UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
 
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of Earliest Event Reported):
July 8, 2008 (July 1, 2008)
COUNTRYWIDE FINANCIAL CORPORATION
(Exact Name of Registrant as Specified in its Charter)
         
Delaware   1-8422   26-2209742
(State or other jurisdiction of   (Commission File   (IRS Employer Identification
incorporation)   Number)   Number)
4500 Park Granada
Calabasas, CA 91302
(Address of principal executive offices)
(818) 225-3000
(Registrant’s telephone number, including area code)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
o      Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o      Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o      Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o      Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
 
 

 


 

INTRODUCTORY NOTE
     On July 1, 2008, Countrywide Financial Corporation, a Delaware corporation (the “Predecessor Company”), completed its merger (the “Merger”) with Red Oak Merger Corporation (the “Registrant”), a Delaware corporation and a wholly-owned subsidiary of Bank of America Corporation, a Delaware corporation (“Bank of America”), pursuant to the terms of the previously announced Agreement and Plan of Merger, dated as of January 11, 2008 (the “Merger Agreement”), by and among Bank of America, Red Oak Merger Corporation and the Predecessor Company. Upon consummation of the Merger, Red Oak Merger Corporation was renamed “Countrywide Financial Corporation”.
Section 1 — Registrant’s Business and Operations
Item 1.01 Entry into a Material Definitive Agreement.
     On July 1, 2008, the Registrant, as successor, the Predecessor Company, as issuer, and The Bank of New York Mellon, as trustee, entered into a First Supplemental Indenture (the “Subordinated Note Supplemental Indenture”), amending the indenture, dated as of May 16, 2006 between the Predecessor Company, as issuer, and The Bank of New York, as trustee (the “Subordinated Note Indenture”). The Subordinated Note Supplemental Indenture, which became operative on July 1, 2008, provides for the Registrant to assume all of the obligations of the Predecessor Company under the Subordinated Note Indenture.
     On July 1, 2008, the Registrant, as successor, the Predecessor Company, as issuer, its wholly-owned subsidiary, Countrywide Home Loans, Inc. (“CHL”), as guarantor, and The Bank of New York Mellon, as trustee, entered into a First Supplemental Indenture (the “Series A and B First Supplemental Indenture”) amending the indenture, dated as of February 1, 2005 among the Predecessor Company, as issuer, CHL, as guarantor, and The Bank of New York, as trustee (the “Series A and B Indenture”). The Series A and B First Supplemental Indenture, which became operative on July 1, 2008, provides for the Registrant to assume all of the obligations of the Predecessor Company under the Series A and B Indenture.
     On July 1, 2008, the Registrant, as successor, its wholly-owned subsidiary, CHL, as issuer, the Predecessor Company, as guarantor, and The Bank of New York Mellon, as trustee, entered into a Second Supplemental Indenture (the “Series E, F and H Supplemental Indenture”) amending the indenture, dated as of January 1, 1992 among CHL (formerly Countrywide Funding Corporation), as issuer, the Predecessor Company (formerly Countrywide Credit Industries, Inc.), as guarantor, and The Bank of New York, as trustee, as amended by the First Supplemental Indenture, dated as of June 15, 1995 among CHL (formerly Countrywide Funding Corporation), as issuer, the Predecessor Company (formerly Countrywide Credit Industries, Inc.), as guarantor, and The Bank of New York, as trustee (as amended, the “Series E, F and H Indenture”). The Series E, F and H Supplemental Indenture, which became operative on July 1, 2008, provides for the Registrant to assume all of the obligations of the Predecessor Company under the Series E, F and H Indenture.
     On July 1, 2008, the Registrant, as successor, its wholly-owned subsidiary, CHL, as issuer, the Predecessor Company, as guarantor, and The Bank of New York Mellon, as trustee, entered into a First Supplemental Indenture (the “Series K, L and M First Supplemental Indenture”), amending the indenture, dated as of December 1, 2001 among CHL, as issuer, the Predecessor Company (formerly Countrywide Credit Industries, Inc.), as guarantor, and The Bank of New York, as trustee (the “Series K, L and M Indenture”). The Series K, L and M First Supplemental Indenture, which became operative on July 1, 2008, provides for the Registrant to assume all of the obligations of the Predecessor Company under the Series K, L and M Indenture.
     On July 1, 2008, the Registrant, as successor, the Predecessor Company, as issuer, its wholly-owned subsidiary, CHL, as guarantor, Bank of America, as Parent, and The Bank of New York Mellon, as trustee, entered into a First Supplemental Indenture (the “Convertible Debenture First Supplemental Indenture”), amending the

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indenture, dated as of May 22, 2007 among the Predecessor Company, as issuer, CHL, as guarantor, and The Bank of New York, as trustee (the “Convertible Debenture Indenture”). The Convertible Debenture First Supplemental Indenture, which became operative on July 1, 2008, provides for the Registrant to assume all of the obligations of the Predecessor Company under the Convertible Debenture Indenture; provided that Bank of America assumed the obligation to issue shares of Bank of America common stock (or cash in lieu of common stock) upon conversion of the Convertible Debenture Indenture.
     On July 1, 2008, the Registrant, as successor, the Predecessor Company, as issuer, its wholly-owned subsidiary, CHL, as guarantor, and The Bank of New York Mellon, as trustee, entered into a Second Supplemental Indenture (the “2003 Subordinated Note Second Supplemental Indenture”), amending the indenture, dated as of April 11, 2003 among the Predecessor Company, as issuer, CHL, as guarantor, and The Bank of New York, as trustee, as amended by the First Supplemental Indenture, dated as of April 11, 2003 among the Predecessor Company, as issuer, CHL, as guarantor, and The Bank of New York, as trustee (as amended, the “2003 Subordinated Note Indenture”). The 2003 Subordinated Note Second Supplemental Indenture, which became operative on July 1, 2008, provides for the Registrant to assume all of the obligations of the Predecessor Company under the 2003 Subordinated Note Indenture.
     On July 1, 2008, the Registrant, as successor, the Predecessor Company, as issuer, and The Bank of New York Mellon, as trustee, entered into a Second Supplemental Indenture (the “2006 Junior Subordinated Note Second Supplemental Indenture”), amending the indenture, dated as of November 8, 2006 between the Predecessor Company, as issuer, and The Bank of New York, as trustee, as amended by the First Supplemental Indenture, dated as of November 8, 2006 between the Predecessor Company, as issuer, and The Bank of New York, as trustee (as amended, the “2006 Junior Subordinated Note Indenture”). The 2006 Junior Subordinated Note Second Supplemental Indenture, which became operative on July 1, 2008, provides for the Registrant to assume all of the obligations of the Predecessor Company under the 2006 Junior Subordinated Note Indenture.
     On July 1, 2008, the Registrant, as successor, its wholly-owned subsidiary, CHL, as issuer, the Predecessor Company, as guarantor, and The Bank of New York Mellon, as trustee, entered into a First Supplemental Indenture (the “1997 Junior Subordinated Note First Supplemental Indenture”), amending the indenture, dated as of June 4, 1997, among CHL, as issuer, the Predecessor Company (formerly Countrywide Credit Industries, Inc.), as guarantor, and The Bank of New York, as trustee (the “1997 Junior Subordinated Note Indenture”). The 1997 Junior Subordinated Note First Supplemental Indenture, which became operative on July 1, 2008, provides for the Registrant to assume all of the obligations of the Predecessor Company under the 1997 Junior Subordinated Note Indenture.
     On July 1, 2008, the Registrant, as successor, the Predecessor Company, as issuer, its wholly-owned subsidiary, CHL, as guarantor, and Deutsche Trustee Company Limited, as trustee, entered into a Second Supplemental Trust Deed (the “2005 Second Supplemental Trust Deed”), amending the trust deed, dated as of August 15, 2005 among the Predecessor Company, as issuer, CHL, as guarantor, and Deutsche Trustee Company Limited, as trustee, as amended by the First Supplemental Trust Deed, dated as of August 31, 2006 among the Predecessor Company, as issuer, CHL, as guarantor, and Deutsche Trustee Company Limited, as trustee (as amended, the “2005 Euro Medium Term Notes Trust Deed”). The 2005 Second Supplemental Trust Deed, which became operative on July 1, 2008, provides for the Registrant to assume all of the obligations of the Predecessor Company under the 2005 Euro Medium Term Notes Trust Deed.
     On July 1, 2008, the Registrant, as successor, its wholly-owned subsidiary, CHL, as issuer, the Predecessor Company, as guarantor, and Deutsche Trustee Company Limited, as trustee, entered into a Fifth Supplemental Trust Deed (the “1998 Euro Medium Term Notes Supplemental Trust Deed”), amending the trust deed, dated as of May 1, 1998 among CHL, as issuer, the Predecessor Company (formerly Countrywide Credit Industries, Inc.), as guarantor, and Bankers Trustee Company Limited, as trustee, as amended by the Fourth Supplemental Trust Deed dated as of January 29, 2002 among CHL, as issuer, the Predecessor Company, as guarantor, and Deutsche Trustee Company Limited, as trustee (as amended, the “1998 Euro Medium Term Notes Trust Deed”). The 1998 Euro Medium Term Notes Supplemental Trust Deed, which became operative on July 1, 2008, provides for the Registrant to assume all of the obligations of the Predecessor Company under the 1998 Euro Medium Term Notes Trust Deed.

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     On July 1, 2008, the Registrant, as successor, and the Predecessor Company, as issuer, entered into a First Supplemental Note Deed Poll (the “First Supplemental Note Deed Poll”), amending the note deed poll, dated as of April 29, 2005 by the Predecessor Company, as issuer (the “Note Deed Poll”). The First Supplemental Note Deed Poll, which became operative on July 1, 2008, provides for the Registrant to assume all of the obligations of the Predecessor Company under the Note Deed Poll.
Item 1.02. Termination of a Material Definitive Agreement.
1. Termination of Equity Incentive Plans
     On July 1, 2008, in connection with the Merger, the equity incentive plans of the Predecessor Company, including the 2000 Equity Incentive Plan and the 2006 Equity Incentive Plan, were terminated. Options, stock appreciation rights, restricted shares, restricted share units and deferred equity units in respect of the Predecessor Company’s common stock outstanding immediately prior to the Merger under the Predecessor Company’s equity incentive plans were converted into options, stock appreciation rights, restricted shares, restricted share units and deferred equity units in respect of Bank of America common stock, in each case in accordance with the terms of the Merger Agreement.
2. Termination of Credit Facilities
     On July 1, 2008, the Registrant terminated each of the following credit agreements (the “Terminated Credit Facilities”):
     
Five-Year Credit Agreement, dated as of May 10, 2006, among the Predecessor Company, CHL, JPMorgan Chase Bank, N.A., as managing administrative agent, Bank of America, N.A., as administrative agent, ABN AMRO Bank N.V., as syndication agent, Citibank, N.A. and Deutsche Bank AG New York Branch, as documentation agents, and the lenders party thereto. Prior to termination, there was an outstanding principal amount under this agreement of approximately $6.44 billion.
 
     
364-Day Credit Agreement, dated as of May 9, 2007, among the Predecessor Company, CHL, JPMorgan Chase Bank, N.A., as managing administrative agent, Bank of America, N.A., as administrative agent, ABN AMRO Bank N.V., as syndication agent, Citibank, N.A. and Deutsche Bank AG New York Branch, as documentation agents, and the lenders party thereto. Prior to termination, there was an outstanding principal amount under this agreement of approximately $2.64 billion.
 
     
Five-Year Credit Agreement, dated as of November 17, 2006, among the Predecessor Company, CHL, Countrywide Bank, N.A., Barclays Bank PLC, as managing administrative agent, BNP Paribas, as administrative agent, Royal Bank of Canada, as syndication agent, Société Générale, as documentation agent, and the lenders party thereto. Prior to termination, there was an outstanding principal amount under this agreement of approximately $1.54 billion.
 
     
364-Day Credit Agreement, dated as of November 17, 2006, among the Predecessor Company, CHL, Countrywide Bank, N.A., Barclays Bank PLC, as managing administrative agent, BNP Paribas, as administrative agent, Royal Bank of Canada, as syndication agent, Société Générale, as documentation agent, and the lenders party thereto. Prior to termination, there was an outstanding principal amount under this agreement of approximately $660 million.
 
     
364-Day Credit Agreement, dated as of May 9, 2007, among the Predecessor Company, CHL and William Street Credit Corporation, as Lender. Prior to termination, there was an outstanding principal amount under this agreement of approximately $60 million.
 
     
Five-Year Credit Agreement, dated as of May 10, 2006, among the Predecessor Company, CHL and William Street Credit Corporation, as Lender, as amended. Prior to termination, there was an outstanding principal amount under this agreement of approximately $140 million.
     The Registrant repaid all outstanding borrowings plus accrued interest and fees under the Terminated Credit Facilities on July 1, 2008 with approximately $11.5 billion in cash. The Terminated Credit Facilities were terminated in connection with such repayment. The Registrant did not incur any material early termination penalties in connection with the termination of the Terminated Credit Facilities.

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Section 2 — Financial Information
Item 2.01. Completion of Acquisition or Disposition of Assets.
     On July 1, 2008, CHL completed the sale to NB Holdings Corporation (“NBHC”), a wholly-owned subsidiary of Bank of America, of a pool of residential mortgage loans, including first and second lien mortgages, home equity line of credit loans, and construction loans, for a fair value purchase price of approximately $6.9 billion, subject to certain adjustments.
     On July 1, 2008, CHL novated a portfolio of derivative instruments to Bank of America, N.A., a wholly-owned subsidiary of Bank of America, in exchange for $1.8 billion in cash.
     On July 2, 2008, CHL completed the sale to NBHC of two entities that own all of the partnership interests in Countrywide Home Loans Servicing, LP (“Servicing LP”) for a fair value purchase price of approximately $19.7 billion, subject to certain adjustments. In connection with this sale, NBHC delivered to CHL a promissory note that bears interest at a rate per annum equal to three-month LIBOR plus 0.65%, is due upon demand and can be prepaid in whole or in part at any time. Approximately $10.4 billion remains outstanding under this note. In addition, in connection with the sale, CHL agreed to assume all liabilities of Servicing LP as of July 2, 2008. Servicing LP owns servicing rights to residential mortgage loans and conducts servicing functions related to those loans. It also performs subservicing for residential mortgage loans when such loans or the related mortgage servicing rights are owned by the Registrant.
     On July 2, 2008, Countrywide Securities Corporation completed the sale to Blue Ridge Investments, LLC, a wholly owned subsidiary of Bank of America, of a pool of securities, which includes asset backed securities and mortgage backed securities, for a fair value purchase price of approximately $147 million in cash.
     On July 3, 2008, CHL completed the sale to NBHC of a pool of residential mortgage loans, which includes first and second lien mortgages, home equity line of credit loans, and construction loans for a fair value purchase price of approximately $2.5 billion, subject to certain adjustments. In connection with this sale, NBHC delivered to CHL a promissory note that bears interest at a rate per annum equal to three-month LIBOR plus 0.65%, is due upon demand and can be repaid in whole or in part at any time. Approximately $2.5 billion remains outstanding under this note. These loans, together with the loans sold on July 1, 2008, exclude loans pledged by CHL pursuant to secured financing arrangements.
     On July 3, 2008, Countrywide Commercial Real Estate Finance, a subsidiary of the Registrant, completed the sale of a pool of commercial mortgage loans to NBHC for a fair value purchase price of approximately $238 million, subject to certain adjustments. In connection with this sale, NBHC delivered to CHL a promissory note that bears interest at a rate per annum equal to three-month LIBOR plus 0.65%, is due upon demand and can be repaid in whole or in part at any time. Approximately $238 million remains outstanding under this note. These commercial mortgage loans exclude loans scheduled to be sold or mature in the near future.
     The Registrant effected the dispositions described above to facilitate and optimize its funding requirements, including the repayment of the Terminated Credit Facilities, described under Item 1.02 above, and the payment of other obligations.
     The Registrant expects to furnish the required pro forma financial information in connection with the disposition of Servicing LP described above under this Item 2.01 when available but no later than September 17, 2008.
Item 2.03. Creation of a Direct Financial Obligation.
     The information set forth under Item 1.01 above is incorporated by reference into this Item 2.03.

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Section 3 — Securities and Trading Markets
Item 3.01. Notice of Delisting or Failure to Satisfy a Continued Listing Rule Or Standard; Transfer Of Listing.
     On July 1, 2008, pursuant to the terms of the Merger Agreement, Bank of America completed the acquisition of the Predecessor Company through the Merger of the Predecessor Company with and into Red Oak Merger Corporation. All of the issued and outstanding capital stock of the Registrant is currently owned directly or indirectly by Bank of America.
     In connection with the closing of the Merger, the Predecessor Company notified the New York Stock Exchange (“NYSE”) that, effective as of 12.01 a.m. on July 1, 2008, all of the Predecessor Company’s outstanding shares of common stock, par value $0.05 per share, and associated preferred stock purchase rights traded on the NYSE under the symbol “CFC” would be cancelled and converted into the right to receive 0.1822 of a share of Bank of America common stock, par value $0.01 per share, per share of Predecessor Company common stock and an amount in cash in lieu of any fractional share. Accordingly, the Predecessor Company requested that its common stock and preferred stock purchase rights be delisted and cease to trade at the close of business on June 30, 2008 and that the NYSE submit to the SEC Form 25s to report that the Predecessor Company’s shares of common stock and preferred stock purchase rights are no longer listed on the NYSE.
     The NYSE filed the Form 25s with the SEC on July 1, 2008.
     On July 1, 2008, Bank of America issued a press release announcing completion of the Merger. The press release is attached to this Current Report on Form 8-K as Exhibit 99.1 and is incorporated herein by reference.
Item 3.03. Material Modification to Rights of Security Holders.
     In the Merger, each share of the Predecessor Company’s common stock issued and outstanding immediately prior to the Merger (except for specified shares of Predecessor Company’s common stock held by the Predecessor Company and Bank of America) was cancelled and converted into the right to receive 0.1822 of a share of Bank of America common stock and an amount in cash in lieu of any fractional share. All shares of the Predecessor Company’s 7.25% Series B Non-Voting Convertible Preferred Stock, par value $0.05, were cancelled and no stock or other consideration was delivered in exchange therefor.
     In addition, the information set forth in Item 1.01 is incorporated by reference herein.
Section 5 — Corporate Governance and Management
Item 5.01. Changes in Control of Registrant.
     On July 1, 2008, pursuant to the terms of the Merger Agreement, Bank of America consummated the acquisition of the Predecessor Company through the Merger of the Predecessor Company with and into Red Oak Merger Corporation. Bank of America currently is the sole stockholder of the Registrant. Bank of America issued an aggregate of 106,269,417 shares of Bank of America common stock in the Merger.
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
     Pursuant to the Merger Agreement, upon consummation of the Merger, Red Oak Merger Corporation amended its certificate of incorporation to change its name to Countrywide Financial Corporation. As a result of the Merger, the Registrant’s certificate of incorporation and bylaws are as set forth on Exhibits 3.1 and 3.2 to this Current Report on Form 8-K, which exhibits are incorporated herein by reference.

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Section 9 — Financial Statements and Exhibits
Item 9.01. Financial Statements and Exhibits.
(b)  
The pro forma financial information required in connection with the disposition of Servicing LP described under Item 2.01 to this Current Report on Form 8-K is expected to be furnished when available, but no later than September 17, 2008.
(d)  
Exhibits
     
Exhibit    
No.   Description
 
   
3.1
  Certificate of Incorporation of Countrywide Financial Corporation
3.2
  Bylaws of Countrywide Financial Corporation
4.1
  First Supplemental Indenture, dated July 1, 2008, among Red Oak Merger Corporation, Countrywide Financial Corporation and The Bank of New York Mellon, as trustee, to the Subordinated Indenture between Countrywide Financial Corporation, and The Bank of New York, as trustee, dated as of May 16, 2006
4.2
  First Supplemental Indenture, dated July 1, 2008, among Red Oak Merger Corporation, Countrywide Financial Corporation, Countrywide Home Loans, Inc., and The Bank of New York Mellon, as trustee, to the Indenture between Countrywide Financial Corporation, Countrywide Home Loans, Inc., and The Bank of New York, as trustee, dated as of February 1, 2005
4.3
  Second Supplemental Indenture, dated July 1, 2008, among Red Oak Merger Corporation, Countrywide Home Loans, Inc., Countrywide Financial Corporation, and The Bank of New York Mellon, as trustee, to the Indenture between Countrywide Funding Corporation, Countrywide Credit Industries, Inc., and The Bank of New York, as trustee dated as of January 1, 1992, as supplemented by First Supplemental Indenture, dated as of June 15, 1995, among Countrywide Home Loans, Inc. (formerly Countrywide Funding Corporation), Countrywide Financial Corporation (formerly Countrywide Credit Industries, Inc.), and The Bank of New York, as trustee
4.4
  First Supplemental Indenture, dated July 1, 2008, among Red Oak Merger Corporation, Countrywide Home Loans, Inc., Countrywide Financial Corporation, and The Bank of New York Mellon, as trustee, to the Indenture between Countrywide Home Loans, Countrywide Credit Industries, Inc., and The Bank of New York, as trustee dated as of December 1, 2001
4.5
  First Supplemental Indenture, dated July 1, 2008, among Red Oak Merger Corporation, Countrywide Financial Corporation, Countrywide Home Loans, Inc., Bank of America Corporation, and The Bank of New York Mellon, as trustee, to the Indenture between Countrywide Financial Corporation, Countrywide Home Loans, Inc., and The Bank of New York, as trustee, dated as of May 22, 2007
4.6
  Second Supplemental Indenture, dated July 1, 2008, among Red Oak Merger Corporation, Countrywide Financial Corporation, Countrywide Home Loans, Inc., and The Bank of New York Mellon, as trustee, to the Subordinated Indenture between Countrywide Financial Corporation, Countrywide Home Loans, Inc., and The Bank of New York, as trustee, dated as of April 11, 2003, as supplemented by First Supplemental Indenture, dated as of April 11, 2003, among Countrywide Financial Corporation, Countrywide Home Loans, Inc., and The Bank of New York, as trustee
4.7
  Second Supplemental Indenture, dated July 1, 2008, among Red Oak Merger Corporation, Countrywide Financial Corporation, and The Bank of New York Mellon, as trustee, to the Junior Subordinated Indenture between Countrywide Financial Corporation, and The Bank of New York, as trustee, dated as of November 8, 2006, as supplemented by Supplemental Indenture, dated as of November 8, 2006, between Countrywide Financial Corporation and The Bank of New York, as trustee
4.8
  First Supplemental Indenture, dated July 1, 2008, among Red Oak Merger Corporation, Countrywide Home Loans, Inc., Countrywide Financial Corporation, and The Bank of New York Mellon, as trustee, to the Indenture among Countrywide Home Loans, Inc., Countrywide Credit Industries, Inc., and The Bank of New York, as trustee, dated as of June 4, 1997

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4.9
  Second Supplemental Trust Deed, dated July 1, 2008, among Red Oak Merger Corporation, Countrywide Financial Corporation, Countrywide Home Loans, Inc., and Deutsche Trustee Company Limited, as trustee, to the Trust Deed among Countrywide Financial Corporation, Countrywide Home Loans, Inc., and Deutsche Trustee Company Limited, as trustee, dated as of August 15, 2005, as supplemented and restated by First Supplemental Trust Deed, dated as of August 31, 2006, among Countrywide Home Loans, Inc., Countrywide Financial Corporation, and Deutsche Trustee Company Limited, as trustee
4.10
  Fifth Supplemental Trust Deed, dated July 1, 2008, among Red Oak Merger Corporation, Countrywide Home Loans, Inc., Countrywide Financial Corporation, and Deutsche Trustee Company Limited, as trustee, to the Trust Deed among Countrywide Home Loans, Inc., Countrywide Financial Corporation (formerly Countrywide Credit Industries, Inc.), and Bankers Trustee Company Limited, as trustee, dated as of May 1, 1998, as supplemented and restated by Fourth Supplemental Trust Deed, dated as of January 29, 2002, among Countrywide Home Loans, Inc., Countrywide Financial Corporation (formerly Countrywide Credit Industries, Inc.), and Deutsche Trustee Company Limited, as trustee
4.11
  First Supplemental Note Deed Poll, dated July 1, 2008, between Red Oak Merger Corporation and Countrywide Financial Corporation to the Note Deed Poll by Countrywide Financial Corporation, dated as of April 29, 2005
99.1
  Press Release of Bank of America Corporation, dated July 1, 2008

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SIGNATURE
     Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
         
 
  COUNTRYWIDE FINANCIAL CORPORATION
 
       
Date: July 8, 2008
  By:   /s/ Paul Lane
 
       
 
  Name:   Paul Lane
 
  Title:   Senior Vice President and Assistant General Counsel


 

INDEX OF EXHIBITS
     
Exhibit    
No.   Description
 
   
3.1
  Certificate of Incorporation of Countrywide Financial Corporation
3.2
  Bylaws of Countrywide Financial Corporation
4.1
  First Supplemental Indenture, dated July 1, 2008, among Red Oak Merger Corporation, Countrywide Financial Corporation, and The Bank of New York Mellon, as trustee, to the Subordinated Indenture between Countrywide Financial Corporation, and The Bank of New York, as trustee, dated as of May 16, 2006
4.2
  First Supplemental Indenture, dated July 1, 2008, among Red Oak Merger Corporation, Countrywide Financial Corporation, Countrywide Home Loans, Inc., and The Bank of New York Mellon, as trustee, to the Indenture between Countrywide Financial Corporation, Countrywide Home Loans, Inc., and The Bank of New York, as trustee, dated as of February 1, 2005
4.3
  Second Supplemental Indenture, dated July 1, 2008, among Red Oak Merger Corporation, Countrywide Home Loans, Inc., Countrywide Financial Corporation, and The Bank of New York Mellon, as trustee, to the Indenture between Countrywide Funding Corporation, Countrywide Credit Industries, Inc., and The Bank of New York, as trustee dated as of January 1, 1992, as supplemented by First Supplemental Indenture, dated as of June 15, 1995, among Countrywide Home Loans, Inc. (formerly Countrywide Funding Corporation), Countrywide Financial Corporation (formerly Countrywide Credit Industries, Inc.), and The Bank of New York, as trustee
4.4
  First Supplemental Indenture, dated July 1, 2008, among Red Oak Merger Corporation, Countrywide Home Loans, Inc., Countrywide Financial Corporation, and The Bank of New York Mellon, as trustee, to the Indenture between Countrywide Home Loans, Countrywide Credit Industries, Inc., and The Bank of New York, as trustee dated as of December 1, 2001
4.5
  First Supplemental Indenture, dated July 1, 2008, among Red Oak Merger Corporation, Countrywide Financial Corporation, Countrywide Home Loans, Inc., Bank of America Corporation, and The Bank of New York Mellon, as trustee, to the Indenture between Countrywide Financial Corporation, Countrywide Home Loans, Inc., and The Bank of New York, as trustee, dated as of May 22, 2007
4.6
  Second Supplemental Indenture, dated July 1, 2008, among Red Oak Merger Corporation, Countrywide Financial Corporation, Countrywide Home Loans, Inc., and The Bank of New York Mellon, as trustee, to the Subordinated Indenture between Countrywide Financial Corporation, Countrywide Home Loans, Inc., and The Bank of New York, as trustee, dated as of April 11, 2003, as supplemented by First Supplemental Indenture, dated as of April 11, 2003, among Countrywide Financial Corporation, Countrywide Home Loans, Inc., and The Bank of New York, as trustee
4.7
  Second Supplemental Indenture, dated July 1, 2008, among Red Oak Merger Corporation, Countrywide Financial Corporation, and The Bank of New York Mellon, as trustee, to the Junior Subordinated Indenture between Countrywide Financial Corporation and The Bank of New York, as trustee, dated as of November 8, 2006, as supplemented by Supplemental Indenture, dated as of November 8, 2006, between Countrywide Financial Corporation and The Bank of New York, as trustee
4.8
  First Supplemental Indenture, dated July 1, 2008, among Red Oak Merger Corporation, Countrywide Home Loans, Inc., Countrywide Financial Corporation, and The Bank of New York Mellon, as trustee, to the Indenture among Countrywide Home Loans, Inc., Countrywide Credit Industries, Inc., and The Bank of New York, as trustee, dated as of June 4, 1997
4.9
  Second Supplemental Trust Deed, dated July 1, 2008, among Red Oak Merger Corporation, Countrywide Financial Corporation, Countrywide Home Loans, Inc., and Deutsche Trustee Company Limited, as trustee, to the Trust Deed among Countrywide Financial Corporation, Countrywide Home Loans, Inc., and Deutsche Trustee Company Limited, as trustee, dated as of August 15, 2005, as supplemented and restated by First Supplemental Trust Deed, dated as of August 31, 2006, among Countrywide Home Loans, Inc., Countrywide Financial Corporation, and Deutsche Trustee Company Limited, as trustee
4.10
  Fifth Supplemental Trust Deed, dated July 1, 2008, among Red Oak Merger Corporation, Countrywide Home Loans, Inc., Countrywide Financial Corporation, and Deutsche Trustee Company Limited, as trustee, to the Trust Deed among Countrywide Home Loans, Inc., Countrywide Financial Corporation (formerly Countrywide Credit Industries, Inc.), and Bankers Trustee Company Limited, as trustee, dated as of May 1, 1998, as supplemented and restated by Fourth Supplemental Trust Deed, dated as of


 

     
 
  January 29, 2002, among Countrywide Home Loans, Inc., Countrywide Financial Corporation (formerly Countrywide Credit Industries, Inc.), and Deutsche Trustee Company Limited, as trustee
4.11
  First Supplemental Note Deed Poll, dated July 1, 2008, between Red Oak Merger Corporation and Countrywide Financial Corporation to the Note Deed Poll by Countrywide Financial Corporation, dated as of April 29, 2005
99.1
  Press Release of Bank of America Corporation, dated July 1, 2008

Exhibit 3.1
Exhibit 3.1
CERTIFICATE OF INCORPORATION
OF
RED OAK MERGER CORPORATION
     I, THE UNDERSIGNED, in order to form a corporation for the purposes hereinafter stated, under and pursuant to the provisions of the General Corporation Law of the State of Delaware, do hereby certify as follows:
     FIRST: The name of the corporation is Red Oak Merger Corporation (hereinafter referred to as the “Corporation”).
     SECOND: The registered office of the Corporation is to be located at 1209 Orange Street, in the City of Wilmington, in the County of New Castle, in the State of Delaware. The name of its registered agent at that address is The Corporation Trust Company.
     THIRD: The purpose of the Corporation is to engage in any lawful act or activity for which a corporation may be organized under the General Corporation Law of Delaware.
     FOURTH: The total number of shares of stock which the Corporation is authorized to issue is 1,000 shares of common stock and the par value of each of such shares is $0.01.
     FIFTH: The name and address of the incorporator is as follows:
Jason C. Ford
c/o Cleary Gottlieb Steen & Hamilton LLP
One Liberty Plaza
New York, NY 10006

 


 

     SIXTH: The following provisions are inserted for the management of the business and for the conduct of the affairs of the Corporation, and for further definition, limitation and regulation of the powers of the Corporation and of its directors and stockholders:
     (l) The number of directors of the Corporation shall be such as from time to time shall be fixed by, or in the manner provided in, the by-laws. Election of directors need not be by ballot unless the by-laws so provide.
     (2) The Board of Directors shall have powers without the assent or vote of the stockholders to make, alter, amend, change, add to or repeal the by-laws of the Corporation; to fix and vary the amount to be reserved for any proper purpose; to authorize and cause to be executed mortgages and liens upon all or any part of the property of the Corporation; to determine the use and disposition of any surplus or net profits; and to fix the times for the declaration and payment of dividends.
     (3) The directors in their discretion may submit any contract or act for approval or ratification at any annual meeting of the stockholders or at any meeting of the stockholders called for the purpose of considering any such act or contract, and any contract or act that shall be approved or be ratified by the vote of the holders of a majority of the stock of the Corporation which is represented in person or by proxy at such meeting and entitled to vote thereat (provided that a lawful quorum of stockholders be there represented in person or by proxy) shall be as valid and as binding upon the Corporation and upon all the stockholders as though it had been approved or ratified by every stockholder of the Corporation, whether or not the contract or act would otherwise be open to legal attack because of directors’ interest, or for any other reason.

 


 

     (4) In addition to the powers and authorities hereinbefore or by statute expressly conferred upon them, the directors are hereby empowered to exercise all such powers and do all such acts and things as may be exercised or done by the Corporation; subject, nevertheless, to the provisions of the statutes of Delaware, of this certificate, and to any by-laws from time to time made by the stockholders; provided, however, that no by-laws so made shall invalidate any prior act of the directors which would have been valid if such by-law had not been made.
     SEVENTH: The Corporation shall, to the full extent permitted by Section 145 of the Delaware General Corporation Law, as amended from time to time, indemnify all persons whom it may indemnify pursuant thereto.
     EIGHTH: Whenever a compromise or arrangement is proposed between the Corporation and its creditors or any class of them and/or between the Corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware, may, on the application in a summary way of the Corporation or of any creditor or stockholder thereof or on the application of any receiver or receivers appointed for the Corporation under the provisions of section 291 of Title 8 of the Delaware Code or on the application of trustees in dissolution or of any receiver or receivers appointed for the Corporation under the provisions of section 279 of Title 8 of the Delaware Code order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders of the Corporation, as the case may be, to be summoned in such manner as the said court directs. If a majority in number representing three-fourths in value of the creditors or class of creditors, and/or of the stockholders or class of stockholders of the Corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of the Corporation as consequence

 


 

of such compromise or arrangement, the said compromise or arrangement and the said reorganization shall, if sanctioned by the court to which the said application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders, of the Corporation, as the case may be, and also on the Corporation.
     NINTH: The Corporation reserves the right to amend, alter, change or repeal any provision contained in this certificate of incorporation in the manner now or hereafter prescribed by law, and all rights and powers conferred herein on stockholders, directors and officers are subject to this reserved power.
     TENTH: The personal liability of the directors of the Corporation is hereby eliminated to the fullest extent permitted by paragraph (7) of subsection (b) of Section 102 of the General Corporation Law of the State of Delaware, as the same may be amended or supplemented. Any repeal or modification of this Article Tenth by the stockholders of the Corporation shall not adversely affect any right or protection of a director of the Corporation existing at the time of such repeal or modification with respect to acts or omissions for or with respect to any acts or omissions of such director occurring prior to such repeal or modification.
     ELEVENTH: Section 203 of the General Corporation Law of the State of Delaware shall not apply to the Corporation.
     IN WITNESS WHEREOF, I have hereunto set my hand the 10th day of January, 2008.
       
 
  /s/ Jason C. Ford
 
   
 
  Name: Jason C. Ford
Title: Sole Incorporator

 


 

CERTIFICATE OF MERGER
OF
COUNTRYWIDE FINANCIAL CORPORATION
(a Delaware corporation)
with and into
RED OAK MERGER CORPORATION
(a Delaware corporation)
     Pursuant to Section 251 of the General Corporation Law of the State of Delaware (the “DGCL”), Red Oak Merger Corporation, a Delaware corporation (“ROMC”), hereby certifies the following information relating to the merger of Countrywide Financial Corporation, a Delaware corporation (“Countrywide”), with and into ROMC (the “Merger”):
     
FIRST:
  The name and state of incorporation of each of the constituent corporations (the “Constituent Corporations”) in the Merger are:
       
 
Name
  State of Incorporation
 
Red Oak Merger Corporation
  Delaware
 
Countrywide Financial Corporation
  Delaware
     
SECOND:
  The Agreement and Plan of Merger, dated as of January II, 2008, by and among Countrywide, Bank of America Corporation and ROMC (the “Merger Agreement”), setting forth the terms and conditions of the Merger, has been approved, adopted, certified, executed and acknowledged by each of the Constituent Corporations in accordance with the requirements of Section 251 of the DGCL.
 
   
THIRD:
  ROMC shall be the surviving corporation of the Merger (the “Surviving Corporation”) and the name of the Surviving Corporation following the Merger shall be Countrywide Financial Corporation.
 
   
FOURTH:
  The certificate of incorporation of ROMC in effect immediately prior to the effective time of the Merger shall be amended such that Item 1 thereof shall read as follows: “The name of the corporation is Countrywide Financial Corporation,” and as so amended, shall be the certificate of incorporation of the Surviving Company.
 
   
FIFTH:
  The executed Merger Agreement is on file at the principal place of business of the Surviving Corporation at Bank of America Corporate Center, 100 N. Tryon Street, Charlotte, North Carolina 28255.
 
   
SIXTH:
  A copy of the Merger Agreement will be furnished by the Surviving Corporation, on request and without cost, to any stockholder of either Constituent Corporation.

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SEVENTH:
  The Merger shall become effective as of 12:01 a.m., Eastern Daylight time, on July 1, 2008.
[signature page follows]

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     IN WITNESS WHEREOF, ROMC has caused this Certificate of Merger to be executed by its duly authorized officer on this 30th day of June, 2008.
         
 
  RED OAK MERGER CORPORATION
 
       
 
  By:   /s/ Joe Price
 
       
 
  Name:   Joe Price
 
  Title:   Chief Financial Officer

Exhibit 3.2
Exhibit 3.2
BYLAWS OF
COUNTRYWIDE FINANCIAL CORPORATION
ARTICLE I
MEETINGS OF STOCKHOLDERS
     Section 1.1 Annual Meeting. Unless a different date is designated by the Board of Directors, or unless action is taken without a meeting by consent of the stockholders, the annual meeting of the stockholders for the election of directors and the transaction of any business within the powers of the Corporation shall be held on the fourth Wednesday in April at the main office of the Corporation or any other convenient place the Board of Directors may designate.
     Section 1.2 Action Without Meeting. Action required or permitted to be taken at a stockholders’ meeting may be taken without a meeting and without action by the Board of Directors if the action is taken by all the shareholders entitled to vote on the matter.
ARTICLE II
BOARD OF DIRECTORS
     Section 2.1 General Powers. The business and affairs of the Corporation shall be managed under the direction of its Board of Directors.
     Section 2.2 Number of Election. The Board of Directors shall consist of not less than three nor more than thirteen directors, the exact number within the minimum and maximum limits to be determined from time to time by the Board or by the stockholders. Directors shall hold office until their resignation, removal, retirement, death, disqualification, or until their successor is elected and has qualified.
     Section 2.3 Vacancies. Any vacancy occurring on the Board of Directors, including a vacancy resulting from an increase in the number of directors, may be filled by action of the stockholders or by the affirmative vote of a majority of the remaining directors though such majority be less than a quorum of the Board.
     Section 2.4 Regular Meetings. The Board of Directors may hold a regular meeting at such time and place as the Board may from time to time determine. Regular meetings may be held without notice.
     Section 2.5 Special Meetings. Special meetings of the Board of Directors may be called by or at the request of the Chairman of the Board, the President, the Secretary, or any two directors. Notice of the time and place of each special meeting shall be given orally or in writing to each director in advance of the meeting. Any director may waive

 


 

notice of any meeting, and attendance at or participation in any meeting shall constitute a waiver of notice of such meeting unless the director objects at the beginning of the meeting, or promptly upon arrival, to holding it or transacting business at the meeting and does not thereafter vote for or assent to action taken at the meeting.
     Section 2.6 Quorum. A majority of the number of directors fixed in these Bylaws shall constitute a quorum for the transaction of business at any meeting of the Board of Directors. If a quorum is not present, a majority of those in attendance may adjourn the meeting from time to time until a quorum is obtained, or may adjourn sine die.
     Section 2.7 Informal Action. The action of the majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors. Any action required or permitted to be taken at a meeting of directors may be taken without a meeting if one or more written consents stating the action taken are signed before or after such action. Such written consent shall have the same force and effect as a unanimous vote.
     Section 2.8 Presumption of Assent. A director of the Corporation who is present at a meeting of the Board of Directors when any matter is taken is deemed to have assented to the action taken unless the director votes against or abstains from the action taken, or unless at the beginning of the meeting or promptly upon arrival the director objects to the holding of the meeting or transacting specified business at the meeting. Any such dissenting votes, abstentions or objections shall be entered in the minutes of the meeting.
ARTICLE III
COMMITTEES
     Section 3.1 Membership. Except for those duties which by law or regulation must be performed by a least a majority of the full Board of Directors, the performance of such duties as the Board deems appropriate may be assigned to one or more committees. Each committee shall have the authority of the Board to the full extent provided in these Bylaws or as otherwise determined by the Board. Except as otherwise provided in these Bylaws, membership of each committee shall be established from time to time by the Board of Directors and may include in whole or in part individuals who are not members of the Board and individuals who are not employees of the Corporation. All members of committees shall serve at the pleasure of the Board of Directors.
     Section 3.2 Notice. Unless a committee shall provide otherwise, it shall not be necessary to give notice of any of its regular meetings. Special meetings may be held on call by the chairman of the committee, or any two members of the committee, or in such manner as provided in these Bylaws for calling special meetings of the Board of Directors if not so prescribed.

 


 

     Section 3.3 Compensation and Management Compensation Committees. Notwithstanding any other provision of these Bylaws, the Compensation Committee and the Management Compensation Committee of Bank of America Corporation shall be the Compensation Committee and the Management Compensation Committee of this Corporation, and each shall have full and complete authority to act for and on behalf of this Corporation in the exercise of the authority granted to it by the Bylaws and the Board of Directors of Bank of America Corporation.
     Section 3.4 Informal Action. Any action that may be taken at a meeting of a committee of the Board of Directors may also be taken without a meeting in accordance with the procedures applicable to actions taken by the full Board.
ARTICLE IV
OFFICERS
     Section 4.1 Officers. The officers of the Corporation shall include a Chairman of the Board, a President, a Secretary, a Treasurer and such other officers as appointed, from time to time, by the Board of Directors or in accordance with the authority vested under Section 3.3 of these Bylaws. Additionally, the Chairman of the Board and the President shall have the power to appoint and to delegate the power to appoint such officers as they may deem appropriate.
     Section 4.2 Term. Each officer of the Corporation shall serve at the pleasure of the Board of Directors, and the Board may remove any officer at any time with or without cause. Any officer, if appointed by the Compensation Committee, the Management Compensation Committee, or by another officer of the Corporation, may likewise be removed by such Committee or an officer of the Corporation.
     Section 4.3 Authority and Duties. All officers of the Corporation shall have such authority and perform such duties in the management of the property and affairs of the Corporation as generally pertain to their respective offices, as well as such authority and duties as may be determined by the Board of Directors, the Compensation Committee, the Management Compensation Committee, the Chairman of the Board, or the President.
     Section 4.4 Execution of Instruments. All agreements, indentures, mortgages, deeds, conveyances, transfers, contracts, checks, notes, drafts, loan documents, letters of credit, master agreements, swap agreements, guarantees of signatures, certificates, declarations, receipts, discharges, releases, satisfactions, settlements, petitions, schedules, accounts, affidavits, bonds, undertakings, proxies and other instruments or documents may be signed, executed, acknowledged, verified, attested, delivered or accepted on behalf of the Corporation by the Chairman of the Board, the President, the Treasurer, any Vice President, any Assistant Vice President, or any individual who is listed on the Corporation’s Officer’s payroll file in a position equal to any of the aforementioned

 


 

officer positions, or such other officers, employees or agents as the Board of Directors or any of such designated officers or individuals may direct. The provisions of this Section 4.4 are supplementary to any other provision of these Bylaws.
     Section 4.5 Employees Other Than Officers. Subject to the authority of the Board of Directors, the Compensation Committee and the Management Compensation Committee, the Chairman of the Board, the President, or any Corporation officer authorized by either of such Committees, the Chairman of the Board, or the President, may employ such agents and employees other than officers as such Committee or officer may deem advisable for the prompt and orderly transaction of the business of the Corporation, define their duties, fix their compensation and dismiss them.
ARTICLE V
CERTIFICATES FOR SHARES AND THEIR TRANSFER
     Section 5.1 Form and Signatures. Shares of the Corporation may but need not be represented by certificates. Any certificates evidencing shares of the Corporation shall be signed by the Chairman of the Board, the President or a Vice President and by the Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer, or any other officers authorized by a resolution of the Board of Directors, and may but need not be sealed by the seal of the Corporation or a facsimile thereof. The signatures of the officers upon a certificate may be facsimiles.
     Section 5.2 Transfer of Shares. Assignment or transfer of shares of the Corporation shall be made only on the books of the Corporation, and any assignment or transfer shall be made at the direction of the holder of record thereof or by the legal representative of the holder of record.
ARTICLE VI
MISCELLANEOUS PROVISIONS
     Section 6.1 Shares of Other Corporations. The Chairman of the Board, the President, the Secretary, the Treasurer, or such other officers, employees or agents as the Board of Directors or such designated officers may direct are authorized to vote, represent and exercise on behalf of the Corporation all rights incident to any and all shares of any other corporations or associations standing in the name of the Corporation. The authority herein granted to said individual to vote or represent on behalf of the Corporation any and all shares held by the Corporation in any other corporations or associations may be exercised either by the individual in person or by any duly executed proxy or power of attorney.

 


 

     Section 6.2 Seal. The Secretary, an Assistant Secretary, or any person authorized to execute instruments in accordance with Section 4.4 shall have the authority to affix any corporate seal, or a facsimile thereof, to any document requiring a seal and to attest the same.
     Section 6.3 Electronic Meetings. Subject to the requirements of these Bylaws or the Corporation’s charter for notice of meetings, shareholders, members of the Board of Directors, or members of any committee designated by such Board, may participate in and hold a meeting of such shareholders, Board of Directors, or committee by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear or otherwise communicate with each other. Participation in such a meeting shall constitute presence in person at such meeting, except where a person participants in the meeting for the express purpose of objecting to the transaction of any business on the ground that the meeting is not lawfully called or convened.
     Section 6.4 Amendments. These Bylaws may be altered, amended, or repealed and new Bylaws may be adopted by the Board of Directors or by the stockholders, but Bylaws made by the stockholders may prescribe that any Bylaws adopted by them shall not be altered, amended or repealed by the Board of Directors.
July 1, 2008

 

Exhibit 4.1
Exhibit 4.1
RED OAK MERGER CORPORATION
 
FIRST SUPPLEMENTAL INDENTURE
Dated as of July 1, 2008
Supplementing the Indenture, dated
as of May 16, 2006, between
Countrywide Financial Corporation,
and
The Bank of New York Mellon (formerly known as The Bank of New York), as Trustee.

 


 

     THIS FIRST SUPPLEMENTAL INDENTURE, dated as of July 1, 2008 (the “First Supplemental Indenture”), is made by and among RED OAK MERGER CORPORATION, a Delaware corporation (the “Corporation”), COUNTRYWIDE FINANCIAL CORPORATION, a Delaware corporation (“Issuer”), and THE BANK OF NEW YORK MELLON (formerly known as The Bank of New York), a New York banking corporation, as Trustee (the “Trustee”) under the Subordinated Indenture referred to herein.
W I T N E S S E T H:
     WHEREAS, Issuer and the Trustee are parties to an Indenture dated as of May 16, 2006 (as amended and supplemented, the “Indenture”), providing for the issuance of Subordinated Debt Securities;
     WHEREAS, there is outstanding under the terms of the Indenture one or more series of Subordinated Debt Securities (the “Securities”);
     WHEREAS, Bank of America Corporation, Issuer and the Corporation have entered into an Agreement and Plan of Merger (the “Merger Agreement”), dated as of January 11, 2008, pursuant to which Issuer will merge with and into the Corporation (the “Merger”), with the Corporation as the surviving corporation in the Merger;
     WHEREAS, the Merger is being consummated on July 1, 2008;
     WHEREAS, Section 801(1) of the Indenture provides that in the case of a merger of Issuer into another corporation, the surviving corporation shall expressly assume by supplemental indenture all the obligations and covenants under the Securities and the Indenture to be performed and observed by Issuer;
     WHEREAS, Section 901(1) of the Indenture provides that Issuer, with the authorization of its Board of Directors and the Trustee, may amend the Indenture without notice to or consent of any holders of the Securities to evidence the succession of another corporation to Issuer by merger and the assumption by the successor corporation of the obligations and covenants of Issuer under the Indenture;
     WHEREAS, this First Supplemental Indenture has been duly authorized by all necessary corporate action on the part of Issuer and the Corporation;
     WHEREAS, the Trustee has determined this First Supplemental Indenture is satisfactory to it in form; and
     WHEREAS, all things necessary to make this First Supplemental Indenture a valid indenture and agreement according to its terms have been done.
     NOW, THEREFORE, in consideration of these premises, Issuer, the Corporation and the Trustee agree as follows for the equal and ratable benefit of the holders of the Securities:

 


 

ARTICLE I
ASSUMPTION BY SUCCESSOR CORPORATION
AND SUPPLEMENTAL PROVISIONS
     SECTION 1.1 Assumption of the Securities.
     (a) The Corporation hereby represents and warrants that
     (i) it is a corporation organized and existing under the laws of the State of Delaware and is the surviving corporation in the Merger; and
     (ii) the execution, delivery and performance of this First Supplemental Indenture has been duly authorized by the Board of Directors of the Corporation.
     (b) The Corporation hereby expressly assumes the due and punctual payment of the principal of (and premium, if any) and interest on all the Securities and the performance of every covenant of the Indenture on the part of Issuer to be performed or observed.
     SECTION 1.2 Name. Effective July 1, 2008, the name of Issuer, as the successor corporation under the Indenture, shall be “Red Oak Merger Corporation.”
     SECTION 1.3 Trustee’s Acceptance. The Trustee hereby accepts this First Supplemental Indenture and agrees to perform the same under the terms and conditions set forth in the Indenture.
ARTICLE II
MISCELLANEOUS
     SECTION 2.1 Effect of Supplemental Indenture. Upon the later to occur of (i) the execution and delivery of this First Supplemental Indenture by the Corporation, Issuer and the Trustee and (ii) the effective time of the Merger, the Indenture shall be supplemented in accordance herewith, and this First Supplemental Indenture shall form a part of the Indenture for all purposes, and every holder of Securities heretofore or hereafter authenticated and delivered under the Indenture shall be bound thereby.
     SECTION 2.2 Indenture Remains in Full Force and Effect. Except as supplemented hereby, all provisions in the Indenture shall remain in full force and effect.
     SECTION 2.3 Indenture and Supplemental Indenture Construed Together. This First Supplemental Indenture is an indenture supplemental to and in implementation of the Indenture, and the Indenture and this First Supplemental Indenture shall henceforth be read and construed together.
     SECTION 2.4 Confirmation and Preservation of Indenture. The Indenture as supplemented by this First Supplemental Indenture is in all respects confirmed and preserved.

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     SECTION 2.5 Conflict with Trust Indenture Act. If any provision of this First Supplemental Indenture limits, qualifies or conflicts with any provision of the Trust Indenture Act (the “TIA”) that is required under the TIA to be part of and govern any provision of this First Supplemental Indenture, the provision of the TIA shall control. If any provision of this First Supplemental Indenture modifies or excludes any provision of the TIA that may be so modified or excluded, the provision of the TIA shall be deemed to apply to the Indenture as so modified or to be excluded by this First Supplemental Indenture, as the case may be.
     SECTION 2.6 Severability. In case any provision in this First Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
     SECTION 2.7 Terms Defined in the Indenture. All capitalized terms not otherwise defined herein shall have the meanings ascribed to them in the Indenture.
     SECTION 2.8 Addresses for Notice, etc., to the Corporation and Trustee. Any notice or demand which by any provisions of this First Supplemental Indenture or the Indenture is required or permitted to be given or served by the Trustee or by the holders of Securities to or on the Corporation may be given in the manner specified in the Indenture to the following address:
Bank of America Corporation
Bank of America Corporate Center
100 North Tryon Street
NC1-007-07-13
Corporate Treasury Division
Charlotte, North Carolina 28255
Telephone: (980) 387-3776
Facsimile: (980) 387-8794
Attention: B. Kenneth Burton, Jr.
Together with a copy to:
Bank of America Corporation
Legal Department
NC1-002-29-01
101 South Tryon Street
Charlotte, North Carolina 28255
Telephone: (704) 386-4238
Facsimile: (704) 386-1670
Attention: Teresa M. Brenner, Esq.

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     SECTION 2.9 Headings. The Article and Section headings of this First Supplemental Indenture have been inserted for convenience of reference only, are not to be considered part of this First Supplemental Indenture and shall in no way modify or restrict any of the terms or provisions hereof.
     SECTION 2.10 Benefits of First Supplemental Indenture, etc. Nothing in this First Supplemental Indenture or the Securities, express or implied, shall give to any Person, other than the parties hereto and thereto and their successors hereunder and thereunder and the holders of the Securities, any benefit of any legal or equitable right, remedy or claim under the Indenture, this First Supplemental Indenture or the Securities.
     SECTION 2.11 Certain Duties and Responsibilities of the Trustee. In entering into this First Supplemental Indenture, the Trustee shall be entitled to the benefit of every provision of the Indenture relating to the conduct or affecting the liability or affording protection to the Trustee, whether or not elsewhere herein so provided.
     SECTION 2.12 Counterparts. The parties may sign any number of copies of this First Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.
     SECTION 2.13 Governing Law. This First Supplemental Indenture shall 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.
     SECTION 2.14 Trustee Not Responsible for Recitals. The recitals contained herein (other than the eighth recital) shall be taken as the statements of the Corporation and the Issuer, as the case may be, and the Trustee assumes no responsibility for their correctness. The Trustee makes no representation as to the validity or sufficiency of this First Supplemental Indenture.
[Signature Pages Follow]

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     IN WITNESS WHEREOF, the parties have caused this First Supplemental Indenture to be duly executed as of the date first written above.
         
  THE CORPORATION:

Red Oak Merger Corporation
 
 
  By:     /s/ Joe L. Price   
  Name:     Joe L. Price   
  Title:     Chief Financial Officer  

 


 

         
  ISSUER:

Countrywide Financial Corporation
 
 
  By:     /s/ JENNIFER S. SANDEFUR   
  Name:     Jennifer S. Sandefur   
  Title:     Senior Managing Director, Treasurer   

 


 

         
  THE TRUSTEE:

The Bank of New York Mellon
 
 
  By:     /s/ Rafael E. Miranda   
  Name:     Rafael E. Miranda   
  Title:     Vice President   

 

Exhibit 4.2
Exhibit 4.2
RED OAK MERGER CORPORATION
 
FIRST SUPPLEMENTAL INDENTURE
Dated as of July 1, 2008
Supplementing the Indenture, dated
as of February 1, 2005, among
Countrywide Financial Corporation,
Countrywide Home Loans, Inc.,
and
The Bank of New York Mellon (formerly known as The Bank of New York)

 


 

     THIS FIRST SUPPLEMENTAL INDENTURE, dated as of July 1, 2008 (the “First Supplemental Indenture”), is made by and among RED OAK MERGER CORPORATION, a Delaware corporation (the “Corporation”), COUNTRYWIDE FINANCIAL CORPORATION, a Delaware corporation (“Issuer”), COUNTRYWIDE HOME LOANS, INC., a New York corporation (“Guarantor”), and THE BANK OF NEW YORK MELLON (formerly known as The Bank of New York), a New York banking corporation, as Trustee (the “Trustee”) under the Indenture referred to herein.
W I T N E S S E T H:
     WHEREAS, Issuer, the Guarantor and the Trustee are parties to an Indenture dated as of February 1, 2005 (as amended and supplemented, the “Indenture”), providing for the issuance of Debt Securities;
     WHEREAS, there is outstanding under the terms of the Indenture one or more series of Debt Securities (the “Securities”);
     WHEREAS, Bank of America Corporation, Issuer and the Corporation have entered into an Agreement and Plan of Merger (the “Merger Agreement”), dated as of January 11, 2008, pursuant to which Issuer will merge with and into the Corporation (the “Merger”), with the Corporation as the surviving corporation in the Merger;
     WHEREAS, the Merger is being consummated on July 1, 2008;
     WHEREAS, Section 901(1) of the Indenture provides that in the case of a merger of Issuer into another corporation, the surviving corporation shall expressly assume by supplemental indenture all the obligations and covenants under the Securities and the Indenture to be performed and observed by Issuer;
     WHEREAS, Section 1001(1) of the Indenture provides that Issuer and the Guarantor, with the authorization of their respective Boards of Directors, and the Trustee, may amend the Indenture without notice to or consent of any holders of the Securities to evidence the succession of another corporation to Issuer by merger and the assumption by the successor corporation of the obligations and covenants of Issuer under the Indenture;
     WHEREAS, this First Supplemental Indenture has been duly authorized by all necessary corporate action on the part of each of Issuer, the Guarantor and the Corporation;
     WHEREAS, the Trustee has determined this First Supplemental Indenture is satisfactory to it in form; and
     WHEREAS, all things necessary to make this First Supplemental Indenture a valid indenture and agreement according to its terms have been done.

 


 

     NOW, THEREFORE, in consideration of these premises, Issuer, the Guarantor, the Corporation and the Trustee agree as follows for the equal and ratable benefit of the holders of the Securities:
ARTICLE I
ASSUMPTION BY SUCCESSOR CORPORATION
AND SUPPLEMENTAL PROVISIONS
     SECTION 1.1 Assumption of the Securities.
     (a) The Corporation hereby represents and warrants that
     (i) it is a corporation organized and existing under the laws of the State of Delaware and is the surviving corporation in the Merger; and
     (ii) the execution, delivery and performance of this First Supplemental Indenture has been duly authorized by the Board of Directors of the Corporation.
     (b) The Corporation hereby expressly assumes the due and punctual payment of the principal of (and premium, if any) and interest on all the Securities and the performance of every covenant of the Indenture on the part of Issuer to be performed or observed.
     SECTION 1.2 Name. Effective July 1, 2008, the name of Issuer, as the successor corporation under the Indenture, shall be “Red Oak Merger Corporation.”
     SECTION 1.3 Trustee’s Acceptance. The Trustee hereby accepts this First Supplemental Indenture and agrees to perform the same under the terms and conditions set forth in the Indenture.
ARTICLE II
MISCELLANEOUS
     SECTION 2.1 Effect of Supplemental Indenture. Upon the later to occur of (i) the execution and delivery of this First Supplemental Indenture by the Corporation, Issuer, the Guarantor and the Trustee and (ii) the effective time of the Merger, the Indenture shall be supplemented in accordance herewith, and this First Supplemental Indenture shall form a part of the Indenture for all purposes, and every holder of Securities heretofore or hereafter authenticated and delivered under the Indenture shall be bound thereby.
     SECTION 2.2 Indenture Remains in Full Force and Effect. Except as supplemented hereby, all provisions in the Indenture shall remain in full force and effect.
     SECTION 2.3 Indenture and Supplemental Indenture Construed Together. This First Supplemental Indenture is an indenture supplemental to and in implementation of the Indenture, and the Indenture and this First Supplemental Indenture shall henceforth be read and construed together.

2


 

     SECTION 2.4 Confirmation and Preservation of Indenture. The Indenture as supplemented by this First Supplemental Indenture is in all respects confirmed and preserved.
     SECTION 2.5 Conflict with Trust Indenture Act. If any provision of this First Supplemental Indenture limits, qualifies or conflicts with any provision of the Trust Indenture Act (the “TIA”) that is required under the TIA to be part of and govern any provision of this First Supplemental Indenture, the provision of the TIA shall control. If any provision of this First Supplemental Indenture modifies or excludes any provision of the TIA that may be so modified or excluded, the provision of the TIA shall be deemed to apply to the Indenture as so modified or to be excluded by this First Supplemental Indenture, as the case may be.
     SECTION 2.6 Severability. In case any provision in this First Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
     SECTION 2.7 Terms Defined in the Indenture. All capitalized terms not otherwise defined herein shall have the meanings ascribed to them in the Indenture.
     SECTION 2.8 Addresses for Notice, etc., to the Corporation and Trustee. Any notice or demand which by any provisions of this First Supplemental Indenture or the Indenture is required or permitted to be given or served by the Trustee or by the holders of Securities to or on the Corporation may be given in the manner specified in the Indenture to the following address:
Bank of America Corporation
Bank of America Corporate Center
100 North Tryon Street
NC1-007-07-13
Corporate Treasury Division
Charlotte, North Carolina 28255
Telephone: (980) 387-3776
Facsimile: (980) 387-8794
Attention: B. Kenneth Burton, Jr.
Together with a copy to:
Bank of America Corporation
Legal Department
NC1-002-29-01
101 South Tryon Street
Charlotte, North Carolina 28255
Telephone: (704) 386-4238

3


 

Facsimile: (704) 386-1670
Attention: Teresa M. Brenner, Esq.
     SECTION 2.9 Headings. The Article and Section headings of this First Supplemental Indenture have been inserted for convenience of reference only, are not to be considered part of this First Supplemental Indenture and shall in no way modify or restrict any of the terms or provisions hereof.
     SECTION 2.10 Benefits of First Supplemental Indenture, etc. Nothing in this First Supplemental Indenture or the Securities, express or implied, shall give to any Person, other than the parties hereto and thereto and their successors hereunder and thereunder and the holders of the Securities, any benefit of any legal or equitable right, remedy or claim under the Indenture, this First Supplemental Indenture or the Securities.
     SECTION 2.11 Certain Duties and Responsibilities of the Trustee. In entering into this First Supplemental Indenture, the Trustee shall be entitled to the benefit of every provision of the Indenture relating to the conduct or affecting the liability or affording protection to the Trustee, whether or not elsewhere herein so provided.
     SECTION 2.12 Counterparts. The parties may sign any number of copies of this First Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.
     SECTION 2.13 Governing Law. This First Supplemental Indenture shall 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.
     SECTION 2.14 Trustee Not Responsible for Recitals. The recitals contained herein (other than the eighth recital) shall be taken as the statements of the Corporation, the Issuer and the Guarantor, as the case may be, and the Trustee assumes no responsibility for their correctness. The Trustee makes no representation as to the validity or sufficiency of this First Supplemental Indenture.
[Signature Page Follows]

4


 

     IN WITNESS WHEREOF, the parties have caused this First Supplemental Indenture to be duly executed as of the date first written above.
             
    THE CORPORATION:    
 
           
    Red Oak Merger Corporation    
 
           
 
  By:   /s/ Joe L. Price     
 
  Name:   Joe L. Price     
 
  Title:   Chief Financial Officer     

 


 

             
    ISSUER:    
 
           
    Countrywide Financial Corporation    
 
           
 
  By:   /s/ JENNIFER S. SANDEFUR     
 
  Name:   Jennifer S. Sandefur    
 
  Title:   Senior Managing Director, Treasurer     
 
           
    GUARANTOR:    
 
           
    Countrywide Home Loans, Inc.    
 
           
 
  By:   /s/ JENNIFER S. SANDEFUR     
 
  Name:   Jennifer S. Sandefur    
 
  Title:   Senior Managing Director, Treasurer     

 


 

             
    THE TRUSTEE:    
 
           
    The Bank of New York Mellon    
 
           
 
  By:   /s/ Rafael E. Miranda     
 
           
 
  Name:   Rafael E. Miranda     
 
  Title:   Vice President     

 

Exhibit 4.3
Exhibit 4.3
RED OAK MERGER CORPORATION
 
SECOND SUPPLEMENTAL INDENTURE
Dated as of July 1, 2008
Supplementing the Indenture, dated
as of January 1, 1992, among
Countrywide Home Loans, Inc. (formerly Countrywide Funding Corporation),
Countrywide Financial Corporation (formerly Countrywide Credit Industries, Inc.),
and
The Bank of New York Mellon (formerly known as The Bank of New York), as Trustee,
as supplemented by First Supplemental Indenture, dated as of June 15, 1995, among
Countrywide Funding Corporation, Countrywide Credit Industries, Inc., and The Bank of
New York.

 


 

     THIS SECOND SUPPLEMENTAL INDENTURE, dated as of July 1, 2008 (the “Second Supplemental Indenture”), is made by and among RED OAK MERGER CORPORATION, a Delaware corporation (the “Corporation”), COUNTRYWIDE HOME LOANS, INC. (formerly Countrywide Funding Corporation), a New York corporation (“Issuer”), COUNTRYWIDE FINANCIAL CORPORATION (formerly Countrywide Credit Industries, Inc.), a Delaware corporation (“Guarantor”), and THE BANK OF NEW YORK MELLON (formerly known as The Bank of New York), a New York banking corporation, as Trustee (the “Trustee”) under the Indenture referred to herein.
W I T N E S S E T H:
     WHEREAS, Issuer, the Guarantor and the Trustee are parties to an Indenture dated as of January 1, 1992, as supplemented by First Supplemental Indenture, dated as of June 15, 1995, among Issuer, the Guarantor and the Trustee (as amended and supplemented, the “Indenture”), providing for the issuance of Debt Securities;
     WHEREAS, there is outstanding under the terms of the Indenture one or more series of Debt Securities (the “Securities”);
     WHEREAS, Bank of America Corporation, Guarantor and the Corporation have entered into an Agreement and Plan of Merger (the “Merger Agreement”), dated as of January 11, 2008, pursuant to which Guarantor will merge with and into the Corporation (the “Merger”), with the Corporation as the surviving corporation in the Merger;
     WHEREAS, the Merger is being consummated on July 1, 2008;
     WHEREAS, Section 903(1) of the Indenture provides that in the case of a merger of the Guarantor into another corporation, the surviving corporation shall expressly assume by supplemental indenture all the obligations and covenants under the Securities and the Indenture to be performed and observed by the Guarantor;
     WHEREAS, Section 1001(1) of the Indenture provides that Issuer and the Guarantor, with the authorization of their respective Boards of Directors, and the Trustee, may amend the Indenture without notice to or consent of any holders of the Securities to evidence the succession of another corporation to the Guarantor by merger and the assumption by the successor corporation of the obligations and covenants of the Guarantor under the Indenture;
     WHEREAS, this Second Supplemental Indenture has been duly authorized by all necessary corporate action on the part of each of Issuer, the Guarantor and the Corporation;
     WHEREAS, the Trustee has determined this Second Supplemental Indenture is satisfactory to it in form; and

 


 

     WHEREAS, all things necessary to make this Second Supplemental Indenture a valid indenture and agreement according to its terms have been done.
     NOW, THEREFORE, in consideration of these premises, Issuer, the Guarantor, the Corporation and the Trustee agree as follows for the equal and ratable benefit of the holders of the Securities:
ARTICLE I
ASSUMPTION BY SUCCESSOR CORPORATION
AND SUPPLEMENTAL PROVISIONS
     SECTION 1.1 Assumption of the Guarantees.
     (a) The Corporation hereby represents and warrants that
     (i) it is a corporation organized and existing under the laws of the State of Delaware and is the surviving corporation in the Merger; and
     (ii) the execution, delivery and performance of this Second Supplemental Indenture has been duly authorized by the Board of Directors of the Corporation.
     (b) The Corporation hereby expressly assumes the Guarantees endorsed on the Securities and the performance of every covenant of the Indenture on the part of the Guarantor to be performed or observed.
     SECTION 1.2 Name. Effective July 1, 2008, the name of the Guarantor, as the successor corporation under the Indenture, shall be “Red Oak Merger Corporation.”
     SECTION 1.3 Trustee’s Acceptance. The Trustee hereby accepts this Second Supplemental Indenture and agrees to perform the same under the terms and conditions set forth in the Indenture.
ARTICLE II
MISCELLANEOUS
     SECTION 2.1 Effect of Supplemental Indenture. Upon the later to occur of (i) the execution and delivery of this Second Supplemental Indenture by the Corporation, Issuer, the Guarantor and the Trustee and (ii) the effective time of the Merger, the Indenture shall be supplemented in accordance herewith, and this Second Supplemental Indenture shall form a part of the Indenture for all purposes, and every holder of Securities heretofore or hereafter authenticated and delivered under the Indenture shall be bound thereby.
     SECTION 2.2 Indenture Remains in Full Force and Effect. Except as supplemented hereby, all provisions in the Indenture shall remain in full force and effect.

2


 

     SECTION 2.3 Indenture and Supplemental Indentures Construed Together. This Second Supplemental Indenture is an indenture supplemental to and in implementation of the Indenture, and the Indenture and this Second Supplemental Indenture shall henceforth be read and construed together.
     SECTION 2.4 Confirmation and Preservation of Indenture. The Indenture as supplemented by this Second Supplemental Indenture is in all respects confirmed and preserved.
     SECTION 2.5 Conflict with Trust Indenture Act. If any provision of this Second Supplemental Indenture limits, qualifies or conflicts with any provision of the Trust Indenture Act (the “TIA”) that is required under the TIA to be part of and govern any provision of this Second Supplemental Indenture, the provision of the TIA shall control. If any provision of this Second Supplemental Indenture modifies or excludes any provision of the TIA that may be so modified or excluded, the provision of the TIA shall be deemed to apply to the Indenture as so modified or to be excluded by this Second Supplemental Indenture, as the case may be.
     SECTION 2.6 Severability. In case any provision in this Second Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
     SECTION 2.7 Terms Defined in the Indenture. All capitalized terms not otherwise defined herein shall have the meanings ascribed to them in the Indenture.
     SECTION 2.8 Addresses for Notice, etc., to the Corporation and Trustee. Any notice or demand which by any provisions of this Second Supplemental Indenture or the Indenture is required or permitted to be given or served by the Trustee or by the holders of Securities to or on the Corporation may be given in the manner specified in the Indenture to the following address:
Bank of America Corporation
Bank of America Corporate Center
100 North Tryon Street
NC1-007-07-13
Corporate Treasury Division
Charlotte, North Carolina 28255
Telephone: (980) 387-3776
Facsimile: (980) 387-8794
Attention: B. Kenneth Burton, Jr.
Together with a copy to:
Bank of America Corporation
Legal Department

3


 

NC1-002-29-01
101 South Tryon Street
Charlotte, North Carolina 28255
Telephone: (704) 386-4238
Facsimile: (704) 386-1670
Attention: Teresa M. Brenner, Esq.
     SECTION 2.9 Headings. The Article and Section headings of this Second Supplemental Indenture have been inserted for convenience of reference only, are not to be considered part of this Second Supplemental Indenture and shall in no way modify or restrict any of the terms or provisions hereof.
     SECTION 2.10 Benefits of Second Supplemental Indenture, etc. Nothing in this Second Supplemental Indenture or the Securities, express or implied, shall give to any Person, other than the parties hereto and thereto and their successors hereunder and thereunder and the holders of the Securities, any benefit of any legal or equitable right, remedy or claim under the Indenture, this Second Supplemental Indenture or the Securities.
     SECTION 2.11 Certain Duties and Responsibilities of the Trustee. In entering into this Second Supplemental Indenture, the Trustee shall be entitled to the benefit of every provision of the Indenture relating to the conduct or affecting the liability or affording protection to the Trustee, whether or not elsewhere herein so provided.
     SECTION 2.12 Counterparts. The parties may sign any number of copies of this Second Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.
     SECTION 2.13 Governing Law. This Second Supplemental Indenture shall 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.
     SECTION 2.14 Trustee Not Responsible for Recitals. The recitals contained herein (other than the eighth recital) shall be taken as the statements of the Corporation, the Issuer and the Guarantor, as the case may be, and the Trustee assumes no responsibility for their correctness. The Trustee makes no representation as to the validity or sufficiency of this Second Supplemental Indenture.
[Signature Pages Follow]

4


 

     IN WITNESS WHEREOF, the parties have caused this Second Supplemental Indenture to be duly executed as of the date first written above.
             
    THE CORPORATION:    
 
           
    Red Oak Merger Corporation    
 
           
 
  By:   /s/ Joe L. Price     
 
  Name:   Joe L. Price     
 
  Title:   Chief Financial Officer     

 


 

             
    GUARANTOR:    
 
           
    Countrywide Financial Corporation (formerly Countrywide Credit Industries, Inc.)    
 
           
 
  By:   /s/ JENNIFER S. SANDEFUR     
 
  Name:   Jennifer S. Sandefur    
 
  Title:   Senior Managing Director, Treasurer     
 
           
    ISSUER:    
 
           
    Countrywide Home Loans, Inc. (formerly Countrywide Funding Corporation)    
 
           
 
  By:   /s/ JENNIFER S. SANDEFUR     
 
  Name:   Jennifer S. Sandefur    
 
  Title:   Senior Managing Director, Treasurer     

 


 

             
    THE TRUSTEE:    
 
           
    The Bank of New York Mellon    
 
           
 
  By:   /s/ Rafael E. Miranda     
 
  Name:   Rafael E. Miranda    
 
  Title:   Vice President     

 

Exhibit 4.4
Exhibit 4.4
RED OAK MERGER CORPORATION
 
FIRST SUPPLEMENTAL INDENTURE
Dated as of July 1, 2008
Supplementing the Indenture, dated
as of December 1, 2001, among
Countrywide Home Loans, Inc.,
Countrywide Financial Corporation,
and
The Bank of New York Mellon (formerly known as The Bank of New York), as Trustee.

 


 

THIS FIRST SUPPLEMENTAL INDENTURE, dated as of July 1, 2008 (the “First Supplemental Indenture”), is made by and among RED OAK MERGER CORPORATION, a Delaware corporation (the “Corporation”), COUNTRYWIDE HOME LOANS, INC., a New York corporation (“Issuer”), COUNTRYWIDE FINANCIAL CORPORATION, a Delaware corporation (“Guarantor”), and THE BANK OF NEW YORK MELLON (formerly known as The Bank of New York), a New York banking corporation, as Trustee (the “Trustee”) under the Indenture referred to herein.
W I T N E S S E T H:
     WHEREAS, Issuer, the Guarantor and the Trustee are parties to an Indenture dated as of December 1, 2001 (as amended and supplemented, the “Indenture”), providing for the issuance of Debt Securities;
     WHEREAS, there is outstanding under the terms of the Indenture one or more series of Debt Securities (the “Securities”);
     WHEREAS, Bank of America Corporation, Guarantor and the Corporation have entered into an Agreement and Plan of Merger (the “Merger Agreement”), dated as of January 11, 2008, pursuant to which Guarantor will merge with and into the Corporation (the “Merger”), with the Corporation as the surviving corporation in the Merger;
     WHEREAS, the Merger is being consummated on July 1, 2008;
     WHEREAS, Section 903(1) of the Indenture provides that in the case of a merger of the Guarantor into another corporation, the surviving corporation shall expressly assume by supplemental indenture all the obligations and covenants under the Securities and the Indenture to be performed and observed by the Guarantor;
     WHEREAS, Section 1001(1) of the Indenture provides that Issuer and the Guarantor, with the authorization of their respective Boards of Directors, and the Trustee, may amend the Indenture without notice to or consent of any holders of the Securities to evidence the succession of another corporation to the Guarantor by merger and the assumption by the successor corporation of the obligations and covenants of the Guarantor under the Indenture;
     WHEREAS, this First Supplemental Indenture has been duly authorized by all necessary corporate action on the part of each of Issuer, the Guarantor and the Corporation;
     WHEREAS, the Trustee has determined this First Supplemental Indenture is satisfactory to it in form; and
     WHEREAS, all things necessary to make this First Supplemental Indenture a valid indenture and agreement according to its terms have been done.

 


 

     NOW, THEREFORE, in consideration of these premises, Issuer, the Guarantor, the Corporation and the Trustee agree as follows for the equal and ratable benefit of the holders of the Securities:
ARTICLE I
ASSUMPTION BY SUCCESSOR CORPORATION
AND SUPPLEMENTAL PROVISIONS
     SECTION 1.1 Assumption of the Guarantees.
     (a) The Corporation hereby represents and warrants that
     (i) it is a corporation organized and existing under the laws of the State of Delaware and is the surviving corporation in the Merger; and
     (ii) the execution, delivery and performance of this First Supplemental Indenture has been duly authorized by the Board of Directors of the Corporation.
     (b) The Corporation hereby expressly assumes the Guarantees endorsed on the Securities and the performance of every covenant of the Indenture on the part of Guarantor to be performed or observed.
     SECTION 1.2 Name. Effective July 1, 2008, the name of the Guarantor, as the successor corporation under the Indenture, shall be “Red Oak Merger Corporation.”
     SECTION 1.3 Trustee’s Acceptance. The Trustee hereby accepts this First Supplemental Indenture and agrees to perform the same under the terms and conditions set forth in the Indenture.
ARTICLE II
MISCELLANEOUS
     SECTION 2.1 Effect of Supplemental Indenture. Upon the later to occur of (i) the execution and delivery of this First Supplemental Indenture by the Corporation, Issuer, the Guarantor and the Trustee and (ii) the effective time of the Merger, the Indenture shall be supplemented in accordance herewith, and this First Supplemental Indenture shall form a part of the Indenture for all purposes, and every holder of Securities heretofore or hereafter authenticated and delivered under the Indenture shall be bound thereby.
     SECTION 2.2 Indenture Remains in Full Force and Effect. Except as supplemented hereby, all provisions in the Indenture shall remain in full force and effect.
     SECTION 2.3 Indenture and Supplemental Indenture Construed Together. This First Supplemental Indenture is an indenture supplemental to and in implementation of the Indenture, and the Indenture and this First Supplemental Indenture shall henceforth be read and construed together.

2


 

     SECTION 2.4 Confirmation and Preservation of Indenture. The Indenture as supplemented by this First Supplemental Indenture is in all respects confirmed and preserved.
     SECTION 2.5 Conflict with Trust Indenture Act. If any provision of this First Supplemental Indenture limits, qualifies or conflicts with any provision of the Trust Indenture Act (the “TIA”) that is required under the TIA to be part of and govern any provision of this First Supplemental Indenture, the provision of the TIA shall control. If any provision of this First Supplemental Indenture modifies or excludes any provision of the TIA that may be so modified or excluded, the provision of the TIA shall be deemed to apply to the Indenture as so modified or to be excluded by this First Supplemental Indenture, as the case may be.
     SECTION 2.6 Severability. In case any provision in this First Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
     SECTION 2.7 Terms Defined in the Indenture. All capitalized terms not otherwise defined herein shall have the meanings ascribed to them in the Indenture.
     SECTION 2.8 Addresses for Notice, etc., to the Corporation and Trustee. Any notice or demand which by any provisions of this First Supplemental Indenture or the Indenture is required or permitted to be given or served by the Trustee or by the holders of Securities to or on the Corporation may be given in the manner specified in the Indenture to the following address:
Bank of America Corporation
Bank of America Corporate Center
100 North Tryon Street
NC1-007-07-13
Corporate Treasury Division
Charlotte, North Carolina 28255
Telephone: (980) 387-3776
Facsimile: (980) 387-8794
Attention: B. Kenneth Burton, Jr.
Together with a copy to:
Bank of America Corporation
Legal Department
NC1-002-29-01
101 South Tryon Street
Charlotte, North Carolina 28255
Telephone: (704) 386-4238

3


 

Facsimile: (704) 386-1670
Attention: Teresa M. Brenner, Esq.
     SECTION 2.9 Headings. The Article and Section headings of this First Supplemental Indenture have been inserted for convenience of reference only, are not to be considered part of this First Supplemental Indenture and shall in no way modify or restrict any of the terms or provisions hereof.
     SECTION 2.10 Benefits of First Supplemental Indenture, etc. Nothing in this First Supplemental Indenture or the Securities, express or implied, shall give to any Person, other than the parties hereto and thereto and their successors hereunder and thereunder and the holders of the Securities, any benefit of any legal or equitable right, remedy or claim under the Indenture, this First Supplemental Indenture or the Securities.
     SECTION 2.11 Certain Duties and Responsibilities of the Trustee. In entering into this First Supplemental Indenture, the Trustee shall be entitled to the benefit of every provision of the Indenture relating to the conduct or affecting the liability or affording protection to the Trustee, whether or not elsewhere herein so provided.
     SECTION 2.12 Counterparts. The parties may sign any number of copies of this First Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.
     SECTION 2.13 Governing Law. This First Supplemental Indenture shall 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.
     SECTION 2.14 Trustee Not Responsible for Recitals. The recitals contained herein (other than the eighth recital) shall be taken as the statements of the Corporation, the Issuer and the Guarantor, as the case may be, and the Trustee assumes no responsibility for their correctness. The Trustee makes no representation as to the validity or sufficiency of this First Supplemental Indenture.
[Signature Pages Follow]

4


 

     IN WITNESS WHEREOF, the parties have caused this First Supplemental Indenture to be duly executed as of the date first written above.
         
    THE CORPORATION:
 
       
    Red Oak Merger Corporation
 
       
 
  By:   /s/ Joe L. Price 
 
       
 
  Name:   Joe L. Price 
 
  Title:   Chief Financial Officer 

 


 

         
    GUARANTOR:
 
       
    Countrywide Financial Corporation
 
       
 
  By:   /s/ JENNIFER S. SANDEFUR 
 
       
 
  Name:   Jennifer S. Sandefur 
 
  Title:   Senior Managing Director, Treasurer 
 
       
    ISSUER:
 
       
    Countrywide Home Loans, Inc.
 
       
 
  By:   /s/ JENNIFER S. SANDEFUR 
 
       
 
  Name:   Jennifer S. Sandefur 
 
  Title:   Senior Managing Director, Treasurer 

 


 

         
    THE TRUSTEE:
 
       
    The Bank of New York Mellon
 
 
  By:   /s/ Rafael E. Miranda 
 
       
 
  Name:   Rafael E. Miranda 
 
  Title:   Vice President 

 

Exhibit 4.5
Exhibit 4.5
 
FIRST SUPPLEMENTAL INDENTURE
Dated as of July 1, 2008
Supplementing the Indenture, dated
as of May 22, 2007, among
Countrywide Financial Corporation,
Countrywide Home Loans, Inc.,
and
The Bank of New York Mellon (formerly known as The Bank of New York), as Trustee

 


 

THIS FIRST SUPPLEMENTAL INDENTURE, dated as of July 1, 2008 (the “First Supplemental Indenture”), is made by and among BANK OF AMERICA CORPORATION, a Delaware corporation (“Parent”), RED OAK MERGER CORPORATION, a Delaware corporation and wholly-owned subsidiary of Parent (the “Corporation”), COUNTRYWIDE FINANCIAL CORPORATION, a Delaware corporation (“Issuer”), COUNTRYWIDE HOME LOANS, INC., a New York corporation (the “Guarantor”), and THE BANK OF NEW YORK MELLON (formerly known as The Bank of New York), as Trustee (the “Trustee”) under the Indenture referred to herein.
W I T N E S S E T H:
     WHEREAS, Issuer, the Guarantor and the Trustee are parties to an Indenture dated as of May 22, 2007 (as amended and supplemented, the “Indenture”), providing for the issuance of Series A Debentures and Series B Debentures (collectively the “Securities”);
     WHEREAS, Parent, Issuer and the Corporation have entered into an Agreement and Plan of Merger (the “Merger Agreement”), dated as of January 11, 2008, pursuant to which Issuer will merge with and into the Corporation (the “Merger”), with the Corporation as the surviving corporation in the Merger;
     WHEREAS, the Merger is being consummated on July 1, 2008;
     WHEREAS, Section 5.01 of the Indenture provides that in the case of a merger of Issuer into any other corporation, the surviving corporation shall expressly assume by supplemental indenture all the obligations and covenants under the Securities and the Indenture to be performed and observed by Issuer;
     WHEREAS, Section 9.01(f) of the Indenture provides that Issuer and the Guarantor may amend the Indenture without notice to or consent of any holders of the Securities to provide for the conversion rights of holders of the Securities in the event of the merger of Issuer;
     WHEREAS, Section 9.01(g) of the Indenture provides that Issuer and the Guarantor may amend the Indenture without notice to or consent of any holders of the Securities to evidence the succession of another corporation to Issuer by merger and the assumption by the successor corporation of the obligations and covenants of Issuer under the Indenture;
     WHEREAS, Section 9.01(k) of the Indenture provides that Issuer and the Guarantor may amend the Indenture without notice to or consent of any holders of the Securities to make any changes to the Indenture so long as such change individually or in the aggregate with all other changes does not have a material adverse effect on the interest of the holders of the Securities;

 


 

     WHEREAS, Section 10.05(a) of the Indenture requires Parent to execute and deliver to the Trustee a supplemental indenture in connection with the Merger;
     WHEREAS, this First Supplemental Indenture has been duly authorized by all necessary corporate action on the part of each of Parent, Issuer, the Guarantor and the Corporation;
     WHEREAS, the Trustee has determined this First Supplemental Indenture is satisfactory to it in form; and
     WHEREAS, all things necessary to make this First Supplemental Senior Indenture a valid indenture and agreement according to its terms have been done.
     NOW, THEREFORE, in consideration of the premises, Parent, Issuer, the Guarantor, the Corporation and the Trustee agree as follows for the equal and ratable benefit of the holders of the Securities:
ARTICLE I
ASSUMPTION BY THE CORPORATION
AND SUPPLEMENTAL PROVISIONS
     SECTION 1.1 Assumption of the Securities.
     (a) The Corporation hereby represents and warrants that
     (i) it is a corporation organized and existing under the laws of the State of Delaware and is the surviving corporation in the Merger; and
     (ii) the execution, delivery and performance of this First Supplemental Indenture has been duly authorized by the Board of Directors of the Corporation.
     (b) The Corporation hereby expressly assumes the due and punctual payment of the principal of (and premium, if any) and interest on all the Securities and the performance of every obligation of the Issuer under the Securities and the Indenture to be performed or observed.
     SECTION 1.2 Assumption of the Conversion Obligation.
     (a) Parent hereby represents and warrants that
     (i) it is a corporation organized and existing under the laws of the State of Delaware; and
     (ii) the execution, delivery and performance of this First Supplemental Indenture has been duly authorized by the Board of Directors of Parent.
     (b) Parent hereby expressly assumes the Conversion Obligation and payment of the related Settlement Amount as required by Section 10.05 of the Indenture.

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     (c) Notwithstanding anything to the contrary in this First Supplemental Indenture, the parties intend for the Conversion Obligation and related provisions of the Indenture to be interpreted and applied consistently with the requirements of the Indenture including, without limitation, those set forth in Sections 10.03(e) and 10.05(a) of the Indenture. For purposes of applying such provisions following the Merger, (i) the Exchange Property in the Merger consists of shares of common stock, par value $0.01 per share, of Parent (“Parent Common Stock”), exchanged at a ratio of 0.1822 shares of Parent Common Stock for each share of common stock, par value $0.05 per share, of the Company (“CFC Common Stock”), (ii) Parent shall deliver Parent Common Stock in satisfaction of its Conversion Obligation under the Indenture and (iii) as of the effective time of the Merger, the Last Reported Sale Price of the Exchange Property was $4.35 per share of CFC Common Stock (consisting of 0.1822 of a share of Parent Common Stock having a Last Reported Sale Price of $23.87).
     SECTION 1.3 Name. Effective July 1, 2008, the name of Issuer, as the successor corporation under the Indenture, shall be “Countrywide Financial Corporation.”
     SECTION 1.4 Supplemental Provisions. In connection with the issuance of Securities under this Indenture:
     (a) Definitions in the present Section 101 are hereby amended as follows:
     (i) Except as otherwise provided in this Section 1.4, all references in the Indenture to “Change of Control” shall mean “Parent Change of Control.”
     (ii) The definition of “Change in Control” in Section 101 is hereby deleted in its entirety.
     (iii) The following definitions are added to Section 101:
     “Company Change of Control” means the occurrence at such time after July 1, 2008 when any of the following has occurred:
     (1) a ‘‘person’’ or ‘‘group’’ within the meaning of Section 13(d)(3) of the Exchange Act files a Schedule 13D or any schedule, form or report under the Exchange Act disclosing that such person or group has become the direct or indirect ‘‘beneficial owner,’’ as defined in Rule 13d-3 under the Exchange Act, of shares of Company Stock representing more than 50% of the Voting Stock of the Company; or
     (2) the first day on which a majority of the members of the Board of Directors of the Company does not consist of Continuing Directors; or

3


 

     (3) a consolidation, merger or binding share exchange, or any conveyance, transfer, sale, lease or other disposition of all or substantially all of the Company’s properties and assets to another person, other than:
     (a) any transaction (i) that does not result in any reclassification, conversion, exchange or cancellation of outstanding shares of the Company’s Capital Stock or (ii) pursuant to which holders of the Company’s Capital Stock immediately prior to such transaction have the entitlement to exercise rights to, directly or indirectly, 50% or more of the total Voting Stock of the continuing or surviving or successor person immediately after giving effect to such issuance; or
     (b) any merger, share exchange, transfer of assets or similar transaction solely for the purpose of changing the Company’s jurisdiction of incorporation and resulting in a reclassification, conversion or exchange of outstanding shares of Company Stock, if at all, solely into shares of common stock, ordinary shares or American Depositary Shares of the surviving entity or a direct or indirect parent of the surviving entity; or
     (c) any consolidation, merger, conveyance, transfer, sale, lease or other disposition with or into Parent or a Subsidiary of Parent, so long as such merger, consolidation, conveyance, transfer, sale, lease or other disposition is not part of a plan or a series of transactions designed to or having the effect of merging or consolidating with or conveying, transferring, selling, leasing or otherwise disposing of all or substantially all of the Company’s properties and assets to any other person.
     The term “person” as used in this definition includes any syndicate or group that would be deemed to be a “person” under Section 13(d)(3) of the Exchange Act.
     “Company Stock” means the common stock, par value $0.05 per share, of the Company existing on the date immediately following consummation of the Merger or any other shares of Capital Stock of the Company into which such Company Stock shall be reclassified or changed, including, in the event of a merger, consolidation or other similar transaction involving the Company that is otherwise permitted hereunder in which the Company is not the surviving person, the common stock of such surviving corporation.”

4


 

     “Merger” means the merger of Countrywide Financial Corporation, a Delaware corporation, with and into Red Oak Merger Corporation, a Delaware corporation, pursuant to an Agreement and Plan of Merger, dated as of January 11, 2008, among Parent, Countrywide Financial Corporation and Red Oak Merger Corporation.
     “Parent” means Bank of America Corporation, a Delaware corporation, until a successor replaces it pursuant to the applicable provisions of this Indenture and, thereafter, shall mean such successor. The foregoing sentence shall likewise apply to any subsequent successor or successors.
     “Parent Change of Control” means the occurrence at such time after July 1, 2008 when any of the following has occurred:
     (1) a ‘‘person’’ or ‘‘group’’ within the meaning of Section 13(d)(3) of the Exchange Act files a Schedule 13D or any schedule, form or report under the Exchange Act disclosing that such person or group has become the direct or indirect ‘‘beneficial owner,’’ as defined in Rule 13d-3 under the Exchange Act, of shares of Common Stock representing more than 50% of the Voting Stock of Parent; or
     (2) the first day on which a majority of the members of the Board of Directors of Parent does not consist of Continuing Directors; or
     (3) a consolidation, merger or binding share exchange, or any conveyance, transfer, sale, lease or other disposition of all or substantially all of Parent’s properties and assets to another person, other than:
     (a) any transaction (i) that does not result in any reclassification, conversion, exchange or cancellation of outstanding shares Parent’s Capital Stock or (ii) pursuant to which holders of the Parent’s Capital Stock immediately prior to such transaction have the entitlement to exercise rights to, directly or indirectly, 50% or more of the total Voting Stock of the continuing or surviving or successor person immediately after giving effect to such issuance; or
     (b) any merger, share exchange, transfer of assets or similar transaction solely for the purpose of changing Parent’s jurisdiction of incorporation and resulting in a reclassification, conversion or exchange of outstanding shares of Common Stock, if at all, solely into shares of common stock, ordinary shares or American Depositary

5


 

Shares of the surviving entity or a direct or indirect parent of the surviving entity; or
     (c) any consolidation, merger, conveyance, transfer, sale, lease or other disposition of Parent with or into a Subsidiary, so long as such merger, consolidation, conveyance, transfer, sale, lease or other disposition is not part of a plan or a series of transactions designed to or having the effect of merging or consolidating with or conveying, transferring, selling, leasing or otherwise disposing of all or substantially all of Parent’s properties and assets to any other person.
     The term “person” as used in this definition includes any syndicate or group that would be deemed to be a “person” under Section 13(d)(3) of the Exchange Act.
          (iv) The following definitions are amended and restated in their entirety to read as follows:
     “Board of Directors” means either the board of directors of the Company or Parent, as applicable, or any duly authorized committee of such board.
     “Common Stock” means the common stock, par value $0.01 per share, of Parent existing on the date of this First Supplemental Indenture immediately following consummation of the Merger or any other shares of Capital Stock of Parent into which such Common Stock shall be reclassified or changed, including, subject to Section 10.05 below, in the event of a merger, consolidation or other similar transaction involving Parent that is otherwise permitted hereunder in which Parent is not the surviving person, the common stock of such surviving corporation.
     “Continuing Director’’ means a director who either was a member of the Board of Directors on July 1, 2008 or who becomes a member of the Board of Directors subsequent to that date and whose appointment, election or nomination for election is duly approved by a majority of the Continuing Directors on the Board of Directors at the time of such approval, either by specific vote or by approval of the proxy statement issued by the Company or Parent on behalf of the applicable Board of Directors in which such individual is named as nominee for director.
     “Fundamental Change” will be deemed to have occurred upon a Company Change of Control or a Parent Change of Control.

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     “Subsidiary” of a subject person means any person of which at least a majority of the outstanding Voting Stock shall at the time directly or indirectly be owned or controlled by the subject person or by one or more Subsidiaries of the subject person.
     (b) Article 4 is hereby amended as follows:
               (i) Section 4.02 is hereby amended and restated in its entirety to read as follows:
     “Section 4.02. SEC and Other Reports. Each of Parent and the Company shall deliver to the Trustee, within 15 days after it files such annual and quarterly reports, information, documents and other reports with the SEC, copies of its annual report and of the information, documents and other reports (or copies of such portions of any of the foregoing as the SEC may by rules and regulations prescribe) which each is required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act. Notwithstanding the foregoing Parent and the Company shall be deemed, for purposes of this Section 4.02, to have furnished or delivered reports to the Trustee if (i) such reports are filed with the SEC via the EDGAR filing system, (ii) such reports are currently available on the SEC’s website, and (iii) Parent or the Company electronically delivers to the Trustee a link to the EDGAR filing each time Parent or the Company files such a report. Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Parent’s or Company’s compliance with any of their respective covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates).”
               (ii) Section 4.06 is hereby amended and restated in its entirety to read as follows:
     “Section 4.06. Delivery of Certain Information. At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act until such time as neither the Securities nor any shares of Common Stock issued upon conversion of the Securities are “restricted securities” within the meaning of Rule 144 of the Securities Act, upon the request of a Holder or any beneficial owner of Securities or Holder or beneficial owner of shares of Common Stock issued upon conversion thereof, the Company shall promptly furnish or cause to be furnished Rule 144A Information (as defined below) to such Holder or any beneficial owner of Securities or Holder or beneficial owner of shares of Common Stock issued upon conversion thereof, or to a prospective purchaser of any such security designated by any such Holder or beneficial owner, as the case may be, to the extent required to permit compliance by such Holder or beneficial

7


 

owner with Rule 144A in connection with the resale of any such security. “Rule 144A Information” shall be such information as is specified pursuant to Rule 144A(d)(4) under the Securities Act. Whether a person is a beneficial owner shall be determined by the Company to the Company’s reasonable satisfaction.”
     (c) Article 5 is hereby amended as follows:
               (i) Section 5.01 is hereby amended and restated in its entirety to read as follows:
     “Section 5.01. When Parent, Company and Guarantor May Merge or Transfer Assets. None of Parent, the Company nor the Guarantor shall consolidate with or merge with or into any other person or convey, transfer, sell, lease or otherwise dispose of all or substantially all of its properties and assets to any person, unless:
     (a) any of (1) Parent, the Company or the Guarantor, as the case may be, is the continuing person in the case of a merger or consolidation, or (2) the resulting, surviving or transferee person (the “successor person”) (if other than Parent, the Company or the Guarantor) will be a corporation or limited liability company (provided that the successor may be a limited liability company only if the Securities remain convertible into the common stock of a corporation) organized and existing under the laws of the United States of America, any State thereof or the District of Columbia (provided that the successor need not be organized and existing under the laws of the United States, any State thereof or the District of Columbia if independent tax counsel experienced in such matters delivers an opinion to Parent and the Company stating that, under then existing laws, there would be no adverse tax consequences to the Holders of Securities in the event the successor was not so organized and existing) and the successor person (if not Parent, the Company or the Guarantor, as the case may be) will expressly assume, by indenture supplemental hereto, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, in the case of Parent or the Company, all of the obligations of both Parent and the Company under the Securities and this Indenture, or in the case of the Guarantor, the Guarantor’s obligations under the Guarantee;
     (b) immediately after giving effect to such transaction no Default or Event of Default shall have occurred and be continuing; and
     (c) Parent and the Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each

8


 

stating that such consolidation, merger, conveyance, transfer, sale, lease or other disposal and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture, comply with this Article 5 and that all conditions precedent herein provided relating to such transaction have been satisfied.
     For purposes of the foregoing, the transfer (by lease, assignment, sale or otherwise) of the properties and assets of one or more Subsidiaries (other than to Parent, the Company, the Guarantor or another Subsidiary), which, if such assets were owned by Parent, the Company or the Guarantor, as applicable, would constitute all or substantially all of the properties and assets of Parent, the Company, the Guarantor and their Subsidiaries, taken as a whole, shall be deemed to be the transfer of all or substantially all of the properties and assets of Parent, the Company or the Guarantor, as applicable.
     The successor person formed by such consolidation or into which Parent, the Company or the Guarantor, as applicable, is merged or the successor person to which such conveyance, transfer, sale, lease or other disposition is made shall succeed to, and be substituted for, and may exercise every right and power of, Parent and the Company or the Guarantor, as applicable, under this Indenture with the same effect as if such successor had been named as Parent and the Company or the Guarantor, as applicable herein; and thereafter, except in the case of a lease or obligations Parent, the Company or the Guarantor, as applicable, may have under a supplemental indenture, Parent and the Company or the Guarantor, as applicable shall be discharged from all obligations and covenants under this Indenture and the Securities. Subject to Section 9.06, Parent, the Company, the Guarantor, the Trustee and the successor person shall enter into a supplemental indenture to evidence the succession and substitution of such successor person and such discharge and release of Parent and the Company and/or the Guarantor, as applicable.”
     (d) Article 6 is hereby amended as follows:
          (i) Section 6.01(a) is hereby amended by replacing the term “Company” with “Parent.”
          (ii) Section 6.01(e) is hereby amended and restated in its entirety to read as follows:
     “(e) the Company, Parent or the Guarantor fails to perform or observe any covenant applicable to such series of Securities and provided in this Indenture, the Guarantee, or in the relevant Securities for 90 days after written notice to the Company from the Trustee, or to the Company and the Trustee from the Holders of at least 25% in principal amount of

9


 

the outstanding Securities of such series has been received by the Company;”
          (iii) Sections 6.01(g) and (h) are each hereby amended by replacing each occurrence of “the Company or the Guarantor” with “the Company, Parent or the Guarantor.”
     (e) Article 9 is hereby amended as follows:
          (i) Section 9.01(f) is hereby amended and restated in its entirety to read as follows:
     “(f) provide for conversion rights of Holders of Securities if any reclassification or change of the Common Stock or any consolidation, merger or sale of all or substantially all of Parent’s or the Company’s assets occurs;”
          (ii) Section 9.01(g) is hereby amended by replacing the term “the Company’s” with “the Company’s and Parent’s.”
     (f) Article 10 is hereby amended as follows:
          (i) Article 10 is hereby amended by replacing the term “Company” with “Parent;” provided, however, that the reference to the term “Company” in Section 10.01(a)(4) of Article 10 shall remain unchanged.
          (ii) The proviso in the first sentence of Section 10.01(c) is hereby amended and restated in its entirety to read as follows:
     “provided that if the Stock Price paid in connection with such transaction is greater than $548.85 or less than $221.35 (subject in each case to adjustment as described below), no Additional Shares shall be added to the Conversion Rate.”
          (iii) The fourth paragraph of Section 10.01(c) is hereby amended and restated in its entirety to read as follows:
     “Notwithstanding the foregoing, in no event shall the total number of shares of Common Stock issuable upon conversion of the Securities pursuant to this clause (c) exceed 4.5177 (for the Series A Debentures) and 4.5177 (for the Series B Debentures) per $1,000 principal amount of Securities, subject to adjustments in the same manner as the Conversion Rate as set forth in Section 10.04.”
          (iv) The first sentence of Section 10.02(a) is hereby amended and restated in its entirety to read as follows:
     “Subject to Section 10.01 and the Parent’s rights under Section 10.03, each Security shall be convertible at the office of the Conversion

10


 

Agent into a combination of cash and fully paid and nonassessable shares (calculated to the nearest 1/10,000th of a share) of Common Stock, if any, at a rate (the “Conversion Rate”) equal to, initially, 3.4752 shares of Common Stock for each $1,000 principal amount of Series A Debentures, and 3.1157 shares of Common Stock for each $1,000 principal amount of Series B Debentures.”
          (v) Section 10.03(d) is hereby amended by replacing the phrase “to us” with “to the Company.”
          (vi) Section 10.04(e) is hereby amended by replacing the term “$0.15” with “$0.64.”
          (vii) Section 10.09(d) is hereby amended by replacing “the Company” with “the Company or Parent.”
     (g) Article 14 is hereby amended as follows:
          (i) Section 14.01 is hereby amended by replacing the term “Company” with “Company or Parent.”
     (h) Article 15 is hereby amended as follows:
          (i) Section 15.02 is hereby amended and restated in its entirety to read as follows:
     Section 15.02. Notices. Any request, demand, authorization, direction notice, waiver, consent or communication by the Company, the Guarantor or the Trustee to the other is duly given if in writing and delivered in person or mailed by first-class mail, postage prepaid, addressed as follows or transmitted by facsimile transmission to the following facsimile numbers:
     if to the Company:
Countrywide Financial Corporation
4500 Park Granada
MS CH-11A
Calabasas, CA 91302
Attention: Chief Legal Officer
     if to the Guarantor:
Countrywide Home Loans, Inc.
4500 Park Granada
MS CH-11A
Calabasas, CA 91302
Attention: Chief Legal Officer

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if to the Parent:
Bank of America Corporation
Bank of America Corporate Center
100 North Tryon Street
NC1-007-07-13
Corporate Treasury Division
Charlotte, North Carolina 28255
Telephone: (980) 387-3776
Facsimile: (980) 387-8794
Attention: B. Kenneth Burton, Jr.
together, in the case of notices to the Company, the Guarantor and/or the Parent, with a copy to:
Bank of America Corporation
Legal Department
NC1-002-29-01
101 South Tryon Street
Charlotte, North Carolina 28255
Telephone: (704) 386-4238
Facsimile: (704) 386-1670
Attention: Teresa M. Brenner, Esq.
if to the Trustee:
The Bank of New York Mellon
101 Barclay Street, Floor 8W
New York, New York 10286
Attn: Corporate Trust Administration
Facsimile: (212) 815-5131
The Company, Parent, the Guarantor or the Trustee by notice given to the other in the manner provided above may designate additional or different addresses for subsequent notices or communications.
Any notice or communication given to a Securityholder shall be delivered to the Securityholder, in accordance with the procedures of the Registrar or by first-class mail, postage prepaid, at the Securityholder’s address as it appears on the registration books of the Registrar and shall be sufficiently given if so mailed within the time prescribed.
Failure to mail a notice or communication to a Securityholder or any defect in it shall not affect its sufficiency with respect to other Securityholders. If a notice or communication is mailed in the manner provided above, it is duly given, whether or not received by the addressee; provided, however, that no notice to the Trustee shall be deemed to be duly given unless and until the Trustee actually receives same at the address given above.

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If the Company or Parent mails a notice or communication to the Securityholders, it shall mail a copy to the Trustee and each Registrar, Paying Agent, Conversion Agent or co-registrar.
          (ii) Section 15.10 is hereby amended by replacing the term “the Company” with “the Company or Parent.”
          (iii) Section 15.13 is hereby amended by replacing the terms “the Company” with “the Company and Parent” and “the Company’s” with “the Company’s and Parent’s.”
     (i) Schedule I-A attached to the Indenture is hereby amended and restated in its entirety with Schedule I-A attached hereto. Schedule I-B attached to the Indenture is hereby amended and restated in its entirety with Schedule I-B attached hereto.
     SECTION 1.5 Trustee’s Acceptance. The Trustee hereby accepts this First Supplemental Indenture and agrees to perform the same under the terms and conditions set forth in the Indenture.
ARTICLE II
MISCELLANEOUS
     SECTION 2.1 Effect of Supplemental Indenture. Upon the later to occur of (i) the execution and delivery of this First Supplemental Indenture by Parent, the Corporation, Issuer, the Guarantor and the Trustee and (ii) the effective time of the Merger, the Indenture shall be supplemented in accordance herewith, and this First Supplemental Indenture shall form a part of the Indenture for all purposes, and every holder of Securities heretofore or hereafter authenticated and delivered under the Indenture shall be bound thereby.
     SECTION 2.2 Indenture Remains in Full Force and Effect. Except as supplemented hereby, all provisions in the Indenture shall remain in full force and effect.
     SECTION 2.3 Indenture and Supplemental Indenture Construed Together. This First Supplemental Indenture is an indenture supplemental to and in implementation of the Indenture, and the Indenture and this First Supplemental Indenture shall henceforth be read and construed together.
     SECTION 2.4 Confirmation and Preservation of Indenture. The Indenture as supplemented by this First Supplemental Indenture is in all respects confirmed and preserved.
     SECTION 2.5 Conflict with Trust Indenture Act. If any provision of this First Supplemental Indenture limits, qualifies or conflicts with any provision of the Trust Indenture Act (the “TIA”) that is required under the TIA to be part of and govern any

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provision of this First Supplemental Indenture, the provision of the TIA shall control. If any provision of this First Supplemental Indenture modifies or excludes any provision of the TIA that may be so modified or excluded, the provision of the TIA shall be deemed to apply to the Indenture as so modified or to be excluded by this First Supplemental Indenture, as the case may be.
     SECTION 2.6 Severability. In case any provision in this First Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
     SECTION 2.7 Terms Defined in the Indenture. All capitalized terms not otherwise defined herein shall have the meanings ascribed to them in the Indenture.
     SECTION 2.8 Headings. The Article and Section headings of this First Supplemental Indenture have been inserted for convenience of reference only, are not to be considered part of this First Supplemental Indenture and shall in no way modify or restrict any of the terms or provisions hereof.
     SECTION 2.9 Benefits of First Supplemental Indenture, etc. Nothing in this First Supplemental Indenture or the Securities, express or implied, shall give to any person, other than the parties hereto and thereto and their successors hereunder and thereunder and the holders of the Securities, any benefit of any legal or equitable right, remedy or claim under the Indenture, this First Supplemental Indenture or the Securities.
     SECTION 2.10 Certain Duties and Responsibilities of the Trustee. In entering into this First Supplemental Indenture, the Trustee shall be entitled to the benefit of every provision of the Indenture relating to the conduct or affecting the liability or affording protection to the Trustee, whether or not elsewhere herein so provided.
     SECTION 2.11 Counterparts. The parties may sign any number of copies of this First Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.
     SECTION 2.12 Governing Law. This First Supplemental Indenture shall be governed by, and construed in accordance with, the laws of the State of New York without giving effect to the conflict of laws rules thereof.
     SECTION 2.13 Trustee Not Responsible for Recitals. The recitals contained herein (other than the eighth recital) shall be taken as the statements of the Parent, Corporation, the Issuer and the Guarantor, as the case may be, and the Trustee assumes no responsibility for their correctness. The Trustee makes no representation as to the validity or sufficiency of this First Supplemental Indenture.
[Signature Pages Follow]

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     IN WITNESS WHEREOF, the parties have caused this First Supplemental Indenture to be duly executed as of the date first written above.
             
    PARENT:    
 
           
    Bank of America Corporation    
 
           
 
  By:   /s/ Gregory L. Curl     
 
           
 
  Name:   Gregory L. Curl     
 
  Title:        
 
           
    THE CORPORATION:    
 
           
    Red Oak Merger Corporation    
 
           
 
  By:   /s/ Joe L. Price     
 
           
 
  Name:   Joe L. Price     
 
  Title:   Chief Financial Officer     

 


 

             
    ISSUER:    
 
           
    Countrywide Financial Corporation    
 
           
 
  By:   /s/ Jennifer S. Sandefur     
 
           
 
  Name:   Jennifer S. Sandefur     
 
  Title:   Senior Managing Director, Treasurer     
 
           
    GUARANTOR:    
 
           
    Countrywide Home Loans, Inc.    
 
           
 
  By:   /s/ Jennifer S. Sandefur     
 
           
 
  Name:   Jennifer S. Sandefur     
 
  Title:   Senior Managing Director, Treasurer     

 


 

             
    THE TRUSTEE:    
 
           
    The Bank of New York Mellon    
 
           
 
  By:   /s/ Rafael E. Miranda     
 
           
 
  Name:   Rafael E. Miranda     
 
  Title:   Vice President     

 


 

Schedule I-A
                                                                                                         
Effective Date
  $ 221.35     $ 246.98     $ 287.76     $ 301.87     $ 329.31     $ 356.75     $ 384.19     $ 411.64     $ 439.08     $ 466.52     $ 493.96     $ 521.41     $ 548.85  
July 15, 2008
    1.0333       0.6005       0.1616       0.1002       0.0426       0.0197       0.0099       0.0053       0.0030       0.0018       0.0010       0.0006       0.0002  
October 15. 2008
    1.0425       0.5737       0.0000       0.0000       0.0000       0.0000       0.0000       0.0000       0.0000       0.0000       0.0000       0.0000       0.0000  

 


 

Schedule I-B
                                                                                                         
Effective Date
  $ 221.35     $ 246.98     $ 274.42     $ 301.87     $ 320.97     $ 356.75     $ 384.19     $ 411.64     $ 439.08     $ 466.52     $ 493.96     $ 521.41     $ 548.85  
August 15, 2008
    1.3652       0.9506       0.6247       0.3967       0.2851       0.1544       0.0985       0.0652       0.0452       0.0329       0.0253       0.0203       0.0169  
November 15, 2008
    1.3666       0.9331       0.5862       0.3413       0.2239       0.1026       0.0575       0.0338       0.0215       0.0150       0.0114       0.0093       0.0079  
February 15, 2009
    1.3768       0.9235       0.5483       0.2725       0.1386       0.0411       0.0145       0.0029       0.0000       0.0000       0.0000       0.0000       0.0000  
May 15, 2009
    1.4020       0.9332       0.5283       0.1970       0.0000       0.0000       0.0000       0.0000       0.0000       0.0000       0.0000       0.0000       0.0000  

 

Exhibit 4.6
Exhibit 4.6
RED OAK MERGER CORPORATION
 
SECOND SUPPLEMENTAL INDENTURE
Dated as of July 1, 2008
Supplementing the Subordinated Indenture, dated
as of April 11, 2003, among
Countrywide Financial Corporation,
Countrywide Home Loans, Inc.,
and
The Bank of New York Mellon (formerly known as The Bank of New York), as Trustee,
as supplemented by First Supplemental Indenture, dated as of April 11, 2003, among
Countrywide Financial Corporation, Countrywide Home Loans, Inc., and The Bank of
New York Mellon (formerly known as The Bank of New York), as Trustee.

 


 

     THIS SECOND SUPPLEMENTAL INDENTURE, dated as of July 1, 2008 (the “Second Supplemental Indenture”), is made by and among RED OAK MERGER CORPORATION, a Delaware corporation (the “Corporation”), COUNTRYWIDE FINANCIAL CORPORATION, a Delaware corporation (“Issuer”), COUNTRYWIDE HOME LOANS, INC., a New York corporation (“Guarantor”), and THE BANK OF NEW YORK MELLON (formerly known as The Bank of New York), a New York banking corporation, as Trustee (the “Trustee”) under the Indenture referred to herein.
W I T N E S S E T H:
     WHEREAS, Issuer, the Guarantor and the Trustee are parties to a Subordinated Indenture dated as of April 11, 2003, as supplemented by First Supplemental Indenture, dated as of April 11, 2003, among Issuer, the Guarantor and the Trustee (as amended and supplemented, the “Indenture”), providing for the issuance of Debt Securities;
     WHEREAS, there is outstanding under the terms of the Indenture one or more series of Debt Securities (the “Securities”);
     WHEREAS, Bank of America Corporation, Issuer and the Corporation have entered into an Agreement and Plan of Merger (the “Merger Agreement”), dated as of January 11, 2008, pursuant to which Issuer will merge with and into the Corporation (the “Merger”), with the Corporation as the surviving corporation in the Merger;
     WHEREAS, the Merger is being consummated on July 1, 2008;
     WHEREAS, Section 10.01(1) of the Indenture provides that in the case of a merger of Issuer into another corporation, the surviving corporation shall expressly assume by supplemental indenture all the obligations and covenants under the Securities and the Indenture to be performed and observed by Issuer;
     WHEREAS, Section 9.01(a) of the Indenture provides that Issuer and the Guarantor, with the authorization of their respective Boards of Directors, and the Trustee, may amend the Indenture without notice to or consent of any holders of the Securities to evidence the succession of another corporation to Issuer by merger and the assumption by the successor corporation of the obligations and covenants of Issuer under the Indenture;
     WHEREAS, this Second Supplemental Indenture has been duly authorized by all necessary corporate action on the part of each of Issuer, the Guarantor and the Corporation;
     WHEREAS, the Trustee has determined this Second Supplemental Indenture is satisfactory to it in form; and
     WHEREAS, all things necessary to make this Second Supplemental Indenture a valid indenture and agreement according to its terms have been done.

 


 

     NOW, THEREFORE, in consideration of these premises, Issuer, the Guarantor, the Corporation and the Trustee agree as follows for the equal and ratable benefit of the holders of the Securities:
ARTICLE I
ASSUMPTION BY SUCCESSOR CORPORATION
AND SUPPLEMENTAL PROVISIONS
     SECTION 1.1 Assumption of the Securities.
     (a) The Corporation hereby represents and warrants that
     (i) it is a corporation organized and existing under the laws of the State of Delaware and is the surviving corporation in the Merger; and
     (ii) the execution, delivery and performance of this Second Supplemental Indenture has been duly authorized by the Board of Directors of the Corporation.
     (b) The Corporation hereby expressly assumes the due and punctual payment of the principal of (and premium, if any) and interest on all the Securities and the performance of every covenant of the Indenture on the part of Issuer to be performed or observed.
     SECTION 1.2 Name. Effective July 1, 2008, the name of Issuer, as the successor corporation under the Indenture, shall be “Red Oak Merger Corporation.”
     SECTION 1.3 Trustee’s Acceptance. The Trustee hereby accepts this Second Supplemental Indenture and agrees to perform the same under the terms and conditions set forth in the Indenture.
ARTICLE II
MISCELLANEOUS
     SECTION 2.1 Effect of Supplemental Indenture. Upon the later to occur of (i) the execution and delivery of this Second Supplemental Indenture by the Corporation, Issuer, the Guarantor and the Trustee and (ii) the effective time of the Merger, the Indenture shall be supplemented in accordance herewith, and this Second Supplemental Indenture shall form a part of the Indenture for all purposes, and every holder of Securities heretofore or hereafter authenticated and delivered under the Indenture shall be bound thereby.
     SECTION 2.2 Indenture Remains in Full Force and Effect. Except as supplemented hereby, all provisions in the Indenture shall remain in full force and effect.
     SECTION 2.3 Indenture and Supplemental Indentures Construed Together. This Second Supplemental Indenture is an indenture supplemental to and in

2


 

implementation of the Indenture, and the Indenture and this Second Supplemental Indenture shall henceforth be read and construed together.
     SECTION 2.4 Confirmation and Preservation of Indenture. The Indenture as supplemented by this Second Supplemental Indenture is in all respects confirmed and preserved.
     SECTION 2.5 Conflict with Trust Indenture Act. If any provision of this Second Supplemental Indenture limits, qualifies or conflicts with any provision of the Trust Indenture Act (the “TIA”) that is required under the TIA to be part of and govern any provision of this Second Supplemental Indenture, the provision of the TIA shall control. If any provision of this Second Supplemental Indenture modifies or excludes any provision of the TIA that may be so modified or excluded, the provision of the TIA shall be deemed to apply to the Indenture as so modified or to be excluded by this Second Supplemental Indenture, as the case may be.
     SECTION 2.6 Severability. In case any provision in this Second Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
     SECTION 2.7 Terms Defined in the Indenture. All capitalized terms not otherwise defined herein shall have the meanings ascribed to them in the Indenture.
     SECTION 2.8 Addresses for Notice, etc., to the Corporation and Trustee. Any notice or demand which by any provisions of this Second Supplemental Indenture or the Indenture is required or permitted to be given or served by the Trustee or by the holders of Securities to or on the Corporation may be given in the manner specified in the Indenture to the following address:
Bank of America Corporation
Bank of America Corporate Center
100 North Tryon Street
NC1-007-07-13
Corporate Treasury Division
Charlotte, North Carolina 28255
Telephone: (980) 387-3776
Facsimile: (980) 387-8794
Attention: B. Kenneth Burton, Jr.
Together with a copy to:
Bank of America Corporation
Legal Department
NC1-002-29-01
101 South Tryon Street

3


 

Charlotte, North Carolina 28255
Telephone: (704) 386-4238
Facsimile: (704) 386-1670
Attention: Teresa M. Brenner, Esq.
     SECTION 2.9 Headings. The Article and Section headings of this Second Supplemental Indenture have been inserted for convenience of reference only, are not to be considered part of this Second Supplemental Indenture and shall in no way modify or restrict any of the terms or provisions hereof.
     SECTION 2.10 Benefits of Second Supplemental Indenture, etc. Nothing in this Second Supplemental Indenture or the Securities, express or implied, shall give to any Person, other than the parties hereto and thereto and their successors hereunder and thereunder and the holders of the Securities, any benefit of any legal or equitable right, remedy or claim under the Indenture, this Second Supplemental Indenture or the Securities.
     SECTION 2.11 Certain Duties and Responsibilities of the Trustee. In entering into this Second Supplemental Indenture, the Trustee shall be entitled to the benefit of every provision of the Indenture relating to the conduct or affecting the liability or affording protection to the Trustee, whether or not elsewhere herein so provided.
     SECTION 2.12 Counterparts. The parties may sign any number of copies of this Second Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.
     SECTION 2.13 Governing Law. This Second Supplemental Indenture shall be deemed to be a contract made under the laws of the State of New York, and for all purposes shall be governed by and construed in accordance with the laws of said State without regard to conflicts of laws principles.
     SECTION 2.14 Trustee Not Responsible for Recitals. The recitals contained herein (other than the eighth recital) shall be taken as the statements of the Corporation, the Issuer and the Guarantor, as the case may be, and the Trustee assumes no responsibility for their correctness. The Trustee makes no representation as to the validity or sufficiency of this Second Supplemental Indenture.
[Signature Pages Follow]

4


 

     IN WITNESS WHEREOF, the parties have caused this Second Supplemental Indenture to be duly executed as of the date first written above.
             
    THE CORPORATION:    
 
           
    Red Oak Merger Corporation    
 
           
 
  By:   /s/ Joe L. Price     
 
  Name:   Joe L. Price    
 
  Title:   Chief Financial Officer     

 


 

             
    ISSUER:    
 
           
    Countrywide Financial Corporation    
 
           
 
  By:   /s/ JENNIFER S. SANDEFUR     
 
  Name:   Jennifer S. Sandefur    
 
  Title:   Senior Managing Director, Treasurer     
 
           
    GUARANTOR:    
 
           
    Countrywide Home Loans, Inc.    
 
           
 
  By:   /s/ JENNIFER S. SANDEFUR     
 
  Name:   Jennifer S. Sandefur    
 
  Title:   Senior Managing Director, Treasurer     

 


 

             
    THE TRUSTEE:    
 
           
    The Bank of New York Mellon    
 
           
 
  By:   /s/ Rafael E. Miranda     
 
  Name:   Rafael E. Miranda    
 
  Title:   Vice President     

 

Exhibit 4.7
Exhibit 4.7
RED OAK MERGER CORPORATION
 
SECOND SUPPLEMENTAL INDENTURE
Dated as of July 1, 2008
Supplementing the Indenture, dated
as of November 8, 2006, among
Countrywide Financial Corporation (formerly Countrywide Credit Industries, Inc.),
Countrywide Home Loans, Inc. (formerly Countrywide Funding Corporation),
and
The Bank of New York Mellon (formerly known as The Bank of New York), as Trustee, as supplemented by Supplemental Indenture, dated as of November 8, 2006, between Countrywide Financial Corporation and The Bank of New York Mellon (formerly known as The Bank of New York), as Trustee.

 


 

THIS SECOND SUPPLEMENTAL INDENTURE, dated as of July 1, 2008 (the “Second Supplemental Indenture”), is made by and among RED OAK MERGER CORPORATION, a Delaware corporation (the “Corporation”), COUNTRYWIDE FINANCIAL CORPORATION (formerly Countrywide Credit Industries, Inc.), a Delaware corporation (“Issuer”), COUNTRYWIDE HOME LOANS, INC. (formerly Countrywide Funding Corporation), a New York corporation (“Guarantor”), and THE BANK OF NEW YORK MELLON (formerly known as The Bank of New York), a New York banking corporation, as Trustee (the “Trustee”) under the Indenture referred to herein.
W I T N E S S E T H:
WHEREAS, Issuer, the Guarantor and the Trustee were parties to an Indenture dated as of November 8, 2006, as supplemented by Supplemental Indenture, dated as of November 8, 2006, between Countrywide Financial Corporation and The Bank of New York Mellon (formerly known as The Bank of New York), as Trustee (as amended and supplemented, the “Indenture”), providing for the issuance of Debt Securities;
     WHEREAS, there is outstanding under the terms of the Indenture one or more series of notes as Debt Securities (the “Securities”);
     WHEREAS, Bank of America Corporation, Issuer and the Corporation have entered into an Agreement and Plan of Merger (the “Merger Agreement”), dated as of January 11, 2008, pursuant to which Issuer will merge with and into the Corporation (the “Merger”), with the Corporation as the surviving corporation in the Merger;
     WHEREAS, the Merger is expected to be consummated on July 1, 2008;
     WHEREAS, Section 8.1 of the Indenture provides that in the case of a merger of Issuer, the surviving corporation shall expressly assume by supplemental indenture all the obligations and covenants under the Securities and the Indenture to be performed and observed by Issuer;
     WHEREAS, Section 9.1(1) of the Indenture provides that Issuer and the Guarantor, with the authorization of a Board of Directors and the Trustee, may amend the Indenture without notice to or consent of any holders of the Securities to evidence the succession of another corporation to Issuer by merger and the assumption by the successor corporation of the obligations and covenants of Issuer under the Indenture;
     WHEREAS, this Second Supplemental Indenture has been duly authorized by all necessary corporate action on the part of each of Issuer, the Guarantor and the Corporation;
     WHEREAS, the Trustee has determined this Second Supplemental Indenture is satisfactory to it in form; and

 


 

     WHEREAS, all things necessary to make this Second Supplemental Indenture a valid indenture and agreement according to its terms have been done.
     NOW, THEREFORE, in consideration of these premises, Issuer, the Guarantor, the Corporation and the Trustee agree as follows for the equal and ratable benefit of the holders of the Securities:
ARTICLE I
ASSUMPTION BY SUCCESSOR CORPORATION
AND SUPPLEMENTAL PROVISIONS
     SECTION 1.1 Assumption of the Securities.
     (a) The Corporation hereby represents and warrants that
     (i) it is a corporation organized and existing under the laws of the State of Delaware and is the surviving corporation in the Merger; and
     (ii) the execution, delivery and performance of this Second Supplemental Indenture has been duly authorized by the Board of Directors of the Corporation.
     (b) The Corporation hereby expressly assumes the due and punctual payment of the principal of (and premium, if any) and any interest on all the Securities and the due and punctual performance and observance of every covenant of the Indenture on the part of Issuer to be performed or observed.
     SECTION 1.2 Name. Effective July 1, 2008, the name of Issuer, as the successor corporation under the Indenture, shall be “Red Oak Merger Corporation.”
     SECTION 1.3 Trustee’s Acceptance. The Trustee hereby accepts this Second Supplemental Indenture and agrees to perform the same under the terms and conditions set forth in the Indenture.
ARTICLE II
MISCELLANEOUS
     SECTION 2.1 Effect of Supplemental Indenture. Upon the later to occur of (i) the execution and delivery of this Second Supplemental Indenture by the Corporation, Issuer, the Guarantor and the Trustee and (ii) the effective time of the Merger, the Indenture shall be supplemented in accordance herewith, and this Second Supplemental Indenture shall form a part of the Indenture for all purposes, and every holder of Securities heretofore or hereafter authenticated and delivered under the Indenture shall be bound thereby.
     SECTION 2.2 Indenture Remains in Full Force and Effect. Except as supplemented hereby, all provisions in the Indenture shall remain in full force and effect.

2


 

     SECTION 2.3 Indenture and Supplemental Indentures Construed Together. This Second Supplemental Indenture is an indenture supplemental to and in implementation of the Indenture, and the Indenture and this Second Supplemental Indenture shall henceforth be read and construed together.
     SECTION 2.4 Confirmation and Preservation of Indenture. The Indenture as supplemented by this Second Supplemental Indenture is in all respects confirmed and preserved.
     SECTION 2.5 Conflict with Trust Indenture Act. If any provision of this Second Supplemental Indenture limits, qualifies or conflicts with any provision of the Trust Indenture Act (the “TIA”) that is required under the TIA to be part of and govern any provision of this Second Supplemental Indenture, the provision of the TIA shall control. If any provision of this Second Supplemental Indenture modifies or excludes any provision of the TIA that may be so modified or excluded, the provision of the TIA shall be deemed to apply to the Indenture as so modified or to be excluded by this Second Supplemental Indenture, as the case may be.
     SECTION 2.6 Severability. In case any provision in this Second Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
     SECTION 2.7 Terms Defined in the Indenture. All capitalized terms not otherwise defined herein shall have the meanings ascribed to them in the Indenture.
     SECTION 2.8 Addresses for Notice, etc., to the Corporation and Trustee. Any notice or demand which by any provisions of this Second Supplemental Indenture or the Indenture is required or permitted to be given or served by the Trustee or by the holders of Securities to or on the Corporation may be given or served by postage prepaid first class mail addressed (until another address if filed by the Corporation with the Trustee) as follows:
Bank of America Corporation
Bank of America Corporate Center
100 North Tryon Street
NC1-007-07-13
Corporate Treasury Division
Charlotte, North Carolina 28255
Telephone: (980) 387-3776
Facsimile: (980) 387-8794
Attention: B. Kenneth Burton, Jr.
Together with a copy to:
Bank of America Corporation

3


 

Legal Department
NC1-002-29-01
101 South Tryon Street
Charlotte, North Carolina 28255
Telephone: (704) 386-4238
Facsimile: (704) 386-1670
Attention: Teresa M. Brenner, Esq.
     SECTION 2.8 Headings. The Article and Section headings of this Second Supplemental Indenture have been inserted for convenience of reference only, are not to be considered part of this Second Supplemental Indenture and shall in no way modify or restrict any of the terms or provisions hereof.
     SECTION 2.9 Benefits of Second Supplemental Indenture, etc. Nothing in this Second Supplemental Indenture or the Securities, express or implied, shall give to any Person, other than the parties hereto and thereto and their successors hereunder and thereunder and the holders of the Securities, any benefit of any legal or equitable right, remedy or claim under the Indenture, this Second Supplemental Indenture or the Securities.
     SECTION 2.10 Certain Duties and Responsibilities of the Trustees. In entering into this Second Supplemental Indenture, the Trustee shall be entitled to the benefit of every provision of the Indenture relating to the conduct or affecting the liability or affording protection to the Trustee, whether or not elsewhere herein so provided.
     SECTION 2.11 Counterparts. The parties may sign any number of copies of this Second Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.
     SECTION 2.12 Governing Law. This Second Supplemental Indenture shall be governed by, and construed in accordance with, the laws of the State of New York but without giving effect to applicable principles of conflicts of law to the extent that the application of the laws of another jurisdiction would be required thereby.
     SECTION 2.13 Trustee Not Responsible for Recitals. The recitals contained herein (other than the eighth recital) shall be taken as the statements of the Corporation, the Issuer and the Guarantor, as the case may be, and the Trustee assumes no responsibility for their correctness. The Trustee makes no representation as to the validity or sufficiency of this Second Supplemental Indenture.
[Signature Page Follows]

4


 

     IN WITNESS WHEREOF, the parties have caused this Second Supplemental Indenture to be duly executed as of the date first written above.
             
    THE CORPORATION:    
 
           
    Red Oak Merger Corporation    
 
           
 
  By:   /s/ Joe L. Price     
 
  Name:   Joe L. Price    
 
  Title:   Chief Financial Officer     

 


 

     IN WITNESS WHEREOF, the parties have caused this Second Supplemental Indenture to be duly executed as of the date first written above.
             
    ISSUER:    
 
           
    Countrywide Financial Corporation (formerly Countrywide Credit Industries, Inc.)    
 
           
 
  By:   /s/ JENNIFER S. SANDEFUR     
 
  Name:   Jennifer S. Sandefur    
 
  Title:   Senior Managing Director, Treasurer     
 
           
    GUARANTOR:    
 
           
    Countrywide Home Loans, Inc. (formerly Countrywide Funding Corporation)    
 
           
 
  By:   /s/ JENNIFER S. SANDEFUR     
 
  Name:   Jennifer S. Sandefur    
 
  Title:   Senior Managing Director, Treasurer     

 


 

     IN WITNESS WHEREOF, the parties have caused this Second Supplemental Indenture to be duly executed as of the date first written above.
             
    THE TRUSTEE:    
 
           
    The Bank of New York Mellon    
 
           
 
  By:   /s/ RAFAEL E. MIRANDA     
 
  Name:   Rafael E. Miranda    
 
  Title:   Vice President     

 

Exhibit 4.8
Exhibit 4.8
RED OAK MERGER CORPORATION
 
FIRST SUPPLEMENTAL INDENTURE
Dated as of July 1, 2008
Supplementing the Indenture, dated
as of June 4, 1997, among
Countrywide Home Loans, Inc.,
Countrywide Financial Corporation (formerly Countrywide Credit Industries, Inc.),
and
The Bank of New York Mellon (formerly known as The Bank of New York), as Trustee.

 


 

THIS FIRST SUPPLEMENTAL INDENTURE, dated as of July 1, 2008 (the “First Supplemental Indenture”), is made by and among RED OAK MERGER CORPORATION, a Delaware corporation (the “Corporation”), COUNTRYWIDE HOME LOANS, INC., a New York corporation (“Issuer”), COUNTRYWIDE FINANCIAL CORPORATION (formerly Countrywide Credit Industries, Inc.), a Delaware corporation (“Guarantor”), and THE BANK OF NEW YORK MELLON (formerly known as The Bank of New York), a New York banking corporation, as Trustee (the “Trustee”) under the Indenture referred to herein.
W I T N E S S E T H:
     WHEREAS, Issuer, the Guarantor and the Trustee are parties to an Indenture dated as of June 4, 1997 (as amended and supplemented, the “Indenture”), providing for the issuance of Debt Securities;
     WHEREAS, there is outstanding under the terms of the Indenture one or more series of Debt Securities (the “Securities”);
     WHEREAS, Bank of America Corporation, Guarantor and the Corporation have entered into an Agreement and Plan of Merger (the “Merger Agreement”), dated as of January 11, 2008, pursuant to which Guarantor will merge with and into the Corporation (the “Merger”), with the Corporation as the surviving corporation in the Merger;
     WHEREAS, the Merger is being consummated on July 1, 2008;
     WHEREAS, Section 10.1 of the Indenture provides that in the case of a merger of the Guarantor into any other corporation, the surviving corporation shall expressly assume by supplemental indenture all the obligations and covenants under the Securities and the Indenture to be performed and observed by the Guarantor;
     WHEREAS, Section 11.1(a) of the Indenture provides that Issuer and the Guarantor, with the authorization of their respective Boards of Directors, and the Trustee, may amend the Indenture without notice to or consent of any holders of the Securities to evidence the succession of another corporation to the Guarantor by merger and the assumption by the successor corporation of the obligations and covenants of the Guarantor under the Indenture;
     WHEREAS, this First Supplemental Indenture has been duly authorized by all necessary corporate action on the part of each of Issuer, the Guarantor and the Corporation;
     WHEREAS, the Trustee has determined this First Supplemental Indenture is satisfactory to it in form; and
     WHEREAS, all things necessary to make this First Supplemental Indenture a valid indenture and agreement according to its terms have been done.

 


 

     NOW, THEREFORE, in consideration of these premises, Issuer, the Guarantor, the Corporation and the Trustee agree as follows for the equal and ratable benefit of the holders of the Securities:
ARTICLE I
ASSUMPTION BY SUCCESSOR CORPORATION
AND SUPPLEMENTAL PROVISIONS
     SECTION 1.1 Assumption of the Guarantees.
     (a) The Corporation hereby represents and warrants that
     (i) it is a corporation organized and existing under the laws of the State of Delaware and is the surviving corporation in the Merger; and
     (ii) the execution, delivery and performance of this First Supplemental Indenture has been duly authorized by the Board of Directors of the Corporation.
     (b) The Corporation hereby expressly assumes the performance of all obligations under the Guarantees and the due and punctual performance and observance of all of the covenants and conditions of the Indenture to be kept or performed by the Guarantor.
     SECTION 1.2 Name. Effective July 1, 2008, the name of the Guarantor, as the successor corporation under the Indenture, shall be “Red Oak Merger Corporation.”
     SECTION 1.3 Trustee’s Acceptance. The Trustee hereby accepts this First Supplemental Indenture and agrees to perform the same under the terms and conditions set forth in the Indenture.
ARTICLE II
MISCELLANEOUS
     SECTION 2.1 Effect of Supplemental Indenture. Upon the later to occur of (i) the execution and delivery of this First Supplemental Indenture by the Corporation, Issuer, the Guarantor and the Trustee and (ii) the effective time of the Merger, the Indenture shall be supplemented in accordance herewith, and this First Supplemental Indenture shall form a part of the Indenture for all purposes, and every holder of Securities heretofore or hereafter authenticated and delivered under the Indenture shall be bound thereby.
     SECTION 2.2 Indenture Remains in Full Force and Effect. Except as supplemented hereby, all provisions in the Indenture shall remain in full force and effect.
     SECTION 2.3 Indenture and Supplemental Indenture Construed Together. This First Supplemental Indenture is an indenture supplemental to and in implementation of the Indenture, and the Indenture and this First Supplemental Indenture shall henceforth be read and construed together.

 


 

     SECTION 2.4 Confirmation and Preservation of Indenture. The Indenture as supplemented by this First Supplemental Indenture is in all respects confirmed and preserved.
     SECTION 2.5 Conflict with Trust Indenture Act. If any provision of this First Supplemental Indenture limits, qualifies or conflicts with any provision of the Trust Indenture Act (the “TIA”) that is required under the TIA to be part of and govern any provision of this First Supplemental Indenture, the provision of the TIA shall control. If any provision of this First Supplemental Indenture modifies or excludes any provision of the TIA that may be so modified or excluded, the provision of the TIA shall be deemed to apply to the Indenture as so modified or to be excluded by this First Supplemental Indenture, as the case may be.
     SECTION 2.6 Severability. In case any provision in this First Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
     SECTION 2.7 Terms Defined in the Indenture. All capitalized terms not otherwise defined herein shall have the meanings ascribed to them in the Indenture.
     SECTION 2.8 Addresses for Notice, etc., to the Corporation and Trustee. Any notice or demand which by any provisions of this First Supplemental Indenture or the Indenture is required or permitted to be given or served by the Trustee or by the holders of Securities to or on the Corporation may be given in the manner specified in the Indenture to the following address:
Bank of America Corporation
Bank of America Corporate Center
100 North Tryon Street
NC1-007-07-13
Corporate Treasury Division
Charlotte, North Carolina 28255
Telephone: (980) 387-3776
Facsimile: (980) 387-8794
Attention: B. Kenneth Burton, Jr.
Together with a copy to:
Bank of America Corporation
Legal Department
NC1-002-29-01
101 South Tryon Street
Charlotte, North Carolina 28255
Telephone: (704) 386-4238

 


 

Facsimile: (704) 386-1670
Attention: Teresa M. Brenner, Esq.
     SECTION 2.9 Headings. The Article and Section headings of this First Supplemental Indenture have been inserted for convenience of reference only, are not to be considered part of this First Supplemental Indenture and shall in no way modify or restrict any of the terms or provisions hereof.
     SECTION 2.10 Benefits of First Supplemental Indenture, etc. Nothing in this First Supplemental Indenture or the Securities, express or implied, shall give to any Person, other than the parties hereto and thereto and their successors hereunder and thereunder and the holders of the Securities, any benefit of any legal or equitable right, remedy or claim under the Indenture, this First Supplemental Indenture or the Securities.
     SECTION 2.11 Certain Duties and Responsibilities of the Trustee. In entering into this First Supplemental Indenture, the Trustee shall be entitled to the benefit of every provision of the Indenture relating to the conduct or affecting the liability or affording protection to the Trustee, whether or not elsewhere herein so provided.
     SECTION 2.12 Counterparts. The parties may sign any number of copies of this First Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.
     SECTION 2.13 Governing Law. This First Supplemental Indenture shall be governed by, and construed in accordance with, the laws of the State of New York, without regard to conflicts of law principles thereof.
     SECTION 2.14 Trustee Not Responsible for Recitals. The recitals contained herein (other than the eighth recital) shall be taken as the statements of the Corporation, the Issuer and the Guarantor, as the case may be, and the Trustee assumes no responsibility for their correctness. The Trustee makes no representation as to the validity or sufficiency of this First Supplemental Indenture.
[Signature Pages Follow]

 


 

     IN WITNESS WHEREOF, the parties have caused this First Supplemental Indenture to be duly executed as of the date first written above.
             
    THE CORPORATION:    
 
           
    Red Oak Merger Corporation    
 
           
 
  By:   /s/ Joe L. Price     
 
           
 
  Name:   Joe L. Price     
 
  Title:   Chief Financial Officer     

 


 

             
    GUARANTOR:    
 
           
    Countrywide Financial Corporation (formerly    
    Countrywide Credit Industries, Inc.)    
 
           
 
  By:   /s/ JENNIFER S. SANDEFUR     
 
           
 
  Name:   Jennifer S. Sandefur     
 
  Title:   Senior Managing Director, Treasurer     
 
           
    ISSUER:    
 
           
    Countrywide Home Loans, Inc.    
 
           
 
  By:   /s/ JENNIFER S. SANDEFUR     
 
           
 
  Name:   Jennifer S. Sandefur     
 
  Title:   Senior Managing Director, Treasurer     

 


 

             
    THE TRUSTEE:    
 
           
    The Bank of New York Mellon    
 
           
 
  By:   /s/ Rafael E. Miranda     
 
           
 
  Name:   Rafael E. Miranda     
 
  Title:   Vice President     

 

Exhibit 4.9
Exhibit 4.9
 
SECOND SUPPLEMENTAL TRUST DEED
Dated as of July 1, 2008
Supplementing the Trust Deed, dated
as of August 15, 2005, among
Countrywide Financial Corporation,
Countrywide Home Loans, Inc.,
and
Deutsche Trustee Company Limited, as Trustee,
as modified and restated by the First Supplemental Trust Deed dated August 31, 2006.

 


 

     THIS SECOND SUPPLEMENTAL TRUST DEED, dated as of July 1, 2008 (the “Second Supplemental Trust Deed”), is made by and among RED OAK MERGER CORPORATION, a Delaware corporation (the “Corporation”), COUNTRYWIDE FINANCIAL CORPORATION, a Delaware corporation (“CFC”), COUNTRYWIDE HOME LOANS, INC., a New York corporation (“Guarantor”), and DEUTSCHE TRUSTEE COMPANY LIMITED, a company incorporated with limited liability in England and Wales, as Trustee (the “Trustee”) under the Trust Deed referred to herein.
W I T N E S S E T H:
     WHEREAS, CFC, the Guarantor and the Trustee are parties to a Trust Deed dated as of August 15, 2005, as modified and restated by the First Supplemental Trust Deed dated August 31, 2006 (as amended and supplemented, the “Trust Deed”), providing for the issuance of Notes by CFC, as Issuer thereunder;
     WHEREAS, there is outstanding under the terms of the Trust Deed one or more series of Notes (the “Securities”);
     WHEREAS, Bank of America Corporation, CFC and the Corporation have entered into an Agreement and Plan of Merger (the “Merger Agreement”), dated as of January 11, 2008, pursuant to which CFC will merge with and into the Corporation (the “Merger”), with the Corporation as the surviving corporation in the Merger;
     WHEREAS, the Merger is expected to be effective as of July 1, 2008;
     WHEREAS, Clause 19(D)(1) of the Trust Deed provides that in the case of a merger of CFC (acting as the Issuer under the Trust Deed), the surviving corporation shall be a corporation organized and existing under the laws of the United States of America, any political subdivision thereof or any state thereof and shall expressly assume by supplemental trust deed all the obligations and covenants under the Securities and the Trust Deed to be performed and observed by CFC;
     WHEREAS, this Second Supplemental Trust Deed has been duly authorized by all necessary corporate action on the part of each of CFC, the Guarantor and the Corporation;
     WHEREAS, the Trustee has determined this Second Supplemental Trust Deed is proper and satisfactory in form; and
     WHEREAS, all things necessary to make this Second Supplemental Trust Deed a valid Trust Deed and agreement according to its terms have been done.
     NOW, THEREFORE, in consideration of these premises, CFC, the Guarantor, the Corporation and the Trustee agree as follows for the benefit of the holders of the Securities:

 


 

ARTICLE I
ASSUMPTION BY SUCCESSOR CORPORATION
AND SUPPLEMENTAL PROVISIONS
     SECTION 1.1 Assumption of the Securities.
  (a)   The Corporation hereby represents and warrants that:
  (i)   it is a corporation organized and existing under the laws of the State of Delaware and is the surviving corporation in the Merger; and
 
  (ii)   the execution, delivery and performance of this Second Supplemental Trust Deed has been duly authorized by the Board of Directors of the Corporation.
     (b) The Corporation hereby expressly takes over and assumes the due and punctual payment of the principal of and any interest on all the Securities and the due and punctual performance of all obligations and the performance of every covenant of the Trust Deed on the part of the Issuer (as defined in the Trust Deed) to be performed or observed.
     SECTION 1.2 Assumption of liabilities
     (a) Subject to the receipt by the Trustee of a directors’ certificate substantially in the form set out in the Schedule 1.2 attached hereto (dated the date hereof) the parties hereto agree that with effect on and from the effective time of the Merger (the “Merger Date”):
  (i)   all the rights, obligations and liabilities of CFC under or in respect of the Securities and under the Trust Deed shall be taken over and assumed by the Corporation including, but without limiting the generality of the foregoing, the obligation to pay (a) the interest on the Securities accrued up to and including the Merger Date but unpaid and (b) all other moneys payable in respect of the Securities or under or pursuant to the Trust Deed accrued up to and including, or payable prior to, the Merger Date but unpaid; and any other amounts payable under the Securities and under these presents; and
 
  (ii)   (x) all the terms, provisions and conditions of the Trust Deed and the Securities and theretofore applying to CFC shall apply to the Corporation in all respects as if the Corporation had been a party to the Trust Deed in place of CFC and (y) the Trust Deed in respect thereof shall be read and construed as if all references therein to CFC were references to the Corporation.
     (b) The Corporation hereby covenants with the Trustee that with effect on and from the Merger Date it will duly observe and perform and be bound by all of the covenants (including, but without limiting the generality of the foregoing, any covenant

2


 

to pay), conditions and provisions of these presents (as defined in the Trust Deed), the Securities issued under the Programme by CFC and the Conditions of the Securities as prior thereto have been expressed to be binding on CFC.
     SECTION 1.3 Continuing Guarantee. The Guarantor hereby:
     (a) Confirms and undertakes to the Trustee that the guarantee given pursuant to Clause 7 of the Trust Deed (the “Guarantee”) shall remain in full force and effect notwithstanding the provisions of this Second Supplemental Trust Deed and shall apply in respect of the Notes and Coupons and the Trust Deed as so modified;
     (b) Confirms and undertakes to the Trustee that it shall remain bound by the Guarantee following the Merger; and
     (c) Confirms and undertakes to the Trustee that the other provisions of the Trust Deed remain in full force and effect in respect of the Notes and Coupons and remain binding on the Guarantor following the Merger.
     SECTION 1.4 Name. Effective July 1, 2008, the name of the Issuer shall be “Countrywide Financial Corporation (formerly known as Red Oak Merger Corporation),” as the successor corporation under the Trust Deed.
     SECTION 1.5 Trustee’s Acceptance. The Trustee hereby accepts this Second Supplemental Trust Deed and agrees to perform the same under the terms and conditions set forth in the Trust Deed.
ARTICLE II
MISCELLANEOUS
     SECTION 2.1 Effect of Supplemental Trust Deed. Upon the later to occur of (i) the execution and delivery of this Second Supplemental Trust Deed by the Corporation, CFC, the Guarantor and the Trustee and (ii) the Merger Date, the Trust Deed shall be supplemented in accordance herewith, and this Second Supplemental Trust Deed shall form a part of the Trust Deed for all purposes, and every holder of Securities heretofore or hereafter authenticated and delivered under the Trust Deed shall be bound thereby.
     SECTION 2.2 Trust Deed Remains in Full Force and Effect. Except as supplemented hereby, all provisions in the Trust Deed shall remain in full force and effect.
     SECTION 2.3 Trust Deed and Supplemental Trust Deeds Construed Together. This Second Supplemental Trust Deed is supplemental to and in implementation of the Trust Deed, and the Trust Deed and this Second Supplemental Trust Deed shall henceforth be read and construed together.

3


 

     SECTION 2.4 Confirmation and Preservation of Trust Deed. The Trust Deed as supplemented by this Second Supplemental Trust Deed is in all respects confirmed and preserved.
     SECTION 2.5 Severability. In case any provision in this Second Supplemental Trust Deed shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
     SECTION 2.6 Terms Defined in the Trust Deed. All capitalized terms not otherwise defined herein shall have the meanings ascribed to them in the Trust Deed.
     SECTION 2.7 Addresses for Notice, etc., to the Corporation and Trustee. Any notice or demand which by any provisions of this Second Supplemental Trust Deed or the Trust Deed is required or permitted to be given or served by the Trustee or by the holders of Securities to or on the Corporation may be given or served by pre-paid post (first class if inland, first class airmail if overseas) or by facsimile transmission or by delivering it by hand (until another address if filed by the Corporation with the Trustee) as follows:
Bank of America Corporation
Bank of America Corporate Center
100 North Tryon Street
NC1-007-07-13
Corporate Treasury Division
Charlotte, North Carolina 28255
Telephone: (980) 387-3776
Facsimile: (980) 387-8794
Attention: B. Kenneth Burton, Jr.
Together with a copy to:
Bank of America Corporation
Legal Department
NC1-002-29-01
101 South Tryon Street
Charlotte, North Carolina 28255
Telephone: (704) 386-4238
Facsimile: (704) 386-1670
Attention: Teresa M. Brenner, Esq.
Any notice, direction, request or demand by any holder of Securities to or upon the Trustee shall be deemed to have been sufficiently given or made, for all purposes, if given or made in writing at the principal office of the Trustee, which shall be as follows:
Deutsche Trustee Company Limited

4


 

Winchester House
1 Great Winchester Street
London EC2N 2DB
Telephone: 020 7545 8000
Facsimile: 020 7547 6149
Attention: Managing Director
     SECTION 2.8 Headings. The Article and Section headings of this Second Supplemental Trust Deed have been inserted for convenience of reference only, are not to be considered part of this Second Supplemental Trust Deed and shall in no way modify or restrict any of the terms or provisions hereof.
     SECTION 2.9 Benefits of Second Supplemental Trust Deed, etc. Nothing in this Second Supplemental Trust Deed or the Securities, express or implied, shall give to any Person, other than the parties hereto and thereto and their successors hereunder and thereunder and the holders of the Securities, any benefit of any legal or equitable right, remedy or claim under the Trust Deed, this Second Supplemental Trust Deed or the Securities.
     SECTION 2.10 Certain Duties and Responsibilities of the Trustees. In entering into this Second Supplemental Trust Deed, the Trustee shall be entitled to the benefit of every provision of the Trust Deed relating to the conduct or affecting the liability or affording protection to the Trustee, whether or not elsewhere herein so provided.
     SECTION 2.11 Counterparts. The parties may sign any number of copies of this Second Supplemental Trust Deed. Each signed copy shall be an original, but all of them together represent the same agreement.
     SECTION 2.12 Governing Law. These presents are governed by, and shall be construed in accordance with, English law.
     SECTION 2.13 Submission to Jurisdiction.
     (a) Each of the Corporation, Issuer and CFC irrevocably agrees for the benefit of the Trustee that the courts of England are to have jurisdiction to settle any disputes which may arise out of or in connection with these presents and that accordingly any suit, action or proceedings arising out of or in connection with these presents (together referred to as “Proceedings”) may be brought in the courts of England. Each of the Corporation, Issuer and CFC irrevocably and unconditionally waive and agree not to raise any objection which it may have now or subsequently to the laying of the venue of any Proceedings in the courts of England and any claim that any Proceedings have been brought in an inconvenient forum and further irrevocably and unconditionally agrees that a judgment in any Proceedings brought in the courts of England shall be conclusive and binding upon it and may be enforced in the courts of any other jurisdiction. Nothing in this Clause shall limit any right to take Proceedings against the Corporation, Issuer or CFC in any other court of competent jurisdiction, nor shall the taking of Proceedings in

5


 

one or more jurisdictions preclude the taking of Proceedings in any other jurisdiction, whether concurrently or not.
     (b) Each of the Corporation, Issuer and CFC irrevocably and unconditionally appoints Clifford Chance Secretaries Limited at its registered office for the time being (being at the date hereof at 10 Upper Bank Street, London E14 5JJ) and in the event of its ceasing so to act will appoint such other person as the Trustee may approve and as the Corporation, Issuer and CFC may nominate in writing to the Trustee for the purpose to accept service of process on its behalf in England in respect of any Proceedings. Each of the Corporation, Issuer and CFC:
  (i)   agrees to procure that, so long as any of the Notes issued by it remains liable to prescription, there shall be in force an appointment of such a person approved by the Trustee with an office in London with authority to accept service as aforesaid;
 
  (ii)   agrees that failure by any such person to give notice of such service of process to the Corporation, Issuer and CFC shall not impair the validity of such service or of any judgment based thereon; and
 
  (iii)   agrees that nothing in these presents shall affect the right to serve process in any other manner permitted by law.
[Signature Page Follows]

6


 

     IN WITNESS WHEREOF, this Second Supplemental Trust Deed has been duly executed and delivered as a deed by the parties as of the date first written above.
         
EXECUTED as a deed by
    )  
RED OAK MERGER CORPORATION
    )  
by
    )           /s/ Joe L. Price 
acting under the authority of that company    
    )           Chief Financial Officer 
in the presence of:
    )  
 
       
Witness’ Signature:
       
 
       
Name:
       
 
       
Address:
       
 
       
Occupation:
       

 


 

     IN WITNESS WHEREOF, this Second Supplemental Trust Deed has been duly executed and delivered as a deed by the parties as of the date first written above.
         
EXECUTED as a deed by
    )  
COUNTRYWIDE FINANCIAL
    )  
CORPORATION
    )  
by
    )           /s/ Jennifer S. Sandefur 
acting under the authority of that company
    )           Jennifer S. Sandefur 
in the presence of:
    )           Senior Managing Director, Treasurer 
 
       
Witness’ Signature:
       
 
       
Name:
       
 
       
Address:
       
 
       
Occupation:
       
 
       
EXECUTED as a deed by
    )  
COUNTRYWIDE HOME LOANS,
    )  
INC.
    )  
by
    )           /s/ Jennifer S. Sandefur 
acting under the authority of that company
    )           Jennifer S. Sandefur 
in the presence of:
    )           Senior Managing Director, Treasurer 
 
       
Witness’ Signature:
       
 
       
Name:
       
 
       
Address:
       
 
       
Occupation:
       

 


 

     IN WITNESS WHEREOF, this Second Supplemental Trust Deed has been duly executed and delivered as a deed by the parties as of the date first written above.
         
THE COMMON SEAL of DEUTSCHE
    )  
TRUSTEE COMPANY LIMITED
    )  
Was affixed to this deed in
    )  
Director:
Associate Director:

 


 

Schedule 1.2
Director’s Certificate

 

Exhibit 4.10
Exhibit 4.10
 
FIFTH SUPPLEMENTAL TRUST DEED
Dated as of July 1, 2008
Supplementing the Trust Deed, dated
as of May 1, 1998, among
Countrywide Home Loans, Inc.,
Countrywide Financial Corporation (formerly Countrywide Credit Industries, Inc.),
and
Bankers Trustee Company Limited, as Trustee,
as modified and restated by the Fourth Supplemental Trust Deed dated January 29, 2002.

 


 

     THIS FIFTH SUPPLEMENTAL TRUST DEED, dated as of July 1, 2008 (the “Fifth Supplemental Trust Deed”), is made by and among RED OAK MERGER CORPORATION, a Delaware corporation (the “Corporation”), COUNTRYWIDE HOME LOANS, INC., a New York corporation (“Issuer”), COUNTRYWIDE FINANCIAL CORPORATION (formerly Countrywide Credit Industries, Inc.), a Delaware corporation (“CFC”), and DEUTSCHE TRUSTEE COMPANY LIMITED (formerly Bankers Trustee Company Limited) company incorporated with limited liability in England and Wales, as Trustee (the “Trustee”) under the Trust Deed referred to herein.
W I T N E S S E T H:
     WHEREAS, Issuer, CFC and the Trustee are parties to a Trust Deed dated as of May 1, 1998, as modified and restated by that certain First Supplemental Trust Deed dated as of December 16, 1998, that certain Second Supplemental Trust Deed dated as of December 23, 1999, that certain Third Supplemental Trust Deed dated as of January 12, 2001, and that certain Fourth Supplemental Trust Deed dated as of January 29, 2002 (as amended and supplemented, the “Trust Deed”), providing for the issuance of Notes by the Issuer thereunder;
     WHEREAS, there is outstanding under the terms of the Trust Deed one or more series of Notes (the “Securities”);
     WHEREAS, Bank of America Corporation, CFC and the Corporation have entered into an Agreement and Plan of Merger (the “Merger Agreement”), dated as of January 11, 2008, pursuant to which CFC will merge with and into the Corporation (the “Merger”), with the Corporation as the surviving corporation in the Merger;
     WHEREAS, the Merger is expected to be effective as of July 1, 2008;
     WHEREAS, Clause 19(D)(3) of the Trust Deed provides that in the case of a merger of CFC (acting as the Guarantor under the Trust Deed), the surviving corporation shall be a corporation organized and existing under the laws of the United States of America, any political subdivision thereof or any state thereof and shall expressly assume by supplemental trust deed all the obligations and covenants under the Securities and the Trust Deed to be performed and observed by CFC;
     WHEREAS, this Fifth Supplemental Trust Deed has been duly authorized by all necessary corporate action on the part of each of Issuer, CFC and the Corporation;
     WHEREAS, the Trustee has determined this Fifth Supplemental Trust Deed is proper and satisfactory in form; and
     WHEREAS, all things necessary to make this Fifth Supplemental Trust Deed a valid Trust Deed and agreement according to its terms have been done.

 


 

     NOW, THEREFORE, in consideration of these premises, Issuer, CFC, the Corporation and the Trustee agree as follows for the benefit of the holders of the Securities:
ARTICLE I
ASSUMPTION BY SUCCESSOR CORPORATION
AND SUPPLEMENTAL PROVISIONS
     SECTION 1.1 Assumption of the Securities.
     (a) The Corporation hereby represents and warrants that:
  (i)   it is a corporation organized and existing under the laws of the State of Delaware and is the surviving corporation in the Merger; and
  (ii)   the execution, delivery and performance of this Fifth Supplemental Trust Deed has been duly authorized by the Board of Directors of the Corporation.
     (b) The Corporation hereby expressly takes over and assumes the obligations of the Guarantor (as defined in the Trust Deed) contained in Clause 7 of the Trust Deed and the performance of every covenant of the Trust Deed on the part of the Guarantor (as defined in the Trust Deed) to be performed or observed.
     SECTION 1.2 Assumption of Liabilities.
     (a) Subject to the receipt by the Trustee of a directors’ certificate substantially in the form set out in Schedule 1.2 attached hereto (dated the date hereof) the parties hereto agree that with effect on and from the effective time of the Merger (the “Merger Date”):
  (i)   all the rights, obligations and liabilities of CFC under or in respect of the Securities and under the Trust Deed shall be taken over and assumed by the Corporation including, but without limiting the generality of the foregoing, the obligation to guarantee payment by the Issuer of (a) the interest on the Securities accrued up to and including the Merger Date but unpaid and (b) all other moneys payable in respect of the Securities or under or pursuant to the Trust Deed accrued up to and including, or payable prior to, the Merger Date but unpaid; and any other amounts payable by the Issuer under the Securities and under these presents upon failure by the Issuer to pay; and
  (ii)   (x) all the terms, provisions and conditions of the Trust Deed and the Securities and theretofore applying to CFC shall apply to the Corporation in all respects as if the Corporation had been a party to the Trust Deed in place of CFC and (y) the Trust Deed in respect

2


 

      thereof shall be read and construed as if all references therein to CFC were references to the Corporation.
     (b) The Corporation hereby:
  (i)   covenants with the Trustee that with effect on and from the Merger Date it will duly observe and perform and be bound by all of the covenants (including, but without limiting the generality of the foregoing, any covenant to pay), conditions and provisions of these presents (as defined in the Trust Deed), the Securities issued under the Programme by the Issuer and the Conditions of the Securities as prior thereto have been expressed to be binding on CFC; and
 
  (ii)   irrevocably and unconditionally guarantees to the Trustee the due and punctual payment in accordance with the provisions of the Securities in respect of which the Corporation is expressed to be the Guarantor of the principal of and interest (if any) on the Securities or any other amounts payable by the Issuer under the Securities and under these presents (as defined in the Trust Deed) upon failure by the Issuer so to pay and accordingly all the provisions of Clause 7 of the Trust Deed (as modified and restated) shall mutatis mutandis have effect with regard to this guarantee as though such provisions were herein set forth.
     SECTION 1.3 Name. Effective July 1, 2008, the name of the Guarantor shall be “Countrywide Financial Corporation (formerly known as Red Oak Merger Corporation),” as the successor corporation under the Trust Deed.
     SECTION 1.4 Trustee’s Acceptance. The Trustee hereby accepts this Fifth Supplemental Trust Deed and agrees to perform the same under the terms and conditions set forth in the Trust Deed.
ARTICLE II
MISCELLANEOUS
     SECTION 2.1 Effect of Supplemental Trust Deed. Upon the later to occur of (i) the execution and delivery of this Fifth Supplemental Trust Deed by the Corporation, Issuer, CFC and the Trustee and (ii) the Merger Date, the Trust Deed shall be supplemented in accordance herewith, and this Fifth Supplemental Trust Deed shall form a part of the Trust Deed for all purposes, and every holder of Securities heretofore or hereafter authenticated and delivered under the Trust Deed shall be bound thereby.
     SECTION 2.2 Trust Deed Remains in Full Force and Effect. Except as supplemented hereby, all provisions in the Trust Deed shall remain in full force and effect.

3


 

     SECTION 2.3 Trust Deed and Supplemental Trust Deeds Construed Together. This Fifth Supplemental Trust Deed is supplemental to and in implementation of the Trust Deed, and the Trust Deed and this Fifth Supplemental Trust Deed shall henceforth be read and construed together.
     SECTION 2.4 Confirmation and Preservation of Trust Deed. The Trust Deed as supplemented by this Fifth Supplemental Trust Deed is in all respects confirmed and preserved.
     SECTION 2.5 Severability. In case any provision in this Fifth Supplemental Trust Deed shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
     SECTION 2.6 Terms Defined in the Trust Deed. All capitalized terms not otherwise defined herein shall have the meanings ascribed to them in the Trust Deed.
     SECTION 2.7 Addresses for Notice, etc., to the Corporation and Trustee. Any notice or demand which by any provisions of this Fifth Supplemental Trust Deed or the Trust Deed is required or permitted to be given or served by the Trustee or by the holders of Securities to or on the Corporation may be given or served by pre-paid post (first class if inland, first class airmail if overseas) or by facsimile transmission or by delivering it by hand (until another address if filed by the Corporation with the Trustee) as follows:
Bank of America Corporation
Bank of America Corporate Center
100 North Tryon Street
NC1-007-07-13
Corporate Treasury Division
Charlotte, North Carolina 28255
Telephone: (980) 387-3776
Facsimile: (980) 387-8794
Attention: B. Kenneth Burton, Jr.
Together with a copy to:
Bank of America Corporation
Legal Department
NC1-002-29-01
101 South Tryon Street
Charlotte, North Carolina 28255
Telephone: (704) 386-4238
Facsimile: (704) 386-1670
Attention: Teresa M. Brenner, Esq.

4


 

Any notice, direction, request or demand by any holder of Securities to or upon the Trustee shall be deemed to have been sufficiently given or made, for all purposes, if given or made in writing at the principal office of the Trustee, which shall be as follows:
Deutsche Trustee Company Limited
Winchester House
1 Great Winchester Street
London EC2N 2DB
Telephone: 020 7545 8000
Facsimile: 020 7547 6149
Attention: Managing Director
     SECTION 2.8 Headings. The Article and Section headings of this Fifth Supplemental Trust Deed have been inserted for convenience of reference only, are not to be considered part of this Fifth Supplemental Trust Deed and shall in no way modify or restrict any of the terms or provisions hereof.
     SECTION 2.9 Benefits of Fifth Supplemental Trust Deed, etc. Nothing in this Fifth Supplemental Trust Deed or the Securities, express or implied, shall give to any Person, other than the parties hereto and thereto and their successors hereunder and thereunder and the holders of the Securities, any benefit of any legal or equitable right, remedy or claim under the Trust Deed, this Fifth Supplemental Trust Deed or the Securities.
     SECTION 2.10 Certain Duties and Responsibilities of the Trustees. In entering into this Fifth Supplemental Trust Deed, the Trustee shall be entitled to the benefit of every provision of the Trust Deed relating to the conduct or affecting the liability or affording protection to the Trustee, whether or not elsewhere herein so provided.
     SECTION 2.11 Counterparts. The parties may sign any number of copies of this Fifth Supplemental Trust Deed. Each signed copy shall be an original, but all of them together represent the same agreement.
     SECTION 2.12 Governing Law. These presents are governed by, and shall be construed in accordance with, English law.
     SECTION 2.13 Submission to Jurisdiction.
     (a) Each of the Corporation, Issuer and CFC irrevocably agrees for the benefit of the Trustee that the courts of England are to have jurisdiction to settle any disputes which may arise out of or in connection with these presents and that accordingly any suit, action or proceedings arising out of or in connection with these presents (together referred to as “Proceedings”) may be brought in the courts of England. Each of the Corporation, Issuer and CFC irrevocably and unconditionally waive and agree not to raise any objection which it may have now or subsequently to the laying of the venue of any Proceedings in the courts of England and any claim that any Proceedings have been

5


 

brought in an inconvenient forum and further irrevocably and unconditionally agrees that a judgment in any Proceedings brought in the courts of England shall be conclusive and binding upon it and may be enforced in the courts of any other jurisdiction. Nothing in this Clause shall limit any right to take Proceedings against the Corporation, Issuer or CFC in any other court of competent jurisdiction, nor shall the taking of Proceedings in one or more jurisdictions preclude the taking of Proceedings in any other jurisdiction, whether concurrently or not.
     (b) Each of the Corporation, Issuer and CFC irrevocably and unconditionally appoints Clifford Chance Secretaries Limited at its registered office for the time being (being at the date hereof at 10 Upper Bank Street, London E14 5JJ) and in the event of its ceasing so to act will appoint such other person as the Trustee may approve and as the Corporation, Issuer and CFC may nominate in writing to the Trustee for the purpose to accept service of process on its behalf in England in respect of any Proceedings. Each of the Corporation, Issuer and CFC:
  (i)   agrees to procure that, so long as any of the Notes issued by it remains liable to prescription, there shall be in force an appointment of such a person approved by the Trustee with an office in London with authority to accept service as aforesaid;
 
  (ii)   agrees that failure by any such person to give notice of such service of process to the Corporation, Issuer and CFC shall not impair the validity of such service or of any judgment based thereon; and
 
  (iii)   agrees that nothing in these presents shall affect the right to serve process in any other manner permitted by law.
[Signature Page Follows]

6


 

     IN WITNESS WHEREOF, this Fifth Supplemental Trust Deed has been duly executed and delivered as a deed by the parties as of the date first written above.
         
EXECUTED as a deed by
    )  
RED OAK MERGER CORPORATION
    )  
by
    )           /s/ Joe L. Price 
acting under the authority of that company
    )           Joe L. Price 
in the presence of:
    )           Chief Financial Officer 
 
       
Witness’ Signature:
       
 
       
Name:
       
 
       
Address:
       
 
       
Occupation:
       

 


 

     IN WITNESS WHEREOF, this Fifth Supplemental Trust Deed has been duly executed and delivered as a deed by the parties as of the date first written above.
         
EXECUTED as a deed by
    )  
COUNTRYWIDE FINANCIAL
    )  
CORPORATION
    )  
by
    )           /s/ Jennifer S. Sandefur 
acting under the authority of that company
    )           Jennifer S. Sandefur 
in the presence of:
    )           Senior Managing Director, Treasurer 
 
       
Witness’ Signature:
       
 
       
Name:
       
 
       
Address:
       
 
       
Occupation:
       
 
       
EXECUTED as a deed by
    )  
COUNTRYWIDE HOME LOANS,
    )  
INC.
    )  
by
    )           /s/ Jennifer S. Sandefur 
acting under the authority of that company
    )           Jennifer S. Sandefur 
in the presence of:
    )           Senior Managing Director, Treasurer 
 
       
Witness’ Signature:
       
 
       
Name:
       
 
       
Address:
       
 
       
Occupation:
       

 


 

     IN WITNESS WHEREOF, this Fifth Supplemental Trust Deed has been duly executed and delivered as a deed by the parties as of the date first written above.
         
THE COMMON SEAL of DEUTSCHE
    )  
TRUSTEE COMPANY LIMITED
    )  
Was affixed to this deed in
    )  
Director:
Associate Director:

 


 

Schedule 1.2
Director’s Certificate

 

Exhibit 4.11
Exhibit 4.11
(MALLESONS STEPHEN JAQUES LOGO)
First Supplemental Note
Deed Poll
Dated 1 July 2008
relating to the Note Deed Poll dated 29 April 2005 (“Note Deed Poll”) for the A$3,500,000,000 Medium Term Note Programme of Countrywide Financial Corporation
Countrywide Financial Corporation (“CFC”)
Red Oak Merger Corporation (“Corporation”)
FOR THE PURPOSES OF UNITED STATES FEDERAL INCOME TAX LAWS, THE REGISTERED NOTES AND THE BEARER NOTES ARE BOTH “BEARER OBLIGATIONS”. ANY UNITED STATES PERSON WHO HOLDS A NOTE WILL BE SUBJECT TO LIMITATIONS UNDER THE UNITED STATES FEDERAL INCOME TAX LAWS, INCLUDING THE LIMITATIONS PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
THE NOTES HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES OF AMERICA SECURITIES ACT OF 1933, AS AMENDED (“SECURITIES ACT”) OR ANY APPLICABLE STATE SECURITIES OR “BLUE SKY” LAWS AND NEITHER THE NOTES NOR ANY INTEREST THEREIN MAY BE SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF TO OR FOR THE ACCOUNT OR BENEFIT OF A US PERSON (AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT) IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION UNDER THE SECURITIES ACT AND THE RULES AND REGULATIONS THEREUNDER OR ANY APPLICABLE STATE SECURITIES LAW. THE ISSUER HAS NOT BEEN AND WILL NOT BE REGISTERED AS AN INVESTMENT COMPANY UNDER THE UNITED STATES INVESTMENT COMPANY ACT OF 1940, AS AMENDED.
FOR UNITED STATES FEDERAL INCOME TAX AND SECURITIES LAWS PURPOSES, EACH TRANCHE OF REGISTERED NOTES AND, FOR THE PURPOSES OF THAT TRANCHE OF REGISTERED NOTES ONLY, THIS DEED POLL, CONSTITUTE A TEMPORARY GLOBAL NOTE ISSUED IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT AND WILL BECOME A PERMANENT GLOBAL NOTE ON OR AFTER THE EXCHANGE DATE UPON AND TO THE EXTENT OF DELIVERY TO THE PAYING AGENT OF (A) A CERTIFICATE OR CERTIFICATES FROM AUSTRACLEAR LIMITED (AS OPERATOR OF THE AUSTRACLEAR SYSTEM) BASED UPON A WRITTEN CERTIFICATION OR CERTIFICATIONS FROM THE MEMBER ORGANISATIONS SHOWN IN THE RECORDS OF AUSTRACLEAR LIMITED AS HOLDING AN INTEREST IN THE NOTE AND DATED NOT EARLIER THAN THE EXCHANGE DATE IN SUBSTANTIALLY THE FORM SET OUT IN APPENDICES 1 AND 2 OF THIS DEED POLL RESPECTIVELY; OR (B) WHERE THE TRANCHE OF REGISTERED NOTES IS NOT SETTLED THROUGH THE AUSTRACLEAR SYSTEM, A CERTIFICATE OR CERTIFICATES FROM THE RELEVANT NOTEHOLDERS IN SUBSTANTIALLY THE FORM SET OUT IN APPENDIX 2 OF THIS DEED POLL. {US COUNSEL TO CONFIRM IF THIS LEGEND WHICH APPEARS ON THE NOTED DEE POLL IS REQUIRED FOR THIS FIRST SUPPLEMENTAL NOTE DEED POLL.]
Mallesons Stephen Jaques
Level 50
Bourke Place
600 Bourke Street
Melbourne Vic 3000
Australia
T +61 3 9643 4000
F +61 3 9643 5999
DX 101 Melbourne

 


 

(i)
                 
Contents     Note Deed Poll        
       
1 Assumption
    2  
 
       
Assumption of the Notes
    2  
       
Name
    2  
       
Benefit and entitlement
    3  
       
Rights independent
    3  
       
Noteholders bound
    3  
       
Direction to hold this First Supplemental Note Deed Poll
    3  
       
 
       
       
2 Miscellaneous
    3  
       
 
       
       
Effect of this First Supplemental Note Deed Poll
    3  
       
Note Deed Poll Remains in Full Force and Effect
    3  
       
Note Deed Poll and Supplemental Note Deed Polls Construed Together
    3  
       
Confirmation and Preservation of Note Deed Poll.
    4  
       
Severability
    4  
       
Terms Defined in the Note Deed Poll
    4  
       
Addresses for Notices to the Corporation.
    4  
       
Headings
    5  
       
Benefits of First Supplemental Note Deed Poll
    5  
       
Counterparts
    5  
       
Governing law.
    5  

 


 

Note Deed Poll
         
Date:
      1 July 2008
 
       
By:
      COUNTRYWIDE FINANCIAL CORPORATION, a company incorporated with limited liability in the State of Delaware ( “CFC” )
 
       
And:
      RED OAK MERGER CORPORATION, a company incorporated with limited liability in the State of Delaware (“Corporation ”)
 
       
In favour of:
      Each person who is from time to time a Noteholder (as defined in the Note Deed Poll).
 
       
Recitals:
       
 
       
 
  A.   CFC is the Issuer under the Note Deed Poll dated 29 April 2005 (as amended and supplemented, the “Note Deed Poll ”), which provides for the constitution of the notes issued by CFC under a A$3,500,000,000 Medium Term Note Programme.
 
       
 
  B.   There is outstanding under the terms of the Note Deed Poll one or more series of notes (“Notes”).
 
       
 
  C.   Bank of America Corporation, CFC and the Corporation have entered into an Agreement and Plan of Merger (“Merger Agreement”), dated as of 11 January 2008, pursuant to which CFC will merge with and into the Corporation (“Merger”), with the Corporation as the surviving corporation in the Merger.
 
       
 
  D.   The Merger is expected to be consummated on 1 July 2008.
 
       
 
  E.   Condition 4.4 of the Notes provides that in the case of a merger of Issuer, the surviving corporation shall expressly assume by supplemental note deed poll all the obligations and covenants under the Notes and the Note Deed Poll to be performed and observed by the Issuer.
 
       
 
  F.   This First Supplemental Note Deed Poll has been duly authorized by all necessary corporate action on the part of CFC and the Corporation.
 
       
 
  G.   CFC and the Corporation are of the opinion that this First Supplemental Note Deed Poll is not materially prejudicial to the interests of the Noteholders.
 
       
 
  H.   The Issuer has delivered to the Programme Manager (as defined in the note Deed Poll) a certificate signed by two of its directors and an opinion of counsel acceptable to the Programme Manager, stating that the Merger and this First

 


 

         
 
      Supplemental Note Deed Poll comply with the Conditions and all conditions precedent provided for in the Conditions relating to the Merger have been complied with.
 
       
 
  I.   Countrywide Home Loans, Inc., being the Guarantor under the Note Deed Poll has delivered to the Programme Manager a certificate signed by two of its directors and an opinion of counsel acceptable to the Programme Manager, stating that the Guarantor’s obligations under the Guarantee remain in full force and effect after the Merger and the assumption by the Corporation of the due and punctual payment of the principal of (and premium, if any) and any interest on the Notes and the due and punctual performance of all the obligations, and the observance of every covenant, of the Issuer under the Note Deed Poll as set out in this First Supplemental Note Deed Poll.
 
       
 
  J.   All things necessary to make this First Supplemental Note Deed Poll a valid note deed poll and agreement according to its terms has been done.
Operative provisions:
ASSUMPTION
Assumption of the Notes
The Corporation hereby represents and warrants that
it is a corporation organized and existing under the laws of the State of Delaware and is the surviving corporation in the Merger; and
the execution, delivery and performance of this First Supplemental Note Deed Poll has been duly authorized by the board of directors of the Corporation.
The Corporation hereby expressly assumes the due and punctual payment of the principal of (and premium, if any) and any interest on all the Notes and the due and punctual performance of all the obligations, and the observance of every covenant, of the Issuer under the Note Deed Poll.
Name
Effective 1 July 2008, the name of Issuer shall be “Countrywide Financial Corporation (formerly known as Red Oak Merger Corporation),” as the successor corporation under the Note Deed Poll.

2


 

Benefit and entitlement
This First Supplemental Note Deed Poll is executed as a deed poll. Accordingly, each Noteholder has the benefit of, and is entitled to enforce, this deed poll against the Issuer even though it is not a party to, or is not in existence at the time of execution and delivery of, this First Supplemental Note Deed Poll.
Rights independent
Each Noteholder may enforce its rights under this First Supplemental Note Deed Poll independently from each other Noteholder.
Noteholders bound
Each Noteholder and any person claiming through or under a Noteholder is bound by this First Supplemental Note Deed Poll.
Direction to hold this First Supplemental Note Deed Poll
Each Noteholder is taken to have irrevocably nominated and authorised the Registrar to hold this deed poll in New South Wales (or such other place as the Issuer and the Registrar agree) on its behalf. The Issuer and the Registrar acknowledge the right of every Noteholder to the production of this First Supplemental Note Deed Poll.
MISCELLANEOUS
Effect of this First Supplemental Note Deed Poll
Upon the later to occur of:
the execution and delivery of this First Supplemental Note Deed Poll by CFC and the Corporation; and
the effective time of the Merger,
the Note Deed Poll shall be supplemented in accordance with this First Supplemental Note Deed Poll, and this First Supplemental Note Deed Poll shall form a part of the Note Deed Poll for all purposes, and every Noteholder shall be bound thereby.
Note Deed Poll Remains in Full Force and Effect
Except as supplemented hereby, all provisions in the Note Deed Poll shall remain in full force and effect.
Note Deed Poll and Supplemental Note Deed Polls Construed Together
This First Supplemental Note Deed Poll is supplemental to the Note Deed Poll, and the Note Deed Poll and this First

3


 

Supplemental Note Deed Poll shall be read and construed together.
Confirmation and Preservation of Note Deed Poll.
The Note Deed Poll as supplemented by this First Supplemental Note Deed Poll is in all other respects confirmed and preserved.
Severability
In case any provision in this First Supplemental Note Deed Poll shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired by this First Supplemental Note Deed Poll.
Terms Defined in the Note Deed Poll
All capitalized terms not otherwise defined in this First Supplemental Note Deed Poll shall have the meanings ascribed to them in the Note Deed Poll.
Addresses for Notices to the Corporation.
Any notice or demand which by any provisions of this First Supplemental Note Deed Poll or the Note Deed Poll is required or permitted to be given or served on the Corporation may be given in accordance with the Conditions or served by postage prepaid first class mail addressed (until another address is notified by the Corporation in accordance with the Conditions) as follows:
Bank of America Corporation
Bank of America Corporate Center
100 North Tryon Street
NC1-007-07-06
Corporate Treasury Division
Charlotte, North Carolina 28255
Telephone: (980) 387-3776
Facsimile: (980) 386-0270
Attention: B. Kenneth Burton, Jr.
together with a copy to:
Bank of America Corporation
Legal Department
NC1-002-29-01
101 South Tryon Street
Charlotte, North Carolina 28255
Telephone: (704) 386-4238

4


 

Facsimile: (704) 386-1670
Attention: Teresa M. Brenner, Esq.
Headings
The headings of this First Supplemental Note Deed Poll have been inserted for convenience of reference only, are not to be considered part of this First Supplemental Note Deed Poll and shall in no way modify or restrict any of the terms or provisions hereof.
Benefits of First Supplemental Note Deed Poll
Nothing in this First Supplemental Note Deed Poll or the Notes, express or implied, shall give to any person, other than the parties to this First Supplemental Note Deed Poll and their successors and the Noteholders, any benefit of any legal or equitable right, remedy or claim under the Note Deed Poll, this First Supplemental Note Deed Poll or the Notes.
Counterparts
The parties may sign any number of copies of this First Supplemental Note Deed Poll. Each signed copy shall be an original, but all of them together represent the same agreement.
Governing law.
This First Supplemental Note Deed Poll is governed by the law in force in New South Wales.
Clauses 4.2, 4.3 and 4.4 of the Note Deed Poll apply to this First Supplemental Note Deed Poll in the same manner as they apply to the Note Deed Poll.
EXECUTED as a deed poll by each of CFC and the Corporation

5


 

Execution page
                 
CFC
               
 
               
EXECUTED AS A DEED POLL by
    )          
 
    )          
COUNTRYWIDE FINANCIAL
    )          
CORPORATION acting under the
    )          
authority of that company in the presence
    )          
of:
    )
)
)
         
 
    )    
/s/ Jennifer S. Sandefur 
   
 
       
 
   
Signature of witness
    )    
By executing this deed the authorised
   
 
    )     signatory states that it has received no    
 
    )     notice of revocation of its signing authority    
 
Name of witness (block letters)
    )          
 
               
Corporation
               
 
               
EXECUTED AS A DEED POLL by
    )          
 
    )          
RED OAK MERGER CORPORATION
    )          
acting under the authority of that company
    )          
in the presence of:
    )
)
         
 
    )          
 
    )    
/s/ Joe L. Price 
   
 
       
 
   
Signature of witness
    )    
By executing this deed the authorised
   
 
    )     signatory states that it has received no    
 
    )     notice of revocation of its signing authority    
 
Name of witness (block letters)
    )          

6

Exhibit 99.1
Exhibit 99.1
(BANK OF AMERICA LOGO)
July 1, 2008
Investors May Contact:
Kevin Stitt, Bank of America, 704.386.5667
Lee McEntire, Bank of America, 704.388.6780
Leyla Pakzad, Bank of America, 704.386.2024
Reporters May Contact:
Scott Silvestri, Bank of America, 1.980.388.9921
scott.silvestri@bankofamerica.com
Bank of America Completes Countrywide Financial Purchase
CHARLOTTE – Bank of America Corporation today completed its purchase of Countrywide Financial Corp. to create the nation’s leading mortgage originator and servicer.
Bank of America will focus on responsible home lending, serving as a reliable source of mortgages for the American consumer. Bank of America also will assist new and existing customers with selecting the right product to meet their needs.
“Mortgages are one of the three main cornerstone consumer financial products along with deposits and credit cards,” said Bank of America Chairman and Chief Executive Officer Kenneth D. Lewis. “This purchase significantly increases Bank of America’s market share in consumer real estate, and as our companies combine, we believe Bank of America will benefit from excellent systems and a broad distribution network that will offer more ways to meet our customers’ credit needs.”
As previously announced in April, Bank of America plans to offer the following types of first-lien mortgages: conforming loans underwritten to standard guidelines of government-sponsored enterprises and the government, including FHA and VA loans and other loans designed for low-and moderate-income borrowers; non-conforming loans with terms expected to produce no greater risk of default than conforming loans; interest-only fixed-rate and adjustable-rate mortgages (ARMs) that are subject to a 10-year minimum interest-only period, which lessens the possibility of short-term payment shock, and fixed-period ARMs that provide borrowers low initial rates with the security of fixed payments, subject to protections against steep increases in payment amounts.
Bank of America reiterated it will continue its long-established policy of not originating subprime mortgages. As announced previously, Bank of America will discontinue certain nontraditional mortgages – including option-ARM loans. It also will significantly curtail some other nontraditional mortgages, such as certain low-documentation loans and will implement enhanced borrower protections over time as part of the transition process.

 


 

More
Page 2
Countrywide’s existing customers eventually will gain access to a broad set of consumer financial products such as credit cards and deposit services.
“Now we begin to combine the two companies and prepare to introduce our new name and way of operating,” said Barbara Desoer, president of the combined mortgage, home equity and insurance businesses. “We have the opportunity to renew America’s confidence in homeownership with unmatched capabilities to deliver the products homebuyers need and understand and give customers a simple process and service experience they’ve come to expect.”
The company reiterated its combined national consumer mortgage division will be based in Calabasas, Calif. The combined company will begin originating mortgage and home equity products under the Bank of America brand by mid-2009.
The company anticipates substantial cost savings from combining the two companies. Cost reductions will come from a range of sources, including the elimination of positions announced last week, and the reduction of overlapping technology, vendor and marketing expenses. In addition, the company is expected to benefit by leveraging its broad product set to deepen relationships with existing Countrywide customers.
Under the terms of the agreement, shareholders of Countrywide received .1822 of a share of Bank of America stock in exchange for each share of Countrywide. 
As previously announced in April, Bank of America will pursue a new goal to lend and invest $1.5 trillion for community development over the next 10 years beginning in 2009. The goal will focus on affordable housing, economic development and consumer and small business lending and replace existing community development goals of both companies.
Bank of America also previously announced a $35 million neighborhood preservation and foreclosure prevention package by both companies focusing on grants and low-cost loans to help local and national nonprofit organizations engaged in foreclosure prevention, and to purchase vacant single-family homes for neighborhood preservation. The combined company will modify or workout about $40 billion in troubled mortgage loans in the next two years and these efforts will keep an estimated 265,000 customers in their homes. The combined loss mitigation staffs will be maintained at the level of more than 3,900 for at least one year.

 


 

More
Page 3
Bank of America
Bank of America is one of the world’s largest financial institutions, serving individual consumers, small and middle market businesses and large corporations with a full range of banking, investing, asset management and other financial and risk-management products and services. The company provides unmatched convenience in the United States, serving more than 59 million consumer and small business relationships with more than 6,100 retail banking offices, nearly 18,500 ATMs and award-winning online banking with nearly 25 million active users. Bank of America is the No. 1 overall Small Business Administration (SBA) lender in the United States and the No. 1 SBA lender to minority-owned small businesses. The company serves clients in more than 150 countries and has relationships with 99 percent of the U.S. Fortune 500 companies and 83 percent of the Fortune Global 500. Bank of America Corporation stock (NYSE: BAC) is a component of the Dow Jones Industrial Average and is listed on the New York Stock Exchange.
www.bankofamerica.com
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