EXHIBIT 1.1(b)
CWHEQ 200_-_
INDEMNIFICATION
AND
CONTRIBUTION AGREEMENT
AGREEMENT, dated _______, 200_ (this "Agreement"), among CWHEQ, Inc., a
Delaware corporation ("CWHEQ"), the Sponsor (as defined below) and the
Broker-Dealers (as defined below).
WITNESSETH:
WHEREAS, CWHEQ and one or more of the Broker-Dealers are parties to the
Underwriting Agreement (defined below), providing for the sale by CWHEQ and
the purchase, severally and not jointly, by such Broker-Dealers of the Notes
(defined below); and
WHEREAS, as an inducement to the Broker-Dealers to enter into the
Underwriting Agreement, CWHEQ and the Broker-Dealers wish to provide for
indemnification and contribution on the terms and conditions hereinafter set
forth; and
WHEREAS, as an inducement to the Broker-Dealers to enter into the
Underwriting Agreement, the Sponsor 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:
ABS ICM: A Free Writing Prospectus that consists of information
contemplated by the definition of ABS informational and computational
materials in Item 1101(a) of Regulation AB under the Act.
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 CWHEQ, Inc., currently, relating to the
offering from time to time of one or more series of asset backed notes.
Bloomberg Submission: The material submitted to Bloomberg for
ultimate access by investors.
Broker-Dealer: Each of the signatories to this Agreement or any
Terms Agreement other than CWHEQ or the Sponsor.
Certificates: The Class C Certificates, Class R-[1] Certificates
and Class R-[2] Certificates.
Closing Date: As to any Offering, the date set forth in the
related Prospectus Supplement.
Collateral Strats: Information regarding the Mortgage Loans that
is based on the Seller Mortgage Loan Information.
Computational Materials: A Free Writing Prospectus containing only
information of the type specified in paragraph (5) of the definition of ABS
ICM; provided, however, that Computational Materials do not include any
misstatement or omission or alleged misstatement or omission that results from
a Pool Error.
Contract of Sale: Has the meaning set forth in Rule 159 under the
Act.
CWHEQ: CWHEQ, Inc., a Delaware corporation and its successors in
interest.
CWHEQ Prospectus Information: All information contained or
incorporated in each Prospectus other than the related Underwriter
Information.
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CWHEQ Registration Information: All information contained or
incorporated in the Registration Statement other than the related Underwriter
Information.
Disclosure Package: The Issuer Free Writing Prospectus, including
the Static Pool Data referred to therein, and the Base Prospectus
collectively.
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 CWHEQ with respect to the Mortgage Loans and including any ABS ICM
or Preliminary Term Sheet, Series Term Sheet furnished by one or more of the
Broker-Dealers.
Free Writing Prospectus: The meaning set forth in Rules 405 and
433 under the Act.
Issuer Free Writing Prospectus: The Free Writing Prospectus of
CWHEQ furnished by CWHEQ to the Underwriters in connection with the Notes.
Notes: Revolving Home Equity Loan Asset Backed Notes, Series
200_-_ of CWHEQ Revolving Home Equity Loan Trust, Series 200_-_.
Offered Notes: The Class A, Class A-IO, Class M-[1], Class M-[2],
Class M-[3], Class M-[4], Class M-[5], Class M-[6], and Class B Notes.
Offering: As defined in the Underwriting Agreement.
Pool Error: Any error or omission in the Seller Mortgage Loan
Information.
Preliminary Term Sheet: A Free Writing Prospectus that describes
the Notes and/or the Mortgage Loans and contains information of the type
described in Item 1101(a) (1) - (3) of Regulation AB under the Act but
excluding any Computational Materials.
Prospectus: As to any Offering, the Base Prospectus together with
the related Prospectus Supplement with any supplement to the Prospectus
Supplement.
Prospectus Supplement: As defined in the Underwriting Agreement.
Registration Statement: As defined in the Underwriting Agreement.
Rules and Regulations: The rules and regulations of the Commission
promulgated under the Act.
Seller Mortgage Loan Information: Information relating to the
Mortgage Loans furnished by or on behalf of the Sponsor to any Broker-Dealer.
Series Term Sheet: As defined in the No-Action Letters.
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Sponsor: Countrywide Home Loans, Inc., a New York corporation and
its successors in interest.
Spread: As to any Underwriter, the excess of (i) the price paid by
investors for the Notes purchased from such Underwriter over (ii) the price
paid by such Underwriter to CWHEQ for such Notes.
Static Pool Data: The information on the website of the Sponsor as
contemplated by Item 1105 of Regulation AB.
Structure: Information contained in a Preliminary Term Sheet or
ABS ICM specifying paydown rules for the classes and characteristics of the
Notes.
Terms Agreement: As defined in the Underwriting Agreement.
Underwriter: Each Broker-Dealer that is purchasing the Notes
pursuant to the Underwriting Agreement and the related Terms Agreement.
Underwriter Information: As to any Underwriter: (i) the only
written information furnished by or on behalf of such Underwriter to CWHEQ
specifically for use in connection with the preparation of the Registration
Statement or the related Prospectus, such information being the information
relating to such Underwriter set forth in the related 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 such
Underwriter; 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.
Underwriting Agreement: The Underwriting Agreement, dated the date
hereof, among CWHEQ and each Underwriter providing for the purchase and sale
of the Notes.
Written Communication: The meaning set forth in Rule 405 under the
Act.
1.2 Other Terms.
Capitalized terms used but not defined herein shall have the
meanings assigned to such terms in the Underwriting Agreement.
ARTICLE II
Representations and Warranties
2.1 Mutual Representation.
Each party hereto represents to the other parties hereto that:
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(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) CWHEQ has all requisite corporate power and authority to execute,
deliver and perform its obligations under this Agreement; and
(b) The Sponsor has all requisite corporate power and authority to
execute, deliver and perform its obligations under this Agreement.
(c) In relation to each Member State of the European Economic Area that
has implemented the Prospectus Directive (each, a "Relevant Member State"),
each Broker-Dealer represents that with effect from and including the date on
which the Prospectus Directive is implemented in that Relevant Member State
(the "Relevant Implementation Date") and with respect to any Class of Notes
with a minimum denomination of less than $[100,000] that is purchased by such
Broker-Dealer it has not made and will not make an offer of Notes of that
Class to the public in that Relevant Member State prior to the publication of
a prospectus in relation to the Notes of that Class which has been approved by
the competent authority in that Relevant Member State or, where appropriate,
approved in another Relevant Member State and notified to the competent
authority in that Relevant Member State, all in accordance with the Prospectus
Directive, except that it may, with effect from and including the Relevant
Implementation Date, make an offer of Notes of that Class to the public in
that Relevant Member State at any time:
(i) to legal entities which are authorized or regulated to operate
in the financial markets or, if not so authorized or regulated, whose
corporate purpose is solely to invest in securities;
(ii) to any legal entity which has two or more of (1) an average
of at least 250 employees during the last fiscal year; (2) total assets
of more than (euro)43,000,000 and (3) an annual net revenue of more than
(euro)50,000,000, as shown in its last annual or consolidated financial
statements; or
(iii) in any other circumstances that do not require the
publication by the Depositor of a prospectus pursuant to Article 3 of
the Prospectus Directive.
For the purposes of this provision, the expression an "offer of Notes of
that Class to the public" in relation to any Class of Notes, which Class has a
minimum denomination of less than $100,000, in any Relevant Member State means
the communication in any form and by any means of sufficient information on
the terms of the offer and the Notes to be offered so as to enable an investor
to decide to purchase or subscribe the Notes of that Class, as the same may be
varied in that Member State by any measure implementing the Prospectus
Directive in that
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Member State, and the expression "Prospectus Directive" means Directive
2003/71/EC and includes any relevant implementing measure in each Relevant
Member State.
2.3 Marketing.
(a) Each Underwriter represents to and agrees with CWHEQ as
follows:
(i) Prior to entering into any Contract of Sale, the
Underwriter shall convey the Disclosure Package to each prospective
investor. The Underwriter shall keep sufficient records to document its
conveyance of the Disclosure Package to each potential investor prior to
the related Contract of Sale.
(ii) An Underwriter may convey ABS ICM or a Preliminary Term
Sheet to a potential investor prior to entering into a Contract of Sale
with such investor; provided, however, that such Underwriter shall not
enter into a Contract of Sale with such investor unless the Underwriter
has complied with paragraph (i) above prior to such Contract of Sale. In
addition, if such ABS ICM or Preliminary Term Sheet contains any
information other than the Bloomberg Submissions, Collateral Strats or
Computational Materials (any such ABS ICM or Preliminary Term Sheet, a
"Traditional Term Sheet"), such Underwriter: (x) shall deliver a copy of
the proposed Traditional Term Sheet to CWHEQ and its counsel at least
one business day prior to the anticipated first use; (y) shall not
convey any such Traditional Term Sheet to which CWHEQ or its counsel
reasonably objects; and (z) shall convey such Traditional Term Sheet in
final form to counsel for CWHEQ and to each potential investor in the
class or classes of Notes to which such Traditional Term Sheet relates.
(iii) An Underwriter may convey Computational Materials (x)
to a potential investor prior to entering into a Contract of Sale with
such investor; provided, however, that such Underwriter shall not enter
into a Contract of Sale with such investor unless the Underwriter has
complied with paragraph (i) above prior to such Contract of Sale and
such Computational Materials shall be conveyed separate and apart from
any Preliminary Term Sheet and (y) to an investor after a Contract of
Sale provided that the Underwriter has complied with paragraph (i) above
in connection with such Contract of Sale. The Underwriter shall keep
sufficient records of any conveyance of Computational Materials to
potential or actual investors and shall maintain such records as
required by the Rules and Regulations.
(iv) Each ABS ICM or Preliminary Term Sheet shall contain
legends that are substantially similar to the following:
The information in this free writing prospectus is preliminary. This
free writing prospectus is being delivered to you solely to provide you
with information about the offering of the securities referred to in
this free writing prospectus and to solicit an offer to purchase the
securities, when, as and if issued. Any such offer to purchase made by
you will not be accepted and will not constitute a contractual
commitment by you to purchase any of the securities until we have
accepted your offer to purchase. You may
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withdraw your offer to purchase securities at any time prior to our
acceptance of your offer.
The asset-backed securities referred to in this free writing
prospectus are being offered when, as and if issued. In particular you
are advised that asset-backed securities, and the asset pools backing
them, are subject to modification or revision (including, among other
things, the possibility that one or more classes of securities may be
split, combined or eliminated), at any time prior to issuance or
availability of a final prospectus. As a result, you may commit to
purchase securities that have characteristics that change, and you are
advised that all or a portion of the securities may not be issued that
have the characteristics described in this free writing prospectus. Any
obligation on our part to sell securities to you will be conditioned on
the securities having the characteristics described in this free writing
prospectus. If that condition is not satisfied, we will notify you, and
neither the issuer nor any underwriter will have any obligation to you
to deliver all or any portion of the securities which you have committed
to purchase and there will be no liability between us as a consequence
of the non-delivery.
THE ISSUER HAS FILED A REGISTRATION STATEMENT (INCLUDING A
PROSPECTUS) WITH THE SEC FOR THE OFFERING TO WHICH THIS COMMUNICATION
RELATES. BEFORE YOU INVEST, YOU SHOULD READ THE PROSPECTUS IN THAT
REGISTRATION STATEMENT AND OTHER DOCUMENTS THE ISSUER HAS FILED WITH THE
SEC FOR MORE COMPLETE INFORMATION ABOUT THE ISSUER AND THIS OFFERING.
YOU MAY GET THESE DOCUMENTS AT NO CHARGE BY VISITING XXXXX ON THE SEC
WEB SITE AT XXX.XXX.XXX. ALTERNATIVELY, THE ISSUER, ANY UNDERWRITER OR
ANY DEALER PARTICIPATING IN THE OFFERING WILL ARRANGE TO SEND YOU THE
PROSPECTUS AT NO CHARGE IF YOU REQUEST IT BY CALLING TOLL-FREE
1-8[ZZ-ZZZ-ZZZZ].
This free writing prospectus does not contain all information that
is required to be included in the base prospectus and the prospectus
supplement.
The information in this free writing prospectus is preliminary and
is subject to completion or change.
The information in this free writing prospectus, if conveyed prior
to the time of your commitment to purchase, supersedes any similar prior
information contained in any prior free writing prospectus relating to
these securities.
Please click here for a copy of the base prospectus applicable to
this offering. [insert link direct to base as posted on a website, or
link to an embedded pdf copy of the base prospectus].
The information in this free writing prospectus may be based on
preliminary assumptions about the pool assets and the structure. Any
such assumptions are subject to change.
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The information in this free writing prospectus may reflect
parameters, metrics or scenarios specifically requested by you. If so,
prior to the time of your commitment to purchase, you should request
updated information based on any parameters, metrics or scenarios
specifically required by you.
Neither the issuer of the securities nor any of its affiliates
prepared, provided, approved or verified any statistical or numerical
information presented in this free writing prospectus, although that
information may be based in part on loan level data provided by the
issuer or its affiliates.
(v) Bloomberg Submissions shall include the third legend in
(iv) above and shall not be required to have any other legends.
(vi) Unless preceded or accompanied by a prospectus
satisfying the requirements of Section 10(a) of the Act, an Underwriter
shall not convey or deliver any Written Communication to any person in
connection with the initial offering of any Notes, unless such Written
Communication either (a) is made in reliance on Rule 134 under the Act,
(b) constitutes a prospectus satisfying the requirements of Rule 430B
under the Act that has been prepared by CWHEQ, (c) is the Final Free
Writing Prospectus or (d) is permitted by Section 2.3(a)(i), (ii) or
(iii), subject to compliance with Section 2.3 (iii), (iv) and (v).
(vii) Each Underwriter that conveys ABS ICM or a Preliminary
Term Sheet that is not a Traditional Term Sheet delivered to CWHEQ in
accordance with Section 2.3(a)(ii) hereby represents that such ABS ICM
or Preliminary Term Sheet does not contain information that conflicts
with the information contained in the Registration Statement.
(b) CWHEQ represents to and agrees with each Underwriter as
follows:
1. CWHEQ shall file any ABS ICM or Preliminary Term Sheets
delivered to its counsel as provided in 2.3(a)(ii) above as and when
required by the Rules and Regulations.
2. CWHEQ shall not convey any free writing prospectus or other
issuer information other than the Disclosure Package prior to the
availability of the Prospectus Supplement unless it shall have first
delivered it to the Underwriters for their review.
(c) In conjunction with the preparation of the Prospectus
Supplement for printing and distribution, CWHEQ and the Underwriters shall
prepare a Free Writing Prospectus which will consist of excerpts from the
Prospectus Supplement. CWHEQ shall file such Free Writing Prospectus at the
time of filing of the Prospectus Supplement.
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ARTICLE III
Indemnification
3.1 Indemnification.
(a) CWHEQ 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 CWHEQ Prospectus Information, the CWHEQ Registration Information, the
Disclosure Package or the Seller Mortgage Loan 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 CWHEQ Prospectus Information,
the CWHEQ Registration 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 CWHEQ Prospectus
Information, the CWHEQ Registration Information, the Disclosure Package or the
Seller Mortgage Loan 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
CWHEQ 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 Underwriter Information or Collateral Strats furnished
by such Broker-Dealer. This indemnity agreement will be in addition to any
liability that CWHEQ may otherwise have.
(b) Each Broker-Dealer severally agrees to indemnify and hold
harmless CWHEQ, its officers who signed the Registration Statement or any
amendment thereof, its directors, and each person who controls CWHEQ within
the meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnities from CWHEQ 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 the Underwriter
Information furnished by such Broker-Dealer. This indemnity agreement will be
in addition to any liability that any Broker-Dealer may otherwise have.
(c) Each Underwriter severally agrees to indemnify and hold
harmless CWHEQ, its officers who signed the Registration Statement or any
amendment thereof, its directors, and each person who controls CWHEQ 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, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) (i) arise out of such Underwriter's failure to
comply with Section 2.3(a)(i) or (ii) arise out of or are based upon any
untrue statement or alleged untrue statement of
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a material fact contained in the Bloomberg Submissions or in the Collateral
Strats included in ABS ICM or a Preliminary Term Sheet conveyed by such
Underwriter prior to the applicable Contract of Sale; provided, however, that
no Underwriter shall be liable to any of the parties identified above in this
sentence to the extent that (i) any untrue statement or alleged untrue
statement of a material fact was made in reliance upon and in conformity with
the Seller Mortgage Loan Information or the Disclosure Package or (ii) in the
case of a Bloomberg Submission, other than any Collateral Strats contained
therein, the Underwriter delivered a copy of such Bloomberg Submission to
CWHEQ and its counsel at least one business day prior to the anticipated first
use and neither CWHEQ nor its counsel reasonably objected to any information
contained therein.
(d) 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
applicable Underwriter 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.
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3.2 Contribution.
(a) If the indemnification provided for in Section 3.1(a)-(b) 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 (a) or (b), as
applicable, above (i) in such proportion as is appropriate to reflect the
relative benefits received by CWHEQ on the one hand and the Broker-Dealers on
the other from the Offering of the related Offered Notes 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 CWHEQ 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 CWHEQ on the one hand and
the Broker-Dealers on the other shall be in such proportion so that such
Broker-Dealers are responsible for an amount equal to that portion equal to
the amount of the loss multiplied by a fraction, the numerator of which is the
Spread and the denominator of which is the proceeds to CWHEQ (before expenses)
and CWHEQ is responsible for the balance. The relative benefits received by an
Underwriter shall be the Spread of such Underwriter, in the case of each
Broker-Dealer. 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 CWHEQ or by the Broker-Dealers and the parties'
relative intent, knowledge, access to information and opportunity to correct
or prevent 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 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 Broker-Dealer shall not be required to
contribute any amount in excess of (x) the applicable Spread, in the case of
each Broker-Dealer, 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. 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) If the indemnification provided for in Section 3.1(c) is
unavailable or insufficient to hold harmless an indemnified party under
Section 3.1(c), then the applicable Underwriter shall contribute to the amount
paid or payable by CWHEQ as a result of the losses, claims, damages or
liabilities referred to in Section 3.1(c) above (i) in such proportion as is
appropriate to reflect the relative benefits received by CWHEQ on the one hand
and such Underwriter on the other from the offering of the Notes 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 CWHEQ
on the one hand and the applicable Underwriter 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. An Underwriter shall not be required to
contribute any amount in excess of the Spread over the amount of any
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damages which the applicable Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission.
3.3 Benefits.
The obligations of CWHEQ under this Article III shall be in
addition to any liability which CWHEQ 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 CWHEQ who signed the
Registration Statement or any amendment thereof to its directors, and to each
person who controls CWHEQ within the meaning of either the Act or the Exchange
Act.
3.4 Sponsor Obligation.
The Sponsor 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 CWHEQ to perform any of its
obligations under this Agreement. The Sponsor agrees that there are no
conditions precedent to the obligations of the Sponsor hereunder other than
written demand to CWHEQ 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 Notes 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 Notes.
ARTICLE V
General
5.1 Survival.
This Agreement and the obligations of the parties hereunder shall
survive the purchase and sale of the Notes and any termination of the
Underwriting 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. Each of CWHEQ and the Sponsor agrees that the benefits of this
Agreement shall inure to each Broker-Dealer that executes a Terms Agreement to
the same extent as if such Broker-Dealer executed this Agreement.
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 CWHEQ, shall be
delivered to 0000 Xxxx Xxxxxxx, X.X. XX-00, Xxxxxxxxx, Xxxxxxxxxx 00000,
attention of Deputy General Counsel for Corporate Finance.
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IN WITNESS WHEREOF, the parties have executed this Agreement by
their duly authorized officers on the date first above written.
CWHEQ, INC.
By: _____________________________
Name:
Title:
COUNTRYWIDE HOME LOANS, INC.
By: _____________________________
Name:
Title:
COUNTRYWIDE SECURITIES CORPORATION
By: _____________________________
Name:
Title:
