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FIRST SUPPLEMENTAL INDENTURE
among
COUNTRYWIDE HOME LOANS, INC., as Issuer,
COUNTRYWIDE CREDIT INDUSTRIES, INC., as Guarantor,
and
THE BANK OF NEW YORK
Dated as of __________, 1996
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
SECTION 1.1 Definition of Terms......................................... 2
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
SECTION 2.1 Designation and Principal Amount............................ 3
SECTION 2.2 Maturity.................................................... 3
SECTION 2.3 Form and Payment............................................ 3
SECTION 2.4 Global Debenture............................................ 4
SECTION 2.5 Interest.................................................... 5
ARTICLE III
REDEMPTION OF THE DEBENTURES
SECTION 3.1 Special Event Redemption.................................... 7
SECTION 3.2 Optional Redemption by Company.............................. 7
SECTION 3.3 No Sinking Fund............................................. 8
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1 Extension of Interest Payment Period........................ 8
SECTION 4.2 Notice of Extension......................................... 9
ARTICLE V
EXPENSES AND GUARANTEE
SECTION 5.1 Payment of Expenses......................................... 10
SECTION 5.2 Payment Upon Resignation or Removal......................... 10
SECTION 5.3 Guarantee of Payment of Expenses............................ 11
ARTICLE VI
COVENANT TO LIST ON EXCHANGE
SECTION 6.1 Listing on an Exchange...................................... 11
ii
ARTICLE VII
FORM OF DEBENTURE
SECTION 7.1 Form of Debenture........................................... 11
ARTICLE VIII
ORIGINAL ISSUE OF DEBENTURES
SECTION 8.1 Original Issue of Debentures................................ 23
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Ratification of Indenture................................... 23
SECTION 9.2 Trustee Not Responsible for Recitals........................ 23
SECTION 9.3 Governing Law............................................... 23
SECTION 9.4 Separability................................................ 23
SECTION 9.5 Counterparts................................................ 24
iii
FIRST SUPPLEMENTAL INDENTURE, dated as of ___________, 1996 (the "First
Supplemental Indenture"), among Countrywide Home Loans, Inc., a New York
corporation (the "Company"), Countrywide Credit Industries, Inc., a Delaware
corporation (the "Guarantor"), and The Bank of New York as trustee (the
"Trustee"), under the Indenture dated as of ____________, 1996 among the
Company, the Guarantor and the Trustee (the "Indenture").
WHEREAS, the Company and the Guarantor executed and delivered the Indenture
to the Trustee to provide for the future issuance of the Company's unsecured
junior subordinated debt securities guaranteed by the Guarantor, to be issued
from time to time in one or more series as might be determined by the Company
under the Indenture, in an unlimited aggregate principal amount which may be
authenticated and delivered as provided in the Indenture;
WHEREAS, pursuant to the terms of the Indenture, the Company desires to
provide for the establishment of a new series of its Debt Securities to be known
as its ____% Junior Subordinated Deferrable Interest Debentures due ____ (the
"Debentures"), and the Guarantor desires to provide for the issuance of a
Guarantee of such Debt Securities (the "Debenture Guarantee"), the form and
substance of such Debentures and Debenture Guarantee and the terms, provisions
and conditions thereof to be set forth as provided in the Indenture and this
First Supplemental Indenture;
WHEREAS, Countrywide Capital I, a Delaware statutory business trust (the
"Trust"), has offered to the public $___ million aggregate liquidation amount of
its ____% Cumulative Trust Originated Preferred Securities (the "Preferred
Securities"), representing undivided beneficial interests in the assets of the
Trust and proposes to invest the proceeds from such offering, together with the
proceeds of the issuance and sale by the Trust to the Guarantor of $_________
million aggregate liquidation amount of its ____% Cumulative Trust Originated
Common Securities, in $___________ million aggregate principal amount of the
Debentures; and
WHEREAS, the Company and the Guarantor have requested that the Trustee
execute and deliver this First Supplemental Indenture; all requirements
necessary to make this First Supplemental Indenture a valid instrument in
accordance with its terms, and to make the Debentures, when executed by the
Company and authenticated and delivered by the Trustee, the valid obligations of
the Company, and to make the Debenture Guarantee endorsed thereon when executed
by the Guarantor a valid obligation of the Guarantor, have been performed; and
the execution and delivery of this First Supplemental Indenture has been duly
authorized in all respects:
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NOW THEREFORE, in consideration of the purchase and acceptance of the
Debentures by the holders thereof, and for the purpose of setting forth, as
provided in the Indenture, the form and substance of the Debentures and the
terms, provisions and conditions thereof, the Company and the Guarantor covenant
and agree with the Trustee as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Definition of Terms.
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Unless the context otherwise requires:
(a) a term defined in the Indenture has the same meaning when used in this
First Supplemental Indenture;
(b) a term defined anywhere in this First Supplemental Indenture has the
same meaning throughout;
(c) the singular includes the plural and vice versa;
(d) a reference to a Section or Article is to a Section or Article of this
First Supplemental Indenture;
(e) headings are for convenience of reference only and do not affect
interpretation;
(f) the following terms have the meanings given to them in the Declaration:
(i) Business Day; (ii) Clearing Agency; (iii) Delaware Trustee; (iv) Depositary;
(v) Dissolution Tax Opinion; (vi) Distribution; (vii) No Recognition Opinion;
(viii) Preferred Security Certificate; (ix) Pricing Agreement; (x) Institutional
Trustee; (xi) Regular Trustees; (xii) Tax Event; (xiii) Redemption Tax Opinion,
and (xiv) Underwriting Agreement;
(g) the following terms have the meanings given to them in this Section
1.1(g):
"Additional Interest" shall have the meaning set forth in Section 2.5(c).
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"Compounded Interest" shall have the meaning set forth in Section 4.1.
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"Declaration" means the Amended and Restated Declaration of Trust of
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Countrywide Capital I, a Delaware statutory business trust, dated as of
___________, 1996.
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"Deferred Interest" shall have the meaning set forth in Section 4.1.
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"Dissolution Event" means that, as a result of the occurrence and
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continuation of a Tax Event, the Trust is to be dissolved in accordance with the
Declaration, and the Debentures held by the Institutional Trustee are to be
distributed to the holders of the Trust Securities issued by the Trust pro rata
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in accordance with the Declaration.
"Extended Interest Payment Period" shall have the meaning set forth in
--------------------------------
Section 4.1.
"Global Debenture" shall have the meaning set forth in Section 2.4(a)(i).
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"Maturity Date" means the date on which the Debentures mature and on which
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the principal shall be due and payable together with all accrued and unpaid
interest thereon including Compounded Interest and Additional Interest, if any.
"Non Book-Entry Preferred Securities" shall have the meaning set forth in
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Section 2.4(a)(ii).
"Optional Redemption Price" shall have the meaning set forth in Section
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3.2(a).
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
SECTION 2.1 Designation and Principal Amount.
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There is hereby authorized (a) a series of Debt Securities designated the
"____% Junior Subordinated Deferrable Interest Debentures due ____", limited in
aggregate principal amount to $___________ (or up to $_______ if the over-
allotment option for Preferred Securities is exercised), which amount shall be
as set forth in any written order of the Company for the authentication and
delivery of Debentures pursuant to Section 2.04 of the Indenture and (b) a
Guarantee of such Debt Securities.
SECTION 2.2 Maturity.
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The Maturity Date is ______, ____.
SECTION 2.3 Form and Payment.
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Except as provided in Section 2.4, the Debentures shall be issued in fully
registered certificated form without interest
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coupons. Principal and interest on the Debentures issued in certificated form
will be payable, the transfer of such Debentures will be registrable and such
Debentures will be exchangeable for Debentures bearing identical terms and
provisions at the office or agency of the Trustee; provided, however, that
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payment of interest may be made at the option of the Company by check mailed to
the holder of any Debenture at such address as shall appear in the Security
Register. Notwithstanding the foregoing, so long as the holder of any Debentures
is the Institutional Trustee, the payment of the principal of and interest
(including Compounded Interest and Additional Interest, if any) on such
Debentures held by the Institutional Trustee will be made at such place and to
such account as may be designated by the Institutional Trustee.
SECTION 2.4 Global Debenture.
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(a) In connection with a Dissolution Event,
(i) the Debentures in certificated form may be presented to the
Trustee by the Institutional Trustee in exchange for a global Debenture in
an aggregate principal amount equal to the aggregate principal amount of
all outstanding Debentures (a "Global Debenture"), to be registered in the
name of the Depositary, or its nominee, and delivered by the Trustee to the
Depositary for crediting to the accounts of its participants pursuant to
the instructions of the Regular Trustees which instructions shall be
provided in accordance with the terms of the Declaration. The Company upon
any such presentation shall execute a Global Debenture in such aggregate
principal amount and deliver the same to the Trustee for authentication and
delivery in accordance with the Indenture and this First Supplemental
Indenture. Payments on the Debentures issued as a Global Debenture will be
made to the Depositary; and
(ii) if any Preferred Securities are held in non book-entry
certificated form, the Debentures in certificated form may be presented to
the Trustee by the Institutional Trustee and any Preferred Security
Certificate which represents Preferred Securities other than Preferred
Securities held by the Clearing Agency or its nominee ("Non Book-Entry
Preferred Securities") will be deemed to represent beneficial interests in
Debentures presented to the Trustee by the Institutional Trustee having an
aggregate principal amount equal to the aggregate liquidation amount of the
Non Book-Entry Preferred Securities until such Preferred Security
Certificates are presented to the Security Registrar for transfer or
reissuance at which time such Preferred Security Certificates will be
cancelled and a Debenture, registered in the name of the holder of the
Preferred Security Certificate
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or the transferee of the holder of such Preferred Security Certificate, as
the case may be, with an aggregate principal amount equal to the aggregate
liquidation amount of the Preferred Security Certificate cancelled, will be
executed by the Company and delivered to the Trustee for authentication and
delivery in accordance with the Indenture and this First Supplemental
Indenture. On issue of such Debentures, Debentures with an equivalent
aggregate principal amount that were presented by the Institutional Trustee
to the Trustee will be deemed to have been cancelled.
(b) A Global Debenture may be transferred, in whole but not in part,
only to another nominee of the Depositary, or to a successor Depositary selected
or approved by the Company or to a nominee of such successor Depositary.
(c) If at any time the Depositary notifies the Company that it is
unwilling or unable to continue as Depositary or if at any time the Depositary
shall no longer be registered or in good standing under the Securities Exchange
Act of 1934, as amended, or other applicable statute or regulation, and a
successor Depositary is not appointed by the Company within 90 days after the
Company receives such notice or becomes aware of such condition, as the case may
be, the Company will execute, and, subject to Article II of the Indenture, the
Trustee, upon written notice from the Company, will authenticate and make
available for delivery Debentures in definitive registered form without coupons,
in authorized denominations, and in an aggregate principal amount equal to the
principal amount of the Global Debenture in exchange for such Global Debenture.
In addition, the Company may at any time determine that the Debentures shall no
longer be represented by a Global Debenture. In such event the Company will
execute, and subject to Section 2.07 of the Indenture, the Trustee, upon receipt
of an Officers' Certificate evidencing such determination by the Company, will
authenticate and deliver Debentures in definitive registered form without
coupons, in authorized denominations, and in an aggregate principal amount equal
to the principal amount of the Global Debenture in exchange for such Global
Debenture. Upon the exchange of the Global Debenture for such Debentures in
definitive registered form without coupons, in authorized denominations, the
Global Debenture shall be cancelled by the Trustee. Such Debentures in
definitive registered form issued in exchange for the Global Debenture shall be
registered in such names and in such authorized denominations as the Depositary,
pursuant to instructions from its direct or indirect participants or otherwise,
shall instruct the Trustee. The Trustee shall deliver such Debentures to the
Depositary for delivery to the Persons in whose names such Debentures are so
registered.
SECTION 2.5 Interest.
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(a) Each Debenture will bear interest at the rate of ____% per annum
(the "Coupon Rate") from the original date of issuance until the principal
thereof becomes due and payable, and on any overdue principal and (to the extent
that payment of such interest is enforceable under applicable law) on any
overdue installment of interest at the Coupon Rate, compounded quarterly,
payable (subject to the provisions of Article Four) quarterly in arrears on
March 31, June 30, September 30 and December 31 of each year (each, an "Interest
Payment Date," commencing on December 31, 1996), to the Person in whose name
such Debenture or any predecessor Debenture is registered, at the close of
business on the regular record date for such interest installment, which, in
respect of any Debentures of which the Institutional Trustee is the holder of a
Global Debenture, shall be the close of business on the Business Day next
preceding that Interest Payment Date. Notwithstanding the foregoing sentence,
if (i) the Preferred Securities are no longer in book-entry only form, (ii)
after a Dissolution Event the Debentures are not in book-entry only form or
(iii) pursuant to the provisions of Section 2.11(c) of the Indenture the
Debentures are not represented by a Global Debenture, the Company may select a
regular record date for such interest installment which shall be any date at
least one Business Day before an Interest Payment Date.
(b) The amount of interest payable for any period will be computed on the
basis of a 360-day year of twelve 30-day months. Except as provided in the
following sentence, the amount of interest payable for any period shorter than a
full quarterly period for which interest is computed, will be computed on the
basis of the actual number of days elapsed in such a period (assuming each full
month elapsed in such period consists of 30 days). In the event that any date
on which interest is payable on the Debentures is not a Business Day, then
payment of interest payable on such date will be made on the next succeeding day
which is a Business Day (and without any interest or other payment in respect of
any such delay), except that, if such Business Day is in the next succeeding
calendar year, such payment shall be made on the immediately preceding Business
Day, in each case with the same force and effect as if made on such date.
(c) If, at any time while the Institutional Trustee is the holder of any
Debentures, the Trust or the Institutional Trustee is required to pay any taxes,
duties, assessments or governmental charges of whatever nature (other than
withholding taxes) imposed by the United States, or any other taxing authority,
then, in any case, the Company will pay as additional interest ("Additional
Interest") on the Debentures held by the Institutional Trustee, such additional
amounts as shall be required so that the net amounts received and retained by
the Trust and the Institutional Trustee after paying such taxes, duties,
assessments or other
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governmental charges will be equal to the amounts the Trust and the
Institutional Trustee would have received had no such taxes, duties, assessments
or other government charges been imposed.
ARTICLE III
REDEMPTION OF THE DEBENTURES
SECTION 3.1 Special Event Redemption.
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If a Tax Event has occurred and is continuing and:
(a) the Company has received a Redemption Tax Opinion; or
(b) after receiving a Dissolution Tax Opinion, the Regular Trustees
shall have been informed by tax counsel rendering the Dissolution Tax
Opinion that a No Recognition Opinion cannot be delivered to the Trust,
then, notwithstanding Section 3.2(a) but subject to Section 3.2(b), the Company
shall have the right upon not less than 30 days nor more than 60 days notice to
the holders of the Debentures to redeem the Debentures, in whole or in part, for
cash within 90 days following the occurrence of such Tax Event (the "90 Day
Period") at a redemption price equal to 100% of the principal amount to be
redeemed plus any accrued and unpaid interest thereon to the date of such
redemption (the "Redemption Price"), provided that if at the time there is
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available to the Company the opportunity to eliminate, within the 90 Day Period,
the adverse effects of such Tax Event by taking some ministerial action
("Ministerial Action"), such as filing a form or making an election, or pursuing
some other similar reasonable measure which has no adverse effect on the
Company, the Trust, the Guarantor or the holders of the Trust Securities issued
by the Trust, the Company shall pursue such Ministerial Action in lieu of
redemption, and, provided, further, that the Company shall have no right to
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redeem the Debentures while the Trust is pursuing any Ministerial Action
pursuant to its obligations under the Declaration. The Redemption Price shall
be paid prior to 12:00 noon, New York time, on the date of such redemption or
such earlier time as the Company determines, provided that the Company shall
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deposit with the Trustee an amount sufficient to pay the Redemption Price by
10:00 a.m., New York time, on the date such Redemption Price is to be paid.
SECTION 3.2 Optional Redemption by Company.
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(a) Subject to the provisions of Section 3.2(b) and to the provisions
of Article Fourteen of the Indenture, except as otherwise may be specified in
this First Supplemental Indenture,
7
the Company shall have the right to redeem the Debentures, in whole or in part,
from time to time, on or after ______, 20__, at a redemption price equal to 100%
of the principal amount to be redeemed plus any accrued and unpaid interest
thereon to the date of such redemption (the "Optional Redemption Price"). Any
redemption pursuant to this paragraph will be made upon not less than 30 days
nor more than 60 days notice to the holder of the Debentures, at the Optional
Redemption Price. If the Debentures are only partially redeemed pursuant to
this Section 3.2(a), the Debentures will be redeemed pro rata or by lot or by
--- ----
any other method utilized by the Trustee; provided, that if at the time of
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redemption the Debentures are registered as a Global Debenture, the Depositary
shall determine, in accordance with its procedures, the principal amount of such
Debentures held by each holder of Debentures to be redeemed. The Optional
Redemption Price shall be paid prior to 12:00 noon, New York time, on the date
of such redemption or at such earlier time as the Company determines, provided
that the Company shall deposit with the Trustee an amount sufficient to pay the
Optional Redemption Price by 10:00 a.m., New York time, on the date such
Optional Redemption Price is to be paid.
(b) If a partial redemption of the Debentures would result in the
delisting of the Preferred Securities issued by the Trust from any national
securities exchange or other organization on which the Preferred Securities are
then listed, the Company shall not be permitted to effect such partial
redemption and may only redeem the Debentures in whole.
SECTION 3.3 No Sinking Fund.
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The Debentures are not entitled to the benefit of any sinking fund.
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1 Extension of Interest Payment Period.
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The Company shall have the right, at any time and from time to time during
the term of the Debentures, to defer payments of interest by extending the
interest payment period of such Debentures for a period not exceeding 20
consecutive quarters (the "Extended Interest Payment Period"), during which
Extended Interest Payment Period no interest shall be due and payable; provided
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that no Extended Interest Payment Period may extend beyond the Maturity Date.
----
To the extent permitted by applicable law, interest, the payment of which has
been deferred because of the extension of the interest payment period pursuant
to this Section 4.1, will bear
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interest thereon at the Coupon Rate compounded quarterly for each quarter of the
Extended Interest Payment Period ("Compounded Interest"). On the next Interest
Payment Date following the end of the Extended Interest Payment Period, the
Company shall pay all interest accrued and unpaid on the Debentures, including
any Additional Interest and Compounded Interest (together, "Deferred Interest"),
that shall be payable to the holders of the Debentures in whose names the
Debentures are registered in the Security Register on the record date for the
payment of Deferred Interest on the next Interest Payment Date following the end
of the Extended Interest Payment Period. Before the termination of any Extended
Interest Payment Period, the Company may further extend such period, provided
that such period together with all such further extensions thereof shall not
exceed 20 consecutive quarters, or extend beyond the Maturity Date. Upon the
termination of any Extended Interest Payment Period and upon the payment of all
Deferred Interest then due, the Company may commence a new Extended Interest
Payment Period, subject to the foregoing requirements. The Company may prepay
at any time all or any portion of the interest accrued during an Extended
Interest Payment Period.
SECTION 4.2 Notice of Extension.
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(a) If the Institutional Trustee is the only registered holder of the
Debentures at the time the Company selects an Extended Interest Payment
Period, the Company shall give written notice to the Regular Trustees, the
Institutional Trustee and the Trustee of its selection of such Extended
Interest Payment Period one Business Day before the earlier of (i) the next
succeeding date on which distributions on the Trust Securities issued by
the Trust are payable, or (ii) the date the Trust is required to give
notice of the record date, or the date such distributions are payable, to
the New York Stock Exchange or other applicable self-regulatory
organization or to holders of the Preferred Securities issued by the Trust,
but in any event at least one Business Day before such record date.
(b) If the Institutional Trustee is not the only holder of the
Debentures at the time the Company selects an Extended Interest Payment
Period, the Company shall give the holders of the Debentures and the
Trustee written notice of its selection of such Extended Interest Payment
Period at least ten Business Days before the earlier of (i) the next
succeeding Interest Payment Date, or (ii) the date the Company is required
to give notice of the record or payment date of such interest payment to
the New York Stock Exchange or other applicable self-regulatory
organization or to holders of the Debentures.
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(c) The quarter in which any notice is given pursuant to paragraphs
(a) or (b) of this Section 4.2 shall be counted as one of the 20 quarters
permitted in the maximum Extended Interest Payment Period permitted under
Section 4.1.
ARTICLE V
EXPENSES AND GUARANTEE
SECTION 5.1 Payment of Expenses.
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In connection with the offering, sale and issuance of the Debentures to the
Institutional Trustee and in connection with the sale of the Trust Securities by
the Trust, the Company, in its capacity as borrower with respect to the
Debentures, shall:
(a) pay all costs and expenses relating to the offering, sale and
issuance of the Debentures, including commissions to the underwriters
payable pursuant to the Underwriting Agreement and the Pricing Agreement
and compensation of the Trustee under the Indenture in accordance with the
provisions of Section 6.06 of the Indenture;
(b) pay all costs and expenses of the Trust (including, but not
limited to, costs and expenses relating to the organization of the Trust,
the offering, sale and issuance of the Trust Securities (including
commissions to the underwriters in connection therewith), the fees and
expenses of the Institutional Trustee and the Delaware Trustee, the costs
and expenses relating to the operation of the Trust, including without
limitation, costs and expenses of accountants, attorneys, statistical or
bookkeeping services, expenses for printing and engraving and computing or
accounting equipment, paying agent(s), registrar(s), transfer agent(s),
duplicating, travel and telephone and other telecommunications expenses and
costs and expenses incurred in connection with the acquisition, financing,
and disposition of Trust assets);
(c) be primarily and fully liable for any indemnification obligations
arising with respect to the Declaration; and
(d) pay any and all taxes (other than United States withholding taxes
attributable to the Trust or its assets) and all liabilities, costs and
expenses with respect to such taxes of the Trust.
SECTION 5.2 Payment Upon Resignation or Removal.
-----------------------------------
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Upon termination of this First Supplemental Indenture or the Indenture or
the removal or resignation of the Trustee, unless otherwise stated, the Company
shall pay to the Trustee all amounts accrued to the date of such termination,
removal or resignation. Upon termination of the Declaration or the removal or
resignation of the Delaware Trustee or the Institutional Trustee, as the case
may be, pursuant to Section 5.7 of the Declaration, the Company shall pay to the
Delaware Trustee or the Institutional Trustee, as the case may be, all amounts
accrued to the date of such termination, removal or resignation.
SECTION 5.3 Guarantee of Payment of Expenses.
--------------------------------
The Guarantor hereby fully and unconditionally guarantees the due and
punctual payment of all amounts that become due and payable by the Company to
any Person pursuant to Section 5.1 or Section 5.2.
ARTICLE VI
COVENANT TO LIST ON EXCHANGE
SECTION 6.1 Listing on an Exchange.
----------------------
If the Debentures are to be issued as a Global Debenture in connection with
the distribution of the Debentures to the holders of the Preferred Securities
issued by the Trust upon a Dissolution Event, the Company will use its best
efforts to list such Debentures on the New York Stock Exchange or on such other
exchange as the Preferred Securities are then listed.
ARTICLE VII
FORM OF DEBENTURE
SECTION 7.1 Form of Debenture.
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The Debentures and the Trustee's certificate of authentication to be
endorsed thereon are to be substantially in the following forms:
(FACE OF DEBENTURE)
[IF THE DEBENTURE IS TO BE A GLOBAL DEBENTURE; INSERT-This Debenture
is a Global Debenture within the meaning of the Indenture hereinafter referred
to and is registered in the name of a Depositary or a nominee of a Depositary.
This Debenture is exchangeable for Debentures registered in the name of a person
other than the Depositary or its nominee only in the limited circumstances
described in the Indenture, and no transfer of this
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Debenture (other than a transfer of this Debenture as a whole by the Depositary
to a nominee of the Depositary or by a nominee of the Depositary to the
Depositary or another nominee of the Depositary) may be registered except in
limited circumstances.
Unless this Debenture is presented by an authorized representative of
The Depository Trust Company (55 ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇) to the issuer
or its agent for registration of transfer, exchange or payment, and any
Debenture issued is registered in the name of Cede & Co. or such other name as
requested by an authorized representative of The Depository Trust Company and
any payment hereon is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL since the registered owner
hereof, Cede & Co., has an interest herein.]
No. _________________ CUSIP No. _______________
COUNTRYWIDE HOME LOANS, INC.
______% JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURE
DUE ______
COUNTRYWIDE HOME LOANS, INC., a New York corporation (the "Company",
which term includes any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to ____________ or
registered assigns, the principal sum of ________________ Dollars ($_________ )
on ________ __, 20___, and to pay interest on said principal sum from ________
__, 199_, or from the most recent interest payment date (each such date, an
"Interest Payment Date") to which interest has been paid or duly provided for,
quarterly (subject to deferral as set forth herein) in arrears on March 31, June
30, September 30 and December 31 of each year commencing ________ __, 199__, at
the rate of ______% per annum until the principal hereof shall have become due
and payable, and on any overdue principal and premium, if any, and (without
duplication and to the extent that payment of such interest is enforceable under
applicable law) on any overdue installment of interest at the same rate per
annum compounded quarterly. The amount of interest payable on any Interest
Payment Date shall be computed on the basis of a 360-day year of twelve 30-day
months. In the event that any date on which interest is payable on this
Debenture is not a Business Day, then payment of interest payable on such date
will be made on the next succeeding day that is a Business Day (and without any
interest or other payment in respect of any such delay), except that, if such
Business Day is in the next succeeding calendar year, such payment shall be made
on the immediately preceding Business Day, in each case with the same force and
effect as if made on such date. The interest installment so payable, and
punctually paid or duly
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provided for, on any Interest Payment Date will, as provided in the Indenture,
be paid to the Person in whose name this Debenture (or one or more Predecessor
Securities, as defined in said Indenture) is registered at the close of business
on the regular record date for such interest installment, which shall be the
close of business on the Business Day next preceding such Interest Payment Date.
[IF PURSUANT TO THE PROVISIONS OF THE INDENTURE THE DEBENTURES ARE NO LONGER
REPRESENTED BY A GLOBAL Debenture -- which shall be the close of business on the
____ Business Day next preceding such Interest Payment Date.] Any such interest
installment not punctually paid or duly provided for shall forthwith cease to be
payable to the registered holders on such regular record date and may be paid to
the Person in whose name this Debenture (or one or more Predecessor Securities)
is registered at the close of business on a special record date to be fixed by
the Trustee for the payment of such defaulted interest, notice whereof shall be
given to the registered holders of this series of Debentures not less than 10
days prior to such special record date, or may be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Debentures may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in the Indenture. The principal of
(and premium, if any) and the interest on this Debenture shall be payable at the
office or agency of the Trustee (or other paying agent appointed by the Company)
maintained for that purpose in any coin or currency of the United States of
America that at the time of payment is legal tender for payment of public and
private debts; provided, however, that payment of interest may be made at the
-------- -------
option of the Company by check mailed to the registered holder at such address
as shall appear in the Security Register. Notwithstanding the foregoing, so
long as the holder of this Debenture is the Institutional Trustee, the payment
of the principal of (and premium, if any) and interest on this Debenture will be
made at such place and to such account as may be designated by the Institutional
Trustee.
The indebtedness evidenced by this Debenture is, to the extent
provided in the Indenture, subordinate and junior in right of payment to the
prior payment in full of all Senior Indebtedness, and this Debenture is issued
subject to the provisions of the Indenture with respect thereto. Each holder of
this Debenture, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his or her behalf to take
such action as may be necessary or appropriate to acknowledge or effectuate the
subordination so provided and (c) appoints the Trustee his or her attorney-in-
fact for any and all such purposes. Each holder hereof, by his or her
acceptance hereof, hereby waives all notice of the acceptance of the
subordination provisions contained herein and in the Indenture by each holder of
Senior Indebtedness, whether now outstanding or
13
hereafter incurred, and waives reliance by each such holder upon said
provisions.
This Debenture shall not be entitled to any benefit under the
Indenture hereinafter referred to, be valid or become obligatory for any purpose
until the certificate of authentication hereon shall have been signed by or on
behalf of the Trustee.
The provisions of this Debenture are continued on the reverse side
hereof and such continued provisions shall for all purposes have the same effect
as though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to be
executed.
COUNTRYWIDE HOME LOANS, INC.
By:
________________________
Name:
Title:
Attest:
By: _________________
Name:
Title:
14
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein referred
to in the within-mentioned Indenture.
Dated ________________
The Bank of New York,
as Trustee
By____________________
Authorized Signatory
[FORM OF GUARANTEE]
FOR VALUE RECEIVED, COUNTRYWIDE CREDIT INDUSTRIES, INC., a Delaware
corporation (the "Guarantor"), hereby unconditionally guarantees to the holder
of the Security upon which this Guarantee is endorsed the due and punctual
payment of the principal of, sinking fund payment, if any, premium, if any, or
interest on said Security, when and as the same shall become due and payable,
whether at maturity, upon redemption or otherwise, according to the terms
thereof and of the Indenture referred to therein.
The Guarantor agrees to determine, at least one Business Day prior to the
date upon which a payment of principal of, sinking fund payment, if any,
premium, if any, or interest on said Security is due and payable, whether the
Company has available the funds to make such payment as the same shall become
due and payable. In case of the failure of the Company punctually to pay any
such principal, sinking fund payment, if any, premium, if any, or interest, the
Guarantor hereby agrees to cause any such payment to be made punctually when and
as the same shall become due and payable, whether at maturity, upon redemption,
or otherwise, and as if such payment were made by the Company.
The Guarantor hereby agrees that its obligations hereunder shall be
unconditional, irrevocable, and absolute, irrespective of the validity,
regularity, or enforceability of said Security or said Indenture, the absence of
any action to enforce the same, any waiver or consent by the holder of said
Security with respect to any provisions thereof, the recovery of any judgment
against the Company or any action to enforce the same, or any other circumstance
which might otherwise constitute a legal or equitable discharge or defense of a
guarantor. The Guarantor hereby waives diligence, presentment, demand of
payment, filing of claims with a court in the event of merger or bankruptcy of
the Company, any right to require a proceeding first against the Company,
protest or
15
notice with respect to said Security or indebtedness evidenced thereby, and all
demands whatsoever and covenants that this Guarantee will not be discharged
except by complete performance of the obligations contained in said Security and
in this Guarantee.
The Guarantor shall be subrogated to all rights of the holder of said
Security against the Company in respect of any amounts paid by the Guarantor
pursuant to the provisions of this Guarantee; provided, however, that the
Guarantor shall not, without the consent of the holders of all of the Securities
then outstanding, be entitled to enforce or to receive any payments arising out
of or based upon such right of subrogation until the principal of and premium,
if any, and interest on all Securities shall have been paid in full or payment
thereof shall have been provided for in accordance with said Indenture.
Notwithstanding anything to the contrary contained herein, if following any
payment of principal or interest by the Company on the Securities to the holders
of the Securities it is determined by a final decision of a court of competent
jurisdiction that such payment shall be avoided by a trustee in bankruptcy
(including any debtor-in-possession) as a preference under 11 U.S.C. Section 547
and such payment is paid by such holder to such trustee in bankruptcy, then and
to the extent of such repayment, the obligations of the Guarantor hereunder
shall remain in full force and effect.
The obligations of the Guarantor under this Guarantee are, to the extent
provided in the Indenture, subordinate and junior in right of payment to the
prior payment in full of all Senior Indebtedness, and this Guarantee is issued
subject to the provisions of the Indenture with respect thereto.
Each holder of the Security upon which this Guarantee is endorsed, by
accepting the same, (a) agrees to and shall be bound by such provisions, (b)
authorizes and directs the Trustee on his or her behalf to take such action as
may be necessary or appropriate to acknowledge or effectuate the subordination
so provided and (c) appoints the Trustee his or her attorney-in-fact for any and
all such purposes. Each holder of the Security upon which this Guarantee is
endorsed, by his or her acceptance thereof, hereby waives all notice of the
acceptance of the subordination provisions contained herein and in the Indenture
by each holder of Senior Indebtedness, whether now outstanding or hereafter
incurred, and waives reliance by each holder upon said provisions.
This Guarantee shall not be valid or become obligatory for any purpose with
respect to a Security until the certificate of authentication on such Security
shall have been signed by the Trustee (or the Authentication Agent).
16
This Guarantee shall be governed by the laws of the State of New York.
17
IN WITNESS WHEREOF, COUNTRYWIDE CREDIT INDUSTRIES, INC. has caused this
Guarantee to be signed in its corporate name by the facsimile signature of two
of its officers thereunto duly authorized and has caused a facsimile of its
corporate seal to be affixed hereunto or imprinted or otherwise reproduced
hereon.
COUNTRYWIDE CREDIT INDUSTRIES, INC.
______________________________{Seal} _______________________
{Title} {Title}
18
(REVERSE OF DEBENTURE)
This Debenture is one of a duly authorized series of Debt Securities
of the Company specified in the Indenture, all issued or to be issued in one or
more series under and pursuant to an Indenture dated as of _________ __, 1996,
duly executed and delivered between the Company and The Bank of New York as
Trustee (the "Trustee"), as supplemented by the First Supplemented Indenture
dated as of ________ __, 1996, between the Company and the Trustee (the
Indenture as so supplemented, the "Indenture"), to which Indenture and all
indentures supplemental thereto reference is hereby made for a description of
the rights, limitations of rights, obligations, duties and immunities thereunder
of the Trustee, the Company and the holders of the series of Debt Securities
(referred to herein as the "Debentures") of which this Debenture is a part. By
the terms of the Indenture, the Debt Securities are issuable in series that may
vary as to amount, date of maturity, rate of interest and in other respects as
provided in the Indenture. This series of Debentures is limited in aggregate
principal amount as specified in said First Supplemental Indenture.
Because of the occurrence and continuation of a Tax Event, in certain
circumstances, this Debenture may become due and payable at the principal amount
together with any interest accrued thereon (the "Redemption Price"). The
Redemption Price shall be paid prior to 12:00 noon, New York time, on the date
of such redemption or at such earlier time as the Company determines. The
Company shall have the right to redeem this Debenture at the option of the
Company, without premium or penalty, in whole or in part at any time on or after
______ __, ____ (an "Optional Redemption"), or at any time in certain
circumstances upon the occurrence of a Tax Event, at a redemption price equal to
100% of the principal amount plus any accrued but unpaid interest, to the date
of such redemption (the "Optional Redemption Price"). Any redemption pursuant
to this paragraph will be made upon not less than 30 days nor more than 60 days
notice, at the Optional Redemption Price. If the Debentures are only partially
redeemed by the Company pursuant to an Optional Redemption, the Debentures will
be redeemed pro rata or by lot or by any other method utilized by the Trustee;
--- ----
provided that if, at the time of redemption, the Debentures are registered as a
Global Debenture, the Depositary shall determine the principal amount of such
Debentures held by each Debentureholder to be redeemed in accordance with its
procedures.
In the event of redemption of this Debenture in part only, a new
Debenture or Debentures of this series for the unredeemed portion hereof will be
issued in the name of the holder hereof upon the cancellation hereof.
19
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of all of the Debentures may be
declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the holders of not less than a majority in
aggregate principal amount of the Debt Securities of each series affected at the
time outstanding, as specified in the Indenture, to execute supplemental
indentures for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of the Indenture or of any supplemental
indenture or of modifying in any manner the rights of the holders of the Debt
Securities; provided, however, that no such supplemental indenture shall (i)
among other things, extend the fixed maturity of any Debt Securities of any
series, or reduce the principal amount thereof, or reduce the rate or extend the
time of payment of interest thereon, or reduce any premium payable upon the
redemption thereof, without the consent of the holder of each Debt Security so
affected, or (ii) reduce the aforesaid percentage of Debt Securities, the
holders of which are required to consent to any such supplemental indenture,
without the consent of the holder of each Debt Security then outstanding and
affected thereby. The Indenture also contains provisions permitting the holders
of a majority in aggregate principal amount of the Debt Securities of any series
at the time outstanding affected thereby, on behalf of all of the holders of the
Debt Securities of such series, to waive any past default in the performance of
any of the covenants contained in the Indenture, or established pursuant to the
Indenture with respect to such series, and its consequences, except a default in
the payment of the principal of or premium, if any, or interest on any of the
Debt Securities of such series. Any such consent or waiver by the registered
holder of this Debenture (unless revoked as provided in the Indenture) shall be
conclusive and binding upon such holder and upon all future holders and owners
of this Debenture and of any Debenture issued in exchange herefor or in place
hereof (whether by registration of transfer or otherwise), irrespective of
whether or not any notation of such consent or waiver is made upon this
Debenture.
No reference herein to the Indenture and no provision of this
Debenture or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
premium, if any, and interest on this Debenture at the time and place and at the
rate and in the money herein prescribed.
The Company shall have the right at any time during the term of the
Debentures and from time to time to extend the interest
20
payment period of the Debentures for up to 20 consecutive quarters (each, an
"Extended Interest Payment Period"), following the end of which period the
Company shall pay on the next Interest Payment Date all interest then accrued
and unpaid (together with interest thereon at the rate specified for the
Debentures to the extent that payment of such interest is enforceable under
applicable law); provided that no Extended Interest Payment Period may last
-------- ----
beyond the Maturity Date. Before the termination of any such Extended Interest
Payment Period, the Company may further extend such Extended Interest Payment
Period, provided that such Extended Interest Payment Period together with all
such further extensions thereof shall not exceed 20 consecutive quarters or
extend beyond the Maturity Date. At the termination of any such Extended
Interest Payment Period and upon the payment of all accrued and unpaid interest
and any additional amounts then due, the Company may commence a new Extended
Interest Payment Period.
As provided in the Indenture and subject to certain limitations
therein set forth, this Debenture is transferable by the registered holder
hereof on the Security Register of the Company, upon surrender of this Debenture
for registration of transfer at the office or agency of the Trustee in the City
and State of New York accompanied by a written instrument or instruments of
transfer in form satisfactory to the Company or the Trustee duly executed by the
registered holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Debentures of authorized denominations and for the
same aggregate principal amount and series will be issued to the designated
transferee or transferees. No service charge will be made for any such
transfer, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in relation thereto.
Prior to due presentment for registration of transfer of this
Debenture, the Company, the Trustee, any paying agent and the Security registrar
may deem and treat the registered holder hereof as the absolute owner hereof
(whether or not this Debenture shall be overdue and notwithstanding any notice
of ownership or writing hereon made by anyone other than the Security registrar)
for the purpose of receiving payment of or on account of the principal hereof
and premium, if any, and interest due hereon and for all other purposes, and
neither the Company nor the Trustee nor any paying agent nor any Security
registrar shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of or the
interest on this Debenture, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture, against any
incorporator, stockholder, officer or director, past, present or future, as
such, of the Company or of
21
any predecessor or successor corporation, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise, all such liability being, by the acceptance hereof and as part of the
consideration for the issuance hereof, expressly waived and released.
[The Debentures of this series are issuable only in registered form
without coupons in denominations of $25 and any integral multiple thereof.]
[This Global Debenture is exchangeable for Debentures in definitive form only
under certain limited circumstances set forth in the Indenture. Debentures of
this series so issued are issuable only in registered form without coupons in
denominations of $25 and any integral multiple thereof.] As provided in the
Indenture and subject to certain limitations [herein and] therein set forth,
Debentures of this series [so issued] are exchangeable for a like aggregate
principal amount of Debentures of this series of a different authorized
denomination, as requested by the holder surrendering the same. All terms used
in this Debenture that are defined in the Indenture shall have the meanings
assigned to them in the Indenture.
THE INTERNAL LAWS OF THE STATE OF NEW YORK SHALL GOVERN THE INDENTURE
AND THE DEBENTURES WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF.
22
ARTICLE VIII
ORIGINAL ISSUE OF DEBENTURES
SECTION 8.1 Original Issue of Debentures.
----------------------------
Debentures in the aggregate principal amount of $___________ (or up to
$__________ if the over-allotment option for Preferred Securities is exercised)
may, upon execution of this First Supplemental Indenture, be executed by the
Company and delivered to the Trustee for authentication, and the Trustee shall
thereupon authenticate and deliver said Debentures to or upon the written order
of the Company, signed by its Chairman, its President, any Managing Director or
any Vice President and its Treasurer or an Assistant Treasurer, without any
further action by the Company.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Ratification of Indenture.
-------------------------
The Indenture, as supplemented by this First Supplemental Indenture, is in
all respects ratified and confirmed, and this First Supplemental Indenture shall
be deemed part of the Indenture in the manner and to the extent herein and
therein provided.
SECTION 9.2 Trustee Not Responsible for Recitals.
------------------------------------
The recitals herein contained are made by the Company and the Guarantor and
not by the Trustee, and the Trustee assumes no responsibility for the
correctness thereof. The Trustee makes no representation as to the validity or
sufficiency of this First Supplemental Indenture.
SECTION 9.3 Governing Law.
-------------
This First Supplemental Indenture and each Debenture shall be deemed to be
a contract made under the internal laws of the State of New York, and for all
purposes shall be construed in accordance with the laws of said State without
regard to conflict of laws principles thereof.
SECTION 9.4 Separability.
------------
In case any one or more of the provisions contained in this First
Supplemental Indenture or in the Debentures shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this First
Supplemental Indenture or of the Debentures, but this First Supplemental
Indenture and the
23
Debentures shall be construed as if such invalid or illegal or unenforceable
provision had never been contained herein or therein.
SECTION 9.5 Counterparts.
------------
This First Supplemental Indenture may be executed in any number of
counterparts each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
24
IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, on the date or dates indicated in the
acknowledgements and as of the day and year first above written.
COUNTRYWIDE HOME LOANS, INC.
By: ___________________________
Name:
Title:
[Seal]
Attest:______________________
Title:
COUNTRYWIDE CREDIT INDUSTRIES, INC.
By: ___________________________
Name:
Title:
Attest:______________________
Title:
THE BANK OF NEW YORK
as Trustee
By: ___________________________
Name:
Title:
Attest:______________________
Title:
25