Xxxxx, Xxxxxx, Xxxxxx & Xxxxx Incorporated,
4 World Financial Center, 15th Floor, New
York, New York 10080, attention MTN Product
Management, telephone no. (000) 000-0000,
telecopier no. (000) 000-0000; if to Xxxxxx
Xxxxxxx & Co. Incorporated, to Xxxxxx
Xxxxxxx & Co. Incorporated, 0000 Xxxxxxxx,
0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
attention Medium-Term Note Trading Desk,
telephone no. (000) 000-0000, telecopier no.
(000) 000-0000; if to RBC Dominion
Securities Corporation, Xxx Xxxxxxx Xxxxx,
0xx Xxxxx, Xxx Xxxx, XX 00000-0000,
attention Xx. Xxxxx Xxxx, telephone no.
(000) 000-0000, telecopier no. (212)
428-3017; if to XX Xxxxx Securities
Corporation, 0000 Xxxxxx xx xxx Xxxxxxxx,
Xxx Xxxx, XX 00000, attention:
[______________], telephone no.
[______________], telecopier no.
[______________]; if to Wachovia Securities,
Inc., One Wachovia Center, 000 X. Xxxxxxx
Xxxxxx, Xxxxxxxxx, XX 00000, attention Xxxxx
Xxxxx, telephone no. (000) 000-0000,
telecopier no. (000) 000-0000; and if to the
Trustee, to The Bank of New York, 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
attention Corporate Trust Office. Such Agent
will cause a Pricing Supplement to be
delivered to the purchaser of the
Certificated Note. In all respects, the
Company and the Guarantor will prepare and
file each such Pricing Supplement in
accordance with Rule 424 under the Act.
In each instance that a Pricing Supplement
is prepared, each Agent will affix the
Pricing Supplement to Prospectuses prior to
their use; provided, however, that pursuant
to Rule 434 ("Rule 434") under the
Securities Act of 1933, as amended, the
Pricing Supplement may be delivered
separately from the Prospectuses. Outdated
Pricing Supplements, and the Prospectuses to
which they are attached or relate (other
than those retained for files), will be
destroyed.
Suspension of Solicitation;
Amendment or Supplement: The Company reserves the right, in its sole
discretion, to instruct the Agents to
suspend at any time, for any period of time
or permanently, the solicitation of offers
to purchase Certificated Notes. As soon as
practicable, but in no event later than one
Business Day after receipt of instructions
from the Company, the Agents will suspend
solicitation of
40
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, the Company will promptly advise
the Agents and the Trustee whether such
sales may be settled and whether copies of
the Prospectus as supplemented to the time
of the suspension may be delivered in
connection with the settlement of such
sales. The Company will have the sole
responsibility for such decision and for any
arrangements which may be made in the event
that the Company determines that such sales
may not be settled or that copies of such
Prospectus may not be so delivered.
Delivery of Prospectus: Each Agent shall, for each offer to purchase
a Certificated Note that is solicited by
such Agent and accepted by the Company,
deliver a copy of the Prospectus as most
recently amended or supplemented (including
the applicable Pricing Supplement which,
pursuant to Rule 434, may be delivered
separately from the Prospectus) with the
earlier of the delivery of the confirmation
of sale or the Certificated Note to the
purchaser thereof or such purchaser's agent.
41
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 Settlement: For each offer to purchase a Certificated
Note received by any Agent and accepted
pursuant to the terms of the Agency
Agreement, such Agent will provide (unless
provided by the purchaser directly to the
Company) by telephone the following
information (to the extent applicable) to
the Company:
1. Exact name of Xxxxxx.
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.
42
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 prepare and authenticate such
Certificated Note.
After receiving from such Agent the details
for each offer to purchase a Certificated
Note, the Company will, after recording the
details and any necessary calculations,
provide appropriate documentation to the
Trustee, including the information provided
by such Agent necessary for the preparation
and authentication of such Certificated
Note. Prior to preparing the Certificated
Note for delivery (but in any case no later
than 11:00 a.m., New York City time, on the
Business Day next preceding the Settlement
Date therefor), the Trustee will confirm the
details of such issue with such Agent by
telephone.
Note Deliveries and Cash Payment: Upon receipt of appropriate documentation
and instructions, the Company will cause the
Trustee to prepare and authenticate the
pre-printed 4-ply Certificated Note packet
containing the following documents in forms
approved by the Company, the Agents and the
Trustee:
1. Certificated Note with customer
confirmation.
2. Stub 1--For the applicable Agent.
3. Stub 2--For the Company.
4. Stub 3--For the Trustee.
Each Certificated Note shall be
authenticated on or before the Settlement
Date therefor. The Trustee will authenticate
each Certificated Note and deliver it to
such Agent (and deliver the stubs as
indicated above), all in accordance with
43
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 Company and such
Agent, unless otherwise agreed between the
Company and such Agent, less such Agent's
commission.
Upon verification by such Agent that a Note
has been prepared and properly authenticated
by the Trustee and registered in the name of
the purchaser in the proper principal amount
and that the related Guarantee has been duly
endorsed thereon, payment will be made to
the Company by such Agent the same day in
immediately available funds in the Specified
Currency. Such payment shall be made only
upon prior receipt by such Agent of
immediately available funds from or on
behalf of the purchaser in the Specified
Currency unless such Agent decides, at its
option, to advance its own funds for such
payment against subsequent receipt of funds
from the purchaser.
Upon delivery of a Certificated Note to such
Agent, such Agent shall promptly deliver
such Certificated Note to the purchaser.
In the event any Certificated Note is
incorrectly prepared, the Trustee shall
promptly issue a replacement Certificated
Note in exchange for the incorrectly
prepared Certificated Note.
Failure to Settle: If any Agent, at its own option, has
advanced its own funds for payment against
subsequent receipt of funds from the
purchaser, and if the purchaser shall fail
to make payment for the Certificated Note on
the Settlement Date therefor, such Agent
will promptly notify the Trustee and the
Company by telephone, promptly confirmed in
writing (but no later than the next Business
Day). In such event, the Company shall
promptly provide the Trustee with
appropriate documentation and instructions
consistent with
44
these procedures for the return of the
Certificated Note to the Trustee and such
Agent will promptly return the Certificated
Note to the Trustee. Upon confirmation (i)
from the Trustee in writing (which may be
given by telex or telecopy) that the Trustee
has received the Certificated Note and (ii)
from such Agent in writing (which may be
given by telex or telecopy) that such Agent
has not received payment from the purchaser
(the matters referred to in clauses (i) and
(ii) are referred to hereinafter as the
"Confirmations"), the Company will promptly
pay to such Agent an amount in immediately
available funds equal to the amount
previously paid by such Agent in respect of
such Certificated Note. Assuming receipt of
the Certificated Note by the Trustee and of
the Confirmations by the Company, such
payment will be made on the Settlement Date,
if reasonably practicable, and in any event
not later than the Business Day following
the date of receipt of the Certificated Note
and Confirmations. If a purchaser shall fail
to make payment for the Certificated Note
for any reason other than the failure of
such Agent to provide the necessary
information to the Company as described
above for settlement or to provide a
confirmation to the purchaser within a
reasonable period of time as described above
or otherwise to satisfy its obligation
hereunder or in the Agency Agreement, and if
such Agent shall have otherwise complied
with its obligations hereunder and in the
Agency Agreement, the Company will reimburse
such Agent on an equitable basis for its
loss of the use of funds during the period
when they were credited to the account of
the Company.
Immediately upon receipt of the Certificated
Note in respect of which the failure
occurred, the Trustee will void said
Certificated Note, make appropriate entries
in its records and destroy the Certificated
Note; and upon such action, the Certificated
Note will be deemed not to have been issued,
authenticated and delivered.
Trustee Not to
Risk Funds: Nothing herein shall be deemed to require
the Trustee to risk or expend its own funds
in connection with any payment to the
Company, or any Agent or the purchaser, it
being understood by all parties that
payments made by the
45
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 Signatures: The Company will cause the Trustee and the
Guarantor to furnish each Agent from time to
time with the specimen signatures of the
officers, employees or agents who have been
authorized to authenticate Certificated
Notes or execute the related Guarantee, as
the case may be, but each Agent will have no
obligation or liability to the Company, the
Guarantor or the Trustee in respect of the
authenticity of the signature of any
officer, employee or agent of the Company,
the Guarantor or the Trustee on any
Certificated Note.
Payment of Expenses: Each Agent shall forward to the Company and
the Guarantor, from time to time (but not
more often than monthly), a statement of the
out-of-pocket expenses incurred by such
Agent during the related period which are
reimbursable to it pursuant to the terms of
the Agency Agreement. The Company and the
Guarantor will promptly remit payment to
such Agent.
Advertising
Costs: The Company will determine with each Agent
the amount of advertising that may be
appropriate in soliciting offers to purchase
the Notes. Advertising expenses will be paid
by the Company and the Guarantor.
46
PART II: ADMINISTRATIVE PROCEDURES FOR BOOK-ENTRY NOTES
In connection with the qualification of Book-Entry Notes for
eligibility in the book-entry system maintained by DTC, the Trustee will perform
the custodial, document control and administrative functions described below, in
accordance with its respective obligations under a Letter of Representations
from the Company, the Guarantor and the Trustee to The Depository Trust Company
("DTC") of even date herewith and a Medium-Term Note Certificate Agreement
between the Trustee and DTC, dated April 14, 1989 and its obligations as a
participant in DTC, including DTC's Same-Day Funds Settlement System ("SDFS").
Issuance: On any Settlement Date (as defined under
"Settlement" below) for one or more Fixed
Rate Book-Entry Notes, the Company will
issue a single global security in fully
registered form without coupons (a "Global
Security") representing up to U.S.
$500,000,000 principal amount of all of such
Notes that have the same Issue Date,
Specified Currency, Interest Rate, Stated
Maturity Date, redemption and/or repayment
provisions and Interest Payment Dates.
Similarly, on any Settlement Date for one or
more Floating Rate Book-Entry Notes, the
Company will issue a single Global Security
representing up to U.S. $500,000,000
principal amount of all of such Notes that
have the same Issue Date, Specified
Currency, Base Rate(s), Index Maturity,
Interest Reset Dates, Spread and/or Spread
Multiplier (if any), Initial Interest Rate,
Interest Payment Dates, Minimum Interest
Rate (if any), Maximum Interest Rate (if
any), Stated Maturity Date and redemption
and/or repayment provisions. Each Global
Security will be dated and issued as of the
date of its authentication by the Trustee.
Each Global Security will bear an "Interest
Accrual Date", which will be (i) with
respect to an original Global Security (or
any portion thereof), its original issuance
date and (ii) with respect to any Global
Security (or portion thereof) issued
subsequently upon exchange of a Global
Security or in lieu of a destroyed, lost or
stolen Global Security, the most recent
Interest Payment Date to which interest has
been paid or duly provided for on the
predecessor Global Security or Securities
(or if no such payment or provision has been
made, the original issuance date of the
predecessor Global Security), regardless of
the date of authentication of such
subsequently issued Global Security. No
Global Security will represent any
Certificated Note.
47
Price to Public: Each Book-Entry Note will be issued at the
percentage of principal amount specified in
the Prospectus.
Identification Numbers: The Company will arrange, on or prior to
commencement of a program for the offering
of Book-Entry Notes, with the CUSIP Service
Bureau of Standard & Poor's Ratings Group
(the "CUSIP Service Bureau") for the
reservation of a series of CUSIP numbers
(including tranche numbers), consisting of
approximately 900 CUSIP numbers and relating
to Global Securities representing the
Book-Entry Notes. The Trustee has or will
obtain from the CUSIP Service Bureau a
written list of such series of reserved
CUSIP numbers and will deliver to the
Company and DTC such written list of 900
CUSIP numbers of such series. The Company
will assign CUSIP numbers to Global
Securities as described below under
Settlement Procedure "B". DTC will notify
the CUSIP Service Bureau periodically of the
CUSIP numbers that the Company has assigned
to Global Securities. The Trustee will
notify the Company at any time when fewer
than 100 of the reserved CUSIP numbers
remain unassigned to Global Securities, and
if it deems necessary, the Company will
reserve additional CUSIP numbers for
assignment to Global Securities representing
Book-Entry Notes. Upon obtaining such
additional CUSIP numbers, the Trustee shall
deliver such additional CUSIP numbers to the
Company and DTC.
Registration: Each Global Security will be registered in
the name of Cede & Co., as nominee for DTC,
on the Securities Register maintained under
the Indenture governing such Global
Security. The beneficial owner of a
Book-Entry Note (or one or more indirect
participants in DTC designated by such
owner) will designate one or more
participants in DTC (with respect to such
Note, the "Participants") to act as agent or
agents for such owner in connection with the
book-entry system maintained by DTC, and DTC
will record in book-entry form, in
accordance with instructions provided by
such Participants, a credit balance with
respect to such Note in the account of such
Participants. The ownership interest of such
beneficial owner in such Note will be
recorded through the records of such
Participants or through the separate records
of such Participants and one or more
indirect participants in DTC.
48
Transfers: Transfer of a Book-Entry Note will be
accomplished by book entries made by DTC
and, in turn, by Participants (and in
certain cases, one or more indirect
participants in DTC) acting on behalf of
beneficial transferors and transferees of
such Note.
Consolidation and Exchange: The Trustee may deliver to DTC and the CUSIP
Service Bureau at any time a written notice
of consolidation specifying (i) the CUSIP
numbers of two or more outstanding Global
Securities that represent (A) Fixed Rate
Book-Entry Notes having the same Issue Date,
Specified Currency, Interest Rate, Stated
Maturity Date, redemption and/or repayment
provisions (if any) and Interest Payment
Dates and with respect to which interest has
been paid to the same date or (B) Floating
Rate Book-Entry Notes having the same Issue
Date, Specified Currency, Base Rate, Index
Maturity, Interest Reset Dates, Spread
and/or Spread Multiplier (if any), Initial
Interest Rate, Interest Payment Dates,
Minimum Interest Rate (if any), Maximum
Interest Rate (if any), redemption and/or
repayment provisions (if any) and Stated
Maturity Date and with respect to which
interest has been paid to the same date,
(ii) a date, occurring at least thirty days
after such written notice is delivered and
at least thirty days before the next
Interest Payment Date for such Book-Entry
Notes, on which such Global Securities shall
be exchanged for a single replacement Global
Security and (iii) a new CUSIP number,
obtained from the Company, to be assigned to
such replacement Global Security. Upon
receipt of such a notice, DTC will send to
its Participants (including the Trustee) a
written reorganization notice to the effect
that such exchange will occur on such date.
Prior to the specified exchange date, the
Trustee will deliver to the CUSIP Service
Bureau a written notice setting forth such
exchange date and the new CUSIP number and
stating that, as of such exchange date, the
CUSIP numbers of the Global Securities to be
exchanged will no longer be valid. On the
specified exchange date, the Trustee will
exchange such Global Securities for a single
Global Security bearing the new CUSIP number
and a new Interest Accrual Date, and the
CUSIP numbers of the exchanged Global
Securities will, in accordance with CUSIP
Service Bureau procedures, be cancelled and
not immediately reassigned.
49
Notwithstanding the foregoing, if the Global
Securities to be exchanged exceed U.S.
$500,000,000 in aggregate principal amount,
one Global Security will be authenticated
and issued to represent each U.S.
$500,000,000 of principal amount of the
exchanged Global Securities and an
additional Global Security will be
authenticated and issued to represent any
remaining principal amount of such Global
Securities (see "Denominations" below).
Maturities: Each Book-Entry Note will mature on a date
nine months or more after the Settlement
Date for such Note.
Notice of Redemption Date: The Trustee will notify DTC not more than 60
but not less than 30 days prior to each
redemption date, if any, with respect to a
Book-Entry Note, of the CUSIP number of such
Note, the redemption date, the redemption
price and the principal amount of such
Book-Entry Note to be redeemed.
Denominations: Book-Entry Notes will be issued in principal
amounts of U.S. $10,000 or any amount in
excess thereof that is an integral multiple
of U.S. $1,000. Global Securities will be
denominated in principal amounts not in
excess of U.S. $500,000,000. If one or more
Book-Entry Notes having an aggregate
principal amount in excess of U.S.
$500,000,000 would, but for the preceding
sentence, be represented by a single Global
Security, then one Global Security will be
issued to represent each U.S. $500,000,000
principal amount of such Book-Entry Note or
Notes and an additional Global Security will
be issued to represent any remaining
principal amount of such Book-Entry Note or
Notes. In such a case, each of the Global
Securities representing such Book-Entry Note
or Notes shall be assigned the same CUSIP
number.
Interest: General. Interest on each Book-Entry Note
will accrue from the Interest Accrual Date
of the Global Security representing such
Note. Except as set forth in the underlying
Global Security, each Book-Entry Note which
is a Fixed Rate Note will bear interest at
the annual rate stated in such Global
Security, payable semiannually on January 15
and July 15 of each year (each, an "Interest
Payment Date") and on the Maturity Date, and
each Book-Entry Note which is a Floating
Rate Note will bear interest as determined
in the manner set forth in such Global
Security, payable on the dates set forth on
such Global Security.
50
Except as set forth in the underlying Global
Security, interest (including payments for
partial periods) on Fixed Rate Notes will be
calculated on the basis of a 360-day year of
twelve 30-day months. Except as set forth in
the underlying Global Security, interest on
Book-Entry Notes which are Floating Rate
Notes will be determined in the manner
agreed upon by the Company and the purchaser
thereof in accordance with the provisions of
the Prospectus. Except as set forth in the
underlying Global Security, the "Record
Date" with respect to any Interest Payment
Date for Book-Entry Notes which are Floating
Rate Notes shall be the date 15 calendar
days immediately preceding such Interest
Payment Date, and for Fixed Rate Notes shall
be the December 31 or June 30 next preceding
such Interest Payment Date, whether or not
such date shall be a Business Day. The first
payment of interest on any Book-Entry Note
originally issued between a Record Date and
an Interest Payment Date will be made on the
Interest Payment Date following the next
succeeding Record Date to the Holder on such
next succeeding Record Date. Notwithstanding
the record date provisions above, interest
payable on the Maturity Date will be payable
to the person to whom principal shall be
payable.
Standard & Poor's Ratings Group will use the
information received in the pending deposit
message described under Settlement Procedure
"C" below in order to include the amount of
any interest payable and certain other
information regarding the related Global
Security in the appropriate weekly bond
report published by Standard & Poor's
Ratings Group.
On the first Business Day of January, April,
July and October of each year, the Trustee
will deliver to the Company and DTC a
written list of Record Dates and Interest
Payment Dates that will occur with respect
to Floating Rate Book-Entry Notes during the
six-month period beginning on such first
Business Day. Promptly after each Interest
Determination Date (as defined in the
Prospectus) for Floating Rate Notes, the
Company will notify the Trustee, and the
Trustee in turn will notify Standard &
Poor's Ratings Group, of the interest rates
determined on such Interest Determination
Date.
51
Payments of Principal and Interest: Payments of Interest Only. Promptly after
each Record Date, the Trustee will deliver
to the Company and DTC a written notice
specifying by CUSIP number the amount of
interest to be paid on each Global Security
on the following Interest Payment Date
(other than an Interest Payment Date
coinciding with a Maturity Date) and the
total of such amounts. DTC will confirm the
amount payable on each Global Security on
such Interest Payment Date by reference to
the daily bond reports published by Standard
& Poor's Corporation. The Company will pay
to the Trustee, as paying agent, the total
amount of interest due on such Interest
Payment Date (other than on the Maturity
Date), and the Trustee will pay such amount
to DTC at the times and in the manner set
forth below under "Manner of Payment".
Payments at Maturity. On or about the first
Business Day of each month, the Trustee will
deliver to the Company and DTC a written
list of principal and interest to be paid on
each Global Security with a Maturity Date in
the following month. The Company, the
Trustee and DTC will confirm the amounts of
such principal and interest payments with
respect to each such Global Security on or
about the fifth Business Day preceding the
Maturity Date of such Global Security. The
Company will pay to the Trustee, as the
paying agent, the principal amount of such
Global Security, together with interest due
on such Maturity Date. The Trustee will pay
such amount to DTC at the time and in the
manner set forth below under "Manner of
Payment".
Promptly after payment to DTC of the
principal and interest due on the Maturity
Date of such Global Security, the Trustee
will cancel such Global Security and deliver
it to the Company with an appropriate debit
advice. On the first Business Day of each
month, the Trustee will prepare a written
statement indicating the total principal
amount of outstanding Global Securities for
which it serves as trustee as of the
immediately preceding Business Day.
Manner of Payment. The total amount of any
principal and interest due on Global
Securities on any Interest Payment Date or
on the Maturity Date shall be paid by the
Company to the Trustee in funds available
for use by the Trustee as of 9:30 A.M. (New
York City time) on such date. The Company
will make such payment on such Global
52
Securities by instructing the Trustee to
withdraw funds from an account maintained by
the Company at the Trustee. For maturity,
redemption, repayment or any other principal
payments: prior to 10:00 A.M. (New York City
time) on such date or as soon as possible
thereafter, the Trustee will make such
payments to DTC in same day funds in
accordance with DTC's Same Day Funds
Settlement Paying Agent Operating
Procedures. For interest payments: the
Trustee will make such payments to DTC in
accordance with existing arrangements
between DTC and the Trustee. DTC will
allocate such payments to its participants
in accordance with its existing operating
procedures. Neither the Company (either as
Issuer or as Paying Agent), the Trustee or
any Agent shall have any direct
responsibility or liability for the payment
by DTC to such Participants of the principal
of and interest on the Book-Entry Notes.
Withholding Taxes. The amount of any taxes
required under applicable law to be withheld
from any interest payment on a Book-Entry
Note will be determined and withheld by the
Participant, indirect participant in DTC or
other Person responsible for forwarding
payments and materials directly to the
beneficial owner of such Note.
Procedure for Rate Setting
and Posting: The Company and the Agents will discuss from
time to time the aggregate principal amount
of, the issuance price of, and the interest
rates to be borne by, Book-Entry Notes that
may be sold as a result of the solicitation
or offers by the Agents. If the Company
decides to establish prices of (including
the currency of issuance), and rates borne
by, any Book-Entry Notes to be sold (the
establishment of such prices and rates to be
referred to herein as "posting") or if the
Company decides to change prices or rates
previously posted by it, it will promptly
advise the Agents of the prices and rates to
be posted.
Acceptance
of Offers: Unless otherwise agreed between the Company
and such Agent, any Agent which receives an
offer to purchase Book-Entry Notes will
promptly advise the Company of each such
offer other than offers rejected by such
Agent as provided below. The Company will
have the sole right to accept any such offer
to purchase Book-Entry Notes. The Company
may reject any such offer in whole or in
part.
53
Unless otherwise agreed between the Company
and any Agent, each Agent may, in its
discretion reasonably exercised, reject any
offer to purchase Book-Entry Notes received
by it in whole or in part.
Preparation of Pricing Supplement: If any offer to purchase a Book-Entry Note
is accepted by or on behalf of the Company,
the Company and the Guarantor, with the
approval of the Agents, will prepare a
Pricing Supplement reflecting the terms of
such Book-Entry Note and will arrange to
have requisite copies of such Pricing
Supplement filed with the Commission, in
each case no later than the second Business
Day after the earlier of the determination
of the offering price or the date it is
first used and will supply at least ten
copies thereof (or additional copies if
requested) to the Agents and one copy to the
Trustee no later than 11:00 A.M., New York
City time, on the Business Day following the
date of acceptance at the following
applicable address (unless otherwise
specified in the applicable trading
confirmation): if to Xxxxxx Brothers Inc.,
to ADP Prospectus Services for Xxxxxx
Brothers Inc., 0000 Xxxx Xxxxxx Xxxxxx,
Xxxxxxxx, Xxx Xxxx 00000, xxxxxxxxx: Client
Services Desk, telephone no. (000) 000-0000,
telecopier no. (000) 000-0000; if to ABN
AMRO Incorporated, to ABN AMRO Incorporated,
Park Avenue Plaza, 00 Xxxx 00xx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, attention: Xxxxxxx X.
Xxx, telephone no. (000) 000-0000,
telecopier no. (000) 000-0000; if to Banc of
America Securities LLC to The Bank of New
York, Xxx Xxxx Xxxxxx, 0xx Floor, Dealers
Clearance, Window B, A/C Banc of America
Securities LLC; if to Banc One Capital
Markets, Inc., 0 Xxxx Xxx Xxxxx, Xxxxx
XX0-0000, Xxxxxxx, XX 00000, attention:
Investment Grade Securities, telephone no.
(000) 000-0000, telecopier no. (312)
732-4773; if to Barclays Capital Inc. to ADP
Prospectus Services for Barclays Capital
Inc., 0000 Xxxx Xxxxxx Xxxxxx, Xxxxxxxx, Xxx
Xxxx 00000, xxxxxxxxx: Client Services Desk,
telephone no. (000) 000-0000, telecopier no.
(000) 000-0000 and one additional Pricing
Supplement to Barclays Capital Inc., Attn
MTN Trading, telephone no. (000) 000-0000,
telecopier no. (000) 000-0000; if to Bear,
Xxxxxxx & Co. Inc., to Bear, Xxxxxxx & Co.
Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, xxxxxxxxx: XXX Desk, telephone no.
(000) 000-0000, telecopier no. (212)
272-6227; if to BNP Paribas Securities
54
Corp., 000 Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx
Xxxx, XX 00000, attention: Fixed Income
Syndicate, telephone no. (000) 000-0000,
telecopier no. (000) 000-0000; if to BNY
Capital Markets, Inc., Xxx Xxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, XX 00000, xxxxxxxxx:
Xxxxxxx Urciuoli, telephone no. (212)
635-1695, telecopier no. (000) 000-0000; if
to Citigroup Global Markets Inc., to
Citigroup Global Markets Inc., Brooklyn Army
Terminal, 000 00xx Xxxxxx, 0xx Xxxxx,
Xxxxxxxx, XX 00000, attention of Xxxxxxxxx
Xxxxx, telephone no. (000) 000-0000,
telecopier no. (000) 000-0000; if to
Countrywide Securities Corporation, to
Countrywide Securities Corporation, 0000
Xxxx Xxxxxxx, XX-000, Xxxxxxxxx, Xxxxxxxxxx
00000, attention of Xxx X'Xxxxxxxx,
telephone no. (000) 000-0000, or, if after
5:00 p.m., (000) 000-0000, telecopier no.
(000) 000-0000; if to Credit Lyonnais
Securities (USA) Inc., 0000 Xxxxxx xx xxx
Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000,
attention Xxxxx Xxxxxx, telephone no. (212)
261-7000, telecopier no. (000) 000-0000; if
to Deutsche Bank Securities Inc. to Deutsche
Bank Securities Inc., 00 Xxxx 00xx Xxxxxx,
0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
xxxxxxxxx xx Xxx Xxxxxx, Xxxx Xxxx
XXX00-0324, telephone no. (000) 000-0000,
telecopier no. (000) 000-0000, with a copy
to Deutsche Bank Securities Inc., 0000
Xxxxxx xx xxx Xxxxxxxx, 0xx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000, attention: Xxxxx Xxxxxx,
Mail Stop: NYC08-0628, telephone no. (212)
469-3370, telecopier no. (000) 000-0000, and
a copy to Deutsche Bank Securities Inc.,
0000 Xxxxxx xx xxx Xxxxxxxx, 0xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, attention: Xxxx Xxxxx,
Mail Stop: NYC01-0324, telephone no. (212)
469-8793, telecopier no. (000) 000-0000; if
to Dresdner Kleinwort Xxxxxxxxxxx Securities
LLC, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx,
XX 00000, attention Xxxx Xxxxxxxxxxxx,
telephone no. (000) 000-0000, telecopier no.
(000) 000-0000; if to Xxxxxxx, Xxxxx & Co.,
to Xxxxxxx, Xxxxx & Co., 00 Xxxxx Xxxxxx,
00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
xxxxxxxxx xx Xxx Xxxx, telephone no. (212)
902-1482, telecopier no. (000) 000-0000; if
to HSBC Securities (USA) Inc., 000 Xxxxx
Xxxxxx, Xxxxx 00, Xxx Xxx Xxxx, XX 00000,
attention: MTN Syndicate, telephone no.
(000) 000-0000, telecopier no. (212)
525-0238; if to X.X. Xxxxxx Securities Inc.,
to X.X. Xxxxxx Securities Inc., 000 Xxxx
Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
attention Medium-Term Note Desk, telecopier
no. (000) 000-0000; if to Xxxxxxx Xxxxx,
55
Xxxxxx, Xxxxxx & Xxxxx Incorporated, to
Xxxxxxx Xxxxx Production Technologies, by
e-mail to xxxxxxxx@xx0.xx.xx.xxx, 00X
Xxxxxxxx Xxxxx, Xxxxxxxxxx, Xxx Xxxxxx
00000, attention Final Prospectus
Unit/Xxxxxxx Xxxxxxxxxx, telephone no. (732)
885-2768, telecopier no. (000) 000-0000,
with a copy to Xxxxxxx Lynch, Xxxxxx, Xxxxxx
& Xxxxx Incorporated, 4 World Financial
Center, 15th Floor, New York, New York
10080, attention MTN Product Management,
telephone no. (000) 000-0000, telecopier no.
(000) 000-0000; if to Xxxxxx Xxxxxxx & Co.
Incorporated, to Xxxxxx Xxxxxxx & Co.
Incorporated, 0000 Xxxxxxxx, 0xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, attention Medium-Term
Note Trading Desk, telephone no. (212)
761-4000, telecopier no. (000) 000-0000; if
to RBC Dominion Securities Corporation, Xxx
Xxxxxxx Xxxxx, 0xx Xxxxx, Xxx Xxxx, XX
00000-0000, attention Xx. Xxxxx Xxxx,
telephone no. (000) 000-0000, telecopier no.
(000) 000-0000; if to XX Xxxxx Securities
Corporation, 0000 Xxxxxx xx xxx Xxxxxxxx,
Xxx Xxxx, XX 00000, attention:
[______________], telephone no.
[______________], telecopier no.
[______________]; if to Wachovia Securities,
Inc., One Wachovia Center, 000 X. Xxxxxxx
Xxxxxx, Xxxxxxxxx, XX 00000, attention Xxxxx
Xxxxx, telephone no. (000) 000-0000,
telecopier no. (000) 000-0000; and if to the
Trustee, to The Bank of New York, 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
attention Corporate Trust Office. Such Agent
will cause a Pricing Supplement to be
delivered to the purchaser of the Book-Entry
Note. In all respects, the Company and the
Guarantor will prepare and file each such
Pricing Supplement in accordance with Rule
424 under the Act.
In each instance that a Pricing Supplement
is prepared, each Agent will affix the
Pricing Supplement to Prospectuses prior to
their use; provided, however, that pursuant
to Rule 434, the Pricing Supplement may be
delivered separately from the Prospectuses.
Outdated Pricing Supplements, and the
Prospectuses to which they are attached or
relate (other than those retained for
files), will be destroyed.
Suspension of Solicitation;
Amendment or Supplement: The Company reserves the right, in its sole
discretion, to instruct the Agents to
suspend at any time, for any period of time
or permanently, the solicitation of offers
to purchase Book-Entry Notes. As soon as
practicable, but in no event
56
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
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.
57
Delivery of
Prospectus: Each Agent shall, for each offer to purchase
a Book-Entry Note that is solicited by such
Agent and accepted by the Company, deliver a
copy of the Prospectus as most recently
amended or supplemented (including the
applicable Pricing Supplement which,
pursuant to Rule 434, may be delivered
separately from the Prospectus) with the
earlier of the delivery of the confirmation
of sale or the Book-Entry Note to the
purchaser thereof or such purchaser's agent.
Confirmation: Such Agent will confirm the purchase of such
Note to the purchaser either by transmitting
to the Participants with respect to such
Note a confirmation order or orders through
DTC's institutional delivery system or by
mailing a written confirmation to such
purchaser.
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
Procedures: Book-Entry Note sold by the Company through
an Agent, as agent, shall be as follows:
X. Xxxx Agent will advise the Company
by telephone of the following
settlement information:
1. Principal amount.
2. Specified Currency.
3. Stated Maturity Date.
4. In the case of a Fixed
Rate Book-Entry Note, the interest
rate, or, in the case of a Floating
Rate Book-Entry Note, Base Rate,
Index Maturity, Initial Interest
Rate, Maximum Interest Rate,
Minimum Interest Rate, Interest
Reset Dates, Interest Payment
Dates, Calculation Dates, Interest
Reset Dates and Spread and/or
Spread Multiplier.
5. Settlement Date.
58
6. Redemption and/or
repayment provisions, if
any.
7. Estate Option, if
applicable.
8. Agent's commission,
determined as provided in the
Agency Agreement between the
Company and such Agent.
9. The DTC Participant
account number of such Agent.
10. Taxpayer identification
number of beneficial owner (if
available).
11. Issue price of Book-Entry
Note and proceeds to the Company.
B. The Trustee will assign a
CUSIP number to the Global Security
representing such Book-Entry Note
and will then advise the Company of
such CUSIP number. The Company will
then advise the Trustee by
electronic transmission (confirmed
by telephone) of the information
set forth in Settlement Procedure
"A" above and the name of such
Agent. Each such communication by
the Company shall constitute a
representation and warranty by the
Company to the Trustee and each
Agent that (i) such Note is then,
and at the time of issuance and
sale thereof will be, duly
authorized for issuance and sale by
the Company, (ii) such Note, and
the Global Security representing
such Note, will conform with the
terms of the Indenture pursuant to
which such Note and Global Security
are issued and (iii) upon
authentication and delivery of such
Global Security, the aggregate
initial offering price of all Notes
issued under the Indenture will not
exceed $6,000,000,000 (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
59
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.
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
60
Trustee to DTC that (i) the Global
Security representing such
Book-Entry Note has been issued and
authenticated and (ii) the Trustee
is holding such Global Security
pursuant to the Certificate
Agreement.
X. Xxxx Agent will enter an
SDFS deliver order through DTC's
Participant Terminal System
instructing DTC (i) to debit such
Note to such Agent's participant
account and credit such Note to the
participant accounts of the
Participants with respect to such
Note and (ii) to debit the
settlement accounts of such
Participants and credit the
settlement account of such Agent
for an amount equal to the price of
such Note.
I. Transfers of funds in
accordance with SDFS deliver orders
described in Settlement Procedures
"G" and "H" will be settled in
accordance with SDFS operating
procedures in effect on the
Settlement Date.
J. The Trustee will credit to
an account of the Company
maintained at the Trustee funds
available for immediate use in the
amount transferred to the Trustee
in accordance with Settlement
Procedure "G".
K. The Trustee will hold the
Global Security pursuant to the
Certificate Agreement and will send
a photocopy of such Global Security
to the Company by first-class mail.
Upon written request the Trustee
will deliver a photocopy of such
Global Security to such Agent.
Periodically, the Trustee will send
to the Company a statement setting
forth the principal amount of Notes
Outstanding as of that date and
setting forth a brief description
of any sales of which the Company
has advised the Trustee but which
have not yet been settled.
L. As set forth in "Delivery
of Prospectus" above, such Agent
will deliver to the purchaser a
copy of the most recent Prospectus
applicable to the Book-Entry Note
with or prior to any written offer
61
of Book-Entry Notes and the
confirmation and payment by the
purchaser of such Note.
Such Agent will confirm the purchase of such
Note to the purchaser either by transmitting
to the Participants with respect to such
Note a confirmation order or orders through
DTC's institutional delivery system or by
mailing a written confirmation to such
purchaser.
Settlement Procedures
Timetable: For offers to purchase Book-Entry Notes
solicited by an Agent, as agent, and
accepted by the Company for settlement on
the first Business Day after the sale date,
Settlement Procedures "A" through "L" set
forth above shall be completed as soon as
possible but not later than the respective
times (New York City time) set forth below:
Settlement
Procedure Time
--------- ----
A-B 11:00 A.M. on the sale date
C 2:00 P.M. on the sale date
D 3:00 P.M. on day before Settlement Date
E 9:00 A.M. on Settlement Date
F 10:00 A.M. on Settlement Date
G-H 2:00 P.M. on Settlement Date
I 4:45 P.M. on Settlement Date
X-X 5:00 P.M. on Settlement Date
If a sale is to be settled more than one
Business Day after the sale date, Settlement
Procedures "A", "B" and "C" shall be
completed as soon as practicable but no
later than 11:00 A.M. and 2:00 P.M., as the
case may be, on the first Business Day after
the sale date. If the initial interest rate
for a Floating Rate Book-Entry Note has not
been determined at the time that Settlement
Procedure "A" is completed, Settlement
Procedures "B" and "C" shall be completed as
soon as such rate has been determined but no
later than 11:00 A.M. and 12:00 Noon,
respectively, on the second Business Day
before the Settlement Date. Settlement
Procedure "I" is subject to extension in
accordance with any extension of Fedwire
closing deadlines
62
and in the other events specified in the
SDFS operating procedures in effect on the
Settlement Date.
Failure to Settle: If the Trustee fails to enter an SDFS
deliver order with respect to a Book-Entry
Note pursuant to Settlement Procedure "G",
the Trustee may deliver to DTC, through
DTC's Participant Terminal System, as soon
as practicable a withdrawal message
instructing DTC to debit such Note to the
Trustee's participant account. DTC will
process the withdrawal message, provided
that the Trustee's participant account
contains a principal amount of the Global
Security representing such Note that is at
least equal to the principal amount to be
debited. If a withdrawal message is
processed with respect to all the Book-Entry
Notes represented by a Global Security, the
Trustee will mark such Global Security
"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
63
then in effect. In the event of a failure to
settle with respect to one or more, but not
all, of the Book-Entry Notes to have been
represented by a Global Security, the
Trustee will provide, in accordance with
Settlement Procedures "D" and "E", for the
authentication and issuance of a Global
Security representing the other Book-Entry
Notes to have been represented by such
Global Security and will make appropriate
entries in its records.
Trustee Not to
Risk Funds: Nothing herein shall be deemed to require
the Trustee to risk or expend its own funds
in connection with any payment to the
Company, or any Agent or the purchaser, it
being understood by all parties that
payments made by the Trustee to either the
Company or any Agent shall be made only to
the extent that funds are provided to the
Trustee for such purpose.
Authenticity of Signatures: The Company will cause the Trustee and the
Guarantor to furnish each Agent from time to
time with the specimen signatures of the
officers, employees or agents who have been
authorized to authenticate Notes or execute
the related Guarantee, but each Agent will
have no obligation or liability to the
Company, the Guarantor or the Trustee in
respect of the authenticity of the signature
of any officer, employee or agent of the
Company, the Guarantor or the Trustee on any
Note.
Payment of Expenses: Each Agent shall forward to the Company and
the Guarantor, from time to time (but not
more often than monthly), a statement of the
out-of-pocket expenses incurred by such
Agent during the related period which are
reimbursable to it pursuant to the terms of
the Agency Agreement. The Company and the
Guarantor will promptly remit payment to
such Agent.
Advertising Costs: The Company will determine with each Agent
the amount of advertising that maybe
appropriate in soliciting offers to purchase
the Notes. Advertising expenses will be paid
by the Company and the Guarantor.
64
EXHIBIT B
Countrywide Home Loans, Inc.
U.S. $6,000,000,000
Medium-Term Notes, Series M
Due Nine Months or More
From Date of Issue
Payment of Principal, Premium, if any, and Interest
Fully and Unconditionally Guaranteed by
Countrywide Financial Corporation.
TERMS AGREEMENT
_________________, 20__
Countrywide Home Loans, Inc.
Countrywide Financial Corporation
0000 Xxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Corporate Counsel
Subject in all respects to the terms and conditions of the Selling
Agency Agreement dated April [__], 2004 among Xxxxxx Brothers Inc., ABN AMRO
Incorporated, Banc of America Securities LLC, Bank One Capital Markets Inc.,
Barclays Capital Inc., Bear, Xxxxxxx & Co. Inc., BNP Paribas Securities Corp.,
BNY Capital Markets, Inc., Citigroup Global Markets Inc., Countrywide Securities
Corporation, Credit Lyonnais Securities (USA) Inc., Deutsche Banc Securities
Inc., Dresdner Kleinwort Xxxxxxxxxxx Securities LLC, Xxxxxxx, Xxxxx & Co., HSBC
Securities (USA) Inc., X.X. Xxxxxx Securities Inc., Xxxxxxx Xxxxx & Co., Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Xxxxxx Xxxxxxx & Co. Incorporated,
RBC Dominion Securities Corporation, XX Xxxxx Securities Corporation and
Wachovia Securities, Inc. and you (the "Agreement"), the undersigned agrees to
purchase the following Medium-Term Notes, Series M (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:
65
Purchase Price: % of Principal Amount [plus accrued interest,
if any, from _______________, 20 __]
Purchase Date and Time:
Certificated or Book-Entry Form:
Place for Delivery of Notes
and Payment Therefor:
Method of Payment:
Modification, if any, in
the requirements to
deliver the documents
specified in Section 6(b)
of the Agreement:
Period during which additional
Notes may not be sold pursuant to
Section 4(l) of the Agreement:
Default provisions, if any:
Other terms:
[PURCHASERS]
By: _______________________________
Accepted:
COUNTRYWIDE HOME LOANS, INC.
By: ______________________________
Title:
COUNTRYWIDE FINANCIAL CORPORATION
By: ______________________________
Title:
66
