exv10w104



 






Exhibit 10.104









Deed Poll Guarantee and Indemnity



relating to the



A$3,500,000,000

Medium Term Note Programme

of Countrywide Financial Corporation



Countrywide Home Loans, Inc. as Guarantor



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

www.mallesons.com

Ref: CET:MMO:MYT



 









 





 





	 	 	 	 	 	 	 
	Contents	 	Deed Poll Guarantee and Indemnity	 	 	 	 
	 
	 

	 	1   Interpretation
	 	 	1	 
	 

	 	2   Deed poll
	 	 	2	 
	 

	 	3   Guarantee
	 	 	2	 
	 

	 	4   Undertaking to comply
	 	 	3	 
	 

	 	5   Indemnity
	 	 	3	 
	 

	 	6   Interest on overdue amounts
	 	 	3	 
	 

	 	7   Waiver of rights
	 	 	3	 
	 

	 	8   Continuing security
	 	 	4	 
	 

	 	9   Guarantee not affected
	 	 	4	 
	 

	 	10 Suspension of Guarantor’s rights
	 	 	4	 
	 

	 	11 Reinstatement of guarantee
	 	 	4	 
	 

	 	12 Costs
	 	 	5	 
	 

	 	13 Notices
	 	 	5	 
	 

	 	14 Deposit and production of deed
	 	 	6	 
	 

	 	15 Payments
	 	 	6	 
	 

	 	16 Governing law
	 	 	6	 







 









 






1



	 	 	 
	 

	 	Deed Poll Guarantee and Indemnity
	 
	 	 
	Date:

	 	29 April 2005
	 
	 	 
	Parties:

	 	COUNTRYWIDE HOME LOANS, INC. (“Guarantor”)
	 
	 	 
	In favour of:

	 	Each person who is from time to time a

Noteholder (as defined below).
	 
	 	 
	Recitals:
	 	 







	 	A.	 	Under the Dealer Agreement (as defined below), Countrywide Financial
Corporation (“Issuer”) has established a programme for the issue of Notes
from time to time (“Programme”).
	 
	 	B.	 	The Guarantor has authorised the giving of this
guarantee and indemnity in favour of Noteholders from time to time under
the Programme.





1 Interpretation






	 	1.1	 	Capitalised terms which have a defined meaning in the Note Deed
Poll have the same meaning when used in this deed.
	 
	 	1.2	 	The following words have these meanings in this
deed unless the contrary intention appears:
	 
	 	 	 	Bills has the same meaning as “bill of exchange” in the Bills of
Exchange Act 1909 of Australia.
	 
	 	 	 	Note Deed Poll means the note deed poll executed by the Issuer in
relation to the Programme on or about the date of this deed.
	 
	 	 	 	Overdue Rate means:






	 	(a)	 	where an overdue rate is specified in
the Pricing Supplement for a Note, that rate; or
	 
	 	(b)	 	in any other case:






	 	(i)	 	the rate, expressed
as a yield per cent per annum (rounded upwards if
necessary to two decimal places) calculated by the
Programme Manager as the average of the buying rates on
the BBSW reference rate page of the Reuters monitor system
(or any page which replaces that page) by about 10.30am
(Sydney time) on the first day of that period, for Bills
having a tenor of equal or as near as possible to the
period for which the interest is payable eliminating from
the calculation the highest rate so published if one such
rate is higher than all the other such rates, and the
lowest rate so published if one such rate is lower than
all the other such rates; or
	 
	 	(ii)	 	if less than three
such rates are so published at that time on such a day the
buying rate available to the Programme




 









 











2




Manager at about 11.00 am (Sydney time) on that day, as
conclusively determined in good faith by the Programme
Manager, for bank accepted Bills having a tenor equal to,
or as near as possible to, the period for which interest
is payable.




	 	1.3	 	In this deed unless the contrary intention appears:






	 	(a)	 	a reference to this deed or another
instrument includes any variation or replacement of any of them;
	 
	 	(b)	 	the singular includes the plural and
vice versa; and
	 
	 	(c)	 	a reference to any thing (including,
without limitation, any amount) is a reference to the whole or any
part of it and a reference to a group of persons is a reference to
all of them collectively, to any two or more of them collectively
and to each of them individually.






	 	1.4	 	Headings are inserted for convenience and do not
affect the interpretation of this deed.





2 Deed poll





	 	2.1	 	This deed is executed as a deed poll. Accordingly, each Noteholder
has the benefit of, and is entitled to enforce, this deed even though it
is not a party to, or is not in existence at the time of execution and
delivery of, this deed.
	 
	 	2.2	 	Each Noteholder may enforce its rights under this
deed independently from each other Noteholder.
	 
	 	2.3	 	Each Noteholder and any person claiming through or
under a Noteholder is bound by this deed. The Notes will be issued on
the basis that each Noteholder is taken to have notice of, and be bound
by, all the provisions of this deed and the Terms and Conditions.
	 
	 	2.4	 	The Guarantor is not entitled to assign or transfer
all or any of its rights, benefits and obligations under this deed. Each
Noteholder is entitled to assign all or any of its rights and benefits
under this deed.





3 Guarantee






	 	3.1	 	The Guarantor irrevocably and unconditionally guarantees to the
Noteholders the due and punctual payment of the principal of and interest
due on the Notes and of all other amounts payable by the Issuer on the
Notes.
	 
	 	3.2	 	If the Issuer fails for any reason to punctually
pay any such principal, interest or other amount payable by the Issuer on
the Notes, the Guarantor agrees to cause each such payment to be made as
if the Guarantor instead of the Issuer were expressed to be the primary
obligor of the relevant Note, and not merely as surety (but without
affecting the Issuer’s obligations) to the intent that Noteholders
receive




 









 











3






the same amounts in respect of principal, interest or such other
amount as would have been receivable had the payments been made by the
Issuer.




	 	3.3	 	The obligations of the Guarantor under this deed
constitute direct, unconditional, unsubordinated and unsecured
obligations of the Guarantor and rank pari passu and (except for
liabilities manditorily preferred by law) equally with all other
unsecured and unsubordinated obligations of the Guarantor, from time to
time outstanding.





4 Undertaking to comply





The Guarantor undertakes to comply with its obligations under
the Terms and Conditions.



5 Indemnity






If any payment received by any Noteholder in relation to the
Notes (whether on the subsequent bankruptcy, insolvency or corporate
reorganisation of the Issuer or, without limitation, on any other
event) is avoided or set aside for any reason, such payment does not
discharge or diminish the liability of the Guarantor and this
guarantee continues to apply as if such payment had at all times
remained owing by the Issuer and the Guarantor indemnifies the
Noteholders in respect of such payment provided that the obligations
of the Guarantor under this clause 5, as regards each payment made to
any Noteholder, which is avoided or set aside, are contingent upon
such payment being reimbursed to the Issuer or other persons entitled
through the Issuer.



6 Interest on overdue amounts





The Guarantor agrees to pay interest on any amount payable
under this deed from when the amount becomes due for payment until it
is paid in full. Accumulated interest is payable at the end of each
calendar month. The interest rate to be applied to each daily balance
is the higher of:




	 	(a)	 	the Overdue Rate on the date that the
money becomes due and payable but is unpaid and each date falling
30 days after that date; and
	 
	 	(b)	 	the rate fixed or payable under a
judgment.





7 Waiver of rights






The Guarantor waives any right it has of first requiring the
Noteholders to commence proceedings or enforce any other right against
the Issuer or any other person before claiming under this deed.



 









 





4





8 Continuing security






This deed is a continuing security and is not discharged by any
one payment.



9 Guarantee not affected






The liabilities of the Guarantor under this deed as a
guarantor, indemnifier or principal debtor and the rights of the
Noteholders under this deed are not affected by anything which might
otherwise affect them at law or in equity including, but not limited
to, one or more of the following:




	 	(a)	 	a Noteholder granting time or other
indulgence to, compounding or compromising with or releasing the
Issuer;
	 
	 	(b)	 	acquiescence, delay, acts, omissions
or mistakes on the part of a Noteholder;
	 
	 	(c)	 	any novation of a right of a
Noteholder;
	 
	 	(d)	 	any variation of a right of a
Noteholder; or
	 
	 	(e)	 	the invalidity or unenforceability of
an obligation or liability of a person other than the Guarantor.





10 Suspension of Guarantor’s rights






The Guarantor may not, without the consent of the Noteholders:




	 	(a)	 	raise a set-off or counterclaim
available to it or the Issuer against a Noteholder in reduction of
its liability under this deed;
	 
	 	(b)	 	claim to be entitled by way of
contribution, indemnity, subrogation, marshalling or otherwise to
the benefit of any security or guarantee held by a Noteholder in
connection with the Transaction Documents; or
	 
	 	(c)	 	prove in competition with the
Noteholders if a liquidator, provisional liquidator, receiver,
administrator or trustee in bankruptcy is appointed in respect of
the Issuer or the Issuer is otherwise unable to pay its debts when
they fall due,
	 
	 	 	 	until all money payable to the Noteholders in connection with the
Transaction Documents is paid.





11 Reinstatement of guarantee






If a claim that a payment or transfer to a Noteholder in
connection with a Note or this deed is void or voidable (including,
but not limited to, a claim under laws relating to liquidation,
administration, insolvency or protection of creditors) is upheld,
conceded or compromised then that Noteholder is entitled immediately
as against



 









 





5





the Guarantor to the rights to which it would have been entitled under
this deed if the payment or transfer had not occurred.



12 Costs






The Guarantor agrees to pay or reimburse Noteholders on demand
for:




	 	(a)	 	the Noteholder’s properly incurred
costs, charges and expenses in making, enforcing and doing
anything in connection with this deed including, but not limited
to, legal costs and expenses on a full indemnity basis; and
	 
	 	(b)	 	all stamp duties, fees, taxes and
charges which are payable in connection with this deed or a
payment, receipt or other transaction contemplated by it.
	 
	 	Money paid to a Noteholder by the Guarantor must be applied first
against payment of costs, charges and expenses under this clause then
against other obligations under this deed.





13 Notices





	 	13.1	 	All notices to Noteholders with respect to this deed are valid if:






	 	(a)	 	made by an advertisement published in
The Australian Financial Review or any other newspaper or
newspapers circulated in Australia generally; or
	 
	 	(b)	 	made by prepaid post or delivery to
the address of each Noteholder or any relevant Noteholder as shown
in the Register at the close of business three Business Days prior
to the dispatch of the relevant notice or communication.






	 	13.2	 	All notices, requests, demands, consents,
approvals, agreements or other communications to the Guarantor under this
deed must be in writing left at the address of the addressee or sent by
prepaid ordinary post (airmail if outside Australia) to the address of
the addressee or by facsimile to the facsimile number of the addressee
set out below:





	 	 	 	 	 
	 

	 	Address:
	 	Countrywide Home Loans, Inc.
	 

	 	 	 	4500 Park Granada, MS: CH-43A
	 

	 	 	 	Calabasas
	 

	 	 	 	California 91302
	 

	 	 	 	U.S.A.
	 
	 	 	 	 
	 

	 	Telephone:
	 	001 818 225 3001
	 

	 	Facsimile:
	 	001 818 225 4041
	 

	 	Attention:
	 	Jennifer Sandefur
	 

	 	 	 	Senior Managing Director and Treasurer







or such other address or facsimile number as the Guarantor may notify
to the Noteholders from time to time.



 









 





6





	 	13.3	 	Unless a later time is specified in it a notice or
other communication takes effect from the time it is received, except
that if it is received after 5.00pm in the place of receipt or on a
non-business day in that place, it is to be taken to be received at
9.00am on the next succeeding Business Day in that place.
	 
	 	13.4	 	Subject to clause 13.3, proof of posting of a
letter or of dispatch of a facsimile or of publication of a notice is
proof of receipt:






	 	(a)	 	in the case of a letter, on the third
day after posting; and
	 
	 	(b)	 	in the case of a facsimile, on
receipt by the sender of a successful transmission report; and
	 
	 	(c)	 	in the case of publication, on the
date of such publication.





14 Deposit and production of deed





	 	14.1	 	This deed must be deposited with and held by the Registrar for so
long as any claim made against the Issuer or the Guarantor by any
Noteholder in relation to the Notes or this deed has not been finally
adjudicated, settled or discharged.
	 
	 	14.2	 	The Guarantor acknowledges the right of every
Noteholder to the production of this deed in accordance with clause 4.9
of the Agency Services Agreement.





15 Payments





	 	15.1	 	All payments by the Guarantor under this deed must be made in
full, without set-off or counterclaim and, subject to clause 15.2, free
and clear of any deductions or withholdings in the same manner and
currency which the Issuer is (or would have been but for the occurrence
of any insolvency event) required to pay under the Notes.
	 
	 	15.2	 	If at any time, the Guarantor is required by law to
make any deduction or withholding for or on account of any present or
future taxes or duties of whatever nature imposed or levied by or on
behalf of the United States of America or any political subdivision or
any authority thereof or therein having power to tax from any payments
due under this deed to a Noteholder, the sum due from the Guarantor in
respect of such payment shall be increased in accordance with and subject
to the exceptions set out in Condition 9.1 (Additional amounts).
	 
	 	15.3	 	All payments by the Guarantor under this deed are
subject in all cases to applicable provisions of fiscal and other laws,
regulations and directives.





16 Governing law





	 	16.1	 	This deed is governed by the law in force in New South Wales.






	 	16.2	 	The Guarantor irrevocably and unconditionally
submits to the non-exclusive jurisdiction of the courts of New South
Wales and




 









 











7






courts of appeal from them in relation to any action (including,
without limitation, any writ of summons or other originating process
or any third or other party notice) arising out of or in relation to
this deed. The Guarantor waives any right it has to object to an
action being brought in those courts, to claim that the action has
been brought in an inconvenient forum, or to claim that those courts
do not have jurisdiction.




	 	16.3	 	Without preventing any other mode of service, any
document in an action (including, without limitation, any writ of service
of summons or other originating process or any third or other party
notice) arising out of or in relation to this deed may be served on the
Guarantor by being left for the Guarantor with its process agent referred
to in clause 16.4.
	 
	 	16.4	 	The Guarantor has appointed Dabserv Corporate
Services Pty Ltd (ABN 73 001 824 111) currently c/- Mallesons Stephen
Jaques, Governor Phillip Tower, 1 Farrer Place, Sydney, NSW 2000,
Australia as its agent to receive any document referred to in clause
16.3. If for any reason that person ceases to be able to act as such,
the Guarantor will immediately appoint another person with an office
located in the Commonwealth of Australia to receive any such document and
promptly notify Noteholders of such appointment.





EXECUTED as a deed poll by the Guarantor




 









 








8





Execution page




	 	 	 	 	 	 	 
	EXECUTED AS A DEED POLL by

	 	 	)	 	 	 
	 

	 	 	)	 	 	 
	 

	 	 	)	 	 	 
	for
COUNTRYWIDE HOME LOANS, INC.

	 	 	)	 	 	 
	acting under the authority of that

	 	 	)	 	 	 
	company

	 	 	)	 	 	/s/ Eric P. Sieracki
	in the presence of:

	 	 	)	 	 	By executing this deed
	 
	 	 	)	 	 	the authorised signatory
	/s/
Derek W. Stark 


	 	 	)	 	 	states that it has
	Signature of witness

	 	 	)	 	 	received no notice of
	

	 	 	)	 	 	revocation of its signing
	Derek W. Stark 


	 	 	)	 	 	authority
	Name of witness (block letters)

	 	 	)