EXHIBIT 1.3
Countrywide Home Loans, Inc.
U.S. $7,000,000,000
Medium-Term Notes, Series K
Due Nine Months or More
From Date of Issue
Payment of Principal, Premium, if any, and Interest
Fully and Unconditionally Guaranteed by
Countrywide Credit Industries, Inc.
SELLING AGENCY AGREEMENT
[__], 2001
▇▇▇▇▇▇ Brothers Inc. ABN AMRO Incorporated
[3 World Financial Center ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇] ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Banc of America Securities LLC Barclays Capital Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇-▇▇▇-07-01 ▇▇▇ ▇▇▇▇▇▇▇▇
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Bear, ▇▇▇▇▇▇▇ & Co. Inc. Credit Suisse First Boston Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Deutsche Banc ▇▇▇▇. ▇▇▇▇▇ Inc. ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇▇▇▇ Securities Inc. ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ 4 World Financial Center
New York, New York 10080
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
UBS PaineWebber Inc. Countrywide Securities Corporation
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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. $7,000,000,000
aggregate initial offering price of its Medium-Term Notes, Series K, Due Nine
Months or More from Date of Issue (the "Notes"). The Notes will be fully and
unconditionally guaranteed as to payment of principal, premium, if any, and
interest (the "Guarantees") by Countrywide Credit Industries, Inc. (the
"Guarantor"). The Notes and the Guarantees will be issued under an indenture,
dated as of , 2001 (the "Indenture"), among the Company, the Guarantor
and The Bank of New York, as trustee (the "Trustee"). Unless otherwise specified
in the Pricing Supplement referred to below, the Notes will be issued in minimum
denominations of U.S. $1,000 and in denominations exceeding such amount by
integral multiples of U.S. $1,000, and if denominated in a currency or currency
unit other than U.S. dollars, the equivalent in such other currency or currency
unit (the "Specified Currency") as determined in accordance with the Indenture,
of U.S. $1,000 (rounded down to an integral multiple of 1,000 units of such
Specified Currency) and any larger amount that is an integral multiple of 1,000
units of such Specified Currency, will be issued only in fully registered
certificated or book-entry form, and will be issued in the currency or currency
units and will have the maturities, annual interest rates (whether fixed or
floating), redemption provisions and other terms set forth in a pricing
supplement (the "Pricing Supplement") to the Prospectus referred to below. The
Notes will be issued, and the terms thereof established, in accordance with the
Indenture and the Medium-Term Note Administrative Procedures attached hereto as
Exhibit A (the "Procedures"). The Procedures may only be amended by written
agreement of the Company and each Agent after notice to, and in the case of
amendments which affect the rights, duties or obligations of the Trustee, with
the approval of, the Trustee.
1. Representations and Warranties. The Company and the Guarantor,
jointly and severally, represent and warrant to, and agree with, each Agent
that:
(a) The Company and the Guarantor meet the requirements
for use of Form S-3 under the Securities Act of 1933, as amended
(the "Act") and rules and regulations ("Rules and Regulations")
of the Securities and Exchange Commission (the "Commission")
promulgated thereunder and, together with Countrywide Capital IV
and Countrywide Capital V have filed with the Commission a
registration statement on Form S-3 (File Nos. 333-[_____] and
333-[_____]-01 and 333-[_____]-02 and 333-[_____]-03) (the
"Registration Statement"), and a related preliminary prospectus
for the registration under the Act of certain securities,
including the Notes and the Guarantees (collectively, the
"Securities") and the offering thereof from time to time in
accordance with Rule 415 of the Rules and Regulations, which
Registration Statement has been declared effective by the
Commission and copies of which have heretofore been delivered to
you. Such Registration Statement, as it may be amended or
supplemented, meets the requirements set forth in Rule
415(a)(1)(x) and (a)(2) of the Rules and Regulations and complies
in all other material respects with said Rule. In connection with
the sale of Notes, the Company and the Guarantor propose to file
with the Commission pursuant to Rule 424 under the Act a
supplement to the form of prospectus included in such
Registration Statement relating to the Notes and the Guarantees
and the plan of distribution thereof and
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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 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
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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) ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, whose reports have been included
in the Prospectus and incorporated by reference or included in
the Guarantor's most recent Annual Report on Form 10-K, which is
incorporated by reference in the Prospectus, are independent
public accountants as required by the Act and the Rules and
Regulations.
(f) (i) The Indenture has been duly authorized, executed
and delivered by the Company and the Guarantor and constitutes
the legally binding obligation of the Company and the Guarantor,
respectively, enforceable in accordance with its terms subject to
bankruptcy, insolvency, reorganization, fraudulent transfer,
fraudulent conveyance, moratorium or other laws affecting
creditors' rights generally and general principles of equity,
(ii) on any Settlement Date, the Notes will have been duly
authorized and, upon payment therefor as provided in this
Agreement, will constitute legally binding obligations of the
Company enforceable in accordance with their terms subject to
bankruptcy, insolvency, reorganization, fraudulent transfer,
fraudulent conveyance, moratorium or other laws affecting
creditors' rights generally and general principles of equity and
the holders of the Notes will be entitled to the benefits of
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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 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
5
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.
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.
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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 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
7
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 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 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 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:
8
(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
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
9
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 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
10
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.
(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
11
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 ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ 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 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 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, ▇▇▇▇▇
▇▇▇▇▇▇▇▇ LLP may limit the scope of such letter, which shall be
satisfactory in form to such Agent, to the unaudited financial
statements included in such amendment or supplement, unless any
other information included or incorporated by reference therein
of an accounting, financial or statistical nature is of such a
nature that, in such Agent's reasonable judgment, such letter
should cover such other information.
12
(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 ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP,
counsel to the Company and the Guarantor, dated the date hereof,
substantially as set forth below, with such additional
qualifications and exceptions as shall be acceptable to the
agents and their counsel:
(i) Each of the Company and the Guarantor is a
corporation duly incorporated, validly existing and in
good standing under the laws of the state of its
incorporation and has the corporate power and authority to
own its properties and to conduct its business as
described in the Prospectus.
(ii) The Company and the Guarantor have the
corporate power and authority to enter into this Agreement
and the Terms Agreement (if applicable), and this
Agreement and the Terms Agreement (if applicable) have
been duly and validly authorized, executed and delivered
by the Company and the Guarantor, respectively.
(iii) The form and general terms of the Notes have
been duly and validly authorized and established in
conformity with the provisions of the Indenture by all
necessary corporate action by the Company, and when the
particular terms of the Notes have been duly established
in accordance with the provisions of the Indenture, the
Procedures and the resolutions of the Board of Directors
of the Company and such Notes have been duly executed,
authenticated and delivered against payment therefor in
accordance with the provisions of the Indenture, the
Procedures and this Agreement, will constitute the legal,
valid and binding obligations of the
13
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.
(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
14
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 "Certain Federal
Income Tax Consequences", insofar as such statements
constitute a summary of the legal matters referred to
therein, fairly present the information disclosed therein
in all material respects, (ii) the conformity in all
material respects of the Notes (in the forms certified to
by an authorized officer of the Company) to the statements
relating thereto in the Prospectus, and (iii) the
conformity in all material respects of the Indenture and
the Guarantees to the statements relating thereto in the
Prospectus under the captions "Description of Notes" and
"Description of Debt Securities of Countrywide Home Loans
and Related Guarantees of Countrywide Credit Industries."
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 ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ & ▇▇▇▇ LLP being delivered to the agents as of the date thereof
and (C) as to matters of fact, to the extent they deem proper, on
certificates and oral or written statements and other information of or
from public officials and officers and representatives of the Company,
the Guarantor, their respective subsidiaries and others.
In rendering the opinions set forth in paragraphs (iii) and (iv),
such counsel may state that such opinions are subject to the following:
(i) bankruptcy, insolvency, reorganization, fraudulent transfer,
fraudulent conveyance, moratorium or other laws now or hereafter in
effect affecting creditors' rights generally; and (ii) general
principles of equity (including, without limitation, standards of
materiality, good faith, fair dealing and reasonableness) whether such
principles are considered in a proceeding in equity or at law.
16
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 ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General Counsel of
the Company and the Guarantor, dated the date hereof, substantially as
set forth below, with such additional qualifications and exceptions as
shall be acceptable to the agents and their counsel:
(i) Each Subsidiary, if any, is a corporation, duly
incorporated, validly existing and in good standing under the
laws of the state of its incorporation, with the corporate power
and authority to own its properties and to conduct its business
as described in the Prospectus.
(ii) Each of the Company, the Guarantor and the
Subsidiaries is duly qualified to do business as a foreign
corporation and is in good standing under the laws of each
jurisdiction which requires such qualification wherein it owns or
leases material properties or conducts material business other
than jurisdictions in which the failure to so qualify, when
considered in the aggregate and not individually, would not have
a material adverse effect on the Company or the Guarantor and its
Subsidiaries considered as one enterprise.
(iii) All the outstanding shares of capital stock of the
Company and each Subsidiary have been duly and validly authorized
and issued and are fully paid and nonassessable, and, except as
otherwise set forth in the Prospectus, all outstanding shares of
capital stock of the Company and the Subsidiaries are owned by
the Guarantor either directly or through wholly owned
subsidiaries free and clear of any perfected security interest
and, to the knowledge of such counsel, after due inquiry, any
other security interests, claims, liens or encumbrances.
(iv) The outstanding shares of common stock of the
Guarantor have been duly and validly authorized and issued and
are fully paid and nonassessable.
(v) Neither the issue and sale of the Notes, the
compliance by the Company and the Guarantor with all the
provisions of this Agreement, the
17
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 ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ &
Wood LLP, counsel for the agents, such opinion or opinions, dated the
date hereof, with respect to the issuance and sale of the Notes and
related Guarantees, this Agreement, the Indenture, the Registration
Statement, the Prospectus and other related matters as such agent may
reasonably require, and the Company and the Guarantor shall have
furnished to such counsel such documents as they request for the purpose
of enabling them to pass upon such matters.
(e) The Company and the Guarantor shall have each furnished to
such agent a certificate of its President, a Managing Director or a Vice
President and its Treasurer or an Assistant Treasurer, dated the date
hereof, to the effect that the signers of such
18
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, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP shall have furnished
to such agent a letter or letters (which may refer to letters previously
delivered to such agent), dated as of the date hereof, in form and
substance satisfactory to such agent, confirming that they are
independent accountants within the meaning of the Act and the Exchange
Act and the respective applicable published rules and regulations
thereunder and stating in effect that:
(i) in their opinion the audited consolidated financial
statements and financial statement schedules included or
incorporated in the Registration Statement and the Prospectus and
reported on by them comply as to form in all material respects
with the applicable accounting requirements of the Act and the
Exchange Act and the related published rules and regulations;
(ii) on the basis of a reading of the latest unaudited
consolidated financial statements made available to them;
carrying out certain specified procedures (which shall include,
without limitation, the procedures specified by the American
Institute of Certified Public Accountants for a review of interim
financial information as described in SAS No. 71, Interim
Financial Information, with respect to such unaudited
consolidated financial statements included or incorporated by
reference in the Registration Statement or the Prospectus); a
reading of the minutes of the meetings of the stockholders,
directors and standing committees thereof; and inquiries of
certain officials who have responsibility for financial and
accounting matters as to transactions and events subsequent to
the date of the most recent audited financial statements included
or incorporated in the Prospectus, nothing came to their
attention which caused them to believe that:
19
(1) any unaudited financial statements
included or incorporated in the Registration
Statement and the Prospectus do not comply as to
form in all material respects with applicable
accounting requirements of the Exchange Act as they
apply to quarterly reports on Form 10-Q or that any
material modifications should be made to said
unaudited financial statements for them to be in
conformity with generally accepted accounting
principles;
(2) with respect to the period subsequent to
the date of the most recent financial statements
(other than any capsule information), audited or
unaudited, in or incorporated in the Registration
Statement and the Prospectus, there was any change,
at a specified date not more than three business
days prior to the date of the letter, in the
capital stock or long and intermediate term debt of
the Company or the Guarantor and its subsidiaries
taken as a whole or any decreases in the
shareholders' equity or consolidated net assets as
compared with the amounts shown on the most recent
consolidated balance sheet included or incorporated
in the Registration Statement and the Prospectus,
or for the period from the date of the most recent
financial statements included or incorporated in
the Registration Statement and the Prospectus to
such specified date there were any decreases, as
compared with the corresponding period in the
preceding year in consolidated revenues (net of
interest charges), earnings before income taxes or
net earnings of the Company or the Guarantor and
its subsidiaries, except in all instances for
changes or decreases set forth in such letter; or
(3) the amounts included in any unaudited
"capsule" information included or incorporated in
the Registration Statement and the Prospectus do
not agree with the amounts set forth in the
unaudited financial statements for the same periods
or were not determined on a basis substantially
consistent with that of the corresponding amounts
in the audited financial statements included or
incorporated in the Registration Statement and the
Prospectus;
(iii) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature set
forth in the Registration Statement and the Prospectus and in
Exhibit 12 to the Registration Statement, the information
included or incorporated in Items 1, 2, 6, 7 and 11 of the
Guarantor's Annual Report on Form 10-K (and, if filed, the
Company's Annual Report on Form 10-K), incorporated in the
Registration Statement and the Prospectus and the information
included in the "Management's Discussion and Analysis of
Financial Condition and Results of Operations" included or
incorporated in the Company's or the Guarantor's Quarterly
Reports on Form 10-Q incorporated in the Registration Statement
and the Prospectus, agrees with the accounting records of the
Company, the Guarantor
20
and their respective subsidiaries, excluding any questions of
legal interpretation; and
(iv) if pro forma financial statements are included or
incorporated in the Registration Statement and the Prospectus, on
the basis of a reading of the unaudited pro forma financial
statements, carrying out certain specified procedures, inquiries
of certain officials of the Company or the Guarantor, as the case
may be, who have responsibility for financial and accounting
matters, and proving the arithmetic accuracy of the application
of the pro forma adjustments to the historical amounts in the pro
forma financial statements, nothing came to their attention which
caused them to believe that the pro forma financial statements do
not comply in form in all material respects with the applicable
accounting requirements of Rule 11-02 of Regulation S-X or that
the pro forma adjustments have not been properly applied to the
historical amounts in the compilation of such statements.
References to the Registration Statement and the Prospectus in
this paragraph (f) are to such documents as amended and supplemented at
the date of the letter.
(g) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus (as amended or
supplemented, in the case of a Terms Agreement, but exclusive of any
amendment or supplement subsequent to the date of execution of such
Terms Agreement) there shall not have been (i) any change or decrease
specified in the letter or letters referred to in paragraph (f) of this
Section 5 or (ii) any change, or any development involving a prospective
change, in or affecting the business or properties of the Company, the
Guarantor and their respective subsidiaries the effect of which, in any
case referred to in clause (i) or (ii) above, is, in the judgment of
such Agent, so material and adverse as to make it impractical or
inadvisable to proceed with the soliciting of offers to purchase the
Notes as contemplated by the Registration Statement and the Prospectus
(or, in the case of a Terms Agreement, to proceed with the offering or
the delivery of the Notes to be purchased as contemplated by the Terms
Agreement).
(h) Prior to the date hereof, the Company and the Guarantor shall
have furnished to such agent such further information, certificates and
documents as such agent may reasonably request.
(i) Prior to the date hereof, the Notes shall have been rated,
and on the date hereof the Notes shall be rated, at least BBB- by
Standard & Poor's Ratings Services, a division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc. ("S&P") and Baa3 by ▇▇▇▇▇'▇ 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
21
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 ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, 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 ▇▇▇▇▇▇, ▇▇▇▇▇▇ &
▇▇▇▇▇ 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 ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, General Counsel to the Company and the Guarantor, dated as of
the Purchase Date, to the effect set forth in Section 5(c), as modified
such that such counsel shall state that no facts have come to such
counsel's attention that have caused it to believe that the Registration
Statement, at the time it became effective and, if subsequently filed,
as of the date of the Guarantor's Annual Report on Form 10-K (and, if
filed, the Company's Annual Report on Form 10-K), contained an untrue
statement of material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, (iv) the opinion or opinions of ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Purchaser, dated as of the Purchase
Date, to the effect set forth in Section 5(d), (v) letter of ▇▇▇▇▇
▇▇▇▇▇▇▇▇ LLP, dated as of the Purchase Date, to the effect set forth in
Section 5(f), and (vi) bringdown letter of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, dated as
of the related Settlement Date.
(c) The conditions set forth in Section 5(g) shall have been
satisfied.
22
(d) Prior to the Purchase Date, the Company and the Guarantor
shall have furnished to the Purchaser such further information,
certificates and documents as the Purchaser may reasonably request.
(e) Prior to and at the Purchase Date, the Notes shall have been
rated at least BBB- by S&P and Baa3 by Moody's.
(f) Subsequent to the execution of any Terms Agreement and prior
to the Purchase Date pursuant to such Terms Agreement, the rating
assigned by S&P or Moody's to any debt securities of the Company or the
Guarantor has not been lowered and neither S&P nor Moody's has publicly
announced that it has under surveillance or review, with possible
negative implications, its rating of any debt securities of the Company
or the Guarantor.
If any of the conditions specified in this Section 6 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Purchaser and its counsel, this Agreement and all
obligations of the Purchaser hereunder may be canceled at, or at any time prior
to, the respective Purchase Date by the Purchaser. Notice of such cancellation
shall be given to the Company or the Guarantor in writing or by telephone or
telegraph confirmed in writing.
7. Reimbursement of the Agent's Expenses. If any condition to the
obligations of any Agent set forth in Section 5 hereof is not satisfied, if any
condition to the obligations of a Purchaser set forth in Section 6 hereof is not
satisfied, if any termination pursuant to Section 9 hereof shall occur or in the
case of any refusal, inability or failure on the part of the Company or the
Guarantor to perform any agreement herein or comply with any provision hereof
other than by reason of a default by an Agent, the Company and the Guarantor
will reimburse such Agent upon demand for all expenses that shall have been
incurred by such Agent pursuant to Section 4(g) hereof in connection with this
Agreement.
8. Indemnification and Contribution. (a) The Company and the Guarantor,
jointly and severally, agree to indemnify and hold harmless each Agent and each
person who controls such Agent within the meaning of either the Act or the
Exchange Act against any and all losses, claims, damages or liabilities, joint
or several, to which such Agent or any of them may become subject under the Act,
the Exchange Act or other federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement for the registration of the Notes as originally filed or
in any amendment thereof, or in the Prospectus or any preliminary Prospectus, or
in any amendment thereof or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and agrees to reimburse each such indemnified party, as incurred, for any legal
or other expenses reasonably incurred by them in 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
23
untrue statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written information
furnished to the Company or the Guarantor by or on behalf of such Agent
specifically for use in connection with the preparation thereof, and (ii) such
indemnity with respect to any preliminary Prospectus or any Prospectus as
supplemented or amended shall not inure to the benefit of any Agent (or any
person controlling such Agent) from whom the person asserting any such loss,
claim, damage or liability purchased the Notes which are the subject thereof if
such Agent (or any person controlling such Agent) received a copy of such
Prospectus (or such Prospectus as so amended or supplemented) and such person
did not receive a copy of the Prospectus (or the Prospectus as amended or
supplemented) excluding documents incorporated therein by reference at or prior
to the confirmation of the sale of such Notes to such person in any case where
such delivery is required by the Act and the untrue statement or omission or the
alleged untrue statement or omission was corrected in the Prospectus (or the
Prospectus as amended or supplemented). This indemnity agreement will be in
addition to any liability which the Company or the Guarantor may otherwise have.
(b) Each Agent agrees to indemnify and hold harmless the Company and the
Guarantor, their respective directors, each of their officers who sign the
Registration Statement, and each person who controls the Company or the
Guarantor within the meaning of either the Act or the Exchange Act, to the same
extent as the foregoing indemnity from the Company and the Guarantor to such
Agent, but only with reference to written information relating to such Agent
furnished to the Company or the Guarantor by or on behalf of such Agent
specifically for use in the preparation of the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to any
liability which such Agent may otherwise have. The Company and the Guarantor
acknowledge that the statements set forth in the last sentence of paragraph five
and paragraphs six, seven, eight and ten under the heading "Plan of Distribution
of Notes," insofar as it relates to such Agent, in the Prospectus constitute the
only information furnished in writing by or on behalf of such Agent for
inclusion in the documents referred to in the foregoing indemnity, and you
confirm that such statements are correct.
(c) Promptly after receipt by an indemnified party under this Section 8
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve the
indemnifying party from any liability which it may have to any indemnified party
hereunder, except and to the extent of any prejudice to such indemnifying party
arising from such failure to provide notice, and will not, in any event, relieve
the indemnifying party from any liability which it may have to any indemnified
party other than under this Section 8. In case any such action is brought
against any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein, and to the extent that it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof, with 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
24
counsel to assert such legal defenses and to otherwise participate in the
defense of such action on behalf of such indemnified party or parties. Upon
receipt of notice from the indemnifying party to such indemnified party of its
election so to assume the defense of such action and approval by the indemnified
party of counsel, the indemnifying party will not be liable to such indemnified
party under this Section 8 for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof, unless (i) the
indemnified party shall have employed separate counsel in connection with the
assertion of legal defenses in accordance with the proviso to the next preceding
sentence (it being understood, however, that the indemnifying party shall not be
liable for the expenses of more than one separate counsel, approved by the
Agents in the case of paragraph (a) of this Section 8, representing the
indemnified parties under such paragraph (a) who are parties to such action),
(ii) the indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of commencement of the action or (iii) the indemnifying party has
authorized the employment of counsel for the indemnified party at the expense of
the indemnifying party; and except that, if clause (i) or (iii) is applicable,
such liability shall be only in respect of the counsel referred to in such
clause (i) or (iii).
(d) If the indemnification provided for in this Section 8 is unavailable
to or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or actions
in respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable to such indemnified party as a result
of such losses, claims, damages, or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received
by the Company and the Guarantor on the one hand and each Agent on the other
from the offering of the Notes to which such loss, claim, damage or liability
(or action in respect thereof) relates. If, however, the allocation provided by
the immediately preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under subsection (c) above,
then each indemnifying party shall contribute to such amount paid or payable by
such indemnified party in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of the Company and the
Guarantor on the one hand and each Agent on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company and the
Guarantor on the one hand and each Agent on the other shall be deemed to be in
the same proportion as the total net proceeds from such offering (before
deducting expenses) received by the Company bear to the total commissions
received by each Agent. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company or the Guarantor on the one hand or any
Agent on the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or 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
25
(d) shall be deemed to include any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this subsection (d), no Agent
shall be required to contribute any amount in excess of the amount of commission
or discount received by it in connection with the offering of the Notes that
were the subject of the claim for indemnification. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The obligations of the Agents in this subsection
(d) to contribute are several in proportion to their respective underwriting
obligations with respect to such Notes and not joint.
9. Termination. This Agreement will continue in effect until terminated
as provided in this Section 9.
(a) This Agreement may be terminated by either the Company or any
Agent giving written notice of such termination to the other party
hereto. This Agreement shall so terminate at the close of business on
the first business day following the receipt of such notice by the party
to whom such notice is given. This Agreement may be terminated as to one
or more of the Agents, and to the extent not terminated with respect to
any Agent, this Agreement shall remain in full force and effect as
between the Company and any such Agent. In the event of such
termination, no party shall have any liability to the other party
hereto, except as provided in the fourth paragraph of Section 2(a),
Section 4(g), Section 7, Section 8 and Section 10 and except that if
terminated between the date of acceptance of an offer and the Settlement
Date or Purchase Date, Section 4, Section 5 and Section 6 shall also
survive with respect to such sale.
(b) Each Terms Agreement shall be subject to termination in the
absolute discretion of the Purchaser, by notice given to the Company and
the Guarantor prior to delivery of and payment for Notes to be purchased
thereunder, if prior to such time (i) trading in securities generally,
or in the securities of the Guarantor, on the New York Stock Exchange
shall have been suspended or limited or minimum prices shall have been
established on such exchange or a material disruption has occurred in
commercial banking or securities settlement or clearance services in the
United States, (ii) a banking moratorium shall have been declared by
either federal or New York State authorities or, in the case of Notes
denominated in other than U.S. dollars, by the authorities of the
country of the currency in which such Notes are so denominated or (iii)
there shall have occurred any outbreak or material escalation of
hostilities or other calamity or crisis the effect of which on the
financial markets of the United States or in the country or countries of
origin of any foreign currency or currency unit in which the Notes are
denominated, indexed or payable is such as to make it, in the judgment
of the Purchaser, impracticable or inadvisable to market such Notes.
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
26
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 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
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 CREDIT INDUSTRIES, INC.
By:
-----------------------------------------
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as
of the date hereof.
▇▇▇▇▇▇ BROTHERS INC.
By:
------------------------------
Title:
ABN AMRO INCORPORATED
By:
------------------------------
Title:
BANC OF AMERICA SECURITIES LLC
By:
------------------------------
Title:
BARCLAYS CAPITAL INC.
By:
------------------------------
Title:
28
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
By:
------------------------------
Title:
CREDIT SUISSE FIRST BOSTON CORPORATION
By:
------------------------------
Title:
DEUTSCHE BANC ALEX. BROWN INC.
By: By:
------------------------------ ----------------------------------
Title: Title:
---------------------------------
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
By:
------------------------------
Title:
▇▇▇▇▇▇▇ LYNCH, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By:
------------------------------
Title:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
By:
------------------------------
Title:
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
By:
------------------------------
Title:
29
UBS PAINEWEBBER INC.
By:
------------------------------
Title:
COUNTRYWIDE SECURITIES CORPORATION
By:
------------------------------
Title:
30
SCHEDULE 1
Selling Agency Agreement dated [__], 2001
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 ▇▇▇▇▇▇ Brothers Inc. shall be directed to it at [▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, 9th Floor, New York, New York 10285, Attention: Medium-Term
Note Desk, Fax: (▇▇▇) ▇▇▇-▇▇▇▇].
Notices to ABN AMRO Incorporated shall be directed to it at ▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇, Fax: (212)
▇▇▇-▇▇▇▇.
Notices to Banc of America Securities LLC shall be directed to it at ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇▇-▇▇▇-07-01, Attention: Product
Management, Fax: (▇▇▇) ▇▇▇-▇▇▇▇.
Notices to Barclays Capital Inc. shall be directed to it at ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: [______________], Fax: (212)
[__________].
Notices to Bear, ▇▇▇▇▇▇▇ & Co. Inc. shall be directed to it at ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: [______________], Fax: (212)
[__________].
Notices to Credit Suisse First Boston Corporation shall be directed to
it at ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
[______________], Fax: (212) [__________].
Notices to Deutsche Banc ▇▇▇▇. ▇▇▇▇▇ Inc. shall be directed to it at ▇▇
▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇, Fax: (212)
▇▇▇-▇▇▇▇.
Notices to ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. shall be directed to it at ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, Fax: (212)
▇▇▇-▇▇▇▇.
Notices to ▇.▇. ▇▇▇▇▇▇ Securities Inc. shall be directed to it at ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Medium-Term Note
Desk, Fax: (▇▇▇) ▇▇▇-▇▇▇▇.
Notices to ▇▇▇▇▇▇▇ Lynch, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated shall be
directed to it at ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ Floor, New York, New York
10080, Attention: MTN Product Management, Fax: (▇▇▇) ▇▇▇-▇▇▇▇.
Notices to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated shall be directed to it at
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Manager,
Continuously Offered Products, Fax: (▇▇▇) ▇▇▇-▇▇▇▇; with a copy to ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇,
Investment Banking Information Center, Fax: (▇▇▇) ▇▇▇-▇▇▇▇.
Notices to ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. shall be directed to it at ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Medium-Term Note
Department, Fax: (▇▇▇) ▇▇▇-▇▇▇▇.
32
Notices to UBS PaineWebber Inc. shall be directed to it at ▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: [______________], Fax: (212)
[__________].
Notices to Countrywide Securities Corporation, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇-▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇ ▇'▇▇▇▇▇▇▇▇, Fax: (818)
▇▇▇-▇▇▇▇.
33
EXHIBIT A
COUNTRYWIDE HOME LOANS, INC.
MEDIUM-TERM NOTE
ADMINISTRATIVE PROCEDURES
[__], 2001
Medium-Term Notes, Series K, 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"). ▇▇▇▇▇▇ Brothers Inc., ABN AMRO Incorporated, Banc of
America Securities LLC, Barclays Capital Inc., Bear, ▇▇▇▇▇▇▇ & Co. Inc., Credit
Suisse First Boston Corporation, Deutsche Banc ▇▇▇▇. ▇▇▇▇▇ Inc., ▇▇▇▇▇▇▇, ▇▇▇▇▇
& Co., ▇.▇. ▇▇▇▇▇▇ Securities Inc., ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce,
▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Inc., UBS PaineWebber Inc. and Countrywide Securities Corporation (each
individually, an "Agent", and collectively, the "Agents"), have agreed to
solicit purchases of the Notes. The Agents will not be obligated to purchase
Notes as principal. The Notes are being sold pursuant to a Selling Agency
Agreement among the Company, Countrywide Credit Industries, Inc. (the
"Guarantor") and the Agents dated [__], 2001 (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 , 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 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
34
persons handling administrative responsibilities with whom the Agents
and the Trustee are to communicate regarding offers to purchase Notes and the
details of their delivery.
Administrative procedures and specific terms of the offering are
explained below. To the extent the procedures set forth below conflict with the
provisions of the Notes, the Indenture or the Agency Agreement, the relevant
provisions of the Notes, the Indenture and the Agency Agreement shall control.
PART I: ADMINISTRATIVE PROCEDURES FOR CERTIFICATED NOTES
Maturities: Each Certificated Note will mature on a date
(the "Stated Maturity Date") nine months or
more after the date of delivery by the
Company of such Certificated Note (the
"Settlement Date"), subject to any
applicable provisions relating to redemption
or repayment or the extension of maturity.
Price to Public: Each Certificated Note will be issued at the
percentage of principal amount specified in
the Prospectus.
Currencies: The Certificated Notes will be denominated
in U.S. dollars or in such other currency or
currency unit as is specified in the
Prospectus (the "Specified Currency").
Denominations: Except as set forth in the Certificated
Note, the denomination of any Certificated
Note will be a minimum of U.S. $1,000 or any
amount in excess thereof which is an
integral multiple of U.S. $1,000 or, in a
Specified Currency other than U.S. dollars,
of the equivalent of U.S. $1,000 and any
amount in excess thereof which is an
integral multiple of the equivalent of U.S.
$1,000, as determined pursuant to the
provisions of the Indenture.
Registration: Certificated Notes will be issued only in
fully registered form.
Interest Payments: Except as set forth in the Certificated
Note, each Certificated Note which is a
Fixed Rate Note will bear interest from the
Settlement Date of such Certificated Note at
the annual rate stated on the face thereof,
payable semiannually on January 15 and July
15 of each year (each, an "Interest Payment
Date") and on the Stated Maturity 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
35
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 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
36
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 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
37
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
▇▇▇▇▇▇ Brothers Inc., to ▇▇▇▇▇▇ Brothers
Inc., [3 World Financial Center, 9th Floor,
New York, New York 10285, attention
Medium-Term Note Desk, telephone no. (212)
526-8400, telecopier no. (▇▇▇) ▇▇▇-▇▇▇▇]; if
to ABN AMRO Incorporated, to [ABN AMRO
Incorporated , ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, attention:
[__________], telephone no. [__________],
telecopier no. [__________]]; if to Banc of
America Securities LLC to The Bank of New
York, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ Floor, Dealers
Clearance, Window B, A/C Banc of America
Securities LLC; if to Barclays Capital Inc.
to [Barclays Capital Inc., ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, attention:
[__________], telephone no. [__________],
telecopier no. [__________]]; if to Bear,
▇▇▇▇▇▇▇ & Co. Inc., to [Bear, ▇▇▇▇▇▇▇ & Co.
Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, attention: [__________], telephone
no. [__________], telecopier no.
[__________]]; if to Credit Suisse First
Boston Corporation, to [Credit Suisse First
Boston Corporation, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, attention:
[__________], telephone no. [__________],
telecopier no. [__________]]; if to Deutsche
Banc ▇▇▇▇. ▇▇▇▇▇ Inc. to Deutsche Banc ▇▇▇▇.
▇▇▇▇▇ Inc., ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ of ▇▇▇▇▇ ▇▇▇▇▇,
telephone no. (▇▇▇) ▇▇▇-▇▇▇▇, telecopier no.
(▇▇▇) ▇▇▇-▇▇▇▇, with a copy to Deutsche Banc
▇▇▇▇. ▇▇▇▇▇ Inc., c/o ADP Prospectus, ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ of ▇▇▇▇▇▇ ▇▇▇▇▇, telephone no.
(▇▇▇) ▇▇▇-▇▇▇▇, telecopier no. (516)
254-7134; if to ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., to
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, attention
of ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, telephone no. (212)
902-1482, telecopier no. (▇▇▇) ▇▇▇-▇▇▇▇; if
to ▇.▇. ▇▇▇▇▇▇ Securities Inc., to ▇.▇.
▇▇▇▇▇▇ Securities Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, attention
Medium-Term Note Desk, telecopier no. (212)
834-6081; if to ▇▇▇▇▇▇▇ Lynch, ▇▇▇▇▇▇,
▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, to ▇▇▇▇▇▇▇
▇▇▇▇▇ Production Technologies, by e-mail to
▇▇▇▇▇▇▇▇@▇▇▇.▇▇.▇▇.▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
38
Piscataway, New Jersey 08854, attention
Final Prospectus Unit/▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇,
telephone no. (▇▇▇) ▇▇▇-▇▇▇▇, telecopier no.
(▇▇▇) ▇▇▇-▇▇▇▇, with a copy to ▇▇▇▇▇▇▇
Lynch, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated,
4 World Financial Center, 15th Floor, New
York, New York 10080, attention MTN Product
Management, telephone no. (▇▇▇) ▇▇▇-▇▇▇▇,
telecopier no. (▇▇▇) ▇▇▇-▇▇▇▇; if to ▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Co. Incorporated, to ▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Co. Incorporated, 1585 Broadway,
2nd Floor, New York, New York 10036,
attention Medium-Term Note Trading Desk,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, telephone no. (212)
761-4000, telecopier no. (▇▇▇) ▇▇▇-▇▇▇▇; if
to ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., to ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ Inc., Brooklyn Army Terminal,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇, attention of ▇▇▇▇▇▇ ▇▇▇▇▇▇, telephone
no. (▇▇▇) ▇▇▇-▇▇▇▇, telecopier no. (718)
765-6734; if to UBS PaineWebber Inc., to
[UBS PaineWebber Inc., ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, attention:
[__________], telephone no. [__________],
telecopier no. [__________]]; if to
Countrywide Securities Corporation, to
Countrywide Securities Corporation, ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇-▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, attention of ▇▇▇ ▇'▇▇▇▇▇▇▇▇,
telephone no. (▇▇▇) ▇▇▇-▇▇▇▇, or, if after
5:00 p.m., (▇▇▇) ▇▇▇-▇▇▇▇, telecopier no.
(▇▇▇) ▇▇▇-▇▇▇▇; and if to the Trustee, to
The Bank of New York, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, 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.
39
Suspension of Solicitation;
Amendment or Supplement: The Company reserves the right, in its sole
discretion, to instruct the Agents to
suspend at any time, for any period of time
or permanently, the solicitation of offers
to purchase Certificated Notes. As soon as
practicable, but in no event later than one
Business Day after receipt of instructions
from the Company, the Agents will suspend
solicitation of offers to purchase
Certificated Notes from the Company until
such time as the Company has advised them
that such solicitation may be resumed.
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
40
Supplement which, pursuant to Rule 434, may
be delivered separately from the Prospectus)
with the earlier of the delivery of the
confirmation of sale or the Certificated
Note to the purchaser thereof or such
purchaser's agent.
Confirmation: For each offer to purchase a Certificated
Note solicited by any Agent and accepted by
the Company, such Agent will issue a
confirmation to the purchaser, with a copy
to the Company, setting forth the details
set forth above and delivery and payment
instructions.
Settlement: The Settlement Date with respect to any
offer to purchase Certificated Notes
accepted by or on behalf of the Company will
be a date on or before the third Business
Day next succeeding the date of acceptance
unless otherwise agreed by the purchaser and
the Company and shall be specified upon
acceptance of such offer. The Company will
instruct the Trustee to effect delivery of
each Certificated Note no later than 1:00
p.m., New York City time, on the Settlement
Date to such Agent for delivery to the
purchaser.
Details for 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 ▇▇▇▇▇▇.
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).
41
8. Issue price of Note and proceeds
to Company.
9. Settlement Date.
10. Stated Maturity Date.
11. Redemption and/or repayment
provisions, if any.
12. Agent's commission to be paid in
the form of a discount upon
settlement.
13. Other relevant terms, including
any reset and/or extension
provisions.
Such Agent will advise the Company of the
foregoing information (unless provided by
the purchaser directly to the Company) for
each offer to purchase a Certificated Note
solicited by such Agent and accepted by the
Company in time for the Trustee to prepare
and authenticate the required Certificated
Note. Before accepting any offer to purchase
a Certificated Note to be settled in less
than three Business Days, the Company shall
verify that the Trustee will have adequate
time to 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.
42
Each Certificated Note shall be
authenticated on or before the Settlement
Date therefor. The Trustee will authenticate
each Certificated Note and deliver it to
such Agent (and deliver the stubs as
indicated above), all in accordance with
written instructions (which may be in the
form of facsimile transmission) from the
Company. Delivery by the Trustee of each
Certificated Note will be made against
receipt by the Company by 1:00 p.m., New
York City time, on the Settlement Date in
immediately available funds of an amount
equal to the issue price of such
Certificated Note or the U.S. dollar
equivalent of the issue price of such Note
as agreed between the 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
43
no later than the next Business Day). In
such event, the Company shall promptly
provide the Trustee with appropriate
documentation and instructions consistent
with these procedures for the return of the
Certificated Note to the Trustee and such
Agent will promptly return the Certificated
Note to the Trustee. Upon confirmation (i)
from the Trustee in writing (which may be
given by telex or telecopy) that the Trustee
has received the Certificated Note 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
44
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 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.
45
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.
Price to Public: Each Book-Entry Note will be issued at the
percentage of principal amount specified in
the Prospectus.
46
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.
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.
47
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.
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).
48
Maturities: Each Book-Entry Note will mature on a date
nine months or more after the Settlement
Date for such Note.
Notice of Redemption Date: The Trustee will notify DTC not more than 60
but not less than 30 days prior to each
redemption date, if any, with respect to a
Book-Entry Note, of the CUSIP number of such
Note, the redemption date, the redemption
price and the principal amount of such
Book-Entry Note to be redeemed.
Denominations: Book-Entry Notes will be issued in principal
amounts of U.S. $1,000 or any amount in
excess thereof that is an integral multiple
of U.S. $1,000. Global Securities will be
denominated in principal amounts not in
excess of U.S. $500,000,000. If one or more
Book-Entry Notes having an aggregate
principal amount in excess of U.S.
$500,000,000 would, but for the preceding
sentence, be represented by a single Global
Security, then one Global Security will be
issued to represent each U.S. $500,000,000
principal amount of such Book-Entry Note or
Notes and an additional Global Security will
be issued to represent any remaining
principal amount of such Book-Entry Note or
Notes. In such a case, each of the Global
Securities representing such Book-Entry Note
or Notes shall be assigned the same CUSIP
number.
Interest: General. Interest on each Book-Entry Note
will accrue from the Interest Accrual Date
of the Global Security representing such
Note. Except as set forth in the underlying
Global Security, each Book-Entry Note which
is a Fixed Rate Note will bear interest at
the annual rate stated in such Global
Security, payable semiannually on January 15
and July 15 of each year (each, an "Interest
Payment Date") and on the Maturity Date, and
each Book-Entry Note which is a Floating
Rate Note will bear interest as determined
in the manner set forth in such Global
Security, payable on the dates set forth on
such Global Security. 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.
49
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.
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
50
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
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
51
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. 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
52
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 ▇▇▇▇▇▇ Brothers Inc. to
▇▇▇▇▇▇ Brothers Inc., [3 World Financial
Center, 9th Floor, New York, New York 10285,
attention Medium-Term Note Desk, telephone
no. (▇▇▇) ▇▇▇-▇▇▇▇, telecopier no. (212)
526-1532]; if to ABN AMRO Incorporated, to
[ABN AMRO Incorporated , ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
attention: [__________], telephone no.
[__________], telecopier no. [__________]];
if to Banc of America Securities LLC to The
Bank of New York, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
Floor, Dealers Clearance, Window B, A/C Banc
of America Securities LLC; if to Barclays
Capital Inc. to [Barclays Capital Inc., ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
attention: [__________], telephone no.
[__________], telecopier no. [__________]];
if to Bear, ▇▇▇▇▇▇▇ & Co. Inc., to [Bear,
▇▇▇▇▇▇▇ & Co. Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, attention: [________],
telephone no. [__________], telecopier no.
[__________]]; if to Credit Suisse First
Boston Corporation, to [Credit Suisse First
Boston Corporation, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, attention:
[__________], telephone no. [__________],
telecopier no. [__________]]; if to Deutsche
Banc ▇▇▇▇. ▇▇▇▇▇ Inc. to Deutsche Banc ▇▇▇▇.
▇▇▇▇▇ Inc., ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ of ▇▇▇▇▇ ▇▇▇▇▇,
telephone no. (▇▇▇) ▇▇▇-▇▇▇▇, telecopier no.
(▇▇▇) ▇▇▇-▇▇▇▇, with a copy to Deutsche Banc
▇▇▇▇. ▇▇▇▇▇ Inc., c/o ADP Prospectus, ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ of ▇▇▇▇▇▇ ▇▇▇▇▇, telephone no.
(▇▇▇) ▇▇▇-▇▇▇▇, telecopier no. (516)
254-7134; if to ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., to
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, attention
of ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, telephone no. (212)
902-1482, telecopier no. (▇▇▇) ▇▇▇-▇▇▇▇; if
to ▇.▇. ▇▇▇▇▇▇ Securities Inc., to ▇.▇.
▇▇▇▇▇▇ Securities Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, attention
Medium-Term Note Desk, telecopier no. (212)
834-6081; if to ▇▇▇▇▇▇▇ Lynch, ▇▇▇▇▇▇,
▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, to ▇▇▇▇▇▇▇
▇▇▇▇▇ Production Technologies, by e-mail to
53
▇▇▇▇▇▇▇▇@▇▇▇.▇▇.▇▇.▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, attention
Final Prospectus Unit/▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇,
telephone no. (▇▇▇) ▇▇▇-▇▇▇▇, telecopier no.
(▇▇▇) ▇▇▇-▇▇▇▇, with a copy to ▇▇▇▇▇▇▇
Lynch, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated,
4 World Financial Center, 15th Floor, New
York, New York 10080, attention MTN Product
Management, telephone no. (▇▇▇) ▇▇▇-▇▇▇▇,
telecopier no. (▇▇▇) ▇▇▇-▇▇▇▇; if to ▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Co. Incorporated, to ▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Co. Incorporated, 1585 Broadway,
2nd Floor, New York, New York 10036,
attention Medium-Term Note Trading Desk,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, telephone no. (212)
761-4000, telecopier no. (▇▇▇) ▇▇▇-▇▇▇▇; if
to ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., to ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ Inc., Brooklyn Army Terminal,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇, attention of ▇▇▇▇▇▇ ▇▇▇▇▇▇, telephone
no. (▇▇▇) ▇▇▇-▇▇▇▇, telecopier no. (718)
765-6734; if to UBS PaineWebber Inc., to
[UBS PaineWebber Inc., ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, attention:
[__________], telephone no. [__________],
telecopier no. [__________]]; if to
Countrywide Securities Corporation, to
Countrywide Securities Corporation, ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇-▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, attention of ▇▇▇ ▇'▇▇▇▇▇▇▇▇,
telephone no. (▇▇▇) ▇▇▇-▇▇▇▇, or, if after
5:00 p.m., (▇▇▇) ▇▇▇-▇▇▇▇, telecopier no.
(▇▇▇) ▇▇▇-▇▇▇▇; and if to the Trustee, to
The Bank of New York, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, 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
54
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.
55
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 Procedures: Settlement Procedures with regard to each
Book-Entry Note sold by the Company through
an Agent, as agent, shall be as follows:
▇. ▇▇▇▇ 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.
56
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
$7,000,000,000 (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
57
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 Trustee
to DTC that (i) the Global Security
58
representing such Book-Entry Note has been
issued and authenticated and (ii) the
Trustee is holding such Global Security
pursuant to the Certificate Agreement.
▇. ▇▇▇▇ 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 of
Book-Entry Notes and the confirmation and
payment by the purchaser of such Note.
59
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
▇-▇ 5:00 P.M. on Settlement Date
If a sale is to be settled more than one
Business Day after the sale date, Settlement
Procedures "A", "B" and "C" shall be
completed as soon as practicable but no
later than 11:00 A.M. and 2:00 P.M., as the
case may be, on the first Business Day after
the sale date. If the initial interest rate
for a Floating Rate Book-Entry Note has not
been determined at the time that Settlement
Procedure "A" is completed, Settlement
Procedures "B" and "C" shall be completed as
soon as such rate has been determined but no
later than 11:00 A.M. and 12:00 Noon,
respectively, on the second Business Day
before the Settlement Date. Settlement
Procedure "I" is subject to extension in
accordance with any extension of Fedwire
closing deadlines and in the other events
specified in the SDFS operating procedures
in effect on the Settlement Date.
Failure to Settle: If the Trustee fails to enter an SDFS
deliver order with respect to a Book-Entry
Note pursuant to Settlement
60
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 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
61
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.
62
EXHIBIT B
Countrywide Home Loans, Inc.
U.S. $7,000,000,000
Medium-Term Notes, Series K
Due Nine Months or More
From Date of Issue
Payment of Principal, Premium, if any, and Interest
Fully and Unconditionally Guaranteed by
Countrywide Credit Industries, Inc.
TERMS AGREEMENT
_________________, 20__
Countrywide Home Loans, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Counsel
Subject in all respects to the terms and conditions of the Selling
Agency Agreement dated [__], 2001 among ▇▇▇▇▇▇ Brothers Inc., ABN AMRO
Incorporated, Banc of America Securities LLC, Barclays Capital Inc., Bear,
▇▇▇▇▇▇▇ & Co. Inc., Credit Suisse First Boston Corporation, Deutsche Banc ▇▇▇▇.
▇▇▇▇▇ Inc., ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., ▇.▇. ▇▇▇▇▇▇ Securities Inc., ▇▇▇▇▇▇▇ Lynch,
Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ Inc., UBS PaineWebber Inc. and Countrywide Securities Corporation
and you (the "Agreement"), the undersigned agrees to purchase the following
Medium-Term Notes, Series K (the "Notes"), of Countrywide Home Loans, Inc.:
Aggregate Principal Amount:
Currency or Currency Unit:
Interest Rate or Base Rate(s):
Spread:
Spread Multiplier:
Stated Maturity Date:
Interest Payment Dates:
Record Dates:
Purchase Price: % of Principal Amount [plus accrued interest, if
any, from _______________, 20 __]
63
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 CREDIT INDUSTRIES, INC.
By:
-------------------------------
Title:
64