EXHIBIT 1.2
CWALT ______
INDEMNIFICATION
AND
CONTRIBUTION AGREEMENT
AGREEMENT, dated ________, 200_ (this "Agreement"), among CWALT, Inc., a
Delaware corporation ("CWALT"), CHL (as defined below) and the Broker Dealers
(as defined below).
WITNESSETH:
WHEREAS, CWALT and one or more of the Broker Dealers are parties to the
Underwriting Agreement (defined below), providing for the sale by CWALT and
the purchase, severally and not jointly, by such Broker Dealers of the Public
Certificates (defined below); and
WHEREAS, CWALT and one or more of the Broker Dealers are parties to the
Purchase Agreement (defined below), providing for the sale by CWALT and the
purchase, severally and not jointly, of the Private Certificates (defined
below); and
WHEREAS, as an inducement to the Broker Dealers to enter into the
Underwriting Agreement and the Purchase Agreement, CWALT and the Broker
Dealers wish to provide for indemnification and contribution on the terms and
conditions hereinafter set forth; and
WHEREAS, the purchase price to be paid by CWALT to CHL for the Mortgage
Loans will be the proceeds of the sale by CWALT to the Broker Dealers of the
Public Certificates and the Private Certificates and as an inducement to the
Broker Dealers to enter into the Underwriting Agreement and the Purchase
Agreement, CHL agrees to perform certain obligations set forth herein;
NOW, THEREFORE, in consideration of the foregoing and of other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
Definitions
1.1 Certain Defined Terms.
The following terms shall have the meanings set forth below, unless
the context clearly indicates otherwise:
Act: The Securities Act of 1933, as amended.
Agreement: This Indemnification and Contribution Agreement, as the
same may be amended in accordance with the terms hereof.
Base Prospectus: The prospectus dated ________, 200_, as the same
may be amended or supplemented, of CWALT relating to the offering from time to
time of one or more series of mortgage pass-through certificates.
Broker Dealer: Each of the signatories to this Agreement other than
CWALT or CHL.
Certificates: CHL Mortgage Pass-Through Trust _____, Mortgage
Pass-Through Certificates, Series _______ of CWALT.
CHL: Countrywide Home Loans, Inc., a New York corporation and its
successors in interest.
Closing Date: On or about ______, 200__.
Computational Materials: Computer generated tables and/or charts
displaying, with respect to any Class or Classes of Certificates, any of the
following: yield; average life; duration; expected maturity; interest rate
sensitivity; loss sensitivity; cash flow characteristics; background
information regarding the Mortgage Loans; the proposed structure; decrement
tables; or similar information (tabular or otherwise) of a statistical,
mathematical, tabular or computational nature.
CWALT: CWALT, Inc., a Delaware corporation and its successors in
interest.
CWALT Memorandum Information: All information contained or
incorporated in the Memorandum other than the Purchaser Information.
CWALT Prospectus Information: All information contained or
incorporated in the Prospectus other than the Senior Underwriter Information,
the Mezzanine Underwriter Information and the PO Underwriter Information.
CWALT Registration Information: All information contained or
incorporated in the Registration Statement.
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Exchange Act: The Securities Exchange Act of 1934, as amended.
Form 8-K: The Current Report on Form 8-K, if any, filed by or on
behalf of CWALT with respect to the Mortgage Loans and including any
Computational Materials furnished by one or more of the Broker Dealers.
Memorandum: The Confidential Private Placement Memorandum, if any,
dated the Closing Date, as the same may be amended or supplemented, of CWALT
relating to the Private Certificates.
Mezzanine Certificates: The Class M, Class B-1 and Class B-2
Certificates.
Mezzanine Spread: The excess, if any, of (i) the purchase prices
paid by investors to the Mezzanine Underwriter for the Mezzanine Certificates
over (ii) the purchase price paid by the Mezzanine Underwriter to CWALT for
the Mezzanine Certificates pursuant to the Underwriting Agreement.
Mezzanine Underwriter: The Broker Dealers which are purchasing the
Mezzanine Certificates pursuant to the Underwriting Agreement.
Mezzanine Underwriter Information: The only written information
furnished by or on behalf of the Mezzanine Underwriters to CWALT specifically
for use in connection with the preparation of the Registration Statement or
the Prospectus, such information being (i) the information relating to the
Mezzanine Underwriters set forth in the Prospectus Supplement in the last
paragraph of the cover page thereof and under the caption "Method of
Distribution" therein and (ii) any Computational Materials prepared by the
Mezzanine Underwriters, furnished to CWALT and included in the Form 8-K.
Offered Certificates: The Public Certificates and the Private
Certificates.
PO Underwriter: The Broker Dealer, if any, which is purchasing the
Class PO Certificates pursuant to the Underwriting Agreement.
PO Spread: The excess, if any, of (i) the purchase prices paid by
investors to the PO Underwriter for the Class PO Certificates, over (ii) the
purchase price paid by the PO Underwriter to CWALT for the Class PO
Certificates pursuant to the Underwriting Agreement.
PO Underwriter Information: As to the PO Underwriter, the only
written information furnished by or on behalf of the PO Underwriter to CWALT
specifically for use in connection with the preparation of the Registration
Statement or the Prospectus, such information being (i) the information
relating to the PO Underwriter set forth in the Prospectus Supplement in the
last paragraph of the cover page thereof and under the caption "Method of
Distribution" therein and (ii) any Computational Materials prepared by the PO
Underwriter, furnished to CWALT and included in the Form 8-K; provided,
however, that such Computational Materials shall not include any Seller
Mortgage Loan Information or any errors in the mathematical calculations
reflected in such Computational Materials to the extent such errors result
from such Seller Mortgage Loan Information.
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Private Certificates: The Class B-3, Class B-4 and Class B-5
Certificates.
Prospectus: The Base Prospectus together with the Prospectus
Supplement.
Prospectus Supplement: The Prospectus Supplement dated the date
hereof, as the same may be amended or supplemented, of CWALT relating to the
offering of the Public Certificates.
Public Certificates: The Senior Certificates and the Mezzanine
Certificates.
Purchase Agreement: The Purchase Agreement, if any, dated the date
hereof, between CWALT and the Purchasers providing for the purchase and sale
of the Private Certificates.
Purchase Spread: The excess, if any, of (i) the purchase prices paid
by investors to the Purchasers for the Private Certificates over (ii) the
purchase price paid by the Purchasers to CWALT for the Private Certificates
pursuant to the Purchase Agreement.
Purchaser: The Broker Dealers which are purchasing the Private
Certificates pursuant to the Purchase Agreement.
Purchaser Information: The only written information furnished by or
on behalf of the Purchasers to CWALT specifically for use in connection with
the preparation of the Memorandum, such information being the information
relating to the Purchasers set forth in the Memorandum under the caption
"Method of Placement."
Registration Statement: As defined in the Underwriting Agreement.
Retained Certificates: The Class ___ Certificate.
Sellers: Countrywide Home Loans, Inc., a New York corporation and
its successors in interest and one or more special purpose entities
established by Countrywide Financial Corporation.
Senior Certificates: The Class A-[ ] Certificates.
Senior Spread: The excess, if any, of (i) the purchase prices paid
by investors to the Senior Underwriter for the Senior Certificates, other than
the Retained Certificates, over (ii) the purchase price paid by the Senior
Underwriter to CWALT for the Senior Certificates pursuant to the Underwriting
Agreement.
Senior Underwriter: The Broker Dealers which are purchasing the
Senior Certificates, other than the Retained Certificates, pursuant to the
Underwriting Agreement.
Senior Underwriter Information: The only written information
furnished by or on behalf of the Senior Underwriters to CWALT specifically for
use in connection with the preparation of the Registration Statement or the
Prospectus, such information being (i) the information relating to the Senior
Underwriters set forth in the Prospectus Supplement in the last
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paragraph of the cover page thereof and under the caption "Method of
Distribution" therein and (ii) any Computational Materials prepared by the
Senior Underwriters, furnished to CWALT and included in the Form 8-K.
Underwriting Agreement: The Underwriting Agreement, dated the date
hereof, among CWALT, the Senior Underwriters, the PO Underwriter and the
Mezzanine Underwriters providing for the purchase and sale of the Public
Certificates, other than the Retained Certificates.
1.2 Other Terms.
Capitalized terms used but not defined herein shall have the
meanings assigned to such terms in the Underwriting Agreement or the Purchase
Agreement, as applicable.
1.3 Interpretive Principle.
A Broker Dealer may be acting in more than one capacity, e.g., the
Senior Underwriter also may be the PO Underwriter. References herein to a
Broker Dealer acting in a particular capacity shall refer to such Broker
Dealer in such capacity only and shall not refer to other capacities, if any,
being served by such Broker Dealer.
ARTICLE II
Representations and Warranties
2.1 Mutual Representation.
Each party hereto represents to the other parties hereto that:
(a) the execution, performance and delivery of this Agreement has been
duly authorized by such party;
(b) this Agreement has been duly executed and delivered by such party;
and
(c) this Agreement constitutes the legal and valid obligations of such
party.
2.2 Other Representations.
(a) CWALT has all requisite corporate power and authority to execute,
deliver and perform its obligations under this Agreement; and
(b) CHL has all requisite corporate power and authority to execute,
deliver and perform its obligations under this Agreement.
2.3 Computational Materials.
Each Broker Dealer which desires to furnish Computational Materials
to CWALT shall furnish fifteen (15) copies thereof to Sidley Xxxxxx Xxxxx &
Xxxx LLP no later than 3:00
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p.m. New York City time on the business day prior to the day on which the
Prospectus Supplement is being cleared for printing. In addition, each Broker
Dealer which has so furnished Computational Materials to CWALT hereby
represents as to the materials it has furnished as follows:
(a) The Computational Materials so furnished by such Broker Dealer
include all Computational Materials prepared by such Broker Dealer that:
(i) are generated based on assumptions regarding the payment
priorities and characteristics of a Class of Certificates that is
actually issued and purchased by a Broker Dealer; and
(ii) are provided to prospective investors under the following
conditions prior to the time of filing of the Prospectus pursuant to
Rule 424(b):
(A) in the case of each prospective investor that has orally
indicated to such Broker Dealer that it will purchase all or a
portion of the Class of Certificates to which such
Computational Materials relate, the Computational Materials
relating to such Class that are sent to such prospective
investor; and
(B) for any other prospective investor, all Computational
Materials that are sent to such prospective investor after the
structure for the Certificates is finalized;
provided, however, that the Computational Materials so furnished
need not include any Computational Materials that relate to
abandoned structures or that are furnished to prospective investors
prior to the time that the structure of the Certificates is
finalized where such investors have not indicated to such Broker
Dealer their intention to purchase the Class or Classes of
Certificates described in such Computational Materials.
(b) The Computational Materials included in the Senior Underwriters
Information, the Mezzanine Underwriters Information or the PO Underwriter
Information, as applicable, pursuant to the definitions thereof do not contain
an untrue statement of a material fact or, when read in conjunction with the
Prospectus as an integral document, omit to state a material fact necessary to
make such statements, in light of the circumstances under which they were
made, not misleading; provided, however, that no representation is made that
the Prospectus (exclusive of such Computational Materials and the Senior
Underwriters Information, the Mezzanine Underwriters Information or the PO
Underwriter Information, as the case may be, provided by such Underwriter)
does not include any untrue statements of a material fact and does not omit to
state any material facts necessary to make the statements contained therein,
in light of the circumstances under which they were made, not misleading.
(c) The Computational Materials contain customary legends regarding the
assumptions on which they are based and the absence of assurances or
representations as to the actual rate or timing of principal payments or
prepayments on any of the Mortgage Loans or the
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performance characteristics of the Certificates, and a statement to the effect
that the Computational Materials were prepared by the applicable Broker Dealer
in reliance on information regarding the Mortgage Loans furnished by the
Issuer.
(c) At or prior to the time any Computational Materials are furnished to
CWALT for filing on the Form 8-K, the Broker Dealer furnishing such
Computational Materials will provide to CWALT and such Broker Dealer a letter,
in form and substance reasonably satisfactory to CWALT and such Broker Dealer,
of a firm of independent public accountants of national reputation to the
effect that such accountants have performed certain specified procedures with
respect to such Computational Materials and have found no exceptions, other
than such exceptions as are acceptable to CWALT and the Broker Dealer. Fifty
percent (50%) of the costs and expenses of such letter will be paid by each of
the Broker Dealers obtaining the same and CWALT.
ARTICLE III
Indemnification
3.1 Indemnification.
(a) CWALT agrees to indemnify and hold harmless each Broker Dealer
and each person who controls a Broker Dealer within the meaning of either the
Act or the Exchange Act against any and all losses, claims, damages or
liabilities, joint or several, to which they may become subject under the Act,
the Exchange Act, or other federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in
the CWALT Memorandum Information, the CWALT Prospectus Information or the
CWALT Registration Information or in any revision or amendment thereof or
supplement thereto or arise out of or are based upon the omission or alleged
omission to state in the CWALT Registration Information, the CWALT Prospectus
Information or in any revision or amendment thereof or supplement thereto a
material fact required to be stated therein or the omission or alleged
omission to state a material fact in the CWALT Memorandum Information, the
CWALT Prospectus Information or the CWALT Registration Information or in any
revision or amendment thereof or supplement thereto necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, and agrees to reimburse each such indemnified party for
any legal or other expenses reasonably incurred by it or him in connection
with investigating or defending any such loss, claim, damage, liability or
action; provided, however, that CWALT shall not be liable to a particular
Broker Dealer or any person who controls such Broker Dealer to the extent that
any misstatement or alleged misstatement or omission or alleged omission was
(i) made in reliance upon and in conformity with the Senior Underwriters
Information, the PO Underwriter Information, the Mezzanine Underwriters
Information, or the Purchasers Information, as applicable, and (ii) in the
case of the CWALT Prospectus Information, to the extent that such misstatement
or omission was corrected and such Broker Dealer did not deliver, at or prior
to the written confirmation of such sale, a copy of the Prospectus as then
revised, amended or supplemented in any case where such delivery is required
by the Act or the Exchange Act, if
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CWALT has previously furnished copies thereof to the Broker Dealers in
accordance with the terms of the Underwriting Agreement or the Purchase
Agreement, as applicable. This indemnity agreement will be in addition to any
liability which CWALT may otherwise have.
(b) Each Broker Dealer severally agrees to indemnify and hold
harmless CWALT, its officers who signed the Registration Statement or any
amendment thereof, its directors, and each person who controls CWALT within
the meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnities from CWALT to each Broker Dealer; provided, however,
that a Broker Dealer will be liable in any such case only to the extent that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with (i) the Senior
Underwriters Information, in the case of the Senior Underwriters, (ii) the PO
Underwriter Information, in the case of the PO Underwriter, (iii) the
Mezzanine Underwriters Information, in the case of the Mezzanine Underwriters
and (iv) the Purchasers Information, in the case of the Purchaser; provided,
further, that any such omission or alleged omission relating to the
Computational Materials included in the Senior Underwriters Information, the
PO Underwriter Information or the Mezzanine Underwriters Information, as the
case may be, pursuant to the definitions thereof shall be determined by
reading such Computational Materials in conjunction with the Prospectus as an
integral document and in light of the circumstances under which such
statements in the Computational Materials and Prospectus were made. This
indemnity agreement will be in addition to any liability which any Broker
Dealer may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 3.1 of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 3.1, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party will not relieve the indemnifying party from any liability
which it may have to any indemnified party otherwise than under this Section
3.1. In case any such action is brought against any indemnified party and it
notifies the indemnifying party of the commencement thereof, the indemnifying
party shall be entitled to participate therein, and to the extent that it may
elect by written notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel satisfactory to such indemnified party;
provided, however, that if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party or
parties shall have reasonably concluded that there may be legal defenses
available to it or them and/or other indemnified parties that are different
from or additional to those available to the indemnifying party, the
indemnified party or parties shall have the right to elect separate counsel to
assert such legal defenses and to otherwise participate in the defense of such
action on behalf of such indemnified party or parties. Upon receipt of notice
from the indemnifying party to such indemnified party of its election so to
assume the defense of such action and approval by the indemnified party of
counsel, the indemnifying party will not be liable for any legal or other
expenses subsequently incurred by such indemnified party in connection with
the defense thereof, unless (i) the indemnified party shall have employed
separate counsel in connection with the assertion of legal defenses in
accordance with the proviso to the next preceding sentence (it being
understood, however, that the indemnifying party shall not be liable for the
expenses of more than one separate counsel for each of, and approved by, the
Senior Underwriters, the PO
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Underwriter, the Mezzanine Underwriters or the Purchasers, as applicable, in
the case of paragraph (a) of this Section 3.1, representing the related
indemnified parties under such paragraph (a) who are parties to such action),
(ii) the indemnifying party shall not have employed counsel satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after notice of commencement of the action or (iii) the indemnifying
party has authorized the employment of counsel for the indemnified party at
the expense of the indemnifying party; and except that, if clause (i) or (iii)
is applicable, such liability shall only be in respect of the counsel referred
to in such clause (i) or (iii). No indemnifying party shall, without the
consent of the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject
matter of such proceeding.
3.2 Contribution.
(a) If the indemnification provided for in Section 3.1 is
unavailable or insufficient to hold harmless an indemnified party under
Section 3.1(a)-(b), then each indemnifying party shall contribute to the
amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in Section 3.1 above in such
proportion as is appropriate to reflect the following: (A) in the case of any
Broker Dealer which did not furnish Computational Materials as provided in
Section 2.3 hereof (i) in such proportion as is appropriate to reflect the
relative benefits received by CWALT on the one hand and the Broker Dealers on
the other from the offering of the Offered Certificates or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of CWALT on the
one hand and the Broker Dealers on the other in connection with the statements
or omissions or alleged statements or alleged omissions which resulted in such
losses, claims, damages or liabilities as well as any other relevant equitable
considerations; or (B) in the case of any Broker Dealer which did so furnish
Computational Materials, (i) the relative benefits received by CWALT on the
one hand and the Broker Dealers on the other from the offering of the Offered
Certificates and (ii) the relative fault of CWALT on the one hand and the
Broker Dealers on the other in connection with the statements or omissions or
alleged statements or alleged omissions which resulted in such losses, claims,
damages or liabilities as well as any other relevant equitable considerations.
The relative benefits received by CWALT on the one hand and the Broker Dealers
on the other shall be in such proportion so that the Broker Dealers are
responsible for an amount equal to the sum of the Senior Spread, the PO
Spread, the Mezzanine Spread and the Purchase Spread and CWALT is responsible
for the balance. The relative benefits received by the Senior Underwriters,
the PO Underwriter, the Mezzanine Underwriters and the Purchasers shall be the
Senior Spread, in the case of the Senior Underwriters, the PO Spread, in the
case of the PO Underwriter, the Mezzanine Spread, in the case of the Mezzanine
Underwriters, and the Purchase Spread, in the case of the Purchasers. The
relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omissions or alleged omission to state a material fact relates to information
supplied by CWALT or by the Broker Dealers and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
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such untrue statement or omission. The amount paid by an indemnified party as
a result of the losses, claims, damages or liabilities referred to in the
first sentence of this Section 3.2(a) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any action or claim which is the subject of
this Section 3.2(a). A Broker Dealer shall not be required to contribute any
amount in excess of (x) the Senior Spread, in the case of the Senior
Underwriters, the PO Spread, in the case of the PO Underwriter, the Mezzanine
Spread, in the case of the Mezzanine Underwriters, or the Purchase Spread, in
the case of the Purchasers over (y) the amount of any damages which the
applicable Broker Dealer has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission; provided,
however, that if the statements or omissions or alleged statements or alleged
omissions which resulted in contribution were contained in or omitted from
Computational Materials filed on the Form 8-K, the preceding limitation on
contribution shall be inapplicable to the Broker Dealer which furnished such
Computational Materials. The obligation of any Broker Dealer to contribute
under this Section 3.2 is several in proportion to the Senior Spread, the PO
Spread, the Mezzanine Spread and the Purchase Spread, respectively. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation.
(b) Each Broker Dealer, severally and not jointly, agrees to
contribute to the losses, claims, damages or liabilities paid or incurred by
any other Broker Dealer to the extent such other Broker Dealer has paid or
incurred losses, claims, damages or liabilities in excess of the Senior
Spread, in the case of the Senior Underwriters, the PO Spread, in the case of
the PO Underwriter, the Mezzanine Spread, in the case of the Mezzanine
Underwriters or the Purchase Spread, in the case of the Purchasers but such
contribution obligation shall not exceed the product of such excess and a
fraction the numerator of which is the Senior Spread, the Mezzanine Spread,
the PO Spread or the Purchase Spread, as applicable, and the denominator of
which is the sum of the Senior Spread, the Mezzanine Spread, the PO Spread and
the Purchase Spread; provided, however, that if any Broker Dealer defaults in
its obligation to any other Broker Dealer hereunder, each non-defaulting
Broker Dealer shall contribute to the applicable payment of the defaulted
obligations in accordance with the fraction set forth above; and provided,
further that if a Broker Dealer is required to contribute an amount in excess
of the Senior Spread, the PO Spread, the Mezzanine Spread or the Purchase
Spread, as applicable, because such Broker Dealer's Computational Materials
resulted in the contribution, the other Broker Dealers shall not be required
to contribute in excess of the Senior Spread, the PO Spread, the Mezzanine
Spread or the Purchase Spread, as applicable.
3.3 Benefits.
The obligations of CWALT under this Article III shall be in addition
to any liability which CWALT may otherwise have and shall extend, upon the
same terms and conditions, to each person, if any, who controls a Broker
Dealer within the meaning of the Act; and the obligations of each Broker
Dealer under this Article III shall be in addition to any liability which such
Broker Dealer may otherwise have and shall have extended upon the same terms
and conditions, to the officers of CWALT who signed the Registration Statement
or any
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amendment thereof, to its directors, and to each person who controls CWALT
within the meaning of either the Act or the Exchange Act.
3.4 CHL Obligation.
CHL agrees with each Broker Dealer, for the sole and exclusive
benefit of such Broker Dealer and each person who controls a Broker Dealer
within the meaning of either the Act or the Exchange Act and not for the
benefit of any assignee thereof or any other person or persons dealing with
such Broker Dealer, to indemnify and hold harmless each Broker Dealer and each
person who controls a Broker Dealer within the meaning of either the Act or
the Exchange Act against any failure by CWALT to perform any of its
obligations under this Agreement. CHL agrees that there are no conditions
precedent to the obligations of CHL hereunder other than written demand to
CWALT to perform its obligations under this Agreement.
ARTICLE IV
Expenses
4.1 Other Expenses.
Any costs and expenses incurred in connection with the qualification
of any of the Offered Certificates under the "blue sky" or securities laws of
any state shall be paid by the Broker Dealer requesting such action. Unless
otherwise agreed to among the Broker Dealers, any advertising or "tombstone"
expenses shall be paid by the Broker Dealer incurring the same. Each Broker
Dealer shall be responsible for all other costs and expenses incurred by it in
connection with the purchase and sale of the Offered Certificates.
4.2 OID Calculations.
If a Broker Dealer fails to provide CWALT with original issue
discount ("OID") calculations within five business days after the Closing Date
for any Certificates purchased by such Broker Dealer, such Broker Dealer
agrees to reimburse the Trust Fund for any penalties actually incurred by the
Trust Fund resulting from the failure of the Trust Fund to legend the
Certificates with OID information or for any delay in legending, as well as
for any other penalties actually imposed on the Trust Fund resulting from not
having the OID information or for having such information late.
ARTICLE V
General
5.1 Survival.
This Agreement and the obligations of the parties hereunder shall
survive the purchase and sale of the Offered Certificates and any termination
of the Underwriting Agreement and/or the Purchase Agreement.
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5.2 Successors.
This Agreement will inure to the benefit of and be binding upon the
parties hereto and their respective successors and the officers, directors and
controlling persons referred to in Article III hereof and their respective
successors and assigns, and no other person will have any right or obligation
hereunder.
5.3 Applicable Law.
This Agreement will be governed by and construed in accordance with
the laws of the State of New York disregarding principles of conflict of laws.
5.4 Miscellaneous.
Neither this Agreement nor any term hereof may be changed, waived,
discharged or terminated except by a writing signed by the party against whom
enforcement of such change, waiver, discharge or termination is sought. This
Agreement may be signed in any number of counterparts, each of which shall be
deemed an original, which taken together shall constitute one and the same
instrument.
5.5 Notices.
All communications hereunder shall be in writing and effective only
on receipt and, if sent to a Broker Dealer, shall be delivered to the address
specified on the signature page hereof; or if sent to CWALT, shall be
delivered to 0000 Xxxx Xxxxxxx, XX # XX-000, Xxxxxxxxx, Xxxxxxxxxx 00000,
attention of General Counsel.
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IN WITNESS WHEREOF, the parties have executed this Agreement by
their duly authorized officers on the date first above written.
CWALT, INC.
By:_________________________________________
Name:
Title:
COUNTRYWIDE HOME LOANS, INC.
By:_________________________________________
Name:
Title:
[ ]
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