GUARANTEE AGREEMENT Between COUNTRYWIDE FINANCIAL CORPORATION as Guarantor, and THE BANK OF NEW YORK as Trustee, dated as of ____
Exhibit 4.27
Between
COUNTRYWIDE FINANCIAL CORPORATION
as Guarantor,
as Guarantor,
and
THE BANK OF NEW YORK
as Trustee,
as Trustee,
dated as of ____
CROSS-REFERENCE TABLE*
| Section of | ||
| Trust Indenture Act | Section of | |
| of 1939, as amended | Guarantee Agreement | |
310(a). |
4.1(a) | |
310(b). |
4.1(c), 2.8 | |
310(c). |
Inapplicable | |
311(a). |
2.2(b) | |
311(b). |
2.2(b) | |
311(c). |
Inapplicable | |
312(a). |
2.2(a) | |
312(b). |
2.2(b) | |
313. |
2.3 | |
314(a). |
2.4 | |
314(b). |
Inapplicable | |
314(c). |
2.5 | |
314(d). |
Inapplicable | |
314(e). |
1.1, 2.5, 3.2 | |
314(f). |
2.1, 3.2 | |
315(a). |
3.1(d) | |
315(b). |
2.7 | |
315(c). |
3.1 | |
315(d). |
3.1(d) | |
316(a). |
1.1, 2.6, 5.4 | |
316(b). |
5.4 | |
316(c). |
8.2 | |
317. |
3.1(b) | |
318(a). |
2.1(b) | |
318(b). |
2.1 | |
318(c). |
2.1(a) |
| * | This Cross-Reference Table does not constitute part of the Guarantee Agreement and shall not affect the interpretation of any of its terms or provisions. |
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This GUARANTEE AGREEMENT, dated as of ___is executed and delivered by COUNTRYWIDE FINANCIAL
CORPORATION, a Delaware corporation (the “Guarantor”) having its principal office at 0000 Xxxx
Xxxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000, and the Guarantee Trustee (as defined herein), for the
benefit of the Holders (as defined herein) from time to time of the Capital Securities and Common
Securities (each as defined herein and together, the “Securities”) of Countrywide Capital [ ], a
Delaware statutory trust (the “Issuer”).
WHEREAS, pursuant to an Amended and Restated Trust Agreement, dated as of ___(the “Trust
Agreement”), among the Guarantor, as Depositor, the Property Trustee and the Delaware Trustee named
therein, the Administrative Trustees named therein and the Holders from time to time of undivided
beneficial interests in the assets of the Issuer, the Issuer is issuing $___aggregate
Liquidation Amount (as defined in the Trust Agreement) of its ___% Capital Securities,
Liquidation Amount [$1,000] per preferred security (the “Capital Securities”) representing
preferred undivided beneficial interests in the assets of the Issuer and having the terms set forth
in the Trust Agreement;
WHEREAS, the Capital Securities will be issued by the Issuer and the proceeds thereof,
together with the proceeds from the issuance of the Common Securities, will be used to purchase the
Debentures (as defined in the Trust Agreement) of the Guarantor which will be deposited with The
Bank of New York, as Property Trustee under the Trust Agreement, as trust assets; and
WHEREAS, as incentive for the Holders to purchase Securities the Guarantor desires irrevocably
and unconditionally to agree, to the extent set forth herein, to pay to the Holders of the
Securities the Guarantee Payments (as defined herein) and to make certain other payments on the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the purchase by each Holder of Securities, which purchase
the Guarantor hereby agrees shall benefit the Guarantor, the Guarantor executes and delivers this
Guarantee Agreement for the benefit of the Holders from time to time of the Securities.
ARTICLE I.
DEFINITIONS
Section 1.1. Definitions.
As used in this Guarantee Agreement, the terms set forth below shall, unless the context
otherwise requires, have the following meanings. Capitalized or otherwise defined terms used but
not otherwise defined herein shall have the meanings assigned to such terms in the Trust Agreement
as in effect on the date hereof.
“Affiliate” of any specified Person means any other Person directly or indirectly controlling
or controlled by or under direct or indirect common control with such specified Person. For the
purposes of this definition, “control” when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms “controlling” and
“controlled” have meanings correlative to the foregoing.
“Board of Directors” means either the board of directors of the Guarantor or any committee of
that board duly authorized to act hereunder or any directors or officers of the Guarantor to whom
such board of directors or such committee shall have duly delegated its authority.
“Common Securities” means the securities representing common undivided beneficial interests in
the assets of the Issuer.
“Event of Default” means a default by the Guarantor on any of its payment or other obligations
under this Guarantee Agreement; provided, however, that, except with respect to a default in
payment of any Guarantee Payments, the Guarantor shall have received notice of default and shall
not have cured such default within 90 days after receipt of such notice.
“Guarantee Payments” means the following payments or distributions, without duplication, with
respect to the Securities, to the extent not paid or made by or on behalf of the Issuer: (i) any
accumulated and unpaid Distributions (as defined in the Trust Agreement) required to be paid on the
Securities, to the extent the Issuer shall have sufficient funds available therefor at such time,
(ii) the redemption price, including all accrued and unpaid Distributions to the date of redemption
(the “Redemption Price”), with respect to any Securities called for redemption by the Issuer, to
the extent the Issuer shall have sufficient funds available therefor at such time, and (iii) upon a
voluntary or involuntary termination, winding up or liquidation of the Issuer, unless Debentures
are distributed to the Holders, the lesser of (a) the aggregate of the Liquidation Amount plus
accrued and unpaid Distributions to the date of payment and (b) the amount of assets of the Issuer
remaining available for distribution to Holders in liquidation of the Issuer after satisfaction of
liabilities to creditors of the Issuer as required by applicable law (in either case, the
“Liquidation Distribution”).
“Guarantee Trustee” means The Bank of New York, until a Successor Guarantee Trustee has been
appointed and has accepted such appointment pursuant to the terms of this Guarantee Agreement, and
thereafter means each such Successor Guarantee Trustee.
“Holder” means any holder, as registered on the books and records of the Issuer, of any
Securities; provided, however, that in determining whether the holders of the requisite percentage
of Securities have given any request, notice, consent or waiver
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hereunder, “Holder” shall not include the Guarantor, the Guarantee Trustee, or any Affiliate
of the Guarantor or the Guarantee Trustee.
“Indenture” means the Junior Subordinated Indenture, dated as of ___, as supplemented and
amended, between the Guarantor and The Bank of New York, as trustee.
“List of Holders” has the meaning specified in Section 2.2(a).
“Majority in aggregate Liquidation Amount of the Securities” means, except as provided by the
Trust Indenture Act, a vote by the Holder(s), voting separately as a class, of more than 50% of the
aggregate Liquidation Amount of all then outstanding Securities issued by the Issuer.
“Officers’ Certificate” means a certificate signed by the Chairman of the Board, the
President, or any Senior Managing Director, and by the Chief Financial Officer, the Treasurer, or
an Assistant Treasurer, Cash Management, of the Guarantor, and delivered to the Guarantee Trustee.
Any Officers’ Certificate delivered with respect to compliance with a condition or covenant
provided for in this Guarantee Agreement shall include:
(a) a statement that each officer signing the Officers’ Certificate has read the covenant or
condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or investigation undertaken
by each officer in rendering the Officers’ Certificate;
(c) a statement that each officer has made such examination or investigation as, in such
officer’s opinion, is necessary to enable such officer to express an informed opinion as to whether
or not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each officer, such condition or covenant has
been complied with.
“Person” means any individual, corporation, partnership, joint venture, trust, limited
liability company or corporation, unincorporated organization or government or any agency or
political subdivision thereof.
“Responsible Officer” when used with respect to the Guarantee Trustee means any officer of the
Guarantee Trustee assigned by the Guarantee Trustee from time to time to administer its corporate
trust matters.
“Successor Guarantee Trustee” means a successor Guarantee Trustee possessing the
qualifications to act as Guarantee Trustee under Section 4.1.
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“Trust Indenture Act” means the Trust Indenture Act of 1939, as amended.
ARTICLE II.
TRUST INDENTURE ACT
Section 2.1. Trust Indenture Act; Application.
(a) This Guarantee Agreement is subject to the provisions of the Trust Indenture Act that are
required to be part of this Guarantee Agreement and shall, to the extent applicable, be governed by
such provisions.
(b) If and to the extent that any provision of this Guarantee Agreement limits, qualifies or
conflicts with the duties imposed by Sections 310 to 317, inclusive, of the Trust Indenture Act,
such imposed duties shall control.
Section 2.2. List of Holders.
(a) The Guarantor shall provide the Guarantee Trustee with a list, in such form as the
Guarantee Trustee may reasonably require, of the names and addresses of the Holders (“List of
Holders”), (i) on each regular record date for the Capital Securities, and (ii) at any other time
within 30 days of receipt by the Guarantor of a written request for a List of Holders. Such list
shall be as of a date no more than 15 days before such List of Holders is given to the Guarantee
Trustee. The Guarantor shall not be obligated to provide such List of Holders if at any time the
List of Holders does not differ from the most recent List of Holders given to the Guarantee Trustee
by the Guarantor. The Guarantee Trustee may destroy any List of Holders previously given to it on
receipt of a new List of Holders.
(b) The Guarantee Trustee shall comply with its obligations under Section 311(a), Section
311(b) and Section 312(b) of the Trust Indenture Act.
Section 2.3. Reports by the Guarantee Trustee.
The Guarantee Trustee shall transmit to Holders such reports concerning the Guarantee Trustee
and its actions under this Guarantee Agreement as may be required pursuant to the Trust Indenture
Act at the times and in the manner provided pursuant thereto. If required by Section 313(a) of the
Trust Indenture Act, the Guarantee Trustee shall, within sixty days after each May 15 following the
date of this Guarantee Agreement deliver to Holders a brief report, dated as of such May 15, which
complies with the provisions of such Section 313(a). If required by Section 313(b) of the Trust
Indenture Act, the Guarantee Trustee shall deliver to Holders a brief report within the applicable
period and in the manner specified by such Section 313(b).
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Section 2.4. Periodic Reports to the Guarantee Trustee.
The Guarantor shall provide to the Guarantee Trustee, the Securities and Exchange Commission
and the Holders such documents, reports and information, if any, as required by Section 314 of the
Trust Indenture Act, in the form, in the manner and at the times required by Section 314 of the
Trust Indenture Act. Delivery of such reports, information and documents to the Guarantee Trustee
is for informational purposes only and the Guarantee Trustee’s receipt of such shall not constitute
constructive notice of any information contained therein, including the Guarantor’s compliance with
any of its covenants hereunder (as to which the Guarantee Trustee is entitled to rely exclusively
on Officers’ Certificates).
Section 2.5. Evidence of Compliance with Conditions Precedent.
The Guarantor shall provide to the Guarantee Trustee such evidence of compliance with such
conditions precedent, if any, provided for in this Guarantee Agreement that relate to any of the
matters set forth in Section 314(c) of the Trust Indenture Act. Any certificate or opinion required
to be given by an officer pursuant to Section 314(c)(1) of the Trust Indenture Act may be given in
the form of an Officers’ Certificate.
Section 2.6. Events of Default; Waiver.
The Holders of a Majority in aggregate Liquidation Amount of the Securities may, by vote, on
behalf of the Holders, waive any past default and its consequences. Upon such waiver, any such
default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have
been cured, for every purpose of this Guarantee Agreement, but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent therefrom.
Section 2.7. Event of Default; Notice.
(a) The Guarantee Trustee shall, within 90 days after the occurrence of an Event of Default,
transmit by mail, first class postage prepaid, to the Holders, notices of all Events of Default
actually known to the Guarantee Trustee, unless such defaults have been cured before the giving of
such notice, provided, that, except in the case of a default in the payment of a Guarantee Payment,
the Guarantee Trustee shall be protected in withholding such notice if and so long as the board of
directors, the executive committee or a trust committee of directors and/or Responsible Officers of
the Guarantee Trustee in good faith determines that the withholding of such notice is in the
interests of the Holders.
(b) The Guarantee Trustee shall not be deemed to have knowledge of any Event of Default unless
the Guarantee Trustee shall have received written notice, or a Responsible Officer charged with the
administration of this Guarantee Agreement shall have obtained written notice, of such Event of
Default.
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Section 2.8. Conflicting Interests.
The Trust Agreement shall be deemed to be specifically described in this Guarantee Agreement
for the purposes of clause (i) of the first proviso contained in Section 310(b) of the Trust
Indenture Act.
ARTICLE III.
POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE
Section 3.1. Powers and Duties of the Guarantee Trustee.
(a) This Guarantee Agreement shall be held by the Guarantee Trustee for the benefit of the
Holders, and the Guarantee Trustee shall not transfer this Guarantee Agreement to any Person except
a Holder exercising his or her rights pursuant to Section 5.4(iv) or to a Successor Guarantee
Trustee on acceptance by such Successor Guarantee Trustee of its appointment to act as Successor
Guarantee Trustee. The right, title and interest of the Guarantee Trustee shall automatically vest
in any Successor Guarantee Trustee, upon acceptance by such Successor Guarantee Trustee of its
appointment hereunder, and such vesting and cessation of title shall be effective whether or not
conveyancing documents have been executed and delivered pursuant to the appointment of such
Successor Guarantee Trustee.
(b) If an Event of Default has occurred and is continuing, the Guarantee Trustee shall enforce
this Guarantee Agreement for the benefit of the Holders.
(c) The Guarantee Trustee, before the occurrence of any Event of Default and after the curing
of all Events of Default that may have occurred, shall undertake to perform only such duties as are
specifically set forth in this Guarantee Agreement, and no implied covenants shall be read into
this Guarantee Agreement against the Guarantee Trustee. In case an Event of Default has occurred
(that has not been cured or waived pursuant to Section 2.6), the Guarantee Trustee shall exercise
such of the rights and powers vested in it by this Guarantee Agreement, and use the same degree of
care and skill in its exercise thereof, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
(d) No provision of this Guarantee Agreement shall be construed to relieve the Guarantee
Trustee from liability for its own negligent action, its own negligent failure to act or its own
willful misconduct, except that:
(i) prior to the occurrence of any Event of Default and after the curing or waiving of
all such Events of Default that may have occurred:
| (A) | the duties and obligations of the Guarantee Trustee shall be determined solely by the express provisions of this Guarantee Agreement, and the Guarantee Trustee shall not be liable except |
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| for the performance of such duties and obligations as are specifically set forth in this Guarantee Agreement; and | |||
| (B) | in the absence of bad faith on the part of the Guarantee Trustee, the Guarantee Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Guarantee Trustee and conforming to the requirements of this Guarantee Agreement; but in the case of any such certificates or opinions that by any provision hereof or of the Trust Indenture Act are specifically required to be furnished to the Guarantee Trustee, the Guarantee Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Guarantee Agreement; |
(ii) the Guarantee Trustee shall not be liable for any error of judgment made in good
faith by a Responsible Officer of the Guarantee Trustee, unless it shall be proved that the
Guarantee Trustee was negligent in ascertaining the pertinent facts upon which such
judgment was made;
(iii) the Guarantee Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the direction of the Holders of
not less than a Majority in aggregate Liquidation Amount of the Securities relating to the
time, method and place of conducting any proceeding for any remedy available to the
Guarantee Trustee, or exercising any trust or power conferred upon the Guarantee Trustee
under this Guarantee Agreement; and
(iv) no provision of this Guarantee Agreement shall require the Guarantee Trustee to
expend or risk its own funds or otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of any of its rights or powers, if the
Guarantee Trustee shall have reasonable grounds for believing that the repayment of such
funds or liability is not reasonably assured to it under the terms of this Guarantee
Agreement or adequate indemnity against such risk or liability is not reasonably assured to
it.
Section 3.2. Certain Rights of Guarantee Trustee.
(a) Subject to the provisions of Section 3.1:
(i) The Guarantee Trustee may rely and shall be fully protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note, other evidence
of indebtedness or other paper or document reasonably believed by it to be genuine and to
have been signed, sent or presented by the proper party or parties.
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(ii) Any direction or act of the Guarantor contemplated by this Guarantee Agreement
shall be sufficiently evidenced by an Officers’ Certificate unless otherwise prescribed
herein.
(iii) Whenever, in the administration of this Guarantee Agreement, the Guarantee
Trustee shall deem it desirable that a matter be proved or established before taking,
suffering or omitting to take any action hereunder, the Guarantee Trustee (unless other
evidence is herein specifically prescribed) may, in the absence of bad faith on its part,
request and rely upon an Officers’ Certificate which, upon receipt of such request from the
Guarantee Trustee, shall be promptly delivered by the Guarantor.
(iv) The Guarantee Trustee may consult with legal counsel of its selection, and the
advice or opinion of such legal counsel with respect to legal matters shall be full and
complete authorization and protection in respect of any action taken, suffered or omitted
to be taken by it hereunder in good faith and in accordance with such advice or opinion.
Such legal counsel may be legal counsel to the Guarantor or any of its Affiliates and may
be one of its employees. The Guarantee Trustee shall have the right at any time to seek
instructions concerning the administration of this Guarantee Agreement from any court of
competent jurisdiction.
(v) The Guarantee Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Guarantee Agreement at the request or direction of any
Holder, unless such Holder shall have provided to the Guarantee Trustee such adequate
security and indemnity as would satisfy a reasonable person in the position of the
Guarantee Trustee, against the costs, expenses (including attorneys’ fees and expenses) and
liabilities that might be incurred by it in complying with such request or direction,
including such reasonable advances as may be requested by the Guarantee Trustee; provided
that, nothing contained in this Section 3.2(a)(v) shall be taken to relieve the Guarantee
Trustee, upon the occurrence of an Event of Default, of its obligation to exercise the
rights and powers vested in it by this Guarantee Agreement.
(vi) The Guarantee Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Guarantee Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters as it may see fit.
(vii) The Guarantee Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through its agents or attorneys, and
the Guarantee Trustee shall not be responsible for any
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misconduct or negligence on the part of any such agent or attorney appointed with due
care by it hereunder.
(viii) Whenever in the administration of this Guarantee Agreement the Guarantee
Trustee shall deem it desirable to receive written instructions with respect to enforcing
any remedy or right or taking any other action hereunder, the Guarantee Trustee (A) may
request instructions from the Holders, (B) may refrain from enforcing such remedy or right
or taking such other action until such written instructions are received and (C) shall be
protected in acting in accordance with such written instructions.
(ix) The Guarantee Trustee shall not be liable for any action taken, suffered or
omitted to be taken by it in good faith and reasonably believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this Guarantee Agreement.
(b) No provision of this Guarantee Agreement shall be deemed to impose any duty or obligation
on the Guarantee Trustee to perform any act or acts or exercise any right, power, duty or
obligation conferred or imposed on it in any jurisdiction in which it shall be illegal, or in which
the Guarantee Trustee shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts or to exercise any such right, power, duty or obligation. No
permissive power or authority available to the Guarantee Trustee shall be construed to be a duty to
act in accordance with such power and authority.
Section 3.3. Indemnity.
The Guarantor agrees to indemnify the Guarantee Trustee for, and to hold it harmless against,
any loss, liability or expense incurred without negligence or bad faith on the part of the
Guarantee Trustee, arising out of or in connection with the acceptance or administration of this
Guarantee Agreement, including the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its powers or duties hereunder.
ARTICLE IV.
GUARANTEE TRUSTEE
Section 4.1. Guarantee Trustee: Eligibility.
(a) There shall at all times be a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a Person that is eligible pursuant to the Trust Indenture Act to act as such
and have a combined capital and surplus of at least $50,000,000, and
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shall be a corporation meeting the requirements of Section 310(a) of the Trust
Indenture Act. If such corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of the supervising or examining authority, then, for
the purposes of this Section and to the extent permitted by the Trust Indenture Act, the
combined capital and surplus of such corporation shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published.
(b) If at any time the Guarantee Trustee shall cease to be eligible to so act under Section
4.1(a), the Guarantee Trustee shall immediately resign in the manner and with the effect set out in
Section 4.2(c).
(c) If the Guarantee Trustee has or shall acquire any “conflicting interest” within the
meaning of Section 310(b) of the Trust Indenture Act, the Guarantee Trustee and Guarantor shall in
all respects comply with the provisions of Section 310(b) of the Trust Indenture Act.
Section 4.2. Appointment, Removal and Resignation of the Guarantee Trustee.
(a) Subject to Section 4.2(b), the Guarantee Trustee may be appointed or removed without cause
at any time by the Guarantor.
(b) The Guarantee Trustee shall not be removed until a Successor Guarantee Trustee has been
appointed and has accepted such appointment by written instrument executed by such Successor
Guarantee Trustee and delivered to the Guarantor. If an instrument of acceptance by a Successor
Guarantee Trustee shall not have been delivered to the Guarantee Trustee within 30 days after such
removal, the Guarantee Trustee being removed may petition any court of competent jurisdiction for
the appointment of a Successor Guarantee Trustee.
(c) The Guarantee Trustee appointed hereunder shall hold office until a Successor Guarantee
Trustee shall have been appointed or until its removal or resignation. The Guarantee Trustee may
resign from office (without need for prior or subsequent accounting) by an instrument in writing
executed by the Guarantee Trustee and delivered to the Guarantor, which resignation shall not take
effect until a Successor Guarantee Trustee has been appointed and has accepted such appointment by
instrument in writing executed by such Successor Guarantee Trustee and delivered to the Guarantor
and the resigning Guarantee Trustee.
(d) If no Successor Guarantee Trustee shall have been appointed and accepted appointment as
provided in this Section 4.2 within 60 days after delivery to the Guarantor of an instrument of
resignation, the resigning Guarantee Trustee may petition, at the expense of the Guarantor, any
court of competent jurisdiction for appointment of a Successor Guarantee Trustee. Such court may
thereupon, after prescribing such notice, if any, as it may deem proper, appoint a Successor
Guarantee Trustee.
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ARTICLE V.
GUARANTEE
Section 5.1. Guarantee.
The Guarantor irrevocably and unconditionally agrees to pay in full to the Holders the
Guarantee Payments (without duplication of amounts theretofore paid by or on behalf of the Issuer),
as and when due, regardless of any defense, right of set-off or counterclaim which the Issuer may
have or assert, other than defense of payment. The Guarantor’s obligation to make a Guarantee
Payment may be satisfied by direct payment of the required amounts by the Guarantor to the Holders
or by causing the Issuer to pay such amounts to the Holders.
Section 5.2. Waiver of Notice and Demand.
The Guarantor hereby waives notice of acceptance of the Guarantee Agreement and of any
liability to which it applies or may apply, presentment, demand for payment, any right to require a
proceeding first against the Guarantee Trustee, Issuer or any other Person before proceeding
against the Guarantor, protest, notice of nonpayment, notice of dishonor, notice of redemption and
all other notices and demands.
Section 5.3. Obligations Not Affected.
The obligations, covenants, agreements and duties of the Guarantor under this Guarantee
Agreement shall in no way be affected or impaired by reason of the happening from time to time of
any of the following:
(a) the release or waiver, by operation of law or otherwise, of the performance or observance
by the Issuer of any express or implied agreement, covenant, term or condition relating to the
Securities to be performed or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or any portion of the
Distributions (other than an extension of time for payment of Distributions that results from the
extension of any interest payment period on the Debentures as provided in the Indenture),
Redemption Price, Liquidation Distribution or any other sums payable under the terms of the
Securities or the extension of time for the performance of any other obligation under, arising out
of, or in connection with, the Securities;
(c) any failure, omission, delay or lack of diligence on the part of the Holders to enforce,
assert or exercise any right, privilege, power or remedy conferred on the Holders pursuant to the
terms of the Securities, or any action on the part of the Issuer granting indulgence or extension
of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of any collateral,
receivership, insolvency, bankruptcy, assignment for the benefit of creditors,
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reorganization, arrangement, composition or readjustment of debt of, or other similar
proceedings affecting, the Issuer or any of the assets of the Issuer;
(e) any invalidity of, or defect or deficiency in, the Securities;
(f) the settlement or compromise of any obligation guaranteed hereby or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise constitute a legal or equitable
discharge or defense of a guarantor, it being the intent of this Section 5.3 that the obligations
of the Guarantor hereunder shall be absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or obtain the consent of, the
Guarantor with respect to the happening of any of the foregoing.
Section 5.4. Rights of Holders.
The Guarantor expressly acknowledges that: (i) this Guarantee Agreement shall be deposited
with the Guarantee Trustee to be held for the benefit of the Holders; (ii) the Guarantee Trustee
has the right to enforce this Guarantee Agreement on behalf of the Holders; (iii) the Holders of a
Majority in aggregate Liquidation Amount of the Securities have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the Guarantee Trustee in
respect of this Guarantee Agreement or exercising any trust or power conferred upon the Guarantee
Trustee under this Guarantee Agreement; and (iv) if the Guarantee Trustee fails to enforce this
Guarantee Agreement, any Holder may institute a legal proceeding directly against the Guarantor to
enforce its rights under this Guarantee Agreement, without first instituting a legal proceeding
against the Guarantee Trustee, the Issuer or any other Person.
Section 5.5. Guarantee of Payment
This Guarantee Agreement creates a guarantee of payment and not of collection. This Guarantee
Agreement shall not be discharged except by payment of the Guarantee Payments in full (without
duplication of amounts theretofore paid by the Issuer) or upon distribution of Debentures to
Holders as provided in the Trust Agreement.
Section 5.6. Subrogation.
The Guarantor shall be subrogated to all (if any) rights of the Holders against the Issuer in
respect of any amounts paid to the Holders by the Guarantor under this Guarantee Agreement and
shall have the right to waive payment by the Issuer pursuant to Section 5.1; provided, however,
that the Guarantor shall not (except to the extent required by mandatory provisions of law) be
entitled to enforce or exercise any rights which it may acquire by way of subrogation or any
indemnity, reimbursement or
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other agreement, in all cases as a result of payment under this Guarantee Agreement, if, at
the time of any such payment, any amounts are due and unpaid under this Guarantee Agreement. If any
amount shall be paid to the Guarantor in violation of the preceding sentence, the Guarantor agrees
to hold such amount in trust for the Holders and to pay over such amount to the Holders.
Section 5.7. Independent Obligations.
The Guarantor acknowledges that its obligations hereunder are independent of the obligations
of the Issuer with respect to the Securities and that the Guarantor shall be liable as principal
and as debtor hereunder to make Guarantee Payments pursuant to the terms of this Guarantee
Agreement notwithstanding the occurrence of any event referred to in subsections (a) through (g),
inclusive, of Section 5.3 hereof.
ARTICLE VI.
COVENANTS AND SUBORDINATION
Section 6.1. Subordination.
The obligations of the Guarantor under this Guarantee Agreement shall constitute unsecured
obligations of the Guarantor and shall rank subordinate and junior in right of payment to all
Senior Debt (as defined in the Indenture with respect to the series of Debentures issued thereunder
in respect of the Capital Securities) of the Guarantor, except those made pari passu or subordinate
to such obligations expressly by their terms in the same manner as set forth in Article XIII of the
Indenture.
ARTICLE VII.
TERMINATION
Section 7.1. Termination.
This Guarantee Agreement shall terminate and be of no further force and effect upon (i) full
payment of the Redemption Price of all Securities, (ii) the distribution of Debentures to the
Holders in exchange for all of the Securities or (iii) full payment of the amounts payable in
accordance with the Trust Agreement upon liquidation of the Issuer. Notwithstanding the foregoing,
this Guarantee Agreement shall continue to be effective or shall be reinstated, as the case may be,
if at any time any Holder must restore payment of any sums paid with respect to Securities or this
Guarantee Agreement.
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ARTICLE VIII.
MISCELLANEOUS
Section 8.1. Successors and Assigns.
All guarantees and agreements contained in this Guarantee Agreement shall bind the successors,
assigns, receivers, trustees and representatives of the Guarantor and shall inure to the benefit of
the Holders of the Securities then outstanding. Except in connection with a consolidation, merger
or sale involving the Guarantor that is permitted under Article VIII of the Indenture and pursuant
to which the successor or assignee agrees in writing to perform the Guarantor’s obligations
hereunder, the Guarantor shall not assign its obligations hereunder.
Section 8.2. Amendments.
Except with respect to any changes which do not adversely affect the rights of the Holders or
the Guarantee Trustee in any material respect (in which case no consent of the Holders or the
Guarantee Trustee, as the case may be, shall be required), this Guarantee Agreement may only be
amended with the prior approval of the Holders of not less than a Majority in aggregate Liquidation
Amount of all the outstanding Securities. The provisions of Article VI of the Trust Agreement
concerning meetings of the Holders shall apply to the giving of such approval. In addition, no
amendment may be made to this Guarantee Agreement to the extent such amendment would affect the
rights or obligations of the Guarantee Trustee without the prior approval of the Guarantee Trustee.
Section 8.3. Notices.
Any notice, request or other communication required or permitted to be given hereunder shall
be in writing, duly signed by the party giving such notice, and delivered, telecopied or mailed by
first class mail as follows:
(a) if given to the Guarantor, to the address set forth below or such other address or to the
attention of such other Person as the Guarantor may give notice to the Holders:
Countrywide Financial Corporation
0000 Xxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
0000 Xxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
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(b) if given to the Guarantee Trustee, to the address set forth below or such other address,
facsimile number or to the attention of such other Person as the Guarantee Trustee may give notice
to the Holders:
The Bank of New York
000 Xxxxxxx Xxxxxx, Xxxxx 0 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration
Facsimile No.: (000) 000-0000
000 Xxxxxxx Xxxxxx, Xxxxx 0 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration
Facsimile No.: (000) 000-0000
(c) if given to any Holder, at the address set forth on the books and records of the Issuer.
All notices hereunder shall be deemed to have been given when received in person, telecopied
with receipt confirmed, or mailed by first class mail, postage prepaid, except that if a notice or
other document is refused delivery or cannot be delivered because of a changed address of which no
notice was given, such notice or other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
Section 8.4. Benefit.
This Guarantee Agreement is solely for the benefit of the Holders and is not separately
transferable from the Securities.
Section 8.5.Interpretation.
In this Guarantee Agreement, unless the context otherwise requires:
(a) capitalized terms used in this Guarantee Agreement but not defined in the preamble hereto
have the respective meanings assigned to them in Section 1.1;
(b) a term defined anywhere in this Guarantee Agreement has the same meaning throughout;
(c) all references to “the Guarantee Agreement” or “this Guarantee Agreement” are to this
Guarantee Agreement as modified, supplemented or amended from time to time;
(d) all references in this Guarantee Agreement to Articles and Sections are to Articles and
Sections of this Guarantee Agreement unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning when used in this Guarantee
Agreement unless otherwise defined in this Guarantee Agreement or unless the context otherwise
requires;
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(f) a reference to the singular includes the plural and vice versa; and
(g) the masculine, feminine or neuter genders used herein shall include the masculine,
feminine and neuter genders.
Section 8.6. Governing Law.
THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPALS).
This instrument may be executed in any number of counterparts, each of which so executed shall
be deemed to be an original, but all such counterparts shall together constitute but one and the
same instrument.
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THIS GUARANTEE AGREEMENT is executed as of the day and year first above written.
| COUNTRYWIDE FINANCIAL CORPORATION | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| THE BANK OF NEW YORK as Guarantee Trustee |
||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
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